Partington v Pacific Link Housing Ltd - [2013] NSWCA 259

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Partington v Pacific Link Housing Ltd [2013] NSWCA 259
Hearing dates: 19 July 2013
Decision date: 09 August 2013
Before: Emmett JA at [1];
Leeming JA at [1];
Sackville AJA at [1]
Decision:
1. Dismiss Mr Partington's motion filed 29 April 2013.
2. Order that Mr Partington pay Pacific Link's costs of his motion filed 29 April 2013 as agreed or assessed.
3. Vary order 4 made on 25 March 2013 by Ward JA so that it provides:
"Direct that Mr Partington be ordered to pay into the Registry of the Supreme Court of New South Wales the sum of $10,000 no later than 28 days from today, in default of which the proceedings are dismissed without further order."
4. Otherwise dismiss Pacific Link's motion filed 4 July 2013, with no order as to the costs of that motion.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - judicial review - review of decision of single judge of appeal: Supreme Court Act 1970, s 46 - extension of time - whether applicant established bias or error of principle

APPEAL - no appeal lies from decision of Consumer, Trader and Tenancy Tribunal - no appeal lies from decision of District Court dismissing appeal from that tribunal - proceeding in the nature of judicial review - inapplicability of UCPR r 51.50 - power to order security for costs
PROCEDURE - security for costs - impecuniousity - where order of security would likely stultify proceedings - circumstances where security may be ordered - abuse of process established - security ordered, with automatic dismissal if security not provided
Legislation Cited: Civil Procedure Act 1995
Consumer, Trader and Tenancy Tribunal Act 2001
Convention for the Protection of Human Rights and Fundamental Freedoms
District Court Act 1973
Equity Act 1901
Judiciary Act 1903 (Cth)
Residential Tenancies Act 1987
Residential Tenancies Act 2010
Supreme Court Act 1970
Uniform Civil Procedure Rules
Cases Cited: Ali v Hudson [2003] EWCA Civ 1793
Al-Koronky v Time-Life Entertainment Group Ltd [2006] EWCA Civ 1123
Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293
Barakat v Goritsas (No 2) [2012] NSWCA 36
Brimelow v Sharpe [2012] NSWCA 345
Carey v Industrial Relations Commission [1999] NSWCA 189
Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86
Collier v Lancer [2013] NSWCA 185
Cowell v Taylor (1885) 31 Ch D 34
Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Ford v Labrador (Gibraltar) [2003] UKPC 41; [2003] 1 WLR 2082
Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105
Harlock v Ashberry (1881) 19 Ch D 84
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75
Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531
Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310
Logan v Bank of Scotland (No 2) [1906] 1 KB 141
McHenry v Lewis (1882) 22 Ch D 397
Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32; (2002) 54 NSWLR 82
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Morris v Hanley [2000] NSWSC 957
Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; (2011) 80 NSWLR 282
Neale v Ancher Mortlock and Woolley Pty Ltd [2013] NSWCA 209
Porter v Gordian Runoff Ltd [2004] NSWCA 171
Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247
Rajski v Computer Manufacture and Design Pty Ltd [1983] 2 NSWLR 122
Starr-Diamond v Diamond [2013] NSWCA 7
Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442
Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143
Williams v Spautz (1992) 174 CLR 509
Wilson v Smith (1876) 2 Ch D 67
Texts Cited: Sir Jeffery Bowman, Review of the Court of Appeal (Civil Division): Report to the Lord Chancellor (1997) Lord Chancellor's Department
W Parker, The Practice in Equity (1930) Law Book Company
Zuckerman on Civil Procedure, 2nd ed (2006), Sweet & Maxwell
Category: Interlocutory applications
Parties: Ricky Partington (Applicant - in person)
Pacific Link Housing Ltd (First Respondent)
Consumer, Trader and Tenancy Tribunal (Second Respondent)
District Court of New South Wales (Third Respondent)
Representation: Counsel:
A Hourigan (First Respondent)
Solicitors:
Chris Ryan Legal (First Respondent)
Crown Solicitor's Office (Second and Third Respondents, submitting)

File Number(s): 12/390042
Decision under appeal

Jurisdiction:

9003

Citation:

[2013] NSWCA 67

Date of Decision:

2013-03-25 00:00:00

Before:

Ward JA

File Number(s):

12/390042

Judgment

THE COURT: The applicant, Mr Ricky Partington, has applied to review a decision of Ward JA, delivered ex tempore on 25 March 2013: Partington v Pacific Link Community Housing Ltd [2013] NSWCA 67. In her judgment, Ward JA deals with motions that had been brought by Mr Partington and the first respondent (Pacific Link) in proceedings that Mr Partington has instituted in this Court. In those proceedings, which are in the original jurisdiction of the Court, Mr Partington challenges orders made by the Consumer, Trader and Tenancy Tribunal (Tribunal) and by the District Court on appeal from the Tribunal. The effect of the Tribunal's decision was to terminate Mr Partington's tenancy of residential premises. Mr Partington's appeal to the District Court was dismissed. He is no longer in occupation of the premises.

Ward JA refused Mr Partington's interlocutory application to be reinstated to the premises from which he had been evicted after the dismissal of his appeal to the District Court. Her Honour also ordered Mr Partington to provide security for the costs of Pacific Link, the only active respondent in the proceedings in this Court. In addition, Ward JA made orders regulating and restricting the persons to whom and the manner in which Mr Partington should correspond or communicate in relation to the substantive proceedings.

Mr Partington's application to review Ward JA's decision was filed outside the time prescribed by the Uniform Civil Procedure Rules (UCPR), r 51.58. As Mr Partington, who is unrepresented, elaborated his contentions during the hearing of his application to review Ward JA's decision, his principal contention was that her Honour was biased. However, he also contended that the order for security would stultify his application for judicial review of the decisions of the District Court and the Tribunal since he was impecunious.

Pacific Link has applied for summary dismissal of Mr Partington's application for judicial review on the ground that he has failed or refused to provide the security ordered by Ward JA.

In our opinion, leave should not be granted to extend time for Mr Partington's application for review of Ward JA's decision. This is an exceptional case where it was appropriate to order security for costs (although not on the basis determined by Ward JA), notwithstanding that the order is likely to stultify Mr Partington's judicial review proceedings in this Court. Mr Partington should be given a further opportunity to provide that security, in default of which the proceedings will be dismissed. In order to explain why we have reached those conclusions, it is necessary first to set out, in some detail, the factual and procedural background.

Background

Until the events the subject of these proceedings, Mr Partington had been living in social housing provided by Pacific Link in Gosford. One of the eligibility criteria for social housing is low income. Ward JA proceeded on the basis that Mr Partington was of sufficiently low income to have been entitled to community housing support for a number of years (at [44]), and it is convenient to proceed on the same basis. Pacific Link claimed (and it does not seem to be in dispute) that Mr Partington ceased paying rent from around September 2012.

Pacific Link issued a termination notice dated 2 October 2012, and commenced proceedings in the Tribunal by application dated 5 October 2012, seeking, relevantly, a termination order pursuant to s 87 of the Residential Tenancies Act 2010 (2010 Act). Mr Partington's tenancy had formerly been regulated under the Residential Tenancies Act 1987 (something which Mr Partington says is relevant to a constitutional argument, described below). On 29 October 2012, following a scheduled hearing which Mr Partington did not attend, the Tribunal made an order terminating Mr Partington's residential tenancy agreement based on his failure to pay rent, and ordered that possession was to be given to Pacific Link on 9 November 2012.

Section 68 of the Consumer, Trader and Tenancy Tribunal Act2001 (CTTT Act) provides for rehearings of completed proceedings. Mr Partington's application for a rehearing of that matter was refused by the Tribunal on 12 November 2012, on the basis that the Tribunal was "not satisfied that the applicant may have suffered a substantial injustice". The Tribunal gave these reasons:

"The rehearing applicant is refusing to pay any rent, as he alleges that the landlord has refused to explain past rent increases. The rehearing applicant alleges that he did not receive the Notice of Hearing. However, the landlord has provided evidence that copies of the notice of hearing were emailed by them in addition to the fact that a Notice was forwarded by the Consumer Trader & Tenancy Tribunal."

The Tribunal noted that the orders made on 29 October 2012 remained in full force and effect.

