Barlow v Law Society of the Act (No 2)
[2017] ACTSC 121
•29 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barlow v Law Society of the ACT (No 2) |
Citation: | [2017] ACTSC 121 |
Hearing Date: | Determined on the papers |
DecisionDate: | 29 May 2017 |
Before: | Penfold J |
Decision: | (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. |
Catchwords: | PROCEDURE – Miscellaneous procedural matters – striking out of notice of appeal – striking out of appeal – dismissing appeal – abuse of process of court. |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 5052, 5101(1)(g), 5172 Victorian Civil and Administrative Tribunal Act1998 (VIC), s 148(7) |
Cases Cited: | Barlow v Law Society of the ACT [2017] ACTSC 35 Bott v Suttons Motor Australia Pty Ltd [2006] NSWCA 307 von Risefer & Ors v Permanent Trustee Co P/L [2005] QCA 109; [2005] 1 Qd R 681 |
Parties: | Michaela Barlow (Appellant/Respondent) Law Society of the ACT (First Respondent/Applicant) Larry King (Second Respondent/Applicant) Bill Redpath (Third Respondent/Applicant) Chris Chenoweth (Fourth Respondent/Applicant) David Harper (Fifth Respondent/Applicant) Robert Reis (Sixth Respondent/Applicant) Michael Phelps (Seventh Respondent/Applicant) |
Representation: | Counsel Self-represented (Appellant/Respondent) Mr M Phelps (Respondents/Applicants) |
| Solicitors Self-represented (Appellant/Respondent) Phelps Reid (Respondents/Applicants) | |
File Number: | SCA 1 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 1 December 2015 Case Title: Barlow v Law Society of the ACT & Ors Citation: [2015] ACTMC 8 |
Introduction
On 21 February 2017, I handed down a decision in an application by the Law Society and six individuals in relation to Mrs Barlow’s appeal against a Magistrate’s decision to strike out proceedings against the Law Society that she had commenced in the Magistrates Court. The background to her claim against the Law Society is set out in detail in that judgment (Barlow v Law Society of the ACT [2017] ACTSC 35), and need not be repeated here, although I shall summarise aspects of the claim briefly in due course.
The Law Society’s application sought the following orders:
1. Order pursuant to rule 5172 of the Court Procedures Rules 2006 (ACT) striking out the notice of appeal filed in these proceedings on 4 January 2016 by the Appellant.
2. In the alternative, order striking out and summarily dismissing the notice of appeal.
3. Order that the Appellant pay the Respondents’ costs of these proceedings on an indemnity basis.
4. Any other orders that the Court considers appropriate.
In that judgment, I concluded at [116]:
(a)that there was no power to transfer Mrs Barlow’s appeal to the Federal Circuit Court, and no ground to transfer it to the Federal Court, as she had sought in an oral application made during the hearing of the Law Society’s application;
(b)that her appeal was not necessarily incompetent for the purposes of r 5172;
(c)that the ground of appeal specified in her notice of appeal could be described as embarrassing; and
(d)that there would be no utility in giving her leave to re-plead her ground of appeal.
I also noted at [117] - [119], having considered the new evidence sought to be relied on by Mrs Barlow in her appeal, that there would be no injustice in bringing the proceedings to an end, because the new evidence did not have the significance she asserted.
I then considered what orders would be appropriate to give effect to these conclusions. I was satisfied that I could strike out Mrs Barlow’s notice of appeal on the ground that it did not comply with r 5101(1)(g) of the Court Procedures Rules 2006 (ACT) (CPRs), which requires a notice of appeal to state:
briefly, but specifically, the grounds relied on in support of the appeal, including, in particular, any grounds on which it is claimed that there is an error of law in the order of the court or tribunal;
However, I was not convinced, having regard to the provisions of the CPRs and a number of earlier decisions that I canvassed in my judgment, that concluding that a notice of appeal should be struck out, of itself, also justified dismissing the appeal. Accordingly, I invited the parties to make written submissions about the appropriate orders.
Applicants’ submissions
The applicants’ submissions are not particularly helpful, mainly because, as in the original application, inadequate attention was paid to the distinction between a notice of appeal and the appeal itself, and also to the consequences of the various different orders that might be made. For this reason, the submissions did not properly address the question whether, as well as striking out the notice of appeal, or even striking out the appeal, there were other orders that would more effectively deal with the proceedings in which this particular notice of appeal is simply an interlocutory step.
The submissions can be summarised as follows:
(a)The Court should strike out the appeal.
