Warne v ACN 603 541 411 Pty Ltd t/a Chandlers International Lawyers

Court of Appeal (NSW)|2024-10-09|Before: Kirk JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

EX TEMPORE JUDGMENT (REVISED)

On 2 July 2024 Newlinds DCJ determined a debt claim brought by the respondent against the appellant, Mr Colin Warne: ACN 603 541 411 Pty Ltd Trading as Chandlers International Lawyers v Colin Philip Warne [2024] NSWDC 284. His Honour upheld the claim, granting judgment in the sum of $121,724.
On 1 August 2024 the appellant filed a notice of appeal seeking to appeal that decision. That was two days late: see Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.16(1)(c). On 8 August 2024 the solicitor for the respondent wrote to the appellant saying as follows: Your "Notice of Appeal" was filed out of time, was not accompanied by an application to bring an appeal out of time, did not contain the necessary certificate to record that the value of the appeal was such as to permit it to be brought without leave and, in any event, amounts to no more than a recitation of the facts and broadly described complaints which do not disclose any valid grounds of appeal. Consequently, your Notice of Appeal is incompetent and is liable to be dismissed, with you being liable to our client for its costs.

Competency

A delay of some two days in filing the notice of appeal is minor. The respondent concedes candidly that it has suffered no prejudice as a result of this delay. Its complaint seems to be in essence a formal one relating to the absence of Mr Warne having sought in writing an extension of time supported by affidavit evidence.
Mr Warne has indicated today that he accepts that formally his notice of appeal was filed late, and he in effect applied orally for an extension of time. In his written submission he has explained that he did not receive the primary judge's reasons for the decision until 12 July 2024. Further, he says he went to the Supreme Court Registry to obtain documents to file an appeal and was given a particular document. But when he returned on 27 July 2024 to try to file the appeal he says he was told by registry staff that he had been given the wrong document and was then given a correct form. I note in passing that 27 July 2024 was a Saturday but, as Mr Warne indicated in his oral submissions, it is possible that a minor mistake was made as to the date. I accept that this explanation of Mr Warne is contained in submissions and is not in an affidavit, as has been pointed out by the respondent. What is said in written submissions is not evidence before the Court. That being said, save for the issue relating to attempting to file something on a Saturday it cannot be said that the explanation proffered in the submissions is implausible.
The responded pointed to authority suggesting that an oral application for an extension of time at the hearing of a competency motion is insufficient and that such an application must be made in writing: Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [39]-[41]. It is not necessary for me to consider that authority in any detail here.
I am not persuaded that it would be in the interests of justice, taking into account ss 56-60 of the Civil Procedure Act 2005 (NSW), to dismiss the matter as incompetent at this stage. That is so taking account of the shortness of delay, the absence of prejudice to the respondent and the explanation offered in submissions by the appellant. Justice suggests that in all the circumstances Mr Warne should be given an opportunity to file an application for an extension of time by way of a notice of motion, supported by an affidavit sworn or affirmed by Mr Warne giving his explanation for the delay in filing the notice of appeal.
On that basis, I will not uphold prayer one of the respondent's notice of motion filed on 23 August 2024. The solicitor appearing for the respondent, Ms Treisman, has pointed out that were I to dismiss the objection to competency then that might prejudice the ability of her client to maintain that objection in circumstances where the appeal is currently out of time. I accept there is force in that submission. In the circumstances, I will not dismiss prayer one of the notice of motion but instead will stand that prayer over, whilst giving Mr Warne the opportunity I have foreshadowed to seek to regularise the position. It may well be that if Mr Warne files a compliant application for an extension of time, supported by an affidavit, then the respondent will not oppose such an extension of time being granted. However, those issues are a matter for another day.

