Snook v Registrar of Fines Enforcement Registry - [2019] WASCA 204

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   SNOOK -v- REGISTRAR OF FINES ENFORCEMENT REGISTRY [2019] WASCA 204
CORAM:   BEECH JA
VAUGHAN JA

HEARD:   13 DECEMBER 2019
DELIVERED          :   13 DECEMBER 2019
PUBLISHED           :   16 DECEMBER 2019
FILE NO/S:   CACV 150 of 2019
BETWEEN:   PIPPA SNOOK
Appellant

AND

REGISTRAR OF FINES ENFORCEMENT REGISTRY
Respondent

Catchwords:

Practice and Procedure - Application for stay of on-going proceedings pending application for leave to appeal - Appeal against orders dismissing application for adjournment of substantive hearing - Application dismissed

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 44

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	L D O'Connor

Solicitors:

Appellant	:	In person
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

AON RiskManagement Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390
Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141
House v The King [1936] HCA 40; (1936) 55 CLR 499
Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66
MTI v SUL (No 3) [2012] WASCA 145
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Snook v Registrar of Fines Enforcement Registry [2018] WASC 402
Thomson v Young [2013] NSWCA 300

REASONS OF THE COURT:

Overview

The appellant, Pippa Snook, has sought leave to appeal against an order of the primary judge made 11 December 2019 dismissing an application for the adjournment of a substantive hearing listed for 18 December 2019. The consequence of that order was that the substantive hearing will proceed on 18 December 2019.
In an attempt to prevent that occurring Ms Snook sought an interim order staying the proceedings before the primary judge pending the determination of her application for leave to appeal. If the stay were granted it would - for practical purposes - have the effect of granting the adjournment that Ms Snook sought before the primary judge. It would defer the hearing of the substantive application before the primary judge until after the determination of the application for leave to appeal.
We heard the application for a stay on 13 December 2019. We dismissed the stay application for reasons to be provided at a later date. These are our reasons for dismissing the stay application.

