Quach v ATM Residential Pty Ltd
[2022] ACTCA 47
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Quach v ATM Residential Pty Ltd |
Citation: | [2022] ACTCA 47 |
Hearing Date: | 21 September 2022 |
DecisionDate: | 21 September 2022 |
Before: | Elkaim J |
Decision: | (i) The application filed by Michael Van Thanh Quach on 29 August 2022 is dismissed. (ii) The applicant is to pay the respondent’s costs of the application. |
Catchwords: | APPEAL – APPLICATION – Application to stay orders made by the primary judge – where applicant submits that the respondent did not seek leave to file out of time an interlocutory application in the primary court – where the applicant submits the respondent relied upon contrary factual statements in its application – application to stay orders dismissed – costs for the respondent |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 230, 5301 Supreme Court Act 1933 (ACT) s 37J |
Cases Cited: | Davey v Herbst [2011] ACTCA 27 Ferella v The Official Trustee in Bankruptcy [2015] NSWCA 81 Re Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422 |
Parties: | Michael Van Thanh Quach ( Appellant) ATM Residential Pty Ltd Trading As McGrath North Canberra ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) J Moffett ( Respondent) |
| Solicitors Self-represented ( Appellant) McInnes Wilson Lawyers ( Respondent) | |
File Number: | ACTCA 42 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: McCallum CJ Date of Decision: 19 August 2022 Case Title: Quach v ATM Residential Pty Ltd Citation: [2022] ACTSC 210 Court File Number: SC 40 of 2022 |
Elkaim J:
I am sitting in this matter as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).
For convenience I will refer to Michael Van Thanh Quach as the applicant and to ATM Residential Pty Ltd as the respondent.
On 10 March 2022 the applicant commenced proceedings against the respondent. On 27 June 2022 the Registrar made an order that any application in proceeding to be filed by the respondent, should be filed by 13 July 2022.
On 19 July 2022 the respondent filed an application in proceeding seeking an order that it be removed as a party pursuant to r 230 of the Court Procedures Rules 2006 (ACT).
The respondent’s application was heard by McCallum CJ on 8 August 2022. The decision was delivered on 19 August 2022 (Quach v ATM Residential [2022] ACTSC 210).
McCallum CJ made the following orders:
(1) Pursuant to r 230 of the Court Procedures Rules, remove ATM Residential Pty Ltd as the defendant to the proceedings;
(2) Order that plaintiff pay the defendant’s costs;
(3) Dismiss the proceedings.
On 23 August 2022 the applicant filed a notice of appeal from the above decision. On 29 August 2022 he filed an application in proceeding seeking a stay of the orders made on 19 August 2022.
The application is supported by two affidavits from the applicant, affirmed on 1 August 2022 and 23 August 2022 respectively.
The filing of the notice of appeal does not of itself stay the previously made orders (r 5301).
The application for a stay was opposed.
Meagher JA, in Ferella v The Official Trustee in Bankruptcy [2015] NSWCA 81 (Ferella), at [7], set out the basis on which a stay pending an appeal might be granted:
On an application for the stay of orders pending an appeal the applicant must demonstrate a reason or an appropriate case to warrant the exercise of discretion in his or her favour. The matters relevant to be considered in a case such as the present include an assessment, albeit on a preliminary basis, of whether the appellants have an arguable case and a consideration of whether the appeal will be rendered of no effect or utility unless a stay is granted: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 694 – 695.
Two grounds are listed for the stay; firstly there is a procedural complaint stating that the respondent’s application to be removed as a party had been filed in breach of an order made by the Registrar. The second ground arises from some allegedly contradictory factual statements made in affidavits that had been relied upon in the respondent’s application.
The first ground states:
ATM Residential Pty Ltd did not have leave from the Court to file their interlocutory application, after the 13 July 2022 pursuant to the Orders of Court on 27 June 2022 (Annexure “A”). The provision of late filing to court registries without permission of the court, publicly signified, “is a derogation from the principal of the open administration of justice,” pursuant to the High Court ruling in Application by Chief Commissioner of Police (Vic) [2005] HCA 18 at [54].
I have already noted above that the respondent’s application was filed on 19 July 2022, therefore six days after the time limit set by the Registrar. This ‘late filing’ is the basis for the first ground for a stay.
The evidence in support of the first ground is to be found in the affidavit of the applicant affirmed on 1 August 2022. Notwithstanding its date, this affidavit was not before the Chief Justice on 8 August 2022. The affidavit was not filed until 23 August 2022.
Despite not relying on the affidavit of 1 August 2022 before McCallum CJ, the applicant did raise the matter in submissions. Mr Moffett, on behalf of the respondent, fairly said that the issue had been “raised squarely” by the applicant.
