Barlow v Law Society of the Act
[2017] ACTCA 45
•1 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Barlow v Law Society of the ACT |
Citation: | [2017] ACTCA 45 |
Hearing Date: | 6 September 2017 |
Date of last submissions: | 28 September 2017 |
DecisionDate: | 1 November 2017 |
Before: | Mossop J |
Decision: | 1. The appeal is dismissed as incompetent. 2. The appellant is to pay the respondents’ costs of the appeal. |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Interlocutory orders – appeal to be brought only with leave of the Court of Appeal – appeal incompetent – appeal dismissed – appellant to pay the respondents’ costs of the appeal PROFESSIONS AND TRADES – LAWYERS – Practising certificate – appeal against Law Society’s refusal to issue and unrestricted practising certificate |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 39, 425, 425(3), 1147, 5052(1)(e), 5101, 5101(g), 5172, 5312, 5403(1)(f), 5405(1), 5405(1)(b), 5405(2), 5604(a) Magistrates Court Act 1930 (ACT), s 274 Supreme Court Act 1933 (ACT), ss 37E, 37E(4), 37J(1)(h) |
Cases Cited: | AB v State of New South Wales [2014] NSWCA 243 Apache Energy Ltd v Alcoa of Australia Ltd (No 2) [2013] WASCA 213 |
Parties: | Michaela Barlow (Appellant) Law Society of the Australian Capital Territory (First Respondent) Larry King (Second Respondent) Bill Redpath (Third Respondent) Chris Chenoweth (Fourth Respondent) David Harper (Fifth Respondent) Robert Reis (Sixth Respondent) Michael Phelps (Seventh Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr M Phelps (Respondents) |
| Solicitors Self-represented (Appellant) Phelps Reid (Respondents) | |
File Number: | ACTCA 25 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Penfold J Date of Decisions: 21 February 2017; 29 May 2017 Case Titles: Barlow v The Law Society of the ACT; Barlow v The Law Society of the ACT Citations: [2017] ACTSC 35; [2017] ACTSC 121 |
MOSSOP J:
Introduction
On 21 February 2017 and 29 May 2017 Penfold J made orders in relation to an appeal from the ACT Magistrates Court which had been filed by the appellant: see Barlow v Law Society of the ACT [2017] ACTSC 35; 317 FLR 297 (Barlow); Barlow v Law Society of the ACT (No 2) [2017] ACTSC 121 (Barlow (No 2)). The appellant has filed a notice of appeal challenging the orders of the Penfold J. The Law Society and six other individual respondents to the appeal have, by application in proceeding filed 22 August 2017, sought to have the notice of appeal “dismissed” on a variety of grounds.
Background
The background to the appeal to the ACT Supreme Court, which is now the subject of the present appeal, is comprehensively summarised by Penfold J in the table in her Honour’s reasons: see Barlow at [4]. At [5]-[7] her Honour summarised the course of the proceedings as follows:
5.In short, since the Law Society refused [Mrs Barlow] an unrestricted practising certificate in 2011, Mrs Barlow has proceeded as follows:
(a) she sought unsuccessfully in the Full Court of the Supreme Court to overturn the Law Society’s decision refusing her an unrestricted practising certificate, but has not sought to appeal the Full Court’s decision;
(b) when the Law Society took action to enforce the first costs order, she brought proceedings in the Magistrates Court seeking to block the enforcement of that costs order and raising a variety of new claims against the Law Society;
(c) after the Magistrates Court proceedings were summarily dismissed on the application of the Law Society, Mrs Barlow appealed to the Supreme Court against that decision, claiming jurisdictional error on the Magistrate’s part;
(d) after the bankruptcy notice was served on Mrs Barlow, she began proceedings in the Federal Circuit Court to have the bankruptcy notice set aside in reliance on the Supreme Court appeal, which she identified as involving a counter-claim exceeding the amount claimed in the bankruptcy notice.
(e) when this matter came on for hearing on 3 May 2016, Mrs Barlow made an oral application for the matter to be transferred to the Federal Circuit Court to be determined with the bankruptcy proceedings.
6.It seems to emerge from material filed by Mrs Barlow, and her oral submissions before me, that she wants the first costs order against her set aside, and that she considers this should be done because she should never have had to appeal to the Full Court, in turn because the Law Society should never have refused her an unrestricted practising certificate in 2004.
