Burnett v FitzGerald and Browne - [2015] TASSC 51

[2015] TASSC 51

COURT: SUPREME COURT OF TASMANIA

CITATION: Burnett v FitzGerald and Browne [2015] TASSC 51

PARTIES:  BURNETT, Gail
  v
  FITZGERALD, Anthony
  BROWNE, Roland

FILE NO:  1066/2014
DELIVERED ON:  30 October 2015
DELIVERED AT:  Hobart
HEARING DATES:  19, 20 October 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Appeal – Practice and procedure – Tasmania – Powers of court – Generally – Discontinuance – Setting aside notice of discontinuance – Power to set aside notice – Relevant factors.

R v Moore [1957] 1 WLR 841; [1957] 2 All ER 703, considered.
R v McRae [2013] SASCFC 89, referred to.
Aust Dig Appeal [388]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondent:  C Gunson
Solicitors:
             Applicant:  In person
             Respondent:  FitzGerald & Browne

Judgment Number: [2015] TASSC 51
Number of paragraphs: 59

Serial No 51/2015
File No 1066/2014

GAIL BURNETT v ANTHONY FITZGERALD and ROLAND BROWNE

REASONS FOR JUDGMENT PEARCE J

30 October 2015

The application

This is an application to set aside a notice of discontinuance of an appeal to this Court from the decision of a magistrate in a minor civil claim.
On 20 November 2014 a magistrate, Mr S Mollard, ordered judgment against the applicant, Gail Burnett, for the respondents in a minor civil claim. The respondents are legal practitioners. They brought a claim against the applicant in the Magistrates Court Civil Division for $4,559.42 for unpaid professional costs and disbursements. After a hearing, the magistrate ordered judgment for the full amount of the claim. He dismissed the applicant's counterclaim for return of $1,500 she had paid to the respondents' trust account. On 8 December 2014 the magistrate made a costs order in favour of the respondents. The applicant appealed the magistrate's decisions. She filed a notice of appeal on 15 December 2014. The appeal was set down for hearing on 30 July 2015 before Porter J. On 29 July 2015, the day before the hearing of the appeal, a solicitor then acting for the applicant filed a notice in these terms:
"TAKE NOTICE that the Appellant wholly discontinues this appeal."
The applicant now applies to set aside that notice of discontinuance and have her appeal reinstated.

Statutory provisions

Because the amounts claimed in the Magistrates Court did not exceed $5,000 it was a minor civil claim under the Magistrates Court (Civil Division) Act 1992, s 3. It was to be determined in accordance with Div 4 of Pt 5 of that Act. Thus, by s 31AB, the Court was not bound by the rules of evidence, could inform itself on any matter in any manner that it considered appropriate, could conduct the hearing in an inquisitorial manner, and was to conduct the proceeding "with as little formality and technicality, and with as much expedition, as the requirements of this Act, the rules of court and a proper consideration of the issues in dispute permit."
Parties aggrieved by an order of the Magistrates Court may appeal to a judge of the Supreme Court. Different appeal provisions apply to minor civil claims. Section 28(2) provides that a party to a minor civil claim may appeal:
"(a)on one or more of the following grounds:
(i) that the magistrate lacked jurisdiction or exceeded his or her jurisdiction;
(ii) that the party was denied natural justice in the course of proceedings; or
(b)if a judge of the Supreme Court grants leave, on any other ground."
On an appeal under s 28(2), the judge may make any orders he or she considers appropriate in the circumstances: s 28(3).
Discontinuance of an appeal is permitted by the Supreme Court Rules 2000, r 675, which is applied to appeals from inferior courts by reason of r 682(4). Rule 675 provides:

"675 Appellant may have appeal dismissed
(1) An appellant who does not prosecute an appeal is not taken to have abandoned the appeal until that appellant has filed with the Principal Registrar and served on the respondent a notice of discontinuance.
(2) A notice of discontinuance is to be in accordance with the prescribed form.
(3) On the filing and service of a notice under subrule (1), the appeal is taken to be dismissed with costs."

By operation of this rule, on the filing by her then legal practitioner of the notice of discontinuance on 29 July 2015, a state of affairs came into existence whereby the applicant's appeal was taken to have been dismissed.

The Magistrates Court proceedings

In mid-2012 the applicant engaged the second respondent, Mr Browne, a member of the law firm conducted by the respondents, to advise her about a potential claim for damages for personal injury. The applicant claimed to suffer respiratory disease caused by emissions from brickworks near her house. In February 2013 the respondents sent a tax invoice for professional services and disbursements for $4,559.42. The account was not paid. The applicant's case was, in part, that she had agreed with Mr Browne that the cost of the work he was engaged to do was limited to $1,500. Proceedings for recovery of the bill were commenced. The hearing commenced on 16 April 2014. It was a lengthy hearing and occupied court time over four separate days between 16 April and 8 October 2014. The magistrate produced written reasons for his decision on 19 November 2014.
Throughout the Magistrates Court hearing the applicant was unrepresented.
The order for judgment against the applicant was made on 20 November 2014. On 8 December 2014 the magistrate ordered that the applicant pay the respondents' costs of the claim and counterclaim on a solicitor client basis, and made an order as to the hourly rate at which the claimants' bill was to be drawn.

