MACATANGAY v STATE OF NEW SOUTH WALES [2009] NSWCA 81 | Case summary

His Honour Mr Justice Grove erred in failing to give sufficient or adequate reasons in dismissing the case pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005." 4 There was a third ground of appeal stating that Grove J erred in describing the plaintiff as a "now disgruntled employee", a ground which was inapt and was properly removed by an amended notice of appeal filed on 11 April 2007. On that day the applicant also filed a document described as "outline of submission", which was of limited significance in identifying the grounds relied upon with any greater particularity, but did note that his Honour had placed reliance upon a judgment of Branson J in Miller v University of New South Wales [2002] FCA 882; 115 IR 404, which had been reversed on appeal by the Full Court: see Miller v University of New South Wales [2003] FCAFC 180; 132 FCR 147. In his judgment, Grove J noted that the reference given by the plaintiff identified as "[2003] FCA 180" was inaccurate: at [23]. It thus appears that although his Honour found the first instance decision, he did not find the Full Court appeal. 5 No affidavit was filed with the notice of appeal under Pt 51, r 8 of the Supreme Court Rules 1970 (NSW), as then in force, demonstrating that the amount in issue in the proceedings was valued at more than $100,000. Without material supporting such a conclusion, leave would have been required pursuant to s 101(2)(r) of the Supreme Court Act 1970 (NSW). On 12 April 2007, at a directions hearing before the Registrar, there appears to have been discussion as to whether leave was required and the note on the Court file indicates "leave to appeal required s 101(2)(l)". That provision requires leave to appeal from a judgment or order of the Court in a division "on an application for summary judgment under the rules". The matter was then stood over until 17 May 2007. 6 On 10 May 2007 the respondent filed a notice of motion and affidavit in support seeking to have the appeal dismissed. The notice of motion merely referred to s 101(1) as the basis for the requirement for leave. 7 On 17 May 2007 the Registrar made an order striking out the notice of appeal. There appear to have been no reasons given for making the order. 8 Whether the applicant ever understood the basis on which the appeal had been struck out is unclear. Certainly, in the proceedings on the motion before this Court on 30 March 2009, she relied upon written submissions noting that the judgment of Grove J dismissing the proceedings generally was not interlocutory but final and hence gave rise to a right of appeal. In support of that contention, she drew to the Court's attention the judgment of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [No 1] [1980] HCA 41; 147 CLR 35 at 38, where Gibbs J (Mason and Murphy JJ agreeing) concluded that a stay on the ground that matters in question could and should have been litigated in earlier proceedings and that the parties could not be permitted to reopen the same matter in subsequent proceedings involved a kind of estoppel which disposed of the proceedings entirely. Accordingly, the proceedings were not interlocutory and a right of appeal lay as from a final judgment. 9 The applicant was correct in thinking that an interlocutory judgment or order in proceedings in the Court requires leave to appeal pursuant to s 101(2)(e). Indeed, following the striking out of the notice of appeal, the first step taken by the applicant (relevantly for present purposes) was to file a summons seeking leave to appeal. The summons was dealt with by this Court on the basis (arguably erroneous) that leave was required because the judgment below was interlocutory: see Macatangay v State of New South Wales [No. 1] (Unrep, NSWCA, 8 November 2007). Had reasons been given in writing for the serious step of dismissing the appeal as incompetent, a source of confusion would have been avoided. The State, which had notice of the basis upon which the applicant sought to challenge the order of the Registrar, was also apparently unaware of the basis on which the order had in fact been made. 10 The State based its opposition to the present motion for review on the fact that the motion had been filed out of time and the applicant had failed to seek an extension of time. 11 As the applicant correctly noted, the Court generally has power to extend time where there has been a breach of a limitation period set by the rules: UCPR, r 1.12. I would not reject the present motion on the basis that no request for an extension of time was contained in the notice of motion, for reasons explained below. Power of Registrar to strike out incompetent appeal 12 The starting point for consideration of this matter is the power of the Registrar to dismiss an appeal as incompetent. The Registrar's powers are now identified in an instrument in writing made by the Chief Justice, pursuant to s 13 of the Civil Procedure Act 2005 (NSW). By the instrument now in force, the Registrar has power to dismiss an appeal under r 13.4, but not for incompetence. However, that instrument did not come into force until January 2008. An earlier instrument, which commenced on 4 October 2007, made no reference to dismissal under r 13.4 at all. Prior to that time, the power of the Registrar was to be found in Pt 51, r 58 of the Supreme Court Rules. In substance, that provision conferred on the Registrar the powers of a judge of appeal sitting alone under s 46 of the Supreme Court Act. (It is not necessary to consider whether