Nida v Bka Practice Co Pty Ltd
[2020] VSC 158
•3 April 2020
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted |
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 02232
| ROONA FAZAL NIDA | Plaintiff |
| - and - | |
| BKA PRACTICE CO PTY LTD (trading as Belleli King & Associates) | First Defendant |
| - and - | |
| THE MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Mukhtar AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19, 20 September 2019 |
DATE OF JUDGMENT: | 3 April 2020 |
CASE MAY BE CITED AS: | Nida v BKA Practice Co Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2020] VSC 158 |
JUDICIAL REVIEW — Civil proceeding in Magistrates’ Court against barrister for personal debt — Dubious application for adjournment of trial — Magistrate’s disclosure of unfavourable view of barrister based on past experience — Adjournment with costs order against barrister and self-executing consequences for non-payment of costs — Non-compliance with costs order — 60-day time limit to commence judicial review of costs order in Supreme Court — Inordinate delay and misguided applications by barrister in Magistrates’ Court before commencing application for judicial review — Requirement to show ‘special circumstances’ to obtain extension of time — Strength of evidence explaining delay — Weight to be given to prospects of success of quashing Magistrate’s order for jurisdictional error — Balance of justice — Extension of time refused — Supreme Court (General Civil Procedure) Rules 2015 r 56.02(3)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | R M McGarvie QC with D K Carlile | NOH Legal Pty Ltd |
| For the Defendant | J Searle | Belleli King & Associates |
HIS HONOUR:
The plaintiff, Roona Fazal Nida (also known as Roona Fazal), is a barrister practising at the Victorian Bar. According to her Victorian Bar profile, she was admitted to practice on 15 November 2005, signed the Roll of Counsel on 9 November 2006 and is a Nationally Accredited Mediator. Some publicity materials on the internet, as were exhibited by the first defendant, has her holding herself out as ‘Founder’ and ‘Senior Partner, CEO’ of United Chambers Lawyers and Barristers in Foster Street, Dandenong and who ‘has also won 90% of law cases’.
Ms Nida seeks judicial review and a quashing of four interlocutory orders made against her over four separate occasions in civil proceeding brought against her in the Magistrates’ Court by a law firm (‘the Firm’) in Dandenong, namely Belleli King & Associates. The Complaint in the Magistrates’ Court against her was filed in September 2016. It was a claim in debt for $15,265.41 referable to seven unpaid invoices rendered by the Firm to Ms Nida as client for work done between December 2014 and June 2015. Each invoice was for professional legal services provided at her request to enable the purchase of a franchised ‘Sports Co’ retail store in Mornington to be operated by her son. The tasks for which the Firm claimed it was retained included: negotiating with the vendor the sale of the business; negotiating a new franchise agreement with the franchisor; and obtaining an assignment of the retail lease. So, this was a non-litigious commercial matter. The principal of the Firm is Mr Jerry Belleli. The practitioner having much knowledge about the conduct of the file was an employee solicitor Mr Hugh Clarkson.
Under r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015, a proceeding seeking judicial review must be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose. Under r 56.02(3) the Court cannot extend the 60-day time limit ‘except in special circumstances’. As time limits go in the Law, 60 days would be regarded as plentiful. The stringency of ‘special circumstances’ to gain an extension is based on the public interest in good public administration and not allowing suspense or surprise by a belated challenge to the legality of a decision by judicial review. That aligns with the ultimate discretion of a court having the power to grant the prerogative writs to withhold relief on the grounds of delay, even if grounds for a review are made out.
The plaintiff’s originating motion for judicial review by this Court was filed on 21 May 2019. The first order was made by the Magistrate on 9 May 2018. That was 377 days before the motion was filed. The Magistrate ordered Ms Nida as defendant to pay the Firm’s costs of an adjournment of the trial (as sought by her) by a certain date in default of which her defence would be struck out by self-execution of the order. Costs were fixed at $1,476. She did not pay. The costs are still unpaid. The second order was made on 15 June 2018. That was 340 days before the motion was filed. The third order was made on 4 September 2018. That was 259 days before the motion was filed. The fourth order was made on 30 January 2019. That was 111 days before the motion was filed. I shall expose the details of those orders later.
The upshot is that the plaintiff Ms Nida has a default judgment against her for $15,265 with interest of $9,274 and costs of $6,489 and a creditor’s petition for her bankruptcy on that judgment filed by the Firm in the Federal Circuit Court. The hearing of the petition has been adjourned pending on the outcome of this application.
This application for an extension of time was opposed with truculence. The hearing went for two days. It is apparent the relationship between the plaintiff and the Firm has become affected by a mutual antipathy. Counsel for the Firm contends there are no special circumstances to justify an extension of time and her explanation for the delay ought to be rejected. He invited the Court to view the plaintiff as someone who ‘cannot be regarded as a witness of truth’. The Firm filed a corpulent body of materials (558 pages of exhibits) in an effort to demonstrate that her explanation referable to her personal circumstances for non-compliance with the time limit ‘is manifestly untrue and she cannot be believed’. The Firm also says: ‘She has acted with a lack of respect for the Court and Court processes and displayed blatant dishonesty and an intention to frustrate and delay the Court process from the outset’. That is a reference to her conduct in the procedural beginnings of this application when, it is said, she misrepresented the contents of a transcript of the hearing at which the first order was made. I was asked by the Firm’s counsel to make these serious and damaging findings even though counsel did not seek my leave to cross-examine Ms Nida on her two affidavits.
As against that, the plaintiff’s application for an extension of time commenced with contending that the delay was (in my words) not as bad it as it appears. In circumstances I will expose later, after the first order was made and default judgment was entered Ms Nida chose knowingly not to pursue judicial review in the Supreme Court, but attempted instead to procedurally undo the default judgment by two protracted applications within the Magistrates’ Court. Those applications failed. They were legally incompetent. The second of them was refused with indemnity costs on 30 January 2019. On the present application, it is said that the delay should be seen by this Court as not commencing on the date of the first order (9 May 2018) but between January 2019 and 21 May 2019 (about four months) when the motion was filed. That delay, it was said, was not serious.
Secondly, counsel for Ms Nida submitted she definitely had an arguable case to quash, for jurisdictional error, the costs order and the ancillary self-executing order made within the first order of 9 May 2018. The case to be argued, if an extension be granted, was twofold. First, the Magistrate’s order of 9 May 2018 was impeachable on the hearing rule which requires impartiality in the conduct of adversarial proceedings. Breach of that rule is a denial of procedural fairness. That is a jurisdictional error. If error is made out for the first order, the three later orders would fall collaterally as they depended upon the validity of first order.
Thirdly, and alternatively, it was to be argued that the costs order and the ancillary self-executing order were seriously illogical, irrational or unreasonable and therefore constituted jurisdictional error. That means the order lacks an intelligible justification. Although it does not have to be shown that the decision was bizarre, this is regarded as a difficult ground to establish.[1]
[1]See Aronson, Groves and Weeks, Judicial Review of Administrative Action etc. (6th ed) [5.200].
On those grounds, the thesis underlying Ms Nida’s application for an extension is that, in the interests of justice, the delay in bringing this proceeding ought be outweighed by the prejudice of allowing an order to stand which is arguably bad for jurisdictional error and which resulted in a default judgment being entered against her without any adjudication of the merits of the case.
The plaintiff does go a little further ad hominem. She says the Firm’s conduct in its energetic pursuit of her bankruptcy to enforce the default judgment for a modest sum of money ($15,265) ‘indicates that its motivation is not simply to recover its claim but moreover to exact punitive retribution on the plaintiff. Its complaints about delay must be considered in light of its own conduct.’
