Bennelong Medical Pty Ltd v Commissioner of Taxation (No

[2023] ACTCA 37

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 3)

Citation: 

[2023] ACTCA 37

Hearing Date: 

6 September 2023

Decision Date: 

4 October 2023

Before:

Taylor J

Decision: 

See [52].

Catchwords: 

APPEAL – APPEAL FROM SUPREME COURT – Appeal against order made refusing appellant leave to represent company under r 30(4) of the Court Procedures Rules 2006 (ACT) – application by respondent that appeal be declared incompetent and notice of appeal struck out –leave to appeal required – whether interlocutory decision – whether the appeal is incompetent – appeal declared incompetent and notice of appeal struck out– consideration of whether leave to appeal would be granted had it been applied for – would refuse leave to appeal – appellant to pay respondent’s costs of the application

Legislation Cited: 

Court Procedures Act 2004 (ACT), s 5A

Court Procedure Rules 2006 (ACT), rr 30(4)(b), 5403, 5310, 5472, 6256

Supreme Court Act 1933 (ACT), ss 37E, 37J

Cases Cited: 

Australian Coal and Shale Employees’ Federation v Commonwealth [1953] HCA 25; 94 CLR 621

Bennelong Medical Pty Limited v Commissioner of Taxation [2023] ACTSC 74

Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28

Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44

Carr v Finance Corporations of Australia Ltd(No 1) [1981] HCA 20; 147 CLR 246

Davey v Herbst (No 2) [2012] ACTCA 19

Donohue v Volanne Pty Ltd (No 2) [2021] ACTCA 11

Décor Corporation Pty Ltd v Dart Industries [1991] FCA 844; 33 FCR 397

Ezekiel-Hart v The Law Society of the Australian Capital Territory [2010] ACTCA 6; 173 ACTR 15

Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36; 269 FLR 182

Hall v the Nominal Defendant [1966] HCA 36; 117 CLR 423

Jeray v Blue Mountains City Council (No 2)[2010] NSWCA 367; 180 LGERA 1

Maher v Carpenter[2012] ACTSC 38; 7 ACTLR 216

Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160

Manny v David Lardner & Associates (No 2) [2019] ACTSC 86; 135 ACSR 316

Ryan v Bunnings Group Limited [2021] ACTCA 43

Parties: 

Bennelong Medical Pty Ltd ( Appellant)

Commissioner of Taxation ( Respondent)

Representation: 

Counsel

Self-represented ( Appellant)

Jason Moffett ( Respondent)

Solicitors

Self-represented ( Appellant)

Australian Government Solicitor ( Respondent)

File Number:

SCA 14 of 2023

Decision Under Appeal: 

Court/Tribunal:           Supreme Court

Before:   Mossop J

Date of Decision:       11 April 2023

Case Title:                  Bennelong Medical Pty Ltd v Commissioner of Taxation

Citation: [2023] ACTSC 74

TAYLOR J:

Introduction

1․There was an Application in Proceedings filed on 23 June 2023 by the respondent in response to an appeal commenced by Bennelong Medical Pty Ltd.

2․The Notice of Appeal was originally filed on 27 April 2023 and sought to appeal the orders of Mossop J on 11 April 2023 made in Bennelong Medical Pty Limited v Commissioner of Taxation [2023] ACTSC 74 (‘Bennelong’).

3․The Application in Proceeding seeks to strike out a now Amended Notice of Appeal subsequently filed on the basis that it is incompetent pursuant to r 5472 of the Court Procedure Rules 2006 (ACT) (the Rules).

4․It is useful to first summarise the history of the proceedings.

History of proceedings

5․The appellant commenced proceedings in the Supreme Court by way of an Originating Application seeking the following final relief:

Ruling pursuant to the High Court ruling in the Yager v Queen (1977) 139 CLR 28, 43 and Quach v Butt [2016] ACTSC 153 at [13].

There is, therefore, no legitimate foundation for resorting to the definitions (expense) contained in the [Taxation Administration Act 1953 (Cth)] for the purposes of modifying or qualifying another statutory definition [R&D expenses] contained in [Income Tax Assessment Act 1997(Cth] a different Act of parliament.

6․On 24 March 2023, the Senior Deputy Registrar of this Court refused Dr Michael Quach leave under sub-r 30(4)(b) to represent the plaintiff ‘Bennelong Medical Pty Ltd’ in the substantive proceedings against the “Australian Taxation Office”.