One week later, shortly after 10am on 19 November 2012, Mr Partington was evicted from the property by Sheriff's officers. Later on that day it seems that the Tribunal's orders were stayed on an ex parte application made to the District Court. What was said to the District Court on that occasion was not in the materials in this Court. However, the Court was told that Mr Partington was permitted to re-take possession of the premises upon Pacific Link learning of the stay. That stay was continued, and on 23 November 2012 orders were made for an expedited final hearing in the District Court on 13 December 2012, including a direction that Pacific Link serve the material on which it would rely by 10 December. Central to Mr Partington's complaint in this Court is that, in accordance with those orders, Pacific Link served some 150 documents on 10 December 2012, only three days before the hearing.

District Court hearing

Mr Partington's appeal in the District Court was made pursuant to s 67 of the CTTT Act, which permits an appeal to that Court where "the Tribunal decides a question with respect to a matter of law". Mr Partington was not present in Court when the expedited appeal commenced on 13 December 2012. He had made an application by email to the Court on the previous day for leave to be heard by telephone. That application was opposed by Pacific Link, whose counsel informed the Court that Mr Partington had not appeared at the Tribunal hearing on 29 October 2012. The matter was stood down to 2pm when Mr Partington appeared in person. Robison DCJ read to Mr Partington an email that had been sent to the Court's listing manager the previous day which was in the following terms:

"[T]he reason I wanted to appear by telephone this morning is because yesterday I was at Avoca Beach when the two girls fell in the water and one of them drowned. Let's just say it wasn't very pleasant seeing all of that and right now I felt it would be appropriate to be by myself at the moment as the experience has made me feel a little uncomfortable, if you can understand what I am saying. Thank you Rick Partington."

Mr Partington confirmed that he was the author of that email (Transcript p 10), and elaborated on that claim (Transcript pp 13-14). The judge directed Mr Partington to the limitations of an appeal under s 67, advised that ordinarily a costs order would be made, and that if he lost, he could be ordered to pay the defendant's costs (Transcript p 16), and that if the matter did not finish by 4pm it would be adjourned until 10am the following day. His Honour referred to s 56 of the Civil Procedure Act 2005.

Mr Partington then made the following oral application, which is central to his claim in this Court that there was a denial of procedural fairness, and which is based on the proposition that the 2010 Act is invalid and that therefore Pacific Link cannot rely on its provisions (Transcript pp 17-18):

"Plaintiff: I was going to suggest something else if I could?

His Honour: Yes.

Plaintiff: Well how about we just cut to the chase and give me time for leave to appeal for 14 to 21 days for a 78B and we can get this all sorted out in the High Court. They're relying on the 2010 [Act], we can get this all sorted out in the High Court and by-

His Honour: No I'm dealing with the matter today in relation to your appeal to this Court.

Plaintiff: I understand but if there's any issues or any complications I mean like I said I intend to file a 78B, we can have it sorted out in the High Court and that's when I'd be in my realm.

His Honour: Well I don't know whether it could get that far but-

Plaintiff: Well anyone can file a 78B notice at any time.

His Honour: Do you wish to proceed with your appeal in this Court or not?

Plaintiff: Well I just wanted to know if you would allow me leave for appeal to file a 78B."

The reference in this exchange is to s 78B of the Judiciary Act 1903 (Cth). Section 78B(1) provides that where a cause pending in a court involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause until the court is satisfied that appropriate notice has been given to the Attorneys-General of the Commonwealth and the States.

The Court granted a short adjournment to permit Mr Partington to speak with counsel for Pacific Link, after which the following exchange occurred:

"His Honour: Mr Partington, if I understood you correctly you said you want to commence proceedings in the High Court under s 78B of the federal Judiciary Act, is that right?

Plaintiff: Yes.

His Honour: Can you please identify in this matter anywhere if there is any material before this Court or which you want to tender to this Court which could possibly involve a matter arising out of the Constitution or involving its interpretation?

Plaintiff: I can if I was given until tomorrow-

His Honour: Please let me have it, where is it?

Plaintiff: Tomorrow.

His Honour: Tomorrow, no. I want you to provide it to the Court today.

Plaintiff: I can explain and show you but the material, the 78B application is at home ready to go.

His Honour: This is a matter which should proceed now-

Plaintiff: I understand, but I have got it all, or hopefully get it all, that the 78B is all completed at home and all the arguments are ready. Basically it wasn't-

His Honour: That puts the Court and you in conflict of s 56 of the Civil Procedure Act and I am not prepared to do that.

Plaintiff: Under the Constitution provisions requires that all new bills or legislation have to be gazetted accordingly, proclaimed accordingly and signed and stamped by the New South Wales Governor for any new State legislation. I have got material that suggests that nothing has happened.

His Honour: Well, you should have that to present to the Court now.

Plaintiff: If you gave me-

His Honour: It then causes a problem. It will cause further costs to the defendant. The defendant is legally represented. They are incurring the costs of this representation and if the matter goes on to tomorrow we have lost basically the whole day and none of that is the fault of the defendant, and you should have been here at 10 o'clock this morning, and you know that and I know that.

Plaintiff: The thing is your Honour I can file a 78B anytime I want.

His Honour: What material do you have that will justify this Court adjourning the proceeding on the basis of the provisions of s 78B of the Judiciary Act?

Plaintiff: At the moment I have only just got basics of.

His Honour: I am prepared to entertain and receive any documents that you may have that will justify this Court adjourning the matter- "

What matters for present purposes is what was not said. At no stage, either in the course of that application, or otherwise on 13 December 2012 (or at any other time, so far as the evidence discloses), did Mr Partington make a complaint based on the service of documents upon him three days earlier in accordance with the Court's orders.

There followed a discussion about a conciliation conference in the Tribunal, in which Mr Partington claimed that the Tribunal had found, in accordance with his submission, that the 2010 Act did not apply, and counsel for Pacific Link claimed that no such thing had occurred.

An audio recording of the hearing between Pacific Link and Mr Partington was played to the Court. The audio recording was not in evidence in this Court, nor was it transcribed onto the transcript. It is plain, however, that Robison DCJ proceeded on the basis that Mr Partington was wrong to say that the Tribunal had found, favourably to him, that the 2010 Act did not apply.

The Court refused Mr Partington's application for an adjournment based upon the foreshadowed s 78B notice that afternoon. His Honour gave reasons which were not in the materials before this Court. The hearing resumed on Friday 14 December 2012. The matter was called at 10.10am, and again at 10.25am, but there was no appearance by Mr Partington. An application was made pursuant to UCPR r 13.4 on the basis that the proceedings were frivolous or vexatious. Robison DCJ gave reasons for his dismissal of the proceedings which included the following:

"I note in the affidavit of the plaintiff which appears to have been filed on 21 November 2012 there is some reference to what occurred in a conciliation conference with a member of the Tribunal sometime ago. That was a matter which was dealt with by me during the course of my judgment yesterday on his adjournment application. Putting it mildly, the recording of those proceedings certainly does not support the contentions made by the plaintiff as to what he says occurred and what he says was a decision or an observation on the part of the learned member of the Tribunal.

I am mindful of the fact that he makes his assertions in an unequivocal way in this affidavit and of course there are criminal penalties available in the event of a person falsely swearing or affirming an affidavit but I will make no further comment about that."

His Honour formed the view that Mr Partington's intention was to remain in the property for as long as possible. He said that:

"[F]rankly his reasons for not being here on time in my view lack merit and certainly at the very least lack credibility. I do think that it is open for this Court to find that the plaintiff is attempting to use the process of this Court to extend his occupation of the property to the detriment of the defendant for as long as he can."

His Honour said that he had "in fact looked long and hard for any particular point which could be raised" which fell within the provisions of s 67 of the CTTT Act and concluded that:

"[A]t the end of the day when one considers what is before the Court one can comfortably find that these proceedings are tantamount to an abuse of the process of this Court and this Court must be on guard to ensure that its process is not abused by any person who seeks relief in this jurisdiction."

His Honour dismissed the proceedings, ordered that Mr Partington pay the defendant's costs on an ordinary basis, and noted:

"I think it is important that somebody notify the plaintiff as soon as possible that these orders have been made in fairness to the plaintiff."

Mr Partington told this Court something different from what in fact had happened on 14 December 2012. This exchange occurred:

"SACKVILLE AJA: But you didn't turn up.

PARTINGTON: That morning yes I did turn up but I was about five minutes late.

SACKVILLE AJA: That's not what-

PARTINGTON: Mr Hourigan can confirm that.

SACKVILLE AJA: It couldn't have been five minutes late because the judgment was given on the spot and would have taken, since it's six pages and the transcript is another five pages or so, I doubt that you turned up within five minutes. Indeed his Honour says in the transcript, 'I note the time is 25 past 10. For abundant caution and a further attempt to be as fair as I can to the plaintiff I ask for the plaintiff to be recalled and will see if there's any appearance. No appearance at 10.25' and then his Honour proceeds to deliver a judgment.