(b)There are various examples of courts striking out notices of appeal or appeals (eg Geoffrey Douglas Skelton v Registrar of Motor Vehicles (Unreported, Supreme Court of the Australian Capital Territory, Master Connolly, 4 April 1996), Re Zero Population Growth [1990] FCA 319, Bott v Suttons Motor Australia Pty Ltd [2006] NSWCA 307, von Risefer v Permanent Trustee Co P/L [2005] QCA 109; [2005] 1 Qd R 681 (von Risefer)).
(c)This is all that is required.
(d)In this case, the striking out of the appeal is necessary to prevent an abuse of the Court’s process. It would be an abuse of process to allow the appeal to remain on foot, when the Court has found:
(i)that the ground of appeal is embarrassing;
(ii)that there is no point in giving leave to re-plead; and
(iii)that there would be no injustice by disposing of the appeal.
(e)There is inherent jurisdiction to take steps necessary to prevent an abuse of process.
(f)Alternatively, r 5052(1)(e) gives a power “[for] an appeal to the Supreme Court”, for the Court to “make any other order that it considers appropriate”.
Mrs Barlow’s submissions
Mrs Barlow’s submissions are entirely unhelpful. She sought the following orders:
(1)That the defendants’ strike-out application be denied.
(2)That the appellant’s matter be heard on the merits.
(3)That the defendants cease and desist from any further action in their attempts to bankrupt the applicant [sic].
(4)Costs
Her submissions focus on her complaint (discussed in my earlier judgment) that it was an error (specifically a jurisdictional error) for the Magistrate to consider the merits of her claim in deciding to strike it out. She also asserts that it was an error for me to consider those merits in dealing with the Law Society’s application in relation to her appeal.
Mrs Barlow then makes a series of extreme and unsubstantiated allegations against the applicants, the most moderate of which involves describing them as “serial abusers”. She also asserts that a number of my conclusions, set out in the earlier judgment, are “unreasonable to the extent of Wenesbury [sic] unreasonableness”.
Mrs Barlow concludes her submissions with a description of her personal circumstances, and a final plea to the Court to give her the opportunity to have her case heard.
Consideration
The applicants’ submissions raise two basic propositions:
(a)That allowing the appeal to remain on foot would permit an abuse of the Court’s processes, so the appeal should be struck out.
(b)Rule 5052 gives an effectively unlimited power, not just to strike out an appeal but to summarily dismiss an appeal once the notice of appeal has been struck out.
It is convenient to deal with these propositions in reverse order.
Rule 5052
Rule 5052 is relevantly as follows
5052Appeals to Supreme Court—general powers
(1)For an appeal to the Supreme Court, the court—
(a)has all the powers and duties of the court or tribunal that made the order appealed from; and
(b)may draw inferences of fact; and
(c)may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way; and
(d)may make any of the following orders:
(i) an order confirming, amending or setting aside the order of the court or tribunal appealed from;
(ii) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the court or tribunal in accordance with any direction the court considers appropriate; and
(e)may make any other order that it considers appropriate.
The earlier paragraphs of r 5052(1) confer powers to make a variety of specific orders relating to the hearing of an appeal. Rules 5052(2) and (3) relate to the receipt of further evidence during such a hearing.
The applicants submit:
The discretion conferred by rule 5052(1)(e) is wide and not subject to any express limitations: cf Osland v Secretary to the Department of Justice (2010) 241 CLR 320 at 331 [17] – 332 [19].
In Osland v Secretary to the Department of Justice [2010] HCA 24; 241 CLR 320 (Osland) at 331 [17] – 332 [19], French CJ, Gummow and Bell JJ considered s 148(7) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), which was as follows:
(7)The Court of Appeal or the Trial Division, as the case requires, may make any of the following orders on an appeal—
(a)an order affirming, varying or setting aside the order of the Tribunal;
(b)an order that the Tribunal could have made in the proceeding;
(c)an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;
(d)any other order the court thinks appropriate."
Their Honours said at [19]:
The jurisdiction conferred by s 148(1) is confined to appeals on questions of law. Section 148(7) does not enlarge that jurisdiction. It confers powers on the court in aid of its exercise.
The question under consideration in Osland was not the scope to dismiss an appeal after striking out a notice of appeal. It was the very different question whether, in dealing with an appeal from the Victorian tribunal, the Court could exercise the fact-finding power of the tribunal and make a “substitutive order”, or was bound by the tribunal’s finding of fact. Their Honours noted that other substitutive orders could also be made under s 148(7), but an order dismissing an appeal without a hearing does not seem to be a “substitutive order”.
