Doyle v AA; Doyle v Lewis; Doyle v PP

Court of Appeal (NSW)|2023-11-17|Before: Ward P, Gleeson JA, Cavanagh J, Davies J, Chen J

[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.]

[This headnote is not to be read as part of the judgment] This matter relates to notices of appeal filed in relation to three separate proceedings in the Common Law Division in which damages were awarded in favour of the respondents arising from historical sexual assaults. The appellant had been incarcerated for ten years ending in mid-2022 for criminal convictions based on the same conduct. The appellant was represented before the Court by his "next friend" Mr Barbeliuk, the holder of a Power of Attorney granted to him by the appellant. The matters before the Court included several interlocutory applications: notices of motion filed by the respondents in March 2023 seeking summary dismissal of the notices of appeal on the basis that they were out of time and incompetent in form (and in one appeal an abuse of process); notices of motion filed by Mr Barbeliuk on 22 September 2023 seeking to set aside orders made by Griffiths AJA on 22 June 2023, in which his Honour had dismissed earlier notices of motion filed by Mr Barbeliuk seeking the appointment of a tutor, stays of the first instance judgments, and to amend the notices of appeal; and notices of motion filed by Mr Barbeliuk on 6 April 2023 seeking leave to adduce fresh evidence. The Court made orders on 17 November 2023 dismissing the appeals as incompetent, with reasons to be later provided.

Held (Ward P, Gleeson JA and Basten AJA) dismissing the appeals and the remainder of the appellant's notices of motion: The Court concluded that an extension of time for the filing of the notices of appeal was not warranted where the appeal proceedings were commenced at a time when, on Mr Barbeliuk's submissions, the appellant apparently lacked legal capacity (and without any application for a tutor at that stage); where the grounds of appeal either did not disclose arguable error or had not been properly articulated; where there had been significant delay in prosecuting the appeal; and where the refusal of an extension of time would not preclude the bringing of an appropriate application in relation to the proposed appeal: [39] (the Court). The remaining aspects of Mr Barbeliuk's notices of motion raised issues that fell away in the absence of competent appeals and the motions were dismissed with costs.

JUDGMENT

THE COURT: Listed for hearing on 17 November 2023 were three notices of appeal, each filed on 24 February 2023 in the name of the appellant (who has been referred to variously in the Supreme Court decisions as "DD" and as "PD") from orders made in three separate proceedings in the Common Law Division in which damages were awarded in favour of the respective respondents arising from historical sexual assaults. The appellant, for criminal convictions based on the same conduct, was incarcerated for ten years ending in mid-2022.
The three Common Law Division proceedings are: 2018/204001 (the PP proceeding) in which Cavanagh J, on 15 October 2021 gave judgment in favour of PP in the sum of $1.27 million (PP v DD (No 2) [2021] NSWSC 1312) (PP v DD (No 2)); 2018/200890 (the Lewis proceeding) in which Davies J, on 18 February 2022, gave judgment in favour of the plaintiff in the sum of $1.35 million (Lewis v Doyle [2022] NSWSC 92); and 2021/155673 (the AA proceeding), in which Chen J, on 5 August 2022, gave judgment in favour of AA in the sum of $217,550 (AA v PD [2022] NSWSC 1039).
Each of the notices of appeal was filed for the named appellant by Mark Barbeliuk in his capacity as holder of a Power of Attorney granted to him by the appellant (an Enduring Power of Attorney dated 21 July 2022). The respective appeal proceedings will be referred to as: DD v Lewis (2023/63182); DD v PP (2023/63191); and DD v AA (2023/63196).
An earlier notice of appeal, filed for the appellant in February 2022, from the decision of Cavanagh J in PP v DD (No 2) was dismissed (with the consent of the appellant's then solicitor) in September 2022, after White JA had ordered security for costs in that appeal (DD v PP [2022] NSWCA 98 at [11]-[15]).
Mr Barbeliuk was given leave to appear as "next friend" for the appellant when the matter came before this Court on 17 November 2023. Mr Barbeliuk is not a qualified legal practitioner, describing himself in oral submissions as a "one man band"; though he indicated that he was obtaining some legal advice in relation to the matter.

