Michael Wilson & Partners Ltd v Nicholls (No 11)
[2023] ACTCA 16
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Michael Wilson & Partners Ltd v Nicholls (No 11) |
Citation: | [2023] ACTCA 16 |
Hearing Date: | 15 March 2023, 17 March 2023 (written submissions) and 24 March 2023 (written submissions) |
DecisionDate: | 27 April 2023 |
Before: | Baker J |
Decision: | Applications for leave to appeal dismissed for want of jurisdiction. |
Catchwords: | APPEAL – APPEAL FROM COURT OF APPEAL – jurisdictional issue – application to Court of Appeal for leave to appeal decision of single judge sitting as Court of Appeal granting security for costs – s 37E of the Supreme Court Act 1933 (ACT) – no jurisdiction to appeal decision of a single justice comprising the Court of Appeal |
Legislation Cited: | Court Procedures Rules 2006 (ACT) Supreme Court Act 1933 (ACT) Supreme Court Act 1970 (NSW) Supreme Court Act 1979 (NT) Supreme Court of Queensland Act 1991 (Qld) Supreme Court Act 1986 (Vic) Supreme Court Act 1935 (WA) Supreme Court Civil Procedure Act 1936 (Tas) |
Cases Cited: | Endresz v Commonwealth of Australia [2020] ACTCA 48 Davis Samuel Pty Ltd v Commonwealth of Australia (No 2) [2016] ACTCA 26 Hussain v Ngep (No 2) [2015] ACTCA 42 Michael Wilson & Partners Ltd v Nicholls (No 4) [2022] ACTCA 23 Michael Wilson & Partners Ltd v Nicholls (No 5) [2022] ACTCA 39 Michael Wilson & Partners Ltd v Nicholls (No 6) [2022] ACTCA 41 Michael Wilson & Partners Ltd v Nicholls (No 7) [2022] ACTCA 43 Michael Wilson & Partners Ltd v Nicholls (No 8) [2022] ACTCA 64 Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70 Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13 Michael Wilson & Partners Ltd v Nicholls & Ors [2021] ACTSC 128 |
Parties: | Michael Wilson & Partners Ltd (Appellant) Robert Colin Nicholls (First Respondent) David Ross Slater (Second Respondent) Temujin Services Limited (Third Respondent) Temujin International Limited (Fourth Respondent) Temujin International FZE (Fifth Respondent) John Forster Emmott (Sixth Respondent) Effective Funds Management Pty Ltd (Seventh Respondent) |
Representation: | Counsel M Wilson (Appellant) J Baird (Sixth Respondent) B Glare (Seventh Respondent) |
| Solicitors M Wilson & Partners (Appellant) Duggan Legal (Sixth Respondent) Rothwell Lawyers (Seventh Respondent) | |
File Number: | ACTCA 9 of 2023 |
Decision under appeal: | Court/Tribunal: ACTCA Before: Loukas-Karlsson J Date of Decision: 3 May 2022 Case Title: Michael Wilson & Partners Ltd v Nicholls (No 4) Citation: [2022] ACTCA 23 Court/Tribunal: ACTCA Before: Loukas-Karlsson J Date of Decision: 21 July 2022 Case Title: Michael Wilson & Partners Ltd v Nicholls (No 5) Citation: [2022] ACTCA 39 Court/Tribunal: ACTCA Before: Loukas-Karlsson J Date of Decision: 21 July 2022 Case Title: Michael Wilson & Partners Ltd v Nicholls (No 6) Citation: [2022] ACTCA 41\ Court/Tribunal: ACTCA Before: Loukas-Karlsson J Date of Decision: 23 August 2022 Case Title: Michael Wilson & Partners Ltd v Nicholls (No 7) Citation: [2022] ACTCA 43 Court/Tribunal: ACTCA Before: Loukas-Karlsson J Date of Decision: 18 November 2022 Case Title: Michael Wilson & Partners Ltd v Nicholls (No 8) Citation: [2022] ACTCA 64 Court/Tribunal: ACTCA Before: Loukas-Karlsson J Date of Decision: 9 December 2022 Case Title: Michael Wilson & Partners Ltd v Nicholls (No 9) Citation: [2022] ACTCA 70 Court/Tribunal: ACTCA Before: Loukas-Karlsson J Date of Decision: 24 February 2023 Case Title: Michael Wilson & Partners Ltd v Nicholls (No 10) Citation: [2023] ACTCA 13 |
Baker J:
Introduction
By application filed on 6 March 2023, the applicant seeks to appeal seven interlocutory judgments of Loukas-Karlsson J delivered between 11 May 2022 and 24 February 2023, namely Michael Wilson & Partners Ltd v Nicholls (No 4) [2022] ACTCA 23 (“Wilson (No 4)”); Michael Wilson & Partners Ltd v Nicholls (No 5) [2022] ACTCA 39 (“Wilson (No 5)”); Michael Wilson & Partners Ltd v Nicholls (No 6) [2022] ACTCA 41 (“Wilson (No 6)”); Michael Wilson & Partners Ltd v Nicholls (No 7) [2022] ACTCA 43 (Wilson (No 7)”); Michael Wilson & Partners Ltd v Nicholls (No 8) [2022] ACTCA 64 (“Wilson (No 8)”); Michael Wilson & Partners Ltd v Nicholls (No 9) [2022] ACTCA 70 (“Wilson (No 9)”); and Michael Wilson & Partners Ltd v Nicholls (No 10) [2023] ACTCA 13 (“Wilson (No 10)”).
