Andrei Vatarescu v Commonwealth of Australia and the Australian Capital Territory
[2010] ACTCA 7
•6 April 2010
ANDREI VATARESCU v COMMONWEALTH OF AUSTRALIA and THE AUSTRALIAN CAPITAL TERRITORY [2010] ACTCA 7 (6 April 2010)
PRACTICE AND PROCEDURE – self-represented litigant – responsibility of self-represented litigant to familiarise himself with basic procedural concepts – incorrect assumptions about procedure not a basis for avoiding costs.
PRACTICE AND PROCEDURE – failure of self-represented respondent to seek an adjournment following late delivery of documents by represented applicants – late delivery of documents not a basis for respondent to avoid costs of successful applicants.
PRACTICE AND PROCEDURE – application for leave to appeal from order dismissing appeal against costs order – whether leave required – leave to appeal required for appeals against interlocutory orders – whether costs order in interlocutory proceeding is interlocutory order – whether order dismissing appeal against costs order is interlocutory order.
Supreme Court Act 1933 (ACT), ss 9, 37, 37E, 37J
Federal Court Rules 1979 (Cth), O 62, r 3(3)
Court Procedures Rules 2006 (ACT), rr 6250, Part 2.7, 502, 505, 507, 512, 1303, 425, 426, 651, 406(2)(d)
Australian Dairy Corporation v Murray Goulburn Co-op Co Ltd [1990] VR 355
Bienstein v Bienstein (2003) 195 ALR 225
Carr v Finance Corporation of Australia Ltd [No. 1] (1981) 147 CLR 246
George Stack v Brisbane City Council (1996) 71 FCR 523
Hall v Nominal Defendant (1966) 117 CLR 423
House v The King (1936) 55 CLR 499
Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 23 of 2008
No. SC 428 of 2007
Judge: Penfold J
Court of Appeal of the Australian Capital Territory
Date: 6 April 2010
IN THE SUPREME COURT OF THE ) No. ACTCA 23 of 2008
) No. SC 428 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ANDREI VATARESCU
Appellant
AND:COMMONWEALTH OF AUSTRALIA
First Respondent
AND:THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
ORDER
Judge: Penfold J
Date: 6 April 2010
Place: Canberra
THE COURT ORDERS THAT:
Leave to appeal from the decision of Gray J made on 19 September 2008 is refused.
IN THE SUPREME COURT OF THE ) No. ACTCA 23 of 2008
) No. SC 428 of 2007
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:ANDREI VATARESCU
Appellant
AND:COMMONWEALTH OF AUSTRALIA
First Respondent
AND:THE AUSTRALIAN CAPITAL TERRITORY
Second Respondent
Judge: Penfold J
Date: 6 April 2010
Place: Canberra
Background
Dr Andrei Vatarescu, who represented himself in these proceedings, instituted proceedings on 30 August 2007 against defendants now identified as the Commonwealth of Australia and the Australian Capital Territory (the Territory). The claim was for damages for malicious prosecution, wrongful arrest and false imprisonment. There were also claims for “malicious bail conditions of daily reporting to the ACT police” and “wrongful bail conditions of reporting to the ACT police”, which have since been abandoned.
By application dated 16 May 2008, the first defendant (the Commonwealth) applied for summary judgment, with an alternative application for the statement of claim to be struck out. The second defendant (the Territory) sought only the striking out of the statement of claim.
At the hearing before the Master on 6 June 2008, the first defendant withdrew its application for summary judgment. On 20 June 2008, the Master made an order striking out Dr Vatarescu’s statement of claim, and ordered Dr Vatarescu to pay the defendant’s costs of the application (except the costs of the withdrawn application for summary judgment).
Dr Vatarescu did not appeal against the decision to strike out the statement of claim, but appealed against the costs order. The appeal was treated as relating to an interlocutory decision by the Master (being the decision to strike out the statement of claim) and was, in accordance with s 9 of the Supreme Court Act 1933 (ACT), heard by a single judge, Gray J, on 19 September 2008.
