Wy Properties Pty Ltd v O3 Capital Pty Ltd
[2015] WASC 268 (S2)
•2 OCTOBER 2015
WY PROPERTIES PTY LTD -v- O3 CAPITAL PTY LTD [2015] WASC 268 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 268 (S2) | |
| Case No: | GDA:6/2014 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 2/10/15 | |
| 25 | Judgment Part: | 1 of 1 | |
| Result: | Respondent to pay all the appellant's costs of the application for leave to appeal and the appeal, including costs associated with the extension of time issue to be taxed | ||
| B | |||
| PDF Version |
| Parties: | WY PROPERTIES PTY LTD O3 CAPITAL PTY LTD |
Catchwords: | Costs Validity of commencement of appeal Non-compliance with rules contended No prejudice alleged Unsuccessful and wasteful argument Applicant entitled to costs of issue |
Legislation: | Rules of the Supreme Court 1971 (WA), O 65 r 1, O 65 r 2, O 65 r 10 State Administrative Tribunal Act 2004 (WA), s 105 |
Case References: | Wy Properties Pty Ltd v O3 Capital Pty Ltd [2015] WASC 268 (S) |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
O3 CAPITAL PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : MR T CAREY (MEMBER)
Citation : WY PROPERTIES PTY LTD and O3 CAPITAL PTY LTD [2014] WASAT 69
File No : CC 558 of 2013
Catchwords:
Costs - Validity of commencement of appeal - Non-compliance with rules contended - No prejudice alleged - Unsuccessful and wasteful argument - Applicant entitled to costs of issue
Legislation:
Rules of the Supreme Court 1971 (WA), O 65 r 1, O 65 r 2, O 65 r 10
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Respondent to pay all the appellant's costs of the application for leave to appeal and the appeal, including costs associated with the extension of time issue to be taxed
Category: B
Representation:
Counsel:
Appellant : No appearance (on the papers)
Respondent : No appearance (on the papers)
Solicitors:
Appellant : Mills Oakley Lawyers
Respondent : Solomon Brothers
Case(s) referred to in judgment(s):
Wy Properties Pty Ltd v O3 Capital Pty Ltd [2015] WASC 268 (S)
1 KENNETH MARTIN J: Following the primary reasons which I delivered indicating that I would grant the application for leave to appeal and allow the appeal on 24 July 2015, I received written submissions from the parties concerning appropriate orders implementing those reasons. Consequently, the following orders issued on 7 August 2015, namely:
1. The appellant be granted leave to appeal against the Order made by Member Carey of the State Administrative Tribunal in matter CC 558 of 2013 on 11 June 2014 ('Order').
2. Paragraph 1 of the Order be set aside and in lieu thereof the respondent is to pay the appellant $191,734.34.
3. The respondent is to pay the appellant's costs of the appeal (save for the costs of the plaintiff's [sic] application for an extension of time dealt with under order 4 below), to be taxed, if not agreed.
4. The unresolved and disputed residual issues as to:
(a) the appellant's claim for interest at 6% from 3 July 2012 until payment of the amount of $191,734.34; and
(b) the parties' respective claims for costs as against each other, relating to the plaintiff's application for an extension of time
are reserved, to be dealt with on the papers by an exchange of written submissions from the parties (not to exceed five pages) along with the allied issue as to whether or not the appellant had required and needs to be granted an extension of time to pursue this appeal.
5. The proper officer of the Supreme Court of Western Australia pay the appellant the sum of $12,500, being the amount of security paid into court by the appellant pursuant to the Order of the Honourable Justice Corboy dated 12 November 2014.
6. There is liberty to apply.
7. As to the issues identified in order 4:
(a) the appellant lodge submissions (not to exceed 5 pages) by 14 August 2015;
(b) the respondent lodge submissions (not to exceed 5 pages) by 21 August 2015; and
(c) any submissions in reply (not to exceed 3 pages) be lodged by the appellant by 28 August 2015.
3 These reasons concern the reserved issue 4(b), determining the parties' respective claims against each other for costs, as regards an application for an extension of time.
4 I am also dealing with, in that context of mutual claims for legal costs around that issue, the question of whether an extension of time was ever strictly required in order to pursue the appeal. Ultimately, I conclude that it was not, although I would have been happy to extend time had that been necessary. This legalistically overblown issue as to a need for an extension of time, however, measured against the short legal point which underlay the merits of an appeal, was always unnecessarily diverting, wasteful of client costs, and should never have been raised, in my view. Overall, it can be seen to be 'not worth the candle'.
