[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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JUDGMENT
PAYNE JA: On 18 August 2023, Richmond J determined a case between Mr Douglas and the respondents: Douglas v Mikhael & Ors [2023] NSWSC 979. On 17 November 2023, Mr Douglas filed a notice of appeal. On 13 December 2023, the appeal was set down for a one day hearing on 2 April 2024.
The preparation for the appeal is substantially advanced:
1. the Red Appeal Book has been filed;
2. the Black Appeal Book has been filed;
3. the Blue Appeal Book index has been prepared and exchanged and (subject to what appears below) is ready to be filed; and
4. written submissions on the appeal in chief have been filed by Mr Douglas and the respondents. All that remains to complete the Orange Book are any submissions on behalf of Mr Douglas in reply.
Complaints were made by the respondents about the contents about the Black Book and proposed Blue Book. On 6 March 2024, Registrar Jones ordered:
1. Orders made in accordance with paragraphs 1 to 7 of the Short Minutes of Order.
SHORT MINUTES OF ORDER
1. The Court notes that the Appellant served the Blue Appeal Book, which had been due for service by 20 February 2024, on 23 February 2024.
2. The Court notes that the Respondents have given notice of a dispute regarding the content of the Black Appeal Book and Blue Appeal Book.
3. Order that the following documents be removed from the Black Appeal Book:
(a) The document marked in the Index as "G", being submissions filed in proceedings 2020/300636 on 14 May 2021, at page 363-376.
(b) The document marked in the Index as "H", being submissions filed in proceedings 2020/300636 on 1 June 2021, at page 368-372.
4. Order that the following document be removed from the Blue Appeal Book:
(a) The document marked in the Index as "L", being an Affidavit of the Appellant dated 2 February 2023, at page 587-677.
5. The Court notes that with respect to the Blue Appeal Book, the Appellant has not complied with UCPR rule 51.29(2)(a)(ii) and 51.29(3).
6. The time for the Appellant to file and serve the Blue and Black Appeal Books is extended to 13 March 2024.
7. The Appellant is to file and serve any Notice of Motion and supporting Affidavit seeking a Review of the Registrar's decision/s by 12 March 2024, with any such Notice of Motion to be made returnable for a directions hearing on 18 March 2024. (ID 66122455)
On 15 March 2024, the appellant filed a notice of motion seeking the following orders:
1. That the Registrar recues herself from my matter.
2. That the Appeal date is changed and adjourned to a more suitable day for both parties in August 2024
3. That a suitable date for both parties be provided for filling [sic] and hearing for seeking leave from the Judge and the Court to Subpoena documents that are extremely important evidence related to the 2015 agreement between the Plaintiff and the defendants to pay the Plaintiff part of his rightful share of around 1.45 Million dollars of the profits of the franchise business from the year 2000 to the year 2025, that is denied under examination at the hearing by the second defendant and is evidence in the Transcript of the hearing on the 13th of December 2022.
4. That the costs ordered by the Registrar on the plaintiff in the first direction hearing and the second direction hearing in February 2024 be vacated.
5. That the order by the Registrar on the 6th of March 2024 for section "G" and section "H" to be removed from the black appeal book be vacated, section "G" and section "H" are written submissions which are related to the appeal grounds and they are to remain in the black appeal book.
6. That the order by the Registrar on the 6th of March 2024 for section "L" to be removed from the blue appeal book be vacated, and for section "L" which is a related document to the appeal grounds to remain in the blue appeal book. In the alternative section "L" to remain in the blue appeal book and marked and referred to as rejected as per the UCPR rules.
The matter came before me for directions on the morning of 18 March 2024. Mr Douglas appeared for himself and Mr Munro appeared for the respondents. I explained to Mr Douglas, who was then unrepresented, that to facilitate the hearing of his appeal I would be prepared to make orders setting aside the Registrar's orders about the contents of the Black and Blue Books and the award of costs made in relation to two directions hearings. I would also be prepared to make orders in substitution, effectively deferring questions about the admissibility of those documents and consequent costs orders to the hearing on 2 April before three judges of the Court. Mr Douglas resisted my taking that course for a variety of reasons and indicated that he was not able to make submissions about this motion until Mr Duc of counsel, who had been briefed to appear, was available.
I arranged for the matter to be stood down until 4:30 pm to allow for Mr Duc, who was not in Sydney, to appear via audio-visual link. I am grateful to Mr Duc and Mr Munro for their co-operation in facilitating such a speedy hearing. Mr Duc confirmed that he was briefed as counsel to appear for Mr Douglas on 2 April 2024 but had expressed to Mr Douglas significant reservations about the contents of the appeal books. To facilitate a determination of the real issues in dispute, and in circumstances where Mr Douglas had been self- represented at the time of the Registrar's orders, I indicated that I was prepared to set aside the orders of the Registrar about removal of material from the Blue and Black Books together with the orders for costs of two directions hearings that had been made by the Registrar. Neither Mr Duc nor Mr Munro wished to be heard against the making of those orders.