This application came before me on 15 March 2023, whilst sitting as the Court of Appeal constituted as a single judge pursuant to s 37J of the Supreme Court Act 1933 (ACT).
Each of the decisions which the applicant seeks leave to appeal against were made by Loukas-Karlsson J sitting as single judge comprising the Court of Appeal: Wilson (No 4) at [1], Wilson (No 5) at [1], Wilson (No 6) at [7], Wilson (No 7), Wilson (No 8) at [13], Wilson (No 9) at [1], Wilson (No 10) at [1]. For the reasons outlined below, this Court does not have jurisdiction to hear an appeal against a decision of a single justice comprising the Court of Appeal. Accordingly, the application for leave to appeal is dismissed.
Procedural history
The procedural background to this matter is complex and extensive. It is unnecessary to set out the background in full in this judgment.
The applicant has sought leave to appeal from a decision of McWilliam AsJ handed down on 30 June 2021: Michael Wilson & Partners Ltd v Nicholls & Ors [2021] ACTSC 128. The decisions sought to be appealed each relate to an application for security for costs that was bought by the sixth respondent in relation to this appeal.
The application for security for costs was ultimately listed before Loukas-Karlsson J, sitting as a single justice of the Court of Appeal. In Wilson (No 6), Loukas-Karlsson J granted the sixth respondent’s application for security for costs. The other judgments sought to be appealed against relate to procedural applications concerning the grant of security for costs, whether notices to produce filed by the applicant should be set aside (Wilson (No 4) and Wilson (No 5)), matters relating to the costs of the security for costs decision (Wilson (No 7), Wilson (No 8) and Wilson (No 9), and an application for the security for costs decision to be set aside (Wilson (No 10)). Each of these decisions were determined adversely to the applicant.
On 6 March 2023, the applicant (who purports to act in his own right and “also as the assignee of all of the rights, claims and benefits of and qua [the first, second, third and fourth respondents”) filed an application seeking leave to appeal each of those judgments. The applicant also filed an affidavit which he had affirmed on 5 March 2023 in support of that application. In that affidavit, the applicant sought leave to appeal on a number of grounds, including that a number of judgments relating to himself and the respondents have been published overseas, and that these rulings affect the validity of Loukas-Karlsson J’s decisions.
On 15 March 2023, the applications for leave to appeal were listed before me, whilst sitting as the Court of Appeal constituted as a single judge pursuant to s 37J of the Supreme Court Act. The sixth respondent submitted that the Court lacked jurisdiction to hear the applications for leave to appeal. The sixth respondent had not raised this issue prior to the hearing of the applications for leave to appeal, and had not made an application for an order striking out the applications for leave to appeal as incompetent (r 5472 of the Court Procedures Rules 2006 (ACT)). As the applicant had not had notice of the jurisdictional issue, I made orders for written submissions to be filed by each party on this question.
The sixth respondent provided written submissions relating to this issue on 17 March 2023. The applicant was granted, at his request, an extension of time to 22 March 2023 to file any submissions on the question of jurisdiction.