5 As has been seen, a hearing proceeded before me on 27 May 2015. Prior to that point, the parties had exchanged written submissions concerning their respective cases. A significant component of that material had sought to engage against the issue of whether or not the applicant had validly commenced in this court, the appeal proceeding to challenge the underlying decision of the State Administrative Tribunal ('SAT').
6 Drilling down into that disputation, the parties appeared to be significantly at odds over whether or not there had been a timely compliance by the applicant with RSC O 65 r 10(1). That rule of court, relevantly, provides that in order to commence an appeal within time, or to apply for an extension of time within which to commence an appeal, an appellant must file all the materials as are identified under O 65 r 10(1)(c), (d), (e), (f) and (g). Those subparagraphs of r 10(1) are seen to be constructed on a conjoint basis. Hence, the requirements for materials specified in all subparagraphs must be met where that is required.
7 A significant part of the early disputation focussed upon subpar (f), which requires the filing of 'a copy of the primary court's transcript'. Here the underlying court (albeit, strictly speaking, a tribunal) is the State Administrative Tribunal.
8 What occurred here, in essence, was that just as the specified 28-day application period for a commencement of an application for leave to appeal against the decision of the SAT was about to expire, the applicant's solicitors found themselves in something of a filing dilemma. At that time, they did not have, and were unlikely to have, in order to meet the 28-day filing deadline, an official Auscript typed transcript of the SAT proceedings held before Member Carey - and whose decision of 11 June 2014 it was intended to challenge by seeking leave to appeal in accordance with the path prescribed under s 105 of the State Administrative Tribunal Act 2004 (WA) ('SAT Act').
9 However, the solicitors for the applicant had previously applied for and obtained a CD containing an electronic audio recording of the SAT proceedings.
10 In order to meet what they perceived was the last day of a filing deadline, the applicant's solicitors resolved to utilise their internal typing and transcribing facilities to listen to and transcribe the audio CD and so to internally prepare a typed up transcript of the hearing before Member Carey. In short, the transcribing exercise was, out of perceived filing time limit necessity, privatised, as a function that was performed by the applicant's own lawyers.
11 The privatised transcript was filed and served with the other materials, on time. But then, the respondent's lawyers objected to what had occurred. They now insisted upon a provision of a transcript provided through the resources of SAT. Why they did that is never explained. But they were contemporaneously contending, in effect, that even if an official typed-up transcript was provided via SAT, this would be too late to meet the 28-day filing deadline for all the materials required under O 65 r 10(1)(c) through (g), so that the appeal, in such circumstances, would require an extension of time. Absent any extension of time, they contended the appeal had been invalidly commenced.
12 The applicant's solicitors at the time took issue with that interpretation of O 65 r 10(1). But later on, as the appeal hearing approached, effectively out of an abundance of caution, they refiled a great deal of further materials, now seeking an extension of time, if that were necessary, in order to challenge the decision of Member Carey.
13 Within that context of technicality having nothing to do with the ultimate merits of an appeal issue, a further potential problem now seemed to emerge.
14 It would seem that the applicant's solicitors did not file with the court any copy of Member Carey's reasons within the 28-day filing period. At the time they perhaps thought this unnecessary, as will be seen, given that those reasons were publicly available, including over the internet. But the respondent's solicitors appear to have taken this point as well, contending that the reasons would fall under O 65 r 10(1)(g) as 'a copy of every other record that the court will need to decide the appeal'. Plainly, Member Carey's reasons were needed by this court in order to resolve not only an appeal but also the application for leave to appeal, which was also the first hurdle which the applicant needed to surmount. This was because, if leave to appeal could not first be obtained, then there would never be an appeal.
15 I should say that, at points in time well prior to the hearing before me on 27 May 2015, the applicant's lawyers had taken remedial steps to file with this court both an official SAT typed transcript prepared via Auscript, and a copy of Member Carey's reasons. This is apparent from the chronological catalogue of events which I will incorporate into these reasons in due course. I have included them under a subheading of these reasons, 'A Catalogue of Wasteful Events', for all to see and lament, as I do.
16 I should also observe that at no point before me has any substantive distinction as between the content of the privatised transcript and the eventually supplied official transcript, both of which came to be held by the court, ever been pointed to. I made that very inquiry at the hearing: see ts 6. In other words, no aspect of forensic prejudice, from the respondent's perspective, could be or has ever been pointed to, as regards what occurred within the applicant's lawyers' attempts to comply with O 65 r 10(1)(f).
