Chand v RailCorp

Court of Appeal (NSW)|2010-09-06|Before: McColl JA, Coll JA

Background 2 The Costs Decision was delivered on 2 March 2010, which was the material date. On 30 March 2010, twenty-eight days after the material date, Ms Chand filed a notice of intention to seek leave to appeal from that decision. On 28 June 2010, four months and six days after the material date, Ms Chand filed a summons seeking leave to appeal from the Costs Decision. The combined effect of UCPR 51.9 and 51.10 is that the summons seeking leave to appeal should have been filed and served within three months after the material date. The summons was, accordingly, filed approximately five weeks out of time. The Court has power to extend the time within which the summons seeking leave to appeal may be filed: UCPR 51.9(b). 3 Ms KT Nomchong, who appeared for RailCorp, accepted that it was commonsense to deal first with Ms Chand's application for leave to extend time in which to file her summons seeking leave to appeal. As shall become apparent, arguments advanced by Ms Nomchong seeking to resist the orders Ms Chand sought were also relevant to RailCorp's motion seeking to strike out the summons seeking leave to appeal. 4 Ms Chand submitted that both motions had to be determined in accordance with the dictates of justice as required by s 58 of the Civil Procedure Act 2005 (NSW). She also submitted, citing Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274, a case which concerned dismissal for want of prosecution, that her application for an extension of time and, conversely, the motion seeking to dismiss her summons could not be acceded to unless it was demonstrated that her default had been intentional and contumelious or unless there had been an inordinate and inexcusable delay giving rise to serious prejudice to RailCorp: Micallef (at [50]). In fact, Heydon JA, who delivered the lead judgment in Micallef, held (at [51]) that the tests to which Ms Chand referred, and the defaulting party there sought to propound, were not part of the law in New South Wales, but that, in any event, in that case certain of those propositions were made good as a matter of fact. I shall return to the facts of this case in that light in due course. 5 RailCorp accepted that after Ms Chand had filed the summons and a White Book, the application for leave to appeal from the Costs Decision was ready in so far as Ms Chand's obligations were concerned. However, it submitted that the question whether the application for an extension of time should be granted turned on consideration of four factors set out by Basten JA in Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55]), namely, the length of the delay, the reason for the delay, whether the applicant had a fairly arguable case and the extent of any prejudice suffered by the respondent to the application. 6 RailCorp placed particular emphasis on the question whether Ms Chand had a fairly arguable case, contending that the application for leave to appeal, when one had regard to the proposed grounds of appeal, was so hopeless that the Court should not accede to her application for an extension of time. It also contended there was no proper explanation for the delay and that it would be prejudiced by having to prepare to respond to the application for leave to appeal. 7 I am prepared to assume for present purposes that Tomko applies to an application to extend the time to file a summons seeking leave to appeal, although Tomko concerned an extension of time to file an appeal pursuant to Pt 51.5(1) of the Supreme Court Rules 1970 which is not strictly in the same terms as that under consideration in the present case. However, in this respect it is relevant to note that Basten JA observed (at [58]): "58 There is a danger in placing too much emphasis on the prospects of success: to do so invites the parties to treat the application as a dress rehearsal for the full appeal: see Jackamarra at [9]. In my view, it is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case: it was not necessary nor appropriate to demonstrate in any detail the prospects of success. For present purposes it is sufficient to say that a number of grounds are fairly arguable and one at least has reasonable prospects of success." (emphasis added)

