Tey v Lewis - [2010] WASCA 91

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TEY -v- LEWIS [2010] WASCA 91

CORAM: NEWNES JA
MURPHY J

HEARD: 30 APRIL 2010

DELIVERED : 18 MAY 2010

FILE NO/S: CACV 109 of 2008

BETWEEN: KOK YOUNG TEY
Appellant
AND
JOSHUA RICHARD LEWIS
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :WISBEY DCJ
File No  :APP 16 of 2008

Catchwords:

Appeal - Dismissal under Supreme Court (Court of Appeal) Rules 2005 (WA) - Appeal has no reasonable prospect of success - Turns on own facts

Legislation:

District Court Rules 2005 (WA), O 54
Rules of the Supreme Court 1971 (WA), O66 r 5
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), r 43(2)(g)(i)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant:     In person
Respondent:     In person
Proposed Intervener      :     In person

Solicitors:

Appellant:     In person
Respondent:     In person
Proposed Intervener      :     In person

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

Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58
Michael v Freehill Hollingdale & Page (1990) 3 WAR 223
Michael v Pitt (Unreported, WASCA, Library No 930350, 18 June 1993)
MJL v Chief Executive Officer of the Department for Child Protection [2010] WASCA 69
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Tey v Lewis [2008] WASCA 229

JUDGMENT OF THE COURT:

Introduction

The notice of appeal in this matter was filed on 10 November 2008. The notice identifies the decision appealed from as a decision of Wisbey DCJ made on 31 October 2008. No substantive progress was made in the prosecution of the appeal in 2009.
On 11 February 2010, the appellant filed an amended notice of appeal.
On 23 February 2010, Court of Appeal Registrar Eldred made the following orders:
1.The appellant file and serve any application to add Mr Michael McPhee as a second respondent (intervenor) together with an affidavit explaining the circumstances relating to the amendment by 6 April 2010.
2.The appellant file and serve any amended appellant's case by 13 April 2010.
3.The appellant file and serve any application to rely on additional evidence together with an affidavit in support of the application by 13 April 2010.
4.The respondent file and serve any affidavits in response by 20 April 2010.
5.The parties attend before the Court of Appeal on 30 April 2010 at 10:30am ‑
•to consider any applications filed in accordance with this order;
•to consider whether the grounds of appeal in the appellant's case filed on 17 November 2008 or any amended case filed pursuant to this order has a reasonable prospect of succeeding;
•to consider whether the appellant has complied with the Supreme Court (Court of Appeal) Rules 2005; and
•for further directions.
On 15 March 2010, Registrar Eldred wrote to Ms Tey, with a copy of the above orders enclosed. In that letter, the Registrar explained that due to the lengthy delay in the prosecution of the appeal, it was necessary for Ms Tey to decide and state clearly the orders from which she is appealing, her grounds of appeal and the orders she seeks. In the last paragraph of the letter, the Registrar explained that at the hearing on 30 April 2010 the court would consider the grounds of appeal, and has power to strike out any ground that does not have a reasonable prospect of succeeding and dismiss the appeal if the appellant has not obeyed the rules of the court or orders made under them.
These proceedings came before the court on 30 April 2010 to review the matters referred to in par 5 of the above orders. At the hearing on 30 April 2010, the matter proceeded on the basis that the court would consider, as a preliminary issue, whether any, and if so which, of the grounds of appeal had any reasonable prospect of succeeding, and, if not, the consequences of that. The other matters would be addressed, if and to the extent necessary, once there had been a determination of that preliminary issue.
Part 5 r 43(2)(f) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Court of Appeal Rules) provides that the court may strike out any ground of appeal that does not have a reasonable prospect of succeeding. By pt 5 r 43(2)(g)(i), the court also has power to dismiss an appeal if none of the grounds of appeal has a reasonable prospect of succeeding.

