Diveva Pty Limited (ACN 003 799 815) v Nominal Defendant

[2013] NSWCA 325

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Diveva Pty Limited (ACN 003 799 815) v Nominal Defendant [2013] NSWCA 325

Hearing dates:

22 July 2013

Decision date:

04 October 2013

Before:

Gleeson JA

Decision:

1. The applicant's notice of motion filed 9 July 2013 be dismissed.

2. The notice of appeal filed 25 June 2013 be dismissed.

3. The applicant pay the first and second respondents' costs of the notice of motion and the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - extension of time to file notice of appeal - appeal of interlocutory order - where substantial delay - whether failure to join plaintiff would render the appeal an abuse of process

Legislation Cited:

Civil Procedure Act 2005
Law Reform (Miscellaneous Provisions) Act 1946
Motor Accidents Compensation Act 1999
Road Transport (Vehicle Registration) Act 1997
Supreme Court Act 1970
Uniform Civil Procedure Rules

Cases Cited:

Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245
Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478
Insurance Exchange of Australasia v Dooley [2000] NSWCA 159; 50 NSWLR 222
John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1
McGuirk v University of New South Wales [2009] NSWCA 321; 75 NSWLR 224
Nanschild v Pratt [2011] NSWCA 85
Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd [2007] NSWCA 131
Richards v Cornford (No 3) [2010] NSWCA 134
Southern Cross Exploration NL v Fire & All Risks Insurance Company Ltd [No 2] (1990) 21 NSWLR 200
Stewart v Sydney County Council [1973] 1 NSWLR 444
Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61

Category:

Interlocutory applications

Parties:

Diveva Pty Ltd (ACN 003 779 815) (Applicant)
Nominal Defendant (First Respondent)
Coastal Asphalt and Civil Constructions Pty Ltd (Second Respondent)

Representation:

Counsel:
Mr J Giles (Applicant)
Mr S Harben SC (First Respondent)
Mr L King SC with Mr Lee (Second Respondent)
Solicitors:
Somerville Legal (Applicant)
Rankin Ellison Lawyers (First Respondent)
DLA Piper (Second Respondent)

File Number(s):

2013/193664

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9101

Citation:

Allen Raymond Turnbull v Nominal Defendant (District Court of New South Wales, McLoughlin DCJ, 19 December 2012, unreported)

Date of Decision:

2012-12-19 00:00:00

Before:

McLoughlin DCJ

File Number(s):

2011/67880

Judgment

1. GLEESON JA: The applicant, Diveva Pty Limited (Diveva), seeks an order extending time for the filing of a notice of appeal. The application is opposed.

1. The respondents to the application are the Nominal Defendant, the defendant/first cross-claimant, and Coastal Asphalt and Civil Constructions Pty Ltd (Coastal), the first cross-defendant to the first cross-claim and the second cross-claimant in the proceedings below in the District Court.

1. The plaintiff, Mr Turnbull, has not been joined as a party to the notice of appeal. This reflects a conscious decision by Diveva, which takes the position that Mr Turnbull is not a necessary party to the appeal.

1. The respondents contend that Mr Turnbull is a necessary party to the appeal, and that the applicant's failure to join him as a party renders the appeal an abuse of process.

1. As explained below, the parties' submissions were refined in supplementary written submissions provided, at the invitation of the Court, after the conclusion of the hearing.

1. The critical question raised by this application is whether the notice of appeal is doomed to failure because Diveva has not appealed against the judgment below in respect of the plaintiff's claim against the Nominal Defendant. Diveva only challenges the orders made on the cross-claims as between the Nominal Defendant, Diveva and Coastal.

1. Before turning to this issue it is necessary to identify the circumstances in which Diveva seeks the indulgence in terms of an extension of time. The facts are taken from the two judgments below in the District Court and the affidavit evidence in support of the application from Mr Craig Pinson, the managing director of Diveva. There are no other materials before the Court on this application, such as the transcript of the hearing below.

Factual background

1. Mr Turnbull brought proceedings in the District Court against the Nominal Defendant for injuries he sustained in an accident on 1 February 2007. At the time of the accident Mr Turnbull was employed by Coastal. He was driving a roller, owned by Diveva, while performing road maintenance works on the Oxley Highway. The roller was defective because the brakes did not operate. The roller was uninsured.

