Miao v Body Corporate SP31235U
[2013] VSC 380
•30 July 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEAL LIST
S CI 2012 04767
| SHIRLEY MIAO | Plaintiff |
| v | |
| BODY CORPORATE SP31235U | Defendant |
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JUDGE: | DERHAM AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 January 2013 | |
DATE OF JUDGMENT: | 30 July 2013 | |
CASE MAY BE CITED AS: | Miao v Body Corporate SP31235U | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 380 | |
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PRACTICE AND PROCEDURE – application pursuant to rule 46.08 or the inherent jurisdiction to set aside orders made but not authenticated dismissing appeal from Magistrates’ Court – plaintiff self represented litigant - orders made when plaintiff failed to appear on adjourned date – plaintiff notified of wrong Court to attend – plaintiff attended Court premises on the day of the hearing but could not find the right court – orders made in her absence dismissing appeal for non-appearance and pursuant to s 63 of the Civil Procedure Act 2010 for lack of merit – orders set aside.
APPEALS –to Supreme Court from Magistrates’ Court - application for leave to appeal decision of Magistrates Court out of time – exceptional circumstances required - scope of inquiry limited to circumstances causing failure to lodge appeal in time – no exceptional circumstances shown - s 109 Magistrates’ Court Act 1989.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff in person | |
| For the Defendant | Mr J. Willee | Mills Oakley |
HIS HONOUR:
Introduction
By Notice of Appeal and Summons filed on 20 August 2012, the plaintiff (“Ms Miao”) applied pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) (“the Act”) for orders:
(a) That leave be granted to appeal out of time against the final orders made by Magistrate Grinberg in the Magistrates’ Court of Victoria at Sunshine on 18 June 2012; and
(b) that a stay of the execution of the orders below be granted, pending the determination of this appeal.
By Order made on 10 September 2012, Associate Justice Mukhtar ordered, inter alia, that until further order there be a stay of the order made by the Magistrates’ Court at Sunshine (constituted by Magistrate Grinberg) in case no. U00919045, and adjourned the summons to 24 October 2012.
On 24 October 2012, Ms Miao failed to attend the adjourned hearing of the Summons. Associate Justice Lansdowne made the following orders (although they were not authenticated):
(a) The appeal is dismissed both for non-appearance and on a summary basis pursuant to s 63 of the Civil Procedure Act for lack of merit;
(b) The plaintiff’s summons filed 20 August 2012 is dismissed on the same bases;
(c) The plaintiff pay the defendant’s costs of the proceeding on a solicitor/client basis; and
(d) The stay of enforcement of the order of the Magistrates’ Court at Sunshine made 18 June 2012 is discharged.
These orders were not authenticated, by direction of Associate Justice Lansdowne, because, as a result of Ms Miao being informed by email of the orders made on 24 October 2012, she informed the Court that she had attended the Court premises and was unable to find the Court in which her matter was to be heard. Associate Justice Lansdowne directed that the orders not be authenticated for 7 days to allow Ms Miao to make application to set aside the orders, which occurred.
Thus, in addition to the Notice of Appeal and Summons mentioned above, Ms Miao applied by Notice to the Court, with an Affidavit in Support, sworn by Ms Miao on 30 October 2012, both filed on 30 October 2012, to set aside the (unauthenticated) orders of Lansdowne AsJ made on 24 October 2012, on the grounds that she did in fact attend Court, but that on that day no-one appeared to be in Court.
I concluded during the course of the hearing on 31 January 2013 that I should set aside the orders made on 24 October 2012 dismissing the Appeal. I give my reasons more fully below.
The question then was whether leave should be given to Ms Miao to appeal the Magistrates’ Court decision out of time. I have determined for the reason given below that no such leave should be granted in this case because Ms Miao has not established exceptional circumstances as required by s 109 (5)(a) of the Magistrates Court Act 1989.
