Fleet v Royal Society for the Prevention of Cruelty to Animals NSW

[2008] NSWCA 227

New South Wales

Court of Appeal

CITATION:	Fleet v Royal Society for the Prevention of Cruelty to Animals NSW & Ors [2008] NSWCA 227
HEARING DATE(S):	8 September 2008
JUDGMENT DATE:	24 September 2008
JUDGMENT OF:	Basten JA at 1; Campbell JA at 1; Handley AJA at 1
DECISION:	Notice of Motion filed by Dr Fleet 28 July 2008 dismissed with costs.
CATCHWORDS:	PRACTICE AND PROCEDURE – Supreme Court procedure – where appellant seeks review of interlocutory decisions made in a Division of the Supreme Court in the Court of Appeal – where appellant does not seek leave to appeal in accordance with s 101(2)(e) Supreme Court Act 1970 – where appellant seeks to bring proceedings in the nature of a “case stated” – whether statute or general law entitled court to hear “case stated” – where appellant alleges judgments obtained by fraud – whether continuation of proceedings an abuse of process – where appellant seeks order varying or discharging decision of single judge of Court of Appeal – whether appellant pointed to error in decision – where appellant seeks other orders – where orders sought could only be made by Court of Appeal as ancillary to proceedings properly on foot
LEGISLATION CITED:	Arbitration Act 1902 Civil Procedure Act 2005 Criminal Appeal Act 1912 Justices Act 1902 Supreme Court Act 1970 Supreme Court Rules Uniform Civil Procedure Rules
CATEGORY:	Principal judgment
CASES CITED:	Application of Cannar; re Eubanks [2003] NSWSC 802 Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163 Ex parte Groot; Re Myers (1958) 75 WN (NSW) 496 Fleet v Royal Society for Prevention of Cruelty to Animals NSW [2005] NSWSC 926 Fleet v Royal Society for the Prevention of Cruelty to Animals [2007] NSWSC 1420 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2007] NSWSC 334 Kotsis v Kotsis (1969) 14 FLR 481 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 Rockcote Industries Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2007] NSWCA 128; (2007) 165 IR 7 Wentworth v Wentworth (1994) 35 NSWLR 726
PARTIES:	Robert Fleet (Applicant) Royal Society for the Prevention of Cruelty to Animals NSW (First Respondent) Louise Mary Parker (Second Respondent) Graeme Dymond (Third Respondent) State of New South Wales (Fourth Respondent) District Court of New South Wales (Fifth Respondent)
FILE NUMBER(S):	CA 40175/08
COUNSEL:	In person (Applicant) D Kelly (First to Third Respondents) G Bateman (Fourth Respondent) Submitting Appearance (Fifth Respondent)
SOLICITORS:	In person (Applicant) Moray & Agnew, Sydney (First to Third Respondents) Crown Solicitor's Office (Fourth Respondent) Crown Solicitor's Office, submitting appearance (Fifth Respondent)
LOWER COURT DATE OF DECISION:	21 July 2008

CA 40175/08

BASTEN JA
CAMPBELL JA
HANDLEY AJA

24 SEPTEMBER 2008

DR ROBERT FLEET v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS NSW & ORS

The judgment of THE COURT delivered by:

1 CAMPBELL JA: This is the hearing of a notice of motion filed on 28 July 2008. It is brought by Dr Robert Fleet seeking to stay or quash a decision given by Bell JA on 21 July 2008. It also seeks some other orders, which we will mention later. Bell JA had ordered that proceedings that Dr Fleet had begun by summons in the Court of Appeal be dismissed.

2 Before considering the present notice of motion, we should state some of the litigious background that has led to it.

The Proceedings in the Common Law Division

3 The litigation had its origin on 5 March 1997, when Dr Fleet’s dog was removed from premises at Seven Hills, and later put down. Dr Fleet alleges that it was police officers who removed the dog, and RSPCA officers who put him down. Dr Fleet subsequently had some differences of opinion with officers of the RSPCA and the police about the circumstances in which this had been done, and about how Dr Fleet was later treated by both the police and RSPCA.

4 Dr Fleet started proceedings in the Common Law Division of the Supreme Court on 5 August 2003, against five respondents. They are the Royal Society for the Prevention of Cruelty to Animals NSW, a Ms Parker, a Mr Dymond, the State of New South Wales, and the District Court of New South Wales. Ms Parker and Mr Dymond are both officers of the RSPCA. The State was sued as the entity responsible for any wrongful conduct that police officers had engaged in.

5 The District Court has been dismissed from the proceedings in the Common Law Division, and does not take any active part in the proceedings in the Court of Appeal, so there is no need to review the allegations that were made concerning it.