that rule remained effective after the commencement of s 13 of the Civil Procedure Act.) 13 Section 46 reads as follows: " 46 Powers of Judge of Appeal (1) A Judge of Appeal may exercise the powers of the Court of Appeal: (a) to give any judgment by consent or make any order by consent, (b) to dismiss an appeal or other proceedings for want of prosecution or for other cause specified in the rules, (c) to dismiss an appeal or other proceedings on the application of the appellant or plaintiff … (2) A Judge of Appeal may exercise the powers of the Court of Appeal: (a) to make an order or give any direction concerning the institution of an appeal or other proceedings in the Court of Appeal, or (b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings." 14 While it is generally true that a statutory conferral of power or jurisdiction on a judicial tribunal should be broadly construed and not subjected to implied limitations, it must necessarily be construed in accordance with its terms. Although they are wide in one sense (see Wentworth v Wentworth (1994) 35 NSWLR 726 at 728G (Mahoney JA)) they contain their own inbuilt limitations. An application by a respondent to dismiss an appeal as incompetent cannot fall within sub-s (1)(a) or (c). Nor does it fall within the first limb of par (b) with respect to dismissal "for want of prosecution". In sub-s (2), taken by itself, it might be arguable that an order "concerning the institution of an appeal" might include an order dismissing the appeal for incompetence. Such an order would not fall within sub-s (2)(b) because it would involve the determination of the appeal, which is expressly excluded from the scope of that power. The reasonable implication is that the power in par (a) was not thought to extend to the determination of an appeal, but merely to procedural steps concerning its institution. Further, sub-s (3) expressly states that sub-s (2) does not authorise a judge of appeal to grant or refuse leave to appeal. In this context a power to make orders concerning the institution of an appeal should not be understood to permit the dismissal of an appeal as incompetent. Although the result may be said to impose an implied limitation on the powers of a judge sitting alone, in my view the limitation is to be found in the express language of the section, read as a whole. Further, this result does not limit the jurisdiction of the Court of Appeal as otherwise constituted. 15 The power of a single judge to dismiss an appeal as incompetent must therefore depend upon that cause being specified in the rules, for the purposes of s 46(1)(b). There do not appear to have been any rules prescribing other grounds then: nor are there now. Accordingly the Registrar could not in May 2007, and cannot now, dismiss an appeal as incompetent. Nevertheless, a decision of the Registrar is a determination of a superior court and is effective until set aside. Time to seek review 16 The next question is to determine whether a time limit applies with respect to an application to review a decision of the Registrar. Prior to the commencement of the Civil Procedure Act, and the UCPR, appeals from decisions of a Registrar were dealt with in the Supreme Court Rules, Pt 61. Under Pt 61, r 3, an application for review was to be made within 28 days of the date on which the Registrar made the order. The Registrar had power to extend that time, but only upon a motion made within the 28 day period. (Thereafter, the Court could extend time.) This rule was repealed with the commencement of the UCPR and its equivalent is now to be found in r 49.20. 17 Given that in May 2007 the rules governing this Court remained in Pt 51 of the Supreme Court Rules and given that the power of review was conferred by Pt 61, r 4 of the Supreme Court Rules, it would have been less than obvious that a relevant time requirement was to be found in the general provisions of the UCPR. The application of the UCPR in this Court during the period when the primary source of rules governing the Court was to be found in Pt 51 of the Supreme Court Rules, involves a further legislative chain identified in The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No. 2) [2006] NSWCA 120; 67 NSWLR 706 at [17]. It need not be repeated here. Furthermore, the new provision in the UCPR did not purport to be the equivalent of Pt 61, r 3, but the equivalent of former Pt 60, r 11, which had to deal with appeals from Masters and had nothing to do with appeals from Registrars. 18 Even the present scheme of cross-referencing to other Parts of the UCPR (see r 51.59) is less than ideal; the state of the rules in May 2007 must have rendered the position of a litigant in person extraordinarily difficult. Rules of Court are intended to allow for the orderly presentation of cases in a timely and efficient manner. Obfuscation is the antithesis of this purpose. However, if the applicant is to be excused from failing to appreciate the requirements of the Rules, it is the respondent who, at least in part, bears the burden. 19 That circumstance is alleviated in the present case by two factors. First, the respondent did not claim any prejudice beyond that involved in further appearances in Court and resistance to proceedings it believes are hopeless. Further, the respondent, being the State of New South Wales as a body politic, is not blameless in respect of the situation described above. 