7․On 29 March 2023, the appellant filed a Notice of Appeal in relation to the decision of the Senior Deputy Registrar. This appeal was heard by Mossop J, sitting as a single judge of the Supreme Court: Bennelong. At the request of the Commissioner of Taxation and without objection from Dr Quach, at the commencement of the hearing his Honour made an order removing ‘Australian Taxation Office’ as the defendant in the proceedings, substituting ‘Commissioner of Taxation’ (the Commissioner): at [16].

8․Justice Mossop dismissed the appeal and ordered costs to follow. His Honour provided the following reasons for refusing to grant leave under sub-r 30(4)(b) at [19]:

In my view the following matters, taken together, indicate that the court should not grant Mr Quach leave to represent the plaintiff:

(a)   Insofar as it is possible to work out from the documents filed to date, the claim is one which raises a question of statutory interpretation. However, the claim has not been clearly articulated and, as a result, the connection between the question of statutory interpretation and the facts of the case is not clear.

(b)   There will be some legal complexity in relation to the pursuit of such a claim both having regard to the question of statutory interpretation raised but also having regard to other issues which will or may arise in relation to the jurisdiction of the court, the question of whether or not any declaration could be appropriate in the circumstances and matters of procedure more generally.

(c)   From the conduct of the case to date it is not apparent that it will be able to be conducted in an orderly fashion without a solicitor. That is illustrated by the difficulty with the formulation of the claim and the inadequacy of the evidential material put forward in support of that claim.

(d)   There is no evidence that Mr Quach or the plaintiff is unable, because of financial constraints, to engage a solicitor to conduct the case.

(e)   It is very likely that if the case is conducted by Mr Quach rather than a solicitor the defendant will be put to substantially greater expense in defending the claim.

(f)    It is likely that if the case is conducted by Mr Quach rather than a solicitor greater court resources will be required to be devoted to the matter at the expense of other litigants in the court list.

9․Subsequently, the appellant filed a Notice of Appeal in relation to the decision of Mossop J in Bennelong.

10․Bennelong Medical Pty Ltd v Commissioner of Taxation (No 2) [2023] ACTCA 28 (‘Bennelong (No 2)’) saw Curtin AJ hear an Application in Proceeding from the Commissioner, respondent. That Application in Proceeding sought to establish that the appellant’s Notice of Appeal was incompetent pursuant to r 5472 on the basis that it did not comply with sub-rr 5403(1)(f) and 5403(2).

11․Acting Justice Curtin did order that the Notice of Appeal be struck out though not on the basis sought by the respondent. His Honour determined to strike out the Notice of Appeal invoking the Court’s inherent jurisdiction to protect the processes of the Court. His Honour found that the content of the Notice of Appeal fell into a category of notice that tended to “prejudice, embarrass or delay the fair trial of the appeal or which are frivolous or unnecessary”: at [15]-[16]. His Honour observed that the Application in Proceeding pressed by the Commissioner framed the question of competency pursuant to r 5472 by reference to non-compliance with the Rules. Citing John Patrick Davey v Valerie Herbst (No 2) [2012] ACTCA 19 at [99]-[100], and Ryan v Bunnings Group Limited [2021] ACTCA 43 at [114] his Honour correctly identified r 5472 as concerned with the jurisdiction of the Court to entertain the appeal and not with compliance with the Rules.

12․Fairly and reasonably in my view, Curtin AJ recognised that the appellant had not been put on notice about the basis upon which his Honour determined to strike out the Notice of Appeal and accordingly, crafted orders permitting the appellant to file an amended Notice of Appeal which complies with the Rules and any affidavit evidence in support: at [21]. Additionally, the orders permitted the respondent to file and serve an amended application in proceeding together with any affidavit evidence in support: at [21]. The respondent was ordered to pay any costs incurred by the appellant (if any) because his Honour considered that the framing of the Application in Proceeding meant it was “bound to fail”: at [19].

13․As a result and in compliance with the orders of Curtin AJ on 23 June 2023 the respondent lodged an Amended Application in Proceeding which was subsequently filed on 26 June 2023, seeking the following orders:

1․     The Notice of Appeal be struck out as incompetent pursuant to r 5472 of the Court Procedure Rules 2006 (the Rules).

2․     The Appellant pay the Respondents costs of the application.

3․     Any other orders that the Court considered appropriate.

14․The grounds of the Amended Application in Proceeding are:

1․     The Appellant requires leave of the Court to appeal which leave the Court has not granted.

