Plaintiff v Defendant

Plaintiff v Defendant - [2014] VSC 317 - VSC 2014 case summary — Zoe

[55]

20 On the other hand, by virtue of r 4.07(1), Mainstream was obliged to file an affidavit in support of the application for leave to appeal within seven days after filing the originating motion, ie by 26 November 2013. Further, by virtue of r 4.08, Mainstream was required to apply on summons to an Associate Judge for the leave sought in the originating motion within seven days of filing the originating motion (again, by 26 November 2013). Mainstream filed a summons seeking such leave on 27 November 2013, ie one day late. The summons also included a retrospective application for an extension until 19 November 2013 of the time for making the application for leave to appeal. Further, the summons sought an order that "the date for filing and service of the Plaintiff's affidavit materials in support of this Application be extended from 26 November to 2 December 2013".[4] The summons was made returnable on 7 February 2014. Mainstream served a copy of it on the solicitors for Carr Electrical under cover of a letter dated 27 November 2013.[5] No affidavit material in support of any of the three applications contained in the summons was filed or served with the summons. In the letter of 27 November 2013 Mr Archer stated: "The Affidavit and relevant Exhibits will be provided to you on Monday".[6] The Monday referred to was Monday 2 December 2013, being also the date referred to in this regard in the summons. However, that did not occur. As will be seen, no affidavit material at all was served until 9 April 2014, and even then it was incomplete. On the other hand, by late November 2013 Carr Electrical had received some indication of the intended basis for the proposed application for leave to appeal, in that the originating motion and also the summons had included - albeit irregularly in both cases - a list of the questions (styled "Questions of Law") in relation to which leave to appeal was then proposed to be sought. (Such a list would normally be provided for the first time in the draft notice of appeal which, under r 4.07(3)(c), is required to be exhibited to the supporting affidavit.) Also it is likely that, from the outset, Carr Electrical had in its possession or power copies of the documents that had been filed and served in the VCAT proceeding and copies of VCAT's orders and reasons, and those documents were likely to comprise a substantial part, at least, of the material required to be provided under r 4.07.

[61]

26 The matter duly came on before Associate Justice Lansdowne on 19 March 2014. It was one of several matters listed before her Honour that day. I am satisfied that Mr Archer's understanding that the matter was listed for directions only was justified. Neither party had issued any further summons. Neither party had sought a special fixture.[11] Indeed the hearing progressed in the manner of a directions hearing. At the outset Mr Archer informed the Associate Judge that he had previously proposed consent orders containing a timetable "to get this matter back on line" but had been told by his opponent that his proposal was rejected. The proposed timetable[12] provided for the filing and service by the parties of affidavit material and written submissions and the fixing of a hearing date for the matter. The Associate Judge obtained confirmation from Mr Archer that the application for leave to appeal was out of time and that no affidavit in support of the application for leave to appeal had been filed. Her Honour asked why. Mr Archer began to give an oral explanation from the bar table. He referred to the background of the building project and to the existence of a substantial dispute between the developer (Gilpip) and Mainstream. He referred to proceedings relating to that dispute before the Honourable Justice Vickery of this Court. He said that there was an overlap between that dispute and the dispute between Mainstream and Carr Electrical and that he had sought to avoid the possibility of litigating exactly the same issue in two places. He said that the litigation with Gilpip had eventually settled. He referred to the issue about the role and authority of the building superintendent. He mentioned that there had been a lack of funds on the part of Mainstream. He said that he had been wanting to engage counsel because he himself was not an experienced advocate, and that he was now in a position to proceed to engage counsel to "resolve these issues". In addition, as a "personal thing which is more recent" he mentioned that he had been undergoing a series of medical treatments which had been more debilitating than he had anticipated whereby he was not up to his usual standard in terms of meeting compliance, although he said that that "really is a minor issue". The Associate Judge then observed that Mainstream would "inevitably fail" in the absence of affidavit material which adequately covered the VCAT proceeding and which addressed the reasons why the application was out of time. Mr Archer then handed up a document containing his proposed timetable, and estimated that the hearing of the matter would take approximately one day, including both "the out of time aspect" and "the leave to appeal aspect". He also handed up an unsworn affidavit which apparently exhibited a draft notice of appeal. The unsworn affidavit had been provided to the solicitor for Carr Electrical previously. The Associate Judge read it, and observed that it did not go to the issue of delay. (The unsworn affidavit was in due course returned to Mr Archer and no copy of it was retained on the file.) Finally, Mr Archer stated that Mainstream had paid Carr Electrical in full the amount awarded by VCAT (excluding costs), and he commented that therefore Carr Electrical suffered no prejudice in that regard.