It is therefore unnecessary to consider the question of whether Ms Miao raised any question of law in her Notice of Appeal.
Background
The Parties
The defendant is a body corporate (“the body corporate”), being an Owners Corporation within the meaning of s 3 of the Owners Corporation Act 2006 and was incorporated by virtue of the registration of Body Corporate Strata Plan No 31235U (“the Plan”). The body corporate is and was responsible for the management of the land contained within the Plan, known as 144-148 Nicholson Street, Footscray.
Ms Miao is a self-represented litigant. She is the registered proprietor of Lot 2 of the Plan, known as Shop 2, 144-148 Nicholson Street, Footscray, from 29 May 2003 to date (“Shop 2”).
The Dispute
During the period between 30 May 2003 and 12 April 2006, and 1 July 2006 and 31 December 2011, Ms Miao failed to pay to the defendant fees and/or levies struck by the defendant. She claims, amongst other things, that the main reason, inferred from her many affidavits, was that she questioned the accuracy and veracity of the fees being charged, and thus refused to pay them without her verifying the defendant’s records. It is clear from the material filed by Ms Miao, without reference to any material filed on behalf of the body corporate, and from admissions made by Ms Miao in open Court, that she has refused to pay any body corporate fees since she became the owner of Shop 2 on about 30 May 2003, with the exception of $2000 paid in January 2004.[1]
[1]Affidavit of Shirley Miao sworn 17 August 2012 and Transcript 31 January 2013 at p. 90
After what appears to be several failed attempts by the parties to resolve the matter, on 7 April 2006 the defendant commenced proceedings against Ms Miao in the Magistrates’ Court at Sunshine, and, after significant delays (including the entry of judgment against Ms Miao in 2007 and the setting aside of that judgment in 2010) obtained final orders on 18 June 2012 (the subject of the plaintiff’s appeal if leave to appeal out of time is granted).
Application to set aside orders of 24 October 2012
Applicable Law
Under Rule 46.08 the Court may set aside or vary an order which affects a person where the person did not attend the hearing of the application. The jurisdiction to set aside an order made against a person who did not have a reasonable opportunity to appear and present his or her case is, in any event, inherent in every court unless displaced by statute.[2]
[2]Taylor v Taylor (1979) 143 CLR 1; Attorney‑General (Vic) v Lindsey [2005] VSC 53.
The Facts
After Associate Justice Mukhtar adjourned Ms Miao’s application to 24 October 2012, a copy of the order made by his Honour was sent to Ms Miao and to the body corporate’s solicitors identifying that the matter would be heard in Court 4 at 436 Lonsdale Street, Melbourne. Through circumstances that are not disclosed, that order was amended subsequently so that the hearing of the summons was adjourned to the same date but in Court 2 at 436 Lonsdale Street, Melbourne.
In her affidavit in support of the application to set aside the orders made in her absence on 24 October 2013, Ms Miao swore that she attended court, arriving at about 10.03am at the security entrance to the building and proceeded to Court 4. She saw a notice posted on the door of Court 4 stating that all of the hearings listed for that court on that day had been rescheduled to 2.15pm due to unforeseen circumstances. She checked Court 2 and the other courts on the ground floor at 436 Lonsdale Street to see if her matter was listed and could not find any hearing schedule posted in front of any of these court rooms. She proceeded to the Court Registry on level 2 and, after taking a ticket, asked the person at counter 6 what was going on and why were the matters listed in Court 4 rescheduled to 2.15pm that day. She asked the clerk at counter 6 to check her computer system to find her proceeding and was told that there was no such information in her computer system and that she should come back at 2.15pm that afternoon. She returned to the ground floor to check again Courts 2 and 4 and said in her affidavit that she did this at about 10.45am. She swore that there was no hearing taking place in Court 2 and that the doors to that courtroom were locked.
