Shaw v Yarranova Pty Ltd & Anor
[2012] VSCA 189
•16 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0111
| JOHN RASHLEIGH SHAW | |
| Applicant | |
| v. | |
| YARRANOVA PTY LTD (ACN 007 317 616) and NEWQUAY STAGE 2 PTY LTD (ACN 086 482 644) | Proposed Respondents |
---
JUDGES: | WARREN CJ and BEACH AJA |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 16 August 2012 |
DATE OF JUDGMENT: | 16 August 2012 |
MEDIUM NEUTRAL CITATION | [2012] VSCA 189 |
---
CIVIL PROCEDURE – Application for leave to appeal – Supreme Court (General Civil Procedure) Rules 2005 rr 27.06, 63.56.1.
---
| APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr Shaw in person | |
| For the proposed Respondents | No appearance |
WARREN CJ
BEACH AJA:
The applicant, Mr Shaw, has had a number of costs orders made against him. On 7, 10 and 11 October 2011 Wood AsJ made orders taxing the costs. Mr Shaw then attempted to file notices, dated 24 October 2011, objecting to the orders under r 63.56.1. The Prothonotary refused to accept the notices for filing. Mr Shaw then applied under r 27.06(3) for an order directing the Prothonotary to accept the notices for filing. On 23 May 2012 Hargrave J, having considered the matter on the papers, refused the application and published brief written reasons. Mr Shaw now seeks leave to appal against Hargrave J’s decision.
Mr Shaw’s application for leave to appeal was filed on 12 June 2012. It was made out of time. In his affidavit in support of the application Mr Shaw deposes that he was not notified of Hargrave J’s order and that he did not receive it until 6 June 2012. During the oral hearing of the application, Mr Shaw expressed general dissatisfaction with the conduct of the Supreme Court Registry, which he described as an ‘outrage’. Mr Shaw asserted that the Registry did not assist him with the drafting of his notices of objection and that its staff were generally unhelpful in responding to his requests and inquiries. He complained that the Registry took too long to notify him of Hargrave J’s order, causing him to miss the deadline for filing his application for leave to appeal.
Part of the Registry’s role is to provide a service to the profession and to the community. It is unnecessary to embark on an inquiry into whether in this case the service provided by the Registry was in some way deficient because, in any event, it could not affect the disposition of this application. This is because, leaving aside the issue of the extension of time, Mr Shaw’s application should fail on its merits. Nothing more needs to be said about the lateness of the application. We would note, however, that while the Registry tries to assist self-represented litigants, there are limits to how far it can go. The Registry is not there to provide legal advice. Nor can it become partisan or be seen to do so.
The dispute between Mr Shaw and the respondents has had a long and tortuous history, including three decisions of the Court of Appeal and numerous decisions and rulings in the Trial Division. One of the decisions of the Court of Appeal concerned the taxation of costs.[1] Mr Shaw was refused leave to appeal. As will be seen from these reasons, that decision concerned the same issues that Mr Shaw now seeks to raise again in his notices.
[1]Shaw v Yarranova Pty Ltd [2011] VSCA 55.
The Prothonotary refused to accept the notices for filing because he considered that the notices did not comply with r 63.56.1. That rule requires that the notice:
(a)state by a list each item in the bill in respect of which the party objects to the order of the Costs Court constituted by a Costs Judge; and
(b)state specifically and concisely the grounds of objection to that order and the order sought in its place.
Mr Shaw’s notices do not individually list every item that he objects. Nor do they state the objections item by item. Instead, the notices specify the items objected to as a range (eg ‘1–286 Inclusive’) and then globally list the objections to all of these items. In effect, Mr Shaw seeks to object to all of them items that were allowed and he seeks to do so identical grounds in respect of all of the items.
Justice Hargrave held:
In my opinion, the Prothonotary was right to refuse to accept Mr Shaw’s notices for filing. The notices do not comply with r 63.56.1(4). They do not state by a list each item in the bill in respect of which Mr Shaw objects to the order of the Costs Court. Nor do they state specifically and concisely the grounds of objection to each item. They do not state the order sought in place of the order allowing each item objected to. The notices simply object to all of the items which were allowed on a series of general contentions. That is not in accordance with the rule.
Further, having regard to the history of the proceeding in respect of costs orders, it would be an abuse of process for Mr Shaw to proceed with his general grounds of objection. They have either been dealt with by prior decisions of the Court or the opportunity to raise them has long passed. In that regard, I refer to the reasons for rulings given by Wood AsJ on 19 September 2011 and 11 October 2011.
