Peers v Fletcher

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0122

VALERIE PEERS	Applicant
v
MARTIN FLETCHER	First Respondent
-and-
MAGISTRATES’ COURT OF VICTORIA	Second Respondent

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JUDGES:	KAYE JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	21 November 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 275
JUDGMENT APPEALED FROM:	Peers v Australian Health Practitioner Regulation Agency [2024] VSC 110 (Gorton J); Peers v Fletcher (& anor) [2024] VSC 427 (Watson J)

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JUDICIAL REVIEW – Appeal – Application for extension of time to file application for leave to appeal against orders as to costs – Application in respect of two separate proceedings – Delay of six months in respect of first proceeding and six weeks in respect of second proceeding – Applicant self-represented litigant – No adequate explanation for delay – Proposed grounds of appeal not sufficiently arguable – Application for extension of time refused.

Supreme Court (General Civil Procedure) Rules 2015, rr 64.05, 64.08, 64.15, referred to.

Gippsreal Ltd v Kenny [2016] VSCA 65, considered, Northern Territory v Sangare (2019) 265 CLR 164, applied.

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Counsel
Applicant:		In person
First Respondent:		Ms Catherine Boston KC with Mr Minh-Quan Nguyen
Second Respondent:		No appearance
Solicitors
Applicant:	In person
First Respondent:	Russell Kennedy Lawyers
Second Respondent:	No appearance

KAYE JA:

By an application filed on 17 October 2024, the applicant, pursuant to r 64.08 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), applies for an extension of time within which to file and serve an application for leave to appeal from orders made by the Trial Division of this Court in two separate proceedings. The application for an extension of time has been referred to me, to be determined on the papers, pursuant to r 64.15(1) of the Rules.
In each proceeding, the first respondent, Martin Fletcher, was the first defendant, and the second respondent, Magistrates’ Court of Victoria, was the second defendant. Mr Fletcher is the Chief Executive Officer of the Australian Health Practitioner Regulation Agency (‘AHPRA’).

The first proceeding

In the first proceeding (S ECI 2023 04834), the applicant, by originating motion, applied for judicial review of a decision by a magistrate not to make a suppression order in proceedings involving the applicant.
That proceeding, together with two other proceedings in which the applicant is the plaintiff, was listed for hearing before Gorton J on 23 February 2024.
On 22 February 2024, the applicant served on the respondents in the proceeding an unsworn affidavit, seeking an adjournment of the hearing on 23 February 2024, together with a medical certificate. In response, the solicitor for the respondent notified the court that the respondent would consent to the applicant appearing remotely on 23 February 2024, that the respondent neither consented to, nor opposed, the applicant’s request for an adjournment, and that the respondent would apply for costs thrown away by reason of the adjournment, if the matter was adjourned.
On the following day, 23 February 2024, the matter came on for hearing before Gorton J. There was no appearance on behalf of the applicant. The respondent was represented by counsel. In discussion with the judge, counsel for the respondent repeated his instructions, which were to neither consent to, nor oppose, the application by the applicant for an adjournment. Counsel noted that the affidavit, served by the applicant, had not been sworn. The judge noted that the medical certificate did not contain any detail concerning the nature of the applicant’s medical condition, and it did not explain why it precluded the applicant from presenting oral argument via Zoom.
The judge then ruled that he would grant the application for an adjournment. He also made an order that the applicant pay the respondent’s costs thrown away by reason of the adjournment. The judge noted that that order was not made on the basis that costs are punitive. His Honour stated:
A costs order reflects the reality that when a matter is adjourned costs are incurred that are wasted and the court has to make an assessment on whom the liability for those costs should be placed in the interests of justice. In this case the first defendant [the first respondent] is not at all responsible for what has occurred, and I think it appropriate that I make an order that the plaintiff pay the first defendant’s costs thrown away by reason of the adjournment, to be taxed in default of agreement on the standard basis.
The formal orders, entered by the court, contained a notation under ‘Other matters’ in the following terms. The proceeding had been given an expedited hearing date on the application of the applicant. In her application for an adjournment, the applicant had provided an affidavit that exhibited a medical certificate that expressed the opinion that the applicant was required to ‘isolate’ for two days to rest her ‘ill throat’. The medical report did not: identify the applicant’s medical condition; state the extent to which the applicant was, or was unable, to talk or proceed with the court proceeding conducted by audio-visual link; state whether the doctor was aware that the certificate was being relied on in support of an application to adjourn a court proceeding on the grounds of ill-health; or state when the applicant would likely be fit enough for the trial to continue. The applicant was provided with an audio-visual link for the proceeding, but, by email, she stated that she would not participate in it.
In the proposed application for leave to appeal, the applicant has specified three grounds on which she seeks to rely, namely:
Ground 1: Unreasonableness in relation to awarding costs
Ground 2: Taken into account irrelevant considerations
Ground 3: Jurisdictional error in relation to awarding costs

