Marshall v B T B Australia Pty Ltd
[2004] VSCA 227
•22 October 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
(Revised)
No. 3776 of 2002
| MICHAEL RONALD MARSHALL | Appellant |
| v. | |
| B.T.B. AUSTRALIA PTY LTD | Respondent |
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APPLICATIONS ON SUMMONS
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JUDGES: | BATT and NETTLE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 October 2004 | |
DATE OF JUDGMENT: | 22 October 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 227 | |
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APPEAL - Practice and Procedure - Appeal instituted by defendant, but appellant dies before hearing - No grant of representation - Whether R.9.10 of Ch. I applies on appeal - Nolan v. The Marquis of Drogheda (1892) L.R. (I.) 32 Ch.84 not followed - Unless application for substitution of a personal representative made within a stated time, appeal dismissed - Absent a personal representative, no order for costs possible.
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| APPEARANCES: | Counsel | Solicitors |
| For Applicant Solicitors | Mr C. J. Pearson | C. Marshall & Associates |
| For the Respondent | Mr J. L. Castelan | Darrer Muir Fleiter |
| For Michelle Marshall | Mr R.E. Cook (by leave) | Poulton Elliot & Grey |
BATT, J.A. (for the Court):
The Court will make an order under Rule 20.03(4), though it may strictly be unnecessary as no one can act for a non-existent person. Because the appellant is dead and no order for substitution has been made, it is inappropriate to make an order under Rule 20.05(2).
The formal order of the Court is that C. Marshall & Associates have leave to file notice of ceasing to act for the appellant in this proceeding.
The Court will now move to the other and earlier application.
(Discussion ensued)
BATT, JA:
On 25 November 2002 the present respondent, B.T.B. Australia Pty Ltd, as plaintiff recovered judgment in the County Court against Michael Ronald Marshall as defendant for damages for conversion and trespass to goods in the sum of $50,000, to which was added interest of approximately $12,500, together with an order for costs. We shall refer to the plaintiff and the defendant as the respondent and the appellant respectively. On 5 December 2002 the appellant filed and, it seems, served a notice of appeal challenging the assessment of damages and seeking the substitution of a judgment for the defendant. Whether the judgment was effectively stayed need not detain us. Various steps were taken in the appeal over the next three months or so. On 25 October 2003, however, the appellant died as a result of gunshot wounds unlawfully inflicted on him. Despite the commendable urgings of the solicitors for the respondent, there appears - and the Court's internal inquiries confirm this - to have been no grant (or application for a grant) of representation to the estate of the appellant and no order has been made substituting a personal representative of him as appellant in the appeal. Nevertheless, the appeal has been set down for hearing by this Court on 2 December 2004.
The respondent has applied by summons filed on 22 September 2004 for an order that the proceeding (being the appeal) be struck out for want of prosecution or alternatively for an order, pursuant to Rule 9.10(1) of Chapter I of the Rules, that the proceedings be dismissed within seven days unless before that time the Court makes an order pursuant to Rule 9.09(2) substituting a personal representative of the appellant as appellant in the appeal, and also for an order, pursuant to Rule 9.10(2), that the respondent's costs be paid out of the deceased estate of the appellant. The respondent argues, with ample justification, that it has been forced to make this application in order to know whether the appeal will proceed on 2 December next.
Proceedings in an appeal should ordinarily move faster than those before trial because the evidence, having been given, does not have to be gathered again and there are fewer interlocutory steps. Dismissal for want of prosecution is applicable in appeals (Muto v. Faul[1]), but it cannot be said that there was a want of prosecution of this appeal prior to the appellant's death. As to the undoubted inactivity thereafter, there is no-one on the record at present to be responsible. The difficulty more generally, in our view, is that an order dismissing or striking an appeal for want of prosecution can only be made against an existing party and here the appellant is no longer alive. See United Service Insurance Co. Ltd v. Long[2]. The Court could no doubt strike the case out of the list of appeals (cf. Daimler Co. Ltd v. Continental Tyre and Rubber Co. (Great Britain) Ltd[3]), but that would not dispose of the appeal.
[1][1980] V.R. 26.
[2](1935) 35 S.R. (N.S.W.) 487; 52 W.N. (N.S.W.) 169 at 171.
[3][1916] 2 A.C. 307 at 348.
Rule 9.10, however, is apt to deal with the case where a party whose cause of action survives dies but no order is made substituting a personal representative of the decedent party as party. In Nolan v. The Marquis of Drogheda[4], for the reference to which I am grateful to Nettle, J.A., a two-member Court of Appeal at Ireland, presided over by the distinguished Chief Baron Palles, held, without reasons, that the former Order XVII r8, the immediate predecessor of Rule 9.10, did not apply to proceedings in the Court of Appeal. The court seemed to suggest that the old practice of obtaining an order reviving the action should have been adopted, as it had been in Hodgens v. Hodgens[5] and Knight v. Gardner[6]. With the greatest of respect it appears to us in this later age that Rule 9.10 is, on a fair reading, apt to apply to an appeal, the cause of action being, in a case where the defendant has appealed, the entitlement to vindicate a claimed immunity or a claimed lesser liability and the appeal from the County Court being capable of being a proceeding within the definition of that word in Rule 1.13(1).
[4](1892) L.R. (I.) 32 Ch.84 at 85.
[5](1875) Ir.Rep. 10 Eq.4.
[6](1883) 32 Sol Jo 166.
The Court will therefore make an order under Rule 9.10(1). In light of the history of this matter, 21 days is sufficient time to allow before the order operates.
As Mr Cook has appeared by leave for the widow, who proposes to apply for letters of administration, the person really affected by any order which this Court might make will know through her counsel of the orders the Court makes today and it will therefore not be necessary to provide for service upon her solicitor who has been acting for the estate generally.
Paragraph (2) of Rule 9.10 provides that the Court may, whether or not a grant of representation has been made, direct that, if the proceeding is dismissed by virtue of the order made under paragraph (1), costs of the proceeding be awarded, if it is the plaintiff (that is, the moving party and in this case therefore the appellant) that dies, to the defendant (that is, the respondent party) against the personal representative of the deceased out of the estate of the deceased. The difficulty, however, is that, whilst a grant of representation is not required, there is no personal representative of the deceased, even in the form of an executor named in the will who has not applied for probate. An order cannot be made against the estate as though it were a legal person and although orders are frequently made for payment of costs out of an estate there is in such cases always before the Court the legal personal representative of that estate. The respondent appears clearly to be entitled to the costs of the appeal if it stands dismissed and, in any event, to the costs of this application, but the best that the Court can do is to reserve liberty to the respondent to apply to the Court of Appeal for an order for costs on seven days' notice to the personal representative of the deceased appellant when representation is granted.
The Court should, in our view, vacate the hearing date of 2 December. There is a real risk that the appellant (if one is substituted) will not be ready and, in any event, that the respondent will be prejudiced by late receipt of documents and the like.
The formal order of the Court is:
1.Unless an application for an order for substitution of a personal representative of the deceased appellant Michael Ronald Marshall is made within 28 days of this day the appeal be dismissed.
2.The respondent B.T.B. Australia Pty Ltd be at liberty to apply for an order for costs of the appeal, including the costs of this application, on seven days' written notice to the personal representative of the deceased appellant Michael Ronald Marshall once representation is granted.
3.The hearing date for the appeal of 2 December 2004 be vacated.
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