Sims v Suda Ltd [No 2]
[2015] WASCA 105
•2 JUNE 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SIMS -v- SUDA LTD [No 2] [2015] WASCA 105
CORAM: McLURE P
NEWNES JA
HEARD: 19 DECEMBER 2014
DELIVERED : 2 JUNE 2015
FILE NO/S: CACV 11 of 2014
BETWEEN: DOUGLAS ARTHUR SIMS
Appellant
AND
SUDA LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STONE DCJ
Citation :SIMS -v- SUDA LTD [2014] WADC 7
File No :CIV 2168 of 2011
Catchwords:
Practice and procedure - Application to dismiss appeal on grounds that appellant's case does not comply with Supreme Court (Court of Appeal) Rules 2005 (WA) or grounds of appeal have no reasonable prospect of succeeding - Importance of compliance with Rules - Position of litigants in person - Whether appellant should be given opportunity to file fresh appellant's case - Likelihood of future compliance with Rules
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)(b) (c), r 32(5) (8), r 43(2)(a), r 44(1)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr M L Bennett
Solicitors:
Appellant: In person
Respondent: Bennett + Co
Case(s) referred to in judgment(s):
Avsar v Binning [2009] WASCA 219
George v Fletcher (Trustee) [2012] FCAFC 148
Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200
Sims v Suda Ltd (No 2) [2015] FCA 281
Sims v Suda Ltd [2014] WASCA 113
Sims v Suda Ltd [2015] WASCA 65
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Vakauta v Kelly (1989) 167 CLR 568
Western Excavating (ECC) Ltd v Sharp [1978] QB 761
JUDGMENT OF THE COURT: This appeal comes before the court on, among others, an interim application by the respondent for an order that the appeal be dismissed pursuant to r 43(2)(a) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal rules), on the ground that the appellant's case does not comply with the requirements of r 32(4)(b) and (c), and r 32(5) ‑ (8) (dealing with the form of, inter alia, grounds of appeal and written submissions in an appellant's case), or alternatively, pursuant to r 44(1) on the ground that none of the grounds of appeal has a reasonable prospect of succeeding.
It is necessary, before turning to the substance of the application, to set out the relevant background.
Background
In October 2007, the appellant was employed by the respondent in the position of International Business Director, pursuant to a written employment agreement. On 9 June 2009, the appellant resigned from that position.
The appellant subsequently brought proceedings in the District Court for damages for breach by the respondent of the employment agreement, alleging that his resignation had not been voluntary but that he had been constructively dismissed. The appellant pleaded, relevantly, that between July 2008 and June 2009 the respondent, by its chairman Mr Jooste, had engaged in a course of conduct which undermined or obstructed the appellant's authority and control as International Business Director and thereby:
(a)undermined the trust and confidence required for him to perform the employment contract;
(b)was calculated to destroy or seriously damage the relationship of trust and confidence between him and the respondent; and
(c)constituted a failure to act in good faith, in breach of the implied terms of the employment contract (statement of claim, par 14).
The alleged course of conduct, which is the main focus of the appeal, was set out in particulars of par 14 of the statement of claim, which it will be necessary to come back to in some detail in due course.
The appellant further alleged that he had not been paid certain amounts to which he was entitled under his contract of employment.
The respondent denied that the alleged course of conduct had occurred (par 14) and pleaded that the appellant had resigned voluntarily (par 16). It also denied that the appellant was entitled to the amounts claimed.
On 5 February 2014, following a seven day trial, Stone DCJ dismissed the appellant's action. His Honour found that the appellant had not been constructively dismissed but had resigned of his own volition. The primary judge further found that the appellant was not entitled to the amounts claimed under his employment agreement.
The appellant filed an appeal notice on 7 February 2014. On 12 March 2014, he filed an appellant's case. The respondent's solicitors wrote to the appellant, by letter dated 18 March 2014, setting out a number of respects in which they said the appellant's case did not comply with the Court of Appeal rules. Following further correspondence between the parties, on 8 April 2014 the respondent filed the present application for the appeal to be dismissed.
On 9 April 2014, the appellant filed a document entitled 'Appellant's Ammended [sic] Draft Submissions to Submissions' [sic], together with an application for '[l]eave of the Court of Appeal to accept amended Draft Submission to Submission'. The apparent intention was that the amended submissions should replace the written submissions contained in the appellant's case filed on 12 March 2014.