17 By the time the matter came on for hearing before me, I was concerned about an unnecessary and wasteful diversion of resources, no doubt at considerable cost to the respective clients, over what I then perceived and still perceive to be highly technical and unnecessary objections, having nothing at all to do with the underlying merits of points of law sought to be raised against the underlying decision. I dealt with that issue in my primary reasons under par 2, where I said:
To the extent that it is necessary, the appellant also applies for an extension of time to bring the appeal. That issue arises in somewhat trivial and unnecessarily diverting circumstances concerning the unavailability of an official transcript of proceedings before the Tribunal in order to meet the requirements of O 65 r 10(1)(f) of the Rules of the Supreme Court 1971 (WA) (RSC) and the provision of an 'unauthorised' transcript by the appellant endeavouring to meet its appeal filing deadline. The official transcript emerged and was filed later. During the course of the hearing I indicated that, to the extent an extension of time was required in order to file the appeal and advance the appellant's grounds, that I would grant an extension of time in order to allow the true issue to be confronted (see ts 14).
18 For the purposes of what has now degenerated further, into a fight over costs on this extension of time issue, I need to elaborate upon the position, in the context of what I said at the time, extempore, under the transcript at pages 12 to 15. In short, I was drawing a distinction between distinct issues. The first issue was the question of the applicant's need to obtain leave to appeal. The second issue was, assuming leave was obtained and granted, the substantive determination of the appeal.
19 To try and divert attention from these wasteful technical points, still having no bearing upon a short loss and damage point at the heart of the appeal, I indicated to the parties that the technical objections raised by the respondent as to non-compliance with O 65 r 10(1)(f) and (g) might be circumvented, in effect, by taking a view that an application for leave to appeal had been validly commenced on time, on the basis that the accompanying requirements under subpars (f) and (g) might be viewed as technically not actually required in present circumstances, until an appeal was actually commenced, if that ever came to pass. Since an appeal here could only be commenced by reference to the provisions of s 105 of the SAT Act upon a grant of leave, it seemed to me that all the technical argument and consequential waste might be avoided, taking that technical view of the technical objections raised (given that I had, by then, assessed possible merit in the essential underlying damages arguments and that all the materials required under subrules 10(1)(f) and (g) had now undoubtedly been filed with the court). Hence, technical issues of non-compliance could have been avoided and the parties and the court thereby enabled to actually get on with and determine what was in truth a short underlying point at the heart of the challenge against Member Carey's reasons: whether or not there was loss and damage by reason of the rent payments received by the respondents. At the time I said:
KENNETH MARTIN J: What I propose to do is deal with the question of leave to appeal, which is required under section 105 of this Act. In my assessment, the question of leave, first of all, hangs on identifying an error of law, in contrast to an error of fact or a mixed error of law and fact, and then some arguable merit on that question of law. That's the substantive concern in terms of the grant of leave to appeal.
GOUGH, MR: Certainly.
KENNETH MARTIN J: In terms of the issue that's now raised in terms of the argument about non-compliance with order 65, rule 10 as regards (a) the transcript - official transcript of the proceedings before SAT not being lodged until after the 28-day appeal period, it seems to me that Mr Solomon has accepted, as he inevitably must, that there's no real prejudice to him in that point. He says that the rules require a certain compliance with the time limits, and he's entitled to take that point.
I'm more interested in the substantive merits and demerits of (a) the application for leave and (b), if leave is given, then the merits of an appeal, which seem to me to fall within a relatively short compass bearing in mind the reasons for decision. I haven't forgotten, lest it be thought, that there was another issue of non-compliance in regard to not lodging Member Carey's reasons within that 28-day period - although both sides had them by then - in order to comply with order 65, rule (1), subrule (g) on the basis that it's part of the record that the court will need to decide the appeal.
For myself, lest this become an issue at some later point, my assessment is that the rules can't rewrite the legislation. Section 105 of the SAT Act is the primary source of the statutory jurisdiction to appeal. The rules of Court under order 65, dealing with single judge appeals, are a broad effort to lay down mechanical procedures in order to proceed with appeals under a number of statutes, including, relevantly, an appeal to a single judge - or an application for leave to appeal under the SAT Act.