At the hearing before Gray J, Dr Vatarescu argued that the costs order made by the Master was made “on the wrong assumptions”, or on a “manifest misapprehension of fact”.
Gray J said that he was not satisfied that the Master was:
… under any misapprehension whatsoever about the nature of the matters before him and the matters that he should take into account in determining the order that he made for costs against the plaintiff on the defendants’ successful application to strike out the statement of claim.
He dismissed the appeal and ordered Dr Vatarescu to pay the defendants’ costs of the appeal.
Dr Vatarescu now seeks leave to appeal to the Court of Appeal from the decision of Gray J.
Are there any grounds for granting leave to appeal?
At the hearing of the application for leave to appeal, Dr Vatarescu was repeatedly reminded that he was required to identify grounds on which leave to appeal should be granted.
In Australian Dairy Corporation v Murray Goulburn Co-op Co Ltd [1990] VR 355, the Supreme Court of Victoria (Appeal Division) agreed on the test for the granting of leave to appeal from an interlocutory decision of a Judge, which was set out by Marks J at 380 (Fullagar and McGarvie JJ agreeing) as follows:
Leave to appeal against an interlocutory order will not be granted unless an applicant shows that the decision of the learned judge at first instance was wrong or attended with sufficient doubt to warrant its being considered on appeal and that a substantial injustice would be done by allowing such a decision to stand ...
Dr Vatarescu’s submissions were confused and confusing, but most of them amounted to claims that the Master’s decision to strike out his statement of claim either was simply wrong, or was unnecessary and should therefore not have been sought. Despite this, he repeatedly emphasised that he had no intention of appealing against that decision, because that, he said, would be a waste of time. At one point, while maintaining that he did not wish to appeal the strike-out decision, Dr Vatarescu sought to re-argue the question whether there was anything wrong with the original pleadings; I refused to hear that argument because it was clearly a challenge to the Master’s decision to strike out the pleadings rather than a challenge to the costs decision.
Because he was unwilling to appeal against the decision he believed was actually wrong (that is, the decision by the Master to strike out his statement of claim), Dr Vatarescu found himself in a difficult position, although one entirely of his own making. That is, his appeal was against the upholding of a costs order that simply reflected the normal approach that the successful party would have its costs from the unsuccessful party. To raise a sufficient doubt about that order, he needed to establish that the costs decision was wrong or attended with sufficient doubt to warrant appellate review. In the circumstances, he needed to show that the law of costs should have been applied so that, although the applicants had been successful in their application, he should not have to pay their costs of that application.
If Dr Vatarescu had been able to satisfy one of these tests, he would then have had to show that a substantial injustice would be done by allowing the decision to stand. If Dr Vatarescu had got over the first hurdle (by showing that the decision was wrong or doubtful), he might well have been able to get over the second one—it would seem to be a substantial injustice for an individual litigant to be obliged to pay the costs of two publicly-funded bodies if the costs decision was in fact wrong.
Three matters emerged from Dr Vatarescu’s submissions that he might have intended as arguments about why he should not have been required to pay costs even though he was unsuccessful at the hearing of the application to strike out his statement of claim. Those matters were:
(a) the significance of the first defendant’s application for summary judgment;
(b) whether the applications needed to come before the Master at all; and
(c) the late delivery of documents by the applicants before the Master.
Application for summary judgment
The first matter related to Dr Vatarescu’s significant misunderstanding of the first defendant’s application for summary judgment.
In February or March 2008, counsel for the first defendant told the Registrar that an application for summary judgment was being prepared. The formal application for summary judgment said:
the Court will hear an application ... to make the following orders:
(1) that there be judgment for the first defendant against the plaintiff pursuant to rule 1147 of the Court Procedures Rules 2006.
As mentioned, that application was withdrawn when the hearing began before the Master on 6 June 2008.
