Soulis v R & a Henry Auto Repairs Pty Ltd

[2023] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Soulis v R & A Henry Auto Repairs Pty Ltd [2023] NSWCA 50

Hearing dates:

14 March 2023

Decision date:

24 March 2023

Before:

White JA at [1];
Simpson AJA at [32]

Decision:

Applicant’s Summons seeking leave to appeal is dismissed with costs

Catchwords:

APPEALS - Leave to appeal - Leave to appeal against summary dismissal of applicant's appeal from decision of Appeal Panel of New South Wales Civil and Administrative Tribunal - Where amount in dispute between parties negligible - Where summary dismissal followed applicant's non-appearance at two hearings set for respondents' motion to summarily dismiss proceedings - Where applicant's non-appearance explained on basis of serious medical condition requiring hospitalisation and later surgical intervention - Where applicant claims primary judge was biased in summarily dismissing his proceedings - Where applicant's claims before Tribunal and primary judge not shown to be reasonably arguable - Leave to appeal refused - No issue of principle

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 83(1)

Motor Dealers and Repairers Act 2013 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 7.1, 13.6, 18.3, 36.16

Cases Cited:

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164

Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48

Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116

Soulis v R & A Henry Auto Repairs & Ors (No 1) [2022] NSWSC 966

Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338

Category:

Principal judgment

Parties:

Andrew Soulis (Applicant)
R & A Henry Auto Repairs Pty Ltd (First Respondent)
Mark Gary Henry (Second Respondent)
Brett Alan Henry (Third Respondent)

Representation:

Counsel:
Applicant self-represented
J A Burke (Solicitor) (Respondents)

Solicitors:
Applicant self-represented
J. Burke Law (Respondents)

File Number(s):

2022/358269

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

Soulis v R & A Henry Auto Repairs & Ors (No 3) [2022] NSWSC 1109

Date of Decision:

16 September 2021

Before:

Bellew J

File Number(s):

2021/365912

JUDGMENT

1. WHITE JA: On 24 November 2021, the applicant, Mr Soulis, filed a summons in the Common Law Division seeking leave to appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (“NCAT”) (viz, Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338).

2. The appeal to the Supreme Court from the Appeal Panel’s decision lay only with leave and only on a question of law (Civil and Administrative Tribunal Act 2013 (NSW), s 83(1)).

3. On 16 September 2022, Bellew J summarily dismissed the proceedings (Soulis v R & A Henry Auto Repairs Pty Ltd & Ors (No 3) [2022] NSWSC 1109).

4. Bellew J refused an application that he should recuse himself from hearing the application for summary dismissal. His Honour refused Mr Soulis’s application for an adjournment of the hearing. His Honour held that the grounds of appeal for which leave was sought did not identify any questions of law and the contentions advanced by the applicant were without substance (at [56], [60], [65]-[66], [69]-[71]). His Honour correctly directed himself in accordance with Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720; [1935] HCA 48; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1; and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; [1964] HCA 69.

5. The applicant seeks leave to appeal from the decision of Bellew J. The grounds of appeal that would be advanced if leave were given are as follows:

Ground 1. Was His Honour correct and justified and in compliance with UCPR Rule 7.1 by proceeding with the scheduled hearings on 17^th August 2022 and 2^nd September 2022 whilst having prior knowledge that the Appellant would be absent from the scheduled hearings due to an urgent hospital admission and subsequent severe medical condition thus denying the Appellant with the opportunity of a fair hearing?

Ground 2. Was his Honour’s decision not to invoke or apply Rule 13.6 of the Uniform Civil Procedure Rules correct upon his Honour discovering that the Appellant suffered from a severe medical condition that rendered the Appellant incapable from attending Court or participating in the scheduled hearings in question?

Ground 3.   Was His Honour correct in accepting and acting upon a Notice of Motion that was purportedly filed by the Respondents on the 31^st May 2022 seeking the Summary Dismissal of the Appellants Summons and whether the said Motion was valid and compliant with UCPR Rule 18.3?

Ground 4.   Whether His Honour adequately and appropriately addressed the Appellants 16^th August 2022 Application seeking His Honour’s recusal from the proceedings?

Ground 5. Whether His Honour denied, obstructed and or hindered the Appellant from being able to properly and fairly prosecute his Summons Seeking Leave to Appeal thus breaching UCPR Rule 7.1?

6. The proposed grounds of appeal appear to have been formulated on the misconception that a summons seeking leave to appeal should identify as questions, questions of law arising from the decision of the primary judge. That was a requirement of the summons seeking leave to appeal filed in the Common Law Division from the decision of the Appeal Panel, because an appeal only lay on questions of law, and it was those questions of law that formed the subject matter of the appeal. An appeal from the decision of Bellew J summarily dismissing the proceedings, if leave were given, is not limited in the same way; it could go beyond questions of law.