Now, section 105 makes it very plain that there's no right of appeal against SAT to a single judge. There is only an appeal, according to section 105, subsection (1), if the court gives leave to appeal. And that's even further qualified by section 105, subsection (2), which says that the appeal can only be brought on a question of law. So the scope in order to challenge a decision of SAT is a twofold hurdle: (a) You've got to get leave and (b) you can only get leave on a question of law.
Now, subsections (5) and (6) of section 105 then go on to say that the application for leave to appeal to a single judge of the Supreme Court has to be made in accordance with the rules of court - well, that's hardly a surprise - but, more relevantly, within a period of 28 days (a) after the tribunal's decision is given. That entitlement to apply for leave to appeal can't be cut back by the rules. Then, on the hypothesis that leave is granted, subsection 105, subsection (6) says that:
If leave is granted, the appeal has to be instituted in accordance with the rules of the Supreme Court
That's the second reference the rules of the Supreme Court. And now within a period of 21 days after the day on which leave is granted. So as we stand here today on the - as one counsel stands and another counsel sits and I sit on 27 May, there is no appeal. There won't be an appeal unless I give leave on a question of law. And if I did, then that appeal would need to be instituted in accordance with the rules of court within 21 days.
Now, as a matter of convenience, Corboy J has made orders indicating that this whole application can be dealt with at one hearing. Subsumed into that order made for convenience is the assumption that it's convenient to deal with the questions of leave and then the substantive merits of an appeal, if we get that far. Sometimes that's appropriate; sometimes it isn't. But my view would be that, strictly speaking, rule 10 deals with the commencing of an appeal, and we are dealing with a somewhat distinct situation of the commencing of an application for leave to appeal.
Now, the matter is muddied by reason of the fact that form 83, under the court's rules, rule 10, subrule (1)(c), is the form that you would file, as envisaged under rule 10, to actually commence an appeal. That's then qualified subsequently by rule 10, subrule (5) that says:
If an appellant requires leave to appeal -
which this appellant does, and, further, it has got to be an appeal on a question of law, then a form 83 has to be filed in accordance with the rules and is to be taken to be the application for leave to appeal. As it is, the original box on the form 83 that was filed commencing the application for leave to appeal is GDA6 of 2014 - actually ticks the box indicating that leave to appeal was required. The failure to lodge Member Carey's reasons within the 28-day period for commencing the application for leave to appeal and the failure to file the official transcript provided by SAT within that 28-day window seem to me to be relevant to commencing an appeal, which is what rule 10 says.
So it would seem to me that the challenge in terms of the appeal being wrongly commenced or improperly commenced by the absence of these documents on time is not - it would be a proper challenge in a circumstance where there was a commencement of an appeal per se. But as I've, I hope by now, indicated, what we're dealing with is an application for leave to appeal.
Now, if I'm wrong about that and if the reading of the rules together is such that it's thought that the requirement under 65, rule 10, subrule (5) means that all the other material needed to be filed with the application for leave to appeal, which is not my preferred reading of that rule, but if it is, then I would grant an extension of time in order to extend time to yesterday for the making of an application to extend time in respect of the absence of the two documents, namely, the transcript - the official transcript, and the filing of Member Carey's reasons for decision. It seems to me that no prejudice is contended for. And as regards the transcript, the applicant made a bona fide effort to meet the rule requiring the transcript, if that was required, in circumstances where there was no possibility of having the transcript available by the 28th day.
I don't need to descend into the rights and wrongs of whether effort should have been made to get it beforehand. The die is cast in relation to those facts. It seems to me that it's unprofitable. It doesn't serve the interests of justice to explore the rights and wrongs of that. If a party has got a right to make an application for leave to appeal, then it should be afforded that right to proceed with it and have its case evaluated on the merits or demerits accordingly. The extent, therefore, that I need to extend time in order to bring this application for leave to appeal, then I would do just that as of now. All right. So having got that off the table, Mr Gough, can we now - - -
GOUGH, MR: Progress on - - -
KENNETH MARTIN J: - - - deal with the question of the application for leave to appeal on a question of law?
20 Clearly, as things have turned out, my efforts to try to take the extension of time issue off the table to attempt to get on with the underlying merits of the challenge, have all been in vain. Like a 'bad penny', the extension of time issue has come back after a substantive determination of the appeal in favour of the applicant, in circumstances where the applicant seeks all its costs of the appeal, including its eleventh-hour application for an extension of time, but the respondents take issue with that.
