PCCEF Pty Ltd (ACN 130 656 147) v Geelong Football Club Ltd (ACN 005 150 818)
[2018] VSCA 225
•5 September 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0128
| PCCEF PTY LTD (ACN 130 656 147) | Applicant |
| v | |
| GEELONG FOOTBALL CLUB LTD (ACN 005 150 818) | Respondent |
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| JUDGE: | McLEISH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 31 August 2018 |
| DATE OF JUDGMENT: | 5 September 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 225 |
| JUDGMENT APPEALED FROM: | [2017] VSC 313 (Croft J) |
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PRACTICE AND PROCEDURE – Application for extension of time to file application for leave to appeal – Original proceeding commenced naming deregistered company as plaintiff – Judgment given against plaintiff – Deregistration discovered after judgment entered – Correct plaintiff argued original proceeding was nullity and opposed reinstatement of named plaintiff on advice of counsel – Deregistered company reinstated – Correct plaintiff substituted – Whether adequate explanation for delay – Whether prejudice to respondent – Application granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N J Young QC with Mr J C Hooper | Strongman & Crouch |
| For the Respondent | Mr P J Bick QC with Mr D F McAloon | B2P Lawyers |
McLEISH JA:
This matter, in which the applicant PCCEF Pty Ltd (‘PCCEF’) seeks an extension of time in which to file an application for leave to appeal, has a complicated procedural history.
Background to the application for an extension of time
The appeal is sought to be brought from orders made by Croft J on 9 June 2017, making declarations in respect of a lease of premises at 5 Sneydes Road, Point Cook. The parties to the proceeding, being the parties to the lease which was before the Court, were Point Cook Community Entertainment Facility Pty Ltd (‘Point Cook’) as plaintiff and Geelong Football Club Ltd (‘the Club’) as defendant. The Court made declarations as to the construction of the lease in favour of the Club.[1]
[1]Point Cook Community Entertainment Facility Pty Ltd v Geelong Football Club Ltd [2017] VSC 313.
Shortly after judgment was delivered, the then solicitors for Point Cook wrote to the Club’s solicitors advising that they had received instructions to lodge an application for leave to appeal. About three weeks later, on 3 July 2017, Point Cook’s solicitors wrote again to the Club’s lawyers advising that Point Cook had been deregistered on 25 August 2010. The letter further advised that the firm no longer acted and that another firm had been appointed as solicitors for PCCEF. The letter stated that the former solicitors could not act for Point Cook because it did not exist. It seems that there was a second, identical lease document in existence executed by PCCEF.
On 5 July 2017, the Club’s solicitors wrote to the new solicitors acting for PCCEF. The letter stated that it was apparent that the proceeding was at all times prosecuted by PCCEF as landlord and that the former solicitors had been acting on behalf of PCCEF. It asserted that the designation of the incorrect corporate entity as the plaintiff was the result of action taken by the solicitors and the ‘controlling mind of PCCEF’, Mr Michael Vickers-Willis.
In the letter, the Club’s solicitors sought the consent of PCCEF to orders being made for the substitution of PCCEF in place of Point Cook in the orders made by Croft J. Alternatively they sought the joinder of PCCEF as a plaintiff to the proceeding and the making of supplemental orders to the effect that the declarations that had been made on 9 June 2017 were binding upon PCCEF. The suggestion was made on the basis that PCCEF had been the true landlord under the lease.
On 6 July 2017, the new solicitors for PCCEF wrote to the Club’s solicitors stating that PCCEF was not a party to the proceeding and reserving the right to contend that the proceeding was a nullity in circumstances where the plaintiff had been deregistered in 2010. The new solicitors advised that they had briefed senior and junior counsel and that PCCEF would not consent to the proposed orders in the meantime. The solicitors did not address the claims made by the Club’s solicitors that PCCEF had been the landlord or that the former solicitors had acted in the litigation on the instructions of PCCEF, through Mr Vickers-Willis.
The Club subsequently served a summons dated 6 July 2017 on Point Cook and PCCEF seeking the orders it had foreshadowed.
