Hussain v Tam
[2016] ACTCA 21
•27 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Hussain v Tam |
Citation: | [2016] ACTCA 21 |
Hearing Date: | 22 and 27 June 2016 |
DecisionDate: | 27 June 2016 |
Before: | Refshauge J |
Decision: | 1. The application for leave to appeal (ACTCA 6 of 2015) be dismissed for want of prosecution. 2. The appeal (ACTCA 38 of 2015) be dismissed for want of prosecution. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Service of documents – service on self-represented litigant – address for service APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Striking out – non-compliance with directions – want of prosecution – appeal dismissed – application for leave dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 2803, 5191(2), 6420(c), 6420(d), 6420(g), Div 5.3.5 |
Cases Cited: | Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 GJ v AS [2015] ACTCA 12 |
Parties: | Hasin Hussain (Appellant) Chung Lai Tam (Respondent) |
Representation: | Counsel No appearance (Appellant) Mr C Tam (Self-represented) (Respondent) |
| Solicitors No appearance (Appellant) Self-Represented (Respondent) | |
File Number: | ACTCA 6 of 2015 ACTCA 38 of 2015 |
Decision under appeal: | Court: ACT Supreme Court Before: Burns J Date of Decision: 5 August 2015 Case Title: Hussain v Tam Citation: [2015] ACTSC 197 |
REFSHAUGE J:
A dispute between Hasin Hussain, the appellant, and Chung Lai Tam, the respondent, arose over the sale of a motor vehicle in August 2009. Mr Tam commenced proceedings in the Magistrates Court suing Mr Hussain for the unpaid price of the motor vehicle.
On 6 May 2014, judgment was given for Mr Tam in the sum of $8,276.75, together with interest and costs.
Mr Hussain, however, appealed against the judgment. That appeal was heard by Burns J on 13 August 2015. On 5 August 2015, his Honour dismissed the appeal with costs. See Hussain v Tam [2015] ACTSC 197.
Proceedings on Appeal
Mr Hussain appealed against that judgment to this Court. He also separately sought leave to appeal out of time from an interlocutory order made by Burns J on 5 December 2014 when his Honour ordered that the proceedings be listed for hearing on 2 March 2015 and directed that the appeal would proceed to a hearing on that day.
Mr Hussain was represented in the Magistrates Court and in the Supreme Court. Mr Tam was not represented in the Magistrates Court or the Supreme Court.
When Mr Hussain’s appeal was lodged in this Court, the Notice of Appeal showed that it was lodged by Mr Hussain and gave his contact details as the Address for Service but it did not provide particulars of the solicitor said to be the appellant’s solicitor.
A different solicitor attended at a number of the directions hearings to settle the Index to the Appeal Papers. The solicitor was given leave to appear, apparently because he was not fully instructed and had not filed a notice under r 2803 of the Court Procedures Rules 2006 (ACT). He appeared on three occasions under the same arrangements.
On the fourth occasion, a different solicitor appeared and, apparently, was also granted leave for the same reason. It appears that the appellant’s mother appeared on the next occasion. Although a lawyer in Bangladesh, she was not admitted to practice in Australia but was undertaking a Juris Doctor degree at the University of Canberra. She was reminded of the need for the filing of a relevant notice. On the next occasion, the solicitor who appeared on the fourth occasion again appeared but, on this occasion, announced that he was not instructed and was “no longer acting for the appellant”.
These appearances occurred from 29 October 2015 to 9 June 2016, by which time a draft appeal index had been filed but not settled.
The appellant had been directed to file an Amended Notice of Appeal by 14 January 2016. When that was not done, a further direction was made that it be filed by 29 February 2016. By that date, it was still not done.
Clearly, since the grounds of the appeal will determine what is required to be included in the Appeal Books, any amendment to the Notice of Appeal should desirably be made before the draft index to the appeal papers is settled.
Thus, when no amended Notice of Appeal was filed in accordance with the Registrar’s directions, it was directed on 10 March 2016 that a “more comprehensive draft index in [accordance with the] rule be sent to the [respondent] on or before 4 April 2016”. That also was not done.
Application to Strike Out the Appeal
On 26 April 2016, Mr Tam filed an application to strike out the appeal. At the Directions Hearing on 28 April 2016, that application was listed to be heard on 1 June 2016.
The application came before the Chief Justice on 1 June 2016. Mr Tam appeared but Mr Hussain did not.
In the affidavit he filed in support of the Application, Mr Tam deposed that he had sent a sealed copy of the Application to Mr Hussain at what Mr Tam said was his last known address. He annexed a copy of the Registered Post Lodgement Slip and the Australia Post receipt for the postage.
Mr Tam sought an adjournment because of difficulties with service. The proceedings were adjourned to 22 June 2016.
On that day, Mr Tam again appeared but there was no appearance by Mr Hussain. Mr Tam relied on an affidavit of service which showed that he had served the Application to Mr Hussain’s email, to his mobile phone and to his mother’s email address. He gave oral evidence that these were addresses and the telephone number, with which addresses and number that he had negotiated with Mr Hussain in the past.