7.She also wishes to obtain, in general terms:
(a) some kind of judicial recognition that the refusal of the unrestricted practising certificate was an act of bad faith on the part of the Law Society and that the Law Society’s actions have caused her loss and damage; and
(b) monetary compensation from the Law Society for the alleged loss or damage.
Her Honour was dealing with an application by the Law Society to strike out or dismiss the Notice of Appeal because the appeal was incompetent or, alternatively, because it was an abuse of process, the sole ground in the Notice of Appeal was embarrassing and because it did not comply with the requirements in r 5101 of the Court Procedures Rules 2006 (ACT) to specify the grounds of appeal. In her Honour’s judgment, given on
29 February 2017, Penfold J also addressed an oral application made by the appellant to have the proceedings transferred to the Federal Circuit Court where the appellant had on foot an application to set aside a bankruptcy notice based on an earlier costs order in favour of the Law Society. The order that Penfold J made in relation to that oral application was that it be refused. Her Honour then permitted the parties to be further heard in relation to the orders necessary to give effect to her Honour’s conclusions set out in the judgment and in relation to costs.
The parties then filed written submissions. In her judgment given on 29 May 2017 her Honour concluded that permitting the appellant to pursue her appeal in the Supreme Court “would be to permit an abuse of the process of this Court” (at [41]) and as a consequence she struck out the Notice of the Appeal and the appeal. She ordered the appellant to pay the Law Society’s costs.
The Notice of Appeal to the Court of Appeal was filed on 26 June 2017. The appeal challenges all of the orders made by Penfold J on 21 February 2017 and 29 May 2017. The Notice of Appeal identifies 15 grounds, each of which are identified as “jurisdictional error”.
The nature of the proceedings at first instance and upon appeal
With the benefit of this background, it is necessary, in order to resolve the issues raised on the present application to describe the proceedings in the Magistrates Court and the Supreme Court in some more detail.
The proceedings in the Magistrates Court
The proceedings at first instance had been commenced in the Magistrates Court by originating application. The orders sought in the originating application and the grounds upon which those orders were sought were as follows:
1.An order of prohibition/injunction to stop any further proceedings in respect of the Bill of Costs which the First Defendant has served upon the Plaintiff.
2. A declaration under s261 of the Magistrates Court Act 1930 that:
2.1 s261(1)(a) the plaintiff is not indebted to the First Defendant at all
2.[sic] An order to show cause that the actions of the first six Defendants have not constituted:
2.1 Malfeasance in public office
2.2 Negligence
2.3 Breach of fiduciary duty
2.4 Breach of statutory duty
3. An order that the seven Defendants have caused loss and damage to the Plaintiff.
4. Any other orders that the Court considers appropriate.
Grounds of application
The application is made on the following grounds:
5.The Magistrates Court has jurisdiction to hear this matter under s257 of the Magistrates Court Act 1930 as the Plaintiff submits to the rules of the court in respect of monetary limits imposed by that section of the act.
6. The plaintiff alleges that in respect of SCA 76 of 2010, new evidence has arisen which appears to demonstrate that the Defendants have serially and separately acted in breach of fiduciary duty and/or in negligence, and/or in malfeasance of public office and/or in breach of statutory duty in their dealings with the Plaintiff, in respect not only to the granting of a practising certificate but also the subsequent litigation arising out of the Plaintiff’s need to appeal that decision.
7. The Plaintiff alleges that the First Defendant burdened the Plaintiff with unnecessary, costly and burdensome litigation which would have been avoided if the actions of the second, third, fourth, fifth and sixth Defendants had not been unlawful, and if the First Defendant had not persisted in defending those unlawful actions.
8. The Plaintiff alleges that the Bill of Costs which was served upon the Plaintiff by the First Defendant and its legal representative the seventh Defendant in April 2015, is indefensible and wrongly instituted. Further, the Plaintiff alleges that the Bill of Costs was prepared negligently by the Seventh Defendant, in contravention of, and not in compliance with, the Order of Refshauge J of 15 May 2013.
9. The Plaintiff alleges that Litigation should never have taken place and the litigation costs should never have been incurred and that enforcement of those costs and will cause the Plaintiff to be bankrupted. Such bankruptcy will prevent the Plaintiff from working as a legal practitioner in any circumstances.
