Deak-Fabrikant v Grech
[2016] VSCA 118
•26 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0028
| LARISSA DEAK-FABRIKANT | Applicant |
| v | |
| STEPHEN PHILLIP GRECH | First Respondent |
| and | |
| JELVIE GRECH | Second Respondent |
| and | |
| PAUL GRECH | Third Respondent |
| and | |
| REGISTRAR OF TITLES | Fourth Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 26 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 118 |
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PRACTICE AND PROCEDURE – Appeal – Application for leave to appeal – Application for leave to appeal out of time – Application for extension of time within which to seek leave to appeal – Defective written case – Second defective written case – Applicant not articulating coherent argument upon which proposed appeal might succeed – Applicant’s material providing no basis upon which prospects of successful appeal might be determined – Multiple failures to comply with court orders – Undue delay – Unnecessary expense – Discretion – Failure to persuade court to exercise discretion – Application for extension of time refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | |
| For the First and Second Respondents | In person | |
| For the Third Respondent | Mr A G E Robinson | Clancy and Triado |
| For the Fourth Respondent | No appearance |
PRIEST JA
BEACH JA:
Introduction
This is an application for an extension of time to seek leave to appeal from orders made in the Trial Division on 30 October 2014, 28 October 2015 and 10 February 2016. This application was previously before this Court on 21 March 2016, when we refused an application, made by the applicant, for a stay.[1]
[1]Deak-Fabrikant v Grech [2016] VSCA 50 (‘stay reasons’).
Background
While the background of the dispute between the parties and the conduct of the proceeding in the Trial Division has been set out in our earlier judgment,[2] in order to understand the issues involved in the application for an extension of time, it is necessary to set out these matters again.
[2]Stay reasons [1]–[8].
The applicant and the third respondent were in a de facto relationship for a number of years. While the parties are unable to agree when this relationship commenced, they agree that it ended in September 2008. The first and second respondents are husband and wife. The first respondent is the son of the third respondent. The fourth respondent is the Registrar of Titles.[3]
[3]The fourth respondent took no relevant part in the proceedings in the Trial Division, and has taken no part in the applications in this Court.
The first and second respondents were the registered proprietors of five properties, described in the proceeding below as the Altona property, the Sanctuary Lakes property, the Speakmen Street property, the Errol Street property and the Ballarat Road property. On 23 October 2008, the applicant lodged caveats over each of the five properties claiming an interest in fee simple in the properties. The basis for the interest claimed in each caveat was expressed in each caveat as follows:
By virtue of the resulting implied or constructive trust in favour of the caveator arising from the contribution made by the caveator towards the acquisition, conservation and improvement of the said land.
On 26 February 2009, the first and second respondents issued a proceeding in the Trial Division seeking, among other things, the removal of the caveats over the five properties. On 16 June 2009, the applicant filed a counterclaim joining the third respondent. In her counterclaim, the applicant sought certain declarations as to the interests claimed by her in respect of the five properties, made a claim under the Relationships Act 2008 for an adjustment of the property interests of the third respondent in her favour, and sought damages for an assault alleged to have occurred on 28 September 2008 in the garden of the Altona property.
The trial of the proceeding between the parties occupied some thirty sitting days between 21 July 2014 and 31 August 2015. For the greater part of the trial, the applicant was unrepresented. There were days during the trial when the applicant did not attend the trial. The applicant’s failure to attend the trial was the subject of a ruling by the trial judge on 30 October 2014.[4] While the trial judge’s decision was reserved, the applicant made an application to re-open her case. This application was the subject of another judgment by the trial judge.[5]
[4]Grech v Deak-Fabrikant [2014] VSC 558 (‘the first ruling’).
[5]Grech v Deak-Fabrikant (No 2) [2015] VSC 389 (‘the second ruling’).
