Jorgensen v Australian Securities and Investments Commission - [2020] TASSC 56

[2020] TASSC 56

COURT: SUPREME COURT OF TASMANIA

CITATION: Jorgensen v ASIC [2020] TASSC 56

PARTIES:  JORGENSEN, Alan Bradley
  v
  AUSTRALIAN SECURITIES AND
  INVESTMENTS COMMISSION

FILE NO: 1000/2020
JUDGMENT

APPEALED FROM: Jorgensen v ASIC [2019] TASSC 46

DELIVERED ON:  25 November 2020
DELIVERED AT:  Hobart
HEARING DATE:  By written submissions
JUDGMENT OF:  Wood J
CATCHWORDS:

Appeal and New Trial – Practice and procedure – Tasmania – When appeal lies – Other matters – Originating and interlocutory applications determined by associate judge – No jurisdiction for single judge to hear appeal from final judgment – Whether notice of appeal adequate and could be treated as an appeal to the Full Court.

Supreme Court Civil Procedure Act 1932 (Tas), ss 40(1), 191B.
Supreme Court Rules 2000 (Tas), rr 657, 659, 660, 680A.
Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478, considered.
Aust Dig Appeal and New Trial [384]

REPRESENTATION:

Counsel:

Appellant: In Person
Respondent: J Clarke SC

Solicitors:
Respondent: Ashurst Australia

Judgment Number: [2020] TASSC 56
Number of paragraphs: 37

Serial No 56/2020
File No 1000/2020

ALAN BRADLEY JORGENSEN v AUSTRALIAN SECURITIES
AND INVESTMENTS COMMSSION

REASONS FOR JUDGMENT WOOD J

25 November 2020

This is a ruling with respect to two preliminary issues arising from the lodgement of an appeal from a decision of Holt AsJ published on 28 November 2019. The notice of appeal sought to appeal the judgment to a single judge of the Supreme Court.
The first issue is whether a single judge has jurisdiction to hear the appeal. If instead of a single judge the Full Court has jurisdiction, the second issue then arises as to whether the lodging of the notice of appeal was adequate to amount to the filing of an appeal to the Full Court. If the appellant is unsuccessful in relation to both points, there is an outstanding application seeking an extension of time to appeal to the Full Court that will need to be listed and heard.
The notice of appeal sought to appeal the orders of Holt AsJ made on 20 November 2019, the reasons published on 28 November 2019: Jorgensen v ASIC [2019] TASSC 46. The appellant had by an originating application filed 26 June 2019 sought preliminary discovery of documents pursuant to r 403E of the Supreme Court Rules 2000 (Tas). The respondent to the appeal, the Australian Securities and Investments Commission, had applied to have the originating application dismissed. The originating application for preliminary discovery and three interlocutory applications brought by the appellant were dismissed, and an application for an adjournment of the hearing was refused.
It is convenient to begin with a chronology of events after the judgment was delivered on 28 November 2019.
On 17 December 2019, the appellant sent a copy of his notice of appeal dated 17 December 2019 by email to the Registrar of the Supreme Court.
On 5 February 2020, Mr Alan Parrott of the Supreme Court registry sent an email to the appellant responding to a request for waiver of the court fees with regard to the notice of appeal. That email informed the appellant that the correct jurisdiction may be the Full Court of Appeal not a single judge. The appellant was informed that if he wished to appeal to the Full Court he would need to file a fresh notice of appeal, and an application to extend time. The email from Mr Parrott of 5 February 2020 provided that:
"You will need to confirm whether you intend to appeal to the Full Court of Appeal-if so you will need to file an Originating Application seeking an extension of time. This will need to be accompanied by an affidavit detailing the reasons why you need an extension of time, and attaching a copy of the Notice of Appeal to the Full Court.
If you wish to proceed with the current Notice of Appeal it will be listed before a single Judge who will consider whether there is jurisdiction to consider the Appeal."
By an email dated 5 February 2020, the appellant responded in terms that he had followed the Court's standard procedure, Form 7, regarding an appeal from a decision of an associate judge. He wished to appeal according to that "option".
On 11 February 2020, the Registrar of the Supreme Court wrote by email to the appellant stating that, in his view, an appeal from the judgment of the associate judge lies to the Full Court only, and not to a single judge. The Registrar explained that that is because the judgment was a final judgment, and he set out the terms of r 680A of the Supreme Court Rules. The appellant was informed that the Registrar would not accept for filing the purported notice and that if he wished to pursue his appeal he would be required to file an originating application seeking an extension of time and an affidavit detailing the reasons why he needed an extension of time and attaching a copy of a draft notice of appeal to the Full Court.
