Kay v Dye & Ors
[2000] VSCA 177
•28 September 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No.4993 of 1999
| IAN ALBERT KAY | Applicant |
| v | |
| SENIOR CONSTABLE A. DYE & ORS and THE VICTORIAN COUNTY COURT | First Respondents 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 177 | |
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Practice and procedure – Application by vexatious litigant for extension of time within which to appeal – Whether leave required – Whether proposed appeal so devoid of merit as to render extension of time futile.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | (In person) | |
| For the First Respondents | Mr. G.J. Burns | Victorian Government Solicitor |
For the Second Respondent | No appearance |
ORMISTON, J.A.:
On this application, having had the benefit of reading the proposed reasons for judgment of Chernov, J.A., I have concluded, for the reasons he has stated, that the application should be dismissed.
BATT, J.A.:
I agree with Chernov, J.A.
CHERNOV, J.A.:
This was an application by the applicant in terms for ‘leave to appeal out of time’ against the order of Judge G.D. Lewis made on 9 March 1999. Since that order was clearly interlocutory the applicant required leave to appeal by reason of s.74(2B) of the County Court Act 1958. By virtue of r.64.03(3) of Chapter I of the Rules of this Court, read with the definition of ‘appeal’ in r.64.01, the application for leave was required to be made within 14 days after his Honour’s order of 9 March 1999. The application was accordingly treated during argument as one for an extension of time under r.64.20 within which to apply for leave to appeal against the order. The application was heard together with applications made by the applicant in two other proceedings, namely, 6562/98 and 7901/97. 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.
The background circumstances that are relevant to this application are these. On 21 December 1995 the applicant filed a proceeding in the County Court against the Chief Commissioner of Police (for whom several policemen were later substituted) alleging that the latter had falsely charged him with offences and committed other wrongs against him. He alleged that, as a result, he suffered psychological and other injuries and economic loss in respect of which he claimed damages against the defendants. The material shows that the statement of claim was amended on a number of occasions pursuant to leave granted by Master Patkin, but it seems that it was not struck out at any time. On 6 February 1997 Judge Keon-Cohen ordered that the parties exchange on or before 28 June 1997 medical reports, particulars as to damage and other expert reports. It seems that the case was eventually fixed for hearing, but because, inter alia, the order of Judge Keon-Cohen had not been complied with by the applicant, on 10 October 1997 Judge Stott ordered the matter to be re-fixed and further ordered that there be an exchange of relevant material on or before 24 October 1997. Apparently, the applicant did not comply with the order of Judge Stott and on 14 May 1998 Judge Keon-Cohen extended the time limits imposed by Judge Stott to 12 June 1998. His Honour also ordered that if the applicant failed to comply with the order by that date, the “plaintiff’s claim be struck out”. Because the applicant failed to comply with the order of Judge Stott by the due date, on 29 June 1998, Judge Keon-Cohen ordered that the plaintiff’s statement of claim be “deemed to be struck out.”
On 20 July 1998 the Attorney-General filed the originating motion in proceeding 6562/98 seeking that the applicant be declared a vexatious litigant. On 28 August 1998 the applicant took out a summons to have his proceeding against the police re-instated. The summons was initially set down for hearing in the Practice Court of the County Court on 7 September 1998 but was adjourned by Judge F.B. Lewis, who ordered that the applicant pay the defendants’ costs. The summons was subsequently further adjourned from time to time and, eventually, came on for hearing before Judge G.D. Lewis on 9 March 1999. In the meantime, Eames, J. had ordered on 23 February 1999 in proceeding 6562/98 that the applicant be declared a vexatious litigant but excluded this proceeding from the operation of his order.
At the hearing before Judge G.D. Lewis, his Honour was handed, inter alia, medical reports and reports of accountants on which the applicant sought to rely at the trial. After hearing argument, his Honour ordered that the proceeding be re-instated on the condition that –
(a)the applicant on or before 7 June 1999 pay to the respondents’ solicitors the sum of $110 pursuant to the order of Judge F.B. Lewis dated 7 September 1998;
(b)the respondents’ costs “incurred as a consequence of the above proceeding being struck out and the plaintiff’s application for re-instatement, which costs his Honour fixed at $1,500, be paid by the applicant to the respondents’ solicitors on or before 7 June 1999.”