1. Mr Turnbull claimed that the Nominal Defendant was liable to him under s 33 of the Motor Accidents Compensation Act 1999 (MACA). That section permits such a claim where the injury is caused by the fault of the owner or driver of a "motor vehicle that is not an insured motor vehicle in the use or operation of the vehicle on a road in New South Wales". Section 33(5) of the MACA relevantly provides:

"33 Claim against Nominal Defendant where vehicle not insured

...

(5) For the purposes of this section, and any regulations made for the purposes of this section:

'motor vehicle' means a motor vehicle:

(a) that is exempt from registration, or

(b) that is not exempt from registration, is required to be registered to enable its lawful use or operation on a road in New South Wales and:

(i) was at the time of manufacture capable of registration, or

(ii) was at the time of manufacture, with minor adjustments, capable of registration, or

(iii) was previously capable of registration but is no longer capable of registration because it has fallen into disrepair."

1. The Nominal Defendant admitted that the roller was uninsured and that the accident occurred as a result of the negligence of the owner of the roller, within the meaning of "owner" in s 4(1)(b) of the MACA. This definition provided that in the case of a motor vehicle that is unregistered, the owner is any person who solely, or jointly, or in common with any other person, is entitled to the immediate possession of the vehicle.

1. The Nominal Defendant cross-claimed against Diveva and Coastal relying upon s 39 of the MACA. Alternatively, the Nominal Defendant claimed contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act1946. Diveva and Coastal filed cross-claims against each other seeking contribution or indemnity. Section 39 of the MACA relevantly provides:

"39 Recovery from owner or driver

(1) Any amount properly paid by the Nominal Defendant in satisfaction of a claim made or judgment obtained under section 33, 34 or 35 and the amount of any costs and expenses properly incurred by it in relation to any such claim or judgment may be recovered by the Nominal Defendant as a debt:

(a) from the person who, at the time of the occurrence out of which the claim arose or in respect of which the judgment was obtained, was the owner of the motor vehicle, or

(b) where at the time of such occurrence some other person was driving the motor vehicle, from the owner and the driver jointly or from either of them severally.

...

(3) The Nominal Defendant is not entitled to recover any amount under this section from the owner or driver of a motor vehicle which, at the relevant time, was not required to be registered or was exempt from registration or, if required to be registered, was not required to be insured under this Act."

The decisions below

1. The proceedings below involving Mr Turnbull's claim against the Nominal Defendant and the various cross-claims were heard together over six days in April and July 2012. It was common ground on the present application that no order had been made by the District Court to the effect that the cross-defendants, Diveva and Coastal, were not bound by any judgment or decision on Mr Turnbull's claim for relief against the Nominal Defendant: see s 22(3) Civil Procedure Act2005.

1. At trial, the Nominal Defendant conceded that the roller was required to be licensed and insured to be driven on the part of the Oxley Highway being repaired. This was because it was a "road" for the purposes of s 33(1) of the MACA, being either a "road" or a "road related area" within the definition of those expressions in s 4 of the Road Transport (Vehicle Registration) Act 1997 which were incorporated into the definition of "road" in s 3 of the MACA. "Road" under the Road Transport (Vehicle Registration) Act means "an area which is open to or used by the public and developed for, or has one of its main uses, the driving or riding of motor vehicles".

Judgment on plaintiff's claim

1. In the first judgment given on 2 October 2012, the primary judge (at [13]) recorded the argument advanced by senior counsel for Diveva that the area of roadway where Mr Turnbull lost control of the roller was, for short periods of time, controlled by road traffic lights to prevent the public driving upon it, so it was not a "road" nor a "road related area" within the definition of those expressions in s 3 of the MACA.

1. The primary judge rejected that contention and found (at [14]) that the part of the Oxley Highway being repaired always was a "road" within the meaning of s 3 of the MACA. However, should he be wrong in that finding, the primary judge held it was a "road related area", being an area of roadway immediately adjacent to a used piece of roadway and open to the public, or was a shoulder of road that was being utilised by the public. The primary judge also found (at [11]) that both Diveva and Coastal were entitled to immediate possession of the subject roller at the time of the accident, and both were "owners" pursuant to the provisions of the MACA.

1. McLoughlin DCJ gave judgment in favour of Mr Turnbull against the Nominal Defendant in the sum of $494,018 plus costs.

1. The Nominal Defendant paid the judgment sum awarded against it in favour of Mr Turnbull sometime prior to 19 December 2012.

