Jorgensen v Slater & Gordon Pty Ltd [2009] VSCA 39

Court of Appeal (Vic)|2009-03-20|Before: MAXWELL P and ASHLEY JA

PRACTICE AND PROCEDURE - Application under r 64.16(2) that appeal not be taken to be abandoned - Failure to deliver appeal books within time fixed by order - Nature of discretion - Principles - Appeal not utterly devoid of merit on material before Court - Security for costs of appeal previously given - Repeated disobedience of Court's orders by appellant - Disobedience not attributable to inferior intellect or understanding - Failure to deliver appeal books in time blameworthy - No satisfactory explanation for disobedience of Court's order - Prejudice to respondent - Long delay in finalisation of appeal - Respondent a professional body facing re-litigation of allegations of fraud and breach of fiduciary duty rejected at trial - Justice to be even-handed - Application refused.

2 On 27 August 2008 a Master ordered, inter alia, that the appellant, Alan Jorgensen, deliver appeal books on or before 20 October 2008. He failed to do so. His appeal was, by r 64.16(1)(b), taken to be abandoned. An attempt was made on his behalf to deliver the appeal books on 23 October 2008. The Registry would not accept them. He sought the respondent's consent to the making of an order that the appeal not be taken to be abandoned - vide r 64.16(2)(b). The respondent did not consent. Now the appellant seeks an order under r 64.16(2)(a) that his appeal not be taken to be abandoned. In my opinion, no such order should be made.

3 In Lagarna Pty Ltd & ors v Bridge Wholesale Acceptance Corporation (Australia) Ltd[1] the Appeal Division considered the application of r 64.12(2), by which an appellant may seek relief from the deemed abandonment of an appeal for failure to comply with rule 64.08(2).[2] Tadgell J, with whom Cummins J agreed, said this:

The court's discretion under R64.12(2), being undefined in terms, is as broad, wide and deep as the circumstances demand. The dictum of Bowen LJ in Gardner v Jay (1885) 29 Ch D 50 at 58 is apt:

... when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?

The true position must therefore be that, in exercising the discretion conferred by R64.12(2), the court is neither confined to the matters for which counsel for the plaintiff contended nor limited as counsel for the defendants would have it. If, upon the material before it, the court perceives that it would be unjust to an appellant that an appeal should be taken to be abandoned despite non-compliance with the relevant rules, it may exercise a discretion in favour of the appellant if it seems appropriate to do so, taking account of the legitimate interest of the respondent to the appeal to insist on an adherence to the rules. To adapt what was said by this court in Kostokanellis v Allen, the court is required to determine what, in its opinion, is the just way in which its discretion should be exercised. This would involve weighing up the extent to which the appellants would be prejudiced by leaving the appeal to stand as though abandoned and any prejudice to the respondent to the appeal by ordering that it not be taken to be abandoned.

We heard arguments from counsel for the plaintiff directed to the likelihood of success of the appeal if it were to proceed. Counsel formulated under several headings the points which he apprehended the notice of appeal to raise and sought to demonstrate that by none of them had the defendants any prospect of impugning the decision below. It is tempting, but I think it would ultimately be unproductive, to refer to these points in detail. It is sufficient to say that, while none of the points on which the defendants seek to criticise the learned trial judge's analysis of the evidence before him seems obviously destined to succeed, none is obviously unarguable. It is, indeed, preferable not to enter too far, upon an application of this kind, into an investigation of the validity of the trial judge's conclusions of ultimate fact so far as they appear from his reasons for judgment. Moreover, we were not equipped, upon the material before us, to do so; and to do so would usurp the function of a court which will or may be called on to hear and determine an appeal. The argument we have had, and the limited evidence to which we have been referred, do not permit our forming any more than a superficial appreciation of the merits of the appeal. It seems appropriate to say that, in an application under R64.12(2), argument as to the prospects of success of the appeal ought not to be encouraged unless, of course, the failure of the appeal is plainly demonstrable.[3]

4 This approach was adopted by the Court of Appeal in respect of r 64.16(2) in Neil v Hospitals Superannuation Board.[4]

5 In Sedrak v Carney[5] Chernov JA further considered the application of r 64.16(2). He observed, in a case in which the appellant, it seems, was only one day late in delivering the appeal books, and that by inadvertence, that -

It is clear that the relevant timetable set by the Rules, which is intended to ensure fairness to all concerned and that appeals be processed with reasonable expedition, would not be applied so strictly as to deprive a person in the position of this applicant, of having his appeal heard and determined in the ordinary way.[6]

6 His Honour then went on to consider where the order sought would be futile because the appeal was quite devoid of merit. He said this:

... it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondents and cause needless expenditure of public funds if the appeal were otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before the applicant is denied the right to have his or her appeal heard, is that the appeal would fail.

