Young v Roads and Maritime Services

Court of Appeal proceedings

1. On 28 January 2015 Ms Young filed a summons seeking leave to appeal against the orders of Hidden J of 29 October 2014. She filed an amended summons on 4 July 2016, seeking leave to appeal against the orders mentioned in [2] above.
2. On 21 July 2016 Ms Young filed in this Court a notice of motion in which she claimed the following orders: "1 Seeks an emergency hearing to have the Amended Summons Seeking Leave to Appeal; Leave to Appeal Submissions; Draft Notice of Appeal filed in court on 4 July 2016 expedited to address emergency situations set out in the reasons in the Affidavit of Support with annexures, to this Motion; that when leave is granted the Appeal is also expedited to be heard and determined as a matter of urgency and the orders sought in the Notice of Appeal to be implemented forthwith. 2 For a Stay of Button J. orders in the court below dated 22 April 2016 effective immediately. 3 For the respondent to provide Public Liability Insurance cover over the Subject Premises effective immediately."
3. This notice of motion was heard by Leeming JA on 25 July 2016. At the commencement of that hearing, Leeming JA asked Ms Young what she sought to achieve in the hearing. She answered: "I want the court to look at the dismissed default judgment and therefore, interim damages." She said that she wanted an urgent hearing for interim damages.
4. Leeming JA dismissed the notice of motion and gave directions concerning the applications for leave to appeal.
5. On 1 August 2016 Ms Young filed a further "Urgent Notice of Motion" in which she sought a variety of orders, including an order setting aside the order of Leeming JA of 25 July 2016 "for Procedural Irregularity pursuant to s 63 of the Civil Procedures [sic] Act 2005", to reinstate the notice of motion of 21 July 2016, for leave to amend that notice of motion, and other orders it is not necessary to mention.
6. With that rather lengthy history, I turn to Ms Young's applications for leave to appeal.

Orders of Hidden J: 29 October 2014

1. This was the judgment in which Hidden J declined to order expedition of the hearing of the summons seeking transfer. In her Amended Draft Notice of Appeal Ms Young identifies her grounds as follows: "a. Justice Hidden erred in not assessing the Summons subject matters relevant for transfer of the file was beyond the lower court's Jurisdictional limit; that the respondents in resisting the transfer abused the legal process which was a substantial irregularity. b. Justice Hidden erred and abused his discretionary powers in not giving proper consideration to the Applicants hardship on the evidence available and awarding interim damages to her."
2. In amended submissions filed in support of the application, Ms Young identifies as relevant questions: "Q Did the trial judge err in not assessing the Summons subject matters relevant for transfer was beyond the lower court's jurisdictional limits and the file should be transferred; Q Was it an abuse of process by the Respondent to resist the transfer to keep the file in the lower court with jurisdictional limits? Was it a substantial irregularity? Q Did the trial judge abuse his discretionary power in not giving proper consideration to the hardship of the Applicant and awarding interim damages on the evidence available to him?"
3. The only issue for determination by Hidden J on 29 October was whether Ms Young's summons seeking transfer ought to be expedited. The questions now raised by Ms Young did not arise, and, accordingly, could not be the subject of error. In particular, there was no jurisdiction to award "interim damages" (a subject to which I will return). No "abuse of process" by RMS or the State of NSW was raised in the proceedings.
4. Leave to appeal against the orders of 29 October 2014 ought to be refused.