7. To obtain leave to appeal, Mr Soulis needs to demonstrate that the proposed appeal raises issues of principle, questions of general public importance, or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [6], [32]-[39]).

8. As Basten JA emphasised in Be Financial Pty Ltd, where the claim is a monetary claim and the amount in dispute is small and out of proportion to the costs that would be incurred if leave were granted, the quantum of the claim is highly relevant to a decision whether or not to grant leave to appeal, lest the costs involved swamp the money sum in dispute (at [37]-[39]). The primary judge found that the amount in issue in the Tribunal was $9,017 (primary judgment [17]).

9. The proceedings related to repairs carried out by the first respondent to the applicant’s motor vehicle. The Tribunal Member at first instance found that the respondent carried out the required repairs with due care and skill and in a proper manner, and dismissed the applicant’s claim for a refund. The Tribunal Member found that the applicant had not established that the respondent had caused damage to the applicant’s vehicle and dismissed the claim that the respondent was liable for the cost of carrying out additional repairs (Tribunal’s reasons quoted at [10] of the Appeal Panel’s reasons).

10. It was common ground in the Tribunal that, at the time the repairs on his motor vehicle were carried out by the respondent, the respondent’s licence under the Motor Dealers and Repairers Act 2013 (NSW) had lapsed. The Tribunal found that this was as a result of inadvertence on the part of the respondent and that the licence had been restored with retrospective effect. The Tribunal and the Appeal Panel rejected the applicant’s claim that the respondent had engaged in misleading or deceptive conduct by trading when its licence had lapsed (Appeal Panel decision at [10]). The Appeal Panel found that there was no evidence before it to demonstrate that the respondents held themselves out as being licensed.

11. I understand the proposed grounds of appeal to contend that:

1. the primary judge’s decision to refuse to adjourn the hearing on 17 August 2022 and 2 September 2022 denied the applicant procedural fairness;

2. his Honour erred in not applying r 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), that is, by not adjourning the hearing to another date and giving the applicant notice that the proceedings may be dismissed if there were no attendance by the applicant at the adjourned hearing;

3. the primary judge should not have acted on the respondents’ notice of motion seeking summary dismissal, which did not comply with UCPR r 18.3;

4. the primary judge erred in not recusing himself from the proceedings;

5. the applicant was denied procedural fairness by unparticularised obstruction in his being able properly and fairly to prosecute his summons.

Proposed Grounds 1 and 2

12. The primary judge gave reasons as to why he should not adjourn the hearing on 17 August 2022. The applicant sent an email at 8.04am on that day to the judge’s associate stating he had been admitted to the Emergency Department of Canterbury Hospital, that he was not feeling well and did not think he would be able to make the hearing that morning. The applicant was advised at 8.32am that the judge would require a medical certificate confirming the applicant’s inability to attend if the proceedings were to be adjourned. No such certificate was provided. There was good reason for this. Unbeknownst to the judge, the applicant had been transferred from the Emergency Department to the Intensive Cardiac Care Unit and placed under observation. He was admitted for cardiac catheterisation and an angiogram on 5 September 2022, and later underwent coronary artery bypass surgery.

13. The judge did not give judgment immediately after the hearing on 17 August, but reserved his decision. His Honour summarised the events following the hearing as follows:

“Events following the hearing

[24] On 25 August 2022, my Associate received further email correspondence from the plaintiff which annexed various documents addressing the issue of his health. Those documents included a further certificate dated 23 August 2022 under the hand of Dr Koutsoullis, as well as a discharge summary from the Canterbury Hospital indicating that the plaintiff was discharged from hospital on 18 August 2022, i.e. the day following the hearing. Without going into detail, documents attached to that discharge summary indicated that at least one diagnostic investigation did not detect any abnormality.

[25] I do not propose to set out the entirety of the contents of the plaintiff’s email of 25 August, nor the contents of the numerous other emails which followed it. It is sufficient for present purposes to note that I interpreted such correspondence as incorporating:

(i)   a further application that I recuse myself, essentially on the same bases as those previously advanced; and

(ii)   an application for the hearing to be re-opened, but then further adjourned to allow the plaintiff to make submissions.

