Con Michos v Eastbrooke Medical Centres Pty Ltd (ACN 130 596 002)
[2020] VSCA 278
•10 November 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0093
| CON MICHOS | Applicant |
| v | |
| EASTBROOKE MEDICAL CENTRES PTY LTD (ACN 130 596 002) | Respondent |
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| JUDGE: | TATE JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 10 November 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 278 |
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PRACTICE AND PROCEDURE – Orders made to correct name of respondent – Attempt to file application for leave to appeal and supporting material – Refusal by Judicial Registrar to accept application for filing – Application for direction to Registrar to accept filing – Whether leave to appeal application frivolous and/or would give rise to an abuse of process of the Court – Supreme Court (General Civil Procedure) Rules 2015 rr 36.01, 36.07, 64.43(1), (5).
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
TATE JA:
On 1 September 2020, Con Michos (‘Michos’), who is self-represented, sought to file an application for leave to appeal (‘the LTA application’) against orders made by Richards J correcting the name of the respondent. The Registrar of the Court of Appeal refused to accept Michos’ documents for filing in accordance with r 64.43(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules of Court’) on the basis that the application is frivolous and/or would give rise to an abuse of the process of the Court if it was permitted to be filed. Michos now applies to have a Judge of Appeal direct the Registrar to accept for filing the LTA application pursuant to r 64.43(5) of the Rules of Court.
Michos had originally brought proceedings in the Supreme Court[1] seeking to appeal from the orders of the Victorian Civil and Administrative Tribunal[2] dismissing a complaint made by him about the refusal by a medical clinic to give him access to a medical report under the Health Records Act 2001. Michos had named as respondent ‘Eastbrooke Medical Centre Pty Ltd’. In fact the company that operated the medical clinic was ‘Eastbrooke Medical Centres Pty Ltd (ACN 130 596 002)’ (‘Eastbrooke’).[3]
[1]S CI 2018 00633 (‘the trial proceeding’).
[2]Michos v Eastbrooke Medical Centre Pty Ltd [2018] VCAT 119.
[3]Emphasis added.
It appears that this error was first identified by Eastbrooke’s solicitors during the course of preparing materials for a taxation of its costs in the Costs Court. The solicitors sent emails to the Court of Appeal and the trial division of the Supreme Court on 3 August 2020 seeking orders to correct the name of the defendant/respondent under rr 36.01 and 36.07 of the Rules of Court and or pursuant to the inherent jurisdiction of the Court to correct a minor, inadvertent error in the record. The emails attached an ASIC extract for ‘Eastbrooke Medical Centres Pty Ltd (ACN 130 596 002)’ and a proposed form of order. By this time a number of interlocutory decisions had been made and appealed,[4] Richards J had reached a final determination in the trial proceeding and made final orders,[5] and two successive applications for leave to appeal from her Honour had been dismissed because Michos had failed to provide security for costs when ordered to do so.[6]
[4]Richards J dismissed appeals from refusals by Ierodiaconou AsJ to allow Michos to rely on more than limited grounds of appeal, for a protective costs order and to adjourn the trial, as well as determining costs: Michos v Eastbrooke Medical Centre Pty Ltd [No 2] [2019] VSC 437. These issues remained to be dealt with after the substance of the appeal had been determined.
[5]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSC 131.
[6]Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 140 (Kyrou and Forrest JJA) (‘the first appeal proceeding’) and Michos v Eastbrooke Medical Centre Pty Ltd [2019] VSCA 282 (Emerton JA and Kennedy AJA) (‘the second appeal proceeding’). Applications for special leave to appeal from each of these were dismissed by the High Court on 12 February 2020 and 16 April 2020 respectively: Michos v Eastbrooke Medical Centre Pty Ltd [2020] HCASL 21 and Michos v Eastbrooke Medical Centre Pty Ltd [2020] HCASL 93.
Rule 36.01 provides for the Court, at any stage, to order that ‘any document in the proceeding’ be amended to, relevantly, correct any defect or error in any proceeding,[7] including to correct a mistake in the name of a party, whether or not the effect is to substitute another person as a party,[8] with effect from the day the proceeding commenced.[9] A ‘document’ is defined to include an originating process, an indorsement of claim on originating process and a pleading.[10] Rule 36.01 provides:
[7]Rules of Court r 36.01(1)(b).