The summons was the subject of a mention hearing before Croft J on 7 July 2017. There is controversy between the parties as to the inferences to be drawn from submissions made on behalf of PCCEF at this hearing and as to the correctness of a finding subsequently made by Croft J that the Court was misled (not necessarily intentionally) as a result of submissions made by then senior counsel for PCCEF.[2] At the hearing, counsel for the Club foreshadowed making an application for the reinstatement of Point Cook in order to address the contention that the proceeding had been a nullity. For that reason, the Club did not press for the orders sought in the summons on that day. Senior counsel then appearing for PCCEF submitted that the current intention of PCCEF was to issue a new proceeding which would not simply be a repetition of the previous action which had been ‘a matter of just pure construction’. Senior counsel indicated that he wanted time to consider the course that PCCEF should take. Counsel for the Club indicated that he also was seeking ‘not orders but time’ and that instructions would be sought as to the course the Club should take. Croft J adjourned the summons with costs reserved and liberty to apply.
[2]Not senior counsel who appeared on this application.
During the hearing, senior counsel for PCCEF submitted that authority of a single judge of the Australian Capital Territory Court of Appeal held that a company could not be reinstated for the purpose of reinstating a proceeding which is otherwise a nullity. Croft J raised an issue that was ‘troubling’ him, namely ‘whether the proper plaintiff has had an opportunity to put its case in the trial that’s happened’. He continued:
If we’ve got a situation where it’s simply the wrong name of a party, that’s quite simple to fix because if a trial is run in the wrong name but really by the same people who would be running the trial for the right name there’s presumably no injustice done because arguments are put, it’s the same entity really just there’s a problem with the name. But you’re saying to me it’s more than that.
Senior counsel responded ‘Yes’. The judge then referred to another case where ‘[i]t was simply a mistake in a particular company and that was easily fixed’ and said ‘you’re telling me it’s not like that here’. Senior counsel said ‘No.’ He then took the judge to the decision of Crispin P in Stergiou v Citibank Savings Ltd.[3] Counsel for the Club said the following on this matter:
Your Honour made an observation regarding a concern and quite a valid concern about whether the proper plaintiff has had an opportunity to put its case. Your Honour, the landlord ran his case. The named plaintiff didn’t exist. To the extent that it’s now being suggested that the landlord didn’t prosecute this case, we will put that proposition to its proof and if that requires evidence from the solicitors about who they took instructions from so be it.
That can be explored and will necessarily be explored in what we regard as the second phase under our proposed way of proceeding which is where we seek upon reinstatement if the company is reinstated, to press for supplemental orders and we say those orders can be made and should be made because they will be made without re-agitating issues previously argued and without varying the orders previously made. They’ll be made to bind non-parties to that original proceeding and there’s some authority given. I don’t want to have the argument today about that either.
[3][2005] ACTCA 15 (‘Stergiou’).
On 21 July 2017, PCCEF’s solicitors wrote to the Club’s solicitors advising that PCCEF intended to commence a proceeding against the Club seeking relief including a declaration as to the proper construction of the lease by which PCCEF leased the Point Cook premises to the Club. The lease in question was in identical terms to that which was before Croft J in the original proceeding but named PCCEF as the landlord. The letter advised that the proceeding would in the alternative seek relief by way of rectification. No such relief had been sought before Croft J. The foreshadowed proceeding was later filed but not served.
There was evidence that, at around this time, PCCEF had advice from its counsel and solicitors that it was ‘almost certainly’ PCCEF that had prosecuted the claim before Croft J.
On 25 July 2017, the Club filed and served an originating process seeking orders pursuant to s 601AH(2) of the Corporations Act 2001 (Cth) that the Australian Securities and Investments Commission reinstate the registration of Point Cook and a declaration pursuant to s 601AH(3)(c) that the issuing of the Supreme Court proceeding which was heard and determined by Croft J in the name of Point Cook be validated. Consent orders were made for the management of that proceeding on 11 August 2017 and the matter was heard by Randall AsJ on 13 September 2017.
On 13 October 2017, Randall AsJ made an order that the registration of Point Cook be reinstated pursuant to s 601AH(2) and that PCCEF pay the Club’s costs of and incidental to the application on a standard basis. Randall AsJ indicated that, given the provision of s 601AH(5) of the Corporations Act, he did not consider it necessary to make any orders pursuant to sub-s (3).[4] Section 601AH(5) provides, among other things, that if a company is reinstated, it is taken to have continued in existence as if it had not been deregistered.