15․On 3 July 2023, the appellant filed an Amended Notice of Appeal which framed the grounds of the appeal as follows:

4․     Justice Mossop’s reasons contradict Registrar Gatehouse’s reasons.

16․And sought the following orders:

1․     The appeal is allowed.

2․     Decision of Mossop J of 11 April 2023 is set aside.

3․     Decision of Registrar Gatehouse of 24 March 2023 is set aside.

4․     Pursuant to Rule 30(4)(b) of the Court Procedures Rules 2006 (ACT), Leave [sic] is granted for an officer of the corporation authorised by the corporation to represent it.

(if r 5403 (3) applies)

17․It is relevant to note that the Amended Notice of Appeal is in substantially the same terms as the original Notice of Appeal save that the Amended Notice of Appeal includes the following additional information under the heading “Case Summary”:

On the 11 April 2023, Mossop J presided over an appeal from a decision to refuse leave represent [sic] Bennelong medical Pty Ltd, as an authorised officer.

Submissions were heard on the Australian Taxation Officer as a model litigant. His Honour referred to correspondences between the Applicant and the Respondent.

His Honour relied on Manny v David Lardner & Associates (No 2) [2019] ACTSC 86 to state the following,

As a consequence, I reached the same conclusion as that reflected in the orders made by the Senior Deputy Registrar. As a consequence, the appeal will be dismissed. Costs of the appeal should follow the event.

The issue of leave

18․As a preliminary matter to facilitate the hearing of this application, the respondent did not object to the Court granting leave to Dr Quach to appear on behalf of Bennelong Medical Pty Ltd, limited to this proceeding. Leave was so granted. Dr Quach confirmed that he did not seek to rely on any affidavit evidence. The respondent did not seek to agitate that the Amended Notice of Appeal was not filed in accordance with the time frames identified in the orders made by Curtin AJ, instead preferring to press on with the substantive argument subject of the Amended Application in Proceeding.

19․Counsel for the Respondent began by identifying that, in hearing the Amended Application in Proceeding, this Court was exercising appellate jurisdiction conferred by s 37E(1) of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) and pursuant to s 37J(1) in this instance the Court of Appeal is constituted by a single judge hearing and deciding the question of leave in relation to an appeal: s 37J(1)(a). Section 37E of the Supreme Court Act provides:

37E Appellate jurisdiction

(1)When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal.

(2)The following matters may be brought before, and heard by, the Court of Appeal:

(a)appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);

(b)appeals under section 37S (Reference appeal in relation to proceeding);

(c)cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal;

(d)applications under part 8AA (Acquittals).

….

(3)Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge, or the associate judge, only with leave of the Court of Appeal.

20․The requirement for leave in relation to an interlocutory order of the court constituted by a single judge is also found in the Rules at Division 5.4.2 r 5310 which states:

5310 Application–div 5.4.2

(1)This division applies if a person wants to appeal to the Court of Appeal from an interlocutory order of the court constituted by a single judge, or by the associate judge.

(2)The person must make an application for leave to appeal under this division.

21․The respondent relies on s 37E(4) of the Supreme Court Act to establish that the Amended Notice of Appeal is incompetent. The respondent submits that the provision makes plain that an appeal may only be brought against an interlocutory order from a single judge with leave of the Court of Appeal. There being no application for leave to appeal and consequently, no leave granted, the appeal is necessarily incompetent pursuant to r 5472. Rule 5472 provides:

5472 Appeals to Court of Appeal—competency of appeal

(1)A respondent to the appeal may apply to the Court of Appeal at any time for an order striking out the appeal as incompetent.

Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this rule.

(2)The burden of establishing the competency of the appeal is on the appellant.

22․As I understand the argument advanced by Dr Quach, he contends that there is no statutory basis for the requirement for leave to be granted before the appeal can be brought. By virtue of that position Dr Quach submits that s 37E, rr 5310 and 5472 have no application to these proceedings. Dr Quach contests the characterisation of the orders made by Mossop J as interlocutory submitting “I’m saying an appeal from the orders of a registrar is not within the division that requires leave to appeal from interlocutory orders”. Dr Quach went on to suggest that Division 5.3.2 of the Rules applied to these proceedings and that “there’s no relevant law that requires leave to appeal Mossop J”.

23․Division 5.3.2 of the Rules provides:

(3)This Division applies if:

(a)A person wants to appeal to the Supreme Court from on order of a court or tribunal; and

(b)The relevant law requires the Supreme Court’s leave to appeal.

(4)The person must make an application for leave to appeal under this division.