21 To that desultory end, I have now received the further written submissions following judgment by the applicant of 21 August 2015, responded to by the respondents' submissions of 4 September 2015. There is then a further short submission entitled 'Appellant's Responsive Submissions of 7 September 2015'. Underlying those 7 September 2015 submissions is a base proposition that I had concluded that an extension of time was not required as regards the primary court's transcript under r 10(1)(g) and the reasons of Member Carey by reference to O 65 r 10(1)(g). That observation is correctly made. I would repeat, however, that, in all the circumstances, were an extension required in order to legitimise what has occurred, that I would confirm my decision that the underlying circumstances do warrant such an extension.
22 I will now address below how it is that here, I can reach a position that the respondent's two technical filing objections did not strictly arise, in circumstances where, by reason of the paramount effect over the rules of s 105 of the SAT Act, this court was initially dealing with an application for leave to appeal, rather than the appeal itself. Significant to that evaluation is the fact that the SAT Act, under s 105(5) allows a period of 28 days within which to bring an application for leave to appeal and then, if leave is obtained, a further period of 21 days to bring an appeal.
23 By s 105(6) of the SAT Act, where leave is granted, there is a further period of 21 days after the day upon which leave is granted for the appeal 'to be instituted'. At that time, within the further 21 days, the appeal is then instituted in accordance with the rules of this court.
24 In order for those conclusions to be understood, it is regrettably necessary that I consider in greater detail the interaction between the statutory provisions enabling appeals against the decisions of SAT under s 105 of the SAT Act. After that, I need to consider and contrast the interrelationship of s 105 with the provisions of the rules of this court, particularly Order 65, which deals with single judge appeals generally, not just with appeals against decisions of SAT, or its members. I proceed then to consider all those provisions.
The appeal path
25 A party has a statutory right of appeal, subject to leave, against a decision of SAT by section 105(1) of the SAT Act. That provision provides:
105. Appeal from Tribunal's decision
(1) A party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
26 I am presently concerned with s 105(3)(b) of the SAT Act. Where a SAT decision was not made by a judicial member or a panel including a judicial member, an appeal (by leave) lies to the Supreme Court, not the Court of Appeal under s 105(3)(a):
(3) The appeal lies to -
(a) the Court of Appeal, if the decision was made by -
(i) a judicial member; or
(ii) the Tribunal constituted by members who include a judicial member;
(b) the Supreme Court exercising its other jurisdiction, in any other case.
28 The text of s 105(3)(b) displays reference to what is commonly understood as an appeal taken to the general division of this court. A single judge of the general division determines such an appeal - see s 41(1) of the Supreme Court Act 1935 (WA):
41. Single judge to preside unless Court of Appeal to do so
(1) All causes and matters within the jurisdiction of the Court which are not required by this Act or the rules of court, or by any statute in force in this State, to be heard and determined by the Court of Appeal shall be heard, determined and disposed of by a single judge in accordance with the provisions of this Act and the rules of court.
29 Section 105 of the SAT Act imposes two key time limits for an appeal from SAT. Subsection (5) provides for a 28-day time limit in relation to the making of an application for leave to appeal. It also mandates compliance with the rules of procedure of this court: see s 105(5), which says:
(5) An application for leave to appeal has to be made in accordance with the rules of the Supreme Court and within the period of 28 days after -
(a) the day on which the Tribunal's decision is given; or
(b) if the Tribunal gives its decision without giving written reasons for its decision and the party then requests it to give written reasons under section 78, the day on which the written reasons are given to the party.
(6) If leave is granted, the appeal has to be instituted in accordance with the rules of the Supreme Court and within the period of 21 days after the day on which leave is granted.
31 This court by s 105(7) of the SAT Act is afforded an express power to extend both the 28 or 21-day time limits, if required, under s 105(7):
(7) The court to which the appeal lies may extend a time limit fixed by this section, and the extension may be given even though the time limit has passed.
- This court, by its Act, rules and its inherent jurisdiction as a superior court of record, is always empowered to remedy any defects in compliance with its rules, as mandated under s 105(5) and (6) in relation to applications for leave to appeal or concerning appeals.
32 The present post-appeal disputation over costs necessitates an examination of the nature of and enabling power for the rules of this court. Section 21(3) of the Supreme Court Act provides:
21. Jurisdiction to be exercised according to this Act and rules of court
(3) Any jurisdiction, whether original or appellate, which is conferred on or vested in the Court, or any one or more of the judges thereof sitting in court or chambers, or elsewhere when acting as judges, or a judge, after the commencement of this Act (whether by statute or otherwise), shall (except as otherwise provided by any such statute) be exercised (so far as regards procedure and practice) in the manner provided by this Act and the rules of court; or if no provision, or no appropriate provision, as to the exercise of any such jurisdiction is contained in this Act or in the rules of court, then such jurisdiction shall be exercised in such form, mode, and manner as the Court or a judge may from time to time direct.
