Miller v Martin [2021] VSCA 13

1 The applicant appeals against orders made by Tate JA in proceeding number S ECI 2020 04762 in the Trial Division, that that proceeding be heard in the Court of Appeal with a proceeding by the applicant which is listed in the Court of Appeal on 12 February 2021, being proceeding number S EAPCI 2020 0005. The applicant also seeks leave to appeal against orders made by Judicial Registrar Pedley on the same day which comprised directions that were consequential on the decision made by Tate JA.

2 The background to the present application is complex, involving a series of proceedings and appeals instituted by the applicant. For present purposes, it is only necessary to provide a brief summary of that background which is relevant to the present application. A more complete summary is contained in the comprehensive judgment of Tate JA.[1]

3 The proceedings in question arise from a dispute about the ownership of a beach house in Moggs Creek, Victoria. In 1986, the applicant and the first and third respondents purchased the beach house together as tenants in common in equal shares. Subsequently, the name of the applicant's wife, the names of the wives of the first and third respondents, and the names of four of their family friends were also registered on the title. They are each respondents to this application.

4 On 26 February 2015, the applicant applied to the Victorian Civil and Administrative Tribunal ('VCAT') for a declaration that the respondents held their interests in the Moggs Creek beach house on a resulting or constructive trust for him ('the trust claims'). In the alternative, he sought an order that the beach house be sold and that all proceeds be distributed to him pursuant to ss 228 and 233 of the Property Law Act 1958 ('the statutory claims').

5 On 26 May 2016, Senior Member Walker made orders in the VCAT proceeding dismissing the application and reserving costs. Subsequently, on 3 June 2016, an amended order was made and the Senior Member's reasons were published ('the original VCAT decision').[2] Senior Member Walker determined that the applicant had entered into a partnership with the first and third respondents in 1980, and that the Moggs Creek beach house had been purchased from funds jointly owned by that partnership. For that reason, the trust claims failed. However, the Senior Member did not deal with the alternative statutory claims brought by the applicant.

6 On 23 June 2016, the applicant applied to the Trial Division of the Supreme Court for leave to appeal against the original VCAT decision. Leave was granted. Mukhtar AsJ found that the Senior Member was correct to dismiss the trust claims made by the applicant, but concluded that the Senior Member had failed to deal with the alternative statutory claims.[3] Accordingly, on 10 August 2018, his Honour ordered that the matter be remitted to Senior Member Walker for determination of the statutory claims.

7 In September 2018, the applicant filed an application for leave to appeal to the Court of Appeal from the substantive decision made by Mukhtar AsJ. He also filed a separate application for leave to appeal from orders made by Mukhtar AsJ dismissing a summons brought by him seeking the respondents' solicitors' files.

8 On 4 December 2019, the Court of Appeal heard the application for leave to appeal from the decision of Mukhtar AsJ. On 30 January 2020, the Court granted leave to appeal but dismissed the appeal.[4]

9 In the meantime, on 30 September 2019, Senior Member Walker, having heard the matter that had been remitted to him by the orders made by Mukhtar AsJ, made final orders for the sale, and the distribution of the proceeds of sale, of the Moggs Creek beach house ('the sale and distribution decision'). The Senior Member's written reasons were published on 8 January 2020.[5] The final orders provided for the sale of the Moggs Creek beach house, with the net balance of the sale proceeds to be distributed in accordance with the registered interests on the title.

10 On 3 December 2019, the applicant filed a notice of appeal in the Trial Division applying for leave to appeal against the sale and distribution decision made by Senior Member Walker on 30 September 2019. That notice of appeal was filed in proceeding number S ECI 2019 05551 ('the first appeal'). In that appeal, the applicant sought relief (inter alia) that the orders made by Senior Member Walker on 30 September 2019 be set aside, that the sale of the Moggs Creek property be stayed, and that the matter be remitted to VCAT for the proceeding to be heard by a differently constituted tribunal.

11 On 29 January 2020, Hargrave JA, in the Trial Division, made orders, on the application of the respondents, directing that the application for leave to appeal be reserved for consideration by the Court of Appeal.[6] The appeal ('the first appeal') was therefore assigned proceeding number S EAPCI 2020 0005 in the Court of Appeal and was listed for hearing on 31 July 2020. However, subsequently, the hearing date was vacated by Niall JA on 10 July 2020 in order to permit the appeal to extend to the determination of costs in respect of the VCAT proceeding.

