Reed v Courtney
[2023] VSC 787
•22 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PROPERTY LIST
S ECI 2020 04159
| GLEN ANDREW REED (as executor of the estate of David Graeme Courtney) | Plaintiff |
| and | |
| KATHLEEN MARY COURTNEY (also known as KATHY MARY COURTNEY) | First Defendant |
| and | |
| REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | Harris J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 December 2023 |
DATE OF JUDGMENT: | 22 December 2023 |
CASE MAY BE CITED AS: | Reed v Courtney & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 787 |
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JUDICIAL REVIEW AND APPEALS – Application for leave pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 to appeal a decision of an Associate Justice – Refusal to reinstate proceeding and set aside consent orders – Application for extension of time to bring appeal – Application for summary judgment – Application to adduce fresh evidence – No error of law identified – Proposed appeal so lacking in merit as to be futile – Application for extension of time refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A Kinda | Forty Four Degrees Lawyers and Consultants |
| For the First Defendant | Self-represented | |
| For the Second Defendant | No appearance |
HER HONOUR:
Background
This is an application by Ms Kathleen Courtney for an extension of time in which to seek leave to appeal a decision of Irving AsJ, in which his Honour refused an application by Ms Courtney to reinstate the proceedings which had earlier been the subject of consent orders settling the proceeding.
On 4 November 2020, Mr Reed commenced this proceeding by originating motion seeking that caveats lodged by Ms Courtney over a property in South Yarra (the South Yarra property) and Lorne (the Lorne property) (the Properties) be removed by the second defendant, the Registrar of Titles.[1] Ms Courtney retained Mr Graeme Efron of the firm Efron & Associates as her solicitor in the proceeding.
[1] On 16 November 2020, the second defendant advised the Court by way of correspondence that she did not intend to appear in this proceeding.
On 29 January 2021, Efron & Associates signed proposed consent orders to resolve the proceeding, which were made by Daly AsJ on the same day (the Consent Orders). These included orders for the removal of caveats over the South Yarra property and the Lorne property by the second defendant, orders restraining Ms Courtney from lodging any caveats over the South Yarra property or the Lorne property, and an order that Ms Courtney pay Mr Reed’s costs in the proceeding. The orders were amended under the slip rule to correct a reference to one of the properties on 15 February 2021.
On 2 February 2022, Efron & Associates filed a Notice of Solicitor Ceasing to Act.
On 10 February 2022, Ms Courtney filed a summons seeking to reinstate the proceedings, which was opposed by Mr Reed. The basis for Ms Courtney’s application for reinstatement was that she claimed that she did not authorise Mr Efron to sign the Consent Orders on her behalf. Accordingly, she claimed that the Consent Orders should be set aside.
The reinstatement application was heard before Irving AsJ on 17 and 18 August 2022. On 22 December 2022, Irving AsJ handed down his judgment refusing the application (the Judgment) and made orders dismissing the application.[2] On 3 February 2023, Irving AsJ issued an order that Ms Courtney pay Mr Reed’s costs of and associated with the application for reinstatement.
[2]Reed v Courtney & Anor [2022] VSC 815 (Judgment), [8].
On 12 May 2023, Ms Courtney filed a Notice of Appeal of Irving AsJ’s order of 22 December 2022 by which his Honour dismissed her reinstatement application. Rule 77.06.2 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) requires that any Notice of Appeal against a decision of an Associate Judge be served within 14 days of the date the order or judgment of the judge was made, being 22 December 2022.[3] The Notice of Appeal was therefore filed out of time. Ms Courtney subsequently filed a summons seeking an extension of time for the Notice of Appeal.[4]
[3]Taking into account the exclusion of the days in the Court vacation between 24 December and 9 January which are not to be counted: Supreme Court (General Civil Procedure) Rules 2015, r 3.04.
[4]Summons filed 14 July 2023.
On 8 August 2023, Mr Reed filed a summons seeking summary dismissal of the Notice of Appeal.
Proceedings before Irving AsJ
In the proceeding before Irving AsJ, Ms Courtney was represented by Mr B Zhou, a solicitor of Madgwicks Lawyers.
Ms Courtney’s affidavit evidence and submissions before Irving AsJ covered a range of matters, including the background of the dispute between parties, and the matters that had given rise to the interests Ms Courtney claimed in the Properties and which had been the basis on which she had lodged caveats.[5]
[5]Transcript 17/08/22, T15.03-.31, T26.28-27.09; Affidavits of Kathleen Courtney sworn on 23 January 2022, 10 February 2022, 16 March 2022 and 19 April 2022.
Relevantly to the question of whether the Consent Orders should be set aside, Ms Courtney’s evidence was that she had retained Mr Efron as her solicitor for the proceeding until October 2021 when she terminated his retainer. She claimed that she did not become aware of the Consent Orders until late January 2022, and that she had not instructed Mr Efron to consent to the removal of the caveats. Ms Courtney said that the only contact she had had with her lawyers between late January 2021 and January 2022 was when she informed Mr Efron on 3 October 2021 that she was terminating his retainer. Ms Courtney’s evidence was that during the entirety of that time, she believed the caveats were still in place.[6]
[6]Judgment, [8]-[11].
Under cross-examination, Ms Courtney denied a number of matters that had been the subject of the affidavit evidence for Mr Reed. This included her denial that she sent an email dated 27 January 2021 stating ‘Graeme, if you believe its in my best interest to remove the [South Yarra] caveat then do so, I myself disagree, Regards Kathy Courtney’.[7] Ms Courtney also denied attending a meeting with Mr Efron at his office on 29 January 2021 at which she gave instructions to enter into the consent order, and denied receiving various emails on other dates and a letter dated 1 April 2021 that would have brought her instructions or the consent order to her attention.[8]
[7]Judgment, [12(e)].
[8]Judgment, [12].
Mr Reed subpoenaed Mr Efron and his administrative assistant, Ms Grech, to give evidence at the hearing of the reinstatement application.[9]
[9]Subpoenas served on 27 April 2022.
