Thursday 30 April 2009
LO & ANOR v IVERACH & ANOR
Judgment
1 THE COURT: The applicants, Mr and Mrs Lo, were represented by Mrs Lo appearing in person. They applied on a notice of motion filed on 2 September 2008 in proceedings 40233/03, a summons filed in the Court of Appeal on 28 March 2003. By that summons Mr and Mrs Lo applied for an extension of time to apply for leave to appeal from a decision given by Palmer J in October 2002 in proceedings 4246/02 and for leave to appeal from that decision. The summons was dismissed with costs in April 2004. The present application is an application to vary or discharge an order made by Bell JA refusing to set aside the Registrar's dismissal of a notice of motion filed in proceedings 40233/03 in July 2008.
2 The application came after a long history. An account of the circumstances in which it was made can be compiled from the materials before us as follows.
3 Mr and Mrs Lo owned land at Menai. The land had the benefit of a right of way over adjoining land. The owners of the adjoining land gave permission to the respondents, Mr and Mrs Iverach, to use the part the subject of the right of way for access to their land in connection with construction of a swimming pool. Although initially giving permission, Mr and Mrs Lo came to complain of interference with their use and enjoyment of the right of way.
4 In the proceedings heard by Palmer J Mr and Mrs Lo claimed against Mr and Mrs Iverach, and also their contractor who is not a respondent to the notice of motion and need not further be mentioned, an injunction to restrain interference with their use and enjoyment of the right of way and damages. Palmer J dismissed the claims. He did not consider that the interference that was likely to occur while the remaining construction work was carried out warranted the grant of an injunction, regarding it as not a substantial or unreasonable interference and within what the law requires neighbours to tolerate. He recorded that the claim for damages had been abandoned by Mr and Mrs Lo's counsel, they then being represented, and said that counsel's concession that there was no evidence on the basis of which an award of damages could be made for such interference as had occurred was rightly made and that no compensable damage had been shown. On 29 October 2002 his Honour ordered that Mr and Mrs Lo's summons be dismissed with costs.
5 Then came proceedings 40233/03 in the Court of Appeal, in which Mr and Mrs Lo applied for an extension of time and leave to appeal from Palmer J's decision. It came before Giles and Hodgson JJA, and on 16 April 2004 the summons was dismissed with costs.
6 The history from then on is concerned with the two sets of costs.
7 Mr and Mrs Iverach had the costs awarded by Palmer J and in the Court of Appeal assessed. Costs assessment certificates were issued. Mr and Mrs Lo applied to a review panel to review the assessor's assessments. The application was dismissed.
8 By a summons filed in the Supreme Court, proceedings 13483/07, Mr and Mrs Lo appealed from the decision of the review panel. According to Mrs Lo, when the summons was listed before Malpass AsJ a notice of motion was filed "seeking clarification" whether his Honour had jurisdiction to deal with it. The notice of motion came before Bell J on 17 September 2007. Her Honour "dismissed the motion without clarification and directed the summons to the associate judge".
9 The summons was heard by Malpass AsJ, and was dismissed with costs. We will return to the basis for Mr and Mrs Lo's resistance to the assessment of the costs, which was maintained in the further action taken by them.
10 Mr and Mrs Lo sought to overturn the decision of Malpass AsJ by a notice of motion filed in proceedings 13483/07. The notice of motion came before Harrison J. On 4 December 2007 his Honour ruled that he had no jurisdiction to hear an appeal from the decision of Malpass AsJ, and dismissed the notice of motion with costs.
11 At some point Mr and Mrs Iverach brought proceedings 370/07 and 371/07 in the Local Court at Burwood, suing on the costs assessment certificates to recover the assessed costs. They obtained judgments and issued execution. In January 2008 Mr and Mrs Lo applied, by another notice of motion filed in proceedings 13483/07, for orders restraining enforcement of the Local Court judgments until any appeal from the decision of Malpass AsJ had been determined. On 30 January 2008 Johnson J dismissed that notice of motion with costs.
12 On 3 March 2008 Mr and Mrs Lo filed a notice of motion in proceedings 40233/03. The notice of motion is not in the papers we have, but from the Registrar's reasons next mentioned it sought that the decision of Giles and Hodgson JJA in April 2004 be set aside and other orders made; that proceedings 13483/07 be removed into the Court of Appeal; and that the proceedings in the Local Court be transferred to the Court of Appeal. The notice of motion was returnable before the Registrar on 7 April 2008.
13 From his reasons given on that day, the Registrar was of the view that the notice of motion was bound to fail because the orders sought in it could not be made. The decision in April 2004 could only be set aside by appeal to the High Court; proceedings 13483/07 could not be removed into the Court of Appeal because they were finalised and any challenge to their decision was by appeal; and there was no power to transfer the Local Court proceedings to the Court of Appeal. The Registrar dismissed the notice of motion with costs as an abuse of process within Pt 13.4 of the Uniform Civil Procedure Rules ("the Rules").
14 On 13 May 2008 an amended notice of motion was filed, which came before Mason P on 19 May 2008. Again the notice of motion is not in the papers we have. From his Honour's reasons, which also describe the basis for Mr and Mrs Lo's resistance to assessment of the costs, the nature of the relief claimed was as follows.