33 Part X of the Supreme Court Act deals with the rules of this court in greater detail. Relevantly, s 167 provides:
167. Rules of court, content of
(1) Rules of court may be made under this Act, by the judges of the Supreme Court, for the following purposes -
(a) for regulating and prescribing the procedure (including the method of pleading) and the practice to be followed in the Supreme Court in all causes and matters whatsoever in or with respect to which the Court has for the time being jurisdiction (including the procedure and practice to be followed in the offices of the Supreme Court), and any matters incidental to or relating to any such procedure or practice, including (but without prejudice to the generality of the foregoing provision) the manner in which, and the time within which, any applications or appeals which under this or any other Act are to be made to the Court shall be made;
(b)-(r) [limited relevance for present purposes]
35 The underlying purpose of the rules of the court, in broad terms, is the efficient and effective management of the day to day business of the court.
36 The rules of court prescribe a number of matters in relation to appeals sought to be taken to the general division, via O 65. Certain terms are defined in O 65 r 1. Relevantly, for present purposes, I mention:
1 Terms used
In this Order, unless the contrary intention appears -
appeal means an appeal or application to which this Order applies;
appeal notice means a notice in the form of Form No 83;
primary court, in relation to an appeal, means the court, tribunal, body or person that made the decision being appealed;
primary court's transcript means -
(a) the transcript of the proceedings in the primary court; or
(b) if there is no electronic recording of the proceedings that can be transcribed -
(i) the notes made by the judicial officer who presided at the proceedings; and
(ii) one or more affidavits of people who were present at the proceedings about what happened in the proceedings.
2 Application of this Order
(1) This Order applies to any appeal, or application for leave to appeal, that may be made to the General Division of the Court, other than an appeal under the Criminal Appeals Act 2004 Part 2.
(2) In respect of an appeal, or application for leave to appeal, to which this Order applies, this Order is subject to the written law under which the appeal or application is made.
- The effect of O 65 r 2(2) is that, while O 65 procedurally governs the taking into this court of an application or leave to appeal and any ensuing appeal, this is made subject to the 'written law', by which the application for leave or the appeal itself is made. Thus the rules of court by O 65 r 2(2) are expressly subject, here, as would only be expected, to the SAT Act in relation to the right of appeal.
38 A use of the terminology 'appeal, or application for leave to appeal' under O 65 r 2, grates in rule 2 with the definition of 'appeal', which includes an 'application to which [O 65] applies'. This suggests that the general term 'appeal', used in the O 65 r 1 definition, may be intended to encompass any of the wide range of appeals and applications which may be brought before a single judge of this court, courtesy of a variety of miscellaneous statutory appeal paths, but not the application for leave to appeal under one of those appeals or applications. In the event of ambiguity, and having regard to subpar (2), it would seem to be desirable to prefer an interpretation that preserves a right of appeal under a source statute.
39 The procedural rules of this court prescribe procedural requirements. But they cannot and do not seek to derogate from a conferred appeal right (even a right that is made the subject of a need to obtain leave) that is legislatively conferred in clear terms upon a citizen.
40 As an illustration, I note O 65 r 9, which provides:
9 Time for appealing
An appeal against a decision must be commenced within 21 days after the date of the decision. [emphasis added]
- But it could not be suggested that an applicant filing an application seeking leave to appeal (and expressing the intention to institute an appeal at the same time, by way of Form 83, as will be seen), who files their application outside of the 21-day period prescribed by O 65 r 9, but nevertheless within the 28 days, as is provided by s 105(5) of the SAT Act - has lost their right to appeal. That is so notwithstanding that O 65 r 9 otherwise reads in mandatory terms.
41 Another distinction should also be observed here concerning s 105(5) of the SAT Act. This provision, as already seen, mandates compliance with the rules of this court and refers to the making of an application for leave to appeal. However, O 65 r 9 refers to the appeal itself (subject to the proper interpretation of the definition of 'appeal' in O 65 r 1, as earlier discussed). Something of a disconnect is seen to arise, as between the generically specified procedure prescribed by the court rules, and the SAT-specific appeal procedure as is envisaged by s 105. This is not at all unusual. But when it manifests, clearly the legislation prevails over a general procedural rule, as indeed O 65 r 2(2) has earlier acknowledged.