Ms Nida has to show ‘special circumstances’ for her delay. As I explored in Bashour,[2] that phrase in r 56.02 is seen as deliberately flexible to allow for cases which might not easily be anticipated by more prescriptive words.[3] The discretion to give this procedural indulgence will usually depend upon the duration of the default, an explanation for the default, and any prejudice to the respondent beyond that inherent in the continued pursuit of the matter.[4] On the more general topic of time limits in legal procedure, it has been said that the exercise of the discretion ought to be made with a recognition that insistence on a strict adherence to a time limits may have to give way to accepting ‘the fallible world in which legal disputes arise and in which they must be resolved’.[5] But the rule here requires categorically the existence of ‘special circumstances’. That connotes a strictness.
[2]Bashour v VCAT and ANZ Banking Group Ltd [2016] VSC 527.
[3]See Mann v Medical Practitioners Board of Vic [2004] VSCA 148, [57].
[4]See Lazarevic v Victoria Police [2014] VSC 497.
[5]See the statement of principles by Kirby J in Jackamarra v Krakouer (1997) 195 CLR 516, 539–543.
There is a view based on the very words of r 56.02 that the circumstances which must be ‘special’ must relate to the plaintiff’s failure to commence a proceeding in time, not the decision to be reviewed. In Denysenko v Dessau,[6] Justice (Barry) Beach said:
If one was to hold that an erroneous decision by a magistrate constituted a special circumstance, then it would follow that in any such case an aggrieved party would be able to ignore the 60 day requirement safe in the knowledge that he could successfully apply for an extension of time when minded to do so. In my opinion that could not have been the intention of the framers of the rule. “Special” when used in this connection must mean something unusual, uncommon, exceptional or extraordinary. There is nothing unusual, uncommon, exception or extraordinary in a judicial officer, whether he or she be magistrate or judge, making an error of fact or law in a particular case. Indeed, one’s experience is to the contrary. The circumstances which must be special must relate to the plaintiff’s failure to commence a proceeding in time, not the decision sought to be reviewed.
[6]Denysenko v Dessau [1996] 2 VR 221, 224.
Later, in Mann,[7] the Victorian Court of Appeal held that the showing of an error in the decision sought to be reviewed does not automatically result in showing special circumstances, otherwise there would be no point to the time limit. But, the Court said, generally speaking it would be thought undesirable to let stand uncorrected a judgment or order shown to be impeachable (particularly for jurisdictional error); or, conversely, it would generally not be unjust to refuse to extend time when it can be seen that the review application is weak or bound to fail. It all depends on the circumstances. There is a judgment to be made.
[7]Mann [57].
In this peculiar case, an assessment of the legality of the Magistrate’s orders sought to be reviewed played a dominant part in the plaintiff’s application. The approach to be taken in these extension applications when assessing the merits of a case for judicial review was squarely addressed by the Court of Appeal in Glass v The Chief Examiner.[8] That Court affirmed that the merits of a case are ordinarily to be taken into account, and in that regard −
If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or the associate judge to give the appropriate weight to it. In some situations, all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.[9]
[8][2015] VSCA 127.
[9]At [71].
Later, that Court said something apposite to this application[10] —
We would add the fact that an associate judge may not have power to hear and determine the ultimate application for judicial review (without an order made by a judge referring the substantive trial to an associate judge) does not mean that associate judges cannot and should not make an assessment of the prospects of success. In doing so they are not determining the ultimate matter. Rather they are simply making an assessment of the prospects of success for the purposes of the application before them for an extension of time. Whilst some care may need to be taken in analysing and describing the strength of the merits, it is nevertheless a task that more often than not will be necessary and should not be shied away from by judges and associate judges.
[10]At [77].
Such is the peculiarity of this case, that I cannot avoid a detailed description of what happened before and after the first decision. But at the outset I should state my decision.
First, I will put aside the mudslinging, as it was described in Court. There will be no adverse findings of personal credibility of the Firm, or Mr Belleli, or Ms Nida. This tense case calls for an evaluation of their conduct and the weighing up of competing considerations having regard to the objective facts.
Secondly, I think the Magistrate’s first order was born of an awkward situation created by Ms Nida’s absence in Court on the first day of trial, and her very weak grounds for an adjournment. I think, with respect, his Honour was trying to be revealing about an incident concerning Ms Nida’s previous behaviour in his Court on another case that, I detect, he found hard to remove from his mind. I think the validity of the costs order and the self-executing costs order (but not the order to adjourn the trial) is attended with real doubt and is susceptible to judicial review, even though it was a discretionary order. But even so, the duration of the delay is so great that it calls for a cogent explanation from Ms Nida to establish special circumstances. I am afraid to say the explanation lacks conviction, and is especially difficult for a practising lawyer to make out. I also think, as certiorari is discretionary relief despite the showing of error, there is a question whether the orders caused substantial injustice in a predicament for which she was responsible.
Thirdly, I can accept that Ms Nida as a mother (and she would be entitled to say, a mother above all else) as well as being a lawyer was experiencing stress and sadness in caring for her son who was suffering from anxiety and depression and was unwilling to seek psychological help. But that does not show that her state, in effect, paralysed her from thinking and attending to legal matters and other personal matters that were in her own interests. The inaction and delay was not brought about by the plaintiff in any way, in a situation where she had solicitors acting. To adopt a metaphor used in Court, the conclusion beckons that Ms Nida, ostrich-like, put her head in the sand. That, in my judgment, is not a special circumstance.
Fourthly, I do not accept that the delay is extenuated because of the time taken to try and undo her breach of the self-executing order by resort to the Magistrates’ Court. Those steps were misguided and not legally competent. She had to seek judicial review. Having regard to the grounds of review to be put forward, this was not a situation where she was bound to exhaust other avenues of remedy before seeking judicial review. To go past the first order on 9 May 2018 and defer the commencement of the time clock to January 2019 means I have to ignore the words of r 56.02 that say the 60-day time limit runs ‘after the date when grounds for the grant of the relief or remedy claimed first arose’. I cannot ignore those plain words.
Fifthly, of course I accept that the arc of justice naturally bends to cases being decided on the merits and not on procedural default. But if I am to look at the strength of the judicial review case then I should also look to the apparent strength of her defence to the Complaint. Her defence strikes me as dubious. The Firm was engaged on a non-litigious commercial matter. This was not ‘no win-no fee’. There are no circumstances to show that the Firm had offered their services as a matter of benevolence or grace or as a favour. There is nothing to show a personal or obliging relationship between Ms Nida and Mr Belleli of a nature to make it a case where the Firm might agree act for free as a matter of goodwill or generosity in needy or disadvantageous circumstances. The highest she puts it is that her ‘impression’ was that the Firm would act for free. That does not make for an agreement at law or an estoppel. The Firm has evidence that it sent the Costs Agreement. Ms Nida does not say that work was done by the Firm not on her instructions. The legal work was done. Invoices were rendered. There is no dispute about quantum. Thus, I can well understand her grievance about how the Firm were pursuing her aggressively in the bankruptcy court to enforce payment of their fees. But likewise, on the available facts I can also see how the Firm would regard her defences as being so unmeritorious and designed to delay that it warranted strong enforcement action.
Seventhly, I think to excuse the delay in this case would make a mockery of the rule. In the exercise of balancing the interests of justice, to extend the time means re-starting a case, for a modest amount of money, based on invoices rendered between December 2014 and June 2015 and a Complaint filed in September 2016.
I shall return to the facts from which I have based those conclusions.
The beginning of the conflict
The tax invoices were rendered by the Firm to Ms Nida between December 2014 and June 2015 for their services. Letters of request to pay the outstanding account were made over a year later on 15 and 23 August 2016. The Complaint in the Magistrates’ Court for payment of $15,265 was filed on 19 September 2016.
