Appeal and New Trial - Right of appeal - When appeal lies - From interlocutory decisions - Leave to appeal - Application to extend time within which to appeal from an interlocutory decision of the Associate Judge - Test for the grant of leave - Case management under Part 14 Division 1 of the Supreme Court Rules 2000 - Nature of case management - Grounds of appeal formulated with no prospects of success -Appeal is dismissed.

Supreme Court Rules 2000

Papoutsakis v Tenbensel [2024] TASSC 13

Judgment Number: [2025] TASSC 42

GRANT WILLIAM STOKES AS EXECUTOR FOR THE ESTATE OF THE LATE GWENDOLINE GRACE EVANS v KRISHNAKUMAR SEEVARATNAM,

1. The substantive proceedings in this matter relate to an action by the plaintiff executor to have a contract for the sale of 364 Argyle Street, North Hobart, dated 25 January 2018 and varied on 8 September 2018, set aside on the grounds of unconscionability or in the alternative a declaration that the contract is void or unenforceable. The proceedings were commenced by writ filed on 19 October 2020. The amended statement of claim was filed on 11 July 2022.
2. It may be an understatement to observe that the matter has a lengthy and extensive interlocutory history. Certainly, the interlocutory activity in this matter has substantially delayed the resolution of the substantive proceedings. The ambit of interlocutory activity led to an order by Daly AsJ on 21 August 2024 preventing any party from filing further affidavit material in the proceedings without the leave of the Court.
3. Part 14 Division 1 of the Supreme Court Rules 2000 ("Rules") is titled, "Case Management" it sets out a regime by which the Court case manages certain matters. The matters are those identified at r 414(a) and include "a proceeding which is of a class specified by the Chief Justice as being a class of proceedings to which this Division is to apply".
4. Practice Direction No 1 of 2015 is titled "Case Management" ("Practice Direction") and it sets out a variety of proceedings to which Part 14 Division 1 (rr 414-417) is to apply including "All proceedings commenced by writ except where damages are claimed by the plaintiff in respect of personal injury". The substantive proceedings fall within this description. The Practice Direction then sets out the procedure to apply in such instances. It is to be noted that Part 14 Division 2 (rr 418-426) do not apply to a matter caught by Part 14 Division 1 (refer to r 418).
5. Case management under Part 14 Division 1 has the purpose set out at r 414A, "to ensure that proceedings are conducted justly and efficiently".
6. Rule 415 deals with directions hearings conducted under Part 14 Division 1. Importantly, the purpose of such directions hearings is "to eliminate any lapse of time, from the commencement of a proceeding to its final determination that is not reasonably required for (a) the fair and just determination of the outstanding issues between the parties and (b) the preparation of the case for trial". It appears in this case that the directions hearings conducted have not achieved that purpose. There have been a number of interlocutory applications and appeals by the defendant.
7. It is to be noted that a judge seized of a directions hearing pursuant to the provisions of Part 14 Division 1 is empowered by r 415(3), and "may make any order, as part of a directions hearing to ensure that the proceeding is conducted and resolved justly and efficiently".
8. Rule 415(4) sets out examples of the nature of orders that can be made at such a directions hearing including the most suitable manner to deal with a proceeding (r 415(4)(a)), and can take into account the most efficient way to deal with a proceeding (r 415(4)(b)), and the allocation of court resources (r 415(4)(c)). Further, a judge hearing such a directions hearing may dispense with or vary any provision of the Rules in their application to the proceeding (r 415(4A)(a)). The point is that a judge at a directions hearing in respect of a matter caught by Part 14 Division 1, such as this, has very broad powers to manage the matter to trial.
9. It is to be noted that case management is an organic process, and the demands of that process can change with circumstances. It would be antithetical to the objects of Part 14 Division 1 were judges bound to approach the matter before them solely through the prism of earlier orders made in the case management process. Changing circumstances may require different approaches. An untrained party, such as a self-represented litigant, may not fully understand this process and a judge hearing such matters at such a directions hearing should seek to explain how case management works consistently, of course, with the demands of that process (ie eliminating unnecessary delay). Proceedings in a case managed directions hearing may appear cursory, or even brusque, to the unrepresented litigant.
10. Returning then to the interlocutory proceedings in the substantive proceedings. On 17 April 2024 Pearce J made orders that the parties file draft certificates of readiness after which a directions hearing would be held to settle them.
11. On 1 May 2024, the defendant applied for an order restraining the plaintiff's then solicitor, Mr Beattie, from continuing to act for the plaintiff in the substantive proceedings.
12. On 17 October 2024, the associate judge refused the application to restrain Mr Beattie. On 18 October 2024 the defendant appealed the decision of the associate judge.
13. On 25 February 2025, Estcourt J dismissed the defendant's appeal against the associate judge's order of 17 October 2025. The defendant has now appealed to the Full Court from the decision of Estcourt J, and that appeal is pending.
14. On 21 February 2025, the associate judge ordered that a directions hearing in the nature of a pre-trial conference be heard on 21 February 2025. At that time the associate judge ordered that the parties file draft certificates of readiness within 28 days in accordance with the orders of Pearce J on 17 April 2024.
15. On 31 March 2025, the associate judge ordered that he would dispense with the need for draft certificates of readiness and instead would make orders to the requisite effect.
16. On 11 April 2025, the associate judge heard the parties in a directions hearing regarding preparations for trial in the substantive proceedings.
17. The record of the proceedings on 11 April 2025 indicates that Daly AsJ observed that the likely disposition of the pending Full Court appeal would occur before the trial of the substantive proceedings. He referred the issue regarding r 461 of the Rules relating to paragraph [10] of the draft plaintiff's certificate of readiness, to the trial judge who can make orders in respect to such matters under r 461(1)(b). Rule 461 deals with the reception into evidence of any plan, model, photograph, film, tape, disk, soundtrack or other device in which sounds, data or visual images are recorded. Daly AsJ also noted that in respect of paragraph [15] of the plaintiff's draft certificate of readiness, that no notice to admit facts has been issued, and the documents sought by the defendant have been provided. In respect of paragraph [7] of the defendant's draft certificate of readiness, Daly AsJ stated that where documents have not been agreed it was not the Court's task to force parties to agree on documents.
18. An application under r 559 of the Rules is necessary, when that rule applies, if questions of law or fact are to be tried at different places or by different modes of trial or in a particular order.
19. On 11 April 2025 Daly AsJ, in respect of any application under r 559, noted that such an application must be accompanied by an affidavit. He then referred to his order of 21 August 2024 requiring the parties to seek leave to file affidavit material. Whilst his Honour concluded that order was breached by the filing of the defendant's 10 April 2025 affidavit, he noted that the defendant filed it under a mistaken understanding of the effect of the 21 August 2024 order.
20. The orders made by the associate judge on 11 April 2025 and formalised on 1 May 2025 were:

1. His Honour grants leave for the defendant to file an affidavit in support of their foreshadowed rule 559 application."

1. Mr Seevaratnam, the defendant, brings an application for an extension of time within which to appeal from interlocutory orders made by the associate judge on 11 April 2025 ("applicant"). I have described the defendant as the "applicant" because until leave is granted there is no appeal on foot, and thus to describe the applicant as "an appellant" (as the applicant does in various court documents) is to err because it anticipates the grant of leave.
2. Appeals from the decision of an associate judge are made under r 680A.
3. Rule 680A differentiates between "final judgments" and "interlocutory judgments". The decision of Daly AsJ on 11 April 2025 was not a "final judgment" and hence is an "interlocutory judgment".
4. The time limited for appealing an "interlocutory judgement" is provided for at r 680A(3)(b) which states it must be instituted "within 10 days of the date after the judgment was pronounced". In this instance any appeal would have to have been brought within 10 days after 11 April 2025, as that was the date upon which the orders at [21] above were pronounced.
5. The notice of appeal initially filed by the applicant is dated 7 May 2025. The orders sought by the applicant in his application for an extension of time within which to appeal, filed 7 May 2025, ("application") were in the following terms:

"1 That the defendant be granted leave to file a Notice of Appeal dated 7 May 2025 (which is attached to this application including an affidavit of the same date) in regards to verbal Order(s) made by his Honour, the Associate Judge, Justice Daly on 11 April 2025 (date of written Orders): 1 May 2025), and

1. The defendant be granted a period of 11 days from the Order to file the Appeal Court Book concerned and to serve on the other party."
2. The original grounds of appeal filed by the applicant with the application were prolix and embarrassing. There were 8 grounds, each ground was afforded a title and followed by submissions. In summary, the grounds were that Daly AsJ erred when, (emphasis added):
   1. The applicant was "not being afforded procedural fairness in relation to the effect of a draft certificate of readiness";
   2. He failed to comply with "The overriding purpose of the Rules and the Civil Procedure Act ... in that he chose to look through a very limited lens and selectively confined himself to only Rule 401 and 402 of the notices to admit facts when other Rules can also be applicable such as r 551(2)(b)(iii), r 542(d), r 549(c) and particularly r 550(2)(g) and (i)".
   3. He failed to record the plaintiff's refusal to admit facts;
   4. He failed to record, by order, in breach of r 551(2)(b)(iii) and/or r 550(2)(h) of the Rules, an admission by the plaintiff being the contents of a letter said to be filed in the Registry, dated 4 April 2025, titled "Plaintiff's Admissions of Facts being payments by the defendant into the home loan account of GG Eaves between 22 February 2016 and 6 March 2023";
   5. He failed to comply with the second order of Pearce J at a directions hearing on 17 April 2024 to the effect that "both parties make and file draft certificates of readiness, expressing all of the respective views of the plaintiff and the defendant about the matters in the certificate of readiness - both as to experts, proofs of evidence, agreed documents, estimated time lines and any other interlocutory matters";
   6. He failed to adhere to directions made by Pearce J on 17 April 2024;
   7. He failed to order that the trial in the substantive proceedings only proceed upon the determination of the defendant's appeal to the Full Court to disqualify Mr Beattie, and
   8. The directions hearing was not conducted efficiently and exhaustively.
3. The test for the grant of leave is set out by Brett J in Papoutsakis v Tenbensel [2024] TASSC 13 at [10] it includes four matters that are to be taken into account including (i) length of the delay; (ii) the reasons for the delay; (iii) whether the applicant has an arguable case, and (iv) the extent of any prejudice to the respondent if leave is granted.
4. In this instance delay is not an issue, and the matters at (i) and (ii) can be put to one side. It is the third issue which is prime, ie whether the applicant has an arguable case, and any prejudice to the respondent should be identified and considered.
5. I heard the application on 13 June 2025. During that hearing, the applicant sought to amend his grounds of appeal. I directed the applicant to file a minute of the proposed amendments. Also at that hearing, counsel for the plaintiff, Mr Gray, confirmed that Mr Beattie was retiring on 30 June 2025, and that a new solicitor was then acting for the plaintiff.
6. The minute of amended grounds subsequently filed was essentially a set of further submissions and did little to refine or describe the applicant's intended grounds of appeal.
7. I subsequently heard the parties on the application to amend on 15 June 2025. I spent some time seeking to identify the grounds of appeal were that the applicant seeks to pursue. During submissions (Transcript 15 July 2025 from T1) the applicant reduced the grounds of appeal to four, with the following particulars ie, that the associate judge erred in that:

"1 The applicant was "not being afforded procedural fairness in relation to the effect of a draft certificate of readiness".

(a) Not allowing the applicant time to seek legal advice

(b) The Associate Judge was not impartial or neutral, and

1. He failed to comply with "The overriding purpose of the Rules and the Civil Procedure Act.

(a) By setting the matter down without finalising the certificate of readiness between both sides, and

(b) Failing to ask the parties if there were any other requirements that needed to be looked at, approaching trial.

1. At the hearings conducted on the 31st of March and the 11th of April, in that he did not order the record of facts admitted by the plaintiff, despite the defendant's request.
2. At the hearings on the 31st of March, 11th of April 2025, by refusing to record the non-admissions of fact by the plaintiff in relation to the defendant's mortgage payments in January, February, and March of 2023."
3. A decision to extend time involves the exercise of a discretion, which is unfettered except in the sense that it is to be exercised judicially.
4. In order to assess whether the applicant has an arguable case it is necessary to consider how the grounds of appeal relied upon by the applicant are said to demonstrate error by the associate judge.
5. The associate judge has a broad discretion in how he case manages matters under Part 14 Division 1 of the Rules. To succeed on an appeal the applicant would have to demonstrate (on appeal) that the associate judge, inter alia, acted on a material error of fact or law, or erred by reaching a conclusion which was unreasonable or unjust, declined or failed to exercise his discretion, acted on irrelevant or insufficient materials, or misapprehended the facts or failed to consider a material fact.
6. On ground 1 it is noted that the associate judge granted an adjournment on the defendant's request from 31 March 2025 to 11 April 2025 at 2:15 pm. The applicant had the benefit of that adjournment to seek legal advice. The use of affidavits during the interlocutory proceedings was subject to the associate judge's order of 21 August 2024 and the provisions of r 415(9), which precludes the use of affidavits at a directions hearing except by order of the Court or a judge. There was some reference to the applicant's need for an interpreter but that is a matter that can be dealt with at anytime prior to any requirement that he give evidence or participate in a trial of the substantive matters.
7. On ground 2 it is noted that the applicant, by submission, relies upon rr 542(d), 549(c), 550(2)(g) and (i) and 551(2)(b)(iii), and those rules all appear in Part 22 Division 1 of the Rules. That Division does not apply to a proceeding, like these, to which rr 414 and 416 apply, see r 540.
8. Grounds 3 and 4 are essentially different ways of expressing the same complaint. As noted, the associate judge has a very broad discretion as to how he proceeds at such a directions hearing. There is nothing that precluded the associate judge from determining how evidence or admissions were to be dealt with in the substantive proceedings.
9. I would dismiss the application for leave on the basis that the grounds of appeal as formulated are baseless and have no prospects of success. They are founded on a misapprehension as to the nature of case management and that orders made earlier in the case management process continue to bind subsequent case management. I can discern no indication that the associate judge acted partially, indeed he sought to facilitate the applicant's requests for an adjournment (on 31 March 2025) and that he be able to make an application under r 559 (on 11 April 2025), despite the requirement for an affidavit to support such an application and the effect of the associate judge's earlier order on 21 August 2024.
10. This application has consumed substantial court resources and whilst the Court will always seek to do justice irrespective of whether a party is represented or not, the additional time, cost and delay now evident in this matter emphasise the need to seek to explain the nature and rules of case management to such litigants at the outset of proceedings. That observation is intended as no criticism of the manner in which this matter has been case managed, and there is an obligation on self-represented litigants to listen carefully to judicial officers tasked with the case management of proceedings.