If mere delay in filing the necessary document was the only consideration in this application, I would have little hesitation in deciding that the application for extension of time be granted, bearing in mind particularly that the delay in the filing of the application was not unduly long. But, in my view, such an order would be futile because the proposed appeal is devoid of any merit and thus, should be refused.[1]
[1]See Flannery v. Goulburn Murray Water Authority, unreported, Court of Appeal, 27 November 1998 per Tadgell, J.A.; Jackamarra v. Krakouer (1998) 195 C.L.R. 516, at 521, 527 and 540; Apidopoulos v. The Sheriff of Victoria [2000] VSCA 104 at [21], [22].
In my opinion, his Honour’s judgment does not exhibit any arguable error of principle on his part. It is plain that his Honour, in making the order he did, had real doubts as to whether the applicant could establish his case at the trial and in particular whether he could establish that he had suffered any injury or financial loss as a result of the allegedly unlawful action on the part of the police. Nevertheless, his Honour was prepared to re-instate the proceeding on the basis that the applicant paid the relevant costs. The applicant told us that, before filing the proceeding, he was handed by a County Court officer a “prescribed official form” which he was required to complete. He did so, advising the court, inter alia, that he would pay any costs awarded against him by instalments over a period of time. He argued that, therefore, his Honour erred in requiring him to pay the costs. In making the order that he did, it was said, his Honour failed to comply with the court’s own “procedure” in this matter. The applicant produced to us a copy of the document on which he relied. It consists of seven pages of standard questions that are required to be answered on oath by a proposed plaintiff who seeks a waiver of the fees that are ordinarily payable on the filing of a County Court writ. The questions relate to such things as the applicant’s occupation, earnings, pension entitlements, assets, liabilities and any hardship that will be caused by the payment of the fee. There are questions dealing with legal representation of the applicant and whether the applicant is aware that if his claim was unsuccessful, he would incur such costs as witness expenses, his own legal fees and the legal costs of the other party. The last question enquired how the applicant proposed to pay those costs if required to do so. The applicant answered: “When I resume employment I will be able to make weekly instalments should any costs be incurred against me”. The answers were sworn on 20 December 1995.
The applicant contended that, since the court waived the payment of the fees that were otherwise payable by him in relation to the writ which he filed, it accepted his promise to pay any relevant costs when he resumed employment, by weekly instalments. He claimed that it followed that his Honour erred in imposing the requirement that he pay the costs in question as a condition of his appeal being re-instated. In my view, it is plain that his Honour made no error in ordering the applicant to pay the costs in question. First, the applicant did not bring to his Honour’s attention the document in question or put the argument that he put before us in relation to it. In any event, the applicant’s argument is misconceived. The questions that he was asked to answer were sought to elicit information that would enable the court officer to determine whether to exercise the discretion to waive the prescribed fee. It was plainly not an intimation by the court that no costs orders would be made against him otherwise than in conformity with the proposal contained in his relevant answer. More importantly, perhaps, the respondents were not parties to the questionnaire and were obviously not bound by it. Thus, this argument of the applicant must fail.
The applicant could not point to any other arguable error that his Honour made in exercising his discretion. Moreover, having considered his Honour’s reasons, I am not able to discern any such error on his Honour’s part. His Honour carefully analysed the case for the applicant and took into account that an injustice may be perpetrated on the applicant if he were unable to proceed with his action. His Honour also took account, properly, I think, of the fact that the applicant had failed to comply with various orders of the court and that there would be an injustice to the respondents if the applicant were to have his proceeding re-instated without complying with the orders previously made. His Honour obviously also had regard to the fact that the adjournments put the respondents to unnecessary expense and he accepted that the applicant had difficulty in obtaining a psychiatric report because of the costs involved.
As I have said, his Honour stated that it was difficult to see that the applicant could establish that he suffered financial loss and physical injury as a result of the alleged unlawful acts of the respondents, but nevertheless was prepared to re-instate the case on the terms he imposed. The applicant obviously does not complain that his Honour re-instated the case, his only complaint is as to the terms on which the re-instatement was ordered. His Honour was, by virtue of County Court Rule 1.14(1)(b), if not otherwise, clearly entitled to impose terms in making an order under (presumably) r.24.06. As I have indicated, in my view, there is no arguable case that his Honour erred in any relevant way in exercising his discretion to impose those terms. Consequently, in my view, the applicant is bound to fail in his proposed appeal.
In the light of that, to grant the applicant an extension of time to file the application for leave to appeal would be futile. Consequently, the application should be dismissed.
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