Since then, more emails were exchanged. The appellant filed an unsigned originating application and a draft notice of appeal to the Full Court and an unsworn affidavit. There were emails regarding the formalising of the documents. Ultimately the documents were signed and sworn and the application to extend time to appeal was listed.
The proceedings are before me as an application to extend time. However the appellant insists that a single judge has jurisdiction with respect to his appeal (and so a new notice of appeal and an extension of time are unnecessary), and I consider that I should determine this issue. If a party invokes the jurisdiction of a court, and insists on proceeding then, arguably, at least as a general proposition, the issue of jurisdiction is to be determined by the particular court, the jurisdiction of which has been invoked by the proceedings. I am not convinced that an issue of jurisdiction such as arose here should be determined administratively by the Registrar. At least in this particular case, I have determined that the question of whether a single judge has jurisdiction should be decided judicially.
The respondent submits that any appeal against the judgment lies to the Full Court, pursuant to r 680A(2)(a) of the Supreme Court Rules because the judgment is a final judgment as defined in r 680A(1).
It is necessary to say a little more about the appeal and the judgment that is the subject of the appeal. The notice to appeal sought to appeal the orders made by Holt AsJ "to a Judge sitting in Court as in Chambers". The orders the subject of the appeal are described as:
"1The 4 Interlocutory Applications made by Alan Bradley Jorgensen ('ABJ') be struck out.
2ASIC's Interlocutory Decision to strike out ABJ's Preliminary Discovery Application be upheld.
3That ABJ pay the Costs of ASIC on a Standard basis."
There were a total of three interlocutory applications brought by the appellant in addition to an originating application. One of the appellant's interlocutory applications filed 9 August 2019 was granted, and is presumably not the subject of appeal. Presumably, the applications which may be regarded as "struck out" involve the originating application which was dismissed, his remaining two interlocutory applications filed 26 September 2019 and 10 October 2019 which were also dismissed, and it seems the fourth application the subject of his appeal is an application for an adjournment of the hearing which was refused. The September interlocutory application sought production of documents, referred to in an affidavit filed by ASIC in support of its dismissal application. It was asserted that production was compellable regardless of the outcome of the originating application. The October interlocutory application sought a declaration that allegations made by him which were not the subject of denials by the respondent were deemed to be admitted.
Section 191B of the Supreme Court Civil Procedure Act 1932 (Tas) (the Act) provides:
"191B Effect of, and appeal from, orders of the Associate Judge
(1) Subject to the Rules of Court, any order or decision made or given by the Associate Judge sitting in chambers or in court in the exercise of a power conferred on him or her by this Act is as valid and binding on, and is enforceable in the same manner against, all parties concerned as an order or decision made or given by a judge sitting in chambers or in court.
(2) A party affected by an order or decision of the Associate Judge may, within such time as is prescribed by the Rules of Court and subject to any conditions so prescribed, appeal –
(a) from an interlocutory order or decision, to a judge sitting in chambers or in court; or
(b) from any other judgment, order or decision, to the Full Court.
(3) The Associate Judge constitutes the Court for the purpose of the exercise of his or her powers and an appeal from a decision or order of the Associate Judge, whether given in court or in chambers, is to be an appeal by way of rehearing.
(4) On the hearing of an appeal from a decision or order of the Associate Judge, whether given in court or in chambers, a judge sitting alone, whether in court or in chambers, has the same jurisdiction and powers as the Full Court has in hearing an appeal against a decision or order of a judge."
The Supreme Court Rules, r 680A, provides:
"680A Appeal from Associate Judge
(1)   In this rule –
final judgment includes any judgment other than a decision on a matter of procedure –
…
(e)   by which the rights of the parties are finally concluded in respect of any matter in question in a proceeding;
interlocutory judgment is any judgment other than a final judgment;
judgment includes any decision, order or other determination.
(2)   A person affected by a judgment of the Associate Judge may appeal against the whole or any part of the judgment by a notice of appeal to –
(a)   the Full Court, if the judgment was a final judgment; or
(b)   a judge sitting in chambers, if the judgment was an interlocutory judgment and was given in chambers; or
(c)   a judge sitting in court, if the judgment was an interlocutory judgment and was given in court.
..."
It is plain from a consideration of s 191B(2) of the Act and r 680A(2) of the rules that an appeal from the associate judge in respect of a final judgment is to the Full Court. There can be no doubt that a single judge does not have jurisdiction to hear an appeal from a final judgment of the associate judge.