[17] In Jackamarra v Krakouer [1998] HCA 27; (1998) 153 ALR 276, Brennan CJ and McHugh J were of the view that once an appeal has been commenced, the applicant is entitled to have the appeal determined in the usual way. They said, at 279, that where an extension of time for the taking of an interlocutory step is sought 'the merits of the appeal are not a relevant consideration ... unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time'.

[18] Gummow and Hayne JJ accepted, at 283-286, that on an application for extension of time for the taking of an interlocutory step, it may be appropriate to consider whether it is clear that the appellant has no real prospects of success so that it would be futile to grant the extension of time.

[19] Kirby J said, at 295:

"The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile".

[20] At 297, his Honour observed that the main object of the scrutiny of the merits of the case is to obviate a hearing which would clearly be futile. In considering the merits of the appeal, the Court does not effectively hear the entire appeal. As Gummow and Hayne JJ pointed out in Jackamarra v Krakouer, at 286, if the futility of an appeal can be demonstrated only by hearing the whole argument, there may be no advantage to bringing it forward to a time when a relatively minor procedural irregularity is sought to be corrected. Sometimes the courts have described that process of determining this matter as 'rough and ready' (Jackamarra v Krakouer, at 280). In saying this, the Court probably intended to convey that lack of merit must be very clear before the applicant is deprived of the right to have the appeal considered in the normal way and that usually, such an issue will not be considered at an interlocutory stage if it involves the whole appeal being argued or an examination of the details of the evidence.[7]

7 It does not follow, because an appeal cannot be said to be wholly devoid of merit, that breach of a rule which imposes a time limit[8] for the taking of a procedural step demands the making of an order under r 64.16(2). To conclude otherwise would fetter the discretion which Tadgell J described in Lagarna. Moreover, it would be incompatible with the range of pertinent considerations identified by Kirby J in Jackamarra v Krakouer.[9] So, it may be accepted that an appeal on foot should normally be allowed to run its course to hearing and determination unless it is quite devoid of merit. But that generality admits of exceptions.

8 At first glance, it would seem harsh that an appellant, self-represented at times, should be denied the opportunity of pursuing an appeal by being a few days late in making delivery of appeal books. But this is no ordinary case. In order to understand why that is so, it is necessary to detail the history of delay in prosecuting the appeal and the reasons for such delay; and to consider the circumstances in which the appellant failed to comply with the order for delivery of the appeal books.

9 The appeal arises out of orders made by a County Court Judge in late 2005 in a proceeding between the appellant and his former solicitors, Slater & Gordon. The nature of the proceeding was described by Neave JA and myself at [3]-[6] of unreported reasons which we delivered on 7 April 2008 in an earlier application in the appeal.

10 The appellant served a Notice of Appeal on the respondent on 20 January 2006. Had the appellant complied with the Master's orders made on 27 August 2008, the appeal books would have been filed a little less than three years after the making of the first set of impugned orders.[10]

11 The explanation for the delay, as at late March 2008, was described by Neave JA and myself in our reasons delivered 7 April 2008. We noted, in summary, that the appellant 'has persistently failed to comply with orders, that he has already applied for and been granted a number of extensions of time in the course of these lengthy proceedings, and that he is still in breach of the third order made by the Master on 28 November 2007.'[11] We specifically rejected the appellant's explanation why he had late-complied with another order made by the Master on 28 November 2007.

12 On 31 March 2008, Neave JA and I rejected an application by the respondent that the appeal be struck out. But we made self-executing orders. They required the appellant to take particular procedural steps by certain dates, in default of compliance with which the appeal would stand dismissed.

