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ex tempore Judgment

1. MEAGHER JA: I will ask Leeming JA to deliver the first judgment.
2. LEEMING JA: Mr Gerard Mendonca seeks a substantial extension of time to appeal from two judgments of the District Court, given on 12 June and 27 June 2014. His application for leave to appeal was filed more than two years later, on 8 July 2016. It should be said at the outset that Mr Mendonca is unrepresented in this Court, although he was represented by a solicitor and barrister in the proceedings in 2014.
3. In 2006, the respondent, Chan & Naylor (Parramatta) Pty Ltd, employed Mr Mendonca as an accountant in its business of providing accounting, tax and wealth advice to clients. He was dismissed in August 2012. In that year, Mr Mendonca sued his former employer, claiming that it had failed to pay him all of the performance bonuses to which he was entitled in the six previous years. Those bonuses appear to have amounted to more than $100,000 (before tax). By a reserved judgment given on 12 June 2014 following a hearing lasting seven days, the primary judge rejected Mr Mendonca's claim. Her Honour found Mr Mendonca to be an unreliable witness, that the bulk of the documentary evidence did not support his case, that the testimonial evidence of the defendant's witnesses including a Mr Nelson was to be preferred, and relied on the absence of any contemporaneous complaint by Mr Mendonca. Her Honour also found that a copy of what became known as "the disputed document", on which Mr Mendonca relied, had been created by Mr Mendonca for the purpose of his litigation. That finding was made, expressly, having regard to the heightened standard required by Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. Her Honour also relied on the failure to call Mr Safetli, who had been the General Manager, and who at the time was serving a term of imprisonment.
4. In a subsequent, ex tempore decision, given on 27 June 2014, the primary judge ordered Mr Mendonca to pay the defendant's costs on an indemnity basis, relying upon Degmam Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354, on the basis that the litigation had been based, in part, upon the "disputed document".
5. Mr Mendonca had also commenced separate proceedings in 2012 against his former employer in what was then the Federal Magistrates Court, following a complaint he had made with the Fair Work Ombudsman. He claimed that he was subject to bullying, harassment and discrimination, partly because of his sex, by Mr Nelson and other employees. The hearing of those proceedings (in which Mr Mendonca was represented by the same solicitor but different counsel) occupied four hearing days in April 2014. Again, Mr Mendonca was in substance unsuccessful, and was found to be an unpersuasive witness, although he did establish an entitlement to ten days of annual leave which had not been paid: Mendonca v Chan & Naylor (Parramatta) Pty Ltd [2014] FCCA 1042.
6. Rather than appealing from the decisions of the primary judge, Mr Mendonca proceeded to sue the solicitor and barrister who had acted for him, in relation to the adverse costs order made by her Honour. The history of that litigation is reproduced in the judgment of this Court in Mendonca v Dooley & Associates Solicitors Pty Ltd [2016] NSWCA 144 at [13]-[14]. That litigation was heard over five days before another judge, McLoughlin DCJ, in the District Court of New South Wales. This time, Mr Mendonca was unrepresented. He was unsuccessful: Mendonca v Chan & Naylor (Parramatta) Pty Ltd as Trustee for Chan & Naylor (Parramatta) Trust (District Court (NSW), 6 November 2015, unrep).
7. It is clear that in his litigation with his former lawyers, Mr Mendonca was contending that the decisions of Balla DCJ were correct. For example, McLoughlin DCJ recorded at p 17 of his reasons: "Mr Mendonca's submission is that, in effect, [the former solicitor and barrister] should have found his evidence unbelievable and advised him accordingly and refused to prosecute further the claim."
8. Mr Mendonca sought (within time) leave to appeal from that decision, but his application was dismissed on 27 June 2016: [2016] NSWCA 144. In the joint reasons of Simpson JA and Sackville AJA refusing leave, their Honours noted at [13] that Mr Mendonca did not appeal from the orders made on 12 or 27 June 2014. Their Honours concluded at [49]: "The applicant has not demonstrated that he has an arguable case that the decision of the primary Judge was wrong. Nor has he shown that he would suffer injustice if leave is refused. The applicant's liability to pay indemnity costs to his Employer arose because, on the unchallenged findings of Balla DCJ, he persisted in mounting a case which he knew was false in material respects. Yet he consistently maintained to the Solicitors and the Barrister that his evidence was truthful."
9. Mr Mendonca now seeks leave to appeal from the decisions of Balla DCJ given on 12 and 27 June 2014. His written submissions address the extension of time that he requires, asserting that there has been a substantial miscarriage of justice and that there is no prejudice to the defendant. They repeatedly make extremely serious allegations, including fraud, "knowing perjury" and knowing false assertions. The conclusion of the submissions is representative: "Hence, costs order against Mr Mendonca must be varied to make the defendant pay all costs due to their fraud on the court, unreliability and knowing perjury about facts material to the proceedings" [sic].
