Cavar v Department of Human Services (Comcover Insurance and Compensation Department)

[2016] NSWCA 195

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Cavar v Department of Human Services (Comcover Insurance & Compensation Department) [2016] NSWCA 195
Hearing dates:	01 August 2016
Decision date:	01 August 2016
Before:	Leeming JA
Decision:	Appeal dismissed, with costs.
Catchwords:	APPEAL – competency – appeal brought purportedly as of right from summary dismissal of proceedings – appeal dismissed as incompetent
Legislation Cited:	District Court Act 1973 (NSW), s 127 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), rr 51.6, 51.9, 51.41
Cases Cited:	Macatangay v New South Wales (No 2) [2009] NSWCA 272 McGinn v Cranbrook School [2015] NSWCA 378
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):	2016/83985
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Jurisdiction Date of Decision: 19 February 2016 Before: Curtis DCJ File Number(s): 2015/231484

ex tempore Judgment

1. HIS HONOUR: Before me, referred by the Registrar, is the question of the competency of an appeal purportedly commenced by Ms Celia Cavar by notice of appeal filed 6 May 2016. Further notices of appeal were filed on 16 and 18 May 2016. Previously Ms Cavar had filed a notice of intention to appeal within the time provided by the rules following the decision of the District Court (Curtis DCJ) on 19 February 2016.

2. Curtis DCJ dismissed the proceedings brought by Ms Cavar because they disclosed no cause of action. The substance of his Honour’s ex tempore reasons is as follows:

“I have heard the plaintiff at some length, and it is apparent that she suffers from an inability to properly frame the claims that she makes. I have read the balance of the statement of claim and I cannot detect that there is disclosed, anywhere, a viable cause of action.

The defendant, by motion of 18 September, moves the Court for an order that the proceedings be dismissed pursuant to r 13.4 or 14.28 of the Uniform Civil Procedure Rules because the claim is hopeless and discloses no cause of action. The history of the matter is set out in the affidavit of Mr Geoffrey Thomas Connellan, which I have accepted as exhibit 11 on the motion.

I order that the statement of claim be struck out because it discloses no cause of action.”

3. Before me, Ms Cavar has maintained, and I do not doubt, that officers in the Registry of this Court permitted her to file, first, a notice of intention to appeal, and secondly, a notice of appeal. The provision for the filing of notices of intention to appeal, thereby extending the time within which to invoke the jurisdiction of the Court of Appeal, applies equally to applications for leave to appeal and to appeals: see UCPR rr 51.6, 51.9. Nothing turns on anything that was said by the Registry in relation to the notice of intention to appeal.

4. In relation to the notice of appeal, on the first occasion the matter came before the Registrar of the Court of Appeal the respondent proposed, if I may say so, constructively, the following short minutes of order:

“The Court:

1. Notes that the decision appealed from was an interlocutory decision such that leave to appeal from it was required.

2. Directs that the proceeding continue as if it were an application for leave to appeal and that the Notices of Appeal filed by the Applicant on 6, 16 and 18 May 2016 comprise the Summons seeking leave to appeal and draft notice of appeal...”

5. Had that approach been followed, the difficulties encountered today would not have arisen, and Ms Cavar’s undoubted right to invoke this Court’s jurisdiction subject to the obtaining of leave could have proceeded in an efficient manner. However, Ms Cavar maintained before the Registrar, just as she has maintained before me, that she has a full right of appeal, rather merely than a right to seek leave to appeal. It was in the face of that attitude, unchanged before me today, that the Registrar referred the question of competency for me to determine.

6. Ms Cavar maintains that her right of appeal is conferred by s 101 of the Supreme Court Act1970 (NSW). As I have pointed out, that section applies only to judgments of this Court in a Division (namely the Equity Division and the Common Law Division), and not to the appeal which Ms Cavar wishes to bring from the decision of Curtis DCJ constituting the District Court of New South Wales. However, s 127 of the District Court Act 1973 (NSW) is in materially identical terms.

7. 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.”

8. 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.

9. 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.

10. I have power to dismiss an appeal “for want of prosecution or for other cause specified in the rules”: see Supreme Court Act, s 46(1)(b). The same course should be taken here as was taken in McGinn.

11. Accordingly, I propose to dismiss the notices of appeal filed 6, 16 and 18 May 2016.

[Discussion regarding costs]

12. The respondent seeks, and Ms Cavar opposes, an order that the appeal be dismissed with costs. Within a fortnight of filing the notice of appeal, the solicitors for the respondent advised her by letter that because the decision of Curtis DCJ was interlocutory, leave was required. They advised her that the parties may incur unnecessary costs in the proceedings because they have been improperly instituted and encouraged her to seek legal advice.

13. In circumstances where, as here, the respondent has promptly pointed out the want of competence, I think it is appropriate that the appeal be dismissed with costs, notwithstanding that a formal notice of motion seeking that course was only filed a few weeks after the time specified in r 51.41 of the UCPR.

14. The order of the Court is appeal dismissed with costs.

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Decision last updated: 22 March 2018