Young v Roads and Maritime Services (No 3)

[2018] NSWCA 106

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Young v Roads and Maritime Services (No 3) [2018] NSWCA 106
Hearing dates:	3 May 2018
Decision date:	21 May 2018
Before:	McColl JA at [1]; Barrett AJA at [88]
Decision:	Application for leave to appeal dismissed with costs
Catchwords:	APPEAL – application for leave to appeal – interlocutory applications – re-agitating interlocutory application – no change of circumstances or new evidence   CIVIL PROCEDURE – application for leave to appeal – whether denial of procedural fairness or bias
Legislation Cited:	Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170; [1981] HCA 39 Bajramovic v Calubaquib [2015] NSWCA 139; (2015) 71 MVR 15 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 Hall v The Nominal Defendant (1966) 117 CLR 423; [1966] HCA 36 House v The King (1936) 55 CLR 499; [1936] HCA 40 Liu v The Age Company Limited (2016) 92 NSWLR 679; [2016] NSWCA 115 Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 Re Luck [2003] HCA 70; 78 ALJR 177 Young v Roads & Maritime Services [2015] NSWSC 918 Young v Roads and Maritime Services (No 2) [2015] NSWSC 1944 Young v Roads and Maritime Services [2016] NSWCA 238 Young v Roads and Maritime Services (No 3) [2016] NSWSC 491 Young v Roads and Maritime Services [2018] NSWCA 32 Young v Roads and Maritime Services (No 2) [2018] NSWCA 91
Category:	Principal judgment
Parties:	Maureen Mary Young (Applicant) Roads and Maritime Services (First Respondent) State of New South Wales (Second Respondent)
Representation:	Counsel: In Person (Applicant) P Lane (First and Second Respondents) Solicitors: In Person (Applicant) Crown Solicitors Office (First and Second Respondents)
File Number(s):	2017/384578
Publication restriction:	No
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: N/A Date of Decision: 15 December 2017 Before: Latham J File Number(s): 2013/249441

Decisions under appeal

Judgment

1. McCOLL JA: By summons filed on 23 January 2018, the applicant, Maureen Mary Young, seeks leave to appeal pursuant to s 101 of the Supreme Court Act 1970 (NSW) against Latham J’s decision of 15 December 2017 dismissing her notice of motion of 6 December 2017 (2017 motion). [1]

   1.    (Supreme Court (NSW), 15 December 2017, unrep).

2. The effect of the dismissal of the 2017 motion was, first, to dismiss Ms Young’s attempt to obtain default judgment and unliquidated damages against the first and second respondents, the Roads and Maritime Service (RMS) and the State of New South Wales (the State) respectively, pursuant to a notice of motion filed on 5 September 2014 (2014 motion). The 2014 motion had been dismissed by Button J on 22 April 2016,[2] a decision upheld by this Court. [3]

   2. Young v Roads and Maritime Services (No 3) [2016] NSWSC 491 (Young (No 3)).

   3. Young v Roads and Maritime Services [2016] NSWCA 238 (CA decision) per Simpson JA (Beazley ACJ agreeing).

3. Secondly, in dismissing the 2017 motion, Latham J also dismissed Ms Young’s attempt to set aside a default judgment the RMS had obtained against her on 13 November 2017 (2017 default judgment) in the sum of $8661.14, an amount the RMS asserted she owed by way of rent pursuant to a lease from the RMS in the circumstances described in greater detail below.

4. For the reasons that follow, I would refuse the application for leave to appeal with costs.

Factual background

5. The proceedings have a lengthy and somewhat complex history which needs to be understood to determine the leave application.

6. Ms Young is the owner and occupier of a houseboat berthed at Pearl Bay near Mosman in Sydney. Previous litigation between Ms Young and the RMS (or its predecessors in title), which commenced in the Supreme Court in 2000, resulted in a Deed of Release dated on 18 September 2009. Ms Young continued to occupy the mooring pursuant to a lease granted by the RMS on 11 May 2012 following the settlement of the litigation. She has not paid rent under that lease since July 2012.

7. In 2013 the RMS commenced proceedings in the Local Court against Ms Young claiming unpaid rent due under the lease, then quantified at $6000 (RMS claim). As far as the papers reveal, Ms Young has been unrepresented throughout the proceedings.

8. On 4 July 2014, Ms Young filed a summons in the Common Law Division of the Supreme Court seeking an order transferring the Local Court proceedings to the Supreme Court (transfer application) and an order that the Local Court proceedings be stayed pending the hearing of the transfer application.

9. On 10 July 2014 Ms Young filed, in the Local Court, an amended defence to the RMS claim and a 96-page cross-claim. The cross-claim named the RMS as first cross-defendant and the State as second cross-defendant.

10. In the CA decision,[4] Simpson JA described the cross-claim as appearing to include serious and complex allegations of misconduct on the part of the RMS and the State. Ms Young claimed damages, compensatory damages, aggravated damages, exemplary damages, interest and costs. [5] In paragraph 98(1)(ii), Ms Young sought an order that “the leases executed by [her] on 14 December 2009 and 11 May 2012 are void and unenforceable.”

