Nugawela v Australian Health Practitioner Agency
[2023] WASCA 37
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NUGAWELA -v- AUSTRALIAN HEALTH PRACTITIONER AGENCY [2023] WASCA 37
CORAM: MURPHY JA
MITCHELL JA
HEARD: 24 FEBRUARY 2023
DELIVERED : 24 FEBRUARY 2023
PUBLISHED : 24 FEBRUARY 2023
FILE NO/S: CACV 70 of 2022
BETWEEN: PATRICK NUGAWELA
Appellant
AND
AUSTRALIAN HEALTH PRACTITIONER AGENCY
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: PRITCHARD J
File Number : VR 50 OF 2020
Catchwords:
Practice and procedure - Appeal - Decision by registrar to reject document purporting to be an appellant's case for filing - Consequent operation of springing order - Where appellant sought review of registrar's decision to reject document for filing - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 2 div 4 r 10(1), pt 2 div 5 r 15(1A), r 16, pt 5 div 2 r 32
Result:
Application dismissed
Appeal stands dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | J Millar |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Clayton Utz |
Case(s) referred to in decision(s):
Avsar v Binning [2009] WASCA 219
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
REASONS OF THE COURT:
Introduction
On 24 February 2023, we heard the appellant's application, filed 21 December 2022, for a review of Registrar Gilich's decision dated 15 December 2022. On 15 December 2022, the learned registrar issued a certificate of conclusion of civil appeal that stated:
The appellant having failed to comply with the order of Murphy and Mitchell JJA made on 25 November 2022, the appeal stands dismissed.
The learned registrar's decision was made pursuant to the appellant's failure to file and serve an appellant's case by 4.00 pm on 9 December 2022 in the context of a springing order made by this court on 25 November 2022, which provided for the appeal to be dismissed if the appellant failed to file and serve an appellant's case by that time.
The appeal itself is against orders made by the State Administrative Tribunal (Tribunal) in proceedings VR 50 of 2020 (VR 50) on 30 June 2020. VR 50 were proceedings commenced by the appellant. The appeal itself challenges an order, moved for by the appellant in the Tribunal, to the effect that he be given leave to withdraw proceedings VR 50, and that those proceedings be thereby withdrawn. The notice of appeal was filed on 3 August 2022, over two years out of time.
The burden of the appellant's application filed 21 December 2022 is that the registrar wrongly rejected for filing a document purporting to be an appellant's case, sent to the Court of Appeal office on 9 December 2022.
On 24 February 2023, we dismissed the appellant's application filed 21 December 2022 and said we would provide written reasons. These are our reasons.
Background
Part 2 r 10(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) provides that a registrar may refuse to accept for filing any document that is required or permitted by the Rules, or an order made under the Rules, if it does not obey the Rules or any order made under the Rules.
The registrar's letter dated 15 December 2022
In a letter dated 15 December 2022, the registrar provided the following reasons for rejecting the appellant's case:[1]
[1] In what follows, the numbering is ours and is provided for ease of reference.
1.There is no provision in the [Rules] to lodge, as part of the appellant's case, a combined appellant's submissions and grounds of appeal document. Separate documents titled 'Appellant's grounds of appeal' and 'Appellant's submissions' must be lodged (see subrules 32(b)(i) and (ii) as well as subrules 32(4) and 32(5) of the [Rules]).
2.Appeal grounds 2, 6, 7 and 8 do not state whether the alleged error is an error of fact, an error of law or an error of mixed fact and law (see subrule 32(4)(c) of the [Rules]).
3.Appeal grounds 1 to 6 and 8 do not identify an error that relates to the order made by President Pritchard on 30 June 2020, which is the subject of the appeal. In addition, the 'particulars' relating to these grounds of appeal as well as to appeal ground 7 are in the nature of submissions rather than particulars. Any particulars of an error alleged to have been made in a ground of appeal must reference the page or paragraph of the reasons for decision/transcript dated 30 June 2022 (see subrule 32(4)(d) of the [Rules]).
4.Appeal ground 1 alleges an error of law and fact and must therefore be accompanied by a schedule in compliance with Practice Direction 7.4. The schedule must refer to each finding of fact that is challenged (identified by reference to a paragraph of the reasons for decision/transcript dated 30 June 2022) and, for each finding of fact, provide in a separate column a summary of each piece of the evidence before President Pritchard that supports the finding and the source of that evidence, and, in a further column, a summary of each piece of the evidence that is against the finding and the source of that evidence. The schedule must also be accompanied by a signed certificate of compliance with the Practice Direction.
