Plaintiff v Defendants

Supreme Court of Victoria|2011-02-21|Before: HABERSBERGER J

PRACTICE AND PROCEDURE - Judicial Review - Extension of time - Whether "special circumstances" existed in respect of numerous orders of Victorian Civil and Administrative Tribunal - Delays of between 175 days and 2 years and 250 days - Some orders previously subject of unsuccessful application for leave to appeal - Appeal from that decision not heard as proceeding stayed until corporate plaintiff retained solicitor and gave security for costs - Supreme Court (General Civil Procedure) Rules 2005, Order 56.

2 In January 2007 National Food Corporation Pty Ltd (later known as Worldwide Enterprises Pty Ltd) ("Worldwide") commenced proceeding J10/2007 against Dov Silberman and proceeding J22/2007 against Sam Chizik in the Victorian Civil and Administrative Tribunal ("the Tribunal"). Mr Silberman had acted as the solicitor for Worldwide in a County Court proceeding. Mr Chizik was the barrister briefed by Mr Silberman to appear for Worldwide at the hearing. The proceeding was settled on the sixth day. Morris Goodman, the sole director of Worldwide, and Worldwide were not happy with the outcome and the manner in which the litigation had been handled by Mr Silberman and Mr Chizik. They also disputed the costs sought by the lawyers. Mr Goodman and Worldwide had entered into a costs agreement with Mr Silberman. In 2008, Worldwide and Mr Goodman commenced another proceeding, J65/2008, against Mr Silberman.

3 On 23 December 2009 Mr Goodman issued the originating motion in this proceeding naming as the sole defendant, "Victorian Civil and Administrative Tribunal". He sought judicial review in the nature of certiorari:

from the following orders, reasons and decisions of VCAT by files J10/2007; J22/2007; J65/2008

Orders dated 16.04.07
Orders dated 20.12.07
Orders dated 14.03.08
Orders dated 30.06.08
Decision dated 30.06.09.

4 In the originating motion Mr Goodman alleged that:

VCAT, by the conduct of proceeding and issuance of the above mentioned orders and decisions, breached the rules of natural justice, abused the discretion, breached procedural fairness, assisted in fraud and deception, apprehension of bias, acted in bad faith, misapprehended the law, acted unreasonably, made jurisdictional errors, abused its power, multiple ultra vires.

5 According to the summons on originating motion, also filed on 23 December 2009, the particular orders sought to be quashed were:

(a) the orders made in proceeding J10/2007 on 16 April 2007, 20 December 2007, 14 March 2008 and 30 June 2008;

(b) the orders made in proceeding J22/2007 on the same four dates; and

6 It was also stated in the summons that the plaintiff sought an order "in respect of refusal under sec 131 dated 30 June 2009". It subsequently became clear that this complaint related to a letter written to Mr Goodman by a Registrar of the Tribunal on 30 June 2009.

7 There were a number of potential problems with the proceeding commenced by Mr Goodman. First, as required by r.56.01(2)(a) of the Rules, the originating motion should have named Mr Silberman and Mr Chizik as defendants as each of them had "an interest to oppose the claim of the plaintiff". This omission meant that the proceeding was effectively without an opposing party because by a letter dated 19 January 2010, the Principal Registrar of the Tribunal wrote to the Prothonotary advising that in accordance with "the principles pronounced by the Full High Court in R v Australian Broadcasting Tribunal, ex parte Hardiman and Ors",[1] the Tribunal did not intend to take an active role in the proceeding, except as regards any question as to costs, and would abide the decision of the Court.

8 Secondly, the proceeding was commenced outside the period of 60 days laid down in r.56.02(1) of the Rules. However, in Mr Goodman's affidavit in support of the application for judicial review affirmed on 23 December 2009, he sought an extension of time for the commencement of this proceeding.

9 Thirdly, there was considerable doubt whether the omnibus list of complaints contained in the origination motion complied with the requirement in r 56.01(4)(a) that the originating motion:

shall state the grounds upon which the relief or remedy specified in the originating motion is sought.

