GJ v AS
[2015] ACTCA 12
•14 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | GJ v AS |
Citation: | [2015] ACTCA 12 |
Hearing Date(s): | 18 March 2015 |
DecisionDate: | 14 April 2015 |
Before: | Refshauge J |
Decision: | That directions for preparation of the appeal be considered by the parties. |
Category: | Principal Judgment |
Catchwords: | APPEAL – PRACTICE AND PROCEDURE – Service of documents APPEAL – PRACTICE AND PROCEDURE – Certificate of Examination – Court transcripts – Certifying that documents are as described in the index |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 101, 2802, 5410, 5435, 5472, 5473, 6420(c), Div 2.31 Federal Court Rules 2011 (Cth), O 52 r 25(3) and (4) |
Cases Cited: | GJ v AS [2014] ACTSC 189 GJ v AS [2015] ACTSC 66 |
Texts Cited: | Dictionary to the Court Procedures Rules |
Parties: | GJ (Appellant) AS (Respondent) |
Representation: | Counsel GJ - Self Represented (Appellant) Mr S Malcolmson (Respondent) |
| Solicitors Self-represented (Appellant) Eaton Lawyers (Respondent) | |
File Number(s): | ACTCA 42 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Penfold J Date of Decision: 11 August 2014 Case Title: GJ v AS Citation: [2014] ACTSC 189 |
Refshauge J:
The Appellant, GJ, has commenced an appeal against a decision made by Penfold J on 11 August 2014. The Notice of Appeal was filed on 1 September 2014.
I do not need to address the issues involved in the appeal which is, I am informed by the Registrar, listed to be heard in the May 2015 sittings of the Court of Appeal.
In her Honour’s decision, GJ v AS [2014] ACTSC 189, the question of costs was reserved and her Honour gave leave to the parties to file and serve written submissions on that question. For reasons that will become relevant below, her Honour delivered the decision on costs, GJ v AS [2015] ACTSC 66, on 18 March 2015.
On 9 December 2014, the Respondent, AS, filed a Notice of Intention to Respond. That Notice, required by r 5410 of the Court Procedures Rules 2006 (ACT), is required to comply with the provisions of Div 2.31 of those Rules.
One of the relevant rules is r 101 of the Court Procedures Rules which sets out some of the requirements of the contents of the Notice. These include:
(a)whether the [respondent] is represented by a solicitor; and
(b)of the [respondent] is represented by a solicitor - the name of the solicitor; and
(c)the [respondent’s] address for service ...
The Notice of Intention to Respond did not include information that AS was represented by a solicitor nor the name of a solicitor. It was to be assumed at that date that he was, therefore, not so represented.
It gave an address for service as: PO Box 36, Curtin ACT 2605. This is an acceptable address for service under the definition of “address for service” in the Dictionary to the Court Procedures Rules.
Since the draft of these reasons was prepared, a Notice of Appointment of Solicitor (Form 2.73 under r 2802 of the Court Procedures Rules) has been filed. It shows that AS is now represented in proceedings from 8 April 2015. It shows, however, the same address for service.
Because of the delay in filing the appeal book in the proceedings, the matter was listed before me on 18 March 2015. Penfold J delivered the decision on costs referred to above (at [3]) immediately prior to the matter coming before me.
Despite there being no interlocutory process seeking any orders or directions, there were a number of affidavits on file relating to matters relevant to the preparation of the appeal for hearing. I read them before commencing the hearing.
At the hearing, AS was represented by Mr S Malcolmson of Counsel who, in the course of the hearing, referred to his instructing solicitor as Mr Paul Clough. This was inconsistent with the then filed Notice of Intention to Respond at the time. This has since been rectified as I have noted above (at [8]), but by apparently different lawyers.
It appeared from the affidavits that, as at 16 March 2015, AS had not received a copy of the draft Appeal Book which he was, of course, required to certify under r 5435(1) of the Court Procedures Rules.