She returned to the Court at 2.15pm and attended Court 4 only to find that her matter was not listed. She went to Court 2 and noticed the list outside the court did include this proceeding and that it had been scheduled for 10.30am. She returned to the Registry and enquired of Mr Shane Draper, the then Self Represented Litigants Coordinator (Deputy Prothonotary) assigned to assist self-represented litigants, and was told to go home and await receipt of the orders made in her absence.
In hearing her application, counsel for the body corporate, Mr Justin Willee, sought leave to cross‑examine Ms Miao on her affidavit as to the circumstances of her attendance at court on 24 October 2012. In the course of that cross‑examination in answer to questions put by both Mr Willee and the Court, it emerged that Ms Miao may have in fact returned to check Courtrooms 2 and 4, after visiting the Registry, before 10.30, which would explain why the court doors were locked and there was no court list posted outside Courtroom 2 revealing her matter to be listed for that day.[3] Somewhat unfortunately, in the course of her cross‑examination Ms Miao suggested that there was a conspiracy by the Court management to have the matter dealt with in her absence.[4]
[3]Transcript 31 January 2013 at p 34-35.
[4]Transcript 31 January 2013 at p 30-31.
In the course of the cross‑examination Ms Miao was pressed to identify her place of living, it having been noted in the order made by Associate Justice Mukhtar on 10 September 2012 that her address for service, which was Shop 2, was not where she was living. She gave evidence that she was fearful of the representatives of the body corporate harassing her and that was the reason that she did not give her residence as her address for service. She gave evidence that she collected the mail every day from Shop 2. In the upshot, I asked Ms Miao to write down her place of residence and ordered that it would be placed on the Court file and only be opened upon an order of the Court.[5]
[5]Transcript 31 January 2013 at p 36-37.
After considering the evidence given by Ms Miao under cross‑examination I formed the conclusion that there could have been a mistake by the Registry staff member in telling Ms Miao to come back at 2.15pm on 24 October 2012, and even though there appeared to be some reconstruction involved in her affidavit of 30 October 2012, there was no serious challenge to the fact that she was told to come back at 2.15pm and that she did so. In these circumstances, I determined to set aside the order made by Associate Justice Lansdowne on 24 October 2012.
I note that the order made by Associate Justice Lansdowne dismissed the appeal. As I will explain, the first question that needs to be considered is whether or not leave to appeal should be granted to Ms Miao.
The Application for Leave to Appeal
The Act and The Rules
Section 109 of the Act provides, so far as relevant:
(1)A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(2)An appeal under subsection (1)—
(a)must be instituted not later than 30 days after the day on which the order complained of was made; and
(b)does not operate as a stay of any order made by the Court unless the Supreme Court so orders.
(3)Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.
(4)An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).
(5)The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court-
(a)is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
Part 3 of Order 58 of the Supreme Court (General Civil Procedure) Rules 2005 are the rules referred to in s 109(3). The following provisions of those Rules are relevant to this matter:
(a) an appeal is instituted by filing a notice of appeal in the Trial Division: Rule 58.07. This was done on 20 August 2012;
(b) Within seven days after filing the notice of appeal, the appellant must file an affidavit stating the acts, facts, matters and circumstances relating to the order under appeal, the grounds set out in the notice of appeal and if leave to appeal is needed, why leave to appeal should be given: Rule 58.09. This was done on 20 August 2012;
(c) Within seven days after filing notice of appeal, the appellant must apply on summons to an Associate Judge for directions and, if necessary, for leave to appeal: Rule 58.10(1). This was also done on 20 August 2012;
(d) If leave to appeal is required, the Associate Judge shall determine whether leave to appeal is given; and if leave to appeal is refused, the Associate Judge shall dismiss the appeal: Rule 58.10 (7). This is the first question for my decision;
(e) An appeal instituted more than 30 days after the day on which the order under appeal was made is to be taken to be an application for leave to appeal: Rule 58.11(1) (and see s 109(4)). This is the case here;
(f) An application for leave to appeal shall be heard and determined by the Associate Judge under Rule 58.10: Rule 58.11(2). This is the source of my power to determine the application;
(g) The Court may grant any stay necessary for the proper hearing and determination of the application or the appeal: Rule 58.12. The stay was granted by Associate Justice Mukhtar on 10 September 2012.