[4]Geelong Football Club Ltd v Australian Securities and Investments Commission [2017] VSC 633 [63] (‘Reinstatement reasons’).
In the reinstatement proceeding, then senior counsel for PCCEF submitted that reinstatement of Point Cook would be futile because the proceeding before Croft J had been a nullity as a result of having been commenced by a non-existent company. Randall AsJ carefully considered a number of authorities bearing on the question whether a judgment was a nullity on the basis of the non-existence of one of the parties to the relevant proceeding.[5] He held that Stergiou was distinguishable from the present case, because:
there is evidence to suggest (and both parties readily agree) that the proceedings were commenced with an error in the plaintiff’s name. Therefore, the proceeding could equally be characterised as a misnomer or a mistaken identity which would be an irregularity rather than being a clear case of null and void. Having identified the issue, it is not appropriate for me to determine the point or say anything more.[6]
[5]Ibid [35]–[56].
[6]Ibid [54].
Randall AsJ concluded that ‘in special circumstances, such as the present, it is not a clear case of stating that the proceedings are a nullity, and therefore all decisions based upon it, are also nullities’.[7] Randall AsJ further noted that, even if the orders of Croft J were a nullity, an order of a superior court is ‘never void, only voidable, and therefore the judgment stands until an order is made to annul it’.[8]
[7]Ibid [56].
[8]Ibid [61].
Point Cook was duly reinstated on 27 October 2017. On that day, PCCEF filed a notice of appeal in respect of the judgment and orders of Randall AsJ. The solicitors for PCCEF had foreshadowed this course on 25 October 2017, noting that 27 October 2017 was the date by which any notice of appeal was due to be filed. PCCEF’s solicitors indicated in their letter of 25 October 2017 that PCCEF considered that the appropriate course would be for the Club to agree that the proceeding heard before Croft J ‘remain in abeyance until the disposition of [PCCEF’s] intended appeal’.
The letter of 25 October 2017 went on to state, without prejudice to the position just explained, that if at any time orders were made in the terms of the 6 July 2017 summons, PCCEF intended to apply for leave to appeal the judgment and orders of Croft J and further or alternatively to reopen that proceeding. The letter stated that it was the view of PCCEF that, in circumstances where the judgment and orders made on 9 June 2017 were ‘not presently binding on the landlord of the property, being [PCCEF]’, and PCCEF was ‘not presently a party to the … proceeding’,
no proper purpose [was] to be served by either [PCCEF] or [Point Cook] applying for leave to appeal the Croft J judgment and order at the present time or at any time before an order is made joining [PCCEF] to the proceeding and by which that judgment and order become binding on it.
The letter requested that the solicitors for the Club indicate by 30 October 2017 whether the Club intended to object to PCCEF ‘awaiting the making of any order in the [original] proceeding before making any application for leave to appeal the Croft J judgment and relevant orders’. The letter concluded by stating that PCCEF ‘would make any such application within the time specified in rule 64.05 of the Rules by reference to the date of the making of the subject order’.
The Club’s solicitors responded on 26 October 2017 indicating that the Club did not consent to the original proceeding ‘remaining in abeyance’. The letter stated that the Club would seek to have the matter relisted and determined in a timely manner. The letter stated that there was no reason why the original proceeding could not progress ‘in parallel with any appeal by [PCCEF] of Randall AsJ’s judgment’. The letter stated that PCCEF had chosen not to seek leave to appeal against the decision of Croft J ‘and instead chose to contend the proceeding was a nullity and not binding on, and incapable of being binding on’ PCCEF. The letter stated that PCCEF had chosen not to adopt the ‘simple’ approach suggested by the Club to remedy the misdescription of the plaintiff in the original proceeding and had instead elected ‘to rely on a technicality in the hope of avoiding Croft J’s adverse judgment’. The letter concluded by stating that the time to appeal the judgment of Croft J had passed and that the Club would oppose any attempts by PCCEF to do so.
