von Reisner v Chepurin
[2011] NSWCA 162
•24 June 2011
Court of Appeal
New South Wales
Case Title: von Reisner v Chepurin Medium Neutral Citation: [2011] NSWCA 162 Hearing Date(s): 30 May 2011 Decision Date: 24 June 2011 Jurisdiction: Before: Young JA
Decision: 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: COURTS PRACTICE- whether judgment is final or interlocutory- order dismissing proceedings seeking that District Court proceedings be consolidated with Supreme Court proceedings- held interlocutory.
Legislation Cited: Uniform Civil Procedure Rules Pt 13.4
Cases Cited: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423
In re Page [1910] 1 Ch 489
Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; 149 CLR 147Texts Cited: Category: Interlocutory applications Parties: Koidu von Reisner (Appellant)
Oleg Chepurin (First Respondent)
Sophia Wayne-Shevchuk (Second Respondent)Representation - Counsel: Appellant in person
A J Bowen (Respondents)- Solicitors: Appellant self represented
Meridian Lawyers (Respondents)File number(s): CA 2010/112105 Decision Under Appeal - Court / Tribunal: - Before: Bergin CJ in Eq - Date of Decision: 15 November 2010 - Citation: - Court File Number(s) SC 2010/112105 Publication Restriction:
Judgment
YOUNG JA: The Registrar has referred to me for decision the question as to whether this appeal is competent, and if it is not, for it to be dismissed under Part 13.4 of the Uniform Civil Procedure Rules.
The background is that, by District Court proceedings 1731/2004, the appellant sued two dentists with respect to work done on her teeth. There is no need to go into details save to say that the case was not merely about a filling or extraction, but some more major work, which, according to the appellant, went horribly wrong.
It would appear from the proceedings in the District Court that there is some limited concession that part of the appellant's claim may well be valid.
There has been a long procedural history to the District Court proceedings, again, which it is not necessary to traverse save that the matter has already gone to the Court of Appeal once and suggestions were made with respect to possible amendment of the pleadings.
The appellant then took out the summons in the present Equity proceedings to transfer those District Court proceedings to this Court so that they could be consolidated with that summons. It would appear at that stage that the intention was to expand the present proceedings to claim not only a transfer of the District Court proceedings, but also make those personal claims and claims on behalf of the Commonwealth against the respondents so that the Commonwealth could be reimbursed for medical payments made by it on the appellant's behalf.
Originally the summons in Equity sought not only consolidation, but also substantive relief including specific performance requiring the respondents to remove devices and teeth from the appellant's mouth, counts under the Trade Practices Act 1974 (Cth) and other Federal Statutes, fraudulent misrepresentation and "medical trespass".
However, instead of amending the present proceedings to plead the material facts supporting those additional matters, the appellant commenced separate proceedings in the Common Law Division of this Court. I have been told that the amount sought is about $27 million. The Equity summons proceeded solely on the matter of consolidation.
The present case came before Bergin CJ in Eq on 15 November 2010. Her Honour dismissed the summons, that is, the application to remove the District Court proceedings into this Court and consolidate them with the Common Law proceedings. It is against that decision that the appellant appeals.
The primary judge gave an ex tempore decision, though it goes into 22 pages. The primary judge was critical of the statement of claim in the Common Law proceedings. She said (at p 20):
"First of all, the state of the pleading would be of little assistance to any trial judge. There is no cohesion of claims, merely broad brush allegations of rights, constitutional and otherwise, with purported claims on behalf of the Commonwealth, which on one view of it seem to me to be inappropriate."
However, her Honour continued:
"I am not deciding whether the Statement of Claim should be struck out today, I am merely deciding whether I should transfer the District Court proceedings and consolidate them with the proceedings commenced by the plaintiff in the Common Law Division of this Court last Friday."
The appellant put before the primary judge that there was a real prospect that the jurisdictional limit of the District Court would be exceeded - either its monetary jurisdiction or its jurisdiction to deal with some Commonwealth matters and equitable claims. The primary judge was not satisfied about that (at p 20).