PARTINGTON: Like I said I was here having a meeting with the-

SACKVILLE AJA: But you weren't in Court five minutes after it commenced were you?

PARTINGTON: I was there.

SACKVILLE AJA: Were you in Court five minutes after it commenced Mr Partington?

PARTINGTON: No. No of course not.

SACKVILLE AJA: I think you need to be careful what you tell the Court."

Commencement of Supreme Court proceedings

On the same day, 14 December 2012, Mr Partington applied for urgent injunctive relief in this Court, which was refused by Hoeben JA. Mr Partington's summons sought these orders:

"For all order made against me Ricky Partington from Judge Robison from the District Court Sydney registry to be suspended.

For the appeal court to allow me to file a 78b notice within a weeks time.

For a hearing date to be given at the discretion of residing magistrate."

In January 2013 there were emails between Mr Partington and officers of this Court. It was plain from those emails that Mr Partington appreciated that a notice of motion could only be filed if accompanied by a fee, or if the fee was deferred or waived. On 22 January 2013 the Registrar wrote as follows:

"Dear Mr Partington,

Thank you for your email. Any motion will not be considered by the Court until you have paid the filing fee for the motion (unless a Registrar has granted you a fee waiver or postponement).

Once your motion is filed, the Court will determine when your motion will be heard. It is unlikely that it will be heard today, but the Court will determine that based on what is contained in your motion."

Mr Partington's response was as follows:

"Jerry use a little bit of common sense how can I pay a 366 dollar fee when I don't have a cent to my name I mean seriously how can a Registrer as yourself not be able to see that it's not possible so do the world a favor and stop being so annoying and file my f...king Ammended summons application so I can get back into my f...king house you f...cking annoying bastard."

Mr Partington made a further application for fee waiver, completing a form, to which the Registrar responded by email dated 30 January 2013. Mr Partington was advised that his motion to review the decision of Hoeben JA would not be the subject of waiver or postponing of the fee because (1) no motion was required to file an amended summons, (2) there was no need to obtain the Court's leave to serve s 78B notices, (3) Mr Partington had received a fee postponement in respect of his application before Hoeben JA, in respect of which he was unsuccessful. The Registrar wrote:

"The purpose of the fee guidelines is not to permit you to exercise every possible right of review that is available to you, but to provide you with a means of access to the court system. In order to overturn the decision of Hoeben JA, you would need to demonstrate that his Honour 'erred in principle or that...his Honour's decision was plainly wrong'.... The material lodged so far does not demonstrate that the decision was plainly wrong or proceeded on a wrong principle of law. There is little prospect of success on this aspect, so the fee should not be postponed or waived."

The Registrar advised Mr Partington of his right to have his decision reviewed before another registrar of this Court. He also noted that his refusal of the application to waive or postpone a fee did not prevent Mr Partington filing his proposed motion, and that of course Mr Partington could pay the relevant fee and file the documents. Mr Partington appears to have taken no further steps to review the decision of Hoeben JA, but on 8 February 2013 filed the amended summons which is pending in the original jurisdiction of this Court.

Mr Partington's amended summons sought orders setting aside the Tribunal's orders of 29 October and 12 November, the District Court's orders of 14 December 2012, and other orders relating to the payment of rent and reinstatement of Mr Partington's tenancy. It purported to rely on s 68 of the Supreme Court Act 1970 to obtain pecuniary and injunctive relief. One paragraph referred to the proceeding as an appeal. The amended summons did not refer to s 69 of the Supreme Court Act which would seem to be the source of the Court's jurisdiction to review the decisions of the District Court and the Tribunal.

The basis of setting aside the District Court's orders, which was the first matter addressed in Mr Partington's amended summons, was described as follows:

"On the 23rd of November Judge Gibson made orders against Pacific Link that the District Court also would like to see an outline of submissions in which Pacific Link relies on in which Judge Gibson gave Pacific Link until December 10th to supply Mr Partington with the relevant documentation.

On the 13th December Judge Robison stated to Mr Partington that he was going to make orders for my ammended summons to be dismissed and to be declared vexatious and frivolous under Section 13.4 sub rule 1(a)(b)(c) of the UCPR and refused Mr Partington a further stay of orders for a week so that Mr Partington could prepare a proper response upon receiving 150 documents from the defendants 3 days prior and this refusal of stay of orders for a week by Judge Robison is a blatant denial of procedural fairness."

That claim was advanced to this Court orally, and repeatedly, when Mr Partington's motion was heard on 19 July 2013. One instance was as follows:

"SACKVILLE AJA: ... What I'm trying to understand is where did the judge deny you procedural fairness?

PARTINGTON: The judge denied me procedural fairness by not allowing me a stay of orders for a week in order to be able to submit my written response in regards to the material that Pacific Link were relying on in their submissions in regards to the rent increase. There were 150 pages and I was given less than three days to go through the material, find what was there that needed to be found, submit a written response.

SACKVILLE AJA: When did you make your application for the stay to the District Court?

PARTINGTON: It was a verbal application.

SACKVILLE AJA: On what day did you make it?

PARTINGTON: The 13th.

SACKVILLE AJA: So we'll find it in the transcript."

What is contained in Mr Partington's amended summons, and what Mr Partington told this Court as reproduced above, is incorrect. No such application was ever made to Robison DCJ.

When Mr Partington's error was pointed out to him by this Court, upon Pacific Link making available and tendering the transcript of 13 December 2012, Mr Partington said from the Bar table that he had deliberately chosen not to advance any claim of prejudice following the service pursuant to the Court's orders, because he wished not to reveal that (so he said) a former employee of Pacific Link was assisting him:

"SACKVILLE AJA: ... What I want to know is when you made an application for the matter to be adjourned because you had received a large volume of material-

PARTINGTON: I did.

SACKVILLE AJA: -and you were unable to address that material?

PARTINGTON: I did not verbally ask for that application during the District Court proceedings due to the fact that I was worried about the former employee."

Hearing before Ward JA

When these proceedings came before Ward JA on 25 March 2013, the transcript of what had occurred on 13 December in the District Court was not in evidence before her Honour. Mr Partington made this incorrect statement to her Honour (Transcript p 7):

"Basically, I'd only been given the documents from Pacific Link on 10 December, which was 150 documents, and I was given three days to go through them all and prepare a written response to the District Court in regards to the rent increase notices, and it clearly wasn't enough time, and that's why I sought a stay of orders for a week, so I could, you know, prepare a response and continue going through it, but 150 documents in three days was clearly not enough time. That's why I sought the stay of order for a week. Judge Robison refused it, so did the Court of Appeal."

Her Honour was unable to resolve this controversy on the material before her, and said this (at [34]):

"Mr Partington also, however, refers to a refusal of Judge Robison for a 'further stay of orders for a week so that Mr Partington could prepare a proper response upon receiving 150 documents from the defendants three days prior'. This refusal of a stay of orders is said to be a blatant denial of procedural fairness. (Pacific Link, I should add, disputes that any such application for adjournment was made.)"

After a relatively lengthy hearing, her Honour made the orders of which Mr Partington seeks review. Her Honour's reasons, occupying 54 paragraphs, were delivered that afternoon. In relation to the applications for security for costs and orders to cease communication, her Honour said at [27] that:

"I have been taken in support of that application to evidence of iPhone or iMessage text messages from Mr Partington ... and various email messages [to officers of Pacific Link]. I do not propose to set out the text of the various communications save to say that it is not unfair to Mr Partington to describe them as using obscene and vulgar language and, in [one] case ..., that there are intimidatory messages."

In relation to the order for security for costs, her Honour stated that it was necessary to demonstrate special circumstances in order for security to be ordered against a natural person, referring to Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 (at [18]) and UCPR r 51.50. Her Honour expressly had regard to Mr Partington's impecuniosity, the fact that he was self-represented, and to his contention that an order for security might stultify what her Honour described as the appeal (at [44]). The dispositive paragraph of her Honour's reasons on security was [45] which was in these terms:

"But for the manner in which the appeal seems to have been pursued by Mr Partington (in terms of the abusive correspondence and the obstructiveness of Mr Partington in relation to the service of documents and the like, and non-compliance with the Rules in relation to appeals) I would have been inclined not to order security for costs. In the circumstances, however, I think that special circumstances have been shown and that there should be provision of security for costs of the appeal. However, I propose, where there has been no breakdown of the costs estimate, and where Mr Partington is in a difficult financial position or low income position, to limit the security for costs to be ordered on the appeal to $10,000. (I add that it seems likely that party/party costs in such an amount would be incurred on an appeal in this Court.)"