The second proceeding

In the second proceeding (SECI 2024 02357), the applicant, by way of originating motion, applied for judicial review of an order of a magistrate adjourning proceedings for a committal mention. In those proceedings in the Magistrates’ Court, the applicant had been charged, by the first respondent, with breaching provisions of the Health Practitioner Regulation National Law (Victoria).
Following service of the second proceeding, the solicitor for the first respondent sent an email to the applicant, inviting her to withdraw the originating motion, and advising the applicant that if she did not do so, and if the applicant were to be unsuccessful in the proceeding, the first respondent would make a costs application against her.
The originating motion came on for hearing before Watson J on 12 July 2024. On 24 July, the judge delivered his reasons, dismissing the proceeding with costs.[1]
[1]Peers v Fletcher [2024] VSC 427.
By the proposed application for leave to appeal, the applicant seeks to appeal the order for costs, made by Watson J, on the following ten grounds:
Ground 1: Jurisdictional error in relation to awarding of costs.
Ground 2: Failed to take into account a relevant consideration – the interest of the defendant.
Ground 3: Failed to take into account a relevant consideration – the public interest of the matter.
Ground 4: Jurisdictional error in relation to awarding of costs resulting in general application of a devised rule of the court.
Ground 5: Failed to act according to law in relation to the issues of form.
Ground 6: Error in law in relation to extraterritorial operation of state acts.
Ground 7: Error in law in relation to misunderstanding relevant High Court case law.
Ground 8: Failed to take into account a relevant consideration the constitutional implications of the impugned state act.
Ground 9: Jurisdictional error in relation to the inability for the state court to determine the constitutional validity of the agreement between the states and territories giving rise to the impugned legislation.
Ground 10: Errors in law in mischaracterising my legal arguments in order to defeat them.

Application for extension of time

Rule 64.05(1) of the Rules provides that an application for leave to appeal must be filed within 42 days after the decision to which the application relates was made. Thus, the proposed application for leave to appeal the orders of Gorton J in the first proceeding has been made in excess of six months after the expiration of the time fixed by the rule. The application for leave to appeal the orders made by Watson J in the second proceeding was made some six weeks after the expiration of that time.
In support of the application for an extension of time, the applicant filed short submissions, in which she has stated four reasons why an extension of time should be granted to her, namely:
(1)The applicant is a self-represented litigant, who is not a lawyer.
(2)The applicant has commenced a number of proceedings, including the two proceedings that are the subject of this application, and they take an ‘extraordinary amount of time and research’, so that the applicant can ‘only devote a certain amount of time to each’. As a result, the applicant has had to give priority to issues of substance, and has not been able to direct her attention to the issue of costs arising in the two matters, which are now before the Court.
(3)The issue of costs is an important issue, in particular in a case in which the other party is a regulatory Board, which is required to operate the system in an accountable manner. It is submitted that the orders for costs should not be used to deter practitioners from holding the Board and AHPRA to account. The matters, which the applicant seeks to argue, have a ‘great public interest’.
(4)The matter has now become urgent, because the respondents are pressing payment of their costs.
In response, the first respondent has filed submissions, in which it contends that the Court should not grant the application for an extension of time. First, it is submitted, the delay by the applicant, in particular in relation to the first proceeding, is substantial and inordinate. Secondly, it is submitted that the applicant has not offered an appropriate explanation why she was unable to comply with the prescribed time limits for filing and serving an application for leave to appeal. Thirdly, it is submitted that it would be futile to grant an extension of time in either proceeding, as neither of them have appropriate prospects of success.

