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[2017] VSC 459
Supreme Court of Victoria
2017-08-14
McDonald J
Original judgment source is linked above.
APPEAL - Leave to appeal from order of Magistrates' Court - Failure to appeal within prescribed 30 day period due to exceptional circumstances - Further delay of 60 days prior to filing notice of appeal - No legitimate reason for failure to file notice of appeal during period of 5 weeks prior to filing - Grounds of appeal included baseless allegations of fraudulent conduct - Grounds of appeal with no reasonable prospects of success - Application for leave to appeal dismissed - Magistrates' Court Act 1989 s 109(4), (5) - Civil Procedure Act 2010 s 18(d).
1 The question which arises in the current proceeding is whether the Court should exercise the discretion to grant leave to appeal in circumstances where:
(i) the failure to file a notice of appeal within 30 days of judgment (17 June 2016) was due to exceptional circumstances;
(ii) the applicant for leave to appeal filed a notice of appeal 62 days outside of the prescribed 30 day period; and
(iii) there were no exceptional circumstances operative during the 35 days prior to the date on which the notice of appeal was actually filed (20 September 2016)?
2 The current application for leave to appeal arises out of a 26 day hearing which commenced in April 2015 and concluded in February 2016. The subject matter of the proceeding at first instance was the respondent's claim for payment of a debt arising from five loans. On 3 June 2016, Magistrate Goldberg delivered judgment, finding in favour of the respondent.[1] This finding was subject to final determination of the amounts owed to the respondent, including interest. On 17 June 2016, his Honour entered judgment in favour of the respondent. The Court ordered, inter alia, that the applicant, together with a company of which he was a director (The Big Apple Group Pty Ltd):
(i) were jointly liable to pay the respondent the sum of $10,672.38;
(ii) were jointly liable to pay the respondent's costs fixed in the sum of $166,343.05.[2]
3 The certified extract of the Court's orders dated 17 June 2016 incorrectly described the orders as having been made by consent. Plainly, this was a slip. An amended order was issued on 11 August 2016.
4 The applicant's proposed notice of appeal is dated 19 September 2016, but was filed on 20 September 2016.
5 Section 109 of the Magistrates' Court Act 1989 ('the Act') provides:
(1) A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(2) An appeal under subsection (1) -
(a) must be instituted not later than 30 days after the day on which the order complained of was made; and
(b) does not operate as a stay of any order made by the Court unless the Supreme Court so orders.
(3) Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.
(4) An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).
(5) The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court -
(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and
(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
...
6 If an appeal is instituted more than 30 days after the day on which the relevant order was made, it is taken to be an application for leave to appeal.[3]
7 A question arises as to whether the prescribed 30 day appeal period commenced on 17 June 2016, or alternatively, 11 August 2016 when an amended order was made. The notice of appeal is stated to be 'against the judgment given and final orders made by the Magistrates Court at Melbourne on 17/06/2016'.[4] There is no difference between the legal obligations imposed upon the applicant by the order made on 17 June 2016 and that made on 11 August 2016. The omission of the words 'by consent' in the latter order is a matter of form, not substance. The fact that the order of 17 June 2016 was amended does not alter its status as a final order. The effect of the order of 17 June 2016 was to finally determine all claims which were before the Court.[5] The 30 day period for the filing of an appeal commenced on 17 June 2016.