In the meantime, on 13 March 2014, the appellant had filed two interim applications in the appeal. One was an application seeking a stay of the costs order made by the primary judge. The other was an application for the issue of three subpoenas. The latter was accompanied by three affidavits in support of it. Some considerable time later, on 18 August 2014, the appellant wrote to the court advising that only one of the subpoenas was sought, a subpoena directed to the Major Fraud Squad.
The application for a stay of the costs order was subsequently dismissed: Sims v Suda Ltd [2014] WASCA 113.
On 3 July 2014, the respondent applied for an order that the appellant's application for the issue of subpoenas be dismissed and that the appellant pay the respondent's costs of both the appellant's application of 13 March 2014 and the respondent's application of 3 July 2014, on an indemnity basis.
On 28 August 2014, there came on for hearing:
1.the respondent's application of 8 April 2014 for the appeal to be dismissed;
2.the appellant's application of 9 April 2014 for leave to amend his submissions in the appellant's case;
3.the appellant's application of 13 March 2014 for the issue of a subpoena to the Major Fraud Squad; and
4.the respondent's application of 3 July 2014 for the appellant's application for the issue of subpoenas to be dismissed and for indemnity costs.
At the hearing, the appellant conceded that the appellant's case was defective. That concession was properly made. The document filed by the appellant bore scant resemblance to the appellant's case required by r 32 of the Court of Appeal rules. It lacked any proper grounds of appeal, being replete instead with numerous assertions of factual errors of no identifiable significance to the primary judge's ultimate findings. In addition, it contained various references to evidence alleged to have been obtained since the trial which was said to support 'the issuing of warrants and charges on indictable offences by the Board Members of the [respondent]', a matter entirely irrelevant to the appeal. The appellant's written submissions in the appellant's case, entitled 'Appellant's Draft Submissions', were in large part incomprehensible and had no obvious connection with what were designated as the various grounds of appeal.
At the hearing, the appellant said that he had obtained legal aid for advice on the appeal and he sought an adjournment to enable him to file an amended appellant's case. The appellant was given leave to file an amended appellant's case within 14 days, on the basis that he would have one further opportunity to put the appellant's case in order. The respondent's application to dismiss the appeal was adjourned to a date to be fixed. The other applications were to be determined on the papers when the application to dismiss the appeal was determined.
The appellant filed an amended appellant's case on 11 September 2014. It is evident that it was prepared without legal assistance. The respondent contended that the amended appellant's case neither complied with the Court of Appeal rules nor contained any ground of appeal having a reasonable prospect of succeeding. Its adjourned application to dismiss the appeal was heard on 19 December 2014. The appellant again appeared in person.
The disposition of the application to dismiss the appeal
The Court of Appeal rules, by r 32(4), require that an appellant's case state the grounds of appeal relied upon by the appellant, and concise particulars of them, succinctly in numbered paragraphs. The importance of compliance with those requirements cannot be overstated. The provision of proper grounds of appeal is not only necessary to enable the other party to know the case it has to meet but is critical to the court's function on an appeal. As Owen JA (Miller and Newnes JJA agreeing) pointed out in Avsar v Binning [2009] WASCA 219 [37], on an appeal to this court an appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders sought. The grounds of appeal are a critical part of the process because they are the vehicle which guides the review process. His Honour referred to the following observations of Kirby J in Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106:
The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime, a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is 'filed' has no authority to determine any issue affecting the parties [58]. (footnotes omitted)
While it may be necessary to allow some leniency in compliance with the rules where an appellant is unrepresented, in the end the allowances that can be made are necessarily limited, both as a matter of fairness to the other party and because the provision of proper grounds of appeal is fundamental to the exercise of the appellate function by the court. In considering the latitude that should be allowed it is also relevant in the present case that the appellant is by no means unfamiliar with court practices and procedures. He has been involved in a good deal of litigation in this and other courts, much of it while acting in person: see Sims v Suda Ltd [2015] WASCA 65 [8] and the cases there referred to, and Sims v Suda Ltd (No 2) [2015] FCA 281 [7] ‑ [8]. In the latter case, Gilmour J observed that the appellant had commenced at least 40 separate actions in various jurisdictions in Western Australia.
