Appeal Outcome: Special leave dismissed by the High Court, 30 March 2010 s258/2009 [2010] HCASL 42 New South Wales Court of Appeal CITATION: Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 HEARING DATE(S): 20 August 2009 JUDGMENT DATE: 4 September 2009 JUDGMENT OF: Allsop P at 1; Tobias JA at 1; Handley AJA at 1 1. Appeal struck out as incompetent. DECISION: 2. Leave to appeal refused. 3. The applicant to pay the costs of the State of the appeal, the mentions of 18 and 22 June 2009 and the summons of 16 July 2009 but without disturbing any existing orders for costs. CATCHWORDS: APPEAL – appeals from summary dismissal - frivolous and vexatious proceedings - Uniform Civil Procedure Rules 2005 (NSW) r 13.4 – appeal from summary dismissal - decision interlocutory – leave to appeal required – appeal as of right incompetent - APPEAL – appeals from summary dismissal - application for leave to appeal – application previously dismissed - no new material or new argument - APPEAL – strike out of incompetent appeal – power of single Judge of Appeal to strike out incompetent appeal – order does not determine or decide the appeal – Supreme Court Act 1970 (NSW) s 46(2)(b) - INDUSTRIAL LAW - New South Wales - Industrial Relations Commission – unfair dismissal proceedings – jurisdiction to decide whether proceedings have been settled - PROCEDURE – Registrar's powers – conferral of powers of single appeal judge – delegation of power – power to strike out incompetent appeal – Supreme Court Rules (NSW) r 58 - Uniform Civil Procedure Rules 2005 (NSW) - r 13.4 - Supreme Court Act 1970 (NSW) - s 46(2)(b) - Supreme Court Rules (NSW) - r 58 Industrial Relations Act 1996 (NSW) Supreme Court Act 1970 (NSW) LEGISLATION CITED: Teaching Services Act 1980 (NSW) Supreme Court Rules 1970(NSW) Uniform Civil Procedure Rules 2005 (NSW) CATEGORY: Principal judgment Administration of Papua and New Guinea v Daera Guba [1973] HCA 59; 130 CLR 353 Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 Buttes Gas and Oil Co. v Hammer (No 3) [1982] AC 888 Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 Lindsay v Health Care Complaints Commission (No 1) [2009] NSWCA 97 CASES CITED: Macatangay v State of New South Wales [2007] NSWSC 57 Macatangay v State of New South Wales [2009] NSWCA 81 Masters v Cameron [1954] HCA 72; 91 CLR 353 Miller v University of New South Wales [2003] FCAFC 180; 132 FCR 147 Pastras v The Commonwealth (1966) 9 FLR 152 R v Home Department State Secretary; Ex parte Khawaja [1984] AC 74 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217; 72 NSWLR 559 Sanofi v Parke Davis Proprietary Limited (No 1) [1982] HCA 9; 149 CLR 147 Tampion v Anderson (1973) 48 ALJR 11 Wickstead v Browne (1992) 30 NSWLR 1 PARTIES: Miguela Alvarez Macatangay State of New South Wales FILE NUMBER(S): CA 40078/07 COUNSEL: In Person (Appellant) M K Minehan (Respondent) SOLICITORS: Hicksons Lawyers (Respondent) LOWER COURT JURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): 20144/05 LOWER COURT JUDICIAL OFFICER: Grove J LOWER COURT DATE OF DECISION: 9 February 2007 LOWER COURT MEDIUM NEUTRAL CITATION: Macatangay v State of New South Wales [2007] NSWSC 57 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40078/07 ALLSOP P TOBIAS JA HANDLEY AJA Friday 4 September 2009 MACATANGAY v STATE OF NEW SOUTH WALES (No 2) Judgment 1 THE COURT: The Court has before it a notice of appeal filed by Miguela Macatangay (the "plaintiff") against a decision of Grove J given on 9 February 2007 summarily dismissing, under Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 13.4 her action against the State for damages for negligence in placing her name on a confidential list of persons who could not be employed in the Department of Education and Training without the approval of the Director of School Staffing (Macatangay v State of New South Wales [2007] NSWSC 57). The Court also has before it a notice of motion by the State for the dismissal of that appeal as incompetent, and a summons for leave to appeal by the plaintiff from the decision of Grove J filed by Mrs Macatangay. 2 A brief outline of the procedural history since the decision of Grove J will clarify the issues. The plaintiff filed a notice of appeal purportedly as of right on 23 February 2007 (which was amended by an amended notice of appeal filed on 11 April 2007). This appeal was struck out as incompetent by the Registrar on 17 May 2007. On 9 July 2007 the plaintiff filed, out of time, a summons for leave to appeal from the decision of Grove J. The procedural default would readily be cured because the plaintiff had attempted to challenge that decision within the prescribed time but had invoked the wrong procedure. On 8 November 2007 the plaintiff's summons for leave to appeal was heard on its merits by this Court (Beazley and Ipp JJA) and dismissed. 