    4. At [7].

    5.    The history is taken from the CA decision (at [6] – [7]).

11. On 10 July 2014, the Local Court made an order staying the proceedings pending determination of the transfer application (2014 stay). [6]

    6.    The precise terms of the stay do not appear in any of the documents before the Court.

12. On 5 September 2014, while the transfer application was pending, Ms Young filed the 2014 motion in the transfer proceedings seeking “default judgment for unliquidated damages” against the RMS and the State by reason of their failure to file defences to the cross-claim.

13. The transfer application came before Hidden J on 19 February 2015. It was based on the proposition that the Local Court cross-claim pleaded causes of action sounding in damages, that the damages which might be recovered were well in excess of the jurisdictional limit of the Local Court, and that the cross-claim raised issues of such importance and complexity as to warrant determination by the Supreme Court. The RMS and the State opposed the application on the basis that the cross-claim did not disclose any viable cause of action and was liable to be struck out. Hidden J held that it was not apparent that the cross-claim gave rise to any cause of action. [7] His Honour gave Ms Young leave to re-plead the cross-claim and serve it upon the defendants’ solicitors. [8]

    7. Young v Roads & Maritime Services [2015] NSWSC 918 (at [29]) (Young). In the CA decision at [41], [45], Simpson JA held that Ms Young had not demonstrated any arguable error in Hidden J’s conclusion that the cross-claim was deficient.

    8. Ibid at [31].

14. Button J heard the transfer application on 20 November 2015. On the same day, Ms Young filed an amended cross-claim before his Honour. On 17 December 2015, Button J acceded to the transfer application. [9]

    9. Young v Roads and Maritime Services (No 2) [2015] NSWSC 1944 (Young (No 2)).

15. On 22 February 2016 the RMS and the State filed a notice of motion to strike out Ms Young’s amended defence and amended cross-claim (2016 motion). [10]

    10. CA decision at [57].

16. Button J heard the 2014 motion on 10 March 2016 when he also dealt with the 2016 motion and two other motions filed by Ms Young. Button J ordered that the 2014 motion be dismissed. [11] In so doing, his Honour rejected Ms Young’s submission that, notwithstanding the 2014 stay, it remained incumbent upon the RMS and the State to progress the litigation. In this respect, his Honour said:

“[17] … Contrary to the position of the plaintiff, I consider that, once the proceedings were stayed, it was incumbent upon neither party to take steps within those proceedings; the position was different, of course, with regard to the separate application to have the matter transferred to this Court, which proceeded to hearing in the second part of last year.

[18] In short, I do not accept that RMS was in default by failing to file a defence to the cross-claim in the Local Court during the many months when those proceedings were stayed by court order obtained by its opponent.

[19] It follows that the claim of the plaintiff for default judgment fails at the outset. I repeat: that is because the stay that the plaintiff obtained relieved both parties from taking further forensic steps within those proceedings.” [12]

11. Young (No 3) at [22].

12.    Although his Honour referred only to the RMS, it is apparent from [19] of his reasons that [18] also applied to the State.

17. His Honour acceded to the 2016 motion. His Honour summarised the “causes of action” in Ms Young’s cross-claim, [13] and observed that she was unable to explain their legal or evidential basis. [14] He struck out the amended defence and amended cross-claim holding the latter was “embarrassing due to its incomprehensibility”. [15] His Honour gave Ms Young leave to replead both documents but on terms (orders (5) and (6)) later found by this Court to be arguably beyond power, such that leave to appeal was granted in that limited respect as explained below.

    13.    Young (No 3) at [55] – [59].

    14.    Ibid at [62] – [72].

    15. Young (No 3) at [73].

Court of Appeal decision

18. By amended summons filed in the Court of Appeal on 4 July 2016, Ms Young sought leave to appeal, relevantly, from the dismissal of the 2014 motion and the order striking out her pleadings. [16] The lengthy history of Ms Young’s notices of motion previously filed in the Supreme Court is summarised in the CA decision in terms it is unnecessary to repeat, [17] save to the extent referred to below.

    16.    See CA decision at [2] – [4].

    17.    Ibid at [8] – [34].

19. The grounds identified in Ms Young’s amended draft notice of appeal before the Court of Appeal, focused upon her contention that, notwithstanding the 2014 stay, by failing to file a defence to the cross-claim, the RMS and the State were in default, and default judgment ought to have been entered in her favour, thus entitling her to an immediate assessment of damages. [18]

    18. Ibid at [53]. This reiterated the submission made before Button J: see CA decision at [59].

20. Simpson JA dealt with this submission as follows:

“55   The cross-claim was filed in the Local Court on 10 July 2014 and served on 14 July 2014. However, as I have repeatedly said, on Ms Young’s application, those proceedings were stayed; that is, no defence could be filed to the cross-claim. The orders of the Local Court specifically permitted Ms Young to file an amended defence and cross-claim, but made no such concession in relation to RMS or the State of NSW.”