As defined by r 680A(1), a final judgment includes a judgment "by which the rights of the parties are finally concluded in respect of any matter in question in a proceeding". Here, there is a judgment which finally concluded the matters in question in the proceeding, namely the right to seek preliminary discovery as sought in the originating application. It is a final judgment and order.
An appeal needs to be made to the Full Court. A single judge does not have jurisdiction to hear the appeal regarding the final judgment. The appellant relies on the fact that he used the form provided on the Supreme Court website, Form 7, described as the form for appeals from the associate judge. It was the only form provided and did not clarify that it was the form for appeals from interlocutory judgments. Evidently, the situation has been rectified and the web-site now provides an additional form, Form 8, for appeals from final judgments of the associate judge. While that explains the course taken by the appellant, it cannot cure the lack of jurisdiction of a single judge to hear and determine the appeal.
In this case, the appeal relates to a mix of interlocutory orders as well as a final order. The content of the notice of appeal reveals that all of these orders are the subject of appeal. A judgment is the formal order by which a court disposes of the proceeding before it: Ah Toy v Registrar of Companies (1985) 10 FCR 280 at 286; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 per King CJ, 137 per Olsson J. The terms "judgment" and "order" signify the formal binding decision which determines and disposes of a specific matter or question in a proceeding. The primary or substantive order in this case is one which finally concluded the rights of the parties on a matter, and is therefore a final judgment. It is conceded by the respondent that the appellant is entitled to challenge, on an appeal against a final judgment, the correctness of any interlocutory orders that were capable of affecting the final outcome. This concession broadly reflects established principle. In Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478, Gaudron, McHugh and Hayne JJ at [4] noted that "to adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings." At [6] their Honours approved of the formulation that on an appeal from a final order an appellate court can correct any interlocutory order which "affected the final result". For application of this formulation see Allianz Australia Insurance v Mercer [2016] TASFC 2, 29 Tas R 121 per Porter J at [142]-[143]. How that principle would be applied in a case such as this where there has not been a trial but parallel applications involving both interlocutory applications and an originating application heard and resolved at the same time, has not been the subject of legal argument. It may be noted too that the concession "capable of affecting the final outcome", is wider than the formulation approved by the plurality in Gerlach.
It is possible that the respondent might, consistent with the concession referred to above, argue that the order with respect to the September interlocutory application, and perhaps also the October interlocutory application, could not have affected the final result of the originating application and that the orders dismissing either or both of them should not be considered on an appeal to the Full Court. It should be noted that the appellant's position in relation to the September application is that he was entitled to the documents sought regardless of the outcome of the originating application. Thus, the notice of appeal may not be entirely subsumed within the foreshadowed Full Court appeal, if leave were to be given to appeal. It is my view that at this preliminary stage, to accommodate this concern, the original notice of appeal be treated as relating to any interlocutory orders identified in the notice of appeal that fall outside the draft notice of appeal to the Full Court. I adopt this approach out of an abundance of caution. No doubt in considering the question of jurisdiction, the Court will take into account legitimate concerns about having multiple appeals in more than one court arising from one decision and the associated costs to be borne by the parties. There will be an opportunity for the parties to argue that all orders fall within the ambit of the proposed notice of appeal to the Full Court, and that the Full Court has jurisdiction with respect to all of the orders under appeal. Depending on the view I take, if leave is granted to extend time to appeal to the Full Court, an amendment may need to be made to the notice of appeal, to confine the orders the subject of that appeal to the Full Court. Once again, the parties will have an opportunity to consider the matter and make submissions.
The appellant's position on the second issue, is that if he is unsuccessful on the question of jurisdiction such that the Full Court has jurisdiction, the notice of appeal is adequate in instituting an appeal to the Full Court and should be treated as a notice of appeal to the Full Court.