3 On 13 November 2007 the plaintiff filed a notice of motion in the Common Law Division seeking, inter alia, an order setting aside the judgment of Grove J for fraud committed by agents of the State. On 22 November this was dismissed by AsJ Harrison. The plaintiff's summons for leave to appeal from that decision was dismissed by this Court (Mason P and Handley AJA) on 1 May 2008. On 6 August 2008, the High Court refused special leave to appeal from that decision. The plaintiff no longer seeks to challenge the dismissal of the notice of motion of 13 November 2007. 4 The decision of the High Court disposed of the plaintiff's last challenge, at that time, to the dismissal of her action. 5 On 23 March 2009, the plaintiff filed, well out of time, a notice of motion challenging the Registrar's order striking out the appeal as incompetent. On 9 April 2009, Basten JA extended time to seek review and set aside that decision: Macatangay v State of New South Wales [2009] NSWCA 81. This reinstated the plaintiff's purported appeal as of right lodged on 23 February 2007. 6 The State has not sought to review the decision of Basten JA but, on 18 June 2009, it filed a notice of motion for the reinstated appeal to be dismissed as incompetent. The plaintiff filed a cross-motion on 22 June 2009, in effect opposing the State's motion. These notices of motion raised two issues: first whether the plaintiff had an appeal as of right; and secondly, whether the Registrar had the power, under the Supreme Court Act 1970 (NSW) and Rules, to exercise the power to strike out that appeal as incompetent. 7 On 16 July 2009, after a directions hearing before Beazley JA, the plaintiff filed a further summons for leave to appeal from the decision of Grove J. (In his reasons for 9 April 2009, Basten JA said (at [43]) that the plaintiff "is not precluded from a further application for leave to appeal by reason of her failure on the first application.") 8 This raises, as the third and fourth issues, the questions whether the renewed application for leave to appeal, following the refusal of the first, is competent, and if it is, whether it should be granted. 9 The final issue is whether Grove J was in error in dismissing the plaintiff's action on the ground that it sought to relitigate issues finalised by the settlement of her unfair dismissal case in the Industrial Relations Commission, and the decisions of Commissioner Macdonald, and the Full Bench that her case had been settled. Competency of appeal 10 The order of Grove J for the summary dismissal was made under the UCPR, Part 13 r 13.4 which is in the following terms: Frivolous and vexatious proceedings "(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings: (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 11 The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179: "An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action." 12 The principle has been established for over 100 years by decisions some of which are binding on this Court. 13 The relevant provision is s 101(2)(e) of the Supreme Court Act which requires leave to appeal from an interlocutory judgment or order of the Court. Section 101(2)(l) is concerned with summary judgment dealt with in r 13.1 at the suit of the plaintiff in which the court gives judgment. Without a provision such as s 102(2)(l), such an order for judgment could be seen to be final. In any event, the order of Grove J was interlocutory, s 101(2)(e) applies, and the plaintiff's appeal as of right was incompetent. Jurisdiction of Registrar 14 Section 46(2)(b) of the Supreme Court Act provides: "A Judge of Appeal may exercise the powers of the Court of Appeal: … (b) to make any order or give any direction in any appeal or other proceedings, but not an order or direction involving the determination or decision of the appeal or other proceedings." 15 Basten JA decided ([2009] NSWCA 81) that s 46 did not confer power on a single Judge of Appeal to strike out an incompetent appeal. The Court had previously taken a different view. Basten JA, later, in Lindsay v Health Care Complaints Commission (No 1) [2009] NSWCA 97 at [15], expressed doubts about the correctness of his own decision in [2009] NSWCA 81. In our view, with great respect, an order dismissing an appeal as incompetent is within s 46(2)(b) because it does not determine or decide the appeal, and the decision to the contrary by Basten JA in [2009] NSWCA 81 should be overruled. 