Her Honour added (at [49]):

"The orders for security for costs that are sought seek an order that the proceedings be stayed until there is compliance with the provision of security, I therefore will need to set a date for the provision of security for costs. Mr Partington, now not being here (having left the Court after the dismissal of his reinstatement application), I cannot ask his views in relation to that. This being 25 March and the appeal being listed in mid July, I will allow four weeks for the provision of security for costs."

During the course of delivering reasons but before leaving the Court, Mr Partington interrupted her Honour and applied for her Honour to disqualify herself. Her Honour's description of the application, and her resolution of it, are at [51]-[53] as follows:

"Finally, I add that during the course of these reasons (after I indicated I would dismiss Mr Partington's application for reinstatement to the premises) Mr Partington demanded that I disqualify myself for bias. I refused to do so. I ruled on this and indicated that in my written reasons I would include references to the relevant authorities that deal with the question of bias. As I understand it, the application that was made by Mr Partington alleged actual bias, not apprehended bias, and it was made on the basis of the finding that I made in relation to his application for reinstatement. As I apprehend it, Mr Partington considered that I did not refer to all of the material to which I should have referred when I gave my ex tempore reasons for that application and reached an erroneous conclusion.

In my opinion, no reasonably informed lay observer would consider that, simply because I had found against Mr Partington on the reinstatement application (and may have given inadequate or incomplete, or in some instances, perhaps, erroneous reasons for that decision), that amounted to bias. No basis has been suggested, nor am I aware of any basis on which it could be suggested, that there was any actual bias against Mr Partington other than any shown by the finding made against him. I thus refused to disqualify myself (midstream in my oral reasons) from expressing my reasons for determination of the balance of the motions that were before me.

(As I indicated in my oral reasons I would do, I add that the test for apprehended bias is set out in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [16]) as confirmed in Michael Wilson & Partners Ltd v Nicholls & Ors [2011] HCA 48; (2011) 282 ALR 685 at [31]). It requires identification of what it is said might lead a decision-maker to decide a question other than on its merits and articulation of the logical connection between that matter and the feared deviation from the course of deciding the question other than on its merits. In Wilson, the High Court noted the fallacy in arguing (as seems to have been the basis of Mr Partington's claim of bias) that because one side lost the litigation, the judge was biased, or that some appellable error demonstrated pre-judgment. Where actual bias is alleged, such an allegation can be made good only by proof that the decision maker is actually biased. Brereton J, in Carbotech-Australia Pty Ltd v Yates [2008] NSWSC 540, said 'the submission that a reasonable bystander would conclude that there was actual bias is misconceived, because actual bias depends not upon the impression of any reasonable bystander, but upon proof that the decision maker is actually biased' (at [45]).)"

It is fair to say that Mr Partington has used extremely offensive language in his dealings with officers of Pacific Link, its solicitor and with officers of the Court. For example, the email by which the amended summons was served was sent to the Registrar of this Court, other officers of this Court, the Tribunal, the solicitor for Pacific Link, and other addresses within the Attorney General's Department and Pacific Link. The covering email was in these terms:

"I know u have asked me to send the ammended summons by the post Mr Ryan [Pacific Link's solicitor] but I decided tonight I will email it to you and as far as your requests that you prefer it to be sent by post all I can say to you about that is this

GO AND F...K YOURSELF YOU LITTLE F...GOTT

Best regards Ricky Partington"

We should not be taken as suggesting that that email was the most malicious or the most offensive of those sent by Mr Partington; other text messages were at least arguably more offensive. No person involved in litigation, and no court officer, should have to receive emails and texts containing such language. Naturally, this Court will continue to administer the law to everyone, including Mr Partington, notwithstanding what can only be his deliberately offensive behaviour to those involved in the processes he has invoked. However, the nature of the language used in these communications is relevant to an assessment of Mr Partington's purpose in commencing and prosecuting proceedings in this Court.

Mr Partington also adopted an approach whereby he refused to accept documents sent to him in the proceedings commenced by him, and claimed not to read emails. The (courteous) response dated 19 March 2013 from Mr Ryan to the email enclosing the amended summons was sent by express post to Mr Partington's address, but was returned to sender. Mr Partington maintained to Ward JA, and to this Court, that he never read the electronic version sent to him. He said to her Honour (transcript p 17):

"PARTINGTON: I deleted them straightaway.

HER HONOUR: You deleted them?

PARTINGTON: Yeah, I didn't read them. As soon as I saw the title Chris Ryan I replied back and I deleted, didn't read anything in it."

Mr Partington's motion seeking review of Ward JA's decision

Mr Partington's application to review Ward JA's orders was filed on 29 April 2013, well outside the 14 day period prescribed by UCPR r 51.58. The orders it seeks are in the following terms:

"1. Pursuant to Section 46(4) of the Supreme Court Act 1970 and UCPR 51.58 Review of order of Judge of Appeal the Plaintiff Ricky Partington seeks to have Justice Ward's order's except for order 2 of 25th March 2013 be reviewed by a panel of 3 judges on the grounds that all order's that were made on 25th March were biased.

2. Pursuant to Section 68 of the 1970 Supreme Court Act the Plaintiff Ricky Partington seek's monetary damages for the Civil wrong that has been committed by Justice Ward under Tort Law for allowing Pacific Link to be in continuance of breaching there own lease agreement contract by not reinstating the plaintiff back into the property of 8 xxxx North Gosford NSW.

3. Seek leave to file a 78B Notice into the High Court on constitutional grounds pursuant to Section 78B of the 1903 Judiciary Act and UCPR 1.22 Notice of a Constitutional Matter.

4. Seek leave to file an urgent Notice of Motion for reinstatement of Ricky Partington into the premises of 8 xxxx North Gosford NSW 2250 pursuant to Section 66 and 68 of the Supreme Court Act 1970 and pursuant to Section 78B(5) of the 1903 Judiciary Act."

The motion stated as its first paragraph that:

"Notice of Motion to dismiss Justice Ward's order's 25th March on the grounds of bias."

The following paragraphs referred to the orders made by Ward JA and asserted bias. However, in the course of the hearing, it became clear that Mr Partington also relied, as a free-standing argument, on the fact that Ward JA had ordered security for costs knowing that the consequence would be to stultify his appeal.

Because the threshold question is whether leave ought to be granted extending time, it is necessary to address what took place in the fortnight following the hearing before Ward JA on 25 March 2013. The evidence discloses that Mr Partington did three things. First, on 31 March or 1 April, Mr Partington sent notices pursuant to s 78B of the Judiciary Act in these terms:

"For all Attorney General Department as I wish to notify you of my intentions of filing a 78B Notice in regards to the 2010 Residential Tenancy Act being invalid due to it being retrospective legislation to the already 1987 Residential Tenancy Act and also the fact that it has been signed by Virginia Judge who is a sitting member of State Parliament making it absolutly impossible for her to sign a proclamation on behalf of the NSW Governor."

Secondly, there were emails between Mr Partington and the Court relating to the steps which would need to be taken if her Honour's decision were to be reviewed. By email to the Registrar of this Court dated 29 March 2013, Mr Partington said:

"I have looked at the Supreme Court Act and it appears that there is only section 69A and 69B that can be used for a judicial review so are you happy with that".

A second email sent by Mr Partington later that day said:

"Jerry I just checked out the 1970 Supreme Court Rules and it appears that as of the beggining of this year that all of the relevant rules of the 1970 Supreme Court rules in regards to seeking judicial review matters have all been repealed and taken out as of the beggining of this year and there is no way at all that I can use any of the Supreme Court rules to seek a judicial review in regards to Judge Ward decision as of the 25th March."

The Registrar construed this as request for assistance and advised Mr Partington of s 46 of the Supreme Court Act, and the relevant provisions of the rules in the following terms:

"Dear Mr Partington,

I refer to your two emails. Section 69 of the Supreme Court Act 1970 preserves the existing jurisdiction to deal with judicial review. Sections 69A and 69B are not relevant to your matter.

In respect of your application to review the decision of the Honourable Justice Ward, that review would be under section 46(4) of the Supreme Court Act 1970. That review is commenced by filing a notice of motion (UCPR 51.58) with an affidavit in support (UCPR 51.61).

The provisions of section 69 of the Supreme Court Act 1970 do not apply to the application to review the decision of Justice Ward.

