McGinn v Cranbrook School

[2016] NSWCA 226

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	McGinn v Cranbrook School [2016] NSWCA 226
Hearing dates:	16 August 2016
Decision date:	25 August 2016
Before:	Beazley P at [1] Gleeson JA at [2] Simpson JA at [42]
Decision:	(1) Applicant’s notice of motion filed 17 June 2016 be dismissed; (2) Applicant to pay the respondent’s costs of the motion.
Catchwords:	APPEAL AND NEW TRIAL - appeal - practice and procedure - New South Wales- review of decision of single judge of appeal – nature of hearing – Supreme Court Act s 46(4) - where appeal dismissed as incompetent – where appeal concerned summary dismissal order under UCPR 13.4 – whether order interlocutory – whether leave required under Supreme Court Act 1970 s 101(2)(e) – where re-opening application dismissed by single judge of appeal – whether relevant error demonstrated – whether UCPR r 36.15(1) applicable – where allegation that respondents’ submissions misled the Court
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 101 Court Suppression and Non-publication Orders Act 2010 (NSW) Supreme Court Act 1970 (NSW) s 19, 46, 101(2)(e), 105, 106, 107 Uniform Civil Procedure Rules 2005 r 13.1, 13.4, 42.7, 36.15, 51.2, 51.10, 51.41, 51.44, 51.53, 51.61
Cases Cited:	Clarke v State of New South Wales [2015] NSWCA 27 Kwon v Cha; Kwon v O’Neill [2015] NSWCA 111 Macatangay v New South Wales (No 2) [2009] NSWCA 272 McGinn v Cranbrook School [2015] NSWCA 378 McGinn v Cranbrook School (No 2) [2015] NSWCA 419 McGinn v Cranbrook School (No 2) [2015] NSWSC 1485 McGinn v Cranbrook School [2016] HCA SL 50 Pi v Pierce and Attorney General for NSW [2015] NSWCA 118 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143 Wang v Johnston Vaughan [2015] NSWCA 35
Category:	Principal judgment
Parties:	Sophia McGinn (Appellant) Cranbrook School (Respondent)
Representation:	Counsel: J A Watson/ R J May (Respondent)   Solicitors: Applicant (Self-represented) Fraser Clancy Lawyers (Respondent)
File Number(s):	2015/299498
Decision under appeal	Court or tribunal: Court of Appeal Citation: [2015] NSWCA 419 Date of Decision: 22 December 2015 Before: Leeming JA File Number(s): 2015/299498

Judgment

1. BEAZLEY P: I have had the advantage of reading in draft Gleeson JA’s reasons in this matter. I agree with his Honour’s reasons and proposed orders.

2. GLEESON JA: Before the Court is a review of two decisions of Leeming JA given: on 30 November 2015, dismissing an appeal purportedly brought as of right as incompetent, and ordering the appellant, Ms Sophia McGinn, to pay the respondent’s costs of the appeal on an indemnity basis (McGinn v Cranbrook School [2015] NSWCA 378); and on 22 December 2015, dismissing with costs a notice of motion filed 4 December 2015 by which Ms McGinn sought to set aside the earlier judgment (McGinn v Cranbrook School (No 2) [2015] NSWCA 419).

3. The orders of Leeming JA were made under the powers conferred upon a single Judge of Appeal by s 46(2) of the Supreme Court Act 1970 (NSW) (the Supreme Court Act). The application for review of Leeming JA’s orders was made under s 46(4) which provides:

(4) The Court of Appeal may discharge or vary a judgment given by a Judge of Appeal, or an order made or direction given by a Judge of Appeal.

4. An application under s 46(4) is not an appeal to the Court: see s 19(2), Supreme Court Act; and UCPR r 51.2 for the definition of “appeal”. It is well-established that the applicant for review must show that there has been a material error of law or fact, a disregard of some material consideration or the taking into account of an irrelevant consideration, or that the decision was plainly unreasonable and therefore wrong: Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; 60 NSWLR 143 at [4], [6].

5. As will be seen, the applicant, Ms McGinn, seeks a “new trial” of the competency question and other relief.

Background

6. A brief outline of the procedural history will explain the issues. Ms McGinn filed a notice of appeal on 13 October 2015. The purported appeal was from an order made by Hall J sitting in the Common Law Division of the Supreme Court summarily dismissing proceedings under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) brought by Ms McGinn against the respondent-school for damages for alleged breach of contract. Hall J dismissed the proceedings on the basis that they did not disclose a reasonable cause of action and were an abuse of process: McGinn v Cranbrook School (2 October 2015). It is not necessary to refer to the detail of that claim for the purposes of this present application.