10. The Plaintiff alleges that the Defendant, instead, is liable to the Plaintiff for the damage done to the Plaintiff as a result of its serial unlawful actions.
The strike out application in the Magistrates Court
By application in proceedings dated 4 September 2015, the Law Society and the other defendants applied to have the Originating Application struck out under r 425 of the Court Procedures Rules 2006 (ACT), have the proceedings dismissed or judgment entered for the defendants under r 425(3), or in the alternative, have summary judgment given for the defendants pursuant to r 1147 of the Court Procedures Rules.
His Honour identified that a preliminary question arose about whether the proceedings should have been commenced by way of an originating application but said “that is overtaken by the very nature of the application under consideration”: at [6].
His Honour recorded that there was some difficulty in determining what the plaintiff’s claims were. He noted that the plaintiff had sought an opportunity to amend her pleadings if they were found to be defective. His Honour recorded that in an attempt to give some structure to his analysis, he started with the documents purporting to particularise the plaintiff’s claim which were annexures to an affidavit filed in response to the strike-out application. From these two documents he attempted to identify the claims made by the plaintiff. As Penfold J subsequently noted (Barlow at [90]), in adopting this approach his Honour was, to the benefit of the plaintiff, going well beyond what he was required to do for the purposes of a strike-out application under r 425 of the Court Procedures Rules.
His Honour therefore started by having regard to a document annexed to an affidavit filed by Mrs Barlow which described itself as a statement of claim. At the end of that document there was a list of 14 orders that were sought by the plaintiff. While these were described as “declarations”, the substance of the order sought meant that they were, in many cases, not in fact appropriately subject of declarations and his Honour did not treat them as being so confined. His Honour also addressed a further three additional claims to which some reference was made in the affidavit material or submissions that were before him. Dealing with the matter in this way also meant that his Honour addressed the matters raised in the originating application.
His Honour concluded in relation to each of the items that the material before him did not disclose a reasonable cause of action. In determining what orders should be made under r 425, his Honour considered “whether any amended form of what the plaintiff claims could be properly brought under the heading based upon the evidence before me”. The conclusion that he reached was that in each case the answer was “no”. He therefore considered that it was appropriate that the Originating Application be struck out, the proceedings dismissed and that there be judgment for the defendants, and he so ordered.
A misconception underlying the defendants’ application in the Magistrates Court was that r 425 was applicable to proceedings commenced by originating application. The terms of that rule permit the court to order “that a pleading or part of a pleading be struck out”. The term “pleading” is defined in the Dictionary to the Rules to include various identified documents but is stated to not include “an originating application”. As a consequence,
r 425 had no application. His Honour might have been able to proceed as he did if he had made an order that the matter proceed on pleadings and that the document entitled “Statement of Claim” be filed as the statement of claim in the proceedings: r 39 of the Court Procedures Rules. However his Honour did not take these steps so as to regularise the course that he was invited to embark upon.
No party has taken any point about the availability of r 425 at any stage of the proceedings or made any submissions on the point on the present application. The respondents’ submitted that, notwithstanding the terms of his Honour’s reasons, the judgment “was, essentially, one for summary judgment that involved a consideration of the merits of the case”. Having regard to the issue that arises in relation the competence of the appeal to the Court of Appeal, it is not necessary to determine whether the respondents’ submission is correct or say anything further about the reliance upon r 425.
The proceedings in the Supreme Court
A notice of appeal was filed on 4 January 2016. On 19 April 2016 the respondents’ filed an application in proceeding seeking an order pursuant to r 5172 of the Court Procedures Rules “striking out the notice of appeal”, or in the alternative, an “order striking out and summarily dismissing the notice of appeal”. Rule 5172 is a rule permitting a respondent to an appeal to apply for an order striking out the appeal as incompetent. Penfold J heard the application on 3 May 2016 and subsequently received written submissions. Her Honour delivered two sets of reasons, Barlow and Barlow (No 2).
In Barlow, Penfold J dealt first with an oral application made to transfer the proceedings to the Federal Circuit Court and made an order refusing that application. She then rejected the respondents’ contention that the appeal was incompetent because it fell outside the scope of s 274 of the Magistrates Court Act 1930 (ACT). Her Honour then addressed the application for an “order striking out and summarily dismissing the notice of appeal”.
