LEE -v- BRANDIS [2024] WASCA 150 (26 November 2024)

The orders the subject of the applications for leave to appeal

1. By appeal CACV/54/2024, commenced on 16 September 2024, Mr Lee sought leave to appeal against orders made by the primary judge in action CIV/2660/2015 on 5 July 2023 to the effect that:
   1. [Mr Lee's] application for leave to proceed, pursuant to s 60(4)(a) of the Bankruptcy Act 1966 (Cth), is dismissed.

1. The action will be listed for further directions to hear submissions from the parties as to whether action [sic] should be dismissed.
2. Other than the directions hearing contemplated by order 3, the action will otherwise remain stayed by operation of s 60(2) of the Bankruptcy Act 1966 (Cth).
3. The primary judge's reasons for those orders were provided in Lee v The State of Western Australia [No 2] [49] - [54], [82].
4. Appeal CACV/55/2024, commenced on 17 September 2024, concerns earlier orders made in action CIV/2660/2015. Mr Lee sought leave to appeal against orders made by the primary judge in action CIV/2660/2015 on 31 May 2023 to the effect that:
   1. [Mr Lee's] application for an adjournment of the hearing listed for 1 June 2023 is dismissed ...
   2. [Mr Lee's] application for leave to proceed with the action pursuant to s 60(4) of the Bankruptcy Act 1966 (Cth) be heard and determined on the papers and the hearing listed for 1 June 2023 be vacated.

1. Accordingly, the orders the subject of appeal CACV/55/2024 concern the primary judge's orders refusing an adjournment of the application which resulted in the orders the subject of appeal CACV/54/2004. The primary judge in fact vacated the hearing at which the application was to be heard and made orders providing for the application to be determined on the papers. The primary judge gave written reasons for those orders of 31 May 2023: Lee v The State of Western Australia.[3]
2. By appeal CACV/57/2024, commenced on 20 September 2024, Mr Lee sought leave to appeal against orders made by the primary judge in action CIV/2011/2022 on 5 July 2023 to the effect that:
   1. [Mr Lee's] application for leave to proceed, pursuant to s 60(4)(a) of the Bankruptcy Act 1966 (Cth), is dismissed.
   2. [Mr Lee] is to pay the defendant's costs of the application, to be taxed if not agreed.
   3. The proceeding is hereby dismissed.
3. The primary judge's reasons for those orders were provided in Lee v The State of Western Australia [No 2] [41] - [48], [82].

1. The principles that apply on an application for leave to appeal in respect of an interlocutory order are well established. For present purposes it is sufficient to adopt, without repeating, what was said by this court in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[4]
2. In summary, where leave to appeal is necessary, leave may be granted whenever the interests of justice require the grant of such leave. Ordinarily, while not being rigid or exhaustive criteria, two main considerations are taken into account. First, whether the decision is wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered. Second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong. The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected. Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
3. Each application for leave to appeal relied on a ground of appeal to the effect that the primary judge made the relevant decision and orders:

with insufficient impartiality and or apprehended bias as a fair-minded lay observer might reasonably apprehend that the judge might not have brought an impartial mind to the resolution of the question the judge is or was required to decide ... This resulted in a breach of natural justice and an error of law ... invalidating the decision and the orders ...

1. Accordingly, in substance Mr Lee grounded each application for leave to appeal on an allegation of reasonable apprehension of bias on the part of the primary judge.

Mr Lee's earlier appeals against the orders of 5 July 2023

1. As we have mentioned, we have previously had occasion to describe the nature of action CIV/2660/2015 and action CIV/2011/2022. We did so in the context of earlier appeals that Mr Lee purportedly commenced against the primary judge's orders of 5 July 2023 made in those actions. In particular, by appeal CACV/88/2023, commenced 20 July 2023, Mr Lee purported to commence an appeal against the primary judge's orders made 5 July 2023 in action CIV/2660/2015; and by appeal CACV/87/2023, commenced 20 July 2023, Mr Lee purported to commence an appeal against the primary judge's orders made 5 July 2023 in action CIV/2011/2022.
2. On 24 November 2023, for reasons that were published on 27 November 2023 in Lee v The State of Western Australia, this court made orders dismissing appeal CACV/87/2023 and appeal CACV/88/2023 as incompetent [2] - [3], [10], [45], [55], [57].
3. In the court's reasons in Lee v The State of Western Australia we addressed the following:
   1. The background to action CIV/2660/2015 and action CIV/2011/2022 and the primary judge's reasons for decision for the orders made 5 July 2023 [4] - [10], [32] - [38], [49] - [51].
   2. The orders made 5 July 2023 and the appeals therefrom by appeal CACV/87/2023 and appeal CACV/88/2023 [11] - [14].
   3. The applicable legal principles in relation to the operation of s 60(4) of the Bankruptcy Act [15] - [20].
   4. The issue that arose in relation to the competency of the appeals [21] - [27]. Relevantly, for reasons that we then explained, the question of competency was bound up with the merits of the appeals as:

[T]he competency of each appeal depended on whether, contrary to the primary judge's determination, the proceedings commenced by Mr Lee in CIV/2011/2022 and CIV/2660/2015 were each an action in respect of any personal injury or wrong done to Mr Lee. To the extent that the primary judge was correct the appeals were incompetent and had to be dismissed. To the extent that the primary judge was incorrect the appeals were competent [26].

