Court of Appeal Supreme Court New South Wales Medium Neutral Citation: AB v State of New South Wales [2014] NSWCA 243 Hearing dates: 21 July 2014 Decision date: 22 July 2014 Before: Leeming JA Decision: The appeal be dismissed as incompetent. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - competency - appeal brought purportedly as of right from summary dismissal of proceedings - Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 not followed - appeal dismissed as incompetent COSTS - objection to competency brought after 28 day period in UCPR r 51.41 - costs of objection to competency governed by that regime - prejudice to appellant by reason of delay - no order as to costs Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Interpretation Act 1987 (NSW). s 33 Supreme Court Act 1935 (WA) Supreme Court Act 1970 (NSW), s 46(1)(b) Uniform Civil Procedure Rules (NSW) 2005, rr 13.4, 42.1, 51.37, 51.41, 51.47 Cases Cited: Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 Eberstaller v Poulos [2014] NSWCA 211 Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Glendinning v Cuzeus [2009] WASCA 21 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Minogue v Williams [2000] FCA 125 R v XY [2013] NSWCCA 121; 84 NSWLR 363 State of NSW v Kable [2013] HCA 26 Wilson v Official Trustee in Bankruptcy [2000] FCA 304 Texts Cited: MJ Beazley, PT Vout and SE Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand, LexisNexis Butterworths, 2014 Category: Interlocutory applications Parties: AB (Appellant/Respondent on the Motion) State of New South Wales (1st Respondent/Applicant on the motion) The School (2nd Respondent) Representation: Counsel: In person (Appellant) M Allars SC (1st Respondent) Solicitors: NSW Crown Solicitor (1st Respondent) File Number(s): 2014/57590 Publication restriction: Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) the names of the appellant and 2nd Respondent have been suppressed Decision under appeal Citation: [2014] NSWSC 81 Date of Decision: 2014-02-21 00:00:00 Before: Garling J File Number(s): 2012/384382 Judgment 1LEEMING JA: A non-publication order has been made in this appeal, which concerns a child and her school. The appellant is her father. Aspects of the underlying dispute have been the subject of proceedings in the Children's Court. However, for the purposes of resolving the motion brought by the State to dismiss the appellant's appeal as incompetent, it will not be necessary to say anything further about them. 2The appellant filed a statement of claim in the Common Law Division of this Court on 11 December 2012. The first defendant, the State of New South Wales (State), filed a motion for it to be summarily dismissed under r 13.4 of the Uniform Civil Procedure Rules (NSW) 2005 (UCPR). After a hearing which I have been told took most of the day, his Honour reserved. Ultimately he acceded to the motion and dismissed the statement of claim with costs: [2014] NSWSC 81. It is perfectly plain that in doing so, his Honour applied the very high threshold associated with decisions such as General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 3His Honour's decision was delivered on 21 February 2014. The appellant served a notice of appeal on 21 May 2014 (in the evening by email). Before me, the State has taken the view that service was effected no later than 22 May 2014. 4On 18 June 2014, the State filed a notice of motion seeking dismissal of the appeal, pursuant to UCPR r 51.41 because it was incompetent. There was an attempt to send the motion to the email address nominated on the notice of appeal, but it is not disputed that the notice of motion was not in fact received by the appellant (due to an incorrect email address being entered) until it was sent by post to him. It reached him on 23 June 2014. When that happened, the appellant emailed the Crown Solicitor's Office, promptly, to advise that the email had been sent to the wrong address. 5The appellant accepts that he was served with the notice of motion no later than 33 days after his notice of appeal was served on the Crown Solicitor's Office. 6UCPR r 51.41, which the State invoked, is in these terms: 51.41 Objections to competency of appeal (1) A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent. (2) If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent: (a) the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and (b) the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary. 7The State raised a question of construction of this rule, which, together with the question of costs, led me to reserve my decision until today. The competence of the appeal 8I first deal with competence. Although I am determining the appeal, I have power to do sitting alone so pursuant to s 46(1)(b) of the Supreme Court Act 1970 (NSW): see Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 at [15]. Plainly enough, despite the mandatory language of r 51.41(1), an appeal can be dismissed for want of competency, on the respondent's motion, even if more than 28 days have elapsed since service. As much is apparent from the terms of r 51.41(2)(a). It is also an aspect of the "first duty" of a court to determine whether or not it has jurisdiction: see Eberstaller v Poulos [2014] NSWCA 211. 9This appeal is incompetent. It is clear that the primary judge did not hear and determine the Statement of Claim on its merits, applying the civil standard of proof. Instead, his Honour in terms exercised a power of summary dismissal: "in accordance with r 13.4(1)(b), namely that no reasonable cause of action is disclosed ... it is appropriate to exercise the power to summarily dismiss the proceedings": see [2014] NSWSC 81 at [108]. 