[97]

(1) By originating motion filed 19 November 2013 the plaintiff/applicant sought leave to appeal against orders made by the Victorian Civil and Administrative Tribunal on 2 September 2013 and 18 November 2013. The order made on 2 September 2013 substantively determined certain proceedings and the order made 18 November 2013 ordered costs.

(2) The applicant filed a summons on 27 November 2013 which, in addition to seeking leave to appeal, sought extension of time to bring the application for leave to appeal in respect of the order made 2 September 2013 (the application for leave to appeal being otherwise out of time) and an extension of time to file its affidavit in support. That summons was not accompanied by any affidavit. It was initially returnable on 7 February 2014, but was adjourned by consent on the papers to 19 March 2014 when it came before me.

(3) The applicant had not filed any affidavit either in support of its application for extension of time or in support of its application for leave to appeal by that date. The solicitor for the applicant had been put on express notice of the requirement to do so by the solicitor for the respondent, and also informed by that solicitor that any application for further adjournment to do so would be opposed.

(4) On 19 March 2014 the solicitor for the applicant frankly conceded that the application for leave to appeal, insofar as it related to the order made 2 September 2013, was out of time. It is clear from the applicant's summons in any event that this had earlier been appreciated by the applicant. The solicitor for the applicant gave some explanation from the bar table as to why, but acknowledged that this was not on affidavit. I adjourned the summons to give the applicant an opportunity to put on affidavit facts relating to the extension of time and the material necessary for the application for leave to appeal and set a timetable for material in response and submissions.

(5) There was also discussion on that date as to whether or not the applicant wished to bring a distinct appeal against the costs order, or whether that appeal was a corollary only to the proposed appeal against the substantive orders. The questions of law identified in the originating motion did not make this clear. The applicant informed the court that it was intended to bring a distinct appeal against the costs order.

(6) The respondent sought self-executing orders on 19 March 2014. I declined that application, but listed the summons today to ensure that the applicant had complied with the order for the filing of its affidavits.

(7) An affidavit has now been filed on behalf of the applicant which exhibits the order and reasons dated 2 September 2013, pleadings, witness statements, transcript of the substantive hearing, the applicant's written closing submissions and a draft notice of appeal. The affidavit does not, however, depose to any facts relating to extension of time to appeal that order.

(8) On that basis the respondent now seeks that the originating motion be dismissed. The respondent submits that the applicant has had every reasonable opportunity to file material in support of the application for extension of time in relation to the proposed appeal against the substantive order of 2 September 2013 and has failed to do so. The respondent also says that the proposed appeal against the costs orders (which is within time) is wholly derivative and so, if the extension of time to appeal against the substantive orders is refused, the proposed appeal against the costs orders should also fail.

(9) The applicant seeks a further adjournment to put on affidavit matters relating to extension of time. The solicitor for the applicant says he believed he would be given an opportunity for further time to prepare his affidavit and when that extension was refused, the preparation of the affidavit became rushed. He says it was an oversight that material in relation to extension of time is not yet on affidavit and his client will suffer extreme prejudice if the adjournment is not given. The applicant submits that the respondent will not suffer any prejudice as the amount ordered to be paid by the substantive order has been paid. The applicant also says that the costs appeal is distinct and, as that will proceed, time should be given to file an affidavit in relation to extension of time for the appeal against the order made 2 September 2013.

(10) In my view nothing is shown to support the contention that the costs appeal is distinct. There is no question of law or grounds in the proposed notice of appeal which is exhibit BJA 10 to Mr Archer's affidavit sworn 9 April 2014 that expressly relates to a distinct appeal against the costs order. Mr Archer contends that questions 1 and 2 in that proposed notice of appeal are intended to also relate to the costs order. While this is conceivable if those questions are given an extended reading, there are no grounds set out in the proposed notice of appeal that apply those questions to the costs order. Further, the costs order, unlike the substantive order is not exhibited to the affidavit. I am informed by counsel for the respondent that there was an oral hearing in relation to costs, followed by a written decision. The transcript of that hearing and the reasons for the costs order are also not exhibited to Mr Archer's affidavit.