21. In addition, Simpson JA observed that the 2014 motion was incompetent. [19] This was, apparently, for two reasons. First by reason of the 2014 stay. [20] Secondly, because at the time the 2014 motion was filed, there were no proceedings between the parties in the Supreme Court, the transfer application still being on foot. [21]

    19. Ibid at [59].

    20. Ibid; see also CA decision at [43]; see also Young (No 3) at [14].

    21. Ibid at [56].

22. In the course of the CA decision, Simpson JA noted that once the Local Court proceedings were transferred to the Supreme Court on 17 December 2015, it might be assumed that the 2014 stay no longer operated. As such, the RMS and the State had until 14 January 2016 (28 days after 17 December 2015) to file their defences to the amended cross-claim. [22] While the RMS and the State filed a notice of motion on 22 February 2016 seeking summary dismissal or striking out of the pleadings, including the amended cross-claim, that motion did not operate as a stay of proceedings, so, her Honour opined, it might be arguable that from 14 January 2016 the RMS and the State were in default. [23] Ms Young did not advance any such argument before Button J. Accordingly, his Honour did not deal with such a contention and confined himself to Ms Young’s written and oral submissions. Simpson JA held that there could “be no error in this approach.”[24]

    22. CA decision at [56].

    23. Ibid at [57] – [58].

    24. Ibid at [60] – [61].

23. Insofar as Ms Young challenged the order Button J made striking out the amended defence and amended cross-claim, Simpson JA held that there was no arguable statutory authority for orders (5) and (6), such that it was arguable that they were beyond power. [25]

    25.    CA decision at [64] – [66].

24. Accordingly, the Court gave Ms Young leave to appeal against Button J’s orders (5) and (6), otherwise dismissed Ms Young’s amended summons seeking leave to appeal filed on 4 July 2016 and dismissed an “Urgent Notice of Motion” filed on 1 August 2016. [26]

    26. CA decision at [76].

25. The appeal Ms Young was given leave to pursue against Button J’s orders (5) and (6) was resolved by the making of consent orders allowing the appeal and relevantly setting aside Button J’s orders (5) and (6) (2017 settlement). The consent orders noted that Ms Young intended to apply for special leave to appeal to the High Court “in respect of some or all of the balance of the orders of the Court of Appeal”. The RMS and the State undertook not to seek judgment against Ms Young pending her proposed application for leave to appeal, and not within a period of 28 days after dismissal of that application (2017 undertaking).

Special leave application

26. On 31 July 2017, Ms Young sought leave to appeal to the High Court in respect of that part of the CA decision not the subject of the 2017 settlement. That included her failure to have the dismissal of the 2014 motion and the striking out of her pleadings set aside. The application for special leave was dismissed on 11 October 2017. [27] The 2017 undertaking expired 28 days later, that is on 8 November 2017.

    27. Young v Roads and Maritime Services & Anor [2017] HCASL 243.

27. On 13 November 2017, the RMS obtained the 2017 default judgment.

2017 motion

28. By notice of motion filed on 6 December 2017 (2017 motion), Ms Young sought a number of orders. The 2017 motion also contained material in the nature of submissions. She sought orders pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.15 setting aside Button J’s order dismissing the 2014 motion and his Honour’s order striking out her amended defence and amended cross-claim. The irregularity she appears to have propounded for the purposes of UCPR r 36.15 repeated, to some extent, the argument rejected by Button J (see [16] above). On that basis, she sought once again to contend that by not filing defences to the cross-claim, the RMS and the State failed to “follow the Courts Rules” [sic]. She appeared also to contend that by reason of her submissions, albeit rejected by Button J, default judgments were “entered” in the Local Court, which became effective upon the transfer of those proceedings to the Supreme Court. On that premise, Ms Young contended the 2016 motion was “an abuse of process and an irregularity”. She also sought orders that she be awarded interim damages of $16.6 million pursuant to s 82 of the Civil Procedure Act 2005 (NSW) (CPA). [28]

    28. The fallacy of Ms Young’s reliance upon s 82 as a source of interim damages was exposed in the CA decision at [68] – [72].

29. Secondly, Ms Young sought an order that the 2017 default judgment be set aside and the motion seeking it be dismissed. Thirdly, she sought an order that once Button J’s orders were set aside, she could further amend her pleadings pursuant to ss 64 and 65 of the CPA. Fourthly, she sought an injunction against the RMS, in substance seeking to prevent it from taking action under the houseboat lease pending determination of the 2017 motion. [29]

    29.    On 7 December 2017, the RMS undertook not to take steps to enforce the default judgment pending determination of the 2017 motion.