7. Following a further hearing on 8 October 2015 on the question of costs and as to the appropriate form of a continuing order under the Court Suppression and Non-publication Orders Act 2010 (NSW), Hall J gave reasons for making a suppression order under that Act: McGinn v Cranbrook School (No 2) [2015] NSWSC 1485) and on 27 November 2015 ordered Ms McGinn to pay the respondent’s costs of the proceedings in an amount of $42,712.00.

8. On 9 November 2015, the respondent filed a notice of motion seeking an order that the appeal be dismissed as incompetent.

9. In his reasons given on 30 November 2015, Leeming JA accepted that he was bound by the decision of this Court in Macatangay v New South Wales (No 2) [2009] NSWCA 272 (Macatangay) which held at [11], that an order dismissing proceedings pursuant to UCPR r 13.4 is interlocutory. His Honour rejected Ms McGinn’s submission that the application made by the respondent required evidence. He held that no evidence is required to determine the question of competency. He noted that the competency of an appeal is regulated by UCPR r 51.41, and that the respondent had applied under that provision within the time stated. Leeming JA also noted that, despite being advised by the solicitors acting for the respondent, and the Registrar of this Court, of the requirement to seek leave to appeal, Ms McGinn declined to do so. Leeming JA concluded that the appeal was incompetent because the order of Hall J dismissing the Supreme Court proceedings was an interlocutory judgment, and accordingly, leave to appeal was required by s 101(2)(e) of the Supreme Court Act.

10. As mentioned, on 4 December 2015, Ms McGinn filed a notice of motion seeking to set aside Leeming JA’s judgment of 30 November 2015 “on the basis that the judgment was entered irregularly as no affidavit was filed, was given illegally as no evidence was before the Court, and was given against good faith”. Ms McGinn also sought an order that the respondent’s notice of motion (filed on 9 November 2015) be dismissed on the basis that “no evidence and/or no admissible evidence was tendered in support of the motion”.

11. In her re-opening application before Leeming JA, Ms McGinn sought to rely upon UCPR r 36.15(1) which provides:

(1) [a] judgment or order of the Court in any proceedings may, on sufficient cause being shown, be set aside by order of the Court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

12. His Honour was unpersuaded that there was any error in his decision of 30 November 2015 or that the judgment was given irregularly, illegally or against good faith. He observed that the only question was the competence of Ms McGinn’s appeal, that here, the competency of the purported appeal did not turn on evidence and that Ms McGinn’s submission that she has a right of appeal from an interlocutory judgment of the primary judge was contrary to authority. In addition to Macatangay, his Honour referred to Clarke v State of New South Wales [2015] NSWCA 27 at [14], Wang v Johnston Vaughan [2015] NSWCA 35 at [26], Kwon v Cha; Kwon v O’Neill [2015] NSWCA 111 at [28] and Pi v Pierce and Attorney General for NSW [2015] NSWCA 118 at [1].

13. His Honour also gave reasons for rejecting Ms McGinn’s mistaken view that evidence in the form of an affidavit was required to be filed by the respondent in support of the respondent’s motion to dismiss the appeal as incompetent.

14. On 10 February 2016, the respondent, as the judgment creditor in respect of the costs order on 27 November 2015, sought a garnishee order against the Commonwealth Bank of Australia for debts owing by Ms McGinn in an amount of $43,422.43. That figure was calculated as the sum payable under the judgment for costs on 27 November 2015 for $42,712, together with interest payable under s 101 of the Civil Procedure Act 2005 (NSW) (the Civil Procedure Act) of $710.43.

15. On 7 April 2016, Kiefel and Keane JJ dismissed Ms McGinn’s application for special leave to appeal to the High Court from the decisions of Leeming JA: McGinn v Cranbrook School [2016] HCA SL 50.

16. On 17 June 2016, Ms McGinn filed a notice of motion seeking the following relief:

1.   An order of new trial and set aside the judgments by Justice Leeming on 30 November 2015 and 22 December 2015 on the ground that the judgments were fraudulently obtained with the discovery of new evidence – Notice of Motion of Garnishee Order filed by the respondent on 10 February 2016 to enforce cost order.

2. Stay the cost order made by Justice Hall on 27 November 2015 pursuant to s 106(1) and s 107(c)(iii) of Supreme Court Act 1970 on the ground that there is an error of law on the part of the trial judge.