We would not grant Mr Shaw leave to appeal because we consider that Hargrave J’s decision is not affected by sufficient doubt.
Before proceeding to the substantive issues, we note that Mr Shaw’s written submission raises the issue of whether the decision of Hargrave J was affected by apprehended bias:
The judgment [of Hargrave J] does not state how the application constitutes an abuse of process & leaves me wondering the basis for this ruling. His Honours [sic] statement ‘having regard to the history of the proceeding in respect of costs orders’ is not explained but it appears to be a criticism.
Without proper explanation it may raise a reasonable apprehension of bias.
The issue of apprehended bias needs to be dealt with first.[2] In our view, the allegation of apprehended bias is manifestly without merit. As our reasons will show, ‘the history of the proceeding in respect of costs orders’ is relevant, and indeed determinative, of the issue of abuse of process. Further, Hargrave J expressly referred to and adopted the reasons of Wood AsJ in relation to the abuse of process issue. Associate Justice Wood’s ruling published on 11 October 2011 sets out the history of the proceeding and explains how that history makes it an abuse of process for Mr Shaw to raise the issues that he now seeks to raise.
[2]Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577, [2] (Gummow ACJ), [117] (Kirby and Crennan JJ); Antoun v The Queen [2006] HCA 2; (2006) 224 ALR 51, [2]–[3] (Gleeson CJ).
We now turn to Mr Shaw’s challenge to Hargrave J’s decision on the merits.
In our view, it is reasonably arguable that a valid notice under r 63.56.1 can state common objections that apply to multiple items by specifying the numbers of the items that are objected to (in a list or as a range) and then setting out the objections common to all of these items. In other words, it is reasonably arguable that if an objection is common to multiple items, the notice does not need to list each item individually and then repeat the same objection for each item.[3] However, Hargrave J gave an additional reason for his decision — that it would be an abuse of process for Mr Shaw to proceed with his grounds of objection. In our view, that reason is not attended by sufficient doubt so as to justify leave to appeal being granted.
[3]Altorfer & Stow (A Firm) v Lindsay [2005] WASCA 73, [55]. Cf Giannarelli v Shulkes (Unreported, Supreme Court of Victoria, Nathan J, 25 July 1990).
Mr Shaw’s grounds amount to an abuse of process because they attempt to re-litigate issues that have already been decided between the parties and/or to raise issues that should have been raised in earlier proceedings.[4] In order to see why that is so, it is necessary to understand the issues that Mr Shaw had raised in previous proceedings, and in particular, in his unsuccessful application for leave to appeal to this Court in Shaw v Yarranova Pty Ltd [2011] VSCA 55 (‘Shaw (No 3)’).
[4]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, [33] (French CJ).
Shaw (No 3) concerned Mr Shaw’s attempt to resist liability for costs on the basis of the indemnity principle. In Shaw (No 3) this Court explained the principle as follows:[5]
An order for costs against the unsuccessful litigant aims to provide the successful party with some level of indemnity for the legal costs the successful party would not have incurred had it not been necessary to uphold his or her rights in court. Such an order does not entitle the successful litigant to recover more than he or she has paid or is liable to pay to his or her own lawyer. The rule limits the successful party’s right to indemnification to the ‘necessary or proper’ costs incurred to obtain justice in the case. The costs are usually confined to those that the successful party ‘was primarily and potentially legally obliged to pay to his solicitor’. Hence the existence and scope of the successful litigant’s duty to pay his or her own solicitors is central to the ability to recover costs.
[5]At [8] (footnotes omitted).
The basis for Mr Shaw’s indemnity principle point was that another company, MAB Corporation Pty Ltd, paid for or was intending to pay, the respondents’ solicitors, Arnold Bloch Leibler (‘ABL’) for the respondents’ costs. Mr Shaw claimed that the respondents, Yarranova Pty Ltd (‘Yarranova’) and Newquay Stage 2 Pty Ltd (‘Newquay’) were not liable to ABL for their costs. The Court in Shaw (No 3) summarised the history of the proceedings and Mr Shaw’s submissions as follows:
9.… Relying upon the decision of Beach J in Kuek v Devflan Pty Ltd and the New South Wales Court of Appeal in Dyktynski v BHP Titanium Minerals Pty Ltd, the applicant sought production of ‘relevant retainer letters, costs agreements, invoices, proof of payments of invoices and actual costs paid.’ He submitted before Wood AsJ that the respondents should be required ‘to provide evidence of the terms of the retainer outlining the circumstances and any limitations on the fees or liabilities the defendants may have to their solicitors and actual costs paid by them’, so as to establish their liability to pay costs to their solicitors in amounts at least as great as the amounts of the costs the applicant had been ordered to pay pursuant to the costs orders.