On 28 October 2015, the trial judge delivered lengthy and detailed reasons for judgment on both the claim and counterclaim.[6] In her reasons for judgment, the trial judge made the following conclusions:
[6]Grech v Deak-Fabrikant (No 3) [2015] VSC 581 (‘the trial judgment’).
(a)neither Paul Grech [the third respondent] or Ms Deak‑Fabrikant [the applicant] have any beneficial interest in the properties at Errol Street, Speakmen Street, or Ballarat Road. As such, the caveats over those properties ought to be removed immediately;
(b)I am not satisfied that Paul Grech declared that he was the trustee of Ms Deak‑Fabrikant’s fifty per cent interest in either the Altona property or the Sanctuary Lakes property (or for that matter, the Errol Street property), or made any legally enforceable promises to her to that effect;
(c)however, Ms Deak‑Fabrikant has a valid claim for an adjustment of property interests under s 45 of the Relationships Act, and the relevant asset pool for consideration includes the Altona property and the Sanctuary Lakes property;
(d)I consider that Ms Deak‑Fabrikant’s financial contributions to the conservation and improvement of the Altona property warrant an award of five per cent of the value of the asset pool;
(e)I consider that Ms Deak‑Fabrikant’s financial contributions to the financial resources of Paul Grech and Stephen Grech [the first respondent], including her contributions to household expenses and the use of the furniture and household goods brought by her into the Altona property have been offset by the contributions made to her financial welfare by Paul Grech, and do not warrant any further award in her favour;
(f)having regard to the non‑financial contributions of Ms Deak‑Fabrikant to the welfare of Paul Grech, a further adjustment equivalent to ten per cent of the value of the asset pool is warranted; and
(g)having regard to the relevant factors under s 51 of the Relationships Act, a further adjustment equivalent to five per cent of the asset pool is warranted.[7]
[7]Trial judgment [417].
The judge identified the asset pool that was to be divided between the applicant and the third respondent as comprising the Altona property and the Sanctuary Lakes property. The judge accepted valuation evidence called at trial that the Altona property was valued at $740,000 and the Sanctuary Lakes property was valued at $540,000.[8]
[8]Trial judgment [97], [98] and [418].
Having delivered her reasons, the trial judge then made orders removing the caveats over the Altona property, the Speakmen Street property, the Errol Street property and the Ballarat Road property. Additionally, the trial judge made an order giving the first respondent possession of the Altona property, such order to be stayed for ninety days from 28 October 2015. Further, in conformity with her conclusions referred to in (d), (f) and (g) above, the judge assessed the applicant’s 20 per cent of the asset pool at an amount of $256,000, and awarded this sum to the applicant.[9]
[9]See paragraphs 6, 7 and 8 of the orders of 28 October 2015.
On 3 December 2015, the trial judge heard argument on the question of costs and related matters. On 10 February 2016, her Honour delivered reasons in respect of those matters[10] and made orders for the payment of costs, the netting of amounts ordered and the provision of a lien to a law firm in the event of non-payment of a particular amount ordered (paragraphs 1 to 5 of the orders made 10 February 2016).
[10]Grech v Deak-Fabrikant (No 4) [2016] VSC 35 (‘the costs judgment’).
The history of the matter in this Court
On 16 March 2016, the applicant filed an application for leave to appeal from the orders made by the trial judge on 30 October 2014, paragraphs 1(a)–(d), 2 and 5 to 8 of the orders made on 28 October 2015 and paragraphs 1 to 5 of the orders made on 10 February 2016. Additionally, the applicant filed an application for a stay seeking a stay of paragraphs 1 and 2 of the orders of 28 October 2015 and paragraphs 1 to 5 of the orders of 10 February 2016; an application for an extension of time within which to file an application for leave to appeal in relation to the orders made on 30 October 2014 and 28 October 2015; and a written case.[11] The application for stay (which was initially ordered on an ex parte basis for a short period of time) was, as we have already said, ultimately refused on 21 March 2016.
[11]Ibid [9].