30. The 2017 motion was supported by an affidavit Ms Young swore on 6 December 2017. Like the 2017 motion, it was essentially in the nature of submissions, setting out the background to the 2017 motion (and, in turn, the 2014 motion) and why the 2017 default judgment should be set aside.

31. A number of documents were annexed to the 6 December 2017 affidavit which demonstrated, among other matters, the history of the proceedings. Among the annexures was an exchange of correspondence between Ms Young and the respondents’ solicitor written following the dismissal of the special leave application.

32. The first letter was from Ms Young dated 20 October 2017. It notified the recipients of her intention to re-agitate the 2014 motion “on the originating process filed on 4 July 2014” and to “include new causes of action” for the period 2010 to the date of judgment.

33. On 30 October 2017, the respondents’ solicitor responded to the 20 October letter stating, among other matters, that it was assumed the reference to the “4 July 2014 pleading” was a reference to the amended cross-claim which Button J had struck out. The letter pointed out that the RMS considered “there is now no defence or cross-claim on foot”. In her response of the same date, Ms Young described the RMS’s position as “a nonsense” which she rejected, and asserted the High Court had found the Supreme Court’s decisions to be interlocutory and she could “still pursue those causes of action still in time.”

Latham J hearing

34. Latham J heard the 2017 motion on 15 December 2017. Her Honour was sitting as Duty Judge in the Common Law Division. Ms Young appeared unrepresented. Ms P Lane of counsel appeared for the respondents.

35. The substance of the complaint Ms Young seeks to raise as warranting leave to appeal from Latham J’s decision is that she was denied procedural fairness by her Honour because she was not given an opportunity to be heard. She contends this is because her Honour erroneously took the view that the decision Button J made dismissing the 2014 motion was final as, too, were the Court of Appeal decision and the dismissal of the special leave application. She also complains that her Honour was biased against her because she only concentrated on the respondents’ submissions and did not consider her evidence.

36. To understand Ms Young’s complaints about denial of procedural fairness and bias, it is necessary to have regard to the transcript of the hearing.

37. At the commencement of the proceedings, Latham J noted that she had only received the papers about 10 minutes before the Court convened. Accordingly, her Honour asked Ms Lane to give a brief history of the proceeding. Ms Lane did so by reference to two documents, one being a chronology prepared by the RMS, the other being the respondents’ submissions concerning the 2017 motion. The written submissions contended, among other matters, that the 2014 motion had been dismissed with costs and could not be “agitated further.”

38. Latham J then called on Ms Young. Her Honour first explained to her the substance of the respondents’ written submissions to the extent they concerned matters of legal principle concerning her application to set aside the 2017 default judgment. When the discussion began to focus on whether or not the 2017 default judgment could be set aside, and, in particular, whether Ms Young had paid rent to the RMS due under the lease, Ms Young informed Latham J that she did not believe she had come to court that day for the purpose of dealing with whether or not she had paid rent to the RMS. Rather, she contended that she had attended court to set aside Button J’s “interlocutory order for the claim”. Latham J responded that “that claim is incompetent because that has actually been determined”.

34. Without recounting the transcript verbatim, Latham J stopped Ms Young from proceeding with the submissions she sought to make concerning the 2014 motion on at least three occasions. In doing so, her Honour informed Ms Young, in substance, that she had no jurisdiction to re-agitate matters that had been determined by other judges of the Court, including the Court of Appeal, that the 2014 motion had been “determined to finality” and, accordingly, the 2017 motion was incompetent. When Ms Young submitted that because Button J’s order was interlocutory she should be able to pursue the 2014 motion, Latham J pointed out that even if a matter was interlocutory and procedural, that did not mean that it could be revisited “50 times by different judges.”

35. As to the issue of whether the 2017 default judgment could be set aside, Latham J drew Ms Young’s attention to the proposition that in order to succeed in that respect, she would have to adduce evidence that she had a meritorious defence to the RMS’ claim for unpaid rent.

36. Ms Young accepted she had not paid rent since 1 July 2012. She contended that during the 28 days the respondents had agreed not to enter default judgment following the dismissal of the special leave application, she had written to them in the 20 October 2017 letter “setting out how I intended to re-plead”. [30] Latham J asked Ms Young what a new pleading would have said, to which Ms Young responded, that “if I had put my pleadings on I [would] have the right to argue against the lease yet again”. Her Honour then looked at the 20 October letter and observed that she could not see anything in it which indicated Ms Young intended to file amended pleadings. She also had regard to Ms Young’s 30 October letter. She sought to summarise Ms Young’s position in terms with which Ms Young did not disagree as being that, leaving aside Button J’s judgment, she sought to set aside the 2017 default judgment on the same basis that she originally sought to defend the Local Court proceedings.

    30.    That letter and a subsequent exchange of correspondence with the respondents’ solicitor was annexure G to Ms Young’s 6 December 2017 affidavit.

