Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd

Court of Appeal (Vic)|2016-07-29|Before: McLeish JA, Tate JA, Leish JA

PRACTICE AND PROCEDURE - Application that leave to appeal not be taken to be abandoned - Failure to deliver application book by due date - Whether delay attributable to applicant - Onus as to showing prospects of proposed appeal - Whether failure of proposed appeal 'plainly demonstrable' - Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd [1995] VicRp 9; - rr 64.45-64.46 - Application for leave to appeal not taken to be abandoned.

1 I have had the benefit of reading, in draft form, the reasons of McLeish JA. For the reasons his Honour gives, I agree that the Court should order, pursuant to r 64.45(4)(a), that the application for leave to appeal is not taken to be abandoned and that the Court should decline to make any order dismissing the application for leave to appeal under r 64.46. I also agree that the question of costs should be reserved to the hearing of the application for leave to appeal.

2 This is an application for orders that an application for leave to appeal, taken to be abandoned under the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules'), be not taken to be abandoned.[1]

3 The matter has a long history but the essential elements are as follows.

4 On 31 August 2015, the applicant filed an application for leave to appeal in respect of orders made in the Trial Division on 24 July 2015. It is not necessary for present purposes to canvass the issues or the nature of the orders in question. The applicant applied for a stay of the orders of the trial judge on 31 August 2015. The respondent filed an application for security for costs on 28 September 2015.

5 Following delays due in substantial part to the ill health of the sole director of the applicant, the applications for a stay and for security for costs were not heard until 18 February 2016. The stay of the orders of the trial judge was refused while security for costs was ordered in the amount of $40,000, to be paid by 18 March 2016.[2] The application for leave to appeal was stayed pending the provision of security.

6 Security was paid into Funds in Court in compliance with the order of 18 February 2016. The Judicial Registrar thereafter issued revised timetabling orders for the leave to appeal application.

7 By those orders, the applicant was ordered to file and serve 'an agreed revised leave application book index' complying with certain requirements on or before 19 April 2016. The leave application book itself was ordered to be delivered to the Judicial Registrar and to the respondent on or before 20 April 2016. Subject to any corrections required by the Judicial Registrar, the remaining copies of the leave application book were required to be delivered by 21 April 2016. The applicant was ordered to file an electronic copy of the book as well on that day.

8 The leave application book was not delivered on 20 April 2016 as the orders required. The Registry advised the parties that the matter was accordingly deemed abandoned by operation of r 64.45 of the Rules.

64.45 Application or appeal taken to be abandoned

(1) Without limiting or affecting any power of the Court of Appeal or any order that the Court of Appeal may make in relation to compliance with the requirements of these Rules (including this Order) or compliance with any direction given or order made in or in relation to a proceeding in the Court of Appeal, an application, including for leave to appeal, or an appeal is taken to be abandoned if an applicant or appellant does not -

(a) take any step required to be taken by or under this Order within 30 days after the expiry of the time fixed or allowed by or under this Order;

(b) comply with any direction given or order made by the Court of Appeal (constituted by one or more Judges of Appeal) or by an Associate Judge or by the Registrar within 30 days after the expiry of the time fixed or allowed by the direction or order.

(2) If an applicant or appellant does not deliver to the Registrar a leave application book or an appeal book as required or directed by or under Rule 64.25 or does not serve copies of the leave application book or appeal book within the time fixed or allowed by the Registrar, the application or appeal -

(a) is taken to be abandoned; and

(b) may be referred for dismissal under Rule 64.46.

(3) If an application for leave to appeal or an appeal is taken to be abandoned in accordance with paragraph (1) or (2), the applicant or appellant shall pay each respondent's costs of the application for leave to appeal or appeal on an indemnity basis, unless the Court of Appeal otherwise orders.

(4) Notwithstanding paragraph (1) -

(a) the Court of Appeal may at any time order that an application, including for leave to appeal, or an appeal is not taken to be abandoned;

(b) within 28 days after the day on which an application, including for leave to appeal, or appeal is taken to be abandoned, the Registrar may order by consent of all the parties that the application or appeal is not taken to be abandoned.

10 Rule 64.45(2)(b) contemplates that the application or appeal may be referred for dismissal under r 64.46. That rule provides as follows:

64.46 Dismissal for want of prosecution or non-compliance

(1) The Court of Appeal constituted by one or more Judges of Appeal may make an order dismissing an application, including for leave to appeal, or appeal for -

(a) failure to comply with an order or direction of the Court of Appeal or of the Registrar;

(b) failure to comply with any provision of these Rules;

(c) failure to attend a hearing relating to the application or appeal; or

(d) want of prosecution.