The Firm says it experienced difficulties effecting service of process between October and November 2016, until the plaintiff was eventually served in a meeting with Mr Belleli in his office on 10 January 2017. It is sworn that she ‘tore up the Complaint, threw it back at him, and stormed out of the meeting’. The pieces of the Complaint were later stuck back together and sent to Ms Nida, presumably as a confirmatory act on the basis that personal service of the Complaint had already been effectuated on her before it was torn up. Ms Nida then engaged a solicitor, Mr Nabil El-Hissi of NOH Legal. He is the solicitor on the record in this proceeding, and ostensibly the solicitor acting for her in the Magistrates’ Court. There is no affidavit evidence from him in support of this application.
A defence to the Complaint was due to be filed and served by 8 February 2017. Ms Nida says she had told Mr Belleli at the meeting in his office on 10 January 2017 of her plans to travel overseas from 17 January to 18 February 2017. I suppose that would explain why she was served personally on that occasion. She says that before her departure overseas, her solicitor Mr El-Hissi asked the Firm for an extension of time to file a defence, which was refused.
A defence was not served or filed. On the deadline of 8 February 2017, the Firm entered default judgment for $15,265 plus interest of $1,068.12 and costs of $1,489.[11] On that same day Ms Nida’s solicitors asked for an extension of time to file the defence, but it was too late. On 26 April 2017 the Firm then issued a bankruptcy notice based on that judgment and made attempts to serve Ms Nida.
[11]That order is not in evidence.
Ms Nida then applied to set aside the default judgment. On 7 August 2017 she appeared in person on that application. Her affidavit in support of that application said amongst other things ‘I was under the impression that he [Belleli] agreed to assist with respect to purchase of the business and did not expect to be billed for legal costs’, and that she had never signed a costs agreement. The Magistrates’ Court set aside the default judgment and ordered Ms Nida to pay costs fixed at $1,582. Those costs were paid.
She subsequently filed a defence by her solicitors. Her defence stated, first, that she was not liable to pay the Firm because she was not the client. She alleged the legal services were provided not to her personally but to a company named Moobarak Pty Ltd. That was a company that had been incorporated by an accountant for the purpose of her son conducting the Sportsco business. It was named in the purchase agreement, the franchise agreement, and the lease of the retail premises. Ms Nida alleged that any instructions given by her to the Firm concerning the acquisition of the business occurred not in her personal capacity but only as an agent for the company as (presumably) disclosed principal.
There is in evidence a statutory Costs Agreement and a Disclosure Statement both of which identify the client as ‘Roona Nida (HC 664990)’.[12] Neither are signed nor dated. But, the costs agreement says, in its opening part, ‘You may accept the costs agreement by signing and returning the a copy of this document, or by continuing to give us instructions in this matter’ and according to the invoices the work was done between December 2014 to June 2015.
[12]Exhibit HSC-5.
A company search for Moobarak Pty Ltd is in evidence, extracted on 25 July 2017.[13] It does not show her to be a company director. It shows her to be a member, holding the 12 issued shares in the company. The sole director is identified as Zabie Hamad Fazal, who is her son. The search also states ‘Strike-Off Action in Progress’. That means, in my experience, prospective deregistration of a company usually as a result of failure to lodge statutory returns or some such regulatory matter.
[13]Exhibit HCS-4 (defendant’s paginated exhibit reference, p66).
Her second defence was put as being further and in the alternative. She alleges she was acquainted with Mr Belleli, and merely casually discussed with him the purchase of the franchised business for her son. She alleges that ‘At no time did … Belleli inform [her] that legal costs would be charged and payable with respect of any assistance in connection with the acquisition of the Franchised Business’. This seems to be alleging that Mr Belleli, by silence, agreed to render legal services free of charge; that is, agreed to act free of charge whether the client be her or the company. But he sent her a fees agreement.
The trial and the first order on 9 May 2018
What occurred on the day of trial is the principal focus of attention, because it can be described as the first domino to fall.
The Complaint was fixed for trial on 9 May 2018. On 2 May she served a notice of discovery. The Firm gave her documents. On 4 May 2018 she e-mailed the Court co-ordinator and asked for an adjournment of the trial ‘for medical and family reasons’. She says she was told that any application would have to be made to the Magistrate on the day of trial. The Firm told her and the Court co-ordinator that it would strenuously oppose an adjournment.
On the day before trial she sent the Firm two medical certificates. The two medical certificates were from a doctor at the Stud Road Medical Centre. The first was dated 7 May 2018 and said no more than this: ‘Ms. Roona Fazal has had tiredness, sand [sic] fatigue with mental stress due to family matters. She is unfit for any duty from 07/05/2018 to 07/06/2018’. The second document was a ‘Medical certificate’ dated 8 May 2018 and signed by the same doctor. This certificate certified that ‘Mrs Roona Fazal has a medical condition with headach [sic] and chest pain and visit me today for attention’. The Firm regarded them as inadequate to justify an adjournment, and said she had not addressed the costs thrown away of any adjournment.
Come the day of trial, counsel (not the same as appeared on this application) appeared on Ms Nida’s behalf. He told the Court that he was briefed to appear directly by her. The Firm was represented by Mr Searle who appeared on this application. Counsel for Ms Nida applied for an adjournment. He said ‘my client is sick; there are two doctors’ certificates or letters on the court file’. She was not present in Court. Whatever that expression ‘unfit for duty’ means in the present context, for my part I think the medical certificates were weak, and I can readily see why the adjournment application was opposed and why any Magistrate might have been sceptical. Ms Nida must have assumed that an adjournment would be granted despite the opposition as stated the day before. If her application was refused, her absence would mean the trial would have proceeded as unopposed.
The Magistrate then asked and obtained a brief description of the elements of the defence. They were said to be: it was the wrong defendant; in the alternative she didn’t accept the costs disclosure; the cost disclosure is defective; ‘she approached the [Firm] on a casual basis and asked for his advice on the expectation that she wasn’t being charged for that, and she did that on behalf of her son’; that ‘if they were going to sue anyone, they should have sued the son ... or the son’s company because she was only acting as an agent for the son’; and if none of that was convincing, ‘then there are issues about her accepting the costs disclosure which, she would contend even if it was sent to her clerk, she never received it’.
The adjournment was strenuously opposed. There is a transcript of the occasion. Counsel for the Firm informed the Magistrate that: service of the Complaint was ‘exceedingly difficult’ (taken to mean she had been avoiding service); she was avoiding matters coming to resolution; she had already been in procedural default by not filing a defence; she appeared in person once in August 2017 to set aside the default judgment; she was being represented by counsel to conduct the trial; and the medical evidence was insufficient to show she was incapable of attending court and giving evidence as distinct from having to conduct the case herself; the medical reports don’t even mention the court case; the quantum of the fees were not in issue; and the Firm was ready to proceed and had already experienced much delay since the proceedings were filed in September 2016. Moreover, counsel said there would be evidence that all mail including the invoices, the fee agreements and the disclosure statements were all sent to Ms Nida’s clerk at Owen Dixon Chambers and that anything not collected from her pigeonhole at the clerk’s office was, on the evidence, then posted by the clerk to her. Counsel also informed the Court that Moobarak Pty Ltd was now deregistered as a company by ASIC.
Critical events ensued. The Magistrate said he recollected that Ms Nida may have appeared before him on a previous occasion ‘and the circumstances of that appearance raise concern in my mind as to whether I should deal with this matter at all’. His Honour said he considered her past conduct ‘to be a very, very serious breach of an officer of the Court’s responsibility to the Court’.[14] As his Honour was not sure about the plaintiff’s identity, he was shown a photograph.