6 The history of the proceedings in the Common Law Division that bears upon today’s application starts with a decision of Assistant Registrar Howe on 19 October 2004. By the time of that decision the statement of claim in Dr Fleet’s litigation had been amended several times. The allegations against the first four defendants were of wrongful arrest, false imprisonment, torture, malicious prosecution, trespass to the person, trespass to property, and fraud. Assistant Registrar Howe on 19 October 2004, exercising jurisdiction delegated to him by Master Malpass (as his Honour then was), heard applications for summary dismissal or alternatively striking out of the then form of the statement of claim.

7 Howe AR took the view that the pleading of the causes of action against the first four defendants did not comply with the rules. Those aspects of the pleading were struck out, but the proceedings were not dismissed.

8 Master Malpass on 11 April 2005, on a review of the decision of Assistant Registrar Howe, declined to alter it.

9 Johnson J on 22 July 2005 heard an appeal from that decision of Master Malpass. In a reserved judgment, Johnson J dismissed the appeal save in one respect concerning costs, granted leave to the applicant to file a further amended statement of claim within 28 days, and ordered that a certificate be issued pursuant to Part 66A Supreme Court Rules for referral of the applicant to a barrister and solicitor for assistance in drafting and settling the further amended statement of claim: Fleet v Royal Society for Prevention of Cruelty to Animals NSW [2005] NSWSC 926.

10 The leave to amend was not exercised within the 28 days that Johnson J had fixed. The first, second and third respondents took out a notice of motion seeking to have the proceedings dismissed for want of prosecution. James J on 2 February 2006 declined to dismiss the proceedings, and gave Dr Fleet a further 28 days in which to file and serve an amended statement of claim.

11 That leave was exercised within time.

12 Each of the respondents then sought to attack the redrafted statement of claim. They each sought to have certain identified parts of it struck out. Simpson J heard their applications and, in reasons for judgment delivered on 16 April 2007, said in part of her judgment that it was appropriate to strike out the whole of the statement of claim: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2007] NSWSC 334. However her Honour recognised that in saying that, she was contemplating a wider order than the respondents had asked for – they had sought to have only certain identified parts struck out (though the District Court had sought to have all parts relating to it struck out.). Simpson J expressed the view that the deficiencies were not remediable by granting leave to re-plead, and thus indicated that she would not grant any such leave. Thus she ordered that the matter be re-listed for the making of orders identifying the particular parts that were to be struck out. One of the grounds on which Simpson J indicated that she would strike out some parts of the statement of claim was that various of the causes of action were statute barred at the time the proceedings were commenced, and no application had been made to extend the limitation period.

13 Dr Fleet then filed another notice of motion on 8 May 2007, in the Common Law Division, seeking to have the judgment of Simpson J, and the foreshadowed orders, set aside, and numerous other orders.

14 The proceedings came back before Simpson J on 28 May 2007, and on that day her Honour actually made the orders striking out parts of the statement of claim. The evidence before us does not make clear when or before whom the notice of motion filed on 8 May 2007 was returnable, but it appears that Simpson J made no actual orders on 28 May 2007 concerning the notice of motion of 8 May 2007.

15 In some fashion that does not emerge from the evidence, that notice of motion came before Grove J later in the day on 28 May 2007, at a time that the respondents were not before Grove J. His Honour declined to deal with the notice of motion when the respondents were not present. He offered Dr Fleet the opinion that a challenge to an order made by a judge is not capable of being dealt with by another judge, and that any challenge to the orders of Simpson J would need to be made in the Court of Appeal.

16 On 27 November 2007 Harrison AsJ heard a notice of motion brought by the first second and third respondents. By that time, in accordance with the orders of Simpson J, the only causes of action alleged against the first second and third respondents that remained in the pleading were some causes of action alleged to have arisen on 6 August 1997 and subsequently. Harrison AsJ struck out all of those remaining causes of action: Fleet v Royal Society for the Prevention of Cruelty to Animals [2007] NSWSC 1420. The pleading against the fourth defendant at that stage contained some causes of action that had arisen before 5 August 1997, and some that had arisen afterwards. Harrison AsJ struck out the causes of action against the fourth defendant that arose before 5 August 2007 on the ground that they were statute barred. However, the fourth defendant did not seek striking out of pleadings against it relating to events on or after 6 August 1997. Harrison AsJ expressed the view that those causes of action were not properly pleaded, and that she would not grant Dr Fleet yet another opportunity to replead. However, when the fourth respondent was content to go to trial on the basis of a deficient statement of claim, her Honour did not take any further action concerning the form of the statement of claim.