1. The competency of appeal CACV/87/2023 against the primary judge's orders made 5 July 2023 in action CIV/2011/2022 [28] ‑ [45]. In this respect we concluded that:

Mr Lee failed to establish that the proceedings he had commenced in CIV/2011/2022 was an action in respect of a personal injury or wrong done to him. It followed that appeal CACV/87/2023 was incompetent and had to be dismissed. The appeal was, in any event, without merit. The lack of merit in ground 2, which had no reasonable prospect of succeeding, meant that the appeal could not succeed. That also provided a reason for the dismissal of the appeal [45].

1. The competency of appeal CACV/88/2023 against the primary judge's orders made 5 July 2023 in action CIV/2660/2015 [46] - [56]. In this respect we concluded that:

The primary judge was correct, for the reasons that his Honour gave ..., to conclude that action CIV/2660/2015 was not an action in respect of a personal injury or wrong done to Mr Lee for the purpose of s 60(4) of the Bankruptcy Act. Mr Lee was seeking, by action CIV/2660/2015, to recover profits that he might otherwise have derived thereby augmenting his property or estate. The claim was not concerned with injury to Mr Lee's person, character or feelings. Insofar as Mr Lee failed to establish that the proceedings he had commenced in CIV/2660/2015 was an action in respect of a personal injury or wrong done to him it followed that appeal CACV/88/2023 was incompetent and had to be dismissed.

In addition, for the same reasons, neither ground 1 nor ground 2 had a reasonable prospect of succeeding. That also meant that appeal CACV/88/2023 ought to be dismissed [55] ‑ [56].

1. Mr Lee sought special leave to appeal against this court's orders dismissing appeal CACV/87/2023 and appeal CACV/88/2023 as incompetent. The High Court of Australia refused those applications on 11 April 2024 saying that an appeal to the High Court would enjoy no prospects of success: Lee v Kingsfield Holdings Pty Ltd & Ors;[5] Lee v The State of Western Australia.[6]

