NORRIS v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P and PRIESTLEY JA 28 April 1997 [1997] NSWCA 228 Mason P. On 12 December 1995 following proceedings heard by judge alone, Mr Justice Badgery-Parker found a verdict in favour of each plaintiff, Garry Norris and Garry Norris Home Improvements Pty Ltd, against Illawarra Newspaper Holdings Pty Ltd for defamation. The verdict in favour of Mr Norris was $65,920 and that in favour of his company in the sum of $26,175. Each appellant appealed as of right to the Court of Appeal from the decision of his Honour. The amended notice of appeal sets out the grounds of appeal and they include: a claim of procedural unfairness; criticism of comments of the judge; failure to give proper effect to the law of defamation; and complaint about the insufficiency of the damages that were awarded. A new trial before judge and jury was sought. The appeal papers are in the course of preparation for the hearing of the substantiveappeal which has yet to be fixed for hearing. By notice of motion dated 14 March 1997 Mr Norris and his company, the appellants, sought various orders in the Court of Appeal. The hearing of this application took place before Registrar Jupp and from the orders made by Registrar Jupp the appellants appealed to this court. In the notice of motion the appellant sought an order for expedition of the appeal. The Registrar referred that matter to the judge who deals with such applications, currently Mr Justice Powell, and I do not understand that part of the Registrar's decision to be under attack. The second substantive application made in the notice of motion was for an order that the first respondent, that is Illawarra Newspaper Holdings Pty Ltd, return to the second-named plaintiff the awarded moneys of $20,000 plus interest of $6,175 which was, as I have already indicated, the amount of the verdict entered by Mr Justice Badgery-Parker in favour of that plaintiff. In the hearing before the Registrar reference was made to an affidavit which established that the judgment debt awarded in favour of Mr Norris" company was the subject of garnishee proceedings in the District Court. There was a garnishee order dated 2 January 1995 issued on behalf of Alessio Sidoni and since it was for a sum of $79,000 odd the affidavit of Ms Norman that was referred to before the Registrar established that pursuant to the procedures following that garnishee order in effect the entire amount of the verdict in favour of Mr Norris" company was diverted to Mr Sidoni, a judgment creditor of that company. Mr Norris has very helpfully set out for the court in written submissions his various complaints about the proceedings and the rulings made by Registrar Jupp and that document will be treated as Ex A in this appeal and will be filed with the court papers. One complaint that is made was that the affidavit of Ms Norman which is referred to in the decision of the Registrar was not read. In one sense it was not although in reaching that view Mr Norris has misunderstood what is a common procedure in courts whereby papers are referred to, what lay people 2 UNREPORTED JUDGMENTS would say to be treated as read. As long as it is made plain that the material in those papers is intended to be taken into account then, subject to any cross-examination or other evidence or objection, it may be taken into account. I do not see that the Registrar erred in any way in having regard to the affidavit of Ms Norman. The transcript records that Mr Norris was asked whether he had any formal objections to that affidavit which Mr Casperson had said he wished to rely upon and Mr Norris said he did not. Whether or not there was any irregularity in the procedure pursuant to which the moneys were garnisheed is a matter which depends upon the procedures of the District Court out of which the garnishee order issued in favour of the District Court judgment creditor, Mr Sidoni, against the District Court judgment debtor, Garry Norris Home Improvements Pty Ltd. Mr Norris complains that the Registrar's proceedings were in effect, to use his word, 'derailed' because the Registrar refused to have regard to all of the material that had been filed on behalf of Mr Norris and which he indicated to the Registrar he wished to be taken into account. Again, I think that indicates a misunderstanding of the way in which courts function. Any court, this court and Registrars of this court, must have jurisdiction before it can entertain proceedings and must be satisfied that they have that jurisdiction before they can embark upon a consideration of the merits of the issues that are raised. To give a hypothetical example, one could not bring a charge of murder before a civil magistrate and expect that the case would be heard simply because the plaintiff wanted it to be heard. What the Registrar has done in this case as regards the challenge to the garnishee order is to say for the reasons set out in his judgment, which I am content to adopt, that the place at which to complain about the garnishee proceedings is the District Court. I see no error in that ruling. In doing so, I emphasise that I am not suggesting I am aware of anything wrong with those proceedings, simply that the Registrar was saying that is not a matter that was part of the procedural steps involved in the appeal. In relation to that matter and the other matter to which I will come, it is critically important to note that what the Registrar is concerned with are the procedural steps directed towards bringing on for hearing the appeal in this court, being the appeal on the grounds raised by Mr Norris and his company in their own Amended Notice of Appeal. If the Court of Appeal and its Registrar were diverted from being focused upon those procedural steps, then the appeal would never come on. Hence it is important for the benefit of both parties that attempts by either party to 'derail' the appeal be met by being treated as irrelevant, even if that means sending the disappointed party to the more appropriate venue. The third matter raised in the notice of motion before the Registrar was a series of orders against Hancock Aldiss, lawyers, who were the solicitors for Mr Norris and his company in the defamation proceedings before Badgery-Parker J. The substantive matters raised in the notice of motion concern documentation and money. As regards documentation, the order sought was that all documentation supplied to the solicitors for the running of the trial be returned. The evidence before the Registrar indicated, as I understand it, that a lien was claimed by the solicitors over those documents. There are procedures for challenging the correctness of such a claim but those procedures are not part of the proceedings in the Court of Appeal which, as I have said, are focused and must remain focused upon disposing of the issues before the Court of Appeal. URJ NORRIS v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD (Mason P) 3 The Registrar held, and again I am content to adopt his reasons, that there was no case made out for Mr Norris having to have those documents for the purpose of prosecution of the appeal; but even if that were wrong, the place at which to prosecute such an application would appear correctly to be a place other than before