20 Despite the complexity of the route taken, it should be accepted that a 28 day period applied to seeking review of a decision of the Registrar in May 2007. Extension of time 21 It is not in doubt that this Court has power to extend the time within which an application for review may be made: UCPR, r 1.12. I infer that no application for an extension of time was originally made because the applicant did not realise there was a limitation period. For reasons noted above, her ignorance on that score is excusable. Further, there is no explicit claim for prejudice on the part of the State. Although the applicant did not seek an extension and therefore did not put on affidavit evidence in support of such an application, she gave evidence before the Court orally, outlining the steps she had taken subsequent to the decision of 12 May 2007. Her first approach was to accept the decision and seek leave to appeal. That application was refused on 8 November 2007, by Beazley and Ipp JJA. It will be necessary to return to the reasons for refusal in due course. 22 Thereafter, the applicant gave evidence of numerous steps taken to challenge collaterally the judgment of Grove J by separate proceedings for fraud, which were dismissed by Harrison AsJ on 22 November 2007, an application for leave to appeal from which decision was dismissed by Mason P and Handley AJA on 1 May 2008; an application for special leave to appeal from their Honours' decision was dismissed on 6 August 2008. A further notice of motion filed in the Common Law Division was dismissed on 25 August 2008. After taking those various steps, the applicant filed a summons for leave to appeal from the Registrar's decision on 15 September 2008. On 23 September 2008 she sought a waiver of fees and sought to file the notice of motion challenging the Registrar's decision. Both applications were refused. The reasons for refusal are not before this Court and no challenge is taken to those decisions of the Registrar. However, it is reasonable to conclude that the applicant had taken such steps as she could by September 2008 to apply for review of the Registrar's decision. Thereafter, she gave further evidence of approaching the Law Society to seek assistance from its pro bono scheme and of seeking help from the Attorney-General's Department and from the Premier through her local member of Parliament. No doubt these were not steps which a lawyer, conscious of time running in respect of the commencement of proceedings, would have relied upon. Given that it was the Registrar (whose decision she wished to review) who was by then refusing to accept an application for review, it is at least understandable that she turned to outside agencies for support. In any event, the State was clearly not in a position to argue that it was unaware of her attempts to pursue her claim despite impecuniosity. 23 If her application to review the decision of the Registrar was not accepted on 23 September 2008 because it was out of time and the Registrar had no power to extend time, one might expect that the applicant would have been advised that she should seek an extension of time from the Court if she wished to proceed with her application. Whether such advice was given is not known, but it seems likely that the applicant would have taken such a step had she been so advised. Absent evidence of prejudice to the respondent, such delay, when accompanied by attempts to obtain relief by alternative means, is not necessarily fatal to an application for an extension of time: compare Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [107] (Gaudron J), [152] (McHugh J) and [223]-[224] (Kirby J). I would accept the applicant's explanations for the delay and, subject to one final consideration, would extend time within which to file an application to review the decision of the Registrar. Prospects of success 24 The remaining question is whether the applicant should be refused relief because her appeal had insufficient prospects of success in any event. This is a vexed issue. Because a single judge would not have power to strike out a notice of appeal as incompetent under s 46 of the Supreme Court Act, the applicant is entitled to have her appeal remain on foot until this Court, properly constituted, determines that it should be dismissed or otherwise addressed. Despite that, I see no reason to doubt the Registrar's view that the appeal was in fact incompetent and that leave was required. It may therefore be anticipated that, if the respondent's application had come before a court properly constituted, the applicant would have protected her position by seeking, in the alternative, leave to appeal. If there had been no previous leave application, it would be a rare case in which a single judge would deem it appropriate to refuse an extension of time on that basis alone, thereby pre-empting an opportunity for a two judge court to consider a leave application. 25 The present situation is complicated by the fact that there has already been an application for leave to appeal which was refused by a two judge court because the proposed appeal against the judgment of Grove J was held to lack reasonable prospects of success. 26 I will assume that the refusal of leave does not of itself preclude a further application. Although the point was not argued, until leave has been obtained, there are no proceedings in this Court, in the sense identified in Collins v The Queen [1975] HCA 60; 133 CLR 120 at 122, applied in DJL v Central Authority [2000] HCA 17; 201 CLR 226 at [47] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Accordingly, the first refusal of leave does not give rise to a res judicata against the applicant. 