17 On 22 February 2008 Dr Fleet filed a notice of motion in the Common Law Division seeking to review, stay, quash or set aside various previous orders and judgments of the Supreme Court, including adverse orders of Johnson J and Harrison AsJ. The notice of motion came before McCallum J on 3 March 2008. Dr Fleet sought an adjournment to file further evidence, that McCallum J declined to grant. McCallum J dismissed the motion, on the ground that she did not have jurisdiction to make the orders sought in it.

18 On 11 April 2008 Harrison AsJ dealt with costs, in so far as they arose from the proceedings that she had considered. She ordered Dr Fleet to pay the costs of the first, second and third respondents of the proceedings, and to pay the costs of the fourth defendant of its notice of motion. She made those orders, but declined to order that costs be paid on the indemnity basis.

19 It will be recalled that Dr Fleet had filed a notice of motion on 8 May 2008, that Grove J declined to deal with. That notice of motion apparently had remained undisposed of for about a year. It eventually came before McCallum J on 13 June 2008. On that occasion Dr Fleet pointed out that UCPR 36.16 enabled the Court to set aside or vary a judgment or order if notice of motion for that setting aside or variation is filed before the judgment is entered. The notice of motion of 8 May 2007 had indeed been filed before any of the orders of Simpson J were entered. McCallum J rejected an application that she disqualify herself. She dismissed the motion with costs.

The Proceedings Before Bell JA

20 Bell JA had four separate processes before her on 21 July 2008.

(1) The first of them was a summons that Dr Fleet had filed in the Court of Appeal on 12 June 2008. We will consider it in more detail below.

(2) The second was a notice of motion filed in the Court of Appeal by the first, second and third respondents on 10 July 2008, seeking orders that the whole of that summons be dismissed as incompetent. The basis on which that order was sought was Rule 51.41(1) UCPR . The notice of motion proceeded on the basis that there had been a failure to comply with a long list of the requirements that Part 51 UCPR imposed on applications for leave to appeal.

(3) The third process before Bell JA was a notice of motion by the fourth respondent, filed on 11 July 2008. That sought dismissal of the Court of Appeal summons under UCPR 13.4 (which permits dismissal, inter alia, of proceedings that are an abuse of process), or its striking out under UCPR 4.15 (ultimately not separately addressed) or UCPR 14.28 (permitting striking out, inter alia, of proceedings that are an abuse of process).

(4) The fourth process that was before Bell JA was an amended notice of motion that Dr Fleet had filed on 18 July 2008. While it sought a large variety of orders, that to a large extent repeated those sought in the summons of 12 June 2008, it also sought dismissal of the two notices of motion brought by the respondents and that were before Bell JA. It was that order that was pressed before Bell JA.

21 The notice of motion of the first, second and third respondents had assumed that the summons was in effect an application for leave to appeal. Early in the proceedings before Bell JA Dr Fleet made it clear that that assumption was incorrect – his application was not an application to appeal or for leave to appeal. Counsel for the first, second and third respondents then sought and was granted leave to claim the same relief that the fourth respondent was seeking.

22 In sitting as a single judge to hear the motions brought by the respondents, Bell JA was exercising powers conferred by section 46(1)(b) Supreme Court Act 1970. That provision empowers a single judge of the Court of Appeal to exercise the powers of the Court of Appeal to dismiss an appeal or other proceedings for want of prosecution or for any other cause specified in the rules. In the present case it was not alleged that there had been any want of prosecution, and instead it was the “other cause specified in the rules” that the respondents relied upon. That “other cause” was said to be abuse of process, under the rules we have identified.

23 We mentioned earlier that the proceedings in the Court of Appeal were begun by a summons, filed on 12 June 2008. The summons is procedurally unusual, in that it calls itself a “stated case”, and seeks relief concerning numerous decisions of judicial officers or aspects of such decisions. The summons does not identify exhaustively the proceedings in the court below that Dr Fleet seeks to attack, but says that he wants orders relating to proceedings “including” some identified ones. The proceedings that are specifically identified in the summons are not all the decisions that the Common Law Division has made concerning his litigation. However, it seems that he wants the scope of his Court of Appeal proceedings also to be identified from a set of written submissions filed on 12 June 2008, that makes reference to the various decisions of judges and judicial officers in the Common Law Division mentioned earlier in this judgment, and also to what are said to be some additional decisions. These additional decisions are said to be ones of Registrar Bradford on 1 May 2008 and 25 January 2008, and Harrison AsJ 11 April 2008, and each is said to be a refusal of a request made by Dr Fleet for a “stated case”. There is no evidence on the present application of precisely what application was made to Registrar Bradford and Harrison AsJ for a “stated case”, or how it was dealt with, but lack of evidence on those topics will not prevent the present notice of motion from being dealt with.