Mr Efron gave evidence that Ms Courtney gave instructions to agree with Mr Reed to withdraw the caveats over the South Yarra property and the Lorne property. Mr Efron stated that he recalled providing Ms Courtney with advice that the caveats over the properties were legally unsustainable, and that if she did not agree to the removal of the caveats she risked the Court making an indemnity costs order against her. He said that Ms Courtney instructed him to agree to the plaintiff’s proposed consent orders that all caveats be removed.[10] Mr Efron could not recall when he provided Ms Courtney with a copy of the authenticated orders.[11]
[10]Transcript 18/08/22, T93.16-94.13.
[11]Judgment, [13]-[18].
Ms Grech gave evidence that on Ms Courtney’s instructions, a letter of offer was sent to Mr Reed on 27 January 2021, and a further letter of offer on 28 January 2021. She recalled Mr Efron inviting Ms Courtney into the office to discuss a counteroffer that Mr Efron had received from Mr Reed. She confirmed that Mr Efron’s diary showed a meeting with Ms Courtney on 29 January 2021.[12]
[12]Judgment, [20]-[21].
Judgment of Irving AsJ
Associate Justice Irving approached the application on the basis that it involved an assessment of whether the Consent Orders could be set aside. His Honour observed that the reinstatement application was said by Ms Courtney to be made under the Court’s inherent jurisdiction to set aside orders under the Civil Procedure Act 2010¸ although no specific section of that Act was identified as conferring or recognising that power.[13] His Honour acknowledged the power of the Court under r 59.07 of the Rules to make an order in terms agreed by the parties, and identified the relevant legal question as being whether the consent orders giving effect to a compromise could be set aside and if so on what basis.[14]
[13]Judgment, [26].
[14]Judgment, [27]-[30].
His Honour’s starting point was the principle that a court order, regularly made and entered into, cannot be recalled. His Honour noted that this principle is subject to exceptions, including that a consent order may be set aside upon the existence of a ground which would suffice to render a simple contract void or voidable or entitle the party to equitable relief against it.[15]
[15]Judgment, [29], citing Harvey v Phillips (1956) 95 CLR 235, 243-4.
His Honour dismissed the application to reinstate the proceedings on two bases:
(a) Even if it was accepted that Mr Efron signed the Consent Orders without instructions, he had the ostensible authority of Ms Courtney to do so and Mr Reed could not have been aware of any issues surrounding that authority. The question of whether Mr Efron acted beyond his authority was a matter between Ms Courtney and Mr Efron and did not form a basis, without more, upon which the Court should set aside the Consent Orders.[16]
(b) Even if Mr Efron’s absence of authority would form a basis for setting aside the consent order, Irving AsJ was not satisfied that Mr Efron did not have Ms Courtney’s authority to enter into the Consent Order.[17]
[16]Judgment, [34].
[17]Judgment, [35].
With respect to the second basis for his decision, Irving AsJ found it ‘inherently implausible’ that Ms Courtney:
(a) did not sent the email of 27 January 2021 providing instructions to withdraw the caveat over the South Yarra property;
(b) did not provide instructions to Mr Efron to enter into Consent Orders to resolve the proceeding at his office on 29 January 2021;
(c) did not receive various emails from Mr Efron’s office informing her the proceeding had been resolved and providing the Court’s order of 29 January 2021; and
(d) only became aware that the proceeding was resolved following her inquiries of the Prothonotary in January 2022.
Associate Justice Irving gave detailed reasons for reaching this view and specifically as to why he did not accept Ms Courtney’s evidence.[18]
[18]Judgment, [37]-[42].
Associate Justice Irving refused Ms Courtney’s reinstatement application. On 3 February 2023, Irving AsJ ordered Ms Courtney to pay Mr Reed’s costs on the standard basis.
The present applications
On 7 December 2023, I heard the applications arising from the following processes filed with the Court:
(a) Ms Courtney’s Notice of Appeal of the Irving AsJ’s orders filed 12 May 2023;[19]
(b) Ms Courtney’s summons filed 14 July 2023 seeking an extension of time for the Notice of Appeal;[20] and
(c) Mr Reed’s summons filed 8 August 2023 seeking summary judgment of Ms Courtney’s Notice of Appeal.[21]
[19]Transcript 07/12/2023, from 30.
[20]Transcript 07/12/23, from 36.
[21]Transcript 07/12/23, from 84.
Applications for further evidence
Directions had been given in the period prior to the hearing for the filing of evidence in support of the applications by Ms Courtney.[22] Ms Courtney filed a number of affidavits between 12 July 2023 up to the time of the hearing, including affidavits filed out of the time granted by JR Keith. Mr Reed filed three affidavits in opposition to the application to reopen and set aside the Consent Orders, and in support of the application seeking summary judgment.[23] On 12 September 2023, JR Keith made an order that Ms Courtney be restrained from filing any further affidavit material except by leave of the Court.[24]
[22]Orders of JR Keith dated 11 July 2023.
[23]Affidavits of Henry McMenomy affirmed on 1 August 2023, 8 August 2023 and 8 September 2023.
[24]Order of JR Keith dated 12 September 2023.
A number of applications to adduce further evidence were made at the commencement of the hearing.
Ms Courtney sought to adduce an affidavit sworn by her on 5 December 2023. This affidavit was identical to an affidavit that had previously been filed by Ms Courtney, which was filed on 22 August 2023, however with some different exhibits. The exhibits were largely letters from medical professionals relevant to Ms Courtney’s state of health and the impact of medications upon her, both in the period preceding the making of the Consent Orders by Daly AsJ and extending to the period following Irving AsJ’s judgment when there had been a delay in issuing an appeal. Counsel for Mr Reed did not oppose this application and I granted leave for the affidavit to be tendered as an exhibit.[25]
[25]Transcript 07/12/23, T47.13.
Counsel for Mr Reed sought to adduce an affidavit sworn by her instructing solicitor, Nicola Drakeford, on 6 December 2023, in support of Mr Reed’s application for an order for summary judgment. In the affidavit Ms Drakeford stated her belief that Ms Courtney’s Notice of Appeal had no real prospects of success, a matter which, by oversight, had not been included in the earlier affidavits filed in support of the application.[26] Ms Courtney did not oppose this application, and I granted leave for it to be tendered as an exhibit.[27]
[26]Transcript 07/12/23, T43.01-.10.
[27]Transcript 07/12/23, T26.07-.24, T47.15.