The solicitors for PCCEF responded on 27 October 2017 stating, among other things, that PCCEF proposed to proceed in accordance with its alternative position advanced in the letter of 25 October 2017. That position was reiterated in a letter of 8 November 2017. In that letter, the solicitors for PCCEF indicated that they were in the process of preparing the contemplated application for leave to appeal against the judgment and orders of Croft J. The letter noted that PCCEF had been reinstated on 26 October 2017[9] and suggested that the assertion made by the Club that the time for any attempt to appeal had long passed could not therefore be correct. The letter concluded by stating that Mr Vickers-Willis had provided instructions to Point Cook’s solicitors at all relevant times for the purpose of the proceeding before Croft J, adding that ‘PCCEF fails to understand how that fact, or the capacity in which Mr Vickers-Willis instructed Grindal & Patrick, is relevant to the question of whether that proceeding is a nullity that cannot be cured’.
[9]The actual date of reinstatement was 27 October 2017.
On 22 November 2017, PCCEF’s solicitors wrote to the solicitors for the Club noting a number of matters by reference to a summons which the Club had served dated 15 November 2017. That summons sought orders directed at establishing who gave instructions in the proceeding, and on behalf of which entity. Among other things, the letter advised that Mr Michael Vickers-Willis had provided instructions in relation to the proceeding and considered that he had done so in his capacity as a director of PCCEF and not on behalf of Point Cook. The letter stated that Mr Vickers-Willis considered that it was by oversight that the incorrect entity had been named as plaintiff in the writ and that this error had not been identified at an earlier time.
This letter belatedly confirmed what PCCEF had known since at least 25 July, namely that it had prosecuted the claim before Croft J. The Club’s solicitors had alleged as much in their letter dated 5 July 2017. Croft J later stated that it had been ‘incumbent on the parties and their practitioners to ensure that the Court was informed of the true position as soon as it was established’.[10] He further stated that, once it was accepted that PCCEF had conducted the proceeding from the beginning and that Point Cook had been named as plaintiff in error, ‘reliance by PCCEF on the nullity point was entirely unjustifiable’.[11] Croft J said that, rather than remedying the ‘slip’ expeditiously as it was obliged to do, PCCEF had sought to render the judgment ineffective by a strategy that had no relation to the real issues in dispute between the parties.[12]
[10]PCCEF Pty Ltd v Geelong Football Club Ltd [2018] VSC 258 [62].
[11]Ibid [64].
[12]Ibid.
On 24 November 2017, Point Cook filed an application for extension of time and leave to appeal. This was 28 days after Point Cook’s reinstatement but some 126 days after the time for commencing an application for leave to appeal against the orders of Croft J expired (taking into account the 14-day grace period provided for in the April 2017 notice to the profession).
The appeal against the orders of Randall AsJ was heard by Sifris J on 29 November 2017. That appeal was dismissed on 7 December 2017.[13] Sifris J did not determine the nullity question, which he described as ‘vexed and complicated’.[14] He ordered that PCCEF pay the Club’s costs of the appeal on the standard basis.
[13]Re Pt Cook Community Entertainment Facility Pty Ltd [2017] VSC 727.
[14]Ibid [18].
On 18 December 2017, Croft J ordered that the name of the plaintiff in the proceeding which he had determined be amended to PCCEF Pty Ltd and that the title of the proceeding be amended accordingly. Those orders were not opposed by PCCEF. On 22 January 2018, Irving JR ordered that the name of the applicant in the application for leave to appeal be amended to PCCEF Pty Ltd and that the title of the proceeding be amended accordingly.
Finally, on 3 May 2018 Croft J heard an application by PCCEF to reopen the trial in order to advance a rectification argument. The judge dismissed that application on 23 May 2018,[15] and on 15 June 2018 he ordered that PCCEF pay the Club’s costs on an indemnity basis.[16] In his reasons as to costs, the judge held that the application for reopening was entirely unsuccessful in every respect and that the application had fundamentally failed to establish a jurisdictional basis for the Court to entertain it.[17] Moreover, the conduct of PCCEF following delivery of the original judgment disclosed a strategy of seeking to avoid that judgment in a series of acts of litigious brinkmanship inimical to the overarching purpose of the Civil Procedure Act 2010.[18]
[15]PCCEF Pty Ltd v Geelong Football Club Ltd [2018] VSC 258.
[16]PCCEF Pty Ltd v Geelong Football Club Ltd [No 2] [2018] VSC 309.
[17]Ibid [13].
[18]Ibid [15].
