Civic Workers Plus Pty Ltd v Hill

[2000] VSCA 61

APIDOPOULOS v SHERIFF OF VICTORIA SUPREME COURT OF VICTORIA Winneke P, Phillips and Buchanan JJA 26 May 2000 [2000] VSCA 0104 Practice and procedure — Courts and judges — Judgments, orders and declarations — Appeal — Abandonment — Appellant late in delivering note of proposed contents of appeal book — Application to reinstate appeal — Application dismissed by single judge of appeal — Application to Court of Appeal to discharge or vary single judge's order — Whether hearing de novo — Whether applicant must demonstrate miscarriage of discretion — Supreme Court Act 1986 (No 110)s 11(4), 11(5) — Supreme Court RulesCh I rr 64.16, 64.26(1)(g)..

In 1995 the appellant commenced proceedings in the County Court against the sheriff alleging that in 1984 he had wrongfully evicted her from her property and sold it to satisfy a judgment debt. That claim was dismissed as an abuse of process and the appellant was refused leave to appeal. In 1996 another summons seeking substantially the same relief was dismissed as an abuse of process. The Court of Appeal dismissed an appeal from this order and the High Court refused special leave to appeal. In 1999 the appellant commenced a fresh proceeding in the County Court seeking the same relief she had sought in the earlier proceedings. This proceeding was also dismissed as an abuse of process. In prosecuting an appeal against that dismissal, the appellant filed a note of the proposed contents of the appeal book about one week late with the consequence, under r 64.16(1) of the Supreme Court Rules, that the appeal was taken to have been abandoned. Her application for an order under r 64.16(2) that the appeal not be taken to have been abandoned was heard by Chernov JA pursuant to s 11(4) of the Supreme Court Act 1986 and r 64.26(1)(g). He refused it on the basis that to reinstate an appeal so devoid of merit was futile. She applied under s 11(5) of the Supreme Court Act to discharge or vary the order of Chernov JA.

Held, dismissing the application: (1) An application under s 11(5) of the Supreme Court Act 1986 to discharge or vary an order made by a single judge of appeal under s 11(4) of the Act did not involve an appeal in the nature of a re-hearing. Instead, a single judge's discretionary order made under s 11(4) was liable to be discharged or varied only if the discretion could be clearly demonstrated to have miscarried. [18]–[20]. Wentworth v Wentworth(1994) 35 NSWLR 726; Kidron & Spaile Architects Pty Ltd v Garrett(1994) 35 NSWLR 572 followed.

(2) The appellant failed to demonstrate that Chernov JA's discretion miscarried. No error of fact was shown, nor any error of principle. [21], [22].

Decision of Chernov JA [2000] VSCA 70 affirmed.

Application

This was an application under s 11(5) of the Supreme Court Act to discharge or vary an order of Chernov JA made under s 11(4) of the Supreme Court Act 1986 dismissing the appellant's application for orders that the time for delivery of a note of proposed contents of appeal book be extended and that her appeal not

1 VR 477

be taken to have been abandoned. The facts are stated in the judgment of Winneke P.

