REFERRALS - case management - matter listed for hearing
Source
Original judgment source is linked above.
Catchwords
REFERRALS - case management - matter listed for hearing
Judgment (3 paragraphs)
[1]
[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.]
[2]
Judgment
PAYNE JA: On 17 April 2019, this Court granted Ms Huang leave to appeal against orders made by Pembroke J limited to the following grounds:
"(a) 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
(b) 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 hypothesei an abuse of process.": [2019] NSWCA 77 at [10].
In what follows familiarity with that decision is assumed. Ms Huang was directed by this Court to file and serve within 14 days a notice of appeal limited to the issues identified in the grounds. 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.
The matter was listed on 6 May 2019 before me for a directions hearing. On 6 May 2019, the respondent consented to orders being made setting aside the orders made by Pembroke J referred to in paragraph 1(a) above. As the making of those orders was opposed by Ms Huang, sitting alone I was without jurisdiction and, accordingly, reconvened the directions hearing for today to fix the hearing of the appeal and make orders for the preparation of that appeal: Huang v Drumm (No 2) [2019] NSWCA 104 at [13].
Contrary to the orders of the Court, which had been varied on her application, Ms Huang did not file her notice of appeal on 15 May 2019. Instead, on 15 May 2019, Ms Huang sent, without leave, the following email to my chambers:
"Dear Associate
The Amended Notice of Appeal was due today on the extension given earlier.
However, as I have foreshadowed to the court and to the Respondent, I am appealing to the High Court of Australia that whole of the decision of 17 April 2019, which is the reason I put forward when the Directions hearing took place on 6 May 2019.
I was to file that Special Leave application in the High Court today, but HCA Registry required me to added some sealed orders and deal with another minor issue arising, so that application is to be filed in the morning now I have obtained sealed orders from the Supreme Court and the Court of Appeal.
My Special Leave application requests a Stay of matters in the Court of Appeal pending the Special Leave application being heard.
Yours faithfully
Biru Huang"
On 16 May 2019, my Associate replied by email that:
"No stay has been granted by any court of the orders made by this Court requiring Ms Huang to file and serve a notice of appeal by close of business yesterday (15 May 2019). The parties should be aware that, assuming that an application has been made for special leave and a stay to the High Court of Australia, that does not, of itself, affect the parties' obligations to comply with extant orders of this Court."
The hearing before me this morning was confirmed. This Court granted Ms Huang's application for leave to appeal on limited grounds. This Court made orders that she file a notice of appeal relating to those limited grounds. It has been made clear to Ms Huang that she has failed to comply with orders of the court in the proceedings that the notice of appeal be filed.
At 1.26am this morning the following email was sent, without leave, to my chambers by Ms Huang:
"Dear Associate,
I am away out of the country visiting my unwell and elderly father.
I am appealing the whole decision in the Supreme Court of NSW, Court of Appeal to the High Court of Australia for reasons mentioned at the last hearing subject to some minor issues on filing being tidied up.
I have sought a stay of matters in the Court of Appeal at the Higher cCurt in the application for special leave. Under the rules I am required to file the application in the Court of Appeal. I have put Mr Drumm on notice of matters on a few occasions now.
There appears little point with a hearing tomorrow given the above, and I have advised Mr Drumm as much.
Mr Gibson holds an EPA on my account while absent. I have asked him to contact Mr Drumm and deal with any issues that need to be attended on. He can be contacted on [a mobile telephone number] if need be. I don't know what Mr Drumm is doing, as he won't advise who his ghost writers are or who is turning up for him (he has filed an appearance notice himself) so they (whoever they are) can simply turn up unannounced.
Yours faithfully
Biru Huang
Applicant"
In accordance with Ms Huang's written authority, at 9.30am this morning after the matter was called, I caused the mobile telephone number which was provided for Mr Gibson to be rung in open court. There was no answer on that number. I then caused the mobile telephone number the Court was given on the last occasion by Ms Huang to be rung in open court. A recorded message was played to the effect that the owner of the telephone was not available. As Ms Huang had clear notice of the proceedings and of the fact that the Court proposed to address the question of a hearing date today I proceeded with the directions hearing in her absence.
Mr Elliot, who appeared for Mr Drumm this morning, sought an order that the appeal be dismissed for want of prosecution. Although I am satisfied that Ms Huang was given written notice of the application to be made, I decline to make that order today.
As Ms Huang is a self-represented litigant I will, at this stage, extend the benefit of the doubt to her and assume that she is not aware of the seriousness of her repeatedly ignoring orders made by this Court.
While no request to stay the proceedings in this Court has formally been made by Ms Huang, I propose to treat the email from Ms Huang recorded above as an application for a stay of this Court's orders.
In Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 this Court (Bathurst CJ, Beazley JA and McColl JA) held that the relevant test as to whether a stay should be granted is found in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited (1986) 161 CLR 681; [1986] HCA 84. That well-known test was explained by Brennan J, at 685, as follows:
1. whether there is a substantial prospect that special leave to appeal will be granted;
2. whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending;
3. whether the grant of a stay will cause loss to the respondent; and
4. where the balance of convenience lies.
Brennan J emphasised the extraordinary jurisdiction involved in making such a stay, and that it would only be exercised in exceptional circumstances and noted:
"(684) When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the court below and it is to that court - the court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court.
…
A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal."