10Wood AsJ accepted that production of retainer letters and any costs agreements may be justifiable but refused to direct the respondents to produce bills or invoices rendered or other proof of payment. He thus ordered that the respondents produce any relevant document and any costs agreement that established the method of calculation of legal fees in relation to acting for the respondents in the substantive proceedings. In response to that order the solicitors for the respondents advised Wood AsJ that there were no such documents, save for actual bills or invoices rendered as proof of payment, noting that the production of those documents was not required. Following that advice, the applicant renewed his request for the production of invoices and receipts for payments. Wood AsJ again refused to so order and in his reasons for confirming on review the taxation figures stated –
At the hearing on 27 April 2010 the defendants confirmed that there were no documents that fell within the description of the order of 19 February 2010. By default therefore the liability of the defendants for legal costs performed on their behalf is on the Supreme Court scale. The taxation took place on that basis and therefore there is nothing to suggest the indemnity principle has been offended.
11Beach J concluded that Wood AsJ was correct to have required the respondents to produce any relevant document and any costs agreement that established the method of calculation of the relevant legal fees and was also correct in refusing to order the production of invoices and receipts. Beach J considered that a flexible and reasonable application of the indemnity principle did not mandate a fishing exercise by the unsuccessful party in the hope of finding something in the successful party’s documents that would displace the right to indemnity when there was presently no evidentiary foundation to do so.
12Both Wood AsJ and Beach J relied upon the evidence of the respondents’ solicitor, Mr Alexander King, a partner of Arnold Bloch Leibler. He had sworn an affidavit following the applicant’s initiation of review proceedings in the Costs Court in which he deposed:–
It appears that the Plaintiff, by paragraphs 39 to 49 of his affidavit affirmed 19 November 2009, believes that the Defendants are not liable to ABL, their solicitors, for the costs of ABL providing legal services to the Defendants. This appears to be due to the fact that ABL invoices MAB Corporation Pty Ltd.
The Defendants are but two companies within a large group of companies known as the ‘MAB group of companies’. ABL acts for a number of companies in that group, including each of the Defendants. The Defendants are, and have always been, liable to pay ABL for legal services provided to them.
ABL has never entered into any agreement or arrangement, whether with MAB Corporation Pty Ltd or with either or both of the Defendants or anyone else on their behalves, to the effect that either or both of the Defendants will not under any circumstances whatsoever be liable for ABL’s fees for providing legal services to the Defendants. I gave oral evidence to that effect before Harper J and I was cross-examined by the Plaintiff on that very issue.
13Mr King had also given evidence in earlier proceedings before Harper J in October 2009 in which the applicant had sought leave to appeal from earlier costs orders made by Wood AsJ in 2007 and 2008. Beach J described Mr King’s evidence in these terms –
... During the course of his evidence, Mr King swore that Arnold Bloch Leibler’s retainer was with MAB Corporation Pty Ltd in respect of it and its various subsidiary companies and their businesses. He also swore that MAB Corporation Pty Ltd was the head company in the MAB group, two of which were the defendants in this proceeding. However, at no time did Mr King say that the defendants were not liable to pay for the work done by Arnold Bloch Leibler in this proceeding.
14Beach J referred to the following ruling which had been given by Harper J during the course of the applications –
I am against you Mr Shaw, in my opinion it is now too late to appeal the orders of Associate Justice Wood made on respectively 16 November 2007, and the 18 February 2008. The only explanation put forward for the delay in seeking leave to appeal is that the associate justice may have changed his position in relation to the orders he made then, had the plaintiff presented the associate justice with documents which he says would in some way affect the decisions made by the associate justice.
As I understand it the documents may suggest that the costs taxed by the associate justice were not in fact paid by the respondent. Even if that were true the question before the associate justice is whether the costs were charged by the legal representatives of the respondents. If they were charged by the legal representatives of the respondents, and they were reasonable, and they were taxed accordingly, then the fact that the legal advisors may not have actually received those monies from the respondents is irrelevant. In my opinion the failure of Mr Shaw to appeal against the relevant orders in time together with the – is in itself a reason why the matter should not now be opened, or reopened after this very long lapse of time.
