[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 12 October 2018, Pembroke J, sitting in the Equity Division of the Court, made the following orders in Supreme Court proceedings 2016/00096823 between the appellant Ms Biru Huang, and Mr Bernard Drumm ([2018] NSWSC 1556 at [68]):
1. I order that this proceeding be stayed pursuant to the inherent jurisdiction of the Court;
2. I order that this proceeding be stayed pursuant to Section 67 of the Civil Procedure Act 2005 (NSW);
3. I order that this proceeding be stayed pursuant to Section 17 of the Trans-Tasman Proceedings Act 2010 (Cth).
On 17 April 2019, this Court made a limited grant of leave to appeal together with the following orders ([2019] NSWCA 77 at [10]):
1. Grant Ms Huang leave to appeal against the judgment of Pembroke J of 12 October 2018, limited to the following grounds:
1. whether there was any proper foundation for his Honour to make orders under the inherent jurisdiction and s 67 of the Civil Procedure Act staying the proceedings before him on the ground that they were an abuse of process; and
2. whether, if his Honour's abuse of process orders were well founded, there was any proper basis upon which he could have granted a stay under s 17 of the Trans-Tasman Proceedings Act in relation to proceedings which were ex hypothesi an abuse of process.
1. Direct Ms Huang to file and serve within 14 days a notice of appeal limited to the precise issues identified in Order 1 above.
2. Direct that Ms Huang's appeal be listed at 9.30am on Monday 6 May 2019 before Payne JA for directions concerning the conduct of the appeal. The parties should expect that a date for hearing the appeal will be fixed at that directions hearing and orders made in preparation for that hearing.
3. Order that the costs of the application for leave to appeal be costs in the appeal.
Huang v Drumm [2019] NSWCA 104 | Case summary | Zoe
By email exchange with the chambers of Macfarlan JA, Ms Huang was granted an extension of time to 15 May 2019 to file a notice of appeal on the limited issues where she was granted leave to appeal.
In accordance with order 3 made by the Court on 17 April 2019, the matter came before me on 6 May 2019 for directions to set the appeal down for hearing. I permitted Ms Huang to participate in the directions hearing by telephone and for her non-legally qualified friend, Mr Gibson, to make submissions on her behalf. Mr Dooley of counsel appeared for the respondent.
At the outset of the hearing on 6 May 2019 Mr Dooley handed up proposed short minutes of order that he invited the Court to make as follows:
1. Set aside orders (a) and (b) of the orders made by Pembroke J and entered on 12 October 2018.
2. The plaintiff pay the defendant's costs of the appeal proceedings (including in respect of the leave application).
Ms Huang confirmed that those proposed short minutes had been sent to her before the hearing on 6 May 2019 and that she had considered them.
The respondent submitted that, if order 1 of the proposed short minutes of order was made and Pembroke J's orders (a) and (b) were set aside, the underlying subject matter of the appeal for which leave was granted would disappear. As I explained to Ms Huang and her friend Mr Gibson on 6 May 2019, the subject matter of order 1(b) made by the Court of Appeal on 17 April 2019 was predicated on Pembroke J's orders (a) and (b) being valid. This is because, as this Court said in the first judgment:
"[9] We also observe that no persuasive argument has been put to us to suggest that the stay under the Trans-Tasman Proceedings Act, if considered on its own (that is, without considering that the proceedings had already been stayed as an abuse of process), was not within his Honour's discretion to grant. In particular, we reject Ms Huang's argument that if a party takes a step in proceedings (such as seeking further and better particulars), it is automatically precluded from obtaining a stay under the Trans-Tasman Proceedings Act. In these circumstances it is not appropriate to grant leave to appeal in respect of his Honour's order under that Act (Order (c)) save to the extent referred in Order 1(b) below."
Ms Huang and Mr Gibson objected to order 1 in the short minutes being made. Their reasons, as best as I understood them, were that Ms Huang was seeking advice about making an application for special leave to appeal to the High Court. The making of order 1 was thought in some way to inhibit that special leave application, or make the proof of the myriad claims about which this Court refused leave to appeal, including what Ms Huang asserts was bias on the part of Pembroke J, more difficult. Subsequent to the hearing Ms Huang sent, without leave, the following email to my chambers:
"Dear Associate
Yesterday, there was an appearance on the directions matter by someone I do not know nor know of the basis of their appearance. That is, whether they appeared as an agent for Mr Elliott of counsel who has previously appeared for Mr Drumm, the respondent, or whether they appeared on a direct access basis.
