Doble v Chaffey Services Pty Ltd - [2023] WASCA 180

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DOBLE -v- CHAFFEY SERVICES PTY LTD [2023] WASCA 180
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   7 DECEMBER 2023
DELIVERED          :   14 DECEMBER 2023
FILE NO/S:   CACV 115 of 2023
BETWEEN:   MICHAEL PAUL DOBLE
First Appellant
KIRAHNLEY PTY LTD trading as KTR SERVICES
Second Appellant
AND
CHAFFEY SERVICES PTY LTD as trustee for CATABY SERVICES TRUST, trading as CATABY SERVICES
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: CHAFFEY SERVICES PTY LTD AS TRUSTEE FOR CATABY SERVICES TRUST, T/A CATABY SERVICES -v- DOBLE [No 4] [2023] WASC 361
File Number            :   CIV 1854 of 2020

Catchwords:

Appeals - Practice and procedure - Application to permanently stay respondent's cross‑appeal as an abuse of process - Where respondent previously commenced and discontinued an appeal against orders the subject of the present cross‑appeal - Whether a litigant can bring second or subsequent appeal against same orders

Legislation:

Supreme Court Act 1935 (WA), s 58, s 59
Supreme Court (Court of Appeal) Rules 2005 (WA), r 31A, r 59

Result:

Cross‑appeal dismissed as incompetent

Category: A

Representation:

Counsel:

First Appellant	:	D H Solomon
Second Appellant	:	D H Solomon
Respondent	:	B Kremer SC

Solicitors:

First Appellant	:	Solomon Brothers
Second Appellant	:	Solomon Brothers
Respondent	:	Bennett

Case(s) referred to in decision(s):

Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232; (2011) 42 WAR 224
Bridges v The Queen (1998) 20 WAR 59
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616
Chaffey Services Pty Ltd v Doble [No 4] [2023] WASC 361
Chang v Legal Profession Complaints Committee [2021] WASCA 86
Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369
Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
El-Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 742; (2004) 138 FCR 338
Hastie v The Queen [1981] WAR 365
JS v The State of Western Australia [2014] WASCA 177
Nguyen v The State of Western Australia [No 2] [2019] WASCA 5
Ponnambalam v the State of Western Australia [2015] WASCA 185
R v Bell (1987) 8 NSWLR 311
The Owners of the Cargo of the 'Kronprinz' v The Owners of the 'Kronprinz' (1887) 12 App Cas 256
WACF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 234
Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28

JUDGMENT OF THE COURT:

Overview

The appellants' application in an appeal dated 8 November 2023 before the court raises the following question: can a respondent commence and proceed with a cross-appeal against orders of the primary court where the respondent has earlier commenced and discontinued an appeal against those same orders?
In the circumstances of the present appeal, the answer to that question is 'no'. It follows that the respondent's cross-appeal against the appellants must be dismissed as incompetent.

Background

The background facts are not in dispute:
1.The primary judge (Tottle J) made orders on 5 October 2023 providing, among other things, that pursuant to s 1317H(1) of the Corporations Act 2001 (Cth) the appellants pay compensation to the respondent in the amount of $99,793.98. Orders were also made for interest and costs. See Chaffey Services Pty Ltd v Doble [No 4] [2023] WASC 361.
2.On 13 October 2023 the respondent commenced an appeal against the primary court's orders made 5 October 2023 by lodging an appeal notice in accordance with Form 2. That appeal was appeal CACV/112/2023.
3.On 16 October 2023 the respondent discontinued appeal CACV/112/2023 (ie its appeal against the primary court's orders made 5 October 2023) by lodging a discontinuance notice in accordance with Form 16. In accordance with Form 16 the discontinuance notice contained the standard acknowledgement:
The appellant [ie the present respondent and purported cross‑appellant] acknowledges that by discontinuing this appeal:
(a)the appeal is brought to an end; and
(b)the appeal cannot subsequently be continued or reinstated.
4.On 23 October 2023 the appellants commenced an appeal against the primary court's orders made 5 October 2023 by lodging an appeal notice in accordance with Form 2. That appeal is the present appeal (appeal CACV/115/2023).
5.On 31 October 2023 the respondent filed a notice of respondent's intention in accordance with Form 4 in appeal CACV/115/2023. The respondent stated that it intended to take part in the appeal. On the same day the respondent separately filed a Form 4A notice of respondent's cross-appeal in appeal CACV/115/2023. This stated, in accordance with the relevant form, that the respondent 'also appeals against the primary court's decision specified in the appellants' appeal notice'.
Accordingly, by the cross-appeal in appeal CACV/115/2023, the respondent purports to appeal against the same orders of the primary court made 5 October 2023 that were the subject of the respondent's discontinued appeal in appeal CACV/112/2023.