The appeal

On 15 December 2014 the applicant filed a notice of appeal against the magistrate's decisions. She was unrepresented when she filed the appeal and in the initial stages of the prosecution of the appeal. Her original grounds, as they appeared in the notice, were:
"1The Appellant was denied natural justice.
2The Magistrate discriminated against me on Medical Health reasons.
3The Magistrate did not allow me to have my daughter assist me.
4The Magistrate discriminated against me as I wasn't allowed a Lawyer to represent me.
5The Magistrate failed to tell me I was able to make application to have a Lawyer represent me.
6The Magistrate erred in fact and / or law in making his determinations.
7The Magistrate said that a civil defendant has problems complying with Browne and Dunn rules of evidence, including Evidence in chief and responses to documents / allegations. And small claims was meant to be by nature of an enquiry but ran the case as per Browne and Dunn.
8The Magistrate did not remain impartial."
Procedural directions in the appeal were made by the Associate Judge on 2 February 2015, including for preparation and filing of appeal books. On 21 April 2015 the Associate Judge ordered that the appeal be set down for hearing with an estimated hearing time of two days. The appeal was listed to commence before Porter J on 30 July 2015. On 14 July 2015 the applicant instructed a solicitor, Mr Fernandez, after having first met with him on 7 July 2015. Counsel, Mr Garth O'Rafferty, attended the 7 July 2015 meeting and was also engaged. Mr Fernandez and Mr O'Rafferty were engaged to "assess prospects, prepare for trial, do papers and appear at hearing". The applicant says that "they told me in writing that my case had merit".
On 16 July 2015 Mr Fernandez filed and delivered an amended notice of appeal containing six grounds:
"1 Upon a grant of leave pursuant to s28(2)(b) of the Magistrates Court (Civil Division) Act 1992 (Tas), that the Learned Magistrate erred in law in finding that 'It had always been that the defendant was obliged to fund both fees and disbursements until a decision was made for the lawyer to be retained on a no-win, no-fee basis'.
2   Upon a grant of leave for the admission of fresh evidence (telephone recording), that a finding should now be made that the parties made an oral agreement on 30 July 2012 by telephone limiting the respondent's professional fees to $1,000.00 in total.
3   That the Appellant was denied natural justice in the course of proceedings before the Learned Magistrate when His Honour refused or failed to permit the Appellant any real opportunity to explain why she needed some assistance to present her case properly.
4   That the Appellant was denied natural justice in the course of proceedings before the Learned Magistrate when His Honour refused to allow the Appellant's daughter to sit beside her and take notes at the bar table to remind the Appellant of matters relevant to the proceeding.
5   Upon a grant of leave for the admission of fresh evidence of the Appellant's medically diagnosed short term memory problems, the Learned Magistrate denied the Appellant natural justice when His Honour refused to allow the Appellant's daughter to sit beside her and take notes at the bar table to remind the Appellant of matters relevant to the proceeding.
6 Upon a grant of leave pursuant to s28(2)(b) of the Magistrates Court (Civil Division) Act 1992 (Tas), that the Learned Magistrate erred in law in exercising his discretion to award costs to the Respondent on an indemnity basis in the context of a minor civil claim."
On 20 July 2015 Mr Fernandez filed the applicant's appeal contentions. The respondents filed contentions on 27 July 2015. On 29 July 2015 the notice of discontinuance, prepared and signed by Mr Fernandez, was filed with the Court. The applicant says that the notice of discontinuance should be set aside and her appeal re-instated. The precise factual basis of her application is not entirely clear, but in substance it is that:
(a)the notice was filed without her instructions;
(b)alternatively, if what she did and said on 29 July 2015 amounted to an agreement or assent to the filing of the notice, then that agreement or assent resulted from being unduly pressured or overborne by her advisors.
The applicant's claims arise from the events of 28 and 29 July 2015, including a phone conversation between Ms Burnett and Mr Fernandez on 28 July 2015, a meeting between Mr Fernandez, Mr O'Rafferty and Ms Burnett on 29 July 2015 and the exchange of emails on those days, both before and after the filing of the notice. I heard evidence about those facts. The version of those events given by Mr Fernandez and Mr O'Rafferty is quite different to the version given by the applicant. Resolution of this application requires findings about the disputed facts, consideration of the nature and extent of the power to set aside a notice of discontinuance of the appeal and the application of the facts, as found, to the exercise of the power.