Extension of time — principles

The principles, governing the exercise by the Court of its discretionary power to grant an extension of time, are well-established.
In Gippsreal Ltd v Kenny,[2] Kyrou JA summarised those principles in the following terms:
Pursuant to r 64.08 of the 2015 Rules, the Court has a discretion to extend the time for the filing of an application for leave to appeal. As with the exercise of any other discretion by the Court, the Court must seek to give effect to the overarching purpose in s 7 of the CP Act, namely to ‘facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.’ The factors that are relevant to the exercise of the discretion under r 64.08 include the length of the delay, the reasons for the delay, the prospects of the application for leave to appeal succeeding and the extent of any prejudice to a respondent.[3]
[2][2016] VSCA 65.
[3]Ibid [21] (Kyrou JA); see also Jackamarra v Krackouer (1998) 195 CLR 516, 519–24; Muto v Secretary of the Department of Planning and Community Development (2013) 38 VR 293, 296 [13] (Nettle AP and Neave JA); Fernandez v EJ Industries Ltd [2020] VSCA 139, [10] (Beach and Kaye JJA).

Analysis and conclusion

In each proceeding, the delay by the applicant, in seeking to file and serve an application for leave to appeal, was substantial, particularly in the case of the first proceeding. In a case involving such a delay, the applicant is required to provide an appropriate explanation, not only for the failure to commence the application for leave to appeal within the time prescribed by the Rules, but, in addition, for permitting the further period of time to elapse before commencing the present application.
In that respect, the circumstance, that the applicant is self-represented, might account for some difficulty which the applicant might have experienced complying strictly with the time limit prescribed by O 64.05. However, it does not, of itself, explain or excuse the inability of the applicant to comply with the prescribed time limit. The orders for costs in each case were a confined part of the particular proceeding. In each case, the formulation of appropriate grounds of appeal did not require the applicant to read, or analyse, a significant body of material.
The fact, that the applicant was engaged in other legal proceedings, might also explain why the applicant might have had difficulty complying strictly with the time limit prescribed by the Rules. However, that circumstance does not provide any appropriate explanation or excuse for the length of the delay that occurred in each case. As the first respondent has observed in his written submissions, this is not a case in which the applicant has sought to meet the prescribed deadline, but has been unsuccessful in doing so. Rather, it would seem that the applicant simply did not give any consideration to the question whether she should have applied for leave to appeal against the two costs orders until some time after the expiration of the time prescribed by the Rules for the commencement of any such application.
Thus, in each case, the delay was substantial, and the applicant has failed to proffer any appropriate explanation, or excuse, for the delay. In those circumstances, it is necessary to give some consideration to the prospects of the applications for leave to appeal succeeding, in the event that an extension of time were to be granted to the applicant.
The starting point is that, in each case, the order, in respect of which the applicant would seek leave to appeal, was an order made in the exercise of the discretion by the court in respect of the question of costs. In such a case, the appellate court may only interfere where the decision as to costs involved an error of law, or where the award of costs was manifestly unreasonable.[4]
[4]Spotless Group Ltd v Premier Building and Consulting Pty Ltd [2008] VSCA 115, [10] (Redlich JA); ETNA v ARIF [1999] VSCA 99; [1999] 2 VR 353, 378 (Batt JA).
In her notice of application for leave to appeal in the first proceeding, the applicant seeks to rely on three grounds.
First, the applicant contends that it was unreasonable for Gorton J to award costs against her, as the fact that she was unwell was a sufficient excuse.
In that respect, the judge noted that the medical certificate, relied on by the applicant, did not specify the nature of the applicant’s medical condition and why it would preclude the applicant from appearing by audio-visual link and presenting her argument through that medium. In those circumstances, it could not be maintained that it was unreasonable for Gorton J to award costs against the applicant, notwithstanding that she was too unwell to physically attend the proceeding.
The same consideration applies to the second proposed ground sought to be relied on by the applicant, that the judge relied on an irrelevant consideration, namely, that she would be able to attend the proceeding by audio-visual link.
Contrary to the submission made by the applicant, quite clearly, that consideration was relevant. In recent times, and particularly since the restrictions that were imposed as a result of the COVID-19 pandemic, it has been quite common for litigants, and their legal representatives, to appear by audio-visual link. The fact that that process was available to the applicant, in order to cater for her ill-health, was clearly relevant to the determination by the judge that she should bear the costs of the adjournment.