The form of the notice of appeal

I turn then to prayer two in the respondent's notice of motion, seeking that the notice of appeal be struck out pursuant to the Court's inherent jurisdiction as an abuse of process. The respondent first complains that the notice of appeal does not identify under what statutory provision the appeal has been brought. It is tolerably clear, however, that the appeal is brought pursuant to s 127 of the District Court Act 1973 (NSW). While the formality of identifying that provision has not been complied with, that is obviously no basis for striking out the notice of appeal.
Secondly, the respondent complains that there is no certification in the notice of appeal that the amount in issue exceeds the amount for which leave to appeal is required, namely $100,000, thus failing to comply with r 51.22 of the UCPR. Accepting that to be so, it is clear that the appellant disputes the whole of the amount awarded against him in the District Court which does exceed $100,000. Again, therefore, this is not a sufficient basis to warrant striking out the notice of appeal.
Thirdly, the respondent's more significant complaint is that the notice of appeal does not comply with r 51.18 of the UCPR, specifically sub-rule 1 par (e), which requires that a notice of appeal must state "briefly, but specifically, the grounds relied on in support of the appeal". Reference in that rule to the grounds relied on indicates, by plain implication, that the appellant must identify in succinct but clear terms the errors alleged to have been made by the Court below.
It is not disputed by the respondent that the power to strike out a notice of appeal would only be exercised with significant caution. It is relevant to bear in mind, however, that if a notice of appeal is struck out an appellant can be given an opportunity to file an amended notice of appeal which is compliant with the rules: see eg Corporate Affairs Commission v Solomon [1989] NSWCA 51; see also with respect to pleadings, analogously, eg Tanious v South Eastern Sydney Local Health District [2015] NSWCA 356 at [15] and [18]; Bernard C Cairns, Australian Civil Procedure (13th ed, Thomson Reuters, 2024) at [6.580]. In other words, a strike out of the notice of appeal is not necessarily the end of the appeal.
The notice of appeal filed by Mr Warne is in the following form. The first six pages are the standard notice of appeal form of this Court completed only by handwritten annotations made on that document. Under the heading "Appeal Grounds" there is a handwritten annotation saying "Re Attached". Attached to the notice of appeal is then a typed six-page document of the following nature. The first one and a half pages are under the heading "Legal Action" and set out some context in which the appeal is brought. This is done in a narrative form of reciting a version of events as though it were evidence in an affidavit. There is then a second heading titled "Grounds for Appeal." Insertion of that heading seems somewhat arbitrary because the document then continues in the same narrative style. At no stage in the six pages is there anything which identifies grounds of appeal specifying errors in the judgment below. Indeed, it seems the judgment of Newlinds DCJ is only referred to once in the notice of appeal, and there are two other references to some evidence given during that court hearing both found on numbered page 4. It is clear that the notice of appeal does not come anywhere close to complying with the requirements of r 51.18 of the UCPR.
The judgment below was itself only some 27 paragraphs and three pages long. As Mr Warne has indicated in his submissions to me, his Honour considered that there were three key issues raised in the case before him, which his Honour resolved. It appears from the submissions of Mr Warne that he asserts his Honour erred in his conclusions on all three of those issues. Even so, I accept the submission of the respondent that neither it nor this Court should have to guess at the grounds of appeal.
Mr Warne has filed a document of some 100 pages said to be submissions in opposition to the application of the respondent to strike out his notice of appeal. Much of that material seems to be evidentiary in nature. It did include written submissions of some seven pages but those submissions did not grapple with the nature of the issues raised by the respondent as to the form in which the notice of appeal was expressed. As the respondent submitted, the written submissions put by Mr Warne in response to the strike out application seem, in substance, to be a regurgitation of submissions made to the Court below. Mr Warne seems to be under the misunderstanding that the issue raised by the motion was whether or not his claim before Newlinds DCJ had any merit. That is not the issue before me today. It is whether or not he has a notice of appeal which complies with the formal requirements of the rules. It is clear to me that the notice of appeal does not comply with those requirements. In particular, it does not briefly and specifically articulate the grounds relied on in support of the appeal.
To proceed on the basis of the current version of the notice of appeal would cause embarrassment, confusion, possible delay and undue costs. It is not in the interests of justice, taking account of relevant considerations in ss 56-60 of the Civil Procedure Act, that the appeal should proceed on the basis of the notice of appeal as currently drafted. That notice of appeal should be struck out. However, I am not persuaded the applicant should not be given another opportunity to seek to articulate his grounds of appeal and produce a notice of appeal that is compliant with the formal requirements of the rules.
It should readily be possible for Mr Warne to draft grounds of appeal of about half a page or so which crisply identify any asserted errors in the reasoning or conclusions of Newlinds DCJ. The notice of appeal should also identify in clear terms what orders are sought if the appeal were to succeed. Instead, all that is identified in the current version of the notice of appeal in relation to orders sought, so far as I can see, is "refund of all fees paid". Presumably what Mr Warne seeks is that the appeal be upheld with costs, the orders made by the District Court on 2 July 2024 be set aside, and instead of those orders the plaintiff's claim against him be dismissed with costs. Any amended notice of appeal should also comply with the required formalities including identifying the provision under which the appeal is brought and certifying that the amount in dispute exceeds $100,000.

Costs and orders

As regards costs of the motion before me, the respondent has not currently succeeded on competency for the reasons I have explained. In essence, however, that is only because I am prepared to allow some leniency taking account of the interests of justice in the case. The respondent has succeeded in its application to strike out the notice of motion. In the circumstances, it appears to me appropriate that the appellant bear the respondent's costs of the motion incurred to date.
The orders of the Court will be as follows: 1. Stand over prayer 1 of the respondent's motion filed on 23 August 2024 to 28 October 2024 before the Registrar of the Court of Appeal. 2. Direct that the appellant file any application for an extension of time, together with a supporting affidavit, by 23 October 2024. 3. Strike out the appellant's notice of appeal filed on 1 August 2024. 4. Grant the appellant leave to file an amended notice of appeal, compliant with the rules, by 23 October 2024. 5. List the matter before the Registrar of the Court of Appeal for directions on 28 October 2024. 6. The appellant is to pay the respondent's costs of the motion to date.

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: 11 October 2024

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