10It is - or it ought to be regarded as - clear law that such a decision, even one which dismisses a party's proceedings, is interlocutory, for the purposes of determining whether an appeal lies as of right or by way of leave. One recent decision holding as much, and which binds me, is the joint judgment of the Court of Appeal, constituted by Allsop P, Tobias JA and Handley AJA in Macatangay: "[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." 11Against this, the appellant pointed to the decision of the Full Court of the Supreme Court of Western Australia in Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148. That decision squarely holds to the contrary (at 149): "The appellant purported to appeal as of right and at the opening of the appeal the question arose as to whether leave to appeal was needed by reason of s 60(1)(f) of the Supreme Court Act 1935 on the ground that the order in question was an interlocutory order. In Bozson v Altrincham Urban District Council, [1903] 1 KB 547, Lord Alverstone, CJ (sitting in the Court of Appeal with the Earl of Halsbury, LC, and Sir FH Jeune, P), said: "It seems to me that the real test for determining this question ought to be this: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order." There had previously been a difference of opinion in England and it seems not unlikely that the Chiefs of the three Divisions sat together in order to state authoritatively this simple and easily applied rule for distinguishing between final and interlocutory orders. If in this case the only order had been to strike out the statement of claim the action itself would have remained on foot, the rights of the parties would not have been finally disposed of, and the order would have been interlocutory. But nothing could be more final than a dismissal of the action, and we so ruled." 12The appellant also pointed me to a recent publication: MJ Beazley, PT Vout and SE Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand, LexisNexis Butterworths, 2014. Within chapter 5 of that text (which, according to the Preface, was the primary responsibility of Dr Vout) there are two lists of instances of decisions which are interlocutory, and decisions which are final, for the purposes of determining whether an appeal lies as of right or by way of leave. At p 91, as an example of an interlocutory decision for which leave to appeal is required, is the following: "an order striking out a statement of claim for failing to disclose a cause of action (unless the order also dismisses the proceeding, in which case it is final)". At p 94, as the first instance of a final order from which an appeal lies as of right, is the following: "an order dismissing a proceeding upon or following the striking out of a statement of claim for disclosing no reasonable cause of action". The sole authority cited for both of those instances is the decision of the Full Court of the Supreme Court of Western Australia in Florida Investments. 13I would not follow Florida Investments. Macatangay is a more recent decision. It is reasoned. It refers fully to Australian and English authorities, and it is a decision which binds me. I am also bound by the High Court decisions to which reference is made in Macatangay. For what it is worth, I consider that Macatangay is clearly correct, and there are "compelling reasons" for concluding that Florida Investments is wrong (see R v XY [2013] NSWCCA 121; 84 NSWLR 363 at [30]) unless perhaps there was some feature of the Supreme Court Act 1935 (WA) which does not translate to the current rules in New South Wales. I am strengthened in that view by the fact that strong doubts have repeatedly been expressed of Florida Investments by appellate courts: 14In Minogue v Williams [2000] FCA 125 a Full Court of the Federal Court said this (at [18]): "It is necessary for the applicant to apply for leave to appeal as the judgment of Weinberg J was interlocutory rather than final, notwithstanding the consequence of the decision for the applicant. Whether a judgment is final, as distinct from interlocutory, depends upon whether the judgment finally determines the rights of the parties to proceedings: Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246 at 248. As was pointed out in Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 at 242: 'In applying this test, the court must have regard to the legal rather than the practical effect of the judgment, so that the question is whether the judgment finally determines, in a legal sense, all the rights of the parties that are in issue in the proceedings ... ' Although Weinberg J dismissed the applicant's action or proceeding because of lack of jurisdiction, the judgment has not, in a legal sense, determined the rights of the parties that were in issue in that proceeding. Thus, the substantive claims of the applicant, particularly in respect of s 47 of the Corrections Act, remain undetermined. It has been established in a number of authorities that dismissal of an action on the ground that it does not disclose a reasonable cause of action is interlocutory and not final: Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326 at 1328; Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601; Weatherall v Satelite Receiving Systems (Australia) Pty Ltd [1999] FCA 741; Wickstead v Browne (1992) 30 NSWLR 1 at 11; Little v State of Victoria [1999] 4 VR 596. Although a different view was taken in Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 at 149, that view appears to be inconsistent with a long line of authority." 