On 22 March 2023 the applicant served two unfiled documents on the sixth respondent, namely, a Notice of Discontinuance and a further Application in proceeding to set aside or vary Loukas-Karlsson J’s judgments. The Notice of Discontinuance states that the applicant, acting in his own right, and qua, in the name of and or on behalf of [the first to fourth respondents]”:
… withdraws and discontinues its Form 5.9 seeking leave to appeal from the interlocutory judgments of Loukas-Karlsson J referred to above, by which [he] seeks to set aside and vary same.
On 23 March 2023, the applicant notified chambers that a Notice of Discontinuance and Application had been lodged with the registry. In this same correspondence the applicant provided a copy of a draft table in relation to ‘Judgment Debts owed by the judgment Debtor to MWP’.
On 23 March 2023, the sixth respondent provided chambers with a copy of supplementary submissions in reply. In those submissions, the sixth respondent indicated that it did not consent to the filing of the Notice of Discontinuance, save on terms that his costs be paid on an indemnity basis.
On 24 March 2023 the applicant contacted chambers requesting a “reasonable period of time” to file submissions in reply. In this email, the applicant also attached an updated version of the table sent on 23 March 2023. On 28 March 2023, my associate advised the applicant that leave was not granted for him to file any further written submissions.
On 19 April 2023, the Court Registry accepted the filing of the applicant’s Notice of Discontinuance in respect of each of the applicant’s applications for leave to appeal against the decisions of Loukas-Karlsson J.
Determination
The Notice of Discontinuance
The Notice of Discontinuance incorrectly uses Form 2.37 rather than Form 5.15, as prescribed by r 5471(3) of the Court Procedures Rules. However, for the purpose of the present judgment, nothing turns on the use of the incorrect form by the applicant.
Rule 5471 of the Court Procedures Rules provides that:
(1) An appellant may discontinue the appeal or part of the appeal—
(a) without the Court of Appeal’s leave, at any time before the hearing of the appeal; or
(b) only with the Court of Appeal’s leave, at the hearing, or after the hearing and before judgment.
There is a question as to whether leave is required for the applicant to discontinue the appeals under r 5471 of the Court Procedures Rules.
As outlined above, the applications for leave to appeal were listed before me, sitting as the Court of Appeal constituted by a single justice, on 15 March 2023. It is at least arguable that this hearing was “the hearing of the appeal”, and that leave is required before the proceedings can be discontinued. For this reason, it is appropriate to consider the jurisdictional issue that was the subject of oral submissions by the applicant and oral and written submissions by the sixth respondent.
Jurisdiction
Justice Loukas-Karlsson J was sitting as the Court of Appeal constituted by a single judge pursuant to s 37J of the Supreme Court Act in each of the decisions sought to be appealed against.
An appeal is a creature of statute. For this reason, before the applicant could seek leave to appeal against all or any of the decisions of Loukas-Karlsson J, he was required to identify a statutory provision that conferred a right of appeal (or a right to seek leave to appeal) against a decision of the Court of Appeal constituted by a single judge.
The only provision that confers a right of appeal against decisions of the Supreme Court is s 37E of the Supreme Court Act, which provides as follows:
37E Appellate jurisdiction
(1) When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal.
(2) The following matters may be brought before, and heard by, the Court of Appeal:
(a) appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);
(b) appeals under section 37S (Reference appeal in relation to proceeding);
(c) cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal;
(d) applications under part 8AA (Acquittals).
(3) However, an appeal may not be brought against an order made by the court sitting as the Court of Disputed Elections under the Electoral Act 1992, section 252.
(4) Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge, or the associate judge, only with leave of the Court of Appeal.
(5) In this section:
registrar includes a deputy registrar.
The right to appeal to the Court of Appeal conferred by s 37E of the Supreme Court Act does not extend to decisions of the Court of Appeal. So much is clear from s 37E(2)(a), which excludes “orders… of the Court of Appeal itself” from the conferral of the right to appeal against orders “of the Court”. Importantly, the statutory carve out in s 37E(2) does not distinguish between orders of the Court of Appeal when made by a court constituted of three or more judges and orders of the Court of Appeal when constituted by a single judge.
Section 37E(4) does not alter this position. Section 37E(4) requires the leave of the Court of Appeal for the bringing of an interlocutory appeal. Read in context, it is clear that the reference to the orders of a “single judge” in s 37E(4) is a reference to a single judge exercising the jurisdiction conferred under s 8 of the Supreme Court Act and not the orders of a single judge who ‘constitutes’ the Court of Appeal under s 37J of the Supreme Court Act.