Latham J judgment

42. Latham J delivered an ex tempore judgment. After setting out the history of the proceedings, Latham J noted that it would appear that the 2017 motion:

“… effectively seeks to re-agitate the orders sought in the Notice of Motion of 5 September 2014 which has been heard and determined and indeed was ultimately the subject of Justice Button’s judgment and ultimately the subject of a refusal with leave in the Court of Appeal and a refusal of special leave by the High Court.” [31]

31.    Latham J’s reasons at p 4.

43. Her Honour did not expressly reach a conclusion about the 2017 motion insofar as it sought to re-agitate the 2014 motion. Rather, her Honour then moved to Ms Young’s application to set aside the 2017 default judgment.

44. Her Honour noted that Ms Young sought to defend the proceedings brought by the RMS:

“… not by way of filing pleadings that might in fact engage with the real issues in dispute, but by filing Notices of Motion which effectively seek to stay or set aside orders that have been validly made.” [32]

32.    Ibid at p 5.

45. Her Honour added:

“… However the most salient feature of these proceedings for present purposes is the following; her application to set aside the default judgment essentially rests on what the Applicant maintains is a refusal to negotiate between the 20 October 2017 and 16 November 2017. Those dates are relevant because, in effect, the Applicant had a window of opportunity during which she was able to file amended pleadings to cure any defects that had previously existed and to, as I said, agitate the real matters in dispute between the parties.” [33]

33.    Ibid.

46. After referring to the 20 and 30 October correspondence concerning Ms Young’s view of the state of the pleadings and the RMS response, Latham J said:

“The salient point is that at no stage during the relevant period did the Applicant actually file amended pleadings. Accordingly, the basis upon which this court might set aside a validly entered default judgment is distilled in the circumstances of this case to this proposition, namely, can the Applicant demonstrate that she has a meritorious defence to the claim that resulted in the default judgment, that is a meritorious claim in relation to the non-payment of rent since July 2012. The Applicant has not advanced any basis upon which that proposition might be established.” [34]

34.    Ibid at p 6.

47. Latham J noted that Ms Young acknowledged that she had not paid rent since July 2012 and chose not to do so “because she regarded the lease as being in some way invalid or irregular”. Her Honour concluded:

“At the end of the day this court has had considerable time and resources expended for the sake of $8,000-odd. It is time that these proceedings came to an end and, as I have already indicated, this does not necessarily represent the end of the line for the applicant. She is free to take whatever steps she wishes to take in the event that the RMS proceeds to enforce its claim over the subject property.” [35]

35.    Ibid at p 7.

48. Accordingly, her Honour ordered that the 2017 motion be dismissed with costs. [36]

    36.    Ibid.

Issues on leave application/Ms Young’s submissions

49. Ms Young seeks leave to appeal from, and to have set aside, Latham J’s decision. She also seeks “leave to appeal to reopen relevant parts of the decision of the Court of Appeal – 2014/198018 – given on 1 September 2016” [sic, as in original]. Her summons sought other orders of a procedural nature, some of which have been dealt with as I explain in these reasons and some of which depend upon leave to appeal being granted. [37]

    37. On 1 March 2018, Simpson JA dismissed a notice of motion apparently filed contemporaneously with the filing of the summons in which Ms Young sought a stay of Latham J’s judgment and orders:Young v Roads and Maritime Services [2018] NSWCA 32.

50. By way of her draft notice of appeal, Ms Young seeks to advance the following grounds of appeal, if granted leave to appeal.

51. First, Ms Young seeks to argue that Latham J erred by finding the 2017 motion was incompetent, [38] and that her Honour denied her procedural fairness by failing properly to hear her motion, failing to permit her to advance fully her oral submissions and failing to have regard to her 6 December 2017 affidavit. She also seeks to complain that her Honour erred in concluding that Button J’s interlocutory order was a “final Order that had displaced [her] legal rights” [sic] and “failed to apply the Wednesbury standards of reasonableness”. Ms Young seeks to contend that Latham J also erred in failing to find there were “proceedings on foot for the Applicant” because, she argues, the filing and service of the 2017 Motion reinstated “[her] originating process for the purpose of liabilities admitted in the Claim” [sic].

    38.    I have assumed this is a reference to the 2014 motion, which Ms Young sought to re-agitate in the 2017 motion.

52. As I understand Ms Young’s submissions as explained at the leave hearing, by so conducting the hearing of the 2017 motion, she contends Latham J failed to understand the overlap between the application to re-agitate the 2014 motion and the application to set aside the 2017 default judgment. Ms Young’s complaint in this respect appears to be that Button J’s dismissal of the 2014 motion should be set aside as having been made irregularly because, once the proceedings were transferred to the Supreme Court, the 2014 stay no longer operated, and, as Simpson JA hypothesised in the CA decision,[39] the respondents were then in default in filing their defences to the cross-claim. On Ms Young’s contention, by reason of that default, judgment should have been entered in her favour on her cross-claim which would have had the consequence that the lease was “void and unenforceable”, thus invalidating the 2017 default judgment.