15In rejecting the applicant’s submission that the indemnity rule had been displaced, Beach J referred to and endorsed the above italicised observations of Harper J.
16The applicant contended that as it was undisputed that there was a retainer between MAB and the respondents’ solicitors and their invoices were rendered to and paid by MAB, the Costs Judge and Beach J should have concluded, in the absence of any costs agreement or retainer between the respondents and their solicitors, that it was never contemplated by their solicitors or the respondents that they could be liable to their solicitors for their costs. The applicant relied upon the proposition that where a lawyer cannot recover costs from his or her client, that client cannot recover costs from his or her opponent. As the parent company and each of the respondents was a separate entity under the Corporations Law and the contract for services was between MAB and the respondents’ solicitors, he submitted that there was no privity of contract between the respondents and their solicitors. He relied upon the fact that no evidence had been adduced to establish that the respondents had agreed to be liable for costs or that the respondents had been advised that they could be liable. In the absence of such evidence it was submitted that the respondents’ solicitors would not have been able to enforce a claim for payment of their costs against the respondents.
(original emphasis, footnotes omitted)
The Court of Appeal rejected Mr Shaw’s argument:
23Payment by MAB Corporation of the respondents’ costs did not give rise to an inference that the respondents had no liability for their solicitors’ costs. The existence of a concurrent obligation by MAB to pay the respondents’ solicitors’ costs pursuant to its retainer, and the fact that the accounts for services may not have been rendered to the respondents, did not preclude the presumption from applying. A litigant who is liable to his or her own solicitor for the costs of proceedings and is indemnified in whole or in part for those proceedings is entitled to recover his or her taxed or assessed costs for the benefit, in whole or in part, of the party providing that indemnity. Having paid or agreed to pay the solicitors for the successful party’s costs, the indemnifier would become subrogated to all rights of the successful party, subrogation being an equitable right which does not depend upon a contractual entitlement.
24There being a strong presumption of a retainer [between the respondents and ABL], it was for the applicant to either prove that there was no retainer or establish that there was an express or implied agreement between the respondents and their solicitors that under no circumstances whatsoever were they to be liable for their solicitors’ fees.
25There was no evidence to support an inference that there was an agreement between the respondents and their solicitors that they should not be liable for their solicitors’ fees. The evidence of Mr King was to the contrary effect. Such evidence was not hearsay evidence but was direct evidence. Accordingly, we reject the contention that the Costs Judge should have found that the indemnity rule was displaced.
(footnotes omitted)
The Court of Appeal then held that, in these circumstances, Wood AsJ was right to refuse Mr Shaw’s application for the production of invoices and receipts:
26Wood AsJ and Beach J were correct to conclude that this was not a case in which the production of invoices and other indicia of payment should have been ordered. … [W]here an application is made in the Costs Court that the party in whose favour a costs order has been made produce documents asserted to be relevant to the application of the indemnity principle, the applicant must identify a legitimate forensic purpose for which access is sought, and establish that it is ‘on the cards’ that the documents will materially assist his case. There will be no legitimate forensic purpose if, ‘all the party is doing is trying to get hold of the documents to see whether they may assist him in his case.’ The court must both be satisfied that the documents are relevant to an issue and that there is something in the material then before the court that makes it appear likely that the documents will materially assist the applicant.
27Once it is recognised that it will ordinarily be presumed in the case of a solicitor who acts on the record for a party that there is a retainer and that the party for whom the solicitor acts is liable for the solicitor’s costs notwithstanding that the party is indemnified by another for the payment of those costs, there was nothing before the Costs Judge that made it likely that any of the material sought by the applicant would advance the contention that the indemnity principle had been displaced. The evidence did not raise the likelihood that the costs that had been or were to be paid were less than those that had been taxed. Beach J correctly concluded that the applicant was on a ‘fishing expedition’ to determine whether there may be relevant retainer documents or indicia of payment that might support an argument that the indemnity rule did not in whole or part apply.
28By contrast, in Kuek v Devflan Pty Ltd there were circumstances placed before the Costs Judge which gave him reason to order the production of retainer letters and costs agreements. The material was there sufficient to raise the likelihood that the party/party costs may have exceeded the successful party’s actual liability to its lawyers. But there must be evidence before the Costs Court that renders it likely that the indemnity principle has either in whole or part been displaced.