Filing the notice of discontinuance

Considerable dispute attends the circumstances which led to the filing of the notice of discontinuance. Ms Burnett gave affidavit and oral evidence about those circumstances and was cross-examined. By squarely raising, in her evidence in support of her application, the conduct of and advice given by Mr Fernandez and Mr O'Rafferty to her on 28 and 29 July 2015, she acted inconsistently with a claim for legal professional privilege in those communications: Evidence Act 2001, s 122(2). The privilege was thereby waived: Benecke v National Australia Bank (1993) 35 NSWLR 110; Mann v Carnell (1999) 201 CLR 1. Accordingly, Mr Fernandez and Mr O'Rafferty gave evidence for the respondents.
The learned magistrate did not accept the evidence of the applicant that Mr Browne had agreed to limit his costs to $1,500. During the hearing before the magistrate the applicant did not adduce evidence of an audio recording she made of a conversation with Mr Browne on 30 July 2012 which evidences the agreement she alleges. According to Mr Fernandez, the applicant first instructed him that she did not adduce the evidence to the magistrate because she had forgotten about it, only having remembered it after the magistrate made his decision. For that reason, one ground of the amended grounds of appeal refers to the proposed admission of "fresh evidence" of the phone recording. Another ground of appeal refers to the refusal of the magistrate to permit the applicant's daughter to sit with her at the bar table to "remind the Appellant of matters relevant to the hearing". Mr Fernandez had been instructed by the applicant that she has "short term memory problems". It was to be contended that, had the magistrate permitted the applicant's daughter to sit with her during the hearing, her daughter would have reminded her of the existence of the recording. On 28 July 2015 Mr Fernandez sent an email to the applicant which included advice that "if the evidence, especially the recording, is admitted, you stand a very good chance of success".
During the afternoon of 28 July 2015 Mr Fernandez spoke to the applicant on the phone. He gave evidence that, in the course of that conversation, the applicant's instructions about why evidence of the recording of the phone conversation with Mr Browne was not produced at the hearing changed. According to Mr Fernandez, the applicant then instructed him that she had decided not to tender the recording during the hearing because of her fear that the recording was unlawfully made. Mr Fernandez also said that, when he asked her about this, she said something like "well, I shouldn't say that then". Mr Fernandez formed the view that these instructions differed from her earlier instructions that she had forgotten about the recording, and that she had tailored her instructions to suit her case. Concerned about the legal and ethical implications for him, and for counsel, of what he said he had been told, Mr Fernandez asked Ms Burnett to attend a meeting at his office on the following morning. He also sought advice from Mr O'Rafferty. Ms Burnett did not accept that she had changed her instructions to Mr Fernandez. She contends he misunderstood their conversation. It seemingly being her practice to record phone conversations, she told Mr Fernandez that she had also recorded her conversation with him, and that the recording would show that she had not changed her instructions. Mr Fernandez asked for a copy of the recording of her conversation with him to be sent to him. It was not sent until the following morning.
Mr O'Rafferty prepared a memorandum of advice dated 28 July 2015. It is directed to whether Ms Burnett could satisfy the test for admission of "fresh evidence". The memorandum concluded with a recommendation that the "only prudent course" is to advise discontinuance of the appeal, "with the usual order for party/party costs, taxed or agreed". The memorandum also indicated that "If the advice is not accepted, instructing solicitors should consider terminating the retainer and ceasing to act."
Ms Burnett attended the meeting with Mr Fernandez and Mr O'Rafferty at 10am on 29 July 2015. She said that she thought the meeting was to "prepare for" the appeal. By that time Mr O'Rafferty had listened to at least some of the recording of the phone conversation. What he heard did not cause him to alter his advice. On the applicant's arrival Mr Fernandez gave her a copy of Mr O'Rafferty's memorandum of advice. She read at least the initial part of it. It became apparent to her what was being recommended. The meeting lasted about two hours. There is no dispute that in the course of that meeting both Mr Fernandez and Mr O'Rafferty advised discontinuance of the appeal, on the further basis that if that advice was not accepted then they would not continue to represent her. Mr O'Rafferty gave evidence that he went through his advice with the applicant in a detailed way, explaining the basis for it. He said that he questioned Ms Burnett as if he was cross-examining her about the reason the evidence of the recorded phone conversation with Mr Browne had not been adduced. He thought that her answers were evasive and that her explanation again changed, and he formed the opinion that on any view of the facts the appeal would fail.
The substance of the evidence of Mr Fernandez and Mr O'Rafferty is that in the course of the conference Ms Burnett accepted their advice to discontinue the appeal. Both said that the advice was accepted and that Ms Burnett instructed Mr Fernandez to discontinue the appeal. Mr O'Rafferty said that the applicant accepted the advice reluctantly and that she "seemed resigned to the fact that there was nothing else to be done". He believed that she understood his advice, but "didn't like it". He remembers discussing with Ms Burnett that discontinuance would put an end to the appeal, and that Mr Fernandez advised her that she would "have to pay Mr Browne's party/party costs". He explained that it was a "fait accompli" that she would have to pay the costs. Although he could not recall the precise words the applicant used, she said something like "OK we'll discontinue". While they were together in Mr Fernandez's office, the applicant instructed Mr Fernandez to send an email to Mr Browne to attempt to resolve the appeal.
Mr Fernandez's evidence of the meeting with Ms Burnett is consistent with that of Mr O'Rafferty. He said that the result of the conference with Ms Burnett was that she instructed him to discontinue the appeal but, before doing so, to attempt to "protect her position as to costs". He agreed that he told Ms Burnett that if she wanted to make a complaint to the Legal Profession Board about Mr Browne, he would help her, and that the Board had power to award compensation if it found any unprofessional conduct on his part.
At 11.36am on 29 July Mr Fernandez sent an email to Mr Browne in the following terms:
"I will be meeting with Ms Burnett shortly and have asked her to consider resolving the matter with you. Do you have any proposal I may put to her to attempt to resolve this matter without the need for a contest tomorrow."
Mr Fernandez sent a copy of the email to Ms Burnett's email address, but there is no dispute that when that email was sent she was still in his office. There is no evidence of a response from Mr Browne. At 12.24pm a further email was sent by Mr Fernandez to Ms Burnett:
"As per your instructions Gail:
1 At 12.50 pm I will send an offer to RB proposing a discontinuance with no order as to costs; and if not accepted
2 At between 3-4 pm I will discontinue the proceeding."
At 12.54 pm Mr Fernandez sent an email to Mr Fitzgerald and Mr Browne in these terms:
"I have now spoken to my client at length in an attempt to resolve this matter. She is willing to discontinue the proceeding with no order as to costs. Please advise me if that is acceptable to your firm by 2.15 pm today."
A copy of that email was sent to the applicant at 12.57pm with a covering email saying "Sent in accordance with your instructions".
At 1.25pm Mr Browne responded to Mr Fernandez by email with a counter proposal, also giving notice of a claim for costs on a solicitor and client basis. That email was sent to the applicant at 1.36pm with a covering email as follows:
"Dear Gail,
Please see his response and rejection of our offer. I will now counter offer discontinuance with costs payable on a party and party basis."
At 2pm Mr Fernandez sent an email to Mr Browne with a further proposal and foreshadowing the filing of a notice of discontinuance, and a dispute about the entitlement to a special costs order. At 2.18pm Mr Fernandez emailed the applicant again with a copy of his email to Mr Browne:
"Consistent with my instructions Gail, see my response to Roland Browne. I doubt he will accept given his attitude to date. If he does not accept I will file the discontinuance as instructed."
Mr Fernandez prepared, signed and filed the notice of discontinuance at around 3pm on 29 July 2015. He asked that some time be allowed by the judge on the following morning for argument about costs. He sent an email to the Court at 3.29pm confirming the filing. He sent a copy of that email to Mr O'Rafferty and the applicant at 3.35pm.

