New South Wales Court of Appeal CITATION: Lo and Anor v Iverach and Anor [2009] NSWCA 92 HEARING DATE(S): 27 April 2009 JUDGMENT DATE: 30 April 2009 JUDGMENT OF: Allsop P; Giles JA; Macfarlan JA DECISION: Notice of motion filed on 2 September 2008 dismissed with costs. [Note: subsequently the costs were ordered on an indemnity basis.] CATCHWORDS: COSTS - assessment after conclusion of proceedings - not arguable that proceedings had not concluded - continued contention that proceedings were interlocutory an abuse of process. General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; CASES CITED: House v The King (1936) 55 CLR 499; Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143. PARTIES: Michelle Lo & Joseph Lo - Applicants James Saville Iverach & Kaylene Gai Iverach - Respondents FILE NUMBER(S): CA 40233/03 COUNSEL: Mrs M Lo in person P Marsh (Solicitor) - Respondents SOLICITORS: Paul Marsh, Strathfield - Respondents LOWER COURT JUDICIAL OFFICER: Bell JA (18 August 2008) IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40233/03 ALLSOP P GILES JA MACFARLAN JA Thursday 30 April 2009 LO & ANOR v IVERACH & ANOR Judgment 1 THE COURT: The applicants, Mr and Mrs Lo, were represented by Mrs Lo appearing in person. They applied on a notice of motion filed on 2 September 2008 in proceedings 40233/03, a summons filed in the Court of Appeal on 28 March 2003. By that summons Mr and Mrs Lo applied for an extension of time to apply for leave to appeal from a decision given by Palmer J in October 2002 in proceedings 4246/02 and for leave to appeal from that decision. The summons was dismissed with costs in April 2004. The present application is an application to vary or discharge an order made by Bell JA refusing to set aside the Registrar's dismissal of a notice of motion filed in proceedings 40233/03 in July 2008. 2 The application came after a long history. An account of the circumstances in which it was made can be compiled from the materials before us as follows. 3 Mr and Mrs Lo owned land at Menai. The land had the benefit of a right of way over adjoining land. The owners of the adjoining land gave permission to the respondents, Mr and Mrs Iverach, to use the part the subject of the right of way for access to their land in connection with construction of a swimming pool. Although initially giving permission, Mr and Mrs Lo came to complain of interference with their use and enjoyment of the right of way. 4 In the proceedings heard by Palmer J Mr and Mrs Lo claimed against Mr and Mrs Iverach, and also their contractor who is not a respondent to the notice of motion and need not further be mentioned, an injunction to restrain interference with their use and enjoyment of the right of way and damages. Palmer J dismissed the claims. He did not consider that the interference that was likely to occur while the remaining construction work was carried out warranted the grant of an injunction, regarding it as not a substantial or unreasonable interference and within what the law requires neighbours to tolerate. He recorded that the claim for damages had been abandoned by Mr and Mrs Lo's counsel, they then being represented, and said that counsel's concession that there was no evidence on the basis of which an award of damages could be made for such interference as had occurred was rightly made and that no compensable damage had been shown. On 29 October 2002 his Honour ordered that Mr and Mrs Lo's summons be dismissed with costs. 5 Then came proceedings 40233/03 in the Court of Appeal, in which Mr and Mrs Lo applied for an extension of time and leave to appeal from Palmer J's decision. It came before Giles and Hodgson JJA, and on 16 April 2004 the summons was dismissed with costs. 6 The history from then on is concerned with the two sets of costs. 7 Mr and Mrs Iverach had the costs awarded by Palmer J and in the Court of Appeal assessed. Costs assessment certificates were issued. Mr and Mrs Lo applied to a review panel to review the assessor's assessments. The application was dismissed. 8 By a summons filed in the Supreme Court, proceedings 13483/07, Mr and Mrs Lo appealed from the decision of the review panel. According to Mrs Lo, when the summons was listed before Malpass AsJ a notice of motion was filed "seeking clarification" whether his Honour had jurisdiction to deal with it. The notice of motion came before Bell J on 17 September 2007. Her Honour "dismissed the motion without clarification and directed the summons to the associate judge". 9 The summons was heard by Malpass AsJ, and was dismissed with costs. We will return to the basis for Mr and Mrs Lo's resistance to the assessment of the costs, which was maintained in the further action taken by them. 10 Mr and Mrs Lo sought to overturn the decision of Malpass AsJ by a notice of motion filed in proceedings 13483/07. The notice of motion came before Harrison J. On 4 December 2007 his Honour ruled that he had no jurisdiction to hear an appeal from the decision of Malpass AsJ, and dismissed the notice of motion with costs. 11 At some point Mr and Mrs Iverach brought proceedings 370/07 and 371/07 in the Local Court at Burwood, suing on the costs assessment certificates to recover the assessed costs. They obtained judgments and issued execution. In January 2008 Mr and Mrs Lo applied, by another notice of motion filed in proceedings 13483/07, for orders restraining enforcement of the Local Court judgments until any appeal from the decision of Malpass AsJ had been determined. On 30 January 2008 Johnson J dismissed that notice of motion with costs. 