Background facts and procedural history

The background facts to the litigation are set out in detail at [1] to [2] and [5] to [16] of written reasons of the primary judge published on 19 December 2018.[1] It is not necessary to repeat those matters. These reasons should be read together with the primary judge's recitation of the background facts.
[1] Snook v Registrar of Fines Enforcement Registry [2018] WASC 402.
The substantive proceedings concern an application by Ms Snook pursuant to s 36 of the Magistrates Court Act 2004 (WA) seeking review of a decision of the respondent to refuse an application for a time to pay order and cancellation of a licence suspension order under s 27A of the Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) (FPINE Act). The application was lodged on 5 October 2018. That day Ms Snook also sought an injunction to cancel a licence suspension order to enable her to renew a driver’s licence which was due to expire in the immediate future.
The matter came before the primary judge on 5 October 2018 (the day the application was lodged). His Honour expressed a preliminary view that the respondent had made a jurisdictional error by failing to have regard to a matter that the respondent was required to take into account under the FPINE Act, namely, the question of whether the licence suspension order would deprive Ms Snook of the means of obtaining urgent medical treatment.[2] The primary judge then considered whether the court should grant an injunction to compel the respondent to cancel the licence suspension order. Ultimately, however, the respondent agreed to cancel the license suspension order immediately so that Ms Snook might renew her driving licence. The respondent did so making no concession as to the substantive merits of Ms Snook’s application.[3]
[2] Snook v Registrar of Fines Enforcement Registry [26] - [27].
[3] Snook v Registrar of Fines Enforcement Registry [31].
The primary judge required the parties to go to mediation.
The mediation was listed but adjourned. In any case the parties have not resolved matters. On 3 May 2019 Ms Snook issued a summons seeking an order that her licence not be suspended while the action remained before the court. On 23 July 2019 the primary judge made an order that:
Pursuant to s 36(1)(c) of the Magistrates Court Act 2004 (WA) the following person, being the Registrar of the Fines Enforcement Registry, satisfy a judge of the Supreme Court at hearing that the following act should not be set aside, namely the act of the Registrar on 3 October 2018 to refuse the applicant's application for a time to pay order pursuant to section 27A of the Fines, Penalties and Infringement Notices Enforcement Act 1984 (WA) [sic].
His Honour listed the hearing as contemplated by that order for a special appointment on 13 November 2019 at 10.00 am and made programming orders as to affidavit evidence and submissions. In compliance with those orders the respondent filed affidavit material on 13 September 2019.
On 2 October 2019 the primary judge adjourned the hearing date from 13 November 2019 to 18 December 2019. The adjournment came about in circumstances where, Ms Snook having terminated the retainer of pro bono counsel who had appeared for Ms Snook on 23 July 2019, Ms Snook had been unable to comply with the primary judge's orders of 23 July 2019. Since that time, in compliance with the programming orders as amended, the respondent has filed an outline of submissions (on 4 December 2019). In anticipation of the 18 December 2019 hearing date the primary judge had listed a directions hearing for 11 December 2019. Before the directions hearing Ms Snook emailed to the primary judge’s chambers a 'statement' in support of proposed orders that the trial be postponed for four to six months.
The statement - which was unsworn - gave the following reasons as to why Ms Snook sought the adjournment:
1.For the last three months Ms Snook's 10‑year‑old golden retriever trauma dog has had medical issues which has precluded nearly all activity by Ms Snook unless she can afford a dog sitter. Ms Snook said that during the three months she had been unable to achieve almost anything including this and other court matters.
2.The golden retriever had cancer, has been operated on, and cannot be left alone. Ms Snook is required to lie beside the dog. The dog becomes 'super anxious' if Ms Snook stands or sits up.
3.The golden retriever lies beside Ms Snook's bed, awake, most of the night making noise and is restless. This has resulted, on average, in two to three hours of broken sleep for Ms Snook over eight weeks. Ms Snook characterised herself as a 'walking zombie' who has complex PTSD and was at times not coping well. Ms Snook said that she is in 'survival mode' and 'very, very run down'.
4.Ms Snook was out of money to pay dog sitters.
The reasons so advanced echoed what had been said by Ms Snook orally at an earlier 20 November 2019 directions hearing before the primary judge. At that time Ms Snook explained that these things had prevented her attending to the application and the various programming directions.
The primary judge gave considered oral reasons for refusing the adjournment application. In substance, having recounted the procedural history, the primary judge then referred to what had been said by Ms Snook in her statement. His Honour then took the following into account:
1.The explanations provided by Ms Snook for her failure to comply with the orders of the court. In this respect the primary judge expressly took account of what was in Ms Snook's statement notwithstanding that it was not supported by a sworn affidavit.
2.The importance of the matter from Ms Snook's perspective.
3.The extent to which the difficulties described by Ms Snook affected her ability to present a case to the court. In that respect, as well as taking into account what was contained in Ms Snook's statement, the primary judge later expressly referred to Ms Snook's status as a self-represented litigant and the difficulties faced by persons dealing with mental health issues (Ms Snook having referred to herself as suffering from PTSD).
4.The public interest in the respondent being able to perform the functions entrusted to her by the FPINE Act unhindered by the orders of the court.
5.The public interest in litigation before the court being conducted efficiently and effectively - which required his Honour to take into account the effect of last minute adjournments on other litigants.
6.The possibility that, if the adjournment was granted, the court might be faced with another application for adjournment as the adjourned hearing date approached.
7.The circumstance that the respondent's submissions identified, quite fairly, the issues that arose on the application.
8.The conclusion, as reached by the primary judge based on having observed Ms Snook's conduct of the matter before him since 5 October 2018, that without legal representation he was not confident that Ms Snook would be able to articulate a case with greater clarity and coherence than she did on 5 October 2018. In that regard his Honour discounted the possibility of Ms Snook obtaining alternate legal representation before the hearing.
The primary judge concluded that there comes a point at which matters of public interest weigh more heavily in the balance than the personal interests of the litigant. The primary judge found that this point had been reached. Accordingly, the application to adjourn the hearing of the substantive application was refused.