Background to the appeal

In 2006, the appellant, Ms Tey, commenced proceedings in the Magistrates Court, action No 112 of 2006. The respondent to the appeal, Mr Lewis, was the defendant in that action. Mr Lewis applied for summary judgment, which was granted on 20 February 2008.
On 12 March 2008, Ms Tey, by her solicitor then trading under the name Michell Sillar McPhee, filed a notice of appeal in the District Court (appeal No 16 of 2008) against the magistrate's decision to award summary judgment in favour of Mr Lewis. We will call this the 'substantive appeal'.
On 10 July 2008, Mr Lewis' solicitors filed a chamber summons to dismiss the substantive appeal for want of prosecution, together with an affidavit in support.
On 23 July 2008, Ms Tey's solicitor, Mr McPhee, swore an affidavit in opposition to the application to strike out the substantive appeal for want of prosecution. He stated, inter alia:
2.There has been a delay in the filing of the entry for hearing in the Appellants Appeal.
3.This delay has been caused by a dispute between my office and the Appellant, largely in respect of costs. This dispute has inadvertently affected the conduct of this matter, resulting in the Appeal not being entered in the due time.
4.Notwithstanding the dispute, I am of the view, having had regard to the papers and the relevant law, that the Appellant has an arguable Appeal in respect of the matter.
…
8.I am respectfully of the view there is no prejudice caused to the Respondent, which cannot, at this stage, be cured by an appropriate Order for costs in favour of the Respondent.
On 25 July 2008, Mr Lewis' strike‑out application was adjourned to 15 August 2008.
On 8 August 2008, Mr McPhee filed an application for a declaration that he and his firm had ceased to act for Ms Tey. The affidavit sworn by Mr McPhee in support deposed to the fact that he had changed his business name from Michell Sillar McPhee to M J McPhee Barrister & Solicitor, that a fee dispute had arisen with Ms Tey, and that he had been unable to obtain instructions from Ms Tey on the basis that Ms Tey refused to respond to his request for instructions until he reverted to the use of his previous business name. The affidavit stated that there was a loss of confidence between solicitor and client and that Mr McPhee had ceased to act in relation to the substantive appeal.
On 15 August 2008, Mr McPhee's application for a declaration that he and his firm had ceased to act for Ms Tey, and Mr Lewis' application to strike out the substantive appeal for want of prosecution, came on for hearing before Registrar Kingsley. Registrar Kingsley made the orders requested by Mr McPhee, who was then excused. Prior to being excused, Mr McPhee left, on the bar table, a bundle of submissions and authorities in opposition to the strike‑out application. He said he had served them on Mr Lewis' solicitors and, whilst he had been unable to settle the submissions with Ms Tey, he invited Ms Tey to use them and hand them up at the hearing of the strike‑out application. He also informed the court that the delay in entering the appeal was due to 'inadvertence' in his office - a matter to which he had also deposed in par 3 of his affidavit of 23 July 2008 (see [10] above).
Opposition to the application by Mr Lewis to strike out the substantive appeal for want of prosecution was then conducted by Ms Tey in person. Registrar Kingsley dismissed the application to strike out for want of prosecution. He listed the substantive appeal for hearing before a judge on 3 November 2008 and also ordered a directions hearing for 5 September 2008. He also ordered that Ms Tey pay Mr Lewis' costs of the application to strike out for want of prosecution in any event.
On 19 August 2008, Ms Tey filed a notice of appeal, appealing so much of Registrar Kingsley's decision as required her to pay Mr Lewis' costs of the application to strike out for want of prosecution. We will refer to this as the 'costs appeal'. By the notice of appeal Ms Tey sought an order that the cost order against her, in favour of Mr Lewis, be set aside, alternatively that 'if there is any costs order at all it be ordered against [Mr McPhee], not the Appellant [Ms Tey]'. She also filed, on the same day, a notice of appeal which challenged Registrar Kingsley's declaration to the effect that Mr McPhee and his firm had ceased to act for her. We will call this the 'termination of retainer appeal'. The complaint in the former notice of appeal was to the effect that she should not have been ordered to pay the costs of Mr Lewis' application to strike out because the costs should have been paid by Mr McPhee on the grounds that he had been the cause of the appeal not being entered for hearing within the requisite time. The complaint in the latter notice of appeal was, in effect, that the Registrar ought not to have allowed Mr McPhee or his firm to cease to act for her until after the court had heard Mr Lewis' application to strike out the substantive appeal for want of prosecution.