16 Under Supreme Court Rules 1970 (NSW) Pt 51 r 58 which was still in force in May 2007, the Registrar could exercise the powers of a single Judge of Appeal under Supreme Court Act, s 46. He therefore had power to make the order on 17 May 2007 dismissing the plaintiff's appeal from Grove J as incompetent. That appeal as of right, reinstated by the order of Basten JA, is incompetent for the reasons given and should be struck out. Competency of renewed application for leave to appeal 17 The plaintiff's summons for leave to appeal filed on 16 July 2009 raises the third issue which is whether a renewed application for leave to appeal is competent. The decision of Sanofi v Parke Davis Proprietary Limited (No 1) [1982] HCA 9; 149 CLR 147 establishes that a grant of leave or special leave is interlocutory because leave can be revoked without deciding the case on its merits. An order refusing leave to appeal is also interlocutory because the Court can later grant leave: Buttes Gas and Oil Co. v Hammer (No 3) [1982] AC 888 at 922, R v Home Department State Secretary; Ex parte Khawaja [1984] AC 74 at 79. The plaintiff's renewed application for leave to appeal from the decision of Grove J is therefore competent. Should leave to appeal from Grove J now be granted? 18 In his reasons for judgment of 9 April 2009 Basten JA raised questions which he thought had not been considered by this Court when it refused leave to appeal on 8 November 2007. The first concerned the jurisdiction of the Industrial Relations Commission in an unfair dismissal case. The second related to Miller v University of New South Wales [2003] FCAFC 180; 132 FCR 147 and the effect in the ordinary courts of a decision of the Commission in such a case. The third related to the effect of Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217; 72 NSWLR 559. 19 On 4 September, 2002 the plaintiff commenced unfair dismissal proceedings in the Commission under s 84(1) of the Industrial Relations Act 1996 (NSW). They were listed for hearing before Commissioner Macdonald on 24 March 2003, but on 21 March he was told the case had been settled. The plaintiff repudiated the settlement and on 12 June 2003 the Department applied by motion to enforce it by having the proceedings dismissed. Commissioner Macdonald made that order on 25 June 2004 on the basis that the case had been settled. On 28 February 2005 a Full Bench of the Commission dismissed the plaintiff's appeal from the Commissioner's orders. 20 The terms of settlement included an agreement by the plaintiff to resign from her employment, and her undertaking not to seek employment with the Department as a schoolteacher which left her free to seek employment with TAFE. The settlement was to be recorded in a Deed of Release which was never signed. Commissioner Macdonald and the Full Bench considered Masters v Cameron [1954] HCA 72; 91 CLR 353 and held that the settlement was binding although the parties agreed that it would be formalised in a Deed. 21 The plaintiff's Further Amended Statement of Claim (FASC) contained the following: "13. The failing to provide to the plaintiff such officers resulted in The Department placing the plaintiff's name onto the confidential list with a decision that the plaintiff would not be employed without reference being made to the Director of School Staffing. 14. This created a situation for the plaintiff that the Department knew would lead to the plaintiff not being able to be employed as a teacher or for any other position within the Department for the rest of the plaintiff's life. 15. This has resulted in the destruction of the plaintiff's career and profession. 16. As a result of the plaintiff has suffered loss and damage …" 22 Paragraph 14 of the FASC based the plaintiff's case on the loss of her career as a teacher with the Department, but she had agreed in the settlement to give up that career in return for not being placed on the Confidential List. 23 Whatever the limits of the Commission's jurisdiction in unfair dismissal cases may be, it had jurisdiction to decide whether such proceedings have been settled. Decisions of the Commission within jurisdiction are final and can give rise to res judicata estoppels. This principle is well established. In Administration of Papua and New Guinea v Daera Guba [1973] HCA 59; 130 CLR 353 at 453 Gibbs J said: "The use of the phrase 'judicial tribunal' in this context is convenient as indicating that an estoppel of this kind does not result from a mere administrative decision, but the question whether such an estoppel is raised is not answered by inquiring to what extent the tribunal exercises judicial functions, or whether its status is judicial or administrative … The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court, and its jurisdiction is