10 Finally, a Supreme Court proceeding (No. 5129 of 2008) had already been issued in respect of some of the orders sought to be quashed in this proceeding. In order to understand how the earlier proceeding might affect this proceeding, it is appropriate to set out briefly what had happened in the earlier proceeding.

11 On 13 March 2008, Worldwide commenced a proceeding seeking leave to appeal, pursuant to s.148 of the Victorian Civil and Administrative Tribunal Act 1998 ("the VCAT Act"), against the orders made by Member Butcher on 20 December 2007 in proceeding J10/2007 and proceeding J22/2007. An extension of time was sought as the application for leave was not made within time.[2] The defendants in the Supreme Court proceeding were Mr Silberman and Mr Chizik. By a summons dated 20 March 2008, Worldwide sought to amend the application for leave to appeal to include the orders made by Senior Member Howell on 14 March 2008 in proceeding J10/2007 and proceeding J22/2007. By a summons dated 21 May 2008, Worldwide sought an order that Mr Goodman be joined as a plaintiff in that proceeding. By a summons dated 25 July 2008, Worldwide sought to amend the application for leave to appeal to include the orders made by Senior Member Howell on 30 June 2008 in proceeding J10/2007 and proceeding J22/2007.[3] The grounds of appeal raised similar issues to those contained in the omnibus list of complaints in the originating motion in this proceeding. On 22 August 2008, Master Daly (as she then was) gave judgment refusing leave to appeal against any of the orders complained about and dismissed Worldwide's proceeding with costs, including dismissing the summonses dated 20 March 2008, 21 May 2008 and 25 July 2008.

12 Worldwide appealed Master Daly's judgment. On 1 May 2009, following applications by one or both of the respondents J. Forrest J made orders that Worldwide's appeal be stayed for such period as it was not represented by a solicitor and that it provide security for costs in the sum of $10,000 and that the appeal be stayed until such security was given.

13 Worldwide sought leave to appeal against the judgment of J. Forrest J. On 31 July 2009, after a hearing on that day, the Court of Appeal (Buchanan JA and Hansen AJA) dismissed an application by Mr Goodman that he be added as a party to Worldwide's application. On 23 February 2010, after a hearing on 12 February 2010, the Court of Appeal (Weinberg and Bongiorno JJA) dismissed Worldwide's application for leave to appeal against a number of decisions including the application for leave to appeal against the above orders of J. Forrest J.

14 The existence of the earlier Supreme Court proceeding raised the issue of possible abuse of process, particularly as Worldwide's proceeding was still extant. It would no longer be stayed if Worldwide paid the security for costs and retained a legal practitioner. Yet Mr Silberman and Mr Chizik would then be faced with the two different proceedings partly in respect of the same orders.

15 The summons on originating motion was returnable before an Associate Justice on 9 February 2010. Subpoenas were issued by Mr Goodman addressed to the Legal Practitioners' Liability Committee ("the LPLC") on 30 December 2009 and 11 January 2010 respectively. The LPLC sought to set aside the two subpoenas. An affidavit in support of that application was sworn by Cameron Roberts, a partner in the firm of Herbert Geer, the solicitors for the LPLC, on 28 January 2010. Mr Roberts also acted for Mr Silberman and Mr Chizik.

16 On 9 February 2010, Mr Goodman appeared in person and Mr Roberts was given leave to appear for the "proper Respondents (Mr Silberman and Mr Chizik)". Lansdowne AsJ made the following order, which was expressed to be by consent:

The Plaintiff have leave to file and serve on all parties an amended originating motion and amended summons:

(a) Naming Worldwide Enterprises Pty Ltd as additional Plaintiff;

(b) Naming Dov Silberman and Sam Chizik as additional Defendants; and

(c) Seeking an extension of the date by which the Plaintiff could apply for judicial review and any further affidavit in support by 30 March 2010.

The Defendants file and serve any affidavit in response by 20 April 2010.
The amended originating motion and summons be returnable before Associate Justice Lansdowne on date to be announced thereafter.
The hearing of the Legal Practitioners' Liability Committee's objection to subpoenas addressed to the Committee and filed in this action on 30 December 2009 and 11 January 2010, which is scheduled to take place on 18 February 2010, be adjourned to the same date and time.
Costs are reserved.
There is liberty to apply.

