Jafari v 23 Developments Pty Ltd [No 2]
[2020] VSCA 187
•23 July 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0110
| KOUROSH JAFARI (on his own behalf and as trustee of the Essence Unit Trust) | Applicant |
| v | |
| 23 DEVELOPMENTS PTY LTD (ACN 112 616 976) & ORS (According to the Schedule) [No 2] | Respondent |
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| JUDGES: | NIALL JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 23 July 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 187 |
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PRACTICE AND PROCEDURE – Court of Appeal – Applications – Filing – Power of registrar – Application to reopen proceeding after judgment – Applicant had sought special leave to appeal to High Court – Special leave refused – Registrar refused to accept application for filing – Applicant sought review of registrar’s decision – Final judgment – No power to reopen – 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 |
NIALL JA:
On 19 September 2019, this Court refused leave to appeal from a judgment of a judge in the trial division.[1] The application for leave to appeal was brought by the applicant on his own behalf and as trustee of the Essence Unit Trust. The proceedings concerned a failed property development venture. One of the issues both at trial and on the application for leave to appeal concerned whether the land which was to be developed was contaminated. The order of this Court refusing leave to appeal was entered.
[1]Jafari v 23 Developments Pty Ltd [2019] VSCA 201.
On 20 November 2019, the applicant applied for special leave to appeal to the High Court of Australia. He relied on three alleged errors.
In his application for special leave, the applicant identified as the first error, that since the judgment of the Court of Appeal, the applicant has discovered evidence that establishes that the land is not subject to contamination of any kind that would have adversely impacted its intended development. The applicant sought to adduce evidence in support of his application for special leave to appeal.
The second error concerned the question whether the respondents had relied on the applicant’s assertion that there was no relevant contamination. The applicant contended that there was no reliance, and therefore no actionable misleading or deceptive conduct.
The third error asserted that the Court of Appeal had erred in finding that the respondent had sustained loss in circumstances where the true position was that the respondent owed money to the applicant.
On 16 April 2020, the High Court refused special leave to appeal.
On 15 May 2020, the applicant sought to file in the registry of the Court of Appeal an application other than leave to appeal and unsworn affidavit of the applicant dated 15 May 2020.
In his proposed application, the applicant contended that there was new and/or fresh evidence not available to the trial judge or to the Court of Appeal that establishes that the land is not subject to contamination of any kind that would adversely affect its intended development.
The application recorded that the further evidence became available to the applicant only after judgment of the Court of Appeal. It asserted that in the week following the judgment of the Court of Appeal on 19 September 2019, the applicant discovered that the current registered proprietors of the land had advertised it for option, intending for the auction to be held on 18 September 2019.
On 7 October 2019, the applicant obtained a copy of a report titled ‘Report of Detailed Site Investigation for Contamination‘ prepared by specialist geotechnical and environmental engineers. The applicant asserts that the report comprises a detailed site investigation and finds no contamination that would prevent development of the site. In those circumstances, he contends that it would be a gross miscarriage of justice for the judgments below to stand. He seeks leave to rely on the further evidence in the Court’s discretion and its inherent power to regulate its own proceedings in the interest of justice.
On 20 May 2020, a registrar of the Court, acting in accordance with rule 64.43(1) of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘SupremeCourtRules’), refused to accept the documents filing on the basis that they are frivolous and/or would give rise to an abuse of process of the Court if they were permitted to be filed. It was noted that as at 19 September 2019, orders of this Court were final and authenticated and the Court has no power to reopen the proceeding. The decision of the Court of Appeal in Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [No 2] was provided.[2]
[2][2018] VSCA 203 (‘Bodycorp’).
On 26 May 2020, the applicant wrote to the Court objecting to the decision and requesting a ‘review’. Rule 64.43(5) of the Supreme CourtRules 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. Whether or not an application under r 64.15(1) is required, I propose to treat the matter as if it were an application. I determined that it was neither necessary or desirable to have an oral hearing to determine the application and have proceeded to consider the matter on the papers.[3]
[3]Supreme Court Rules r 64.15(2).
Applicable principles
The facts in this case are very similar to Bodycorp. In that case, an application was made to reopen the decision of the Court of Appeal which had been authenticated in respect of which there had been an unsuccessful application for special leave to appeal. On a review of a decision of the registrar to refuse to accept the application for filing, Maxwell P said:
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’.
Equally clearly, no question of entertaining the May application could have arisen once Bodycorp exercised its right to seek special leave to appeal from the February judgment. In allowing that application to proceed to finalisation, Bodycorp made an irrevocable election between two mutually exclusive courses of action. The special leave application could only be considered on the basis that this Court’s judgment was final and beyond recall. By taking that course of action, Bodycorp foreclosed any possibility of advancing a contention that the February judgment was a nullity.
Finally, and equally clearly, the issue of whether Bodycorp was denied procedural fairness in the Court of Appeal has been judicially determined — as between these parties — by the refusal of special leave. That issue having been the subject of a final determination, the doctrine of issue estoppel would have prevented Bodycorp from seeking to raise it again in this proceeding (assuming that it had otherwise been able to do so).[4]
[4]Bodycorp [2018] VSCA 203, [9]–[11] (citations omitted).
An application for special leave to appeal from the decision of Maxwell P was refused. In giving reasons for refusing special leave, Keane J said: ‘[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.’[5]
[5]Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2019] HCATrans 55. See also Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165; [2018] HCA 12.
Applying those principles here, it is clear that the application was, in the technical sense, an abuse of process. The purpose of the new or fresh evidence would be to contradict the factual findings made at trial and considered by this Court in the application for leave to appeal. To allow it would be to conduct a new trial, inconsistent with the principle of finality. Subject to some immaterial exceptions, there is no authority in the Court of Appeal to set aside its authenticated order in order to receive fresh evidence and the application is therefore bound to fail.[6] Subject to a grant of special leave, the decision of the Court of Appeal finally and conclusively settled the dispute between the parties.
[6]Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165; [2018] HCA 12.
The registrar was correct to refuse to accept the application and affidavit for filing. The application for a direction to the registrar or to review his decision must be refused.
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SCHEDULE OF PARTIES
KOUROUSH JAFARI Applicant
(on his own behalf and as trustee of the Essence Unit Trust)
- AND -
23 DEVELOPMENTS PTY LTD (ACN 112 616 976) First Respondent
MARIO PIZARRO Second Respondent
63 BUCKLEY STREET PTY LTD (in liq) (ACN 099 836 361) Third Respondent
3
4
0