It seems that Dr Vatarescu interpreted the application for summary judgment as, in effect, an application for a summary hearing of the substantive matter. This interpretation was apparently confirmed in his mind by the affidavit and attached documents filed by the first defendant in connection with the application. Dr Vatarescu seems to have assumed that the purpose of that affidavit was to provide the material on which the substantive issues would then be determined by the Master. Dr Vatarescu noted that the application for summary judgment was expressed to be for judgment for the defendant against the plaintiff, and assumed, correctly, that the order sought would not necessarily be made by the court; from this he had apparently gone on to assume, incorrectly, that if the court refused to make that order it would make an order for judgment in his favour on the substantive issues between him and the defendant.
Because of this misunderstanding, when the matter came before the Master and the first defendant withdrew the summary judgment application, Dr Vatarescu considered that he had been “wrong-footed” by the first defendant. This was apparently because he had come to court prepared to argue the substantive matter rather than to argue whether his claim should be summarily dismissed or his statement of claim struck out.
It is easy enough to understand how a lay person could interpret a reference to summary judgment as implying a summary hearing; however, an educated layperson (as Dr Vatarescu undoubtedly is) who represents himself in a complex civil proceeding has, it seems to me, a responsibility to familiarise himself with at least the basic procedural concepts likely to arise in such proceedings, and cannot be allowed to rely, to the detriment of other parties, on unconfirmed incorrect assumptions about significant aspects of the proceedings.
Dr Vatarescu’s misunderstanding about the nature of the application does not entitle him to avoid paying the defendants’ costs of their successful applications.
Did the Master need to deal with the matter?
The next matter related to the nature of the defendants’ applications to strike out the statement of claim, and whether those applications needed to be brought before, or determined by, the Master at all. There were two parts to this misunderstanding.
Should the application have come before the Master?
First, Dr Vatarescu asserted that despite having applied to have the statement of claim struck out, what the defendants were really seeking in relation to the statement of claim was simply amendments of the kind that could properly have been raised before the Registrar exercising jurisdiction under r 6250(2)(d) of the Court Procedures Rules 2006 (CPRs) at a directions hearing. Dr Vatarescu’s proceeding has been identified as a category C matter, so the relevant powers conferred by r 6250(2)(d) on the Registrar are set out in rr 1303(4) and (5), as follows:
(4) At a category C directions hearing, the court may—
(a)give the directions that it considers appropriate for the proper conduct of the proceeding until a certificate of readiness is filed; or
(b)direct that a proceeding be given a listing hearing even though a certificate of readiness has not been filed; or
(c) make an order for costs for or against a party; or
(d) adjourn the directions hearing.
(5)Without limiting subrule (4), the court may consider, and give directions in relation to, the following matters at a category C directions hearing:
(a) requests for particulars;
(b) filing further pleadings;
(c) amending pleadings;
(d) challenges to any pleading;
(e) discovery, either in full or limited to particular issues;
(f) interrogatories;
(g) alternative dispute resolution, including mediation;
(h) statements of agreed facts;
(i) evidence by affidavit;
(j) service or exchange of expert reports.
Note The court has a general power to make directions about the conduct of a proceeding (see r 1401 (Directions generally)).
Certainly the powers of the Court (including the Registrar in specified cases) under this rule include the power to give directions in relation to amending pleadings.
However, I do not read it as empowering the Court generally to order amendments of a party’s pleadings on the application of another party. Part 2.7 of the CPRs deals with amendments. Rule 502 empowers a court, among other things, to direct a party to amend a pleading (r 502(1)) but such a direction may be made on the court’s own initiative or on application by that party (r 502(2)). The rule does not seem to permit a court, on the application of a party, to direct another party to amend a pleading. Rules 505, 507 and 512 provide only for a party to amend its own pleadings. Dr Vatarescu did not refer me to any rule that would permit a party to seek an order or direction that another party amend its pleadings.