The grounds of appeal
As with their predecessors, the grounds of appeal in the amended appellant's case reflect little regard for the requirements of r 32(4) and fall so far short of what is required by way of acceptable grounds of appeal that the appeal could not proceed as they stand. The difficulty with the grounds of appeal is not ameliorated to any extent by the written submissions in the amended appellant's case, which are poorly organised and to a large extent incomprehensible.
There are 12 grounds of appeal, albeit ground 1 challenges five separate findings of fact made by the primary judge. All but one of the grounds of appeal concern the findings of the primary judge in respect of par 14 of the appellant's statement of claim, which contained the appellant's plea of constructive dismissal.
That plea was as follows:
[The respondent] through [Mr] Jooste, between July 2008 and June 2009, engaged in a course of conduct towards [Mr Sims] which undermined or obstructed [his] authority and control and thereby:
(a)Undermined the trust and confidence required for [him] to perform the Employment Contract as contemplated;
(b)Was calculated to destroy or seriously damage the relationship of trust and confidence between [him] and [the respondent]; and
(c)Constituted a failure to act in good faith, in breach of the implied terms of the Employment Contract.
Particulars of Conduct
[i]Between 1999 and 2009 [Mr Sims] either personally or through entities controlled by him, made loans to [the respondent] which have not been repaid;
[ii]In January 2009 [Mr] Jooste failed to pursue a contract which [Mr Sims] and [Mr] Jooste had secured with a potential investor, [Mr] Brian Nyezi, thereby undermining [Mr Sims'] authority and control;
[iii]From October 2008 to June 2009 [Mr] Jooste allowed and enabled potential investors in [the respondent], [Mr Stewart] and [Mr Richardson], to act in a manner which undermined [Mr Sims'] integral functions as International Business Director including:
A.Making statements to an affiliated company set up by [Mr Sims], [HcBPAG], that [the respondent] was insolvent;
B.Accusing the inventor of ArTiMist, [Dr Ross], of incompetency, thereby destroying the relationship between [the respondent] and [Dr Ross];
C.Alleging that [Mr Sims] had not made loans to [the respondent];
D.Alleging that [Mr Sims] was responsible for a false announcement on the German stock exchange; and
E.Demanding that [Mr Sims] resign in order that they invest in [the respondent].
[iv]In June 2009 Jooste informed the [appellant] that Stewart and Richardson demanded the [appellant] out of the [respondent's] business. Jooste also directed the [appellant] to sign an undertaking not to do anything which would cause early redemption of shares in the company.
It is convenient to deal with each of the grounds of appeal in turn.
Ground 1
Ground 1 alleges that the primary judge erred in fact and law in dismissing the appellant's claim for two years' tax‑free salary and superannuation; that is, the principal relief sought in the action. That ground turns on whether the appellant was constructively dismissed. In support of the ground, the appellant attacks what are said to be the findings of fact in five sub‑paragraphs of [184] of his Honour's reasons.
The first attack is directed to the finding of the primary judge (at [184(1)]) in respect of particular [i] of par 14 of the statement of claim, that is, the allegation that:
Between 1999 and 2009 [Mr Sims] either personally or through entities controlled by him, made loans to [the respondent] which have not been repaid.
The primary judge found that the appellant's evidence in cross‑examination was that the 'loans' referred to in particular [i] was the 'Intellectual Property Reward Contract' and that pursuant to the terms of a settlement deed in other proceedings the appellant had since been repaid that loan by an issue of shares to the appellant. His Honour further found that, in any event, the alleged non‑payment of the loan was not conduct of the respondent by Mr Jooste. (There is no challenge to the latter finding.)
It is alleged that the primary judge erred in fact and law as follows:
That the loan made between 1999 and 2009 was the Intellectual Property Reward Contract when, as evidenced CIV 1737 of 2010 [a different action] and in the DEED of Settlement dated 22nd December 2010, was the payment in Shares for the outstanding $123,000.00 remaining ratified debts of the 20th April 2009, and became due and payable on the 9th June 2009 at 12.00 Noon.
His finding cannot be sustained because the DEED clearly defines the payment in Shares was for the $123,000.00 ratified debts on the 20th April 2009, due and payable to Appellant at 12.00 noon 9th June 2009. No mention of any such shares for the IP Reward Contract as found by [the primary judge].
