Lucas v Public Transport Corporation Victoria

[2000] VSCA 35

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 7516 of 1998

SAMUEL LUCAS

Appellant

v

PUBLIC TRANSPORT CORPORATION
VICTORIA

Respondent

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JUDGES:	BROOKING, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 March 2000
DATE OF JUDGMENT:	16 March 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 35	1st Revision 31 March 2000

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PRACTICE AND PROCEDURE – Proceeding permanently stayed on the ground that it had no prospect of success – Whether order in an interlocutory application – Leave to appeal required – County Court Act 1958, s.74(2D).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J. Selimi	Jack Cohen Serry & Co.
For the Respondent	Dr C.N. Jessup, Q.C. with Mr G.A. Devries	Minter Ellison

BROOKING, J.A.: 

1. Chernov, J.A. will deliver the first judgment.

CHERNOV, J.A.: 

1. The appellant, then a bus driver in the employ of the respondent, was dismissed by it on or about 27 November 1995.  In January 1996 he filed a claim in the Industrial Relations Court of Australia ("the IRCA claim") in relation to his allegedly wrongful termination of employment by the respondent by which he sought "reinstatement and/or compensation".  Earlier, the appellant had filed an application in the Employee Relations Commission of Victoria in respect of his dismissal.  Save for one matter to which I will refer in a moment, that proceeding assumes no relevance for present purposes and may be disregarded.  On or about 12 February 1996, following a conciliation process, the respective representatives of the appellant and the respondent reached an agreement to settle the appellant's claim, including his claim that he be paid $1,500 by the respondent.  As a consequence, the appellant's solicitor drew terms of settlement which sought to reflect that agreement and which were accepted by the respondent.  They included the following term (which was modified a little later at the request of the respondent so as to include a reference to the proceeding in the Employee Relations Commission of Victoria, but nothing turns on this modification). 

"6.This settlement is made in full and final settlement of all claims made by the applicant against the respondent in proceeding number VI 96/1077 in the Industrial Relations Court of Australia and/or arising out of the applicant's prior employment by the respondent save and except for any claims with respect to the personal injury arising out of or in the course of the applicant's employment with the respondent."

1. The appellant, however, did not sign the terms and, as a result, the respondent applied to the Industrial Relations Court for orders that the IRCA claim be dismissed or struck out with costs.  On 4 June 1996 a judicial registrar of the court ordered that the proceeding be struck out and also ordered by consent that the respondent pay $1,500 to the appellant's solicitors.  She considered that the agreement of 12 February 1996 was not conditional upon the terms being documented and executed by the appellant, but was binding on the parties.

1. Notwithstanding these events, on 13 February 1998 the appellant commenced a proceeding in the County Court against the respondent in which he seeks damages for his allegedly wrongful dismissal by the respondent on 27 November 1995 and an order that his employment with the respondent be reinstated.  On 30 April 1998 the respondent filed a summons seeking, inter alia, an order pursuant to Rule 23.01 of the County Court Rules that the proceeding be permanently stayed on the ground that since the appellant had no prospect of success the proceeding is vexatious and an abuse of process.  On 2 October 1998 the judge of the County Court who heard the summons over a period of four days ordered a permanent stay of the proceeding.  The basis of his Honour's decision was that the appellant had, by the agreement of 12 February 1996, released the respondent from the claims which are the subject of the present proceeding and that therefore his case had no prospect of success.

1. By notice of appeal dated 16 October 1998, which was duly filed and served, the appellant purportedly instituted this appeal.  He did not, however, seek leave to do so, having at all relevant times adopted a somewhat cavalier attitude on this issue, namely, that the order below was final and was not interlocutory and that, therefore, no leave was required, but even if it was interlocutory and thus leave was required, it ought to be readily granted by reason of the fact that the order was "final in its practical effect".  The applicant adopted this course notwithstanding that the respondent had informed him on a number of occasions since late 1998 that the appeal was incompetent unless leave was first obtained.

1. The question whether the decision below is interlocutory or final is of initial importance because if it is interlocutory this Court has no jurisdiction to entertain the appeal unless and until leave to appeal is granted (s.74(2D) of the County Court Act 1958; Little v. The State of Victoria[1].  See also Brooking, J.A. in Border Auto Wreckers v. Strathdee[2]).

   [1][1998] 4 V.R. 596 at 597 and 602 per Callaway, J.A. with whom Buchanan, J.A, agreed.

   [2][1997] 2 V.R. 49 at 51 and 54.

1. When the appeal was called on, the first matter argued by the appellant was that the order below was final or, alternatively, if it was interlocutory, leave to appeal should be given.  We entertained the application for leave without a summons.

1. The test to be applied in determining whether an order is final or interlocutory is whether the judgment or order appealed from finally determines the rights of the parties having regard to the legal, rather than the practical, effect of the judgment or order.  (Licul v. Corney[3] and Carr v. Finance Corporation of Australia Ltd. [No. 1][4].)  As was observed by Brooking, J.A. in Border (at 52), whether an order is final or interlocutory for the purpose of leave to appeal "may be ascertained with tolerable certainty by reference to decided cases specifically in point or, in the absence of such a decision, to the rules which are now established by decisions of the High Court".  The authorities seem to make it clear that ordinarily an order staying an action on the ground that it is frivolous, vexatious and an abuse  of process where the plaintiff's claim is hopeless, is interlocutory and not final  - see Tampion v. Anderson[5];  Little[6];  Wickstead v. Browne[7]; Olympic Airways SA v. Nelson Wheeler Arnold[8].

   [3](1976) 50 A.L.J.R. 439 at 444.

   [4](1980) 147 C.L.R. 246 at 248 per Gibbs, C.J.