[14]Transcript 23, ln 5-10.
This is what followed (with my underlining) to show that his Honour did not have favourable memories of Ms Nida’s conduct in Court:
Yes, that’s the woman I’m thinking of. So I’ll return that to you. Now, the reason this raises concerns for me is this: She was representing somebody in a proceeding here. I forget exactly what the nature of the proceeding was. It might have been an intervention order or a criminal matter; I can’t remember. She put information before the Court – sorry, no, it was a contested hearing, the first day of the proceeding ran and it didn’t finish on that day. I had concerns about the way in which the case was being conducted.
She came back before the Court for the resumption of the hearing and indicated to the Court that she was seeking the matter to be adjourned on the basis that that her instructing solicitor had in some way not withdrawn her retainer as a barrister, but that the matter couldn’t proceed for some reason. I stood the matter down and told her that I wanted that solicitor to come to the Court and she was not to leave the Court; she was to come back to the Court with the solicitor.
Subsequently, the solicitor attended, but Ms Nida or Ms Fazal never returned, which was of serious concern to me. And in further the solicitor when he attended the Court gave the Court information which was inconsistent with what we’d been told by Ms Nida or Ms Fazal – Nida or Ms Fazal.
Now, I didn’t take any action by way of complaint about her behaviour, but the fact she left the Court and never returned was seriously concerning to the Court, and completely inappropriate in my view, particularly when I’d expressly told her she was not to leave the Court, that she was to return and appear before the Court.
In the course of that engagement I had serious concerns about her personal wellbeing, I have to say, and I won’t take that any further other to say that that was raised in my mind at the time.
Now when I look at all of those matters, I have questions marks in my mind as to whether or not I can deal with a contested hearing in this matter. Now, that might be very convenient for Ms Nida as the defendant in these matter at this point in time, but I raise that because I think it has to be out there and I have to give both of you the opportunity to make comment that you wish to make.
Counsel for the Firm said it was a matter for his Honour whether that experience meant he could not bring an impartial mind to this matter. His Honour responded ‘That if one looks at the test for ostensible bias, I don’t have any concern about actual bias; I don’t think that’s real’. Later, his Honour said:
... it is an objective person, the reasonable person at the back of a court, but it is also nevertheless important that the person themselves not feel that there’s a risk of bias. So the test is objective, but it’s got edges of subjectivity about it. ... I don’t believe there will be any actual bias but that’s not the point.
Counsel for Ms Nida said the past incident was ‘news to me’ and he had no instructions. Counsel said he personally was confident the matter would be conducted by the Court in an unbiased matter, but ‘I do have concerns of what somebody sitting in the back of the court may think. I think that could be a problem’. The reference to somebody sitting at the back of the court is the spectral presence of the hypothetical and informed bystander to whom the law of recusal looks to make a judgment whether the judge might not bring an impartial mind to the matter. The Magistrate then said this (with my underlining) –
Look, my view is this: I don’t think strictly speaking the objective viewer, being aware of all of the matters that I’ve raised – and of course my memory is not perfect, but my memory of those events – would reach the conclusion that I wouldn’t bring a fair and objective mind to the matter.
But I think from Ms Nida’s point of view, it’s likely that she would have some concerns so I am not going to proceed to hear the matter and I am going to indicate that it shouldn’t come back before me. I am reluctantly – and I say strongly reluctantly – going to grant the adjournment but not for the reasons associated with the medical certificates really, but because of the circumstances where I’ve had that previous engagement with Ms Nida.
Thus the matter was adjourned not on the (inadequate) medical grounds but because of the Magistrate’s own concern that the absent Ms Nida ought have the opportunity to consider whether she would apply for the Magistrate’s recusal on the basis of his experience of her previous behaviour in his Court about which he had taken a very dim view, and about which ‘it’s likely that she would have some concerns’. I take that to mean, ‘likely’ that the previous experience might not be removable from the Magistrate’s mind and lead to a predisposition to regard her as irresponsible and lacking professional integrity and being unreliable as a witness in her own cause.
As I read the transcript, if, as his Honour felt likely, Ms Nida would have such concerns, then he said he would or might recuse even though he was not actually biased against her. I read that to be a tacit invitation to apply for a recusal. But then his Honour said plainly ‘I am going to indicate that it shouldn’t come back before me … because of the circumstances where I’ve had that previous engagement with Ms Nida’. But in then saying ‘it shouldn’t come back before me’ his Honour appears to have already decided to recuse himself. This is known as recusal under the precautionary principle, based on pragmatism.[15]
[15]See A.A Olowofoyeku, ‘Inappropriate Recusals’, (2016) 132 L.Q.R. 318, 329.
I think the Magistrate was trying to be considerate in a tricky situation. To an informed observer, I think there is sufficient to conclude his Honour was conveying that he may not be able to keep Ms Nida’s prior conduct out of his mind and give the case the icy impartiality which is a prerequisite of justice, and that is why the adjourned trial would not come back before him. But I discern that the Magistrate regarded the recusal as a prospective one being operative for the trial and not for the hearing of the application before him, which was contested. Nor was such an immediate recusal sought, for Ms Nida was not there to instruct her counsel. It is also apparent from the transcript that the Magistrate, perhaps with recollections of the past experience, became concerned that Ms Nida might not appear in Court on the adjourned trial date, before another Magistrate. He said:
But I want to – without making self-executing orders, I want to make it – I want to adjourn the matter with some directions that if there is no appearance on the next occasion and that the case is not ready to proceed on the defendant’s case, then I would be, without making self-executing orders, wanting to make it clear that I think the defence should be struck out.
It’s now 18 months roughly since the complaint was first filed with the Court. It is something like 15 months or thereabouts since the documents were first served. There’s been no defence filed in relation to the matter initially. There was default judgment given, steps were taken to enforce that default judgment, there was then an application for rehearing and I wasn’t part of that as far as I know, but that was granted so that’s water under the bridge. We can only conclude that the Court was satisfied it was appropriate to grant the rehearing.
A defence has been filed. The matter’s been set down for hearing now for several months, if not more, since December, is it, last year? So we’re now almost five months, if not five months since it was set down for hearing. It cannot be allowed to go on.. And if the defendant is not attending – going to attend Court, and I don’t accept the medical certificates are adequate whereas she is not going to attend Court, then in my view it would be appropriate to consider – for the Court to consider that the defence should be struck out. I can’t make it any clearer than that.
So I’m going to ask the two you – I know it’s difficult – to just draft up a minute that somehow reflects what I’m saying. I’m not making a self –executing order, I do not want to make a self-executing order; I think that’s problematic in these circumstances, but I want a direction that makes it clear that that’s – if the matter’s not ready to proceed on the next occasion, the Court has to turn its mind to whether or not it’s appropriate to strike out the defence.
This direction was an unusual step. The Magistrate had decided to recuse from presiding at the adjourned trial yet was making a direction to the trial Court to consider striking out Ms Nida’s defence if she did not attend Court on the adjourned trial date, which is something the trial Magistrate could do anyway, if thought fit. Counsel did not take exception to this. Of course the direction would not bind the trial Magistrate, but I think the direction would have a prejudicial effect.
Counsel for the Firm then sought an order for costs of the adjournment. His Honour said (with my underlining):
Well, I think in the circumstances – I’ll hear from Mr King [counsel for Ms Nida], but I think in the circumstances I have not accepted the basis for the adjournment. I have nevertheless adjourned it for reasons to do with an issue that neither of the parties were aware of, although Ms Nida would have been aware of it, given she was involved, but she wouldn’t have been aware that I was sitting until she attended Court today, so I’ll hear from the parties about costs for today, but I’d certainly reserve them. I may well actually order them today, but I’ll just hear from both of you.