12 On 3 March 2008 Mr and Mrs Lo filed a notice of motion in proceedings 40233/03. The notice of motion is not in the papers we have, but from the Registrar's reasons next mentioned it sought that the decision of Giles and Hodgson JJA in April 2004 be set aside and other orders made; that proceedings 13483/07 be removed into the Court of Appeal; and that the proceedings in the Local Court be transferred to the Court of Appeal. The notice of motion was returnable before the Registrar on 7 April 2008. 13 From his reasons given on that day, the Registrar was of the view that the notice of motion was bound to fail because the orders sought in it could not be made. The decision in April 2004 could only be set aside by appeal to the High Court; proceedings 13483/07 could not be removed into the Court of Appeal because they were finalised and any challenge to their decision was by appeal; and there was no power to transfer the Local Court proceedings to the Court of Appeal. The Registrar dismissed the notice of motion with costs as an abuse of process within Pt 13.4 of the Uniform Civil Procedure Rules ("the Rules"). 14 On 13 May 2008 an amended notice of motion was filed, which came before Mason P on 19 May 2008. Again the notice of motion is not in the papers we have. From his Honour's reasons, which also describe the basis for Mr and Mrs Lo's resistance to assessment of the costs, the nature of the relief claimed was as follows. 15 First, it was sought to discharge the Registrar's decision of 7 April 2008 dismissing the earlier notice of motion. His Honour refused to do so, saying that he agreed with the Registrar's reasons which "in essence … track the reasons I am about to give in explaining why I refuse the remaining orders sought in the amended notice of motion". 16 Secondly, it was sought to challenge in various ways the outcome in proceedings 13483/07. His Honour refused to transfer those proceedings to the Court of Appeal because they had been determined and any redress was by an appeal, and said that Harrison J was correct in holding that he had no jurisdiction to review the decision of Malpass AsJ. He refused to set aside the judgment of Malpass AsJ or the costs assessment certificates, for a number of reasons including that the basis for doing so argued by Mr and Mrs Lo was "completely without foundation". 17 Thirdly, it was sought to transfer to the Court of Appeal the Local Court proceedings in relation to enforcement of the judgments. His Honour said that there was no basis for doing so, and agreed with the Registrar that the application was entirely misconceived. He repeated, in effect, that the underlying challenge to the costs liability the subject of the Local Court judgments was misconceived. 18 Fourthly, some interlocutory relief was sought. It fell with the refusal to grant substantive relief. His Honour said that the relief here sought in effect challenged the decision of Giles and Hodgson JJA in April 2004 and that Mr and Mrs Lo also sought "to file amended documents that would treat the judgment of Palmer J as if it were a mere staging post rather than the final determination of proceedings that have been concluded and already addressed by way of appellate proceedings in this Court". He described this balance of the notice of motion as misconceived. 19 Mason P dismissed the amended notice of motion with indemnity costs. 20 It is appropriate at this point to describe the basis for Mr and Mrs Lo's resistance to assessment of the costs. 21 At the time Pt 52 r 9A(1) of the Supreme Court Rules provided in substance that application to proceed with taxation of costs could not be made, except with the leave of the Court, before the conclusion of any proceedings. Mason P said that Mr and Mr Lo argued that the proceedings before Palmer J had not truly concluded "because certain arguments had been overlooked and certain evidence overlooked, with a consequence, so it was put, that the orders of Palmer J were interlocutory". They said that the decision of Giles and Hodgson JJA refusing to permit appellate review was also interlocutory because it was concerned with an interlocutory decision of Palmer J. Mason P recorded that the argument advanced before him was "an argument to the effect that the order of Palmer J was interlocutory for the reasons stated, and that the order of this Court was interlocutory because it was an order made in refusing appellate review of what was an interlocutory order, ie, that of Palmer J". 22 His Honour considered that the application before him was misconceived because Palmer J's order was not interlocutory, but was a final order, and because although in one sense an application for leave to appeal was interlocutory it was "clear beyond argument" that the proceedings in the Court of Appeal disposed of by Giles and Hodgson JJA were concluded. 23 It appears from the submissions to which we later refer that the same argument had been raised before the assessor and the review panel, and we infer before Johnson J. It had been put to Malpass AsJ, and Mason P recorded that, amongst other reasons, his Honour had held that the relevant proceedings had unarguably been concluded. 24 Returning to the history, Mr and Mrs Lo then filed another notice of motion in proceedings 40233/03 seeking an order "[d]ischarging Mr Justice Mason's order to dismiss the amended motion filed 13 May 2008 and substituting that with the Court of Appeal decision". The notice of motion was returnable before the Registrar on 30 June 2008. Mr and Mrs Lo did not appear when the matter was called. The Registrar observed that the notice of motion was not supported by an affidavit as it should have been, but that in any event it was "misconceived and otherwise doomed to failure". He dismissed it as an abuse of process within Pt 13.4 of the Rules. Mrs Lo later appeared, and the Registrar told her of the result. 