Haley v Daire

[2025] NSWCA 38

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Haley v Daire [2025] NSWCA 38

Hearing dates:

10 March 2025

Date of orders:

14 March 2025

Decision date:

14 March 2025

Before:

Stern JA

Decision:

(1)   Notice of Motion filed by the applicant on 3 December 2024 dismissed.

(2)   Applicant to pay the respondents’ costs of the motion.

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Judges of Appeal - Powers of - Power of single Judge of Appeal - Whether orders sought by motion are orders that could be properly made by a single Judge of Appeal

Legislation Cited:

Supreme Court Act 1970 (NSW), s 46

Uniform Civil Procedure Rules 2005 (NSW), r 31.16A

Cases Cited:

Daire v Haley (No 2) [2024] NSWSC 161

Neale v Commonwealth Bank of Australia Ltd [2015] NSWCA 136

Category:

Principal judgment

Parties:

Thomas Murray Haley (Applicant)
Kimberley Jane Daire (First Respondent)
Nikki Ann Daire (Second Respondent)

Representation:

Counsel:
Litigant in person (Applicant)
T K Egan (Respondents)

Solicitors:
Robinson Gill Lawyers (Respondents)

File Number(s):

2024/00450386

Publication restriction:

Nil

JUDGMENT

1. By orders of 27 February 2024 (corrected under the slip rule on 5 March 2024) Peden J entered judgment for possession of a property described by Folio Identifier Number 96/849197 sand located at 10 Graham Street, Moama, New South Wales (the Property), in favour of Kimberley Jane Daire and Nikki Ann Daire (the respondents): Daire v Haley (No 2) [2024] NSWSC 161. Her Honour also directed Thomas Murray Haley (the applicant) to withdraw caveat AR284250 over the Property within seven days. A writ of execution authorising entry by the Sheriff onto the Property was issued on 30 May 2024. On 24 September 2024 the respondents entered into a contract of sale for the Property, which completed on 9 October 2024.

2. The respondents are the applicant’s daughters.

3. By summons issued 3 December 2024 the applicant seeks leave to appeal against those orders of Peden J.

4. Also on 3 December 2024, the applicant filed a notice of motion seeking 17 orders (the Motion). In written submissions filed by the applicant on 7 March 2025, he added a further five orders to those he had sought in the Motion. The orders sought in the Motion, as supplemented by those sought in the submissions, ranged from asking this Court to order that the respondents be held in police custody to asking that the judgment of Peden J referred to above be declared “NULL & VOID”. During the course of the hearing before me on 10 March 2025 the applicant, who was representing himself, clarified that the substance of what he was actually asking this Court to order was that:

1. the contents of the Property, which he says was sold together with the Property, be returned to him;

2. documents which were stolen from the Property and from 4 Stirling Court, Moama, and then published, be returned to him;

3. the respondents be required to explain why they loosened the front left hand wheel nuts on a 2004 Magna at the Property in an attempt to kill the applicant on or about 23 October 2020;

4. a finding that the respondents published documents relating to two covert police officers which he says is a criminal offence in New South Wales;

5. documents on the court file be returned to the applicant; and

6. arrest warrants be issued against the respondents for the theft of documents and chattels at the Property, and against the solicitor for the respondents, Ms McKenzie, for having knowingly dealt with stolen documents, and that orders be made requiring that each of these three people attend court for questioning both by the applicant and by the Court.

5. I will deal with the Motion by reference to these six orders, rather than by reference to the more broad-ranging matters in the Motion and in the applicant’s written submissions. I would add that, to the extent that the applicant said in his Notice of Motion and written submissions that he was seeking relief either setting aside or varying the orders of Peden J, including as to costs, those are matters which fall for determination, if pressed by the applicant, as part of his application for leave to appeal and, if leave is granted, on the appeal. They are not matters that could properly be the subject of orders by a single judge of appeal under s 46 of the Supreme Court Act 1970 (NSW).

