Nida v Bka Practice Co Pty Ltd (No 2)
[2020] VSC 770
•20 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 02232
| ROONA FAZAL NIDA | Plaintiff |
| v | |
| BKA PRACTICE CO PTY LTD | First Defendant |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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| JUDGE: | Ginnane J |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 May 2020 |
| DATE OF JUDGMENT: | 20 November 2020 |
| CASE MAY BE CITED AS: | Nida v BKA Practice Co Pty Ltd (No 2) |
| MEDIUM NEUTRAL CITATION: | [2020] VSC 770 |
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ADMINISTRATIVE LAW – Judicial review – Appeal from Associate Justice’s orders – Application for extension of time to commence proceeding – ‘Special circumstances’ – Whether ‘special circumstances’ existed – Explanation for delay -Whether Associate Justice failed to consider relevant matters – Whether Associate Justice reached an unreasonable conclusion – Whether Associate Justice failed to consider breaches of natural justice – Whether proceeding futile – Exercise of discretion – No error established – Appeal dismissed – Supreme Court (General Civil Procedure)Rules 2015, r 56.02.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms R Nida | NOH Legal |
For the Defendant | Mr J Searle | Belleli King & Associates |
HIS HONOUR:
Background and procedural history
On 21 May 2019, the plaintiff, Ms Roona Fazal Nida commenced this judicial review proceeding to have four interlocutory orders of the Magistrates’ Court of Victoria quashed. Her proceeding was considerably out of time. The orders were made on 9 May 2018, 15 June 2018, 4 September 2018 and 30 January 2019. They included a judgment against her in favour of the first defendant, BKA Practice Co Pty Ltd (‘BKA’), for $15,265.41 plus interest of $927.64 and costs of $6,489.09 made after her defence was struck out. An Associate Justice disallowed her application for an extension of time to commence the proceeding and dismissed the proceeding with costs.[1] This is an appeal from those orders.
[1]Nida v BKA Practice Co Pty Ltd [2020] VSC 158 (Mukhtar AsJ) (‘Judgment’).
The appeal is by rehearing pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).[2] Ordinarily, an error by the Associate Justice must be established in order for the appeal to succeed.[3]
[2]Supreme Court (General Civil Procedure) Rules 2015 r 77.01 (‘Rules’).
[3]See LexisNexis Butterworths, Civil Procedure: Victoria, [I 77.06.0]-[I 77.06.45] (Nov 2020); Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310, [30]; Hou v Westpac Banking Corporation [2014] VSC 606, [37].
The first defendant, BKA, a firm of solicitors, commenced the Magistrates’ Court proceeding against Ms Nida in September 2016 claiming a debt for $15,265.41 for services rendered to her as a client between December 2014 and June 2015, to enable the purchase of a franchise retail store to be operated by her son. The services were said to include: negotiating with the vendor; negotiating a new franchise with the franchisor; and, obtaining an assignment of the retail lease. BKA entered a default judgment in 2017, but it was set aside and the proceeding continued. The detail of the four orders in issue are as follows.
The first order of 9 May 2018
The order of 9 May 2018 adjourned the hearing before the Magistrates’ Court to 22 August 2018 to be heard by a different Magistrate and ordered Ms Nida to pay costs of $1,476.00 on or before 11 June 2018, failing which her defence was to be struck out. The order also stated:
In the event the hearing on 22/8/18 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.[4]
[4]Court Book, Nida v BKA Practice Co Pty Ltd (No 2) (Supreme Court of Victoria, S ECI 2019 02232, Ginnane J, 12 May 2020) 133 (‘CB’).
The second order of 15 June 2018
Ms Nida failed to pay the costs ordered by 11 June 2018, thus the self-executing order was enlivened. On 15 June 2018, the Magistrates’ Court made orders vacating the hearing date and adjourning the proceeding. Ms Nida’s defence was struck out.
Ms Nida, thereafter did not have a defence to the proceeding and BKA applied for a default judgment together with costs.
The order of 23 July 2018
The Magistrates’ Court order of 23 July 2018, which was not challenged in this proceeding, adjourned BKA’s application for a default judgment to a date to be fixed for a hearing described as ‘Mag Admin’ and stated under the heading ‘OTH order’:
1. Duplication of costs appear to still be contained in the application. Please provide further details of the cost items which were awarded on 8/8/17 and 11/5/18.
2. In light of paragraph 3 of the orders of 9/5/18, 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 states that she was never served with any such application as the order directed and did not file any material in opposition to it.
The third order of 4 September 2018
On 4 September 2018, on BKA’s application, the Magistrates’ Court entered a default judgment in its favour on the claim for $15,265.41 together with interest of $927.64 and costs of $6,489.09. That is the third order that Ms Nida seeks to quash. It was made 259 days before the application to this Court.[5]
[5]Judgment (n 1) [58].