The primary judge said (at pp 20-21):
"The proceedings in the District Court are pleaded with precision and clarity. A trial judge would be able to see quite clearly the nature of the plaintiff's claims. They are not confused with claims that seem to be in many respects quite baseless, and it would be inappropriate in my view to transfer a properly pleaded case to this court which seems to me to be well within the jurisdictional limits of the District Court, and combine it with a claim that seems to me to be inappropriately pleaded and confused."
Since then, I have been told there has been movement in the Common Law proceedings and a judge of that Division granted the appellant some pro bono legal assistance. This is relevant because there would not seem to be any reason why, if and when the Common Law proceedings in this Court are properly formulated, a fresh application for transfer of the District Court proceedings cannot be made.
The appellant sought pro bono legal assistance in this Court. I refused that for the reasons I gave on 9 May 2011. The appellant has since sought, as is her right, to have that decision reviewed by a Full Bench.
The basal question I have to address is whether Bergin CJ in Eq's decision was an interlocutory decision so that the appellant needs leave to appeal, or whether it was a final decision from which she can appeal as of right.
I heard oral submissions on the question on 30 May 2011, the appellant appearing in person, and Mr A J Bowen of counsel, appearing for the respondents.
I listened to the appellant for about an hour and a quarter. Whilst a lot of what the appellant said was quite irrelevant to the question I had to decide (as is understandable with a person without legal training), she did make the significant point that the only active question in the present proceedings was whether there should be a transfer of the District Court proceedings, and that the proceedings were finally disposed of by the primary judge dismissing them. Accordingly, this was not like a case where a judge dismisses a notice of motion or interlocutory process within proceedings: this was putting to death, once and for all, the entire proceedings. I thought that point had merit.
However, again because of a lack of legal training, the appellant was unable to develop it. She did, however, refer me to what appears on page 15,717-18 of Ritchies Uniform Civil Procedure Practice.
Mr Bowen's basal point was that, whilst the dismissal of the proceedings did actually finalise the present matter, it did not dispose of the cause of action and indeed, the reasons given provided some indication that if another application were made when the proceedings in the Common Law Division were in order, a different result might be reached. Mr Bowen was unable to refer me to any previous decision where this particular point has been decided in a reported case or case noted in the Practice, and I myself was unable to find one, either in the Practice or in the Australian Digest. Accordingly, the matter must be approached on first principles.
The basal proposition is that a final judgment is one which finally disposes of the rights of the parties: Sanofi v Parke Davis Pty Ltd (No 1) [1982] HCA 9; 149 CLR 147, 152. That passage picks up what Taylor J had said in Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 439. In that case Taylor J at 440, gave examples of what is an interlocutory order. After referring to various cases, his Honour said:
"It is not, however, of the essence of an interlocutory order that it is one made in the course of a pending action or suit ... ".
(See particularly In re Page [1910] 1 Ch 489).
Accordingly, we have here a situation where the order made by the primary judge does not finally dispose of the rights of the parties. It is a decision made to determine a particular procedural set of proceedings rather than an order made in the course of a pending action or suit, but this is not a determinative factor.
It is clear that the appellant's two actions, one in the District Court and one in the Common Law Division are still on foot and the rights of the parties will be determined in those actions. Furthermore, it is quite clear that the appellant may, in due course, if her Common Law proceedings are put in proper form, make an application in those proceedings for the same order as was refused by the primary judge in these proceedings. Accordingly, in my view, the decision of Bergin CJ in Eq was an interlocutory order and the current appeal is incompetent.
The consequence is that the appeal must be dismissed with costs. It is, of course, open to the appellant to seek leave to appeal out of time, but it may be that she will think a better course is to put the Common Law proceedings in proper order with the aid of her pro bono legal assistance, and then, after taking advice, make a fresh application for removal of the District Court proceedings if that then seems to be appropriate.
To save costs, I indicated that there was no need for any attendance when these reasons were delivered. They have been posted to the appellant and to Mr Bowen. However, these reasons and the orders are being formally delivered and made in open court in accordance with proper procedure.
**************
2
2
1