Nature of the proceedings 8 In the light of RailCorp's emphasis on the arguability of Ms Chand's application for leave to appeal, it is appropriate to have regard to the nature of the proceedings. 9 Ms Chand is a self-represented litigant. She made complaints of discrimination and harassment against RailCorp, which the President of the Anti-Discrimination Board referred to the Administrative Decisions Tribunal of New South Wales pursuant to s 93C of the Anti-Discrimination Act 1977 (NSW). 10 On 17 April 2007 the Tribunal at first instance dismissed Ms Chand's complaints of discrimination and harassment against RailCorp without making any order as to costs: Chand v State Rail Authority [2007] NSWADT 90. For reasons explained in the Costs Decision, the Tribunal did not deal with the costs outcomes of its decision, either in its original reasons, nor by giving the parties an opportunity to make an application for costs after the decision was handed down. 11 Ms Chand appealed to the Appeal Panel against the Tribunal's decision to dismiss her complaints. After extending the appeal to the merits of the Tribunal's decision on certain issues, on 30 April 2009 the Appeal Panel dismissed the appeal and ordered that any application for costs be made within 28 days of the date of the decision: Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 (the "substantive proceedings"). 12 RailCorp then applied for costs in relation to the appeal and in relation to the entire proceedings at first instance. Ms Chand also applied for her costs in relation to the first instance proceedings and in relation to the Appeal Panel proceedings: Costs Decision (at [2]). 13 RailCorp was ultimately successful in obtaining an order from the Appeal Panel that Ms Chand pay its costs of two successful adjournment applications she had made in relation to the Tribunal proceedings. 14 The Appeal Panel considered it had power to consider RailCorp's costs application pursuant to s 88 of the Administrative Decisions Tribunal Act 1977 (NSW) (the "ADT Act") which relevantly states: "1. Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. 1A. Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following".

The sub-section then enumerates a number of considerations it is unnecessary to set out. 15 Section 88 as applied by the Appeal Panel commenced on 1 January 2009 and applied to "applications and proceedings that were made or commenced, but not finally determined before the commencement of the substantive amendment concerned": ADT Act, Sch 5, Pt 11, cl 43. 16 The Appeal Panel held that s 88 applied to RailCorp's application for the costs of the adjournments to which I have referred because they were made but not finally determined before 1 January 2009: Costs Decision (at [5]). It held that it had no jurisdiction under s 88 to entertain RailCorp's adjournment costs applications, apparently on the basis that the applications for adjournment were not proceedings before the Appeal Panel and, accordingly, were not within the transitional provisions to which I have referred. However, it acceded to an application by RailCorp to give it leave to appeal against the Tribunal's failure to make a decision in relation to the adjournment costs applications even though the application was out of time (Costs Decision (at [27])) and extended the merits of the appeal to the Tribunal's failure to determine the costs application: Costs Decision (at [28]). 17 In granting RailCorp's application for leave to appeal out of time, the Appeal Panel observed: "27 Conclusion. Although the appeal is significantly out of time, it was not unreasonable for RailCorp to have assumed that it could seek costs on appeal. As far as we are aware, that particular issue has not previously been decided. RailCorp should not be deprived of a determination in relation to its applications in circumstances where it was genuinely under the impression that it would be able to re-new its application before the Appeal Panel. As soon as it became aware of the possibility that the Appeal Panel did not have jurisdiction to entertain its application, RailCorp applied for an appeal to be accepted out of time. We have concluded that the appeal has merit. While Ms Chand is prejudiced in the sense that granting leave opens the way to a costs order being made against her, she has also had the opportunity to apply for costs orders against RailCorp. In all the circumstances it is in the interests of justice that leave should be granted to allow RailCorp to appeal out of time against the Tribunal's failure to determine its adjournment costs applications." 18 The Appeal Panel held that it could exercise its power to award costs against Ms Chand in relation to the adjournments granted by the Tribunal if it was fair to do so: ADT Act, s 88; Costs Decision (at [37]). It held, for reasons it is unnecessary to elaborate, that it was "fair" to order Ms Chand to pay the costs of both adjournment applications: Costs Decision (at [37] - [38]). 19 The application for leave to appeal which Ms Chand seeks to advance seeks to challenge that decision.