24․As I appreciate his argument Dr Quach submits Division 5.3.2 applies to these proceedings as it is an appeal to the Supreme Court from an order of a court (being the order of the Supreme Court, Senior Deputy Registrar). There being no ‘relevant law’ that requires the Supreme Court’s leave to appeal such an order, he argues, leave is therefore not required.

25․Respectfully, it seems to me that this argument misconceives the nature of the proceedings currently before the Court. Rule 6256 deals with appeals from order made by the registrar of the Supreme Court. Sub-rule (2) provides:

(1)If the order is made by the registrar of the Supreme Court, and a party to the proceeding is dissatisfied with the order, the party may appeal, in accordance with these rules, to the Supreme Court constituted by a judge or the associate judge.

26․Sub-rule (7) confirms that the court may confirm, amend or set aside the Registrar’s order and make any other order the court considers appropriate. The order of Mossop J then is plainly an order of the Supreme Court constituted by a single judge arising from an appeal brought pursuant to sub-r (2) confirming the order of Senior Deputy Registrar.

27․The appellant, Dr Quach, seeks to appeal the order of Mossop J. The appeal he now presses necessarily sees this Court convening as the Court of Appeal pursuant to s 37E of the Supreme Court Act. It follows then, that the Division Dr Quach relies on, Division 5.3.2, has no application to these proceedings.

An interlocutory order?

28․I turn now to the question of whether the orders of Mossop J in Bennelong are interlocutory.

29․Counsel for the respondent submitted that the orders of Mossop J in Bennelong are interlocutory in nature because they did not finalise nor finally resolve the rights of the parties. In support of this submission the respondent relies on Carr v Finance Corporations of Australia Ltd(No 1) [1981] HCA 20; 147 CLR 246 (Carr) and Hall v the Nominal Defendant [1966] HCA 36; 117 CLR 423 (Hall).

30․In Carr at 248, Gibbs CJ said:

The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v. Corney (7). An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v. Nominal Defendant (8). […] The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one.

In my opinion the test in Licul v. Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. […] The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court’s power to grant special leave to appeal. I therefore hold that the judgment appealed from is not a final judgment and that the appeal is incompetent.

31․In the present matter, it is clear that the decision of Mossop J did not finally determine or dispose of the rights of the parties. It is not a decision that dealt with the merits of the originating application to any significant degree at all but rather determined what might be considered a procedural issue about whether or not Dr Quach could represent the plaintiff in the proceedings pursuant to sub-r 30(4)(b).  

32․Furthermore, the respondent relied on the proposition that orders made which may conclude the rights of the party in respect of one application but not overall are still be held to be interlocutory. See Hall at [439]-[440]:

[A]n order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. On this basis an order staying proceedings against one of several defendants on the ground that they are scandalous, vexatious and an abuse of the process of the Court has been treated as interlocutory: Hind v. Marquis of Hartington. The same view was taken of an order striking out a plaintiff's statement of claim on the ground that it disclosed no reasonable cause of action: Jones v. Insole and of an order dismissing an action as frivolous and vexatious in In re Page. In Manley Estates Ltd. v. Benedek there were successive applications to extend time under a provision similar to that in question here, whilst Atwood v. Chichester shows that an order dismissing an application to set aside a default judgment did not constitute a bar to a subsequent application of the same character. It is not, however, of the essence of an interlocutory order that it is one made in the course of a pending action or suit and the last-mentioned case may be regarded as illustrating this proposition. Further, in Smith v. Cowell the objection was taken that the order sought in that case was not “interlocutory” and the objection was supported by the contention “that an order is interlocutory only if made at some time between writ and final judgment.” The contention was expressly rejected by the Court of Appeal which was unanimously of the opinion that the expression “interlocutory order” was wide enough to include orders made after the conclusion of proceedings in the action. Brett L.J., referring to the jurisdiction given to the Court by s. 25 (8) of the Judicature Act, said: “The power there given is of the largest kind, unless it is circumscribed in point of time by the words ‘interlocutory order’. But it is said that interlocutory must mean something between action begun and final judgment. I cannot agree. In my opinion, ‘interlocutory order’ there means an order other than a final judgment or decree in an action”.

33․The orders of Mossop J determined but one procedural aspect related to the claim, namely whether or not Dr Quach could represent the plaintiff. Indeed the substantive proceedings remain on foot. The orders of Mossop J are properly characterised as interlocutory. Consequently, pursuant to s 37E of the Supreme Court Act and r 5310 of the Rules, a grant of leave is required before an appeal proper can be brought before the Court of Appeal.