[Signed by Registrar]"

Thirdly, Mr Partington signed his notice of motion and made an affidavit. Both bear the date 3 April 2013. However, whenever those documents were executed, they were not filed until 29 April 2013. The original bears this annotation:

"Postpone fee till conclusion of hearing.

List n/m on 6/5/13

[Signed Registrar]"

Mr Partington maintained from the bar table that he sent the notice of motion seeking review of Ward JA's orders to the Court within time, shortly after he executed it. However, there was no evidence to support that assertion. Mr Partington was given a short adjournment to obtain evidence which he said would be available from the file in the registry. After that adjournment, there was this exchange:

"EMMETT JA: Is there anything to suggest that you sent the notice of motion within the 14 day period?

PARTINGTON: I just went down to the registry. There is a record down there saying that they received it I think it was on the fourth or the fifth.

EMMETT JA: So there's a record in the registry?

PARTINGTON: Yes, that they received it on the fourth or the fifth and I signed it I think it was on the third.

EMMETT JA: What record is it that you say is in the registry?

PARTINGTON: Beg your pardon?

EMMETT JA: You said there's now a record in the registry of having received it?

PARTINGTON: Apparently yes."

Accordingly, this Court gave Mr Partington an opportunity to file any further evidence in support of his assertion from the Bar table. He made an affidavit which included the following:

"It appears the supreme court registry did not stamp a receive date stamp on the notice of motion and according to Nathan Gray had been placed on Register Ryznozcok desk. Nathan Gray has stated that he brought the notice of motion documents to the register's attention sometime after 22nd April and the register filed the notice of motion on the 29th."

The record in the registry to which Mr Partington referred was not filed. Nor was any other documentary evidence supportive of his claim.

Against the possibility that what Mr Partington had said to the Bench was correct, the Court has examined the entirety of the (large) file for these proceedings. In the course of that examination, the exchange of emails in January 2013 which are referred to above came to light. They were not formally in evidence, although part of the Court's file, and we have not relied upon them in reaching the conclusions which are described below. However, we note that notwithstanding Mr Partington's abusive language to this Court's officers, they continued to advise him, courteously and accurately, as to the procedures involved in his litigation.

Legal analysis

To recapitulate the position:

(1) Mr Partington's proceedings in this Court attack both the District Court's summary dismissal of his appeal and the Tribunal's decisions making a termination order and refusing to review it.

(2) The attack on the District Court was based on a claim that he had not been granted an adjournment arising from prejudice from the service, in accordance with the Court's directions, of material three days prior to the hearing, which claim had never been advanced to that Court. Instead, Mr Partington had sought an adjournment in order to complete a s 78B notice in respect of his claim that the 2010 Act was invalid, which application was refused.

(3) The attack on the Tribunal's decision was based on a variety of factual and legal claims, including the claim that the 2010 Act was invalid.

(4) The primary judge was asked to order security for costs pursuant to UCPR r 51.50, and did so expressly on the basis that Mr Partington was of limited means and that he asserted that this would have the effect of stultifying what all parties before her styled his "appeal".

(5) A motion to review her Honour's orders was filed, out of time, and ultimately advanced on the grounds that her Honour was biased and that her discretion had miscarried to order security which would stultify the appeal.

In those circumstances, the legal position is as follows.

(a) Nature of review

First, the principles applicable on the application for review of a decision of a Judge of this Court are not in doubt. They were most recently stated in Collier v Lancer [2013] NSWCA 185 at [19]-[20]:

"An application for review pursuant to the Supreme Court Act, s 46(4) is not an appeal (s 19(2) of the Act and UCPR, r 51.2 and r 51.58). [What an] applicant for review must show is that there has been an error of principle in the exercise of the power or that the decision was plainly wrong (Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; Patrick v Howorth [2002] NSWCA 285). It is noted in Ritchie's Uniform Civil Procedure NSW that this construction of the power derives either from the legislative context of that statutory provision (citing Wentworth v Wentworth (1994) 35 NSWLR 726) or from the proposition that an application to discharge or vary is essentially a matter of practice and procedure.

In Rinehart v Welker [2011] NSWCA 403, this Court noted, at [48], the heavy burden that a person seeking a s 46(4) review has to discharge in order to have a Judge of Appeal's order set aside..."

(b) Security for costs in this Court's supervisory jurisdiction

Secondly, notwithstanding what Ward JA was told, there was and is no "appeal" pending in this Court. Appeals are creatures of statute: see for example Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 at [2]. No appeal lies from the decision of the District Court dismissing an appeal from the Tribunal, because the right of appeal conferred by s 127 of the District Court Act 1973 is confined to judgments or orders in an "action" and a statutory appeal is not an "action": Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; (2011) 80 NSWLR 282 (Campbell JA and Young JA, Macfarlan JA agreeing with them); Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 at [35] (Sackville AJA, Basten and Meagher JJA agreeing); Brimelow v Sharpe [2012] NSWCA 345 at [14] (Macfarlan JA, Tobias AJA agreeing). The reasoning is not novel; it was central to this Court's decision in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86.

And no appeal lies to this Court from the decision of the Tribunal. There may be a referral of a question of law pursuant to s 66 of the CTTT Act. Further, this Court may exercise its supervisory jurisdiction for jurisdictional error: Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531, which is confirmed by s 65 of the CTTT Act. But no statute provides for any "appeal" to this Court from decisions of the Tribunal.

It follows that r 51.50, which was invoked by Pacific Link and purportedly applied by her Honour, was not applicable. That rule applies only where there is an "appeal", and it is clear that the rule proceeds on the basis that "appeal" bears its ordinary meaning. Rule 51.50 is within Division 8 of Part 51, and within the same Part of the UCPR, Division 5 deals with "Appeals and cross-appeals" and Division 7 deals with "Proceedings other than appeal proceedings". Consistently with this, it has been said that the predecessor provision to r 51.50 under the former rules (Part 51 r 16 of the Supreme Court Rules 1970) did not apply to proceedings in the exercise of this Court's supervisory jurisdiction: Carey v Industrial Relations Commission [1999] NSWCA 189 at [7].

However, that does not mean that Ward JA did not have power to order Mr Partington to provide security in connection with his claim for relief in this Court. The Court has a general power to stay proceedings, and it may do so on terms that the stay operate until and unless certain conditions (such as the lodgement of security) are satisfied: Rajski v Computer Manufacture and Design Pty Ltd [1983] 2 NSWLR 122 at 129 (Priestley JA). In the same appeal, Moffitt P said with the agreement of Samuels JA that (at 128):

"The general or overriding power of the court to order a stay of proceedings is a power, the boundaries of which have not been precisely defined, except that in many different situations in which it has been exercised it can be seen as directed to preventing a person pursuing litigation or doing so in a way which is oppressive so as to be unjust to another party. The power is one which has been exercised where the unjust situation has been produced by a course of action which the plaintiff was entitled to take eg before another court, tribunal or body, or has been produced by improper means."

The precise question in that appeal was whether security might be ordered against a person with the benefit of legal aid, who enjoyed statutory protection from adverse costs orders. That is not the present case. However, the width of the Court's power to stay proceedings in order to prevent injustice is undoubted. There is some similarity between the facts in Rajski and those of the present case. Mr Partington has chosen to bring proceedings based on factual clams that are demonstrably false, to disregard ordinary procedures in terms of service of court documents, and to deploy language which can only have been intended to cause offence. All of that is capable of leading to a situation which is oppressive so as to be unjust in the sense to which Moffitt P referred.

There is a careful review of the authorities in the reasons of Hodgson JA (with whom Campbell JA agreed) in Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 His Honour stated at [33] that:

"It is clearly established however that the Supreme Court does have a discretion to order for security for costs against a natural person in circumstances falling outside those set out in the previous Supreme Court Rules, which were in similar terms to those in the UCPR."

His Honour referred (at [31]) to what Young CJ in Eq had said in Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32; (2002) 54 NSWLR 82 at [135]-[138] as to "an underlying principle that security would be ordered where not to do so would allow proceedings which would be vexatious or oppressive or an abuse of the court's process". In turn, Young CJ in Eq had referred to McHenry v Lewis (1882) 22 Ch D 397 at 408 where Bowen LJ had emphasised that "the Court can and will interfere whenever there is vexation and oppression to prevent the administration of justice being perverted for an unjust end", which was affirmed and applied by the Court of Appeal in Logan v Bank of Scotland (No 2) [1906] 1 KB 141 at 149-150. Young CJ in Eq also referred to his own earlier account of the principle to be derived from the authorities in Morris v Hanley [2000] NSWSC 957.