The October 2018 hearing
Ms Nida stated that she became aware of the June, July and September orders on or about 1 October 2018 and then filed an application to set aside the default judgment contained in the September order and reinstate her defence. Her summons was brought under r 46A of the Magistrates’ Court General Civil Procedure Rules 2010 (‘Magistrates’ Court Rules’). The Associate Justice stated that ‘as there is no such procedural rule, I take it that Ms Nida was looking to r 46.08 to apply for a rehearing under s 110 of the Magistrates’ Court Act 1989’.[6] His Honour also stated:
I should add that according to Ms Nida’s second affidavit, 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.[7]
[6]Ibid.
[7]Ibid.
Ms Nida’s application to set aside the judgment was heard by the Magistrates’ Court on 9 October 2018. But it could not be granted under r 46.08 because Ms Nida was represented at the hearing on 9 May 2018. Ms Nida contended that the application before the Magistrates’ Court was to set aside and to amend the due date of the conditional costs orders and to reinstate the defence that was struck out.
The case was stood down so Ms Nida’s barrister could consider submissions made about the effect of the relevant rules. Ms Nida’s barrister became unwell and by the resumption of the hearing after lunch had left the Court. The matter was adjourned to 30 January 2019.
The fourth order of 30 January 2019
On 30 January 2019 the Magistrates’ Court gave Ms Nida leave to file an amended summons seeking orders under r 24.06 of the Magistrates’ Court Rules. Ms Nida appeared for herself and responded to the submissions that the rule did not permit the application. Thereafter, the Magistrate ordered that the amended summons be struck out and that Ms Nida pay BKA’s costs on an indemnity basis. This was because r 24.06 did not apply to the order of 9 May 2018 as it only applied to orders to strike out defences upon a failure to give particulars or give discovery or answers to interrogatories.
Supreme Court proceedings
Ms Nida commenced this proceeding on 21 May 2019 seeking judicial review remedies to quash the four orders. Her originating motion sought an extension of time stating that:
The plaintiff seeks and extension of time on the grounds that she has been unable to properly deal with the 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.[8]
[8]CB 45.
Order 56.02 of the Supreme Court (General Civil Procedure) Rules 2015
Pursuant to r 56.02(1) of the Rules, an application to this Court for judicial review:
… shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.[9]
[9]Rules (n 2) r 56.02(1) (emphasis added).
Rules 56.02(2) and (3) read:
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.[10]
[10]Ibid r 56.02(2)-(3).
Ms Nida’s grounds for the grant of the relief or remedy first arose on 9 May 2018 and her proceeding was commenced 377 days later, rather than within the 60 days prescribed by the rule. Her proceeding was commenced 111 days after the making of the fourth order.
The extension of time application was heard by an Associate Justice who, on 3 April 2020, disallowed it and dismissed the originating motion with costs.
Principles applying to r 56.02
The principles that govern the identification of special circumstances within r 56.02 generally require a consideration of the extent of the delay, the applicant’s explanation for it and whether the extension of time would be likely to serve any purpose or would be futile. The last point of ‘utility’ or ‘futility’ of granting an extension of time turns on an assessment of the merits of the applicant’s case.[11] The prejudice to parties as a result of the extension of time may also be considered. But showing an error by the Magistrate does not automatically establish special circumstances.[12]
[11]See Glass v The Chief Examiner (2015) 50 VR 577, 595-7 [71], [77]; Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 [57] (‘Mann’).
[12]Mann (n 11) [57].
Summary of the Associate Justice’s judgment
The Associate Justice delivered a detailed judgment. After considering the extensive affidavit evidence, he concluded that there were no special circumstances justifying an extension of time and that Ms Nida had not established an arguable case on the merits nor that it was in the interest of justice to grant the extension of time.
He considered the relevant authorities on the granting of an extension of time. His assessment of the overall strength of Ms Nida’s substantive case led him to the conclusion that its prospects of success were not sufficiently high to grant the extension of time.
In the course of reaching that conclusion, the Associate Justice made the following findings. After the Magistrates’ Court order was made on 9 May 2018, Ms Nida chose knowingly not to pursue judicial review in the Supreme Court, but attempted instead to undo the default judgment by two protracted, but legally incompetent, applications in the Magistrates’ Court.[13]
[13]Judgment (n 1) [7].
The Associate Justice referred to ‘mudslinging’ occurring in the proceedings before him, but said that he would not make any adverse findings of personal credibility of the principals in the dispute, but would evaluate their conduct and weigh up competing considerations having regard to the objective facts.[14]
[14]Ibid [18].
The Associate Justice considered that the existence of special circumstances justifying the grant of an extension of time would usually depend on the duration of the default, an explanation for it and consideration of any prejudice to the respondent beyond that inherent in the continued pursuit of the matter.[15] But, if the case of the party seeking an extension was unmeritorious then it would be futile to grant it.