This approach has been adopted consistently by the High Court in considering such applications: see, for example Edelsten v Ward (No 2) (1988) 63 ALJR 346 at 347 (Brennan J); Gerah Imports Pty Ltd v The Duke Group (in liq) [1994] HCA 3; 68 ALJR 196 at 197 (Dawson J); Haydon v Chivell [1999] HCA 39 at [8] (Gaudron J); and Comandate Marine Corp v Pan Australia Shipping Pty Ltd [2006] HCATrans 353 (Heydon J). In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 2) [1998] HCA 32; 72 ALJR 869 at [2]-[4], Hayne J noted that the jurisdiction may be invoked if granting a stay is "necessary to prevent the exercise of rights of appeal being rendered futile or their exercise in circumstances where restoration of the status quo cannot be achieved".
All of the cases emphasise the exceptional circumstances that are required before the jurisdiction to grant a stay is exercised.
Doing the best I can in the absence of any real information about the special leave application being provided to me, Ms Huang's application for special leave seems to have limited prospects of success. The broad sweep of grounds about a decision where Ms Huang was, at least in substantial part, successful in obtaining leave to appeal to this Court is an unlikely vehicle to attract a grant of special leave by the High Court.
The order made by Pembroke J where Ms Huang failed to achieve a grant of leave by this Court, in relation to a stay granted under the Trans-Tasman Proceedings Act, involved a discretionary decision. Again, Ms Huang's prospects of obtaining special leave to appeal from the refusal by this Court to grant leave to appeal from a discretionary decision seem remote. I find that there is no substantial prospect that special leave to appeal will be granted.
As to the second matter, I will treat Ms Huang as having moved promptly for a stay in this Court. As an unrepresented litigant, her unfamiliarity with the procedures of this Court should not, in this respect, be held against her.
As to the third matter, there is some loss occasioned to the respondent, namely continued legal costs of appearing in this Court in relation to the appeal to this Court in circumstances where he has made it perfectly clear that he consents to the setting aside of the orders made by Pembroke J which he did not seek and which were the principal, if not sole, focus of the grant of leave.
As to the fourth matter, the balance of convenience, it is clear that if a stay is not granted Ms Huang's rights will not be prejudiced. Whether or not a stay is granted, the High Court will consider her application for special leave to appeal in accordance with its usual practice and it will be irrelevant in that determination whether or not this Court has, in the interim, gone on to consider whether to set aside the orders made by Pembroke J in the inherent jurisdiction and under s 67 of the Civil Procedure Act 2005 (NSW). On the other side of the scale, the respondent, having consented to orders made by Pembroke J being set aside, is entitled to have the proceedings in this Court concluded. The just, quick and cheap resolution of these proceedings strongly favours the refusal of a stay in this case.
For these reasons a stay of proceedings is refused.
I am prepared to allow another week, until 4pm on 27 May 2019, for Ms Huang to file a notice of appeal in the form directed by the Court on 17 April 2019. Ms Huang should also, by 4pm on 27 May 2019, file any written submissions she wishes to make which should address why the orders proposed by the respondent setting aside orders (a) and (b) made by Pembroke J and ordering Ms Huang to pay Mr Drumm's costs should not be made.
Mr Drumm should, by 4pm on 3 June 2019, file any submissions in reply which should address why the orders he proposes setting aside orders (a) and (b) made by Pembroke J and ordering Ms Huang to pay Mr Drumm's costs should be made. Ms Huang may file any submissions in reply by 4pm on 10 June 2019.
In the circumstances where a stay has been refused and the respondent consents to relief which, if granted, will bring the proceedings in this Court to an end, it is appropriate to set the matter down for final hearing before three judges in this Court at 2.15pm on 14 June 2019.
If she so chooses, Ms Huang may put before the Court the documentary record before Pembroke J in black and blue books by 4pm on 10 June 2019. If Ms Huang does not put that material before the Court, the White Books filed by Ms Huang for the purposes of her application for leave to appeal will stand as the appeal books for the purposes of her appeal.
If Ms Huang has not filed a notice of appeal and her submissions by 4pm on 27 May 2019 the parties should prepare for the hearing on the basis that the Court will consider whether to treat paragraphs 17 and 19 of Ms Huang's draft amended notice of appeal, or at least the first two lines thereof, as constituting the amended notice of appeal. The Court may on that day go on to determine the case to finality on the basis of the orders proposed by the respondent or, alternatively, consider whether Ms Huang's proceedings should be dismissed for want of due despatch under rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), as it applies to this Court by rule 51.1(3) of the UCPR.
Ms Huang must appear in this Court on 14 June 2019. If Ms Huang wishes to appear on 14 June 2019 by telephone I grant leave to her to make that application by email to my chambers by 4pm on 27 May 2019. That application should identify the telephone number that on 14 June 2019 she can be contacted on and whether it is proposed that she, or some other person, should make submissions on her behalf on that occasion. If another person is to make submissions on Ms Huang's behalf that person should be identified in the email and Ms Huang should ensure that the nominated person is available to make submissions at 2.15pm on 14 June 2019.
The Court makes the following orders:
(1) Stay of proceedings refused.
(2) Ms Huang to file a notice of appeal in the form directed by the Court by 4pm on 27 May 2019.
(3) Ms Huang to file written submissions by 4pm on 27 May 2019.
(4) Mr Drumm to file written submissions by 4pm on 3 June 2019.
(5) Ms Huang to file written submissions in reply by 4pm on 10 June 2019.
(6) The matter be listed for hearing at 2.15pm on 14 June 2019.
[3]
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Decision last updated: 20 May 2019