42 As I have explained, the key rule, around which this wholly unnecessary and wasteful dispute arises, mostly over a privately prepared transcript of proceedings before SAT submitted to meet a filing deadline (and live only in the context of opposed claims for legal costs), is O 65 r 10. It provides:
10 Appeal, how to commence
(1) To -
(a) commence an appeal within time; or
(b) apply for an extension of time within which to commence an appeal,
the appellant must file—
(c) a Form No 83 (Appeal notice) that sets out the grounds for the appeal in accordance with subrule (2); and
(d) any document required by subrule (3) or (4); and
(e) a copy of the relevant records filed with the primary court in respect of the case in which the decision being appealed was made; and
(f) a copy of the primary court's transcript; and
(g) a copy of every other record that the Court will need to decide the appeal. [emphasis added]
(2) The grounds of appeal must not merely allege -
(a) that the primary court erred in fact or in law; or
(b) that the primary court's decision is against the evidence or the weight of evidence or is unreasonable and cannot be supported having regard to the evidence; or
(c) that the primary court's decision is unsafe or unsatisfactory.
(3) If the Form No 83 says that an extension of time within which to commence the appeal is needed, the form must be filed with an affidavit by the applicant or the applicant's lawyer or both explaining why the appeal was not commenced within time.
(4) A Form No 83 may be filed together with an application, made in accordance with rule 13, for an interim order.
(5) If an appellant requires leave to appeal, a Form No 83 filed in accordance with this rule is to be taken to be an application for leave to appeal.
(6) Any document filed under this rule must be served on the respondent.
(7) As soon as practicable after serving the respondent the appellant must file a Form No 84 (Service certificate).
- Some clear and uncontroversial requirements are seen prescribed by O 65 r 10(1).
43 Under O 65 r 10(1)(a) and (b), these requirements apply to the commencement of an appeal or an application for an extension of time in which to commence an appeal. Read literally, they would not seem to apply to an application for leave to appeal (with the distinct character of an application for leave being clearly recognised, at least literally, under the rule, as is seen by subpar (5)).
44 The discussion above as to the text of O 65 r 2(2) and the extended definition of 'appeal' under O 65 r 1 is also relevant.
45 Order 65 r 10(5) provides for the applicant for leave to appeal to file a single appeal notice document (Form 83), which will be taken to embrace a seeking of leave and will serve, in effect, as the appeal notice, on the assumption that leave to appeal is granted.
46 It is a common management practice of this court, whilst exercising jurisdiction over a diverse array of single judge appeals taken to the general division, that an application for leave to appeal and any actual ensuing appeal are directed to be heard, in effect, together at one single argued appearance before a judge. This is, essentially, an efficiency direction and practice of convenience. That was the direction made for the hearing here, albeit two distinct hearing phases were to be addressed in the process, for the leave application and, assuming merit on a point of law was demonstrated, of an appeal itself.
47 A joint hearing of the application for leave and the appeal is the usual, but by no means the inevitable, course. In a proper case the leave application could be determined separately - if as, for instance, it were clear that the foreshadowed appeal grounds were so lacking in merit as to render an appeal a complete waste of time and resources.
48 But the present application was dealt with in the more typical fashion of a joint hearing of the leave application and an appeal.
49 Prior to the joint hearing, the matter had been the subject of case management directions before me in the period leading up to the actual hearing.
50 In some contrast, the text of s 105 of the SAT Act, objectively read, suggests an expectation by Parliament that the application for leave to appeal be brought within 28 days, and then, if leave were to be granted, that an appeal then be instituted within 21 days. (The text - especially s 105(6) - does not suggest an appeal cannot be instituted under a document which itself predates the granting of leave to appeal; it simply imposes a 21-day further time limit which does not begin running until the grant of leave is obtained.)
51 Finally, there is this court's Form No. 83, as referenced under O 65 r 10(1)(c) (and in the definition of 'appeal notice' in O 65 r 1) above. The form is found in Sch 2 of the Rules of the Supreme Court, headed 'Supreme Court of Western Australia/General Division' and 'Appeal notice'. A row within this form reads as follows:
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52 The election at this row of the form gives effect to an option afforded by O 65 r 10(5), by which the application for leave to appeal and the appeal may be brought using a single document, in the form of Form 83.