Exceptional Circumstances
The two prerequisites for the grant of leave to appeal out of time are:
(a) the Court being of the opinion that the failure to institute the appeal within the period of 30 days after the order was made was due to exceptional circumstances; and
(b) the Court being satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
If either of these prerequisites is not satisfied, leave may not be given.
The following principles and matters have been established[6] as relevant to the grant of leave under s 109(5) of the Act:
[6]See Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565 per Forrest J at [27]; Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24.
(a) The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted.[7]
[7]Gallo v Dawson (1990) 64 ALJR 458. See also Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553-554.
(b) The onus lies on the applicant to satisfy the test of exceptional circumstances.
(c) Although "exceptional" is defined as meaning "unusual, special, out of the ordinary course" in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to "rarely occur" and "perhaps be outside reasonable anticipation or expectation".[8]
[8]Owen v Stevens (unreported 3 May 1991 Hedigan J); R v Steggall [2005] VSCA 278 [12].
(d) The inquiry is confined to the circumstances relevant to the applicant's failure to appeal within time and whether they may be characterised as exceptional.[9]
[9]Hughes v Morgan [1998] VSC 147 [18].
(e) As part of that inquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time.
(f) The inquiry in determining whether exceptional circumstances exist as required by s 109(5) is not a consideration of all matters germane to the appeal.[10] In this regard, I note the observations of McDonald J in Schwerin v Equal Opportunity Board and Ors[11]:
That which must be first established is that the failure to institute the appeal within the period referred to in subs (2)(a) of s 109 of the Magistrates' Court Act 'was due to exceptional circumstances'. It is not sufficient that the plaintiff establishes there exists exceptional circumstances generally with respect to the subject matter of the appeal, or the appeal itself, but, rather, that which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances. (My emphasis)
[10]Schwerin v Equal Opportunity Board (1994) 2 VR 279 at 287.
[11][1994] 2 VR 279 at 287.
In Shire of Carnarvon v Klein Corporation Pty Ltd.[12] Forrest J referred to the decision of McDonald J in Schwerin v Equal Opportunity Board, and to other authorities concerning extension of time to appeal under other provisions. These other provisions included extending time for judicial review under rule 56.02. The other authorities, included Gallo v Dawson,[13] Griffiths v Maleka Holdings,[14] Lednar v The Magistrates' Court & Anor,[15] and Hughes v Morgan & Anor.[16] Forrest J, in dealing with an argument put to him that even in applying s 109(5) of the Act the merit of the appeal needed to be considered, said:
In Hughes' case the appellant appealed on a question of law pursuant to s 92 of the Magistrates' Court Act (which deals with criminal proceedings) as well as lodging a general Notice of Appeal to the County Court pursuant to the provisions of s 83 of the Act (as it stood at that time). Beach J accepted that the Magistrate had clearly made one error of law and arguably made not less than one other error of law. However he was, following McDonald J in Schwerin, not prepared to accept that this was a factor relevant to the exercise of his discretion to extend time. Although it was argued by Mr Sandbach that underpinning the decision of Beach J was the ability of the County Court to correct the errors of law that he had identified, his interpretation and application of the section is clear: the exceptional circumstances must relate solely to the explanation for the delay. [footnotes omitted, emphasis added]
[12][2008] VSC 24.
[13](1990) 64 ALJR 458.
[14]Unreported 19 August 1997 at p 12.
[15][2000] VSC 549 at paras 122-150.
[16][1998] VSC 147 at [18].
Thus, it is clear that the exceptional circumstances must relate solely to the explanation for the delay, and it is not necessary to consider the merit of any appeal in deciding whether leave to appeal out of time should be given.