17 On 29 March 2010 Mr Goodman filed but did not serve an amended originating motion and an amended summons naming Worldwide as the second plaintiff and Dov Silberman and Sam Chizik as the second and third defendants respectively ("the additional defendants"). The amended summons included an additional order, namely, "an extension of time for apply [sic] for judicial review due to special circumstances".

18 On 20 April 2010 Mr Goodman filed but did not serve a summons, naming only himself as plaintiff and the Tribunal as the defendant, seeking to vary the order dated 9 February 2010 as follows:

Order to delete the sub-order 1(a).
Naming Dov Silberman and Sam Chizik as additional Defendants; and
Seeking an extension of the date by which the Plaintiff could apply for judicial review any other affidavit in support by 15 May 2010.

19 The summons, which was returnable on 12 May 2010, was supported by an affidavit affirmed by Mr Goodman on 20 April 2010 in which he stated that he did not execute "Minutes of Consent to Order on 9.02.2010" and that he did not consent to Orders 1(a), 3, 4 and 5 of the order of Lansdowne AsJ made on 9 February 2010. Mr Goodman's summons was treated as an appeal from that order. Significantly, Mr Goodman made no complaint at this stage about paragraph 1(c) of the order.

20 On 28 May 2010 Messrs Silberman and Chizik filed a summons seeking an order that the action be dismissed pursuant to r.23.01(b) and (c) of the Rules, alternatively an order that the plaintiff comply with paragraph 1 of the order made by Lansdowne AsJ on 9 February 2010 within 14 days of the making of the order. The summons was returnable on 6 July 2010.

21 The summons was supported by an affidavit sworn by Mr Roberts on 31 May 2010. The summons and supporting affidavit were served on Mr Goodman. In his affidavit Mr Roberts set out the history of Worldwide's stayed Supreme Court proceeding, raised the question of abuse of process, referred to the delay in the commencement of this proceeding and described what had occurred at the hearing before Lansdowne AsJ on 9 February 2010. Mr Roberts agreed that Mr Goodman had not signed the Minutes of Consent which Mr Roberts had handed up, but he said that he had discussed the proposed orders with Mr Goodman, had made some amendments to the draft which were requested by Mr Goodman and had then re-engrossed the handwritten document to make it clearer. Mr Roberts said that the order of Lansdowne AsJ was made in accordance with the re-engrossed handwritten Minutes of Consent.

22 Whether or not Mr Goodman consented to paragraph 1(a) of the order of Lansdowne AsJ, as previously stated, he did file an amended originating motion and an amended summons naming Worldwide as the second plaintiff. However, it would appear that Worldwide's claim was subsequently discontinued (at least informally) by the filing of the summons on 20 April 2010. I will therefore proceed on the basis that Worldwide is not a party to this proceeding.

23 The summonses were adjourned because of Mr Goodman's illness. Eventually they came before Zammit AsJ on 20 August 2010 and were referred to me as the Judge sitting in the Practice Court on that day.

24 Mr Goodman maintained at the hearing before me that the order of Lansdowne AsJ made on 9 February 2010 was not correctly recorded because, amongst other alleged discrepancies, it did not state that her Honour had extended the time for the commencement of this proceeding. In his written submission dated 17 August 2010 Mr Goodman now stated that he did not consent to paragraphs 1(a), 1(c), 2, 3, 5 and 6 of the order. I rejected an application by Mr Goodman to vary the order of Lansdowne AsJ, because it seemed to me that the initial steps taken by him after 9 February 2010 were only consistent with him being aware that the question of the extension of time for the commencement of the proceeding was yet to be determined. It is to this important question that I now turn.

