Giurina v Greater Geelong City Council [No 3]

[2022] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0044

ERMANNO GIURINA AS EXECUTOR OF THE ESTATE OF C NACINOVICH	Applicant
v
GREATER GEELONG CITY COUNCIL	First Respondent
and
BUILDING APPEALS BOARD [No 3]	Second Respondent

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JUDGES:	KENNEDY JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the Papers
DATE OF JUDGMENT:	14 April 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 70

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PRACTICE AND PROCEDURE – Court of Appeal – Applications – Filing – Power of Registrar – Application to reopen proceeding after judgment – Registrar refused to accept documents for filing – Applicant sought judicial direction to Registrar to accept documents for filing – Application for direction refused – Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] [2018] VSCA 203 applied – Supreme Court (General Civil Procedure) Rules 2015 r 64.43(1), (5).

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APPEARANCES:	Counsel	Solicitors
No appearances

KENNEDY JA:

Background

1. The applicant brought a judicial review proceeding under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’) which sought to challenge two emergency orders made under s 102 of the BuildingAct 1993.  A trial judge dismissed the judicial review proceeding, with costs. 

1. On 18 November 2021, this Court refused the applicant leave to appeal.[1]  The order refusing leave to appeal was entered.

   [1]Giurina v Greater Geelong City Council & Anor [2021] VSCA 318 (‘Reasons’). These reasons should be read in conjunction with those Reasons.

1. The findings of this Court included a finding that the second Emergency Order was not served in accordance with the Act.  However, this did not constitute a basis for challenging the making of the order itself.  The Court also found that the applicant did not challenge any actions taken after the making of the second Emergency Order.[2]

   [2]Reasons, [96]–[101]; and see also [26].

1. On 4 April 2022, the applicant submitted two documents for filing as follows:

(i)         application to set aside dismissal of application for leave to appeal;  and

(ii)       submissions in support of the application to set aside dismissal of application for leave to appeal.

1. In his application, the applicant relied on the inherent jurisdiction of the Court, and sought resolution of an ‘outstanding issue.’  This issue was said to be ‘whether the non-compliance of the relevant service requirement by the First Respondent in relation to the second Emergency Order means that all steps taken by the First Respondent in reliance on that order after it was made are unlawful and prevents the Applicant from being liable in any way for failing to comply with the second Emergency Order’.  In his submissions, the applicant stated that the ‘outstanding issue’ was raised by para [8] and proposed ground 5 of his amended application for leave to appeal.  He sought a range of orders, including that the orders made on 18 November 2021 be ‘set aside.’

1. By email of 6 April 2022, the applicant was advised that, for the reasons set out thereafter, the documents were not accepted for filing and were rejected by the Registrar.  The reasons included the following:

Documents not accepted for filing

Proposed ground 5 paragraph 8 of the orders sought and the “outstanding issue” you contend ought now be determined have been squarely addressed by the Court.  While the Court’s reasons must be read in their entirety, I refer you to the following paragraphs in particular:

·Giurina v Greater Geelong City Council & Anor [2021] VSCA 318, [91] to [101]; and

·Giurina v Greater Geelong City Council & Anor [2021] VSCA 341, [7] to [8].

As the Court has determined your amended application for leave to appeal, following an oral hearing, the Court has no jurisdiction to consider your proposed application or the further submissions you wish to make. That position is reinforced by rule 64.17 of the Rules. Accordingly, in accordance with rules 28A.04(2)[3] and 64.43(1)[4] of the Rules, your documents are rejected because they are frivolous and/or would give rise to an abuse of the process of the Court if they were accepted for filing.

Having rejected your documents, it is open to you to apply for a Judge of Appeal to direct the Registrar to accept them for filing pursuant to rules 28A.04(5) and 64.43(5) of the Rules.