I am not convinced that describing s 148(7)(d) as conferring powers on a court in aid of the exercise of jurisdiction conferred by other provisions, or finding that the provision permits certain substitutive orders, is useful in answering the question raised in this case; that question is whether a relevantly equivalent provision in the CPRs (r 5052(1)(e)) confers a power to dismiss a proceeding in which the exercise of that jurisdiction is sought, instead of exercising the jurisdiction by hearing the matter and then using any of the powers conferred by, or making any of the orders provided for in, r 5052(1)(a)-(d) (equivalent to the powers conferred by s 148(7)(a)-(c)). Clearly, r 5052 would permit a court to hear an appeal, confirm the order appealed from and, accordingly, dismiss the appeal. The question here is whether r 5052 also permits an appeal to be dismissed without a hearing after the notice of appeal has been struck out.
I note also that in R v Fisher (No 2) [2011] ACTSC 100 Refshauge J said at [59].
59.It does not seem to me that a provision that permits a court to make “the orders it considers appropriate” is a grant of unlimited power but must refer to an order that is otherwise within the power of the court to make.
I am not persuaded that r 5052(1)(e) confers on the Supreme Court in dealing with an appeal from the Magistrates Court either an unlimited power to make orders that are not otherwise within the Supreme Court’s powers or, more relevantly, a power to make an order dismissing an appeal without a hearing.
Abuse of process
I turn then to the question whether I should deal with Mrs Barlow’s appeal as an abuse of process, and what that would involve.
In my earlier judgment I said, at [129], after considering a number of authorities including von Risefer :
What seems to emerge from these cases is that while there is a clear power to strike out a notice of appeal in various circumstances, there is not necessarily an accompanying power to dispose of the appeal by dismissing it or entering judgment for the respondents. On the other hand, in the absence of a statutory power to dismiss an appeal after striking out a notice of appeal, there is an inherent power in a superior court to prevent an abuse of the court’s processes, which may enable the court, for instance, to bar any further proceedings without the court’s leave.
The submissions
As indicated, I have not found the Law Society’s submissions particularly helpful, to the extent that those submissions do not address the question raised in the earlier judgment; at some points the submissions refer to striking out a notice of appeal and striking out an appeal as if they are interchangeable, and at other points argue as if striking out an appeal is equivalent to dismissing an appeal. Nor do those submissions allude to the different consequences of the various kinds of orders possibly available to deal with this appeal.
I am satisfied that, having regard to the flaws in Mrs Barlow’s notice of appeal, it would be appropriate to strike out the appeal on the ground that in its current form it is an abuse of the court’s process. I have not found any basis on which I could dismiss the appeal and enter judgment for the applicants (the respondents in the appeal).
On the other hand, Mrs Barlow’s submissions, which simply repeat her earlier mantras about deciding her matter on its merits:
(a)do not address any of my analysis of the significance of her “new evidence”;
(b)quickly descend into entirely inappropriate personal abuse of the applicants; and
(c)do not contain anything that suggests that, with further reflection, Mrs Barlow could prepare a meaningful appeal against Magistrate Morrison’s decision.
In her submissions, Mrs Barlow appears to ignore the fact that, as indicated in my judgment, I have already concluded that her appeal ground as set out in her notice of appeal is embarrassing. She also ignores the comments I made in that judgment about the significance, and the probative value in particular, of the material that she has identified as “new evidence”. It is worth quoting her submissions on this topic:
6)The appellant’s matter should be heard on the merits because the new evidence, that is the 1971 Regulation, the 1986 Regulation and the history of legislation as provided by JACS by order of Morrison J [sic], is probative. Under the Court procedure rules, a matter may be heard if there is new evidence that is likely to have (had it been included in the original proceedings) caused the court to arrive at a substantially different result.
7)While the appellant contends that the new evidence would prove her case, the court would fall into error if it were to decide the strike out application on that basis. The court is only to decide whether the evidence, if proven, were to do so.
Original judgment
In my original judgment I assumed that the “new evidence” (specifically the official history of the relevant legislation) was correct. When dealing with legislation, that assumption seems to be relevantly equivalent to assuming the evidence is “proven”.
I concluded that the legislative history as claimed by Mrs Barlow, together with subsequent legislative history apparently overlooked by Mrs Barlow, could not establish Mrs Barlow’s claims, and indeed would establish that the original claim, on which all her other claims were based, was not correct. In other words, it seems that, with one qualification, I have done exactly what Mrs Barlow says I should have done, that is, to consider whether, if proven, her “new evidence” would prove her case. That qualification is that Mrs Barlow might have intended to suggest that I should not have looked at the subsequent legislative history that I considered she had overlooked. If that was her submission, I reject it.
