CORPORATE AFFAIRS COMMISSION v SOLOMON

Court of Appeal (NSW)|1989-11-01|Before: Young J, Clarke JA

CORPORATE AFFAIRS COMMISSION v SOLOMON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

Mahoney AP The Corporate Affairs Commission brought proceedings, in Proceedings 2917 of 1984 and 3576 of 1987, against Mr Eddie Solomon and certain companies with which he was associated. The hearing of the proceedings was concluded on 5 December 1988 and, on 6 April 1989, Young J made orders whereby the relevant defendants were restrained from activities of the kind complained of. On 10 May 1989 Mr Solomon lodged a form of notice of appeal against his Honour's orders. On 7 July 1989 the Commission moved for an order that the notice of appeal be struck out.

On 24 July 1989, upon a consideration of the form of the notice of appeal, Clarke JA indicated to Mr Solomon that the notice of appeal which had been lodged was likely to be struck out. He therefore informed Mr Solomon that he should have a further period in which to file an amended notice of appeal.

On 18 August 1989 Mr Solomon filed the document here in question, described as "Supplementary Notice of Appeal".

The Commission, on this application, seeks to have struck out the original notice of appeal and the supplementary notice of appeal.

Mr Solomon has informed the court that the notice of appeal which he desires to sustain is the supplementary notice of appeal and the motion has proceeded upon that basis.

The supplementary notice of appeal purports to be a notice of appeal lodged on behalf of ten appellants, the first two of which are Mr and Mrs Solomon and the remainder of which are companies with which, it has been assumed, or Solomon is associated. No issue is raised on this application as to whether the other appellants and in particular the corporate appellants have authorised the drawing and filing of the relevant notice of appeal. Mr Solomon has appeared for himself. There has been no separate appearance for Mrs Solomon or the corporate appellants. Mr Solomon has, I understand, already been informed and, I believe, realises that he cannot appear for any person other than himself. The fact that the other appellants have not appeared does not in principle go to the application which the Commission makes.

There is power in this Court, in an appropriate case, to strike out a notice of appeal. That has not been in issue in the present application. Miss McColl, counsel for the Commission, has advanced several reasons why the notice of appeal should be struck out. First, Miss McColl submitted that the form of the notice of appeal is such that it should be struck out. The notice purports in form to be an appeal in relation to three proceedings in the Equity Division Numbers 2917 of 1984, 3576 of 1987 and 3357 of 1986. By the notice the appellants purport to appeal from a large number of orders listed in seventeen paragraphs in the notice of appeal. The grounds of appeal are set out in some forty-two paragraphs covering fourteen pages. The notice then lists twenty-five orders which are sought.

A notice of appeal is required to state whether the appeal is from the whole or part only and what part of the decision of the court below and to state briefly but specifically the grounds relied upon in support of the appeal: Pt51 r8(1). In my opinion, the supplementary notice of appeal does not comply with these requirements.

I shall, without so deciding, assume that there may be appealed against in the present proceeding orders made in matter No 3357 of 1986 as well as in Matters 2917 of 1984 and 3576 of 1987.

The notice of appeal specifies a number of orders or provides some identification of them. I shall assume that, in a proceeding against the orders made by Young J on 6 April 1989, the parties in question are entitled, as Mr Solomon has claimed, to appeal against each of the interlocutory orders made in the course of that proceeding. I shall assume also, without so deciding, that the orders made by Young J on 6 April 1989 were final orders disposing of the relevant proceedings so as to enable appeal against these interlocutory orders to be brought in this way. But if an appeal is to be brought in this way against these orders, it is necessary that the orders against which appeal is brought, or the relevant parts of them, be identified and that the grounds of appeal relating to each of the orders be briefly but specifically stated.

The grounds of appeal stated in the notice of appeal do not do this. They are, in many instances, discursive and argumentative statements of what Mr Solomon submits the law to be. They do not, in many cases, identify with the necessary particularity, the orders to which they are directed nor do they identify appropriately the grounds to be relied upon in respect of each order. It may be accepted that some of the statements contained in the forty-two paragraphs, appropriately refined, might constitute the statement of a ground of appeal in respect of one or more of these orders. Miss McColl, for the Commission, has indicated that some of the grounds, eg, ground 28, might, appropriately modified, be otherwise acceptable as a ground of appeal in respect of, eg, the orders made on 6 April 1989. But, the submission has been, this does not warrant the retention on the file of a notice of appeal in the present form.

In my opinion, the notice of appeal should be struck out. The court has, in my opinion, inherent and other power to strike out, or strike out of, a notice of appeal, matter which is, eg, frivolous, vexatious, irrelevant or otherwise oppressive: see Rossage v Rossage (1960) 1 WLR 249 and see generally Pt13 r5, Ptl5 126 and Pt65 15. If the appeal were to proceed upon the basis of the present notice of appeal, the appeal would be, and would tend to be, prejudiced, embarrassed and delayed. The notice of appeal raises issues and makes allegations which, in my opinion, are irrelevant or otherwise not appropriate to such an appeal. There would be difficulty and embarrassment in assigning to the orders appealed against the relevant grounds of appeal. And a number of the matters raised by it, if they stand and therefore are to be contested on the appeal, would necessarily delay without proper cause the determination of the appeal.