Interlocutory applications

On 9 March 2023, Mr Barbeliuk filed notices of motion in each of the appeal proceedings, seeking a stay of execution of the respective Common Law Division orders.
On various dates in late March 2023, the respondents filed in each of the proceedings a notice of motion seeking the summary dismissal or strike out of the appeals or, alternatively, that the appellant pay security for costs.
On 6 April 2023, notices of motion were filed by Mr Barbeliuk, seeking leave to adduce fresh evidence and to file and to serve an amended notice of appeal. The nature of the fresh evidence was not identified; nor was any proposed amended notice of appeal put before the Court.
On 13 June 2023, notices of motion were filed by Mr Barbeliuk in each of the appeal proceedings, seeking the appointment of a Mr Stuart Greene as a tutor for the appellant in the appeal proceedings and also seeking dispensation of the rule pursuant to r 7.14(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to permit the appellant to commence and carry on proceedings in this Court and in the Common Law Division through the tutor, without an acting solicitor on the record (an earlier notice of motion seeking the appointment of a tutor had been filed in the Lewis appeal on 9 March 2023, without mention of r 7.14(2)). No affidavit or consent to act was filed in accordance with the rules in support of that application.
Those notices of motion came before Griffiths AJA on 22 June 2023 (DD v AA; DD v Lewis; DD v PP [2023] NSWCA 140). Griffiths AJA dismissed the applications brought by Mr Barbeliuk for the appointment of a tutor (observing at [63] that if there were concerns about the appellant's legal capacity, it was difficult to understand why Mr Barbeliuk had participated in the execution of the Enduring Power of Attorney, which contained a certificate that the appellant appeared to understand the effect of the power of attorney). His Honour noted that there was "scant" evidence in relation to the appellant's legal incapacity; and referred to the fact that the Court had been asked to appoint a tutor without an acting solicitor on the record ([55], [70]-[71]).
The notices of motion seeking a stay of the first instance judgments were dismissed, Griffiths AJA holding that it would be a matter for the relevant judge in the Common Law Division to determine how the course of the enforcement proceedings should proceed (at [82]-[83]). The notices of motion seeking to amend the notices of appeal were also dismissed, as no proposed amended notices of appeal had been provided to the Court (at [85]).
Griffiths AJA adjourned the respondents' notices of motion for the summary dismissal of the appeals to be dealt with at the hearing of the appeals (at [86]-[87]) but did make orders for the provision of security for costs of the appeals (at [114]). The appellant's notices of motion seeking to adduce fresh evidence were also deferred to the hearing of the appeals (at [84]).
A further three notices of motion were filed by Mr Barbeliuk for the appellant in each of the appeal proceedings on 22 September 2023, collectively seeking: an order that Griffiths AJA disqualify himself from the proceedings; leave to file and serve subpoenas and leave to file and serve a Notice to Produce; review of orders made by the Registrar on 23 August 2023 providing for the filing and service of the red appeal book and the appellant's submissions, and listing the appeal for hearing on 17 November; and that the orders made by Griffiths AJA on 22 June 2023 be set aside.
Those September 2023 notices of motion were heard by White JA on 9 October 2023. His Honour delivered judgment on 31 October (DD v AA; DD v Lewis; DD v PP (No 2) [2023] NSWCA 260). His Honour noted that he could not deal with the notice of motion that Griffiths AJA disqualify himself (which was, in any event, hypothetical) (at [15]) and noted that no document filed by the appellant or Mr Barbeliuk identified any subpoena or notice to produce. His Honour dismissed the notice of motion seeking leave to file and serve subpoenas and a notice to be produce (at [17]). White JA declined to interfere with the Registrar's orders, noting that if the appellant remained in default in relation to those orders, that matter could be dealt with on the hearing of the appeal or the motion for summary dismissal on 17 November (at [26]). His Honour noted that, as a single judge of appeal, he did not have authority to set aside the orders of Griffiths AJA (at [20]). Other than as to the matters to be dealt with at the hearing on 17 November, the September 2023 notices of motion were dismissed.
Thus, following White JA's judgment, what had been stood over to the hearing before this Court on 17 November 2023 were: (i) Mr Barbeliuk's motion for an order that "the 22 June 2023 orders and judgment made by Griffiths AJA be set aside"; (ii) Mr Barbeliuk's motions seeking leave to adduce fresh evidence; and (iii) the respondents' adjourned notices of motion for summary dismissal (filed variously from 28 to 31 March 2023). Although not identified in the relevant notices of motion, the fresh evidence was indicated by Mr Barbeliuk to be evidence going to the question of the appellant's level of capacity. (There had also been a "show cause listing" ordered by the Registrar on 4 October 2023, requiring that the appellant show cause as to why the appeals should not be dismissed for want of prosecution.)
On the morning of the hearing on 17 November 2023, Mr Barbeliuk emailed to the Registry three further notices of motion (described as Tutor Motions) seeking the appointment of Mr Greene as tutor for the appellant and, again, dispensation from r 7.14(2) in relation to proceedings both in this Court and in the Common Law Division. After an adjournment to permit Mr Barbeliuk to obtain some legal advice, Mr Barbeliuk indicated that those (unfiled) notices of motion were withdrawn but that he wished to press the application for the setting aside of Griffiths AJA's orders and judgment (17/11/23; T 12-13).
For completeness, it may be noted that there are ongoing proceedings in the Common Law Division and that late in the evening of 16 November 2023 Mr Barbeliuk emailed a "Dropbox" of some 600 pages, including three notices of intention to appeal filed on 15 November 2023 in respect of orders made by Walton J on 17 October 2023 (by consent extending a writ of execution until 27 October 2023 or further order of the Court at the time that his Honour granted an adjournment of the proceedings to that date) and orders made by Campbell J on 27 October 2023 (refusing a further adjournment application; and extending the writ to September 2024 and allowing the sheriff to enter the appellant's property to take possession of goods under a levy); as well as unfiled affidavits of Mr Barbeliuk and other materials. Those appeal proceedings (2023/363956; 2023/363042; and 2023/363057) were not before the Court on 17 November 2023.
In the covering email sent on 16 November 2023 at 10.30pm, Mr Barbeliuk indicated that he would be seeking a seven day adjournment to complete his affidavit (which he clarified at the hearing was an affidavit that would address the substantive appeals). Orders made by the Registrar on 12 April 2023 had required the appellant to serve all evidence he intended to rely on, including any expert evidence, in respect of the 9 March 2023 Tutor Motions by 17 May 2023. Orders made by the Acting Registrar on 23 August 2023 (at a directions hearing at which there was no attendance for the appellant) required the appellant's submissions and chronology to be filed and served by 20 September 2023. The short minutes of order proposed by Mr Barbeliuk in a further email sent at 9.32am on 17 November 2023 included provision for a period of 14 days for the appellant "via his Tutor and/or barrister" to file and serve written submissions in relation to further orders sought in this Court (and 14 days for any reply submissions by the respondents); and also for the parties to communicate on the issue of mediation.