Judgment on the cross-claims

1. In the second judgment given on 19 December 2012 for the disposition of the cross-claims, the primary judge noted (at [1]) that in Mr Turnbull's case against the Nominal Defendant, he had found that both Diveva and Coastal were the "owner" of the subject vehicle, being the roller which was in use at the time of Mr Turnbull's accident. The primary judge observed that as both Diveva and Coastal were owners, the Nominal Defendant was entitled to a verdict on the first cross-claim against them should negligence be established. This was notwithstanding that "fault" of the owner or driver (meaning negligence or any other tort) was an element of Mr Turnbull's claim against the Nominal Defendant under s 33 of the MACA.

1. The primary judge found (at [1]) that Coastal was negligent because it failed to provide Mr Turnbull with a safe place of work and/or safe plant and equipment, and failed to adequately respond to complaints which had been made concerning the safety and use of the roller. His Honour also found (at [2]) that Diveva was negligent as the subcontractor carrying out the works, which had engaged Mr Turnbull, as it had failed to take reasonable care so that the work was carried out safely and without risk of causing harm.

1. Accordingly, the primary judge found that both Diveva and Coastal were liable to the Nominal Defendant under s 39 of the MACA. He also found, alternatively, that they were liable to the Nominal Defendant under s 5 of the Law Reform (Miscellaneous Provisions) Act.

1. In relation to the cross-claims as between Coastal and Diveva, the primary judge apportioned culpability 60 per cent to Diveva and 40 per cent to Coastal.

1. Orders in relation to the cross-claims were made on 20 December 2012. Orders 1 and 3 provided for a verdict and judgment for the Nominal Defendant against each of Coastal and Diveva respectively in the amount of $494,018 plus the costs the Nominal Defendant had been ordered to pay to Mr Turnbull, as agreed or assessed, plus the Nominal Defendant's costs and expenses properly incurred, as agreed or assessed, in the proceedings. Orders 2 and 4 required Coastal and Diveva respectively to pay interest on all these sums from 20 December 2012 to the date of payment.

1. Judgment was entered for Coastal against Diveva for 60 per cent of the sums the subject of the Nominal Defendant's judgment against Coastal (Order 5). Diveva was ordered to pay its liability to Coastal directly to the Nominal Defendant within 28 days (Order 6) and to also pay 60 per cent of Coastal's costs of the second cross-claim, as agreed or assessed (Order 7).

1. Judgment was entered for Diveva against Coastal for 40 per cent of the sums the subject of the Nominal Defendant's judgment against Diveva (Order 8). Coastal was ordered to pay its liability to Diveva directly to the Nominal Defendant within 28 days (Order 9) and to also pay 40 per cent of Diveva's costs of the second cross-claim, as agreed or assessed (Order 10).

Events subsequent to 20 December 2012

1. Coastal filed a notice of intention to appeal, but did not subsequently file a notice of appeal. The time for any appeal by Coastal expired on 20 March 2013, at least in relation to the orders entered on 20 December 2012. The evidence on this application does not reveal whether Coastal's notice of intention to appeal also related to the orders made on 2 October 2012.

1. Coastal paid its 40 per cent of the judgment and costs ordered to be paid to the Nominal Defendant on 7 March 2013 (as to the judgment sum) and on 22 April 2013 (as to the costs).

1. On 5 June 2013, the Nominal Defendant served on Diveva a statutory demand for 60 per cent of the judgment sum, 60 per cent of Mr Turnbull's costs and interest. Shortly thereafter, on 13 June 2013, Diveva engaged new solicitors who, on 14 June 2013, filed an originating process in the Supreme Court to set aside the statutory demand.

1. On 25 June 2013, Diveva filed a notice of appeal against that part of the decision of McLoughlin DCJ the subject of Orders 3 to 7 made on 20 December 2012. No appeal was filed in respect of the earlier decision of McLoughlin DCJ on 2 October 2012.

1. Subsequently on 9 July 2013, Diveva filed a notice of motion seeking an extension of time in which to appeal. That motion was supported by an affidavit of Craig Pinson, the managing director of Diveva, sworn 4 July 2013.

The Court's powers

1. Diveva seeks an order extending the time for the filing and service of the notice of appeal. The power to make the order sought is provided by Uniform Civil Procedure Rules 2005 (UCPR) r 51.16(2) which permits the Court, in a case falling within UCPR r 51.16(1)(c), to extend the time for filing of the notice of appeal at "any time".