PCCEF has filed an application for leave to appeal against this costs order, but not against the refusal of its application to reopen the proceeding. In the proposed appeal, PCCEF takes issue, in particular, with the finding of Croft J referred to earlier to the effect that the Court was misled by then senior counsel for PCCEF on 7 July 2017. PCCEF also seeks to challenge the conclusions of Croft J regarding the nullity point.
In the meantime, by agreement between the parties, a valuer was appointed to calculate the amount of rent which the Club was entitled to be refunded according to the judgment of Croft J. That amount was ascertained on 5 January 2018 and PCCEF deposited the sum of $1,173,369.88 into a joint interesting-bearing account accordingly, pending resolution of the applications in this Court.
Submissions of the parties
In its written submissions in support of the application, PCCEF sought an extension of time on the basis that it is necessary to do justice between the parties. It submitted that its proposed appeal has a real prospect of success. It argued that the delay was reasonable because Point Cook could not prosecute an application for leave to appeal until it was reinstated, and it lodged its application 28 days after that was done. PCCEF submitted that it could not appeal until it became a party to the proceeding on 18 December. It submitted that there is no relevant prejudice to the Club caused by the delay.
Mr Young QC, appearing for PCCEF, submitted that PCCEF proceeded at all times upon legal advice having a proper basis. If the course taken was subsequently considered to have been mistaken, he submitted, the client should not be visited with the consequence of being denied an extension of time.[19] It was submitted that the Club was always on notice that PCCEF wished to appeal, if that course was open, but that nothing could be done until the question of nullity and reinstatement was resolved.
[19]Kambouris v Kiatos [2016] VSCA 266 [27], [38]–[39] (McLeish JA and Riordan AJA), citing Murphy v Doherty (Unreported, Supreme Court of Victoria Appeal Division, Tadgell and Cummins JJ, 4 February 1994).
Mr Young submitted that both parties recognised that the possible non-existence of the underlying proceeding needed to be addressed before steps towards an appeal could be taken. He submitted that the judgments of Randall AsJ and Sifris J showed that the issue was not straightforward. Neither had ordered costs against PCCEF on an indemnity basis. He noted that Randall AsJ had recorded that both parties had agreed that the proceeding was commenced in the plaintiff’s name by error.
PCCEF also submitted that it had been clear to both parties throughout that Mr Vickers-Willis was instructing the plaintiff’s solicitors, and that, if Point Cook did not exist, he must have been doing so on behalf of PCCEF. The Club’s solicitors had asserted as much in their letter of 5 July 2017. Mr Young submitted that senior counsel for PCCEF should be understood as having been referring to the nullity issue when he assented to the proposition on 7 July 2017 that it was more than a ‘problem with the name’, and that it would be unsafe to conclude otherwise.
Mr Young submitted that, even if PCCEF had sought leave to appeal as a non-party to the proceeding, no time would have been saved. It would still have been necessary to decide whether the proceeding had been a nullity or to avert that issue by having Point Cook reinstated.
The Club submitted that the application was filed 140 days out of time, without a sufficient explanation. It submitted that PCCEF failed to provide any explanation of the events between the delivery of judgment and the making of the reinstatement order until the Club advanced evidence as to those matters. The Club submitted that PCCEF’s failure to concede that it was the true plaintiff until 22 November 2017 caused material delay and significant costs, together with a waste of court time and resources. The Club submitted that PCCEF made a deliberate choice to advance the nullity argument and should be fixed with the consequences of that decision.
On behalf of the Club, Mr Bick QC submitted that in circumstances where the proceeding had been conducted by PCCEF, the true landlord, it could not reasonably be argued that it was a nullity. Rather, there was an error in the description of the plaintiff that was readily fixable by amending the name, as was ultimately done by consent. He submitted that the nullity argument was abandoned only after the Club’s proposed summons directed at identifying who gave instructions for the conduct of the proceeding led PCCEF to concede on 22 November 2017 that the instructions of Mr Vickers-Willis were given on behalf of PCCEF. Before that time, he submitted, PCCEF had only conceded that Mr Vickers-Willis gave instructions, without saying on whose behalf. Instead, PCCEF had pursued the strategy of contending for a nullity without disclosing the true position. That had involved alleging that PCCEF was not bound by Croft J’s decision even though PCCEF itself had conducted the case.