There are two problems with Dr Vatarescu’s proposition that what the defendants really wanted could have been heard by the Registrar.
First, the defendants were entitled to seek the striking out of the statement of claim, and indeed were successful in this application. Whether or not that application could have been listed before the Registrar (the scope of rr 1303(5)(d) and 6250(2)(a) in this context was not argued, and is not clear to me), the fact is that the application, once made, was listed before the Master rather than the Registrar.
Secondly, the criteria for granting a strike-out application are very different from those for amending proceedings. A pleading may be struck out under r 425(1) if the pleading:
(a)discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or
(b)may tend to prejudice, embarrass or delay the fair trial of the proceeding; or
(c) is frivolous, scandalous, unnecessary or vexatious; or
(d) is otherwise an abuse of the process of the court.
If the defendants considered that there were grounds for striking out the pleading, it was not their responsibility to try instead to work out what amendments to the statement of claim would protect it from being struck out, and then to try to persuade Dr Vatarescu to accept those amendments. It was always Dr Vatarescu’s responsibility to produce a statement of claim that did not satisfy any of the strike-out criteria in r 425.
Therefore, Dr Vatarescu’s claim that the defendants had incurred unnecessary costs in raising the strike-out application before the Master rather than the Registrar seems to be misconceived.
Willingness of Dr Vatarescu to amend statement of claim
Secondly, Dr Vatarescu asserted that even before the hearing by the Master, he had been willing to amend the statement of claim, that he had come to the hearing with a revised statement of claim, and that therefore there had been no need for the Master to strike out the original statement of claim. However, Dr Vatarescu did not assert that he had previously sought to file an amended statement of claim, and it is not clear to me that his offer of an amended statement of claim made in the hearing obliged the Master to refrain from striking out the original statement of claim, especially since there was no basis for assuming that the amended statement of claim would have been an acceptable substitute to the defendants. That is, the production of an alternative proposed statement of claim by Dr Vatarescu at the hearing of the application (as distinct, for instance, from agreed amendments of the existing statement of claim that could have been made in court) does not seem necessarily to provide a barrier against striking out the existing statement of claim if there are grounds for doing so, or even to make the strike-out application unnecessary or inappropriate. Even if the outcome of the defendants’ applications had been consent orders for the amendment of Dr Vatarescu’s statement of claim rather than the striking-out of the claim, the applicants would on the face of it have been entitled to their costs.
Dr Vatarescu’s submission was that r 1303(5) required the defendants to challenge his pleadings before the Registrar (with a view to having them amended) rather than taking the matter straight to the Master, and that the defendants should therefore have taken the matter up before the Registrar rather than seeking to strike out the statement of claim, given that Dr Vatarescu, so he says, did not at any time object to amending his pleadings. Apart from any misunderstanding of the applicable rules, Dr Vatarescu did not seem able to grasp the difference between pleadings that the other party believes require some clarification and pleadings that, for one of the reasons set out in r 425(1), the other party should not be required to respond to.
The fact that the applications were heard by the Master instead of the Registrar, and were strike-out applications rather than, for instance, requests for particulars, does not provide any basis for Dr Vatarescu not to be liable for the defendants’ costs of their applications.
Late delivery of documents—failure to seek an adjournment before the Master
In the hearings before Gray J and before this Court, Dr Vatarescu pointed out that the second defendant had provided its final paperwork to him only one day in advance of the hearing before the Master. Both Gray J and I pointed out to Dr Vatarescu that he could on this basis have sought an adjournment of the hearing, which the Master would no doubt have granted. Dr Vatarescu explained that he had not done so because he did not wish the matter to be further delayed, since his objective was to go overseas and work professionally, but that this proceeding had kept him in Canberra for two years by then. Reminded that he could terminate the action at any time, Dr Vatarescu explained that terminating the action would:
allow the police and the Office of the Director of Public Prosecutions to perpetrate acts and deeds of cruelty and abuse on the members of this community.
