Kwon v O'Neil

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40667/01

SHELLER JA STEIN JA HEYDON JA

1 SHELLER JA: We are in a position to deal with this application now and I will ask Heydon JA to give the first judgment. 2 HEYDON JA: By notice of motion filed on 1 November 2001, the claimant seeks to review a decision of Registrar Irwin made on 29 October 2001. 3 The background, as far as it can be gleaned from the files, is that the claimant commenced District Court proceedings seeking recovery of money. Interlocutory orders were made striking out those proceedings, and costs orders were also made. 4 On 13 November 1998 Downs DCJ, QC, made an order in those proceedings. He said "The plaintiff's notice of motion is dismissed and I order that the plaintiff pay the costs of this motion. I further order that as a condition precedent to any further motions being filed that all of the costs orders against her in these prior proceedings be paid by her."

That order was made in the claimant's absence, although she had appeared before Downs DCJ earlier in the day.

No 40933 of 1998 5 On 13 November 1998 the plaintiff filed a Notice of Appeal. That Notice of Appeal bears the number 40933 of 1998. 6 On 9 December 1998 Registrar Jupp wrote a letter to the claimant in the following terms: "I refer to the notice of appeal with appointment filed by you on 23 November 1998. It is not possible to determine from your notice of appeal whether you have an appeal as of right to the Court of Appeal, however it appears probable that you do not. The notice of appeal suggests that your proceedings in the District Court were struck-out (summarily) in your absence. If this is the decision you are seeking to appeal from then there is no right of appeal to the Court of Appeal. Such a decision is regarded as an interlocutory decision and requires leave pursuant to the provisions of section 127 of the District Court Act. You may however be able to apply to the District Court to have the matter restored to their list. I suggest that you seek further procedural advice from the District Court registry. They will be more aware of the actual orders that were made and the circumstances in which they were made. It is also not clear whether the subject matter of your appeal involves a sum of at least $100,000. If it does not then your appeal is incompetent without leave. See section 127 District Court Act. If it does involve at least $100,000 you are required to file an affidavit establishing this. See Part 51 rule 8 Supreme Court Rules. I also note that even if you have a right of appeal to the Court of Appeal, the notice of appeal that you have filed does not set out any orders that you are asking the Court of Appeal to make. The paragraphs noted on the notice of appeal under 'orders sought' appear to be further grounds of appeal. If you are seeking to proceed with your appeal this will need to be rectified. If you decide that you do require leave to appeal, and you wish to pursue such an application for leave, then the Court of Appeal registry will be able to provide you with further procedural advice as to how that application should be made. Before you take any further steps I strongly recommend that you obtain independent legal advice as to your available options and the prospects of success in respect of those options." 7 The matter was listed for a directions hearing before Registrar Jupp on 18 March 1999. On that day, the claimant wrote a letter to the list clerk seeking an adjournment on medical grounds. She did not attend, and the Registrar stood the matter over for mention to 12 April 1999 at 9.45 am. There is a note in the file stating that a letter was to be sent to the claimant. 8 On 22 March 1999 Registrar Jupp sent a letter to the claimant in the following terms: "I refer to my letter to you dated 9 December 1998, and your non-attendance at the directions call-over on Thursday 18 March 1999. I received your hand written note dated 18 March 1999 where you indicated that you would not be in attendance at the call-over and that you were seeking an adjournment to a date after July 1999. I cannot agree to an adjournment for such an extended period without some explanation. At the call-over Mr Naylor appeared for the 1st respondent and Mr Nagle appeared for himself. They were both given copies of your note. Neither of the respondents was prepared to consent to the adjournment that you sought. Mr Naylor and Mr Nagle explained the circumstances of the proceedings that you seek to appeal from. I have also seen the transcript of the proceedings before Judge Downs. Judge Downs dismissed a motion filed by you to re-instate your statement of claim in respect of Mr O'Neil. Judge Downs did not deal with the motion filed by Mr Nagle to have the proceedings against him dismissed summarily. That motion was referred to Judge Ainslie Wallace. As I indicated to you in my letter to you dated 9 December 1998, there is no appeal as of right to the Court of Appeal in these circumstances. The appeal you have currently filed is therefore incompetent and cannot be allowed to proceed. As far as I am aware you have not replied to my letter dated 9 December 1998 either by asserting that you do have a competent appeal or by way of seeking leave to appeal. Under those circumstances I have adjourned this matter for mention at 9.45 am on Monday 12 April 1999. Unless you have taken some step to seek leave to appeal, and for the necessary extension of time to seek leave to appeal prior to that occasion, I intend to strike out the appeal as incompetent and/or for want of prosecution." 9 On 12 April 1999 the Notice of Appeal was struck out by Registrar Jupp. The claimant did not attend. The file bears a note to the effect that the appeal was struck out as incompetent. 10 There is in the file an order dated 10 July 2001 in the following terms: "The notice of motion filed on 19 June 2001 seeking an order for extension of time be dismissed."

