(1993) 176 CLR 300
Burrell v The Queen [2008] HCA 34
Source
Original judgment source is linked above.
Catchwords
(1993) 176 CLR 300
Burrell v The Queen [2008] HCA 34
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: On 5 June 2015, this Court dismissed with costs an application made by Ms Penson, a director of the third respondent (Aquaqueen International Pty Ltd), for leave to appeal from two decisions made in the Corporations List of the Equity Division (the decision of Black J on 20 November 2014 making winding up orders in relation to Aquaqueen - In the matter of Aquaqueen International Pty Ltd [2014] NSWSC 1645; and the decision of Brereton J on 2 March 2015 dismissing Ms Penson's application, made in her capacity as a shareholder and/or director of Aquaqueen for orders bringing to an end the liquidation of the company - In the matter of Aquaqueen International Pty Ltd [2015] NSWSC 212). (See Penson v Titan National Pty Ltd [2015] NSWCA 165.)
Ms Penson was represented by Counsel on the hearing of her application for leave to appeal, whereas (at least for the most part) she had not had the benefit of legal representation in the proceedings before Black J and Brereton J.
On 19 June 2015, Ms Penson filed a notice of motion seeking, among other things, orders pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) ('UCPR') that the judgment and orders pronounced on 5 June 2015 be set aside or varied and that the matter be re-heard "with plaintiff's proper representation".
Ms Penson has affirmed an affidavit in support of that application in which she acknowledges that she had legal representation in the proceedings before this Court (by a solicitor, Mr Beazley, who retained Counsel to appear on the hearing of the leave application). (Her present application does not disclose that she currently has any legal representation. Indeed one of the orders Ms Penson seeks in her notice of motion is an order for "temporary leave" to appear "until she regularises the issue of legal representation".) She has also filed written submissions, in which she sets out her account of the background events leading up to the current proceedings, asserts that "many misleading and distorted facts" have been presented to the Court by the respondents' solicitor, and sets out her opinions and beliefs as to the underlying proceedings and the facts as she sees them. She appears to contend that the real purpose of the actions of the substituted creditors in the winding up proceedings was not for the collection of debt but out of vindictiveness (see [7]).
The basis on which Ms Penson makes her present application is her dissatisfaction with the manner in which Counsel presented her application for leave to appeal in this Court; in particular, that he "was in fact openly speaking against [her] appeal with a prediction that it would be 'dead and buried'", and as to his "submissiveness without raising any objections to rebut his opponent's submissions, including costs", which she considered "not only strange but unprecedented of the proceedings I have seen in courts". Ms Penson has deposed that she was present in court to observe the hearing but did not interrupt because she did not wish to risk being accused of contempt or disruption to the court. Ms Penson has also deposed that she had not been informed of her Counsel's "change of position" and that instructions were not sought from her "regarding this late change of his position". Her written submissions on the present application reiterate this position. She maintains that her "natural justice" should not be taken away by the fact that her Counsel did not take certain action (in effect, to withdraw from the hearing of the leave application) (see [9(j)]).
Leaving aside for the moment the question as to costs, the matter in respect of which Ms Penson has taken issue appears to be the fact that, at the outset the hearing of the leave application (as noted at [29] of the reasons given by Ward JA on that occasion), her Counsel drew to the Court's attention a decision in Adams v Lambert [2006] FCA 623 which Counsel informed the Court would, if applied by way of analogy in the present case, be likely to be determinative of the application against her. In that context, he conceded that the application of that authority would leave Ms Penson's proposed appeals "dead and buried".
Ms Penson believes that she was deprived of natural justice "due to the improper representation on 5 June", which she believes has "robbed [her] of the one opportunity to appeal that was fairly afforded [her] by His Honour Black J".
The first point to note is that there can be no suggestion that Ms Penson's Counsel was acting improperly in drawing to the attention of the Court an authority that, if it were to be applied by way of analogy (it being a bankruptcy case not a case involving the winding up of a corporation), would appear to be determinative of the issue before the Court. The Bar Rules have long made it clear that the duty of a barrister is to inform the court, at the appropriate time if the court has not yet been informed of the matter, of any binding authority or, if not binding authority, any authority decided by an Australian appellate court known to the barrister and which the barrister has reasonable grounds to believe to be directly in point against the client's case. While it was not suggested that Adams v Lambert was authority binding on this Court and it is not a decision of an appellate court, it was nevertheless a decision of a Federal Court judge dealing, in the bankruptcy context, with the same issue that was sought to be raised by Ms Penson (and determined that issue contrary to the position she wished to advance).