15In Wilson v Official Trustee in Bankruptcy [2000] FCA 304 at [18] a differently constituted Full Court said, after referring to Minogue: "[18] Although the primary judge dismissed the applicants' motion as an abuse of the process of the Court, the judgment has not, in a legal sense, determined the rights of the parties. It has been established in a number of authorities that dismissal of an action on the ground that it does not disclose a reasonable cause of action is interlocutory and not final ... As was pointed out in Minogue v Williams (supra) a different view was taken in Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 at 149. That view appears to be inconsistent with a long line of authorities." 16Indeed, Florida Investments has been doubted in Western Australia itself: see Glendinning v Cuzeus [2009] WASCA 21 at [23]-[24] per Pullin JA and Newnes AJA, although so far as the researches of counsel and my own researches disclose, it has not so far been formally overruled. None of the decisions to which I have just referred are mentioned in the text on which the appellant placed reliance. 17Accordingly, by reason of Macatangay, I am bound to dismiss the appeal. Costs 18The question of costs, which the State pressed, is more difficult. The appellant says that he should not be ordered to pay the State's costs. He points to the mandatory language of r 51.41, with which the State did not comply. He said that there was, in light of Florida Investments and the statement in the text to which I have referred, a real point to his application. The appellant said to me - although there was no evidence of this - words to the effect, "I would not have taken this point except for the authority of this book". He also, on a couple of occasions, submitted that there had been a deliberate attempt by the State to cause delay and to increase his costs. As to the last submission, I should say immediately that although there was an incorrect statement made on behalf of the State by the senior solicitor with carriage of the matter, there is no evidence before me capable of sustaining that submission, and I reject it. 19Ordinarily, the starting point for the exercise of the costs discretion in s 98 of the Civil Procedure Act 2005 (NSW) is that costs should follow the event: r 42.1. That rule is expressed to be "Subject to this Part", but it is also necessary for it to be construed in light of the UCPR as a whole, and in particular, in light of the special provision made by r 51.41 which is in mandatory terms ("the respondent is not entitled to costs of the appeal"). The provisions of r 51.41 represent, in my view, "an exhaustive definition" of the manner as to which the s 98 power to make orders as to costs is to be exercised in cases of this kind. They also reflect a "particular provision which prescribes the mode in which [the power] shall be exercised and the conditions and restrictions which must be observed". The previous two sentences echo the language of the High Court in Downey v Trans Waste Pty Ltd (1991) 172 CLR 167 and Anthony Hordern & Sons Ltd v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1. In accordance with the settled principles of construction there identified by the High Court, the general language of r 42.1 is displaced. 20I did not understand Ms Allars, who appeared for the State, to contend to the contrary. Instead, she said that the "costs of the appeal" to which the successful respondent was not entitled in r 51.41(2)(a) were distinct from the costs of the objection for want of competency, which costs were outside the scope of the rule. Alternatively, she invited me to "otherwise order", in light of the fact that there was no prejudice to the appellant by what was, at most, five days' delay on behalf of the State. She referred to what she said was the comparable decision of Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [52]-[53]: "[52] The time for the filing of the Council's motion to dismiss summarily on the ground that the appeal was frivolous or vexatious was not so limited. The rules, however, contemplate that even if not filed within that 28 day period, the appeal may nevertheless be dismissed as incompetent. The relevance of this rule in the present case would thus be as to the costs implications of the objection to competency not being made within the 28 day period. The rule in r 51.41(2) has been applied in Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 and Falamaki v Wollongong City Council [2001] NSWCA 55, where it was said that generally respondents who fail to object to the competency of an appeal will not be awarded their costs even though the appeal may be held to be incompetent. The Court does, nevertheless, retain the discretion to make an order for the costs of the appeal otherwise than as contemplated in sub-rule (2) where it is deemed appropriate. [53] Here, the delay in lodging a challenge to competency, was only a period of some 10 days. There is nothing to suggest that Mr Asuzu incurred unnecessary costs in pursuing his appeal in that period. Moreover, the balance of the Notice of Motion would have succeeded in any event. I consider that it would be appropriate in those circumstances for the costs to follow the event. However, I will hear any further brief oral submissions before making such a costs order." 21I respectfully disagree with the distinction urged upon me by Ms Allars between costs of the appeal and costs of the application for dismissal for want of competency. It was not suggested that there was any authority on the point, so I approach the question as a matter of construction. 22First, the application for dismissal is an aspect of the appeal. It is an application made by motion within the proceeding whose originating process is the appeal. It is determined in the exercise of the Court's jurisdiction to determine whether it has jurisdiction. All courts, whether superior or inferior, have the authority to decide whether a claim that is made in the Court is within its jurisdiction: see, most recently, State of NSW v Kable [2013] HCA 26; 87 ALJR 737 at [31]. It is natural to regard the costs of such an application as falling within the ordinary meaning of the phrase "costs of the appeal". Plainly enough, Ward JA was of that view, in the passage in Asuzu reproduced above, although the point does not seem there to have been argued. 