Mr Bick submitted that the delay had been egregious and directed at securing a tactical advantage for PCCEF, including by seeking to run a rectification case that Mr Vickers-Willis had, on behalf of PCCEF deliberately decided not to run before Croft J. He submitted that PCCEF could instead have sought leave to appeal as a non-party.[20]
[20]Molonglo Group (Australia) Pty Ltd v Cahill [2018] VSCA 147 [88]–[90] (Maxwell ACJ, Whelan and Kyrou JJA); Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2011) 28 ALR 38, 46 [35] (Emmett, Nicholas and Robertson JJ); Link Agricultural Pty Ltd v Shanahan [1999] 1 VR 466, 475 [23] (Kenny JA), citing Cuthbertson v Hobart Corporation (1921) 30 CLR 16, 25 (Knox CJ and Starke J).
Mr Bick submitted that the tactics employed by PCCEF had prolonged the commercial uncertainty surrounding the lease and deprived the Club in the meantime of the ability to access the fruits of its successful conduct of the proceeding, in an amount exceeding $1 million. He accepted for the purposes of the present application that the proposed appeal was ‘arguable’.
Consideration
In deciding whether to extend time within which to seek leave to appeal, the question is whether justice is best served by granting or refusing the extension sought.[21] It is necessary to take account of several factors, including:
[21]Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257, 263 (McInerney J).
(a) the length of the delay;
(b) the reasons for that delay; and
(c) the extent of any prejudice suffered by the respondent or any third party if the extension were to be granted.
It is well established that an extension of time will not be granted if the proposed appeal is ‘so devoid of merit that it would be futile to do so’.[22]
[22]See Kambouris v Kiatos [2016] VSCA 266 [23] (McLeish JA and Riordan AJA), citing Jackamarra v Krakouer (1998) 195 CLR 516, 519–24 (Brennan CJ and McHugh J); Muto v Secretary, Department of Planning and Community Development (2013) 38 VR 293, 296 [13] (Nettle AP and Neave JA).
The length of the delay in the present case is significant — 126 days including the 14 day grace period specified in the notice to the profession of April 2017. PCCEF rightly points to the fact that Point Cook, being a non-existent entity, could not have sought leave to appeal while it remained unregistered, and that it did so within a comparatively short time — 28 days — after it was reinstated. On the other hand, PCCEF itself could have attempted to seek leave as a non-party with an interest in the subject matter of the proceeding. Moreover, the reason for the delay was not that Point Cook was seeking reinstatement. It was instead resisting that very course. The Club was correct to identify the raising of the nullity argument as the key cause of the delay.
In raising and pursuing the nullity argument, PCCEF was pursuing an alternative strategy, directed at enabling it to litigate its rectification claim. That strategy had two aspects. The first was to bring a fresh proceeding on the footing that the first proceeding had been a nullity. The second was to seek to reopen the original proceeding. The Club’s response to the first course was to seek reinstatement of Point Cook. While this was the principal source of delay in seeking to appeal, that occurred as a result of the argument advanced by PCCEF, in the knowledge that PCCEF and not Point Cook had almost certainly prosecuted the proceeding before Croft J.
In substance, the question then is whether, by pursuing the course that it has, PCCEF is disentitled from seeking leave to appeal. That is not a matter of strict election. It depends more broadly upon the interests of justice, which here turn on the explanation for the delay and the extent of any prejudice it has caused to the Club. The question is ultimately whether the consequence of PCCEF’s deliberate tactical decision to pursue the nullity argument is that, as the Club submitted, having failed in that course it should not be allowed to pursue the alternative course of an appeal.
The approach taken by PCCEF has been stringently criticised both by Sifris J in the course of hearing the appeal against the reinstatement order and by Croft J in the reopening application. However, the question whether the proceeding was a nullity was recognised as one of difficulty and complexity by Randall AsJ and Sifris J, neither of whom resolved it. The point effectively went away once Point Cook was reinstated. Before that time, even though Mr Vickers-Willis had instructed the solicitors in the proceeding on behalf of PCCEF, there was ground for thinking that the proceeding might have been a nullity. The decision of Crispin P in Stergiou suggested that conclusion.[23] No authority was advanced for the proposition that an order can be made, in a proceeding conducted in the name of a non-existent plaintiff, substituting the plaintiff while the named plaintiff remains non-existent.[24] In the circumstances, and respecting that Croft J took a different view, I do not accept Mr Bick’s submission that the nullity point was not reasonably arguable.
