Wilden Pty Ltd v Green [No 4]
[2016] WASCA 195
•23 NOVEMBER 2016
WILDEN PTY LTD -v- GREEN [No 4] [2016] WASCA 195
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 195 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:101/2005 | 3 OCTOBER 2016 | |
| Coram: | NEWNES JA MURPHY JA | 23/11/16 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for review of decision of registrar dismissed | ||
| B | |||
| PDF Version |
| Parties: | WILDEN PTY LTD MAGENTA NOMINEES PTY LTD TACE PTY LTD SYDNEY JAMES CHESSON BERT LEONARD DENBOER CALLAO PTY LTD BENRONE PTY LTD GRAEME WILLIAM GREEN W J GREEN & CO (1984) PTY LTD SHARYN LEE GREEN JULIE ANNE GREEN WILLIAM JOSEPH GREEN NORMA GLENYCE GREEN |
Catchwords: | Practice and procedure Application for review of decision of Court of Appeal registrar Whether application must be heard by single judge Jurisdiction of Court of Appeal Whether registrar can refuse to accept document for filing once document received by clerk in Court of Appeal office Supreme Court (Court of Appeal) Rules 2005 (WA), r 10(1) Whether party has right to be heard before document not accepted for filing |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 10(1), 15, 16 |
Case References: | Green v Wilden Pty Ltd [2005] WASC 83 Law v Hall [2008] WASCA 257 Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234 Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476 Twist v Randwick Municipal Council (1976) 136 CLR 106 Wilden Pty Ltd v Green [2009] WASCA 38 Wilden Pty Ltd v Green [2009] WASCA 38 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WILDEN PTY LTD -v- GREEN [No 4] [2016] WASCA 195 CORAM : NEWNES JA
- MURPHY JA
- First Appellant
MAGENTA NOMINEES PTY LTD
Second Appellant
TACE PTY LTD
Third Appellant
SYDNEY JAMES CHESSON
Fourth Appellant
BERT LEONARD DENBOER
Fifth Appellant
CALLAO PTY LTD
Sixth Appellant
BENRONE PTY LTD
Seventh Appellant
AND
GRAEME WILLIAM GREEN
First Respondent
W J GREEN & CO (1984) PTY LTD
Second Respondent
SHARYN LEE GREEN
First-named Third Respondent
GRAEME WILLIAM GREEN
Second-named Third Respondent
JULIE ANNE GREEN
Third-named Third Respondent
WILLIAM JOSEPH GREEN
Fourth-named Third Respondent
NORMA GLENYCE GREEN
Fifth-named Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
Citation : GREEN -v- WILDEN PTY LTD [2005] WASC 83
File No : CIV 3049 of 1991, CIV 3050 of 1991, CIV 2965 of 1990, CIV 2966 of 1990
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
Citation : GREEN -v- WILDEN PTY LTD [2005] WASC 83 (S)
File No : CIV 3049 of 1991, CIV 3050 of 1991, CIV 2965 of 1990, CIV 2966 of 1990
Catchwords:
Practice and procedure - Application for review of decision of Court of Appeal registrar - Whether application must be heard by single judge - Jurisdiction of Court of Appeal - Whether registrar can refuse to accept document for filing once document received by clerk in Court of Appeal office - Supreme Court (Court of Appeal) Rules 2005 (WA), r 10(1) - Whether party has right to be heard before document not accepted for filing
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 10(1), 15, 16
Result:
Application for review of decision of registrar dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr N D C Dillon
Second Appellant : Mr N D C Dillon
Third Appellant : Mr N D C Dillon
Fourth Appellant : In person
Fifth Appellant : Mr N D C Dillon
Sixth Appellant : Mr N D C Dillon
Seventh Appellant : Mr N D C Dillon
First Respondent : Mr M L Bennett
Second Respondent : Mr M L Bennett
First-named Third Respondent : Mr M L Bennett
Second-named Third Respondent : Mr M L Bennett
Third-named Third Respondent : Mr M L Bennett
Fourth-named Third Respondent : Mr M L Bennett
Fifth-named Third Respondent : Mr M L Bennett
Solicitors:
First Appellant : AustAsia Legal Pty Ltd
Second Appellant : AustAsia Legal Pty Ltd
Third Appellant : AustAsia Legal Pty Ltd
Fourth Appellant : In person
Fifth Appellant : AustAsia Legal Pty Ltd
Sixth Appellant : AustAsia Legal Pty Ltd
Seventh Appellant : AustAsia Legal Pty Ltd
First Respondent : Bennett & Co
Second Respondent : Bennett & Co
First-named Third Respondent : Bennett & Co
Second-named Third Respondent : Bennett & Co
Third-named Third Respondent : Bennett & Co
Fourth-named Third Respondent : Bennett & Co
Fifth-named Third Respondent : Bennett & Co
Case(s) referred to in judgment(s):
Green v Wilden Pty Ltd [2005] WASC 83
Law v Hall [2008] WASCA 257
Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234
Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476
Twist v Randwick Municipal Council (1976) 136 CLR 106
Wilden Pty Ltd v Green [2009] WASCA 38
Wilden Pty Ltd v Green [2009] WASCA 38 (S)
1 JUDGMENT OF THE COURT: There are two applications before the court for determination. They are:
1. an application by the fourth appellant for a review of the decision of a registrar not to accept for filing the appellants' schedule of evidence and the fourth appellant's submissions in the taking of an account; and
2. an amended application by the other appellants (jointly with the fourth appellant) for a review of the registrar's decision not to accept for filing the appellants' schedule of evidence.