There is no evidence of any communication from Ms Burnett to Mr Fernandez, after the applicant left Mr Fernandez's office at around midday on that day, until she sent him an email at 8.01pm that evening. The email says:
"So what does all that mean? What reason have you given for discontinuance? So if I get it right I can apply to LPB to get all the costs back?"
Mr Fernandez responded at 8.55pm. He said, in part:
"We explained all of the ramifications in our over 2 hour conference. I reply in brief again. We discontinued on your instructions …".
The appeal came before Porter J on the following day, 30 July 2015. Mr O'Rafferty appeared. Counsel for the respondents applied for a special costs order and other procedural orders. The record of proceedings indicates nothing to indicate derogation from the discontinuance. However on 3 August 2015 the applicant filed a notice that she intended to act in person. By interlocutory application dated 5 August 2015 she applied for a stay of proceedings. Then, on 10 August 2015, she filed with the Court a notice in these terms:
"NOTICE OF WITHDRAWAL OF DISCONTINUANCE OF APPEAL
Take notice that the appellant seeks leave of the court to withdraw the discontinuance of this appeal file on 29 July 2015. And for the appeal to be reinstated or for the notice of discontinuance to be withdrawn as a nullity." [sic]
On 10 August 2015 Porter J ordered that the interlocutory application filed 5 August 2015 be amended to include the following application:
"That the notice of discontinuance dated and filed 29 July 2015 be set aside and the appeal be reinstated".
The applicant has a substantially different version of the events of 28 and 29 July 2015. Her position is summarised in the following extract from her affidavit:
"At no point did ask for discontinuance [sic], nor did I voluntarily approve, authorise, or sign the discontinuance. In fact I left saying I wanted to continue and didn't still understand why they wouldn't…I grudgingly after 2 hours of harassment said so is there any other choice? They said no."
The applicant maintains that the advice she received to discontinue was based on a misapprehension by Mr Fernandez about what she had told him during their phone conversation of 28 July 2015. She says that she did not tell Mr Fernandez that she decided not to produce the recording of her conversation with Mr Browne at the hearing. She says that she did not remember the recording until early in 2015 when she was typing for herself a transcript of the audio recording of the Magistrates Court hearing from a disc sent by the Court after the hearing. She says she told Mr O'Rafferty this on 29 July 2015. The applicant's evidence about the way in which the conference then proceeded is:
·     Mr O'Rafferty and Mr Fernandez were mistaken in that they believed that she had given them advice which differed from her previous advice;
·     Mr O'Rafferty and Mr Fernandez were "not prepared for the appeal and instead used the time to pressure me into discontinuance";
·     the conference turned into a "two hour session of harassment/duress by Leonard and Garth sitting in a hot room while they yelled at me, Leonard at one stage was snarling at me, bombarding me with questions";
·     "Mr O'Rafferty and Mr Fernandez were both quite hostile and aggressive";
·     that they gave her two choices, either going to court for a hearing the next day "by myself on their amended appeal issues", or discontinuing.
The applicant maintained that, as to the recommendation for discontinuance, she was told by Mr Fernandez that if the appeal was discontinued, there would be no proceeding on which a costs order could be made against her, and that Mr Fernandez would write to the Legal Profession Board with a complaint, on her behalf, with a view to having the money that she had paid to Mr Browne returned to her. She accepted, in cross-examination, that she understood that the filing of a notice of discontinuance would bring the appeal proceedings to an end. In her evidence, the applicant consistently maintained that she did not "voluntarily, authorise the filing of a notice of discontinuance", but said that she instructed Mr Fernandez by using the words, "I suppose I have no choice".