Legal principles

1. In Nanschild v Pratt [2011] NSWCA 85, McColl JA observed in relation to extending time for the filing of an appeal that:

"38 The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties. This means that the discretion can only be exercised upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459) per McHugh J.

39 The underlying premise to these propositions in Gallo (as is made apparent in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 (at [7]) per Brennan CJ and McHugh J) is that the Court's approach to an application to extend the time for filing an appeal from a judgment determining substantive rights (or here to seek leave to appeal) "at any time" recognises that "the respondent to the application has a vested right to retain the judgment" proposed to be the subject of appeal: Jackamarra v Krakouer (at [4]); Tomko v Palasty (No 2) [2007] NSWCA 369 (at [55]) per Basten JA (Hodgson and Ipp JJA agreeing)."

1. The four factors of general relevance to such an application are (1) the length of the delay, (2) the reason for the delay, (3) whether the applicant has a fairly arguable case and (4) the extent of any prejudice suffered by the respondent to the application: see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [55].

1. In Tomko v Palasty (No 2) at [58], Basten JA pointed out that an application such as this should not be treated as a dress rehearsal for the full appeal. This is consistent with the nature of the inquiry required on an interlocutory motion of this kind.

1. However, as observed by Hodgson JA (with the approval of Ipp JA) in Tomko v Palasty (No 2) at [14]:

"... there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable."

1. It is also necessary to bear in mind the Court's overriding purpose to ensure that litigation is resolved in a timely fashion. Applications to extend time should be considered in the framework constituted by ss 50-60 of the Civil Procedure Act, and against the background of a modern approach to despatch of litigation and the need for reasonable expedition: Richards v Cornford (No 3) [2010] NSWCA 134 at [98], [110] per Allsop P (McColl JA agreeing). Thus it is necessary to take into account the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction: s 58(2)(b)(vi) Civil Procedure Act.

Length and explanation for the delay

1. Diveva accepted that its delay is relatively long. It concedes that the time to file a notice of appeal in relation to the second judgment expired on 16 or 17 January 2013. The notice of appeal was filed more than five months out of time. The delay is substantial.

1. The explanation for the delay given by Diveva is as follows. When the second judgment was delivered on 19 December 2012, Diveva was represented by solicitors instructed by its insurer. However on 21 December 2012, those solicitors informed Diveva that its insurer denied indemnity, as an exclusion in the contract of insurance applied. Notwithstanding this denial of liability, on 24 December 2012, Diveva asked those solicitors if they "could ... act for us in respect of the judgment against us?" After initially ceasing to act, on 8 February 2013, those solicitors agreed to act for Diveva.

1. In the meantime, on 7 January 2013, the Nominal Defendant had agreed to take no steps to enforce the judgment against Diveva before 12 February 2013.

1. On 8 February 2013, the solicitors for Diveva sought a 28-day extension of time to pay the judgment debt to the Nominal Defendant. Nothing substantive happened for almost two months. On 3 April 2013, Diveva was informed by its then solicitors that Coastal (which had filed a notice of intention to appeal) was not appealing. On 4 April 2013, Diveva received a retainer letter from its then solicitors.

1. Mr Pinson, the managing director of Diveva, says that Diveva was not given any advice by those solicitors in relation to an appeal; the prospects were never discussed; and it was not advised to seek Counsel's advice as to the prospects of an appeal. He said that he thought Diveva's then solicitors were negotiating with the solicitors for the Nominal Defendant "to settle the judgment debt". Mr Pinson was not cross-examined on his affidavit.

1. Diveva submitted that its delay was explained by the fact that, although having solicitors acting for it for most of the relevant time (who initially were the solicitors who acted for Diveva at the trial), it did not receive any advice as to the prospects of an appeal until after it engaged new solicitors on 13 June 2013. Diveva further submitted that once it was advised that it had prospects of an appeal it acted promptly.

1. The respondents submitted that the explanation for the applicant's delay is deficient. First, there was no explanation for the delay between 4 April 2013 and 27 May 2013, when the Nominal Defendant gave notice to the applicant that a statutory demand would be served in relation to the unpaid judgment against Diveva.

1. Secondly, they submitted that the inference to be drawn from Mr Pinson's affidavit is that Diveva was trying to "manage" the payment it was required to make pursuant to the judgment in favour of the Nominal Defendant. The belated filing of a notice of appeal was said to be no more than a defensive reaction in a further attempt to "manage" the statutory demand served by the Nominal Defendant on Diveva.