Ms Courtney also sought to call her son, Michael Bruce Courtney, to give oral evidence. The nature of the evidence Ms Courtney intended to lead from Mr Courtney went to the state of Ms Courtney’s health, which was said to be relevant to her ability to file her notice of appeal within time.[28] Ms Courtney also stated that Mr Courtney was present at her meetings with Mr Efron, and could give evidence relevant to the email correspondence associated with Mr Efron, and the issue of Ms Courtney’s instructions to sign the consent order.[29]
[28]Transcript 07/12/23, T5.28-6.06.
[29]Transcript 07/12/23, T.6.06-.16, T16.09-.19.
Counsel for Mr Reed noted that there was nothing in the evidence before Irving AsJ to suggest that Michael Courtney had been in any meetings with Ms Courtney and Mr Efron, notwithstanding that the meetings had been extensively canvassed with Ms Courtney in cross-examination. Ms Courtney had also not put Mr Reed on notice that she would seek to call evidence from Mr Courtney that he had been in the meetings.[30]
[30]Transcript 07/12/23, T15.02-.08.
I had explained to Ms Courtney that the approach taken to an appeal from a decision of an Associate Justice is that it is a rehearing, and that for the appeal to be successful it would be necessary to identify an error in his Honour’s decision.[31] The appeal would also be based on the evidence before the Associate Justice, and additional evidence on the appeal would only be admitted if it was relevant and if it was fresh evidence, in the sense that it was unavailable at the time of the original trial.[32] Ms Courtney made submissions as to why she should be permitted to call Mr Courtney to give evidence.
[31]Transcript 07/12/23, T3.09-4.11; Oswal v Carson [2013] VSC 355, [11]; Ascot Vale Self-Storage Centre Pty Ltd (in liq) [2014] VSC 75, [16]-[17].
[32]Transcript 07/12/23, T3.09-4.23; Ascot Vale Self-Storage Centre Pty Ltd (in liq) [2014] VSC 75, [16]-[17], citing McDonald v McDonald (1965) 113 CLR 529; ANZ Banking Group v Loftus [2014] VSC 342, [38]-[39], citing Clark v Stingel [2007] VSCA 292, [25] and Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [523].
I refused to grant Ms Courtney leave to call Mr Courtney as a witness.[33] The application was made at late notice, after procedural orders had already been made for the proceeding. The Court was only put on notice of Ms Courtney’s intention to apply to call a witness on 30 November 2023, and Mr Reed only was given notice on 1 December 2023. No formal application was made until the hearing. This late notice was despite the orders made by JR Keith restraining the filing of further affidavits without the leave of the Court.
[33]Transcript 07/12/23, T48.
I also considered that the evidence proposed to be led from Mr Courtney was of insufficient relevance to assist me. The proposed evidence related in part to Ms Courtney’s state of health, which was already the subject of evidence from health practitioners in the form of the medical certificates and letters exhibited to her affidavits.
As to any evidence that Ms Courtney sought to adduce from Mr Courtney as to his presence at meetings with Mr Efron or his knowledge of whether Ms Courtney sent particular emails, there was no reason given why his evidence should be regarded as fresh evidence. An application had been made on behalf of Ms Courtney at the hearing before Irving AsJ for Mr Courtney to give evidence.[34] His Honour did not permit him to be called to give evidence, on the basis that there was no prior indication of the subject matter of the evidence; there was no explanation of the delay in making the application for him to give evidence; there would be prejudice arising from the late notice; and it would have offended case management principles to have had to delay the hearing.[35]
[34]Transcript 17/08/22, T2.09-.20.
[35]Transcript 17/08/22, T4.26-5.07; T9.17-10.02.
In the circumstances I did not regard the evidence as new or fresh evidence that would not have been available at the time of the hearing before Irving AsJ. There was no explanation for not having put on any evidence Mr Courtney could give by way of affidavit, in accordance with the orders of JR Keith, nor for the late notice for seeking to adduce his evidence at the hearing.
In these circumstances, I considered it would not be appropriate to permit Ms Courtney to call Mr Courtney to give oral evidence and refused the application to call him.[36]
[36]Ms Courtney also sent an email to chambers on 18 December 2023, after I had reserved judgment, enclosing further material that she wished to adduce. The material contained a police brief from 2020 regarding alleged criminal conduct of Ms Courtney, which was not relevant to this proceeding. I did not take this material into account.
Submissions on application for leave to appeal out of time and on Notice of Appeal
Ms Courtney’s Notice of Appeal referred to a number of matters not identified as specific grounds of appeal but broadly identified the following bases for the appeal against the whole of the order of Irving AsJ made 22 December 2022 dismissing the application for reinstatement:
(a) His Honour was wrong in accepting the evidence that Ms Courtney had sent emails (relevant to the removal of the caveats from the Properties) and in not accepting Ms Courtney’s evidence that:
(i) she had not sent them;
(ii) they were falsely created, as shown by the different tone of the relevant emails to the tone she usually used with emails sent to Mr Efron and by her own ‘forensics data analysts’ evidence;
(b) His Honour made his decision without the evidence of her witness;[37]
(c) Irving AsJ did not subpoena emails, and rather relied on the evidence tendered for Mr Reed as to emails which were sent;
(d) Irving AsJ did not take into account evidence about the basis on which she had an interest in the properties, being that she was not divorced from her late husband who had psychological problems and to whom she had lent money, and he ‘made no reference to … vital information that I can prove’.
[37]The identity of the witness was not identified in the Notice of Appeal but it was apparent from oral submissions before me that it was her son, Michael Courtney: Transcript 07/12/23, T39-40.
Ms Courtney’s submissions
In her submissions Ms Courtney stated that her application was delayed because of the medical problems she had been experiencing with her jaw, and with her teeth, giving rise to pain and problems with speech.[38] She stated that the problems with her jaw and the medical treatment she was receiving for it had hindered her from bringing on the appeal.[39]
[38]Transcript 07/12/23, T31.05-.09.
[39]Transcript 07/12/23, T34.07-.14.