23Secondly, if Ms Allars' construction be correct, then it would seem that there is a gap in the regime established by r 51.41. Those provisions deal carefully, and indeed prescriptively, with the "costs of the appeal", but on Ms Allars' construction are silent as to the costs of the objection to competency. That does not strike me as a likely construction of the provisions. 24Thirdly, the evident purpose of the mandatory language in (1) and the displacement of the ordinary rules as to costs in (2) is to encourage objections to competency to be brought promptly - to minimise the inconvenience and cost to the Court and to the putative appellant. I am required to prefer a construction which would promote the purpose or object underlying r 51.41: see s 33 of the Interpretation Act 1987 (NSW). Ms Allars' construction is contrary to that purpose or object. 25Accordingly, I consider that the costs of the appeal include the costs of the application which I have determined in favour of the State dismissing the appeal for want of competency. It follows that the State is not entitled to its costs, by reason of r 51.41(2)(a), unless I am persuaded to otherwise order. 26The onus therefore shifts to the State to persuade me to displace the default position contemplated by the rule. In support of this, the State points to the absence of demonstrated prejudice by the very slight delay that has occurred. However, the appellant says, correctly, that he was obliged by the rules to file and serve copies of the Red Book required by r 51.31 on all parties within six weeks of filing his notice of appeal. The State did not advise him of its objection to competency until five of those six weeks had passed, and he proceeded to comply with the rules in the remaining few days. He says, and I would infer from the fact that Red Books were filed, that he incurred expense by doing so. Unlike Asuzu, this is not a case where there is no evidence of any prejudice caused by a slight delay in the notification of the objection to competency. The date that the cover of the Red Book bears is 1 July 2014. It was filed on 2 July 2014. 27On the other hand, there is nothing in the material served by the State to explain why it waited until the very last day to advise of its objection to competency and to serve its motion. It was the State that had brought the application for summary dismissal in the first place. The parties had been communicating by email with each other. Although I am conscious of how easy it is to identify the position after the event, it seems to me that there is no reason why it should have taken four weeks, or anything like four weeks, to determine and obtain instructions to the effect that leave to appeal was required from the summary dismissal of the statement of claim. Further, so far as I can see, there was no obstacle to the motion being preceded by a letter identifying the position taken by the State and the reasons for it. 28There is also before me no explanation for an erroneous statement by the senior solicitor with carriage of the matter (whose affidavit was read on the State's application), in response to the prompt email from the appellant to the effect that his email address had been mistyped when the notice of motion was originally served, that "I note that the notice of motion was also served by mail and received by you on 23 June 2014, thus having been served within time." 29There is a final matter. The parties and, in the case of the State, its lawyers, were at all times under an obligation to facilitate the just, quick and cheap resolution of the dispute. I have some sympathy for the position taken by the appellant. He maintained, correctly, that the State was out of time, contrary to the position taken by the Crown Solicitor. He also maintained, incorrectly, that he could appeal as of right, but he had a unanimous decision of an intermediate appellate court, and its unequivocal endorsement in a current practitioner text, in his favour. It is not necessary for me to decide whether the duty imposed by s 56 of the Civil Procedure Act required, in the circumstances of this case, bringing to the appellant's attention more promptly than occurred the decisions on which the State relied. It does seem clear that had that been done, the appellant's ill-founded reliance on Florida Investments would have been exposed, and there is at least a chance that the argument before me and the expense to the State would not have been necessary. 30For those reasons, I do not regard this as an appropriate case to otherwise order so as to displace the default position imposed by r 51.41(2). 31Finally, the appellant asks me to waive the filing fee for the filing of a summons seeking leave to appeal, in light of the fact that he has already paid a large filing fee for his notice of appeal. I do not propose to do so. It remains open to him to apply for the fee to be waived, in accordance with the guidelines available from the registry, in the event that he chooses to apply for leave. I would recommend however that before he chooses to take that step, if he is minded to do so, he does obtain advice as to what is required to be shown in order for there to be a grant of leave from the interlocutory decision of the primary judge with which he is dissatisfied. 32Accordingly, the orders that I make are: (1) That the appeal be dismissed as incompetent. ********** 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. Decision last updated: 25 July 2014