The substantive appeal 20 It is also relevant to note that Ms Chand has appealed from the Appeal Panel's decision in the substantive proceedings dismissing her appeal from the Tribunal's decision. She has been engaged in seeking to prepare the Appeal Books in that matter while also attending to the preparation of the application for leave to appeal. Part of the evidence Ms Chand sought to rely upon in support of her application for the extension of time set out in some detail the steps she had taken in the course of preparing the substantive appeal and sought to explain that during the period in which she was also required to attend to the preparation of papers necessary to file the application for leave to appeal, the burden of those steps led to her having a nervous breakdown. I admitted this affidavit subject to RailCorp's objection as to relevance. In my view the affidavit did have some relevance. 21 In particular I note that annexed to that affidavit were certain medical certificates, one dated 17 June 2010, prepared by a general practitioner who certified that Ms Chand was suffering from depression and anxiety and a number of other emotional and mental issues, and opined that in the light of those conditions the pending court cases were a great source of anxiety for her and that she felt she needed more time to improve her mental state in order to be able to cope. 22 The second, which it must be acknowledged post-dates by one day the filing of the summons for leave to appeal, was from a psychiatrist, Dr Keshava, who also certified that Ms Chand was his patient. He opined that she suffered from severe adjustment disorder with co-morbid depression, that she had poor attention and concentration and was not fit to attend the court proceedings at present. 23 Ms Nomchong pointed out, with some justification in my view, that notwithstanding those medical certificates Ms Chand had apparently conducted many aspects of the proceedings with great ability, that also being the case notwithstanding her lack of legal qualifications. 24 Nevertheless, it is not irrelevant in my view to accept that for a self-represented litigant the burden of dealing both with an appeal in the substantive proceedings and what appear to have been a number of difficulties with the preparation of the Appeal Books in those proceedings, would have weighed heavily on Ms Chand and provides some explanation for the delay in the ultimate filing of the summons seeking leave to appeal. 25 It should be borne in mind that Ms Chand also proffered as an explanation for her delay the fact that when she had attended the Registry of this Court on 29 March 2010 to file the summons seeking leave to appeal from the Costs Decision she was advised by a Registrar that that summons could not be filed without the White Book necessary for any application for leave to appeal. It was in those circumstances that she filed the notice of intention to seek leave to appeal and commenced, as I understand the gist of her affidavit, to seek to attend to preparation of the White Book. 26 Ms Chand also deposed that she understood that the White Book had to be prepared within three months after filing of the notice of intention for leave to appeal. That was a regrettable misunderstanding of the rules in that respect. 27 In my view Ms Chand has advanced an explanation for the delay in filing the summons seeking leave to appeal. Further, as will be apparent from these reasons, the length of the delay is not inordinate. Nor, if one does apply one of the factual matters relied upon in Micallef, could it be said that her default has been in any way contumelious.

A fairly arguable case? 28 I turn then to the prospects of success, having regard again to Basten JA's observation that, in substance, this is not a matter on which the Court need be satisfied save to the point of fair arguability. 29 Ms Chand's draft Notice of Appeal seeks to advance twelve challenges to the costs decision. As is customary, the White Book also includes an outline of the argument she seeks to advance to first obtain leave to appeal, and I gauge from the submissions also in substance sets out her arguments as on appeal. 30 The first ground in the draft Notice of Appeal seeks to challenge the Appeal Panel's jurisdiction to entertain the adjournment costs application. Another, though inelegantly expressed, seeks to challenge the Appeal Panel's exercise of its s 88 power in what Ms Chand contends was a punitive manner. When her written submission on the leave application are taken into account, it can be seen that she wishes to argue that the Appeal Panel failed to apply the "ordinary rule" of the Tribunal that there should be no orders as to costs and erred in determining the issue of fairness posed by s 88(1A) of the ADT Act. 31 In my view the application for leave to appeal cannot be said to be hopeless, as RailCorp contends. The Appeal Panel does not, on my reading of its reasons, appear to have given any consideration to s 88(1) of the ADT Act. Further, there are, as Young JA pointed out on 9 August 2010 when dealing with an application by Ms Chand for referral to the Court's pro bono scheme, grounds for arguing that the orders for the adjournment costs were not strictly made in accordance with law.