Insofar as the respondents’ alleged that the notice of appeal failed to comply with
r 5101(g), which requires a notice of appeal to state “briefly, but specifically, the grounds relied upon in support of the appeal”, her Honour indicated that she would “hesitate to conclude that Mrs Barlow’s ground of appeal, which identifies recognisable (if unparticularised) grounds of appeal, does not comply with rule 5101”: Barlow at [66].
Her Honour next turned to the allegation that the grounds of appeal were “embarrassing and inadequately particularised”: Barlow at [67]. She recorded her opinion that that the appeal ground contained “a probably incoherent combination of assertions of jurisdictional error and error in dealing with relevant and irrelevant considerations, but it gives no content to any of the errors mentioned”: at [71]. She concluded: “As such, it does not add to the respondent’s understanding of what they need to address or respond to in the appeal.”
She then turned to consider whether it would be appropriate to strike out the Notice of Appeal but gave Mrs Barlow leave to file another notice clarifying her appeal ground. In that context she examined the written submissions and submissions in reply as well as three affidavits containing material in the nature of submissions that had been filed since the brief oral hearing. She reached the conclusion (at [85]) that:
I have not been able to identify anywhere in Mrs Barlow’s submissions, including those contained in affidavits, where she had identified any legal principle that has been erroneously applied by the Magistrate.
Next her Honour indicated (at [86]) that she had “reviewed the Magistrate’s decision with a view to identifying any obvious error that might have concerned Mrs Barlow despite her being [unable] to articulate its significance for her appeal”. She recorded (at [90]) that:
A careful reading of his Honours reasons suggests that, in an attempt to provide fairness to an unrepresented litigant, the Magistrate went well beyond the enquiries he would normally have been required to make in considering a strike-out application.
As a result her Honour reached the conclusion (at [91]) that:
None of Mrs Barlow’s criticisms of the Magistrate’s approach, and none of her other submissions, or the “evidence” she points to, gives me any reason to believe that appropriate grounds of appeal against the Magistrate’s decision could be prepared if Mrs Barlow were given leave to replead her notice of appeal.
Her Honour then went on to consider what was described by Mrs Barlow as “new evidence” concerning her fundamental complaint that the Full Court and the Law Society had misconstrued the legislation applicable to the granting of unrestricted practising certificates which misconstruction had been a basis of the 2004 refusal by the Law Society to grant her an unrestricted practising certificate. Her Honour examined what was described as “new evidence”, namely a 1971 Regulation and a 1986 Amendment Ordinance, and concluded (at [115]) that because the effect of those instruments relevantly ended in 1998: “I cannot see how that evidence would advance the argument about the legal position in 2004”.
Her Honour was therefore satisfied that no injustice would be done by “striking out
Mrs Barlow’s notice of appeal and somehow disposing of the appeal”: Barlow at [119].
Her Honour noted that there was no equivalent to r 425(3) relating to appeals in the Court Procedures Rules. Rule 425(3) permits, where a court has struck out the pleading in the proceeding is disclosing no reasonable cause of action, the court to make any other order it considers appropriate including staying or dismissing the proceeding or entering judgment. Her Honour referred to the decision in von Risefer v Permanent Trustee Co P/L & Ors [2005] QCA 109; 1 Qd R 681. In that case the notice of appeal was described as incoherent, without discernible merit of any kind, bound to fail, vexatious, and an abuse of process of the Court. The Court made an order striking out the notice of appeal and prohibiting the plaintiffs from commencing any further proceedings without leave of the Supreme Court. This was done pursuant to the inherent power of the Court to prevent the abuse of the processes of the Court. Her Honour considered that what emerged was that there is a clear power to strike out a notice of appeal but not necessarily a power to dispose of the appeal by dismissing it or entering judgment for the respondents. Her Honour resolved to seek brief further submissions on the appropriate orders that should be made. The orders that her Honour made were:
1.The application to transfer the proceedings to the Federal Circuit Court or the Federal
Court is refused.
2.The parties will be heard:
(a) about the appropriate orders to be made to give effect to the finding set out at [116]
to [119] below; and
(b)about the costs of this application.