8 In order to be granted leave to appeal, the applicant must establish that his failure to file an appeal within the prescribed 30 day period was due to exceptional circumstances.[6] However, even where exceptional circumstances are established the Court has an unfettered residual discretion as to whether leave to appeal should be granted.[7]
9 The principles governing the exceptional circumstances threshold under s 109(5) of the Act are well-established:
(a) The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;
(b) The onus lies on the applicant to satisfy the test of exceptional circumstances;
(c) Although 'exceptional' is defined as meaning 'unusual, special, out of the ordinary course' in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to 'rarely occur' and 'perhaps be outside reasonable anticipation or expectation';
(d) The inquiry is confined to the circumstances relevant to the applicant's failure to appeal within time (ie 30 days) and whether they may be characterised as exceptional;
(e) As part of that inquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time;
(f) The inquiry in determining whether exceptional circumstances exist as required by s 109(5) is not a consideration of all matters germane to the appeal;
(g) That which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances;
(h) The exceptional circumstances must relate solely to the explanation for the delay;
(i) By use of the expression 'exceptional circumstances', the legislature intended to place a considerable bar in the way of an applicant before leave will be granted. The bar is a 'significant hurdle', which requires a 'persuasive explanation', to be demonstrated by 'clear and cogent proofs'.[8]
10 The applicant filed an affidavit in support of his application for leave to appeal, dated 9 November 2016. In that affidavit, he deposed:
11 I accept that the applicant has established that his failure to file a notice of appeal within 30 days of 17 June 2016 was due to exceptional circumstances. He attended at the Melbourne registry of the Magistrates' Court on two occasions post 17 June 2016 and was told that an order had not been made against him personally.[10] This was due to an administrative error on the part of the Court. He attempted to file a notice of appeal with the Court of Appeal registry on 15 July 2016 challenging the orders made against the Big Apple Group Pty Ltd.[11] In the notice of appeal he was named as an appellant. The notice of appeal was not accepted as it was incorrectly filed in the Court of Appeal. Nevertheless, the fact that the applicant attempted to file the appeal within 30 days of the 17 June 2016 order is objective evidence that he was cognisant of, and attempting to comply with, the prescribed 30 day period for filing an appeal.
12 The respondent's solicitor provided the applicant with a certified copy of the 17 June 2016 order on 15 August 2016.[12] The applicant filed a notice of appeal in respect of that order on 20 September 2016. Thus, he filed the notice of appeal more than 30 days after being provided with a certified copy of the 17 June 2016 order.
13 The requirement under s 109(2) of the Act that an appeal be commenced within 30 days and confined to questions of law constitutes a stringent constraint on the right of a party to appeal.[13] This constraint is reinforced by the mandatory requirement for a party who files outside of the 30 day period to establish exceptional circumstances justifying the delay.
14 Section 109 embodies a clear statutory objective of ensuring that appeals from the Magistrates' Court are filed promptly. This objective would be rendered worthless if a party who establishes that his/her failure to file a notice of appeal within the prescribed 30 day period was due to exceptional circumstances, was thereafter entitled to file out of time irrespective of the period of further delay and the reason (or lack thereof) for the delay. Notwithstanding the policy underlying s 109, it does not follow that a party will automatically be denied leave to appeal by reason of a failure to file within 30 days of there being no exceptional circumstance preventing the party from filing. Each case turns on its own particular facts.
15 I have accepted that between 17 June 2016 and 15 August 2016 the applicant has established exceptional circumstances which justified his failure to file a notice of appeal.[14] That exceptional circumstance arose from an administrative error within the Melbourne registry of the Magistrates' Court which resulted in the applicant being told that no order had been made against him personally. On 15 August 2016 he was provided with a certified extract of the Court's order which required him to pay the respondent the sum of $10,672.38 and costs of $166,343.05. As at 15 August 2016 there was no operative exceptional circumstance preventing the applicant from filing an appeal. Whether he should be granted leave to do so requires consideration of the period of the delay until the notice of appeal was filed and the reasons for that delay.
16 The applicant advanced no credible explanation for his failure to file a notice of appeal between 15 August 2016 and 20 September 2016. On 15 July 2016 the applicant attempted to file a notice of appeal with the Court of Appeal registry.[15] He was advised that any appeal had to be commenced in the Court's trial division. The applicant advanced two explanations for the delay between his receipt of the certified copy of the order on 15 August 2016 and filing a notice of appeal on 20 September 2016.