(2) An order under paragraph (1) may be made -

(a) of the Court of Appeal's own motion; or

(b) on the application of a party.

(3) If an application or appeal is dismissed pursuant to this Rule, the applicant or appellant shall pay each other party's costs of the application or appeal on an indemnity basis, unless otherwise ordered by the Court of Appeal.

11 On 9 May 2016, orders were made by consent that, pursuant to r 64.45(4)(b), the application for leave be taken not to be abandoned and that the orders made by the Judicial Registrar be varied. The application book was thereafter due for delivery by 11 May 2016. Again, this did not happen. As a result, r 64.45(2) operated with the effect that the application for leave to appeal was once more taken to be abandoned.

12 On this occasion, the respondent did not consent to orders having the effect of reinstating the application. Instead, the Judicial Registrar referred the matter to the Court for dismissal pursuant to r 64.46(1). The parties were invited to file written submissions in relation to that matter.

13 The applicant filed submissions seeking that the application not be dismissed. In effect, the submissions sought a fresh order that the application be taken not to be abandoned.

14 In essence, the applicant submits that it was unable to comply with the directions of the Court due to the conduct of the respondent. That matter is contested by the respondent. Neither side sought to file any affidavit in support of their respective submissions. However, it appears that, with respect to the first occasion when the application was taken to be abandoned, the stay of the application pending the provision of security led to a situation in which the applicant was not in a position to file the application book because the respondent had not commented on the proposed leave application book index. It also appears that the applicant failed to pursue the respondent regarding these matters until the day before the application book was originally required to be filed. Whatever the reason, however, the net effect was that not long before the application was first taken to be abandoned, the applicant had received the respondent's comments on the draft application book index but had only one day remaining in which to deliver the application book.

15 The timetable which was then fixed after the application was reinstated on 9 May 2016 was, by consent, a very tight one. That was in large part because the application for leave to appeal, and any appeal, were listed for hearing on 19 May 2016. At all events, the leave application book index was the subject of further dealings between the parties and appears not to have been finally agreed upon until 10 May 2016. That document was filed with the Court on 10 May 2016, a day after the revised date that had been agreed. However, the application book was not filed by 11 May 2016 as required. The material before the Court does not enable a finding to be made as to why this was so. Again, however, the available time for compliance once agreement on the index was achieved was very short.

16 The respondent contends that the failure of the applicant to file the application book by 11 May 2016 was neither isolated nor inadvertent and that the applicant's history of delay and want of compliance with orders of the Court and directions to the Registry should be regarded as blameworthy conduct. It submits that any prejudice that the applicant may suffer if the leave application were to be dismissed is outweighed by the prejudice to the respondent, which is already considerable.

17 The respondent also submits that the Court should consider the issues sought to be raised in the proposed appeal before deciding whether or not to grant an indulgence of time. It submits that the applicant has not discharged its burden of demonstrating that its application for leave has any real prospect of success or that it should be granted any further indulgence as to time. It is convenient to consider that submission first.

18 The onus in the present application rests on the applicant. It must persuade the Court that, contrary to the provision of the Rules deeming the application to be abandoned, the application should be allowed to proceed. However, it does not follow that the applicant has the burden of demonstrating that its application for leave has real prospects of success. Rather, the prima facie position is that, if the length of the period of default is short and there is adequate reason for it, in the normal course of events the Court is likely to grant the order sought. It is otherwise if the making of the order would be futile by virtue of the proposed appeal being so devoid of merit that the making of the order would create an injustice to the respondent and needless expenditure of public funds.[3] Argument as to the prospects of success of the proposed appeal is therefore not encouraged unless the failure of the appeal is 'plainly demonstrable'.[4]

19 The respondent has not sought to establish that the application for leave to appeal is so devoid of merit that it would be futile to make the order the applicant now seeks. It has merely submitted that the applicant is required to establish that it has real prospects of success. As explained, that is not the case. As a result, there is no basis for concluding that the proposed appeal is devoid of merit, and the merits of the proposed application for leave to appeal do not need to be considered further.

20 It is then necessary to consider the exercise of the discretion under r 64.45(4)(a). It may be observed at the outset that the opening words of r 64.45(4), 'Notwithstanding paragraph (1)', should not be read as words of limitation. In other words, it should not be thought that the Court has power to order that an appeal or application for leave to appeal is not taken to be abandoned only in cases of abandonment under r 64.45(1) and not under r 64.45(2). No apparent purpose would be served by such a construction. It would also have the perverse effect of meaning that the only redress available to an applicant in a case of abandonment under r 64.45(2) would be to successfully resist an application for dismissal under r 64.46. Such an application might never be made. And it would be perverse if the onus of bringing the case to an end rested on the party seeking dismissal, when the proceeding is already taken to have been abandoned.