She subsequently received further submissions, describing the submissions on behalf of the respondents’ as “not particularly helpful” (Barlow (No 2) at [7]) and the submissions made by Mrs Barlow as “entirely unhelpful” (at [9]). In Barlow (No 2) her Honour concluded that r 5052(1)(e) of the Court Procedures Rules, which permits the Supreme Court to make “any other order that it considers appropriate” in relation to an appeal, did not confer on the Court either an unlimited power to make orders that are not otherwise Supreme Court powers or, more relevantly, power to make an order dismissing an appeal without a hearing.
Having reviewed the submissions, the previous judgment, the consequences of permitting the appeal to be heard and Mrs Barlow’s personal circumstances, her Honour concluded (at [41]) that “permitting Mrs Barlow to pursue her current appeal in the Supreme Court would be to permit an abuse of process of this Court; accordingly, I shall strike out the notice of appeal and the appeal (if these are in fact distinct actions)”. She also noted the withdrawal of the respondents’ claim for indemnity costs in relation to the appeal and indicated that she would order those costs to be paid on a party/party basis.
The orders of the Court were:
(a)The notice of appeal dated 28 December 2015 is struck out.
(b)The appeal is struck out.
(c)The appellant (Mrs Barlow) is to pay the respondents costs of the strike-out application in the Supreme Court, on a party/party basis, as agreed or assessed.
Is the appeal incompetent?
The respondents’ contention is that the appeal is incompetent because it has been brought out of time or filed without a grant of leave to appeal. Whether an appeal is incompetent is a matter which may be determined by single judge: Supreme Court Act 1933 (ACT), s 37J(1)(h); Court Procedures Rules, r 5604(a).
If the orders of Penfold J were interlocutory then leave to appeal was required: Supreme Court Act, s 37E(4). Any application for leave was required to be made within “7 days after the day the interlocutory order is given, or not later than any further time allowed by the Court of Appeal or of the judge who gave further interlocutory order”: Court Procedures Rules, r 5312. If the orders were not interlocutory then they were final orders and an appeal was required to be lodged “not later than 28 days after the day the orders appealed from was made, or not later than any further time the Supreme Court allows on application filed in the court before the end of the 28-day period”: Court Procedures Rules, r 5405(1)(b). Notwithstanding the limitations in r 5405(1), the Court of Appeal may “at any time and for special reasons, give leave to file a notice of appeal”: Court Procedures Rules, r 5405(2).
The orders made by Penfold J are set out at [24] and [27] above. There has been no grant of leave to appeal in relation to any of these orders. The periods after the day the orders were made until the filing date of the present appeal were as follows:
(a)Orders of 21 February: 22 February 2017 – 26 June 2017 = 125 days;
(b)Orders of 29 May 2017: 30 May 2017 – 26 June 2017 = 28 days.
The test for determining whether an order is final or interlocutory is whether the order made finally determines the rights of the parties: Hall v Nominal Defendant (1966) 117 CLR 423 (‘Hall’) at 440, 443; Licul v Corney (1976) 180 CLR 213 (‘Licul’) at 225; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 (‘Bienstein’) at [25]. 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: Hall at 443. Regard is had to the legal rather than the practical effect of the orders: Hall at 440-1; Licul at 225; Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 at 248.
Insofar as the orders that were made on 21 February 2017 are concerned any appeal is clearly out of time. No application was made for an extension of time in response to the Law Society’s application. Therefore the appeal, insofar as it challenges either order, was clearly out of time. In any event, both orders were clearly procedural orders and thus interlocutory: Bienstein at [26], [28] and hence required leave under s 37E of the Supreme Court Act. No such leave has been granted. Therefore the appeal, insofar as it challenges the orders made on 21 February 2017 is clearly out of time and incompetent to that extent.
Insofar as the orders that were made on 29 May 2017 are concerned, the appeal was filed within “28 days after the day the order appealed from was made”. Therefore unless leave to appeal was required because the orders were interlocutory, the notice of appeal was lodged within time: see Court Procedures Rules, r 5405(1)(b). As a consequence, the question of competence depends upon whether the orders made on 29 May 2017 were interlocutory or final orders.