17 First, the applicant submitted that he needed access to the transcript of proceedings in the Magistrates' Court in order to formulate appeal grounds alleging that the judgment had been obtained as a result of fraud by the respondent's legal representatives.[16] This explanation has no merit. The notice of appeal which the applicant attempted to file on 15 July 2016 particularised detailed allegations of fraud by the respondent's legal representatives.[17] Plainly, the applicant was able to do so notwithstanding that, on his version of events, he did not have the transcript as at 15 July 2016.
18 Second, the applicant submitted that he had been advised by the Court's unrepresented litigant co-ordinator , Mr Shane Draper, that he could not file a notice of appeal unless he attached the reasons for judgment of the Magistrates' Court.[18] He stated that he only received a transcript of the reasons for judgment shortly prior to 20 September 2016.[19] This explanation is also of no merit. The applicant annexed a transcript of the Court's reasons for judgment to the notice of appeal he attempted to file on 15 July 2016.[20]
19 Neither of the explanations for the applicant's delay in filing his notice of appeal between 15 August 2016 and 20 September 2016 have any merit. I have concluded that the applicant has advanced no explanation for his failure to have filed a notice of appeal upon being provided with a certified copy of the Magistrates' Court order on 15 August 2016. There was no impediment to the applicant doing so immediately after 15 August 2016 because he had already prepared and attempted to file a notice of appeal on 15 July 2016.
20 The applicant's failure, without reasonable excuse, to file a notice of appeal immediately after 15 August 2016, and to have then delayed for approximately five weeks, weighs heavily against exercising the discretion to grant leave to appeal.
21 The matters set out above, standing alone, justify a refusal to grant the applicant leave to appeal. However, in addition to those matters, I have concluded that the manner in which the applicant conducted the application for leave to appeal weighs against the exercise of the discretion to grant leave to appeal. First, the submissions which the applicant advanced by way of explanation for delay had the potential to mislead the Court. There was no factual basis for either of the explanations for delay proffered by the applicant. Both explanations were contradicted by the proposed notice of appeal which he attempted to file on 15 July 2016. The applicant advanced these submissions despite the Court's warning that he give careful consideration to the explanations he provided to ensure their accuracy:
MR MAKOOCHIENG: You - you - Your Honour, I am - I - the - I - if - if you allow me and I will approach it this way. The - the application that I needed to make, based on my contacting - by seeking legal advice on it, was very substantive in the sense of - in - in the - in the - in the sense of, like, if you are - if you are alleging fraud. It's - it is not - it is not a small thing and you have to make sure, the advice I received, you have to make sure that you have all the - you have all the transcripts - - -
HIS HONOUR: When did you receive the transcripts. Now, Mr Makoochieng, before you answer my questions - - -
MR MAKOOCHIENG: Yes.
HIS HONOUR: - - - you be very careful and think very carefully before you answer my questions, all right. I want accurate answers. If you're not able to answer accurately, don't answer. When did you first request a copy of the transcript? Do you remember the actual date you requested a copy of the transcript?
MR MAKOOCHIENG: The - the transcripts, there several ones, Your Honour. They're several. The transcripts I requested, ah - I will have requested the transcript, ah, around July - July. Like, because then, you - you have to wait for two or three weeks.
HIS HONOUR: You don't know the actual date.
MR MAKOOCHIENG: I don't know the actual date but - - -
HIS HONOUR: All right.
MR MAKOOCHIENG: But - - -
HIS HONOUR: When did you actually receive the transcript, Mr Makoochieng?
MR MAKOOCHIENG: I received the transcript - I will, ah - it - it - it will have been - - -
...
MR MAKOOCHIENG: The transcript, I got the transcript in September because I - I - I had to physically have the - the audio recording - - -[21]
22 Second, as discussed below, he made allegations of fraudulent conduct which were entirely without merit. He did so notwithstanding the fact that his own lawyers were not willing to advance such submissions. He maintained the allegations in circumstances where the Court directed him to give careful consideration to whether there was a proper basis for making the allegations:
HIS HONOUR: ...And you now come to court and make allegations which, Mr Makoochieng, seem to be utterly baseless on, to date, what I've heard from you. Allegations of fraud. In an accounting exercise, Mr Makoochieng, someone could just make an honest, genuine mistake. It happens every day of the week. It's nowhere near the threshold for fraud, the material you have taken me to. I have asked you to actually go to the submissions which were made in court and take me to statements which you contend were fraudulent. You have taken me to nothing.