Disposition of the applications for leave to appeal

1. We will deal initially with appeal CACV/54/2024 and appeal CACV/57/2024. These are appeals against the same 5 July 2023 orders that were the subject of Mr Lee's earlier appeals in appeal CACV/87/2023 and appeal CACV/88/2023. The earlier appeals were dismissed by this court as incompetent - a finding that, as we then explained, followed because the primary judge was correct in his conclusion that the proceedings commenced by Mr Lee in CIV/2660/2015 and CIV/2011/2022 were not actions in respect of a personal injury or wrong done to Mr Lee.
2. Our conclusions in respect of appeals CACV/87/2023 and CACV/88/2023 were determinative of Mr Lee's applications for leave to appeal in appeals CACV/54/2024 and CACV/57/2024.
3. We will deal first with the application for leave to appeal in appeal CACV/54/2024. One consequence of Mr Lee's bankruptcy was that his purported appeal by appeal CACV/88/2023 against the orders made on 5 July 2023 in action CIV/2660/2015 was incompetent. There has been no change in circumstances as concerns Mr Lee's bankruptcy. Any other purported appeal by Mr Lee against the orders made on 5 July 2023 in action CIV/2660/2015 is incompetent for the same reasons that appeal CACV/88/2023 was incompetent. It is not in the interests of justice to grant leave to commence an appeal that is incompetent and must inevitably be dismissed. To the contrary any such grant of leave to appeal would be pointless. For that reason leave to appeal had to be refused.
4. In seeking leave to appeal much of Mr Lee's oral submissions to this court concerned the documents annexed to his affidavit sworn 20 November 2024. Mr Lee relied on those documents to advance the proposition that there was a connection between the proceedings in action CIV/2660/2015 (and CIV/2011/2022) and earlier defamation proceedings he had brought unsuccessfully in the General Division (ie Kingsfield Holdings Pty Ltd v Rutherford[7]) such that, contrary to the primary judge's finding, the proceeding was an action in respect of a personal injury or wrong done to Mr Lee. The difficulty with that submission is that the proceedings in action CIV/2660/2015 (and CIV/2011/2022) are to be characterised by the claims made therein rather than the documents Mr Lee pointed to. And, in any case, this court has previously found that Mr Lee failed to establish that the proceedings was an action in respect of a personal injury or wrong done to Mr Lee. Mr Lee's reliance of the documents annexed to his affidavit sworn 20 November 2024 was misconceived.
5. In addition, although incompetent, by appeal CACV/88/2023 Mr Lee had already purported to appeal against the orders made on 5 July 2023 in action CIV/2660/2015 and that appeal had been dismissed.
6. A litigant has but one appeal as of right or by leave under s 58(1)(a) or s 58(1)(b) of the Supreme Court Act 1935 (WA). The right of appeal, once exercised, is exhausted; it is not a right to appeal from time to time: Doble v Chaffey Services Pty Ltd.[8] Put simply, a litigant is not entitled to commence multiple appeals from the same decision. Mr Lee having already appealed, and that appeal having been dismissed, there could be no further right of appeal to be invoked. That provided a further reason why leave to appeal had to be refused. It is not in the interests of justice to grant leave to commence an appeal where the right to appeal had already been exhausted.
7. Mr Lee sought to overcome this further difficulty by referring to the reasons of Rich J in Cameron v Cole.[9] Mr Lee submitted that, as the primary judge's decision was affected by reasonable apprehension of bias, it should be treated as a nullity. So too, according to Mr Lee's argument, his earlier appeal from the primary judge's decision was a nullity - as one could not exercise a right of appeal where the decision under appeal was itself a nullity - and his right of appeal was not exhausted. How this might be consistent with Mr Lee presently purporting to appeal that same decision went unexplained. Mr Lee seemed to be of the view that whereas the earlier appeal in appeal CACV/88/2023 was a nullity that was not the position with the present appeal in CACV/54/2024.
8. Cameron v Cole establishes that an order of a superior court is binding and effective until set aside on appeal - the order provides lawful authority for the steps taken pursuant to it (590 - 591), (598 - 599), (604 - 605), (607). The Supreme Court of Western Australia is a superior court of record.[10] Accordingly, contrary to Mr Lee's contention, the orders made the primary judge were not a nullity and there was no basis for ignoring, as a nullity, Mr Lee's earlier unsucessful appeal in appeal CACV/88/2023. Mr Lee's reliance on Cameron v Cole was misconceived. The earlier appeal in appeal CACV/88/2023 exhausted any right of appeal Mr Lee had in respect of the primary judge's orders made 5 July 2023 in action CIV/2660/2015 providing a further reason why leave to appeal ought to be refused.
9. The above analysis as to appeal CACV/54/2024 applies equally to appeal CACV/57/2024 in its application to the orders made on 5 July 2023 in action CIV/2011/2022 and appeal CACV/87/2023.
10. This leaves appeal CACV/55/2024. There was no earlier appeal in relation to the primary judge's orders made on 31 May 2023 in action CIV/2660/2015. However, as has been seen, those orders were case management orders refusing an adjournment and providing for the Bankruptcy Act issues to be determined on the papers. It is very unlikely that this court would have granted leave to appeal against the orders of 31 May 2023 had there been an application for leave before the primary judge determined the Bankruptcy Act issues on 5 July 2023. See, in this regard, the analogous decision of this court in Lee v The State of Western Australia.[11] But, viewed from the perspective of 22 November 2024, the 31 May 2023 procedural orders providing for the means by which the Bankruptcy Act issues were to be determined have been overtaken by the substantive determination itself - a determination which has been upheld by this court in a decision in respect of which the High Court has refused special leave to appeal. There is, in the circumstances, no utility in granting leave to appeal. An appeal against the orders of 31 May 2023 cannot alter the parties' substantive rights as far as the Bankruptcy Act issues are concerned. In the circumstances the interests of justice militated strongly against the grant of leave to appeal and the application for leave to appeal had to be refused.

1. In each of the appeals we made orders to the effect that:
   1. The appellant's application for an extension of time to apply for leave to appeal is refused.
   2. The application for leave to appeal is refused.
   3. The appeal is dismissed.
2. We also made orders for costs in favour of the relevant respondents who participated in the appeals. The costs were fixed in an amount of $572 on each appeal to reflect that the work done for the respondents consisted of filing a respondent's notice of intention on the appeal and appearing on the registrar's notice to attend. The costs orders followed the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lee v The State of Western Australia [2023] WASCA 165 [28] - [31] (as to action CIV/2011/2022), [46] ‑ [48] (as to action CIV/2660/2015).

[2] Lee v The State of Western Australia [No 2] [2023] WASC 247 (primary reasons).

[3] Lee v The State of Western Australia [2023] WASC 182.

[4] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].

[5] Lee v Kingsfield Holdings Pty Ltd & Ors [2024] HCASL 79 [2].

[6] Lee v The State of Western Australia [2024] HCASL 80 [2].

[7] Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117.

[8] Doble v Chaffey Services Pty Ltd [2023] WASCA 180 [26].

[9] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571.

[10] Supreme Court Act 1935 (WA) s 6(2).

[11] Lee v The State of Western Australia [2023] WASCA 97 [39] - [40].