25 Mr and Mrs Lo applied by a notice of motion filed on 28 July 2008 for an order setting aside the Registrar's decision to dismiss the motion "filed 30 June 2008", no doubt meaning the notice of motion which had come before the Registrar on 30 June 2008. That notice of motion came before Bell JA on 18 August 2008. 26 Her Honour referred to the history to that time as set out in the judgment of Mason P. She recorded that Mrs Lo took the Court to Pt 52 r 9A(1) of the Supreme Court Rules "and again sought to agitate the arguments that appear to have been before his Honour on 19 May, namely that the proceedings before Justice Palmer which terminated with judgment on 29 October 2002 are, when properly understood, interlocutory proceedings". She said that Mrs Lo had submitted that the Registrar should have referred the motion to "the Full Court", and had submitted with reference to General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 that there was a real question to be determined, namely "whether proceedings 4246/02 … and proceedings 40233/03 were interlocutory". Her Honour said that, taking into account the matters that had been put in oral and written submissions, she was not persuaded that the Registrar was in error in concluding that the earlier motion should be dismissed under Pt 13.4 as an abuse of process. She dismissed the notice of motion with indemnity costs. 27 The relief sought in the notice of motion now before the Court is - "1. Setting aside Ms Justice Bell decision dated 18 August 2008 in lieu of discharging of Registrar Schell decision dated 30 June 2008 to dismiss the motion to review Mr Justice Mason decision on reviewing of Registrar Schell decision dated 19 May 2008. 2. Discharging of Mr Justice Mason decision dated 19 May 2008 to refuse to set aside of Registrar Schell decision filed 3 March 2008 in lieu of a. Pursuant to r36 of the Uniform Civil Procedure Rules 2005 to vary Mr Justice Harrison decision dated 4 December 2007 that the proceedings 13483/07 be removed to Court of Appeal pursuant to s 51 of the Supreme Court Act 1970. b. To re-list the motion filed on 4 December 2007 for determination. 3. An order to stay the proceedings 370 and 371 of 2007 in the Local Court of Burwood until the proceedings 13483/07 has been concluded or further order. 4. Alternatively to restrain the First and Second Defendants and their agent from taking further step to enforce the writ of 370 and 371 of 2007 until the proceedings 13483/07 has been concluded or further order. 5. Directing filing of relevant documents on further proceedings." 28 There are procedural issues, but we put them aside. The relief claimed in para 2 is consequential on the relief claimed in para 1. If Bell JA's decision of 18 August 2008 is not set aside, this Court neither could nor should intervene in Mason P's disposal of the earlier amended notice of motion. Nor, if Bell JA's decision is not set aside, will there be any question of granting the relief claimed in paras 3 and 4. As the last of the judicial determinations, Bell JA's decision concludes Mr and Mrs Lo's endeavours to displace the costs assessments on which the Local Court judgments are founded, and questions of stay of the Local Court proceedings or of execution of the judgments do not arise. It is therefore appropriate to focus on the relief sought in the first paragraph of the notice of motion. 29 Bell JA was reviewing the Registrar's decision pursuant to s 121(3) of the Supreme Court Act. In doing so her Honour was exercising the powers of the Court of Appeal pursuant to Pt 51.59 of the Uniform Civil Procedure Rules. By s 46(4) of the Supreme Court Act, the Court of Appeal can discharge or vary an order made by a Judge of Appeal. An application for discharge or variation is not an appeal, but nor is it a fresh hearing, and it must be shown that the judge erred in principle or the judge's decision was plainly wrong. The test is akin to the test for discretionary error in House v The King (1936) 55 CLR 499. It is sufficient to refer to the more full discussion in Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143 at [4]-[6]. 30 Mr and Mrs Lo filed written submissions dated 13 October 2008 and at the hearing handed up extensive written submissions, in two parts, dated 27 April 2009. All were signed by Mrs Lo. Her oral submissions did not materially add to the written submissions. 31 The principal contention in the submissions was that the decisions of Palmer J in proceedings 4246/02 and of Giles and Hodgson JJA were interlocutory and so, pursuant to Pt 52 r 9A, the costs could not be assessed. It was said that Bell JA was in error because (again with reference to General Steel Industries Inc v Commissioner for Railways) there was a real issue to be determined, and that Mason P was in error for reasons which came down to the arguments that Palmer J's decision was interlocutory because there could be further contest in relation to trespass, albeit only after another application for leave to appeal and an appeal on the ground that his Honour had decided the proceedings on the basis of nuisance but had not addressed trespass, and that the decision of Giles and Hodgson JJA was procedural and therefore interlocutory. The submissions referred to many cases in relation to what was interlocutory. 