(c) Security for costs against impecunious litigants

Thirdly, there is a familiar line of authority to the effect that poverty is no bar to a litigant, commonly associated with Cowell v Taylor (1885) 31 Ch D 34 at 38 per Bowen LJ. But that is far from being a universal rule. Some of the exceptions were collected by Heydon J in Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 at [91] (citations omitted):

"Mere impecuniosity is not an absolute barrier to ordering security for costs against a natural person, although it is a factor against doing so. In particular, there are instances additional to those listed in r 42.21(1)(a)-(c) and (e) where it can be done. They include the vexatious conduct of litigation by a plaintiff who had failed to set aside an earlier judgment, instances where the plaintiff has dissipated assets and/or not paid previous costs orders (particularly costs orders in favour of the defendant), instances where the plaintiff brings a weak case to harass the defendant and instances where the plaintiff brings a case for the benefit of others, but not solely for that benefit. Hence the supposed 'general principle ... that poverty is no bar to a litigant' is a severely qualified one. So is the 'overriding principle of open access to justice' (or, more realistically, at least access to the courts)."

Appeals are a further, not to mention long-standing, exception to the "severely qualified" principle which Heydon J was addressing. Indeed, that exception was stated by Bowen LJ in Cowell v Taylor in the sentence immediately following the statement as to poverty being no bar. The "special circumstances" in r 51.50 may be traced to Order LVIII rule 15 of the 1875 rules in force when the Judicature legislation commenced. The position before the Judicature legislation differed at common law and in equity. As Lush LJ put it in Harlock v Ashberry (1881) 19 Ch D 84 at 85-86:

"Before the Judicature Acts there appears to have been some difference between the practice in the Court of Chancery and in the Common Law Courts. In the Court of Chancery it was the practice to require security to a certain amount for the costs of an appeal to be given in every case. That was not the practice in the Courts of Common Law; there poverty alone was not considered a sufficient reason for requiring security to be given. ... The rule under the Judicature Act (rule 15 of Order LVIII) provides that such security for the costs of any appeal shall be given as may be directed under special circumstances by the Court of Appeal. This was intended to alter the whole practice both of the Court of Chancery and of the Courts of Common Law, and to leave it in the discretion of the Court whether security should be given under special circumstances."

The change in practice may be seen in Wilson v Smith (1876) 2 Ch D 67, where it was submitted at 68 that "The suit was instituted under the old practice, and the Court will not readily deprive the Plaintiff of the right of appeal which he had under that practice". That submission was rejected, and the plaintiff was ordered to make a deposit of £50 pounds. And in Harlock v Ashberry, Miss Harlock herself was a woman of very advanced age, without visible means of support, who admitted that she was unable to pay the expense of her father's funeral. Nevertheless, she was ordered to provide £30 security for the costs of her appeal. Jessel MR said at 85:

"With respect to the alleged hardship on the Appellant it must not be forgotten that before the Judicature Acts every appellant in the Court of Chancery had to deposit the sum of £20."

The position in the United Kingdom has changed following the conclusion in the Bowman report in 1997 that the discretion to order security in "special circumstances" in an appeal operated unfairly against appellants of limited means: see Zuckerman on Civil Procedure, 2nd ed (2006), Sweet & Maxwell at 869-870 and Sir Jeffery Bowman, Review of the Court of Appeal (Civil Division): Report to the Lord Chancellor (1997) Lord Chancellor's Department at 120-122, recommendation 134. At least in part, that change was a consequence of a perception that the right of access to the courts secured by Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms might be contravened: see the decisions considered by Lord Hope in Ford v Labrador (Gibraltar) [2003] UKPC 41; [2003] 1 WLR 2082 at [17]-[20]. Even so, the English courts reserve the right to order security for an appeal where security would stifle the appeal in exceptional cases where "the party concerned can be shown to be regularly flouting proper court procedures or otherwise to be demonstrating a want of good faith" and the party has "no real prospect of succeeding": Ali v Hudson [2003] EWCA Civ 1793 at [40]. And more recently there has been a recognition that:

"[D]efendants too have entitlements under article 6, including a right not to have their access to a court rendered prohibitive by the prospect of irrecoverable costs or, as demonstrated by the judgment in Tolstoy, an entitlement to have claimants' access limited by relevant and proportionate conditions": Al-Koronky v Time-Life Entertainment Group Ltd [2006] EWCA Civ 1123 at [32], citing Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442.

In New South Wales prior to 1972, s 81 of the Equity Act 1901 required the giving of a bond or security when an appeal was commenced, resembling the practice in Chancery in England before 1875: see W Parker, The Practice in Equity (1930) Law Book Company at 110-111. The requirement that there be "special circumstances" was introduced with the Supreme Court Act 1970. Thereafter, the position in New South Wales has not followed English developments after 1999, although access to appellate justice is more open than it was in Chancery before 1875 and in the Court of Appeal thereafter. An impecunious appellant with a bona fide and reasonably arguable appeal should ordinarily not be required to provide security: Neale v Ancher Mortlock and Woolley Pty Ltd [2013] NSWCA 209 at [25]; Preston v Harbour Pacific Underwriting Management Pty Ltd at [17]-[18]. Impecuniosity, without more, is usually insufficient for an order to provide security: Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 (Beazley, Santow and Ipp JJA); Porter v Gordian Runoff Ltd [2004] NSWCA 171 (Bryson JA, Sheller and Giles JJA agreeing). In Transglobal it was concluded that there was no general rule of practice whereby security for the costs of an appeal would be ordered where impecuniosity was shown. The Court emphasised that it was wrong to translate the principles and matters emerging from a series of decisions into a general rule of practice; in each case, the discretion was to be exercised having regard to the circumstances of the particular case (at [34]).

Nevertheless, considerations grounded in access to justice are attenuated where there has already been a hearing and reasons for decision. As this Court said in Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 at 313:

"The provision of a power to order security for costs under a rule such as Pt. 51, r.11 pays heed to the different considerations which apply to an appeal compared with proceedings at first instance. In the former the rights between the parties have been adjudicated upon. Moreover the reasons for judgment are readily available to the appellate court. At first instance, the rights between the parties have yet to be adjudicated upon, and their merits are not open to reliable preview."

Plainly enough, those considerations are diminished still more where, as here, the Legislature has conferred largely exclusive jurisdiction upon the Tribunal, and made no provision for appeals from its decisions save on a question of law, which right has already been availed of.

The primary judge cited Lall v 53-55 Hall Street Pty Ltd. It is a very similar case to that presently before the Court. Mrs Lall had been a tenant of premises owned by the respondent. The respondent had obtained an order for possession from a court of Petty Sessions. Mrs Lall had commenced proceedings in the District Court and in the Supreme Court challenging that order. One was dismissed when she failed to appear, and she withdrew the other. She then commenced proceedings which were dismissed by Waddell J, from which dismissal she appealed. She was impecunious. The Court said that she filed many written statements, most of which were abusive. The Court formed the view that the appeal was hopeless, and ordered security to be provided of $1,000.

The joint judgment of the Court addressed the jurisdiction to order security for costs where proceedings had been maintained by an unrepresented litigant at 314:

"The courts have traditionally assisted the litigant in person. It is important that he is not denied the right to appear in person and to present his case without interference on merely technical grounds. Courts always have been alert to the possibility that under irrelevancy there may be merit. Nothing now said is intended to suggest it should be otherwise. However, the point is reached in the type of case, to which we have referred, where the pursuit of the rights of the litigant in person can become the instrument of grave injustice to his opponent. It must be the concern of the courts not to overlook the injustice being caused in this way to such litigants. Indeed impecuniosity and stubbornness in the supposed exercise of the liberties recognized by our system of law, may be exploited consciously or unconsciously to secure a concession from an opponent on an unmeritorious claim or to cause him financial detriment or even ruin. The public importance of finality of litigation has long been recognized. Finality in a practical sense is equally as important as finality in a technical sense. In our view, justice to the opponent, in the special class of case to which we have referred, calls for an order which will operate so that an appellant, who has had the merits of his case determined at first instance, cannot enjoy the luxury of an appeal at the expense of his opponent. An appeal of the type and in the type of circumstances referred to may provide a 'special circumstance' referred to in Pt. 51, r.11 and a ground to exercise the discretion to make an order for security. The present is such a case."