[15]Ibid [12]. See also Lazarevic v Victoria Police [2014] VSC 497.
Next, the Associate Justice concluded that the Magistrate’s first order of 9 May 2018 was born of an awkward situation created by Ms Nida’s absence from Court that day, which was to be the first day of the trial, and her very weak grounds for an adjournment. He considered that the validity of the costs order and the self-executing costs order, but not the order to adjourn the trial, were attended with real doubt and susceptible to judicial review on procedural fairness grounds, because the Magistrate acknowledged that Ms Nida might consider that he was ostensibly biased towards her because of the circumstances of a previous case in which she had appeared before him. He said that the duration of Ms Nida’s delay was so great that it called for a cogent explanation in order to establish special circumstances within r 56.02. He described her explanation as lacking in conviction and one difficult for a practising lawyer to make out. Ms Nida is a barrister. Certiorari is a discretionary remedy and the question was whether the orders caused substantial injustice as they resulted from a predicament for which Ms Nida was responsible.[16]
[16]Ibid [19].
The Associate Justice said that he could not disregard the evidence about Ms Nida’s domestic situation, but doubted that Ms Nida’s personal problems caused the delay.[17] He accepted that, as a mother, Ms Nida was experiencing stress and sadness because of the illness of her son. But, he considered that her inaction and delay was ‘ostrich like’, she had put her head in the sand and that could not be described as a special circumstance.[18] She took misguided steps and made applications in the Magistrates’ Court that were not legally open.[19] The delay ran from 9 May 2018 because, in the words of r 56.02, the 60 day time limit commenced to run ‘after the date when grounds for the grant of the relief or remedy claim first arose’.[20]
[17]Ibid [86].
[18]Ibid [20].
[19]Ibid [21].
[20]Ibid [3].
The Associate Justice accepted ‘that the arc of justice naturally bends to cases being decided on the merits and not on procedural default’.[21] But he said that consideration of the strength of Ms Nida’s judicial review case also required him to consider the apparent strength of her defence to BKA’s claim for the unpaid fees. He considered that defence to be ‘dubious’.[22] There was no basis for Ms Nida to think that BKA would act for her for free and this was not a ‘no win-no fee’ matter. The highest that Ms Nida put her defence was that her ‘impression was that the Firm would act for free’.[23] He could not help think that because the business venture to be conducted by her son failed or did not start, Ms Nida might have thought that she ought to be relieved from paying the legal fees to set it up.[24]
[21]Ibid [22].
[22]Ibid [22].
[23]Ibid.
[24]Ibid [87].
The Associate Justice concluded that:
[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 sum of money, based on invoices rendered between December 2014 and June 2015 and a Complaint filed in September 2016.[25]
[25]Ibid [23].
In the final section of his judgment containing his ‘Conclusions’, the Associate Justice considered the strength of Ms Nida’s case. He noted that prerogative writs are discretionary remedies and may not necessarily be issued for jurisdictional error including a denial of procedural fairness. He regarded the Magistrate’s recusal on 9 May 2018 from hearing the complaint because of Ms Nida’s involvement as applying to the trial, but not to the adjournment application made that day. As well as adjourning the proceeding, he awarded costs of the adjournment to BKA and made the self-executing order. Ms Nida’s counsel did not request the Magistrate to immediately recuse himself. The Magistrate directed that if the matter was not ready to proceed on the next hearing date, the Court would consider whether or not it was appropriate to strike out the defence. The Associate Justice considered that the Magistrate refused Ms Nida’s adjournment application which she based on her medical certificates, but granted an adjournment so that the complaint would be heard by another Magistrate because he considered it likely that Ms Nida would think him biased against her because of a previous Court dealing with her.[26]
[26]Ibid [54].
The Associate Justice found that while what happened on 9 May 2018 was ‘very peculiar’, there was an argument that any Magistrate in the circumstances would have made a costs order against Ms Nida.[27] This was because:
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.[28]
[27]Ibid [87].
[28]Ibid [87].
If Ms Nida had 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. She delayed bringing the review proceeding 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. When her second step in the Magistrates’ Court was rejected as legally not competent, she did not commence this proceeding for almost five months and then only after her application to set aside BKA’s bankruptcy notice had been rejected and a creditor’s petition had been presented.[29]
[29]Ibid [84].
The Associate Justice concluded that Ms Nida had made a deliberate decision not to bring judicial review proceedings in this Court for jurisdictional error and to bring ‘alternative’ but doomed applications in the Magistrates’ Court.[30] She had fostered the intolerable delay.[31] None of what occurred constituted special circumstances.[32] He stated:
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.[33]
[30]Ibid [85].
[31]Ibid [84].
[32]Ibid [85].
[33]Ibid [89].
