Shaw v Yarranova Pty Ltd & Anor [2014] VSCA 48

1 The history of this long running dispute is set out in the numerous judgments and rulings made in the proceeding by judges in the Trial Division and in various applications and appeals brought in the proceeding to this Court.[1]

2 The present dispute between the parties arises out of an order made by Master Daly[2] on 7 March 2008. On that day, her Honour assessed damages which the Court of Appeal had ordered the appellant to pay on 20 April 2007. The Court of Appeal's order was made as a result of an undertaking that had previously been given by the appellant as a condition of being granted a stay pending the appellant's appeal from orders made by Bell J at the original trial of this proceeding.[3]

3 On 4 September 2012, the appellant issued a summons seeking to set aside the orders of Master Daly made on 7 March 2008 'on the grounds that there is fresh evidence and that they were procured on the basis of false and misleading affidavits and fraud'. In addition, the appellant's summons also sought orders requiring the respondents to repay all of the monies paid by the appellant to the respondents that were paid as a consequence of the orders of 7 March 2008 having been made. In furtherance of this summons, the appellant issued a subpoena to the proper officer of each of the respondents, requiring the production of various documents.

4 On 26 September 2012, the respondents filed a summons seeking to set the appellant's subpoenas aside as an abuse of process.

5 The appellant's summons and the respondents' summons came on for hearing on 18 October 2012 before Mukhtar AsJ. On that day, his Honour dismissed the appellant's summons 'without adjudication on its merits', and ordered the subpoenas filed by the appellant to be set aside. The appellant was also ordered to pay the respondents' costs of and incidental to both summonses. His Honour dismissed the appellant's summons because he concluded that the appellant should have commenced a fresh proceeding by issuing a writ if he wanted to set aside the orders of Master Daly on the basis they were procured by fraud.

6 On 22 October 2012, the appellant filed and served a notice of appeal against the orders of Mukhtar AsJ. The appeal was returned in the Practice Court on 8 November 2012 and then adjourned into causes.

7 The appellant's appeal from the orders of Mukhtar AsJ came on for hearing before the primary judge on 11 April 2013. Because the appellant's notice of appeal was filed and served before 1 January 2013, the appeal before the judge proceeded as a re-hearing de novo.

8 On 11 April 2013, after hearing argument, the primary judge delivered judgment in which his Honour:

(a) upheld the correctness of Mukhtar AsJ's reasoning that the appellant's application to set aside the orders of Master Daly should have been made by writ in a fresh proceeding rather than by summons in the present proceeding;

(b) set aside the subpoenas as an abuse of process; and

(c) determined that in any event there should be summary judgment pursuant to Part 4.4 of the Civil Procedure Act 2010 against the appellant in relation to the relief sought in the appellant's summons.

9 Consistently with his Honour's reasons, the judge made orders as follows:

1. The appeal is allowed.
2. Paragraph 1 of the order of Mukhtar AsJ made 18 October 2012 is set aside. The [appellant's] application by summons dated 4 September 2012 to set aside the assessment made by [Master Daly] on 7 March 2008 is dismissed. The orders made below are otherwise confirmed.
3. The [appellant] pay the [respondents'] costs, including reserved costs.

10 On 22 April 2013, the appellant filed a notice of appeal seeking to appeal to this Court against an order described by the appellant in his notice of appeal in the following terms:

The plaintiff's appeal of the orders of Mukhtar AsJ made 18 October 2012 is dismissed in accordance with Rule 63 (scil section 63) of the Civil Procedure Act 2010.

11 The grounds of appeal relied upon by the appellant are as follows:

1. The appellant was denied procedural fairness by not being afforded the opportunity to present a fully prepared case.
2. The appellant was denied natural justice in circumstances where the court and respondents were advised that the appellant was not in a position to present argument.

12 In his notice of appeal, the only complaint made by the appellant concerns the judge's decision to summarily dismiss the appellant's application to set aside the orders of Master Daly. From the terms of the notice of appeal, it appeared to us that the appellant no longer made complaint about the conclusions of the associate judge and the judge that the appellant's application to set aside the orders of Master Daly must be made by the issuing of a fresh writ, rather than by filing a summons in the original proceeding. However, in his written submissions and in argument before us the appellant also contended (notwithstanding the absence of any ground of appeal directed to the point) that the associate judge and the judge were wrong to conclude that his application to set aside the orders of Master Daly should have been made in a fresh writ supported by an appropriate statement of claim.