The applicant’s proposed grounds of appeal set out in her application for leave to appeal include complaints about denials of procedural fairness by the trial judge, actual bias of the trial judge, procedural errors, errors of law in interpreting various statutory provisions and errors in relation to the trial judge’s treatment of the evidence. As we said, in rejecting the application for a stay, the applicant’s written case is a somewhat spare document that rehearses the complaints set out in the application for leave to appeal, but does not set out argument in support of those grounds.
On 21 March 2016, we said that if the applicant wished to proceed with her extension of time application then she would be required to file and serve a proper written case — being a written case that was capable of being examined to determine what (if any) merit there might be in the applicant’s proposed grounds of appeal. Accordingly (on 21 March 2016), we ordered the applicant to file and serve an amended written case by 4:15 pm on 5 April 2016. Additionally, we fixed the applicant’s application for an extension of time for hearing on 22 April 2016.
The applicant did not file or serve an amended written case by the date ordered by this Court, or indeed at any time before the hearing on 22 April 2016. Instead, the applicant engaged in a series of communications with the Registrar, variously:
(a) advising that she had terminated the services of her lawyers;
(b) directing the court not to proceed with her application for an extension of time on 22 April 2016; and
(c) providing a medical certificate that asserted that the applicant ‘has a medical condition and will be unfit for
workcourt[12] from 15/04/2016 to 30/04/2016 inclusive’.
[12]The word ‘work’ was crossed out in the medical certificate, and the word ‘court’ was handwritten above it.
Immediately, we note that the provision of this uninformative medical certificate by the applicant was somewhat reminiscent of the applicant’s conduct of the trial before the trial judge as described in the first ruling.[13]
[13]Grech v Deak-Fabrikant [2014] VSC 558 [7] et seq.
On 22 April 2016, the applicant did not appear on the hearing of her application. Her solicitor, who was represented by counsel, sought leave to withdraw, and to be removed from the record, as solicitor for the applicant. After hearing argument, and detailing the chronology of the matter between 21 March and 22 April 2016, the applicant’s solicitor was advised that he would likely be given leave to withdraw after he filed with the Court an affidavit deposing to him having personally handed to the applicant copies of the Court’s order of 22 April 2016 and the transcript of the hearing on that day. Subsequently, the applicant’s solicitor filed and served the relevant affidavit[14] deposing to handing to the applicant a copy of the order of the Court on 22 April 2016 together with a copy of the transcript of that day.
[14]Sworn 28 April 2016.
On 22 April 2016, the Court again ordered the applicant to file and serve an amended written case. This was ordered to be done by 4:00 pm on 20 May 2016, and the application for an extension of time was refixed for 25 May 2016. At the same time, the Court advised the parties that in the event that the applicant was unable to attend the hearing fixed for 25 May 2016, then (subject to any further submission) it was likely that the Court would deal with the applicant’s extension of time application on the papers.
On 20 May 2016, the applicant filed a second written case. While the document was filed, it would appear that it was not served on all of the respondents at that time. That said, upon being advised of the failure of service, the Registrar provided copies of the new written case to the respondents.
Yesterday (25 May), the applicant’s application for an extension of time came on for hearing as had been ordered on 22 April. The first and second respondents appeared in person, the third respondent appeared by counsel, and the applicant did not appear. The applicant was called three times outside the court and there was still no appearance. In conformity with what had been said on 22 April, the Court advised those parties present at the Bar table that the matter would now be dealt with on the papers. The matter was then stood over for judgment today.
Following the adjourning of the Court yesterday, the applicant lodged a 3-page handwritten letter with the Court of Appeal registry, and 6 pages of medical reports. Notwithstanding her failure to attend court, the applicant wishes to make further submissions in support of her extension of time application.
The time for making further submissions is over. The applicant did not, and does not, have the leave of the Court to supplement the material upon which this application falls to be decided. Nevertheless, we have considered the applicant’s new material in order to see whether there is any point, fact or contention in it which would or might materially affect the decision we have to make.[15] We turn first to consider the applicant’s new written case.