Ms Nida’s appeal from the Associate Justice’s decision
On 23 April 2020, Ms Nida filed a Notice of Appeal against the Associate Justice’s orders. It contained three grounds:
(a) The Associate Justice erred in law by failing or refusing to take into account relevant and important evidence available at the original hearing (‘the relevant considerations ground’);
(b) The Associate Justice erred in law by making a decision in the exercise of his discretion outside the range of reasonably possible outcomes (‘the unreasonableness ground’); and
(c) The Associate Justice erred in law by failing to make appropriate assessment of the procedural history of the proceedings in considering the cause of delays and estimating the time of delays (‘the procedural history ground’).
Some issues or facts were argued or relied on under more than one ground. But I will deal with the grounds in turn and then deal with the procedural fairness submission which could fit under all the grounds. However, although I will deal with the appeal by considering the grounds in that manner, focus must be principally fixed on the central question of whether the Associate Justice erred in deciding that Ms Nida had not established special circumstances within r 56.02.
Ground 1 – Failure or refusal to take into account relevant and important evidence
Ms Nida’s first ground of appeal was that the Associate Justice erred in law by failing or refusing to take into account relevant and important evidence available at the original hearing. He failed or refused to adequately consider her case and relied too heavily on BKA’s submissions and evidence, which sought to paint her in a negative light. Ms Nida contended that the Associate Justice did not properly consider her defence, in particular that she had a challenge to the Costs Agreement. Ms Nida said that her delay in attending to procedural matters in the Magistrates’ Court and in this Court were caused by her son’s health which required much of her time and focus.
In response BKA submitted that Ms Nida had provided no tenable example of the Associate Justice failing to take into account relevant information. Ms Nida had the time and capacity to take on highly demanding challenges, including standing as a candidate in the Victorian State Election. While she described her candidacy as altruistic and undertaken only after being approached by members of her community, it was a significant undertaking at a time relevant to her delay in commencing this proceeding. The Associate Justice was entitled to place weight on it.
Ms Nida also submitted that BKA failed to act in accordance with the overarching obligations contained in the Civil Procedure Act 2010, namely the duty to cooperate, a matter that the Associate Justice failed to take into account. The specific examples she gave of the failure to cooperate were a refusal to consent to the reinstatement of her defence; the issuing of bankruptcy notices against her in unfair circumstances; the filing of interlocutory orders; and, breaching the rules of service.
Save for the last matter if it had been proved to have occurred, the examples that Ms Nida provided are of steps that BKA was entitled to take to enforce its legal rights. In addition, the issues she raised of invalid service of court documents are not of real legal significance because she filed a defence and defended the proceeding.
Ms Nida further submitted that the Associate Justice failed to consider adequately matters other than the comparatively small amount of money involved in her dispute with BKA. He had not considered her personal circumstances.
But, in my opinion, the Associate Justice’s reasons make clear that he considered Ms Nida’s personal circumstances. For example, at paragraph 10 of his judgment, the Associate Justice recognised Ms Nida’s case was that the interest of justice outweighed any prejudice in allowing the orders to stand. In paragraph 20, he acknowledged the significance of the impact of her son’s health. In paragraph 22 he considered the Costs Agreement issue and at paragraph 70 he set out her contention that ‘she had 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’. Paragraphs 73 to 79 of the judgment contain extensive discussion and analysis of the effect of Ms Nida’s personal circumstances. Paragraph 86 states ‘I cannot disregard the evidence about her domestic situation. But I doubt that her personal problems did truly cause the delay’.[34]
[34]Ibid [86].
There was no error in the Associate Justice’s approach; he noted Ms Nida’s situation, but did not consider it enough to constitute a ‘special circumstance’ required to permit the filing of an application for judicial review out of time.
Ms Nida also criticised the Associate Justice’s comments about her provision of an unofficial transcript of the Magistrates’ Court proceeding. The Judicial Registrar, in dealing with Ms Nida’s proceeding in this Court, had made the usual direction for her to provide a transcript of Magistrates’ Court proceeding. The Associate Justice set out the recitals contained in the Judicial Registrar’s order of 10 July 2019, including that Ms Nida had not filed the transcript of the Magistrates’ Court hearing of 9 May 2018. The Judicial Registrar ordered that the extension of time be heard first of all and that Ms Nida swear and file an affidavit that exhibited a true and ‘official’ transcript, failing which the originating motion would be dismissed.[35] He said:
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 as self-executing order requiring Ms Nida to swear and file an affidavit that established a true and ‘official’ transcript by a certain day, failing which the originating motion would be dismissed.[36]
[35]Ibid [81]-[82].
[36]Ibid [82].
In my opinion, the Associate Justice’s treatment of the transcript issue was reasonable and involved no error.
Ms Nida also sought to challenge the Associate Justice’s conclusions about the medical reports[37] from her family doctor which were the basis for her adjournment application on 9 May 2018. The appropriateness of the weight that the Magistrate gave to the reports was for the Associate Justice to assess. In any event, the proceeding was adjourned on that day for other reasons, so the Associate Justice’s comments about the medical reports were not central to his decision.