(11) I conclude that the proposed appeal against the costs order is in truth wholly derivative of the proposed appeal against the substantive order. It follows that there is no basis to contend that further time should be given to file material in support of the proposed appeal against the substantive order because the costs appeal will proceed in any event.

(12) In relation to that proposed appeal against the substantive order, I do not consider that the applicant has shown a basis for further adjournment. The applicant has been aware of the need for an extension of time since at least the filing of its summons in late November 2013 and has been given opportunities since that time to file an affidavit in support of that application. The need to do so was made explicit on 19 March 2014 but the applicant still has not done so. No explanation other than oversight by the solicitor for the applicant was advanced for the failure to do so. I accept that the applicant itself will suffer prejudice from refusal of an adjournment, but the applicant may have other remedies. The respondent does not assert any special prejudice from further adjournment, but relies on the fact that it sought self-executing orders on the last occasion, and the applicant was given on that date a further opportunity. As indicated in discussion in the course of the submissions, I consider prejudice to the respondent is shown simply from the continued prosecution of the proceeding without a foundation for extension of time being shown.

(13) For these reasons I refuse the application for further adjournment and refuse the application for extension of time to seek leave to appeal the order of 2 September 2013. As I consider that the proposed appeal against the order of 18 November 2013 is wholly derivative, it follows that the originating motion is dismissed.

[142]

72 The last part of Mr Archer's affidavit relates to his communications with Mr McPhee between 28 March and 9 April 2014 regarding the provision of affidavit material. On Friday 28 March 2014 Mr Archer received an email from Mr McPhee inquiring as to his well-being generally. Mr Archer informed Mr McPhee that he had been in a bad way the previous week but thought he was improving and that he "should be OK by the weekend". On Monday 31 March 2014 Mr McPhee sent Mr Archer an invitation to a restaurant dinner as part of a group booking for the evening of Saturday 5 April 2014. On Wednesday 2 April or Thursday 3 April, Mr McPhee telephoned Mr Archer to inquire whether he would be attending the dinner, and they spoke about other non-business matters. At the end of the conversation Mr McPhee asked Mr Archer how he was going with the affidavit and said that if Mr Archer needed an extension, he "should call him on the 'q-t' and he would organise an extension". Mr Archer thanked Mr McPhee for the offer and said words to the effect that he thought he would be OK but would let Mr McPhee know if he ran into problems and needed an extension. At that time Mr Archer had already commenced the drafting of that part of the affidavit relating to the substantive issues in the proposed appeal, but had not commenced preparation of the material in support of Mainstream's applications for extensions of time. Mr Archer "grossly underestimated the amount of time which was needed to identify those documents relevant to the substantive grounds of appeal and also the reasons for the delay in the filing and service of the appeal". At a time described in the affidavit as "the morning of Monday 8 April" but which was in fact, apparently, some time on Tuesday 8 April 2014, Mr Archer left a telephone message for Mr McPhee advising that Mr Archer would need a further five days to complete the affidavit material and submissions. At 4.38 pm on 8 April Mr Archer received an email from Mr McPhee to the effect that he had sought instructions from his client and that those instructions were to insist upon compliance with the orders in place. The email proceeded to say that if the material was not received by close of business on 9 April 2014, Mr McPhee's client would make an oral application for dismissal on Friday 11 April 2014. Mr Archer deposes that the receipt of this email was much to his surprise and consternation. He further deposes that had he even considered that Mr McPhee would not arrange the extension sought, or had Mr Archer been dealing with most other solicitors, he would not have made a phone call but would have taken advantage of the liberty to apply reserved in the order made by Associate Justice Lansdowne on 19 March 2013. Mr Archer worked late on 8 April and spent most of 9 April assembling the relevant exhibits. He served his affidavit on the afternoon of 9 April and the exhibits the following day by courier. He deposes that in his "panic" to meet the deadline, he had completely overlooked the fact that he had "primarily" been directed to provide affidavit material in support of the application for an extension of time. Consequently he had limited his affidavit to matters relevant to the proposed substantive appeal.