Conclusion 32 The court has had recent occasion to consider the circumstances in which applications for the dismissal of proceedings would be entertained, particularly in light of the scheme set out in the Civil Procedure Act, s 56 to s 61. Section 58, as Ms Chand pointed out, requires the court, among other matters, when making directions and orders for the management of proceedings, to consider the dictates of justice. Section 57(1)(a) requires the court to have regard to the just determination of the proceedings. 33 As Allsop ACJ said in Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 (at [36]): "The Civil Procedure Act, ss 56 to 61 brings about a new statutory balance among various factors in litigation including court and party efficiency and the delivery of individual justice. Delay and case backlog are not merely factors affecting the public cost of delivering justice, they corrode the ability of the courts to provide individual justice." 34 Section 57 of the Civil Procedure Act sets out the objects of case management and provides that for the purpose of furthering the overriding purpose referred to in s 56(1), which is to ensure the just, quick and cheap resolution of proceedings, proceedings in any court are to be managed having regard to the just determination of the proceedings, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources and the timely disposal of proceedings. 35 In Young JA's reasons in Hans Pet Constructions, in which his Honour agreed with Allsop ACJ, then added some additional remarks, his Honour pointed out (at [52]) that the "'remedy' of striking out a defence has been included in Court rules for over a century. Virtually all of the learning on it tells us that it is an extreme measure to be taken as a last resort". That remark is, in my view, apposite in considering both an application for the extension of time in which to file an application for leave to appeal and an application to strike out that application for want of compliance with time provisions. 36 In Bi v Mourad [2010] NSWCA 17, Allsop P emphasised (at [47]) that while delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act to which I have referred, nevertheless any application of this nature requires careful attention to the Civil Procedure Act and, without being unduly repetitive, I hope, to the requirement that applications be considered in the light of the dictates of justice. 37 In my view, for the reasons I have given, the dictates of justice indicate that I should accede to Ms Chand's application to extend the time in which to file her summons seeking leave to appeal and should dismiss RailCorp's application to strike out that summons for failure to comply with UCPR 51.9.

Costs 38 Ms Chand seeks the costs of her application for an extension of time and of RailCorp's motion seeking to dismiss the proceedings. She points to the general rule that costs follow the event: UCPR 42.1. 39 Ms Nomchong submits that the usual order for costs consequent upon a successful application for extension of time consequent upon a failure to comply with a Court rule is that the applicant for the Court's indulgence pays the costs. 40 I am not sure the Court should be bound by any "usual rules" as to costs; each case must turn on its own facts. As I have said, there were in my view explanations proffered by Ms Chand for the delay in filing the summons, some arising out of a misunderstanding of the rules, some arising out of the amount of material of a legal nature with which she was seeking to deal at the same time as suffering from considerable emotional strain having regard to the overall burden on her as a self-represented litigant. 41 While I appreciate that these matters cannot, strictly speaking, be laid at RailCorp's feet, nevertheless the period of the delay, as I have already set out, was not inordinate. The principal basis, really, which RailCorp sought to advance to resist both the application and in support of its motion was the arguability of the application for leave to appeal which I have rejected. At the same time as I reject Ms Nomchong's submissions that there is a usual rule in the disposition as to costs of an application for extension of time, I am also cognisant of the fact that the general rule to which Ms Chand refers that costs follow the event can be departed from if it appears to the Court that some other order should be made. 42 In my view, having regard to both Ms Chand's default in complying with the rules, but also in what might be seen in some respects as a somewhat precipitative motion by RailCorp to strike out the summons which led to the application for an extension of time, it is appropriate that each party bear her/its own costs of the two notices of motion and I so order. 43 Accordingly, I make the following orders:

Extend the time in which the applicant may file her summons seeking leave to appeal from the decision of the Administrative Decisions Tribunal Appeal Panel of 2 March 2010 to and including 28 June 2010.

Dismiss the notice of motion filed by RailCorp on 12 July 2010.

Each party to bear her and its own costs of the two notices of motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Administrative Decisions Tribunal Act 1977(NSW)

CITATION: Chand v RailCorp [2010] NSWCA 233

Bi v Mourad [2010] NSWCA 17 Chand v State Rail Authority [2007] NSWADT 90 Chand v Rail Corporation of NSW (No 2) [2009] NSWADTAP 27 CASES CITED: Chand v Rail Corporation of NSW (No 3) [2010] NSW ADTAP 11 Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 Micallef v ICI Australia Operations Pty Limited [2001] NSWCA 274 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61

LOWER COURT MEDIUM NEUTRAL CITATION: [2010] NSWADTAP 11

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