12 On 4 November 2020, Senior Member Walker delivered his costs judgment in the VCAT proceeding ('the costs decision').[7] By that decision, he dismissed the respondents' application for costs.

13 The first appeal (that is, in proceeding number S EAPCI 2020 0005) is now listed for hearing in the Court of Appeal on 12 February 2021.

14 On 24 November 2020, the applicant applied to VCAT for a directions hearing and orders in the VCAT proceeding. On 27 November 2020, Customer Service, Civil Division, of VCAT sent an email to the applicant informing him that his application for a directions hearing had been referred to Senior Member Walker, who had confirmed that the VCAT proceeding was finalised following the costs decision. Accordingly, there was no current proceeding before the Tribunal (that decision shall be referred to as 'the refusal decision').

15 On 21 December 2020, the applicant filed a second notice of appeal to the Trial Division, in proceeding number S ECI 2020 04762 ('the second appeal'). In that appeal, he sought to appeal against four decisions, namely:

(a) the decision by Senior Member Walker of VCAT dated 27 November 2020 refusing the application by the applicant for a further directions hearing ('the refusal decision');

(b) the costs decision made by Senior Member Walker on 4 November 2020;

(c) the original VCAT decision made by Senior Member Walker on 26 May 2016, as amended on 3 June 2019; and

(d) the decision of Senior Member Walker dated 30 September 2019 making orders for the sale and distribution of proceeds of the sale of the Moggs Creek beach house ('the sale and distribution decision').

16 On 13 January 2021, the respondents made an application for an order that the second appeal (that is, proceeding number S ECI 2020 04762) also be reserved for consideration of the Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986, and for an order that it be heard at the same time as the first appeal on 12 February next.

17 On 29 January 2021, Tate JA heard both applications, and made orders that the second appeal (S ECI 2020 04762) be reserved for consideration of the Court of Appeal, and that that proceeding be heard together with the first appeal (S EAPCI 2020 0005) on 12 February next.

18 On 2 February, Tate JA delivered her reasons for decision.[8] Her Honour noted that there are substantial similarities between the first and second appeals. They both relate to the same factual controversy, and they both seek to challenge the finding of the existence of a partnership between the applicant and the respondents.[9] The core similarities between the issues in the two proceedings might have the effect that if they were heard separately, the resolution of one proceeding might give rise to an issue estoppel for the other proceeding, or render that proceeding moot, or alternatively raise issues of abuse of process.[10] Her Honour further considered that the issues in the two proceedings are 'sufficiently intertwined' that the just, efficient, timely and cost-effective resolution of the real issues in dispute overwhelmingly supports them being heard together.[11]

19 Tate JA also noted that if the second appeal was heard in the Trial Division, any decision by a single judge would almost certainly be appealed, in view of the significant number of appeals that the applicant had brought against the original VCAT decision.[12] Finally, her Honour noted that the proceeding has been considerably drawn out, since the original VCAT proceeding had commenced some six years ago. Accordingly, the removal of the second proceeding into the Court of Appeal would facilitate the timely determination of the proceeding and bring finality to the dispute.[13] Accordingly, as a consequence of the cumulation of those factors, her Honour considered that it was appropriate that the second proceeding be heard in the Court of Appeal, and that the two appeals be heard together.

20 The consequential orders made by Judicial Registrar Pedley on 29 January provide for the timely provision of a copy of the transcript of the costs hearing before

20 VCAT, the filing and serving of a supplementary written case and list of authorities by the applicant, and the filing and serving of a written case and list of authorities by the respondents.

21 The applicant relies on four grounds of appeal, namely:

GROUND A. The learned Honourable Justice Tate erred in law by failing to address Supreme Court Act 1986 section 17B(3)(b) in her orders dated 29 January 2021.