[15]Cf Frugtniet v Law Institute of Victoria Ltd [2012] VSCA 178, [44]-[47] (Warren CJ, Nettle JA and Beach AJA).
The applicant’s new written case
As we have said, on 20 May 2016, presumably pursuant to this Court’s order of 22 April, the applicant filed a second written case. The applicant’s new written case is a 17 page handwritten document headed ‘Appellant’s Written Case’. The document appears to be divided into paragraphs or assertions numbered 1 to 8. We will refer to them as sections 1 to 8 of the document.
Section 1 appears to be a section designed to persuade us that leave should be granted because the applicant has a real prospect of success on appeal. Sections 2 to 8 appear to be grounds of appeal on which the applicant wishes to rely. Some of these apparent grounds appear to overlap with the grounds set out in the applicant’s original written case.
We have read the applicant’s new written case a number of times. Try as we might, we are unable to detect any coherent argument that suggests there is any real prospect that the applicant might enjoy any success in respect of any of her proposed grounds or contentions.
We should note that our endeavours to discern some coherent argument have not been assisted by the fact that the applicant’s new written case repeats a number of contentions without leading to any obvious conclusion or result. For example, on pages 11 and 12 of the document there is the following statement (as written):
Her Honour admitted, that on 28 October 2014 failed to attend to the court after telephone and telling my associate that she required complete bed rest for that day and that she would be attendant her general practitioner the following day and on that day my associate wrote to the appellant behalf of the court …
Whereas on page 15, the following appears:
That on 28 October 2014 apparent failed to attend the court after telling my associate that she required complete bed rest, for that day and that she would be attendant her general practitioner the following day and on that day my associate wrote to appellant on behalf of the court …
A theme of the applicant’s new written case is that the judge did not give the applicant the assistance that an unrepresented litigant is entitled to expect. Having read all of the material, we are entirely unpersuaded that this proposition has any merit. Certainly, the applicant does not descend to any level of specificity that might enable us to see the kernel of an argument that might be capable of success. Moreover, it is, in any event, difficult to discern how the outcome of this litigation might have been changed had the trial judge provided whatever additional assistance to the applicant that she now claims to be entitled to have received.
Another theme of the applicant’s material is that the trial judge erred in not finding there was a conflict of interest in counsel for the third respondent assisting the unrepresented first and second respondents. For present purposes, all that needs to be said is that our examination of the material suggests that this complaint is entirely bereft of merit.
The flavour of the applicant’s new written case is one of high level and generalised assertions of error. The document is unhelpful and, like its predecessor, simply does not permit this Court to make any assessment, or draw any conclusion, that any particular complaint the applicant has any capacity to impeach any of the orders made by the trial judge.
At the conclusion of the applicant’s new written case, there is an assertion that she has more to say in support of her case. The problem with that assertion is that, so far, the applicant has said nothing that assists in allowing us to conclude that she has any valid or arguable complaint about what occurred below. There is nothing in the material (including in the material filed, without leave, yesterday) that suggests a further hearing would be in any way productive. Additionally, it is of note that despite what the applicant has written in her new written case, and despite what the applicant wrote in yesterday’s 3-page letter, the applicant has not given any indication of the substance, or content, of the additional arguments that she wishes to raise. Moreover, the respondents are entitled to the provision of a written case that encapsulates the arguments the applicant wishes to make on appeal (rather than two wholly defective attempts at a written case supplemented by an oral argument). The applicant has already had a considerably longer period than usual to provide a proper written case.
Finally, it should be re-iterated that eventually a hearing or an application must come to a conclusion. In our view to permit the applicant to continue to seek to put material to the Court cannot be justified. While the applicant may regard this as unfair, she has had many opportunities, and a considerable amount of time, to put all the material she desires to put. Fairness to all parties (including the respondents) requires this application to be brought to a conclusion today.