2 It is unnecessary to set out the tortuous history of this litigation. Suffice it to say that the litigation commenced in 1990 and went to trial over 52 hearing days between November 2003 and November 2004. Judgment in the action was delivered on 10 May 2005: Green v Wilden Pty Ltd [2005] WASC 83. As the trial judge observed, at that stage the litigation had been on foot for over 14 years. It did not end there. On 16 February 2009, an appeal from the decision of the primary judge was allowed: Wilden Pty Ltd v Green [2009] WASCA 38. Orders were subsequently made, among other things, for the taking of an account by a registrar of the court: Wilden Pty Ltd v Green [2009] WASCA 38 (S).
3 For reasons that appear to be the subject of controversy and into which it is unnecessary to descend, the taking of the account did not commence until 24 May 2016. The first, second and third appellants are the accounting parties. The first to third and fifth to seventh appellants were represented by counsel; the fourth appellant appeared in person; and the respondents were represented by counsel. The interests of the fourth appellant, however, were allied with those of the other appellants.
4 The evidence was completed on 26 May 2016 and the registrar made orders that day for the filing and service of schedules of evidence and written submissions by each party. The orders, relevantly, were as follows:
1. On or before 10 June 2016 the fourth appellant shall file and serve notice of any matters in the Account that are conceded or will not be pursued.
2. On or before 24 June 2016 the appellants shall file and serve a schedule of evidence in support of the account.
3. On or before 1 July 2016 the respondents shall file and serve a responsive schedule of evidence.
4. On or before 15 July 2016 the respondents shall file and serve written submissions.
5. On or before 29 July 2016 the fourth appellant shall file and serve written submissions.
6. On or before 29 July 2016 the first, second, third, fifth, sixth and seventh appellants shall file and serve written submissions.
5 On 24 June 2016, the appellants presented to the Court of Appeal office for filing a document described as a 'schedule of evidence', to which there were a number of annexures. We were informed that annexures 'A' to 'C' are amended versions of financial documents produced by the appellants on the taking of the account, amended to correct errors conceded by the fourth appellant in the course of his evidence. Annexures 'D' to 'H' are said to be extracts of transcript of the hearing on the taking of the account. We were informed by the fourth appellant that they had been prepared by copying and pasting passages from an electronic Word version of the transcript prepared by the court's transcription service, albeit the annexures are in a different font to ordinary transcript and in italic print. Annexure 'I' consisted of 33 pages of transcript of various parts of the original trial and the appeal. In the schedule of evidence, the contents of that transcript are sought to be relied up in respect of accounts numbered 43, 44, 81 and 52. It was not in issue that annexure 'I' was not tendered in evidence on the taking of the account.
6 On 30 June 2016, the associate to the registrar wrote to the appellants informing them that the filing of the document had been 'countermanded' as it impermissibly contained additional evidence. In the letter the associate said that if it was sought to tender additional evidence, an application, supported by affidavit, would have to be filed.
7 In purported compliance with par 5 of the registrar's order of 26 May 2016, the fourth appellant, on 29 July 2016, filed written submissions. The submissions were in two parts. The first part was in a narrative form extending over some 30 pages and containing a litany of complaints about the respondents, and particularly their lawyer; a history of the proceedings; and various observations on legal questions. The second part was in a tabular form extending over 69 pages and containing specific responses to the written submissions of the respondents.