GROUND B. The Honourable Justice Tate erred in rejecting the Applicant's Submission that each of S CI 2016 02443, S ECI 2019 05551 and S ECI 2020 04762 be heard jointly in the Trial Division of the Supreme Court at Melbourne Common Law Division Judicial Review and Appeals List, in accordance with Section 148 of the Victorian Civil and Administrative Tribunal Act 1998, in which the legal correctness of what the Tribunal had done in VCAT matter BP 244/2015 was challenged.

GROUND C. The learned Honourable Justice Tate erred in not contacting Supreme Court Deputy Registrar Nicholas Roberts in regard to Section 17B(3)(b) in that the Court of Appeal did refuse leave in S EAPCI 2020 0005 via Red Crest on 24 December 2020 and did remit the proceeding to the Trial Division as matter S ECI 2020 04762 on 24 December 2020, and did inform the parties to this proceeding.

GROUND D. Judicial Registrar Pedley, inadvertently erred on 29 January 2021 in drawing Direction Orders pursuant to the Order made by the Honourable Justice Tate on 29 January 2021, which order was contrary to section 17B(3)(b) of the Supreme Court Act 1986.

22 The application for leave to appeal relates to orders by Tate JA, and directions by Judicial Registrar Pedley, that are solely matters of practice and procedure. It is well established that on such an application, the applicant must demonstrate, first, that the decision, that is sought to be appealed, is attended with sufficient doubt, and, secondly, that if that decision were to stand, the applicant would suffer a substantial injustice.[14]

23 After reviewing the relevant documents in this application, and hearing submissions from the applicant and the respondents, it is clear that none of the proposed grounds of appeal are reasonably arguable. Further, the applicant has failed to demonstrate that there would be any substantial injustice to him if the orders made by Tate JA and Judicial Registrar Pedley stand.

24 The submissions of the applicant were outlined in the Notice of Appeal and were elaborated by the applicant in oral argument. A substantial part of those submissions - in particular, the oral submissions - were directed to the merits of the substantive issues in the first appeal and the second appeal. Other than by way of providing some background, those submissions were not relevant to the merits of the application for leave to appeal against the orders of Tate JA and Judicial Registrar Pedley.

25 Ground A is based on an email sent by the Deputy Registrar (Legal) of the Court of Appeal, Mr Nicholas Roberts, to the parties at 9:48 am on 24 December 2020, which read:

Dear Parties,

Using this link you will be able to download electronic copies of the following documents from the Court's document exchange site: notice of appeal dated 21 December 2020 in S ECI 2020 04762; unsworn VCAT affidavit of Mr Miller dated 24 November 2020 (with exhibits); and unsworn VCAT affidavit of Mr Miller dated 3 December 2020 (with exhibits).

26 The applicant submitted that, by that email, proceeding number S ECI 2020 04762 was remitted to the Trial Division pursuant to s 17B(3)(b) of the Supreme Court Act, and that thus the decision by Tate JA was precluded by that remittal.

27 That submission is plainly flawed. First, the email by the Deputy Registrar was a purely administrative step in the proceeding. Secondly, the email did not by its terms remit the proceeding to the Trial Division. Thirdly, the proceeding had not, at that point, been reserved for consideration of the Court of Appeal under s 17B(3), and thus there was no scope for the Court of Appeal, in any event, to remit it to the Trial Division. Fourthly, the Deputy Registrar would not, in any event, have power to remit a proceeding, that had been reserved for consideration of the Court of Appeal, to the Trial Division under s 17B(3)(b).

28 In support of ground A, the applicant also sought to rely on a separate email from the Court's Redcrest system on 24 December 2020 notifying the applicant that documents, sought to be filed by him electronically in the first appeal (S EAPCI 2020 0005), had not been accepted, because the documents had been 'dealt with manually' as previously advised by the Prothonotary. Contrary to the submissions made by the applicant, that email, by its plain terms, did not constitute the notification of any decision by the Court of Appeal, and it certainly was not the notification by that Court of a decision under s 17B(3)(b) to refuse leave and to remit that appeal to the Trial Division.

29 Under ground B, the applicant submitted that Tate JA erred in rejecting a submission made by the applicant that each of the appeals be heard 'jointly' in the Trial Division of the Supreme Court in accordance with s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'). In effect, it was submitted that the appeals relate to orders made by the Tribunal which themselves contained a number of errors, and which were based on hearings and examinations of evidence that were part heard, and on proceedings that failed to comply with the order made by Mukhtar AsJ dated 10 August 2018.