Ms Courtney submitted that Mr Efron did not tell the truth in his evidence before Irving AsJ.[40] She said she had not sent the email on 27 January 2021 and that at the relevant time she had been in the Botanical Gardens with her dog and her son.[41] She submitted that the tone of her emails in January 2021 was proof that she had not sent them as she was usually very agitated in emails sent to her lawyers including Mr Efron.[42] She submitted that Irving AsJ ‘had not addressed that at all’.[43]
[40]Transcript 07/12/23, T31.16, T38.08-.13.
[41]Transcript 07/12/23, T32.12-.13, T99.01-.04, T104.13-.14, T106.17-.21, T110.27-.30.
[42]Transcript 07/12/23, T36.17-.22.
[43]Transcript 07/12/23, T36.21.
Ms Courtney made further submissions as to why the emails sent in January 2021 should not have been accepted, including that there was no forensic evidence given for Mr Reed that the emails were genuine.[44] Her Notice of Appeal also suggested that she had forensic evidence as to why they were false.[45] It was not entirely clear what Ms Courtney encompassed in the reference to ‘forensic evidence’. Ms Courtney did state in her affidavit of 12 July 2023 that her ‘first affidavit, 11th may 2023 relates to and gives forensic evidence and information about how my email address, … was used in 2021, 27/1/21 not by me but as a form of spoofing’ and that the ‘spoofed email has been explained how it was done’ by ‘forensics recovery data and geeks2U’,[46] there was no affidavit of 11 May 2023 and it may have been a reference to her Notice of Appeal. There was nothing in Ms Courtney’s affidavits which indicated any forensic analysis or other evidence to the effect that the emails were not genuine or had been sent by another person.
[44]Transcript 07/12/23, T39.15-40.09.
[45]The Notice of Appeal stated on page 2 ‘I do have the burden of proof, from forensics data analysts that I did not send the those [sic] emails to Mr Graeme Efron…’; See also Transcript 07/12/23, T39.25-.26.
[46]Court Book, 15 (Affidavit of Kathleen Courtney sworn on 12 July 2023). See also Court Book, 31 (Affidavit of Kathleen Courtney sworn on 17 July 2023), and 278-279 (Affidavit of Kathleen Courtney sworn on 16 August 2023).
Ms Courtney also referred to matters relevant to her late husband’s testamentary capacity,[47] events during her relationship with her late husband,[48] and that she was not divorced from her husband.[49]
[47]Transcript 07/12/23, T26.25-27.12
[48]Transcript 07/12/23, T17.25-.31, T92.03-.09, T111.28-112.06, T117.01-.08, T118.01-.02.
[49]Transcript 07/12/23, T37.01-.06.
Ms Courtney also contended that Irving AsJ was biased in accepting evidence from Mr Efron, or that there was a conflict of interest that affected his evidence, given that Mr Efron had previously been her lawyer.[50]
[50]Transcript 07/12/23, T15.03-.23, T40.01-.09.
Mr Reed’s submissions
It was submitted for Mr Reed that the Court should not exercise its discretion to grant the extension of time to serve the Notice of Appeal for three reasons:
(a) The delay in filing the Notice of Appeal, being 109 days, was lengthy, and there was no adequate explanation for the delay. The evidence of Ms Courtney relating to her medical conditions did not adequately explain the delay in filing the Notice of Appeal;[51]
(b) There would be prejudice to Mr Reed in that on 17 May 2023 he had issued a summons in costs proceeding S ECI 2023 02165 regarding the costs component of the Consent Orders, which could be futile if the Consent Orders were set aside;[52]
(c) The proposed appeal so lacked merit that it would be futile to allow it to proceed. It was necessary to identify an error in the decision of Irving AsJ before the appellate power may be exercised, and there was nothing in Ms Courtney’s Notice of Appeal which could establish error capable of impeaching the basis on which his decision was reached.[53]
[51]Plaintiff’s Submissions re Notice of Appeal dated 29 August 2023 (Plaintiff’s Submissions), [15]-[18].
[52]Plaintiff’s Submissions, [19].
[53]Plaintiff’s Submissions, [20]-[22].
On behalf of Mr Reed, detailed submissions were made as to why the decision was unimpeachable, given that there was no challenge to, nor any proper basis to challenge, the finding that the Consent Orders could not be set aside in circumstances where there was ostensible authority for Mr Efron, as solicitor on the record, to have signed them as the legal representative for Ms Courtney.[54] Submissions were also made as to why Irving AsJ’s assessment of the evidence in relation to the emails relevant to the authority to enter the arrangements to settle the Consent Orders was not affected by error,[55] and why the absence of evidence from Mr Courtney did not affect the fair resolution of the reinstatement application.[56]
[54]Plaintiff’s Submissions, [23]-[26]; Transcript 07/12/2023, T62.13-.29.
[55]Plaintiff’s Submissions, [27]-[30].
[56]Plaintiff’s Submissions, [31]-[34].
Application for extension of time – the principles
The guiding principle governing the discretion to extend time for the filing of a notice of appeal is that the discretion is given for the sole purpose of enabling the Court to do justice between the parties.[57] In Spanovic v Carter Holt Harvey,[58] Ashley JA, with whom Almond AJA agreed observed that:
The question whether the court should exercise its discretion to extend time for the filing and service of a Notice of Appeal involves consideration of the length and reasons for delay, prejudice to the respondent and whether the proposed appeal so lacks merit as to be futile.[59]
[57]Trkulja v Dobrijevic [2015] VSCA 281, [27].
[58][2014] VSCA 240.
[59]Spanovic v Carter Holt Harvey [2014] VSCA 240, [4].
In Trkulja v Dobrijevic the Court of Appeal summarised the matters that the Court must consider in an extension of time application as follows:
The applicant, for an extension of time, must explain the delay, and the explanation must justify the delay being excused. The Court should take into account the history of the proceedings and the conduct of the parties. A relevant consideration is that, in the case of a proposed appeal, the successful party, at first instance, has a legitimate interest in the finality of the decision in that party’s favour. The Court does take into account its assessment of the prospects of success of the appeal, on such an application, bearing in mind, however, that the parties are not in a position to address a full argument on that issue, nor is the Court in a position to make a detailed assessment of it.[60]
[60][2015] VSCA 281, [27] (Kyrou, Kaye JJA and Ginnane AJA).