Findings about disputed evidence

I would first make some general observations about Ms Burnett's evidence. Apart from the brief period during which she was represented by Mr Fernandez, the applicant has represented herself throughout the proceedings in the Magistrates Court and in the Supreme Court. She has strong views about the correctness of her own position. She firmly maintains her opinion about the merits of her case in the Magistrates Court, despite being unsuccessful in those proceedings. She feels unjustly dealt with by Mr Browne and by the magistrate. She was at a disadvantage in the Magistrates Court because the other party to the proceedings was a legal practitioner. It is natural that a person in her position is less familiar with the legal, procedural and evidentiary requirements of court proceedings. The same applies to the proceedings in this Court. During this application she has not only been faced with the difficult situation of, in the face of opposition by experienced counsel, having to present her own evidence and be cross-examined, and also cross-examine witnesses who are legal practitioners. The training and experience of legal practitioners gives a particular advantage in giving evidence. Legal practitioners are naturally more able to cope with the court room situation, and evidence given by them will commonly be more impressive as a result. Allowance should be made for all of those factors. At the same time I have concluded that the applicant's determination to vindicate her position has affected her insight into the issues in the case, and reduces my confidence in her ability to accurately recall and recount events. Her perception of events is coloured by the opinions and beliefs she holds. When cross-examined she frequently failed to answer straightforward questions directly and she was argumentative and evasive. Her evidence was at times inconsistent. It is to be contrasted with the evidence of Mr Fernandez and Mr O'Rafferty. Mr Fernandez also gave me the impression of being a strong personality. He spoke in a forceful and assertive way. His manner is relevant to my consideration of the issues in the application and to Ms Burnett's evidence about the conference on 29 July 2015. However, the substance of Mr Fernandez's evidence was careful and precise. Moreover, Mr O'Rafferty impressed me as fair, accurate, measured and considered. I regard him as a very reliable witness. The evidence of Mr Fernandez and Mr O'Rafferty was consistent. For those reasons I prefer the evidence of Mr Fernandez and Mr O'Rafferty whenever it is in conflict with the evidence of the applicant.
It is clear to me, and I so find, that the applicant instructed Mr Fernandez to discontinue the appeal. She decided to do so. There are other reasons why I prefer the evidence of the respondents' witnesses to that effect. That conclusion is the only reasonable inference to be drawn from all of the circumstances. It is consistent with the objective circumstances and with the documents. It is inconceivable that Mr Fernandez, with the knowledge of Mr O'Rafferty, would have filed the notice if he had been instructed not to do so. He sent a series of emails to the applicant in the period of three hours or so before the notice was filed, confirming his intention to file the notice. The applicant claimed to have gone to bed and not seen those emails. I do not accept that evidence. Even after the notice was filed the correspondence from the applicant contained no suggestion that the notice had been filed either without her instructions or contrary to her instructions. She asked whether she should attend court the following day when there was to be argument about costs without expressing any concern about the filing of the notice, and by making suggestions about the costs issue.