It is in the circumstances worth summarising some of the relevant material from my original judgment:
(a)Mrs Barlow, who had legal qualifications and had completed the ANU Legal Workshop practical skills course, was in 2004 and again in 2011 refused an unrestricted practising certificate, because she had not completed two years of supervised practice as a solicitor.
(b)Before 2004, Mrs Barlow had been advised by an officer of the Law Society that an unrestricted practising certificate could be granted after she had completed the Legal Workshop course and one year of supervised practice. This advice was wrong.
(c)Mrs Barlow, who had completed the Legal Workshop course and one year of supervised practice by the time she applied in 2004, says she should have been granted an unrestricted practising certificate, first because the earlier advice was not wrong, but secondly because even if it was, she had relied on it and the Law Society was therefore obliged to issue an unrestricted practising certificate (presumably in spite of the fact that this would be in breach of the law by which the Law Society was bound).
(d)Having reviewed the legislative history I was satisfied that, from 1998:
(i)The basis for issuing practising certificates was found in provisions referring to a “prescribed course of training for the practice of law”; and
(ii)there was no prescription of such a course of training in relation to practising certificates in the relevant primary legislation or in any regulation.
(e)That is, on and after 2000, there was no course of training that satisfied the description of a “prescribed course of training for the practise of law”, and therefore no scope for issuing an unrestricted practising certificate on the basis of completion of the Legal Workshop course and one year of supervised practice.
Thus, Mrs Barlow cannot demonstrate that in 2004, the Law Society or any of the other applicants had misunderstood the law (in good faith or otherwise) and had improperly refused her an unrestricted practising certificate. The law simply did not permit the issue of an unrestricted practising certificate to Mrs Barlow, at that time or subsequently.
The merits of the appeal, and the impact of allowing it to be heard
Furthermore, Mrs Barlow’s latest submissions indicate a complete inability, or at least unwillingness, to address the legal and practical issues arising in this matter.
That assessment is, among other things, borne out by Mrs Barlow’s assertion that if her claim were “heard on its merits” but was to fail, “there would be no harm to the Society and its agents”.
This claim clearly overlooks not only the time that would be absorbed by the matter and the distraction it would present to the Law Society and the individuals concerned, but the direct legal costs that, even if Mrs Barlow’s claim did fail, would likely be borne by the Law Society and, ultimately, by all the members of the Law Society, as well as any costs borne by any of the individual respondents.
I accept that if Mrs Barlow’s claim was to fail, costs orders would probably be made in favour of the Law Society and the other respondents; however, I also recognise that a party/party costs order is generally unlikely to meet all a successful litigant’s legal costs, and that given the financial difficulties described by Mrs Barlow, such a costs order might be effectively unenforceable anyway. That is, it is not correct for Mrs Barlow to say that allowing her proceedings to continue would cause no harm to the respondents.
Furthermore, Mrs Barlow’s submission also overlooks the waste of public resources involved in allowing her to continue proceedings the basis of which, that the Law Society acted incorrectly in 2004, cannot be made out.
Mrs Barlow’s personal circumstances
Mrs Barlow’s personal circumstances as described in her submissions are clearly unfortunate, and involve medical and financial difficulties some of which may be related to her extended dispute with the Law Society. However, none of her unfortunate circumstances entitles Mrs Barlow to maintain an action against the respondents that simply has no prospects of success, and none of them requires me to permit her to continue with the current appeal, which would clearly be an abuse of the processes of the Court.
Costs orders
In its submissions, the Law Society withdrew its application for Mrs Barlow to be ordered to pay its costs on an indemnity basis. In doing so, the Law Society noted that the question whether Mrs Barlow’s appeal was incompetent had been affected by matters arising in the Supreme Court after the appeal was filed, and that when it was made, the challenge to the appeal’s competence had been both appropriate, and necessary to protect the Law Society from a costs order against it. I accept those submissions.
Conclusions
As already noted, I am satisfied that permitting Mrs Barlow to pursue her current appeal in the Supreme Court would be to permit an abuse of the process of this Court; accordingly, I shall strike out the notice of appeal and the appeal (if these are in fact distinct actions).
Noting the respondents’ withdrawal of their claim for indemnity costs in relation to the appeal, I shall order that Mrs Barlow pay the respondent’s costs of this application on a party/party basis.
Orders
The orders are:
(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.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Nishadee Perera Date: 29 May 2017 |
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