and Jo-Anne Finch v Arnold Thomas and Becker Pty Ltd
[2016] VSCA 2
•3 February 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2015 0034 | |
| JO-ANNE FINCH | Applicant |
| v | |
| ARNOLD THOMAS & BECKER PTY LTD | Respondent |
---
JUDGE: | BEACH JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | On the papers | |
DATE OF JUDGMENT: | 3 February 2016 | |
MEDIUM NEUTRAL CITATION: | [2016] VSCA 2 | |
---
PRACTICE AND PROCEDURE – Directions – Application to supplement appeal materials – Application to vacate hearing date – Supreme Court (General Civil Procedure) Rules 2015, rr 64.15(1), 64.15(5)(b), 64.27(3) and 64.40.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearances | |
| For the Respondent |
BEACH JA:
The respondent brought proceedings against its former client, the applicant, for the recovery of legal fees. The applicant counterclaimed alleging that she had suffered losses as a result of the conduct of the respondent. Amongst other allegations, the applicant claimed that the respondent had breached duties it owed to her. After a 16-day trial in the County Court, the respondent’s claim was dismissed and the applicant was largely unsuccessful on her counterclaim. The applicant has sought leave to appeal in relation to the orders made on her counterclaim.
The applicant’s application for leave to appeal and (if leave is granted) the appeal is currently fixed for hearing on 3 March 2016. The background and history of the dispute between the parties and the present application is set out in the decisions of this Court in Finch v Arnold Thomas & Becker Pty Ltd[1] and Finch v Arnold Thomas & Becker Pty Ltd.[2] Further detail can be found in the various judgments, to which the applicant was a party, referred to in the two decisions just mentioned.
[1][2015] VSCA 86.
[2][2015] VSCA 246.
While the applicant has been represented by legal practitioners from time to time, she was unrepresented at trial and is presently unrepresented. The applicant had legal representation at the time she filed her application for leave to appeal and written case in the present proceeding. In September 2015, the solicitor who prepared the application for leave to appeal and the applicant’s written case was given leave to file and serve a notice of ceasing to act. Between September 2015 and the present, there have been a large number of communications (some of which have been lengthy) between the applicant and Registry lawyers. Those communications demonstrate that the management of the present proceeding has proved challenging for all concerned.
It is not necessary to set out all of the detail of all of the communications between the Registry lawyers and the applicant. It is sufficient to note that those communications have culminated in an application (filed 18 January 2016) by the applicant for the following orders:
1.The hearing set down on 3 March 2016 is vacated until such time as the orders sought in paragraphs 2 and 3 are attended to, and finalised.
2.The County Court of Victoria are ordered to attend to the following as a matter of priority in relation to proceedings number: CI-13-01273:
(a) produce the following rulings made during the trial:
(i) 14 May 2015;
(ii) 18 May 2015;
(iii) 19 May 2015;
(iv) 28 May 2015; and
(b) authorise the video footage of the proceedings to be released.
3.The Applicant is permitted to prepare and file their (scil, her) own Court Book as a supplementary in these proceedings in order to put before the Court evidence that they need to be able to rely upon to make out their case, and evidence that is mentioned in their current Written Case; or in the alternative
4.The Applicant amend the Respondent’s Court Book to introduce the missing evidence/material.
5.The Applicant is granted leave to file an amended Written Case after receiving the abovementioned rulings, that were not produced at the time that they were made, nor since, despite the Applicant’s repeated requests.
6.The Respondents pay costs of this application.
7.Any other order the Court deems fit.
In support of her application, the applicant has filed an affidavit[3] and an outline of submissions.[4] Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the rules’), the applicant’s application was referred to a single judge of appeal to be considered and dealt with under r 64.15. Pursuant to rr 64.15(5)(b), 64.27(3) and 64.40 of the rules, it was then determined, by this Court, that the applicant’s application should be heard by a single judge of appeal without an oral hearing. Thus the applicant’s application now falls for me to determine.
[3]Sworn 19 January 2016.
[4]Dated 18 January 2016.
The gravamen of the applicant’s application appears to be that the application/appeal books (settled by the Registrar) are missing relevant documents. However, apart from generalised assertions that the Court of Appeal should have all relevant material before it, I am unable to discern with any precision to what (if any) issues in dispute in this Court the various documents, asserted by the applicant to be missing, are said to relate.
That said, the applicant is unrepresented and I am prepared to give her some leeway in the presentation of her case. In my view, the applicant should be permitted to file and serve a supplementary application/appeal book containing any documents not already contained in the current application/appeal books (‘the supplementary book’). The supplementary book must be paginated, must contain an index and must not contain any document already in the current application/appeal books. Further, the applicant must file and serve a document identifying (with page and line numbers from the supplementary book) the passages she relies upon in each document in the supplementary book, and by reference to the ground or grounds of appeal to which that document is said, by the applicant, to relate.