It has been said,[17] rightly in my view, that the expression "exceptional circumstances" was intended to place a considerable bar in the way of an applicant before leave will be granted.[18]
[17]Per Forrest J in Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565 at [30];
[18]I leave aside any analysis of the distinction between the expressions ‘exceptional circumstances’ and ‘special circumstances’, as in this case in my opinion neither exceptional nor special circumstances have been established, as I refer below.
The words of s 109(5) and the authorities referred to above require that the exceptional circumstances identified are the cause of the failure to institute the appeal within time. This requires an examination of the circumstances between the time of the Magistrates' judgment and the expiry of the 30 day period. In carrying out this examination and determining whether exceptional circumstances have been demonstrated, a court may, properly, look at events prior to that period to determine whether the actions taken by the applicant during the period satisfy the test.[19]
[19]Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565 at [31].
In an application to extend the time for prosecuting an appeal, particularly where the test requires "exceptional circumstances" to be demonstrated, the proofs must be clear and cogent to enable the Court to be satisfied the onus has been discharged.[20]
[20]Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565 at [39].
The Magistrates’ Court Proceeding
In order to understand the application for leave to appeal it is necessary to have some understanding of the proceedings in the Magistrates’ court. The matters to which I refer are not all the events, or alleged events, detailed in Ms Miao’s affidavits. Nor do I refer to the many gratuitous comments, submissions and invective contained in Ms Miao’s affidavits.[21]
[21]In addition to the affidavit sworn by Ms Maio sworn on 17 August 2012 she swore further affidavits on 3 September 2012, 30 October 2012 and 7 November 2012.
By complaint dated 7 April 2006 (apparently filed on 24 April 2006) the body corporate claimed against Ms Miao an amount of $38,041.82 as moneys owing for fees or levies struck by the body corporate.[22]
[22]Exhibit SM-3 to the affidavit of Shirley Miao sworn 17 August 2012.
On 2 March 2007, his Honour Magistrate McMartin ordered that Ms Miao pay to the body corporate the sum claimed together with interest of $3,724.98 and costs of $887.10.[23]
[23]Exhibit SM-4 to the affidavit of Shirley Miao sworn 17 August 2012.
After considerable unexplained delay, on 2 December 2010, on an application for a rehearing by Ms Miao, the order of 2 March 2007 was set aside and Ms Miao was ordered to file and serve notices of defence within 21 days.[24]
[24]Exhibit SM-5 to the affidavit of Shirley Miao sworn 17 August 2012.
Then, after further delays (partly explained), by summons filed 28 April 2011, Ms Miao applied to the Magistrates’ Court to dismiss the proceeding brought by the body corporate.[25] That application, supported by an affidavit sworn on 28 April 2011,[26] was based on an alleged failure to comply with discovery obligations, including a failure to respond to a notice of default given pursuant to Rule 29.12.1 of the Magistrates’ Court (General Civil Procedure) Rules 2010. The burden of the complaint is summed up by an extract from paragraph 6 of Ms Miao’s affidavit, as follows:
The plaintiff made a Complaint in 2006 and filed junk and chaotic affidavit of documents to Magistrates’ Court in Sunshine in 2011. Although the defendant has given a long period of extra time and has made a number time of requests to make discovery, the plaintiff still doesn’t file and serve discovery documents until today. The plaintiff annoys the court and also is in contempt of court.
[25]Exhibit SM-6 to the affidavit of Shirley Miao sworn 17 August 2012.
[26]Exhibit SM-6 to the affidavit of Shirley Miao sworn 17 August 2012.
What happened in relation to this application is disclosed only in the affidavit of Ms Miao (paragraph 4) where she says that the body corporate did not appear at the hearing of the application and Magistrate Jones did not want to dismiss the proceeding.