3.   Costs.

Submissions

17. Ms McGinn, who appeared as a self-represented litigant, submitted that she was seeking an order for a new trial on the issue of the competency of her appeal on the ground that the judgments of Leeming JA were fraudulently obtained by the respondent. She asserted that the respondent had defrauded the Court by submitting that the judgment under appeal is interlocutory and leave is required (WB 79W). Ms McGinn’s argument ran as follows: since the respondent had sought enforcement of the costs order made by Hall J on 27 November 2015, and “interlocutory costs are not payable until final judgment” (referring to UCPR r 42.7) (WB 79T), it must follow that the costs order was in respect of a final judgment, and accordingly the summary dismissal order was final.

18. Ms McGinn further submitted that she first became aware ofthe alleged “fraud” when she inspected the Supreme Court file on 10 June 2016 and discovered the respondent’s notice of motion for a garnishee order in respect of the costs order. She submitted that the Court had power to order a new trial of the competency question under UCPR r 51.53.

Decision

19. Although Ms McGinn emphasised in oral argument that she was not seeking to review the decisions of Leeming JA, par 1 of her notice of motion can be read in that manner and it is convenient to commence with that basis for setting aside the decisions of Leeming JA.

(a)   The appeal was correctly dismissed as incompetent

20. The decision of Leeming JA that the appeal was incompetent was in accordance with this Court’s decision in Macatangay that a summary dismissal order under UCPR r 13.4 is interlocutory notwithstanding that it brings the proceedings to an end. Ms McGinn did not submit, either before Leeming JA or on this application, that the decision in Macatangay was wrong or that this Court should reconsider that decision.

21. In view of the misconceptions in Ms McGinn’s other submissions, it is appropriate to set out the relevant part of the Court’s reasoning in Macatangay at [11]-[12] in relation to a summary dismissal order under UCPR r 13.4:

[11]   … The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179:

An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.

[12]   The principle has been established for over 100 years by decisions some of which are binding on this Court.

22. Notwithstanding that clear statement of principle, Ms McGinn maintained her contention that because “interlocutory costs are not payable until final judgment” “it must follow” that the costs order on 27 November 2015 was in respect of a final judgment. This argument should be rejected. It involves a misunderstanding of UCPR r 42.7 and a conflation of the summary dismissal order and the subsequent costs order made by Hall J.

23. UCPR r 42.7 provides:

(1) Unless the court orders otherwise, the costs of any application or other step in any proceedings, including:

(a) costs that are reserved, and

(b) costs in respect of any such application or step in respect of which no order as to costs is made,

are to be paid and otherwise dealt with in the same way as the general costs of the proceedings.

(2) Unless the court orders otherwise, costs referred to in subrule (1) do not become payable until the conclusion of the proceedings.

24. In the present case, the costs of the summary dismissal application on 2 October 2015 were reserved by Hall J, argument as to costs was heard on 8 October 2015 and Hall J made the costs order on 27 November 2015. That costs order was made at “the conclusion of the proceedings”, as referred to in UCPR 42.7(2), since the proceedings had already been summarily dismissed by Hall J on 2 October 2015. The making of the costs order at the conclusion of the proceedings did not in any way affect or alter the interlocutory character of the earlier summary dismissal order, nor did any enforcement step taken with respect to the costs order, such as applying for a garnishee order, have that consequence. The two orders were distinct.

25. Contrary to Ms McGinn’s submissions, UCPR r 42.7 says nothing about the character of earlier orders made on an application or other step in the proceedings. Nor does a garnishee order made in relation to a costs order relating to a summary dismissal application, controvert or contradict the well-established principle that an order summarily dismissing proceedings under UCPR r 13.1 is interlocutory.

26. Ms McGinn next contended that the respondent’s notice of motion for a garnishee order was an admission that the summary dismissal order was final. That contention should be rejected for the reasons already given. In addition, whether a judgment is characterised as final or interlocutory for the purposes of an appeal is a question of law, to which an admission, acknowledgement, or assertion by the party enforcing it is irrelevant to that question.

27. It is not necessary to consider whether an erroneous assertion by a party that a judgment is final or interlocutory may have adjectival relevance where an opposing party is led into procedural error, such as not seeking leave to appeal when leave is required. That is not this case. As indicated above, both the respondent and the Registrar of this Court had pointed out to Ms McGinn that the order of Hall J of 2 October 2015 was interlocutory and that leave to appeal was required.