24 The written submissions filed on 12 June 2008 alleged that various of the decisions that were unfavourable to Dr Fleet in the court below are unjust. It is unnecessary to identify all the respects in which those decisions are alleged to be unjust. Repeated themes include, that a decision:

“(a) promoted the interests of the Respondents/Defendants and their legal representatives, (b) effectively denied myself the benefit of access to justice, (c) effectively denied myself equal protection and equal benefit of the law, (d) effectively denied myself ‘equal and effective legal protection against discrimination on all grounds’, (e) were oppressive to myself, (f) were unfair to myself, and (g) breached the International Covenant on Civil and Political Rights (including Article 14(1)), and a matter of international concern.”

25 Another concern of Dr Fleet is expressed as follows:

“(4) I have been terrorised, and I am being terrorised.
(5) I submit that, those responsible for committing the terrorism against myself are the relevant Respondents and parties connected to/linked to/traced back to these Respondents.”

26 Dr Fleet submits that various of the judicial officers in the Common Law Division were biased, and acted against good faith. Various of the judicial officers are alleged to have denied Dr Fleet natural justice. The alleged denial of natural justice springs from many causes, including being “effectively denied the right to present my case to the Court in an adequate and complete manner” and “effectively denied the right to cross-examine the respondents’ affidavit witnesses”. There are allegations that “there has been a pattern of conduct/behaviour by the Respondents whereby they have engaged in fraudulent misrepresentations to the relevant Court”. Dr Fleet also submits that various of the judicial officers did not exercise the caution that is appropriate in granting summary relief or disposition of a case.

27 Dr Fleet’s written submissions also contain a number of other types of complaint. Following is an incomplete list, that notwithstanding its incompleteness still conveys something of the variety of the complaints made. One is a complaint about the action of Ms Greenwood, the Principal Registrar of the Court, in refusing to supply him with copies of notices of motion that were dealt with by the Court. Another is that he has been “effectively denied” discovery and interrogatories, but there is no evidence that he ever filed a notice of motion asking the Court to order them. Another is that there has been an abuse of process in the defendants filing repeated notices of motion with the objective of having his proceedings struck out or dismissed. While he sometimes refers to the repeated applications by the inappropriate title “double jeopardy”, I take it to be a complaint of abuse of process. Another is that he claimed trial by jury and it was not ordered.

28 The written submissions ended with a list of questions that Dr Fleet wished the Court to answer. The questions cast his submissions into the form of questions, and include questions such as:

“Does the ‘effective denial of the Applicant access to Information’ constitute an unfair trial to the Applicant?
…
Does the fraud/fraudulent misrepresentations by the Respondents and their legal representatives constitute a miscarriage of justice to the Applicant?
…
Does the denial of the Applicant’s Human Rights, by the Supreme Court of New South Wales (including the Courts comprising McCallum J, & Simpson J, & Harrison Assoc J) constitute a denial of natural justice or miscarriage of justice to the Applicant?”

29 In his argument on the present motion Dr Fleet has made various submissions to us, about his home being broken into, papers relevant to his case being stolen, various acts of vandalism occurring at his home, and threats of serious violence being made against him personally. He contends that it is the respondents “and/or parties connected to/linked to/traced back to these Respondents” who are responsible. He submits that these matters interfered with his ability to present his case in the Common Law Division, and provide yet another way in which the decisions in the Common Law Division have involved injustice to him.

The Types of Relief Sought in the Summons

30 While there is a great diversity of grounds of complaint in the submissions, the characterisation of the proceedings, for present purposes, is ascertained by considering the relief that the summons seeks. The relief that he sought in the summons that was before Bell JA falls into three separate categories.

31 One of them is relief said to be available under sections 65, 69 or 23 Supreme Court Act, the inherent power of the court, or various identified provisions of the rules. It is relief that quashes various of the decisions that have been made against Dr Fleet in the Common Law Division, and that remits the proceedings to the judge in question to determine according to law. Section 65 enables the court to order any person to fulfil any duty in the fulfilment of which the plaintiff is personally interested. It enables the court to make orders somewhat like mandamus, but without being hedged around by the technicalities of the common law of mandamus. Section 69 enables the Court, in the sorts of proceedings where before the enactment of the Supreme Court Act it would have had jurisdiction to issue any prerogative writ, to make orders to the like effect without actually issuing a writ. Section 23 provides that a court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.

32 The second category of relief claimed in the summons is an order in the nature of an injunction, namely a "protection order for the applicant and his residential home, possessions, documents, Court documents and evidence."

33 The third category of relief is various orders of a procedural nature – “an extension of time (if necessary)”, dispensing with “any requirements of the Rules of court (if necessary)”, a stay of the orders in the court below, leave to amend originating process in the Common Law proceedings, and orders for costs and interest.

