Wecker v Davison
[2020] NSWSC 459
•27 April 2020
Supreme Court
New South Wales
Medium Neutral Citation: Wecker v Davison [2020] NSWSC 459 Hearing dates: 27 April 2020 Date of orders: 27 April 2020 Decision date: 27 April 2020 Jurisdiction: Common Law Before: Wright J Decision: (1) The plaintiff’s amended summons commencing an appeal filed on 25 February 2020 is dismissed.
(2) The plaintiff is to pay the first defendant’s costs of this application and of the amended summons filed on 25 February 2020 as agreed or assessed.Catchwords: CIVIL PROCEDURE – Commencement of appeal against order of the Court in a Division – Summons under Part 50 of the UCPR not appropriate – No point of principle Legislation Cited: Limitation Act 1969 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Procedural and other rulings Parties: Paul Wecker (Plaintiff) (Self-represented)
Christine Davison (First Defendant)
New South Wales Institute of Teachers, University of Sydney (Second Defendant)
Blacktown Boys High School (Third Defendant)Representation: Counsel:
Solicitors:
T B Senior (First Defendant)
University Solicitor & General Counsel UNSW Legal Office (First Defendant)
File Number(s): 2020/48751
Judgment – EX TEMPORE (RevISED)
-
Before the Court is a notice of motion filed on 26 March 2020 by the first defendant seeking orders that the amended summons commencing appeal filed by the plaintiff, Mr Wecker, be dismissed and that the plaintiff pay the first defendant’s costs.
-
The background to this matter is as follows.
-
On 20 September 2019, the plaintiff commenced proceedings by way of statement of claim for defamation against the defendants.
-
On 11 November 2019, Sackar J heard and determined an application by the first defendant for an order under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the claim against her be dismissed with costs on the basis that the statement of claim failed to disclose a reasonable cause of action. This was said to be because the plaintiff’s claim was statute barred under section 14B of the Limitation Act 1969 (NSW).
-
On 11 November 2019, Sackar J made the following orders:
the claim against the first defendant be dismissed pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005;
the proceedings otherwise be stayed; and
the plaintiff is to pay the first defendant’s costs of and incidental to the first defendant’s application for summary dismissal.
-
On 10 December 2019, the plaintiff filed a notice of motion in the Defamation List of the Common Law Division seeking an extension of time to file a summons to appeal against the orders made by Sackar J on 11 November 2019.
-
On 7 February 2020, the plaintiff’s notice of motion was heard and determined by Sackar J. On that occasion, his Honour made orders dismissing the notice of motion with no order as to costs. During that hearing it was explained to the plaintiff that he could not re-argue or appeal against the orders made on 11 November 2019 in the Common Law Division. It was indicated that the appropriate course was for the plaintiff to make an application to the Court of Appeal for an extension of time to seek leave to appeal against the 11 November 2019 orders. The plaintiff appeared to accept this. The transcript of that hearing recorded:
“PLAINTIFF: Can I ask one question? Under the Practice Note if a matter in issue is above $100,000 you don’t go to the Court of Appeal, you go directly to the Supreme Court.
HIS HONOUR: You may not realise this but there is no capacity in the Supreme Court or any other judge sitting as a single judge to entertain any further application of yours as far as I’m aware .… So your next port of call, I repeat for the last time, is nowhere or the Court of Appeal.
PLAINTIFF: Yes, your honour, I have to accept that.
HIS HONOUR: I think you do. I notice from what I have done anyway is that I have stayed the proceedings. It doesn’t seem to me that I need to make any other order. Your next application, if you make one, is an application upstairs in the Court of Appeal for an extension of time to seek leave to appeal. I suspect that is the process, against my earlier decision. That will suffer or not as the case may be the fate upstairs.
PLAINTIFF: Okay.”
-
Notwithstanding this, on 14 February 2020 the plaintiff filed a summons commencing an appeal in the Defamation List of the Common Law Division. On 25 February 2020 the plaintiff filed an “Ammended summons commencing an appeal pursuant to UCPR 50.1 – 50.3”. According to the affidavit of Ms Pettigrew, which was read on this application, the amended summons effectively sought the same relief as was sought in the notice of motion of 10 December 2019.