28. Ms McGinn raised a further contention – that since the respondent had not filed an affidavit in opposition to her motion dated 17 June 2016, this constituted an admission by the respondent that the motion was unopposed and accordingly, this Court had no power to consider the respondent’s submissions opposing that motion.

29. This contention proceeded upon a misapprehension of the function of UCPR r 51.61(1)(b). That rule provides that a party opposing an order sought by a notice of motion must file an affidavit setting out the evidence that the party relies on in opposition to the order. The rule is directed to providing advance notice to the applicant on the motion of evidence sought to be relied upon by the respondent in opposition to the orders sought. The rule has no application where the respondent does not seek to rely upon any evidence.

30. Here, evidence was unnecessary to support the respondent’s submission that no basis has been shown by Ms McGinn to set aside the judgments and orders of Leeming JA. The facts relevant to the respondent’s opposition appear in Ms McGinn’s affidavit of 16 June 2016 and otherwise in the documents contained in the Court file with respect to the respondent’s notice of motion of 9 November 2015 and Ms McGinn’s notice of motion of 4 December 2015.

(b)   Application to set aside the judgments on the ground of fraud

31. Ms McGinn’s contention that the judgments of Leeming JA should be set aside on the ground of fraud may be taken to invoke UCPR r 36.15(1), the terms of which are set out at [11] above.

32. The assertion of fraud is a matter of some gravity. “Fraud should not be charged casually or without sufficient cause”: Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 693 (Mahoney JA). Here, there was no proper basis for making that allegation.

33. The underlying premise for the allegation that the respondent was fraudulent by making knowingly incorrect submissions to the Court is that the summary dismissal order was final. That premise is incorrect for the reasons given above. As the decisions of Leeming JA were plainly correct, the contention that they were obtained by fraud of the respondent is untenable.

34. It follows that there is no basis to set aside the judgments of Leeming JA under UCPR r 36.15(1).

35. In light of the above conclusion, it is unnecessary to address Ms McGinn’s submissions directed to ordering a new trial under UCPR r 51.53(1). It is sufficient to observe that r 51.53(1) is directed to the circumstances in which this Court may order a new trial following the hearing of an appeal. The rule has no present relevance to Ms McGinn’s challenge to the decisions of Leeming JA because those decisions did not involve the determination of any appeal.

36. Insofar as Ms McGinn sought to rely on further submissions, without leave, sent to the Court by email on 17 August 2015 after the conclusion of the hearing, those submissions can be ignored. One observation, however, should be made. The two additional authorities sought to be relied upon by Ms McGinn in relation to UCPR r 51.53(1) were irrelevant, as they were both decisions of the Court of Criminal Appeal, to which the rule has no application.

(c)   Application to stay costs order

37. Ms McGinn also sought a stay of the costs order made by Hall J on 27 November 2015, relying upon the Court’s powers under s 106(1) and s 107(c)(iii) of the Supreme Court Act on the ground that there is an error of law on the part of the trial judge. None of those provisions have any present relevance. It is only necessary to refer to s 105 of the Supreme Court Act which provides that ss 106 and 107 apply to an appeal to the Court of Appeal where the appellant seeks a new trial or the setting aside of a verdict, finding, assessment or judgment, relevantly, following a jury trial.

38. Here, the order of Hall J for summary dismissal was made by a judge alone and not after a trial with a jury.

39. While this Court has power under UCPR r 51.44, “[s]ubject to the filing of a relevant originating process, to stay the decision below or any proceedings under the decision”, that power is not available here. The appeal by Ms McGinn was dismissed on 30 November 2015. Ms McGinn has not subsequently filed any relevant originating process, namely a summons seeking leave to appeal, nor sought an extension of time to do so, which is now necessary having regard to the lapse of time since the order of Hall J made on 2 October 2015: UCPR r 51.10.

Conclusion and Orders

40. Ms McGinn’s application for a new trial (of the competency question) and to set aside the judgments of Leeming JA should be rejected. The orders made by Leeming JA dismissing the appeal as incompetent and later dismissing the application to set aside that order, were not affected by any relevant error. The orders made were plainly correct and were not obtained by fraud of the respondent, as asserted by Ms McGinn.

41. I propose the following orders:

1. Applicant’s notice of motion filed 17 June 2016 be dismissed;

2. Applicant to pay the respondent’s costs of the motion.

42. SIMPSON JA: I agree with Gleeson JA.

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Decision last updated: 25 August 2016