The issue in question in Ms Penson's proposed appeal from the respective decisions was as to the meaning of the word "determined" in s 459R(1) of the Corporations Act 2001 (Cth): relevantly, whether, in circumstances where a stay had been granted and the winding up orders had not come into effect, the originating process had been "determined" on the publication of the reasons for judgment or on the date when the orders were entered.
In Adams v Lambert, what was considered was whether a creditor's petition had lapsed or whether the provision to s 52(4) of the Bankruptcy Act 1966 (Cth) applied and the petition had been dismissed before the expiration of the relevant period. Counsel for the applicant creditor maintained that the petition was dismissed, notwithstanding that the High Court subsequently set aside the order for dismissal of the petition. Gyles J held (at [10]) that "dismissal" in the proviso to s 52(4) meant dismissal in fact, whether or not subsequently set aside. His Honour considered that conclusion to be consistent with the reasoning of the Full Court of the Federal Court in Deputy Commissioner of Taxation v Clyne (1984) 4 FCR 156.
The argument that was advanced for Ms Penson in the written submissions on her application for leave was that it was necessary for orders to come into effect for the originating process to be "determined" and that, in the present case, that did not occur until the lapse of the last stay orders on 11 February 2015. It was on that basis that it was submitted that the originating process was dismissed by operation of law pursuant to s 459R(3) and that the orders made by Black J placing the company into liquidation were ultra vires. The relevance of the decision in Adams v Lambert to the argument Ms Penson sought to advance (that being the question of law that she maintained warranted the grant of leave to appeal) is thus obvious.
There was no impropriety in Counsel drawing that authority to the Court's attention. All Ms Penson was deprived of, if anything, was the opportunity to withdraw her application at that stage having regard to the likely fate of the application if that authority were to be followed. Her current application makes evident that she would have been unlikely to have done so.
In any event, as the reasons given by Ward JA, with which Leeming JA agreed, make clear (see [37]), Ms Penson's application for leave to appeal was refused on grounds other than the authority to which her Counsel had drawn attention. For the reasons set out at [31]-[36], it was the opinion of this Court that Ms Penson's proposed appeal from the decision of Brereton J was doomed to fail, even apart from the application or otherwise of the reasoning in Adams v Lambert. For the reasons set out at [38]-[44] a similar conclusion was reached in relation to the proposed appeal from the decision of Black J.
The relevant legal principles applicable on an application, such as this, to set aside or vary part or all of a judgment under UCPR r 36.16 are those discussed by Mason CJ in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300 at 302-303).
The power to do so is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. It is enlivened where a court has "apparently proceeded according to some misapprehension of the facts or the relevant law" and where that misapprehension cannot be attributed solely to the neglect or default of the party seeking to set aside or vary the judgment (at 303).
Importantly, for the present application, it is well recognised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the court or "to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases" (at 303. See also Tobin v Ezekiel (No 2) [2012] NSWCA 409 at [7]; Burrell v The Queen [2008] HCA 34; (2008) 238 CLR 218 at 223 [15]; and Streetscape Projects (Australia) Pty Ltd v City of Sydney (No 2) [2013] NSWCA 240).
That is what Ms Penson quite clearly is now seeking to do. Having expressed her "horror" at the manner in which her Counsel argued her application, she now seeks to reopen the judgment and have the application re-argued with "proper legal representation". Quite apart from the fact that there was no impropriety in the manner in which her Counsel argued the leave application in the first place, now to permit Ms Penson a second attempt to persuade the Court that leave to appeal should be granted would be inimical to the principle of finality of litigation and outside the scope of r 36.16.
