Alfaro v Nash
[2002] NSWCA 144
•15 May 2002
CITATION: Alfaro & Anor v Nash and Ors [2002] NSWCA 144 revised - 16/05/2002 FILE NUMBER(S): CA 40796/01 HEARING DATE(S): 14/05/02, 15/05/02 JUDGMENT DATE:
15 May 2002PARTIES :
Pedro Alfaro & Anor - Claimants
Sally Sussan Nash T/as Sally Nash & Co Lawyers & Co & Ors - OpponentsJUDGMENT OF: Hodgson JA at 1 and 16; Brownie AJA at 2
LOWER COURT JURISDICTION : Supreme Court LOWER COURT
FILE NUMBER(S) :20360/01 LOWER COURT
JUDICIAL OFFICER :McClellan J
COUNSEL: Claimant in person
Ms K Rees - 1,4,8,9 Opponents
Mr G Bartley - 12,13,14,15 OpponentsSOLICITORS: Mallesons Stephen Jacques - 1,2,3,4,8,9 Opponents
Mr P Stern - Ernst & Young 5,6,7 Opponents
Ms A Cassimaty - Conway McCallum 10,11 Opponents
I V Knight - 12,13,14,15 - OpponentsCATCHWORDS: No question of principle LEGISLATION CITED: Bankruptcy Act CASES CITED: The Queen v Applebee (1995) 79 A Crim R 554 DECISION: Limited leave to appeal granted - orders - paragraph 16
40796/01
15 May 2002HODGSON JA
BROWNIE AJA
1 HODGSON J: I will ask Brownie AJ to deliver the judgment.
2 BROWNIE AJ: The claimants seek leave to appeal from a decision of McClellan J who dismissed an appeal from a decision of Master Harrison dismissing proceedings number 20360/01 in which the claimants sued the opponents. There are two quite separate categories of events the subject of that action.
3 In the first category there are a variety of claims made, all apparently having arisen ultimately from some events in 1990 when the third and fourth opponents, who were then the solicitors acting for the claimants are said to have acted wrongfully in relation to some District Court proceedings with the consequence that the claimants suffered harm.
4 The claimants sued these and other opponents in proceedings number 20806/96. There were difficulties with the form of the statement of claim and it was amended on various occasions. The last version of it was struck out by order of Master Malpass. Graham AJ dismissed an appeal from that decision and the claimants purported to appeal from that decision, without having first obtained leave.
5 The respondents to that appeal objected and the Court of Appeal then refused leave to appeal from the decision of Graham AJ and ordered that the claimants not file any further documents in that case without the leave of a judge.
6 During the course of those proceedings, various costs orders were made against the claimants. Proceedings were taken to enforce those orders and ultimately the Federal Court made a sequestration order. An application to review that order was unsuccessful, and an order was made for examination of the claimant. He did not appear to answer that summons and a warrant for his arrest was issued and later executed.
7 In proceedings 20360/01 the claimants brought various claims asserting wrongdoing of various kinds on the part of various opponents concerning either the events that had been the subject of proceedings 20806/96 or in the conduct of that litigation or in the conduct of the litigation in the Federal Court. Each of these allegations appears to assert or to assume that the earlier decisions of the Supreme Court or of the Federal Court were obtained wrongfully and could be ignored. That is, what the claimants wished to do was to re-litigate the questions previously decided without having successfully appealed from those decisions or without having successfully moved to set them aside.
8 Master Harrison held that to this extent the proceedings were an abuse of process, and this is plainly correct. The claimants contended that McClellan J should have investigated the facts for himself. That was not his function, which was to hear the appeal from the Master upon the evidence adduced before the Master, together with such further evidence, if any, as the parties might properly have put before him.
9 The claimants raised one further point in relation to what I call the first category of events, not so far dealt with. They contended that the warrant issued by the Federal Court was not executed within a reasonable time. The only authority cited in this context was The Queen v Applebee (1995) 79 A Crim R 554. That case concerned a search warrant, and quite different considerations applied. The contention now advanced is difficult to reconcile with the provisions of the Bankruptcy Act
10 In these circumstances, I propose that leave to appeal be refused so far as concerns claims arising out of the first category of events.