Mr Solomon submitted that, if the notice of appeal be objectionable for reasons of this kind, the court should not strike it out entirely but should allow such portions of it to remain as appropriately raise and identify and assign grounds of appeal in respect of particular orders.

I do not think that, in the present case, this should be done. Where material is contained in a document which, for reasons of this kind, should not be there, and the proportion of it is so substantial that the court would be embarrassed or the proceeding inappropriately delayed by the retention of it, the court may strike out

URJ CORPORATE AFFAIRS COMMISSION v SOLOMON (Mahoney AP) 3

the whole document. In Rossage v Rossage there was in certain affidavits material claimed to be scandalous and irrelevant to the issue before the court. The affidavits contained material which was relevant but contained "a great deal of material which is irrelevant pure hearsay evidence which the court cannot take into account in the form in which it stands". The trial judge had refused to strike out the irrelevant matter upon the ground that he would be able to put it out of his mind when deciding the issue. The Court of Appeal set aside the primary judge's order. In a judgment, with which the other members of the court agreed, Hodson LJ (as he was) said at 251: "The proportion of that material to the relevant material is so high that if this matter is to be disposed of with any regard to convenience it is clearly, I think, right that the matter should be dealt with by removing the whole of those affidavits from the file rather than by seeking, by expunging irrelevant matter, to put the affidavits in order".

In my opinion the present case falls within the principle on which the English court relied. In that case the material was irrelevant because it was hearsay, or, perhaps, also scandalous. In the present case, a great part of the notice of appeal is argumentative and discursive and either goes to matters not in issue or cannot appropriately be related to matters which are in issue. On the basis of the principle referred to in Rossage v Rossage, I would strike out the whole of the notice of appeal.

I am conscious of the right of a party to press such grounds as may be open to him in support of any proceeding or appeal. I am conscious also of the right of a party to frame his proceeding and his appeal in any way which, within proper limits, he chooses. But the right of a party to press proceedings before a court involves that those proceedings be taken properly and in accordance with the practices and procedures of the court. It is not open to a party to make allegations or statements some of which are and some of which are not in proper form or appropriate for the particular purpose and then to ask the court to separate the appropriate from the inappropriate and rely upon the former alone. It is, in such a case, open to and proper for the court to strike out the whole of the document and to require the party, if the matter is to be pursued, to place before it only those matters which are appropriate and to do so in proper form. This is the course which has, in my experience, been taken in relation, for example, to pleadings, interrogatories and the like. It is a principle which is appropriate to be applied in relation to the form of a notice of appeal. I do not think that the court should, as Mr Solomon's submission has suggested, go through the material set forth in the notice of appeal and attempt to separate such as may arguably be supportable from such as is not.

On this ground also, I am of opinion that the notice of appeal should be struck out.

I come now to consider whether, if the supplementary notice of appeal is to be struck out, Mr Solomon should be given leave to file a properly drawn notice of appeal in its place. He has submitted that the striking out of the notice of appeal will bring to an end his right of appeal; that if this is to be done upon the grounds to which I have referred, it will be a step taken because of matters of form rather than matters of substance; and that his right of appeal should not be brought to an end because of matters of that kind. He pointed to the fact that he is not legally trained and has not the benefit of legal assistance.

Ihave referred elsewhere to the attitude which, in my opinion, the court should take to litigants appearing in person: see Ley v R de W Kennedy (Finance Pty Ltd (Court of Appeal, 21 May 1975, unreported); Rajski v Scitec Corporation Pty Ltd

(Court of Appeal, 16 June 1986, unreported); and Wentworth v Rogers (Court of Appeal, 22 July 1987, unreported). I do not repeat what I there said.

The court must, in such circumstances as the present, have regard not merely to the position of the litigant in person but also to the position of the other party or parties concerned and to what is required, in justice, to prevent the unnecessary expenditure of public and private resources.

In the present case, the first notice of appeal filed was obviously bad. On 24 July 1989, Clarke JA gave to Mr Solomon the opportunity to file a notice of appeal in proper form and allowed an adjournment of some four weeks for this to be done. This Court has, at the request of Mr Solomon, treated the present supplementary notice of appeal as the notice of appeal on which Mr Solomon desires to rely.

In considering the present notice of appeal, two things may be said. First, the notice of appeal is, for the reasons to which I have referred, in a form which is inappropriate to the proper disposition of the appeal. And, second, no evidence or argument has been advanced to suggest that the final orders made by Young J or any of the interlocutory orders referred to in the notice of appeal are wrong. In the remarks made by Clarke JA when the application was previously before this Court, it was indicated that the parties should place before the court with the redrafted notice of appeal such evidence as they desired to rely upon. There is before the court no evidence to support the contention that the learned judge was in error in the orders which he made on 6 April 1989. Mr Solomon has not pointed to any error which he says is contained in his Honour's judgment: no effort was made to demonstrate error in argument in respect of any of the orders made. There was nothing urged further than appeared in the argumentative and discursive portions of the supplementary notice of appeal in this regard.