32 Arguments to this effect had been rejected many times in the history we have related, and rightly so. The question is whether the proceedings before Palmer J and the proceedings in the Court of Appeal decided by Giles and Hodgson JJA had been concluded. While that may be related to what has been regarded as interlocutory or final in court proceedings, it is not the same. Both proceedings had concluded, and it is not arguable to the contrary. The notice of motion filed on 28 July 2008, to which that was fundamental, was properly dismissed as an abuse of process. 33 The submissions asserted a variety of errors on the parts of Bell J in 2007, Malpass AsJ, Harrison J, Johnson J, the Registrar on 7 April 2008, and Mason P. The disposal of the various applications by these judicial officers underlies whether the application returnable before the Registrar on 30 June 2008, which was an application to discharge Mason P's order dismissing the amended notice of motion filed on 13 May 2008, was properly dismissed as an abuse of process. But Bell JA was not engaged in an examination of every prior step in the litigious history. Her Honour was reviewing the Registrar's decision, and was thus addressing the application to discharge Mason P's decision. She was not reviewing the prior decisions. 34 The submissions have been carefully read. They lack focus on the proper question of whether Bell JA's decision should be set aside, and it is neither practicable nor appropriate to endeavour to refer to every respect in which, in Mrs Lo's eyes, there has been error in earlier stages of the litigation. 35 Pervasive in the submissions is the principal argument that the orders in the proceedings in which the costs orders were made were interlocutory, so the costs could not be assessed. The argument is used also for submissions such as that the costs assessor should not have assessed costs, the Local Court should not have given judgments, and it was an abuse of process for Mr and Mrs Iverach to levy execution, when there was dispute over whether the orders in the proceedings were interlocutory. The principal argument is without arguable basis, and submissions resting on it cannot be accepted. 36 Some other matters appearing from the submissions should be mentioned. 37 First, it was said that there had been denial of Mr and Mrs Lo's fundamental rights, as best we understand it meaning that there has not been a judicial determination, on an application made by Mr and Mrs Iverach as parties with a burden of proof, that Mr and Mrs Iverach were entitled to have the costs assessed. The submissions included that they "had not made out their claim under … Pt 52 r 9A". This should not be accepted. It was not a situation of burden of proof, or specific applications by Mr and Mrs Iverach. As a consequence of their applications to have costs assessed, there have been a number of judicial determinations rejecting Mr and Mrs Lo's principal argument. This is another one. 38 Secondly, it was said that there had been failure by judicial officers to assist Mr and Mrs Lo as unrepresented litigants, including that Mason P had failed to assist Mr and Mrs Lo to clarify the orders they sought and to put their notice of motion in proper form, and generally that court rules and procedures had not been explained. We do not think Mr and Mrs Lo's present position is attributable to want of such assistance as a judicial officer may properly provide to a litigant in person. Their principal argument, deployed at various times in various ways, is without substance. Mason P carefully explained why their endeavours to resist the costs liability were not soundly based. Unfortunately, they have not been able to accept that position. 39 Thirdly, the submissions frequently asserted that Mr and Mrs Lo had been denied natural justice in relation to the various applications concerned with assessment of the costs. As we understand the submissions, the denials essentially lay in failing to provide assistance and in failing to recognise the merit of the principal argument. Specifically as to Bell JA's decision, it was said that her Honour "dismissed the motion without considering the applicants' submission was a breach of natural justice". The submissions were considered; that they were not accepted is not a denial of natural justice. 40 Fourthly, the submissions complained of the orders for indemnity costs. Mr and Mrs Lo submitted that they were entitled to have their arguments considered in accordance with law and had not misconducted themselves in the proceedings. The indemnity costs orders with which the notice of motion could be concerned are those made by Mason P and Bell JA. Having arguments considered can carry with it a costs burden if the arguments are not accepted, and bringing proceedings which are an abuse of process because they are doomed to fail is a well-recognised circumstance in which indemnity costs can be ordered. There is no appealable error in the orders for indemnity costs made by their Honours. 41 In mentioning these particular matters we do not fail to attend to the whole of the submissions. As we have said, they have been carefully read, and in full. However, the submissions do not in our opinion reveal occasion to discharge or vary the order made by Bell JA. 42 The notice of motion filed on 2 September 2008 should be dismissed with costs. Mr Marsh, appearing for Mr and Mrs Iverach, foreshadowed an application for indemnity costs. 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