27 Sitting as a single judge of the Court, I should nevertheless accept and apply the views expressed in the judgment dismissing the earlier leave application, to the extent that similar issues now arise. However, there are reasons why the approach adopted on the earlier application should not be treated as determinative of the likely outcome of any future leave application. 28 First, though not a matter of critical significance, the earlier leave application appears to have proceeded on the basis that the judgment of Grove J was interlocutory. I prefer the view that it was final rather than interlocutory: see [8] above. The reason for requiring leave does not appear to have been agitated at the earlier leave application and accordingly merely formed an assumption on which the judgment proceeded. It does not appear to have affected the approach adopted by their Honours. 29 Secondly, and more importantly, it does not appear to have been drawn to the attention of the Court on the earlier leave application that the judgment of Branson J in Miller, upon which the primary judge placed reliance, had been reversed by the Full Court of the Federal Court: see [4] above. The question is whether this error was material. Grove J said that he gained "some guidance" from the judgment of Branson J in Miller and set out a passage from her Honour's findings at [81]: Macatangay at [23]. In his final conclusion he noted that dismissal of the proceedings was appropriate "by analogy with and in harmony with the views of Branson J in Miller": at [28]. 30 Miller involved a finding of estoppel arising from an unsuccessful application to the Australian Industrial Relations Commission seeking relief in respect of the termination of employment on the grounds that it had been harsh, unjust or unreasonable. That required the Commission to determine whether there was a valid reason for the termination, being the matter which Branson J concluded was the basis of his claim for damages for breach of contract brought in the Federal Court. The case did not involve any complaint of res judicata, because the causes of action in the separate proceedings were different and the remedies were different. The Full Court (Ryan and Gyles JJ) treated factual findings made by the Commission as "merely steps along the way to the value judgment which had to be made in exercise of the only jurisdiction given to" the Commission, which could not give rise to an estoppel: [2003] FCAFC 180 at [75]. For similar reasons, their Honours dismissed the suggestion that there was an abuse of process in the circumstances, there being no attempt to litigate again matters which had been decided in the Commission: at [82]. Gray J also considered that the Commission, not being a Tribunal exercising the judicial power of the Commonwealth, could not make binding findings as to right with respect to the claims before the Federal Court. (The joint judgment did not find it necessary to consider the constitutional issue: at [85].) 31 The constitutional issue aside, the analysis of Ryan and Gyles JJ in Miller was not consistent with the approach adopted by Branson J to the question of estoppel and abuse of process. Accordingly, it is arguable that Grove J was in error in applying the reasoning of Branson J in the present case. That was not an issue addressed on the first leave application and provides an arguable ground of appeal. 32 Thirdly, Grove J drew assistance from the analysis of Spigelman CJ in New South Wales v Paige [2002] NSWCA 235; 60 NSWLR 371 at [137] (quoting Lord Millett in Johnson v Unisys Ltd [2003] 1 AC 518 at [80]) and at [146]-[150]. 33 The issue in Paige was whether the statutory scheme for unfair dismissal militated against the existence of a general law right to damages for breach of an implied obligation of mutual trust and confidence relating to the manner of termination of employment. On the materials placed before me by the parties on the present application, it is not clear that this case involves a similar claim. Nor does it appear to have been critical to the conclusion reached by the trial judge that an estoppel arose because the claim was an attempt to relitigate issues determined by the Industrial Relations Commission. 34 Grove J identified the primary relief sought by the State as dismissal of the proceedings as an abuse of process. His Honour continued at [26]: "The contention is that what is sought to be relitigated is the issue which has already been determined by the IRC. The response of the plaintiff was that, in this Court, the claim is solely for damages arising from negligence by those for whom the defendant is vicariously liable, whereas the claim in the IRC was for reinstatement. That overlooks the ambit of proceedings pursuant to Chapter 2 Part 6 of the Industrial Relations Act 1996 which invokes remedies including damages albeit limited as Spigelman CJ commented in Paige ." 35 This analysis of the matter operates at a level relevant to the determination of whether a duty of care exists, in a particular respect. As explained in Miller on appeal, the question of estoppel must be determined by reference to the specific matters pleaded. That analysis was not undertaken by the primary judge, nor can it be undertaken now because the relevant material is not before me. However, I note that Grove J identified the relief claimed as including future loss of income, damages for loss of opportunity to advance the applicant's career and exemplary and aggravated damages. Whether she has any basis for substantiating any of those claims is beyond the means of knowledge available to this Court. However, it would appear that the relief sought is at least in part distinct from that available in the Commission. Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217; 176 IR 82 is an example of a case in which, although the plaintiff was unsuccessful, the availability of relief by way of damages in tort or for breach of contract, in circumstances which involved the termination of employment, was recognised. The Industrial Relations Act 1996 (NSW) does not provide an exclusive code with respect to such proceedings. 36 Finally, Grove J stated that he had "elaborated in some detail the scope of the issues between the parties and the terms of settlement which were reached in the IRC proceedings" because they "amply demonstrated that this action seeks to relitigate what was finalized by the settlement of that litigation": at [27]. In fact, his Honour, as noted above, referred to the statement of claim only by identifying a cause of action (in negligence) and the relief sought: at [1]. It is true that his Honour set out in some detail the history of the dispute and the terms of the settlement in the Commission: at [7]-[17]. His Honour continued at [18]: "It was apparent from the submissions on the hearing of the present motion that the plaintiff was seeking once again to agitate a claim that the IRC proceedings had not been settled." 37 The purpose of the submissions referred to by his Honour is not entirely clear. They may have been thought necessary in resistance to the State's contention that all issues in dispute had been resolved in the Commission. That required an analysis of terms of the statement of claim and the deed of release. As already noted, the former was not analysed and in relation to the latter, it is not clear that there was any general release from claims available to the applicant otherwise than under the Industrial Relations Act. If there had been, it might have been necessary to consider whether the terms of the release covered common law proceedings in negligence: see Grant v John Grant & Sons Pty Ltd [1954] HCA 23; 91 CLR 112. Remarks of the Court on the application for leave to appeal suggest that the release was far more constrained in its intent and operation: at [4]. It further appears from this Court's analysis in the earlier proceedings that certain factual issues being agitated in the further amended statement of claim were resolved by the settlement of the proceedings in the Commission: at [5]. Whether the settlement had that effect, so as to give rise to an estoppel, raises directly the relevance of the reasoning of the Federal Court in Miller. 38 On this analysis, it appears that issues are now raised which were not raised or resolved in the earlier leave application. There is no material which would allow me to be satisfied that a future leave application would be doomed to fail. Conclusions 39 It may be thought that to grant an extension of time to allow the applicant to challenge the decision of the Registrar is merely to allow a brief lease of life to proceedings which must ultimately fail. If so, that would not be an act of kindness to the applicant. However, that view is neither open nor relevant. The applicant certainly nurtures a sense of grievance and believes that she has suffered a serious injustice. Whether it is an injustice which has a remedy at law is not known. Nevertheless, she is entitled to justice according to law. Whether or not that will quell her present sense of injustice, a failure to accord the applicant her legal rights will certainly not have that beneficial effect. 40 The conclusion reached by the Registrar that the appeal was incompetent may be correct, but the Registrar had no power to strike out the notice of appeal. Nor does a single judge of the Court have that power. 41 The time for seeking review of the decision of the Registrar is that prescribed by UCPR, r 49.20. The applicant did not comply with that requirement. Although the Registrar does not, this Court does have power to extend time. 42 While the delay is considerable, the State points to no prejudice which it has suffered. The fact that there had been a failure to comply with a time limit (and that the State intended to rely upon that point) appears not to have been appreciated by the applicant until the hearing of the motion. The State did not accept the applicant's claim that she had acted diligently in pursuing other remedies and had only sought to review the Registrar's decision when other remedies had failed. The applicant gave evidence of her efforts in those respects, summarised above, which I accept. 43 If the decision of the Registrar is set aside, there remains an apparent obstacle to pursuit of the notice of appeal, absent leave. However, the applicant is not precluded from a further application for leave to appeal by reason of her failure on the first application. Further, she has raised in argument before me matters which were not considered on the first application. I am satisfied that, the grounds upon which she now seeks to challenge the decision of the primary judge were not dealt with on the first application and should not be dismissed as unarguable. She is entitled to have them adjudicated upon by a properly constituted court. 44 In those circumstances, the Court makes the following orders:

MACATANGAY v STATE OF NEW SOUTH WALES

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Judgment (16 paragraphs)

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Legislation Cited (5)

Cases Cited (13)

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