25 Counsel for the additional defendants submitted that time should not be extended. Rule 56.02(1) provides that a proceeding under Order 56 shall be commenced "within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose". Rule 56.02(2) provides that "where the relief or remedy claimed is in respect of any ... order ... the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the ... order ..." Counsel pointed out that the most recent step complained about was the letter from the Registrar dated 30 June 2009. The time between that event and the commencing of the proceeding, 175 days, was nearly three times the 60 day limit. The delay in respect of the various orders complained about was significantly greater - between one year and 175 days and two years and 250 days. The delay is even greater if the view is taken that the judicial review proceeding was not relevantly commenced until Mr Silberman and Mr Chizik were added as named defendants in the amended originating motion filed on 29 March 2010.

The Court shall not extend the time fixed by paragraph 1 except in special circumstances.

27 In his affidavit affirmed on 23 December 2009, Mr Goodman said that when Worldwide appealed some of the above orders, he did not know and nobody informed him that an appeal from the Tribunal's orders could be dealt with in two ways - by judicial review and by appeal on questions of law. Indeed, he went further and said that he was advised by representatives of both the Tribunal and the Prothonotary that appealing to this Court was the correct procedure. Mr Goodman said that he did not become aware of the option of judicial review until after the Court of Appeal hearing on 30 [sic] July 2009 and before 13 November 2009. He said during argument that he learned about it "between August, September, October of 2009". He also informed me that the reason why the originating motion, affidavit and summons, which were all dated 27 November 2009, were not issued or affirmed until 23 December 2009 was because he had to wait for them to be accepted by the Prothonotary. Even if one ignores this final period of 26 days, the delays are still much longer than the 60 day limit.

28 It is, in my opinion, now well established that "special circumstances" in r.56.02(3) means something that is not "general in character",[4] but something exceeding "that which is usual or common".[5] As Toohey J said in Re Beadle and Director-General of Social Security[6] when sitting as President of the Commonwealth Administrative Appeals Tribunal:

An expression such as 'special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

29 In deciding whether or not "special circumstances" exist, the Court is not confined to the failure to institute the proceeding in time but can consider all the circumstances of the particular case.[7] Matters to be taken into account include the length of the delay, the reason for the delay, any prejudice to the defendant(s), whether the plaintiff has an arguable case, and the public interest in the finality of litigation.[8]

30 I turn then to examine the circumstances of each of the particular orders in question.

31 On 16 April 2007 Senior Member Howell made an order adding Mr Goodman as an applicant in proceeding J10/2007, but refused to do so in proceeding J22/2007. Directions were also given for the filing of points of claim and defence.

32 Dealing first with the order made by Senior Member Howell in proceeding J22/2007, the delay of over 2.5 years is very long and is a considerable hurdle to overcome. No sufficient reason has been given by Mr Goodman for failing to challenge this order earlier. In my opinion, ignorance of the remedies potentially provided under Order 56 does not constitute "special circumstances".[9] Moreover, the effect of the order has been overtaken by events. On 5 May 2008, at the conclusion of the hearing of the respondent's application in proceeding J22/2007 to transfer the costs dispute to the Magistrates' Court, his Honour Judge Ross (as he then was) ordered that "Mr Goodman is joined as an applicant to this proceeding pursuant to section 60 of the VCAT Act 1998". Thus, quashing the order of 16 April 2007 would be pointless. I therefore conclude that there are no "special circumstances" in respect of this order.

33 There is no basis for Mr Goodman to have any complaint about the order made by Senior Member Howell on 16 April 2007 in proceeding J10/2007. The relief sought was granted. In any event, as discussed above, the delay is simply too long and no sufficient reason has been given for the delay. Once again, I consider that there are no "special circumstances".

34 On 20 December 2007 Member Butcher made a number of orders in both proceeding J10/2007 and proceeding J22/2007, including:

(a) an order that the Tribunal had ceased to have jurisdiction to hear and determine that part of the application relating to the pecuniary loss claim as the respective respondents had claimed immunity from suit;

(b) an order that the part of the application in respect of a costs dispute remained on foot;

(c) an order that the Tribunal did not have jurisdiction to hear and determine that part of the application relating to the claim against Worldwide for costs in the Magistrates' Court;

(d) an order that Worldwide give security for costs in the sum of $15,000 by 1 February 2008; and

(e) an order that the proceeding be stayed until the security was given.