Respondents' application for summary dismissal of the appeal proceedings

On the respondents' application for summary dismissal of the appeal proceedings, the respondents read (without objection) an affidavit filed in each proceeding, addressing, amongst other things, the respondents' complaint as to the competency of the respective appeals.
In essence, the respondents' complaint was that each of the notices of appeal was filed outside the time required under the rules and thus an extension of time was required (without which the appeal was incompetent) and that each of the notices of appeal failed to comply with the requirement that it clearly articulate the grounds of appeal. There was a further complaint in the PP appeal that the present appeal was an abuse of process having regard to the dismissal by consent of the first appeal initiated in relation to that judgment.
Mr Barbeliuk maintained that the appeals were not incompetent, albeit conceding (as is apparent from the notices of appeal themselves) that an extension of time for the filing of the notices of appeal was required.

Determination

The Court made orders on 17 November 2023 dismissing with costs the respective appeals as incompetent and, in those circumstances, dismissing the remainder of the appellant's notices of motion. The Court indicated that it would provide reasons for that decision as soon as practicable. These are those reasons.
As should be apparent from the above short background to the matter, the respective appeals follow a lengthy history of litigation in relation to the historical sexual assaults of which the appellant was convicted and for which the appellant was incarcerated. Mr Barbeliuk gave an impassioned outline of that history at the commencement of the hearing by this Court; and says that he (Mr Barbeliuk) had personally suffered psychological stress in dealing with the matters.
However, two things were clear from Mr Barbeliuk's submissions: first, that M Barbeliuk was now seeking an adjournment in order to finalise evidence and obtain advice or legal assistance in circumstances where the notices of appeal were filed (out of time) ten months ago and the state of preparation of the matter for hearing (and indeed when the matter might be ready for hearing) remained uncertain; and, second, that Mr Barbeliuk sought to maintain that the appellant lacked legal capacity (and hence required the appointment of a tutor) and that this was the case as at the time the notices of appeal themselves were filed earlier this year (indeed, it would seem also at the earlier time that a solicitor had attested to the capacity of the appellant to understand the effect of the Enduring Power of Attorney in Mr Barbeliuk's favour).
There was no dispute that the notices of appeal were filed out of time. The "details of appeal" section of the notices of appeal indicated that the appellant sought to extend time to appeal pursuant to r 51.16(2) of the UCPR. The explanation for the delay, so far as that can be gleaned from the oral submissions and Mr Barbeliuk's email of 16 November 2023 at 10.30pm attaching the material in the "Dropbox" (which material was not formally relied upon on this hearing), appears to be that Mr Barbeliuk has had difficulty in the preparation of the matter (not being legally qualified and himself suffering from psychological problems). There was also reference by Mr Barbeliuk, among other things, to the appellant's "antipathy" to lawyers (17/11/23; T 4.5-6).
Even leaving aside that there was little from which one could be confident that the matter would be progressed expeditiously if an extension of time were to be granted, we are of the view that such an extension is not appropriate where the grounds of appeal are either hopeless or barely arguable; and suffer from a lack of specificity (as we explain below).
With one exception (to which we will return), the grounds of appeal were broadly the same in each matter. They followed an extensive section (headed Details of Appeal) in which Mr Barbeliuk outlined his view of the entire proceedings (including criminal and civil matters involving not only the appellant but also himself) and of the various legal representatives the appellant has engaged over the course of those proceedings. This was mirrored by the "script" which Mr Barbeliuk was concerned to read to the Court at the outset of the hearing. As to the grounds themselves, we note the following.
Ground 1 raised an issue as to incompetence of counsel. However, the notice of appeal itself acknowledged that this is not a ground of appeal per se.