The application before this court

On 11 December 2019 Ms Snook filed an application for leave to appeal from the order refusing the adjournment. At the same time she sought a stay of the proceedings before the primary judge.
The stay application was accompanied by an affidavit sworn 11 December 2019 which, among other things, repeated what was contained in the statement before the primary judge. The affidavit went on to support the matters raised by way of the grounds asserted in the stay application. Ms Snook also deposed that in the time frame to 18 December 2019 she, as a person with severe complex PTSD with two to three hours sleep per night for the last eight weeks, could not possibly prepare for the hearing.
Pre-hearing orders were made requiring Ms Snook to file draft grounds of appeal. Ms Snook has provided the court with a detailed outline of written submissions (which is partly repetitive of the points made in the other materials as filed) but not her draft grounds in support of the application for leave to appeal. However, Ms Snook's stay application asserted that there had been a miscarriage of justice and alleged error in numerous respects that seemingly equate to the grounds relied upon.
Based on the materials filed, Ms Snook's application for leave to appeal raises whether the primary judge erred in that:
1.The primary judge did not consider whether the matter is ready for trial.
2.The primary judge did not take into account, or gave insufficient weight to the fact, that Ms Snook was unfit to prepare for and proceed to a hearing on 18 December 2019, and the reasons why that was the case.
3.The primary judge wrongly decided that the public interest overcame 'natural justice' (understood as meaning Ms Snook's interest in proceeding to a final hearing at a time when she was fully prepared to her own satisfaction or had the benefit of legal representation and when in any case (a) she was not affected by having to care for her dog and (b) might by having to prepare for the case adversely affect the recovery of her dog).
4.The primary judge erred in not being satisfied that Ms Snook would be ready to proceed with her case in 2 to 3 months (including by proceeding to mediation assisted by a mental health advocate).
5.The primary judge did not take into account a failure by the respondent to comply with undertakings given to the court.
6.The primary judge did not take into account the respondent's failure to provide Ms Snook with documentation as requested in her email of 6 February 2019.
In broad summary, Ms Snook contended that in refusing the adjournment - thereby requiring Ms Snook to proceed with her case 'completely unprepared' - there had been a denial of natural justice and fair procedure.
In oral submissions Ms Snook raised the matters previously referred to and also developed a proposition that the decision of the primary judge to refuse the adjournment was unreasonable. Ms Snook contended that there would be manifest injustice if she was required to proceed with the hearing on 18 December 2019 when she was not ready and unable through no fault of her own to be ready to present her case. Ms Snook contended that she could not have a fair hearing. While put in terms of unreasonableness and manifest injustice (or, on occasions, a miscarriage of justice), translated into the applicable legal framework, we understood Ms Snook to be contending, in substance, that the decision to refuse the adjournment was so unreasonable that no reasonable judicial officer could have made it, or alternatively, that on the facts the decision was unreasonable or plainly unjust so as to bespeak implied error.
In the stay application, the supporting affidavit and her submissions Ms Snook asserted that her case was one of significant public interest. In her submissions Ms Snook also referred to computer issues, difficulties that she had encountered in dealing with pro bono counsel and other accommodation and health issues that impacted on her ability to prepare for the hearing. It was also asserted that the primary judge erred in not considering future mediation. Ms Snook highlighted that she might never be able to drive again if the hearing proceeded and she lost the case. Ms Snook said that she had everything to lose.
The matters raised by Ms Snook in support of a stay of the proceedings below go well beyond those which were raised by Ms Snook in support of her application for an adjournment before the primary judge. The same is true of the evidence on which Ms Snook now seeks to rely. For example, she has now provided medical and veterinary certificates which were not before the primary judge. So too a letter from a person who describes himself as an 'informal and unpaid social policy advocate'.
It is not for this court, in an interlocutory appeal on a matter of practice and procedure, to interfere with the exercise of the primary judge's discretion based on a fact, matter or argument that was not raised before the primary judge. The stay application must be considered by reference to the factual material which was before, and those matters which were agitated before, the primary judge. In substance this was Ms Snook's unsworn statement which catalogued for his Honour the reasons why Ms Snook sought an adjournment.

