Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McEvoy v Wagglens Pty Ltd [2020] NSWCA 330 Hearing dates: 14 December 2020 Date of orders: 14 December 2020 Decision date: 14 December 2020 Before: Basten JA Decision: Notice of motion filed 8 December 2020 dismissed with costs. Catchwords: APPEAL – stay – application for stay of garnishee pending appeal – appeal from judgment in Division on appeal from Local Court – respondent seeking to enforce costs orders – garnishee order issued – whether application for leave had reasonable prospects of success – small amount relative to statutory threshold for appeal as of right – no statement of specific grounds – likelihood of success leading to reversal of costs orders – evidence of non-recoverability if payments obtained PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to issue for purposes of appeal – need to show arguable case for adducing further evidence on appeal PRACTICE AND PROCEDURE – appeal – submissions – application for waiver of rule limiting length of summary of argument – straightforward factual case – no basis for lengthy submissions Legislation Cited: Supreme Court Act 1970 (NSW), s 75A Category: Procedural and other rulings Parties: Fentin McEvoy (Applicant) Wagglens Pty Ltd (First Respondent) Roderick Cloonan Marr (Second Respondent) Representation: Counsel: Applicant unrepresented Ms K MacDonald (Solicitor) (Respondents) Solicitors: Applicant unrepresented KMD Law and Advisory (Respondents) File Number(s): 2020/173957 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: [2020] NSWSC 575 Date of Decision: 15 May 2020 Before: Ierace J File Number(s): 2019/45874 [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.] Judgment 1. BASTEN JA: The applicant, Fentin McEvoy, brought proceedings in the Local Court seeking to recover an amount of $26,250 from the first respondent, Wagglens Pty Ltd. The amount was claimed as unpaid wages due under a 12 month contract of employment which ran from 25 May 2011 to 25 May 2012. The matter had a chequered history in the Local Court; the claim was finally dismissed on 23 October 2018. A reopening application was dismissed on 4 December 2018. 2. On 11 February 2019, the applicant filed a summons seeking leave to appeal in the Common Law Division. (The summons and a number of other documents are missing from the white folder.) Judgment was delivered in the Common Law Division on 15 May 2020, refusing leave to appeal. 3. A notice of intention to seek leave to appeal from that decision was filed 11 June 2020, although the summons suggests it was served on 18 June 2020, a few days out of time. More significantly, the summons seeking leave to appeal was not filed until 20 October 2020, that is about two months out of time. There has been an exchange of affidavits between the parties which have been e-filed out of hours, and even the night before the hearing, which seems to be becoming a practice. I have not read the affidavits, which, it appears, related primarily to explaining issues of timing of the filing of documents and the proposal to adduce further evidence. 4. The matter is before the Court today, not to deal with the temporal issues, or the sufficiency of the white folder, but rather to deal with a notice of motion filed on 8 December 2020. That motion primarily concerns the enforcement of costs orders made against the applicant. An affidavit of the applicant dated 8 December 2020 stated that on 7 September 2020 the respondents had served an application for assessment of costs in relation to the Local Court and Supreme Court proceedings. The costs assessments were completed on 9 November 2020. 5. It appears that, having obtained certificates resulting from the costs assessments, the respondent obtained a garnishee order which was served on the Bank where the applicant held an account on or about 3 December 2020, as a result of which an amount of $1,603 was removed from the applicant's bank account. The applicant stated that he is currently in receipt of JobKeeper allowance. The statutory minimum credit balance remains. He stated that enforcement is causing him financial hardship. 6. The principal relief sought in the notice of motion is a stay of the enforcement of the costs orders, by way of the garnishee or otherwise. The applicant also seeks return of the amount taken under the garnishee. 7. The basis for staying the enforcement of the costs order can only be that, if the applicant is successful in obtaining leave to appeal and in the appeal, the costs order will be set aside. There is no suggestion that the amounts likely to be obtained under the garnishee will not be recoverable from the respondents. The applicant says that the effect of the garnishee is to impose significant hardship on him. 8. There are problems with the application. First, there is a substantial issue as to whether leave to appeal will be granted, the amount in dispute being far below the threshold for an appeal as of right. Secondly, there was no adequate explanation for the delay in seeking leave to appeal, although the applicant submitted in oral argument that the late filings were the result of the unavailability of registry services due to the pandemic. Thirdly, to obtain leave to appeal, the applicant must establish grounds of appeal which are more than merely arguable. It is by no means clear what those grounds are. Although the summary of argument states that the judgment appealed from contains "numerous errors of law and fact", those errors are not particularised. The onus is on the applicant to justify the stay of enforcement of orders which are properly made within jurisdiction. The criteria for the grant of a stay pending an application for leave to appeal have not been satisfied. 9. Order 3 in the notice of motion seeks to have the amount taken from the applicant's bank account by way of garnishee returned to the account. If a stay is not to be granted that order should not be made. But there are additional reasons for declining to make it. The applicant was on notice for months before the garnishee took effect that the respondent was seeking an assessment of costs and intending to enforce the outstanding unpaid costs orders. The applicant's affidavit notes that a stay of the costs orders had been in force before 2 July 2020 when it was rescinded. In any event the belated attempt to reinstate the stay does not permit an order making good the amount lawfully obtained under the garnishee. 10. Order 4 in the notice of motion seeks the issue of subpoenas and notices to produce. The apparent purpose of those steps was to obtain evidence to support the claims of entitlement to unpaid wages which accrued no later than 25 May 2012, more than eight years ago. The applicant explained that the reason for taking that step was because Ierace J had taken into account the fact that relevant documentation was missing from the evidence. It appears that the applicant anticipates a full hearing on the merits of his original claim to be conducted by this Court. That will not happen on a leave application, nor on an appeal if leave were granted. There was no basis demonstrated for the reception of further evidence: see Supreme Court Act 1970 (NSW), s 75A(7) and (8). The orders should not be made. 11. Finally, the applicant seeks leave to file a summary of argument twice the usual length, though not exceeding 20 pages. The reason given to justify that order is that the applicant's case is complex. Consideration of the summary presently filed indicates that the case will turn entirely upon factual issues within a narrow compass. The order seeking an expansion of the present limit on a summary of argument should not be granted, but the application for it reveals a clear misconception as to the nature of the matters that would be considered by this Court on a leave application, or indeed an appeal. 12. In the absence of any explanation for the delay in pursing the stay, given the indication that there would be attempts made to enforce the costs orders, and in the absence of any clear basis upon which this Court could be satisfied that leave would be granted, the proposed stay of the enforcement of the garnishee order should not be made. The other orders sought must be refused for the reasons outlined above. 13. The applicant's notice of motion filed on 8 December 2020 is dismissed with costs. ********** 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: 14 December 2020