8 The respondents' solicitors wrote to the court on 2 August 2016 objecting to the fourth appellant's submissions on two grounds. One was that a number of paragraphs attempted to lead evidence which was not tendered as part of the account. The other was that other paragraphs contained false assertions about the respondents' solicitor that were defamatory and scandalous, and had no relevance to the taking of the account.
9 On 10 August 2016, the associate to the registrar wrote to the fourth appellant informing him that the filing of the document had been 'countermanded' as a large number of the paragraphs in it contained irrelevant and scandalous material. The fourth appellant was given until 22 August 2016 to file submissions in an acceptable form. (We should mention that in a letter dated 16 August 2016 to the parties, the associate to the registrar explained that 'countermanded' was used in this context where a document had been received over the counter by officers in the Court of Appeal office but which the registrar then refused to accept for filing.)
10 On 15 August 2016, the fourth appellant filed the application for review of the registrar's decisions that the schedule of evidence and the submissions respectively not be accepted for filing.
11 On 23 September 2016, the first to third and fifth to seventh appellants (the other appellants) filed an interim application (the other appellants' application) in which they sought, in effect, an order that the appellant's schedule of evidence be accepted for filing; alternatively leave under O 36 r 9 of the Rules of the Supreme Court 1971 (WA) or the court's inherent jurisdiction to rely on transcript from prior proceedings; further alternatively, leave to adduce in evidence transcripts from prior proceedings.
12 The other appellant's application was listed at the same time as the fourth appellant's application. At the hearing, counsel for the other appellants submitted that their application was for a review of the registrar's decision not to accept the appellants' schedule of evidence for filing. That submission was rejected, leading to the application being amended (without objection by the respondents) to seek such a review. There were no written submissions filed by the other appellants in support of such an application.
The review of the registrar's decision
13 It is necessary, before turning to the issues that arise on the review, to deal with a preliminary matter raised by counsel for the other appellants; namely, the startling proposition that the court, constituted as it was by two judges, had no jurisdiction to hear the other appellants' application (or, it necessarily followed, the fourth appellant's application). It was submitted that r 15 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) required that an application for the review of the decision of a registrar be determined by a single judge of the court. A court constituted by two or more judges therefore had no jurisdiction to hear such an application. It was submitted that the effect of the court being constituted by two or more judges would be to deprive the appellants of the right of review of the decision of a single judge under s 61(3) of the Supreme Court Act 1935 (WA).
14 The Court of Appeal is constituted by two or more judges of appeal and in civil proceedings as so constituted may exercise all of the powers of that court: Supreme Court Act, s 57(1). The jurisdiction and powers of a single judge of appeal are dealt with in s 61 of the Supreme Court Act. Section 61(1) provides that in relation to an appeal or application before the Court of Appeal, a single judge of appeal may exercise any jurisdiction or powers of the Court of Appeal that are conferred on a single judge of appeal by rules of court. That is, the powers that a single judge may exercise are powers of the Court of Appeal that the rules permit a single judge to exercise. They are not powers within the exclusive jurisdiction of a single judge of appeal. It is not, therefore, the case that because the rules of court permit certain powers of the Court of Appeal (in this instance, the power of review of the decision of a registrar) to be exercised by a single judge, those powers cannot be exercised by the Court of Appeal. Plainly they can be and indeed not infrequently are. The exercise of such powers by a court constituted by two or more judges obviates the need for a process of review akin to s 61(3) of the Supreme Court Act. A party has instead its ordinary right to seek special leave to appeal to the High Court. See also Law v Hall [2008] WASCA 257 [2].
15 It is necessary then to turn to the issues on the review.
16 The fourth appellant's contentions on the review were in the form of grounds of appeal. He alleged, in effect, that:
1. the registrar did not have the power to 'countermand' the filing of the fourth appellant's submission or the appellants' schedule of evidence, but if there was such a power, the registrar:
1.1 failed to consider substantially the information and materials permitted or required to be submitted by the fourth appellant in the account;
1.2 failed to consider the irrelevant and scandalous submissions of counsel for the respondents to which the fourth appellant responds in his submissions;
1.3 failed to identify paragraphs she found to contain irrelevant and scandalous material; and
1.4 failed to question the allegations made by counsel for the respondents;
1.5 failed to provide coherent reasons for her decision.