derived from statute …" 24 The distinction between a tribunal which has power to decide questions and create res judicata estoppels, and a purely administrative body whose decisions do not create such estoppels was explained by Lush J in Pastras v The Commonwealth (1966) 9 FLR 152 at 155: "The underlying principle of this form of estoppel is that parties who have had a dispute heard by a competent tribunal should not be allowed to litigate the same issues in other tribunals. When the decision-making body is an administrative body not affording the opportunity at presenting evidence and argument … there is no room for the operation of this principle … It appears to me that both upon the general language of the authorities … and upon … principle … no estoppel can arise from a decision of an administrative authority which cannot be classed either as 'judicial' or as 'a tribunal', and that an authority cannot be given either of those classifications if it is one which is under no obligation to receive evidence or hear argument." 25 The Industrial Relations Commission decided that this settlement was binding after hearing evidence and legal argument. Its decision, affirmed on appeal, that the settlement was binding created an estoppel binding on the parties and properly recognised by Grove J and this Court. 26 The decision in Miller depended on the inability of the Australian Industrial Relations Commission, for constitutional reasons, to exercise the judicial power of the Commonwealth. It has no application to a decision of the State Commission because there is no strict separation of powers in the State's constitution, at least (as here) where the controversy in the Commission is not one involving federal jurisdiction. 27 This Court has material relating to the first leave application which was not before Basten JA when he gave his decision [2009] NSWCA 81 on 9 April 2009. During her oral argument before this Court on 8 November 2007 the plaintiff referred to Miller which reversed the decision of Branson J at first instance that had been cited by Grove J. The plaintiff's submissions on that case are recorded on pp 2-4 of the transcript. 28 The plaintiff's written and oral submissions in substance repeat the submissions rejected by this Court on 8 November 2007, but added a reference to Russell. 29 Russell does not assist the plaintiff. Russell sued for breach of his contract of employment. The plaintiff sued in tort. The Industrial Relations Commission ordered the Archdiocese to reinstate Mr Russell in its employment, but no such order was made in favour of the plaintiff. 30 Basten JA said ([2009] NSWCA 81 at [35]) that Russell's case established that damages, in tort or for breach of contract, can be awarded for unfair dismissal in the ordinary courts, and that the Industrial Relations Act "does not provide an exclusive code with respect to such proceedings". This, with respect, is clearly correct, but irrelevant. The plaintiff's action was not summarily dismissed because the Industrial Relations Act contains an exclusive code for dealing with unfair dismissal cases, or because she sought relief which is only available in the Commission, or because the relief she obtained in the Commission barred her claim in the Supreme Court directly or by a res judicata estoppel. 31 The plaintiff's action was summarily dismissed because it was based on the loss of a career she had given up in a settlement that the Commission held was binding. This Court's decision in Russell throws no light on those questions. 32 The plaintiff appears to believe that a great deal turned on whether her employment with the Department was under s 48 or s 59C of the Teaching Services Act 1980 (NSW). The distinction might have been relevant in an unfair dismissal case in the Commission, or in an action for wrongful dismissal, but it is not relevant in her action in tort. 33 The plaintiff failed to establish any grounds for the Court, as presently constituted, differing from those submitted to Beazley and Ipp JJA on 9 November 2007. 34 The Court, as presently constituted, would need to be satisfied that there were solid grounds, based on new material, or a new argument, before it took the highly unusual course of differing from the views of the Court, differently constituted, in the same case on an earlier occasion. 35 The following orders should be made: 1. Appeal struck out as incompetent. 2. Leave to appeal refused. 3. The applicant Miguela Macatangay to pay the costs of the State of the appeal, the motions of 18 and 22 June 2009, and the summons of 16 July 2009 but without disturbing any existing orders for 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.