[8]Ibid r 36.01(4).
[9]Ibid r 36.01(5).
[10]Ibid r 36.01(2).
36.01General
(1) For the purpose of—
(a) determining the real question in controversy between the parties to any proceeding; or
(b) correcting any defect or error in any proceeding; or
(c) avoiding multiplicity of proceedings—
the Court may, at any stage order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding.
(2) In this Order document includes—
(a) originating process;
(b) an indorsement of claim on originating process; and
(c) a pleading.
(3) An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding.
(4) A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party.
(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6)Notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, the Court may make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party’s claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise.
(7) For the purpose of paragraph (6) any other party to the proceeding includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party.
(8) Paragraph (6), with any necessary modification, applies to an application under Rule 14.03(2).
(9) Paragraph (1) shall not apply to the amendment of a judgment or an order.
It is notable that r 36.01(9) provides that r 36.01 does not apply to the amendment of a judgment or an order. This is instead provided for under r 36.07, the ‘slip rule’:
36.07 Amendment of judgment or order
The Court may at any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission.
Michos objected to each of Eastbrooke’s requests for orders to correct the error in its name. In an email dated 10 August 2020 sent to the Court of Appeal registry in the first and second appeal proceedings, he submitted that r 36.01 may not apply, due to r 36.01(9), and in relation to r 36.07, the matter is not of an ‘extremely minor nature’. He asserted that Eastbrooke indicated in its application to the Costs Court that it was aware of the discrepancy during the proceedings but made no attempt to disclose the error to Michos or to the Court. The consistent use of the name ‘Eastbrook Medical Centre Pty Ltd’ in all documents prepared by Eastbrooke meant it was not a ‘clerical mistake’ or an ‘accidental slip or omission’.
On 13 August 2020, Kyrou and Forrest JJA ordered that the name of the respondent in the first appeal proceeding and the order made by them on 21 June 2019 be amended by substituting ‘Eastbrooke Medical Centres Pty Ltd’ for ‘Eastbrooke Medical Centre Pty Ltd’. Emerton JA and Kennedy AJA made orders in almost identical terms on the same day in the second appeal proceeding. Both sets of orders were made ‘on the papers’ with no attendance, and were noted under ‘Other Matters’ to be made under r 36.07 and the Court’s inherent jurisdiction.
On 18 August 2020, Michos filed written submissions to object to Eastbrooke’s application to amend its name as defendant in the trial proceeding.
On 25 August 2020, Richards J made orders in relation to the application, signed by her pursuant to r 60.02(1)(b) and made ‘on the papers’ (comprising the 3 August 2020 email from Eastbrooke’s solicitors and attachments, written submissions from Michos dated 18 August 2020, and written submissions of Eastbrooke dated 24 August 2020). Under ‘Other Matters’ it was noted that Michos ‘could readily have checked the correct name of the respondent, including by searching the free online Australian Business Register’ and had the error in Eastbrooke’s name been identified at an earlier time, it would have been corrected by an order pursuant to r 36.01, but neither party drew the error to the Court’s attention before the orders were made on 7 March 2019 (that included liberty to apply) and 28 June 2019. The orders recorded that the error was not identified until May 2020, when Eastbrooke commenced a proceeding in the Costs Court. It was further noted that the Court was satisfied that Michos ‘will suffer no prejudice if an order is made now to correct his error in naming the respondent’ and that it was appropriate to make an order pursuant to liberty to apply reserved in the order of 7 March 2019, and under r 36.01(1). The orders made on 25 August 2020 were in the following terms:
1. Pursuant to the liberty to apply reserved on 7 March 2019, and r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015, the mistake in the name of the respondent is corrected from ‘Eastbrooke Medical Centre Pty Ltd’ to ‘Eastbrooke Medical Centres Pty Ltd (ACN 130 596 002)’.
2.The parties are to bear their own costs of and incidental to the respondent’s application for this order.