29There was no evidence before Wood AsJ that rendered it likely that MAB had paid the respondents’ solicitors amounts which were less than those established on the taxation, or that the respondents’ liability to their solicitors was for an amount less than that taxed. Absent evidence that brings into doubt that the solicitor is to be indemnified to the full extent of the taxed costs, natural justice does not require the production of invoices and indicia of payment.
(footnotes omitted)
The Court of Appeal also dealt with Mr Shaw’s argument that the respondents’ (and therefore his) liability for costs should be reduced on the basis of ABL’s failure to disclose costs:
30Beach J also rejected the submission made by the applicant that he was entitled to pursue an argument and seek relevant documents to establish that there may have been non-compliance by the respondents’ solicitors with the disclosure obligations under the Legal Practice Act 1996. In doing so his Honour said:
The taxation of costs ordered to be paid by another party is not an occasion for enquiry into what (if any) failures there have been in relation to disclosure requirements and not the ‘seriousness’ of any such breach might be. The flexible and reasonable application of the indemnity principle as the authorities show, does not permit such an approach. In any event, how the production of invoices and receipts might show a failure by a party’s solicitor to comply with disclosure requirements was never explained by the plaintiff.
31The applicant contended that Beach J erred in not conducting an assessment pursuant to s 91 of the Legal Practice Act 1996 to determine the extent, if at all, that the respondents’ solicitors had failed to make the disclosures required under the Act and to then reduce the costs. He said on the leave application that the order for production was wide enough to cover such documents and that as nothing was produced it follows that there had been no requisite disclosure. The respondents submitted that the documents did not fall within the order for production as these were not documents that set out the method by which the respondents’ costs had been calculated. The respondents pointed to the fact that the order had been made in the context of a request for ‘relevant retainer letters, costs agreements, invoices, proof of payments of invoices and actual costs paid’ hence it was not within the contemplation of the respondents’ solicitors that disclosure documents were being sought. The respondents contended that the applicant had not claimed that it had been established that there was any failure by the respondents’ solicitors to disclose to the respondents any information required under the Act. The applicant’s case was that ‘if there has been no costs disclosure, the court should conduct an assessment of the costs and reduce them in accordance with s 91 and s 93.’
32Even if there was evidence from which it could be inferred that there had been non-compliance with s 86 of the Legal Practice Act 1996, and assuming that the applicant falls within the description of persons who could apply for an assessment of the respondents’ solicitors’ bill of costs under s 115(1) of that Act, there had, by the time of this submission before Beach J, been an assessment and a review of all the relevant bills of costs. It was not for Beach J to have undertaken such a task, nor could his Honour have ordered a further assessment except in ‘special circumstances.’[39] A complaint by the applicant, as the party who has been ordered to pay the costs of the proceeding, that there may have been non-compliance with the disclosure requirements of the Act, would not in our opinion constitute a ‘special circumstance’ warranting a further assessment.
(footnotes omitted)
Mr Shaw’s proposed grounds of objection in relation to all items are:
1. The taxations proceeded on the wrong principles founded on:
a.The [applicant] was denied procedural fairness & natural justice when the court refused to order production of disclosure documents (after admission of their existence before the Court of Appeal in Feb 2011) to determine whether they would comply with orders of AsJ Wood 19 Feb 2010.
b.The [respondents’] failure to file and serve an affidavit exhibiting existing (admitted) cost disclosure documents and other related materials in compliance with orders of AsJ Wood dated 19 Feb 2010 for taxation of costs in previous related costs taxations.
c.Reliance on false & misleading evidence contained in the [respondents’] solicitor [sic] affidavit 3 Dec 2009 tendered in separate proceeding.
2.The court did not account for the fresh evidence contained in the [applicant’s] affidavit & exhibits dated 02 October 2011 and provide an assessment on how this evidence would not justify production of some of all of the documents requested in the notices of objections or would not be relevant to the issues of retainer & extent of costs liability of the [respondents].
3.The [applicant] was denied the opportunity to assess the relevant disclosure statements and documents requested and make submissions challenging the existence of a Corporate retainer, extent of liability under the Corporations Law, special fee arrangements between the solicitors (as major shareholders of the [respondent] companies) that would reduce liability and reduction of the bill in accordance with the indemnity principle and/or s 86, 87 & 91 of the Legal Practice Act 1996.