Consideration of the application
In considering the application for the extension of time, I had the benefit of submissions as to the contentions put forward in the Notice of Appeal, which enabled me to have an appreciation of the matters on which Ms Courtney seeks to rely, as well as the basis on which the appeal would be resisted by Mr Reed should leave to file out of time be granted. These submissions were relevant both to the opposition to the grant of an extension of time (in particular to the contention that leave should be refused as it would be futile to do so, given the absence of any merit in the proposed appeal) as well as to the application for summary judgment should an extension be granted.
Explanation for late filing of Notice of Appeal
In the affidavit evidence there were several medical records and certificates covering the period relevant to the proceeding, both before and after the making of the Consent Orders and the application for reinstatement. The evidence included a medical certificate from Dr Higgins dated 25 July 2023 which stated:
Kathy has had left sided jaw joint pain which dates back to at least November 2020. It apparently locks at times, and she has to take medication for it. While she is on medication, she can't drive, and she can't write or sign any legal or medical documents. The medication she takes for this is Lyrica and Meloxicam. Lyrica can cause drowsiness and confusion.[61]
[61]Court Book, 42 (Affidavit of Kathleen Courtney sworn on 17 July 2023).
There was also a certificate from Dr Schmidt, of The Toorak Clinic, dated 19 May 2020, which stated:
This is to certify that I've examined Ms Kathy Courtney today. She's taking meloxicam, an inflammatory medication for joint pain, and this can cause nausea, and she finds it slows her thinking. I enclose a copy of my notes of 15 May 2020 when she attended me.[62]
[62]Court Book, 413 (Affidavit of Kathleen Courtney sworn on 8 September 2023).
Ms Courtney did specifically advise me that she had not taken any painkillers on the day of the hearing before me so that she could think properly and clearly.[63]
[63]Transcript 07/12/23, T39.03-.10.
The evidence also established that Ms Courtney was admitted to Cabrini from 4 to 6 March 2021 for issues relating to her jaw,[64] and had a referral from Dr Marie Schmidt to the Melbourne TMJ and Facial Pain Centre dated 7 February 2023.[65] There was also a medical certificate certifying that Ms Courtney had attended a dental clinical on 8 August 2023 following extraction of an upper left molar.[66]
[64]Court Book, 23 (Affidavit of Kathleen Courtney sworn on 12 July 2023).
[65]Court Book, 24 (Affidavit of Kathleen Courtney sworn on 12 July 2023).
[66]Court Book, 63 (Affidavit of Kathleen Courtney sworn on 25 July 2023).
Although there was limited specific evidence as to Ms Courtney’s medical condition in the period between 22 December 2022 when the judgment of Irving AsJ was given and the date on which the Notice of Appeal was filed, 12 May 2023, and no specific evidence that it made her unable to prepare a document such as the Notice of Appeal, I am prepared to infer that Ms Courtney’s medical conditions and the medication that she was taking to treat them impeded her in attending to legal matters. While the evidence of the delay was very lengthy, and would ordinarily require a clearer explanation as to the specific relationship between medical issues and an inability to file a Notice of Appeal in a timely way, in circumstances where Ms Courtney is unrepresented, I accept this as an adequate explanation for the late filing of her Notice of Appeal.
Prejudice
The prejudice identified on behalf of Mr Reed was that he had, in reliance on the Consent Orders and the resolution of the proceeding, issued a summons in a costs proceeding regarding the costs component of the Consent Orders. That costs proceeding was not stayed but it was submitted that if the Consent Orders were overturned there would have been a waste of the time and money spent pursuing those costs in the costs proceeding.[67] There was no specific evidence as to what time and expense had arisen out of the relevant summons in the costs proceeding.[68] In the circumstances I accept that there was some prejudice to Mr Reed in having relied on the finalisation of the proceeding by the Consent Orders, at a time when he was entitled to assume that those orders had resolved the proceeding. It was difficult, however, in the absence of more specific evidence as to what had been done in pursuance of the summons to assess how significant that prejudice was.
[67]Plaintiff’s Submissions, [19]; Transcript 07/12/23, T68.20-.30, T84.30-85.22.
[68]Transcript 07/12/23, T85.07-.22.
However, I also take into account the prejudice inherent in Mr Reed having had the benefit of the decision of Irving AsJ that the Consent Orders would not be overturned and had resolved the proceeding, and being faced with a very late Notice of Appeal. I take into account Mr Reed’s legitimate interest in the finality of the proceeding,[69] particularly in a case which had already been subject to delays between the Consent Orders and Ms Courtney’s application for reinstatement.[70] I take this prejudice into account as a relevant matter in conjunction with my assessment of whether the proposed appeal is so lacking in any prospect of success that it would be futile to grant leave.
[69]Trkulja v Dobrijevic [2015] VSCA 281, [27].
[70]The Consent Orders were made 29 January 2021. The summons for the application for reinstatement was filed 10 February 2022.
Grounds of proposed appeal – lack of any prospect of success
It was not contended in the Notice of Appeal or in submissions that Irving AsJ erred with respect to the legal principles relevant to the application for reinstatement or as to the circumstances in which Consent Orders could be set aside.[71] However, noting that Ms Courtney was unrepresented before me, and that counsel for Mr Reed made submissions as to the correctness of his Honour’s conclusion that even if the evidence about a lack of authority was accepted there was no basis on which the Consent Orders should be set aside, I have considered that issue.
[71]As the Consent Orders did not include an order dismissing the proceeding there may be a question as to whether the proceeding remained on foot, and whether the proceeding did in fact need to be reinstated before addressing the issue of whether the Consent Orders could be set aside. Whether or not it was necessary to reinstate the proceeding did not have any material significance, however, as the Consent Orders had disposed of the substance of the proceeding. Associate Justice Irving’s subsequent orders of 3 February 2023 had resolved the costs issues. In these circumstances the relevant question remained whether the Consent Orders could be set aside, which was comprehensively addressed before his Honour, and by his Honour in his reasons.
No error as to absence of a basis to set aside the Consent Orders
The authorities establish that there are very narrow circumstances in which consent orders made by the Court can be reopened or set aside.
The starting position is that a consent order regularly made and entered, or otherwise perfected cannot be recalled.[72] The Consent Orders were authenticated pursuant to r 60.02(1)(b) of the Rules so were perfected orders.