6. In support of the Motion the applicant relied upon an affidavit he filed together with the Motion on 3 December 2024. To the extent that the affidavit contained unsupported assertions these were read as statements of the applicant’s belief and matters which were more properly described as submission were read as such.

7. For their part, the respondents relied upon a short affidavit from Ms McKendrick affirmed on 27 February 2025.

8. Turning to the substance of the orders sought by the applicant, the threshold question is whether I have power to make any such orders. The orders sought by the applicant are not orders either in, or for the purposes of, his appeal. As Leeming JA held in Neale v Commonwealth Bank of Australia Ltd [2015] NSWCA 136 at [25], the power of a single judge of appeal under s 46 of the Supreme Court Act is a power to make orders “within the scope of the appeal which has been commenced” in the Court of Appeal. The orders sought by the applicant must be considered through that lens.

9. The first order, which seeks the return of the contents of the Property, is not an order in the appeal. The proceedings before Peden J did not involve any dispute as to the contents of the Property. It was a dispute about whether the applicant had a beneficial interest in the Property which was registered in the names of the respondents and as to withdrawal of a caveat.

10. The second order sought, relating to documents emanating from the Property and from another property, similarly falls beyond the scope of the appeal.

11. The same is true of the third order sought, which has as its focus an allegation by the applicant that the respondents loosened the wheel nuts on his car.

12. As to the fourth order, seeking a finding that the respondents are guilty of a criminal offence by reason of having published documents relating to covert police operations, that is a matter which properly raises matters of criminal liability. It falls well beyond anything that I could properly order in the context of the application for leave to appeal now before this Court.

13. The fifth order sought by the applicant is for the return to him of documents on the court file. It is apparent from the Motion that the applicant contends that the respondents tendered and relied upon stolen documents in the proceedings before Peden J, and that he seeks the return of those documents. Rule 31.16A of the Uniform Civil Procedure Rules 2005 (NSW) gives the registrar the power to return an exhibit to the party from whom it was received, but this power does not arise where there is an undisposed application for leave to appeal in respect of the proceedings. In any event, this would not avail the applicant here as he is seeking documents that were tendered by the respondents before Peden J (as is clear from his affidavit at [10]).

14. This is not an order which is sought for the purposes of the application for leave to appeal. The applicant simply wants the return of the documents that he says were stolen. In these circumstances, I am not satisfied that it falls within my power: s 46 of the Supreme Court Act. In any event, I would not make the order sought as it would not assist the court in dealing with the application for leave to appeal or the appeal and is more likely to hinder that task by removing material that was before Peden J from the court record.

15. The final order that the applicant sought is an order that the respondents and their solicitor be arrested and required to attend court for questioning. There is no suggestion that the questioning of the respondents or their solicitor is relevant to the issues on the proposed appeal. Rather, doing the best that I can from the applicant’s evidence and submissions, it appears that he seeks this order to enable prosecution for what he says are offences against the criminal law, including so that he can establish that the respondents stole documents (and potentially other things) from him. I do not see how these matters are relevant to the application for leave to appeal or the appeal. Leaving aside whether a single judge of appeal could ever make such orders, given that they would not be orders in the appeal they are beyond my power and I would not, in any event, make them in those circumstances.

16. Even to the extent that the orders sought could be construed simply as orders directing that the respondents and their solicitor attend to give oral evidence at the hearing of the application for leave to appeal or the appeal, the applicant has not advanced any good reason why I should make such order. He has not explained how such an order would assist the Court in dealing with his application for leave to appeal, nor even how the respondents and their solicitor’s evidence would be relevant to any issues arising on that application.

17. It follows that the Motion must be dismissed with costs. I would not, however, order indemnity costs. The applicant was self-represented and did not appear to have the benefit of any legal advice. His conduct did not reach the threshold for an order for indemnity costs.

18. My orders are:

1. Notice of Motion filed by the applicant on 3 December 2024 dismissed.

2. Applicant to pay the respondents’ costs of the motion.

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Decision last updated: 14 March 2025