The appellant in person. M M Lodge for the respondent. Winneke P 1 (delivering the judgment of the court). Angela Apidopoulos (“the appellant”) asks this court to discharge or vary orders made by Chernov JA on 28 April of this year in which his Honour dismissed the appellant's summons, dated 7 April of this year, in which she had sought orders to extend the time for delivery of a note of proposed contents of the appeal book, and that her appeal to the Court of Appeal against orders made by Judge F B Lewis in the County Court on 9 February 2000 not be taken to have been abandoned. 2 The jurisdiction which was exercised by Chernov JA was exercised as a single judge of appeal pursuant to the provisions of s 11(4) of the Supreme Court Act 1986 and r 64.26 of the Rules of Court made pursuant to that subsection. Where a single judge of appeal has exercised his jurisdiction adversely to a party, that party may approach the Court of Appeal to discharge or vary the order made by the single judge: see s 11(5) of the Supreme Court Act. 3 The order made by Chernov JA was one which was made in the exercise of his discretion. The appellant had commenced proceedings in the County Court by writ filed in that court on 20 July 1999. On 9 February 2000 Judge Lewis dismissed the proceedings as being an abuse of process. It was against that order that the appellant had filed her notice of appeal in this court. The appellant served her notice of appeal within the 14 days prescribed by the rules and filed it, but she failed to comply with r 64.08 which requires delivery by an appellant to the Registrar of the Court of Appeal of a note of proposed contents of appeal book within seven days of the time fixed by r 64.03 for the service of the notice of appeal. In the event the appellant was about one week out of time. The delay was of short order which, in the normal course of events, would lead this court to excuse it and to order that the appeal be taken not to be abandoned. 4 However, there has been a substantial history to the County Court judge's order and the institution of this appeal. The material before Chernov JA indicated that in 1981 a plumber to whom the appellant owed a relatively small sum of money had registered a judgment against her in the Supreme Court and that, in execution of that judgment and pursuant to the court's warrant, the sheriff had sold the applicant's land in Lalor by auction to satisfy the judgment debt. This had occurred in August of 1984. 5 Some 10 and a half years later, in January of 1995, the appellant took action in the County Court against the sheriff contending that he had wrongfully evicted her from her property and sold it. In response to that claim the sheriff had sought an order dismissing the proceeding as frivolous and vexatious and as an abuse of process. On 5 June 1995 the County Court master, Master Patkin, so ordered and dismissed the action. 6 The appellant then sought to appeal to a judge from Master Patkin's order, but, on 18 August 1995, Beach J refused her leave to appeal. There the matter stood until April 1996 when the appellant issued a new summons in the County Court claiming substantially the same relief as had been sought in the writ she had filed in 1995. 7 In May 1996 this summons, too, was dismissed by Judge Meagher in the 1 VR 478 County Court as an abuse of process. The appellant then appealed to this court against the order of Judge Meagher. This court dismissed that appeal in May of 1997 saying that the proceeding was “really, in another form, the proceeding which had already been dismissed as without substance …” and was “doomed to failure”. 8 The appellant sought leave to appeal from this decision to the High Court. On 13 February 1998 Gaudron and Gummow JJ dismissed the application for special leave, on the basis that there was “no reason to doubt the correctness of the decision of the Court of Appeal”. 1 9 Despite these rebuffs, the appellant was undeterred, and by writ filed in the County Court in July of 1999 she made a further claim against the respondent seeking, so far as we can see, the same relief as she sought in the proceedings which she had pursued in 1995 and 1996. It was this 1999 proceeding which was dismissed by Judge Lewis on 9 February 2000 as an abuse of process, and it was against that order of dismissal that the appellant has served and filed her notice of appeal in this court. 10 It is against this historical background that Chernov JA refused to exercise his discretion to order that the appeal be taken not to have been abandoned for want of compliance with the rules. His Honour was content to accept that the appellant had an excuse for not filing, within time, the note of proposed contents of the appeal book, but in the exercise of his discretion made the order which he did on the basis that the appeal was futile and enjoyed no prospects of success. 11 In exercising the power given to us by s 11(5) of the Supreme Court Act to “discharge or vary” an order made by a single Judge of Appeal, this court is not, we think, at liberty to treat the matter as if it were hearing it afresh. We are being asked to interfere with the exercise of the judge's discretion and we should only do so if it can be demonstrated that that discretion has clearly miscarried. 12 This was in essence the view taken by the Court of Appeal in New South Wales in Wentworth v Wentworth2 of provisions contained in s 46(4) of the Supreme Court Act (1970) (NSW), provisions which are in all respects similar to s 11(5) of our own Act. 13 Mahoney JA said in Wentworth v Wentworthat 729:

It is not clear what is the nature of the review provided for by s 46(4). The subsection refers, in its terms, to the nature of the orders which, on such review, the Court may make: “discharge or vary”. It does not indicate the nature of the proceeding brought for that purpose or the principles by reference to which the proceeding is to be dealt with. Thus, the section does not state in terms whether, on such a review, the Court of Appeal deals with the application by re-hearing ab initio, by a re-hearing of the kind otherwise provided in s 75A of the Supreme Court Act 1970, or by a more restricted review … [the question] has been referred to in passing in other cases. In Knaggs v Solicitors’ Statutory Committee (Court of Appeal NSW, 8 October 1990 unreported) Kirby P said (at 6): “This process [under s 46(4) of the Supreme Court Act] is not an appeal, as such. However, it seems to me that the claimant must show that [the Judge of Appeal's] discretion miscarried. Otherwise, every discretionary practice decision made by a Judge of Appeal under s 46(1) sitting alone would be open to complete reargument as if the order made under that section had never been pronounced. I do not believe that such was the intention of the Act, providing as it does in s 46 for the economic deployment of the Judges of Appeal.”

1(1998) 6 Leg Rep SL 6. 2(1994) 35 NSWLR 726. 1 VR 479 14 Mahoney JA at 730–1 applied these principles and agreed that the review of the single judge's order is “more restrictive than is provided by a re-hearing”. His Honour continued:

The provision for a review of the orders made by a single judge of a Court of Appeal is not new. A provision similar to that now made (for “discharge” or “variation”) was made, for example, by the Supreme Court of Judicature (Consolidation) Act 1925 (UK), s 69(2), in relation to the English Court of Appeal. That section has now been replaced in effect by the Supreme Court Act 1981 (UK), s 58, and by O 59 R 14 … In Wren v Braunston Canal Services Ltd (Court of Appeal (Eng), 23 November 1990 unreported) the English Court of Appeal considered … the discretionary decision of a judge of that court. Lord Donaldson MR said that to succeed, the applicant “must show that the Lord Justice misdirected himself in principle or that his order was plainly wrong”.