[72]Bailey v Marinoff (1971) 125 CLR 529, 539; Snowball v Capital Securities XVII Pty Ltd [2018] VSC 588, [34].
There are very limited exceptions to the principle that a perfected judgment or order cannot be reopened. The correction of an accidental slip or omission under rule 36.07 of the Rules is a narrow exception, and is not relevant in this case.
A more substantial exception to this position is that the court may set aside orders arising from a compromise which has been procured by fraud or is void or voidable.[73] Grounds which could render a compromise void or voidable were acknowledged by the High Court in Harvey v Phillips,[74] to include illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence or abuse of confidence.[75] Harvey v Phillips related to orders which had not yet been perfected, but as noted by John Dixon J in Snowball v Capital Securities XVII Pty Ltd,[76] subsequent authorities have accepted that there are circumstances in which consent orders may be set aside, notwithstanding their perfection.[77] This was accepted by Brennan J sitting in the ACT Supreme Court in Permanent Trustee Co (Canberra) Ltd (executor Estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd,[78], and by the NSW Court of Appeal in The Owners Strata Plan No 57164 v Yau.[79]
[73]Permanent Trustee Co (Canberra) Ltd (executor Estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45, 48.
[74](1956) 95 CLR 235.
[75]Harvey v Phillips (1956) 95 CLR 235, 243-244.
[76][2018] VSC 588.
[77]Snowball v Capital Securities XVII Pty Ltd [2018] VSC 588, [35].
[78] (1976) 15 ACTR 45. In that case Brennan J did not in fact set aside the consent judgment because he was not satisfied that third party rights would be unaffected by him doing so.
[79](2017) 96 NSWLR 587, 604-605 (Beazley P, Leeming JA agreeing at [195]); 629-630 (Emmett AJA).
Where the compromise is reached by a lawyer on the client’s behalf, the usual position is that the lawyer has actual as well as ostensible authority to act on the client’s behalf. Any instruction from the client which restricts the solicitor’s authority to compromise the proceedings will only affect the other party if that party is on notice of that restriction.[80] The compromise, having been agreed to by a solicitor with ostensible authority to bind the party, will be binding as between the compromising parties (absent some factor such as fraud or other factor including those identified in Harvey v Phillips) and any issue arising as to an absence of actual authority is a matter as between the solicitor and the client.[81] If such a compromise is then embodied in consent orders which are made and entered by the Court, they will be binding.[82]
[80]Donellan v Watson (1990) 21 NSWLR 335, 342.
[81]Donellan v Watson (1990) 21 NSWLR 335, 342.
[82]Harvey v Phillips (1956) 95 CLR 235, 243.
In this case, at the time of the Consent Orders being executed by Mr Efron on 29 January 2021, his firm was the solicitor on record for Ms Courtney. A Notice of Ceasing to Act was filed more than a year later, in February 2022. Mr Efron had at the minimum Ms Courtney’s ostensible authority to act for him. There was no evidence that Mr Reed or his legal advisers had been informed by Ms Courtney or any other person that Mr Efron was no longer acting for her at the time of the Consent Orders being executed by him and filed with the Court.[83]
[83]I was taken to an email, contained in an affidavit of Ms Courtney tendered during the hearing, sent on Wednesday 27 January 2021 at 5:09pm to Graham Efron from Srishti Mahant, solicitor for Mr Reed. The email attached a number of documents by way of service, as well as referring to ‘seeking our client’s instructions regarding your offer’. The email also referred to a phone call with Mr Efron in which a ‘miscommunication’ had been discussed, in relation to an ‘impression that your firm was no longer acting for [Ms Courtney]’. However the fact that the email was serving documents made clear that at the time of the email Ms Mahant understood that Mr Efron was acting for Ms Courtney and that the impression to the contrary had been mistaken. (Exhibit D1, Affidavit of Kathleen Mary Courtney sworn on 5 December 2023, 9).
Associate Justice Irving observed in the Judgment that it had not been put by Ms Courtney that the Consent Orders had been entered into by fraud or mistake.[84]
[84]Judgment, [33].
Ms Courtney’s evidence and her submissions were repetitive and difficult to understand in parts, but it may be that her case was intended to suggest that there had been some fraud involved in the emails sent to Mr Efron leading to the Consent Orders being executed. Her evidence before Irving AsJ had been that she did not send the emails confirming instructions to remove the caveat over the South Yarra property and had not instructed Mr Efron to enter into the consent orders.[85] Ms Courtney’s affidavit evidence before Irving AsJ contended that there had been emails sent from her email address which were not sent by her but were a ‘form of spoofing’[86] by unidentified persons. She did also describe the email as a ‘fraudulent email’[87] but did not identify who she contended was responsible for the fraud. Her submissions before me also focussed on her position that the emails had not been sent or had been ‘sent from a fake account’.[88]
[85]Judgment, [12].
[86]Court Book, 15 (Affidavit of Kathleen Courtney sworn on 12 July 2023); See also Court Book, 260 (Affidavit of Kathleen Courtney sworn 12 August 2023).
[87]Court Book, 31 (Affidavit of Kathleen Courtney sworn 17 July 2023).
[88]Transcript 07/12/23, T105.22-.24
Ms Courtney’s affidavit and other evidence did not allege that Mr Efron or any person from his firm had sent the relevant emails. While she alleged in the hearing before me that Mr Efron had been paid to give his evidence before Irving AsJ there was no evidence to support that allegation.[89] It may have been a misunderstanding arising from him having been the subject of a subpoena but in any event I have not accepted the unfounded allegation and it is not relevant to the position at the time of execution of the consent orders.
[89]Transcript 07/12/23, T80.07-.30, 108.11-.24.
Notwithstanding the absence of any proper identification by Ms Courtney of who was alleged to have been responsible for the ‘fake’ or ‘fraudulent’ emails, it does appear that she was raising, albeit in an unclear way, an argument that there had been some form of fraud involved in the sending of the emails leading to the execution of the Consent Orders.