13 We said this in the reasons which we delivered on 7 April 2008 -

Because [the respondent is] now in possession of an electronic version of the transcript we do not consider that the requirements for the striking out of the appeal have been satisfied. However, in our view [the appellant] should not be given an opportunity to seek further indulgences, if he fails to comply with the orders which we now propose to make. We note that [the respondent] has had to expend time and energy in the management and defence of an appeal which is not being diligently prosecuted by [the appellant]. Further, that appeal involves serious allegations of fraud and breach of fiduciary duty against it.

14 The appellant did not comply with the first of the pertinent orders which we made.

15 On 14 May 2008 the appellant made oral application to this Court, constituted by Maxwell ACJ and Forrest AJA, to vary or set aside the self-executing order made on 31 March 2008. Their Honours exercised the Court's discretion to relieve the appellant from his want of compliance with that order. They did so by varying the orders so as to extend the time for compliance. Although, in reasons delivered on 18 June 2008,[12] they described the appellant as a 'serial defaulter' who had been 'persistently dilatory in taking steps in his appeal', and although they recognised that Neave JA and I had 'decided to give [him] one last chance', their Honours concluded that the interests of justice - which, they observed, means justice for all parties and not for one party only - favoured the orders which they then made. They concluded that, though belatedly, the appellant had provided a document which met the requirements of the orders made on 31 March 2008. They stated 'critically, in our view, the conduct of [the appellant] in the seven day period fixed for compliance did not reflect either deliberate disregard of or indifference to the Court's order'.[13]

A self-executing order is, quite intentionally, penal in character. The order has several purposes - to signify the court's disapproval of prior non-compliance; to emphasise the importance of obedience to court orders; and to secure the performance of the particular procedural step(s) the subject of the order. The imposition of a self-executing order in the present case has, in our view, secured all of these purposes. It sent the clearest message to Mr Jorgensen, and to others who will doubtless follow him, that disobedience to procedural orders will not be tolerated. It also secured, albeit two weeks late, the filing of a revised court book index.[14]

Events culminating in failure to deliver the appeal books in time. The appellant's explanation considered

17 On 27 August 2008 a Master ordered, inter alia, that -

The appellant file in electronic form and serve a marked up note of proposed contents of the appeal book further revised from the note dated 18 April 2008 and filed 22 July 2008 complying with the following requirements on or before 8 September 2008:

4.1. Tab A: item 5 be deleted and the plaintiff's request for further and better particulars be included if essential;

4.2. Tab A: current item 6 appear in a new Tab headed 'G Interlocutory Orders' to contain all interlocutory orders of the Court of Appeal, as follows:

4.2.1. Orders of the Chief Justice and Justice Nettle made on 12 May 2006;

4.2.2. Orders of President Maxwell and Justice Buchanan made on 17 November 2006;

4.2.3. Orders of Justice Ashley and Justice Neave made on 31 March 2008; and

4.2.4. Orders of President Maxwell and Justice Forrest made on 18 June 2008;

4.3. Tab B: the appellant and his legal representatives check that all necessary and no unnecessary pages of transcript are included;

4.4. Tab C: only documents in evidence be included and all items be given their exhibit numbers;

4.5. Tab C: current items 88 and 89 be deleted; and

4.6. Tab F: the amended notice of appeal bear the correct filing date pursuant to order 2.

Subject to compliance with these directions, and any further order the contents of the appeal book are settled in accordance with the further revised note.
The appellant prepare the appeal book as settled and deliver it as follows:

6.1. 4 copies to the Registrar; and

6.2. 3 copies to the respondent,

on or before 20 October 2008.

18 The appellant did not comply with order (4). Leaving aside the question whether the contents as ultimately proposed complied with that order, a note was not served upon the respondent until 26 September 2008.[15] That non-compliance remains unexplained, although the appellant stated on the hearing of this application that, had he thought the matter was of any significance, he could have explained it.[16] The default was in fact significant for two reasons. First, it was another instance of the appellant's non-compliance with orders of this Court. Second, it tended to defeat the purpose of a longer than usual period being set between service of the further notice of contents and delivery of the appeal books. In that connection, the Master noted in the 'other matters' section of her orders made 27 August 2008 that -

A longer than normal period is allowed for delivery of the appeal book after service of the further note of proposed contents to enable the respondent to relist the proceedings if on further consideration it considers that further documents are required in the appeal book.