As a member of this community, Dr Vatarescu said, he had an interest in having this fact exposed.
Whatever his motives for declining to seek an adjournment at the time, it does not seem to me that Dr Vatarescu can now, for the purposes of this application, rely on the late delivery of the documents in the original applications as a reason why he should not be liable for the costs of those applications.
Conclusions—leave to appeal
At no stage in the hearing did Dr Vatarescu make express submissions about the costs decision as such. Nor were such issues addressed in his written submissions provided after the hearing. Noting my findings on the arguments that might have been intended as submissions about the costs order, I can see no basis for finding that either the Master’s decision or Gray J’s decision was wrong or seriously in doubt.
I note also that the Master’s costs order excluded the costs of the withdrawn summary judgment claim. The fact that Dr Vatarescu “wrong-footed” himself by misunderstanding the summary judgment application and ignoring the strike-out applications does not seem to justify him avoiding a costs order relating to the successful strike-out applications. Even recognising the difficulties facing self-represented litigants, I have not been able to find any basis at all for giving leave to appeal against Gray J’s decision upholding the Master’s costs order.
Does Dr Vatarescu need leave to appeal?
There is, however, a more fundamental question in this case, namely whether Dr Vatarescu needs leave to appeal at all. Leave is required under s 37E(4) of the Supreme Court Act for appeals against interlocutory orders made by single Judges of the Court. Under s 37J(1)(a), an application for such leave may be heard by the Court of Appeal constituted by a single Judge.
Two questions arise about whether an appeal against Gray J’s decision can go to the Court of Appeal constituted by three Judges only with leave:
(a) Is a costs order in respect of the resolution of an interlocutory application itself an interlocutory order?
(b) If the costs order is an interlocutory order, is Gray J’s decision on appeal against that order also interlocutory?
The Supreme Court Act relies on the undefined concept of interlocutory orders for several aspects of the appeal structure it establishes. Relevant provisions are as follows:
(a) By s 9(2)(a), an appeal lies from an interlocutory order of the Master to the Court constituted by a single Judge.
(b) By ss 37E(2)(a)(ii) and (4), an appeal lies to the Court of Appeal against an interlocutory order of the Court constituted by a single Judge, but only with the leave of the Court of Appeal.
Is a costs order an interlocutory order?
There is no argument that the Master’s decision to strike out the statement of claim was an interlocutory decision, in the sense that it did not finally determine any of the rights of the parties. The Master’s decision on costs, however, was determinative of the issue of the payment of costs arising out of the interlocutory proceedings.
In Bienstein v Bienstein (2003) 195 ALR 225, the High Court (McHugh, Kirby and Callinan JJ) said at [25]:
The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success. [references omitted]
The reference to a “principal cause pending between them” reflects the comments of Windeyer J in Hall v Nominal Defendant (1966) 117 CLR 423 at 443:
In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.
Counsel for the Commonwealth referred me to Real Tech Systems Integration Pty Ltd v Meuross (1998) 82 FCR 150 (Real Tech), which involved an application for an order that certain costs ordered by the court be paid forthwith. Those costs related to a finding that a party to what Lehane J described (at 151) as “principal proceedings” was guilty of contempt of court by breaching undertakings given in connection with an application for interlocutory relief in the proceedings. The question was whether, for the purposes of O 62, r 3(3) of the Federal Court Rules 1979 (Cth) the costs order was “an order for costs in an interlocutory proceeding”. Lehane J held (at 151-2) that the contempt proceeding was a separate proceeding and not an interlocutory proceeding in the course of the principal proceeding. In relation to “the general rule that costs in interlocutory proceedings are not immediately taxed or paid”, Lehane J referred to the decision of Drummond J in George Stack v Brisbane City Council (1996) 71 FCR 523 (George Stack). In that case, Drummond J dealt with an argument, again in the context of the rules relating to the taxation of costs, that certain costs orders made in relation to interlocutory matters were final orders and should be able to be taxed without any further order. In rejecting the argument that costs orders were final orders even where they related to interlocutory decisions, Drummond J might seem to have provided some direction in the current case. However, in rejecting that argument, he noted at 534 that “decisions on whether judgments or orders are final or interlocutory, for the purposes of determining whether an appeal lies of right or only by leave … are of no assistance in the present context”; on this basis, decisions about taxation rules, including those in the Real Tech and George Stack cases, are not likely to be helpful in determining the availability of an appeal from a costs order.