-
The amended summons indicated in par 3, “Details Of Appeal”, that the plaintiff appealed from the whole of the decision below, which was identified as the judgment or order of Sackar J of 11 November 2019. I take the reference to the date being “11/12/2019” to be a typographical error because the orders appealed from were described as follows:
“1: The Plaintiff is ‘out of time’.
2: The claim against the first defendant be dismissed pursuant to rule 13.4 of the uniform civil procedure rules 2005.
3: The proceedings be otherwise stayed”.
-
The orders sought on appeal, as set out in par 5 of the amended summons included: “#Judgment of the Court below be set aside”; “Plaintiff is not out of time.”; “Plaintiff’s proceedings are not Frivolous or vexatious because he has disclosed an error of law on the part of the Judge and therefore has not abused the processes of the Court.”; and various forms of substantive relief as apparently claimed in the original statement of claim.
-
The only grounds of appeal identified by the plaintiff in the amended summons concerned the following issues:
Ground 1 – whether the plaintiff was out of time for the purposes of the Limitation Act 1969; and
Ground 2 - whether the proceedings were frivolous and vexatious or an abuse of process and liable to be dismissed under rule 13.4 of the UCPR.
-
In the amended summons under the heading “Type of appeal summons commencing appeal to the Supreme Court”, the plaintiff apparently sought to explain why he had chosen the approach of filing a summons in the Common Law Division rather than commencing appropriate proceedings in the Court of Appeal. He stated at pars 1 and 2:
“… I am not applying for leave to appeal because the monetary sum at issue amounts to well above the $100,00[0] limit necessary to seek leave to appeal under section 101(2) of the Supreme Court Act 1970 NSW. I quote, ‘101 (2) r. An appeal shall lie to the Court of appeal from a final Judgment … other than an appeal: that involves a matter… amounting to or of the value or $100,00[0] or more.’ Clearly, as my claimed financial loss amounts to an annual loss of $100,00[0] since 2011 I cannot proceed on the basis of an application for leave to appeal.
In view of the above I refer to the Uniform Civil Procedure Rules 2005 …
‘Part 50, Appeals to the Court 50.1 this part applies to any appeal, OTHER THAN
(a) an appeal to the Supreme Court that, under the Supreme Court Act 1970, is assigned to the Court of Appeal.
(b) it is this Part 50.1 that applies to my circumstances as provided is a (50.3) summons to commence an appeal to this Supreme Court.
(c) Also provided in 50.3 (2) is that ‘An application for an extension of time under 50.3 sub-rule (1)(c) must be included in the summons commencing the appeal.” (Emphasis in the original)
-
As Sackar J explained on 7 February 2020, the plaintiff’s approach in this regard is incorrect. Under s 101(1)(a) of the Supreme Court Act 1970 (NSW), subject to certain exceptions that do not apply in this case, an appeal lies from “any judgment or order of the Court in a Division” to the Court of Appeal. Sackar J’s orders made on 11 November 2019 were orders of the Court in a Division. Thus, any appeal from those orders must be brought in the Court of Appeal. Section 101(2)(r) does not provide to the contrary.
-
Section 101(2) establishes that, for the categories of appeal listed in that subsection, the leave of the Court of Appeal must be obtained before the appeal can be brought in the Court of Appeal. It does not establish that the appeal cannot be, or is not to be, brought in the Court of Appeal. It certainly does not establish that any appeal falling within any of the categories in s 101(2)(a) to (r) is to be brought in a Division of the Supreme Court.
-
Accordingly, the plaintiff’s amended summons is misconceived and the appeal in its present form is incompetent.
-
Since the steps that he should have taken were explained to the plaintiff by Sackar J on 7 February 2020 and these were in effect reiterated to the plaintiff in the letter from the first defendant’s solicitors of 17 March 2020, it appears to me to be appropriate to dismiss the plaintiff’s amended summons and to order him to pay the first defendant’s costs.
-
Accordingly, the orders of the Court are:
The plaintiff’s amended summons commencing an appeal filed on 25 February 2020 is dismissed.
The plaintiff is to pay the first defendant’s costs of this application and of the amended summons filed on 25 February 2020 as agreed or assessed.
********
Decision last updated: 28 April 2020
0
3