Your legal representatives were not prepared to associate themselves with these submissions. You have maintained them, and I have put you squarely on notice of the risks involved, and they are significant, of maintaining them. I can only assume that your previous legal advisors gave you advice regarding the very significant consequences of making allegations of fraud against legal practitioners which may ultimately be found to be without substance.
You will have an opportunity overnight to consider your position. And I suggest you consider it very, very carefully, Mr Makoochieng. To establish fraud, you must establish a deliberate intent to mislead. You have taken me to nothing so far which approaches that threshold. I'm being candid with you because you are a self-represented litigant, and because of the very serious consequences, as a self-represented litigant, which may flow if you maintain the submissions which you are advancing in court.[22]
23 For the reasons set out below I have concluded that by maintaining the allegations of fraud the applicant breached s 18(d) of the Civil Procedure Act 2010.
The proposed grounds of appeal have no prospect of success
24 The proceedings at first instance ran for 26 days. Evidence was heard over 20 days between 27 April 2015 and 7 May 2015, and 18 August 2015 to 1 September 2015. A further five days of submissions took place, culminating in final orders being entered on 17 June 2016. The court book for the application for leave to appeal consisted of 12 volumes containing 5,647 pages. There is an enormous disparity between the quantum of the Magistrates' Court's order requiring the applicant to pay the sum of $10,672.38, and the length of the proceedings and the resulting costs.
25 A significant factor contributing to the protracted length of the proceedings at first instance was the amount of time consumed by the examination of disputed financial records. For example, the applicant counter-claimed against the respondent for $40,000 based on 151 separate payments between the parties. The respondent's claim for damages was based on five loans encompassing 12 separate transactions. Accordingly, there was a plethora of financial records before the Court.
26 The applicant represented himself both before the Magistrates' Court and in the current proceedings. Until shortly prior to the hearing on 25 July 2017, the applicant was represented by lawyers. However, those lawyers were granted leave to withdraw shortly prior to 25 July 2017.[23] The grounds in support of their application to withdraw included their refusal to advance submissions on behalf of the applicant alleging that the court orders of 17 June 2016 were obtained as a result of fraud by the respondent's legal representatives:
The matters which the applicant intends to run the trial [sic] were decided on purely by the applicant and not with the input or consultation of our firm. The applicant has drafted court books, pleadings and affidavits which have been filed and served in these proceedings, and have not been drafted by our firm. The applicant has also given our firm express instructions that he will draft all documentation in these proceedings. Our firm is not prepared to run the case based on the current pleadings, namely the allegations of fraud against the other party's solicitors;[24]
27 Notwithstanding the refusal of his lawyers to advance allegations of fraud, the applicant pressed these allegations during the hearing on 25 and 26 July 2017. The allegation of fraud arises out of submissions made by the respondent's senior counsel on the final day of hearing in the Magistrates' Court on 16 June 2016. On that day, the respondent's counsel provided Magistrate Goldberg with a spreadsheet which quantified the respondent's claim, including interest, giving effect to Magistrate Goldberg's judgment on 3 June 2016. The applicant submits that Magistrate Goldberg was deliberately misled by the contents of the spreadsheet.[25] The allegations of fraud are entirely without merit. When Mr Willis presented the spreadsheet to the Magistrate on 16 June 2016 he expressly stated that the spreadsheet did not reflect an agreed position between the parties, but represented the respondent's position as to the quantification of the claim.[26] The applicant could have sought an adjournment on 16 June 2016 to review the contents of the spreadsheet. He did not do so.