5.The type size of the combined appellant's submissions and grounds of appeal document as well as the type size of the appellant's authorities document, the chronology and the draft appeal book indexes must be at least 12-point Times New Roman type size (see subrule 21(1A) of the [Rules]).
6.The document titled 'Appellant's legal authorities' must mark, with an asterisk, any legal authority from which it is intended to read any text to the Court of Appeal at the hearing. Alternatively, it should be stated at the end of this document that it is not intended to read any text from any authorities at the hearing of the appeal (see subrule 32(6) of the [Rules]).
The appellant's application
In his application filed 21 December 2022, the appellant raises 11 grounds of review, as follows:
1.The decision of JJ Murphy and Mitchell on 29 November 2022 dismissed the appeal for CACV102/2021 and allowed the appeal for CACV70/2022 based on the Grounds of Appeal provided to the Court. The appeal documents were submitted on time on 9 December 2022 in compliance to avoid the springing order.
2.It was only a week later, on 15 December 2022, that the acting Court of Appeal Registrar advised the filing was not accepted due to non-compliance with the [Rules]. Earlier advice may have enabled immediate correction of any substantiated errors.
3.Upon request, the reasons provided by the acting Court of Appeal Registrar contained several technical and substantive errors of its own in contradiction to and inconsistent with the requirements of the [Rules]. Additionally, there is a reference to subrules 32(b)(i) and (ii) which does not exist.
4.The acting Court of Appeal Registrar states that Appeal Grounds 2,6, 7 and 8 does not comply with sub-rule 32(4)(c). A closer look at the Grounds clearly stipulates the failure to exercise power under the stated relevant sections of the [State Administrative Tribunal Act 2004 (WA)] and a lack of procedural fairness supported by case law. These are obvious errors of the stated law consistent with the intent of sub-rule34(4)(c).
5.The acting Court of Appeal Registrar states the 'Appeal grounds 1 to 6 and 8 do not identify an error that relates to the order made by President Pritchard on 30 June 2020, which is the subject of the appeal'. The error that relates to the dismissal order made includes several failures to exercise jurisdiction in the making of the order.
6.The acting Court of Appeal Registrar states 'the particulars' relating to ... ground 7 are in the nature of submissions appeal ... and must reference the page or paragraph of the reasons for decision/transcript'. The specific particulars in support of procedural fairness are properly referenced in paragraphs (g) and (h) of ground 7.
7.Of the 5 sub-sections in sub-rule 32(6), sub-rule 32(6)(b) requires must mark with an asterisk any legal authority from which it is intended to read any text to the Court of Appeal at the hearing. In the absence of any asterisk, the acting Court of Appeal Registrar incorrectly requires that 'it should be stated at the end of this document that it is not intended to read any text from any authorities at the hearing of the appeal'. Sub-rule 32(6) does not specify this.
8.The correct 12-point type size in 'Calibri' was selected and it is contended that it satisfies the condition in Rule 21 (1)(A) that it is at least the size of type used for these rules (12-point Times New Roman). The rule relates to the size of the type and does not command the use of the font type. Nonetheless, this could have easily been adjusted.
9.The Appellant is a self-represented medical practitioner and does not have resources for legal assistance or representation due to insolvency. The acting Court of Appeal Registrar did not issue a notice to attend for the appellant to show cause for or clarify failure to comply with the Rules and the extent of that failure based on the Grounds of Appeal already reviewed by JJ Murphy and Mitchell.
10.The acting Court of Appeal Registrar has provided documentation of the noncompliance with the [Rules] but did not provide the appellant with opportunity to submit an amended or substituted appeal.
11.There is a real or significant argument to be put in support of the grounds, and that, should the error go uncorrected, it would impose substantial injustice on the Appellant without corresponding prejudice to the Respondent. (original emphasis)
In the 'Orders wanted' in the application, the appellant seeks an order for '[a]cceptance of filing of amended Appellant's case'.
In support of the application, the appellant has provided an affidavit sworn 22 December 2022, which he seeks to file, with leave of this court. Amongst other things, the appellant deposed:
24.The Appellant's case was duly filed on time but again rejected outright by the acting Court of Appeal Registrar, rather than proceed towards trial preparation with case management to direct specifics for correction of the unintended technical errors and to respect strict compliance with Rule 32 of the [Rules].
25.The Appellant is self represented and in full respect of the need to comply with the [Rules]. The Appellant has made the necessary grammatical and formatting adjustments to reflect compliance so that this Court may allow an amended or substituted Appellant's case to be forthwith accepted by this Court for filing.
26.The Appellant has for more than two years invested time, energy and resources to pursue the substantive issues of national relevance, seeking to redress the breaches of law and novel interpretation of existing legislation, for justice to be done and be seen to be done.