    39. See above at [22].

53. Secondly, Ms Young seeks to argue that the respondents did not submit affidavit evidence at the 2017 hearing and that Latham J erred in preferring and relying on their “oral evidence” over her “probative evidence”. In so doing Ms Young seeks to contend that Latham J was biased against her and that her Honour’s findings were contrary to the material facts and the “proper construction of substantive verses procedural law, favourable to the applicant” [sic]. As advanced by Ms Young, this complaint is effectively a subset of her procedural fairness issue.

54. Thirdly, Ms Young seeks to argue that Latham J erred in failing to uphold the administration of justice in substance because her Honour failed to grant her default judgment on the 2014 motion.

55. Fourthly, in her written submissions, although not the subject of an express proposed ground of appeal, Ms Young submits that Latham J erred in failing to find that the RSM’s claim for rent was made in respect of “repudiated leases …” for which rental was not due on the one hand and rental had been wrongly charged to her on the other. She relied in this respect on a copy of her defence filed in the Supreme Court’s Possession List on 16 April 2018, a document which was manifestly not before Latham J, but which she asserts explains what was “missed” by her Honour in failing to addressing the evidence at the hearing. In the defence, Ms Young set out in detail the matters upon which she relied to seek to resist the RMS resuming possession of the site on which the houseboat is moored and asserted a claim for damages for various breaches of essential conditions of the lease by the RMS, said to sound in damages in the amount of some millions of dollars.

56. In addition, Ms Young sought an injunction seeking to restrain the respondents’ legal representative from continuing to act for the respondents and the appointment of new legal representatives on their behalf. Beazley P dealt with substantially the same application on a notice of motion filed by Ms Young seeking an order for court-annexed mediation and the appointment of new independent legal representatives for the RMS and the State. Her Honour dismissed the motion. [40]

    40. Young v Roads and Maritime Services (No 2) [2018] NSWCA 91 (Young CA (No 2)).

57. Fifthly, under the heading “Statement of Facts” in her written submissions, Ms Young contends that her “position to claim for liabilities admitted under the substantive Law and Court rules was established when the Respondent went into default on 7 August 2014. Under the law after being served with a Default Motion on 5 September 2014, the Respondent had no standing” [sic].

58. Sixthly, Ms Young complained that the respondents made no attempt to adhere to the overriding purpose under the CPA, submitting that all attempts to negotiate by her had been rejected, as, too, was mediation. [41]

    41.    As I have said, this issue was the subject of Young CA (No 2).

59. In short, Ms Young submits that, applying the principles in House v The King,[42] she has suffered injustice as a consequence of Latham J’s alleged denial of procedural fairness. She further contends that the denial of procedural fairness warrants her 2017 motion being heard “and determined with expedience in this court rather than being remitted back to the trial court” [sic]. She contends that “[i]f the court finds the Button J’s order was a final order taking her substantive rights away the Court of Appeal has the power to make orders in her favour including an urgent award of interim damages to relieve her hardship under s 82 of the CPA 2005. If the rights were not taken the claims in the Originating Process for liabilities admitted should apply.” [sic.]

    42. (1936) 55 CLR 499; [1936] HCA 40.

60. Neither the draft notice of appeal, nor Ms Young’s written or oral submissions addressed the application to reopen parts of the CA decision. I have assumed it has been abandoned, an assumption which appears to be confirmed by Ms Young’s reply submissions.

Respondents’ submissions

61. The respondents submit that leave to appeal should be refused with costs.

62. The respondents submit that insofar as Ms Young seeks to re-agitate the CA decision, and, I infer, the 2014 motion, her summons is incompetent as those proceedings have been heard and determined and special leave to appeal refused by the High Court.

63. In addition, the respondents submit that Ms Young has not identified any House v The King error, any wrong principle, extraneous or irrelevant matter, or any failure to consider a material consideration by Latham J and that their obligation to serve a defence to Ms Young’s cross-claim in 2014 has now been considered and rejected in three matters. [43]

    43.    Young (No 3) at [17], CA decision at [43] and Young CA (No 2).

64. Insofar as Ms Young seeks leave to appeal from Latham J’s decision, dismissing the application to set aside the 2017 default judgment, the respondents submit that Ms Young failed to demonstrate that she has a bona fide ground of defence and failed to provide any adequate explanation for her failure to defend those proceedings.

65. The respondents do not submit that Ms Young is guilty of disentitling delay, but, rather, contend that in the time since the RMS commenced its proceedings in the Local Court, she has not provided any comprehensible answer to the claim that she owes the RMS rent in respect of her occupation of the houseboat mooring site.

66. The respondents also submit that Ms Young has not provided any basis for the view that she was entitled to expect that the RMS would agree not to move immediately for default judgment once her special leave application was determined, and the period of 28 days within which they undertook not to seek to obtain judgment against Ms Young had lapsed.

