Applicant v Respondents

1 On 29 January 2021, I heard an application by the first to fourth respondents, Ian Donald Martin ('Martin'), Teresa Martin, Ross Harold Brabham ('Brabham'), and Margaret Brabham (collectively, relevantly for these purposes, 'the respondents'), that a proceeding in the Trial Division of the Supreme Court, proceeding S ECI 2020 04762, brought by the applicant, James Edward Miller ('Miller'), on 21 December 2020, be reserved for consideration of the Court of Appeal, pursuant to s 17B(2) of the Supreme Court Act 1986. The respondents also sought that proceeding S ECI 2020 04762 be heard at the same time as a proceeding brought by Miller that is listed to be heard by the Court of Appeal on 12 February 2021, proceeding S EAPCI 2020 0005.[1]

3 After hearing from Miller, who appeared as a self-represented litigant, and from counsel for the respondents, I acceded to both applications and made the following orders, in respect of Supreme Court proceeding S ECI 2020 04762:

1. This proceeding is reserved for the consideration of the Court of Appeal under s 17B(2) of the Supreme Court Act 1986.

2. This proceeding be heard together with proceeding S EAPCI 2020 0005 on 12 February 2021 at 9:30 am and any relevant material filed in proceeding S EAPCI 2020 0005 stand as material relied upon by the parties in proceeding S ECI 2020 04762.

4 I indicated that directions for the filing of further submissions would be made by the registry of the Court of Appeal. The matter has now been allocated proceeding number S EAPCI 2021 0009 in the Court of Appeal.

5 I also indicated that I would deliver written reasons for acceding to the two applications. These are those reasons.

6 The two proceedings referred to are amongst those of several brought by Miller arising from a dispute about the ownership of a beach house at 3 Robyn Road, Moggs Creek, Victoria ('the Moggs Creek beach house').

7 In summary, Miller and the first and third respondents, Martin and Brabham, first purchased the Moggs Creek beach house together in 1986 as tenants-in-common in equal shares. Later, in 1990, the names of Miller's wife, the names of the wives of Martin and Brabham, and the names of four of their family friends were registered on the title.

8 On 26 February 2015, Miller applied to the Victorian Civil and Administrative Tribunal ('VCAT') ('the VCAT proceeding') for a declaration that the respondents held their interests in the Moggs Creek beach house on a resulting or constructive trust for him ('the trust claims'). In the alternative, he sought an order that the beach house be sold and that all proceeds be distributed to him pursuant to ss 228 and 233 of the Property Law Act 1958 ('the statutory claims'). The VCAT proceeding is proceeding BP244/2015.

9 On 26 May 2016, orders were made in the VCAT proceeding by Senior Member Walker dismissing the application and reserving costs. An amended order was subsequently made on 3 June 2016, with the Member's reasons published that same day ('the original VCAT decision').[2] Senior Member Walker determined that Miller had entered into a partnership with Martin and Brabham in 1980, and that the Moggs Creek beach house was bought from funds jointly owned by that partnership. The trust claims therefore failed. The Senior Member did not deal with the statutory claims.

10 On 23 June 2016, Miller applied to the Trial Division of the Supreme Court for leave to appeal against the original VCAT decision, which was granted. Mukhtar AsJ found that VCAT was correct to dismiss the trust claims but found that it had failed to deal with the statutory claims ('the substantive Mukhtar AsJ decision').[3] On 10 August 2018 he ordered that the matter be remitted to Senior Member Walker for determination of the statutory claims.

11 However, before Muhktar AsJ delivered his judgment or made orders, on 7 August 2018 Miller applied by summons seeking the respondents' solicitors' files in relation to the proceeding. On 13 August 2018, Mukhtar AsJ dismissed Miller's summons.[4]

12 In September 2018, Miller filed an application for leave to appeal to the Court of Appeal from the substantive Mukhtar AsJ decision and a separate application for leave to appeal to the Court of Appeal from the orders dismissing his summons.