The basis for making orders 1 and 2 (striking out the notice of appeal and the appeal) was that the notice of appeal involved an abuse of the process of the Court. The order was clearly an interlocutory one. It did not finally determine any rights of the parties on a final basis. The only decision involving an appeal to which the Court was referred to was Copping v ANZ McCaughan Ltd (1995) 63 SASR 523, where it was held (at 530) that an order striking out a part of the notice of cross appeal was an interlocutory order. However the authorities in relation to proceedings at first instance make it clear that striking out a pleading on the ground that no reasonable cause of action is disclosed is an interlocutory decision: McColley v Commonwealth [2014] ACTCA 21 at [20]-[25]; Wickstead v Browne (1992) 30 NSWLR 1; Apache Energy Ltd v Alcoa of Australia Ltd (No 2) [2013] WASCA 213 at [106]. Similarly, an order staying a proceeding on the ground that it is frivolous or vexatious or an abuse of process of the Court is also interlocutory: Tampion v Anderson (1973) 3 ALR 414; 48 ALJR 11; Little v Victoria [1998] 4 VR 596; Re Luck [2003] HCA 70; 78 ALJR 177 at [6]-[7], [9]. Further, even where proceedings are dismissed because they are frivolous or vexatious, disclose no reasonable cause of action, or amount to an abuse of process, such a decision will be an interlocutory one: Re Luck at [8]-[9]; AB v State of New South Wales [2014] NSWCA 243 at [9]-[17]; Macatangay v State of New South Wales(No 2) [2009] NSWCA 272 at [10]-[13]; Zoia v Commonwealth Ombudsman Dept [2007] FCAFC 143; 240 ALR 624 at [11]; Brennand and Naughton v Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School [2014] ACTSC 326 at [43]-[49]. In the present case the action taken by her Honour was to strike out the notice of appeal and, if there was any difference, the appeal. She did not take any further step to restrain the filing of further proceedings as was taken by the Queensland Court of Appeal in von Risefer v Permanent Trustee Co P/L & Ors. She did not make an order dismissing the appeal. Notwithstanding the practical effect of her Honour’s orders, having regard to the authorities in relation to first instance decisions striking out pleadings and dismissing proceedings, the orders made by her Honour are properly characterised as interlocutory. I note that this characterisation applies also to the costs order that her Honour made. That was expressly found in Vatarescu v Commonwealth of Australia [2010] ACTCA 7 at [42]-[50] and is consistent with the manner in which the other authorities referred to above have dealt with costs orders associated with interlocutory orders.
Because the orders made by her Honour were clearly interlocutory, it is unnecessary to consider a broader question, namely, whether any order made on the appeal, including the dismissal of the appeal, would necessarily be an interlocutory decision because the underlying decision from which the appeal was brought was, in itself, an interlocutory decision. In Vatarescu v Commonwealth of Australia at [51]-[52] Penfold J found that to be the case. It also appears consistent with the approach taken by the NSW Court of Appeal in Wickstead v Browne at 11 where Handley and Cripps JJA (with whom Kirby P agreed on this point) referred to the need for leave to appeal from a decision of a single judge on an appeal from a master.
Because the orders made by her Honour on 29 May 2017 were interlocutory, s 37E of the Supreme Court Act precludes any appeal as of right. As a consequence, the appeal in relation to these orders is also incompetent.
Because the appeal is incompetent it must be dismissed.
Issues not necessary to decide
In the light of the conclusion that the appeal is incompetent, it is unnecessary to address the other aspects of the respondents’ application which were pressed, namely:
(a)whether the appeal should be “dismissed”:
(i)because the notice of appeal does not contain any arguable ground of appeal; or
(ii)because of a failure to comply with r 5403(1)(f) of the Court Procedures Rules which requires that a notice of appeal must state briefly but specifically the grounds relied upon in support of the appeal;
(b)an application for security for costs.
Costs
Notwithstanding the health conditions of the appellant and her apparent lack of resources, having regard to the finding below that the appeal to the Supreme Court involved an abuse of process and the compensatory nature of an order for costs, it is appropriate that Mrs Barlow be ordered to pay the costs of the respondents of the appeal.
Orders
The orders of the Court are therefore:
1. The appeal is dismissed as incompetent.
2. The appellant is to pay the respondents’ costs of the appeal.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 November 2017 |
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