An email from GJ stated that she had sent it to AS’s address for service but Australia Post had returned it saying that PO Box 36 Curtin ACT 2605 was “not his post office box any more”. A copy of the address portion of the Express Post envelope in which GJ had sent the draft appeal book was also in the evidence. It showed
Two things struck me about this addressing: “A S ...” is not a company name and “36” seemed an incomplete entry.
AS asserted that the inclusion of “A S ...” as a company name “would cause the mail to be rejected”. I do not know whether this is correct, but I would require further evidence before I would accept such an assertion. It seems unlikely that Australia Post would reject a package because it was addressed to a company but with a personal name, if the postal address is otherwise accurate.
The failure to include anything other than a number, however, may well interfere with delivery. On its own, “36” could be a Post Office Box number or a street number where the sender has omitted to state the street name. In any event, the address for service strictly includes the letters and word “PO Box” as well as the number “36” in the relevant space on the address.
No doubt, an astute Australia Post employee would realise that the former explanation, namely that it was meant to be “PO Box 36”, was what was meant, though this is not something that GJ should have left to chance and, in any event, she was required to use the full address for service which includes “PO Box”.
In any event, the reason asserted for Australia Post’s non-delivery was not that any of these problems prevented delivery, but that the box was no longer that of AS. AS denied this.
I do note, however, that a letter sent on 9 January 2015 by the Court of Appeal Clerk to AS addressed to the Post Office Box noted as the address for service was returned marked “RTS” which I understand is “Return to Sender”.
Strictly speaking, GJ had, it seems, properly served AS, as she had, in terms of r 6420(c) of the Court Procedures Rules sent the draft appeal book by prepaid post addressed to AS’s address for service. On the present state of the evidence, I would have no hesitation in so finding.
If a person chooses an address for service which is unreliable, then he, she or it cannot be heard to complain if he, she or it does not in fact receive a document served on the address for service in the way provided for by the Court Procedures Rules.
The problem is that the Court cannot, in this instance, sit back and rely on that approach, as it requires the appeal book to be filed. It helps no-one to delay this before the hearing of the appeal which is now listed. I shall address this further below.
At the hearing, Mr Malcolmson, helpfully and properly raised with me the possibility that GJ may wish to add to her appeal a challenge to the costs order just made in the proceedings from the earlier order in which she had already appealed. This would entail some amendment to the Notice of Appeal and, no doubt, also to the appeal book.
GJ indicated that she would wish to have the opportunity to consider whether to add an appeal against the costs order to her current appeal. As a result, I gave the following directions:
1.The Appellant advise the Respondent’s counsel, Mr Malcolmson, and Refshauge J’s Associate, on or before close of business on 21 March 2015, as to whether she proposes to appeal Penfold J’s decision as to costs and whether she seeks directions in relation to:
a.Amending of the Notice of Appeal;
b.Settling of an Appeal Index;
c.The issue of service.
2.Such directions, if required, will be made by Refshauge J in Chambers and will include leave for either party to relist the matter for Directions.
3.The Appellant be permitted to identify pages in the court transcript which she believes should be excluded and email this information to the Respondent’s counsel, Mr Malcolmson, who may consent to the exclusions.
4.Until further notice, there be no publication of the names of the parties in the Appeal in this Court, other than by order of a judge.
On 21 March 2015, GJ did advise that she wished to appeal against the order for costs. She indicated that she was able to file an amended Notice of Appeal by 26 March 2015. That Notice of Appeal has now been filed and I have directed that it be accepted and can be served.
GJ also filed an amended Index of the Appeal Papers. That substitutes the Amended Notice of Appeal for the Notice of Appeal and added the decision on costs. Those are appropriate additions.
GJ has expressed concern about the Certificate of Examination required under r 5435(1) of the Court Procedures Rules. That Certificate states that “the papers have been examined and are correct”. GJ says that the transcript is “not correct”. She says that there was a small segment on which she proposed to rely in relation to her application that the trial judge disqualify herself. There was, she says, a “distortion of the tape”.
