Penson v Titan National Pty Ltd

Court of Appeal (NSW)|2015-12-03|Before: Meagher JA, Gleeson JA, Simpson JA

Solicitors: N/A (Applicant) Pure Legal (First and Second Respondents) Crown Solicitors Office (Third Respondent) File Number(s): 2014/373028; 2015/231328 Decision under appeal Court or tribunal: District Court Date of Decision: 1 May 2014; 7 May 2014; 1 August 2014; 8 August 2014; 19 August 2014; 9 October 2014; 21 November 2014 Before: Gibson DCJ; Truss DCJ; Balla DCJ File Number(s): 2009/337626; 2014/17976; 2014/137439

[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.]

(i) 1 May 2014 (Truss DCJ)

By consent Judge Truss set aside a judgment based upon a costs assessment certificate filed in the District Court under the provisions of the Legal Profession Act 2004 (NSW). She ordered that the original costs assessment certificate be returned to the solicitor for Titan and Ms Wood-Weber. The purpose of this order was to enable Titan and Ms Wood-Weber to register the costs assessment certificate as a judgment debt. It was the order that the costs assessment certificate be returned to the solicitor for Titan and Ms Wood-Weber that was the subject of Ms Penson's complaint. She was unable to articulate any clear reason for her objection to the order.

(ii) 7 May 2014 (Truss DCJ)

On 7 May 2014 Truss DCJ made a series of orders, most of which it is unnecessary to set out. The entry in the "orders" of which Ms Penson complains in these proceedings is numbered 7, in the following terms: "7. In breach of the order of 1 May 2014 the plaintiffs this morning filed a notice of motion seeking suspension of the certificate of the costs review panel. Notice of motion made returnable for today but not served. List plaintiffs notice of motion for hearing before the List Judge (in the first instance) on 22/5/14 at 9.30am. Motion served on first and second defendant in court today." Apart from the listing of the Notice of Motion there is nothing in this entry that could remotely be classified as "an order". Ms Penson again articulated no clear basis for her complaint about this entry.

(iv) 8 August 2014 (Gibson DCJ)

The only material contained in the White Folder bearing date 8 August and relevant to Judge Gibson is a transcript of proceedings before her Honour that day. Although there appears to have been lengthy discussion, the only order that was made was that the matter be adjourned to Tuesday, 19 August 9am. A "Notice of Orders made" on District Court letterhead shows the various directions that were made on 8 August, none of which could be contentious. Ms Penson advanced no basis for complaint about any of the directions.

(v) 19 August 2014 (Gibson DCJ)

Gibson DCJ made a series of orders, including: "The plaintiffs are to pay the costs of the costs appeal and subsequent applications including notices of motion in [specified proceedings] on an indemnity basis." The complaint made by Ms Penson in respect of this order appears to be that Gibson DCJ refused Ms Penson's application for adjournment, and proceeded to make orders without hearing Ms Penson. Perusal of the transcript shows that Ms Penson was given an opportunity to make submissions, and that Gibson DCJ did proceed to make the orders set out above.

(vi) 9 October 2014 (Gibson DCJ)

Gibson DCJ made the following notations and orders: "(1) Mrs Penson and Aquaqueen International Pty Ltd called outside Court 13D three times at 9.36am - no appearance. (2) Mrs Penson and Aquaqueen International Pty Ltd called outside Court 13D three times at 10.05am - no appearance. (3) Notice of Motion filed on 25 August 2014 dismissed. (4) Applicants pay the respondents' costs on an indemnity basis in the lump sum of of $5700." Ms Penson does not contest the notation that neither she nor Aquaqueen appeared on the date fixed for hearing of the Notice of Motion. She advanced no clear submissions as to why the orders for dismissal of the Notice of Motion, and for costs, were affected by error.

(vii) 21 November 2014 (Gibson DCJ)

The order made is recorded as follows: "1 The Notice [sic] of Motion filed on 29/10/13 and today (21/11/14) are dimissed. 2 The plaintiff application [sic] are to pay the defendant's costs in the lump sum of $2,000 pursuant to s 98 Civil Procedure Act 2005 (NSW)." Ms Penson's complaint about this order again appears to be of denial of procedural fairness. She has produced no material to support that claim.
All of the orders Ms Penson seeks to challenge are costs orders or related to costs orders. They are also interlocutory orders.
Pursuant to UCPR 51.10 an application for leave to appeal must be made within 28 days of "the material date"; that may, for present purposes, be taken to be the dates on which the various orders were made. The last of the orders the subject of the application was made on 21 November 2014. The application for leave to appeal was filed on 23 February 2015, well outside the time allowed.
Ms Penson has not applied for an extension of time in which to seek leave to appeal. She has adduced no evidence to explain the delay, and made no argument in support of an extension of time.
Pursuant to s 127 of the District Court Act she requires leave to appeal against such orders. She has advanced no comprehensible basis for the grant of leave.
Pursuant to UCPR 59.10, applications under s 69 of the Supreme Court Act are to be filed within 3 months of the material date - again, the date of the orders. Each order in question was made more than 3 months before the original summons was filed on 23 February 2015 (when judicial review was not sought). It was not until 3 August that she sought relief under s 69. Again, she has not sought an extension of time, and has provided no explanation for the delay, or argument in support of an extension of time.
Moreover, she has failed to provide any arguable ground for judicial review. By way of example, in respect of the transcript of the proceedings before Truss DCJ on 1 May 2014, Ms Penson complained that she had not been given an opportunity to put submissions. A reading of the transcript of the proceedings on that day shows convincingly that this is incorrect. There are instances where her Honour required Ms Penson to wait until an appropriate time to put what she wanted to put. That was because her Honour was dealing with one issue, and Ms Penson was attempting to address on another issue.
There is no basis in the evidence, and no basis in Ms Penson's written or oral argument for any conclusion that the making of any of the orders in question involved error.
Although no extension of time has been sought, we would refuse to extend the time in which to seek leave to appeal against any of the orders in question under s 127 of the District Court Act. We would refuse to extend under UCPR 59.10(2) the time for commencing proceedings seeking judicial review of any of the orders.
If Ms Penson were to be granted an extension of time in which to appeal, we would, in any event, refuse leave to appeal. In reaching that conclusion, we have taken into account the absence of any merit in any of the proposed challenges to the orders.
If Ms Penson were granted an extension of time in which to seek judicial review of any of the orders, we would, in any event, dismiss the application. In reaching that conclusion, we have taken into account the absence of any arguable ground asserting error in the making of the order.
That leaves the decision of Emmett AJA, which Ms Penson seeks to have set aside or varied. She has advanced no legal or other basis on which such an order should be made. The Notice of Motion is dismissed.
The orders of the Court are: 1. The Summons and Further Amended Summons seeking leave to appeal against the orders of the District Court of 1 May 2014, 7 May 2014, 1 August 2014, 8 August 2014, 19 August 2014, 9 October 2014 and 21 November 2014 filed in proceedings No 2014/373028 are dismissed. 2. The Summons filed on 7 August 2015 under s 69 of the Supreme Court Act 1970 (NSW) in proceedings No 2015/231328 seeking judicial review of the orders of the District Court of 1 May 2014, 7 May 2014, 1 August 2014, 8 August 2014, 19 August 2014, 9 October 2014 and 21 November 2014 is dismissed. 3. Notice of Motion filed on 27 November 2015 in proceedings No 2015/231328 is dismissed. 4. Applicant in each case to pay the respondents' costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2015

Legal Profession Act 2004(NSW)

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