Kay v County Court of Victoria & Anor

[2000] VSCA 175

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No.7901 of 1997

IAN ALBERT KAY	Applicant
v
THE COUNTY COURT OF VICTORIA and  JOSEF GARDNER SESTOKAS	First Respondent Second Respondent

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JUDGES:	ORMISTON, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17, 18 July 2000
DATE OF JUDGMENT:	28 September 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 175

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Practice and procedure – Application by vexatious litigant for extension of time to amend appeal book – Whether appeal is a “criminal proceeding” for the purposes of “proceeding” in s.3(1) Supreme Court Act 1986 - Whether leave required to make application.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	(In person)
For the First Respondent	No appearance
For the Second Respondent	Mr. A. Castle	Solicitor for Public Prosecutions

ORMISTON, J. A.:

1. In this matter I have had the advantage of reading the judgment of Chernov, J.A., and, for the reasons he has stated, I agree with the orders he proposes.

BATT, J.A.:

1. I agree with Chernov, J.A.

CHERNOV, J.A:

1. This is an application for an order extending the time within which the applicant may amend the appeal book in his appeal against the determination of Vincent, J. dismissing the originating motion by which the applicant sought to challenge the refusal by Chief Judge Waldron to grant him leave to withdraw his abandonment of the appeal against the decision of the magistrate made on 15 August 1996 convicting him of breaches of an intervention order.  The application was heard together with applications made by the applicant in two other proceedings, namely 6562/98 and 4993/99.  The relationship between the three proceedings, the general background to them and the circumstances in which the applications in those proceedings were heard together, are explained in my judgment in proceeding 6562/98 and there is no need to repeat that here.  I use in this judgment the same terminology that I used in the judgment in proceeding 6562/98.

1. I turn to outline briefly the background that is pertinent to this application.  On 15 August 1996 the applicant was convicted and sentenced to eight months’ imprisonment for breaches of the intervention order.  He appealed to the County Court and, for reasons which are presently not relevant, abandoned it.  He later applied to Chief Judge Waldron for leave to withdraw his notice of abandonment.  That application was dismissed on 10 November 1997.  On 24 November 1997 the applicant filed an originating motion to review the decision of his Honour and on 25 February 1998 Vincent, J. dismissed that application. 

1. On 11 March 1998 the applicant filed a notice of appeal against the decision of Vincent, J. and, it may be assumed, served copies of it on the respondents within the time prescribed by the rules.  On 31 March 1998 the Registrar ordered that the applicant deliver the appeal book (in accordance with the certified note of its proposed contents) by 12 May 1998.  This order was not complied with and the appeal was taken to be abandoned pursuant to r.64.16.  On 28 August 1998 the applicant issued a summons seeking an extension of time within which to deliver the appeal book and an order that the appeal not be taken to be abandoned.  On 25 September 1998 Callaway, J.A. ordered that the appeal not be taken to be abandoned and that the time for the delivery of the appeal book be extended to 23 October 1998. 

1. On 22 October 1998 the applicant delivered to the Registrar a copy of the appeal book which was deficient in several respects.  The Registrar in a letter pointed out the deficiencies to him and the applicant was given until 11 December 1998 to remedy them (pursuant to r.64.11(3)).  The applicant failed to amend the appeal book as required by the Registrar within the time prescribed by him, probably, as he contended, because he was occupied with the hearing before Eames, J. in proceeding 6562/98.  The mere failure by the applicant to comply with r.64.11(4), given that he complied with the order of Callaway, J.A. (and bearing in mind the order of his Honour that the appeal not be taken to be abandoned), did not bring into operation r.64.16(1)(b) so as to deem the appeal to be abandoned.  Nevertheless, the applicant has not strictly complied with the requirements of the rules.  Thus, on 8 April 1999 he filed a summons seeking “leave of the court to accept the late lodgment of the appeal book in this matter”.  On 23 February 1999 Eames, J. had ordered that the applicant be declared to be a vexatious litigant and restrained him from continuing or commencing proceedings other than pursuant to leave.  As a result, the applicant also seeks leave to make the application in question. 