13 Before those appeals were heard, Miller sought an order in the Court of Appeal restraining the respondents' legal practitioners from acting in those appeals. On 16 April 2019, the Court of Appeal dismissed the restraint application.[5]

14 Miller applied to the High Court for special leave to appeal from the Court of Appeal's dismissal of the restraint application. This was refused on 17 October 2019 on the ground that the High Court considered that the application for special leave did not raise any doubt as to the correctness of the decision of the Court of Appeal.[6] On 6 November 2019 Miller again sought special leave to appeal the dismissal of the restraint application, this time in relation to an amendment made under the 'slip rule' to the final orders of the Court of Appeal. Special leave was again refused.

15 On 4 December 2019, the Court of Appeal (Niall, Hargrave and Ashley JJA) heard the application for leave to appeal from the substantive Mukhtar AsJ decision and the decision dismissing the summons for production of the respondents' solicitors' files. On 30 January 2020, the Court granted leave to appeal but dismissed the appeal.[7]

16 During the course of the hearing before the Court of Appeal, the Court was informed that orders had been made in the VCAT proceeding by Senior Member Walker, after the matter had been remitted to VCAT. On 30 September 2019, Senior Member Walker made final orders for the sale and distribution of the proceeds of sale of the Moggs Creek beach house ('the sale and distribution decision'). Written reasons were published on 8 January 2020.[8]

17 The final orders provide for the sale of the Moggs Creek beach house under the direction of an independent solicitor, with the net balance of the sale proceeds to be distributed in accordance with the registered interests on title, with Miller having the opportunity to satisfy the independent solicitor that the interests of the co-owners other than the respondents have in fact been transferred to him.

First appeal - the sale and distribution decision - S EAPCI 2020 0005

18 On 3 December 2019, Miller filed a Notice of Appeal in the Trial Division applying for leave to appeal against the sale and distribution decision, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'), proceeding S ECI 2019 05551, ('the first appeal'). On 29 January 2020, Miller filed an Amended Notice of Appeal.[9]

19 In the first appeal, as amended, Miller seeks the following relief:

1. The appeal be allowed.

2. The orders made by Senior Member Walker on 30 September 2019 in VCAT proceeding No BP244/2015 be set aside.

3. The Written Reasons by Senior Member Walker dated 8 January 2020 in VCAT be set aside.

4. The sale of the property at 3 Robyn Road, Moggs Creek, Victoria be stayed.

5. An order that the matter BP244/2015 be remitted to the Victorian Civil and Administrative Tribunal differently constituted to be heard in accordance with the law.

6. Such further or other Orders as the Court deems fit.

7. The respondent pay the Appellants costs of the appeal and of VCAT proceeding No BP244/2015.

20 On 29 January 2020, Hargrave JA made orders, on the request of the respondents, directing that the application for leave to appeal be reserved for consideration by the Court of Appeal.[10] The orders were made pursuant to the discretionary power conferred under s 17B(2) of the Supreme Court Act. This provides:

17B Reference of matters to Court of Appeal

...

(2) The Trial Division constituted by a Judge of the Court or constituted by an Associate Judge may, at the request of one of the parties but (unless the contrary is expressly enacted) not otherwise, reserve any proceeding or question in a proceeding for the consideration of the Court of Appeal, or direct any proceeding or question in a proceeding to be argued before the Court of Appeal.

...

21 Hargrave JA observed that the overarching purpose of the Civil Procedure Act 2010 is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. A court is obliged to seek to give effect to the overarching purpose. He considered that it would be contrary to the overarching purpose of the Civil Procedure Act for proceeding S ECI 2019 05551 to take its usual course before the Trial Division. He recognised the high likelihood that Miller would ultimately seek leave to appeal from any determination in the Trial Division with respect to the sale and distribution decision and considered that it was in the interests of all the parties that the proceeding be resolved as soon as possible.[11]

22 The first appeal was assigned proceeding number S EAPCI 2020 0005 in the Court of Appeal and listed for hearing on 31 July 2020. However, the hearing date was vacated by Niall JA on 10 July 2020 in order to permit the first appeal to extend to the determination of costs in respect of the VCAT proceeding so that, for the avoidance of a multiplicity of proceedings, all remaining issues arising from the VCAT proceeding could be dealt with together. Niall JA noted in paragraph 5 under 'Other matters' in his orders as follows:

To avoid the risk of a multiplicity of proceedings, it is in the interests of justice that final orders on all issues be made by VCAT and that there are no remaining issues to be determined in the VCAT proceeding, and any appeal from orders yet to be made by VCAT in that proceeding can be dealt with in the context of this proceeding, the Court has decided to vacate the hearing listed for 31 July 2020 ....