28 Mr Willis conceded in the current proceedings that there was one entry in the spreadsheet which incorrectly attributed a liability to the applicant for the amount of $60.[27] The relevant entry is a $60 debit on a Westpac Visa card. Mr Willis submitted, and I accept, that the error was an honest mistake arising from the notation on the credit card statement that the $60 payment had been 'pd by Sue', being a reference to the respondent, Ms Kirk.[28] In fact, the payment had been made by the applicant. The amount of interest attributed to the payment of the $60, reflected in the Court's ultimate orders, was $18.79.[29]
29 The proceedings at first instance involved consideration of hundreds of credit card entries and the liability for interest arising therefrom. The fact that an error was made in respect of one entry, whilst unfortunate, in no way constitutes fraudulent conduct on the part of the respondent's legal representatives.
30 The applicant submitted that fraudulent conduct arose by reason of the respondent's spreadsheet including claims referable to credit card debits which were not the subject of evidence before the Magistrate.[30] He also submitted that the respondent had made claims for interest in respect of the period from the commencement of proceedings on 31 May 2013 until 16 June 2016, calculated on the basis of credit card interest rates which exceeded the prescribed rates under the Penalty Interest Rates Act 1983.[31] Neither of these complaints have any merit.
31 The applicant has failed to identify any entries in the spreadsheet which were unsupported by evidence. As to the calculation of interest by reference to credit card interest, rather than the prescribed rate under the Penalty Interest Rates Act, the claim upheld by the Magistrate was that the applicant was contractually liable to pay interest on credit card debts until such debts had been paid.[32] As at 16 June 2016 the debts were still outstanding. As such, the respondent was entitled to claim interest by reference to the credit card rate up until 16 June 2016.
32 Even if there were errors of the type alleged by the applicant in the spreadsheet handed to the Magistrate on 16 June 2016, there is no evidence before the Court which supports a finding that the respondent's legal representatives intentionally misled the Court. An allegation of fraudulent conduct against a legal practitioner is a very serious matter. The fact that a submission is incorrect does not, of itself, justify a conclusion that the practitioner making the submission has an intention to mislead. There is no basis for concluding that the respondent's legal representatives engaged in fraudulent conduct. The fact that the applicant is a self-represented litigant does not confer upon him a licence to advance submissions which his own legal representatives were not prepared to advance.
33 The applicant submits that he was denied procedural fairness because Magistrate Goldberg dismissed his counterclaim on 3 June 2016 without providing an opportunity for a final accounting exercise to be undertaken in respect of the claims and payments which underpinned the counterclaim.[33] This contention has no merit. On 3 June 2016 Magistrate Goldberg dismissed outright the applicant's counterclaim. As a result there was no component of the counterclaim left to be quantified by the accounting exercise which Magistrate Goldberg directed the parties to undertake in respect of the respondent's claim. Immediately after delivering judgment on 3 June 2016, the following exchange took place between the applicant and Magistrate Goldberg:
Mr Makoochieng: I understand that the - ah, - the reconciliation needs to be done now? Is that correct?
Magistrate Hon J Goldberg: The reconciliation - [crosstalk] - yes, to - to identify what the figures are now.
Mr Makoochieng: To identify the figures and it just in regards to that - ah, ah, if the figures end up still that with the - with the - overpaid - what happens?
Magistrate Hon J Goldberg: No, the figures will not work out that you overpaid, because I have allowed the attribution of the monies that have been received to the loan account. That was what I've determined. That you are wrong in your submission in relation to the income tax assessment act, that monies that were in the loan account were allowed to be repaid by the other monies.
And that therefore, that money cannot be brought back into account by you in relation to the counterclaim. That was the - my decision and it will be a question of how much is owed by you and the Big Apple group to Miss Kirk.[34]
34 No denial of procedural fairness arises from the failure of the applicant to have an opportunity to undertake an accounting exercise in respect of the claims underpinning his counterclaim. The effect of Magistrate Goldberg's judgment on 3 June 2016 was that the counterclaim was dismissed. There was no scope for any further accounting exercise to be undertaken in respect of the counterclaim. The applicant was not denied procedural fairness by reason of being denied the opportunity to undertake any such accounting exercise.