The order in proceeding J10/2007 named only Worldwide as the applicant despite Senior Member Howell's order of 16 April 2007.

35 With respect to these two orders, the delay in commencing this proceeding was at least two years and three days. Once again, this is a very lengthy period to have elapsed before a challenge was sought to be made. No sufficient reason was given for this delay. Moreover, Worldwide, and in effect this means Mr Goodman, decided to appeal these orders rather than bringing judicial review. Even if Mr Goodman was unaware of the alternative remedy, this does not constitute "special circumstances".

36 Apart from the question of delay, the difficulty for Mr Goodman in attempting to show "special circumstances" is that each of these orders was the subject of Worldwide's earlier proceeding. The criticisms made in that proceeding of the orders of 20 December 2007 appear to be the same as those sought to be advanced in this proceeding. The arguments about advocates' immunity, security for costs and breach of procedural fairness were carefully considered and rejected by Master Daly in her reserved judgment[10]. This judgment has been appealed but, as already mentioned, the proceeding has been stayed until the specified events occur. Counsel for the additional defendants submitted that in these circumstances it was prejudicial to them to allow another proceeding to be brought in respect of the same orders. If the stay were lifted the additional defendants could find themselves facing two proceedings in respect of the same orders. All of this leads me to conclude that there are no "special circumstances" in respect of these orders justifying the extension of time.

37 On 14 March 2008 Senior Member Howell made further orders in both proceedings. In proceeding J10/2007:

(a) he refused to disqualify himself from conducting the hearing;

(b) he made an order amending in certain respects the orders made by Member Butcher on 20 December 2007 to accord with the fact that Mr Goodman had been added as an applicant in that proceeding and to recognise that National Food Corporation Pty Ltd had changed its name to Worldwide Enterprises Pty Ltd;

(c) he referred to a judicial member of the Tribunal for hearing and determination the respondent's application pursuant to s.77 of the VCAT Act for an order that the costs dispute be referred to the Magistrates' Court;

(d) he refused the applicant's application for a stay of the order of Member Butcher on 20 December 2007 pending the outcome of an appeal to the Supreme Court; and

38 In proceeding J22/2007, Senior Member Howell made an order changing the name of the applicant to its new name in the order made by Member Butcher on 20 December 2007, and he repeated the orders referred to in (c) and (d) above and gave certain other directions.

39 With respect to these orders, the delay in commencing the proceeding was at least one year and 283 days. Thus, the delay is still very long. Again, no sufficient reason was given for the delay. Instead of seeking judicial review, Mr Goodman sought to include these orders in Worldwide's application for leave to appeal out of time. In her judgment in the earlier proceeding, Master Daly considered and rejected the complaints against these orders, which she described as "mainly procedural in nature". I also note that the Master held that:

The main complaint against the orders appears to be the refusal of Senior Member Howell to disqualify himself from the hearings, presumably on the basis of the conduct of the directions hearing to which I have referred above. However, there is no arguable basis for the claim that Senior Member Howell is or might be perceived to be biased against the Plaintiff. Having reviewed the transcript of the initial directions hearing, Senior Member Howell appeared to go out of his way to assist Mr Goodman to comprehend some of the legal hurdles the Plaintiff's claims might face, so that he could attempt to frame the claims in a manner which would avoid those hurdles.

Accordingly, I am not persuaded that any "special circumstances" exist in respect of these orders which would justify the extension of time.

40 Further orders were made by Senior Member Howell on 30 June 2008. In proceeding J10/2007, he relevantly ordered that a request by Mr Goodman that an application issued by Mr Goodman on 2 May 2008 be allocated to a different file and dealt with separately be refused and that it be heard and determined as part of the present proceeding.

(a) the Senior Member refused to disqualify himself from conducting the hearing;

(b) he granted Mr Roberts, then of Frenkel Partners, leave to appear for the respondent at the hearing; and

(c) he refused the application by Mr Goodman that the orders made by the Tribunal on 20 December 2007 and 14 March 2007 [sic] be amended to show his name as the second applicant, as Mr Goodman "was not an applicant in the present proceedings [sic] when those orders were made".