67. Finally, the respondents note that the Local Court proceedings were commenced in respect of a modest debt for rent. They contend that the issues Ms Young sought to ventilate by way of her cross-claim are a “far-reaching attack on RMS and various Ministers” based on the belief that she was in some way a successor to informal, but legally enforceable, rights against the Crown in respect of the harbour bed. Although those allegations were described as “untenable” by Hidden J in 2015, [44] and incomprehensible by Button J in 2016, [45] the respondents submit they may still be, and are being, ventilated by her as defendant in the possession proceedings the RMS has brought in the Common Law Division.

    44.    Young at [25] – [26].

    45.    Young (No 3) at [72] – [73].

Consideration

68. Ms Young needs leave to appeal because Latham J’s orders were interlocutory orders on matters of practice and procedure. Appellate courts exercise caution in reviewing such interlocutory orders. [46] Where the decision challenged is a discretionary interlocutory decision, the task of an applicant seeking leave to appeal is recognised as being a difficult one. [47]

    46. Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated & Anor (1981) 148 CLR 170 (at 177); [1981] HCA 39 per Gibbs CJ, Aickin, Wilson and Brennan JJ (Adam P Brown Male Fashions Pty Ltd).

    47. Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [73].

69. To succeed in challenging the exercise of such a discretion, Ms Young must establish an error in the House v The King sense, namely that Latham J made an error of legal principle and/or a material error of fact, took into account an irrelevant consideration, failed to take into account, or give sufficient weight to, a relevant consideration or arrived at a result so unreasonable or unjust as to suggest such an error. [48] Questions about whether the decision appealed from works a substantial injustice to one of the parties are also relevant considerations. [49]

    48.    House v The King at 504 – 505.

    49.    Adam P Brown Male Fashions Pty Ltd at 177.

70. It is necessary to place Ms Young’s complaint of denial of procedural fairness in the context of the application she was seeking to advance insofar as the 2014 motion is concerned.

71. Button J’s judgment dismissing Ms Young’s 2014 motion was interlocutory because it did not finally determine the rights of the parties in the principal cause pending between them. [50] Prima facie, because it was an interlocutory order it created no res judicata or issue estoppel, or the like. Accordingly, contrary to the respondents’ submission, the 2017 motion was not incompetent. Latham J did have jurisdiction to set aside, vary or discharge Button J’s order. [51]

    50. Hall v The Nominal Defendant (1966) 117 CLR 423 at 443; [1966] HCA 36; per Windeyer J; Re Luck [2003] HCA 70; 78 ALJR 177 at [4] per McHugh ACJ, Gummow and Heydon JJ.

    51. Liu v The Age Company Limited (2016) 92 NSWLR 679; [2016] NSWCA 115 at [168] (Liu).

72. However, although her Honour may have had such jurisdiction, that does not mean a litigant who is dissatisfied with an interlocutory order can, no matter what the circumstances, have a “second contested run at the target”,[52] as Ms Young appears to have assumed was the case. As I explained in Liu, [53] and as Latham J intimated to Ms Young, the fact Button J’s order was interlocutory:

“… does not mean there is no constraint upon the Court’s power to [set aside, vary or discharge it]. Rather, the general rationale of the principles relating to res judicata and issue estoppel, being the private injustice and public undesirability of permitting the relitigation of matters already litigated once, also applies to reconsideration of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if that was not so.”

52. Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 at [10] per Mason P.

53.    At [168], footnotes omitted.

73. The overriding principle governing the approach of the court to a second interlocutory application concerning the same, or what is substantially the same, issue is that the court should do whatever the interests of justice require in the particular circumstances of the case. [54]

    54.    Liu at [13] per Beazley P; at [199] per McColl JA (Ward JA agreeing).

74. While it may be an abuse of process, warranting dismissal of the application, for a party who has been unsuccessful in obtaining interlocutory relief to seek to re-litigate the very same question, a second application may be permitted where there has been a change of circumstances or where evidence has become available that was not available at the time of the original hearing. [55]

    55. Bajramovic v Calubaquib [2015] NSWCA 139; (2015) 71 MVR 15 at [40] – [41] per Emmett JA (Leeming JA and Adamson J agreeing).

75. There were a number of difficulties with Ms Young's application to re-argue the 2014 motion before Latham J. First, she did not identify before her Honour any change of circumstance or new argument not available to her at the time of the hearing before Button J.

76. I do note that Ms Young appears to rely upon the hypothesis Simpson JA identified in the CA decision that there was a brief period after the transfer order was made in which it might be said that the respondents were in default, but that was an argument Ms Young could have advanced before Button J. Had she done so, however, she would have been met with the proposition that the court would not enter default judgment in respect of a cross-claim which was so incomprehensible it should be struck out.

77. Secondly, Ms Young’s application to challenge Button J’s order dismissing the 2014 motion had been rejected in the CA decision and the High Court had dismissed her special leave application. These were matters Latham J quite properly drew to Ms Young’s attention as also militating against her application to re-agitate the 2014 motion. Her Honour also referred to that history in her reasons.