[23]In that respect, it was correct to say that this was more than a case of mere mistake in a name.
[24]Authority rather suggests the contrary: see International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corporation of India [1996] 1 All ER 1017, 1024 (Evans LJ) (cited in Stergiou [2005] ACTCA 15 [20]). See also Woodings v Stevenson (2001) 24 WAR 221, 227 [25] (Owen J). But it is not necessary to decide the true position.
Randall AsJ found that the parties agreed that the proceeding below was commenced with an error in the name of the plaintiff.[25] Moreover, it was known to both parties from an early stage that Mr Vickers-Willis had given instructions in the proceeding. I do not accept the distinction sought to be drawn by Mr Bick between knowledge as to who was giving instructions and knowledge as to the identity of the client. By a process of elimination, if Mr Vickers-Willis was giving instructions he was doing so on behalf of the extant entity PCCEF and not the deregistered Point Cook. The letter of 5 July 2017 confirms that this was the Club’s understanding.
[25]Reinstatement reasons [54].
The transcript of the hearing on 7 July 2017 shows that the nullity issue that had been raised caused the Club to seek reinstatement of Point Cook. It did not then pursue its summons by which it sought what it now submits was the simpler way of fixing the situation, by simple amendment to correct the misnomer of the party. For the reasons given, I do not accept that the Club lacked sufficient knowledge to press for that course. But had it done so, in my opinion the nullity issue would still have loomed as an issue requiring resolution. Crispin P had said in Stergiou, among other things, that a step taken in a proceeding which was a nullity would itself be a nullity.[26] That presented a live issue for resolution. In the circumstances, the course of seeking reinstatement, advanced by the Club, was a sensible one.
[26]Stergiou [2005] ACTCA 15 [27].
The fact that it was left to the Club to pursue that course, and that PCCEF opposed it, can be characterised, as Mr Bick submitted, as stemming from a tactical decision taken by PCCEF to explore avenues for seeking to advance a rectification case which it considered that its previous lawyers ought to have pursued. In that regard, PCCEF can be criticised for not having made clear to the Club and the Court that it had conducted the proceeding before Croft J. But accepting this, and whatever the motivation for PCCEF’s course of action, there was sound reason to have the reinstatement question decided once the nullity issue had arisen. The principal delay in commencing an appeal then occurred because the reinstatement of Point Cook was being determined.
It is not to be overlooked that, in seeking to advance its rectification case, PCCEF was acting on the advice of its lawyers. The fact that the nullity issue properly arose raised possible courses upon which those lawyers were bound to advise and act (within the constraints of the Civil Procedure Act 2009). If in so doing, the lawyers acted in a manner contrary to their obligations under the Civil Procedure Act, the question might arise how such misconduct should bear on the discretion to extend time.[27] However, it is not necessary to address that question because it has not been shown, even assuming that there was any such misconduct, that it materially added to the delay already flowing from the need to resolve the nullity issue, or that it caused any additional prejudice.
[27]Kambouris v Kiatos [2016] VSCA 266 [27], [38]–[39] (McLeish JA and Riordan AJA).
Finally, I accept Mr Young’s submission that, even if PCCEF had sought leave to appeal as a non-party, the nullity question would have required resolution. Had the proceeding been a nullity, the suggested appeal would arguably have had no foundation.
For these reasons, I conclude that the delay has been explained and that the explanation is a sufficient one. It has not been necessary, in reaching this conclusion, for me to form a view as to whether Croft J was correct to regard the Court as having been misled on 7 July 2017, and I expressly refrain from doing so.
I do not consider that the Club has suffered any significant prejudice as a result of the delay. While it has been kept out of its money, the amount it has overpaid has, by agreement, been held in an interest-bearing trust account. That suffices, in my opinion, substantially to ameliorate any prejudice the Club might otherwise have suffered.
There is one final matter. Point Cook had stated its intention to appeal before its deregistration was known. Had an application then been made, it would have been within time, yet once the deregistration was discovered, matters may not have proceeded any more swiftly. The Club has known from an early stage that, if the proceeding was ultimately not a nullity, an appeal was intended.
In the circumstances, in my opinion the interests of justice are best served by granting an extension of time. The application will therefore be granted.
I will hear the parties on the question of costs.
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