[37]CB 163, 167.
Nor was the Associate Justice under any obligation to seek further medical reports. He was not required to pursue further inquiry because ‘there was nothing on the record to indicate that any further inquiry by the Tribunal … could have yielded a useful result’.[38] Ms Nida needed to seek further reports if she wanted to rely on them.[39] But as it happened an adjournment was granted. She foreshadowed seeking orders about the provision of further medical reports during the hearing of this application, but that was not pursued and in any event was not appropriate in an appeal hearing.
[38]Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429, 436 [26].
[39]Fraser v Minister for Immigration and Border Protection (2015) 145 ALD 337, [17]-[18].
Ms Nida argued that special circumstances existed because her delay in commencing this proceeding was due to her exploring alternatives. She was facing bankruptcy proceedings. But, the avenues she pursued were incompetent in the legal sense, and, even so, following her applications in the Magistrates’ Court, she commenced proceedings in this Court 111 days later, being the period from 30 January 2019 to 21 May 2019, taking the favourable view, that she advanced, that the last of the four orders was the date when the 60 days commenced to run. There was no satisfactory explanation for the 51 days delay after the expiry of the prescribed 60 days.
As part of ground one, Ms Nida submitted that the Associate Justice erred in dismissing her bias arguments by saying that any Magistrate, free of the past experience of the Plaintiff’s conduct in Court, might well have made the same orders as the Magistrate did on 9 May 2018. I will consider the procedural fairness arguments separately and later in this judgment.
Conclusions on ground one
Rule 56.02 permitted the Associate Justice to consider all relevant matters. The weight to be given to evidence was for the Associate Justice to decide, provided it was relevant to the issues in dispute. The principal issues were whether Ms Nida had an adequate explanation for the significant delay and the strength of her defence to BKA’s claim and thus whether it would be futile to grant an extension of time. In my opinion, the Associate Justice considered Ms Nida’s case in detail, and focused on the key issues of the reasons for delay and the strength of her case.
The Associate Justice was entitled to take into account other activities undertaken by Ms Nida during the period of delay. The fact that Ms Nida was a barrister was relevant, because although she did not practise in civil cases, all areas of the law have time limits that have to be observed.
The overarching obligation to cooperate contained in the Civil Procedure Act2010 did not prevent BKA exercising its rights when Ms Nida did not pay the costs ordered on 9 May until 22 November 2018.
The issue of service of the complaint ceased to be relevant once Ms Nida filed a defence in the proceeding.
Ground one is not established.
Ground 2 – Unreasonableness
Ms Nida’s second ground of appeal was that the Associate Justice’s decision was outside the range of reasonably possible outcomes. She submitted that he gave unreasonable weight to BKA’s submissions and failed to engage appropriately with her response. An appeal ground of unreasonableness can be described as Wednesbury unreasonableness or legal unreasonableness. But Ms Nida’s disagreement with the Associate Justice’s conclusions does not establish that his decision was legally unreasonable.[40]
[40]CZG v Victims of Crime Assistance Tribunal [2020] VSCA 120 [74] (‘CZG v VOCAT’).
Ms Nida contended that the Associate Justice took into account irrelevant considerations including unfairly characterising her because of her profession as a barrister. She was represented by three practitioners and was unjustly criticised for her conduct as a barrister. She did not practise in civil law and had engaged lawyers to represent her. But his Honour’s description of her profession was accurate and did not suggest that she had not properly instructed lawyers.[41] Barristers, whatever their areas of practice, are familiar with the importance of observing procedural time limits. The importance of observing those time limits was an important consideration in assessing Ms Nida’s application for an extension of time.
[41]Judgment (n 1) [26].
The ground of irrelevant considerations can only succeed if a matter that was taken into account was expressly or impliedly prohibited by the legislation[42] and that is not the case here, as r 56.02 contains no such prohibition. Rather, it contains a broad discretion or power to decide whether ‘special circumstances’ exist. I am not persuaded that the Associate Justice took into account any irrelevant considerations.
[42]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.
Ms Nida submitted that the Associate Justice incorrectly stated that she had not paid the costs that the Magistrates’ Court ordered her to pay on 9 May 2018, whereas she had paid them on 22 November 2018. But when considering the hearing on 9 October 2018 the Associate Justice stated:
I should add that according to Ms Nida’s second affidavit, 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.[43]
[43]Judgment (n 1) [60].
While his Honour’s last sentence may not be entirely clear, the Magistrates’ Court order of 9 May 2018 required the costs to be paid by 11 June 2018 and Ms Nida paid them at the earliest on 22 November 2018 in breach of the first order. That was also a significant time after she learned that her defence had been struck out and that BKA had entered a default judgment against her.