This textual construction of s 37E is also supported by authority. In Hussain v Ngep (No 2) [2015] ACTCA 42 at [8] - [10], Robinson AJ held:
Under s 37J(1) of the Supreme Court Act 1933, the Court of Appeal may be constituted by a single judge. That single judge has power to hear and decide a number of ‘incidental matters’ in relation to an appeal.
One of the matters which can be heard by a single judge is ‘any other question of practice and procedure in the Court of Appeal’. The case law has determined that this includes jurisdiction with regards to orders for security for costs. The practice book sets out Hughes v Janrule Pty Ltd(2011) 177 ACTR 1 and Davey v Herbst (No 2)[2012] ACTCA 19 as authority for this proposition. I followed that line of authority myself sitting as a single judge of the Court of Appeal in Wagdy Hanna and Associates Pty Ltd v Gavagna (2014) ACTCA 36.
There does not appear to be any mechanism in the Supreme Court Act 1933 or under the Court Procedure Rules to appeal against a decision made by a single judge, constituting the Court of Appeal, hearing and deciding the matters set out in s 37J(1). A decision of the Court of Appeal may, of course, be appealed by leave to the High Court.
See also Davis Samuel Pty Ltd v Commonwealth of Australia (No 2) [2016] ACTCA 26 at [6(b)] and [31] (Elkaim J) and Endresz v Commonwealth of Australia [2020] ACTCA 48 at [47] (Murrell CJ).
There is no other provision which confers a right of appeal (or a right to seek leave to appeal) from a judgment of a single judge constituting the Court of Appeal under s 37J of the Supreme Court Act. Nor is there any provision which enables the Court of Appeal to discharge or vacate such a judgment: cf s 52(5) of the Supreme Court Act 1979 (NT), s 46 of the Supreme Court Act 1970 (NSW), s 44(4) of the Supreme Court of Queensland Act 1991 (Qld), ss 11(4B) of the Supreme Court Act 1986 (Vic), s 61(3) of the Supreme Court Act 1935 (WA) and s 15(6) of the Supreme Court Civil Procedure Act 1936 (Tas). Accordingly, the only avenue of appeal from a decision of the Court of Appeal constituted by a single judge is by way of an application for special leave to the High Court: see Davis (No 2) at [6(b)] and Hussain v Ngep (No 2) at [10] (cited above).
In oral submissions, the applicant submitted that r 5311 of the Court Procedures Rules conferred jurisdiction on the Court of Appeal to hear an appeal against the decisions of Loukas-Karlsson J. Rule 5311 does not purport to attempt to override the statutory prohibition in s 37E(2)(a) of the Supreme Court Act. Rule 5311 is a procedural provision, which requires that an application for leave to appeal must comply with Division 5.4.2 of the Court Procedures Rules. It does not provide a source of jurisdiction to appeal a decision of the Court of Appeal constituted by a single judge.
The applicant has not identified any provision which confers jurisdiction on the Court of Appeal to hear appeals against a decision of the Court of Appeal where the Court of Appeal is constituted by a single justice. Indeed, it may be inferred from the filing of his applications to discontinue the applications for leave to appeal that the applicant accepts that the Court lacks jurisdiction to hear his applications. Accordingly, the applications for leave to appeal against the decisions of Loukas-Karlsson J in Wilson (No 4), Wilson (No 5), Wilson (No 6), Wilson (No 7), Wilson (No 8), Wilson (No 9) and Wilson (No 10) must be dismissed for want of jurisdiction.
Conclusion
The Court lacks jurisdiction to grant an application for leave to appeal against the decisions of Loukas-Karlsson J, who was, in each decision, sitting as the Court of Appeal constituted by a single judge. In these circumstances, it is unnecessary to determine whether the applicant requires the Court’s leave to discontinue the applications for leave to appeal. Each of the applications for leave to appeal should be dismissed for want of jurisdiction.
I note that the sixth respondent did not apply for an order striking the appeal out as incompetent prior to the hearing of the applications for leave to appeal (see r 5473 of the Court Procedures Rules) and that the applicant did seek to discontinue the proceedings after the jurisdictional issue was raised. In these circumstances, I propose to order that each party pay their own costs of these applications. Any application for a different costs order must be made to my chambers within 7 days of the date of this judgment.
ORDERS
The order of the Court is that the applications for leave to appeal are dismissed for want of jurisdiction.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Ariella Bucci Date: 27 April 2023 |
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