Sanossian v Parisi & Associates Pty Ltd

Supreme Court of NSW|2021-04-21|Before: Wright J

Counsel: I Griscti (First Defendant)

Solicitors: Gilchrist Connell (First Defendant) File Number(s): 2020/283063

Judgment - Ex Tempore

By notice of motion filed on 12 October 2020, the first defendant, Parisi & Associates Pty Ltd, seeks to have the Summons Commencing an Appeal filed on 30 September 2020 by the plaintiff, Mr Sanossian, dismissed as incompetent, under r 50.16A of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), as well as consequential costs orders.
In addition, Mr Sanossian filed on 2 November 2020 a notice of motion seeking to have the first defendant's notice of motion stayed pending determination of the proceedings commenced by his filing a "Summons Commencing an Appeal (Part 50)" on 30 September 2020. During submissions it was clarified that Mr Sanossian only pressed this stay application if the proceedings were not to be removed into the Court of Appeal.

Background

On 25 October 2019, Russell SC DCJ delivered judgment in District Court proceedings brought by the plaintiff, Mr Sanossian, against the defendant, Parisi & Associates Pty Ltd, in which the plaintiff sought damages against the defendant, who were the solicitors who acted for him in family provision proceedings in the Supreme Court. It was alleged that the solicitors had been negligent in the conduct of those proceedings and advice given and as a result the plaintiff suffered loss and damage, particularised in par 31 of the statement of claim as totalling $720,000. His Honour's orders, as recorded in Sanossian v Parisi & Associates Pty Limited [2019] NSWDC 599 at [94], were as follows: "(1) Judgment for the defendant. (2) Order the plaintiff to pay the defendant's costs. (3) Stand the proceedings over to a date to be fixed to deal with: (a) any application by the defendant for an indemnity costs order; (b) determination of the costs reserved by Judge Letherbarrow SC on 26 July 2019."
On 25 October 2019, when judgment was delivered, the following interaction between Russell SC DCJ and the plaintiff occurred, as recorded in the transcript: "HIS HONOUR: If you want to appeal against that judgment, you have to go to a different court which is the Court of Appeal, which is part of the Supreme Court of New South Wales, and you have to do that within 28 days. So I think the best thing you can do is go away and read the judgement. PLAINTIFF: Yes. HIS HONOUR: Try to understand it. You don't come back to me to argue that there are mistakes or there are different factors I should've taken into account. You can go to a higher court and do that. What I have to do is finalise the matter by dealing with all the questions of costs. PLAINTIFF: Now that 28 days starts from today or - - HIS HONOUR: Yes. PLAINTIFF: - - from the next meeting? HIS HONOUR: No, today, today. So you need some time to read the judgement and to think about costs. …"
On each of 21 November 2019, 11 February 2020, 27 March 2020 and 29 May 2020, the plaintiff filed a notice of motion in the District Court seeking substantially the same relief, namely that the judgment of Russell SC DCJ be set aside under r 36.15 of the UCPR generally on the basis that the judgment had been given irregularly, illegally or against good faith. Each of these motions was dismissed and on more than one occasion the plaintiff was informed in effect that, if he was not content with the District Court's judgment, the appropriate course was for him to appeal to the Court of Appeal.
On 1 July 2020, the defendant filed a motion in the District Court apparently designed to seek orders putting an end to the plaintiff's continuing to file motions in the District Court.
On 28 August 2020, the defendant's notice of motion was heard by Gibb DCJ and, on that occasion, it was recorded that the District Court: "NOTES: 1. Statement of claim filed 21 July 2017. Defence filed 28 August 2017. 2. Judgement entered by Russell DCJ on 25 October 2019. Costs order made by Russell DCJ on 6 November 2019. 3. Judgment including costs order entered in JusticeLink, the court's computerised court record system, on 25 October 2019, and costs orders entered on 6 November 2019 per Uniform Civil Procedure Rule 36.11. As such judgment is be final and conclusive per s81 of the District Court Act 1973 (NSW). 4. Various notices of motion filed by both the plaintiff and defendant since judgment. The defendant's notice of motion filed 1 July 2020. 5. The jurisdiction of this Court is exhausted - James v Australia and New Zealand Banking Group Limited [2020] NSWCA 101, para 28 - 35; Achurch v The Queen [2014] HCA 10, esp para 14 - 18; Bailey v Marinoff [1971] HCA 49. 6. These proceedings are at an end. 7. The plaintiff informed that should he wish to pursue this matter he must file an appeal in the Court of Appeal or some form of fresh proceeding. Orders and Directions, 28 August 2020: 1. Dismiss the defendant's motion instanta. 2. Direct the registry that the file should be closed formally, and no further steps may be taken in these proceedings or motion filed. 3. No order as to costs. Orders entered forthwith."
On 3 September 2020, the plaintiff purported to file a further notice of motion seeking orders under r 36.15 of the UCPR setting aside the judgment of Russell SC DCJ and the orders made by Gibb DCJ on 28 August 2020. It appears that this motion was not accepted by the registry and was never listed for hearing.
On 30 September 2020, the plaintiff filed a document headed "Summons Commencing an Appeal (Part 50)" in the Common Law Division of this Court. In this document, two defendants were named: "Parisi & Associates Pty [Ltd]" and "Lawcover Pty [Ltd]". It does not appear that "Lawcover Pty [Ltd]" was a party to the District Court proceedings. In this summons, the decisions in the court below, which were sought to be challenged, were identified as those of Russell SC DCJ and the Gibb DCJ and the "Material date" was said to be 28 August 2020, the date of the orders made by Gibb DCJ.
For completeness, it can also be noted that prior to 24 December 2020, various steps were taken by the defendant in relation to costs. On 24 December 2020, orders were made in relation to costs in the following terms: "Joseph Sanossian, First Defendant is to pay Parisi & Associates Pty Ltd, First Plaintiff the sum of Claim amount: $109,820.95 Interest claimed: $0.00 Filing fees: $0.00 Service fees: $0.00 Solicitors fees: $0.00 Other costs: $0.00 TOTAL: $109,820.95"