53 Interpreting and then seeking to apply all these provisions in a sensible and coherent way, as they must be, my assessment, as a matter of strict application, was that all the applicants had done on 9 July 2014 was to commence an application for leave to appeal, which the Form 83 appeal notice filed at that time was taken to be, applying O 65 r 10(5). Hence, technical objections raised against the absence at that time of an official transcript and of the reasons of the SAT member (which had been later addressed by their subsequent provision, respectively, by 4 August 2014, as regards the official typed transcript, and on 28 July 2014, as regards Member Carey's reasons), were not to the point then, as regards what was substantively at 9 July 2014, only then an application for leave to appeal.
54 Sadly, it is necessary in the context of an ongoing stance of opposition articulated by the respondents' lawyers, now in the context of disputing the ultimately successful applicant's claim to recover the taxed costs (not indemnity costs) of the leave application and appeal, to retraverse over what will be seen as a wasteful, diverting and unnecessary catalogue of events.
A Catalogue of Wasteful Events
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(ie, 28 days after decision delivered by SAT) |
A copy of Member Carey's reasons for decision of 11 June 2014 was not included with this document. A solicitor for the applicant, Mr Logan, noted in an affidavit filed on 26 May 2015 that he could not recall why the reasons were omitted, but suggested he may have assumed it would be part of the records provided by the primary court under O 65 r 11, or was unnecessary being a publicly available document. |
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Solomon Brothers express the view that 'no appeal against the [decision of SAT] has yet been commenced', referring to the requirement under O 65 r 10(1)(f) that a 'copy of the primary court's transcript' (which is a term defined in O 65 r 1). They contend that this requirement has not been satisfied. A similar argument is made in relation to the omission of the written reasons of Member Carey from the documents filed with the Supreme Court, based on O 65 r 10(1)(e) and (g) ('a copy of every other record that the [Supreme Court] will need to decide the appeal'). Solomon Brothers conclude with a note that if the applicant 'persists with Supreme Court proceeding GDA 6 of 2014, we anticipate receiving instructions to seek orders dismissing the appeal for being invalidly commenced and awarding costs to our client'. (This letter, as well as others below from 11 to 29 July 2015, is annexed to an affidavit of Ms J E Greenacre filed with the court on 9 December 2014.) |
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' … the respondent intends to object to any oral application for an extension of time within which to commence the appeal made at the final hearing of the appeal on grounds that, firstly, the Associate’s email was sent without us being heard about the matter and is therefore not enunciation of a final decision and, secondly, that such an application will be incompetent because Order 65 rules 10(1) and (3) prescribe the only way in which an extension of time to appeal may be sought. As stated in our first letter to Minter Ellison asserting that the appeal has not been commenced within time, dated 11 July 2014, to apply for an extension of time, the appellant must comply with Order 65 rule 10(3) because of rules 10(1)(b) and (d).' |
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This document is completed with essentially the same details as the appeal notice document filed on 9 July 2014, but this time the question of 'Is an extension of time needed?' is answered in the affirmative. Attached to this new document is the transcript of the SAT hearings, the reasons of Member Carey, the parties' application/contentions and responses before SAT and a copy of the abovementioned affidavit of 26 May 2015 apparently in support of the application for an extension of time. |
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55 I have been forced to confront these events again, in the context of dealing with the respondent's opposition to the applicant receiving all of its taxed costs of the appeal.
56 At the end of the day, my assessment is that the applicant should have all of its taxed costs of the appeal, including costs which it was forced to outlay in addressing what I consider to be diverting and unnecessary technical objections. These objections had nothing to do with the merits or demerits of the underlying appeal point concerning pecuniary loss and damage upon which the applicant succeeded. Not one iota of prejudice was ever suggested as having been suffered by the respondent arising out of these technical objection points. In the second decade of the 21st century, niggling, diverting and wasteful arguments such as have been raised here, present as something of a rarity. Modern litigation, including appeals, needs to be conducted sensibly and with a proper perspective. The court's expectations were not met here by the conduct of the respondent's solicitors in raising and doggedly persisting with pointless and wasteful objections.
57 The catalogue of the events surrounding the taking of these technical points makes for embarrassing reading. I have been forced to rake over them again in the context of determining costs issues. Once was bad enough. The events speak for themselves. They are set out at length, essentially as a case study example showing petty conduct which is not acceptable to the court and which should effectively be seen as an ancient, discredited phenomenon. The conduct concerned should be studied from a perspective of how not to behave in future.
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