Bell JA’s Decision

34 Bell JA noted, correctly, that all the orders in the Common Law Division that Dr Fleet seeks to challenge are interlocutory orders in respect of which he has not applied for leave to appeal. She records, at [21],

"He has emphatically informed the court that his summons, which he drafted himself, is not intended to serve as an application for leave to appeal or a notice of appeal."

35 As I understand Bell JA’s decision, there are two separate strands of thought in it. The first is that, to the extent to which the relief sought in the summons is in the nature of prerogative relief directed to a judge of the Supreme Court it is relief that is beyond the jurisdiction of the Court to grant. Thus, she reasons, to the extent to which the proceedings sought that type of relief they must inevitably fail, and hence continuing them would be an abuse of process. The second is that, to the extent that the Court might have jurisdiction, the summons sought to challenge the correctness of various interlocutory decisions in the Common Law Division, concerning which Dr Fleet had not sought leave to appeal, and it was an abuse of process to allow the proceedings to continue in those circumstances.

36 It is clear that one judge of the Supreme Court of New South Wales will not issue an order in the nature of a prerogative order against another judge of the Supreme Court, or an officer of the Supreme Court: Kotsis v Kotsis (1969) 14 FLR 481 at 483 per Wallace P, Asprey and Mason JJA; Ex parte Groot; Re Myers (1958) 75 WN (NSW) 496 per Street CJ, Owen and Herron JJ. That situation is a consequence of the inherent nature of prerogative orders, as being orders whereby a superior court takes steps to keep courts or tribunals of limited jurisdiction operating within proper legal confines and standards: Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2007] NSWCA 128; (2007) 165 IR 7 at [83]; Craig v South Australia [1995] HCA 58; (1994) 184 CLR 163 at 175-6 and other cases referred to by Bell J in Application of Cannar; re Eubanks [2003] NSWSC 802 at [20]-[22]. The first strand of thought in Bell JA’s judgment was, with respect, clearly correct.

37 In his submissions before us, Dr Fleet made clear that he was seeking to invoke any head of jurisdiction available to him that would enable this Court to examine and correct the various injustices he submits he has been subjected to by the various interlocutory decisions in the Common Law Division. He says that, while he referred to section 65 and section 69 Supreme Court Act as possible sources of power for the Court’s orders, they were just part of an array of provisions that he relies on in the alternative, so the unavailability of orders in the nature of prerogative orders is not fatal to the eventual success of his summons. In particular, he relied upon a variety of procedural rules as entitling him to challenge the various interlocutory decisions in the Common Law Division by means of a “case stated”.

38 Before examining those procedural rules we shall mention briefly the sort of proceeding that Dr Fleet seeks to bring by his summons. A case stated is a type of procedure whereby a question that arises in connection with a dispute that is being decided or has been decided by a particular type of tribunal can be submitted to another, higher tribunal for determination. Examples are the procedure that existed under the former section 101 Justices Act 1902 whereby an appeal from a decision of Justices could be brought to the Supreme Court by way of special case, and the procedure that existed under the former section 19 Arbitration Act 1902 whereby a referee, arbitrator or an umpire could state a case for the opinion of the Supreme Court on a question of law arising in the course of the reference. There were also, at common law, certain powers whereby justices could state a case for the opinion of the Assize judges before the justices had completed their adjudication, or whereby they could state the facts and a problem they had regarded as difficult as an appendix to their conviction or order, so that the facts and the problem could be reviewed by the Queens Bench court if the decision of the justices was challenged by certiorari: D M Gordon, “Cases Stated under Common Law” (1973) 89 LQR 545. Many of the statutory provisions that formerly allowed for cases stated have now been repealed: but, in the criminal jurisdiction, cf Criminal Appeal Act 1912, sections 5B and 5BA.

39 Any case stated that is brought to the Court of Appeal must be brought under some applicable general law provision, or pursuant to a statute enabling a case stated to be brought concerning the type of question and in the type of circumstances that apply to that particular case stated.

40 There are some topics concerning which a proceeding somewhat analogous to a case stated can still properly be brought in the Court of Appeal. One of them arises under section 101A Supreme Court Act 1970, whereby after the conclusion of contempt proceedings in which an alleged contemnor has been found not to have committed contempt, the Attorney-General can submit to the Court of Appeal a question of law arising from or in connection with the proceedings. Another arises in the operation of section 51 Supreme Court Act and UCPR 1.21, which enables proceedings in a Division to be removed into the Court of Appeal. In some circumstances, particularly when a novel point of law has arisen in proceedings at first instance, it can be expedient for the proceedings to be removed into the Court of Appeal for the purpose of considering that novel point – that course was adopted in Riley McKay Pty Ltd v McKay [1982] 1 NSWLR 264 to achieve a prompt resolution of the then-novel question of the availability of Mareva orders in New South Wales.