In her written submissions on this application, Ms Penson asserts that she was taken by surprise, and had not properly prepared for, an argument on the merits of the underlying appeal. That submission cannot be accepted insofar as Ms Penson had experienced Counsel appearing for her on the application for leave to appeal and, as such, it must have been apparent to Counsel (if not to Ms Penson) that one of the matters that could properly be taken into consideration in determining whether to exercise discretion to grant leave to appeal was the prospects of success of the appeal since it has been recognised (for example in Young v Hones (No 2) [2014] NSWCA 338 at [63] and Collier v Lancer (No 2) [2013] NSWCA 186) that leave to appeal should be refused where an appeal is doomed to fail. Therefore, while the merits of an appeal will not be argued in full on a leave application (and were not here, nor were they decided on that basis), it cannot have been a surprise to Counsel that the Court would consider whether the material demonstrated something more than that the trial judge was arguably wrong (see Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56 at [22]; Clarke v State of New South Wales [2015] NSWCA 27 at [20]).
Ms Penson's written submissions on the application for leave to appeal advanced, in summary form, the basis on which Ms Penson contended that the originating process had been dismissed by operation of law before it fell to be determined by Black J (without reference to the distinction now sought to be drawn between UCPR 36.4(1)(b) and 36.4(1)(a)). Counsel for Ms Penson expressly addressed the Court on the significance to be attributed to the fact that Black J's ex tempore orders suggested that they had not been formally entered at the time. Ms Penson's submissions on the present occasion (see [9(g)-(h)]) seek to reiterate those submissions.
Ms Penson's submissions make clear that she contends her Counsel was not properly prepared for the argument on the leave application and should have either sought instructions from her ("regarding his late change of views") or sought an adjournment or sought leave to withdraw from the proceedings. As to the "late change of views", nothing turned on that since that was not the basis on which the application for leave to appeal was dismissed. As to Ms Penson's complaint as to the course taken by Counsel, her belief that he was not properly prepared for the application and that he should have withdrawn does not go to the merits of her application pursuant to r 36.16.
This is no more than an attempt by Ms Penson to reargue an application that she lost. She has not been deprived of natural justice. To the contrary, she has had the opportunity, through Counsel, to be heard on the matter and her application was dismissed for reasons that engaged with the very submissions on which her leave application was based. Her motion to set aside or vary the judgment should be dismissed.
That leaves only the question of the costs order that was made on 5 June 2015. Ms Penson's affidavit refers to the fact that costs were "unopposed". Her written submissions do not address this point. It is not necessary to determine whether this aspect is pressed because, even if it is, it lacks merit.
To the extent that there is a complaint as to the making of a costs order against Ms Penson, there is no sensible basis for complaint as to the making of an order that costs follow the event. That is the general rule (UCPR r 42.1) and must be one of which Ms Penson (who has deposed to having appeared for the company in a number of court proceedings) was aware.
If Ms Penson's complaint is directed to the making of a lump sum costs order assessed at $8,000, it should be noted that what occurred on 5 June 2015 was that, after the pronouncement of the Court's reasons (in which it was indicated that the further amended summons should be dismissed with costs: [46]), the solicitor appearing for the substituted creditors sought an order for costs to be assessed on a lump sum basis (referring briefly to the history of the matter) and indicated that she would prepare an affidavit as to the costs, indicating that the order that would be sought would be for costs of around $8,000 to $10,000. Ms Penson's Counsel did not oppose such an order (at least if it were limited to the sum of $8,000). Such an order was then made.
As noted, Ms Penson has deposed that she was present in court at the time of the hearing. She raised no issue at the time as to the lump sum costs application or as to the position adopted by her Counsel in that regard. In the circumstances, including the history of the proceedings in the Equity Division, which emerges from the relevant judgments in the matter, a lump sum costs order was appropriate and there has been no basis put forward to suggest that the amount sought by the solicitor for the substituted creditors was inappropriate having regard to the costs incurred by the substituted creditors.
Ms Penson's application to set aside or vary the judgment and orders made on 5 June 2015 should be dismissed with costs. It is appropriate for there to be such an order given the general rule that costs follow the event (UCPR 42.1). However, as the matter has been dealt with on the papers and it was not necessary to call upon the respondents for written submissions in response to those filed by Ms Penson, the respondents' costs, if any, should not be of large compass.
[3]
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Decision last updated: 15 July 2015