Grounds 2 and 4 raised the issue of the appellant's lack of capacity. Ground 2 asserted that lack of capacity or incompetence on the part of the appellant had led to a denial of a proper hearing. Ground 4 asserted that the judge's reasons were inadequate and that enquiries as to the appellant's capacity were insufficient. Ground 4 included a complaint as to the lack of any "competent or legally qualified person (tutor)" to instruct the solicitor who appeared for the appellant in the Common Law Division proceedings.
The respondents pointed out that there was no evidence before the respective primary judges as to a lack of capacity on the part of the appellant; nor any application or submission made in this regard; and hence no requirement for the relevant judges to provide reasons or make enquiries as to the issue of legal capacity. Reliance was placed on Doulaveras v Daher [2009] NSWCA 58 in this regard. The respondents submitted that this ground of appeal was hopeless (17/11/23; T 11.12-42).
Further, insofar as complaint is made that Griffiths AJA did not have the expertise to make a finding of mental incapacity, what his Honour found was that the evidence before him did not establish that the appellant was legally incapacitated at the relevant times (see at [64]). There is no error manifest in his Honour's reasons but, in any event, the challenge to his Honour's refusal to appoint a tutor (and refusal to stay the proceedings) is moot in circumstances where we have concluded that the appeal should be struck-out as incompetent.
Ground 3 asserted the existence of a number of jurisdictional issues but did not articulate any; and was deficient in that respect.
Ground 5 raised a complaint of inadequacy of reasons or insufficiency of enquiries as to the appellant's bankruptcy declaration in May 2022. The respondent pointed out that Cavanagh J at [5] in the PP proceeding noted that the parties had agreed that the recent entry into bankruptcy did not preclude the plaintiff (PP) from pursuing the proceedings (see respondents' submissions of 10 November 2023 at 9(i)). Again, it was not incumbent on the primary judges hearing these matters to make enquiries into matters not raised before them or which had been resolved by the parties.
Ground 6 in the PP appeal (which does not appear in the grounds of appeal in the other appeal proceedings) challenged the statement by the primary judge that the appellant had previously been represented by very experienced and competent solicitors and that it could not be said that the solicitors and counsel were not following instructions or were incompetent (PP v DD [2021] NSWSC 1157 at [62] (Cavanagh J)). Mr Barbeliuk maintained that this was not the case; and asserted that the appellant's previous counsel and/or solicitors did not act in accordance with instructions and were in effect acting against his interests. The respondents maintained that the trial judge was entitled to make the findings he did in the absence of any evidence that the previous solicitors and counsel for the appellant were not following instructions. (Insofar as Mr Barbeliuk made the assertion in submissions that the appellant had not consented to the dismissal of the first appeal in the Lewis proceeding, the respondents pointed to a written communication to that very effect (17/11/23; T 18.4-7).)
Ground 7 (ground 6 in the Lewis and AA appeals), a ground common to all the appeals, simply asserted error in determining causation without any identification of the error alleged. Similarly, ground 8 (ground 7 in the Lewis and AA appeals) asserted error in that the award of damages was manifestly excessive, without any further specificity. Both failed to articulate clearly the complaint made by the appellant, other than in conclusory terms.
The respondents further maintained that the PP proceeding should be dismissed as an abuse of process, the earlier appeal proceeding having been dismissed by consent (see the affidavit affirmed by Robert Andrew Algie on 28 March 2023 at [18]-[20] and Ex G thereto) brought an end to the proceedings and that any attempt further to argue that appeal would amount to an abuse of process. The respondents referred in this regard to Trustees for the Roman Catholic Church for the Diocese of Bathurst v Hine [2016] NSWCA 213 at [23] (Meagher JA; Leeming and Simpson JJA agreeing); Tomlinson V Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [24]-[26] (French CJ, Bell, Gageler and Keane JJ; Nettle J agreeing); [2015] HCA 28.
It was our opinion that an extension of time for the filing of the notices of appeal in their present form should not be granted and therefore it was not necessary to consider the consequences of the summary dismissal, by consent, of the first appeal in the PP proceeding, which was in effect discontinued without being determined on its merits.