Ms Miao applied to transfer the proceeding from the Sunshine Magistrates’ Court to the Melbourne Magistrates’ Court, because, she says, the Sunshine Court did not have “appropriate skill and experience to hear and determine body corporate fee dispute, is not just in judging this matter and does not have exclusive jurisdiction to hear this matter”.[27]
[27]Paragraph 5 of affidavit of Ms Miao sworn 17 August 2012.
On 21 July 2011, the Court dismissed the application to transfer the proceeding to the Melbourne Court and made orders relating to an application to transfer the proceeding to VCAT in relation to discovery, inspection and particulars. A hearing date for the matter was fixed for 1 September 2011 and a direction was given that:
In the event that the defendant encounters any difficulties in filing any document or in dealing with the Registry, she be entitled to mention the matter before a magistrate as soon as practicable.
This direction was given because Ms Miao had, apparently, been considered a nuisance by the Court staff.
It seems, although there are no court documents disclosing this that are in evidence, that Ms Miao applied to have the matter transferred to the Owner’s Corporation List at VCAT and also to dismiss the summons for failure to obey orders for the provision of further particulars and for discovery and inspection of documents, each of which application was rejected by the Court.[28]
[28]Affidavit of Ms Miao sworn 17 August 2012 at para 6.
Ms Miao then received a fresh Owner’s Corporation fee notice and tax invoice dated 25 July 2011 demanding payment of body corporate fees totalling $91,404.55.
Ms Miao applied to the Owner’s Corporation List at VCAT for some unspecified relief in relation to the claim in the fee notice of 25 July 2011. She says that there were a number of hearings held for the matter where the body corporate was absent, giving various excuses, but that on 8 September 2011 orders were made by Member P. Eggleston for inspection by Ms Miao of all the Owner’s Corporation records from January 2004 to the present and for leave for Ms Miao to join additional parties to the application. I note that there were two respondents to the application in the Owner’s Corporation List of VCAT, namely, Frank (Tony) Gerace (the agent of the body corporate) and the body corporate.
Following the making of this order, the body corporate sent what appears to be a revised fee notice and tax invoice dated 25 October 2011.[29] This fee notice demanded payment of $30,132.25 in respect of body corporate fees and interest from 1 July 2006.
[29]Exhibit SM-10 to the affidavit of Ms Miao sworn 17 August 2012.
Ms Miao then relates an event of 18 August 2011 where she went to the Sunshine Magistrates’ Court for the purpose of photocopying some documents from the file. This gave rise to the Registrar calling the Protective Services Unit to eject Ms Miao from the Court. She complained to the Police Minister, Mr Peter Ryan, regarding a threat she received that she would be handcuffed if she came back. She received a response from the Minister, which she exhibited to her affidavit.[30]
[30]Exhibit SM-11 to the affidavit of Ms Miao sworn 17 August 2012.
Then on 28 November 2011, his Honour Magistrate McKenna gave the body corporate leave to serve an amended statement of claim by 3 February 2012, to which Ms Miao was to file and serve an amended defence by 24 February 2012.[31] That date was not met by the body corporate.
[31]Exhibit SM-12 to the affidavit of Ms Miao sworn 17 August 2012.
The order made by McKenna M on 28 November 2011 adjourned the proceeding to 23 April 2012. On that day, the body corporate had not complied with his order to file and serve an amended statement of claim and, it would seem, made application then and there to do so. Ms Miao, in her affidavit, complains about that respondent attended on 23 April 2012 “with bare hand and said: claim amount is $53,763.89 plus costs of $1,292.30 without any written papers”.[32] She complains that Magistrate Grinberg did not read the proceeding file and abused his judicial power to allow the body corporate to make “any claim for any amount at any time as the respondent pleases”.[33] In any event, the body corporate ultimately filed an amended complaint on 27 April 2012.[34] The amended statement of claim annexed to the amended complaint claimed an amount of $53,763.89 for body corporate fees and charges from 30 May 2003 to 1 April 2012, plus some specific levies.