It is impossible to discern with any clarity precisely what error by the primary judge is alleged. It would seem from the appellant's written submissions that the appellant alleges the primary judge erred in finding that the 'Intellectual Property Reward Contract' was repaid by an issue of shares and that he should have found the share issue was in repayment of a different loan. The appellant does not, however, challenge the primary judge's finding as to the effect of the evidence the appellant gave as to the loan and its repayment, but instead seeks to rely on the terms of a deed of settlement which we were told by counsel for the respondent, and the appellant did not dispute, did not go into evidence. In any event, even if the ground were made out, it is not relevant to his Honour's finding that the appellant voluntarily terminated his employment agreement and therefore is not relevant to the disposition of the appeal.
The appellant does not seek to challenge the findings of the primary judge in relation to particulars [ii] or [iii]B and C of par 14 of the statement of claim, but does seek to attack his Honour's findings in relation to particulars [iii]A, D and E.
The second attack therefore concerns his Honour's findings in relation to the allegation in particular [iii]A of par 14 of the statement of claim, which was as follows:
From October 2008 to June 2009 [Mr] Jooste allowed and enabled potential investors in [the respondent], [Mr Stewart] and [Mr Richardson], to act in a manner which undermined [Mr Sims'] integral functions as International Business Director including:
A. Making statements to an affiliated company set up by [Mr Sims], [HcBPAG], that [the respondent] was insolvent.
The primary judge found, in effect, that the allegation that Messrs Stewart and Richardson had made statements to HcBPAG that the respondent was insolvent had not been made out, the only evidence of such a statement being contained in a letter written by a representative of HcBPAG to the respondent in support of Mr Jooste and the appellant. His Honour further found that if Messrs Stewart and Richardson had made such statements they had done so, as the appellant alleged, as 'potential investors'. His Honour went on to say that Messrs Stewart and Richardson were not officers of the respondent.
The appellant's ground of appeal is as follows:
By applying the test of Lord Denning MR in Western Excavation (ECC) Ltd v Sharp [sic], which has no relevance, the primary judge erred in both fact and law and prejudiced the appellant because Stewart and Richardson were Officers of the Respondent under s 9 of the Corporations Act (Cth).
Particulars are then given of the matters relied upon by the appellant for the allegation that Messrs Stewart and Richardson were (de facto) officers of the respondent.
Again, it is not apparent what is intended by this ground. The connection the appellant seeks to make between the allegedly irrelevant test for constructive dismissal in Western Excavating (ECC) Ltd v Sharp [1978] QB 761, applied by the primary judge, and whether Messrs Stewart and Richardson were officers of the respondent, is at best obscure. There is, however, no challenge to the finding of the primary judge that the appellant had failed to establish that the alleged statements were made.Nor does the appellant challenge the finding that if such statements were made, they were made by Messrs Stewart and Richardson in their capacity as potential investors. A challenge to the finding that at the time Messrs Stewart and Richardson were not officers of the respondent is beside the point. Even if made out, it could not affect the disposition of the appeal.
The appellant's third attack was on his Honour's findings in relation to particular [iii]D of par 14 of the statement of claim, which was as follows:
From October 2008 to June 2009 [Mr] Jooste allowed and enabled potential investors in [the respondent], [Mr Stewart] and [Mr Richardson], to act in a manner which undermined [Mr Sims'] integral functions as International Business Director including:
…
D.Alleging that [Mr Sims] was responsible for a false announcement on the German stock exchange.
The appellant's case was that the allegation that the appellant was responsible for a false announcement on the German stock exchange had been made by Mr Stewart at a meeting at Mr Jooste's chambers. The primary judge concluded (at [184(7)]) that there was no basis for alleging that Mr Jooste had allowed the allegation to be made. His Honour disbelieved the appellant's evidence and accepted the evidence of Mr Jooste as to what had occurred. His Honour gave detailed reasons for preferring Mr Jooste's evidence.
The appellant's ground of appeal in relation to this finding is simply:
Failing to give any credulance [sic] to the Appellant's evidence and accepting Mr Jooste's evidence in preference to that of the Appellant.
No particulars are given as to why it is contended that his Honour erred in preferring the evidence of Mr Jooste. A bald assertion of this nature is entirely inadequate and is not a proper ground of appeal.