4.The court erred by not recognising its authority to assess & order reduction of costs payable by the [applicant] due to the failure of the solicitors to comply with the disclosure requirements of s86, 87 & 91 of the Legal Practice Act 1996.
5.The [applicant] was denied natural justice and/or procedural fairness by the [respondent] companies’ refusal, neglect and/or failure to produce documents relating to the proof of existence of retainer and/or the extent of liability to the solicitors for legal costs and disbursements.
6.On the available evidence the Court cannot be satisfied the total amount of costs allowed in each respective order did not exceed the [respondents’] actual liability to their lawyers & counsel.
7.The [applicant] seeks to tender additional evidence to support a reconsideration of the orders.
In place thereof, a total amount not exceeding the [respondents’] actual liability to their lawyers & counsel.
It is immediately apparent on the face of these objections that they seek to raise issues that either have been raised in previous litigation between the parties and determined adversely to Mr Shaw or that could have been and should have been agitated in the earlier litigation.
Objection 2 refers to Mr Shaw’s affidavit dated 2 October 2011. That affidavit makes numerous allegations of fraud and dishonesty against the respondents and their solicitors. These allegations do not appear to have a proper basis. Many of the allegations are clearly misconceived. For example, Mr Shaw alleges that ABL partners are indirect shareholders of one of the respondents. He deposes that the ABL partners are shareholders of ABL Fiduciary Corporation P/L, which is a 50% shareholder in Hillgarth P/L, which is in turn a 50% shareholder of Newquay.[6] This shows, Mr Shaw claims, that ABL partners are 50% owners of Newquay.[7] From this alleged fact Mr Shaw then seeks to draw further inferences of dishonesty and impropriety. In fact, the company searches exhibited by Mr Shaw show that Hillgarth does not hold its shares in Newquay beneficially. Similarly, ABL Fiduciary Corporation does not hold its shares in Hillgarth beneficially either. So there is nothing in the documents provided by Mr Shaw to suggest that any of the ABL partners have any beneficial interest in the respondents.
[6]Paras 12, 27.
[7]Paras 45.
Much of the material in Mr Shaw’s affidavit seeks to attack the credibility of Mr King, the ABL partner who deposed in previous costs litigation that ‘ABL has never entered into any agreement or arrangement… to the effect that either or both of the [respondents] will not under any circumstances whatsoever be liable for ABL’s fees for providing legal services to the [respondents]’. Mr King’s evidence was accepted by Beach J. Mr Shaw cross-examined Mr King in a hearing before Harper J, although he was required to confine the cross-examination to issues going to the ‘financial position’ of the respondents. Mr Shaw’s attempt to appeal against the decision of Beach J failed. It is too late now to attempt to challenge Mr King’s credibility.[8]
[8]We note that Mr Shaw has not applied to set aside the earlier orders on the basis that they were obtained by fraud.
Insofar as Mr Shaw’s notice raises issues that have not already been determined between the parties, they are all issues that ought to have been properly raised in earlier costs litigation between the parties.
Mr Shaw submits that he was not given an opportunity to make submissions to Hargrave J as his Honour made his decision on the papers. Mr Shaw points out that the Prothonotary refused to accept Mr Shaw’s notices on the basis that they did not comply with r 63.56.1, not on the basis that the proceeding they would commence would amount to an abuse of process. Mr Shaw submits that he was therefore denied the opportunity to make submissions with respect to the abuse of process issue.
The answer to that submission is fourfold. First, it was open to Hargrave J to uphold the Prothonotary’s decision to refuse to accept a document for filing on grounds different from or additional to the grounds on which the Prothonotary based his decision. Secondly, the Rules do not contemplate a hearing for the purposes of determining whether to make an order under r 27.06(3) directing the Prothonotary to accept a document for filing. Thirdly, Mr Shaw was on notice about the abuse of process issue as it has been raised in the decision of Wood AsJ. Finally, in any event, we consider that had Mr Shaw been specifically given opportunity and invited to make submissions on the abuse of process issue, the outcome could not have been different.[9]
[9]Stead v State Government Insurance Commission (1986) 161 CLR 141, 145 (Mason, Wilson, Brennan, Deane and Dawson JJ).
For these reasons, we consider that Hargrave J’s finding that Mr Shaw’s notice constitutes an abuse of process is not affected by sufficient doubt to justify the grant of leave. We would therefore refuse leave to appeal. Insofar as an extension of time is required and sought, we would refuse to give an extension of time.
3
8
0