Apidopoulos v The Sheriff of Victoria [2000] VSCA 104

Court of Appeal (Vic)|2000-05-26|Before: WINNEKE, P., PHILLIPS and BUCHANAN, JJ.A.

Practice and procedure - Application to Court of Appeal to "vary or discharge" orders made by single Judge of Appeal that an appeal be taken not to have been abandoned - Nature of the application to "vary or discharge" considered. S.11(4) and (5) Supreme Court Act 1986; 064.26 Supreme Court Rules.

Angela Apidopoulos ("the appellant") asks this Court to discharge or vary orders made by Chernov, J.A. on 28 April of this year in which his Honour dismissed the appellant's summons, dated 7 April of this year, in which she had sought orders to extend the time for delivery of a note of proposed contents of the Appeal Book, and that her appeal to the Court of Appeal against orders made by Judge F.B. Lewis in the County Court on 9 February 2000 not be taken to have been abandoned.

The jurisdiction which was exercised by Chernov, J.A. was exercised as a single Judge of Appeal pursuant to the provisions of s.11(4) of the Supreme Court Act 1986 and Rule 64.26 of the Rules of Court made pursuant to that sub-section. Where a single Judge of Appeal has exercised his jurisdiction adversely to a party, that party may approach the Court of Appeal to discharge or vary the order made by the single judge, (see s.11(5) of the Supreme Court Act.)

The order made by Chernov, J.A. was one which was made in the exercise of his discretion. The appellant had commenced proceedings in the County Court by writ filed in that Court on 20 July 1999. On 9 February 2000 Judge Lewis dismissed the proceedings as being an abuse of process. It was against that order that the appellant had filed her Notice of Appeal in this Court. The appellant served her Notice of Appeal within the 14 days prescribed by the Rules and filed it, but she failed to comply with Rule 64 .08 which requires delivery by an appellant to the Registrar of the Court of Appeal of a note of proposed contents of Appeal Book within seven days of the time fixed by Rule 64.03 for the service of the Notice of Appeal. In the event the appellant was about one week out of time. The delay was of short order which, in the normal course of events, would lead this Court to excuse it and to order that the appeal be taken not to be abandoned.

However, there has been a substantial history to the County Court judge's order and the institution of this appeal. The material before Chernov, J.A. indicated that in 1981 a plumber to whom the appellant owed a relatively small sum of money had registered a judgment against her in the Supreme Court and that, in execution of that judgment and pursuant to the Court's warrant, the Sheriff had sold the applicant's land in Lalor by auction to satisfy the judgment debt. This had occurred in August of 1984.

Some ten and a half years later, in January of 1995, the appellant took action in the County Court against the Sheriff contending that he had wrongfully evicted her from her property and sold it. In response to that claim the Sheriff had sought an order dismissing the proceeding as frivolous and vexatious and as an abuse of process. On 5 June 1995 the County Court Master, Master Patkin, so ordered and dismissed the action.

The appellant then sought to appeal to a Judge from Master Patkin's order, but, on 18 August 1995, Beach J. refused her leave to appeal. There the matter stood until April 1996 when the appellant issued a new summons in the County Court claiming substantially the same relief as had been sought in the writ she had filed in 1995.

In May 1996 this summons, too, was dismissed by Judge Meagher in the County Court as an abuse of process. The appellant then appealed to this Court against the order of Judge Meagher. This Court dismissed that appeal in May of 1997 saying that the proceeding was "really, in another form, the proceeding which had already been dismissed as without substance ..." and was "doomed to failure".

The appellant sought leave to appeal from this decision to the High Court. On 13 February 1998 Justices Gaudron and Gummow dismissed the application for special leave, on the basis that there was "no reason to doubt the correctness of the decision of the Court of Appeal" [1]

Despite these rebuffs, the appellant was undeterred, and by writ filed in the County Court in July of 1999 she made a further claim against the respondent seeking, so far as we can see, the same relief as she sought in the proceedings which she had pursued in 1995 and 1996. It was this 1999 proceeding which was dismissed by Judge Lewis on 9 February 2000 as an abuse of process, and it was against that order of dismissal that the appellant has served and filed her Notice of Appeal in this Court.

It is against this historical background that Chernov J.A. refused to exercise his discretion to order that the appeal be taken not to have been abandoned for want of compliance with the Rules. His Honour was content to accept that the appellant had an excuse for not filing, within time, the note of proposed contents of the Appeal Book, but in the exercise of his discretion made the order which he did on the basis that the appeal was futile and enjoyed no prospects of success.

In exercising the power given to us by s.11(5) of the Supreme Court Act to "vary or discharge" an order made by a single Judge of Appeal, this Court is not, we think, at liberty to treat the matter as if it were hearing it afresh. We are being asked to interfere with the exercise of the judge's discretion and we should only do so if it can be demonstrated that that discretion has clearly miscarried.

This was in essence the view taken by the Court of Appeal in New South Wales in Wentworth v Wentworth[2] of provisions contained in s.46(4) of the Supreme Court Act (N.S.W.), provisions which are in all respects similar to s.11(5) of our own Act.