30 The matters relied on by the applicant, on their face, seem to be somewhat technical, and relate solely to peripheral details concerning the proceedings which were under appeal. In any event, the matters pressed under ground B do not raise any valid reason why Tate JA erred in considering that the matters were appropriate to be referred to the Court of Appeal. Indeed, it is significant that under ground B, the applicant acknowledges that each of the appeals should be heard 'jointly', that is, at the same time. Ground B fails to disclose any arguable error in the reasoning of Tate JA and therefore must fail.

31 Ground C is substantially a repetition of ground A. It is based on the misconception that Deputy Registrar Roberts, by his email dated 24 December 2020, remitted the proceeding to the Trial Division. For reasons already discussed in respect of ground A, ground C is without any substance or merit.

32 Ground D is also to the same effect. Under it, the applicant contends that Judicial Registrar Pedley erred in making directions orders pursuant to the order made by Tate JA, which order (the applicant submits) was contrary to s 17B(3)(b) of the Supreme Court Act. Again, for the reasons that we have stated in considering ground A, ground D is based on a misconception as to the effect of the email sent by Deputy Registrar Roberts dated 24 December 2020. We would add that the directions made by Judicial Registrar Pedley are appropriate, and were properly directed to ensuring that the applications be heard on 12 February 2021 in a manner which is orderly and appropriate.

33 For those reasons, each of the grounds sought to be relied on are without substance. The applicant has failed to raise any reasonable argument in support of them.

34 We would add that, for the reasons stated by Tate JA, the order made by her Honour, reserving the proceeding for the consideration of the Court of Appeal under s 17B(2) of the Supreme Court Act, was plainly correct. As her Honour stated, the issues in the two appeals are so closely interrelated that the effective resolution of those issues dictates that the two appeals be heard together.

35 In addition, the applicant has failed to demonstrate that he would suffer any substantial injustice if the orders made by Tate JA and Judicial Registrar Pedley stood. Those orders were made in the interests of both parties, to ensure the just, timely and efficient hearing and determination of the various applications for leave to appeal brought by the applicant. As such, they facilitated the course of justice, and ensured the efficient and appropriate use of court resources.

36 The applicant submitted that under s 148 of the VCAT Act, he has, in effect, a right of two successive appeals from a decision of VCAT, the first such appeal being to the Trial Division of the Court, and the second appeal (if the first is unsuccessful) to this Court. He submitted that the effect of the orders made by Tate JA is to negate his right first to appeal to the Trial Division.

37 That submission is misconceived. By its clear terms, s 17B(2) of the Supreme Court Act contemplates that a proceeding, that is properly in the Trial Division of the Court, may be directed to be heard in the Court of Appeal. In any case, which is so directed to be heard in the Court of Appeal, the parties will not first have an adjudication by a judge of the Trial Division on the issues in dispute in the litigation. Contrary to the submission made by the applicant, an appellant from a decision of VCAT does not have an absolute right to have the appeal first heard and determined by the Trial Division, before it proceeds to the Court of Appeal.

38 For those reasons, the application for leave to appeal from the decision of Tate JA on 29 January 2021, and from the orders made by Judicial Registrar Pedley on 29 January 2021, must be refused.

[1] Miller v Martin (Ruling No 1 of 2021) [2021] VSC 28.

[2] Miller v Martin (Building and Property) [2016] VCAT 854.

[3] Miller v Martin [2018] VSC 444.

[4] Miller v Martin [2020] VSCA 4.

[5] Miller v Martin (Building and Property) [2020] VCAT 29.

[6] Miller v Martin (Ruling No 1) (Unreported, Supreme Court of Victoria, Hargrave JA, 29 January 2020).

[7] Miller v Martin (Costs) (Building and Property) [2020] VCAT 1218.

[8] Miller v Martin (Ruling No 1 of 2021) [2021] VSC 28.

[14] Darrel Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VicRp 50; [1969] VR 401, 408 (Winneke CJ, Pape and Starke JJ); Neimann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 441-2 (Murphy J).