His Honour repeated –
As I’ve indicated, I’m not adjourning the matter on the basis of these medical certificates; I’m adjourning the matter ultimately because I’ve reached the conclusion that, although I don’t think an objective reasonable person will have concerns about dealing the matter, I can understand that Ms Nida would.
Counsel for the Firm persevered with an application for costs, on an indemnity basis. He said the Firm as plaintiff was ready to proceed with the trial and had ‘done no wrong here’ and ought be compensated. Counsel for Ms Nida opposed any costs order on the basis that the adjournment was occurring not on the basis of the rejected medical evidence but on the basis of the Magistrate’s own apprehensions about perceived bias. Therefore, it was submitted to not be a situation of costs following the event. I think that was so, but costs are discretionary. His Honour decided (with my underlining) —
For a number of reasons I’m satisfied it is appropriate to order that Ms Nida pay the costs of today. I am not going to order that they be paid on an indemnity basis. I don’t consider that’s appropriate to do so, but I do consider it appropriate to order costs for the following reasons:
The defendant seeks an adjournment on the basis of medical certificates that she relies on to assert, in effect, that for reasons of ongoing depression and anxiety which has been culminated by the sickness of her son in the form of anxiety since April 2017, his sickness had added a lot of pressure on her, her work performance, daily functioning, focus and concentration. That’s the basis on which she seeks the adjournment.
It’s in effect the content of the medical certificate of Dr Uday Alhamed, dated the 2nd of May 2018 that I’ve read from.[16] That same certificate indicates on its face that Dr Uday Alhamed is in effect referring to events in May and June of 2017. She, he says, “needs relaxation time and a period of – to get rid of – get rid from the pressure she is on,” using his word.
[16]That report is not before the Court. There is a report dated 29 April 2019 – Exhibit RFN1 (p478).
The medical certificates more recently provided to the Court in a sense that they appear to be provided by a doctor who has seen Ms Nida or Ms Fazal more recently; that is, Dr Xiao Wang. The first is dated the 7th of May ’18, which says that she has tiredness and fatigue with mental stress due to family matters, she is unfit for any duty from the 7th of May 2018 to the 7th of June 2018.
And then there’s a further certificate dated yesterday’s date from the same doctor, 8th of May 2018, saying that “She has a medical condition with headache and chest pain, and has visited me today for attention.”
Those three certificates, combined with the assertion in Ms Fazal’s own document that she needed an adjournment for a much longer period until the 18th of July for medical and family reasons, she asserts, that’s the content of her email of the 4th of May 2018, leave me with the view that there is nothing before the Court that can justify the conclusion that she’s incapable, unfit, unwell not to attend Court here today.
There is always stress associated with Court proceedings and inevitably when the matter is adjourned, as it will be, on the return date there will be further stress associated with the Court proceedings, and Ms Fazal will need to deal with that.
I have raised with the parties some concerns that I have about whether I should deal with this matter, given, as I explained, the circumstances of Ms Nadal – Ms Fazal – Ms Nida, sorry, Ms Fazal’s appearance before me on an earlier occasion this year. From memory, it may have been the end of last year; I can’t remember the exact date.
I don’t have any concern about my ability to bring an objective mind to the matter, but given what I consider to be a very, very, serious breach of an officer of the Court’s responsibility to the Court; that is, that is that Ms Nida, Ms Fazal simply did not return to the Court although the Court directed her to do so on that occasion.
I can expect that she might take or have some concern about the ability of the Court, when it’s composed by myself, of bringing an objective mind to the matter. As has been pointed out by counsel for the plaintiff, had Ms Nida attended Court here today, it would be a matter that I would have been able to raise directly with her and have her discuss with counsel, and it doesn’t necessarily result in the conclusion that she would have taken the view that I anticipate she might take. And it may be that the matter would not have had to be adjourned.
So in all of those circumstances I think it is appropriate to order costs for today. I’m going to order that those costs be paid within 30 days, and I’m going to ask the parties now, as I indicated before, to stand the matter down – not stand – I’ll stand it down – for the parties to consider, when I stand the matter down, an appropriate form of words in relation to that costs order; that is, what’s the costs amount and so on.
MR SEARLE: Your Honour, just on that - - -
HIS HONOUR: But also, before you (indistinct) – but also, as I noted before, that if the matter does not – is not able to proceed on the return date, which will be the 22nd of August, according to the information provided to me by the Registry, because Ms Nida doesn’t attend, then I indicated in my view the Court must give serious consideration to whether or not the defence should be struck out at that time, and in my view there ought to be consideration given that if costs aren’t paid within the 30 days, then the defence should be struck out.
I will stand it down for the two of you to agree a word – on a form of words, if you can?
Counsel returned to the Court with signed orders.[17] Those orders fixed costs at $1,476. The draft said that if costs were not paid by 11 June 2018, the defence would be struck out. It also said if Ms Nida did not attend Court on the adjourned date then the defence would also be struck out. His Honour corrected the latter order by restating his intention to be: there would be no self-executing order by him in the event that Ms Nida did not appear on the adjourned date (that being a matter not for him but a matter to be considered by the Magistrate hearing the trial); but there would be a self-executing order made by him presently as the Magistrate granting the adjournment to strike out the defence if the costs of the adjournment were not paid by Ms Nida within a certain time.[18]
[17]Exhibit HSC-10 (p224).
[18]See transcript p24.
The following orders were entered on the Court Register:
1. HEARING LISTED FOR 9/5/18 ADJOURNED TO 22/8/2018 – NOT BEFORE MAGISTRATE CONNELLAN.
2. DEFENDANT PAY PLAINTIFF’S COSTS OF TODAY FIXED AT $1,476.00 SUCH COSTS TO BE PAID ON OR PRIOR TO 4.00PM ON 11 JUNE 2018, FAILING WHICH THE DEFENDANT’S DEFENCE IS STRUCK OUT.
3. IN THE EVENT THE HEARING ON 22/8/2018 IS UNABLE TO PROCEED DUE TO ANY DEFAULT AND/OR NON-ATTENDANCE OF THE DEFENDANT THE COURT WILL CONSIDER WHETHER THERE ARE ANY CIRCUMSTANCES THAT COULD JUSTIFY THE DEFENCE NOT BEING STRUCK OUT.
In the ordinary case of a party making a successful opposed application for an adjournment (particularly of a trial), the Court’s discretion would be to order the adjourning party to pay the other party’s costs of the adjournment, unless the other party had somehow caused the adjournment. Depending on the case, there could also be a basis for making an ancillary self-executing order in the event that those costs were not paid within a certain time. Broadly speaking a self-executing order is a Court’s procedural tool to elevate the importance of compliance with a Court interlocutory order to do something, usually in a situation where the party against whom the order is made has already shown itself to be non-compliant in some way.
In this odd case, the Magistrate refused the adjournment application on the medical certificates, but granted an adjournment to enable the trial to be heard by another Magistrate because, so the Magistrate thought likely, Ms Nida would think him to be biased against her. Thus, so the argument on review would go on the question of procedural fairness: if the adjournment application was opposed, then by the Magistrate’s own hypothesis of apprehended bias, he ought not have heard the contested adjournment application, and having heard it, he then made a contested costs order with the added sting of a self-executing order.
The alternative case for judicial review on the irrationality ground has to be understood to mean not a conclusion with which one emphatically disagrees but ‘a conclusion which may be applied to a decision which lacks an evident and intelligible justification’.[19] The necessity for an adjournment was conceived and granted by the Magistrate as a matter of conscience (if I may put it that way) for Ms Nida’s benefit. It was to enable her to consider applying for his recusal on the basis of the Magistrate’s dis-favourable views about her past professional conduct. Yet, the Magistrate in effect had already decided to recuse by making an ancillary order that the resumed trial be before another Magistrate. Therefore, Ms Nida would contend: why should she be liable for the costs of the adjournment, with the added sting of the self-executing order? Even if she had been present in Court that day, the Magistrate would likewise have adjourned the trial to be heard by another Magistrate.