Mahoney, J.A. said in Wentworth v Wentworth at p.729:

"It is not clear what is the nature of the review provided for by s.46(4). The sub-section refers in its terms to the nature of the orders which, on such review, the Court may make: 'discharge or vary'. It does not indicate the nature of the proceeding brought for that purpose or the principles by reference to which the proceeding is to be dealt with. Thus the section does not state, in terms, whether on such a review, the Court of Appeal deals with the application by re-hearing ab initio, by a re-hearing of the kind otherwise provided for in s.75A of the Supreme Court Act 1970, or by a more restricted review ... [the question] has been referred to in passing in other cases. In Knaggs v. Solicitors' Statutory Committee (unreported Court of Appeal NSW 8 October 1990) Kirby, P. said at p.6:

`This process [under s.46(4) of the Supreme Court Act] is not an appeal as such. However it seems to me that the claimant must show that [the Judge of Appeal's] discretion miscarried. Otherwise, every discretionary practice decision made by a Judge of Appeal under s.46(1) sitting alone would be open to complete re-argument as if the order made under that section had never been pronounced. I do not believe that such was the intention of the Act, providing as it does in s.46 for the economic deployment of the judges of appeal'."

Mahoney, J.A. at p.730 applied these principles and agreed that the review of the single judge's order is "more restrictive than is provided by a re-hearing". His Honour continued:

"The provision for review of the orders made by a single Judge of a Court of Appeal is not new. A provision similar to that now made (for 'discharge' or 'variation') was made, for example, by the Supreme Court of Judicature (Consolidation) Act 1925 (UK) s.69(2) in relation to the English Court of Appeal. That section has now been replaced in effect by the Supreme Court Act 1981 (UK) s.58 by O.59 R.14 ... In Wren v Brounsden Canal Services Ltd (Court of Appeal (Eng), 23 November 1990, unreported) the English Court of Appeal considered ... the discretionary decision of a judge of that Court. Lord Donaldson, M.R. said that to succeed the applicant 'must show that the Lord Justice misdirected himself in principle or that his order was plainly wrong'."

Mahoney, J.A. took the view that, in general terms, the practice adopted by the Court of Appeal in Wren's case should be applied in construing s.46(4) of the Supreme Court Act (N.S.W.). Handley, J.A. agreed with Mahoney, J.A., whilst Powell, J.A., on this issue, regarded it as being incumbent upon an applicant, who seeks to vary or discharge an order made by a single judge, to demonstrate that the primary judge's discretion had "clearly miscarried".

In another case which had been heard by the Court of Appeal (NSW) at about the same time as Wentworth's case, but decided after it (namely Kidron and Spaile Architects Pty Ltd v Garrett and Anor[3]) the Court, by a majority (Priestly and Sheller JJ.A.) did "vary and discharge" an order made by a single Judge of Appeal (Meagher, J.A.) who had declined to enlarge the time for filing a Notice of Appeal. The majority did not refer to Wentworth's case, but Priestly, J.A. said at p.578 that in his view the discretion exercised by Meagher, J.A. had "miscarried in that it was based solely on what was said to be a failure to explain delay and did not take into account the absence of any prejudice upon which the other parties could rely". However, his Honour took the view that "the prospects of success" of the appeal were always a relevant factor for the single judge to take into account, it being said that it had not been contended in that case that the appeal had no such prospects. His Honour said:

"Where delay is small, an appeal is not hopeless, and no relevant prejudice will be caused by the extension of time, it seems to me that the due exercise of the discretion requires a granting of the extension."

Powell, J.A. who differed in the result, was the only member of the Court who referred to Wentworth's case. He said at p.585 that the court in Wentworth's case had taken the view that:

"The hearing of such an application [ie 'to discharge or vary'] is not in the nature of a hearing de novo or in the nature of an appeal by way of re-hearing and that, in order that such an application might succeed, it must appear that the order in respect of which the application is brought was clearly wrong".

In our view s.11(5) of the Supreme Court Act 1986 should be accorded a similar construction to that which has been given by the Court of Appeal in New South Wales to the counterpart provisions in the Supreme Court Act of that State. It would, we think, be contrary to the intention of the legislature to construe s.11(5) as treating an application to discharge or vary an order made by a single Judge of Appeal as a hearing de novo or an appeal in the nature of a re-hearing.

Having regard to the nature of the orders which can be made by a single Judge of Appeal pursuant to the powers invested by Rule 64.26, it is far more consonant with the scheme of the legislation - which, as in New South Wales, contemplates the efficient and economic deployment of the Judges of Appeal - to treat a single Judge of Appeal's discretionary orders made pursuant to s.11(4) as liable to be discharged or varied under s.11(5) only if the discretion can be clearly demonstrated to have miscarried.

It is true that an exercise of a single Judge of Appeal's powers pursuant to the Act and the Rules can have significant consequences to a party, particularly where, as in this case, the effect of the order will mean the end of the appeal. That consequence, however, does not destroy the character of the order made by Chernov, J.A. as an exercise of a discretion made in a matter of practice or procedure. Unless it can be demonstrated that the discretion has miscarried, this Court should not interfere.

In this application no such miscarriage has, in our view, been shown. Chernov, J.A. was prepared to accept that if there were no other circumstances than the seven day delay, then he would have exercised his discretion in favour of allowing the appeal to proceed. His Honour was, however, of the view that because the proceeding was nothing more than an attempt to relitigate claims which had been disposed of previously, which claims were brought well out of time, the appeal was "so devoid of merit" as to have no prospects of success and, accordingly, the justice of the matter required that he should exercise his discretion against the reinstatement of the appeal. His Honour referred expressly to Flannery v. Goulburn Murray Water Authority[4] and to Jockamarra v. Krakouer[5].

In the circumstances which his Honour described, he was clearly entitled, in our view, to exercise his discretion in the way in which he did, or to put it another way, we ourselves are not satisfied that the appellant has demonstrated that his Honour's discretion miscarried. No error of fact was shown, nor any error of principle.

The formal Order of the court will be that the application be dismissed.

[4] Unreported, Court of Appeal, 27 November 1998 per Tadgell, J.A.

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