11 The second category of events have quite a different factual origin. The tenth and eleventh opponents were lessors and the claimants were lessees of premises at Greenacre. The lessors brought proceedings against the claimants in the Residential Tribunal asserting that the premises were residential premises. The claimants did not appear before the Tribunal and on the evidence placed before it the Tribunal found that the premises were residential premises. It made orders terminating the tenancy and for the payment of money. The claimants did not surrender possession of the premises and a warrant was issued for enforcement of the order made by the Tribunal. That warrant was, it is said, executed by force. The claimants now say that in fact the premises were not residential premises.
12 Up to a point, what I have said about the claims arising out of the first category of events is equally applicable to the claims arising out of the second category of events, but there is one significant difference. The Residential Tribunal is an inferior court with a limited jurisdiction. If in fact the premises were not residential premises, then the Tribunal arguably lacked jurisdiction and its orders were arguably nullities with the consequence that the enforcement of those orders was arguably a trespass.
13 The opponents submitted, amongst other things, that an issue estoppel arose from the decision of the Tribunal. However it does not seem to me to necessarily follow that this is so, because the Tribunal might in fact have lacked jurisdiction. The point now taken only arose with any real clarity yesterday and it has not been explored, as one would expect it would be, on the hearing of an appeal.
14 There seems to me to be sufficient doubt about the matter to justify the granting of leave to appeal, that leave being strictly limited to questions which follow from the supposed nullity of the orders of the Tribunal.
15 Generally speaking, I propose that there be leave to appeal granted, limited in the manner that I have said.
16 HODGSON JA: I agree with Brownie AJ. In my opinion the proceedings are plainly an abuse of process insofar as they seek to challenge decisions of the Supreme Court and the Federal Court, otherwise than by way of appeal from those decisions. Furthermore, since both claimants are bankrupt, they do not have standing in respect of alleged property losses they claim to have suffered. However, one claim that they make is in respect of damages due to assault, and it is arguable that in respect of that matter they can bring such a claim, rather than their trustee in bankruptcy.
17 It follows from the judgments of Brownie AJ and myself that the claimants are not being given leave to appeal in respect of any allegation of conspiracy involving those opponents in relation to whom applications for leave are dismissed with costs. The only cause of action in respect of which the judgments indicate any possibility of success on appeal is a cause of action limited to a claim for damages based on assault consequent upon allegedly invalid Residential Tribunal orders against persons instrumental in obtaining or executing those orders.
18 The orders of the Court are as follows:
1. As against the 1st to 7th and 13th to 15th opponents, applications for leave to appeal dismissed with costs.
2. As against the 8th to 12th opponents, applications for leave to appeal in relation to a claim for damages based on an assault consequent upon allegedly invalid Residential Tribunal orders granted subject to compliance with Order 3, and otherwise dismissed.
3. Notice of appeal strictly limited to the matters in respect of which leave is granted to be filed and served within twenty-eight days.
4. If Order 3 is not complied with and such failure continues for a further fourteen days, then the application for leave to appeal as against the remaining opponents is dismissed with costs, otherwise the costs of such application to be costs in the appeal.
5. The remaining opponents have leave to apply at the hearing of the appeal for an order that any relief granted to the claimants be on condition that security for costs of any proceeding consequent on the appeal be provided by the claimants, on the basis of affidavit evidence filed and served at least two weeks before the hearing of the appeal.
6. Claimants to file and serve affidavit evidence giving particulars of their residential arrangements during the currency of the relevant lease and of any alleged lack of facilities for residential use of the subject premises and annexing a draft amended statement of claim limited to the claim referred to in Order 2, within fourteen days of the filing of the notice of appeal.
7. Any evidence in response from the remaining opponents to be filed and served within fourteen days.
I note the application of Ms Rees in respect of the solicitor opponents in relation to an order for indemnity costs, but the order will remain as it is.8. Further appeal books dispensed with.