The application before the court

The appellants have applied, by an application in an appeal dated 8 November 2023, for an order that the respondent's cross‑appeal be permanently stayed as an abuse of process.
There is no application before the court by the respondent seeking to withdraw its discontinuance notice in appeal CACV/112/2023 or to have that notice set aside. Such an application would need to be made in the discontinued appeal. The respondent's position is that such an application is not necessary as it is able to pursue its cross-appeal as of right in the present appeal.
The appellants' submissions in support of the application are succinct. The appellants say that, by r 59(1B) of the Supreme Court (Court of Appeal) Rules 2005 (WA),[1] discontinued appeal CACV/112/2023 is deemed to be dismissed. Accordingly, as is made clear by the acknowledgement in the prescribed Form 16, r 59(1B) extinguished the statutory right to appeal. It brought that right to an end through complete exercise of the right. In those circumstances the recommencement of an appeal against the orders made 5 October 2023 was an abuse of process.
[1] Referred to below as the Rules.
The respondent characterises the appellants' application as misconceived.
The respondent accepts that it invoked the court's appellate jurisdiction by its appeal notice in appeal CACV/112/2023. However, there was no decision on the merits. The respondent says that r 59(1B)'s effect of deemed dismissal simply means that there is no longer any live proceedings in the court's appellate jurisdiction. Another, new proceeding was created when the appellants appealed in the present appeal. Rule 31(1) then permitted the respondent to file a Form 4 enlivening, under r 31A(1), a right in the respondent to appeal 'against the decision specified in the appellants' appeal notice'.
In other words, according to the respondent, the appeal being on foot, the respondent had a right to seek to vary the primary court's orders within the appellants' appeal. The cross-appeal being regularly invoked under r 31A there could be no abuse of process in its commencement. Nor, in the absence of any determination on the merits, was there any abuse of process in maintaining the cross-appeal - there was, in the respondent's submission, nothing unjustifiably oppressive to the appellants or anything that would bring the administration of justice into disrepute.