The first defendant's notice of motion

As has been noted already, the substantive orders sought in the first defendant's notice of motion filed on 12 October 2020 is that the plaintiff's Summons Commencing an Appeal be dismissed as incompetent under r 50.16A of the UCPR.
The first defendant's contention is, in essence, that the plaintiff's appeal is incompetent because it has been brought by filing a summons in the Common Law Division under Pt 50 of the UCPR and not a notice of appeal in the Court of Appeal in accordance with Pt 51. The first defendant also contends that the appeal was commenced out of time and no extension of time has been sought.

Matters raised by the Court with the parties prior to the hearing

On 19 April 2021, the Court caused an email to be sent to the parties as follows: "For the purposes of the hearing in this matter listed on 21 April 2021, his Honour requests that the parties consider and be in a position to make submissions as to whether, in light of section 48(1)(a)(iv) and (2)(f) and section 51(1)(a) of the Supreme Court Act 1970 (NSW), the appropriate course is for the Court to order of its own motion, under s 51(1)(b) of that Act, that the proceedings be removed into the Court of Appeal. It is noted that there are two defendants listed in the Summons Commencing an Appeal in these proceedings but there appears to have been only one defendant in the District Court proceedings which are the subject of the appeal. Please confirm whether the Second Defendant listed in the Summons is intended to be a party to these appeal proceedings. If so, evidence may be required to establish that the Second Defendant is a proper party in these proceedings and to establish whether or not the Second Defendant has been served."
The plaintiff responded indicating that he requested that the matter be removed into the Court of Appeal to be listed for directions in 28 days so as to allow him time to instruct solicitors and counsel. As to the second issue, he stated "The Lawcover is the client of [the defendant's solicitors] in the matters and the defendant is the insured party by Lawcover".