23 Senior Member Walker delivered his costs judgment in the VCAT proceeding on 4 November 2020 ('the costs decision').[12] He dismissed the respondents' application for costs. The first appeal is now listed for hearing in the Court of Appeal on 12 February 2021.

Refusal for a further directions hearing in the VCAT proceeding

24 On 24 November 2020, Miller applied for a directions hearing and orders in the VCAT proceeding. On 27 November 2020, Customer Service, Civil Division, at VCAT emailed Miller informing him that his application for a directions hearing had been referred to Senior Member Walker who had confirmed that the VCAT proceeding was finalised following the costs decision and that, therefore, 'there is no current proceeding before the Tribunal' ('the refusal decision').

25 On 11 December 2020, VCAT sent Miller a further email that said:

Dear Mr Miller,

Proceeding BP244/2015 relating to the ownership of the property at Moggs Creek has been finally determined and is now at an end. The Tribunal has no power to revisit its decisions and change the orders that were made. All that it can do is make orders in aid of enforcement relating to the sale that has been ordered.

If you are dissatisfied with a decision of the Tribunal, the only remedy is to appeal and we note that you have done that.

It is not appropriate to write directly to a member of the Tribunal and no such communications will be directed to the member concerned.

Second appeal - the sale and distribution decision, the costs decision, the refusal decision, and the original VCAT decision - S ECI 2020 04762

26 On 21 December 2020 Miller submitted a second Notice of Appeal and two unsworn affidavits[13] in the Court of Appeal proceeding S EAPCI 2020 0005. By the second Notice of Appeal, Miller seeks leave to appeal against decisions made by Senior Member Walker in the VCAT proceeding. As none of those decisions were made by the President or Vice President, the appeal lies to the Trial Division of the Supreme Court pursuant to s 148 of the VCAT Act. Accordingly, the second Notice of Appeal was treated as having been filed in the Trial Division and allocated proceeding number S ECI 2020 04762 ('the second appeal').

27 In the second appeal Miller seeks leave to appeal against decisions and orders of Senior Member Walker in the VCAT proceeding, including the refusal decision, the original VCAT decision, the sale and distribution decision, and the costs decision.

28 In the second appeal, Miller seeks the following relief:

1. The appeal be allowed.

2. The Decision made by Senior Member R. Walker dated 27 November 2020 [the refusal decision] and the email from VCAT made on 8 December 2020[[14]] be set aside, and that the Applicants Application for Directions and Hearing be accepted.

a. The Applicant's Caveat lodged on 15 September 2011 under the Land Transfer Act 1958 be accepted.

b. The Applicants' Application for 'the statutory claims' under the Property Law Act 1958 (Vic) be declared and affirmed as successful.

c. The Applicants loans to the respondents be repaid, including penalty interest.

d. The Applicant is awarded costs as from 15 September 2011, including an hourly rate of $220 per hour (billing rate as James Miller Forensics).

3. Paragraph 1 of the Orders of Senior Member R. Walker dated 26 May 2020 and 3 June 2020 [the original VCAT decision] be set aside, in accordance with the Order of Associate Justice Mukhtar dated 10 August 2018.

4. The Orders made by Senior Member Walker on 30 September 2019 in VCAT proceeding No BP244/2015 [the sale and distribution decision] be set aside or amended on the basis that I provided a submission by Affidavit dated 20 June 2019 which was stamped RECEIVED by VCAT on 20 Jun 2019.

5. The written reasons by Senior Member Walker dated 8 January 2020 in VCAT be set aside [the sale and distribution decision].

6. The sale of the property at 3 Robyn Road, Moggs Creek, Victoria be stayed.

7. Such further or other Orders as the Court deems fit.

8. The respondent pay the Appellants costs of the appeal and of VCAT proceeding No BP244/2015, and related proceedings [the costs decision].

29 On 13 January 2021 the respondents made a request that the second appeal, proceeding S ECI 2020 04762, also be reserved for consideration of the Court of Appeal, pursuant to s 17B(2) of the Supreme Court Act.[15] The respondents also applied for the second appeal to be heard at the same time as the first appeal on 12 February 2021. It was these applications that I heard and determined at the directions hearing on 29 January 2021.