Orders of Hidden J: 10 July 2015

1. In her Amended Draft Notice of Appeal Ms Young identifies 10 proposed grounds of appeal against the orders of Hidden J of 10 July 2015. It is unnecessary to set them all out. Some allege procedural unfairness. In Ground 2(b) Ms Young alleges error in Hidden J failing to find that RMS and the State of NSW were in default "under the law" in not having filed defences within the time limits specified by UCPR. She divided her submissions into those which are procedural, and those related to the reasoning in the judgment of 10 July. One procedural matter she raised was framed in the question: "Q Did the trial judge err in directing the Applicant to address the Respondents submission to strike out, that she had not prepared for? Was she unjustly prejudiced?" Another was framed as: "Q Did the trial judge err in not finding the Respondents were in default under the law by not filing defences or an appearance and there was no compliance with the [Civil Procedure Act]?"
2. As to the first, both the transcript and the judgment show that no application was made by RMS or the State of NSW for strike out at this hearing. The submissions show that Ms Young misunderstands the role that was played by the amended cross-claim, and by the attention directed to it in the hearing. The transfer application depended entirely upon the cross-claim; RMS's claim against Ms Young in the Local Court was for $6000 in allegedly unpaid rent; there was not the slightest reason for the transfer of that claim to the Supreme Court. It was the issues raised by the cross-claim that gave any legitimacy to the transfer application.
3. It was, therefore, appropriate for Hidden J to examine whether the cross-claim properly pleaded a cause or causes of action. That is what he did. Counsel for RMS and the State of NSW directed submissions to what she asserted to be deficiencies in the cross-claim, as a basis for refusal of the transfer application. Hidden J accepted those submissions. No arguable error is shown in this respect.
4. Ms Young asserts that she was entitled to default judgment on the expiration of 28 days from the filing of the cross-claim (in the Local Court) (see UCPR r 9.1, r 6.10(1)(a), r 14.3(1)), that is, on 4 August 2014. She sought default judgment on 5 September 2014.
5. The fallacy in Ms Young's argument is that exposed in [10] of the reasons of Hidden J. The Local Court proceedings had been stayed, meaning that no pleadings could be filed, and there were no proceedings in the Supreme Court in which to enter default judgment, either at the time she filed the notice of motion for default judgment, or at the time the proceedings were before Hidden J.
6. Ms Young also asserts procedural unfairness in that (she asserts) Hidden J did not read the cross-claim properly, or allow her summons for evidence to be heard. No evidentiary support is advanced for this proposition of fact, and the transcript, and the judgment, establish that it is unfounded.
7. With respect to the judgment, Ms Young complains that: "The trial judge ordered the Applicant [to] re-plead the Cross-claim." She repeated this assertion in oral submissions. It represents a misunderstanding of what Hidden J did, which I have endeavoured to explain above. What his Honour did was to find, in effect, that the cross-claim did not plead the necessary elements of any cause of action, and that the cross-claim was bad in substance and form. It was for that reason that he declined to transfer the proceedings; he nevertheless afforded Ms Young an opportunity to remedy the deficiencies in the cross-claim in such a way that she could further pursue her application for transfer. There was no order that she re-plead; Ms Young was afforded an indulgence of which, ultimately, she took advantage.
8. There is no substance in any of the grounds sought to be raised by Ms Young. The application for leave to appeal against the orders of 10 July 2015 should be dismissed.

Orders of Button J: 17 December 2015

1. This was the judgment in which Button J acceded to Ms Young's application to transfer the proceedings to the Supreme Court and ordered RMS and the State of NSW to pay her costs. It is difficult to see what complaint Ms Young can legitimately make about this judgment.
2. In the Draft Notice of Appeal she identifies as grounds: "a. Justice Button erred and the applicant was mistaken in the requiring of the filing of her amended cross-claim whilst to the intention for leave to appeal against Justice Hidden's orders had been filed and was pending. b. Justice Button erred as case manager in not making his own order and ordering the file transfer based on the Jurisdictional Limits of the lower court pursuant to s 140 of the [Civil Procedure Act] and case management requirements under s 57 of that Act, at the time the file transferred on 17 December 2015."
3. The first is answered in the same way as the assertion that Hidden J "ordered" Ms Young to file an amended cross-claim; Button J did not require Ms Young to file an amended cross-claim; there was no obligation on Ms Young to take advantage of the indulgence made available to her by Hidden J.
4. The second ground is difficult to understand. Ms Young again, in her amended submissions, posed as a relevant question: "Q Were [sic - where] the Respondents are in default and liability is admitted under the law, was the applicant's entitled to have the default motion assessed on the originating process for unliquidated damages and the default judgments entered against both respondents forthwith? Was she then entitled to an interim damages payment?"
5. The answer to this question is the same as that given in relation to the complaint about Hidden J's orders of 10 July 2015. At the time of hearing before Button J, as was the case in the hearings before Hidden J, there were no proceedings in the Supreme Court that could be the subject of default judgment. Nor could the proceedings in the Local Court be the subject of default judgment, because that court had, at Ms Young's instigation, ordered that they be stayed.
6. There is no substance in any of the grounds sought to be raised in respect of the orders of 17 December 2015. Leave to appeal should be refused.