The point about the late filing is not mentioned in the first instance reasons. There is also no order made nunc pro tunc validating the late filing.
Returning to the test in Ferrella there would seem to be at least an arguable ground arising from the respondent’s application having been filed in breach of the Registrar’s order. Moving forward to the second leg of the test, I asked the applicant why he required a stay, in particular why his arguments could not simply await the appeal hearing.
He responded with four points:
(i)Subpoenas that had been issued prior to the hearing had not been fully complied with and a stay would assist this process.
(ii)The applicant’s case would be prejudiced if a stay was not granted.
(iii)The court would be assisted by a stay.
(iv)A Mr Dixon had been particularly evasive.
Dealing with each ground in turn, I cannot see how a stay would assist the subpoena process. If the subpoenas are necessary for the appeal then they will form part of the appeal process, which might include them being reissued. It might be said that this would be an expensive exercise, but the simple point is that the subpoenas previously issued were concerned with the hearing on 8 August 2022 and any non-compliance would have been a matter to have been raised at that hearing.
I cannot see any prejudice if a stay is not granted. The applicant has his points of appeal and their validity, or otherwise, will not be influenced by whether or not there is a stay. The orders made by McCallum CJ removed the respondent from the proceedings. If the appeal is successful, the respondent will be restored as a defendant.
The applicant did not make clear how the Court would be assisted by a stay, rather he relied on the simple assertion that that would be the case. Absent any understanding on my part about assistance to the Court, this point is of no effect.
Mr Dixon is allegedly a party in the respondent’s camp. If he was evasive then no doubt that matter will be taken up on appeal and dealt with on its merits. It has no application to the question of a stay.
I asked Mr Moffett, on behalf of the respondent, whether he wished to make any submissions in opposition to the stay. He said that the granting of the stay would preclude the respondent from pursuing the costs order in its favour.
I then considered the possibility of making an order not permitting the pursuit of the costs order until the completion of the appeal. Mr Moffett responded that such an order was open to me provided that the applicant amended his application accordingly.
I note the application seeks no more than an order for a stay. Even the ‘usual’ prayer for ‘any other order’ is not present. Having regard to the strength of the application lying in a procedural matter, I accordingly invited the applicant to amend his application to include the order in respect of costs. He declined.
Initially I considered that his disinclination may have arisen from his status as a self-represented litigant. This is a relevant consideration in deciding whether a just solution should override a technical deficiency. The applicant, however, is far from a stranger to the courts. As noted by the Chief Justice, he is listed as a vexatious litigant in New South Wales. He has had other litigation in this Court (see for example the various decisions in Quach v RU and Quach v Butt).
The invitation to amend the application was repeated by me and I am satisfied its significance was understood by the applicant. His steadfast refusal to ‘take up the offer’ persuaded me that it was not an order that he seeks. Accordingly, it is an order that I will not make.
Finally, in relation to the first ground, it is evident from its wording that the applicant relies on the decision of the High Court in Re Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422 at [54]. This paragraph reads:
Where leave has not been given publicly for supplementary submissions and evidence, the provision of such material to court registries without permission of the court, publicly signified, is a derogation from the principle of the open administration of justice. It should not occur. If new points of importance arise in the case whilst a matter stands for judgment, the proper course (unless statute or court rules permit otherwise) is for the proceeding to be relisted so that an application to enlarge the record can be made and determined in open court. Had that course been followed in the present proceeding, it is likely that the apparent misapprehension on the part of those representing the Chief Commissioner would have been cleared up. The later complaint of procedural unfairness might then have been avoided.
It is enough to simply read the paragraph to see that it has no application to the present issue, namely the late filing of the application. There is no suggestion here about time limits for submissions or evidence. There is no suggestion that the applicant was not able to properly present his case at first instance. The High Court case has no bearing on this matter.
As to the second ground, it raises allegations of fact which will clearly fall within the province of the appeal. There is no reason whatsoever for these factual matters to found a stay as opposed to being agitated during the appeal.
In summary the applicant has put forward an arguable ground of appeal. But he has not established, or come close to establishing, any reason to conclude that, absent a stay, “the appeal will be rendered of no effect or utility…” He has not, to use the words of Burns J in Davey v Herbst [2011] ACTCA 27 at [12], established a “likelihood of the applicant suffering irredeemable prejudice if the stay is not granted”.
I make the following orders:
(i)The application filed by Michael Van Thanh Quach on 29 August 2022 is dismissed.
(ii)The applicant is to pay the respondent’s costs of the application.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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