1. There are unsatisfactory aspects to the explanation for the delay. There is no mention by Diveva of an appeal, or indeed seeking advice about an appeal, at any time prior to the service of the statutory demand on 27 May 2013.

1. Against this, the respondents did not challenge Mr Pinson's evidence that Diveva's former solicitors did not raise the question of any possible appeal, nor suggest that it obtain counsel's advice as to the prospects of an appeal.

Prejudice suffered by the respondents

1. In the case of the Nominal Defendant, it did not appeal against the judgment given against it on 2 October 2012 and had already paid the judgment sum awarded to Mr Turnbull prior to judgment on the cross-claims given on 19 December 2012. It did not contend that it had suffered any prejudice as a result of the delay.

1. In the case of Coastal, it paid its 40 per cent share of the judgment and costs ordered to be paid to the Nominal Defendant on 7 March 2013 and 22 April 2013 respectively. Coastal contended that both the Nominal Defendant and Coastal had altered their positions during the delay by Diveva. However, there was no evidence from Coastal that it would not have paid these amounts if it was aware that Diveva would subsequently file a notice of appeal. Further, as noted above, the Nominal Defendant had already paid the judgment amount to Mr Turnbull before judgment on the cross-claims was given.

1. Coastal also contended that Mr Turnbull is prejudiced because there having been no challenge by Diveva (within the time permitted under the UCPR) to his judgment against the Nominal Defendant, he had no doubt spent some of the judgment sum paid to him by the Nominal Defendant.

1. Prejudice to Mr Turnbull would have been a relevant consideration if he had been joined as a party to the notice of appeal. However, this is not the course which Diveva has taken, and the question of prejudice to Mr Turnbull does not arise on this application. The non-joinder of Mr Turnbull as a party to the appeal raises a different issue, to which it is appropriate to now turn.

Is the appeal fairly arguable

Notice of appeal

1. The notice of appeal identifies the judgment or orders in respect of which the appeal is brought under the heading "Details of Appeal" as follows:

"4. The appellant appeals from the part of the decision below constituted by the Court making orders 3 to 7 which were made on 20 December 2012."

1. The two grounds of appeal relied upon by Diveva are as follows:

"(1) The trial judge erred in:

(a) holding that the motor vehicle, the owner of which caused the accident and which was not registered, was being used or operated on a "road" within the meaning of the term "road" in the Motor Accidents Compensation Act 1999 (NSW) (MACA) when he should have held that the motor vehicle was not being used on a "road" and, consequently, was not required to be registered within the meaning of s 39(3) of the MACA;

(b) not dismissing the first respondent's claim against the appellant under s 39 of the MACA.

(2) The trial judge erred in holding that the appellant and respondents were joint tortfeasors within s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) and in making orders against the appellant under s 5 of the Law Reform (Miscellaneous Provisions) Act."

1. On this application, the parties focused their attention on whether the first ground of appeal was fairly arguable. The second ground of appeal relates to an alternative foundation for Diveva's liability. It is unnecessary to consider this ground, if the challenge to the primary basis of Diveva's liability is not fairly arguable.

1. The relief sought by Diveva in the notice of appeal concerns part of the orders made on 20 December 2012, insofar as they relate to Diveva's liability to the Nominal Defendant in respect of the first cross-claim, and to Coastal in respect of the second cross-claim. Relevantly, the orders sought on appeal include that:

(1)   Orders 3 to 7, made on 20 December 2012, of the Court below be set aside (Order 3).

(2)   The first cross-claim between the Nominal Defendant and Diveva be dismissed (Order 4).

(3)   The second cross-claim between Coastal and Diveva be dismissed (Order 5).

(4)   The Nominal Defendant pay Diveva's costs of the first, second and third cross-claims (Order 6).

(5)   The Nominal Defendant pay Diveva's costs of the appeal (Order 7).

1. Significantly, the notice of appeal does not identify the judgment given on 2 October 2012 as being part of the "decision below" to which the appeal proceedings relate. Nor are any orders sought by Diveva seeking to set aside judgment given on 2 October 2012 in relation to Mr Turnbull's claim against the Nominal Defendant.

1. Notwithstanding the absence of any challenge by Diveva to the judgment given on 2 October 2012, the first ground of appeal alleges error by the primary judge in relation to a critical finding in respect of Mr Turnbull's claim against the Nominal Defendant. That finding was that the location of the accident occurred on a "road" within the meaning of the MACA.