1. The respondents to the originating motion were his Honour Chief Judge Waldron and the informant.  His Honour made it known almost from the outset of the appeal process that he did not wish to take any part in the appeal, and will abide by the Court’s decision.  The second respondent, who was represented before us by Mr. Castle, did not seek to contend that, because of the applicant’s failure to amend the appeal book as required by the Registrar, the appeal was deemed to have been abandoned or that it should be dismissed for want of prosecution.  Mr. Castle agreed that the requirement to amend the appeal book was a matter of form and inferentially agreed to the time being extended.  I should say that the applicant intimated to the Court that he would amend the appeal book as required by the Registrar.  Accordingly, the only order that is required on his summons to regularise the interlocutory process is that the time fixed by the Registrar within which the appeal book be amended in accordance with the requirement, be extended.

1. Unless the appeal in question can be characterised as a criminal proceeding for the purpose of the definition of “proceeding” in s.3(1) of the Act, the applicant will also need to obtain leave of the Court to continue his appeal. If such leave is required, then, since the proceeding is in this Court, it would be appropriate that leave be sought from it rather than from a Judge of the Trial Division. In my view, this Court has the power to grant such relief. [1]  The reference in s.21(7) of the Act to “Judge” is made for the purpose of making it plain that an application under s.21(1) or (5) must be determined by a Judge rather than a Master and, ordinarily, that means a Judge of the Trial Division.[2]  But the sub-section does not operate to deprive this Court of the power to grant, in proceedings relating to an appeal, the leave contemplated by s.21(3) of the Act.

   [1]See s.10(3) of the Act and s.75(2) of the Constitution Act 1975

   [2]See s.17(1) of the Act

1. Be that as it may, it is my opinion that, for relevant purposes, the appeal in this case is a criminal proceeding[3] because, as a matter of substance, it (together with the proceeding before the Chief Judge and the review proceeding before Vincent, J.) is subordinate or ancillary to, or relevantly connected with, the criminal proceeding that came before the Magistrates’ Court or the (abandoned) appeal against the magistrate’s decision, or both.[4]  On either basis, the prior substantial matter which has led to the appeal to this Court is a criminal proceeding which might be affected by the resolution of the appeal: that is to say, should the applicant succeed in overturning the determination of Vincent, J., it is likely that his appeal to the County Court will be reinstated, or at least the applicant will have an opportunity to have it reinstated if this Court remits the matter to the Chief Judge or to some other Judge of the Count Court for determination according to law.  The applicant may thereby avoid the criminal sanction that was imposed on him.

   [3]A term which is to be given “the widest possible interpretation”:  Ex parte Alice Woodall (1888) 20 Q.B.D. 832 at 835 per Lord Esher M.R.; Clarkson v D.P.P. [1990] V.R. 745 at 747 per Murphy, J.

   [4]See Rv Watt; Ex parteSlade [1912] V.L.R. 225 at 241-2 per Cussen, J.; Clarkson  at 747-751 per Murphy, J.  See also the full discussion of the meaning of “criminal proceeding” in s.24(2) of the Act by Phillips, J.A. in Perkins v. County Court of Victoria [2000] VSCA 171 at [4, 14-21].

1. In the circumstances, therefore, for relevant purposes the appeal to this Court can be properly regarded as a criminal proceeding.  Consequently, no leave is required for the applicant to continue his appeal (or to seek the extension of time that is sought in the present application).  But, if I am wrong in this view and the applicant does require leave to continue the appeal, I would grant such leave in the circumstances of this case, particularly having regard to the attitude of Mr. Castle to the application for extension of time and the fact that the interlocutory steps in the appeal should be completed shortly and its setting down will follow very soon thereafter.[5]

   [5]Once such leave is granted, the applicant will not require separate leave for the taking of interlocutory steps in the appeal, such as the present application.

1. I therefore propose that, subject to hearing further argument as to the date to which the time fixed for amending the appeal book should be extended, orders to the following effect be made:

(a)       To the extent necessary, leave be granted to the applicant nunc pro tunc to continue the appeal.

(b)      The time fixed by the Registrar for amending the appeal book in accordance with his direction be extended.

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