Power to set aside a notice of discontinuance of an appeal

The right of appeal is a right created by statute. An appeal is not a common law right and the creation of a right of appeal is an act which requires legislative authority: Lacey v A-G (Qld) (2011) 242 CLR 573. It follows that appeals, once instituted, are controlled by the statute which creates the right. The terms of that statutory grant will determine the nature of the appeal and consequential matters. These matters include the susceptibility of orders, made by the court in its appellate jurisdiction, to re-opening after they have been entered: DJL v Central Authority (2000) 201 CLR 226. The rule is that restated by Barwick CJ with respect to the New South Wales Court of Appeal in Bailey v Marinoff (1971) 125 CLR 529 at 530:
"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed."
Although the filing of the notice of discontinuance does not lead to the making of an order, the terms of r 675 mean that on filing and service of the notice the appeal is "taken to be dismissed with costs". It is unnecessary that a court document be prepared perfecting an order. That effect is achieved by the notice itself. There is no statutory power to set aside the effect of such a step.
There is, however, a line of authority, deriving principally from cases concerning criminal appeals, to the effect that the Court has inherent jurisdiction to set aside a discontinuance or abandonment of proceedings. In Grierson v The King (1938) 60 CLR 431 the High Court held that the New South Wales Court of Criminal Appeal did not have jurisdiction to reopen an appeal which had been heard on the merits and finally determined. At 436-437, Dixon J pointed out a distinction between a determination on the merits and abandonment operating as a dismissal:
"If the prisoner has abandoned his appeal, the Court of Criminal Appeal in England will exercise a discretion to enable him to withdraw his notice of abandonment, notwithstanding that it operates as a dismissal of the appeal ... But in such a case there has been no determination by the court, and there is no English case in which, after such a determination, an appeal has been reopened or a fresh appeal has been entertained."
The authority most frequently cited for the existence of the inherent jurisdiction is R v Moore [1957] 1 WLR 841 at 842; [1957] 2 All ER 703 at 703. In that case the English Court of Criminal Appeal referred to a power to set aside a discontinuance or abandonment, but only if the act constituting the discontinuance or abandonment was a nullity in the eyes of the law by reason of fraud or mistake. The Court said:
"There have been from time to time, indeed from quite early days in the history of the court, applications for leave to withdraw a notice of abandonment, and it is exceedingly difficult to understand what power the court has to give leave to withdraw a notice of abandonment, considering that by the Rules of 1908, which have the force of a statute, the appeal has been dismissed. An examination of the cases has shown that, except in one case at any rate, the court has only allowed notice of abandonment to be withdrawn if they are satisfied that there has been some mistake. No doubt if a case could be made out that a prisoner had in some way or another been fraudulently led or induced to abandon his appeal, the court in the exercise of its inherent jurisdiction would say that the notice was to be regarded as a nullity; but where there has been a deliberate abandonment of an appeal, in the opinion of the court there is no power or right to allow the notice of abandonment to be withdrawn and the appeal reinstated, because the appeal having been dismissed the court has exercised its powers over the matter and is functus officio."
The English Court of Appeal returned to the question in R v Medway [1976] QB 779. In that case, it said at 798:
"The answer to the first question which we have to decide depends upon whether alongside the jurisdiction which undoubtedly ... exists to give leave to withdraw an abandonment where it is shown that circumstances are present which enable the court to say that that abandonment should be treated as a nullity, there coexists an inherent jurisdiction, in other special circumstances, enabling the court to give such leave. We are satisfied and hold that there is no such jurisdiction. In our judgment the kernel of what has been described as the 'nullity test' is that the court is satisfied that the abandonment was not the result of a deliberate and informed decision; in other words, that the mind of the applicant did not go with his act of abandonment."
That line of authority has been applied in criminal cases in Australia. There is, however, also authority to suggest that the power extends beyond cases of fraud or mistake, and permits a superior court to set aside discontinuance of a proceeding in the interests of justice, or to avoid a miscarriage of justice. This approach was adopted by the Court of Appeal in Victoria in Tognolini v The Queen(No 2) [2012] VSCA 311, a case dealing with withdrawal of a notice of abandonment of a criminal appeal. The authorities were reviewed by the Court of Criminal Appeal in South Australia in R v McRae [2013] SASCFC 89, again a case dealing with withdrawal of a criminal appeal. In my view civil cases involve somewhat different considerations. In FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, Gaudron J referred to the passages from the judgment of Barwick CJ in Bailey v Marinoff, set out above, and drew a distinction between cases in which commencement of fresh proceedings is possible. At 288 she said:
"The passages above quoted invite two comments. First, in so far as Barwick CJ considered that a power to reinstate a proceeding would not promote the administration of law or justice, a distinction should, I think, be made between orders operating by way of final determination of the matters in issue and orders dismissing proceedings but leaving it open to a party to commence fresh proceedings. ...
Where an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings."
If those statements are to be applied then a court may be more inclined to find a power in the case of discontinuance of an action in respect to which fresh proceedings may be commenced, than in the case of an appeal, resolution of which is a final determination. In this case it is unnecessary for me to finally determine whether an inherent power exists, and if so, the nature and extent of such a power. That is so because, assuming the law most favourable to the applicant, that is, that there is an inherent power to set aside the notice in the interests of justice, I do not consider that the circumstances warrant the exercise of such a power in the applicant's favour.

Should an inherent jurisdiction be exercised in the applicant's favour?