19 The respondent's solicitors took issue with the note of proposed contents by letter dated 8 October 2008. The letter noted that it would now be necessary to re-list the matter before the appeal books were filed; and it stated that -

You should refrain from preparing the Court books based on your latest proposed index until the matter has been back before the Master.

20 The respondent sought to have the matter re-listed by letter to the Master's Associate dated 9 October 2008.

21 In view of explanations now given by the appellant for not filing the appeal books by 20 October 2008, it is instructive to note the appellant's response to the respondent's correspondence.

22 On 13 October 2008 the appellant faxed a letter to the Master's Associate. He dealt in detail with the criticisms of the note of proposed contents. He stated that the respondent no longer had any right to challenge his document. He said that 'In accordance to the Master's 27 August orders, I have already almost finished the preparation of the Appeal Books, which are due in 7 days time.' He 'therefore [sought] that [the respondent's] attempt to obtain fresh orders be denied and that both parties comply with the orders made on 27 August 2008.'

23 In answer to the President's questions, the appellant agreed that he was there saying that his intention and expectation was that he would file the appeal books by 20 October. He volunteered that he had said the same thing to the respondent. That was indeed the effect of an email which he sent to the respondent on 13 October, attached to which was his letter of that date to the Master's Associate. He said 'I expect to be delivering the Court Books as previously settled by the Court in the next 7 days to you'.

24 Later on 13 October the respondent responded by letter to the appellant's letter of that date. The respondent's letter said, inter alia -

Your late service of the amended proposed contents (which was ordered to be served on 8 September 2008 but was not served until 26 September 2008) necessarily meant that Slater & Gordon was unable to provide its further comment until somewhat later than expected. Because of these matters, Slater & Gordon has sought to have the matter listed for further directions.

Master Lansdowne's orders made 27 August 2008 provided that the contents of appeal book were settled only if you complied with the other orders made. You did not comply with the other orders, and accordingly the contents of appeal book are not settled.

We have put you on notice that you should not proceed to have the appeal book printed until the matter has been back before the Master. If you nonetheless proceed to print copies of the appeal book, you do so at the risk that the costs of doing so will be solely borne by you.

25 Mr Jorgensen responded to the respondent's letter of 13 October by letter of 15 October to the Master's Associate. He disputed various criticisms which the solicitors had made of his proposed note of contents. He twice described his work 'in following the orders' as being almost complete. He concluded by saying -

Accordingly, it is my intention at this stage, to deliver the 7 Appeal Books on Monday, as previously ordered by Master Lansdowne on 27th August 2008'.

26 On Friday 17 October the Master declined to relist the matter for further directions. In his affidavit sworn 20 November 2008, the appellant deposed that this decision was emailed to him at 4.20pm that day.[17]

27 According to the appellant's affidavit sworn 20 November 2008 -

I spent the weekend collating all the 8000 pages of documents for 9 sets of appeal books totalling 27 binders and flew to Melbourne from Cairns Sunday evening as I was involved in an important Court hearing at 9.30 AM Monday in Melbourne where I represented myself. This case completed around 3.30 PM that day.

The 'important Court hearing', he told us orally, was the hearing of a bankruptcy petition, which he eventually successfully resisted by paying the creditor $10,000 which he had in cash.

28 Further according to the appellant's affidavit -

Given that [the respondent] had insisted I not finalize the Appeal Books and if I did, it was at my peril, I was sure that there would not be a problem lodging them with the Court on the following day.

29 Still further according to the appellant's affidavit, he spoke to the solicitor handling the matter for the respondent on Tuesday 21 October, and to the solicitor's assistant on Wednesday 22 October. Then, on 22 October, he contacted the Court of Appeal Registry. He was told that, 'the deadline for filing' by then having passed, he needed the respondent's consent to file out of time.

Given that I had to be back in Cairns that evening, I left 7 Appeal Books with Barrister [name deleted] to file and serve the next day once I obtained [the solicitor's] consent, which I expected would not be a problem given his insistence not to finalize them since he had requested a further Directions hearing.

31 Orally, the appellant informed us that the barrister had been 'assisting' him; and that he did not leave the appeal books for the barrister to file and serve, but rather arranged for the barrister's secretary to do those things, for which he gave her $200.