[151]

78 The Court sat late to enable Mr Carr to respond, which he did in economical fashion. Mr Carr's submissions were also largely in line with his written submissions. Additional matters worthy of note were as follows. Mr Carr submitted that Mr Archer's claimed expectation of a favourable outcome to the costs dispute at VCAT was not reasonable in the circumstances. Mr Carr pointed out that the costs order had been made under s 112 of the VCAT Act, on the basis that Mainstream had rejected a settlement offer more favourable to it than the outcome as determined by VCAT. Separately, Mr Carr referred to an observation by Ashley JA in Derring Lane Pty Ltd v Fitzgibbon[28] to the effect that, although there is some capacity to extend time, s 148 of the VCAT Act plainly contemplates that the question or questions of law will be speedily identified and pursued. In that context, I sought comment from Mr Carr about Mr Archer's statement on affidavit to the effect that there was a standstill agreement in place between about 6 February 2014 and 3 March 2014. In response, Mr Carr observed that he personally had been unaware of any such standstill agreement and that it was "a pity" that his side had not received Mr Archer's affidavit material earlier so as to facilitate a reply to this point. However, as noted above, an unsworn copy of the affidavit of Mr Archer had been provided in advance to Mr McPhee. Mr McPhee had sworn an affidavit in reply on 3 June 2014. In that affidavit, Mr McPhee had taken no issue with Mr Archer's statement in relation to the "standstill" arrangement. Next, Mr Carr conceded (as mentioned above) that Mainstream had never been given notice of a final hearing of the application for leave to appeal or of the application for an extension of time. On the other hand, Mr Carr made the point that Mr Archer was clearly on notice that there might be an application for dismissal of the proceeding on 11 April 2014 if he did not comply by 8 April 2014 with the order of 19 March 2014. Mr Carr acknowledged that the Associate Justice did not have a full picture of Mr Archer's state of health, although he suggested that Mr Archer could have compensated for his health problems by engaging counsel to appear for Mainstream, had Mainstream been prepared to fund the briefing of counsel.

[154]

81 The present appeal is brought under the relatively new provisions of Chapter I of the Rules of this Court relating to appeals from Associate Judges to Judges of the Trial Division, namely rr 77.06-77.06.9.[30] As Carr Electrical submits, under the old rules an appeal from an Associate Judge was to be conducted as a hearing de novo, whereas under the new rules the appeal is by way of rehearing. To a very large extent, the new rules are modelled on the corresponding rules relating to appeals to the Court of Appeal contained in Order 64 of Chapter I.[31] Like those rules, the new rules in Order 77 include an express power in the Court to receive further evidence on questions of fact: see r 77.06.9(3). It has been held by Robson J that on an appeal from an Associate Judge under the new rules the appellant must demonstrate legal, factual or discretionary error in the order of the Associate Judge; and that further evidence should only be admitted if it is "fresh evidence" in the sense explained in McDonald v McDonald.[32] However, Robson J was dealing with an appeal from a decision of an Associate Judge on the final hearing of a corporations matter, ie on the trial. His Honour did not expressly consider whether the same approach should be taken to an appeal from an interlocutory order of an Associate Judge. On the other hand, I note that in Oswal v Carson, an appeal from a decision of an Associate Judge narrowing the scope of a subpoena on an application to set it aside, Ferguson J observed that appeals under r 77.06 are "rehearings which, in the absence of further evidence or a change in the law, ordinarily require the appellant to show error on the part of the Associate Judge before appellate power may be exercised".[33] Her Honour cited in support of that proposition the case of Coal and Allied which Carr Electrical has also cited before me. However, Coal and Allied did not relate to an interlocutory order. I note further that the proposition that error must, or must ordinarily, be shown has been picked up from Oswal v Carson and applied in five other cases involving appeals from interlocutory orders of Associate Judges.[34] However, in none of those cases is there any sign that consideration was given to the question whether a distinction needs to be drawn between interlocutory and final orders. On the other hand, in Freeman v Rabinov,[35] it was held in 1981 by the Full Court, in relation to relevantly indistinguishable appeal rules, that a different approach was applicable in relation to an interlocutory order of a single judge, or at least in relation to an interlocutory order of the kind that was under consideration in that case, namely a selfexecuting order. Lush J, with whom Murray and King JJ agreed, said:

At a glance

Court

Decision date

Before

Source

Judgment (210 paragraphs)

Parties

Legislation Cited (32)

Cases Cited (6)