On 19 September 2008, Mr Lewis' solicitors filed a chamber summons and an affidavit in support seeking to dismiss the costs appeal.
On 30 September 2008, Ms Tey swore an affidavit in response. She stated that she had only received the summons to strike out the costs appeal on 25 September 2008. She also deposed as to who was present in court at the hearing before Registrar Kingsley on 15 August 2008, and said that Mr McPhee had informed the court that he had taken responsibility for the delay.
On 23 September 2008, a Registrar of the District Court listed Ms Tey's costs appeal for hearing on 31 October 2008 before a judge, and gave Mr McPhee leave to intervene.
On 3 October 2008, certain programming orders were made by Sweeney DCJ in relation to the hearing of the costs appeal, the hearing of the termination of retainer appeal, and Mr Lewis' application to strike out the costs appeal. All three matters were directed to be heard on 31 October 2008. The judge also dismissed an application by Ms Tey to adjourn the hearing of the substantive appeal, listed for 3 November 2008.
On 24 October 2008, Ms Tey applied to the Court of Appeal for leave to appeal Sweeney DCJ's decision not to grant Ms Tey an adjournment of the substantive appeal. Pullin JA refused the application: Tey v Lewis [2008] WASCA 229.
On 31 October 2008, the costs appeal, termination of retainer appeal and related matters came before Wisbey DCJ. After hearing argument, his Honour ordered, in effect, that:
•The costs appeal be dismissed.
•The termination of retainer appeal be dismissed.
•Ms Tey pay Mr Lewis' costs of the applications, including his costs of the application dated 19 September 2008 to strike out the costs appeal.
On 3 November 2008, the substantive appeal was listed to be heard. It was adjourned.
On 10 November 2008, Ms Tey filed a notice of appeal in this court, challenging the decision of Wisbey DCJ made on 31 October 2008.
Since Registrar Eldred's orders of 23 February 2010, the following events have occurred. First, Ms Tey has filed a document seeking to join Mr McPhee as a 'second respondent (intervenor)' in the appeal. She has also sworn affidavits in support dated 6 April and 13 April 2010. In the former affidavit, she said, relevantly:
I believe that Michell Sillar McPhee ceased to exist by the time the order was made. It ceased to exist some time on or about the 8 August 2008. I have no contact with M J McPhee. See transcript of proceedings before Registrar Kingsley on 15 August 2008.
In the affidavit of 13 April 2010, she has stated, relevantly:
Michael John McPhee operating as M J McPhee Barrister & Solicitor faxed several letters to [Ms Tey's business address] I believe close to the hearing date of 15 August 2008. But I chose to ignore those correspondence because I have no contact with M J McPhee Barrister & Solicitor and the fax number of never given to Mr McPhee for use by the business name Michell Sillar McPhee. Furthermore the fax number was not working properly and it is a very old fax machine.
Secondly, Ms Tey has sworn a further affidavit of 13 April 2010 which she seeks to rely upon as additional evidence in the appeal. The affidavit deals with a letter from Mr McPhee to Mr Lewis' solicitors dated 23 September 2008 in which Mr McPhee indicated, in effect, that he would be prepared to consider personally paying Mr Lewis' costs of the application to strike out the substantive appeal, save for an adjournment which he said was at Mr Lewis' request, and he invited Mr Lewis' solicitors to provide an estimate of such costs and seek their client's instructions as to that proposal. Ms Tey, in her affidavit, says that she did not become aware of this correspondence until around 17 October 2008.
The correspondence to which Ms Tey refers presaged the giving of an undertaking to this court by Mr McPhee in connexion with a taxation of costs of a bill he had rendered Ms Tey in the course of his retainer. In July 2008, Ms Tey applied to have the bill taxed.
On 19 November 2008, Mr McPhee filed an undertaking in the taxation proceedings in the following terms:
Pursuant to the offer made to Registrar Johnston during the taxation of costs in this matter I HEREBY UNDERTAKE to deduct from any sum payable by the party charged, Mrs Kok Yong Tey, to me, any sum that Mrs Tey is required to pay the Respondent in Appeal number 16 of 2008 in the District Court as a result of the late entry for hearing of the said Appeal in the District Court.
This undertaking is limited to costs directly attributable to the failure to enter the Appeal within time and which the Court has Ordered Mrs Tey to pay the Respondent.
The said undertaking does not extend to any work or matter which occurred subsequently to the 15 August 2008 when an extension of time for Mrs Tey to enter the Appeal for Hearing was granted in the District Court.