Division 7A of Income Tax Assessment Act 1936 (Cth)
35 The applicant's further amended application for leave to appeal dated 27 June 2017 includes under the heading 'Scope of Appeal':
Whether the Court erred in law in finding that a Division 7A loan account alleged by Plaintiff continues to exist in law under the Income Tax Assessment Act (Cth 1936) Part III Division 7A without determining the loan account is a bonafide loan or debt in law in the first place.[35]
36 The applicant's outline of submissions under the heading 'Ground of Appeal No. 4 - Division 7A Law Application' states:
The magistrate erred in law in holding the alleged "JS Loan Account AGLEC" continues to exist as a repayable Division 7A Loan debt under the Income Tax Assessment Act 1936 Part III Division 7A. The Court applied the wrong section of the Act (Section 109ZCA) in finding the loan debt exists and held the "JS Loan account AGLEC" continues to exist before making a finding on whether the loan debt exists in law in the first place. Section 109C(1) of Division 7A of the ITAA 1936 provides a private company is taken to pay a dividend to an entity at the end of the private company's year of income if the private company pays an amount during the year to an entity such as a shareholder in the private company or an associate of such a shareholder and before the company's lodgement date for the year of income in which the loan is made, the company fails to convert the amount of payment to a section 109N compliant loan by setting out the loan in a written loan agreement, which specifies the rate of interest payable equals or exceeds the benchmark interest rate, a term that does not exceed the maximum term for that kind of loan - that is, no more than 25 years for a loan secured by way of registered mortgage over real property and, for all other loans, no more than 7 years and is made on its usual terms applicable to arm's length parties;[36]
37 I had some difficulty comprehending the applicant's submissions based on div 7A of the Income Tax Assessment Act. However, as I understand the submission, it was contended that:
(i) The first defendant, Ms Sinclair, had a loan account with a company, A Great Little Event Company Pty Ltd. Ms Sinclair was a joint director of this company with the plaintiff, Ms Kirk;
(ii) 50 per cent of monies received by the plaintiff from a third party, Silvio Falcone, were applied by the plaintiff in reduction of Ms Sinclair's loan account with the company;
(iii) The applicant submitted before Magistrate Goldberg that the value of the loan account was deemed by Division 7A to be a dividend, thereby expunging the loan account as a debt owed by Ms Sinclair to the company; and
(iv) The money which was received by the plaintiff from Mr Falcone and which was applied in reduction of Ms Sinclair's loan account, should in fact have been applied by the plaintiff in reduction of Ms Sinclair's personal debts to the plaintiff, which the applicant was held liable to pay as a guarantor.
38 The reasons for judgment of Magistrate Goldberg include the following:
Assuming that the conduct of the plaintiff, Ms Sinclair, and A Great Little Event Company Incorporated Proprietary Limited invigorated the deeming of a dividend to Ms Sinclair, Mr Mako'ochieng argues that the debt due for Ms Sinclair to A Great Little Event Company Proprietary Limited has been extinguished by the operation of Division 7A. No authorities rely upon [sic] the support of the contention.
There's a fundamental flaw in the argument of Mr Makoochieng that is, because the debt remains outstanding, notwithstanding the deeming of a dividend. The loan account is not reduced by the deeming of the dividend. The dividend is taxable in the hands of the borrower, reflective of the benefit obtained by her relationship to the company, but otherwise not for the purpose of the company. The application of equation fixes the value of the benefit in that financial year. Subject to other considerations, there is no obstacle to the attribution of monies to the reduction of the loan account. In effect, the loan still exists.[37]
39 The fact that a loan account is deemed by div 7A of the Income Tax Assessment Act to be a dividend and thereby assessable income, does not mean that the loan account ceases to exist as a debt owed by the borrower to the company. If this were so, any director with a loan account would be able to deny liability to repay a loan simply because it had been deemed by div 7A to be a dividend and assessable income.