10. Mr Mendonca has sworn an affidavit to the effect that he was given inaccurate advice by his barrister that he should not appeal from the decisions of the primary judge because they had no reasonable prospects of success. He also said from the Bar Table that another firm of solicitors had given him advice that he had no prospects of success. But that does not address the inconsistency of approach which these applications disclose. The premise of his litigation against the legal practitioners who had formerly acted for him was that the decision of the primary judge was correct. Only after this Court's decision on 27 June 2016, which referred to "the unchallenged findings of Balla DCJ", did he bring this proceeding. Further Mr Mendonca accepted in oral submissions that it was only following that hearing that he appreciated the force of what became his primary proposed ground of appeal. Mr Mendonca now wishes to obtain a substantial extension of time so as to challenge the premise of the litigation initiated by him, prosecuted over some days, from which leave to appeal was refused. As the extract from the reasons for judgment of McLoughlin DCJ reveals, this is a very clear case of a litigant seeking to bring into existence judgments which would be squarely inconsistent with one another.
11. Further, Mr Mendonca wishes to vary the costs order made by this Court earlier this year in the proceedings against his former lawyers. This cannot occur. The lawyers are directly affected by this aspect of his application, but have not been joined (although they were notified and in fact counsel for them appeared when the matter was heard).
12. In those circumstances, it is sufficient to deal with the prospects of the proposed appeal relatively concisely. There are five proposed grounds of appeal. The first is that there is said to have been error in the finding that Mr Mendonca, rather than his former employer, had the onus to call Mr Safetli. Mr Mendonca relied on the fact that he had been a senior employee, citing what had been said in Doppstadt Australia Pty Ltd v Lovick & Son Development Pty Ltd [2014] NSWCA 158 at [87]. Two things may be said in response. The first is that it is far from clear that such reasoning applies in cases where the former employee has, by the time the evidence would have been led, been convicted of a serious crime (in fact, murder). Secondly, as is pointed out in the reasons of this Court at [45], even if that error was made, that was not necessarily fatal to the claim. There were many other matters on which the primary judge relied.
13. The second proposed ground alleges error in the finding that Mr Mendonca knew that his claims were propounded on a false basis. That finding is admittedly a serious one, but that serves only to emphasise the need to explain why Mr Mendonca delayed two years before seeking to bring this appeal, and the inconsistency with the proceedings Mr Mendonca brought against his former lawyers. In any event, the finding was squarely based upon the assessment by the primary judge of Mr Mendonca's demeanour in the witness box.
14. The third proposed ground addresses "her Honour's failure to make a finding that the defendant and their witnesses committed deliberate perjury punishable under s 327 of Crimes Act 1900". It suffices to say that no basis is articulated for such a claim. The fourth proposed ground reiterates Mr Mendonca's contention that the defendant's witnesses lied under oath, and takes the matter no further.
15. The final proposed ground is "[a]ny other errors the Hon. Court of Appeal may notice on its own motion from the evidence on appeal and according to principles laid down for self represented litigants in Tomasevic v Travaglini [2007] VSC 337". Self-evidently, that proposed ground takes the matter no further in the presently relevant enquiry, which is whether there should be a substantial extension of time. It should be added that Mr Mendonca has supplied extensive submissions and three volumes of supporting materials in support of his application.
16. This is a clear case where the application to extend time should be refused, on the basis that the proposed grounds are, at best, very weak, the delay is extensive, and the argument sought to be made is inconsistent with that made and maintained by Mr Mendonca in the intervening period. I propose that the summons filed 8 July 2016 and the notice of motion filed 8 August 2016 be dismissed with costs.
17. The former solicitor and barrister, who had been notified of this application, and who attended by separate counsel, were not joined to this application. One (the barrister) made an application for costs; the other did not. The effect of the order I propose is that there will be no order for the costs of the non-parties, who, as lawyers, should reasonably have appreciated that this Court would make no order directly affecting them without their first having been joined as parties.
18. MEAGHER JA: I agree with Leeming JA. There is one outstanding matter, namely, the respondent's application for indemnity costs.
19. [Submissions as to costs.]
20. MEAGHER JA: The respondent seeks indemnity costs. In light of Mr Mendonca not being represented, I would dismiss the application with costs but not order indemnity costs, something which is consistent with the costs order made earlier this year.
21. LEEMING JA: I agree with Meagher JA.
22. MEAGHER JA: The orders of the Court are: 1. Summons filed 8 July 2016 dismissed. 2. Notice of motion filed 8 August 2016 dismissed. 3. Application of Mr Gunning for costs dismissed. 4. Applicant to pay the respondent's costs on the ordinary basis.