Kingsman v Health Administration Corporation [2000] NSWCA 163

New South Wales Court of Appeal

CITATION : Kingsman v Health Administration Corporation [2000] NSWCA 163 revised - 5/07/2000 FILE NUMBER(S) : CA 40278/00 HEARING DATE(S) : 3 July 2000 JUDGMENT DATE : 3 July 2000

PARTIES : Walter Frederick Kingsman - Appellant/Opponent Health Administration Corporation - Respondent/Claimant JUDGMENT OF : Meagher JA at 13; Giles JA at 1; Fitzgerald JA at 14

LOWER COURT JURISDICTION : Supreme Court LOWER COURT 13327/93 FILE NUMBER(S) : LOWER COURT James J JUDICIAL OFFICER :

COUNSEL : Appellant/Opponent in person P R Garling SC & S A Woods - Respondent/Claimant SOLICITORS : Appellant/Opponent in person Lynn Boyd, Sydney - Respondent/Claimant CATCHWORDS : NOTICE OF APPEAL - did not identify proper basis for appeal - abuse of process - inherent power to strike out. DECISION : (1) Notice of appeal struck out. (2) Opponent to pay claimant's costs.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40278/00 CL 13327/93

MEAGHER JA GILES JA FITZGERALD JA Monday 3 July 2000 Walter Frederick KINGSMAN v HEALTH ADMINISTRATION CORPORATION JUDGMENT 1 GILES JA: This is an application by the respondent to an appeal for an order that the notice of appeal be struck out. 2 The application is made by notice of motion, and is founded in the alternative on Pt 15 r 26 of the Rules, Pt 65 r 5 of the Rules or the Court's inherent power to control its process. The claimant's submission is that the grounds of appeal fail to identify any proper basis for an appeal against the judgment below, and in particular that their deficiency is such that they do not, as is required by Pt 51 r 11 of the rules, state the grounds relied on for the appeal. In these circumstances, it is said, the notice of appeal is in law an abuse of the process of the Court. 3 I do not doubt that this Court has an inherent power to strike out a notice of appeal if it be an abuse of the process of the Court. It is not necessary to consider the application of the Rules. The question is whether the notice of appeal is of that character, and so obviously so that the summary jurisdiction should be exercised. 4 In the proceedings below the opponent claimed damages for personal injuries, alleging that he suffered those injuries as a result of treatment received while a patient in Chelmsford Private Hospital. He named the claimant as defendant. It appears from the reasons of the trial judge that there was a considerable question over whether it was an appropriate defendant. His Honour reached the point at which he was content to proceed on the basis that it owed a duty of care to the opponent, but he went on to find that breach of any duty of care it may have owed had not been established, and further that such damage as the opponent may have suffered as a result of his treatment in Chelmsford Private Hospital had not been shown to have been caused by the claimant's negligence. Accordingly, after indicating some findings relevant to quantum, his Honour gave judgment for the claimant. 5 One matter with which his Honour dealt was a question of Crown immunity. The claimant alleged in its defence that at the time any cause of action accrued it was "in truth an emanation of the Crown in the right of the State of New South Wales and entitled to Crown immunity". Whether or not this was a maintainable defence was not decided by the trial judge, and nothing need be said about it now. It is evident from his Honour's reasons that the opponent took from the reference to Crown immunity that reliance was being placed on the public interest immunity relevant to production of documents or the giving of evidence. His Honour observed that the opponent, as a lay person, misunderstood the defence, and that the submissions which the opponent made to the effect that a claim for Crown immunity had to be supported by an affidavit of the relevant Minister or Permanent Head were misguided. From the opponent's repetition before us of a similar point in relation to so-called Crown immunity, it seems that the same misapprehension has continued. It does not matter, because the reason the opponent failed in his claim for damages had nothing to do with Crown immunity either as pleaded by the claimant or so far as appears public interest immunity. 6 The notice of appeal contains twenty three paragraphs. They could not properly be called grounds of appeal. They seem to embody two essential complaints. 7 The first is that the trial judge failed in his duty to refer the matter to the International Court of Justice, to the High Court and to the Attorneys General. There was some disagreement before us about whether or to what extent his Honour had been asked to do so, but again it does not matter. There was no obligation on his Honour to refer the proceedings to any of the bodies or persons mentioned, nor could he do so. His Honour's duty was to hear and determine the opponent's proceedings, which he did. So far as the opponent in his submissions before us relied on ss 30 and 78B of the Judiciary Act, nothing in the proceedings as appearing from the reasons for judgment or in the notice of appeal raised or raises a matter within those provisions. 8 The other complaint is as to the question of Crown immunity to which I have earlier referred, that the trial judge did not require the claimant to follow the procedure of having an affidavit sworn by the Minister or the Permanent Secretary. Without going into the opponent's misapprehension, he did not lose in the proceedings below for any reason to do with that, and no proper ground of appeal can be put forward. 9 At the conclusion of the notice of appeal, under the heading "Conclusions", it is asserted that the trial judge was "in collusion with the defendant and counsel for the defence, for the purpose of protecting and hiding the defendant a Minister of the 'Crown' and the government from prosecution and public and international exposure in this matter"; and that "the trial judge made his judgment based on his allegiance to her Majesty Queen Elizabeth II, and not on any principle of 'law'." It is enough to say that there is no substance in these assertions. 10 In my opinion on the face of the notice of appeal its maintenance would constitute an abuse of the process of the Court, and in the exercise of the Court's inherent power it should be struck out. 11 The opponent in his submissions to us said that the claimant's notice of motion should itself be struck out, because it had no substance, did not indicate grounds or the evidence relied on, was "ill-prepared" and was not supported by an affidavit. It did not need evidence or an affidavit in support, because the claimant relied solely upon what appeared on the face of the notice of appeal. The grounds were made clear. For the reasons I have given, I think the notice of motion has substance, and there was no deficiency in its framing. 12 I propose an order as claimed in the notice of motion, namely, that the notice of appeal be struck out. 13 MEAGHER JA: I agree 14 FITZGERALD JA: I agree. GARLING: We also seek an order for costs. MEAGHER JA: Having lost substantially, I do not think you can resist an order for costs, Mr Kingsman. Whether Mr Garling's client will endeavour to enforce such an order is of course another matter but I do not see you can resist the making of such an order. Is there anything you wish to say on it?