32 The appeal books, as I said earlier, were on the appellant's account delivered to - but not accepted by - the Registry on 23 October.

33 The appellant's affidavit account is evidently incomplete. It does not refer to a letter from the respondent dated 21 October, which stated, in part -

We note the correspondence from Master Lansdowne dated 17 October 2008 declining to re-list the matter for directions prior to the filing of appeal books are requiring that you proceed to file and serve the appeal books by 20 October 2008 as ordered. We did not receive the appeal books by 20 October 2008.

34 Neither did the appellant's affidavit refer to an email which he sent to the solicitor on 23 October in which he stated, inter alia,

I note you mention that the Appeal Books were not lodged on the due date Mond 20th October. Are you suggesting that you will not now consent to an extension of 4 days ie. To today?

I flew to Melb last Sunday on 20th Oct to ensure they were lodged & discussed with you on the phone Tuesday morning that I had several exhibits all listed as the same Exhibit No. eg. 'H' & '6' & '7' etc so wanted to visit S & G to sort them out.

But you said this was not possible that day, so just lodge the documents as I had them & we can always make changes with consent later on.

I then visited the Court of Appeal Registry to ensure that the Appeal Books were in the right format etc (Spiral backs or Arch Lever Folders etc).

I was advised by the Registry that I now needed your written consent to lodge the Books, after I advised that you had told me that morning to go ahead & just lodge them that day (albeit 1 day late).

Then when I called you Wednesday your office said you were away & couldn't get instructions.

35 Nor again did the appellant's affidavit mention a further email sent on 24 October to similar effect.

36 I should next refer to two letters dated 24 October 2008 from the respondent to the appellant. The first of them relevantly said this:

I refer to our telephone conversation on 21 October 2008.

I note that in our telephone conversation I noted:

In relation to the filing for appeal books I recommend that you proceed to act in accordance with the orders of the Court of Appeal.
In accordance with Master Lansdowne's letter if there are any additional materials a supplementary appeal book can be prepared, filed and served.

Having concluded our telephone conversation I became aware that the date by which you were ordered to file the appeal books was 20 October 2008. Your contact is once again, an attempt on your part to overcome a further failure to comply with the orders of the Court. Slater & Gordon has not and does not consent to any extension of time for you to comply with the current orders made by Master Lansdowne.

37 The solicitor's assertion that he became aware that the appeal books had been required to be delivered by 20 October after his telephone conversation with the appellant on 21 October is not in conflict with the solicitor's letter of 21 October to which I have earlier referred. It is simply a question of timing.

I note your request that Slater & Gordon consent to you filing the appeal books out of time. Slater & Gordon does not consent.

In reference to the previous correspondence from Slater & Gordon to you in relation to the date for filing appeal books and the respondents request that the Master bring the matter back on for directions we make the following observations:

The respondent put you on notice that if the Master ordered variations to the appeal book after you filed the appeal book, you may be required to bear the costs of the unsatisfactory appeal book.
The Master declined to bring the matter back on for directions and notified you that you were required to file an appeal book in accordance with the original order.
In correspondence to the respondent and the Court, you made it plain that you were proceeding on the basis that you would file the appeal book by the date ordered notwithstanding the respondent's request that the matter be brought back on for directions. That correspondence made it plain that you were not assuming the date for filing would be varied or that your obligations were anything other than as set out in the orders made by the Master on 27 August 2008.

Notwithstanding this, you attempted to file the appeal book out of time.

For you now to suggest that the respondent ought to consent to you filing the appeal book late because of previous correspondence is opportunistic.

39 What reason, then, did the appellant give in his affidavit for not delivering the appeal books on 20 October? The clearest explanation was this:

The reason why I was out of time in respect to service of the Appeal Books is that there were ongoing disputes between myself and Slater & Gordon regarding the contents of the Appeal Book.

40 That explanation, however, sits very uncomfortably with the appellant's averment in his affidavit that he learned of the Master's decision on Friday 17 October, and that he 'spent the weekend collating all the 8000 pages of documents for 9 sets of appeal books totalling 27 folders and flew to Melbourne from Cairns Sunday evening.' It also sits uncomfortably with his averment that his other Court case concluded at around 3.30pm on Monday 20 October, and that, because of the solicitor's attitude, he 'was sure that there would not be a problem lodging them with the Court on the following day' - something which, I interpolate, in fact he did not do.