   [5](1973) 48 A.L.J.R. 11 at 12.

   [6]at 601.

   [7](1992) 30 N.S.W.L.R. 1 at 11.

   [8][1998] VSCA 28 at pp.3 and 5.

1. The appellant, however, relied on Port of Melbourne Authority v. Anshun Pty Ltd [No. 1][9], which distinguished but did not disapprove of Tampion.  The case was concerned with the respondent's objection to the competency of the appeal in respect of an order staying the proceeding on the ground that it was an abuse of process because the proceeding which the appellant sought to pursue should have been litigated in the earlier proceeding.  The respondent contended that the order was interlocutory and, therefore, special leave was required.  Their Honours held, however, that because "the abuse of process lay in an attempt to litigate an issue which was res judicata" the order finally disposed of the rights of the parties and thus was a final order.  The Court did not, however, deal with the situation where the proceeding was hopeless partly because some issues had been resolved against the plaintiff in other relevant proceedings.  But their Honours did impliedly accept that an order dismissing a proceeding which is "frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action" was interlocutory.

   [9](1980) 147 C.L.R. 35.

1. Mr Selimi, who appeared for the appellant, contended that his Honour's order fell within Anshun because it was, in effect, based on res judicata or issue estoppel.  He argued that although his Honour reached his conclusion that the appellant had released his relevant rights in February 1996 by construing the terms of settlement, the fundamental basis of his decision was his finding of res judicata or issue estoppel in relation to the registrar's decision.  In my view, however, Anshun is plainly distinguishable from the present case.  A fair reading of his Honour's judgment does not disclose that its basis was that the abuse here lay in an attempt "to litigate the issue which was res judicata" or was the subject of the principle of issue estoppel.  Rather, the real essence of his order was that in February 1996 the appellant had released the respondent from the claims that he now seeks to pursue.

1. It is true that some aspects of his Honour's decision were based on issue estoppel and that his Honour, in terms, referred to "res judicata".  There were two matters that were resolved by his Honour on the basis of issue estoppel.  One related to his acceptance of the judicial registrar's conclusion that the agreement of February 1996 was binding on the parties.  He said that the question before him was to be resolved "on the basis of accepting as res judicata the proposition that as at 12 February 1996" there was a binding agreement between the parties.  It is clear enough that the registrar's determination could not have been the foundation of the operation of the principle of res judicata and that what his Honour must have meant in that passage was that issue estoppel operated to bar the appellant from contending that the agreement was not binding on him.  Mr Selimi submitted that, in any event, his Honour erred in finding that the appellant was estopped from denying that the terms of settlement were binding on him by reason of the decision of the registrar.  It was contended that the only issue before her was whether the terms were subject to a condition that they would have no operation until they were signed by the appellant.  Consequently, it was said, any decision by her as to the binding effect of the agreement was not one that bound the appellant in subsequent proceedings.  In my view, however, it is plain on the material that the issue of whether the terms were binding on the appellant was before the registrar.  In any event, the appellant's only basis for claiming that the terms were not binding on him, so far as is relevant, was that they were not executed by him.  The registrar rejected that claim and found as a consequence that the terms were binding on the appellant.  Hence no error was made by his Honour in this regard.  The second matter in respect of which his Honour held that issue estoppel operated was on the question of the ostensible authority of the appellant's solicitor to enter into the agreement.  But his Honour also resolved that issue against the appellant on the basis of the evidence before him.

1. But these conclusions, although founded on issue estoppel, did not form the essence of his Honour's decision that the present proceeding was hopeless and that, therefore, should be stayed.  As I have said earlier, that decision was based on the conclusion that by the terms of settlement the appellant had released the claims which he is now seeking to pursue in the present litigation.  His Honour expressly identified the question of resolution, namely, whether it was so clear that the appellant had released his relevant rights that the present proceeding must fail.  His Honour concluded, after construing the document: 

"[T]he claim made in the present proceeding is one which had been released prior to the filing of the present proceeding.  Unless my construction of the terms of settlement is wrong, the present claim must fail.  In view of this finding I believe that in accordance with the authorities referred to at the beginning of these reasons [which state the standard to which an applicant for a stay must establish his case], I should permanently stay the proceeding." 

1. Thus, in my view, the decision in Anshun does not operate in relation to the present case and, having regard to the authorities and circumstances to which I have referred earlier, the order below was made "in an interlocutory application" within the meaning of s.74(2D) of the County Court Act 1958. Accordingly, leave to appeal is required. That being so, the appellant must establish that the order was wrong or attended with sufficient doubt to justify leave being granted, and that substantial injustice would be done by leaving the decision unreversed (Nieman v. Electronic Industries Ltd[10]).

   [10][1978] V.R. 431.

1. Brooking, J.A. (with whom Charles and Callaway, JJ.A. agreed) observed in X v. Director of Public Prosecutions[11], that the practice has been that, in general, applications for leave to appeal are disposed of in Victoria without the giving of detailed reasons.  In my opinion, the correctness of the decision of his Honour is not attended by sufficient doubt to warrant the grant of leave to appeal.  In particular, in my view, his Honour made no relevant error in construing the terms of settlement; it is clear that by clause 6 the applicant released the respondent from the claims made in the present proceeding, reserving only the claims with respect of personal injury arising out of or in connection with his employment with the respondent.  According, I would dismiss the application for leave and the appeal itself.

BROOKING, J.A.: 

[11][1995] 2 V.R. 622 at 623.

1. I agree.

BATT, J.A.: 

1. I also agree.

BROOKING, J.A.: 

1. The order of the Court is in accordance with these minutes: 

1.        Application for leave to appeal dismissed with costs. 

2.        Appeal dismissed as incompetent with costs.

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