15 Mahoney JA took the view that, in general terms, the practice adopted by the Court of Appeal in Wren's case should be applied in construing s 46(4) of the Supreme Court Act (NSW). Handley JA agreed with Mahoney JA, whilst Powell JA, on this issue, regarded it as being incumbent upon an applicant, who seeks to vary or discharge an order made by a single judge, to demonstrate that the primary judge's discretion had “clearly miscarried”. 16 In another case which had been heard by the Court of Appeal (NSW) at about the same time as Wentworth's case, but decided after it (namely Kidron and Spaile Architects Pty Ltd v Garrett 3) the court, by a majority (Priestley and Sheller JJA) did “vary and discharge” an order made by a single Judge of Appeal (Meagher JA) who had declined to enlarge the time for filing a notice of appeal. The majority did not refer to Wentworth's case, but Priestley JA said at 578 that in his view the discretion exercised by Meagher JA had “miscarried in that it was based solely on what was said to be a failure to explain delay and did not take into account the absence of any prejudice upon which the other parties could rely”. However, his Honour took the view that “the prospects of success” of the appeal were always a relevant factor for the single judge to take into account, it being said that it had not been contended in that case that the appeal had no such prospects. His Honour said:

Where delay is small, an appeal is not hopeless, and no relevant prejudice will be caused by an extension of time, it seems to me that a due exercise of discretion requires the granting of an extension of time.

17 Powell JA, who differed in the result, was the only member of the court who referred to Wentworth's case. He said at 585 that the court in Wentworth's case had taken the view that:

[T]he hearing of such an application [ie “to discharge or vary”] is not in the nature of a hearing de novo, or of an appeal in the nature of re-hearing and that, in order that such an application might succeed, it must appear that the order in respect of which the application is brought was clearly wrong.

18 In our view s 11(5) of the Supreme Court Act 1986 should be accorded a similar construction to that which has been given by the Court of Appeal in New South Wales to the counterpart provisions in the Supreme Court Act of that State. It would, we think, be contrary to the intention of the legislature to construe s 11(5) as treating an application to discharge or vary an order made by a single Judge of Appeal as a hearing de novo or an appeal in the nature of a re-hearing. 3(1994) 35 NSWLR 572. 1 VR 480 19 Having regard to the nature of the orders which can be made by a single Judge of Appeal pursuant to the powers invested by r 64.26, it is far more consonant with the scheme of the legislation — which, as in New South Wales, contemplates the efficient and economic deployment of the Judges of Appeal — to treat a single Judge of Appeal's discretionary orders made pursuant to s 11(4) as liable to be discharged or varied under s 11(5) only if the discretion can be clearly demonstrated to have miscarried. 20 It is true that an exercise of a single Judge of Appeal's powers pursuant to the Act and the rules can have significant consequences to a party, particularly where, as in this case, the effect of the order will mean the end of the appeal. That consequence, however, does not destroy the character of the order made by Chernov JA as an exercise of a discretion made in a matter of practice or procedure. Unless it can be demonstrated that the discretion has miscarried, this court should not interfere. 21 In this application no such miscarriage has, in our view, been shown. Chernov JA was prepared to accept that if there were no other circumstances than the seven day delay, then he would have exercised his discretion in favour of allowing the appeal to proceed. His Honour was, however, of the view that because the proceeding was nothing more than an attempt to relitigate claims which had been disposed of previously, which claims were brought well out of time, the appeal was “so devoid of merit” as to have no prospects of success and, accordingly, the justice of the matter required that he should exercise his discretion against the reinstatement of the appeal. His Honour referred expressly to Flannery v Goulburn Murray Water Authority 4 and to Jackamarra v Krakouer. 5 22 In the circumstances which his Honour described, he was clearly entitled, in our view, to exercise his discretion in the way in which he did, or to put it another way, we ourselves are not satisfied that the appellant has demonstrated that his Honour's discretion miscarried. No error of fact was shown, nor any error of principle. 23 The application must therefore be dismissed. 24 The formal order of the court will be that the application be dismissed. 25 The court will not make any order for costs. Application dismissed. Solicitor for the respondent: E J Butler, Acting Victorian Government Solicitor. [Special leave to appeal was refused by the High Court on 16 February 2001: Ed VR.] K W ESSERBARRISTER-AT-LAW 4(Unreported, Court of Appeal, 27 November 1998) per Tadgell JA. 5(1998) 195 CLR 516