27.The triumph of form over substance, curable at case management level, does not serve the cause of justice, particularly when exceptional circumstances of the case have national significance.
28.The appeal preparation is further complicated by the absence of a trial of facts and evidence, documents, disposal at interlocutory stage where address of causes of action remain outstanding. (footnotes omitted)
Disposition
By pt 2 r 15(1A) of the Rules, a party dissatisfied with a 'reviewable decision', including, relevantly for present purposes, a decision by a registrar not to accept a document for filing, may apply to a single judge to set aside or vary it. The judge, or the court,[2] in reviewing the decision must 'consider afresh the matter that was decided' by the registrar: pt 2 r 16 of the Rules.
[2] Part 2 r 5A of the Rules.
In Avsar v Binning,[3] the Court of Appeal observed:
While, by virtue of the [Rules], an appeal to this court is by way of rehearing, the task of the court is nonetheless to discern error. The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene. An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that she or he seeks. This explains why the grounds of appeal are a critical part of the process because they are the vehicle which guide the review process. The failure of parties properly to attend to grounds of appeal is by no means limited to self-represented litigants. In this regard it is as well to bear in mind what Kirby J said in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106 [58]:
'The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime, a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is 'filed' has no authority to determine any issue affecting the parties. (authorities omitted)'
[3] Avsar v Binning [2009] WASCA 219 [37].
We have examined the document purporting to be an appellant's case provided to the court on 9 December 2022. Making due allowance for the appellant's position as a self‑represented litigant,[4] we are satisfied that it is not an appellant's case in accordance with r 32(4), (4A), (5), (6) and (9) and r 38(2) ‑ (4A) of the Rules. Moreover, the nature of the document is such that it is not one that could sensibly be used by either the court or the respondent to determine an appeal against the orders for leave to withdraw VR 50 made on 30 June 2020.
[4] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
In relation to the specific complaints raised by the appellant:
1.There was no appellant's case successfully filed in accordance with the springing order.
2.The springing order required an appellant's case to be filed and served on or before 4.00 pm 9 December 2022. That deadline was accepted by the appellant as more than enough time to file an appellant's case.[5] The appellant left it until the last day to file the document, with the consequence that if it were rejected for filing, the springing order would spring.
[5] Directions hearing, 25 November 2022, ts 13 - 14.
3.The reasons provided by the registrar were correct in substance. In context, the registrar was referring to r 32(3)(b)(i) and (ii).
4.Making due allowance for the appellant's position as a self‑represented litigant, the registrar's second reason correctly described the terms of grounds 2, 6, 7 and 8. Insofar as ground 7 impliedly alleged error of law, particulars to the ground appeared to raise questions of fact, including whether the appellant was allegedly 'misled'.
5.Grounds 1 ‑ 6 and 8 do not, on their face, impugn the Tribunal's decision to grant leave to the appellant to withdraw the proceedings in VR 50.
6.The overwhelming majority of the 'particulars' to grounds 1 ‑ 8 are a blend of submissions and allegations. Further, whilst it is doubtful that an appeal could lie with respect to an error of fact in these circumstances,[6] the appellant does not dispute the correctness of the registrar's fourth reason in relation to ground 1.
[6] Section 105(2) and (13) of the State Administrative Tribunal Act 2004 (WA).
7.The complaint lacks substance. Whilst the appellant is correct in saying that r 32(6) does not require him to include a statement to the effect that no authorities will be read from, such a requirement stems from Practice Direction 2.1. Having said that, it is acknowledged that, on its own, this would not necessarily preclude the acceptance of the document for filing.
8.Aspects of the document are not of the requisite size, although, again, it may be accepted that if this were the only deficiency, it might not, on its own, justify the refusal of the document for filing.
9, 10
& 11.
There was no obligation on the part of the registrar to give any further opportunity to attend to show cause why the document should be accepted for filing. That is particularly so where there have been delays in the prosecution of the appeal, a springing order had been made and, moreover, where the appeal itself was commenced over two years out of time. The springing order operated according to its terms once the appellant had failed to file and serve an appellant's case in accordance with the terms of the order. The occasion for the appellant to challenge the registrar's decision was by way of review under r 15 - which the appellant has now done.
Considering the matter afresh, and looking at it as a matter of substance, the appellant's document purporting to be an appellant's case was correctly rejected for filing.
Orders
For these reasons, on 24 February 2023, we ordered that:
1.The appellant's application filed 21 December 2022 is dismissed.
2.The appeal in CACV 70 of 2022 stands dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AR
Associate to the Honourable Justice Murphy
24 FEBRUARY 2023
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