It is, of course, desirable that the contents of the appeal book represent as accurately as possible the material that was before the court below and the record of the oral proceedings.
In the past, it was common for the parties in a long running case to raise each morning any errors that they had found in the transcript and have them corrected. This now rarely happens. It is not possible for short matters and even in long matters parties do not always go to the expense of obtaining a daily transcript. Even when that is done, it is uncommon for the court’s attention to be drawn daily to any corrections sought to the transcript.
That may be the result in the improvement of the quality of transcripts, though errors are still made from time to time.
When the Federal Court of Australia was the court of appeal from the Supreme Court of the ACT, there was specific regulation for the preparation of the transcript. Thus, O 52 r 25(3) and (4) of the Federal Court Rules (Cth), which came into operation on 5 September 1988, provided:
(3)Where the appellant obtains a copy of the transcript referred to in paragraph (1)(b) [i.e. from the Court Reporting Branch] he shall –
(a)correct any errors that appear in it;
(b)submit a list of his corrections to the respondent; and
(c)afford the respondent a reasonable opportunity of examining the transcript and corrections.
(4)If the parties disagree upon the accuracy of any part of the transcript, or are unable to agree upon a correction, the question shall be submitted to the proper officer of the court or judge below for the directions of the court or judge on that matter.
Such a provision does not appear in the Federal Court Rules 2011 (Cth) nor in the Court Procedures Rules. That sort of formal, expensive and time-consuming process, has, no doubt, become unrealistic with the improvements in technology, the rising costs of litigation and the increase in the number of unrepresented litigants, to name three of the relevant considerations.
It seems to me that, while still desirable to ensure the accuracy of the transcript, that errors, if detected and agreed between the parties, can be identified and rectified, the certificate required under r 5435(1) of the Court Procedures Rules (Certificate of Examination) is not intended to certify that the contents of the transcript of evidence are accurate without error.
Rather, it is to certify that the transcript, as produced by what is, after all, a transcript provider contracted to the court, through the government, is what is included in the appeal book. Similarly, the accuracy of the contents of the other documents will not be vouched by the execution of the certificate; indeed, many statements in them will be strenuously contested by one party or another. The Certificate of Examination is intended to certify that the documents as described in the settled index are those that are included in the Appeal Book and only those are included.
If GJ wishes to bring to the attention of the Court of Appeal the omissions she says are in the transcript, she should file an affidavit setting out what she says is the content of the omitted portion of the transcript and seek to read that on the appeal.
AS, through his lawyers, also intimated that he wished to challenge the competency of the appeal. Such an application is regulated by rr 5472 and 5473 of the Court Procedures Rules.
The lawyers for AS asserted in an email to my associate, a copy of which was forwarded to GJ, that
... the issue of the competency of this appeal to the Court of Appeal is a leave issue and should be of no surprise to the appellant.
Given that the Notice of Appeal was filed on 1 September 2014, it is unfortunate that such an apparently obvious issue was not properly addressed earlier.
Under r 5472 of the Court Procedures Rules an application to strike out an appeal as incompetent must be made to the Court. The Court of Appeal lists applications, such as these (and others, such as for bail) twice each month. Thus, AS has had sixteen opportunities to make the necessary application to the court.
Where no such application is made and the Court of Appeal ultimately strikes out the appeal as incompetent, r 5473 of the Court Procedures Rules provides that there are costs consequences for the respondent, here AS.
Since the appeal has now been listed to commence on 8 May 2015 and the last application day for the Court of Appeal in April 2015 is 15 April and the first application day for May 2015 is 6 May, AS seems to me to have lost the opportunity to avoid the relevant cost consequences. It is a matter for AS to address, however, in such a way as he wishes to do so and I will not make any directions about this issue.
I have prepared draft directions which I have distributed to the parties to give effect to these reasons. I shall hear the parties and then give appropriate directions for the necessary completion of the preparation of the appeal to be heard in the May sittings of the Court of Appeal.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Judgment of his Honour Justice Refshauge. Associate: Date: 14 April 2015 |
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