Is the notice of appeal incompetent?

34․It is clear in my view that without leave the Amended Notice of Appeal is incompetent. This is consistent with the approach taken Ezekiel-Hart v The Law Society of the Australian Capital Territory [2010] ACTCA 6; 173 ACTR 15 at [19] per Gray J:

Having regard to the binding effect of the decision in Re Luck, and in particular having regard to the fact that Court Procedure Rule 1613(2) permits this Court to set aside an order if at any time the order was made in the absence of the party, it cannot, in my view, be at all reasonably put that the decision that the Chief Justice made in this matter was anything other than an interlocutory decision. Accordingly, such a decision requires, pursuant to s 37E of the Supreme Court Act 1933 (ACT), the leave of the Court to appeal that decision. In such circumstances the decision in this case, not being the subject of an application for leave to appeal, I hold that the appeal to this Court is incompetent.

35․The Court of Appeal definitively stated in John Patrick Davey v Valerie Herbst (No 2) [2012] ACTCA 19 at [99]-[100]:

An appeal is incompetent if, for example, leave is required and the appellant does not seek such leave: Coles v Wood [1981] 1 NSWLR 723 at 727; cf Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200 at 210, 214, 218 […]

36․Having determined that the order of Mossop J is interlocutory, it follows that leave is required before the appeal can brought. Leave has not been sought and therefore has not been granted. The appeal must be declared incompetent and the Amended Notice of Appeal struck out.

The outcome of an application for leave to appeal?

37․Notwithstanding the challenges that might arise where a litigant appears in person, the Court must ensure that a self-represented litigant is not procedurally disadvantaged due to a lack of legal representation. The Court must assist a litigant in person to the extent possible, to ensure that the disadvantage that might result from the absence of  representation is adequately addressed: see Maher v Carpenter[2012] ACTSC 38; 7 ACTLR 216 at [41]; Jeray v Blue Mountains City Council (No 2)[2010] NSWCA 367; 180 LGERA 1 per Macfarlan JA at [37] and per Young JA at [54].

38․As McWilliam J observed in Manny v Commonwealth of Australia; Manny v University of Canberra [2023] ACTSC 160 at [65]:

The Court has an obligation to take appropriate steps to ensure that self-represented litigants have sufficient information about the practice and procedure of the Court as is reasonably practicable for the purpose of ensuring a fair trial: Jae Kyong Lee v Bob Chae-Sang Cha[2008] NSWCA 13 at [48], cited in Jeray v Blue Mountains City Council (No 2)[2010] NSWCA 367 at [54] and more recently in Aldous v State of New South Wales[2018] NSWCA 261 at [63]. 

39․I am mindful that the appellant is not a lawyer. I am further concerned that the Court does not allow technical legal points about competency to obscure the real issue. Having observed that Dr Quach may have misapprehended the nature of the proceedings in relation to this application I have attempted to carefully make clear the pathway to the conclusion I have drawn at [36]. It seems to me that Curtin AJ in Bennelong (No 2) was also cognisant of Dr Quach’s status as a non-lawyer and consequently carefully referred to matters that might require further consideration by the parties, particularly in terms of the grounds of the appeal [11], the interlocutory nature of Mossop J’s decision and the potential for leave to be required [17]-[18]. Despite those careful references Dr Quach did not take the opportunity to refine his approach and as I have already noted the Amended Notice of Appeal was in substance framed in the same way as the original Notice of Appeal struck out by Curtin AJ. The Amended Notice of Appeal does not on its face identify any particular error upon which the appeal relies but rather restates the issue in the same terms as originally framed, that is, a difference in the reasoning between the Registrar and Mossop J by which they reached the same conclusion.

40․If am wrong about the argument that Dr Quach sought to advance in these proceedings and wrong about the conclusion I express at [36], it is appropriate, noting the observations I have made in light of the authorities to which I have just referred, to move to consider the question of granting leave to appeal.

41․I have endeavoured to identify any basis for leave to be granted, had leave been sought by Dr Quach. The principles to be applied when determining whether to grant leave to appeal from an interlocutory decision are well established.

42․In Donohue v Volanne Pty Ltd (No 2) [2021] ACTCA 11 at [13] Murrell CJ observed:

Although there are no rigid and exhaustive criteria which govern the exercise of the discretion to refuse or grant leave to appeal from an interlocutory decision, there are two touchstones:

(a) Is the decision attended with sufficient doubt to warrant its being reconsidered?

