Tahana v Secure Funding Pty Ltd

[2013] NSWCA 19

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Tahana v Secure Funding Pty Ltd [2013] NSWCA 19

Hearing dates:

7 February 2013

Decision date:

07 February 2013

Before:

Macfarlan JA at [1]; [12]
Barrett JA at [2]

Decision:

Application for extension of time and application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - application for leave to appeal dismissed - no issue of principle

Legislation Cited:

Legal Aid Commission Act 1979

Category:

Procedural and other rulings

Parties:

Richard Tuahine Tahana (Applicant)
Secure Funding Pty Ltd (Respondent)

Representation:

Counsel:
Self-represented Applicant
M Suliman (Solicitor) (Respondent)
Solicitors:
Self-represented Applicant
Norton Rose Australia (Respondent)

File Number(s):

CA 2012/271406

 Decision under appeal 

Jurisdiction:

9111

Citation:

Secure Funding Pty Ltd v Richard Tahana

Date of Decision:

2012-05-04 00:00:00

Before:

Schmidt J

File Number(s):

SC 2011/69755

Judgment

1. MACFARLAN JA: I ask Barrett JA to deliver the first judgment.

1. BARRETT JA: The Court has declined to grant an adjournment of today's proceedings sought by Mr Tahana. It has taken the view that s 57 of the Legal Aid Commission Act 1979 does not require that an adjournment be granted and that the matter of adjournment therefore fell to be dealt with according to the Court's discretion unaffected by that section.

1. Section 57 of the Legal Aid Commission Act did not apply because of the special circumstances of the case. First among these is the view that has been reached that the applications before the Court of Appeal have no prospects of success. Added to that is the circumstance that while Mr Tahana relies on an undetermined application for legal aid which he says has been made, he has not put before the Court appropriate evidence of the making of the application so that any sound basis for findings is absent. There is also the point that several previous applications for legal aid have been made in relation to the possession matter. There have been at least two refusals of legal aid and there is no reason to think that the currently outstanding application would meet with any other result.

1. The applications for legal aid have not been made in a timely way. For example, the summons seeking leave to appeal was filed on 30 August 2012 by Mr Tahana himself. He managed to take that step without legal aid but did not make any application for legal aid until 18 October 2012, almost seven weeks later. It also appears from the documents that there was a refusal of legal aid on 5 January 2013 (it is said in relation to an application of 25 November 2012), yet no steps to appeal against that rejection were taken until 5 February 2013 - a delay of a month.

1. Because s 57 does not require an adjournment to be granted, the matter, as I have said, fell to be dealt with according to the Court's discretion and the factors I have mentioned in my opinion justified the exercise of the discretion against the grant of the adjournment.

1. I move now to the application for leave to appeal and what appears to be an allied application for an extension of time.

1. Mr Tahana wishes to have leave to appeal from a decision of Justice Schmidt of 4 May 2012 by which her Honour refused an adjournment of the hearing of the respondent's motion to set aside a notice to produce served by Mr Tahana. Her Honour ordered that the notice to produce be set aside. Any appeal against those decisions, if it were to eventuate, would thus be an appeal against discretionary decisions on matters of practice and procedure. The applicant says that an adjournment should have been granted by Justice Schmidt so that he could take steps to obtain legal aid and in particular to appeal a decision that he be refused legal aid.

1. By the challenged notice to produce, the applicant sought "evidence that" the respondent had held a particular certificate of title from 10 July 2001 to 21 December 2011. There was evidence before the judge that the applicant had already inspected the certificate of title and the related mortgage at the respondent's solicitor's office. There is material before this Court suggesting that the same documents together with a loan agreement were inspected again on 27 July 2012.

1. Justice Schmidt correctly took the view that, to the extent that the notice to produce sought "evidence that" the mortgage had been held during the stated period, the notice extended beyond the permitted limits for such a document. It lacked essential precision and specificity. Justice Schmidt was also influenced by the fact that inspection of certain core documents had already been given in the way I have described. Any adjournment could not have altered any of this.

1. In these circumstances there is no realistic prospect at all that Justice Schmidt's undoubted discretion as to both refusal of adjournment and the setting aside of the notice to produce would be found on appeal to have miscarried. Any appeal would have no prospects of success.

1. In my opinion, therefore, there should be no grant of leave to appeal and to the extent that the applicant is applying for an extension of time within which to seek leave to appeal, that application should also be refused.

1. MACFARLAN JA: I agree. I add in relation to the application for adjournment two other matters favouring the rejection of the application, first, that the judgment sought to be appealed from was given on 4 May 2012 yet Mr Tahana did not apply for legal aid for his application for leave to appeal until 18 October 2012 and, secondly, that the final hearing of the proceedings in the Common Law Division is fixed for hearing on 3 March this year.

1. The orders of the Court are that the application for extension of time and the application for leave to appeal are dismissed with costs.

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Decision last updated: 18 February 2013