Consideration and disposition

Appeals are creatures of statute. A right of appeal exists to the extent, and only to the extent, that a statutory provision confers a right of appeal.[2] The main source of this court's jurisdiction to hear civil appeals against orders or judgments of the General Division of the Supreme Court of Western Australia is found in s 58 and s 59 of the Supreme Court Act 1935 (WA). In this regard, by s 58(1), the court has jurisdiction to hear and determine:
(a)applications … to set aside or vary any … judgment … made in any cause or matter tried or heard by a judge…;
(b)… appeals from a judge … whether sitting in court or in chambers[.]
[2] Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220, 225; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616, 619; Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 [14].
The relevant provisions both confer the authority of this court to hear and determine an appeal in respect of the matters as specified and, implicitly, the right of a litigant to invoke that authority. So understood, the effect of the provision is to confer rights of appeal in the specified respects.
In written submissions the respondent, by senior counsel, was critical of the so-described 'non-statutory terminology' of 'right of appeal' when used in the appellants' written submissions. We do not accept that criticism. The ability to appeal against a judgment or order is commonly spoken of in terms of being a right. That characterisation is ordinarily appropriate as a matter of law. For example, in Worrall v Commercial Banking Co of Sydney Ltd Barton, Isaacs & Rich JJ observed that '[p]rocedure may and generally does surround it, but the central notion of an appeal is undoubtedly a right'.[3]
[3] Worrall v Commercial Banking Co of Sydney Ltd [1917] HCA 67; (1917) 24 CLR 28, 31.
Among other things the Rules provide for the procedural means by which a litigant may exercise his or her statutory right of appeal. There is, in this regard, an express power to make rules for the purpose of regulating the procedure and practice to be followed on appeal.[4] Relevantly, pt 5 of the Rules provides for the procedure for appeals. Within pt 5 provision is made for commencing an appeal (div 2) and concluding an appeal (div 7).
[4] Supreme Court Act s 167(1)(j). See also s 167(1)(a), (ba), (bb) & (ia).
Rule 29 provides for the mechanism by which an appellant commences a civil appeal. On the commencement of a civil appeal the respondent has various options (Rules r 31). These include, by r 31(1), filing a Form 4 notice of respondent's intention. Where a Form 4 is filed r 31A has a potential operation. Rule 31A relevantly provides:
31A.Cross appeals
(1)If under rule 31 a respondent files a Form 4, the respondent may also appeal (cross appeal) against the decision specified in the appellant's appeal notice.
(2)To commence a cross appeal, a respondent must file a Form 4A within 7 days after the date on which the respondent is served with the appeal notice.
(3)These rules apply to a cross appeal to the same extent as they apply to an appeal, unless a single judge orders otherwise in a particular case.
The Rules contemplate a number of different ways in which a civil appeal may 'conclude' (the term 'concluded' is defined by r 3 to mean 'decided, dismissed or discontinued'). There is express reference to discontinuing an appeal (Rules r 59) or settling an appeal (Rules r 60). Otherwise, as is implicit in s 58(1) of the Supreme Court Act, the court may hear and determine the appeal. In a criminal appeal, but not a civil appeal, a Form 17 certificate of conclusion of appeal will be issued (Rules r 62). With a civil appeal, except where the appeal is concluded by it being discontinued, a registrar must prepare, sign and seal the judgment or order of the court (Rules r 63).
Rule 59 relevantly applies as to discontinuing an appeal:
(1)The appellant may discontinue an appeal by filing and serving a Form 16.
…
(1B)Subject to subrule (2), the appeal is deemed to be dismissed on filing a Form 16.
…
(5)In an appeal where the respondent also appeals against the primary court's decision, subrules (1) to (4) and Form 16 apply with any necessary changes.
(6)The discontinuance of an appeal by the appellant does not affect any appeal by a respondent who also appeals against the primary court's decision.
Rule 59(2) is not presently material. It provides for discontinuance where an appellant is under a disability.
Rule 59(1B) was introduced with effect from 1 January 2023.[5] Immediately before 1 January 2023 the Rules did not expressly provide for a deemed dismissal. However, the concept of a deemed dismissal was provided for under the Criminal Practice Rules 1914 (WA) which applied to the Court of Criminal Appeal in Western Australia before the creation of this court. It was well established in that context that the effect of that provision was that, unless the discontinuance[6] was a nullity, so far as the court was concerned the appeal was deemed to have been finally dismissed.[7]
[5] Supreme Court (Court of Appeal) Amendment Rules (No 2) 2022 (WA) r 23.
[6] Then referred to as a 'notice of abandonment' conformably with O IX r 13 of the Criminal Practice Rules.
[7] Hastie v The Queen [1981] WAR 365, 367 - 368; Bridges v The Queen (1998) 20 WAR 59, 70.
As McLure P noted in JS,[8] two related issues may arise in this context. The first is whether the relevant statutory provision permits multiple (or at least more than one) appeals against a primary order. A second issue is whether the court has power to re-open the first appeal to permit the appellant to raise new grounds of appeal. A third issue, not mentioned by McLure P, is whether the court has power to set aside or permit an appellant to withdraw a discontinuance notice in the first appeal. We are presently concerned with only the first of those issues.
[8] JS v The State of Western Australia [2014] WASCA 177 [3].