The appellant's fourth attack is on his Honour's findings in relation to particular [iii]E of par 14 of the statement of claim, which was as follows:
From October 2008 to June 2009 [Mr] Jooste allowed and enabled potential investors in [the respondent], [Mr Stewart] and [Mr Richardson], to act in a manner which undermined [Mr Sims'] integral functions as International Business Director including:
…
E. Demanding that [Mr Sims] resign in order that they invest in [the respondent].
The primary judge noted (at [184(8)]) that it was not in issue that Mr Stewart required the appellant's resignation as a condition of investing in the respondent. But his Honour accepted the evidence of the CEO of the respondent, Mr Patterson, and Mr Jooste that the decision to resign was left to the appellant, and concluded 'on the totality of the evidence that [the appellant] resigned voluntarily and was not forced to do so'. His Honour said he was confirmed in that view by the evidence of the appellant's 'strong character, business acumen and self‑interest'. He considered the appellant was unlikely to allow himself to be pushed out of a company in which he had a considerable interest. The primary judge went on to say that '[the appellant's] propensity was to engage in threats and intimidation if he perceived someone was in his way or had slighted him' [184(8)].
The appellant's ground of appeal in relation to this finding is as follows:
Failing to take into account the state of the Appellant's health and state of mind on 8th June 2009 as referred to in paragraphs 45, 50, 58, 62 and 141.
His assertion of the Appellant's propensity to engage in threats and intimidation is incorrect. The Appellant was performing his fiduciary duty.
Paragraphs 45, 50, 58 and 62 of his Honour's reasons refer to statements by the appellant in correspondence as to his health and state of mind, not to evidence or findings as to it. Paragraph 141 refers to a finding that, on 12 May 2009, upon receipt of an email from the appellant, Mr Jooste became very concerned about the appellant's mental health. We were informed by counsel for the respondent - and the appellant did not dispute - that no evidence was adduced at trial as to the appellant's health and no such evidence is referred to in the appellant's submissions in the appellant's case. In any event, it is not evident why it is contended that it was necessary for the primary judge to take into account the appellant's health and mental state, or how the appellant's health and mental state is said to be relevant to his Honour's finding that the appellant resigned voluntarily. The contention sought to be raised by the second part of the ground is irrelevant to the finding of the primary judge that the appellant resigned of his own volition. There is no substance in this ground.
The appellant's fifth attack is on his Honour's findings in relation to par 14[iv] of the statement of claim, which was as follows:
In June 2009 Jooste informed the [respondent] that Stewart and Richardson demanded the [appellant] out of the [respondent's] business. Jooste also directed the [appellant] to sign an undertaking not to do anything which would cause early redemption of shares in the company.
His Honour (at [184(9)]) did not accept that Messrs Stewart and Richardson had demanded the appellant 'out of [the respondent's] business' (the appellant was also a shareholder) and further found that the allegation the appellant had been informed in June 2009 of Mr Stewart's requirement that he resign as an officer of the respondent was factually incorrect as Mr Jooste had forwarded to the appellant an email dated 24 April 2009 from Mr Stewart to that effect.
The ground of appeal asserts that the primary judge erred in:
Not accepting that in June 2009 that the demands by Stewart and Richardson that the Appellant resign as set out in the Email of 23‑24th April 2009 were not further raised.
The relevance of this ground is not evident. The appellant does not challenge the primary judge's finding to the effect that notwithstanding Mr Stewart's requirement that the appellant resign, the decision to resign was left to the appellant and that he resigned voluntarily. Whether or not Mr Stewart's requirement that the appellant resign was raised again in June 2009 is irrelevant to the disposition of the appeal.
Ground 2
Ground 2 is in the following terms:
[The primary judge] erred at law and fact when he failed to address the impact of the inter‑relationship between the Respondent and hcBerlin Pharma AG (HCBPAG) as regards ownership of the ArTiMist Malaria Project and its effect on the Appellant's employment with the Respondent.
It is impossible to understand what is intended by this ground or how the alleged 'impact of the inter‑relationship' (whatever that might mean) might bear upon the decision of the primary judge that the appellant resigned voluntarily. The appellant's submissions cast no useful light on it.
Ground 3
Ground 3 is as follows:
[The primary judge] erred at law and fact in failing to take into consideration the impact on the Appellant's employment with the Respondent following the demands by Stewart (Officer) outlined in the email of 23rd April 2009 that Appellant's position be terminated or the withdrawal of his and his associates investment, followed by the failure of Jooste and Patterson to support him resulting in the Appellant's belief that he had no future with the Appellant [sic, Respondent]'.