In these circumstances I consider that the issues could not be resolved solely on the basis that Mr Efron had ostensible authority to execute the Consent Orders, given Ms Courtney’s allegation of some sort of fraud having affected the sending of the emails by which Ms Courtney gave authority to agree to the Consent Orders. However, Irving AsJ dealt squarely with the possibility that he may be wrong and Mr Efron’s absence of authority could constitute a basis to set aside the Consent Orders.[90] The second basis on which his Honour declined to set aside the Consent Orders was that even if, contrary to his primary conclusion, the absence of actual authority was a basis to set aside the orders, he did not accept that Mr Efron had not been authorised to sign the Consent Orders.[91]
[90]Judgment, [35].
[91]Judgment, [35]-[42].
For the reasons that follow I consider his Honour’s conclusion that Ms Courtney had not established that Mr Efron did not have her authority to enter into the Consent Orders was entirely open to him, and that there is no error affecting his Honour’s careful assessment of the evidence.
Error in accepting evidence as to emails
Associate Justice Irving did not accept the evidence of Ms Courtney that she had not authorised the resolution of the matter in the manner embodied by the Consent Orders, and that she had not sent the emails relevant to the agreement to remove the caveats which was given effect by the Consent Orders.[92] His Honour gave detailed and clear reasons for these conclusions:
First, noting that the caveat removal application was listed for hearing on 1 February 2021, Ms Courtney had no explanation for whether the hearing proceeded and if not, what circumstances led to the hearing not proceeding. Nor was she able to plausibly explain, if the hearing did not proceed: why no orders were made; why the plaintiff did not continue to press for the caveats to be removed; or why no other steps were involved in the proceeding for the remainder of 2021.
Second, Ms Courtney offered no explanation for her decision to terminate Mr Efron’s retainer in October 2021. It is far more plausible that she terminated the retainer when Mr Efron refused to reinstate the caveats at her request.
Third, Ms Courtney could not explain, if she thought the proceeding was still on foot, why she took no action in the proceeding after October 2021. She did not file an appearance. She did not ask Mr Efron for the file and she did not contact the Court to ask when the proceeding was next before the Court. Nor did she seek to retain another solicitor. This inaction is consistent with knowledge that the proceeding was no longer on foot.
Fourth, Ms Courtney’s relied upon the difference in tone and language in the email of 27 January 2021 as proof that she did not write the email which instructed Mr Efron to agree to remove the caveat over the South Yarra property. I did not detect a marked difference in language or tone from Ms Courtney’s other email communications. Additionally, there was no evidence before the Court of any other person having access to Ms Courtney’s email address. Other than a bald denial, Ms Courtney offered no explanation about how the email might have come to be written in the days before the hearing of the proceeding when her lawyer was seeking her instructions.
Fifth, Ms Grech’s evidence that Ms Courtney attended Mr Efron’s office on 29 January 2021 was consistent with the evidence of Mr Efron’s diary for that day. It was also consistent with Mr Efron’s evidence that Ms Courtney attended and provided him with instructions to remove all three caveats on 29 January 2021. Ms Grech’s evidence was not seriously challenged and I accept it. The corollary of this is that I do not accept that Ms Courtney did not attend Mr Efron’s office on 29 January 2021. Given the timing of this attendance, along with the evidence of the negotiations over the preceding days between the parties about the terms of the consent orders and the impending hearing, I find Mr Efron’s evidence that Ms Courtney provided instructions to agree to withdraw all three caveats inherently plausible. In my view Mr Efron’s evidence that he advised Ms Courtney of the problems with her case and the risk of an adverse indemnity costs order form a plausible explanation for Ms Courtney’s instructions.
Finally, Ms Courtney’s explanation for events was not supported by the documentary evidence. That evidence supports a finding that consent was reached, minute of consent signed, orders made and that Ms Courtney took no further steps because she was aware of those matters. It is simply implausible that Ms Courtney did not receive multiple emails sent to her email address from her lawyers confirming her instructions and informing her of the orders made by the Court. In circumstances where no alternative explanation was seriously offered, it was equally implausible that Ms Courtney did not send the email of 27 January 2021 providing instructions to withdraw the caveat over the South Yarra property or the email of 28 October 2021 requesting Mr Efron to reinstate the caveat over that property.[93]
[92]Judgment, [36].
[93]Judgment, [37]-[42].
The thorough reasons given all establish a compelling basis for his Honour’s conclusion that he could not accept Ms Courtney’s version of events that she did not send the email of 27 January 2021 or provide instructions to Mr Efron to enter into the consent orders at a meeting at his office on 29 January 2021.
I reviewed the transcript of the hearing before Irving AsJ, which was in evidence.[94] Associate Justice Irving’s conclusions are all entirely consistent with the evidence and an acceptance that Mr Efron’s evidence was plausible and should be preferred to that of Ms Courtney.
[94]Court Book, 422-551. I raised with Ms Courtney that the transcript was in evidence and that I could read it, and she agreed that it would be helpful that I do so: Transcript 07/12/23, T38.14-.18.
There is nothing in the evidence before Irving AsJ which would support Ms Courtney’s assertions that Mr Efron was lying in his evidence. Ms Courtney’s assertions that there was some bias involved in accepting his evidence or that there was some conflict of interest in him giving evidence cannot be accepted in circumstances where Mr Efron was giving evidence under the compulsion of a subpoena issued at the instance of Mr Reed.[95]
[95]Transcript 07/12/23, T 80.21-.31; Subpoena dated 29 March 2022.
Ms Courtney’s submissions and contention in the Notice of Appeal that Mr Reed or his lawyers were required to call forensic evidence to establish that the various emails that were in evidence were genuine[96] had no foundation in circumstances where the emails were in evidence and, as observed by Irving AsJ, the documentary evidence did not otherwise support her version of events. Equally, Ms Courtney’s assertion in the Notice of Appeal that she had ‘the burden of proof from forensics data analysts that I did not send those emails to Mr Graeme Efron’ was not supported by any of the evidence before Irving AsJ; nor was there anything in the additional evidence that Ms Courtney sought to call which was relevant in any way to establishing that the emails were not genuine.[97]
[96]Notice of Appeal filed 12 May 2023, 1.