30 The principles relevant to the reservation of a matter for appellate determination were discussed by Brooking J in Collins v Black,[16] and have since been reiterated by the Court of Appeal.[17] In short, there is no prescriptive criteria and there is no single factor alone that warrants a matter being so reserved; rather, everything depends on the circumstances of each case. However, relevant considerations may include whether the appeal is confined to a question of law alone, the inevitability of an appeal from whatever decision is made at first instance, whether there is an advantage of convenience and any need for expedition in respect of the resolution of the proceedings.[18] A factor tending against reservation of a matter for appellate determination is that the appeal court will determine issues without having the advantage of those issues being defined and considered at first instance.[19]

31 The question of whether two matters will be heard at the same time depends, amongst other things, on the degree to which the issues in one proceeding are intertwined with those in the other. Where one proceeding involves a set of issues, of fact and law, that are common to another proceeding, and the first proceeding is already on foot in the Court of Appeal, this provides strong grounds of both convenience and expedition for the second proceeding to be reserved for the consideration of the Court of Appeal under s 17B(2), so that the common issues can be determined at the same time.

32 In the circumstances, the first question was whether the first and the second appeal should be heard together.

33 As the respondents emphasised, it is clear that there are substantial similarities between the first and second appeal. They ultimately relate to the same factual controversy, namely, the dispute over the ownership of the Moggs Creek beach house. They both seek to challenge the finding of the existence of a partnership between Miller, Martin and Brabham and the evidence that was relied upon to support that finding. In particular, it is apparent from the procedural history described above that Miller is seeking to challenge the sale and distribution decision in both the first and the second appeal. Furthermore, there is a substantial overlap in the relief sought in the first and second appeal, in particular, the stay of the sale of the Moggs Creek beach house.

34 Although the second appeal has a broader compass than the first appeal, these core similarities give rise to a risk that there could be inconsistent determinations if the matters were not heard together by the same bench. Resolution of one proceeding might give rise to an issue estoppel for the other, or simply render those proceedings moot.

35 There is also the live question, based upon abuse of process,[20] of the extent to which Miller is precluded from impugning the original VCAT decision when there have already been appeals from the original VCAT decision to the Trial Division[21] and, in turn, to the Court of Appeal.[22] This may confine the ambit of the second appeal so that the overlap between it and the first appeal is larger.

36 Furthermore, as Niall JA recognised in the orders he made, referred to above,[23] there is an undesirability of permitting a multiplicity of concurrent proceedings to arise out of the same dispute.

37 In my view, the issues are sufficiently intertwined in the first and second appeals that the just, efficient, timely and cost-effective resolution of the real issues in dispute overwhelmingly supports them being heard together. There is a distinct advantage of convenience for the two appeals to be heard together.

38 This conclusion is in itself an important factor supporting the second appeal being heard in the Court of Appeal.

39 However, there are independent reasons for concluding that the second appeal ought be reserved for consideration of the Court of Appeal. First, under s 148 of the VCAT Act, the second appeal is confined to an appeal on a question of law (as is the first appeal). As Hargrave JA observed, with respect to the first appeal, '[t]here is no trial to be had involving the adducing of evidence, or pre-trial procedures such as discovery and the like'.[24] This applies also to the second appeal. This is so whether the second appeal was to be heard by a judge in the Trial Division or by the Court of Appeal.

40 Furthermore, if the second appeal was to be heard in the Trial Division, any decision by a single judge would almost certainly be appealed. As Hargrave JA noted, it is 'overwhelmingly likely' that Miller will seek leave to appeal any decision made against him in the Trial Division. In other words, an appeal in this matter is almost inevitable. At the directions hearing Miller confirmed, stridently, that his usual course is to appeal any decision made in this matter. This is demonstrated by the significant number of appeals Miller has brought since the original VCAT decision. There is the corresponding risk that, if a decision in the Trial Division on the second appeal was adverse to the respondents, they would seek to appeal. Reserving the second appeal for the consideration of the Court of Appeal 'avoids the intermediate step'.[25]

41 There is the further relevant consideration of the delay that has already occurred in the resolution of this dispute. The VCAT proceeding commenced six years ago, in February 2015, and the events which underpin the dispute occurred almost 40 years ago. If the second appeal were not reserved for consideration of the Court of Appeal, there would be further delay, and additional costs, in reaching a final resolution of the dispute. In my view, it would be inconsistent with this Court's obligation to further the overarching purpose of the Civil Procedure Act not to make orders that would facilitate the timely determination of the proceeding and bring finality to the dispute.