The appellant relies upon various emails as setting out his submissions on this issue. His principal argument, repeated in his emails is:
"It is clear for anyone to see my Notice of Appeal did not need to nominate who was to hear it. That was a matter for the court to decide. Not me. REGULATION 705 says it all as to what is required on the Notice of Appeal. My Notice of Appeal contained everything that is required and was spelt out in Reg 705. So in law there is no way it required me to do more than what the Rules require."
The jurisdiction of the Full Court in respect of appeals is set out in s 40(1) of the Act:
"40 Appeals
(1) Subject to the provisions of this Act, a Full Court shall have jurisdiction to hear and determine appeals from all judgments, orders, and other determinations (whether final or otherwise) given or made by a judge, whether sitting in court or in chambers, and if in court whether with or without a jury or an assessor or assessors, and if in chambers whether with or without an assessor or assessors, in any cause or matter (including any proceedings for or on, or in connection with an order of review under the Judicial Review Act 2000 or a writ of habeas corpus)."
The section provides that it is "Subject to the provisions of this Act". Section 191B is relevant here, set out above at [14].
It follows that the appellate jurisdiction of the Full Court set out in s 40(1) being subject to the other provisions of the Act, including s 191B(2), does not include jurisdiction in respect of an appeal from an interlocutory order or decision from the associate judge, pursuant to s 191B(2)(a).
Part 27 of the Rules deals with appeals. Division 1 is titled "Appeals from judge to Full Court".
The rules regarding appeals from the associate judge are dealt with in a separate division, Division 1A is titled "Appeal from Associate Judge". Rule 680A is one of the rules in this Division.
Rule 657 in Division 1 sets out the required content of a notice of appeal to the Full Court:
"657 Appeal to be by way of rehearing
(1)   An appeal from a judge, whether sitting in Court as a court or in chambers, to a Full Court is to be –
(a) by way of rehearing; and
(b) brought by notice of appeal in a summary way.
(2)   A notice of appeal and any subsequent proceeding on an appeal from a judge under this Division is to be entitled –
(a) 'In the Supreme Court of Tasmania, On appeal to the Full Court'; and
(b) as between the appellant and the respondent.
(3)An appellant may appeal against the whole or any part of a judgment by a notice of appeal.
(4)   The notice of appeal is to state –
(a) the part of the judgment that is being appealed; and
(b) specifically and concisely the grounds of appeal; and
(c) what judgment is sought.
(5)   Notice of appeal is to be given for an ordinary sitting of the Full Court to be held on a date to be fixed by the Principal Registrar."
Mr Jorgensen seeks to rely on r 705 of the Rules. However, r 705 has no application to this case, it is concerned with appeals from statutory tribunals and not appeals from decisions or orders of the associate judge: see r 702 as well as the terms of r 705.
The notice of appeal does not comply with the rules regarding appeals to the Full Court in various respects. Significantly, r 657(2)(a) requires that the title provide "In the Supreme Court of Tasmania, On appeal to the Full Court". Here, the notice of appeal is described as an appeal to a "Judge sitting in Court as in Chambers". This language seeks to engage the jurisdiction of the Court pursuant to r 680A(2)(b). The notice of appeal does not seek to engage the jurisdiction of the Full Court. The notice of appeal does not invoke the jurisdiction of the Full Court in substance or in form.
The respondent argued that:
"[28]It is the responsibility of the appellant to satisfy himself that there is jurisdiction to bring an appeal: Commissioner of Police v Chidgey [2007] NSWSC 417 at [32].
[29]It is imperative for the just, quick and cheap resolution of a dispute that a respondent to an appeal knows the case it must meet: Banque Commerciale SA v Akhil Holdings Ltd (1990) 169 CLR 279. This extends to knowing the jurisdiction of the Court in which the appeal has been brought, so that the respondent may properly understand the scope of the Court's jurisdiction and powers, and the relevant substantive and procedural law which applies.
[30]This is particularly so in the present case, where there is theoretically more than one potential avenue for appeal from an order of an Associate Judge and the rules applicable to an appeal to a single judge differ substantially to those applicable to an appeal to the Full Court: an appeal to a single judge is regulated by r 680A(4)-(15) and an appeal to the Full Court is regulated by rr 656-658 and 660-678, as applied by r 680A(3A).
[31]Fairness requires ASIC to know, through clear nomination of jurisdiction by Mr Jorgensen which rules it must follow so that it may avoid any non-compliance, or act upon any non-compliance by the appellant."