There continue to be cases where it is appropriate to order security even though it will probably stifle an impecunious natural person's right of appeal. Most recently, Hoeben JA applied Lall in Starr-Diamond v Diamond [2013] NSWCA 7. His Honour said (at [30]-[31] and [35]):

"Given the difficult financial circumstances of the first respondent, it is intrinsically unfair that she should be exposed to the real prospect of a lengthy appeal in circumstances where if (as is likely) she is successful, she will be unable to recover her costs. I consider the prospects of success of the appellant to be poor. The issues before his Honour were relatively straightforward in the sense that having made factual findings and findings as to credit, he had to decide whether and to what extent any adjustment should take place in relation to the remaining assets held by the parties. I can see no obvious error in his Honour's statement of the law or in his Honour's application of it. Certainly, no such error has been identified in any ground of appeal. Insofar as his Honour's factual findings are concerned, they appear to be based on documentary evidence or on a credit based assessment of evidence which has not been properly challenged in any of the grounds of appeal.

The only significant argument available to the appellant on the motion is that the making of a security for costs order will almost certainly prevent her continuing with her appeal. On the other side of the ledger, the appeal has little prospects of success, the assets the subject of the appeal are modest in the extreme and are likely to be subsumed by legal costs should the appeal proceed. Finally, the first respondent's parlous financial position will render it difficult for her to defend the appeal and she will have no prospect of recovering any costs against the appellant. She will, in effect, lose the benefit of the orders made by the trial judge even if she is successful.

...

It follows that I am satisfied that there are special circumstances in the present case for an order for security for costs to be made in respect of the appeal. The appellant's current financial position has to be taken into account along with the extensive factual issues which she seeks to re-litigate in the appeal. The first respondent has already been put to considerable expense in defending proceedings brought by the appellant at first instance, in circumstances where the appellant comprehensively failed to make her case. If the appeal is allowed to proceed without a security for costs order being made, the first respondent will now be exposed to a lengthy and expensive appeal in circumstances where if she is successful, she has no prospect of recovering her costs."

The proceedings instituted in this Court by Mr Partington are not an appeal but an application for judicial review of the decisions of the District Court and the Tribunal. Nonetheless the reasoning in the cases to which we have referred is applicable to the present case. Mr Partington has had not one but two opportunities to put his case in the tribunal designated by Parliament as the specialist and largely exclusive body for disputes as to residential tenancies. He has exercised his right to a statutory appeal to the District Court, although he elected not to pursue the appeal once his attempt to postpone the proceedings did not succeed. On the materials before this Court he has demonstrated no arguable basis for the grant of relief under s 69 of the Supreme Court Act.

Although the proceedings in this Court invoke its original jurisdiction, Mr Partington seeks to deprive Pacific Link of the success it enjoys from the decisions of the Tribunal and the District Court. The strength of his challenge to those decisions can be assessed in light of the reasons given for those decisions. The present facts fall comfortably within the principles underlying cases in Australia in which an impecunious appellant may be ordered to provide security. Indeed, even if this decision fell to be determined in accordance with the current position in England, we are of the view that it would fall within the exceptional circumstances addressed in Ali v Hudson above.

What follows from the foregoing is this. Ward JA was led into error in proceeding on the basis that r 51.50 applied. However, it was an error on which nothing turned. Her Honour required there to be special circumstances, in accordance with that rule. That did not operate to the detriment of Mr Partington, or impair the principled exercise of discretion by her Honour. For it was open for security to be ordered in this Court's inherent jurisdiction, on the conventional basis that in substance Mr Partington was a litigant who had already enjoyed a hearing on the merits at first instance and was dissatisfied with the result. True it is that in the absence of any statutory appeal, Mr Partington was invoking this Court's supervisory jurisdiction, rather than its appellate jurisdiction. However, that fact does not make the principles on which security is granted any less onerous to the respondent.

(d) The claim of bias

Fourthly, there is no basis for Mr Partington's allegation that her Honour was biased. The transcript of the hearing before Ward JA reveals nothing that could possibly amount to apparent or actual bias. Mr Partington adduced no evidence and advanced no argument capable of sustaining the allegation. To the extent that his claim was based on apprehended bias, he needed to identify the matter which might lead the judge to decide a case other than on its legal and factual merits, and he needed to articulate the logical connection between that matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [8]; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [63]. To the extent that his claim was based on actual bias, he needed to shoulder the factual burden identified in Michael Wilson at [33] and by Ward JA at [53].

Central to Mr Partington's complaint is his claim that her Honour had no regard to his inability to provide security. For example, the following exchange occurred:

"EMMETT JA: What is it you point to in support of your very serious assertion that her Honour was biased other than the fact that she made a decision which you say is wrong and we'll hear you about that. I would like to hear you first on what you say are the facts that constitute evidence of bias on the part of Ward J?

PARTINGTON: Like I said you're a judge and you've got your way of seeing things. I saw it the way that I saw it. She was brought - it was brought to her attention the eligibility, the fact that I didn't have $10,000. This was all brought to her attention and this was completely ignored. So me personally if someone informs me they don't have 10,000 and the eligibility that would be, you know, for me to register in my - for me that would clearly state that they couldn't continue proceeding unless this $10,000 in security costs was not ordered. The fact that it was brought to her attention and it was ignored by her couldn't be classed as a mistake in my opinion. When someone's brought aware and brought to their attention and they know about it and they don't really act in which in my opinion was a fair way, and that for me could be perceived as a bias."

But once again, that submission, which was made repeatedly by Mr Partington (eg Transcript p 3 ln 44 ("And Ward JA was made aware of that during the proceedings and this was completely ignored"), Transcript p 7 ln 41 ("The fact that it was brought to her attention, she knew about it and in my opinion she ignored it"), is simply not correct. Her Honour expressly had regard to Mr Partington's impecuniosity at [44]:

"My concern in relation to the application for security for costs is twofold. First, it is a concern that the appellant is self represented, is of sufficiently low income to have been entitled to community housing support for a number of years and asserts that this will have the effect of stultifying the appeal. Such an order may also be likely to lead to the incurral of further expenses on interlocutory applications prior to the hearing of the appeal which is listed in July in any event."

Moreover, Mr Partington's argument rests on the error noted by Basten JA in Barakat v Goritsas (No 2) [2012] NSWCA 36 at [40]:

"No authority is needed for the proposition that an apprehension of bias, in the sense of an apprehension of prejudgment, does not mean an apprehension that the case will be determined adversely to the interests of the complaining party. It means a reasonable apprehension that the trial judge has formed a fixed view, to which it may be expected that he or she will adhere, regardless of the evidence or the submissions made by the complaining party."

(e) Mr Partington's obstructive conduct and abusive correspondence

Fifthly, her Honour regarded what she described (at [45]) as the "abusive correspondence and the obstructiveness of Mr Partington in relation to the service of documents and the like, and non-compliance with the Rules in relation to appeals" as warranting an order for security. In our view, in considering whether there were exceptional circumstances warranting an order for security, it was open to her Honour to take that course.

It was not contended that there was any error in her Honour's findings, made on an interlocutory basis, as to the underlying facts. There was unchallenged evidence that documents could not be served upon Mr Partington (because of the direction he accepted he had made to Australia Post for documents to be returned to sender). Mr Partington acknowledged that he had a practice of deleting emails from Pacific Link's representatives without reading them. Some of Mr Partington's correspondence with Pacific Link's solicitor (including as to the service of his own documents) and the officers of this Court has been reproduced above. We have referred to some of the plainly incorrect claims made by Mr Partington, both to this Court and to Ward JA.

Ward JA stated (at [45]) that but for the manner in which the "appeal" had been pursued by Mr Partington (including the abusive correspondence, Mr Partington's obstructiveness and his failure to comply with procedural directions), she would not have been inclined to order security for costs. In our view, her Honour was entitled to take the view (as she did) that these matters indicated that the proceedings were an apparent abuse of process and that the lack of merit in Mr Partington's claims made it likely that the proceedings would inflict unnecessary costs on Pacific Link. Her Honour was also entitled to conclude that the case was an exceptional one, warranting an order for security.

Determination of Mr Partington's motion

The position before this Court in exercising its function pursuant to s 46(4) of review is different from that before Ward JA. The threshold question is whether time should be extended for the review to take place. That question is answered in light of the evidence before this Court, which includes material not before her Honour. In particular, the transcript of 13 December 2012 is in evidence, which was not before her Honour.

To the extent that the proceedings in this Court challenge the orders made by the District Court, Mr Partington has not demonstrated an arguable basis for the challenge. Moreover, the evidence before this Court and the manner in which Mr Partington conducted the proceedings reinforces the primary Judge's view that the substantive application is an abuse of the Court's process. This is demonstrated by Mr Partington 's claims as to the events that occurred on 13 December 2012 in the District Court. When confronted with the transcript of that day, Mr Partington, despite what he had previously told the Court, accepted that he had not in fact applied for an adjournment on the ground that is said to be the basis of his challenge to the District Court's decision. Thus, to the extent that the amended summons impugns the decision for failure to accord procedural fairness in response to an adjournment application, it engages the Court's power to protect itself and other litigants from abuse of its processes. Naturally, a finding of an abuse of process is a serious one, not lightly to be made: Williams v Spautz (1992) 174 CLR 509 at 529. But on the evidence before this Court (not all of which was before Ward JA), the abuse is plain.