the Registrar of the Court of Appeal. The second orders or set of orders sought against the solicitors related to a dispute between Mr Norris and his former solicitors about the fact that they had deductedfrom the verdict moneys paid to them by the newspaper a large sum of money on account of their costs. As the Registrar points out in his judgment, and again I am content to adopt it, there were and indeed I think are still outstanding disputes as to the amount of the costs as between solicitor and client. However, the evidence clearly established that there was an irrevocable authority signed authorising the solicitors to deduct a sum of money on account of costs from the balance of the moneys held in their trust account being the verdict moneys that had presumably been paid to them. The authority had been signed as part of a compromise which would allow the solicitors" file to be released to a costing consultant so that a bill of costs could be prepared in connection with the costs dispute. As I have said, that costs dispute is still outstanding. That costs dispute will need to be prosecuted to completion and when the full amount of the costs are known then it will be possible to see whether too much has been deducted pursuant to the irrevocable authorities that the solicitors held. The Registrar held that the matter of accounting between the solicitors and their former client was a matter extraneous to the prosecution of the appeal and to the Registrar's powers to make procedural rulings directed to the proper conduct of the appeal. I can see no error in that. Again, I would respectfully adopt the reasoning of the Registrar as to why that was not a matter which it was proper to bring forward before the Court of Appeal as a procedural dispute relevant to the conduct of the appeal itself. In Exhibit A in these proceedings, the written outline of submissions that Mr Norris has tendered today and read to the court, there are other complaints about aspects of the Registrar's judgment. Some of the complaints are that the Registrar dealt with matters that he did not have to deal with or that he made comments which were beyond the particular matter in issue. Whether that be the case or not, and it very frequently is the case that judicial officers say more than they have to do in the endeavour to fully explain their reasons, none of the matter which is referred to in this written submissions indicates that the Registrar erred in his disposal of the motions for relief that were before him. Accordingly, I would propose that the application before us, which is for a review in the nature of an appeal from the Registrar's judgment of 21 April 1997 should be dismissed with costs. Priestley JA. I agree. Mason P. That is the order of the court. NORRIS: Excuse me, your Honour, you did not make any mention of order 4 either, the same as Registrar Jupp and in regards I suppose the expedition of my appeal. MASON P: I mentioned the expedition. The papers have been referred to Powell J who deals with all applications for expedition. 4 UNREPORTED JUDGMENTS Norris: Your Honour, your Registrar indicated to me at the hearing on 3 March 1997 that the earliest I could have my appeal would be two months and then says no more about it until I receive the judgment, now it has been thrown into another court. I wouldn't know where it is. I have been told it could be years now and I don't even get a satisfactory resolution to that in any way. Priestley JA. I think you have misunderstood. If I have got it right, the respondent in the appeal has signed a document saying it consents to the application for expedition being granted and when that happens, cases where both sides are asking for expedition go to Powell J and he decides if expedition will be grantedand then makes orders as a result of which the Registrar will fix a hearing date. I think the Registrar thought that that should wait until he had decided your notice of motion which took place last Monday. Now it is finally decided and now Powell J will go ahead without any further representation from anybody or further court hearing to make an order either granting the application for expedition or not granting it and you should hear from him very shortly. NORRIS: Thank you, your Honour. I appreciate that. I believe all matters in relation to the collecting of the costs order, I believe any matters virtually nearly finalised, we have had a torrid time in trying to get the second named respondent to cooperate. It's fine that they take my verdict moneys and it's been upheld by the court that they be allowed to keep them. Does the court make any order along the way that I have to get my costs moneys? Me and my son have had to fight a defamation action that has been devastating on me financially, on me personally, on my life and my family and I have never been afforded an opportunity to express the damages that it has caused on me. We live in sub-standard conditions now, my son and I, I mean sub-standard conditions, because of all the damages that were caused by this and we — I have had to withstand them all and yet everybody takes our verdict money, our costs money, everybody gets a costs order. This costs order, I have been trying to collect it for 16 months now. Me and my son live in sub-standard conditions thanks to the actions of the parties around us where they can't even compromise and stick to the agreements that have been made. All I am asking is: is there any way this court can at least expedite that for me, not for the reasons that Registrar Jupp set out, not to fund my appeal, so that the damage that has been caused by these people and I have had to withstand, it has never been aired in any court, I am asking that we get this costs order sorted out so that I might be able to afford my son a normal life and I might be able to have one myself, so I can get the costs order dealt with, it has never been done. Mason P. I am sure your opponents have heard what you have said. I trust that the matter will be dealt with as quickly as possible. NORRIS: In regard to costs, I do believe that it is very, very severe of your order to be awarding costs against me. I brought this motion certainly for expedition and certainly for the judge's awardments of my money which has been withheld from me. For the hearings that have been through last week, today and two times before that, for the results of the decision the costs are going to be a little bit expensive, all for something that could have been decided upon, I asked the Registrar for directions in this matter, I received directions and was told to do certain things, including the parties and the parties got my documentation together, I have done it all only to find out right down the bottom of the hearing now that we are in the wrong court. The costs of this, I mean these people are going to try to charge, they already are, for certain things, everything that they URJ NORRIS v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD (Mason P) 5 can possibly lay their pen to. I am just bewildered of the orders of court. After all this time we find out we are in the wrong court and to be penalised so heavily only for what is mine and for a costs order to be made against me too I think is astronomical. Orders accordingly.