41 The part of the appellant's affidavit to which I last referred suggests a very nonchalant attitude to compliance with Court orders. The conduct described is, in my view, readily compatible with his conduct in leaving Melbourne on 22 October - there still having been no attempt to deliver the appeal books to the Registry, and with a barrister's secretary being entrusted with the task.

42 Quite apart from statements made in his affidavit, there are circumstances which stand in the way of acceptance of the appellant's asserted reason for not complying with the Court's order for delivery of the appeal books.

43 First, although the appellant sought to rely upon the solicitor's letters of 9 October and 13 October as a foundation for his (oral) assertion that the appeal books were not ready as at 20 October, his email of 13 October and his letter of 15 October indicated an intention of complying with the 20 October deadline, and did not suggest any inability to achieve it. In fact, the letter of 15 October suggested the contrary.

44 Second, the appellant orally submitted that the respondent's letters had deterred him from completing his task. They had caused him not to print the appeal book contents. As I understand it, he said that his references in his letter of 15 October to his work being almost completed meant only that all the material was by then stored on his computer, it remaining to print it and place it in folders. He added that he had been almost certain that the respondent's application for further directions would succeed.

45 But he said nothing in his letter of 15 October, in which he firmly asserted an intention 'at this stage' to deliver the appeal books in accordance with the Court's order, to suggest that he had put preparations on hold. Neither did he say anything to suggest that, whether by deliberately delaying or for any other reason, there would be a physical difficulty in completing whatever remained to be done by 20 October.

46 Third, the appellant did himself no favours by his submission that, when in the letter of 15 October he said that it was his intention to deliver the appeal books, he was not saying that he would deliver them. This was just one of a number of instances in which, in oral submissions, the appellant appeared to me to be far from frank with the Court.

47 Fourth, at one point the appellant submitted, in substance, that the reason why he did not comply with the Court's order was the combined effect of the Master's decision on the respondent's request for a further directions hearing only being given on 17 October and the impact upon him of the solicitor's letters of 9 and 13 October. This was the gist an explanation which he advanced in an affidavit which he swore on 3 March 2009 - that is, the day before the hearing of his application. When it was pointed out to him that in paragraph 10 of his first affidavit he had deposed that he had spent the weekend collating the 8000 pages of documents, he responded that he meant that he had printed them, not that he had completed preparing the appeal books.

48 That response set very uneasily with his description, in paragraph 9 of his affidavit, of the 'task of collating about 8000 pages of documents into properly labelled sections'. If one took his oral explanation at face value, it would seem that he must have used 'collating', in two successive paragraphs of his affidavit, in different ways. Further, it is plainly the case that there was nothing in his first affidavit to suggest - although there was some question about duplicated exhibit numbers - that the appeal books were not in completed form by the time of the appellant's arrival in Melbourne.

49 Fifth, the appellant orally stated that he would have delivered the appeal books to the Registry on 20 October had they been ready. But that statement was quite unconvincing. Not only did he not swear to such a thing in his first affidavit, he there at least implied that he made a conscious choice not to deliver the appeal books on 20 October, thinking that there would be 'no problem lodging them ... on the following day'.

50 Sixth, had the appeal books been close to finalisation, but not quite complete, on the afternoon of 20 October, I think it is inconceivable that the appellant would not have so informed the Registry that day. He was a litigant who had repeatedly failed to comply with Court orders, and such failure had already been very close to resulting in his appeal being dismissed for such want of compliance. Yet it is clear that the appellant did not communicate with the Registry on 20 October. Neither, it may be noted, did he communicate with the Registry on 17 October, after receiving notice of the Master's decision, to the effect he would or might be unable to comply with the obligation to deliver appeal books by 20 October.

51 Seventh, the appellant orally submitted that, had he understood that 20 October was a deadline, he would have filed the appeal books 'as they were' on that day. He stated that he did not believe at the time that disobedience of the order would or might have had an impact upon the status of his appeal. That was quite improbable when regard is had to the language of the Court on two occasions in 2008 concerning his past conduct.

52 Further, in pursuing his assertion that he did not understand the potential consequence of failing to deliver the appeal books by 20 October, the appellant identified a new scapegoat - on this occasion, the barrister who had been 'assisting' him. The barrister, he seemed to say, should have warned him of the consequences of not filing the appeal books on 20 October.

