New South Wales Court of Appeal CITATION: D B Mahaffy & Associates Pty Ltd v J R Mahaffy [2010] NSWCA 341 HEARING DATE(S): 3 December 2010 JUDGMENT OF: Giles JA at 1; Sackville AJA at 11 EX TEMPORE JUDGMENT DATE: 3 December 2010 DECISION: Application for leave to appeal dismissed with costs. CATCHWORDS: PROCEDURE – civil – judgment and orders – application for leave to appeal – adjournment granted to applicant on condition that applicant pay $22,000 within seven days – monies not paid – unable to pay – inability to pay known to applicant's representatives when adjournment granted – whether leave to appeal should be granted – limited basis for an arguable case – failure to comply with condition – inability to comply with condition – no substantial injustice if leave not granted – application for leave to appeal dismissed. CASES CITED: Leaway Pty Ltd v Newcastle City Council (No 2) [2005] NSWSC 826. PARTIES: D B Mahaffy & Associaets Pty Ltd - Applicant Jeffrey Robert Mahaffy - Respondent FILE NUMBER(S): CA 2010/119143 COUNSEL: D B Mahaffy in person J R Mahaffy in person LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2007/295752 LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ LOWER COURT DATE OF DECISION: 9 September 2009 and 16 April 2010 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/119143 GILES JA SACKVILLE AJA FRIDAY 3 DECEMBER 2010 D B MAHAFFY & ASSOCIATES PTY LIMITED v JEFFREY ROBERT MAHAFFY JUDGMENT 1 GILES JA: This is the adjourned hearing of Mr David Mahaffy's application for leave to appeal against some costs orders made in the District Court. 2 When the application first came before Sackville AJA and myself on 23 September 2010, counsel for Mr David Mahaffy applied for an adjournment in order to rectify deficiencies in the material before the Court and to consider an allegation, as to which he said he had a sworn affidavit, of bias by the District Court judge. We granted an adjournment to 8 October 2010, over Mr Jeffrey Mahaffy's opposition. We said - "As a condition of the adjournment and in addition we order that the applicant pay to the respondent the sum of $2,000 in respect of his wasted attendance at court today and the further sum of $20,000 in part payment of the costs payable pursuant to the order of Judge Gibb in both cases within seven days." 3 On 8 October Mr Jeffrey Mahaffy did not appear when the matter was dealt with. Mr David Mahaffy applied for an adjournment, saying that the District Court judge was going to revisit (Mr David Mahaffy's words) one of the costs orders on 9 November 2010. Mr David Mahaffy did not disclose that he had not paid the $2,000 and the $20,000. We adjourned the matter until today so that the outcome of the revisiting would be known. 4 Despite our informing Mr David Mahaffy that he should provide affidavit evidence of what occurred before the District Court judge he did not do so. It has been established this morning that the original of costs orders remain. No additional material has been filed in support of the application for leave to appeal and no bias allegation has been added, although today Mr David Mahaffy was asserting the District Court judge had been comprehensively biased. 5 We asked Mr David Mahaffy to address us on why we should not strike out or dismiss his application for leave to appeal because he had not paid the two sums ordered to be paid on 23 September 2010. His essential explanation was that he had not paid because he had no money and could not pay, and he said that his representatives on 23 September 2010 knew that he had no money and that had he been present on 23 September 2010 he would have said so. It remains that his representatives accepted on his behalf an adjournment then granted on the condition that sums of money be paid, despite the fact that they knew, according to Mr David Mahaffy, that he had no money and could not pay. 6 There is a discretion not to hear a party who has not complied with an order such as the orders we made on 23 September 2010. The principles which inform that discretion are comprehensively discussed by Campbell J in Leaway Pty Ltd v Newcastle City Council (No 2) [2005] NSWSC 826; (2005) 220 ALR 757. Those principles also inform the exercise of our discretion in determining whether or not to accede to Mr David Mahaffy's application for leave to appeal, and there may be added reference to the requirements of the Civil Procedure Act 2005 whereby we ought to seek to bring about a just, quick and cheap determination of the dispute between the parties. 7 In my opinion, the failure of Mr David Mahaffy to pay the sums ordered to be paid on 23 September 2010 is material to the exercise of our discretion concerning his application for leave to appeal, taken together with the other matters with which we are familiar from our previous acquaintance with the application (as Mr David Mahaffy was reminded in the course of debate this morning). 8 There may be an arguable case for leave to appeal as to the costs ordered as compensation for Mr Jeffrey Mahaffy's loss of remuneration, but in my view it is difficult to see any other basis for leave to appeal. If attention be confined to that loss of remuneration, the amount involved is not large, and it should be added that it was accepted by Mr David Mahaffy's counsel on 23 September 2010 that there was bound to be some money owing. In my opinion, taking into account - the limited basis for an arguable case; the fact that an adjournment was obtained on a condition which at the time was known to Mr David Mahaffy and to his legal representatives (who on his behalf obtained it) could not be complied with; the failure to pay the money since; and Mr David Mahaffy's asserted inability to pay it at any time, by which I mean he presently has no ability and as I understand him does not anticipate any ability; the application for leave to appeal should be dismissed. 9 It has been explained to Mr David Mahaffy that he may, with stress on the may, be able to apply at a future time with explanation of what has occurred in the interim, if he comes into money and is able to make the payments ordered and otherwise persuades the Court that it is appropriate to grant leave to appeal from the orders of the District Court. 10 The order that I propose, therefore, is that the application for leave to appeal be dismissed. I would anticipate the ordinary consequence that it be dismissed with costs, but we have not heard specifically on that and so for the moment I would reserve the question of costs. 11 SACKVILLE AJA: I agree with the orders that have been proposed by the presiding judge and with his Honour's reasons. 12 I would add this observation. On Mr David Mahaffy's argument, presented to this Court, he has no ability to pay any part of the costs orders that have been made against him. Moreover, there is also no dispute that some part of the costs orders that have been made against Mr David Mahaffy are due. As the presiding Judge has explained, the overwhelming likelihood is that a very large proportion of the costs orders that have been made cannot be disputed. In those circumstances, it is difficult to see what practical purpose would be served by granting Mr David Mahaffy leave to appeal in any event. That, to my mind, is a further consideration to take into account in determining whether a denial of leave to appeal would involve any substantial injustice. Whether a refusal of leave to appeal would occasion substantial injustice is a criterion that is relevant as to whether leave to appeal should be granted. 13 For those additional reasons I agree with the orders proposed by the presiding Judge. ********** 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.