Miss McColl for the Commission has urged an additional matter in support of the contention that a further amendment should not be allowed. She has relied upon s84 of the Supreme Court Act and orders made by Young J in or about May 1987 in proceeding No S4954 of 1986. In that proceeding the Attorney General sought and obtained against Mr Solomon and The Eddie Solomon Emporium Pty Limited and Eddie Solomon Pty Ltd orders in the following form: "The Court orders that:

The defendants shall not, without the leave of this Court, institute any legal proceedings in any State Court nor continue any legal proceedings instituted prior to the making of these orders by them or any of them in any Court.

Two days notice be given by the defendants or any of them to the plaintiff of any application to be made by the defendants or any of them to this Court for leave to institute or continue any legal proceedings.

The defendants pay the plaintiff's costs of the proceedings."

It was the submission of the Commission that the filing of a notice of appeal in this Court constituted a contravention of those orders and in particular of O.1.

The present proceedings are proceedings which were brought not by Mr Solomon but by the Commission. The contention for the Commission is that, notwithstanding this, the lodgment of an appeal against the orders obtained by the Commission cannot be undertaken by Mr Solomon except with leave because that step would infringe the orders and/or s84.

URJ CORPORATE AFFAIRS COMMISSION v SOLOMON (Mahoney AP) 5

It would be a surprising result if the effect of the orders made was to allow another party to take proceedings against Mr Solomon but to prevent Mr Solomon contesting any order made against him in those proceedings by way of appeal. But, it was submitted, such a view is in accordance with the judgment of Yeldham J in Hunter's Hill Municipal Council v Pedler (1976) 1 NSWLR 478.

It may be that the commencement of an appeal is, in some circumstances, the institution of legal proceedings and that such a step may therefore be comprehended by an order against a vexatious litigant. The court has not had the benefit of detailed argument or reference to authority in this regard. As at present advised, I am not satisfied that the orders to which I have referred extend to restraining an appeal against an order made against Mr Solomon in such circumstances as the present. An appeal may and normally would within the intendment of such orders constitute the taking of a step in legal proceedings or the continuation of legal proceedings within a court where the appeal is brought in pursuance of a claim made by the vexatious litirant himself. But the present are not such cases. I therefore put this consideration aside. I come now to consider what, as a matter of discretion, it is proper to order in this regard. I have considered the terms of the judgment of Young J given upon the making of the orders of 6 April 1989. I am not satisfied that there is, in that judgment, any apparent error such as to warrant the conclusion that, with the appropriate degree of likelihood, an appeal brought against the judgment would be apt to succeed. I am conscious that there may be, in relation to the proceedings on which the judgment and the orders were based, matters, eg, in the taking of evidence, which do not necessarily appear from the face of the judgment and in respect of which an appeal might be brought. But nothing has been urged in the present application in that regard. And, as I have indicated, nothing has been urged to suggest that, in respect of any of the other orders impugned by the present notice of appeal, there is any similar error. Complaint is made, in the notice of appeal that, for example, his Honour should not have proceeded with the hearing of the matters in question and that an adjournment was wrongly refused. There is nothing before the court to indicate that grounds of appeal or complaints of this or similar kinds have any or the appropriate likelihood of success and no evidence has been put before the court in that regard.

I am conscious, on the other hand, that the present application has proceeded upon the basis that there is in respect of the orders of 6 April 1989, and correspondingly the other orders in those proceedings, an appeal to this Court as of right. Objections taken, other than that based on s84, are therefore essentially objections based on matters of form. I am not satisfied that any further notice of appeal apt to be drafted by Mr Solomon would be likely to be in appropriate form: the Commission is entitled to be protected against the filing of further documents in inappropriate form. However, it may well be that, if appropriate instructions were able to given to competent counsel, a notice of appeal could be drafted formally putting in issue, and in proper form, matters on law or fact on which Young J acted.

Taking into account all the circumstances, the orders I make are as follows:

The notices of appeal filed in this proceeding be struck out.
Mr Solomon have leave to file on or before 14 November 1989 a further notice of appeal in proceedings in this Court on appeal from proceedings No 2917 of 1984 and 3576 of 1987 and such orders made therein as are now open to appeal in and by such a notice of appeal.

That such leave be subject to the condition that any notice of appeal to be filed pursuant to such leave be first submitted to a Judge of the Court of Appeal for perusal by him and that such notice of appeal be not accepted for filing unless in the opinion of the Judge of Appeal it is in a form appropriate for that purpose.

That the costs of this application be paid by Mr Solomon.

I direct that if Mr Solomon desires to file a further notice of appeal in pursuance of this leave, the proposed notice of appeal be accordingly left at my chambers for consideration in accordance with these orders or, in my absense, at the chambers of another Judge of the Court of Appeal. It is the intent of my judgment that, if the notice of appeal be not in an appropriate form, and in compliance with the Rules of the Supreme Court, leave be not given for the filing of it and that at the expiration of the period allowed the right to appeal shall come to an end.

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Judgment (40 paragraphs)

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