[26] The first of those applications should be dismissed for the same reasons which led me to dismiss the two previous applications for my recusal. The basis of the second application was that the plaintiff’s current state of health prevented him from being in a position to deal with the notices of motion. It was explained to the plaintiff that as a matter of procedural fairness, it would be necessary to give the solicitor for the defendants the opportunity to be heard in respect of any application for an adjournment. It was also explained to the plaintiff that in that regard, it would be necessary, as a matter of procedural fairness, to provide the defendant’s solicitor with the medical documentation which had been forwarded to me, given that such documentation was the evidentiary basis for the application. When informed of these matters, the plaintiff made it clear that he objected to any of the medical documentation being provided to the defendants' solicitor. In those circumstances, I re-listed the matter before me on 2 September 2022. The plaintiff was advised accordingly.

[27] When the matter came before me on that date, the plaintiff did not appear, be it in person or virtually. The defendants' solicitor appeared, at which time I appraised her of the general tenor of the plaintiff's most recent correspondence, and explained to her that in view of the objections which had been raised by the plaintiff, such correspondence had not been forwarded to her. The defendants’ solicitor submitted that I should proceed to determine the notices of motion without any further delay.

[28] In all of the circumstances, that is the course that I propose to take. The defendant has been provided with ample opportunity to be heard.”

14. The applicant submitted that he had received strict medical advice from his doctors to avoid any stressful or challenging situation, and was admitted to Concord Hospital on 5 September 2022 for investigative procedures. He submitted that the primary judge did not consider his serious medical condition in any meaningful way but required him to attend the scheduled hearing on 2 September 2022. He did not address the primary judge’s reasons for taking that course.

15. The primary judge was correct to say that procedural fairness required him to disclose to the respondents the medical evidence on which the applicant relied for his application to adjourn the hearing listed for 2 September 2022. When consent to that disclosure was refused, the judge did not err in proceeding with the applications.

16. The judge’s decision on the adjournment applications was discretionary. No error in the exercise of the discretion was identified or is apparent. Nor does the applicant identify any plausible argument that he might have advanced had the adjournment sought been granted.

17. It would have been open to the applicant to have applied to the primary judge under UCPR r 36.16(2)(b) to set aside the order summarily dismissing his proceeding, as the order was made in his absence. As he represents himself, I do not regard his not availing himself of that avenue of redress as militating against the grant of leave. Had he taken that course, he would need to have established that his non-attendance on 17 August and 2 September 2022 was not due to fault on his part, and that his summons seeking leave to appeal from the orders of the Appeal Panel was reasonably arguable (Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116). The material provided to the primary judge and advanced on the application for leave would satisfy the first requirement, but not the second. That is relevant to whether leave should be given for this admittedly small claim.

Proposed Ground 3

18. At a directions hearing on 16 May 2022, the solicitor for the respondent advised the primary judge that an oral application for dismissal of the proceedings was made on the first return of the matter, an affidavit in support of that claim had been filed on 9 March, but no notice of motion had been filed. His Honour said that he was minded to order that the respondents file any motion for summary dismissal, or whatever order they wanted, and the matter would be brought back for directions on 31 May. His Honour ordered that any notice of motion of the respondents could be filed by forwarding it to his associate by email.

19. On 26 May 2022, the respondents’ solicitor copied the applicant into an email to the judge’s associate attaching a notice of motion for filing. The attached notice of motion contained the relief sought as set out in the primary judge’s reasons at [31].

20. On 31 May 2022, the primary judge listed the respondents’ notice of motion of 26 May 2022 for hearing on 30 June 2022. That notice of motion was complete. The applicant submitted that it was incomplete. Amongst other things, it did not specify the orders sought. He submitted that the notice of motion dated 26 May 2022 was abandoned and never acted on by the primary judge.

21. This submission has no merit. The relief sought in the notice of motion dated 26 May 2022 was the same relief as sought in the notice of motion described by the judge as having been filed on 31 May 2022 (at [31]). Part of the applicant’s complaint was that the notice of motion was not accompanied by an affidavit, and the judge permitted that to occur. That was appropriate. The grounds for summary dismissal were apparent on the face of the summons and the reasons of the Appeal Panel.

22. The applicant had made an application to Bellew J on 30 May 2022 that his Honour disqualify himself. That application was dismissed on 31 May 2022 (Soulis v R & A Henry Auto Repairs & Ors (No 1) [2022] NSWSC 966). Part of the applicant’s submission was that the effect of the judge’s order that the notice of motion could be filed by sending it by email to his Honour’s associate was that no filing fee would be payable. That was not so. On 31 May, a document was filed on Justicelink styled “notice of motion” naming the parties and specifying the applicant as a person affected by the orders sought, though not specifying any orders sought. On the same day an invoice was sent to the respondents for the filing fee.