[3]           Rule 28A.04(2) provides as follows:

Powers of Prothonotary or Registrar

…(2) The Prothonotary or the Registrar may reject a document if the Prothonotary or Registrar considers that—

(a) a document, if it were sealed, would be substantially irregular or constitute an abuse of process;  or

(b) there has been a failure to comply with the Rules, an order of the Court or a direction of the Prothonotary or the Registrar after a reasonable opportunity to do so.

[4]          Rule 64.43(1) provides as follows:

Further powers of Registrar

(1) The Registrar may refuse to accept for filing any application, including for leave to appeal, notice of appeal or other notice, written case, written case in response, affidavit or other document if the Registrar considers that—

(a) the document is irregular;

(b) the document is frivolous or vexatious on its face or by reference to any materials already filed or submitted for filing;  or

(c) the filing of the document would give rise to an abuse of the process of the Court.

1. On 8 April 2022, the applicant applied to have the matter referred to a Judge or Judges of Appeal pursuant to r 64.43(5).  This rule provides that the Court of Appeal constituted by one or more judges of appeal may direct the Registrar to accept for filing any document which the Registrar has refused to accept under that rule.

1. I have determined that it was neither necessary or desirable to have an oral hearing to determine the application,[5] and have proceeded to consider the matter on the papers.

   [5]Pursuant to r 64.15(2), which provides as follows:

   64.15 Procedure for determination of application by single Judge of Appeal

   …(2) If the single Judge of Appeal considers that it is necessary or desirable to have an oral hearing to deal with the application, the Judge may direct that there be an oral hearing.

Resolution

1. As recorded above, the Court has already determined that the applicant did not seek any orders directed to the steps taken after, and in reliance on, the second Emergency Order, in his judicial review proceeding.  The Court also dealt with, and made final orders disposing of the proceeding.

1. Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2][6] concerned a similar application to set aside orders already made and authenticated by the Court.[7]  Following a decision of a Registrar not to accept the application for filing, Maxwell P refused an application for a direction to the Registrar to accept the document, stating:

Put simply, the proceeding in this Court was at an end and could not be reopened.  As the High Court reaffirmed in Burrell v The Queen, once the order disposing of Bodycorp’s application for leave to appeal had been perfected, the Court had no power to reopen the proceeding.  The plurality in Burrell reaffirmed the general rule to that effect stated in Grierson v The King. Their Honours pointed out that there was no authority for the proposition that the “general rule…should be qualified according to whether there had been a denial of procedural fairness”.[8]

[6][2018] VSCA 203 (Maxwell P) (‘Bodycorp’).

[7]Although there had also been an unsuccessful application for special leave to appeal in that matter.

[8]Ibid [9];  citing R v McNamara [No 2] [1997] 1 VR 257; Burrell v The Queen (2008) 238 CLR 218; Grierson v The King (1938) 60 CLR 431. See also Jafari v 23 Developments Pty Ltd [No 2] [2020] VSCA 187 (Niall JA).

1. An  application for special leave to appeal from the decision of Maxwell P was refused.  In his reasons for refusing special leave, Keane J wrote: ‘[t]he applicant’s application for leave to appeal is futile because the proceeding in the Court of Appeal was at an end and there was no power to reopen the proceeding once the order made on 22 February 2018 had been authenticated’.[9]

   [9]Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2019] HCATrans 55.

1. The purpose of this application is to widen the scope of the judicial review proceeding after a full hearing in the trial division, and on appeal, inconsistent with principles of finality.  Moreover, the applicant seeks to overturn orders which have already been authenticated.  Consistent with Bodycorp, this Court has no power to reopen the proceeding and set aside an authenticated order such that the application is bound to fail.  Rather, subject to a grant of special leave, the decision of the Court of Appeal finally and conclusively dealt with all matters the subject of the judicial review proceeding.

1. The Registrar was therefore correct to refuse to accept the documents for filing on the basis that they would give rise to an abuse of process and/or were frivolous.  The application for a direction to the Registrar must be refused.

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