The challenge to the decision of the District Court was at the forefront of Mr Partington's amended summons and his arguments to this Court. However, insofar as the amended summons challenges the decision of the Tribunal, Mr Partington has shown no arguable basis for a challenge on the ground of jurisdictional error (or any other wider ground that may be available under s 65 of the CTTT Act). Mr Partington's main contention appeared to be that the 2010 Act is invalid, but no plausible argument for that contention was identified. Insofar as Mr Partington relies on alleged factual errors, they do not provide a ground for review of the Tribunal's decision in the exercise of the Court's original jurisdiction.

It is to be regretted that the litigation has taken the course it has. There is much to be said, in terms of the efficient use of the parties' and the Court's resources, in dealing with the merits of proceedings invoking this Court's jurisdiction, rather than engaging in interlocutory applications. However, all of the foregoing is to be weighed in the exercise of the threshold question, namely, whether the Court should exercise its discretion to extend time to permit Mr Partington to seek review of Ward JA's decision.

In our opinion, no extension of time should be granted. Mr Partington's complaint about bias is unfounded. It is true that Ward JA proceeded on the basis that the proceedings in this Court were by way of an appeal, rather than an exercise of original jurisdiction. But her Honour was entitled to make the findings she did. Those findings would have amply justified an order for security had her Honour appreciated that the proceedings were properly regarded as an application for judicial review pursuant to s 69 of the Supreme Court Act. Moreover, as we have also explained, Mr Partington has not shown any arguable basis for his challenge to the decisions of the District Court and the Tribunal. On the contrary, the substantive application constitutes an abuse of the Court's process. A refusal of leave involves no injustice to Mr Partington, but avoids injustice that would otherwise be inflicted on Pacific Link.

Although the Court is conscious that Mr Partington is self-represented, it is plain that the second order sought in the applicant's notice of motion is bad on its face and cannot be cured, and there is no basis for seeking the leave sought in orders 3 and 4.

Finally, although Mr Partington has been given opportunities to tender the documentary evidence which he told this Court demonstrated that his motion had been sent to it within the time provided by the rules, he has not done so. Nor does his most recent affidavit contain any evidence that he did so. And it was plain from the documents in evidence, and what Mr Partington said at the hearing (and confirmed by other correspondence on the file) that Mr Partington was and is well aware of the need to pay, or else have waived or deferred, a filing fee in order for a notice of motion to be filed, and that waiver or deferral is not automatic.

It follows that the notice of motion seeking review of Ward JA's decision, filed out of time on 29 April 2013, should be dismissed. Costs should follow the event.

Determination of Pacific Link's motion

By its motion filed on 4 July 2013, Pacific Link seeks orders that the amended summons be dismissed. The only basis put forward is that the proceedings have been stayed because of the failure to provide security. As noted above, Mr Partington accepts for the purposes of this hearing that he has refused to provide the security ordered. In circumstances where Mr Partington has sought to review the orders made by Ward JA, and has not provided security pending the determination of that review, it would in our view be wrong to dismiss the proceedings at this stage. However, in the unusual circumstances of this proceeding the appropriate course is that flagged at the hearing and embraced by Pacific Link: to vary the order 4 made by Ward JA on 25 March 2013 so that it provides:

"Direct that Mr Partington be ordered to pay into the Registry of the Supreme Court of New South Wales the sum of $10,000 no later than 28 days from today, in default of which the proceedings are dismissed without further order."

There should be no order as to costs in respect of Pacific Link's motion.

Decision last updated: 09 August 2013

Medium Neutral Citation:	Partington v Pacific Link Housing Ltd [2013] NSWCA 259
Hearing dates:	19 July 2013
Decision date:	09 August 2013
Before:	Emmett JA at [1]; Leeming JA at [1]; Sackville AJA at [1]
Decision:	1. Dismiss Mr Partington's motion filed 29 April 2013. 2. Order that Mr Partington pay Pacific Link's costs of his motion filed 29 April 2013 as agreed or assessed. 3. Vary order 4 made on 25 March 2013 by Ward JA so that it provides: "Direct that Mr Partington be ordered to pay into the Registry of the Supreme Court of New South Wales the sum of $10,000 no later than 28 days from today, in default of which the proceedings are dismissed without further order." 4. Otherwise dismiss Pacific Link's motion filed 4 July 2013, with no order as to the costs of that motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - judicial review - review of decision of single judge of appeal: Supreme Court Act 1970, s 46 - extension of time - whether applicant established bias or error of principle APPEAL - no appeal lies from decision of Consumer, Trader and Tenancy Tribunal - no appeal lies from decision of District Court dismissing appeal from that tribunal - proceeding in the nature of judicial review - inapplicability of UCPR r 51.50 - power to order security for costs PROCEDURE - security for costs - impecuniousity - where order of security would likely stultify proceedings - circumstances where security may be ordered - abuse of process established - security ordered, with automatic dismissal if security not provided
Legislation Cited:	Civil Procedure Act 1995 Consumer, Trader and Tenancy Tribunal Act 2001 Convention for the Protection of Human Rights and Fundamental Freedoms District Court Act 1973 Equity Act 1901 Judiciary Act 1903 (Cth) Residential Tenancies Act 1987 Residential Tenancies Act 2010 Supreme Court Act 1970 Uniform Civil Procedure Rules
Cases Cited:	Ali v Hudson [2003] EWCA Civ 1793 Al-Koronky v Time-Life Entertainment Group Ltd [2006] EWCA Civ 1123 Bailey v Owners Corporation of Strata Plan 62666 [2011] NSWCA 293 Barakat v Goritsas (No 2) [2012] NSWCA 36 Brimelow v Sharpe [2012] NSWCA 345 Carey v Industrial Relations Commission [1999] NSWCA 189 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Collier v Lancer [2013] NSWCA 185 Cowell v Taylor (1885) 31 Ch D 34 Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; (2008) 234 CLR 124 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Ford v Labrador (Gibraltar) [2003] UKPC 41; [2003] 1 WLR 2082 Green (as liquidator of Arimco Mining Pty Ltd) v CGU Insurance Ltd [2008] NSWCA 148; (2008) 67 ACSR 105 Harlock v Ashberry (1881) 19 Ch D 84 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd [2009] HCA 43; (2009) 239 CLR 75 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 Lall v 53-55 Hall Street Pty Ltd [1978] 1 NSWLR 310 Logan v Bank of Scotland (No 2) [1906] 1 KB 141 McHenry v Lewis (1882) 22 Ch D 397 Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32; (2002) 54 NSWLR 82 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Morris v Hanley [2000] NSWSC 957 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; (2011) 80 NSWLR 282 Neale v Ancher Mortlock and Woolley Pty Ltd [2013] NSWCA 209 Porter v Gordian Runoff Ltd [2004] NSWCA 171 Preston v Harbour Pacific Underwriting Management Pty Ltd [2007] NSWCA 247 Rajski v Computer Manufacture and Design Pty Ltd [1983] 2 NSWLR 122 Starr-Diamond v Diamond [2013] NSWCA 7 Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 Williams v Spautz (1992) 174 CLR 509 Wilson v Smith (1876) 2 Ch D 67
Texts Cited:	Sir Jeffery Bowman, Review of the Court of Appeal (Civil Division): Report to the Lord Chancellor (1997) Lord Chancellor's Department W Parker, The Practice in Equity (1930) Law Book Company Zuckerman on Civil Procedure, 2nd ed (2006), Sweet & Maxwell
Category:	Interlocutory applications
Parties:	Ricky Partington (Applicant - in person) Pacific Link Housing Ltd (First Respondent) Consumer, Trader and Tenancy Tribunal (Second Respondent) District Court of New South Wales (Third Respondent)
Representation:	Counsel: A Hourigan (First Respondent) Solicitors: Chris Ryan Legal (First Respondent) Crown Solicitor's Office (Second and Third Respondents, submitting)
File Number(s):	12/390042
Decision under appeal	Jurisdiction: 9003 Citation: [2013] NSWCA 67 Date of Decision: 2013-03-25 00:00:00 Before: Ward JA File Number(s): 12/390042