He had also taken a video recording showing him telephoning Mr Hussain on his mobile phone and sending the documents by email.
Service
I pointed out to Mr Tam, however, that these were not the addresses shown on the Notice of Appeal as the address for service. Mr Tam suggested to me that the addresses shown as the address for service on the Notice of Appeal and other court documents were old addresses no longer those of Mr Hussain.
That may be. They are, however, the address for service in accordance with the Court Procedures Rules. As I pointed out in GJ v AS [2015] ACTCA 12 at [20], service at an address for service is, under r 6420, proper service. I went on, at [21], to observe:
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.
On the other hand, service at another address will only be effective if the document actually comes to the notice of the party. In this case, the letter sent by registered post had been returned marked “RTS” which I understand to mean “Return to Sender”. There was no acknowledgement of the email messages nor telephone contact.
Thus, there was no proper proof of service.
The Notice of Appeal gave three items in the section related to the address for service: a street address (see r 6420(c)), a post office box (see r 6420(d)) and an email address (see r 6420(g)). I directed Mr Tam to serve at one of these and he agreed to do all of them.
I now have an affidavit of service of his application and notice of today’s hearing at each of these addresses. I am satisfied that Mr Hussain has been properly served. He has now had plenty of opportunity to appear if he wishes to oppose the application. He did not appear today.
Striking out
As noted above (at [4]), Mr Hussain has made two applications to the Court of Appeal: the application for leave to appeal against an interlocutory decision of Burns J and an appeal against the final decision to dismiss the appeal.
The interlocutory appeal
It appears that no hearing has been held on the application for leave to appeal. Thus, no appeal has been instituted against the interlocutory decision.
No step has been taken to progress that matter since 15 February 2015. The application came before Penfold J on 15 February 2015 when it was adjourned generally as neither party was present. Mr Hussain’s father was present and sought to prosecute the leave to appeal. Her Honour declined to give him that leave.
Her Honour then offered to adjourn the application to 23 February 2015 to give the applicant an opportunity to appear, but Mr Hussain’s father declined to accept that.
Clearly, the application was designed to forestall the hearing that Burns J had listed for March 2015.
Not having progressed that application and the appeal having been heard and determined, there is no utility in the application.
It does not appear that it would have been necessary to appeal against the interlocutory decision separately, except to stop the hearing. A decision of an interlocutory kind which could have made a difference to the outcome of the proceedings, such as giving the appellant proper time to prepare his case, can always be raised in the principal appeal: Stead v Government Insurance Commission (1986) 161 CLR 141 at 145.
Accordingly, the application for leave to appeal has not been prosecuted with due diligence or, indeed, at all since 15 February 2015. The delay in prosecuting this application has, in the circumstances, been inordinate and inexcusable. See Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229. Clearly the utility of the application has now been spent.
The Appeal
So far as the appeal is concerned, the delay has not been as great as with the interlocutory appeal but Mr Hussain has failed to comply with the directions of the Registrar to file his foreshadowed amended Notice of Appeal. That, in turn, has delayed the settlement of the index to the appeal papers and the preparation of the Appeal Books provided for under Div 5.3.5 of the Court Procedures Rules.
This continued non-compliance has to be seen in the light of the failure of Mr Hussain to appoint a solicitor properly or to appear himself in the proceedings. Added to that is his failure to appear in court now three times, first before the Chief Justice and then twice since before me.
Rule 5191(2) of the Court Procedures Rules sets out the grounds on which an appeal to the Supreme Court may be dismissed for want of prosecution. Included in these grounds are the following:
if an appellant –
(a)Has not done anything required to be done under these rules during a period of 3 months after the day the requirement arises; or
(b)Otherwise has not prosecuted the appellant’s appeal with appropriate effort during a period of 3 months after the day the last step in the proceeding was taken.
It seems to me that Mr Hussain is, at least, in default under r 5191(2)(b). The last step in the proceedings was the filing of the draft index, though inadequate, on 18 March 2016. No further step has been taken since then which is beyond three months. This would also be applicable to the applications for leave to appeal from the interlocutory order.
The form of the order sought by Mr Tam was a little curious. He sought an order “Strike [sic] out the name of the Defendant in the Application for Leave to Appeal filed by the Appellant”.
This, however, was not filed in the file (AC 6 of 2015) for the application for leave to appeal against the interlocutory orders made by Burns J but in the file (AC 38 of 2015) for the appeal itself.
In the circumstances, however, given that Mr Tam is not legally represented, I am prepared to accept that his intention is that both proceedings be dismissed for want of prosecution.
The grounds set out in the Application in Proceedings make it clear that this is what is sought, in addition to an order that the appeal be struck out on the ground that it has no basis in law. I do not need to consider the second issue.
I am satisfied that, notwithstanding the inelegant and inadequate form of the orders sought in the Application in Proceedings, it is appropriate that both the application for leave to appeal and the appeal should be dismissed for want of prosecution. I shall so order.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of Justice Refshauge. Associate: Date: 28 June 2016 |
0
3
1