Apidopoulos v Sheriff of Victoria
[2000] VSCA 70
•28 April 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.4420 of 2000
| ANGELA APIDOPOULOS |
| Applicant |
| v |
| THE SHERIFF OF VICTORIA |
| Respondent |
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JUDGE: | CHERNOV, J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 April, 2000 | |
DATE OF JUDGMENT: | 28 April, 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 70 | |
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Practice and procedure - Failure to deliver note of proposed contents of appeal book - Appeal taken to be abandoned - Whether time should be extended for delivery - Consideration of prospects of success of appeal - Appeal so devoid of merit that extension of time would be futile - Application refused.
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | In Person | |
| For the Respondent | Ms M. Lodge | Victorian Government Solicitors |
CHERNOV, J. A.:
This is an application by summons for an order to extend the time for the delivery of a note of proposed contents of the Appeal Book and an order that the appeal not be taken to be abandoned.
The order in respect of which the appeal is sought to be brought was made by a County Court judge on 9 February 2000. Under Rule 64.03 the applicant had 14 days within which to serve the notice of appeal, namely, by 23 February 2000. The applicant complied with that rule, having served the respondent with a copy of the notice of appeal on 23 February 2000.
Under Rule 64.08(1) the applicant was required to deliver to the Registrar and to the respondent a note of proposed contents of the Appeal Book within seven days of the expiration of the time fixed by Rule 64.03, that is to say by 1 March 2000. She failed to do so, attempting to deliver the note to the Registrar on 7 March 2000. Because the applicant was out of time in delivering the note of the proposed contents the Court of Appeal Registry refused to accept the document.
Accordingly, by operation of Rule 64.16(1) the appeal is taken to have been abandoned. Rule 64.20, however, enables the Court to extend the time fixed by the rules and Rule 64.16(2) provides that this Court may order that the appeal not be taken to be abandoned.
In support of her application, the applicant has filed an affidavit sworn by her on 7 April 2000 in which she sets out the circumstances surrounding the failure to deliver the note within the time prescribed by the rules. According to the applicant, she had with her a note of proposed contents on 28 February 2000 when she attended the Court of Appeal Registry to file the notice of appeal. She produced the note to a member of the registry staff who refused to accept either the notice of appeal or the note because no fees had at that stage been paid by the applicant in respect of the proposed appeal. It appears that later that day the applicant obtained a waiver of court fees from the Prothonotary's office and filed the notice of appeal (but not the note of proposed contents) at the Prothonotary's office.
The applicant says that when she attended at the Court of Appeal Registry the following day to file the list of parties served with a notice of appeal the registry staff did not ask her for the note of proposed contents. She says that she did not think it was urgent for her to file the note as there was provision under the rules for an extension of time within which to do so.
In those circumstances she seeks the orders to which I have referred.
The application is opposed by the respondent, essentially on the ground that the appeal against the order of the learned judge is so devoid of merit that it would be futile to make the orders sought.
It is necessary to refer briefly to the background of the dispute between the parties which has given rise to the appeal which is now abandoned by reason of the operation of the rules.
It seems that on 26 February 1981 a plumber, to whom the applicant owed a relatively small sum, registered a judgment in the Supreme Court against the applicant, and, as a result, on 30 August 1984 the respondent sold the applicant's land located at Lalor by auction for the purposes of satisfying the judgment debt.
Over ten years later, on 11 January 1995 the applicant filed a generally endorsed writ in the County Court against the respondent. In that proceeding the applicant contended that she had been the owner of the subject property and that she was wrongfully evicted from it by the respondent, who then proceeded wrongfully to sell the property. She claimed the return of the proceeds realized by the sale together with damages and interest.
By a summons filed on 26 May 1995, the respondent sought orders, inter alia, dismissing the proceeding as an abuse of process of the Court and as being frivolous and vexatious, and on 5 June 1995 the applicant's proceeding was dismissed by Master Patkin.
On 26 July 1995 the applicant sought leave to appeal from the order of Master Patkin. On 18 August 1995 Beach, J. refused the application. The plaintiff did not appeal from the decision of Beach, J., but on 19 April 1996 she filed a summons in the County Court which alleged the same matters and which sought the same remedies that were the subject of the 1995 proceeding which had been dismissed by Master Patkin on 5 June 1995.
On 8 May 1996, His Honour Judge Meagher dismissed the applicant's summons and ordered her to pay the respondent's costs. Undeterred, on 14 May 1996 the applicant filed a notice of appeal against the decision of his Honour.
By summons filed on 15 April 1997, the respondent sought an order dismissing the appeal as an abuse of process of the Court and as being frivolous or vexatious.