I informed the parties that I would grant leave to file additional submissions (of no more than five pages) about the question of whether the material which was not before the primary judge should be received by the Court as further evidence pursuant to s 75A (7) and (8) of the Supreme Court Act 1970 (NSW) and, if so, what use the Court should make of that evidence.
On the motion, Mr Duc read the affidavit of Mr Douglas sworn 15 March 2024 but did not object to a limitation being imposed, namely that pursuant to s 136 of the Evidence Act 1995 (NSW) the contents of that affidavit be received by the Court on the motion (not the appeal proper) as submissions and statements of belief by Mr Douglas but not for the truth of any facts there stated. I made that limiting order.
Mr Duc submitted that I should adjourn the appeal for some months as Mr Douglas was under significant stress in preparing his appeal and, it was submitted, may be able to obtain further medical evidence in support of his adjournment application. Having considered all of the material advanced by the appellant on this topic, I refuse that adjournment application. Simply put, now that Mr Duc has indicated he is briefed and available to appear on 2 April 2024, subject to my making orders excusing the non-compliance with aspects of the rules in relation to the filing of the appeal books (which I propose to make), there is no reason to think that the matter cannot be heard and determined on 2 April 2024 affording fairness to each party. The stress to which Mr Douglas deposed will be significantly ameliorated by the availability of competent representation for him on 2 April. An adjournment at this late stage would adversely affect the interests of other litigants in the Court whose cases await hearing. Proceeding with a long set down appeal on the appointed day is in accordance with the overriding purpose of Part 6 of the Civil Procedure Act 2005 (NSW).
There remains the question of leave to issue subpoenas which Mr Douglas sought in his motion dated 15 March 2024. Mr Duc indicated that he was not in a position to address me on the afternoon of 18 March on this subject but would be in a position on 19 March to deal with the question. Accordingly, I stood over the hearing of proposed order 3 of the motion for hearing at 4pm on Tuesday 19 March 2024. If Mr Douglas is successful in this application, I will revisit the question of an adjournment.
Accordingly, the orders I make are as follows:
1. Dismiss orders 1 and 2 of the appellant's Notice of Motion filed 15 March 2024.
2. Set aside order 3 made by the Registrar on 6 March 2024 and lieu thereof order that the Black Book filed and served by the appellant on 21 February 2024 stand as the Black Book for the purposes of the appeal, which book shall include.
1. The document marked in the Index as "G", being submissions filed in proceedings 2020/300636 on 14 May 2021, at page 363-376; and
2. The document marked in the Index as "H", being submissions filed in proceedings 2020/300636 on 1 June 2021, at page 368-372.
1. Set aside order 4 made by the Registrar on 6 March 2024. Dispense with compliance with UCPR rule 51.29(2)(a)(ii) and 51.29(3). In lieu thereof order that the appellant is permitted to include in the Blue Book:
1. The document marked in the Blue Book Index as "L", being an Affidavit of the Appellant dated 2 February 2023, at page 587-677.
1. Note that the documents referred to in orders 2 (a) and (b) and 3 (a) of these orders were not in evidence or relied upon before the primary judge and that the appellant intends to seek leave from the Court on 2 April 2024 to rely upon these documents as further evidence pursuant to s 75A (7) and (8) of the Supreme Court Act 1970. Leave is granted to the appellant to file a motion by 5pm Friday 22 March 2024 seeking leave to rely on that material pursuant to s 75A (7) and (8) of the Supreme Court Act 1970. Leave is granted to each of the parties to file and serve submissions of not more than five pages by 5pm on Monday 25 March 2024 concerning whether the material referred to in that motion should be received as further evidence and, if so, what use the Court should make of it. Any additional submissions made should be filed with the Orange Book the subject of order 7 below.
2. Direct that the Blue Book (containing the additional material referred to in order 3) be filed and served by 4pm on Friday 22 March 2024.
3. The appellant's submissions in reply be filed and served by 4pm Monday 25 March 2024.
4. Direct that the Orange Book be filed and served by 4pm on Tuesday 26 March 2024.
5. Set aside the orders of the Registrar made on 7 and 19 February 2024 that costs of the directions hearings on those days be payable by the appellant and in lieu thereof order that costs of the directions hearings on those days be costs in the cause.
6. Pursuant to s 136 of the Evidence Act 1995, the contents of the affidavit of Mr Douglas sworn 15 March 2024 be received by the Court on the motion as submissions and statements of belief by Mr Douglas but not for the truth of the facts there stated.
7. Stand over for hearing at 4pm 19 March 2024 the question of whether leave should be granted to file subpoenas as sought in proposed order 3 of the Notice of Motion filed 15 March 2024.
8. Stand the appeal over for directions at 9am on Thursday 28 March 2024. That listing may be vacated if the orders made above are complied with by that time.
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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.
Decision last updated: 19 March 2024