(b) Would substantial injustice result if leave was refused, supposing the decision to be wrong?

See Re an application for leave to appeal by Insurance Australia Ltd [2017] ACTCA 57 at [10], Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 (Capital Property), More Than a Morsel Pty Ltd v Dean [2003] ACTCA 9 at [4].

43․In Capital Property Projects (ACT) Pty Ltd v Australian Capital Territory Planning & Land Authority [2008] ACTCA 9; 2 ACTLR 44 at [28], Refshauge J set out principles that guide the decision as to whether to grant leave and in Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36; 269 FLR 182 at [13], his Honour identified additional principles. They can be summarised as follows:

(a) that leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;

(b) that a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion; and

(c) that decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave.

(d) the party seeking leave bears the onus of satisfying the Court of the necessary criteria to justify the grant of leave;

(e) the Court will ordinarily grant leave where the decision is wrong and prejudice (sometimes referred to as “substantial prejudice”) will be suffered by the appellant;

(f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is “attended with difficulty and [its] correctness is open to dispute” (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and

(g) it may be a factor favouring the grant of leave that:

(i) the decision involves a matter of public importance; or

(ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.

44․I will apply these principles.

45․The grant of leave concerns the decision to refuse Dr Quach leave to represent the plaintiff under sub-r 30(4)(b). The interlocutory decision was discretionary and consequently, as Kitto J stated in Australian Coal and Shale Employees’ Federation v Commonwealth [1953] HCA 25; 94 CLR 621 at 627:

[T]here is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong.

46․As has been identified the Amended Notice of Appeal identifies the ground of appeal as the decision of the Registrar being contrary to the decision of Mossop J. The “Case Summary” included as part of the Amended Notice of Appeal identifies that in determining the outcome Mossop J relied on Manny v David Lardner & Associates (No 2) [2019] ACTSC 86; 135 ACSR 316 (‘Manny’). It is plain that his Honour referred to the principles articulated by McWilliam AJ (as her Honour then was) in Manny. Indeed it was correct of him to do so.

47․While the error or errors asserted by Dr Quach are unclear, I have undertaken an examination of the careful reasons of Mossop J underpinning the exercise of his discretion in relation to the leave sought by Dr Quach. After identifying the principles articulated in Manny at [50]-[52] his Honour went on to comprehensively apply them. Again, this approach was correct. Having extracted the relevant part of the decision of his Honour at [8] I do not intend to reproduce the reasons again here in detail. It is sufficient to observe that his Honour carefully considered the nature and complexity of the proceedings, the nature of the claim as set out in the originating application, the impact on the court and the defendant of the formulation of the claim and the impact of the absence of a solicitor representing the plaintiff in the proceedings.

48․There is no apparent error in the application by his Honour of the relevant principles articulated in Manny. There is no assertion that he failed to take account of a particular matter. Indeed it seems to me his Honour was at pains to consider the matter comprehensively and in fine detail. Any difference between the reasoning of the Deputy Registrar and that of his Honour does not amount to an error in his Honour’s reasoning. There is no basis to find that the decision of Mossop J was “attended with difficulty, and [its] correctness…open to dispute”: Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; 33 FCR 397 at 400. Indeed in my view, there is no room at all for debate and the decision was entirely correct.

49․The correctness of the view taken by Mossop J of the result of leave being granted to Dr Quach to appear for the plaintiff in the substantive proceedings is reinforced by the conduct of the proceeding in the Court of Appeal. This is in circumstances where the reasons of Curtin AJ clearly identified matters for Dr Quach’s further consideration if he wished to advance his position, including reference to the question of leave. As I have identified, Dr Quach appeared confused about the nature of the proceeding in this Court which ultimately concerned a fairly straightforward question about whether leave is required on an issue that was plainly procedural or interlocutory. This is only a further example of why the involvement of a solicitor is prudent, if not entirely necessary, in this case.

50․To this may be added the fact that the Rules, both in relation to who may represent a party and the need for leave to be granted to appeal interlocutory decisions, serve s 5A of the Court Procedures Act 2004 (ACT). Section 5A clearly sets out that the main purpose of the civil procedure provisions is to ensure that the business of the Court is conducted as efficiently as the nature of the case allows, in pursuit of resolving only the genuine issues in dispute.

51․For those reasons, I would refuse the grant of leave to appeal.

52․Accordingly, I make the following orders:

(1)The Amended Notice of Appeal is struck out.

(2)The appellant is to pay the respondent’s costs of the application.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor.

Associate:

Date: 4 October 2023