41 Dr Fleet did not shrink from seeking to identify the statutory provisions, and the general law rights, that he relied on as entitling the Court of Appeal to hear his “case stated”.

42 We shall consider those provisions in turn.

Section 19(a) Supreme Court Act 1970

43 The first is the provision in section 19(1) Supreme Court Act that says:

“In this Act and in the rules, except in so far as the context or subject-matter otherwise indicates or requires:
…
stated case means a case stated by the Court in a Division under the rules or under any Act or a case stated under any Act by any other court or by any judge of any other court or other person for the opinion, decision, direction or determination of the Court, and includes:
(a) an award in the form of a case stated under section 9 of the Arbitration Act 1902 , and
(b) a matter referred under section 85 of the Superannuation Act 1916 .

44 Dr Fleet submits that he is an “other person” within that definition.

45 This provision does not, of itself, confer any entitlement on Dr Fleet to bring his “case stated” in the Court of Appeal. It is purely a definition section. Further, the syntax of the definition can be expressed as follows:

“ stated case means:
(1) a case stated by the Court in a Division under the rules or under any Act or
(2) a case stated under any Act by:
i any other court or
ii by any judge of any other court or other person
for the opinion, decision, direction or determination of the Court, and includes:
(a) an award in the form of a case stated under section 9 of the Arbitration Act 1902 , and
(b) a matter referred under section 85 of the Superannuation Act 1916 .”

46 Thus, it is still necessary for a case stated by an “other person” to be “stated under any Act”, before it falls within the definition. The definition could apply to Dr Fleet’s summons only if he could identify an Act that authorised the bringing of his stated case.

Schedule 3(4) Civil Procedure Act 2005

47 The second provision on which Dr Fleet relies is Schedule 3(4) of the Civil Procedure Act 2005. Schedule 3 identifies topics concerning which the Uniform Rules Committee is given power to make Rules by section 9(2) Civil Procedure Act. Clause 4 of Schedule 3 states:

“The form and contents of any case stated to the court by or from any other court or person, and the time within which and the manner in which proceedings on a stated case are to be commenced and maintained and the court’s decision notified.”

48 That rule-making power has been exercised by the enactment of UCPR 6.33-6.41. Those provisions relate only to the types of stated case identified in UCPR 6.34, and in Commonwealth legislation that “picks up” that procedure. Dr Fleet’s proceedings are of none of those types.

Uniform Civil Procedure Rule 6.4(1)(d)

49 The next provision on which Dr Fleet relies is UCPR 6.4(1)(d), which requires proceedings on a stated case to be commenced by summons. That Rule, of itself, confers no entitlement to bring proceedings by way of stated case, whether in the Court of Appeal or anywhere else.

Uniform Civil Procedure Rule 51.45

50 Dr Fleet also reminded us of the provisions of UCPR 51.45, which provides:

“(1) Proceedings in the Court (other than appeal proceedings) must be commenced by summons.
(2) An applicant in any such proceedings must file written submissions with the summons in accordance with subrule (3).”

51 In that rule, “the Court” means the Court of Appeal - UCPR 51.2 definition of “Court”.

52 It is in accordance with UCPR 51.45, he says, that he has begun his proceedings by summons, and filed written submissions with the summons. But UCPR 51.45 does not of itself confer a right to bring proceedings in the Court of Appeal, of a kind that seeks to review a decision made in a Division of the Court by a procedure other than appeal.

Uniform Civil Procedure Rules 36.15 and 36.16

53 Two other provisions of UCPR to which Dr Fleet points are:

“ 36.15 General power to set aside judgment or order
(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.
(2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.
36.16 Further power to set aside or vary judgment or order
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2) The court may set aside or vary a judgment or order after it has been entered if:
(a) it is a default judgment, or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or
(c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
(3B) Within 14 days after a judgment or order is entered, the court may of its own motion set aside or vary the judgment or order as if the judgment or order had not been entered.
(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).
(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.”

54 UCPR 36.15(2) is clearly not applicable, as there is no consent to the setting aside of any of the interlocutory orders that Dr Fleet wishes to challenge.

55 UCPR 36.16 cannot be used as a basis for the Court of Appeal summons in the present case. By the time the Court of Appeal summons was taken out, all the judgments or orders of the Common Law Division that Dr Fleet wishes to challenge would have been entered. Thus, UCPR 36.16(1) cannot provide a basis of power for the Court of Appeal summons. None of the circumstances listed in UCPR 36.16(2), whereby a judgment or order may be set aside or varied after it has been entered, apply to the present judgments and orders.

