M M International (Australia) Pty Ltd v Aerial Consolidated Transport Ltd
[2017] ACTSC 374
•11 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | M M International (Australia) Pty Ltd v Aerial Consolidated Transport Ltd |
Citation: | [2017] ACTSC 374 |
Hearing Date: | 11 December 2017 |
DecisionDate: | 11 December 2017 |
Before: | Elkaim J |
Decision: | The application for leave to appeal out of time is dismissed. The applicant is to pay the respondents’ costs of the application. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Application for leave to appeal out of time. |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 1904(3)(b) and 5085(1) |
Cases Cited: | Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49 Hussain v Farhmand [2016] ACTSC 122 |
Parties: | M M International (Australia) Pty Ltd (Applicant) Aerial Consolidated Transport Ltd (First Respondent) Aerial Capital Group Ltd (Second Respondent) |
Representation: | Counsel Mr P Christensen (Applicant) Mr K Pattenden (First and Second Respondent) |
| Solicitors John O’Keefe Solicitors (Applicant) Griffin Legal (First and Second Respondent) | |
File Number: | SCA 71 of 2016 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 17 August 2016 Case Title: M M International (Australia) Pty Ltd v Aerial Consolidated Transport Ltd Court File Number: CS 14/1141 |
ELKAIM J:
On 17 August 2016, Magistrate Morrison made the following orders:
1. The plaintiff’s proceedings against the second defendant be dismissed and that judgment be entered in favour of the second defendant on the plaintiff’s claim.
2. Leave is granted to the second defendant to discontinue its counterclaim.
3. The provision of rule 1163(1) of the Court Procedures Rules do not apply to the discontinuance by the second defendant.
4. The plaintiff pay the second defendant’s costs of the proceedings as agreed or assessed, including the costs of and incidental to this second defendant’s Application in Proceeding dated 8 August 2016, and all reserved costs.
On 27 September 2016, the applicant filed an application for leave to appeal out of time against the orders of Magistrate Morrison. The notice of appeal should have been filed not later than 28 days after 17 August 2016. The application was therefore made 13 days out of time.
Contrary to r 5085(1) of the Court Procedures Rules 2006 (ACT), the applicant did not serve the respondents with a sealed copy of the application, a stamped copy of the accompanying affidavit and a stamped copy of the draft notice of appeal within three days after the application was filed. The material was served on the respondents on 5 December 2016, 66 days late.
In my view, the time taken to serve the material should be added to the initial period of delay to ascertain the extent to which the appeal is late. Thus, the appeal should be considered to be 79 days out of time.
I note that one of the directors of the applicant company, Mr Hussain, has some experience in making applications for leave to appeal out of time. He should be considered to be a person who is aware of the considerations involved. Relevantly, Mr Hussain has been involved in the following matters: Hussain v Ngep [2015] ACTSC 71; Hussain v Farhmand [2016] ACTSC 122; and Hussain v Tam [2015] ACTSC 197.
The application for leave to appeal out of time was filed on 27 September 2016. An amended notice of appeal was filed on 18 October 2017 but was never served on the respondents. This is consistent with the history of the matter.
The application is supported by an affidavit of Ms Bazlun Bilkis, affirmed on 27 September 2016. Ms Bilkis is a director of the applicant company. The respondents filed affidavits in response to the application. However, to some degree at my suggestion, and because counsel for the applicant had not had an opportunity to read the affidavits, the respondents only sought to rely upon a chronology (Exhibit 1) in Court.
When the matter commenced today, the applicant was represented by Mr Christensen, who was only very recently briefed in the matter. He did his best to present the applicant’s case but was hampered by a lack of time in which to prepare and a lack of documentation. No application was made for an adjournment. The applicant has been represented at different stages of the proceedings. I note, as conceded by Mr Christensen, the directors of the applicant are far from ‘amateur’ litigants.
This matter has a lengthy history. The applicant was the plaintiff in proceedings commenced in the Magistrates Court on 24 October 2014. The respondents were the defendants in the action.
The nature of the original dispute is set out by Ms Bilkis at [7], [8] and [9] of her affidavit. It appears to have involved the use of a taxi (TX 467) which was stolen and destroyed by fire on 10 December 2013.
The matter came on for hearing on 23 November 2015, but was not completed on that date. There were some interlocutory skirmishes about a subpoena. On 18 April 2016, the respondents filed an application for security for costs. The application came before Magistrate Morrison on 29 April 2016. The plaintiff made an application for adjournment, which was refused. It is unclear what orders were made on that day but it does appear that some form of order for security for costs was made.
The substantive matter returned to the Magistrates Court for a resumed hearing on 2 May 2016. The applicant apparently advised the Court that it would not be attending. The matter was then adjourned to 11 May 2016 and, subsequently, to 16 May 2016.
On 16 May 2016, the application for security for costs was again discussed. It appears that, on this date, the applicant applied for the recusal of Magistrate Morrison. His Honour declined the application and, according to the transcript, the directors then walked out of Court. It seems that the Magistrate then went on to deal with the application for security for costs. His Honour ordered that the applicant pay the sum of $7,000, in cash or by way of bank cheque, to the Registrar of the Magistrates Court by 30 May 2016. This order was not complied with.