Again, it is not at all clear what this ground is intended to mean. If it is intended to allege that the primary judge failed to have regard to the effect of Mr Stewart's requirement that the appellant resign as a condition of Messrs Stewart and Richardson investing in the respondent, this ground has no prospect of success. As mentioned above, the primary judge expressly concluded that Mr Stewart's stipulation that he would not invest in the respondent unless the appellant resigned was made as a potential investor in the respondent, not as an officer of the company, and that, notwithstanding that stipulation, the decision whether to resign was left to the appellant, who resigned voluntarily. If the ground is intended to mean something else, it is not evident what it is intended to mean.
We will come back to ground 4, which goes to a different issue.
Ground 5
Ground 5 is as follows:
[The primary judge] erred at law and fact in awarding costs against the Appellant notwithstanding his acceptance that the defence lodged by the Respondent breached the Settlement Deed as detailed in paragraphs 24 ‑ 31.
a)Furthermore at [par 184(7)] [the primary judge] confirmed his objection to Appellant wanted [sic] to address the Court and question witnesses about matter [sic] that were dealt with at mediation on a confidential and without prejudice basis because those mediation meetings led to the Deeds of settlement, and in particular CIV 3039 of 2009 in which the Twelfth Defendant was represented by Instructing Lawyer Nathan Ebbs and Counsel Martin Bennett who were a party to the indemnities and releases to any liability surrounding those allegations and here they were at trial breaching those Deeds and the indemnities and releases granted to the Appellant herein.
b)Their presence in representing the Respondent at trial breached their paramount duty to the Court and represented corrupting the administration of justice.
It is again impossible to know what is meant by this ground. Paragraphs 24 to 31 of the reasons of the primary judge concerned one of several preliminary issues which his Honour heard at the commencement of the trial. This particular issue was a contention by the appellant that the respondent was estopped by the terms of the Settlement Deed from pleading in its defence (in the alternative to its contention that the appellant had resigned voluntarily) an allegation that the respondent was entitled to terminate his employment by reason of certain alleged conduct of the appellant. His Honour found for the appellant on that point, concluding that the respondent was estopped.
Sub‑paragraphs (a) and (b) of this ground appear to have no connection to the prefatory part of the ground and their purpose and relevance are not evident.
The appellant's written submissions do not, so far as we can tell, deal with this ground, which is simply incoherent. If, however, the prefatory part of the ground is intended to contend that, having upheld the appellant on the estoppel point, the primary judge erred in the exercise of his discretion as to costs in making an order for costs against the appellant after trial, it has no prospect of succeeding.
Ground 6
Ground 6 appears to be directed to [127] of the primary judge's reasons and asserts that the primary judge erred in fact in accepting the evidence of Mr Jooste in preference to the appellant's evidence. However, [127] of his Honour's reasons contains no findings but simply a (quite lengthy) recitation of one part of Mr Jooste's evidence. In addition, the evidence that the appellant says should have been accepted is not identified and nor are the relevant findings of the primary judge. The particulars which the appellant sets out in support of this ground are incomprehensible as matters going to his Honour's credibility findings. The appellant's written submissions cast no light on this ground. It is again simply incoherent.
Ground 7
Ground 7 asserts that the primary judge:
erred at law and fact in placing credulance [sic] upon the contents of the emails from Stewart as evidence when the Respondent declined to call Stewart and Richardson and Stewart for cross‑examination.
The 'emails' are not identified in the grounds of appeal nor, so far as we can tell, in the written submissions in the appellant's case. However, the respondent says that the emails apparently referred to are emails that the appellant admitted having received and which were tendered, without objection, during the appellant's cross-examination at trial. That was not disputed by the appellant. In any event, why it is contended that no weight should have been given to emails to the appellant from Mr Stewart unless Mr Stewart and Mr Richardson were available for cross‑examination by the appellant, or how that might have affected the result at trial, is not apparent. This ground has no prospect of succeeding.
Ground 8
Ground 8 asserts first, that the primary judge erred in law in failing to 'allow the Appellant a passage to Justice as a self disadvantaged self represented litigant'. That ground is meaningless. Secondly, it is asserted that the primary judge failed to take into account Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 [64], and it is further asserted that the legal principles relied upon by the primary judge supported the appellant's claim for constructive dismissal. It is not apparent why the primary judge should have had regard to Mohazab, which turned on the proper construction of the expression 'termination at the initiative of the employer' in the Industrial Relations Act 1988 (Cth), or why consideration of that case might have led to a different result. The basis for the assertion that the legal principles relied upon by the primary judge supported the appellant's claim for constructive dismissal is not revealed by the ground of appeal (or the appellant's submissions) and is not apparent.