The proper mode of commencement of the present appeal

As the heading of the summons commencing these proceedings indicates, the proceedings have been commenced under Pt 50 of the UCPR. Part 50 of the UCPR does not, however, apply to an appeal which is assigned to the Court of Appeal. In this regard, r 50.1 relevantly provides: "This Part applies to any appeal, other than - (a) an appeal to the Supreme Court that, under the Supreme Court Act 1970, is assigned to the Court of Appeal, or …".
Section 48 of the Supreme Court Act 1970 (NSW) relevantly provides: "48 Assignment to the Court of Appeal (1) (a) In this section - specified tribunal means - … (iv) the District Court or a Judge of the District Court (but not a Judicial Registrar of that Court), … (2) There are assigned to the Court of Appeal proceedings in the Court - … (f) on an appeal from a specified tribunal, …".
Accordingly, the District Court is a "specified tribunal" and an appeal from a judgment of a judge of the District Court is, by virtue of s 48(2)(f) of the Supreme Court Act, assigned to the Court of Appeal. Since the judgment or judgments, from which the plaintiff seeks to appeal, are judgments of judges of the District Court, it follows that Pt 50 of the UCPR does not apply to the present appeal. It does not follow, however, that the present appeal is, for that reason, incompetent.
Section 51(1) of the Supreme Court Act deals with the situation where proceedings are commenced in a Division but are assigned to the Court of Appeal. Section 51(1) states: "(1) Where proceedings are commenced in a Division but are, under this or any other Act or under the rules, assigned to the Court of Appeal - (a) the proceedings shall be for all purposes well commenced on the date of commencement in the Division, notwithstanding that the proceedings are assigned to the Court of Appeal, (b) the Court of Appeal or the Court in the Division in which the proceedings are pending may, in either case on application by a party or of its own motion, order that the proceedings be removed into the Court of Appeal, (c) upon an order for removal being made under paragraph (b), the proceedings may be continued and disposed of in the Court of Appeal, and (d) subject to any order under paragraph (b) the proceedings may be continued and disposed of in a Division."
Section 51(1)(a) expressly establishes that, even where proceedings, such as the present, are assigned by s 48 to the Court of Appeal but are commenced in a Division, "the proceedings shall be for all purposes well commenced". Thus, while the present proceedings were irregularly commenced, the appeal is not incompetent. In other words, the present proceedings are not liable to be dismissed as incompetent on the ground that they were commenced in the Common Law Division by a Summons Commencing an Appeal instead of in the Court of Appeal by a Notice of Appeal. Accordingly, it does not appear to me to be appropriate to grant the principal relief sought by the defendant in its notice of motion.
Nonetheless, since the proceedings have been commenced irregularly, a question remains as to how the irregularity is to be remedied. Section 51(1)(b) and (d) provide, in effect, alternate remedies: 1. under par (b), the Court in the Division can, on application by a party or of its own motion, order that the proceedings be removed into the Court of Appeal. If that occurs, par (c) provides that the appeal may be continued and disposed of in the Court of Appeal; or 2. under par (d), the Court in the Division can continue to hear and dispose of the appeal.
There may be circumstances involving urgency or other circumstances which render it appropriate, having regard to the requirement to give effect of the overriding purpose in s 56(1) of the Civil Procedure Act 2005 (NSW), the objects of case management in s 57 of that Act and the obligation to seek to act in accordance with the dictates of justice, for an appeal irregularly commenced in the Common Law Division instead of the Court of Appeal to be heard and determined in whole or in part in the Division. A recent example of a case in which such circumstances of urgency arose is Belan v Commissioner of Corrective Services and Anor [2020] NSWSC 1503, at [72] to [75].
In the absence of such circumstances, however, it appears to me that the clear legislative intent of ss 48 and 51, read in the context of ss 42 to 46B and the other provisions of the Supreme Court Act, is that an appeal from a decision of a judge of the District Court is to be heard and determined in the Court of Appeal.
In the present case, there are no issues of urgency which require the Court in the Division to hear the appeal or aspects of the appeal rather than removing the whole of the proceedings into the Court of Appeal. Nor have any other circumstances been identified which would favour the proceedings being dealt with under s 51(1)(d) rather than being removed into the Court of Appeal under par (b).
The conclusion that removal under par (b) is appropriate is reinforced in the present case by the consideration that if the appeal or aspects of the appeal were dealt with in the Division, as permitted under s 51(1)(d), there would be an appeal, as of right or by leave, to the Court of Appeal from any decision by the Divisional Court. This would potentially add another layer of appeal in a matter where it would be in the interests of justice and of the parties for finality to be achieved as soon as reasonably possible.
In addition, I note that the plaintiff now seeks to have the proceedings removed into the Court of Appeal under s 51(1)(b).
Finally, there are also issues in these proceedings as to whether the appeal is out of time, by many months or a matter of days, whether any extension of time should be granted and whether the second defendant is a proper party to the appeal. Issues of this nature are dealt with in the Court of Appeal in relation to many appeals and there is no reason why these issues should be dealt with in this Division rather than the Court of Appeal.
For these reasons, I am of the view that it is appropriate in all the circumstances to order, under s 51(1)(b) of the Supreme Court Act, that the proceedings be removed into the Court of Appeal.
In order to assist with the proper preparation of the appeal, the proceedings should be listed before the Registrar of the Court of Appeal for directions.

Costs

The first defendant has been unsuccessful in its application to have the proceedings dismissed as incompetent. Nonetheless, the plaintiff did commence the proceedings irregularly, even though he had been informally advised on a number of occasions that if he was not content with the judgment of Russell SC DCJ the appropriate course was for him to appeal to the Court of Appeal. As a result, an order removing the proceedings into the Court of Appeal was required.
In the circumstances, I am of the view that each party should pay his or its own costs of this application.

Orders

For these reasons, the Court orders: 1. Under s 51(1)(b) of the Supreme Court Act 1970 (NSW), these proceedings are removed into the Court of Appeal. 2. The first defendant's notice of motion is dismissed. 3. Each party is to pay his or its own costs of the first defendant's notice of motion. 4. The proceedings are listed for directions before the Registrar of the Court of Appeal on 19 May 2021 at 9.00am.

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: 21 April 2021

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