Orders of Button J: 22 April 2016

1. The grounds identified in the Amended Draft Notice of Appeal are many; predominantly, they focus upon Ms Young's contention that, by failing to file a defence to the cross-claim, RMS and the State of NSW were in default, and default judgment ought to have been entered, thus entitling Ms Young (on her contention) to an immediate assessment of damages.
2. In order to consider this contention, it is necessary to return to the timetable of events.
3. The cross-claim was filed in the Local Court on 10 July 2014 and served on 14 July 2014. However, as I have repeatedly said, on Ms Young's application, those proceedings were stayed; that is, no defence could be filed to the cross-claim. The orders of the Local Court specifically permitted Ms Young to file an amended defence and cross-claim, but made no such concession in relation to RMS or the State of NSW.
4. Ms Young filed her amended cross-claim in the Supreme Court on 20 November 2015; however, that was at a time prior to the transfer of proceedings, and there were no proceedings in the Supreme Court in which a defence to the cross-claim could be filed. It was not until 17 December 2015 that the proceedings were transferred to the Supreme Court. It may be assumed that, on that having happened, the stay no longer operated. Time for filing a defence, as set out above, is 28 days: that is, 14 January 2016.
5. It was not until 22 February 2016 that RMS and the State of NSW filed a notice of motion seeking summary dismissal or striking out of the pleadings. There is, so far as I can see, no stay of proceedings that results from filing such a notice of motion.
6. It may be arguable that, from 14 January 2016, RMS and the State of NSW were in default.
7. In the proceedings before Button J on 10 March Ms Young urged that default judgment be entered. She filed written submissions detailing her position. There, she continued to rely on the cross-claim filed in the Local Court, and asserted that RMS and the State of NSW had been default since 7 August 2014. She continued to rely on the notice of motion seeking default judgment filed in the Supreme Court and served on 5 September 2014, notwithstanding its obvious incompetence.
8. Nowhere did she address any argument to the proposition that, on transfer of the proceedings, including the amended cross-claim, time began to run. For that reason, Button J did not deal with any such proposition. In dealing with Ms Young's contentions in relation to default judgment he addressed the arguments put to him by Ms Young in written and oral submissions.
9. There can be no error in this approach.
10. There is, however, one respect in which Ms Young may be on solid ground. In striking out the amended cross-claim, Button J must be taken to have been exercising the discretion conferred by UCPR r 14.28, which permits such a course if the pleading: "(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court."
11. Having made that order, his Honour made further orders, as set out above, in the following terms: "(5) Ms Young must apply to a judge of this Court for leave to file any further pleading in either of the proceedings in this Court. (6) Any such application must be by way of a filed and served notice of motion, with affidavit evidence in support, and include drafts of all pleadings proposed to be filed." Button J explained this by saying: "77 … I think it appropriate that a degree of rigour be imposed upon the process of the unrepresented plaintiff re-pleading again. To my mind, the plaintiff should require leave of a judge of this Court before she files further pleadings."
12. I am not aware of any statutory authority for such an order, which Ms Young expressly challenges in the Amended Draft Notice of Appeal, in the ground expressed as follows: "Justice Button erred in making erroneous orders in the judgment against the Applicant akin to a vexatious litigants order without cause or the giving of reasons or proper reasons, at Orders 5, 6 and the striking out of the Local Court Amended Defence at Order in the judgment of 22 April 2016, which unjustly prejudiced the Applicant and was manifestly unreasonable."
13. The reference to "a vexatious litigants order" may be taken to be a reference to s 8 of the Vexatious Proceedings Act 2008 (NSW), which permits the court, where (inter alia) a person has frequently instituted or conducted vexatious proceedings, to make orders, staying all or part of any proceedings already commenced and prohibiting the person from instituting proceedings. Where such an order is made, the person the subject of the order may, by s 14, apply for leave to institute proceedings. It is by analogy with that legislation that Ms Young complains that she was treated "akin to a vexatious litigant". There was no application, and certainly no finding, under the Vexatious Proceedings Act.