Ground 9
Ground 9 asserts, in effect, that there existed a reasonable apprehension of bias by the primary judge because he knew Mr Jooste 'on a first name basis', which 'would in all likely hood [sic] influence [the primary judge]'.
This is not a matter which was raised before the primary judge. It emerged for the first time on the appeal. Moreover, the basis upon which the appellant asserts that the primary judge knew Mr Jooste 'on a first name basis', or on any basis which might lead to a reasonable apprehension of bias, does not emerge from the ground of appeal or from the appellant's written submissions in the appellant's case. Nor did the appellant deal with it in his submissions on this application, notwithstanding that in its submissions the respondent had specifically drawn attention to the absence of any identified basis for it. The closest the appellant comes is an allegation in his written submissions on this application that, on 29 July 2013, Mr Jooste 'assured the Appellant that he knew all the District Court and Supreme Court Judges.'
Not only is that quite a different thing, but, if it occurred, it occurred before the trial. It is well‑established that if a party to civil proceedings, or the party's legal representative, knows the circumstances giving rise to the disqualification of the judge but acquiesces in the proceeding by not promptly taking objection, it will likely be held that the party has waived the objection: Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 [43], [61] and [125]; Vakauta v Kelly (1989) 167 CLR 568, 572, 577 ‑ 579, 587 ‑ 588. That will apply equally to an unrepresented litigant who has the requisite knowledge to found waiver: George v Fletcher (Trustee) [2012] FCAFC 148 [97]. In light of the appellant's background and extensive experience in litigation it is unlikely he would have lacked the requisite knowledge.
In any event, an allegation that a judge was acquainted with a critical witness to an extent that might give rise to a reasonable apprehension of bias and failed to disclose that fact, is not one to be made lightly. It is made in this case without any identified basis and without any proper particulars of the nature of the alleged relationship or when it is alleged to have first come to the attention of the appellant. It is not a proper ground of appeal.
Ground 10
Ground 10 is as follows:
[The primary judge] erred in failing to take into account the ongoing conflict between the Appellant and Jooste arising from the disclosure requirements under Australian Corporations Law resulting in ongoing fiduciary breaches by Jooste in his then capacity as the Respondent's paid Legal Adviser, its Chairman of its Board of Directors, and its Chairman of Compliance. The ongoing conflict between Jooste and the Appellant was fuelled by Jooste's continuous disclosure to Stewart giving Stewart an inside advantage over other investors, a fiduciary matter to which the Appellant objected.
The point of this ground is not clear. While it would appear to be intended to challenge his Honour's finding as to Mr Jooste's credibility, the appellant's written submissions on this application (par 30) would tend to suggest otherwise - although they do not clearly indicate its purpose. As a challenge to the findings on credibility, it is unacceptably vague. If it is intended to have some other purpose, its purpose is unclear. It is, however, difficult to avoid the conclusion that the allegations of breaches of fiduciary duty are concerned with a conflict beyond the bounds of this appeal.
Ground 11
Ground 11 is simply a bald assertion that the primary judge erred in law and fact in dismissing the appellant's claim for constructive dismissal. It is not a proper ground of appeal.
Ground 12
Ground 12 asserts, in effect, that the primary judge erred in his understanding of the circumstances in which Fair Work Australia (FWA) dismissed an application by the appellant for an extension of time within which to bring proceedings in FWA for relief for termination of his employment with the respondent. The appellant contends in the ground of appeal that the application to FWA was dismissed because a representative of the respondent misled FWA.
This ground is irrelevant to the outcome at trial. The application to FWA arose in the proceedings below only in connection with a contention by the respondent that the FWA application gave rise to an Anshun estoppel which precluded the appellant from bringing the proceedings against it in the District Court. The primary judge found against the respondent on that point. The FWA application otherwise played no part in his Honour's decision.