[97]Ms Courtney made submissions about some of her emails having a notation of being sent at ‘AEDT’, being sent from Australia; whereas she submitted that the email dated 27 January 2021 to Mr Efron did not have that notation: Transcript 07/12/23, T104.10-105.04. Ms Courtney referred to Exhibit D-1, at pages 14 and 22, which contained emails of Wednesday 11 August 2021 at 6:59pm and 4:59pm. Ms Courtney contended these emails demonstrated that the 27 January 2021 email was fake. I did not accept that this was probative of anything about the emails and in any event observed that the email of 11 August 2021 at 6.59pm which she had identified as a ‘real email’ also did not have the notation, whereas the email at 4.59pm on the same page did. See Transcript pages T105.07- 107.11; Court Book, 15 (Affidavit of Kathleen Courtney sworn on 12 July 2023), 31 (Affidavit of Kathleen Courtney sworn on 17 July 2023), 278-279 (Affidavit of Kathleen Courtney sworn on 16 August 2023).
As to the specific matters raised by Ms Courtney, contrary to her submission, it was clear that Irving AsJ gave specific consideration to her contention that the tone of her email on 27 January 2021 differed materially from her usual tone in communications with Mr Efron, and that this was proof that the 27 January 2021 email had been fabricated. His Honour observed that he ‘did not detect a marked difference in language or tone from Ms Courtney’s other email communications’[98]. Having reviewed the 27 January 2021 email and other emails from Ms Courtney to Mr Efron,[99] I regard that conclusion as completely open to his Honour.
[98]Judgment, [40].
[99]Court Book, 48 (Affidavit of Kathleen Courtney sworn 25 July 2023), 231 (Affidavit of Henry McMenomy affirmed 8 August 2023), 305 (Affidavit of Kathleen Courtney sworn 2 September 2023).
Absence of reference to evidence relating to history of dispute
There was no error in the fact that his Honour did not refer to evidence relating to Ms Courtney’s late husband and the matters she identified as relevant to her asserted interests in the Properties. Those matters, while relevant to the earlier stages of the proceeding relating to the removal of the caveats (and her response in asserting a valid caveatable interest), were not relevant in any way to the application to reinstate the proceeding and to set aside the consent orders.
Determining the matter without hearing evidence of proposed additional witness
I also do not consider there was any error arising from his Honour’s determination of the application without hearing from Ms Courtney’s witness. As noted above at paragraph [32], Irving AsJ had declined to permit Mr Courtney to give evidence for reasons including the unexplained very late notice (notwithstanding prior orders for the filing of affidavit evidence), the prejudice to Mr Reed and the inconsistency with case management principles that would arise from delaying the hearing to permit the evidence to be given.[100] Those were all entirely appropriate reasons for his Honour to have declined to hear the evidence. Ms Courtney had ample opportunity prior to the hearing to file any affidavit from Mr Courtney for the purposes of her reinstatement application, and there was no unfairness in declining the late application.
[100]Transcript 17/08/22, T9.17-10.02.
Further, there was nothing identified in the evidence or submissions that indicated that any evidence that Mr Courtney could have given before Irving AsJ would have been relevant. The evidence before Irving AsJ included affidavit evidence from Ms Courtney to the effect that Mr Courtney had a recollection of the signing of a document in 2009.[101] The only apparent relevance of this evidence would have been to the issue of whether there was a caveatable interest in the Properties, and not to whether the Consent Orders could be set aside. Even if, notwithstanding that this was not identified at the time, the evidence may have addressed matters of the kind for which Ms Courtney has sought leave to call Mr Courtney at the hearing before me, namely her health and circumstances relevant to meetings with Mr Efron as to whether the emails were sent by her to Efron & Associates, this was not identified to Irving AsJ in the hearing. There was no error in his decision to refuse to permit Ms Courtney to be called, nor in his determination of the matter without evidence from Mr Courtney.
[101]Court Book, 28 (Affidavit of Kathy Courtney filed 12 July 2023).
Conclusion as to application for extension of time
Considering the matters identified in the Notice of Appeal, and the submissions and evidence put forward by Ms Courtney, I consider that it would be futile to grant leave to extend time to file the Notice of Appeal because there is no error identified in the determination of Irving AsJ. Even if it is possible that the arguments raised by Ms Courtney relating to her allegations that the relevant emails were ‘fake’ or ‘spoofed’ could, if supported by evidence, be a sufficient basis to invalidate the compromise given effect by the Consent Orders, there was no error in Irving AsJ’s conclusion that there was no evidence that the emails were not genuine and in his ultimate conclusion that Ms Courtney did authorise the execution of the Consent Orders.
Application for summary judgment
In the event that I am wrong in my decision that the proposed appeal is so lacking in merit that it would be futile to extend the time for filing the Notice of Appeal, I will consider the application by Mr Reed to dismiss the proceeding summarily pursuant to ss 61 and 63 of the Civil Procedure Act 2010.
The question for summary judgment under s 63 of the Civil Procedure Act2010 is whether there is a ‘real’ as opposed to a ‘fanciful’ chance of success, and is to some degree a more liberal test than the former position[102] requiring that it be established that a proceeding was ‘hopeless’ or ‘bound to fail’ in order to obtain summary judgment.[103] There may be cases which are not hopeless or bound to fail but which nevertheless do not have a real prospect of success.[104] I must exercise this power with caution given that, in the event that I am wrong to have refused the extension of time in which to file the appeal, summary judgment on the appeal would summarily terminate any appeal.
[102]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
[103]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, [35].
[104]Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27, [29].
In the present case, for the reasons above, I consider that the matters raised in the proposed Notice of Appeal are such that the proposed appeal is futile and is bound to fail. I also consider that there is no real chance of success of the proposed appeal. Even construing the Notice of Appeal liberally, bearing in mind that it has been prepared by Ms Courtney as an unrepresented litigant; and taking into account her arguments to the extent that they may enlarge an understanding of what is put as the basis of the appeal, she has identified no error in the judgment below which could give an appeal any real prospect of success.
Conclusion
The application for an extension of time to file the Notice of Appeal is dismissed. Had it been necessary to consider it, I would have allowed the application for summary dismissal of the Notice of Appeal.
I heard submissions at the hearing on 7 December 2023 on the costs orders which should be made on the applications. The costs of the applications should follow the event and I will make orders accordingly.
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