56 One reason why UCPR 36.16(3) could not justify the summons in the present case is that aspects of the decisions below that Dr Fleet wishes to challenge include the orders striking out all his claims against the first, second and third defendants, and striking out some of his claims against the police, in each case without granting leave to replead. Those orders determine those claims for relief. It would be essential for Dr Fleet successfully to overcome the orders in the Common Law Division determining those claims in his proceedings if his summons was to achieve any practical objective – yet orders that determine a claim for relief are outside the ambit of review under UCPR 36.16(3).

57 While UCPR 36.16(3A) provides a separate head of power to UCPR 36.16(3), and is not subject to the limitations of UCPR 36.16(3) (Rockcote Industries Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [10]), it is subject to a different limitation, in the form of a stringent and unextendable time limit. When the summons was not taken out within 14 days after any of the judgments or orders that are sought to be attacked were entered, UCPR 36.16(3A) is not applicable.

58 UCPR 36.16(3B) is manifestly not applicable to the present summons, as the summons is one brought by Dr Fleet, and is not an application made by the Court of its own motion.

59 That leaves only UCPR 36.15(1) as a potential candidate for a head of power under which the proceedings are brought. But it is not available in the present case. For a judgment to be set aside under UCPR 36.15(1) is an exercise of original jurisdiction. The procedural mode by which UCPR 36.15(1) is invoked as a stand-alone source of power to set aside a judgment or order, is by an application to a first instance judge. The power under UCPR 36.15(1) can be exercised by an appellate court if, in the course of appellate proceedings properly instituted, the court is satisfied that a judgment was given or entered, or an order was made irregularly, illegally or against good faith. However, for the Court of Appeal to exercise that power incidentally, in the course of disposing of a properly instituted appeal, is quite a different thing to the Court of Appeal hearing proceedings begun for the purpose of invoking UCPR 36.15(1).

60 We recognise that in bringing the notice of motion filed 8 May 2007, Dr Fleet was seeking to rely on both UCPR 36.15(1), and 36.16(3A). However McCallum J dismissed that notice of motion.

Judgments Obtained by Fraud

61 Dr Fleet also relied upon the inherent power of the Court to set aside a judgment obtained by fraud. While the jurisdiction of the Court to set aside a judgment obtained by fraud is undoubted, the procedural manner in which it is invoked is by separate proceedings, brought at first instance, that distinctly allege the fraud that is relied upon.

Conclusions

62 These are the only candidates for heads of legal power that permit the bringing of a “case stated” in the Court of Appeal in the present case. In these circumstances, we conclude that the procedure of a “case stated” is not available as a procedure whereby interlocutory decisions made in a Division of the Supreme Court can be challenged in the Court of Appeal. That provides a reason why the continuation of the entire summons is an abuse of process.

63 Section 101 Supreme Court Act provides:

“(1) Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from:
(a) any judgment or order of the Court in a Division, and
…
(2) An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from:
…
(e) an interlocutory judgment or order in proceedings in the Court …”

64 UCPR 51.10 requires an application for leave to appeal to be made by summons that is filed and served within a particular time, unless the Court grants an extension of that time. UCPR 51.12 lays down in considerable detail the type of supporting documentation that a party seeking leave to appeal must file. Those requirements exist both so that any opposing party can be properly informed about the nature of the case it is to meet, and so the Court itself can make a decision about the appropriate administrative procedure to adopt for deciding the application for leave to appeal. A particularly significant administrative decision that the Court makes is the one provided for by UCPR 51.14, deciding whether the application for leave to appeal should be decided concurrently with another application or applications for leave to appeal or cross-appeal, or concurrently with argument on an appeal or cross-appeal.

65 The practical effect of the “stated case” procedure that Dr Fleet seeks to adopt would be, if it were permitted, to enable review of the merits of interlocutory decisions that have not been appealed from, and concerning which leave to appeal has not been sought and granted. The evident purpose of section 101(2)(e) Supreme Court Act is that interlocutory decisions of the Court in a Division will be reviewed not as of right, but only on those occasions when the Court of Appeal grants leave for them to be reviewed. Dr Fleet claims an entitlement to have his “case stated” heard and determined, as of right, and without any need for a prior grant of leave to bring the proceedings. In our view, it would involve an abuse of the process of the Court to seek to circumvent its rules and procedures by permitting to continue the novel type of proceedings that Dr Fleet’s summons purported to commence. This attempt at circumventing section 101(2)(e) provides a separate way in which continuation of the proceedings involves an abuse of process.

66 There are other unsatisfactory features of the summons and written submissions, that could not be allowed to go uncorrected if the proceedings were otherwise in order. The conclusory nature of various statements in Dr Fleet’s documentation, that are important to the argument he wishes to run (examples of which we have quoted at paras [24] and [25] above) are not supported by any evidence that provides a particular basis of fact for the assertions made. There have been no findings by any trial judge of any basic facts that support these conclusory assertions. The Court of Appeal is not generally the venue in which disputed questions of fact are proved and decided for the first time. Finally, the “questions” posed by the “stated case” (para [28] above) are cast in terms that would not be appropriate for a court to answer. However, it is not necessary to rely on these unsatisfactory features to conclude that continuance of the summons would be an abuse of process.