18 The review of a decision of a registrar, however, requires the court to determine the matter 'afresh': Court of Appeal Rules, r 16. That is, the court must conduct a fresh hearing of the matter, rather than proceed by way of appeal in which appellable error by the registrar must be established. We will treat the grounds of review as being in the nature of substantive submissions.
19 The fourth appellant's first contention (also advanced by counsel for the other appellants), that the registrar had no power to reject the documents for filing, is without merit.
20 The starting point is r 10(1) of the Court of Appeal Rules, which provides:
A registrar may refuse to accept for filing any document that is required or permitted by these rules if it does not obey these rules or any order made under these rules.
21 The registrar had power under the Court of Appeal Rules to order the filing of schedules of evidence and written submissions: r 10(2) read with r 7(1)(e). The registrar was entitled to refuse to accept for filing documents that did not comply with her orders.
22 Both the fourth appellant and counsel for the other appellants argued, however, that r 10(1) had no application on the facts of this case. It was submitted that once a document had been accepted over the counter at the Court of Appeal office (as these documents had), the document had been filed for the purposes of r 10(1) and it was no longer within the power of the registrar not to accept it for filing. That submission must be rejected.
23 Rule 3(1) of the Court of Appeal Rules provides that:
file a document, means to file it at the Court of Appeal Office in the Supreme Court together with any fee required to be paid under the Supreme Court (Fees) Regulations 2002.
24 The ordinary meaning of the verb 'file' is (relevantly) 'to place (a document) on a file among official records by formal procedures of registration': The New Shorter Oxford English Dictionary (6th ed, 2007) 961. The delivery to, and receipt by, a clerk at the Court of Appeal office of a document that (relevantly for present purposes) fails to comply with the court's order as to the document required for filing, does not mean that the document has been 'filed' in accordance with the court's order. The delivery and receipt of such a document over the counter cannot alter its character as a document that, objectively, does not comply with the court's order as to what is required for filing.
25 If a document that does not comply with the court's order is handed over and taken by a clerk at the counter, the registrar may, pursuant to r 10(1) of the Court of Appeal Rules, refuse to allow it to be accepted as part of the court file. If the position were as contended for by the appellants, r 10(1) would be unworkable. It would mean that before any document which had been ordered to be filed passed over the counter of the Court of Appeal office, it would have to be examined by the registrar for compliance with the relevant order of the court. That could never have been intended.
26 In the present case, the registrar was entitled to refuse to accept for filing the appellants' schedule of evidence and the fourth appellant's written submissions if those documents did not comply with her order, notwithstanding that the documents had been received by a clerk in the Court of Appeal office.
27 The question then is whether the documents failed to comply with the registrar's order. The fourth appellant submitted that the evidence on the taking of the account was not limited to the evidence adduced before the registrar but included all of the evidence before the trial judge and the Court of Appeal. That, it was argued, was apparent from some previous observations made by the Court of Appeal in respect of the taking of the account. It was therefore incorrect to say that the schedule of evidence did not comply with the order.
28 That submission cannot be accepted. The only question on the present application is whether the documents complied with the terms of the registrar's order. What was contemplated by 'a schedule of evidence in support of the account' was not elaborated upon in the orders themselves but at the time of making the orders the registrar explained that what she intended was a schedule in the nature of the document required in the Court of Appeal by practice direction 7.4. It is readily apparent that the evidence to be referred to in the schedule was the evidence adduced on the taking of the account over the three hearing days and there is nothing in the transcript of the hearing that might suggest otherwise.
29 Counsel for the other appellants took a different approach. He accepted that the schedule of evidence could only refer to evidence adduced before the registrar but submitted that the schedule filed on behalf of the appellants did not go beyond that. He submitted that (a) annexures A to C were simply copies of accounts adduced in evidence before the registrar, updated to correct errors conceded by the fourth appellant at the hearing; (b) the extracts of transcript (annexures D to H) were part of the court record of the hearing before the registrar; and (c) annexure I, as transcript of prior hearings at trial and in the Court of Appeal, was admissible under O 36 r 9 of the Rules of the Supreme Court.
30 We were informed that annexures A - C had also been included in the document which set out the matters conceded by the fourth appellant, pursuant to par 1 of the registrar's order of 26 May 2016. The point of annexing them to the schedule of evidence was not explained, but they were not evidence of the nature contemplated by par 2 of the registrar's orders.