13 Additionally, while it did not appear from the appellant's notice of appeal that the appellant now seeks to cavil with the orders setting aside his subpoenas, in his written submissions (which the appellant relied upon in the hearing before us) the appellant also contended that the decision to set aside the subpoenas was wrong.

14 The respondents contend that the appellant requires leave to appeal. An order for summary dismissal of a proceeding on the ground that a party has no reasonable prospects of successfully prosecuting the proceeding is interlocutory and requires leave for an appeal to be brought in relation to it.[4] However, leave to appeal will usually be granted in respect of such a decision if there is any doubt about its correctness.[5]

15 Under the terms of the associate judge's orders, the appellant was not prohibited from commencing a proceeding by writ seeking to have the orders of Master Daly set aside. However, under the terms of the judge's orders, the appellant has now had the issue he seeks to litigate with the respondents determined finally against him.

16 We accept the respondents' submissions that the appellant requires leave to appeal to this Court.[6] Before us, the appellant made an oral application for such leave. In their written submissions, the respondents opposed any application for leave that the appellant might make. In those submissions, the respondents contended, amongst other things, that the appellant's application for leave should be heard and determined separately from, and in advance of, any appeal. We would have rejected that submission on the basis that such a course would have potentially involved an inefficient use of the Court's time. However, in argument before us, counsel for the respondent accepted that the question of leave could and should be dealt with by us as part of the hearing of the appeal.

17 That said, before dealing further with the appellant's application for leave, it is necessary to set out additional detail about the proceedings below.

18 The associate judge dismissed the appellant's summons without adjudication on its merits because his Honour held that the appellant's challenge to Master Daly's orders needed to be made in a fresh proceeding where allegations of fraud could be properly pleaded and particularised. From the material, it appears that there was no reference to s 63 of the Civil Procedure Act 2010 before the associate judge.

19 In written submissions filed shortly before the hearing before the judge, the respondents contended that the associate judge had correctly applied principles and authority requiring the appellant to commence a separate proceeding by writ and statement of claim. In the final paragraph of their written submissions to the judge, the respondents contended that the appeal from the associate judge should be dismissed. No application was made by the respondents for summary judgment pursuant to s 63 of the Civil Procedure Act or any rule of court.

20 During the hearing before the judge, reference was made to the Civil Procedure Act. This provoked the judge to say to the appellant:

Well, you will be familiar with s 63. It says that the court may of its own motion summarily dismiss fanciful claims that have no real prospect of success.

21 The argument proceeded. During the submissions of counsel for the respondents, the judge said to counsel:

I'll invite you to address this after lunch, but the - the one other matter that was the one that I suggested to Mr Shaw, which was whether in the circumstances I ought to allow the appeal and dismiss this summons, not on the basis that it was without adjudication on the merits, but pursuant to s 63 of the Civil Procedure Act, on the basis that it is entirely fanciful or whether I should simply dismiss the appeal, allowing Mr Shaw the opportunity to put on a statement of - a written statement of claim.

22 After lunch, counsel for the respondents then took the judge to an email sent by the solicitor for the respondents to the appellant on 25 September 2012 (a little over three weeks before the hearing before the Associate Judge). This email was in the following terms:

[The respondents] consider your application to be vexatious and/or an abuse of process. They reserve their rights to seek to have your application struck out summarily, or otherwise, and to seek their indemnity costs of and incidental to that process, including in relation to the two subpoenas that you have had issued to them.

23 In reply submissions before the judge, the appellant attempted to persuade his Honour not to dismiss his application summarily. First, the appellant submitted that the material he had already produced on affidavit disclosed a sufficiently arguable case. Secondly, he submitted that he was taken by surprise by the s 63 application in the sense that he did not think he had to defend that application before the judge. In elaboration of this second submission, the appellant said that he would wish to have the opportunity to put on additional evidence and material in support of his allegations. As the judge put it:

Mr Shaw submitted that ultimately further affidavits and evidence would be provided. But at no stage has it ever been indicated what would be established by such further affidavits or evidence. There are no material allegations that are to be the subject of such further affidavits or evidence. The defendants would be faced with the need to continue to defend themselves against very serious allegations of fraud and perjury without knowing how those allegations are to be put.[7]

24 Counsel for the respondents submitted to us that this paragraph of the judge's reasons was capable of two interpretations: first, that the appellant actually possessed additional evidence which he wished to put before the Court; and secondly, that the appellant did not have any evidence additional that which he had put on affidavit, but he was hopeful that discovery and/or the issuing of subpoenas might produce further evidence. It was then conceded that if the first position was correct then the judge would have been wrong to summarily dismiss the appellant's application. However, it was submitted that if the second position pertained then his Honour was right to summarily determine the appellant's application.

