Jorgensen v Slater & Gordon Pty Ltd - [2009] VSCA 39

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3705 of 2006

ALAN JORGENSEN
	Appellant
v
SLATER & GORDON PTY LTD (ACN 084 591 122)	Respondent

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JUDGES:	MAXWELL P and ASHLEY JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2009
DATE OF JUDGMENT:	20 March 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 39

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PRACTICE AND PROCEDURE – Application under r 64.16(2) that appeal not be taken to be abandoned – Failure to deliver appeal books within time fixed by order – Nature of discretion – Principles – Appeal not utterly devoid of merit on material before Court – Security for costs of appeal previously given – Repeated disobedience of Court’s orders by appellant – Disobedience not attributable to inferior intellect or understanding – Failure to deliver appeal books in time blameworthy – No satisfactory explanation for disobedience of Court’s order – Prejudice to respondent - Long delay in finalisation of appeal – Respondent a professional body facing re-litigation of allegations of fraud and breach of fiduciary duty rejected at trial - Justice to be even-handed - Application refused.

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APPEARANCES:	Counsel	Solicitors
The Appellant in person
For the Respondent	Mr J J Isles	Slater & Gordon Pty Ltd

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Ashley JA. For the reasons which his Honour has comprehensively set out, I agree that this application should be refused.

ASHLEY JA:

On 27 August 2008 a Master ordered, inter alia, that the appellant, Alan Jorgensen, deliver appeal books on or before 20 October 2008. He failed to do so. His appeal was, by r 64.16(1)(b), taken to be abandoned. An attempt was made on his behalf to deliver the appeal books on 23 October 2008. The Registry would not accept them. He sought the respondent’s consent to the making of an order that the appeal not be taken to be abandoned – vide r 64.16(2)(b). The respondent did not consent. Now the appellant seeks an order under r 64.16(2)(a) that his appeal not be taken to be abandoned. In my opinion, no such order should be made.

Principles

In Lagarna Pty Ltd & ors v Bridge Wholesale Acceptance Corporation (Australia) Ltd[1] the Appeal Division considered the application of r 64.12(2), by which an appellant may seek relief from the deemed abandonment of an appeal for failure to comply with rule 64.08(2).[2] Tadgell J, with whom Cummins J agreed, said this:
[1][1995] 1 VR 150.
[2]That rule then set a time limit for delivering a copy of the notice of appeal and of proposed contents of appeal book to the Listing Master.

The court's discretion under R64.12(2), being undefined in terms, is as broad, wide and deep as the circumstances demand. The dictum of Bowen LJ in Gardner v Jay (1885) 29 Ch D 50 at 58 is apt:
... when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] VSCA 39
Decision Date: 20 March 2009

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Jorgensen v Slater & Gordon Pty Ltd was brought before the court in an application under rule 64.16(2) for an order that the appeal be deemed abandoned due to the appellant's failure to deliver appeal books within the time fixed by the court’s order. The dispute involved allegations of fraud and breach of fiduciary duty against the respondent, a professional body, which had previously been rejected at trial.

The primary legal issue before the court was the extent of its discretion in dealing with the appellant's failure to comply with the court's orders. The court needed to determine whether the appeal was utterly devoid of merit and whether the appellant's repeated disobedience of the court's orders warranted the abandonment of the appeal. The court also considered the security for costs of the appeal that had already been given and the prejudice to the respondent, who faced the prospect of re-litigating the same allegations.

The court held that the appeal was not utterly devoid of merit, and while the appellant's disobedience of the court's orders was not attributable to any lack of intellect or understanding, it was nonetheless blameworthy. The appellant provided no satisfactory explanation for their failure to deliver the appeal books on time, leading to a significant delay in the finalisation of the appeal. The court determined that the respondent, as a professional body, would suffer substantial prejudice if forced to re-litigate the same allegations. The court concluded that justice required an even-handed approach and refused the application to deem the appeal abandoned, thereby allowing the appeal to proceed.

Orders