[19]See Minister for Immigration v Li (2013) 249 CLR 332, 367. See also recently, Minister for Immigration and Border Protection v SZVFW (2018) CLR 541.
If the decision was reviewable for bias or irrationality what did she do about it?
Being a barrister and surely knowing of the consequences, Ms Nida chose not to pay the costs as ordered. That was not said to be attributable to stresses and sadness in her family life. The self-executing order took effect. On 15 June 2018 an order was made and entered on the Magistrates’ Court register that the defence was ‘struck out’. That is the second order which the plaintiff seeks to quash. That order was made 340 days before the originating motion was filed in this Court.
The striking out of the defence gave the Firm the procedural right to apply to the Magistrates’ Court Registrar to enter default judgment for a second time in the case. As this was a debt claim, the Registrar had to also fix the amount of interest and costs. But, no monetary order was made because, as noted on the order, there was a question whether a double counting error had been made by the Firm in calculating their costs on the applicable Magistrates’ Court scale of costs. Therefore, the application for default judgment was noted as being adjourned to obtain from the Firm further details of cost items. The order also states ‘Notice of this application is to be given to the defendant, and the defendant is to be given 14 days to file with the Court details of any relevant circumstances’. Ms Nida says she was not given any notice, but does not say what turns on that. I presume the Firm gave its costs details to the Court because on 4 September 2018 the Magistrates’ Court entered a default judgment on the claim for $15,265.41 together with interest of $927.64 and costs of $6,489.09. That is the third order sought to be quashed. It was made 259 days before the application to this Court.
On 25 September 2018 the Firm served a bankruptcy notice on Ms Nida (the second one in this case) based on that default judgment.
It is now about five months since the self-executing order was made. Ms Nida is facing bankruptcy. She turns her mind to setting aside the self-executing order even though it has already taken effect. But she must find the Magistrates’ Court power to do so. (The Supreme Court has the inherent power to make such an order and express power under the rules to set it aside.[20]) On 1 October 2018 she filed a summons in the Magistrates’ Court under s 46A of the Magistrates’ Court Rules seeking to set aside the self-executing order. As there is no such procedural rule, I take that Ms Nida was looking to r 46.08 to apply for a rehearing under s 110 of the Magistrates’ Court Act. Under that section the Court can set aside a final order ‘against a person who did not appear’. Ms Nida was not present in Court when the self-executing order was made, but she appeared by counsel who sought an adjournment on her behalf. Therefore, the rehearing summons was legally not competent. On 9 October 2018, a Magistrate who had doubts whether there was power to set aside the self-executing order adjourned her summons to 30 January 2019. I should add that according to Ms Nida’s second affidavit,[21] on that day her counsel offered the Firm’s counsel to make immediate payment of the costs under the (spent) self-executing order. She says that offer was refused. Despite that refusal, she says she sent the money by electronic transfer on 22 November 2018 and purports to exhibit a transfer receipt. But there is no exhibit there, or anywhere else. Nothing came of this so I shall disregard it.
[20]See r 24.05 and r 24.06.
[21]Sworn 15 July 2019 para 93–97.
Ms Nida’s next move was to amend the rehearing summons and seek an order to set aside the self-executing order under r 24.06 of the Magistrates’ Court Rules. Where relevant, Order 24 empowers the Magistrates’ Court to strike out a defence if a defendant fails to comply with an order to give particulars or give discovery or answers to interrogatories. Rule 24.06 empowers the Court to set aside the base order or the order made upon failure to perform the base order. But that rule was of no avail to what occurred here, and the Magistrates’ Court does not have the inherent jurisdiction to set aside the self-executing order made here. That is why, I can take it, that on 30 January 2019 the Magistrates’ Court made an order dismissing Ms Nida’s amended summons with indemnity costs. The summons was legally not competent. That order is the fourth order which Ms Nida seeks to have judicially reviewed and quashed.
Up to this point, what Ms Nida was trying to do, but failed to do, was to set aside the first (self-executing) order made on 9 May 2018 within the procedural rules of the Magistrates’ Court.
At this juncture I wish to say something about the legal significance of these failed attempts. Senior Counsel for Ms Nida sought to equate the situation with the refugee case of Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs,[22] a decision of Finkelstein J of the Federal Court of Australia. That was an application for judicial review of a decision by the Refugee Review Tribunal which had affirmed the Minister’s refusal of an application for protection visas under the Migration Act (Cth). Under the applicable procedural rules governing such an application, applications for certiorari had to be made within six months, but, the Court had the time to enlarge the time limit.
[22](2005) 219 ALR 140; [2005] FCA 195.
The Applicants M160/2003 case says there are certain types of cases where a Court will not apply the time rule too strictly, or, ‘there are cases where the court will grant an extension of time for a reason that would not suffice in other cases’.[23] The category of ‘certain types of cases’ can be taken to mean cases involving human welfare or social welfare or human rights in that Court where procedural time limits may have to give way to deserving situations born of disadvantage or helplessness. Refugee cases are an example. In the case of Applicants M160/2003 the reason put forward for delay was that the plaintiffs applied to the Minister under another section of the applicable legislation for a more favourable decision than that given by the Tribunal because there was provision empowering the Minister to substitute his decision for the Tribunal’s decision if it was in the public interest to do so. The case was put that the delay was explicable to some extent by the plaintiffs taking up time to apply to the Minister under that provision.
[23]Ibid [5].
That position led the Court in Applicants M160/2003 to state a number of ‘old rules’ as they were described. Reference was made to the ‘well settled principle, that judicial review is a proceeding of last resort’. If there was an alternative procedure, such as an appeal, by which the substantive issue could be resolved, then it is thought that such a procedure should ordinarily be taken in preference to judicial review. Such an approach is consistent, or possibly referable to, the general rule that as the prerogative writs are discretionary, such relief may be declined if the applicant had not first pursued an available statutory right to review or undo the decision under challenge.
The case of Applicants M160/2003 takes the view that in certain types of cases if a party seeks an alternative means of obtaining redress on a decision, as an alternative to review, and those means prove to be unsuccessful, then that can be a good reason for obtaining an extension of time. A court will lean against penalising an applicant for the passage of time, on the basis that ‘the applicant in the meantime has not been sleeping on her rights but has been attempting to canvass them by other legitimate means’.[24] Yet, the case also exposes decisions of the Federal Court which say that making alternative applications to a Minister before judicial review is no excuse for delay, and that a plaintiff who takes that course must live with the consequences of the delay that occurred.
[24]Ibid [8].
I do not think the decision in Applicants M160/2003 establishes some principled or settled approach to be applied here. I would certainly see that case as influenced by the nature of the case. The part of the decision which I think stands to reason is that a court being asked to grant an extension of time could not ignore the time taken for other legitimate applications that were made on the substantive matter before making the belated application for judicial review when those alternative approaches failed. But the ‘alternative’ applications in the present case were not part of some statutory regime or process dealing with a particular type of administrative decision, and, in any case, all of Ms Nida’s applications were legally not competent.
Having come to the end of the road with applications in the Magistrates’ Court on 30 January 2019, Ms Nida did not commence her application for judicial review in this Court until 111 days later on 21 May 2019. That is a significant fact adverse to this application. In the meantime, the Firm on 14 March 2019 filed a creditor’s petition for her bankruptcy.