40 The reasoning of Magistrate Goldberg as set out above discloses no error. Insofar as the applicant challenges Magistrate Goldberg's underlying finding that Ms Sinclair did have a loan account with A Great Little Event Company Pty Ltd, this is a finding of fact which cannot be challenged in an appeal under s 109 of the Act confined to questions of law.
41 The applicant's further amended proposed notice of appeal includes under the heading 'Scope of the Appeal':
Whether the Court erred in law in finding the right of election, of disputed payments made by the Defendants to the Plaintiff in the proceeding, was devolved to the Plaintiff under the Principles of Appropriation of Payments.[38]
42 The applicant's written submissions in support of 'Ground of Appeal No. 5 - Principles of Appropriation application' include the following:
The Court erred in law by holding the right of election for the disputed payments made by the Defendants to Plaintiff was devolved to Mrs Kirk as creditor and in law Mrs Kirk had the right to exercise her election of the payments upto [sic] the last minute in the witness box in the same proceeding.[39]
43 Once again, I had some difficulty understanding the applicant's argument under this ground of appeal. It appears that his contention relates to Magistrate Goldberg's rejection of his counterclaim. That counterclaim was based on approximately 150 payments which were made by the defendants to the plaintiff. The applicant appears to accept that where a debtor owes more than one debt to a creditor, the creditor has the right to elect in respect of which debt the monies will be applied. The applicant's complaint appears to be that the plaintiff, in the course of giving her evidence, purported to exercise a right of appropriation such that monies received from the defendants were allocated towards the reduction of Ms Sinclair's loan account with A Great Little Event Company Pty Ltd. He contends that Ms Kirk had no right to exercise a right of appropriation for the first time when giving evidence.
44 The applicant's contention that Ms Kirk only exercised a right of appropriation when in the witness box is incorrect. It is clear from [2](c)(ii) of the defence to counterclaim,[40] together with [3] of the further and better particulars of the defence to counterclaim,[41] that the plaintiff elected to apply monies received from the defendants towards a reduction of Ms Sinclair's loan account well before the commencement of the trial in April 2015.
45 The application for leave to appeal is dismissed. The application was filed more than two months outside the prescribed 30 day period, which expired on 18 July 2016. No satisfactory explanation has been placed before the Court to explain the failure to file a notice of appeal immediately after 15 August 2016 when the applicant was provided with a certified copy of the Magistrates' Court order. The manner in which the applicant conducted the application for leave to appeal constitutes a further discretionary consideration which weighs against granting him leave to appeal. Neither of the reasons for the delay in filing his notice of appeal post 15 August 2016 had any factual basis. Further, he maintained allegations of fraudulent conduct without any proper basis for doing so. He thereby breached the overarching obligations to which he was subject under s 18(d) of the Civil Procedure Act 2010. In addition, the proposed grounds of appeal have insufficient prospects of success to warrant the grant of leave to appeal. I shall provide the parties with an opportunity to make submissions on the question of costs.
[1] See Transcript of Proceedings, Kirk v Sinclair (Magistrates' Court of Victoria, D11624070, Magistrate Goldberg, 3 June 2016).
[2] Order of the Honourable Magistrate Goldberg dated 17 June 2016.
[4] 'Further Amended Proposed Notice of Appeal' dated 27 June 2017.
[5] Lucas v Public Transport Corporation Victoria [2000] VSCA 35; (2000) 1 VR 156, [8] (Chernov JA); Carr v Finance Corporation of Australia Ltd [No 1] [1981] HCA 20; (1981) 147 CLR 246, 248 (Gibbs CJ).
[7] Popal v Accounts Control Management Services Pty Ltd [2010] VSC 412, [13] (Hargrave J).
[8] Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565, [27], [30], [31], [39] (Forrest J) (and cases cited therein) quoted or cited with approval in Miao v Body Corporate SP31235U [2013] VSC 380, [25]; Popal v Accounts Control Management Services Pty Ltd [2010] VSC 412, [15]; Adidem Pty Ltd v Cowdery [2014] VSC 533, [15]. See also Shire of Carnarvon v Klein Corporation Pty Ltd [2008] VSC 24, [28], [34], [35], [40], [41].