53 This was yet another matter about which the appellant said not a word in his affidavit. I understood him to agree with me that he was prepared to criticise the barrister, but not on oath.

54 Eighth, the first direct assertion by the appellant that the appeal books were yet to be completed at some stage on the afternoon of 20 October was made in his very recent affidavit. But his averment that he was 'compiling and checking all the 27 volumes of material that amounted to perhaps 9000 pages' that afternoon - I interpolate that it had been 'about 8000 pages' in his first affidavit - needs to be considered against his averment (in the same paragraph of the affidavit) that 'if [he] had any inkling that [his] appeal would be struck out because [he] was a day late, then naturally [he] would have filed the appeal books on the deadline of Monday afternoon.' The appellant cannot have it both ways. Either the books were able to be delivered to the Registry on 20 October, or they were not.

55 Ninth, the appellant's assertion in his affidavit that he thought there would be 'no problem' lodging the documents 'on the following day' because the respondent's solicitor 'had insisted [he] not finalize the Appeal Books and if [he] did, it was at [his] peril' was improbable having regard to the respondent's previous attitude to instances of the appellant's default. It is also noteworthy that on his own account the appellant had spent the weekend preparing the documentation. But if the appellant's thought process was as he averred, then he was quite wrong in taking no step on 20 October - such as by contacting the respondent's solicitor or the Registry - to ascertain the true position.

56 Tenth, at various points in his submissions the appellant suggested that he had been 'set up' or 'trapped' by the solicitor handling the matter for the respondent. I quite agree with the President's observation that there was absolutely no evidence of such a thing.

57 All in all, the appellant's affidavit, viewed discretely, did not support a conclusion that his failure to deliver the appeal books in time was attributable to ongoing dispute regarding the contents of the appeal book. Further, the appellant's oral submissions, which at times contradicted the apparent import of contemporaneous documents, and which offered a number of explanations for the default which did not see the light of day in his first affidavit, did not assist him. The Court listened to things said in those submissions, I should say, which it would not have done had the appellant been represented. Had his submissions assisted the appellant, I should have been inclined to act upon them. But they did not do so.

58 In the event, I am of opinion that the appellant's want of compliance with the order for delivery of the appeal books was simply a further example of the appellant's repeated disregard of orders made by the Court. It was a conscious decision not attributable to the books for any reason being incomplete. Further, if the decision was, improbably, based upon him thinking that there would be no problem lodging the documents on the following day, he did not take even the most obvious steps on 20 October to ascertain the true position.

59 An appeal, once instituted, should not ordinarily be terminated except by hearing and determination. But to state the generality is to admit the exception. This is, in my opinion, as instance of the exception. The following considerations are in point.

60 First, the Court must be able to protect the integrity of its processes, which are aids to the achievement of justice. They are designed to achieve resolution of litigation in an expeditious and efficient manner. Not every piece of litigation proceeds exactly in accordance with those processes, and for that reason there are circumstances in which a litigant is relieved from want of compliance with the rules or from disobedience of an order of the Court. And so it is that one must guard against the fate of litigation depending upon a too rigorous application of procedural rules.[18] But the appellant's conduct over a period of years, culminating in his failure to deliver the appeal books in time, has been of a different order of magnitude - as emerges from the reasons of this Court on the earlier applications, and from what I have said above. There comes a time at which the importance of a litigant having his or her day in Court is overwhelmed by other pertinent considerations.

61 Second, the appellant's want of compliance with Court orders has not been, so far as one can see, the consequence of the appellant being a man of inferior intellect or understanding. His affidavit and his written and oral submissions show him to be apparently intelligent, and certainly articulate.

62 Third, for the most part the appellant's want of compliance with Court orders, and specifically his failure to deliver the appeal books in time, appears to have reflected a notion that, despite what it has said in the past, the Court would never terminate his right of appeal other than by a hearing and determination. I regard his conduct, specifically his conduct of immediate relevance, as being blameworthy. I do not accept his protestations that he has made every attempt to comply with the orders which were from time to time made.