On 17 May 1997, this Court, constituted by Brooking and Hayne, JJ.A., dismissed the applicant's appeal and on 13 February 1998, the High Court, constituted by Gaudron and Gummow, JJ., refused the applicant leave to appeal to the High Court.
The proceeding which is the subject of the proposed appeal was commenced by writ filed in the County Court on 20 July 1999, in which the applicant makes substantially the same claims that she made in the 1995 writ and the 1996 summons that was heard by Judge Meagher. Not surprisingly, the respondent filed a summons on 27 January 2000 seeking, inter alia, an order pursuant to Rule 23.01 dismissing the proceeding as an abuse of process of the Court and as being frivolous and vexatious.
On 9 February 2000 Judge F.B. Lewis dismissed the proceeding as being an abuse of process and it is against that order that the applicant has filed her notice of appeal. I note that the notice of appeal does not seek to attack the decision or the reasoning of his Honour but seeks to re-argue the matters that were dealt with in the 1995 and 1996 proceedings.
In the context of this very unfortunate case the applicant appears to be no stranger to litigation or to the rules which fix time limits for the service and filing of relevant Court documents. It seems from the fact that the applicant had with her the note of proposed contents of the Appeal Book when she attended the registry on 28 February 2000, that she may well have been aware of the time limits that were fixed for the delivery of the note. Be that as it may, it is apparent that the delay in delivering the note of proposed contents was not an undue delay and I accept the applicant's explanation as to her failure to deliver the note in time. Were delay the only consideration it is unlikely that this application would be refused.
Although in relation to an application such as this "there should not be undue attention paid to the prospect of an appeal's success" (Shane Francis Flannery & Anor. v. Goulburn Murray Water Authority & Ors.[1]), it may be relevant to consider the prospects of success if it appears that the appeal is so devoid of merit that it would be futile to extend the time (Jackamarra v. Krakouer[2]).
[1]unreported, Court of Appeal, 27 November 1998, per Tadgell, J.A.
[2](1998) 153 A.L.R. 276
In my view, the claims made by the applicant in the current proceeding are essentially the same as those that were made by her in the 1995 and 1996 proceedings. Each claim was dismissed or struck out as being an abuse of process or on the ground it was frivolous and vexatious.
The applicant seeks in the present proceeding to re-litigate the claims that have been so disposed of previously. In my view, his Honour was right in determining that the proceeding before him was an abuse of process, and it is my opinion that the applicant's appeal against that decision is so devoid of merit as to make it futile to extend the time for the delivery of the note of proposed contents or to make the order that the appeal not be taken to be abandoned. It would be futile because the appeal, were it to be reinstated, would have no prospect of success. It is “absolutely hopeless” (see Dey v. Victorian Railways Commissioners[3] where Dixon, J. refers to Bayne v. Riggall[4]) or, to express it differently, “manifestly groundless” (see General Steel Industries Inc. v. Commissioner for Railways[5]).
[3](1949) 78 C.L.R. 62 at 91
[4](1908) 6 C.L.R. 382 per Barton, J.
[5](N.S.W.) (1964) 112 C.L.R. 125 at 129 per Barwick, C.J.
I mention, for completeness, that the applicant argued that in this proceeding she seeks to raise a new issue, namely, that she did not receive a fair hearing in the earlier proceedings because her lawyer failed to mention to Master Patkin that she had other assets, such as a car or furniture, that could have been seized by the respondent in relation to the relatively small debt that was due by her, and that in the circumstances it was wrongful of the respondent to have seized and sold her land. As I understand it, the applicant was only represented by a lawyer before Master Patkin and on one other occasion. At all the other hearings the applicant appeared in person. Notwithstanding this, she made no mention of this point on those occasions. Thus the applicant had, in effect, a number of opportunities to put this matter before the Court, but she has not done so. In my view it is now too late to seek to raise this matter. In any event, and probably more relevantly, even if it is established that her lawyer should have argued that the respondent could have seized other assets, the failure to do so, by itself, does not, in my view, mean that the applicant did not receive a fair hearing from the Courts. There is no suggestion that the Courts failed to accord the applicant a proper hearing whatever her complaint may be against her former lawyer.
In the circumstances, and notwithstanding that I accept that the applicant feels that the respondent had acted wrongfully in taking and selling her property to which she devoted a considerable part of her life, I propose to dismiss the applicant's summons.
The order of the Court will be that the applicant's summons dated 7 April 2000 be dismissed.
(Discussion ensued re costs.)
In the circumstances I note that Ms Lodge's instructions are that the other cost orders which have been made against the applicant have not been executed. I gather this application for costs is as much a formality as anything else. I think the usual rule ought to apply and that costs ought to follow the event. Consequently, I will add to the order that I pronounced earlier that the applicant pay the respondent's costs of this application.
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