42 Senior Member Howell also made an order in proceeding J65/2008 in which Worldwide and Mr Goodman were the applicants and Mr Silberman was the respondent. This order included orders that the Principal Registrar amend the records of the Tribunal to show that the application was an application made pursuant to s.103 of the Legal Practice Act 1996 to cancel a costs agreement, and not an application made pursuant to s.108 of the Fair Trading Act 1999 to determine a consumer and trader dispute; and that the application be stayed until such time as the appeals to the Supreme Court in relation to decisions made by VCAT in proceedings J10/2007 and J22/2007 were heard and determined or resolved in some other manner or until further order.

43 This time the delay was at least one year and 175 days. This is still a very long delay. Again, no sufficient reason has been given for the delay. In addition, the order made in proceeding J22/2007 was considered by Master Daly in her judgment in the earlier proceeding. The passage just quoted from the Master's judgment applied also to this order. Further, it is difficult to see what would be achieved by quashing either of the orders made on that day in proceeding J10/2007 or proceeding J65/2008. I therefore conclude that no "special circumstances" exist in respect of any of the orders made on 30 June 2008.

44 By a letter dated 30 June 2009, Registrar Jacobs of the Tribunal wrote to Mr Goodman rejecting his written requests that some or all of the above orders be revoked or set aside, and that the Tribunal hearings be continued in proceedings J10/2007 and J22/2007 by the Tribunal constituted by two members but not Senior Member Howell or Member Butcher.

45 Although Mr Goodman described this letter as a "decision" refusing his application under s 131 of the VCAT Act, it was no such thing. It was not "an order or direction" by a member of the Tribunal varying or revoking an order or direction as to the procedure to be followed in a proceeding. The writing of the letter by the Registrar was simply an administrative action which is "not susceptible of judicial review under Order 56".[11] Thus, no question about whether "special circumstances" exist justifying an extension of time arises in respect of the letter because Order 56 is not applicable. Even if it did, I would not be prepared to conclude that there were "special circumstances" justifying the extension of time with respect to the letter from the Registrar.

46 As time is not to be extended, it is unnecessary to consider the other problems with Mr Goodman's originating motion or what orders should be made in respect of the various summonses before me. It is sufficient simply to order that the originating motion be dismissed.

[2] See s.148(2)(a) and (5) of the VCAT Act.

[3] According to the reasons of Master Daly this summons concerned only the order made in proceeding J22/2007. However, before me both parties proceeded on the basis that the orders in both proceeding J10/2007 and proceeding J22/2007 had been sought to be included in the appeal. No complaint was made at that stage about the order made on 30 June 2008 in proceeding J65/2008.

[4] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [68] (Hansen AJA) (Chernov JA [5] and Nettle JA [8] agreed with Hansen AJA).

[5] Mann [2004] VSCA 148, [70] (Hansen AJA).

[6] (1984) 6 ALD 1, 3. An appeal from that decision was dismissed by the Full Court of the Federal Court of Australia [1984] AATA 176; (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ).

[7] Mann [2004] VSCA 148, [57] and [72] (Hansen AJA); Lednar v The Magistrates' Court [2000] VSC 549, [140]-[143] (Gillard J) not following Denysenko v Dessau [1996] VicRp 65; [1996] 2 VR 221, 224 (Beach J).

[8] Mann [2004] VSCA 148, [57], [58] and [72] (Hansen AJA); Lednar v The Magistrates' Court [2000] VSC 549, [137], [142] and [143] (Gillard J); Young v The County Court [2005] VSC 311, [17] (Osborn J).

[9] Mann [2004] VSCA 148, [21] (Nettle JA), [58] and [72] (Hansen AJA).

[10] Paragraphs [12]-[28] of Master Daly's judgment.

[11] Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [9] (Osborn J).

Court (General Civil Procedure) Rules 2005

Civil and Administrative Tribunal Act 1998

Legal Practice Act 1996

Fair Trading Act 1999

At a glance

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