Lawrance v. Hodges [2005] NSWCA 70

New South Wales Court of Appeal

Lawrance v. Hodges [2005] NSWCA 70 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 March 2005

JUDGMENT DATE: 14 March 2005

JUDGMENT OF: Beazley JA at 1; Hodgson JA at 2; Pearlman AJA at 19

DECISION: Claimant's Notice of Motion filed 25 February 2005 dismissed. No order as to costs.

CATCHWORDS: APPEAL - PROCEDURE - Application for leave to appeal - That application dismissed - Claimant claims to have appeal as of right - What procedural steps are open.

LEGISLATION CITED: Supreme Court Act, s.101(2)(l), s.101(5)

CASES CITED: Lawrence v. Nikolaidis (2003) 57 NSWLR 355

Aroha Lawrance - claimant PARTIES: Stephen Hodges - opponent

FILE NUMBER(S): CA 40794/04

Ms. Lawrance appeared in person COUNSEL: No appearance for Mr. Hodges

LOWER COURT JURISDICTION:

LOWER COURT JUDICIAL OFFICER: Santow JA

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40794/04

BEAZLEY JA HODGSON JA PEARLMAN AJA

Monday 14 March 2005 LAWRANCE V. HODGES Judgment 1 BEAZLEY JA: I will ask Hodgson JA to give the first judgment in this matter. 2 HODGSON JA: On 16 August 2004, Windeyer J dismissed proceedings brought by the claimant against a number of defendants. The claimant sought leave to appeal from that decision, and that application for leave was dismissed by the Court of Appeal (Sheller and Tobias JJA) on 10 December 2004. 3 Shortly after 16 August 2004, the claimant commenced proceedings in the Common Law Division against five defendants, alleging that each of them was guilty of contempt of court by reason of failure failed to comply with a subpoena returnable before Windeyer J on 16 August 2004. Those proceedings came before Smart AJ on 6 September 2004, and he ordered that they be struck out. 4 On 20 September 2004, the claimant filed a summons for leave to appeal from that decision, naming one of the defendants in those proceedings, Stephen Hodges, as opponent. That application also came before Sheller and Tobias JJA on 10 December 2004, and an exchange occurred which the Court understood as a withdrawal of the application, following which the Court dismissed the application with costs. 5 On 31 January 2005, Registrar Schell dealt with an application by the claimant for an order in effect restoring the matter and giving it a hearing date. That application was refused. The claimant filed a Notice of Motion seeking that this decision be overturned, and that application came before Santow JA. On 14 February 2005, Santow JA dismissed the application, and ordered that the claimant pay the opponent's costs of it. 6 The claimant now seeks that this decision be reviewed under s.46(4) of the Supreme Court Act. 7 In substance, what the claimant says is that on 10 December 2004, she did not withdraw her application, but rather indicated to the Court that she did not need leave to appeal and wanted the matter to be given a date. In substance, this is the result the claimant now seeks from this Court. 8 The difficulty with this is that the only proceedings challenging the decision of Smart AJ that the claimant has commenced in the Court of Appeal are proceedings commenced by summons for leave to appeal, and that has been dismissed by the Court on 10 December 2004. That decision of the Court cannot be set aside by us, or by Registrar Schell or by Santow JA. For that reason alone, the present application must be dismissed. 9 I should mention that there are procedural steps that could possibly be taken if the claimant wishes to pursue an appeal from Smart AJ's decision. However, there are substantial difficulties in the way of all these steps. 10 One possibility is for the claimant to apply for leave to file a Notice of Appeal out of time, on the basis of her claim that there is an appeal as of right. This claim is based on s.101(5) of the Supreme Court Act, which is in the following terms: 101(5) An appeal lies to the Court of Appeal from any judgment or order of the Court in a Division in any proceedings that relate to contempt (whether civil or criminal) of the Court or of any other court. 11 That provision has to be read in the light of s.101(2), which provides that an appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from: (l) a judgment or order of the Court in a Division on an application for summary judgment under the rules 12 There could be a question as to which of these provisions prevails. 13 Even if the claimant has an appeal as of right, there is a real question whether an extension of time would now be granted to bring such an appeal, having regard to its prospects. It is not clear from the material before us whether the subpoena issued to the opponent was called upon before Windeyer J; and if it was not, it would appear that there could be no question of contempt in failure to comply with the subpoena. Further, even if it is possible to pursue proceedings for contempt for non-compliance with a subpoena after the proceedings in relation to which the subpoena issued have concluded, it would in my opinion be a rare case in which the Court would perceive any utility in such proceedings. 14 The second possible procedural step that might be open to the claimant, possibly in combination with the first step, is to apply again for leave to appeal, against the possibility that the Court finds that s.101(2)(l) prevails over s.101(5). That would face the difficulty that a second application for leave might not be entertained following the dismissal of the earlier application for leave; and there would also be the same reasons against the exercise of a discretion in favour of the claimant (both in extending time and in granting leave to appeal) as set out above. 15 The third possible procedural step that might be taken is to apply for special leave to appeal to the High Court from the dismissal of the leave application on 10 December 2004; but this would also face the difficulties concerning the exercise of discretion to which I have already referred, as well as the difficulties that generally attend the obtaining of special leave to appeal to the High Court. 16 The claimant also sought reversal of an order for costs made by Santow JA, submitting that costs would not be ordered in favour of a solicitor litigant unless that person had been wrongfully brought into litigation. However, the order made by Santow JA did not determine whether the opponent would be entitled to professional costs. That is a question that will be determined by a costs assessor, in which the principles discussed by the Court of Appeal in Lawrence v. Nikolaidis (2003) 57 NSWLR 355 would be relevant. The order for costs made by Santow JA was the ordinary order made providing for costs to follow the event, and there is no error in that order. 17 For those reasons, in my opinion the claimant's Notice of Motion filed 25 February 2005 should be dismissed. There was no appearance for the opponent and there will in those circumstances be no order as to his costs. 18 BEAZLEY JA: I agree. 19 PEARLMAN AJA: I agree. 20 BEAZLEY JA: The order of the Court is that proposed by Hodgson JA. **********