Cavar v Commonwealth of Australia as represented by and acting through the Department of Human Services

[2016] NSWCA 312

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Cavar v Commonwealth of Australia as represented by and acting through the Department of Human Services [2016] NSWCA 312
Hearing dates:	14 November 2016
Decision date:	14 November 2016
Before:	Payne JA; Sackville AJA
Decision:	(1) Leave to file the summons out of time refused;  (2) The applicant pay the costs of the respondent of the application for leave to appeal out of time and leave to appeal as agreed or assessedin the amount quantified in $5,000 as a gross sum costs order.
Catchwords:	APPEALS – application for leave to appeal – pleadings stuck out ‑ where summons filed out of time – whether matter raises issue of principle, public importance or injustice
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW) rr 51.9 and 51.10
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Cavar v Department of Human Services (Comcover Insurance & Compensation Department) [2016] NSWCA 195 In the Will of Gilbert (1946) 46 SR (NSW) 318 Tanious v South Eastern Sydney Local Health District [2016] NSWCA 83 Toppro Pty Ltd v Yoo [2016] NSWCA 119
Category:	Principal judgment
Parties:	Celia Cavar (Appellant) Department of Human Services (Comcover Insurance & Compensation Department) (Respondent)
Representation:	Counsel: Appellant in person DH Mitchell (Respondent)   Solicitors: Moray & Agnew Lawyers (Respondent)
File Number(s):	2016/245037
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 19 February 2016 Before: Curtis DCJ File Number(s): 2015/231484

ex tempore Judgment

1. PAYNE JA: On 7 August 2015, the applicant, Ms Cavar, filed a statement of claim in the District Court claiming damages against the Department of Human Services (Comcover Insurance and Compensation Department). (The correct title for the relevant defendant is, apparently, the Commonwealth of Australia as represented by and acting through the Department of Human Services.)

2. In her pleading, the applicant asserted that this comprised the sum of $132,694.00, said to arise from a default judgement allegedly obtained on an earlier occasion and a further $17,670.75 for the alleged misappropriation of insurance monies.

3. On 18 September 2015, the defendant filed a notice of motion in the District Court seeking a summary dismissal of the proceedings, or alternatively, an order that the statement of claim be struck out.

4. On 19 February 2016, the defendant’s motion was heard by Curtis DCJ.

5. On 19 February 2016, his Honour ordered that the applicant’s statement of claim be struck out. His Honour described the statement of claim as “disjointed and barely rational”.

6. On 6 May 2016, the applicant filed a notice of appeal in this Court. Purported amended notices of appeal were filed on 16 and 18 May 2016.

7. On 13 July 2016, the respondent filed a notice of motion seeking that the appeal be dismissed as incompetent.

8. On 1 August 2016, Leeming JA dismissed Ms Cavar’s notice of appeal as incompetent: Cavar v Department of Human Services (Comcover Insurance & Compensation Department) [2016] NSWCA 195 at [7] ‑ [9]. His Honour said, at [7] ‑ [9]:

Authority which binds me establishes that where, as here, a pleading has been struck out, the decision is interlocutory, and therefore an appeal only lies with the grant of leave. In Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [13], the Court of Appeal stated, this time in relation to s 101(2)(e) of the Supreme Court Act, the appeal being brought from the order of a judge sitting in the Common Law Division, that, “the order of Grove J was interlocutory, s 101(2)(e) of the Supreme Court Act 1970 (NSW) applies, and the plaintiff’s appeal as of right was incompetent.”

As I said in comparable circumstances in McGinn v Cranbrook School [2015] NSWCA 378 at [4], that judgment binds me. In other words, I am bound to hold in accordance with the views expressed by the Registrar and by the respondent and contrary to what Ms Cavar puts to me, that an appeal only lies from the interlocutory decision of Curtis DCJ with leave.

Accordingly, the notices of appeal filed by Ms Cavar are incompetent. She has made it clear throughout that (a) she does not wish for those notices of appeal to be treated as an application for leave to appeal, and (b) she maintains that she has other means of recourse to vindicate her rights.

Application for leave to appeal, application for an extension of time

9. On 15 August 2016, the applicant filed a summons seeking leave to appeal from the decision of Curtis DCJ. The summons was filed out of time and leave is required to proceed pursuant to: rr 51.9 and 51.10 of the Uniform Civil Procedure Rules 2005 (NSW).

10. The summons seeks seven orders, addressing the following 5 topics:

1. that leave to appeal be granted from the decision of Curtis DCJ;

2. that the proceedings in the District Court be transferred to the Federal Court of Australia;

3. that ANZ Bank be joined as a party to the proceedings;

4. that the respondent’s solicitors be restrainedfrained from acting against the applicant; and

5. costs.

11. The applicant submitted that an extension of time to seek leave to appeal was warranted as she did not have access to the relevant documents. She submitted that it was relevant that she filed a notice of intention to appeal on 17 March 2016.

12. The respondent opposed Ms Cavar being granted an extension of time, particularly as the respondent, by its solicitors, informed Ms Cavar in correspondence dated 17 May 2016 that leave to appeal was required.

Consideration

13. Leave to appeal on a question of practice and procedure such as the present will rarely be granted: In the Will of Gilbert (1946) 46 SR (NSW) 318; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Toppro Pty Ltd v Yoo [2016] NSWCA 119 at [19] per the Court, comprising Macfarlan, Leeming JJA and Sackville AJA.

14. The decision of the primary judge does not give rise to any question of principle or injustice requiring the grant of leave to appeal. In any event, the primary judge was clearly correct to conclude that the statement of claim does not plead a discernible cause of action. Further, his Honour did not make an order precluding the applicant from seeking to re-plead her case if she was able to do so. In these circumstances a grant of an extension of time in which to file an application for leave to appeal from the decision of Curtis DCJ would be futile. Leave should therefore be refused.

15. A grant of leave in respect of the additional orders sought by the applicant would be equally futile. No such orders were sought from Curtis DCJ. Even if the Court has power to deal with the additional claims (see Tanious v South Eastern Sydney Local Health District [2016] NSWCA 83 at [3] per Basten JA), it is clear that the Court should not exercise its discretion to do so. As matters stand, the applicant’s statement of claim has been struck out. If so advised she is free to attempt to replead her case in the District Court.

16. It would be entirely inappropriate to make orders having the effect of transferring the case to the Federal Court unless and until, at the very least, an intelligible pleading has been filed in the District Court.

17. It would be equally inappropriate to make orders joining a party to proceedings in which no intelligible statement of claim has been filed or has been foreshadowed. As matters stand, there is no occasion to make any orders affecting the respondent’s legal representatives.

18. The applicant must pay the costs of the respondent in this Court.

19. Therefore, Tthe orders I propose are:

1. Leave to file the summons out of time refused;

2. The applicant pay the costs of the respondent in the amount quantified in $5000 as a gross sum costs order.

20. Sackville AJA: I agree with the reasons of the presiding judge and with the orders that his Honour proposes. of the application for leave to appeal out of time and leave to appeal as agreed or assessed.

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Amendments

09 March 2017 - Typographical error in the Coversheet corrected.

Decision last updated: 09 March 2017