Baronglow Pty Ltd (ACN 081 472 102) & Jordan v Willing & Thomas
[2008] SASC 184
•8 July 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
BARONGLOW PTY LTD (ACN 081 472 102) & JORDAN v WILLING & THOMAS
[2008] SASC 184
Judgment of The Full Court
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice David)
8 July 2008
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY
Application for permission to appeal in private - application for extension of time to institute appeal - permission to appeal and application for extension of time refused.
Supreme Court Act 1935 s 50(5)(a), referred to.
Baronglow Pty Ltd v Willing & Anor [2007] SASC 299, considered.
BARONGLOW PTY LTD (ACN 081 472 102) & JORDAN v WILLING & THOMAS
[2008] SASC 184Full Court: Duggan, Vanstone and David JJ
THE COURT: The applicant for permission to appeal, Baronglow Pty Ltd (“Baronglow”), was the nominal plaintiff in proceedings which were commenced in the District Court. Baronglow has no assets and the real plaintiff is Mr Neville Jordan.
Following certain unsuccessful applications made by Baronglow, the company was ordered to pay the costs of the applications. The costs were taxed and three allocaturs were issued on 1 June 2007. Baronglow has made applications to review these allocaturs.
The orders for costs were made in favour of a solicitor, Mr Thomas. Mr Thomas is the second respondent in the original proceedings. He appeared for himself in those proceedings. Judge Lunn, who made the costs orders, decided that Mr Thomas was entitled to recover profit costs as a legal practitioner representing himself.
Baronglow applied for permission to appeal against various aspects of Judge Lunn’s orders and the application came before Debelle J. On 9 August 2007 Debelle J referred to the Full Court the question of whether a legal practitioner who is a party to proceedings and appears for himself or herself is entitled to recover profit costs.
In addition to referring the application for permission to the Full Court Debelle J made the following orders:
3That the applicant [Baronglow] shall not be permitted to prosecute its review until it has first paid into court:
(i) the sum of $11,429.70 the subject of the disputed allocaturs; and
(ii) the sum of $4,000 by way of security for costs.
4That the applicant and Neville Jordan pay the costs of and incidental to this application.[1]
[1] [2007] SASC 299 at [13]
The issue referred to the Full Court by Debelle J has not yet been heard.
There has been no application for permission to appeal against the orders made by Debelle J.
On 7 December 2007 Baronglow applied for a further review of Judge Lunn’s orders. The grounds of this review are set out at p 17 of the copy documents. It appears from paras 1, 2 and 3 of the grounds that they seek to argue the same issue as that which was referred to the Full Court by Debelle J with the possible exception of the matter raised in para 2 which extends the issue to counsel’s costs as well as the costs of a solicitor.
The application for review came before Bleby J who directed that the application stand as an application for review of a provisional costs order made by Judge Lunn that the applicant pay into Court the sum of $2,889.81. Bleby J joined Mr Jordan as an applicant on the application.
In his reasons, Bleby J said that an earlier adjudication in respect of the same order for costs was the subject of the proceedings before Debelle J. Bleby J pointed out that the amounts referred to in para 3 of the orders of Debelle J had not been paid into Court and that, as a consequence, there had been no hearing before the Full Court on the issues referred to it by Debelle J.
Bleby J went on to say (p 52 of the copy documents):
The grounds of the present review are similar if not identical to the grounds of review instituted by Baronglow in the proceedings that came before Debelle J.
I accept Mr Thomas’ submission that the present application amounts in effect to the same party attempting to re-litigate the same issues which are currently before Debelle J. It is a blatant attempt to outflank the orders of Debelle J to achieve what is effectively the same review but without Baronglow having to pay the amounts into Court as directed by Debelle J.
The Court will not allow its processes to be manipulated in such a way.
The identical issues are before another Judge and possibly the Full Court of this court. Effective control of those proceedings is in the hands of the present applicants. It would be inappropriate for another Judge to embark on a review with identical issues on what is an almost identical claim for costs.
Bleby J then made the following orders which are relevant for present purposes:
3That the application for review by Baronglow Pty Ltd and Mr Jordan FDN 84 [the application before Bleby J] be adjourned until after the completion of the review the subject of the application by ACN 081 472 102 Pty Ltd formerly Baronglow Pty Ltd filed on 2 July 2007 FDN 61 and 63 [the application before Debelle J].
4That the applicants not be permitted to prosecute this review until there has first been paid into court the sum of $2,889.81 being the amount of the disputed provisional costs order.
5That the applicants pay the respondent’s costs of the application for review before a Judge to date.
Mr Jordan has now applied for permission to appeal these orders made by Bleby J. The grounds of appeal are set out at pp 59 - 61 of the copy documents. The essence of the complaint is that the orders of Bleby J “place a burden and condition precedent on the intervener/applicant and his right to review a taxation by a Judge to make the payment into Court set out in the order of Justice Debelle of 9 August 2007.” It is also argued:
...that the intervener/applicant’s entitlement to a review of taxation by a Judge is a right and not appropriately subjected to the conditions imposed.
It is also claimed that the order for payment of the amount of $2,889.81 into Court duplicates the order made by Debelle J.
The application for permission to appeal against Bleby J’s order came on before His Honour on 21 February 2008. He ordered that the application for permission to appeal be referred to the Full Court for determination.
In our view permission to appeal against Bleby J’s order should be refused. It was within the discretion of Bleby J to attach the conditions which he did to the referral of the matter to the Full Court. The Full Court should not be asked to rule on this exercise of discretion.
We would refuse permission to appeal against the orders made by Bleby J on 30 January 2008.
After the application for permission to appeal against the orders by Bleby J had been heard Mr Jordan concluded that permission to appeal may not be necessary. He made a further application on 14 March 2008 (copy documents p 81) which argues that s 50(5)(a) of the Supreme Court Act 1935 renders it unnecessary for permission to appeal to be granted in this case. Section 50(5)(a) prevents the rules from requiring the Court’s permission for an appeal if the judgment under appeal –
(a) denies, or imposes conditions on, a right to defend an action
The relief sought by the applicant cannot come within this description. The issues which the applicant wishes to argue arise out of an application which is incidental to the substantive issue in the original proceedings. The applicant’s role cannot be characterised as defending an action.
According to the applicant’s argument at [33] of the written submissions to the Full Court, Mr Thomas is in the position of a plaintiff prosecuting to recover his costs and the applicant is defending his position.
In our view this argument is clearly untenable and permission to appeal is required.
This application came on for hearing before Sulan J on 9 May 2008. The applicant applied for an extension of time to institute an appeal against the orders of Bleby J.
Sulan J made the following order:
To the extent that it is necessary (if it is necessary at all) the question of the extension of time to institute an appeal against the orders of Bleby J, made on 30 January 2008, is referred, together with the current referral of the application for permission to appeal, to the Full Court.
For the reasons set out above we are of the view that an appeal does not lie as of right. If this is so, the appeal would be incompetent.
In our view we should refuse an extension of time within which to file the appeal.
We make the following orders:
1.Permission to appeal against the orders made by Bleby J on 30 January 2008 is refused.
2.The application for an extension of time to appeal against the orders made by Bleby J on 30 January 2008 is refused on the ground that no appeal lies as of right.