Legal principles

The usual principles that apply on an application for an interim order for a stay under r 44 of the Supreme Court (Court of Appeal) Rules 2005 (WA) are well-established. Ordinarily consideration of whether there are 'special circumstances' justifying an interim stay involves assessment of three things:
1.Is the stay necessary to preserve the subject matter or the integrity of the litigation?
2.Does the appeal have reasonable prospects of success?
3.Does the balance of convenience, in other words, the balance of the risk of injustice, favour the grant of the stay?
However, as this court has recently observed, decisions relating to the stay of enforcement of final monetary judgments under appeal cannot readily be applied to an application to stay ongoing substantive proceedings pending an interlocutory appeal.[4] At least two different features intrude. First, any such interlocutory appeal requires leave. Second, such interlocutory appeals are commonly concerned with matters of practice and procedure. With interlocutory appeals of that type an appellate court customarily exercises special restraint.[5]
[4] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [2019] WASCA 141 [51].
[5] Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [49].
In Thomson v Young[6] Leeming JA considered the difficulties faced by an applicant seeking to challenge an interlocutory decision of practice and procedure who wished to obtain a stay in support of that challenge. In that case application was made to stay proceedings in the District Court of New South Wales pending an interlocutory appeal against the trial judge's refusal of an application to amend the defence. Although that was the form of the application in substance the decision involved rejection of an application to vacate a hearing. Leeming JA observed that such an order involved the exercise of an 'exceptional jurisdiction'. His Honour found that the applicant had to demonstrate a 'high threshold' in making out a special case to warrant appellant interference.[7]
[6] Thomson v Young [2013] NSWCA 300.
[7] Thomson v Young [13].
In Nikolaidis v Legal Services Commissioner Bryson JA stated:
[T]he inherent power of the court extends to appeals in interlocutory proceedings. The power exists because it is necessary for the administration of justice, and it is to be exercised where it is necessary to exercise it. The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy, or otherwise so adversely severe in its impact, that intervention by the Court of Appeal should take place notwithstanding that there has not been an opportunity for full consideration.[8] (emphasis added)
[8] Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 [18].
On the issue of such appellate intervention Bryson JA stated that the question for consideration was a 'test of necessity' not simply a balance of convenience.[9]
[9] Nikolaidis v Legal Services Commissioner [20].
The court has an inherent power to grant or refuse an adjournment of proceedings. The power involves the exercise of a judicial discretion. The exercise of the discretion will be informed by the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) and proper principles of case management as enunciated in AON Risk Services Australia Ltd v Australian National University.[10] Insofar as the time of the court is a publicly funded resource, inefficiencies in the use of that resource arising from the vacation or adjournment of hearings is properly taken into account in the exercise of the discretion. The public interest in the efficient use of court resources is a relevant consideration in the exercise of the discretion to adjourn.[11]
[10] AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
[11] AON Risk Services Australia Ltd v Australian National University [5], [23] - [27], [30].

As the decision whether to grant or refuse an adjournment lies in the discretion of the trial judge, it is seldom that an appellate court will review such a decision. Usually it is necessary to show that the refusal of an adjournment defeats the rights of a party.[12] Insofar as the unsuccessful applicant for an adjournment is challenging the exercise of a discretion any such appeal will invoke the principles in House v The King.[13]
[12] Bloch v Bloch [1981] HCA 56; (1981) 180 CLR 390, 395 - 396; MTI v SUL (No 3) [2012] WASCA 145 [38].
[13] House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505.