14. RMS and the State of NSW addressed no argument to these orders. In my opinion, it is at least arguable that they are beyond power. I would grant Ms Young leave, to this limited extent, to appeal against the orders of Button J of 22 April 2016.
15. Two themes permeated Ms Young's submissions, both of them fallacious. The first, of which I have already disposed, was that she was entitled to, and ought to have been granted, default judgment.
16. The second depended upon the first. It was that, if default judgment were entered, she could proceed to an award of interim damages. She relied upon s 82 of the Civil Procedure Act 2005 (NSW), which relevantly provides as follows: "(1) In any proceedings for the recovery of damages, the court may order a defendant in the proceedings to make one or more payments to the plaintiff of part of the damages sought to be recovered in the proceedings. (2) … (3) The court may not make such an order unless: (a) the defendant has admitted liability, or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed, or (c) the court is satisfied that, if the proceedings went to trial, the plaintiff would obtain judgment for substantial damages against the defendant. …"
17. Ms Young contended (erroneously) that the failure of RMS and the State of NSW to file defences to the cross-claim carried the consequence that they were taken to have admitted liability; alternatively that, the notional entry of default judgment satisfied sub-par (b); alternatively, the court ought to be satisfied that, if the proceedings went to trial, she would obtain judgment for substantial damages against RMS and the State of NSW.
18. Since I have concluded that Ms Young's primary contention, concerning default judgment, should be rejected, the second question does not arise. However, it is not necessarily the case that she would be able to proceed to an award of interim damages without more. Such damages would have to be assessed, on the basis of evidence adduced. The case proposed by Ms Young is complex, not susceptible of ready assessment. It is, at least, very unlikely that a court would award interim damages in a case such as this.
19. Ms Young persisted in her misunderstanding of s 82, believing that, if the orders made by Leeming JA on 25 July 2016 were set aside, this Court would itself proceed an assessment of damages. That, too, is a misconception. It may be that Ms Young has been led into the misconception by the fact that, on rare occasions, this Court has assessed damages. That, however, occurs only after a successful appeal, when the relevant evidence has been taken by a first instance court, and the circumstances are such that, under s 75A of the Supreme Court Act 1970 (NSW), this Court is in a position to make its own assessment.
20. That is not this case. There is no basis in all of the material I have reviewed for concluding that the Supreme Court, let alone this Court, could have made or could make an award of interim damages under s 82.
21. I have set out above the notice of motion and the proceedings that came before Leeming JA on 25 July 2016. By "Urgent Notice of Motion" filed on 1 August 2016, Ms Young now seeks that that order be set aside (for "procedural irregularity"), and the notice of motion be "reinstated", and consequential orders. She has filed an affidavit, purportedly in support of the notice of motion. The content of the affidavit predominantly goes to explain what she sees as the urgency of the application. She asserts that Leeming JA declined to deal with part of her application on the basis that it could not be dealt with by a single judge. She asserts that this is a procedural irregularity, known to RMS and the State of NSW.
22. No arguable error in the approach taken by Leeming JA has been identified.
23. I would dismiss the "Urgent Notice of Motion" filed on 1 August 2016.
24. The orders I propose are: (1) Leave is granted to the applicant to appeal against Orders (5) and (6) of the orders of Button J of 22 April 2016; (2) The Amended Summons Seeking Leave to Appeal filed on 4 July 2016 is otherwise dismissed; (3) The "Urgent Notice of Motion" filed on 1 August 2016 is dismissed.

Amendments 21 September 2016 - Coversheet: correction to solicitor for respondents 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 September 2016