23. The relief sought by the respondents was never abandoned and at no point did the applicant submit to the primary judge that it had been.

Proposed Ground 4

24. The primary judge dealt with the applicant’s application that he recuse himself as follows:

“The plaintiff’s application for my recusal

[9] On 16 August 2022, the day prior to the hearing, my Associate received an email from the plaintiff which included the following:

This is an application seeking the recusal of Justice Bellew from the abovementioned proceedings on the grounds of serious actual and apprehended bias.

[10] The application, which extended to some 23 pages, asserted that I had (inter alia):

(i)   engaged in corrupt conduct;

(ii)   ordered staff of the Court Registry to “create a fictitious notice of motion”;

(iii)   ignored breaches, by the defendants, of previous orders that I had made;

(iv) circumvented provisions of the Uniform Civil Procedure Rules 2005 (NSW) (the rules) in a way which was beneficial to the defendants;

(v)   unlawfully come into possession of confidential and privileged information;

(vi)   belittled and ridiculed the plaintiff regarding Court procedures;

(vii)   persistently obstructed the plaintiff from being able to properly prosecute his proceedings; and

(viii)   provided legal advice to the defendants to facilitate the dismissal of the plaintiff’s summons.

[11] In addressing this application, I commence by noting that these proceedings have been [before] me on numerous occasions for directions. The transcripts of those directions hearings tend overwhelmingly against the proposition that I have conducted the proceedings in a way which was unfair to the plaintiff. The remaining allegations are entirely without substance and, in many respects, are not dissimilar to those relied upon by the plaintiff in a previous application for my recusal, which I refused. For these reasons, the present application is similarly refused.”

25. In his summary of argument, the applicant submits that the primary judge should have acceded to his application that his Honour recuse himself from the proceedings. In his summary of argument he did not advance any reason as to why the primary judge ought to have done so (summary of argument, paras [15] and [16]). In submissions filed on 27 February 2023, the applicant contended there was overwhelming and cogent evidence that the primary judge was biased. In his submissions of 16 August 2022 seeking the judge’s recusal the applicant accused Bellew J of corrupt conduct by providing the defendants with a free notice of motion, and allowing a notice of motion to be filed without a supporting affidavit. He then accused the judge of directing registry staff to create a fictitious notice of motion to demonstrate that the free notice of motion was never free at all.

25. All that the judge did was direct that the notice of motion could be filed by being sent by email to his associate. Justicelink records on 31 May 2022 “NOM created, filed in court on 31 May 2022 (email from assoc to Bellew J to SCO-Adj)”. The payment of filing fees, and the creation of a pro forma and incomplete document by the registry contemporaneously with the creation of an invoice were matters for the registry staff. There is no evidence that the judge acted corruptly.

26. The applicant contended that steps taken by the judge to attempt to bring the respondents’ application for a summary hearing promptly denoted bias. The applicant had been refused legal aid and appealed from that refusal on 7 March 2022. His appeal was still undetermined on 16 May. While his appeal was pending, the hearing could not proceed. The judge on 16 May 2022 directed the respondents’ solicitor to advise the Legal Aid Commission that the court would be assisted if the applicant’s appeal from the refusal of legal aid were determined before 31 May 2022.

27. Nothing in that, or in any other aspect of the primary judge’s handling of the proceedings before him, gives rise to any arguable claim of actual bias, apprehended bias or denial of procedural fairness.

Proposed Ground 5

29. To the extend this ground is not covered by the earlier grounds, it appears to relate to an asserted failure by a registrar to waive, or to make a decision on the applicant’s application to waive, fees for the provision of transcript, and the refusal by a registrar to give leave for the issue of a subpoena. Neither matter gives rise to an arguable ground of appeal from his Honour’s order for summary dismissal.

Conclusion

30. None of the proposed grounds of appeal challenges the substance of the primary judge’s reasons for summarily dismissing the appeal. The applicant does not identify any question of law arising from the Appeal Panel’s reasons or even any error in the Appeal Panel’s reasons. In those circumstances, the applicant has not shown that he has suffered any substantial injustice, even if he could establish that he was denied procedural fairness. To put it another way, he has not shown that any denial of procedural fairness would be material.

31. None of the proposed grounds of appeal is seriously arguable. In any event, none of the grounds of appeal, if substantiated, would suggest that an appeal on a question of law from the decision of the Appeal Panel would enjoy any realistic prospect of success. I propose that the applicant’s summons seeking leave to appeal be dismissed with costs.

32. SIMPSON AJA: I agree with White JA.

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Decision last updated: 24 March 2023