Disposition

There were two independent reasons for dismissing Ms Snook's stay application.
First, in our view, Ms Snook's application for leave to appeal does not enjoy reasonable prospects of success.
In terms of the putative errors as alleged by Ms Snook, it is plain that the primary judge considered whether the matter was ready for hearing. The primary judge was satisfied that the respondent's submissions identified the issues that arose. In any case there was no suggestion before the primary judge that, with the exception of Ms Snook's preparation and ability to participate in a hearing, the proceedings were not ready for hearing. His Honour also recited and took into account Ms Snook's predicament and professed inability to properly prepare for and proceed to a hearing on 18 December 2019. The primary judge was simply persuaded that the difficulties which confronted Ms Snook were outweighed by the public interest considerations to which he referred.
Based on the principles we have referred to at [29], it was open to the primary judge to conclude, as his Honour did, that - weighed in the balance - the public interest factors referred to militated against the grant of the adjournment. That was all the more so given that the review proceedings were commenced in October 2018 and the final hearing had already been adjourned once. The primary judge properly considered the relevant countervailing considerations relied on by Ms Snook and arrived at a conclusion which ought not to be interfered with even if, had we been in the position of the primary judge, we would have taken a different course. As to the assertion that the primary judge gave insufficient weight to Ms Snook's position, an allegation of a failure to give sufficient weight to a factor does not disclose appellable error against an exercise of discretion unless it can be shown that the failure really amounts to a failure to exercise the discretion entrusted to the court.[14] Subject to that, and subject to demonstration of implied error, the weight to be given to the various considerations is a matter for the discretion of the primary judge.
[14] Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513, 534 - 535; Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; P v J [2014] WASCA 95 [67].
Nor, for essentially the same reasons, are there reasonable prospects of establishing that the primary judge's decision was unreasonable or plainly unjust such that an appellate court might infer error. All the more so there are no reasonable prospects of establishing that the primary judge's decision was so unreasonable that no reasonable judicial officer could have made it. We are comfortably satisfied that the decision to refuse the adjournment application was reasonably open to the primary judge for the reasons that his Honour gave.
Ms Snook's contention that the primary judge erred in finding that, given time, Ms Snook could not properly and fully prepare the case for hearing appears to relate to his Honour's finding that without legal representation he was not confident that Ms Snook would be able to articulate a case with greater clarity and coherence than she did on 5 October 2018. We are not satisfied that there is any arguable basis for finding that there was a factual error in this regard. On the material before the primary judge the finding was well open, the primary judge having been the case manager of the proceedings below since their inception and given his Honour's experience in having had Ms Snook appear before him on multiple occasions since 5 October 2018. Insofar as, before this court, Ms Snook sought to make something of the circumstance that - were there an adjournment - the social policy advocate had said he would be available to assist her with further mediation, this was not raised in Ms Snook's statement before the primary judge. The primary judge did not make any factual error in this respect.
Generally speaking, it is incumbent on parties who contend, on an appeal against a discretionary decision, that attention was not given to particular matters, to demonstrate that the primary judge's attention was drawn to those matters.[15]
[15] Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar The Diocesan Bishop of
Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; (2008) 237 CLR 66 [120].
The alleged failure by the respondent to comply with undertakings given to the court was not raised before the primary judge by Ms Snook's statement. That being so, it cannot be said that his Honour erred in failing to consider it. In any case it was not explained how this would prevent Ms Snook in preparing for and participating in a hearing on 18 December 2019. So too, while it was at the vanguard of Ms Snook's oral submissions before this court, the alleged failure of the respondent to provide the documents sought in Ms Snook's email of 6 February 2019 was not a matter raised before the primary judge in Ms Snook's statement. In any case, in oral submissions to this court Ms Snook went on to state that her request was answered with a response to the effect that the requested documents did not exist. Moreover, insofar as the request for the documents was raised in February 2019, there has been more than ample time to have made an application for the documents to be produced well before now if she wished to establish that in fact there are such documents.
Further, this is not a case where the refusal of the adjournment defeats Ms Snook's rights. Ms Snook has a right to bring the proceedings. Thereafter the process for determination of the proceedings is governed by the court's practices and procedures including the rules of the court and the principles enshrined in O 1 r 4A and r 4B. It is necessary, in the interests of justice, that Ms Snook have sufficient opportunity to prepare and present her case for hearing. It cannot be said that such an opportunity has not been accorded to Ms Snook. The proceedings have been on-foot since October 2018 and, on 23 July 2019, were initially listed for a final hearing in November 2019. Ms Snook has known since 2 October 2019 that the final hearing had been re-scheduled for 18 December 2019. There has been more than an adequate opportunity for Ms Snook to prepare her case for presentation at the hearing.
Second, we do not accept that this is one of those exceptional cases where the likely outcome in proceeding with the hearing on 18 December 2019 is so adverse and severe that the attainment of justice requires interlocutory appellate intervention. The materials before us do not suggest that the conduct of the hearing as scheduled for 18 December 2019 will be procedurally unfair to Ms Snook or will result in any injustice to her. To the contrary, for the reasons we have given, Ms Snook has been accorded with sufficient opportunity to prepare and present her case for hearing.
If, however, there is in fact some adverse consequence which infects the hearing by virtue of it proceeding on 18 December 2019, it has not been shown that the outcome will be difficult to remedy on appeal. Any injustice could, in our view, be dealt with on an appeal as of right from any adverse final decision that follows the substantive hearing scheduled for 18 December 2019. The primary judge's refusal to adjourn the hearing is neither determinative of substantive rights nor one that will irreparably destroy or substantially impair a putative substantive right.[16] The consequences, for Ms Snook's claimed right, of the primary judge's determination to proceed with the hearing as scheduled are not so adverse and severe as to meet the high threshold that an interim stay of proceedings is necessary so as not to thwart the attainment of justice.
[16] cf Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd [57].
Thus, Ms Snook's right of appeal against an unfavourable final decision means that she will not suffer injustice in the absence of the grant of a stay. By contrast, the effect of granting a stay would be to grant the adjournment she sought from the primary judge. In other words, granting a stay is tantamount to upholding Ms Snook's appeal. Even if Ms Snook had established reasonable prospects on the appeal, these two considerations in combination would militate decisively against the grant of a stay; the balance of the risk of injustice would require refusal of the stay. In circumstances where reasonable prospects have not been shown, to grant the stay would be plainly unjust, as it would have the effect of upholding an appeal while concluding that the appeal does not have reasonable prospects.
The absence of substantial injustice arising from the primary judge's decision is also something that tells against a grant of leave to appeal.[17] Insofar as Ms Snook has not shown that allowing any error on the part of the primary judge to go uncorrected will cause substantial injustice there is a further reason for not being satisfied that Ms Snook's application for leave to appeal has reasonable prospects of success.
[17] Wilson v Metaxas [1989] WAR 285, 294.

Conclusion

For these reasons we made orders dismissing Ms Snook's interim application for a stay of the proceedings before the primary judge.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EP
Research Associate to Justice Vaughan
16 DECEMBER 2019