42 I considered that, cumulatively, these factors override the consideration that the Court of Appeal will determine issues without having the advantage of those issues being defined and considered at first instance. I also considered that these factors outweigh the objection expressed by Miller at the directions hearing that if the second appeal were to be heard by the Court of Appeal this would limit his appeal rights to seeking special leave to appeal to the High Court which is difficult for a self-represented litigant.

43 In accordance with the orders I made on 29 January 2021, the second appeal ought be heard by the Court of Appeal, together with the first appeal, on 12 February 2021.

[1] I heard the applications sitting as an additional Judge of the Trial Division. See Constitution Act 1975 s 80C(2).

[2] Miller v Martin [2016] VCAT 854.

[3] Miller v Martin [2018] VSC 444.

[4] Miller v Martin (Supreme Court of Victoria, Mukhtar AsJ, 13 August 2018).

[5] Miller v Martin [2019] VSCA 86.

[6] Miller v Martin [2019] HCASL 341.

[7] Miller v Martin [2020] VSCA 4. Both applications for leave to appeal had been deemed to be abandoned under r 64.45(2)(a) of the Supreme Court (General Civil Procedure) Rules 2015. The Court of Appeal refused to reinstate the application for leave to appeal from the decision dismissing the summons because it was so devoid of merit that it was bound to fail: Miller v Martin [2020] VSCA 4, [24]. The Court granted reinstatement of the application for leave to appeal against the substantive Mukhtar AsJ decision and, as mentioned, granted leave to appeal but dismissed the appeal.

[8] Miller v Martin [2020] VCAT 29.

[10] Miller v Martin (Ruling No 1) (Supreme Court of Victoria, Hargrave JA, 29 January 2020). He also granted Miller leave to amend his Notice of Appeal. The Amended Notice of Appeal is dated 16 January 2020 and was filed on 29 January 2020.

[11] Miller v Martin (Ruling No 1) (Supreme Court of Victoria, Hargrave JA, 29 January 2020) [23].

[12] Miller v Martin (Costs) [2020] VCAT 1218.

[13] These were dated 24 November 2020 and 3 December 2020 respectively.

[14] The materials filed by Miller do not appear to include an email dated 8 December 2020. I have taken it that Miller is referring to the email sent to him by VCAT on 11 December 2020 (see [25] above).

[15] On 24 December 2020 a letter was sent from the Prothonotary to the parties concerning the second appeal. As part of the explanation that the documents were treated as having been filed in the Trial Division, it was noted that the parties could apply to have the proceeding reserved for the consideration of the Court of Appeal pursuant to s 17B(2) of the _Supreme Court Ac_t.

[16] [1995] VicRp 26; [1995] 1 VR 409, 410.

[17] De Simone v Bevnol Constructions & Developments Pty Ltd [2010] VSCA 231; (2010) 30 VR 200, 209 [38] (Redlich, Mandie and Hansen JJA); [2010] VSCA 231.

[18] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2014] VSCA 348; (2014) 45 VR 571, 574-5 [18]-[22] (Maxwell P, Neave, Redlich and Beach JJA and Kaye AJA); [2014] VSCA 348.

[20] State Bank of New South Wales v Alexander Stenhouse Ltd (1997) Aust Torts Reports 81-423.

[21] Miller v Martin [2018] VSC 444 (Mukhtar AsJ).

[22] Miller v Martin [2020] VSCA 4.

[23] See [22] above.

[24] Miller v Martin (Ruling No 1) (Supreme Court of Victoria, Hargrave JA, 29 January 2020) [20].

[25] Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2014] VSCA 348; (2014) 45 VR 571, 575 [22] (Maxwell P, Neave, Redlich and Beach JJA and Kaye AJA); [2014] VSCA 348.