[32]Paragraph 9 of the affidavit of Ms Miao sworn 17 August 2012. I note that these events, being interlocutory, do not, and could not of themselves, give rise to an issue of law justiciable on an appeal under s 109 of the Magistrates’ Court Act.
[33]Paragraph 9 of the affidavit of Ms Miao sworn 17 August 2012.
[34]Exhibit SM-13 to the affidavit of Ms Miao sworn 17 August 2012.
By notice dated 24 April 2013, the Court listed the matter for hearing on 18 June 2012, noting that a time of one hour had been allocated. The note also advised that “if you believe that the hearing time required is greater than or less than this allocation, or if the matter is settled, please notify the Civil Court Coordinator in writing as soon as possible”.[35] There was no evidence that any such notification was made by Ms Miao.
[35]Exhibit SM-19 to the affidavit of Ms Miao sworn 3 September 2012.
Then what occurred is that Ms Miao needed, she swears, urgently to travel overseas for family reasons and on 18 May 2012, at 5.37pm, she sent by facsimile transmission to the Court a document with the Court heading and case number entitled “Application for Re-scheduling Hearing”. The fax, it appears, is also directed to the plaintiff and its solicitors although it is not clear whether it was received by them. In the body of this document the following appeared:
The defendant applies to reschedule the hearing on 18 June 2012 due to being in need of urgently traveling (sic) overseas for family reasons. A copy of itinerary is provided with this application.[36]
[36]Exhibit SM-14 to the affidavit of Ms Miao sworn 17 August 2012.
18 June 2012 was a Friday. Ms Miao tendered (without objection) the fax report dated 18 May 2012 showing that the fax was sent at 5.37pm on 18 May 2012 to the fax telephone number of the Sunshine Magistrates’ Court.[37] The application to reschedule as exhibited to Ms Miao’s affidavit did not include any itinerary. Ms Miao said–
[37]Exhibit 2 tendered on 31 January 2013.
(a) that she did not know how long she would stay overseas and that, therefore, she could not provide the returning date in the application. She said that she would notify the Court as soon as she came back;[38]
[38]Affidavit of Ms Miao sworn 3 September 2012 at para 15. It is not clear, however, whether that was what she stated to the Court or that was her intention.
(b) that she left for overseas on Saturday 19 June 2012;[39]
(c) when she returned to Australia in mid-July 2012, she found at Shop 2 a letter from the Magistrates’ Court at Sunshine responding to her application for rescheduling hearing which, the letter stated, had been received at the Sunshine Magistrates’ Court on 21 May 2012. Ms Miao tendered, without objection, the letter and its attachments.[40] The letter informed Ms Miao that if she wished to apply for an adjournment she should first seek the consent of the solicitor acting for the plaintiff and, if agreement could not be reached, make an application for an adjournment to the Court. The Civil Registrar who signed the letter enclosed the necessary forms and instruction for the making of such application, which included a summons and affidavit in support, together with an affidavit of service;
(d) upon her return to Australia she was unwilling to attend the Sunshine Magistrates’ Court to find out the outcome of the hearing on 18 June, so she attended the Melbourne Magistrates’ Court and on 23 July 2012 obtained a copy of the judgment against her that was made in her absence on 18 June 2013.[41]
[39]Transcript 31 January 2012 at p 81.
[40]Exhibit 1 tendered on 31 January 2013.
[41]Exhibit SM-15 to the affidavit of Ms Miao sworn 17 August 2012. See also transcript 31 January 2012 at pp 85-87.
Thus, Ms Miao did not attend at the hearing of the claim of the body corporate at the Sunshine Magistrates’ Court on 18 June 2012 and final judgment was entered against her on that day for $53,763.89, and costs of $1,292.30, with a stay of one month.
Have exceptional circumstances been established?
