Hussain & Anor v Sok Kheng & Anor

[2015] ACTCA 42

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Citation:

Hussain & Anor v Ngep & Anor (No 2)

[2015] ACTCA 42

Hearing Date(s):

Wednesday 19 August 2015

DecisionDate:

Wednesday 19 August 2015

Before:

Robinson AJ

Decision:

The application is stood over to a date to be fixed.

Category:

Procedural and other rulings

Catchwords:

PROCEDURE – Appeal principles – appeal from interlocutory judgement of the Court of Appeal.

Legislation Cited:

Court Procedure Rules 2006 (ACT)

Supreme Court Act 1933 (ACT) ss37J

Cases Cited:

Davey v Herbst (No 2) [2012] ACTCA 19
Hughes v Janrule Pty Ltd (2011) 177 ACTR 1

Wagdy Hanna and Associaties Pty Ltd v Gavagna (2014) ACTCA 36

Parties:

Mohammad Hussain (First Appellant)

M.M. International (Australia) Pty Ltd ACN 088 104 170 (Second Appellant)

Sok Kheng Ngep (First Respondent)

Angkor What Pty Ltd (Second Respondent)

Representation:

Counsel

No appearance (Appellant)

Mr R Barnett (Respondent)

Solicitors

No appearance (Appellant)

A Backhouse & Associates (Respondent)

File Number(s):

ACTCA 25 of 2015

Decision under appeal: 

Court/Tribunal:             ACT Supreme Court

Before:  Mossop M

Date of Decision:         1 April 2015

Case Title:  Hussain & Anor v Ngep & Anor

Citation: [2015] ACTSC 71

Court File Number(s):   SCA 103 of 2014

ROBINSON AJ:

1. I am currently sitting as a single judge exercising the powers of the Court of Appeal. I have had the matter called outside the Court a number of times and no representative from the Appellants has attended Court. Yesterday, my associate received an email saying that the Appellants may, by reason of a medical condition of the First Appellant, who is the Director of the Second Appellant, be unable to attend Court and that, if the First Appellant could do so, it would only be for the purposes of obtaining an adjournment. Mr Barnett appeared for the Respondents.

1. Proceedings commenced between these parties in the Magistrates Court, where the current Respondents obtained a monetary judgement for debt.

1. The current Appellants sought leave to appeal out of time to the Supreme Court against the Magistrate’s decision. This application came before Master Mossop and he dismissed it. He also considered that the merits of the proposed appeal were such that he would not have granted leave in any event.

1. On 12 May 2015 the Appellant filed a Notice of Appeal against the decision of Master Mossop which was given the designation by the registry of No. ACTCA 25 of 2015.

1. By an application in the proceedings No 25/2015 the current Respondents applied for an order for security for costs against the Second Appellant in the appeal. This came before the Chief Justice on 5 August 2015, at which time she made the following orders:

   
   (a) Second Appellant to provide security in the amount of $9500 to be paid into Court within 14 days;
   
   

   (b) Costs of the application be reserved.

1. It does not appear that her Honour made an order that the appeal would stand dismissed either generally or against the Second Appellant only if the security was not provided within the time allowed.

1. On 12 August 2015 the Appellants filed a document in proceedings No ACTCA 25 of 2015 headed ‘Court of Appeal – Application for Leave to Appeal from Interlocutory Judgement’. The first order sought was leave to appeal from the judgement of Chief Justice Murrell on 5 August 2015. Other orders were then sought, but they appear to be periphery or evidential to the main contention.

1. Under s 37J(1) of the Supreme Court Act 1933, the Court of Appeal may be constituted by a single judge. That single judge has power to hear and decide a number of “incidental matters” in relation to an appeal.

2. One of the matters which can be heard by a single judge is “any other question of practice and procedure in the Court of Appeal”. The case law has determined that this includes jurisdiction with regards to orders for security for costs. The practice book sets out Hughes v Janrule Pty Ltd (2011) 177 ACTR 1 and Davey v Herbst (No 2) [2012] ACTCA 19 as authority for this proposition. I followed that line of authority myself sitting as a single judge of the Court of Appeal in Wagdy Hanna and Associaties Pty Ltd v Gavagna (2014) ACTCA 36.

10.There does not appear to be any mechanism in the Supreme Court Act 1933 or under the Court Procedure Rules to appeal against a decision made by a single judge, constituting the Court of Appeal, hearing and deciding the matters set out in s37J(1). A decision of the Court of Appeal may, of course, be appealed by leave to the High Court.

11.In the absence of the Appellants, I cannot take this further today. However, I will record these remarks so that on the next occasion when the matter comes to Court the matter can be fully argued.

12.Today is the last day by which security can be paid into Court by the Second Appellant. If the security is not forthcoming then it will be necessary for the Respondents to return at some point to the Court of Appeal to have the appeal or the appeal by the Second Appellant dismissed for want of compliance with the orders of the Chief Justice.  On that occasion this matter can be fully ventilated.

13.As at today’s date, I do not believe there is a typed transcript or judgment of the Chief Justice’s decision on 5 August 2015 in existence. It may be that when such a document is at hand matters are clearer. Obviously, these observations concern jurisdiction and not the merits of any appeal.

14.I stand over the application purporting to be an appeal against the decision of the Chief Justice to a date to be fixed. I reserve the costs.

I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.

Associate:

Date:

Amendments

28 August 2015 replace Case Title “Hussain & Anor v Sok Kheng & Anor (No 2)” with “Hussain & Anor v Ngep & Anor (No 2)”.