There are arguments against treating a costs order as interlocutory in the context of appeal rights, in particular:
(a) that a costs order made in relation to an interlocutory decision is final as to the issue of who will pay those costs; and
(b) that a costs order, even one made in relation to an interlocutory matter, might involve an amount of money as significant as the amount the subject of the substantive action between the parties; this statement is not based on the impermissible approach of looking at the outcome of the particular order (see, for instance Carr v Finance Corporation of Australia Ltd [No. 1] (1981) 147 CLR 246, per Gibbs CJ at 248 and Mason J at 256) but reflects the fact that costs orders have a substantive effect of their own and are not only relevant to the procedures by which the principle proceedings are eventually resolved.
However, it seems to me that those considerations are outweighed by the arguments against treating a costs order of this kind as a final order. First, I take the references in Bienstein and Hall at [43] and [44] above to a “principal cause pending between [the parties]” as an attempt to describe the matter of substance that has led to the instigation of proceedings. In so doing, I recognise that this will not always be an easy test to apply. For a start, it is not unknown for the original proceedings initiated between parties to generate, over time, further proceedings of arguably more substance than the initial proceedings, such that identifying the “principal cause” between the parties may not always be straightforward. As well, this may be a particular difficulty where the prosecution of legal action takes on, for a litigant, a personal significance that may become increasingly distant from the substantive issues raised by the original proceedings.
Secondly, I have assumed, although without being aware of any particular authority to this effect, that there is a policy reason why an appeal from an interlocutory decision, unlike many appeals from substantive decisions, is not available as of right. I have further assumed that the policy aim is to encourage parties to resolve the substantive matters in issue between them rather than to delay or distract themselves or each other by repeated arguments about incidental matters. I note in this context the comments of Drummond J in George Stack at 534:
There is, I think, discernible in O 62, rr 3(3) and 7(1)(c) [of the Federal Court Rules 1979 (Cth)] a policy of discouraging the making of interlocutory applications. ... The fact that there is no automatic entitlement to immediate recovery of the costs of a successful interlocutory application can act as a brake upon the making of such applications. The general rule, however, is relaxed by O 62, r 7(1)(c) in favour of a respondent to a motion for interlocutory relief who defeats the motion: the party who ill-advisedly brought the failed motion is bound to pay the costs forthwith upon their being taxed, without any special order permitting that. That, too, can act as a brake upon unrestrained interlocutory litigation.
It would not give effect to policy of this kind if parties, while having limited scope for appealing decisions that are clearly interlocutory, retained unlimited scope to appeal costs decisions incidental to those interlocutory decisions, that is, decisions that are effectively at two removes from the substantive issues between the parties.
I have accordingly concluded that a costs order made in relation to an interlocutory decision is an interlocutory order, so that the appeal from the Master’s costs order was properly heard by a single Judge. The next question is whether an appeal lies as of right from that decision of the single Judge to the Court of Appeal.
Is a decision on appeal from an interlocutory order also an interlocutory order?
The question is whether an order of a single Judge made on an appeal against an interlocutory order of the Master is itself an interlocutory order of the single Judge. The expression “interlocutory order” does not seem particularly apt to describe an order made by a Judge disposing of an appeal (irrespective of the subject matter of the appeal). However, I consider that s 37E(4) is intended to require leave for an appeal from an order of a single Judge made on appeal from an interlocutory order made by the Master.