The grounds of appeal and the orders sought

It appears that Ms Tey seeks to rely on both the original notice of appeal and the amended notice of appeal, on the basis that, between them, they cover both the dismissal of the costs appeal and the termination of retainer appeal, and the consequential cost order made by Wisbey DCJ on 31 October 2008.
The appellant's grounds of appeal are in the following terms:
1.The learned judge erred in law and in fact by not giving any substantiating reasons for his decision.
2.The learned judge erred in fact by not having the court transcripts both dated the 25th July 2008 and 15^th August 2008 in front of him during the hearing.
3.The learned judge has erred in law.
4.The learned judge erred in fact by considering the Respondent's submissions and affidavits which made no mention of the effect of Registrar Kingsley's decision made on the 25 July 2008 and on the 15 August 2008.
5.The conduct of the Respondent's Lawyer Williams Handcock was unprofessional, and had breached the Rules of the court.
Ms Tey seeks the following orders in relation to the appeal:
1.Order made by his Honour Judge Wisbey and dated 19 August 2008 in favour of [Mr Lewis] be quashed.
2.That Mr Michael John McPhee to [sic] pay costs ordered by Registrar Kingsley on the 15 August 2008, and costs reserved.
3.The Appellant seeks costs if not agreed to be taxed.

The decision appealed from

A formal written judgment was not published by Wisbey DCJ, and one was not, in our view, necessary. It is clear from the transcript of the hearing before his Honour, that his Honour referred to the terms of the particular District Court rule which entitled Mr Lewis to apply to dismiss the substantive appeal (O 54 of the District Court Rules 2005 (WA)), dismissed the costs appeal and dealt with Mr Lewis' related application dated 19 September 2008 on the bases that:
(a)the Registrar had a broad discretion in relation to costs, and no error was revealed;
(b)whilst Ms Tey's solicitor had indicated that he accepted responsibility for the appeal not being entered on time, Ms Tey was bound, as against Mr Lewis, by the conduct of her solicitor during the period in which he was on the record for her; and
(c)to the extent that Ms Tey had a complaint against her solicitor regarding delay, that complaint might be pursued in other ways, but Mr McPhee's acknowledgment of the cause of delay did not, in itself, establish that the Registrar's discretion had miscarried.
It is important to recall that, in relation to the costs appeal, the question arising on the appeal was whether Mr Lewis should have, as against Ms Tey, the costs of the application to dismiss for want of prosecution. If an order for costs was made against Ms Tey (as was the case), an entirely separate question would be whether, in the exercise of the court's inherent disciplinary jurisdiction over practitioners, Mr McPhee should be ordered to indemnify Ms Tey in respect of such a costs order. If such an order were made, it would be a final order. See O 66 r 5 of the Rules of the Supreme Court 1971 (WA) and, generally, Michael v Freehill Hollingdale & Page (1990) 3 WAR 223; Michael v Pitt (Unreported, WASCA, Library No 930350, 18 June 1993) 14, 19 ‑ 20. That matter did not arise and was not agitated on the appeal from the Registrar's decision with which his Honour was dealing.
In relation to the dismissal of the termination of retainer appeal, the transcript indicates that his Honour considered that there was clear evidence that the relationship between Ms Tey and her former solicitor had broken down and that no error was disclosed by the Registrar's decision.

Whether the grounds of appeal have reasonable prospects of succeeding

The construction of the words 'does not have a reasonable prospect of succeeding' in pt 5 r 43(2)(f) of the Court of Appeal Rules is to be approached in the same manner as outlined by the court in Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473; see MJL v Chief Executive Officer of the Department for Child Protection [2010] WASCA 69 [23].
It is appropriate to make, at the outset, the general observation that there is nothing in the decision of Wisbey DCJ which reveals arguable error.
We now turn to the specific grounds of the appeal. There is, in our view, no reasonable prospect of Ms Tey succeeding in relation to ground 1. This is a case where reasons are sufficiently apparent from the transcript: see Deeks v Little Moreton Trading Pty Ltd (1995) 14 WAR 58, 60 ‑ 61, 66.
There is also no reasonable prospect of Ms Tey succeeding in relation to ground 2. Whilst it appears that Wisbey DCJ did not have the transcripts referred to, it is incumbent upon the parties to put material before the court upon which they seek to rely and, at the hearing before Wisbey DCJ, Ms Tey read from those parts of the transcript upon which she placed reliance in the course of her submissions.
The third ground of appeal lacks particularity. Ms Tey explained, by reference to her submissions, that the alleged errors of law are:
(a)the alleged failure to give reasons;
(b)the judge allegedly prevented Ms Tey from presenting evidence and thereby denied her natural justice;
(c)the judge allegedly failed to consider the merits in light of the evidence;
(d)the judge failed to find that the Registrar should have ordered Mr McPhee to pay Mr Lewis' costs of the strike‑out application as it was Mr McPhee who caused the delay; and
(e)the judge failed to query why Mr McPhee had changed his business name.

In relation to the above alleged errors of law, the first is the same as the first ground, with which we have already dealt. Having considered the transcript, there is no arguable basis for the second or third points. As to the fourth point, bearing in mind the scope of the discretion involved, we would see no arguable error in the approach taken by the learned judge referred to in [32] above. The fifth point also plainly raises no arguable error.
For these reasons, the third ground also has no reasonable prospects of success.
The fourth ground of appeal also has no reasonable prospects of success. It was not an error of law for the judge to take into account the submissions and affidavits of each party - he was obliged to do so. Also, the judge was clearly well aware of the effect of the Registrar's decision.
The fifth ground of appeal also has no reasonable prospects of success. A complaint of alleged unprofessional conduct on the part of the solicitors for the other side does not disclose any arguable error in the present circumstances.

Conclusion

In light of the above matters, we would strike out each ground of appeal and dismiss the appeal on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.