On 1 September 2020, Michos sought to file the LTA application and a written case. I note that the proposed LTA application names the respondent as ‘Eastbrooke Medical Centres Pty Ltd’. He seeks to raise the following grounds of appeal:
1.Whether appeals pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) grants jurisdiction to the Supreme Court Trial Division to amend any part of the Victorian Civil and Administrative Tribunal (‘VCAT’) authenticated orders, including the identity of the parties.
2.Whether Justice Richards correctly applied r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) to amend Court orders and whether ‘leave [liberty] to apply’ remains indefinite.
3.Whether the parties involved in litigation, whether as plaintiff/applicant or defendant/respondent etc, have an ethical and professional obligation, including an overarching obligation to disclose all the facts to the Court and to provide their correct legal name at the commencement of Court proceedings.
On 7 September 2020, an email was sent to Michos on behalf of the Registrar of the Court of Appeal conveying the Registrar’s refusal to accept the LTA application in the following terms:
The decision of Justice Richards was to correct the name of the respondent from ‘Eastbrooke Medical Centre Pty Ltd’ to ‘Eastbrooke Medical Centres Pty Ltd (ACN 130 596 002)’. Similar corrections have been made by the Court of Appeal in proceedings S APCI 2019 0036 [the first appeal proceeding] and S APCI 2019 0083 [the second appeal proceeding].
Notably, there is no dispute that the correct name of the entity against which you brought proceedings is as corrected by Justice Richards. Accordingly, there can be no purpose to your proposed appeal. For those reasons, in accordance with rule 64.43(1) of the Supreme Court (General Civil Procedure) Rules2015, the Registrar refuses to accept your documents for filing on the basis that they are frivolous and/or would give rise to an abuse of the process of the Court if they were permitted to be filed.
On 8 September 2020, by email Michos requested a direction pursuant to r 64.43(5)[11] by one or more Judges of Appeal in relation to the Registrar’s refusal to file his documents.
[11]Rule 64.43(5) provides: ‘The Court of Appeal constituted by one or more Judges of Appeal may direct the Registrar to accept for filing any document which the Registrar has refused to accept under this Rule.’
On 24 September 2020, the Court of Appeal registry notified Michos (and Eastbrooke) that his email of 8 September 2020 would be regarded as an application for a direction under r 64.43(5).
Consistent with the approach taken by the Court,[12] it is neither necessary nor desirable for me to determine the application by oral hearing. I therefore deal with the application on the papers.
[12]Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] [2018] VSCA 203 (Maxwell P); Jafari v 23 Developments Pty Ltd [No 2] [2020] VSCA 187 (Niall JA).
In my opinion, the Registrar was correct to refuse to accept the LTA application for filing. There is no dispute that the correct name is that identified by Richards J in her order made on 25 August 2020,[13] as well as that identified in the corrective orders made in the first and second appeal proceedings.[14] Indeed, Michos in his own proposed LTA application names the correct respondent. An attempt by Michos to overturn the judge’s order correcting his own mistake would be perverse and contrary to the efficient use of judicial and administrative resources. The orders made by Richards J on 25 August 2020 in effect sought to correct the name of the respondent in respect of all the documents filed in the proceeding, including the originating process and so on. Richards J clearly had the power to correct those documents in the exercise of r 36.01. With respect to the correction of the name of the respondent in the orders Richards J had previously made, her Honour had available to her the power under r 36.07 of the Rules of Court and the inherent jurisdiction. The two corrective orders made by the Court of Appeal, addressing the same mistake in respect of the name of the respondent, were made in the exercise of r 36.07 of the Rules of Court and the Court’s inherent jurisdiction. Those same sources of power were available to Richards J, whether or not the power was available under r 36.01 or pursuant to the liberty to apply that had been granted. Reliance on one source of power does not invalidate a decision made where an alternative source of power is available. There would no utility in agitating the proposed grounds set out in the proposed LTA application; to permit the LTA application to proceed would be frivolous and/or an abuse of process. Accordingly, I refuse to make the direction sought.
[13]See [9] above.
[14]See [7] above.
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