Hastie was a case in which an appellant purported to institute two appeals against his criminal conviction and sought leave to withdraw his notice of abandonment of the first appeal. The court was dealing with Mr Hastie's application for leave to withdraw his notice of abandonment of the first appeal.[9] Hastie was therefore directly concerned with the third rather than the first of the questions noted at [20] above. However, it is implicit in the concluding observation of Burt CJ that any injustice in that case could be corrected only by an Attorney General's reference, 'but not otherwise',[10] that the second appeal in Hastie was incompetent.
[9] Hastie v The Queen (366).
[10] Hastie v The Queen (368).
We note that the New South Wales Court of Criminal Appeal has taken a broader view of the power to permit an appellant to withdraw a discontinuance notice under similar provisions to those considered in Hastie.[11] However, nothing in the New South Wales approach suggests that it is competent for an appellant to discontinue an appeal and then commence a second appeal against the same orders.
[11] R v Bell (1987) 8 NSWLR 311, 314.
Rule 59(1B) reintroduces the concept of a deemed dismissal of an appeal on the filing of a discontinuance notice. This, conformably with Hastie and Bridges, brings about a deemed final dismissal on filing of the discontinuance notice. Moreover, given the background of the decisions in Hastie and Bridges against which r 59(1B) was introduced, it is likely that, on the proper construction of r 59(1B), the court's power to set aside or permit an appellant to withdraw a discontinuance notice will be confined conformably with the decisions in Hastie and Bridges. Such a construction reflects the ordinary and natural meaning of the statutory text and is supported by the context to which the appellants referred. The acknowledgement provided for in Form 16 is just as much a warning as it is a recognition. However, it is unnecessary in this case to determine the scope of the court's power to set aside or permit an appellant to withdraw a discontinuance notice. The critical question for this court is whether, having discontinued the first appeal without having sought to have the discontinuance notice set aside, the respondents may cross-appeal against the same orders that were the subject of the first appeal.
It is convenient, at this point, to consider what the position was as at 23 October 2023 immediately before the appellants commenced appeal CACV/115/2023. The primary court had made orders. The respondent had commenced an appeal against those orders. But then, by the respondent's discontinuance notice, that appeal was deemed to have been finally dismissed. Subject to the capacity to set aside or grant leave to withdraw the discontinuance notice, this court became functus officio so far as that appeal proceeding was concerned. On what basis, then, might the respondent be able to commence and proceed with a second appeal against the primary court's orders made 5 October 2023?
There is, in our opinion, nothing in the text, context or purpose of div 6 of pt IV of the Supreme Court Act that supports the conclusion that in relation to orders of the kind made by the primary court a litigant can appeal more than once against the same orders.[12] Commonly, provisions conferring statutory rights of appeal are construed as authorising only a single appeal so that an appellant is not entitled to commence multiple appeals from the same decision.[13] Similarly, it is settled that in the civil context this court is not conferred with jurisdiction or power to reconsider its perfected orders.[14] We are, in the circumstances, unable to accept that s 58(1)(a) or s 58(1)(b) on their proper construction permit second or subsequent appeals. To our minds that would be a startling intrusion on the principle of finality in litigation which forms part of the context in which the statutory right of appeal is to be construed.
[12] Compare, by way of example, the clear words in pt 3A of the Criminal Appeals Act 2004 (WA) conferring, with leave, certain rights to bring a second or subsequent appeal against conviction (see esp s 35E(1)).
[13] Chang v Legal Profession Complaints Committee [2021] WASCA 86 [44] - [45]. See also, in the federal context, El-Masri v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 742; (2004) 138 FCR 338 [14] - [15], [18], [21] - [24] (approved in: WACF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 234 [8]; Christodoulou v Disney Enterprises Inc [2006] FCAFC 183; (2006) 156 FCR 369 [44]).
[14] Amaca Pty Ltd v Hannell [No 2] [2011] WASCA 232; (2011) 42 WAR 224 [7] ‑ [8], [24], [26] ‑ [27]; JS v The State of Western Australia [14]; Nguyen v The State of Western Australia [No 2] [2019] WASCA 5 [29].
Put simply, a litigant has but one appeal as of right or by leave under s 58(1)(a) or s 58(1)(b) of the Supreme Court Act. Section 58(1)(a) and s 58(1)(b) do not, on their proper construction, authorise a litigant to institute a second appeal from the same judgment or order. The right of appeal once exercised is exhausted; it is not a right to appeal from time to time. Once the right of appeal under s 58(1)(a) or s 58(1)(b) of the Supreme Court Act has been exercised no further right of appeal may be invoked.
Nor, it must be said, did senior counsel for the respondent attempt to justify the cross-appeal in appeal CACV/115/2023 by reference to s 58(1)(a) or s 58(1)(b) of the Supreme Court Act. Instead senior counsel for the respondent relied solely on r 31A(1) of the Rules.
Rule 31A(1) does not create a right of appeal which is independent of and in addition to a respondent's statutory right of appeal. Rule 31A(1) simply provides a convenient procedural mechanism which a litigant with a subsisting right of appeal may avail itself of in exercising that statutory right. The litigant may do so in the appellate proceeding in which it is a respondent rather than instituting new appellate proceedings. But r 31A(1) is not to be construed as itself conferring a right to appeal where there is otherwise no such subsisting right. Rule 31A(1) does no more than take the court's jurisdiction and powers as found elsewhere and provide for the procedure and practice whereby that jurisdiction and those powers may be invoked and exercised. Anything further would exceed the limits of the rule making power under s 167(1) of the Supreme Court Act.