15 First, it was sought to discharge the Registrar's decision of 7 April 2008 dismissing the earlier notice of motion. His Honour refused to do so, saying that he agreed with the Registrar's reasons which "in essence … track the reasons I am about to give in explaining why I refuse the remaining orders sought in the amended notice of motion".
16 Secondly, it was sought to challenge in various ways the outcome in proceedings 13483/07. His Honour refused to transfer those proceedings to the Court of Appeal because they had been determined and any redress was by an appeal, and said that Harrison J was correct in holding that he had no jurisdiction to review the decision of Malpass AsJ. He refused to set aside the judgment of Malpass AsJ or the costs assessment certificates, for a number of reasons including that the basis for doing so argued by Mr and Mrs Lo was "completely without foundation".
17 Thirdly, it was sought to transfer to the Court of Appeal the Local Court proceedings in relation to enforcement of the judgments. His Honour said that there was no basis for doing so, and agreed with the Registrar that the application was entirely misconceived. He repeated, in effect, that the underlying challenge to the costs liability the subject of the Local Court judgments was misconceived.
18 Fourthly, some interlocutory relief was sought. It fell with the refusal to grant substantive relief. His Honour said that the relief here sought in effect challenged the decision of Giles and Hodgson JJA in April 2004 and that Mr and Mrs Lo also sought "to file amended documents that would treat the judgment of Palmer J as if it were a mere staging post rather than the final determination of proceedings that have been concluded and already addressed by way of appellate proceedings in this Court". He described this balance of the notice of motion as misconceived.
19 Mason P dismissed the amended notice of motion with indemnity costs.
20 It is appropriate at this point to describe the basis for Mr and Mrs Lo's resistance to assessment of the costs.
21 At the time Pt 52 r 9A(1) of the Supreme Court Rules provided in substance that application to proceed with taxation of costs could not be made, except with the leave of the Court, before the conclusion of any proceedings. Mason P said that Mr and Mr Lo argued that the proceedings before Palmer J had not truly concluded "because certain arguments had been overlooked and certain evidence overlooked, with a consequence, so it was put, that the orders of Palmer J were interlocutory". They said that the decision of Giles and Hodgson JJA refusing to permit appellate review was also interlocutory because it was concerned with an interlocutory decision of Palmer J. Mason P recorded that the argument advanced before him was "an argument to the effect that the order of Palmer J was interlocutory for the reasons stated, and that the order of this Court was interlocutory because it was an order made in refusing appellate review of what was an interlocutory order, ie, that of Palmer J".
22 His Honour considered that the application before him was misconceived because Palmer J's order was not interlocutory, but was a final order, and because although in one sense an application for leave to appeal was interlocutory it was "clear beyond argument" that the proceedings in the Court of Appeal disposed of by Giles and Hodgson JJA were concluded.
23 It appears from the submissions to which we later refer that the same argument had been raised before the assessor and the review panel, and we infer before Johnson J. It had been put to Malpass AsJ, and Mason P recorded that, amongst other reasons, his Honour had held that the relevant proceedings had unarguably been concluded.
24 Returning to the history, Mr and Mrs Lo then filed another notice of motion in proceedings 40233/03 seeking an order "[d]ischarging Mr Justice Mason's order to dismiss the amended motion filed 13 May 2008 and substituting that with the Court of Appeal decision". The notice of motion was returnable before the Registrar on 30 June 2008. Mr and Mrs Lo did not appear when the matter was called. The Registrar observed that the notice of motion was not supported by an affidavit as it should have been, but that in any event it was "misconceived and otherwise doomed to failure". He dismissed it as an abuse of process within Pt 13.4 of the Rules. Mrs Lo later appeared, and the Registrar told her of the result.
25 Mr and Mrs Lo applied by a notice of motion filed on 28 July 2008 for an order setting aside the Registrar's decision to dismiss the motion "filed 30 June 2008", no doubt meaning the notice of motion which had come before the Registrar on 30 June 2008. That notice of motion came before Bell JA on 18 August 2008.
26 Her Honour referred to the history to that time as set out in the judgment of Mason P. She recorded that Mrs Lo took the Court to Pt 52 r 9A(1) of the Supreme Court Rules "and again sought to agitate the arguments that appear to have been before his Honour on 19 May, namely that the proceedings before Justice Palmer which terminated with judgment on 29 October 2002 are, when properly understood, interlocutory proceedings". She said that Mrs Lo had submitted that the Registrar should have referred the motion to "the Full Court", and had submitted with reference to General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 that there was a real question to be determined, namely "whether proceedings 4246/02 … and proceedings 40233/03 were interlocutory". Her Honour said that, taking into account the matters that had been put in oral and written submissions, she was not persuaded that the Registrar was in error in concluding that the earlier motion should be dismissed under Pt 13.4 as an abuse of process. She dismissed the notice of motion with indemnity costs.
27 The relief sought in the notice of motion now before the Court is -
"1. Setting aside Ms Justice Bell decision dated 18 August 2008 in lieu of discharging of Registrar Schell decision dated 30 June 2008 to dismiss the motion to review Mr Justice Mason decision on reviewing of Registrar Schell decision dated 19 May 2008.