It is quite clear that Ms Miao took a risk that her unanswered application to reschedule the hearing of 18 June 2012 would be unsuccessful. She did not wait to see what response was received from either the Court or the plaintiff’s solicitors. She left Australia for overseas (China) the day after she sent the request, or application, to re-schedule the hearing. There is no evidence that she made any enquiries whilst she was away as to the progress of the matter or as to whether her application had been considered, had been successful, or had failed. In short, she did nothing until she returned to Australia in about mid-July 2012.
It was on her return from overseas at that time that she found the mail at her address for service, being Shop 2, from the Sunshine Magistrates’ Court, advising of the necessary steps to be taken in order for her to apply for an adjournment. She then found out (on 23 July 2012) the result of the hearing on 18 June 2012. It was not until 17 August 2012 that she swore her affidavit and prepared her notice of appeal, which she filed on 20 August 2012.
She was quite candid in discussion with the Court at the hearing of her application that she knew she had taken a risk.[42] But, as she said, “Really I have no choice to engage one solicitor wasting two, three hours”.[43] At best, the exceptional circumstances identified involved the proposition that in Chinese culture seeing one’s ancestors is exceptionally important.
[42]Transcript 31 January 2013 at p 80.
[43]Transcript 31 January 2013 at p 80.
Given that the plaintiff has a vested right to retain the judgment unless the application is granted, that in establishing exceptional circumstances there must be something out of the ordinary course of events which explains the delay in the launching of the appeal, the reasons that Ms Miao’s notice of appeal was late do not satisfy the test of exceptional circumstances. Ms Miao said that she had not received a copy of the judgment of 18 June 2012 and had to find out what the result was herself by making enquiries at the Melbourne Magistrates’ Court. Even if that judgment had been sent to her at her address for service it would have suffered the same fate as the letter sent by the Sunshine Magistrates’ Court in response to her request to re-schedule the hearing. That is to say, she would not have seen it until she returned to Australia in mid‑July 2012. That would have itself been at best a day or so before the expiry of the 30 day period for the appeal. But Ms Miao was quite vague about the time she returned. There was no evidence given by her as to precisely when she arrived back in Australia. When she left she made it clear in her affidavits that she did not know when she was going to return.
In these circumstances, her failure to attend was entirely intentional and her inability to lodge an appeal against the judgment was also a consequence of her own voluntary action unaffected by any exceptional circumstance other than her own choice. That is, her failure to institute the appeal within time was primarily due to her absence overseas from 19 May to mid July 2012 and that she went away at this critical time is a consequence of a conscious decision made by her to give priority to whatever needed to be attended to overseas in preference to attending to the proceeding. So she took a risk on the Court not adjourning the hearing on 18 June 2012. To characterise these circumstances as exceptional and give her leave to appeal would be tantamount to allowing her to take advantage of her own wrong.
For these reasons, in my opinion, the failure to institute the appeal within the period of 30 days after the day on which the order complained of was made was not due to exceptional circumstances, indeed could not even be described as being due to special circumstances.
Accordingly, I refuse the plaintiff’s application for leave to appeal the order of the Magistrates’ Court at Sunshine made on 18 June 2012.
It is therefore unnecessary to consider the grounds of appeal in so far as they were identified in the notice of appeal and in the affidavits in support of the application.
I will make the following orders:
(a) The orders of the Court made on 24 October 2012 are set aside;
(b) The stay of execution ordered by Associate Justice Mukhtar on 10 September 2012 is discharged;
(c) The application by the plaintiff for leave to appeal pursuant to s 109 of the Magistrates’ Court Act 1989 is refused;
(d) The residential address of the plaintiff provided to the Court in confidence on 31 January 2013 and placed in a sealed envelope on the file shall remained sealed and only be revealed upon an order of the Court;
I shall hear the parties as to the Costs of the proceeding and any further orders that may be appropriate.
SCHEDULE OF PARTIES
| SHIRLEY MIAO | Plaintiff |
| - and - | |
| BODY CORPORATE SP31235U | Defendant |
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