Whoever it was, they mentioned a paragraph in the reasons for the decision delivered on 17 April 2019 by their Honours, Payne JA and Macfarlan JA. I would be grateful if you could forward to me a copy of those reasons for the orders made and my leave application.
Yesterday his Honour also raised that he would need to look up jurisdiction which I took to mean jurisdiction to reopen a matter that had already been heard and determined and was a closed matter, given that my McKenzie friend had raised that the respondent, Mr Drumm, was already on notice of an appeal to the High Court being brought forward.
There seemed to be a misconception raised as to the basis for the short minutes and what they request - which I oppose. It is not a matter that my opponent was seeking to prudently set aside orders at an early stage, but a reaction to my comments in a recent costs hearing and my disclosure that I was appealing to the High Court the decision of their Honour's on 17 April 2019 that has brought about the short minutes issue.
I do not see that the court has jurisdiction to entertain what essentially amounts to a reopening of the matter that has been heard and determined and has been closed since 12 April 2019 and I am extremely concerned that my opponent Mr Drumm is being assisted by the court given the recent proximity of the costs hearing in the court below before Pembroke J and my opponents short minutes following directly on from the costs argument which now appears to be held in abeyance pending this matter, creating a further appearance of an apprehension of bias.
There is no basis for the previous orders given the clear fraud on the courts processes that I have raised by the false narrative that had been settled in evidence by the solicitors and barrister for the respondent, Mr Drumm, and in those regards Mr Elliott was notable by his absence yesterday. My submission on my behalf by my McKenzie made this clear in his submission on my behalf the High Court principal to be followed (though I noted to did not quote the authority). And made it clear that the setting aside of the orders [er the short minutes of order created an entirely different potential outcome on appeal (and it was not the same as submitted on behalf of Mr Drumm) and which is one of the basis that I opposes the orders sought (quite apart from there being no apparent jurisdiction to make them). The Short Minutes are essentially an abuse of process and an attempt to thwart a foreshadowed appeal to the Higher Court.
Yours faithfully
Biru Huang
Appellant"
Whatever the merits of the various matters raised by Mr Gibson orally and by Ms Huang in this email, it is clear that she opposes the making of the orders proposed by the respondent.
Section 46 of the Supreme Court Act 1970 (NSW) provides, relevantly:
46 Powers of Judge of Appeal
(1) A Judge of Appeal may exercise the powers of the Court of Appeal:
(a) to give any judgment by consent or make any order by consent,
(b) to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules,
(c) to dismiss an appeal or other proceedings on the application of the appellant or plaintiff, or
(d) to deal with costs and other matters incidental to the matters mentioned in paragraphs (a), (b) and (c).
(2) A Judge of Appeal may exercise the powers of the Court of Appeal:
(a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or
(b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings.
…
Because this is a matter where Ms Huang does not consent to the making of order 1 in the proposed short minutes, sitting as a single judge I am without power to make the order sought by the respondent. In the absence of making any order no question of costs arises at this stage.
As this is a matter which may ultimately be relevant to any costs discretion I have set out in this short judgment the history of what occurred on 6 May 2019. Mr Drumm indicated that he will consent to Pembroke J's orders (a) and (b) being set aside. Notwithstanding that consent, such an order can only be made, if at all, by a three-member bench of this Court.
Ms Huang is required to file and serve a notice of appeal limited to the precise issues identified in order 1 made by the Court of Appeal in the first judgement no later than 15 May 2019. I propose in the circumstances to reconvene the directions hearing concerning the conduct of the appeal at 9.30am on Monday 20 May 2019. Time is limited on that day and the parties should expect that the directions hearing will conclude by 10am.
Given the attitude of the respondent to orders (a) and (b) made by Pembroke J, it is obviously desirable that the appeal in this matter be heard as soon as practicable. The parties should expect that a date for hearing the appeal will be fixed at that directions hearing and that orders will be made in preparation for that hearing.
As was the case on 6 May 2019, I grant leave to Ms Huang to participate in that directions hearing by telephone.
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Decision last updated: 09 May 2019