In light of my findings about how the notice of discontinuance came to be filed in this case, there is no basis to conclude that the notice should be set aside as a "nullity" in the sense contemplated in R v Moore and the authorities which apply it. This was the deliberate abandonment of the appeal. There was no mistake or fraud. Ms Burnett understood the nature and effect of the filing of a notice of discontinuance. She understood that it would bring the appeal to an end. Accepting her assertion that she was unhappy with the advice given to her at the time it was given, but felt that in the circumstances in which she found herself she had no other choice but to accept it, there is no factor which would justify the Court in saying that the notice was a nullity.
It remains to consider whether, assuming that the inherent jurisdiction may be exercised in the interests of justice, the power should be exercised on that basis in this case. As I have already indicated, the cases suggesting a power to set aside an abandonment or discontinuance of an appeal derive from the criminal jurisdiction. In such a case where a power has been exercised, the court takes into account such factors as:
·     how the notice came to be filed;
·     the merits of the proposed appeal;
·     prejudice to the adverse party.
I can find no case dealing with the exercise of inherent jurisdiction to set aside a notice of appeal in the civil jurisdiction. To my mind, it involves the factors to which I have referred, but also introduces other considerations, the principal of which is the desirability of the finality of proceedings. The nature of the civil jurisdiction under consideration is also a relevant, and in this case, an important consideration.
I am quite satisfied that the applicant made a voluntary and informed decision to instruct her solicitor to discontinue the appeal. I have included in my consideration of her position that she had been told that her solicitor and barrister did not intend to continue to act for her if the appeal was not discontinued. She says she felt unable to continue on her own. She says that she was not advised to, and did not think that she could, apply for an adjournment. There is little doubt that withdrawal of her lawyers would have placed her in a weaker position. However, from my own observations of her, I do not accept her evidence that she felt she was left without any choice. I find that her lawyers applied pressure on her to settle the appeal, with a genuine and proper belief that such a course was in her best interest. The basis of the advice was explained to her. She was persuaded to accept the advice she was given, but not coerced. The final choice was hers. I find that she subsequently became dissatisfied with the decision she reluctantly made, and has convinced herself that she was unduly pressured to that position.
I regard her appeal as having little merit. As I was invited by the parties to do, I have looked at the appeal books. The evidence before me indicates that the advice the applicant received was that her prospects of success depended substantially on the "fresh evidence" ground. Consideration of the remaining grounds clearly reveals why that may be so. Grounds 3, 4 and 5 of the amended grounds assert that the magistrate denied natural justice in "failing to provide any real opportunity to explain why she needed some assistance to present her case properly", and by "refusing to allow her daughter to sit beside her and take notes". Neither ground reveals a breach of natural justice which discloses any realistic prospect of success on appeal, even if further evidence about the applicant's "short term memory loss" is admitted as contended by ground 5. The remaining grounds all require leave: Magistrates Court (Civil Division) Act, s 28(2)(b). I have not been referred to any authority which gives guidance as to the factors relevant to the grant of leave. The requirement for leave indicates that there should be circumstances which justify the departure from the ordinary rule that there is no appeal. The nature of the jurisdiction appealed from is an important consideration. Appeals from the minor civil division of the Magistrates Court are limited because the purpose of the jurisdiction is for the expeditious and inexpensive disposition of disputes involving small amounts of money without undue formality. The obvious legislative intention is to avoid cost and delay. The legislative intention is defeated if leave is granted to appeal on grounds which involve no obvious error leading to substantial injustice, or no important matter of principle. Ground 1 refers to an error of law but is a challenge to a finding of fact open to the magistrate. No appeal should be permitted on such a ground. Even if I am wrong about that, the error asserted is not such as to justify the grant of leave.