The file does not clarify the relevant background to this and it is irrelevant to the outcome of today's application. 11 On 30 July 2001 a notice of motion seeking review of the decision of 12 April 1999 was filed, with a return date of 20 August 2001. The court file records that on 20 August 2001 that notice of motion was stood over generally pending the filing of a summons seeking leave to appeal against Downs DCJ's orders of 13 November 1998. The transcript of proceedings on that day reveals that Registrar Irwin repeatedly urged upon the claimant the importance, if she wished to challenge Downs DCJ's orders, of seeking legal advice with a view to filing an appropriate summons seeking leave to appeal coupled with an application for an extension of time for the filing of that summons.

No 40677 of 2001 12 On 31 August 2001 a summons seeking leave to appeal was filed in proceedings number 40677/01. It said: "The proceedings in respect of which leave to (appeal or cross appeal) is sought were heard on 20/8/01 and decided on . The claimant claims an order granting leave to (appeal or cross appeal) from the decision of Registrar Irwin (or as the case may be) (or the following part of the decision of adjourned (or as the case may be) - (state the part)." 13 On 29 October 2001 the summons filed on 31 August 2001 was dismissed as incompetent by the Registrar. On that day the applicant appeared but not the opponent. The reason for that was that he had told the Registrar in a letter of 13 September 2001 that both he and his counsel would be overseas on 29 October 2001. On 13 September 2001 Registrar Irwin wrote to the opponent in the following terms: "On 29 October the summons for leave to appeal is only listed for directions. On that day, if the application is in order, it is likely that it will be set down for hearing in early February. Your attendance would not be essential and you could arrange for this registry to notify you of the hearing date or of any directions which might be made. It is not appropriate to amend the return date without the consent of the claimant." 14 On 1 November 2001 a notice of motion was filed by the claimant returnable on 12 November 2001. It stated: " Review of Decision the Registrar's Refusal a Summons . On 29/10/2001, in Supreme Court. The Respondent Couldn't Attended . Appeal for Review of the Registrar's Decision." 15 On 12 November 2001 there were apparently appearances by the claimant in person and by a legal representative on behalf of the opponent. Registrar Irwin ordered the claimant to file all material in support of the notice of motion of 1 November 2001 by 3 December 2001 and ordered the opponent to file all his material by 10 December 2001. He stood the matter over to 10 December 2001. 16 On 10 December 2001, when the claimant appeared in person and counsel represented the opponent, Registrar Irwin specially fixed the hearing of the notice of motion dated 1 November 2001 before the court today, evidently on the basis that it was an application for review of Registrar Irwin's decision of 29 October 2001.

Procedural rules 17 Part 61 rule 3(1) of the Supreme Court Rules provides that where a registrar makes an order the "Court" may on motion review it. Part 61 rule 4 provides that the powers of the court under Part 61 may, in respect of the Registrar of the Court of Appeal, be exercised by a judge of appeal. 18 The decision which the claimant is seeking to review is the Registrar's decision of 29 October 2001 dismissing as incompetent the summons filed on 31 August 2001. There are not, in the file, any recorded reasons for that decision. It may, however, be reliably surmised that the reason why Registrar Irwin decided on 29 October 2001 to dismiss the summons filed on 31 August 2001 is that the summons was not a competent way of challenging the decision complained about, namely the standing over generally of the notice of motion of 30 July 2001 pending the filing of an application for leave to appeal against Downs DCJ's orders of 13 November 1998. If it had been desired to challenge Registrar Irwin's decision to stand over the notice of motion of 30 July 2001, the appropriate step to take was to seek leave by notice of motion to have it reviewed by a judge of appeal pursuant to Part 61 rule 4. It was not appropriate to purport to commence separate proceedings by summons seeking leave to appeal against it.

Decision 19 In my opinion the decision of Registrar Irwin on 29 October 2001 was unquestionably correct. He dismissed a summons seeking leave to appeal against a Registrar's decision. The correct method of challenge was by notice of motion returnable under Part 61 rule 4. The applicant did not need "leave to appeal" and there is no need to grant "leave to appeal" against the orders of 20 August 2001. 20 It is only necessary to apply for leave to appeal to the Court of Appeal in relation to orders made in the Common Law, Equity or Administrative Law divisions of the court, or in relation to decisions of other courts. Accordingly, the notice of motion filed by the claimant on 1 November 2001 should be, in my opinion, dismissed. 21 SHELLER JA: I agree. 22 STEIN JA: I also agree. 23 [Counsel for the opponent said that he did not seek costs.] 24 SHELLER JA: There being no application for costs, the order will therefore be as Heydon JA proposed it.

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