Ms Nida contended that his Honour erred in placing weight on the fact that she had time to commence a practice called ‘United Chambers’, whereas that occurred only in October 2018. But in referring to that event, his Honour was setting out BKA’s submission. Ms Nida had run for Parliament in November 2018 as a result of being approached by members of her community. But she pointed out that the fact that she continued to attend Magistrates’ Court hearings showed that, despite her personal problems, she had made every effort to have her defence heard.
Ms Nida referred to what she described as BKA’s tactical use of voluminous applications to overwhelm her. Bankruptcy proceedings had been commenced against her. I do not consider that she established any material error by the Associate Justice in considering that submission. His Honour undertook a broad consideration of the reasons for Ms Nida’s delay.
BKA submitted that the Associate Justice’s findings and conclusions did not fail the test of unreasonableness and were not lacking an intelligible justification and referred to the High Court’s consideration of that test in Minister for Immigration v Li[44] and Minister for Immigration and Border Protection v SZVFW.[45] His Honour had identified the appropriate rules, legal tests and authorities and made findings by applying a thorough, rational and intelligent analysis.
[44](2013) 249 CLR 332.
[45](2018) 264 CLR 541.
Next, Ms Nida submitted that the Associate Justice made a number of errors of fact. He erred as to the business that was conducted and as to the person conducting the business. His Honour also erred in concluding that the application to this Court was only made after matters were dealt within the Federal Circuit Court.
Conclusions on ground two
The ground of judicial review based on unreasonableness was described in Australian Broadcasting Tribunal v Bond:
[I]n the context of judicial review, it has been accepted that the making of findings and the drawing of inferences in the absence of evidence is an error of law … want of logic is not synonymous with error of law. So long as there is some basis for an inference—in other words, the particular inference is reasonably open—even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.[46]
[46](1990) 170 CLR 321, 355-6 (Mason CJ) (citations omitted) (emphasis in original).
The Court of Appeal recently considered the extent to which a court can intervene to remedy unreasonableness in the judgment of CZG v Victims of Crime Tribunal,[47] stating that:
Finally, we turn to CZG’s submission that the decision itself was legally unreasonable. As noted earlier, for this submission to succeed it would be necessary for CZG to show that the decision lacked ‘an evident and intelligible justification’ or that it fell outside the ‘area of decisional freedom’ which the Act conferred on the decision-maker. It will be apparent from what we have already set out from the Tribunal’s reasons that the justification for the decision was both evident and intelligible and that, moreover, the decision to refuse the application fell well within the scope of the Tribunal’s discretionary judgment.
We conclude our consideration of the unreasonableness ground by emphasising that an appeal on a question of law — as the present appeal was — is not an occasion for a review of the merits of the decision under challenge. While the unreasonableness ground necessarily invites — and requires — attention to all of the facts and circumstances as they presented themselves to the decision-maker, it must be constantly borne in mind that the test of unreasonableness is ‘necessarily stringent’.
The task committed to VOCAT — and on review to the Tribunal — is an evaluative one, requiring the weighing and balancing of considerations which allow of no precise quantification. As is characteristic of discretionary decisions, these are matters about which reasonable minds can differ. That is the ‘area of decisional freedom’, within which a decision-maker has a genuinely free discretion. Any decision or outcome within that area is within the bounds of legal reasonableness. The court of judicial review will be understandably slow to conclude that a decision arrived at — as the present decision was — by applying the correct legal principles and involving a careful consideration of the evidence was nevertheless outside the range of decisions reasonably open.[48]
[47]CZG v VOCAT (n 40). See also Hoser v Department of Sustainability and Environment [2014] VSCA 206 [29].
[48]Ibid [72]-[75].
The Associate Justice correctly identified that Ms Nida had to establish ‘special circumstances’ in order to obtain an extension of time to commence proceedings.[49] In my opinion, he referred to the relevant facts and circumstances surrounding her delay in commencing this proceeding.[50] His reasons contained a logical path and could not be described as unreasonable in the legal sense. While Ms Nida disagreed with his conclusions, her submissions did not identify an error that justified allowing the appeal. The Associate Justice was exercising a discretion when faced with a range of evidence. It was a matter for him to determine what weight he gave to particular issues and evidence and whether, considered collectively, they established special circumstances. His conclusion that they did not cannot be said to be unreasonable.
[49]Judgment (n 1) [12]-[17].
[50]Ibid [25]-[60].
Many of Ms Nida’s examples of unreasonableness were in essence differences between her view of the probative value of particular facts and the Associate Justice’s assessment. Ms Nida also argued that the Associate Justice erred in his assessment of the evidence, for instance, that she tore up the documents that the defendant served on her.[51] But, that was a matter for him to assess and as Ms Nida did file a defence to the proceeding issues of service of the complaint ceased to be a critical feature of the case.