21 The power of the Court under r 64.45(4)(a) was formerly found in r 64.12(2). It was held of that provision that the Court's discretion was as 'broad, wide and deep as the circumstances demand'.[5] Tadgell J, with whom Cummins J agreed, put the matter this way:[6]

If, upon the material before it, the court perceives that it would be unjust to an appellant that an appeal should be taken to be abandoned despite noncompliance with the relevant rules, it may exercise a discretion in favour of the appellant if it seems appropriate to do so, taking account of the legitimate interest of the respondent to the appeal to insists on an adherence to the rules. ... [T]he court is required to determine what, in its opinion, is the just way in which its discretion should be exercised. This would involve weighing up the extent to which the appellants would be prejudiced by leaving the appeal to stand as though abandoned and any prejudice to the respondent to the appeal by ordering that it not be taken to be abandoned.

22 Reference must now be added to s 8 of the Civil Procedure Act 2010, which obliges the Court when exercising its powers to give effect to the overarching purpose of that Act, namely to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. This acknowledges the importance of not only the just resolution but also the timely resolution of proceedings, which in turn underscores the importance of compliance with orders of the Court for the management of a proceeding.[7]

23 The history of delay in this proceeding is unsatisfactory. The Court is not, however, in a position to attribute blame as between the parties for that state of affairs. It is plain that there was considerable delay in the parties reaching agreement as to the contents of the application book index. However, that has now been done. There is therefore no practical impediment remaining to the taking of the remaining steps necessary for the hearing of the application for leave, and any appeal, to proceed. The failure of the applicant to deliver the application book by 11 May 2016, which is the failure with which the present application is concerned, has been shown to be explicable. Notwithstanding the unimpressive record of the applicant in complying with the Court's orders in this matter, the default on this occasion was relatively slight, despite the significance which the Rules attach to delivery of the application book.

24 The question of prejudice was raised by the respondent in its submissions, albeit without elaboration. The respondent has not explained why any prejudice which it would suffer by the reinstatement of the application could not be met by appropriate orders as to costs. The failure of the applicant to file the application book in accordance with the orders of the Court may well have costs consequences. For the reasons already set out, and because submissions have not been made, it would be premature to say anything further on that subject. However, in that connection it should be mentioned that the applicant has not sought any order relieving it from the operation of r 64.45(3). Questions of costs will fall to be considered once the application for leave, and any appeal, have been determined.

25 For the above reasons, in my opinion it would be unjust to prevent the applicant from prosecuting its application for leave, and any appeal, by reason of its failure to deliver the application book on 11 May 2016. The application for leave to appeal should be allowed to proceed on its merits.

26 The Court should order that the application for leave to appeal not be taken to be abandoned. The Court should decline to make any order dismissing the application under r 64.46. The question of costs should be reserved to the hearing of the application.

27 Finally, it must be emphasised that, barring unforeseen and exceptional circumstances, the applicant is likely to have exhausted the indulgence of the Court in relation to the need to comply with orders for the preparation of the application. In particular, if the applicant fails to deliver its application book on the date which the Judicial Registrar will now direct, its application will be taken to be abandoned under r 64.45(2) for a third time and there is at present every reason to expect that the application would then be dismissed.

[1] The Court decided to determine the matter on the papers in order to avoid further costs: see Civil Procedure Act 2010 s 8.

[2] Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2016] VSCA 19.

[3] Sedrak v Carney [1998] VSCA 114; [1999] 3 VR 95, 97 [15]-[16] (Chernov JA).

[4] Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd [1995] VicRp 9; [1995] 1 VR 150, 152 (Tadgell J; Cummins J agreeing). See also Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2010] VSCA 218 [6] (Redlich JA and Beach AJA).

[5] Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd [1995] VicRp 9; [1995] 1 VR 150, 152. See also Longreach Family Living (Vic) Pty Ltd v Simonds Homes Melbourne Pty Ltd [2013] VSCA 274 [35] (Tate JA; Hansen JA agreeing).

[6] Lagarna Pty Ltd v Bridge Wholesale Acceptance Corporation (Aust) Ltd [1995] VicRp 9; [1995] 1 VR 150, 152.

[7] See, in the context of applications for summary dismissal, Sullivan v Greyfriars Pty Ltd [2015] VSCA 196 [23] (Whelan and McLeish JJA).

Court (General Civil Procedure) Rules 2015

Supreme Court (General Civil Procedure) Rules 2015

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