Should an extension of time be granted?
In an affidavit in support of her application for an extension of time, the applicant has deposed to having had various periods of poor health and a consequential inability to attend to court matters at particular points in time. As to not pursuing an application for leave to appeal following the making of the October 2014 and October 2015 orders, the applicant has deposed that she did not wish to ‘duplicate appeals’. In respect of the February 2016 orders (and perhaps also the earlier orders), the applicant has deposed:
As I was a self-represented litigant for the majority of the substantive hearing and in view of the length of the trial, the wealth of the material to be read, including up to 28 days of transcript, it has taken time to take advice in relation to an appeal and to properly prepare grounds of appeal and other necessary supporting documents.
It may immediately be observed that the grounds of appeal that have been prepared and filed by the applicant do not suggest that any significant or considered legal expertise has been brought to bear on the applicant’s case; nor that any significant time has been spent analysing material or considering issues.
The first, second and third respondents oppose the extension of time sought by the applicant. In their material they detail a litany of delay, obfuscation and failures to comply with court directions and orders by the applicant during the course of the proceeding in the Trial Division. Much of what they complain about finds some support in the first ruling.[16]
[16][2014] VSC 558 [7] et seq.
Pursuant to r 64.08 of the Supreme Court (General Civil Procedure) Rules 2015, the Court has a discretion to extend the time for filing an application for leave to appeal. As was said by Kyrou JA in Gippsreal Ltd v Kenny,[17] as with the exercise of any other discretion by the Court, the Court must seek to give effect to the overarching purpose in s 7 of the Civil Procedure Act 2010, namely to ‘facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute’.[18] Further, the factors that are relevant to the exercise of the discretion under r 64.08 include the length of the delay, the reasons for the delay, the prospects of the application for leave to appeal succeeding and the extent of any prejudice to the respondents.
[17][2016] VSCA 65 (‘Gippsreal’).
[18]Gippsreal [2016] VSCA 65 [21]. See further, s 8(1) of the Civil Procedure Act 2010.
The applicant has been provided with a transcript of the hearing in this Court on 22 April 2016. During the 22 April hearing, it was made plain that the applicant’s written case was ‘wholly defective’, and that the failure by the applicant to file material that enabled some evaluation of the merits of her proposed application for leave to appeal was an impediment to a favourable exercise of the Court’s discretion.
Notwithstanding what was said by the Court on 22 April (the transcript of which we are satisfied was given to the applicant, and has been with her for almost a month), the applicant has filed another manifestly defective written case. As we have said, the applicant’s new written case does not enable the Court to form any view of the merits of her proposed application for leave to appeal. It is, as we have also said, an incoherent document that simply further muddies the water. Moreover, there is no basis for believing that giving the applicant more time will alter the current position.
Having read all of the applicant’s material and the judgments of the court below, we are unable to conclude that there is any real or likely merit in the applicant’s proposed application for leave to appeal. Further, we think there is real force in the respondents’ contentions that the applicant’s conduct of the proceeding in the Trial Division (and again in this Court) has caused them to incur greater expense, time and inconvenience than could reasonably be justified if the applicant conducted matters efficiently and in conformity with her obligations under the Civil Procedure Act.
In short, the applicant has not persuaded us that it is appropriate to exercise the discretion reposed in the Court favourably to her.[19]
[19]In making this conclusion, we do not pause to consider, or make any finding about, the suggested discrepancy between the applicant’s assertions of disability (referred to also in the medical material filed by the applicant) and the apparent freedom of movement displayed by the applicant in the video footage, tendered by the first and second respondents, of the applicant’s activities at the Altona property on 23 March 2016 when the applicant was filmed climbing through a broken window of the Altona property.
Conclusion
The application for an extension of time within which to seek leave to appeal from the orders made in the Trial Division on 30 October 2014, 28 October 2015 and 10 February 2016 will be refused.
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