[51]CB 334.
Ms Nida pointed to what she said were errors of fact, but they were not matters that established that his decision lacked an evident and intelligible justification or was outside the area of decisional freedom.
Ground two is not established.
Ground 3 – Procedural history
Ms Nida’s third ground of appeal is that the Associate Justice failed to make an appropriate assessment of the procedural history of the proceedings when considering the causes of delays and estimating the time of delays. She detailed the events leading up to BKA’s first default judgment obtained on 8 February 2017, which was later set aside. She explained that the Queen’s Counsel from whom she wished to seek advice was overseas when she initially sought advice and that after orders were made on 23 July 2018, she wrote to the Magistrates’ Court on 27 July noting that she would seek legal advice from senior counsel in deciding the most appropriate way to reinstate her defence. Her solicitor was ill during some of early 2019. The history also included that the Magistrate’s apprehended bias against her and also BKA’s bankruptcy proceedings against her in the Federal Circuit Court, which had commenced on 25 September 2018. She wrote to BKA asking it to withhold the bankruptcy proceedings. She had faced a barrage of litigation processes.[52] BKA had alleged much about her past conduct and character, yet she had not been given a chance to address those issues or to have BKA’s evidence properly tested.[53]
[52]Judgment (n 1) [186].
[53]Ibid [185].
Ms Nida relied on authorities that a litigant should not be prevented from pursuing their claim because of an inability to pay costs. For example, in Rozenblitz v Vainer,[54] the High Court held that a stay of a proceedings order should not have been ordered simply to give effect to an interlocutory costs order that was taxable immediately.
[54](2018) 262 CLR 478.
Ms Nida’s submission was that she had been unable to properly deal with the claims raised by her Supreme Court proceeding at any earlier time. As previously noted, she was a single parent to two sons, one of whom in recent years has suffered from an illness and she has devoted and spent much of her time to his care. Since he has become a little better, she has been able to attend to the matters raised by her proceeding.
Ms Nida explained that she filed applications in the Magistrates’ Court seeking reinstatement of her defence because of the higher costs of Supreme Court proceedings.[55]
[55]CB 125.
BKA submitted that the Associate Justice’s decision not to extend time was not outside the range of reasonably possible outcomes. He did consider the history of the proceeding.[56] Ms Nida, who is a barrister, was 317 days late in making an application having brought applications in the Magistrates’ Court in the meantime and having said that she was incapable by reason of other matters of dealing with this matter.
[56]BKA referred to Judgment (n 1) [7], [20], [83]-[85].
The procedural history of the matter prior to 9 May 2018 was not relevant. Matters such as the service of the complaint and incorrect addresses allegedly used to serve documents had nothing to do with Ms Nida’s failure to bring proceedings to challenge the Magistrates’ Court orders.
The fact that the Queen’s Counsel was unavailable to provide advice was immaterial, as other senior counsel could have done so. So far as the bankruptcy proceedings were concerned, the Associate Justice noted that ‘[t]he hearing of the [creditor’s] petition has been adjourned pending on the outcome of this application’[57] which was consistent with Ms Nida’s position.
[57]Ibid [5].
Conclusion on ground three
Ms Nida had to persuade the Associate Justice that there were special circumstances justifying a very substantial extension of time in which to commence her Supreme Court proceeding. Ms Nida has to persuade me in this appeal that the Associate Justice erred in the exercise of the discretion conferred on him by r 56.02.
The Associate Justice decided that an extension of time was not justified for a range of reasons, which demonstrated that he considered the procedural history of the dispute between Ms Nida and BKA. These included the length of the delay in commencing this proceeding and her bringing unsuccessful applications in the Magistrates’ Court. In a sense this proceeding was commenced as a last resort. The Associate Justice also considered Ms Nida’s actions during the months of the delay, including standing for Parliament. That event was surely relevant to determining whether special circumstances existed, as Ms Nida’s case was that her personal circumstances had contributed to her delay in commencing this proceeding. He did take into account Ms Nida’s personal circumstances and her family responsibilities. All these matters were for him to assess and balance. I am not persuaded that there was any error in his approach to the exercise of the discretion conferred by r 56.02.
The dispute between Ms Nida and BKA has a long procedural history dating back well before 8 May 2018. However, it was only from that date that events of particular relevance occurred and the Associate Justice focused on that period.
Ms Nida made a number of submissions about parts of the Associate Justice’s decision, including that he had erred in some findings of fact. However, none of those matters was material to the real issues in the case, namely the explanation for the delay and whether an extension of time would serve any real purpose.
Ground three is not established.
Issue of apprehended bias and compliance with the order of 23 July 2018
I will finally consider whether the Magistrate or the Magistrates’ Court breached the rules of procedural fairness in making the orders on 9 May 2018, and by any non-observance of the order of 23 July 2018, and if so, what consequences the Associate Justice should have attached to any such breaches. As mentioned I consider these issues at this point because they are overarching issues and are relevant to all Ms Nida’s three grounds of appeal.