63 Fourth, the appellant is only one party to this appeal. Justice should be done, but justice must be even-handed. The respondent has been waiting on a hearing and determination of the appeal for three years now. Its reasonable expectation of the conclusion of litigation should be considered. Moreover, the respondent is a professional body. The appellant seeks by his appeal to agitate allegations of fraud and breach of fiduciary duty which were resolved against him at trial. So the respondent has been living under the shadow of an appeal which, it seems reasonable to think, would impose a greater stress than would be the product of most appeals. To my mind, the prejudice to the respondent has already been considerable; and it would be accentuated if an order favourable to the appellant was now made.

64 Fifth, the appellant's bona fides in bringing a substantial counterclaim against the respondent, in formulating the bases for his counterclaim, and in pursuing this appeal, are challenged, as Neave JA and I noted in our reasons delivered 7 April 2008. Litigation to which he had been a party, and in which the present respondent had been his solicitor, had apparently not been resolved to his satisfaction. Then the respondent sued for fees owing. The appellant responded by counterclaiming for a much larger sum and for exemplary damages. The respondent's costs claim was settled for a small amount. The judge rejected almost all of the appellant's claim that he had been charged excessive and unauthorised fees and expenses, that the respondent had failed to act honestly and fairly in relation to the exercise of a lien and an increase in the charge-out rate, that the respondent had acted fraudulently, that accounts had been falsified, and that the respondent had breached its fiduciary duty. In the event, the appellant was awarded about $10,000 on his counterclaim - which had been for an amount of about $109,000 plus exemplary damages.

65 In his reasons for judgement, the learned County Court Judge noted that in cross-examination the appellant had admitted that he brought his counterclaim because 'it was well and truly payback time', and that the respondent would 'regret not paying back' his fees. His Honour stated, however that he did not take the evidence of motive into account in deciding the case.

66 For present purposes, it is enough to say that what the trial judge characterised as the appellant's admissions about motive should not be wholly disregarded in considering whether to exercise the discretion conferred by r 64.16(2). That is so particularly having regard to serious allegations made against the respondent - of fraud and breach of fiduciary duty - which the judge rejected but which the appellant seeks to re-agitate.

67 Sixth, in my opinion it cannot be concluded, on the state of the material before use on this application, that the appeal is utterly devoid of merit. It is true that the appellant simply seeks to re-agitate most (if not all) of the factual issues decided against him at trial; and that his challenge to the costs orders made at trial raises, for the most part, an appeal against the exercise of a judicial discretion. Nonetheless, the learned judge below seems to have decided the case without resort to credit findings, and it is at least possible that this Court might view the evidence and exhibits in a different way.

68 Seventh, it is the fact that, belatedly, the appellant gave security for costs. No doubt that shows his desire to prosecute his appeal. Subject to argument, at least some of the security given would probably be lost if the present application failed. It might fairly be said that there would be an unfairness in the appellant losing some or all of the security given without the substance of his appeal being agitated.

69 The two circumstances last-mentioned do tell in the appellant's favour. But in my opinion they are overwhelmed by the other considerations to which I have referred. The appellant has not persuaded me that the indulgence which he seeks should be granted.

[2] That rule then set a time limit for delivering a copy of the notice of appeal and of proposed contents of appeal book to the Listing Master.

[4] Court of Appeal, 29 February 1996, unreported.

[8] Or pursuant to which the court imposes a time limit.

[9] [1998] HCA 27; (1998) 195 CLR 516, 539-543 [66] (Kirby J).

[10] Orders were made on the claim and counterclaim on 19 October 2005, and in respect of costs on 22 December 2005.

[11] It related to the service of a marked-up revised copy of proposed contents of appeal books.

[15] See email, appellant to respondent, 26 September 2008, part of exhibit MJW-5 to the affidavit of Mark Walter sworn 22 December 2008.

[16] How he had failed to understand its significance, in light of the respondent's letters to him of 8 October 2008 and 13 October 2008 (exhibits MJW-2 and MJW-7 to Mr Walter's affidavit) is at least surprising, the more so in light of paragraphs 2, 3 and 8 of the respondent's outline of argument.

[18] Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, 526-527 [29]-[30] (Gummow and Hayne JJ), 541-543 (Kirby J).

At a glance

Court

Decision date

Before

Source

Judgment (109 paragraphs)

Parties

Cases Cited (2)