The application for judicial review
It has been more than three years since the Firm’s complaint was filed in the Magistrates’ Court. It has been 377 days since the Magistrate’s self-executing order was made. What are the special circumstances according to which Ms Nida seeks an extension of the 60-day time limit?
In the originating motion this is stated to be the basis for seeking an extension of time:
1.The plaintiffs [sic] seeks an extension of time on the grounds that she has been unable to properly deal with this matter by reason that she is a single parent and her son suffers from a mental illness including anxiety and depression and she is devoted to his care.
The grounds of the application are stated as follows:
1.There is a reasonable apprehension of bias that the learned magistrate’s order on 9 May 2018 was affected by bias that it was induced by the learned magistrate’s enmity of the Plaintiff.
2.The order of the Magistrates’ Court on 15 June 2018 was an order made in consequence of the order of 9 May 2018.
3. The order of 4 September 2018 was made:
(a) as a consequence of the order made on 9 May 2018; and
(b)in breach of the orders of the court made 23 July 2018 whereby the first defendant was ordered to give notice to the plaintiff of its application and failed to do so.
4.The order of the 30 January 2018 [intended to say 2019] was an order made in consequence of the orders of 9 May 2018 and 4 September 2018.
The applicant’s affidavits
Ms Nida has sworn two affidavits in support of this application. I shall not copiously recite their contents but expose the substantial factual matters that she raises.
In her affidavit sworn on 2 May 2019, its purport is to say that she seeks an extension of time on the grounds ‘that I have been unable to properly deal with the matters contained in the Originating Motion until now’. It contains a lot of personal matters concerning her personal background, some of which I would not regard as relevant. For example, she states that she is a woman of Afghan background who migrated to Australia, having married at a very young age and had two sons of that marriage. She has undergone divorce from her husband who imposed ‘life restrictions on her and who inflicted physical and mental abuse’. She was forced to raise her two sons with no support from her ex-husband, whilst at the same time doing her undergraduate studies.
She says one of her two sons Hamad, with whom she has a close relationship, suffers from anxiety and depression. She says she has devoted most of her time to his care, as there is no contact with the father. She says that ‘I had very little time to devote toward my legal practice and no time to deal with the matters contained in the Originating Motion’. She produces a medical report from Dr Uday Alhamed from the Stud Road Medical Centre.[25] That report states that her son was refusing to seek treatment for his condition. And she was struggling to find a way to do something for her son. It is said the son’s condition had significant impacts on her emotions and negative impacts on her personal and professional life and that ‘she could not focus on work, missing important deadlines, resulting in consequences adding to her distress and causing severe financial and emotional damages’. The report says her son left home in October 2018 to live with his uncle Abib Fazal but was still refusing to follow medical advice and consult a psychiatrist.
[25]This one is dated 29 April 2019 – Exhibit RFN-1 (p 478).
I do not understand the general practitioner to be saying that Ms Nida suffers from mental illnesses. Rather, it was the medical condition of her son that was having such serious negative impacts on Ms Nida.
Ms Nida swore a second affidavit on 15 July 2019. This repeats much of what was said in the first affidavit. Much of this affidavit I think is irrelevant as being an attack on the Firm that, she protests, acted with the object of ‘inflicting me significant financial and emotional hardship’. What matters is her explanation for the delay between the self-executing order and the application for judicial review. She says [with my corrections] —
88.On or about May 2018, I have been dealing with my son’s mental illness and his refusal to seek professional help. The months of May 2018 to end of July 2018 have been the toughest. During the time, I found it difficult to focus on my work and deadlines, among which was the payment to the respondent pursuant to the Orders.
89.In addition, as a result of not being able to focus on my practice, I suffered from loss of income and significant struggles with fiancée [query if she means finance].
90.On or about June 2018, I sent email to Dandenong Magistrate’s Court requested to withhold issuing a default judgment in this matter informing that I was looking into appealing the decision of the 9 May 2018 regarding stay orders and that I had meeting scheduled with Liz Click QC [I think she means Les Glick QC]to discuss the quickest and less possible expensive way to get the defence reinstated.
91.Mr El-Hissi and I attended a meeting with Liz Click QC in which we discussed the possible quickest and less expensive way to get the defence reinstated may be through Magistrate’s court proceeding by filing a form 46.
...
94.In my attempts to minimise costs and delays, I had to make further attempts through Magistrate court in the hope to reinstate my defence without having to incur significant costs of Supreme Court proceeding.
Under the heading ‘The reason why I chose to file an application in the Magistrate court rather than Supreme court’, Ms Nida says —
103.The predominant reason was my struggles with finance as the cost implication of Supreme court proceeding was much higher than Magistrates’ court proceeding, I made attempts to get the defence reinstated in the Magistrates’ court.
104.My applications to set aside the Second Judgment and reinstate my Defence ... were refused. Consequently, I was left with two choices, to become bankrupt and to give up my professional career or continue to have the opportunity to be heard.
Her explanation in essence is that she was committing time and energy to her son’s recovery and wellbeing. She says, ‘I had very little time to devote towards my legal practice and no time to deal with the matters contained in the Originating Motion’. As for events before the motion was filed, and focussing on what occurred after 9 May 2018 when the first order was made, she says:
The worst brunt of [her son’s] mental illness took place throughout the middle months of 2018 when I genuinely feared for his long-term wellbeing and ability to turn his life around. Being the only parent to my sons for the past 13 years, I devoted all my time and energy to helping [my son] overcome his difficulty.
This affidavit confirms that Mr El-Hissi was still acting for her as solicitor communicating with the Firm especially on the bankruptcy proceedings, and attending with her in consulting Mr Glick. There is no affidavit evidence on this application from Mr El-Hissi.
The opposing material
The affidavit in opposition to the application, sworn by an employee solicitor of the Firm, Hugh Stanley Clarkson, exhibits a compilation of 581 pages of materials. The materials are a dossier to discredit the plaintiff and her explanation for failing to make this application within time. I shall avoid the details. In essence the documents have been assembled to show that throughout the time that the plaintiff says she was a single parent and unable to deal with this matter: her son had left home and was living with his uncle; she had consulted a Queen’s Counsel for advice about this matter; she made attendances at the Magistrates’ Court to file or carry out legal process; and she was publicising and presumably conducting ‘United Chambers’ as her legal practice. Moreover, outside the legal practice, she campaigned as a candidate for election to the Upper House of Victorian State Parliament in the November 2018 general election on the platform of ‘Transport Matters’. In short, counsel for the Firm submitted there was objective evidence to say it was incredulous for her to say, that she as a practising barrister was unable to attend to her own case and comply with procedural time limits or that the motherly burdens of caring for her son prevented her from doing so.
The Firm also points to the conduct of this proceeding to show Ms Nida appears to suit herself and have a tendency to disregard Court orders. After filing the motion, she failed to file a summons as is required under the rules and had to be pressed by Registry lawyers to do so. On the hearing of the summons on 10 July 2019 before a Judicial Registrar, the Court departed for its usual practice of deferring the application for an extension of time to be heard as part of the hearing of the appeal. Over Ms Nida’s opposition, the Judicial Registrar ordered that the application for an extension of time be heard first of all and separately. The reasons for that order dated 10 July 2019 are stated under the rubric of ‘Other Matters’ in that order as follows:
C.The first defendant sought to draw to the Court’s attention the following matters:
…
v.On 30 January 2019 the plaintiff informed the Magistrates’ Court that she was filing her appeal in the Supreme Court that day. No appeal was filed that day.
vi.On 31 January 2019, the plaintiff informed the Federal Circuit Court that she was filing the appeal in the Supreme Court that day and obtained an adjournment of the hearing. Her appeal was not filed that day.
vii.The plaintiff filed an affidavit to which she exhibited a document that she described as a true copy of the transcript of the Magistrates’ Court hearing of 9 May 2019. In fact, the document is neither a true nor official copy of the transcript of that hearing but is the plaintiff’s own selective transcription of the hearing, which contains errors and her own personal commentary.
viii.The plaintiff is a member of the Victorian Bar and has ethical duties and obligations to the Court to act in a manner as an officer of the Court.