Conclusion

The principles in ss 56-60 of the Civil Procedure Act 2005 (NSW) govern the exercise of the discretion to extend time (see Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [18] (Meagher JA; Macfarlan and White JJA agreeing); Bi v Mourad [2010] NSWCA 17 at [47] (Allsop P)). The considerations relevant to the exercise of that discretion include: the length and circumstances of the delay; whether there is a satisfactory explanation for the delay; the possible prejudice or injustice to the parties; and the merits of the arguments involved in the proposed appeal.
In circumstances where, on Mr Barbeliuk's submissions, the appeal proceedings were commenced at a time when the appellant lacked legal capacity (and without any application for a tutor at that stage); where the grounds of appeal either do not disclose arguable error or have not been properly articulated in a manner required by the UCPR; where there has been and remains significant likely delay in prosecuting the appeal; and where the refusal of an extension (and dismissal of the appeals as incompetent) would not preclude the bringing of an appropriate application in relation to the proposed appeals, an extension of time was not warranted for the filing of the notices of appeal.
It should be emphasised that the Court has not determined any issue as to the possibility of further applications to extend time to file appeals in a proper form, supported by tenable grounds; nor as to the enforcement of the current judgments in the Common Law Division. The Court has not addressed questions as to the authority of Mr Barbeliuk to act for the proposed appellant or as to the proposed appellant's capacity to act for himself; nor as to the conditions on which a tutor, if appointed, should be permitted to proceed. These issues, if they arise, should be addressed first in the Common Law Division, where any outstanding issues as to the stay of execution of the judgments should be considered; or possibly in the Equity Division if an application were there to be made for appointment of a tutor or financial manager or guardian for the appellant.
The orders made by the Court on 17 November 2023 were, accordingly, for the dismissal with costs of the appeals as incompetent (on the basis that no extension of time for the filing of the notices of appeal should be granted) and for the dismissal with costs of the remaining aspects of the interlocutory notices of motion filed by Mr Barbeliuk on behalf of the appellant, on the basis that the issues they raised fell away in the absence of competent appeals.
Following the making of those orders, Mr Barbeliuk sent an email to the Court raising a number of queries and calling upon the Court (and Bell CJ) to "reconsider the evidence" (a reference to the material forwarded by email and Dropbox prior to the 17 November 2023 hearing, which was not read on the hearing and thus not in evidence, and including the matters referred to in the subsequent 17 November 2023 email, which was after the orders had been made). Mr Barbeliuk in that email sought that various emailed documents be filed and be read on the adjournment application (that being the application for adjournment that Mr Barbeliuk had sought prior to the hearing on 17 November 2023). The email sought orders to be made to allow "the progression of the 13 June 2023 amended Tutor motion".
Such request is misconceived. The effect of the orders made on 17 November 2023 is that the appeals have been dismissed as incompetent; and the remaining aspects of the notices of motion have also been dismissed. The reasons for this have been set out above. For the purposes of these reasons, it is neither necessary nor appropriate to set out the medical evidence that Mr Barbeliuk included in the Dropbox material emailed prior to the 17 November 2023 hearing (as Mr Barbeliuk has requested). As made clear during the 17 November 2023 hearing of the respondents' summary dismissal application, and in the reasons above, it remains open for an application to be made in proper form and in the appropriate forum for a tutor to be appointed for the appellant; and for that tutor to consider the appellant's position in relation to the proposed appeals.

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: 04 December 2023

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