In being prepared to make these orders, I should say that they will be made without prejudice to the respondent’s right to take any legitimate exception it might take to the receipt of any document in the supplementary book by the Court hearing the application for leave to appeal/appeal. The purpose of the orders foreshadowed above is to give the Court and respondent notice, before the hearing, of any relevant and admissible document upon which the applicant may seek to rely at hearing. It will then be for the Court hearing the application for leave to appeal/appeal to determine whether any disputed document in the supplementary book should be considered by that Court.
I turn now to the application that the County Court produce rulings made ‘during the trial on 14, 18, 19 and 28 May 2015’. The first point to be made is that rulings were made in the County Court on 18 and 19 March 2015, and then later on 14 and 28 May 2015.[5] The transcript does not disclose any ruling being made on either 18 or 19 May 2015. Further the rulings of 18 and 19 March 2015, and 14 May 2015, were made before the trial commenced.[6] That said, the Registry file contains copies of the rulings made on these four days[7] and I see no reason why copies should not be provided to the parties should they so desire them.
[5]Details of the rulings made on 18 and 19 March 2015 can be found in this Court’s judgment of Finch v Arnold Thomas & Becker Pty Ltd [2015] VSCA 86. The ruling made on 14 May 2015 was a ruling rejecting the applicant’s application to adjourn the trial that was due to start on 18 May 2015 (the order made refusing the adjournment application is not the subject of any application for leave to appeal in the present proceeding). The ruling made on 28 May 2015 was made in respect of an issue said to be relevant to the respondent’s claim against the applicant (which claim was dismissed by the judge and is not the subject of any application for leave to appeal to this Court).
[6]The trial commenced on 18 May 2015, the trial judge having rejected an application made on 14 May 2015 (in the 14 May 2015 ruling) to adjourn the trial that was then fixed to commence on 18 May 2015.
[7]Although the ruling of 28 May 2015 (at pages 1324 – 1326 of the trial transcript) contains a gap where the tape appears to have ended.
The applicant’s material does not disclose any basis upon which this Court might make any order directed to the County Court. There being copies of the rulings made in the County Court available to the applicant, and there being no basis for any order directed to that Court, the relief sought in paragraph 2(a) of the applicant’s application must be refused. I should say for the sake of completeness that, in any event, I am unable to discern from the applicant’s material that any of the rulings she now seeks have any relevance to her current proposed grounds of appeal. No doubt, this is why the applicant seeks an order that she be permitted to file an amended written case once she has received the rulings she seeks. All that I can say is that, on the material as it is before me, I can see no basis for permitting the applicant to take this course. That said, it may be that during the hearing of the application for leave to appeal/appeal, the applicant might persuade the Court to take some different approach from the approach I have taken.
Similarly, on the material filed by the applicant, I see no basis for making any order concerning the production of any video footage of the trial. The parties and the Court hearing the application for leave to appeal/appeal will have available to them a full transcript of the trial. There is nothing to suggest at this stage that more will be required. That is, of course, not to fetter in any way the discretion of the Court that hears this matter from calling for any audio-visual recording of the trial that that Court might find of assistance.[8]
[8]That said, if there is a video of the trial that shows what was said by the trial judge during the portion of the 28 May 2015 ruling that is missing as disclosed at line 22 of page 1325 of the trial transcript then I see no reason why (subject to any cost considerations) the applicant should not have access to that portion of the video so as to satisfy herself that nothing said during that ruling relates to the complaints she makes concerning the orders made on her counterclaim: see notes 5 and 7 above.
I turn now to the applicant’s application to vacate the hearing date on 3 March 2016. The dispute between the applicant and the respondent has a long and chequered history. That said, if there was some reasonable basis for adjourning the application for leave to appeal/appeal, then one could not permit the history of the matter to override the interests of justice.[9] The short answer to the application to vacate the hearing date is that, on the present material, there is no basis for that to occur. The application for an adjournment must be refused.
[9]Cf Finch v Arnold Thomas & Becker [2015] VSCA 86 [4].
The orders of the Court will be as follows:
1.By 4:00 pm on 16 February 2016, the applicant is to file and serve a supplementary application/appeal book (‘the supplementary book’) containing all documents the applicant contends are missing from the current application/appeal books. The supplementary book shall be paginated and indexed, and must not contain any document in the current application/appeal books.
2.By 4:00 pm on 16 February 2016, the applicant will file a list (with page and line numbers) of the passages in the supplementary book that the applicant contends relate to the relevant appeal ground or appeal grounds (identifying the appeal ground or appeal grounds in each case).
3.The costs of and incidental to the applicant’s application filed 18 January 2016 are reserved to the court hearing the application for leave to appeal.
4.The applicant’s application filed 18 January 2016 is otherwise dismissed.
- - -
0
2
0