Ground 4
Finally, we turn to ground 4, which is not concerned with the termination of the appellant's employment, but with a claim to money that the appellant said he was entitled to under the contract of employment. In the statement of claim, the appellant alleged that it was a condition of the employment agreement that the respondent provide him with a motor vehicle of a value of up to $65,000 and transfer the motor vehicle to him upon the termination of his employment (par 6(e)). He pleaded that the respondent failed to provide a motor vehicle on termination (par 10(d)), and claimed as damages the sum of $65,000 and motor vehicle expenses of $13,694. The respondent admitted the term of the employment agreement (par 6.1), but pleaded that the appellant had elected to use his own motor vehicle during his employment and had thereby waived his entitlement to the provision of a motor vehicle by the respondent (par 10.4).
The primary judge considered that on the proper construction of the employment agreement, the obligation to transfer a motor vehicle to the appellant on termination of his employment related only to a motor vehicle that had been supplied by the respondent at the time of termination [160]. His Honour found that when the appellant entered into the employment agreement he had agreed with the respondent's CEO, Mr Patterson, that he would not receive a motor vehicle but would be paid motor vehicle expenses instead [159]. His Honour concluded that the appellant had waived his entitlement to a motor vehicle [160].
By ground 4 of the grounds of appeal the appellant contends that the primary judge erred in law in finding that the respondent was not liable to pay him either an amount in motor vehicle expenses similar to that paid to Mr Patterson or the value of a motor vehicle. The appellant says his Honour erred because the respondent had confirmed as late as 8 June 2009 that the terms of the appellant's employment agreement had not been altered.
The obvious difficulty with that contention is that the decision of the primary judge did not turn on the terms of the employment agreement, which were not in issue. His Honour's decision turned on a finding that the appellant had waived his entitlement to a motor vehicle under the employment agreement, a finding which the appellant does not challenge. This ground has no prospect of success.
The determination of the application
The only remaining question is whether the appellant should be given a further opportunity to file acceptable grounds of appeal. In our view, that time has passed. The appellant has been given adequate opportunity to produce acceptable grounds of appeal. Nothing the appellant has advanced so far goes close to meeting that threshold or indicates that reasonably arguable grounds of appeal exist. The appellant has been unable to articulate any relevant and identifiable alleged error of fact or law by the primary judge, apart from the challenges to his Honour's findings as to credibility, which are framed in such general terms that it is impossible to discern the basis on which they are made.
The written submissions which form part of the appellant's case provide no assistance at all in that (or indeed any other) respect. It appears that the requirements of r 32(5) of the Court of Appeal rules in relation to submissions have simply been ignored. The submissions are neither clear nor succinct, but convoluted and discursive. They are not linked to the individual grounds of appeal and they lack any logical structure that might enable that correlation to be made. There are also no references to the relevant page numbers of the transcript below and the relevant exhibits are not identified.
There is no reason to think that given another opportunity to produce fresh grounds of appeal, or particulars of any of the current grounds of appeal, the appellant will produce anything materially better than he has produced to date. He has demonstrated a complete inability or unwillingness to come to grips with the relevant issues in the case and with the requirements of proper grounds of appeal. That may be because the appeal would seem to have become submerged in a much wider conflict between the appellant and the respondent over the conduct of the respondent's affairs in the period leading up to his resignation, to the point where the appellant is unable or unwilling to distinguish between the issues relevant to the appeal and more general issues relating to the management and control of the respondent's affairs. Much contained in the appellant's written and oral submissions suggests a desire to use this appeal to fight battles quite separate to the issues which are relevant on the appeal. In the meantime, the appeal continues to hang over the respondent and it continues to incur costs.
In our view, fairness dictates that the appellant cannot simply keep trying in the hope that eventually he will get it right. He has had adequate opportunity to put forward his case and the point has now come where the interests of justice require that the appeal be dismissed. We would so order.
It follows that the appellant's application for the issue of subpoenas and his application of 9 April 2014 for leave to amend his submissions in the appellant's case fall away and should be dismissed. We would not, however, accede to the respondent's application for indemnity costs in relation to the subpoena application. Apart from any other consideration, on what is before the court we are not satisfied that the respondent would be unable to recover its actual legal costs of the application in full in the absence of such an order.
Conclusion
We would make the following orders:
1.The appeal is dismissed;
2.The appellant's application of 13 March 2014 for the issue of subpoenas is dismissed;
3.The appellant's application of 9 April 2014 for leave to amend his submissions in the appellant's case is dismissed; and
4.The respondent's application of 3 July 2014 for indemnity costs is dismissed.
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