Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mahommed v Unicomb [2021] NSWCA 108 Hearing dates: On the papers Date of orders: 28 May 2021 Decision date: 28 May 2021 Before: Macfarlan JA; Payne JA Decision: (1) Extend the time for filing the summons seeking leave to appeal to the date upon which it was in fact filed. (2) Dismiss the summons with costs. Catchwords: CIVIL PROCEDURE — proceedings in Equity Division dismissed by first judge — application to second judge to set aside dismissal — application refused as in substance simply an attempt to reargue first decision — leave to appeal against second decision refused Legislation Cited: Civil Procedure Act 2005 (NSW), s 91 Limitation Act 1969 (NSW) Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), rr 12.10, 36.16(3A) Cases Cited: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 De Varda v Austin [2019] NSWCA 133 Mendonca v Tonna (No 3) [2020] NSWCA 332 Category: Principal judgment Parties: Peter Shah Mahommed (Applicant) Pamela Margaret Unicomb (First Respondent) Greenhills Securities Pty Limited (Second Respondent) Representation: Counsel: L Smits (sol) (Applicant) D Allen (First and Second Respondents) Solicitors: Leonardus Smits Lawyers (Applicant) Kekatos Lawyers (First and Second Respondents) File Number(s): 2021/18226 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2020] NSWSC 1312 Date of Decision: 29 September 2020 Before: Parker J File Number(s): 2016/53923 [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. THE COURT: This judgment relates to a summons seeking leave to appeal filed by Mr Peter Mahommed on 20 January 2021. The respondents are Ms Pamela Unicomb and Greenhills Securities Pty Limited ("Greenhills"), with whom Mr Mahommed had business dealings some years ago. 2. The summons seeks leave to appeal against a decision of Parker J dated 29 September 2020 ([2020] NSWSC 1312). For the reasons appearing below we have concluded that leave should be refused. 3. Parker J's decision was given in proceedings commenced by Mr Mahommed, and another plaintiff, against Ms Unicomb and Greenhills in 2016. The other plaintiff's claim is no longer pursued and Mr Mahommed's claim against Ms Unicomb was dismissed by Robb J on 13 February 2019 following earlier judgments of his Honour of 9 March and 25 September 2018 ([2018] NSWSC 291 and 1450). His Honour gave directions for the further conduct of Mr Mahommed's claim against Greenhills. That claim is still on foot and the present summons has no bearing on it. 4. Mr Mahommed did not seek to appeal against Robb J's dismissal of his claim against Ms Unicomb but instead filed in the Equity Division on 27 February 2019 a notice of motion that relevantly sought an order setting aside the order made by Robb J dismissing Mr Mahommed's claims against Ms Unicomb. Other orders were sought but they were only relevant if the dismissal order was set aside. 5. In his judgment of 29 September 2020 Parker J recognised that as Mr Mahommed's notice of motion was filed within 14 days of the dismissal order being made, the Court had power under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 36.16(3A) to set the order aside. His Honour further proceeded on the basis, again correctly, that that power ought not to be exercised for the simple purpose of reviewing an earlier decision of the same court in the manner that that would occur on appeal. As his Honour considered that Mr Mahommed's application was in substance an attempt to reargue the merits of Robb J's decision, he declined to exercise his power to set aside the dismissal order. His Honour added that in any event, if the merits of Mr Mahommed's arguments had been relevant, he would have rejected the arguments and confirmed the correctness of the dismissal order. 6. Following Parker J's decision, Mr Mahommed promptly attempted to file a notice of intention to appeal against it. Parker J's decision was however only interlocutory and Mr Mahommed has no right of appeal against it. To challenge it he requires leave to appeal. He did not realise this until informed by the Court registry late in December 2020. Mr Mahommed thereafter, again promptly, filed his summons seeking leave to appeal which is the subject of this judgment. As Mr Mahommed made an early attempt to appeal against Parker J's decision and acted promptly when he realised that his belief that he had a right of appeal was mistaken, the Court will grant him an extension of time for the filing of his summons. 7. Mr Mahommed's summons must however be dismissed because there was no error in the course taken by Parker J. His Honour was correct to decline to entertain what was in effect simply an application to reargue what had been determined by Robb J, even though Robb J's order was interlocutory in character. As Mason CJ said in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 301-302; [1993] HCA 6, the exercise of jurisdiction to re-open a judgment "is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation" (see also Mendonca v Tonna (No 3) [2020] NSWCA 332 at [7]). Ordinarily for the jurisdiction to re-open to be exercised in relation to an interlocutory order, an applicant must establish "a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application" (Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46; see also De Varda v Austin [2019] NSWCA 133). Neither of those matters has been shown to exist in the present case. 8. In conclusion we note the following two points. 9. First, s 91 of the Civil Procedure Act 2005 (NSW) provides that a dismissal of proceedings does not, subject to the terms on which the order for dismissal was made, prevent a plaintiff from bringing fresh proceedings. There was no such relevant term of the dismissal in the present case. Further, the provision is stated not to apply if the dismissal follows a determination on the merits, but that did not occur here. As a result, Mr Mahommed might theoretically be able to bring fresh proceedings against Ms Unicomb but the passage of time may mean that the Limitation Act 1969 (NSW) would preclude that occurring and in any event Mr Mahommed might have to pay the costs of the dismissed proceedings before doing so (see r 12.10 of the UCPR). That there is at least a theoretical prospect of further proceedings being brought is the reason that a dismissal order such as made by Robb J is interlocutory, resulting in leave being required for any appeal against it (see Supreme Court Act 1970 (NSW) s 101(2)(e)). 10. Secondly, in his judgment of 29 September 2020, Parker J referred at [127] and [128] to the dismissal by Robb J of Mr Mahommed's claim against Ms Unicomb as a final order. This was, with respect, incorrect, as for the reasons just given the dismissal did not, at least theoretically, preclude further proceedings being commenced. The order was therefore interlocutory. That error did not however affect the substance of Parker J's reasoning which was that the appropriate course for Mr Mahommed to take was to pursue such appeal rights as he had, rather than seeking to have the dismissal application re-heard by another judge of the Equity Division. 11. For these reasons, the Court makes the following orders: 1. Extend the time for filing the summons seeking leave to appeal to the date upon which it was in fact filed. 2. Dismiss the summons 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: 28 May 2021