31 Nor is it apparent what purpose was intended to be served by annexing the extracts of transcript of the hearing before the registrar by way of annexures D to H, particularly as what was provided was not certified transcript. Whether, so far as they went, the annexures were an accurate record of the proceedings could only be ascertained by a careful comparison with the certified transcript. Annexure I was plainly not evidence adduced before the registrar and its inclusion was contrary to the registrar's order.
32 As the schedule of evidence did not comply with the registrar's order it was properly not accepted for filing.
33 Turning to the written submissions required to be filed by the fourth appellant pursuant to par 5 of the registrar's order, the fourth appellant contended that his submissions should not have been rejected in light of what he alleged was scandalous material contained in the submissions the respondents had filed.
34 That contention is misconceived. It is not an answer for a party seeking to file a document containing scandalous material to say that a document filed by the other side also contains scandalous material. The fact, if it be the fact, that there is scandalous material in the respondents' submissions is not a licence for the fourth appellant to include scandalous material in his. There is not some rule of 'tit-for-tat' that applies in such cases. The appropriate course is to bring an application to have the scandalous material in the other side's document or the whole document (as the case may require) struck out.
35 The fourth appellant also contended in support of grounds 1.3 and 1.5 of his grounds for review that if the submissions were to be rejected on the basis that they contained irrelevant and scandalous material it was necessary for the court to identify the material that was said to be irrelevant or scandalous. That is not the case. The obligation is on the filing party to ensure that the document sought to be filed does not contain such material. When declining to accept a document for filing on that ground, it may often be desirable that the registrar identify the particular portions that are objectionable, or examples of them, but there is no obligation to do so. Much will depend upon the circumstances, and the nature and content of the document. By the same token, there is no obligation to give reasons for the decision.
36 The assertion that in refusing to accept the fourth appellant's submissions for filing the registrar simply acted at the behest of the respondents' solicitors, in response to their complaint, is without any proper basis and misconceives the role and function of the registrar. It is not evident whether the registrar was independently aware of the existence of irrelevant and scandalous material in the fourth appellant's submissions or whether it was brought to her attention by the letter from the respondents' solicitors. It does not matter. Once it came to her attention, it was incumbent upon the registrar to consider whether the document should be rejected for filing.
37 There is no doubt that the fourth appellant's submissions contained scandalous material that was irrelevant. As we have said, it was not incumbent upon the registrar to go through the 99-page document to identify each instance or to provide examples of the various forms in which such material appeared. Nor is it incumbent upon this court to do so on this application. However, pars 1, 2, 14, 15, 26, 27, 28, 32, 33, 44, 46, 76, 77 and 78 plainly contain scandalous material which was irrelevant. It is not appropriate to reproduce that material. As the submissions, in respect of those paragraphs at least, contained irrelevant, scandalous material, they were properly not accepted for filing.
38 The complaint by the fourth appellant that he was denied procedural fairness begs the question whether a party has a right to be heard by the registrar before the registrar declines to accept a document for filing.
39 As mentioned earlier, r 15 of the Court of Appeal Rules provides, in effect, that a party who is dissatisfied with a decision of a registrar (other than a decision made as a taxing officer) may apply to a single judge to set it aside or vary it. In doing so the judge must consider afresh the matter that was decided by the registrar: r 16.
40 The provision of such a review and the nature of the power to refuse to accept a document for filing are inconsistent with an obligation to afford an opportunity to be heard. Such a refusal is not determinative of the rights of the person affected and the decision whether or not to accept a document for filing is one that of its nature must be made promptly, making a right to be heard at that point impracticable. The clear intention of the Court of Appeal Rules is that the exclusive remedy available to a person who wants to challenge such a decision is the process of review under r 15 by which the matter is considered afresh pursuant to r 16. At the least, such a review cures any failure to provide such an opportunity to be heard by the registrar: see Twist v Randwick Municipal Council (1976) 136 CLR 106, 116 - 117; Marine Hull & Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234, 245 - 246; on appeal, Marine Hull & Liability Insurance Co Ltd v Hurford (1986) 10 FCR 476, 488.
Conclusion
41 The appellants' schedule of evidence and the fourth appellant's submissions were properly not accepted for filing as they did not comply with the registrar's order of 26 May 2016.
42 The application for review of the registrar's decision should be dismissed.
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