25 Looking at the transcript of the hearing before the judge, we can see the force of the respondents' submission that the appellant was contemplating the possibility of obtaining further evidence in his application by the use of compulsory court processes. However, we are unable to conclude that the appellant was not also submitting to the judge that there was additional evidence he was capable of producing if his application was not summarily dismissed.

26 With respect to the judge, we think his Honour was wrong to embark on the s 63 issue. The appellant, a self-represented litigant (although a person not without experience in making submissions to this Court), was not on notice that his application to set aside the orders of Master Daly might be summarily dismissed on appeal to the judge. The issue had not been raised before the Associate Judge. Nor was there any hint of such an application in the respondents' written submissions filed and served on the appeal below. The email to which the respondents made reference before the judge merely reserved the respondents' position in relation to the issue to summary dismissal.

27 That said, we have some sympathy for the position of the judge. His Honour was attempting to deal expeditiously with a proceeding that has, as this Court has said, a long and tortuous history.[8] However, and with respect, we think his Honour tried to do a little too much in the resolution of this proceeding when he allowed the appeal from the associate judge and then summarily dismissed the appellant's application. The appellant was entitled to sufficient notice of the application to enable him to marshal his case and put on any such additional material as he arguably foreshadowed during the course of the hearing before the judge. Even if one suspected that the appellant has little prospect of producing such material, he was at least entitled to that opportunity.

28 Further, contrary to the submissions of the respondents, we do not think the fact that the hearing went for a day before his Honour[9] has the result that the appellant received sufficient notice in relation to the s 63 issues.

29 The judge having been wrong to dismiss the appellant's application summarily, it follows that in our view the appellant should be granted leave to appeal and the appeal must be allowed.

30 While the appellant's notice of appeal only sought to replace the judge's orders with the order originally made by the associate judge (dismissal without adjudication on the merits), as we have said above, the appellant now seeks to argue that the conclusions of the associate judge and the judge that the appellant's application must be made in a fresh writ with a statement of claim, and the decisions that the appellant's subpoenas should be set aside, are wrong.

31 These were interlocutory discretionary decisions on questions of practice and procedure. As the authorities make clear, particular care needs to be taken in reviewing such decisions. That said, in our view the associate judge and the judge were plainly correct when they determined that the appellant's application to set aside the orders of Master Daly was required to be made in a fresh writ with a proper statement of claim giving appropriate notice of the serious allegations being made by the appellant. The setting aside of the subpoenas is (and was), in the circumstances of this case, a necessary consequence of the order to dismiss the appellant's summons without adjudication on the merits.

32 In his submissions before us, the appellant relied upon the overarching purpose and the overarching obligations set out in the Civil Procedure Act 2010 in order to support a submission that less costs would be incurred, and it would be more efficient, if the appellant was permitted to continue his application made by summons. We reject this submission. As we have said the serious nature of the allegations which the appellant wishes to make mandates that his application to set aside the earlier orders be made by writ with a properly particularised and detailed statement of claim.

33 There will be a grant of leave to appeal. The appeal will be allowed and treated as having been heard instanter. The orders of the judge made on 11 April 2013 will be set aside, and in lieu thereof there will be an order dismissing the appeal from the orders of the associate judge with costs.

[1] See for example Shaw v Yarranova Pty Ltd [2006] VSC 45; _Shaw v Yarranova Pty Ltd & Ano_r [2006] VSCA 291; (2006) 15 VR 289; Shaw v Yarranova Pty Ltd & Anor [2009] VSC 380; Shaw v Yarranova Pty Ltd & Anor [2009] VSC 490; Shaw v Yarranova Pty Ltd & Anor (No 2) [2010] VSC 125; Shaw v Yarranova Pty Ltd & Anor [2010] VSC 567; Shaw v Yarranova Pty Ltd & Anor [2011] VSCA 55; and Shaw v Yarranova Pty Ltd & Anor [2012] VSCA 189.

[3] Shaw v Yarranova Pty Ltd [2006] VSC 45 (Bell J).

[4] Manderson M & F Consulting (a firm) v Incitec Pivot Ltd [2011] VSCA 444, [11].

[7] Shaw v Yarranova Pty Ltd & Anor [2013] VSC 200, [51].

[8] Shaw v Yarranova Pty Ltd & Anor [2012] VSCA 189, [4].

[9] Occupying some 144 pages of transcript (inclusive of his Honour's ex tempore judgment).