To recap relevant events, on 9 May 2018, the Magistrate decided that he should not hear BKA’s complaint because of previous dealings with Ms Nida in an earlier case. Ms Nida was not present so as to be able to instruct her counsel whether she objected to the Magistrate hearing the application. But he acted out of caution.
Still, the Magistrate had to make some order on 9 May 2018. Ms Nida’s adjournment application was opposed by BKA, but the Magistrate granted it, mainly it seems because he did not think it appropriate that he hear the whole proceeding. But in circumstances where Ms Nida had sought an adjournment and it was granted, whatever the reason may have been, an order that she pay the costs of the adjournment cannot, in my opinion, be reasonably challenged.
Ms Nida submitted that as there was a reasonable apprehension of bias by the Magistrate, and therefore he should not have made any order other than adjourning the hearing and reserving costs. His orders had led to the later orders that she also challenged. Ms Nida’s case, as summarised by the Associate Justice was:
[T]he 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.[58]
[58]Ibid [8].
BKA submitted that the Magistrate had found that there was no actual bias but that Ms Nida may have had concerns with him hearing the matter. However, she was not present, her counsel did not ask the Magistrate to disqualify himself and Ms Nida’s consent to him hearing the matter could not be determined. The Magistrate had not erred by awarding costs of the adjournment because it would have been difficult for a later Magistrate to properly determine them. Ms Nida knew that she was applying for an adjournment which was opposed and engaged counsel to represent her. She must have, or should have, known that she would have to pay the costs of the adjournment.
The Associate Justice stated that:
[T]he 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.
…
Being a barrister and surely knowing of the consequences, Ms Nida chose not to pay the costs as ordered. … 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’.[59]
[59]Ibid [54], [57] (emphasis added).
The Associate Justice concluded that:
If it was thought that the Magistrate’s decision was … 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.[60]
[60]Ibid [84]-[85] (emphasis added).
The Associate Justice examined in detail the hearing of 9 May 2018 and considered whether the Magistrate’s actions had denied Ms Nida procedural fairness. If they had, that would have been relevant in establishing that her defence to BKA’s claim was not futile and her application for an extension of time would thereby have been strengthened.
The Associate Justice’s conclusion does not involve an error. Ms Nida did not take any action within a reasonable time to challenge the Magistrate’s decision on the basis of any apprehended bias, but instead did not pay the costs order by the date ordered and then pursued applications in the Magistrates’ Court to vary the order or to seek a rehearing. In any event, Ms Nida sought an adjournment of the hearing fixed for 9 May 2018 on the grounds of her ill health. An adjournment was ordered but for different reasons. It was open to the Magistrate to decide that Ms Nida should pay the costs of the adjournment and the self-executing order was incidental to the costs order. Those factors point away from the existence of a ‘special circumstance’ within the intention of r 56.02. The protection afforded by the rule against bias can be waived when a party fails to raise the apprehended bias in a timely manner.[61] Ms Nida was aware of the grounds of an apprehended bias application after the first order was made on 9 May 2018 because she was represented that day, but failed to do anything about it.
[61]See, eg, Vakauta v Kelly (1989) 167 CLR 568.
The order of 23 July 2018
The order of 9 May 2018 led to the subsequent orders. Ms Nida’s case is that the requirements of the Registrar’s orders of 23 July were not observed and she was not given notice of the hearing on 4 September when costs orders were finalised. However, when she became aware of those orders by 1 October 2018, she made applications in the Magistrates’ Court to seek a re-hearing and ultimately to amend them. Much later she commended proceedings in this Court. The unsuccessful applications made in the Magistrates’ Court were commenced in October 2018 and were determined on 30 January 2019. If Ms Nida had wished to pursue a claim challenging the orders of 9 May 2018, or the fact that she did not receive notice of the orders made on 23 July 2018, on the grounds of the denial of procedural fairness, she should have promptly commenced a judicial review proceeding in the Supreme Court, something she ultimately did pursue, but not until 21 May 2019.
In those circumstances I am not persuaded that even if there were an explanation for the delay in commencing the Supreme Court proceedings that there would be any point in pursuing them on the ground of a denial of procedural fairness. Ms Nida had waived her rights on that issue by continuing with her applications in the Magistrates’ Court.[62]
[62]Smits v Roach (2006) 227 CLR 423, 439-440 (Gleeson CJ, Heydon and Crennan JJ); Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427, 449 (Gummow ACJ, Hayne, Crennan and Bell JJ).
Neither of Ms Nida’s procedural fairness arguments provides support for her case that special circumstances existed justifying an extension of time.
Conclusion
Ms Nida has not established any error in the Associate Justice’s orders or reasons. The appeal must be dismissed.
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