1. It was not suggested by the respondents that Diveva's contention that the roller was not being used in a "road" was not fairly arguable. Rather, the argument on this application was directed to the significance of the non-joinder of Mr Turnbull as a party to the appeal. This raises the question whether Diveva can seek to overturn the result on the cross-claims, without also challenging on appeal the judgment given on 2 October 2012 in respect of Mr Turnbull's claim against the Nominal Defendant.

Submissions

1. It is appropriate at this point to record that Diveva's submissions, as ultimately refined, accepted that:

(1)   the effect of Insurance Exchange of Australasia v Dooley [2000] NSWCA 159; (2000) 50 NSWLR 222, is that Diveva could (subject to complying with the requirements as to time) appeal from the decision of McLoughlin DCJ delivered on 2 October 2012;

(2) Diveva is a party to the proceedings below between Mr Turnbull and the Nominal Defendant by virtue of s 22(3)(b) of the Civil Procedure Act. Thus, in any subsequent action between the Nominal Defendant and Diveva there would be an issue estoppel in relation to the accident occurring on a "road"; and

(3)   if (as Diveva submitted was the correct analysis) the finding in favour of Mr Turnbull (on 2 October 2012) was in effect the determination of a separate question or a preliminary issue in the proceedings, Diveva could not later in the proceedings at first instance advance an argument that the point determined in favour of Mr Turnbull was wrongly decided.

1. Diveva also accepted that the judgment of 2 October 2012 between Mr Turnbull and the Nominal Defendant was (probably) final, but submitted that as between the Nominal Defendant and, relevantly, Diveva that judgment, although affecting Diveva, was interlocutory and did not result in an order against Diveva. Accordingly, it contended that leave to appeal was required to challenge that judgment, if a challenge had been made by Diveva before judgment was given on the cross-claims.

1. Diveva characterised what occurred in the proceedings below on 2 October 2012 as, in effect, a ruling at a trial of a separate issue, which was able to be challenged on an appeal from the later final judgment. Diveva relied upon the proposition that a party is able to appeal an interlocutory order which affects the final judgment on an appeal from the final judgment: Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; (2002) 209 CLR 478 at [5]-[8].

1. Although no order for a separate hearing or split trial was made in the proceedings below, Diveva contended that as the claim and cross-claims were one proceeding, then by determining the claim in advance of the cross-claims there was, in effect, a split trial. Diveva next contended that it is able to appeal the determination of the issue in relation to the accident occurring on a "road" in its appeal from the final judgment against Diveva. It submits that the issue estoppel which it concedes operated at trial of the cross-claim, does not prevent an appeal.

1. Diveva contended that the consequence of the above submissions is that Mr Turnbull is not a necessary party to the appeal because he is not required to be a party by r 51.4(1) of the UCPR. Diveva submitted that Mr Turnbull's rights and liabilities are not directly affected by the appeal: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 at [131]-[133].

1. Diveva also contended that there is no abuse of process in only appealing the result of the cross-claims for two reasons. First, the possibility that Diveva's appeal may have the consequence, if the appeal is allowed, that there would be inconsistent judgments on Mr Turnbull's claim against the Nominal Defendant and on the Nominal Defendant's cross-claim, is recognised by Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; (2010) 75 NSWLR 245.

1. Secondly, s 39(3) of the MACA, in effect, allows for inconsistent judgments between Mr Turnbull's claim against the Nominal Defendant pursuant to s 33 of the MACA, and the Nominal Defendant's claim under s 39(1) to recover a statutory debt owed by the owner of a vehicle to the Nominal Defendant. Diveva submitted that s 39(3) creates a defence to the Nominal Defendant's claim under s 39(1) of the MACA, which the owner can rely on, if the motor vehicle was not required to be registered "at the relevant time", such as if it is not being driven on a "road".

1. The respondents submitted that Diveva had standing to appeal against the decision of McLoughlin DCJ on 2 October 2012 but had failed to do so. Thus the respondents contended that they are entitled to rely on any issue estoppels flowing from that judgment. This includes the finding on the critical issue that the location of the accident was on a "road" as defined in the MACA.

1. The Nominal Defendant further submitted that it is both a victim and a beneficiary of this finding, unless it is reversed as between Mr Turnbull and the Nominal Defendant, but no such relief had been sought by Diveva in its notice of appeal.