73. Thirdly, Ms Young’s application faced the difficulty that it assumed a frame of reference which no longer existed: that her cross-claim was still on foot notwithstanding Button J’s 2016 order striking it out and the Court of Appeal’s and the High Court’s refusals to interfere with that order. Ms Young appears to have tried to overcome that difficulty by asserting that she had “by filing the 2014 motion, [she] had asserted her rights she had expressly retained that her originating process would be reinstated”. This submission is manifestly unsound. The cross-claim having been struck out could only be reinstated by court order.

74. In my view, Ms Young has not identified any error of a House v The King nature nor denial of procedural fairness or bias in Latham J’s decision refusing to permit her to re-agitate the 2014 motion. I accept that there were occasions when Latham J stopped Ms Young from continuing with her submissions about the 2014 motion. However, in my view, that course was open to her Honour in the interests of proceeding efficiently with the hearing, in the light of the history of the proceedings and the submissions Ms Young sought to advance and in the light of the principles governing the re-agitation of an interlocutory application.

75. Further, I do not accept that the exchanges during the hearing on which Ms Young relies to contend her Honour denied her procedural fairness by treating Button J’s 2016 order as final support such a proposition. Rather, during the hearing her Honour, in my view, sought to explain the court's approach to a second interlocutory application about the same issue in accordance with the principles to which I have referred.

76. Although, as I have said, her Honour did not express a final view in her reasons concerning Ms Young’s attempt to re-agitate the 2014 motion, I am not of the view that that would warrant a grant of leave to appeal.

77. Having regard to the principles to which I have referred, it would be futile to grant leave to appeal in respect of the 2014 motion issue for two reasons. First, Ms Young has not identified any arguable basis upon which the application to agitate the 2014 motion before Latham J had any prospect of success, not least because the amended cross-claim had been struck out. Ms Young did not advance any intelligible argument that could overcome that position. Secondly, as discussed below, Ms Young is now advancing her substantive case to resist the RMS acting on the lease in the defence she has filed in the Possession List proceedings.

78. Ms Young’s application to set aside the 2017 default judgment, to the extent it did not depend upon the 2014 motion, required her to persuade Latham J that she had a bona fide ground of defence to the RMS claim, an adequate explanation for her failure to defend and the length of her delay and that, in the final analysis, it was in the interests of justice to allow her to be permitted to defend the proceedings on the merits. [56]

    56. Dunwoodie v Teachers Mutual Bank Ltd [2014] NSWCA 24 at [43] per McColl JA; at [87] per Ward JA.

79. In my view Ms Young has not demonstrated any arguable error in Latham J’s conclusion that she had failed to demonstrate she had an arguable defence to the RMS claim. Further, her Honour clearly took into account the interests of justice as favouring the RMS having regard to the length of time the proceedings had been on foot, the comparatively small amount of unpaid rent the subject of the default judgment ($8661.14), as well as the fact Ms Young still had an opportunity to bring forward a substantive defence in the event the RMS sought to evict her.

80. On any fair reading of the transcript of the hearing, in my view, Latham J gave Ms Young every opportunity to raise matters which might warrant setting aside the 2017 default judgment, concluding on this issue with an open invitation to Ms Young as to whether she wished to say anything else. No arguable case of denial of procedural fairness has been identified in this respect either.

81. Ms Young complained that Latham J failed to have regard to the documents exhibited to her 6 December 2017 affidavit. That is not correct. Insofar as Ms Young drew her Honour’s attention to these documents as discussed earlier in these reasons,[57] her Honour, in my view accurately summarised them as demonstrating Ms Young failed to take advantage of a window of opportunity within which the RMS had agreed not to seek default judgment under the lease, by repleading any defence and cross-claim – a situation which persisted on 15 December 2017 when her Honour heard the 2017 motion. Ms Young did not draw this court’s attention to any document which formed part of her 6 December 2017 affidavit, but to which Latham J did not refer, which identified any error in her Honour’s consideration of the issues before her.

    57. See [41].

82. Finally, I discern no arguable complaint of bias on Latham J’s part. It is not uncommonly the case where a litigant appears in person that a court asks legal practitioners appearing for a party to outline the background to the proceedings. That was the course her Honour took in this case having regard to the fact, in particular, that as Duty Judge, she had only received the papers 10 minutes before the Court convened. While care must of course be taken to ensure the litigant in person is given a full opportunity to be heard, in my view, Latham J did not deny Ms Young a hearing in this respect. Nor did her Honour favour the respondents to her detriment in a manner indicating bias. The fact her Honour accepted the respondents’ submissions does not, of course, demonstrate that proposition.

83. BARRETT AJA: For the reasons stated by McColl JA, with which I agree, the summons seeking leave to appeal against the order of dismissal made by Latham J on 15 December 2017 should be dismissed with costs.

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Endnotes

Decision last updated: 21 May 2018