There is force in these arguments. The identification of the court is essential to a notice of appeal. The jurisdiction of the particular court must be invoked by the notice of appeal. There are ramifications in terms of how appeals are dealt with and the rules that apply. For example, there are differences concerning time limits: r 680A(3). Rule 680A(3A) provides that rr 656, 657, 658 and rr 660 to 678 apply to an appeal from a final judgment, and subrr (4) to (15) only apply to an appeal from an interlocutory judgment. An appeal to a Full Court is by way of rehearing. There is provision for a cross-appeal and a time limit for filing a notice, procedural matters regarding the content of an appeal book, setting down of the appeal, security for costs, powers of the Full Court and other provisions which apply exclusively to Full Court appeals. Appeals from the associate judge are separately provided for in r 680(4)-(15). The respondent is entitled to certainty with respect to the court which is hearing the appeal.
The respondent argues that even if the notice of appeal invokes the jurisdiction of the Full Court, the appeal was not instituted within time. In this regard, rr 659 and 660 are relied upon:
"659 Time for institution of appeal
If an appeal is from a final judgment, it is to be instituted within 21 days, or if it is not from final judgment, within 10 days, after the date on which the judgment was pronounced or, in the case of the refusal of an application, from the date of the refusal.
660 Institution of appeal
An appeal is to be instituted by –
(a) filing the original notice of appeal in the Principal Registry; and
(b) serving a copy of the notice of appeal on each party directly affected by it."
It can be seen from these rules that for an appeal to be instituted, an original notice of appeal must be filed and a copy (but not necessarily a filed copy) must be served on the respondent, within the time provided in r 659.
Noting the judgment is a final judgment, the time period of 21 days applies. It may be noted that Holt AsJ made the following order with respect to the interlocutory applications:
"The time for any appeal against my order refusing the applicant's adjournment application today my orders dismissing the applicant's interlocutory applications filed 26 September 2019 and 10 October 2019 and my order granting the respondent's interlocutory application filed 9 August 2019 is extended pursuant to rule 52 of the Supreme Court Rules to a date being 21 days following the publication of my written reasons to the parties."
An order in those terms was not made in relation to the order dismissing the originating application, no doubt because it was subject to a 21 day period as provided in r 659.
The notice of appeal was sent to the Registrar via email on 17 December 2019. The respondent was not then sent a copy and in fact, did not receive a copy of the notice of appeal until 29 March 2020.
I accept that the notice of appeal was not instituted within the time required, and the appellant is required to seek leave to extend time to institute the appeal. Even if it could be regarded as an appeal to the Full Court, it was not brought within time. It is noted that, as can be seen from the chronology, the notice of appeal gave rise to an enquiry by the registry of the appellant and the process stalled, and the notice was ultimately not accepted for filing. This will have relevance to the exercise of discretion in respect of the application for leave to extend time.
The application to extend time to appeal to the Full Court is opposed by the respondent on the basis that the draft notice of appeal fails to state any reasonable grounds of appeal, and the appeal does not have reasonable prospects of success. This application should now be relisted for hearing. I will also hear then from the parties on the point raised above regarding whether there are any interlocutory orders falling outside the appeal to the Full Court. That could potentially lead to an application to extend time in relation to the original notice of appeal, but I expect that will not add any complexity to the hearing.