67 In all these circumstances, the conclusion of Bell JA that the continuance of the proceedings based upon the Court of Appeal summons would be an abuse of process was, in our respectful view, correct.

68 The conclusion we have come to does not involve reaching any conclusion about the correctness or otherwise of Dr Fleet’s allegations that he has been subjected to various serious injustices in the court below. What it means is that he has sought (in part) relief that is beyond the jurisdiction of the Court to grant, that he has endeavoured to use a procedural vehicle that is not available as a means of having those alleged injustices reviewed, and that he has deliberately not adopted the correct procedural vehicle, namely an application for leave to appeal.

69 Dr Fleet has informed us in oral submissions that concerning at least one of the interlocutory decisions he tried to apply for leave to appeal, but his documents were rejected by the Registry. Accepting for the purposes of the present application that that is so, that does not detract from the conclusion that to seek to examine the decisions in the court below other than by the making of an application for leave to appeal involves, in the present case, an abuse of process.

The Present Notice of Motion

70 The notice of motion asks that we quash the decision of Bell JA. There are the same insuperable problems for this three-member bench of the Court of Appeal to granting relief in the nature of prerogative relief against the decision of Bell JA as her Honour identified concerning the Court of Appeal granting relief in the nature of prerogative relief concerning a decision of a first instance judicial officer of the Supreme Court.

71 However, there is provision in section 46(4) Supreme Court Act for the Court of Appeal to discharge or vary a judgment given by a single judge of the Court of Appeal. We will treat the notice of motion as claiming that type of relief. While an application under section 46(4) is not the equivalent of an appeal, it is still necessary to point to some error in the decision concerning which the review is sought: see Wentworth v Wentworth (1994) 35 NSWLR 726, 729-731 (Mahoney JA), 733 (Handley JA), and 736-7 (Powell JA); Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 at [4].

72 For the reasons we have earlier given, there is no such error in Bell JA’s decision.

73 While Bell JA did not deal separately with Dr Fleet’s claim for an injunction (para [32] above), it is clear that the only basis on which the Court of Appeal could grant an order of this general type (assuming that the manifest drafting deficiencies in the order as claimed were corrected) would be as an order for preservation of property pending determination of the summons. If the rest of the summons is not a viable one, any claim for an order for preservation of property pending determination of the summons is also not viable. Similarly, Bell JA did not deal separately with Dr Fleet’s claim for procedural orders (para [33] above), but those orders could likewise only be made in the Court of Appeal as an adjunct to viable proceedings in the Court of Appeal. Bell JA was right to dismiss the summons in its entirety.

74 We mentioned that the notice of motion now before the court seeks orders other than staying or quashing the decision of Bell JA. In summary, they are:

(a) leave to rely on grounds that were not put forward in the original application;

(b) a stay of the decision of Bell JA and all the decisions against Dr Fleet in “any appropriate lower court” ;

(c) costs of this motion, and of the proceedings heard by Bell JA, with interest;

(d) an amendment to the “Stated Case” ;

(e) an order (it is not clear against whom) that he be supplied with copies of transcripts (it seems of the proceedings before Bell JA and all proceedings in the Common Law Division) and the notice of motion documents heard by Simpson J and Harrison AsJ;

(f) an order that the notices of motion of the respondents, that Bell JA heard, be dismissed or struck out;

(g) an injunction

“that restrains/prevents/prohibits the Respondents and parties connected to/linked to/traced back to these Respondents from (a) coming within one hundred metres of Dr Robert Fleet; (b) causing any harm, injury, damage, detriment, and loss to Dr Robert Fleet; (c) engaging in any intimidation, abuse, bullying, harassment, discrimination against, or any interference with, Dr Robert Fleet; (d) coming within one hundred metres of the property at [Dr Fleet’s address], or causing any damage/detriment/ loss to the property at [Dr Fleet’s address]; and (e) engaging in any form of terrorism against Dr Robert Fleet.”

75 These orders also are ones that could be made by the Court of Appeal only (if at all) as ancillary to proceedings properly on foot in the Court of Appeal. In these circumstances, the whole of the present notice of motion must be dismissed.

Orders

76 The orders that Bell JA made on 21 July 2008 included orders that the summons filed 12 June 2008 be dismissed, and that Dr Fleet’s amended motion filed 18 July 2008 and dated 16 July 2008 be dismissed. There is no occasion for this Court to alter those orders. The order we make is:

Notice of Motion filed by Dr Fleet on 28 July 2008 dismissed with costs.

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