[9] Affidavit of Bernard Otieno Mako'ochieng sworn 11 November 2016, [3]-[10].
[11] Exhibit A: Bundle of documents attached to an email sent to the Court of Appeal registry on 15 July 2016 at 11:34pm, comprising documents titled 'application other than for leave to appeal' dated 15 July 2016, 'copy of order certified extract', and 'VSC notice of appeal' dated 15 July 2016.
[12] Affidavit of Bernard Otieno Mako'ochieng sworn 11 November 2016, "BOM 4".
[13] Popal v Accounts Control Management Services Pty Ltd [2010] VSC 412, [12].
[14] Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 25 July 2017) T44 LL3-6.
[15] Exhibit A: Bundle of documents attached to an email sent to the Court of Appeal registry on 15 July 2016 at 11:34pm, comprising documents titled 'application other than for leave to appeal' dated 15 July 2016, 'copy of order certified extract', and 'VSC notice of appeal' dated 15 July 2016.
[16] Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 25 July 2017) T3 LL11-30, T6 LL5-12.
[17] 'Notice of Appeal' dated 15 July 2016, 'Grounds of Appeal' [1].
[18] Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 25 July 2017) T35 L7 - T36 L9.
[19] Ibid T3 LL17-20, T10 LL7-8, T16 LL5-7.
[20] Exhibit B: Copy of email forwarded by the applicant to Mr Shane Draper on 15 July 2016 annexing reasons for judgment of the Magistrates' Court of Victoria.
[21] Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 25 July 2017) T6 L3 - T7 L3, T10 LL7-9.
[23] Order of the Honourable Justice McDonald dated 21 July 2017.
[24] Email from Christopher Ragozzino, Thexton Lawyers, dated 4 July 2017 in support of application by Thexton Lawyers to cease to act.
[25] Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 25 July 2017) T71 L9 - T72 L17.
[26] See Transcript of Proceedings, Kirk v Sinclair (Magistrates' Court of Victoria, D11624070, Magistrate Goldberg, 16 June 2016) T1, [3].
[27] Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 26 July 2017) T126 LL27-31.
[30] See 'Further Amended Proposed Notice of Appeal' dated 27 June 2017, 13, [1](w); Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 25 July 2017) T71 L9 - T72 L17.
[31] Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 25 July 2017) T64 L19 - T65 L16.
[32] Transcript of Proceedings, Kirk v Sinclair (Magistrates' Court of Victoria, D11624070, Magistrate Goldberg, 14 June 2016) T4 - T5, [47]-[57].
[33] Transcript of Proceedings, Mako'ochieng v Kirk (Supreme Court of Victoria, S CI 2016 03852, McDonald J, 25 July 2017) T82 LL9-21.
[34] Transcript of Proceedings, Kirk v Sinclair (Magistrates' Court of Victoria, D11624070, Magistrate Goldberg, 3 June 2016) T12, [96]-[103].
[35] 'Further Amended Proposed Notice of Appeal' dated 27 June 2017, 4, [4].
[37] Transcript of Proceedings, Kirk v Sinclair (Magistrates' Court of Victoria, D11624070, Magistrate Goldberg, 3 June 2016) T4, [37]-[38].
[38] 'Further Amended Proposed Notice of Appeal' dated 27 June 2017, 4, [5].
[40] 'Reply and Defence to Amended Counterclaim of Second Defendant' dated 17 September 2014, [2](c)(ii); 'Reply and Defence to Amended Counterclaim of Third Defendant' dated 17 September 2014, [2](c)(ii).
[41] 'Plaintiff's Further and Better Particulars of Defence to Amended Counterclaim' dated 27 February 2015, [3].
Mako'ochieng
Kirk [2017] VSC 459
(2000) 1 VR 156
(1981) 147 CLR 246