D.In response to the submissions of the defendant, the plaintiff:
i.Said that she had delayed bringing the appeal earlier, despite Counsel’s advice to do so, as she hoped to avoid incurring additional costs …
…
ivSaid that, on 30 and 31 January 2019, she had intended to file her appeal documents, but after meeting with the Supreme Court’s Self-Represented Litigant Coordinator was informed that there were changes needed, and her solicitor was unwell and unable to make those changes at the time.
v.Said that at all times she had acted on the advice of members of the commercial bar.
There was sufficient in Ms Nida’s conduct, particularly the filing of her own unreliable transcript ‘and the lack of satisfactory explanation to account for the delays that have attended the proceeding thus far’ to lead the Judicial Registrar to make a self-executing order requiring Ms Nida to swear and file an affidavit that exhibited a true and ‘official’ transcript by a certain day, failing which the originating motion would be dismissed.
The plaintiff filed another transcript but without verifying it was an official transcript. The transcript as filed had the manner and form of looking like it had been professionally prepared but it was not patently identified as being prepared by a legal transcription service. Nothing on the transcript revealed by whom it was prepared, as would be expected. It was done by a typing service. Those defects meant there was non-compliance with the self-executing order. Counsel for the Firm did not point to any apparent errors or indicia that this transcript could not be trusted, but nevertheless urged the Court to find that the proceeding was therefore dismissed by self-execution as the transcript was not ‘official’ and saying this was another instance of irresponsible conduct by the plaintiff who, as a barrister, had shown herself to be unconcerned with complying with Court orders, which he asserted, was precisely the sort of attitude that had been demonstrated in the Magistrates’ Court proceeding. On the first day of the hearing of this application I allowed an adjournment to enable the plaintiff to file an affidavit to exhibit and verify a professionally prepared transcript by an independent transcriber. But I must say, although some procedural errors or inattention can be forgiven, Ms Nida has not done herself any credit. It appears to me she takes an insouciant approach to the responsible conduct of legal process, at least as it affects her.
Conclusions
I have already stated my conclusions. An account of the evidence of what occurred shows I think that by her own conduct Ms Nida has fostered the intolerable delay. If it was thought that the Magistrate’s decision was seriously irrational or the product of apprehended bias, one would have thought that, given the consequences, there was a pressing incentive for her to pursue judicial review for jurisdictional error at the first opportunity. But she delayed bringing the review proceedings despite Counsel’s advice to do so, because she did not wish to incur the expense. She dithered with applications in the Magistrates’ Court with personal appearances to minimise expense. Then, when the second of her steps in the Magistrates’ Court was rejected as legally not competent, she did not file the current proceeding until almost five months later on 21 May 2019. That aggravates the delay. And she did that only after her application to set aside the bankruptcy notice was rejected by the Federal Circuit Court and a creditor’s petition was presented to that Court.
The conclusion has to be that there was a deliberate decision by her not to bring judicial review proceedings in this Court for jurisdictional error and to bring ‘alternative’ but doomed applications in the Magistrates’ Court. Having taken that course she must live with the consequences of the delay that occurred. None of what occurred constitutes special circumstances.
I cannot disregard the evidence about her domestic situation. But I doubt that her personal problems truly did cause the delay. Rather, a strongly competing hypothesis was that the delay or ‘head in the sand’ was caused by her resentment towards the Firm for suing her, when she was under the impression that the Firm would act free of charge. There is nothing in the materials to justify such a belief. The delivery of the Costs agreement is conduct to the contrary. I have no evidence about what became of the Sportsco business to be conducted by her unwell son. But as the operating company Moobarak Pty Ltd (who Ms Nida says was the true client and liable for the fees instead of her) became deregistered I can only suppose the business did not start or failed. Ms Nida is saying that the proper defendant is her deregistered family based company. To try and make sense of this case, I cannot help but think that as the venture failed or did not start, Ms Nida might think she ought be relieved from paying the legal fees to set it up.
Despite the absence of special circumstances, I have considered the question about the strength of the case for legal invalidity of Magistrate’s first order for jurisdictional error. It must be kept in mind that jurisdictional error for a denial of procedural fairness error does not necessarily beget certiorari. The prerogative writs have always been a discretionary remedy. A reviewing Court exercising is supervisory jurisdiction on lower Courts might well decline certiorari despite demonstrable error if there was no substantial injustice in the effect of the impeached order. What happened below was very peculiar, but whatever apparent disfavour the Magistrate might have harboured towards Ms Nida her for her past conduct in his court, I think there are grounds to argue that a costs order against her was called for anyway by any Magistrate in the circumstances. Ms Nida created a real predicament. Her application by counsel was for an adjournment of the trial on the day of trial, and not before. The medical evidence was so weak as to cause real scepticism. I think the Magistrate was correct to decide that the adjournment could not be granted on the basis of the medical certificates. But the trouble was Ms Nida saw fit not to attend Court that day when she knew there was to be opposition to an adjournment. Her solicitor Mr El-Hissi was not there to explain or overcome the dissatisfaction that any Magistrate would feel about that situation. Having rejected the medical evidence, it would have been open for any Magistrate to proceed with the trial without her. But I would think, given the history of the case, and out of an admixture of fairness and a desire to minimise more problems, the result would have been for a Magistrate feeling obliged to adjourn (but not on medical grounds), but on condition that Ms Nida pay the costs of the adjournment as she was responsible for the situation.
Thus when it comes on this application to looking at the strength of the case for judicial review, it comes down to the impeachability of the self-executing order for the non-payment of costs. It is not enough to point to the prospects of establishing jurisdictional error as means of eclipsing the absence of special circumstances for the delay. In looking at the merits of an application for review on an extension application, consideration must also be given to the discretion to decline relief in the nature of certiorari despite error being shown. In evaluating the prospects of success in this peculiar case, consideration would have to be given to the prospect that any Magistrate (free of the past experience of Ms Nida’s conduct in Court) might well have made, or acceded to a submission seeking, a self-executing order in the circumstances given her absence, the delay since the filing of the Complaint, the previous default judgment, and the first bankruptcy proceedings. They were matters capable of activating the discretion.
It is not a platitude to say: so much is dependent on the circumstances, and justice has to be done to both parties. One thing is certain in my mind: there are no special circumstances extenuating the bad delay. Nor are there any impalpable factors attracting a lenient attitude to time limits that are generous. That alone is grounds for refusing an extension in this case. Debate could be had whether the Magistrate’s discretionary self-executing order was harsh or punitive, or whether it was justified. In this multifactorial case, I do not see the prospect of quashing it as so powerful as to outweigh the delay. Ms Nida was certainly not denied justice. She refused to pay the costs of the adjournment.
I propose to order first, that the application for an extension of time be disallowed. Secondly, I can see no reason why costs should not follow the event, so I propose ordering that the plaintiff pay the first defendant’s costs of the application on the standard basis. I should indicate I do not regard a costs order on the indemnity basis as being justified. Thirdly, I would order that the originating motion be dismissed as having been commenced outside the time limits of Order 56.
As this judgement is being published electronically, I will refrain from making and authenticating an order until 8 April next in case any party has any exceptions or improvements to the form of orders. If so, a written submission (not exceeding one page) should be lodged by e-mail with my Associate.
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