The matter came back before Magistrate Morrison on 17 August 2016 to deal with an application by the respondents to dismiss the proceedings. The basis for the application was that the security for costs had not been provided.
The applicant did not appear on 17 August 2016. Mr Hussain, one of its directors, was unwell. He provided a medical certificate stating that he was unfit for work from 14 August 2016 to 13 September 2016. The Magistrate, appropriately, treated the medical certificate as an application for an adjournment. The application was opposed by the respondents.
There was no evidence providing any reason for Ms Bilkis not being able to be present. I note that she has played a significant part in the proceedings. It was submitted that the Magistrate should have told the applicant about the refusal of the adjournment and at least stood the matter down to later in the day. Even if this was a viable option in what is generally a very busy court, the applicant had been informed of the opposition to the adjournment the day before.
His Honour refused the application for an adjournment, noting that the material provided by the applicant did not include any reasons for the failure to comply with the order of 16 May 2016. His Honour remarked:
I think I can say on the basis of the material that’s currently before me, including the reasons given in the affidavit of Ms Bilkis, the fact that the medical certificates are in a standard form referring to fitness for work or usual duties and not addressing the question of an appearance in court, the fact that there are two directors and that to the extent that there are certificates which cover a date including the current date, they only apply in relation to one of the directors and not the other, but also the fact that the affidavit simply doesn’t touch on what would be a response to the primary application for collective reasons just given the application for the adjournment is refused.
His Honour then went on to deal with the application for the dismissal of the proceedings. The application was successful. The orders are set out above, at [1]. The action taken by the Magistrate was within the options available to him under r 1904(3)(b) of the Court Procedures Rules 2006 (ACT).
As noted above, the application for leave to appeal out of time was filed on 27 September 2016. Some procedural orders were made by Robinson AJ on 31 January 2017. The respondents made another application for security for costs, which was granted by Burns J on 13 April 2017. His Honour ordered that the applicant give security in the amount of $12,000 within 28 days. I understand that this payment has been made.
Another, secondary, complaint made by the applicant arises from a fixed costs order made on 30 November 2016. The application for costs had originally been set down for hearing on 16 November 2016. However, the applicant sought an adjournment. The adjournment was granted. There was no appearance on behalf of the applicant on 30 November 2016. This is another example of the manner in which the proceedings have been conducted on behalf of the applicant. There is also no live application challenging the costs order.
The principles to be applied in an application of this type were outlined by Refshauge J in Concerned Citizens of Canberra Inc v Chief Executive (Planning and Land Authority) [2015] ACTCA 56; 303 FLR 49 at [21].
The initial time limit was only exceeded by 13 days. However, the 66 day delay is significant. This is a matter which has a very long history. The respondents have had to respond to a number of applications, most of which have been caused by delay or dilatoriness on behalf of the applicant. The applicant’s conduct has persistently precluded the finalisation of the litigation.
Exhibit A provides some support for the proposition that Mr Hussain was not able to participate in proceedings for a period of time in October and November 2016. However, there is no explanation for why Ms Bilkis was unable to act during the 66 days. There is also no explanation why solicitors were not engaged by the applicant.
In my view, the merits of the appeal are very difficult to discern. Even if one were to rely on the draft notice of appeal, filed on 18 October 2017, it would be very difficult to come to a different conclusion. The draft notice of appeal contains errors, is difficult to understand and, with one exception, does not raise any significant ground of appeal.
The one exception to this is the submission that, due to the Magistrate’s dismissal of the claim on 17 August 2016, the applicant was denied a chance to be heard. In other words, there was a denial of procedural fairness and natural justice. At first sight, there is some merit in this argument. However, on closer scrutiny, any suggestion of merit is dispelled.
The applicant was aware of the respondents’ application for the dismissal of the proceedings. The application had been filed and served on 8 August 2016. There was no reason why solicitors could not have been present to make an application for an adjournment. As already noted, although there was a medical certificate available in respect of Mr Hussain, there was no reason advanced for the absence of Ms Bilkis.
It was submitted today that the directors of the applicant may not have understood the significance of disobeying the order relating to security for costs. That submissions is, however, not consistent with the directors’ experience and is, more significantly, inconsistent with the order for security for costs having first been made on 29 April 2016 and then made again, in plain terms, on 16 May 2016.
The approach to be taken in matters of this type is to try to achieve justice between the parties. As I have already said, my initial impression is that the applicant was entitled to be heard at the hearing when the proceedings were dismissed. However, the application of the Magistrate’s discretion survives challenge and the prospects of appeal are so slim that they do not elevate the merits of this application to the necessary extent. In addition, the delay, the complexity of the matter, and the applicant’s continuing failures (for example, the failure to serve the amended notice of appeal or at least prove service) combine to require that, in the interests of justice, these proceedings come to an end.
Accordingly, I make the following orders:
(i)The application for leave to appeal out of time is dismissed.
(ii)The applicant is to pay the respondents’ costs of the application.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 11 December 2017 |
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