Accordingly, contrary to the respondent's contention, r 31A(1) of the Rules did not entitle the respondent to commence and proceed with a second appeal against the primary court's orders made 5 October 2023. Nor, for the reasons we have given, was there such a right under s 58(1)(a) or s 58(1)(b) of the Supreme Court Act. Rather, by filing the appeal notice in appeal CACV/112/2023 the respondent exhausted its single right to appeal against the orders of the primary court made 5 October 2023; that appeal was concluded when the respondent filed the Form 16 discontinuance notice because the appeal was, in terms of r 59(1B) of the Rules, finally dismissed. The respondent was unable to institute a second appeal against the primary court's orders whether by cross-appeal or otherwise. For that reason the cross-appeal is incompetent and is doomed to fail.
For completeness we observe that the respondent, by its written submissions, sought to make something of the circumstance that in the General Division of the Supreme Court the discontinuance of an action does not necessarily preclude a plaintiff later commencing fresh proceedings for the same claim. That possibility may be accepted. So too it may be accepted that in the General Division of the Supreme Court there is power to permit a plaintiff in a civil action to withdraw a notice of discontinuance, there having been no determination on the merits. But it is only because the civil cause of action survives the discontinuance that a plaintiff can commence a further civil action at first instance.[15]
[15] Ponnambalam v the State of Western Australia [2015] WASCA 185 [29] - [31] (referring to The Owners of the Cargo of the 'Kronprinz' v The Owners of the 'Kronprinz' (1887) 12 App Cas 256).
The difficulty for the respondent in respect of its purported cross-appeal is that in the present circumstances there is but one appeal provided for by statute. An appeal against the orders of the primary court made 5 October 2023 having been commenced, but then being discontinued with the consequential result that the respondent's one appeal is deemed to be dismissed, the respondent cannot appeal a second time against the same orders. The respondent's purported cross-appeal is incompetent.

Conclusion and orders

Proceedings will constitute an abuse of process if they are clearly doomed to fail or are plainly unsustainable. That is the only basis on which the appellants' contention that the cross-appeal is an abuse of process could be accepted. This is not a case of unjustifiable oppression or bringing the administration of justice into disrepute.
However, it is, in the circumstances, inappropriate to order a permanent stay of the cross-appeal. Instead the appropriate relief in the circumstances is an order that the cross-appeal is dismissed as being incompetent. As far as costs are concerned, however, the appellants have been substantially successful on the application in an appeal dated 8 November 2023.
Nothing in these reasons affects whether there is a proper basis for the respondent to seek leave to withdraw or to set aside the discontinuance notice in appeal CACV/112/2023. The respondent did not make any application to this effect. If such an application is made it will need to be considered on its merits.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Vaughan
14 DECEMBER 2023