I next deal with the fresh evidence ground. Again, it requires the grant of leave to be considered in light of the factors I have already referred to. As an attempt to introduce further evidence about facts determined at the hearing of a minor civil claim, the grant of leave was unlikely. There was considerable evidence at the hearing of this application about whether Mr Fernandez was correct to conclude that Ms Burnett's advice about the recording changed when she spoke to him on 28 July 2015. A copy of the audio recording of the conversation with Mr Fernandez was tendered. I have listened to it. I find the contents of it ambiguous. When discussing the recording the applicant said, "I thought I would be charged and sent to gaol basically". Mr Fernandez took the applicant to be referring to her state of mind at the time of the hearing. I am not certain of its meaning in the context of the conversation as a whole. It is possible that Ms Burnett may have been referring to her state of mind at a later time. However, the question of which version of that conversation is correct is, in my view, something of a distraction from the principal issue. There is no doubt that during the meeting, for whatever reason, Ms Burnett was given firm advice that she should discontinue the appeal. It is plainly apparent to me, as I have already found, that the applicant was well aware that Mr Fernandez was to file a notice of discontinuance of the appeal and that, based on the advice she had been given, she had instructed him to do so.
I do not think it matters much, one way or another, whether her instructions changed. In my view, the applicant was unlikely to establish that the evidence of the taped phone conversation was admissible on appeal: Council of the City of Greater Wollongong v Cowen (1955) 93 CLR 435. It existed at the time of the hearing. The applicant knew about it. I regard her evidence that she forgot to adduce it at the hearing as incredible, and unlikely to have been accepted by the appeal court. It is to be recalled that the hearing before the magistrate extended over four separate days over a period of some months. It is unlikely in the extreme that Ms Burnett would have "forgotten" about evidence of such importance during that entire period. She had ample opportunity during periods of adjournment to reflect on her position. The terms of the amended appeal grounds corroborate the evidence of Mr Fernandez and Mr O'Rafferty that, when first instructed, they were told that had the applicant's daughter been able to sit at the bar table during the hearing before the magistrate, her daughter could and would have reminded her of the existence of the phone conversation recording so it could have been tendered. It was clear in Mr O'Rafferty's mind that this was the gravamen of the other ground of appeal to which I have referred. This assumes that the applicant's daughter knew of the phone recording. If Ms Burnett's daughter did know about the recording it does not assist the applicant's position. It is inconceivable to me that, if the applicant's daughter knew of the phone recording, she would not have reminded the applicant of it at some stage over the course of this protracted hearing, whether or not she was permitted to sit at the bar table. I regard the evidence as inconsistent with the evidence of the applicant that she only remembered the recording of the phone conversation after the hearing and the magistrate's decision. The matters to which I have referred tend to show that Mr Fernandez's understanding of what he had been told on 28 July 2015 was correct.
On 26 October 2015, after the hearing of this application was concluded, the applicant applied for leave to re-open her case to adduce further evidence. The ground of her application was, in substance, that she did not "have the ability" to produce the evidence at the hearing because she either did not think of it, or was taken by surprise by the evidence of the respondents' witnesses. She filed affidavits containing the further evidence she wished to adduce. Her daughter swore an affidavit deposing that she has, for many years, known that her mother made audio recordings of some phone conversations, that she was asked to wait outside for most of the Magistrates Court hearing and when in the court "not allowed to talk to my mother". Ms Burnett swore an affidavit. It takes issue with some aspects of the evidence of Mr O'Rafferty and Mr Fernandez about the meeting of 29 July 2015. I refused leave. The evidence is not new. It was available at the initial hearing. The applicant had every opportunity to adduce evidence, and to respond to the evidence adduced by the respondents, at the hearing. More importantly however, the further evidence, if adduced, would make no difference to the conclusions I have reached. As to her own evidence, it was already my understanding that she disputed the evidence of Mr O'Rafferty and Mr Fernandez in the ways she now simply wishes to repeat and emphasise. Her proposed further evidence adds nothing of material substance. The proposed further evidence of her daughter could be relevant in only two ways. First, it may be relevant to the disputed versions of what was said by her to Mr Fernandez and Mr O'Rafferty about her daughter's knowledge of recorded conversations. As I have already explained, I have concluded the resolution of that dispute to be of little or no significance in the determination of this application. Secondly, it may be relevant to the prospects of success of the fresh evidence ground. However, the evidence does not improve the strength of that ground. To the contrary, it reduces the strength of that ground because her daughter's affidavit deposes only to a general understanding that her mother recorded phone conversations, rather than to knowledge of the recording of the phone conversation with Mr Browne.
The merit of the appeal ground concerning the magistrate's costs order has caused me greater hesitation. The Magistrates Court (Civil Division) Act provides, by s 31AF(1), that in a minor civil claim, costs for getting the action up to trial, or by way of counsel fees, are not to be awarded unless:
"(a) all parties to the action were represented by counsel; or
(b)the Court is of the opinion that there are special circumstances justifying the award of costs."
In that jurisdiction the learned magistrate's order was an unusual one. He must have been satisfied that there were special circumstances to justify the special costs order he made. Appeal from that determination faces significant hurdles. First, it requires the grant of leave to which I have already referred. Secondly, it faces all of the usual difficulties faced by parties to litigation who challenge discretionary costs orders. I detect no obvious error of principle in the learned magistrate's determination.
Before me, the applicant contended that her grounds of appeal against the magistrate's decision had been unduly constrained by Mr O'Rafferty's amended grounds. However her original grounds add nothing to the merit of her appeal.
I regard the principle of finality of proceedings as of particular importance in the exercise of the inherent jurisdiction. In circumstances where an appellant decides on the basis of legal advice to file a notice of discontinuance of an appeal, circumstances justifying the setting aside of the notice would be few. Whilst the exercise of an inherent jurisdiction of this nature should not be constrained by statements of formula or definition, the power should be exercised with great caution. That is especially so in civil cases in which the financial and personal interests of the opposing party to the litigation are directly affected. In this case the respondents played no part in the decision to discontinue the appeal. In this case the notice was filed very late in the proceedings, when the minds of both parties were focussed on the outcome of the appeal. Had the notice not been filed then the appeal would have, subject to any application for an adjournment, been heard on the following day. The appeal resulted from a small money claim. The respondents were entitled to conclude that, on the filing of the notice, the appeal was finally determined.

Result and order

I am not satisfied that, assuming an inherent jurisdiction to set aside the notice of discontinuance in the interest of justice, that the power should be exercised in favour of the applicant. The application is dismissed.