1. Coastal further submitted that Diveva was seeking to pursue a course that, if successful, would create inconsistent findings between different parties to the same proceedings on the same evidence, to which the civil onus of proof applies. This was contended to be inconsistent with Stewart v Sydney County Council [1973] 1 NSWLR 444, and would involve an abuse of process.

Consideration

Necessary parties to an appeal

1. UCPR r 51.4(1) provides:

"51.4 Parties

(1) Each person who:

(a) is directly affected by the relief sought, or

(b) is interested in maintaining the decision of the court below,

must be joined as a respondent."

1. This rule directs attention to two matters. First, whether a person's rights or liabilities are directly affected by the appeal: John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd at [131]-[133]. Secondly, identification of the "decision" of the Court below which is challenged on appeal, and which a person has an interest in maintaining.

1. As to the second matter, for the purposes of Pt 51 UCPR, the reference to a "decision" includes "a judgment, order, verdict, opinion, direction or determination": r 51.2 UCPR.

1. In the present case, whether Mr Turnbull's rights or liabilities are directly affected by the appeal or whether he has an interest in maintaining the decision of the Court below, depends on whether Diveva challenges the judgment of 2 October 2012.

1. Undoubtedly, if Diveva challenged the judgment of 2 October 2012 by seeking to set aside the orders made in favour of Mr Turnbull, then Mr Turnbull would be a necessary party to such an appeal.

1. However, by its notice of appeal and its submissions on this application, Diveva expressly disclaims any suggestion that it is challenging the judgment of 2 October 2012 in favour of Mr Turnbull.

1. Nonetheless, by Ground 1(a) of its notice of appeal, Diveva challenges the finding of the primary judge in his reasons of 2 October 2012 in relation to the accident occurring on a "road" within the meaning of the MACA. This reveals a fundamental problem with the notice of appeal.

1. Rights of appeal are only given in respect of a judgment or order, not against reasons or individual findings contained in a judgment: Supreme Court Act 1970, s 101(1)(a); Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; McGuirk v University of New South Wales [2009] NSWCA 321; (2009) 75 NSWLR 224 at [16] per Basten JA (Ipp and Macfarlan JJA agreeing).

1. An appeal is a challenge to the orders made below, not to findings or reasons: Penrith Whitewater Stadium Ltd v Lesvos Enterprises Pty Ltd [2007] NSWCA 131 at [18] per Basten JA. A party wishing to challenge a judgment or order (whether interlocutory or final) must do so expressly in its notice of appeal.

1. It may be accepted that the judgment given on 2 October 2012 did not finally dispose of the rights of the parties to the cross-claims, relevantly the Nominal Defendant and Diveva. That is, the order made on Mr Turnbull's claim did not put an end to the existing cross-claims, and hence was interlocutory as between the Nominal Defendant and Diveva (and Coastal): Southern Cross Exploration NL v Fire & All Risks Insurance Company Ltd [No 2] (1990) 21 NSWLR 200 at 210, 215 and 217.

1. Diveva submits, correctly in my view, that it is able to appeal an interlocutory order which affects the final judgment on an appeal from the final judgment: Gerlach v Clifton Bricks Pty Ltd at [5]-[8]. The plurality in Gerlach at [6] expressed this proposition in the following terms:

"The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley [The Doctrine of Res Judicata, 3rd ed (1996), pp 79-80, par 170] where it is said that 'on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result' (emphasis added)."

1. The judgment given on Mr Turnbull's claim on 2 October 2012 undoubtedly affected the final result in respect of the cross-claims. Indeed, the existence of that judgment (as well as the satisfaction of that judgment by the Nominal Defendant) is a pre-condition to the Nominal Defendant's statutory rights to recovery of such an amount from the owner or driver of the vehicle under s 39 of the MACA.

1. In this regard, it is important to note the effect of s 22 of the Civil Procedure Act which provides:

"22 Defendant's right to cross-claim

(1) ... the court may grant to the defendant in any proceedings (the first proceedings) such relief against any person (whether or not a plaintiff in the proceedings) as the court might grant against that person in separate proceedings commenced by the defendant for that purpose.

...

(3) A person against whom a defendant makes a claim for relief under this section:

...

(b) if not already a party to the first proceedings:

(i) becomes a party to the first proceedings, and

(ii) unless the court otherwise orders, is bound by any judgment (including a judgment by consent or by default) or decision (including a decision by consent) on any claim for relief in the proceedings (including a claim for relief in any cross-claim in the proceedings)."