This is because an appeal from the Master to a single Judge is an appeal by way of rehearing (s 9(3) and (4)). That is, the Judge hearing the appeal relies on the evidence given in the earlier hearing, and any new evidence admitted, but may draw his or her own inferences from that evidence (although where the appeal relates to the exercise of a judicial discretion, there are limits on what the appeal court should do (House v The King (1936) 55 CLR 499 at 504 to 505)). As an appeal by way of rehearing, and despite the limits on the appeal court’s powers where the appeal relates to the exercise of a judicial discretion, it would make sense that the decision on appeal has the same character as the original decision—thus, if the original decision is an interlocutory order, the appeal court’s decision (whether to confirm the original order or make an alternative one) is also an interlocutory one.
I note that, under ss 9(2)(a) and 37E(4), there are two appeals from an interlocutory decision of the Master, one to a single Judge as of right and then one to the Court of Appeal, by leave, from the decision of the single Judge.
In the current circumstances of the Supreme Court, there must be a real question whether two levels of appeal are really necessary for an interlocutory order merely because it is made by the Master, especially given that non-interlocutory decisions of the Master are appellable as of right straight to the Court of Appeal. It may be that the distinction drawn in the Supreme Court Act between the Judges and the Master as to appeals in respect of interlocutory decisions is now outdated, and no longer justified in terms of policy or court efficiency. It might make sense to eliminate the appeal as of right from the Master to a single Judge in favour of a common rule for Judges and Masters to the effect that all appeals from interlocutory orders go straight to the Court of Appeal, but only by leave.
Further comments on the applicant’s submissions
A variety of other misunderstandings and confusions on Dr Vatarescu’s part emerged during the course of the hearing before me, or are recorded in the transcript of Gray J’s hearing of the original appeal. They are not directly relevant to the application for leave to appeal, and I do not propose to deal with them specifically, but I mention some of the issues concerned in the hope that Dr Vatarescu will seek further advice should any of these issues arise in any future proceedings pursued by him:
(a) The proper operation of r 426, which requires a court order, rather than a unilateral decision by a plaintiff, before a matter can proceed without pleadings.
(b) Procedures available for litigants to obtain access to documents held by other parties, in particular r 651 (Discovery to identify right to claim relief), and more generally the assumption underlying court procedures that all relevant information should be available to all parties before a hearing begins, and that information should not be withheld for tactical reasons (this comment does not imply that Dr Vatarescu withheld information for tactical reasons, but that he acted on the assumption that the defendants would do so).
(c) The distinction between facts and evidence as drawn in r 406(1)(b).
Written submissions
At the end of the hearing I invited written submissions from the parties. Dr Vatarescu lodged written submissions. Those written submissions largely repeated the various misconceived claims made during the hearing, but contained two claims that require a response.
These were his claims that the Master “demanded that the final formulation of the pleadings be submitted already in the first Statement of Claim”, and that the Master “expressed his displeasure at having ordinary members of the community seeking compensation on their own”.
I have read the transcript of the hearing before the Master as well as the Master’s written judgment. His Honour did in the hearing and his judgment suggest that Dr Vatarescu would benefit from being represented by a lawyer, but he said nothing whatsoever along the lines claimed by Dr Vatarescu. Dr Vatarescu would do well to remember that the claims of a litigant are rarely advanced by misrepresenting the views of judicial officers.
Conclusion
Dr Vatarescu’s application for leave to appeal to the Court of Appeal from Gray J’s decision is refused.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.
Associate:
Date: 6 April 2010
Counsel for the Appellant: Self-represented
Counsel for the First Respondent: Mr W Sharwood
Solicitor for the First Respondent: DLA Phillips Fox
Counsel for the Second Respondent: Mr R Bayliss
Solicitor for the Second Respondent: ACT Government Solicitor
Dates of hearing: 5 November, 3 December 2008
Date of submissions: 15 December 2008
Date of judgment: 6 April 2010
5
3