The third basis relied on by the applicant was that, in some way, the award of costs against her was a ‘jurisdictional error’.
Contrary to the submission made by the applicant in that respect, Gorton J did not ‘merely assume’ that costs ordinarily are awarded against a party who is unable to attend a proceeding. The judge made clear why, in the circumstances, it was appropriate for costs to be awarded against the applicant, in a case in which the first respondent was not at all responsible for the matter being adjourned.
For those reasons, each of the proposed grounds of appeal in the first proceeding lack sufficient merit to be a basis for a grant of leave to appeal, if an extension of time were granted to the applicant. It follows that the application for an extension of time within which to seek leave to appeal against the decision of Gorton J in the first proceeding must fail.
In respect of the second proceeding, the applicant relies on ten proposed grounds upon which to seek leave to appeal against the decision of Watson J to award costs against her.
The starting point, in considering those grounds, is that the ordinary rule is that, unless there are particular circumstances which would justify a different order, costs must follow the event, so that the successful party is ordinarily entitled to his or her costs of the proceeding.
In Northern Territory v Sangare,[5] the High Court expressed that principle in the following terms:
A guiding principle by reference to which the discretion is to be exercised – indeed, “one of the most, if not the most, important” principle – is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party. The application of that principle may be modified or displaced where there is conduct on the part of the successful party in relation to the conduct of the litigation that would justify a different outcome. For example, a successful defendant may be refused its costs on the ground that its conduct induced the plaintiff to believe that he or she had a good cause of action. But in the present case, there was nothing of this kind in the conduct of the appellant in relation to the litigation that might have weighed against the exercise of the discretion in its favour. There was no suggestion of any conduct on the part of the appellant, whether by unreasonable delay or a want of the cooperation required of litigants to ensure the “just resolution of the real issues in civil proceedings with minimum delay and expense”, that might have been taken into account to justify refusing the appellant an order for its costs.[6]
[5](2019) 265 CLR 164.
[6]Ibid 173 [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ).
Turning to the proposed grounds relied on by the applicant, the first and fourth grounds, sought to be relied on, are based on the proposition that Watson J ‘merely assumed’ that costs are ordinarily awarded against a losing party. As the High Court makes clear in the passage I have just quoted, that proposition is entirely correct. Watson J properly proceeded on the basis that, the first respondent having succeeded in the litigation, he was entitled to his costs.
The second and third proposed grounds of appeal are based on the proposition that the proceeding involved a ‘public interest’, which provided the applicant with an immunity from the requirement that she pay costs. The fact that the second proceeding might have raised some issues of more general relevance or importance was not a basis upon which it was incumbent on the court not to award costs in accordance with the usual principle, that the successful party, namely, the first respondent, was entitled to those costs.

Grounds 5 to 10 are not directed to the order for costs made by the judge in the second proceeding. Rather, they are directed to the merits of the judge’s decision to dismiss the substantive proceeding. None of those grounds, therefore, are relevant to a determination, whether there is arguable error in the decision of the judge to award costs to the respondent in the proceeding.
It follows, from the foregoing, that the proposed grounds of appeal sought to be relied on by the applicant, in respect of the second proceeding, would not be a sufficiently arguable basis for the grant of an application for leave to appeal, if an extension of time were granted to the applicant. In circumstances in which the delay was substantial, the applicant has not provided any appropriate explanation or excuse for that delay, and the lack of sufficient arguable grounds in relation to the proposed grounds of appeal, it follows that the application for an extension of time must be refused.

Summary of conclusions

For the foregoing reasons, in each case, the delay was substantial (particularly the delay in the first proceeding), the applicant has not provided a sufficient reason or excuse for the delay, and the proposed grounds of appeal are not sufficiently arguable to warrant the grant of an application for leave to appeal if an extension of time were granted to the applicant for that purpose.
It follows that the application for an extension of time must be refused.

[2024] VSCA 275

21 November 2024