1. The effect of s 22(3)(b) of the Civil Procedure Act is that Diveva was made a "party to the first proceedings" and was bound by the judgment on Mr Turnbull's claim against the Nominal Defendant, because there was no order to the contrary.

1. It may be accepted that the issue estoppel on the "road" issue, which operated at the trial of the cross-claim, does not prevent an appeal by Diveva but it is critical to identify two distinct matters in this regard. First, what judgments or orders could Diveva have appealed against? Secondly, what judgment or orders has Diveva in fact appealed against?

1. As to the first matter, Diveva could have appealed the judgment of 2 October 2012 either prior to the determination of the cross-claims, with leave of the Court, or on an appeal against the final judgment given on 20 December 2012. However, Diveva did not pursue either course.

1. As to the second matter, as already noted, Diveva has only appealed against the judgment given on 20 December 2012, yet Diveva contends that it is able to appeal the determination of the "road" issue on its appeal against the final judgment given on 20 December 2012 without challenging the earlier judgment. This argument must be rejected.

1. Diveva cannot on the one hand fail to challenge the judgment given on 2 October 2012 in its notice of appeal and on the other, assert that this Court can correct that (interlocutory) judgment on appeal against the final judgment as it affected the final result.

1. In short, Ground 1 of Diveva's notice of appeal is doomed to failure, because Diveva cannot bring itself within the principle in Gerlach which it seeks to rely upon, when challenging the judgment of 20 December 2012, without also challenging the judgment of 2 October 2012, which it does not seek to do.

1. The remaining arguments raised by Diveva may be dealt with briefly.

1. As to the reliance on Champerslife Pty Ltd v Manojlovski, this case is readily distinguishable from the present circumstances. Factually the present question did not arise in Champerslife where the possibility of inconsistent judgments (one plaintiff's action dismissed, the other to go to trial) arose as a consequence of only one of the two plaintiffs appealing the dismissal of both plaintiffs' action. Champerslife does not concern circumstances such as the present where a party does not challenge on appeal against a final judgment, an interlocutory judgment by which it is bound in the absence of a successful appeal.

1. As to the submission that s 39(3) of the MACA, in effect, allows for inconsistent judgments as between Mr Turnbull's claim against the Nominal Defendant, and the Nominal Defendant's claim against Diveva as the "owner" of a vehicle, this suggested possibility simply does not arise in the present case.

1. This is because the judgment given on 2 October 2012 is binding on Diveva, in the absence of a successful appeal in respect of that judgment. No such appeal has been brought by Diveva. Diveva accepted on this application that the roller was a vehicle and was not licensed at the relevant time. There is simply no room for argument by Diveva on its appeal as filed, relying on s 39(3) of the MACA, that the roller was not required to be registered or insured under the MACA. This is because the only basis upon which Diveva seeks to advance such an argument is that the roller was not being operated on a "road" at the time of the accident. Such an argument requires a challenge to the judgment of 2 October 2012, and the joinder of Mr Turnbull as a necessary party, but Diveva has eschewed this course. Furthermore, Diveva did not suggest that it has any other argument which would preclude the Nominal Defendant's claim against it for recovery of a debt under s 39(1) of the MACA.

1. Finally and for completeness, it is appropriate to record my view, that Coastal's argument relying upon Stewart v Sydney County Council is misplaced. Stewart is authority for the proposition that facts found at a trial in which there is a cross-defendant also bind the cross-defendant. This is to avoid inconsistent judgments in the same proceedings. This has no direct application to the present case, because Diveva's appeal is not the "same" proceedings as the proceedings below. The appeal is a separate proceeding.

Conclusion

1. In the circumstances, the extension of time should be refused because the notice of appeal is not fairly arguable. The appeal is doomed to failure because, in the absence of challenging the judgment given on 2 October 2012, Diveva is bound by the decision on Mr Turnbull's claim as to the location of the accident being a "road" within the meaning of s 3 of the MACA. That decision can only be challenged by Diveva on appeal by seeking relief to set aside the judgment given on 2 October 2012. As a corollary, Diveva would need to join Mr Turnbull as a necessary party to such an appeal. Diveva has not done so.

1. Accordingly, Diveva's notice of motion filed 9 July 2013 should be dismissed with costs. The notice of appeal filed 25 June 2013 should also be dismissed with costs.

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Amendments

08 October 2013 - Amend "extend" to "extending"

Amended paragraphs: 31

Decision last updated: 08 October 2013