Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McGinn v Cranbrook School (No 2) [2015] NSWCA 419 Hearing dates: On the papers Decision date: 22 December 2015 Before: Leeming JA Decision: The notice of motion filed 4 December 2015 is dismissed with costs. Catchwords: PRACTICE – application to set aside order – allegation order made irregularly, illegally or against good faith – UCPR r 36.15 – no basis for setting aside order demonstrated Legislation Cited: Supreme Court Act 1970 (NSW), ss 46, 101 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 36.15, 51.61 Cases Cited: AB v State of New South Wales [2014] NSWCA 243 Clarke v State of New South Wales [2015] NSWCA 27 Donnelly v Australia and New Zealand Banking Corporation [2015] NSWCA 233 Kwon v Cha; Kwon v O'Neill [2015] NSWCA 111 Macatangay v New South Wales (No 2) [2009] NSWCA 272 McGinn v Cranbrook School [2015] NSWCA 378 N'Ge-Sala v NSW Police Force [2015] NSWCA 76 Pi v Pierce and Attorney General for NSW [2015] NSWCA 118 Wang v Johnston Vaughan [2015] NSWCA 35 Category: Procedural and other rulings Parties: Sophia McGinn (Applicant) Cranbrook School (Respondent) Representation: Counsel: Applicant in person File Number(s): 2015/299498 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2015] NSWSC 1485 Date of Decision: 2 and 8 October 2015 Before: Hall J File Number(s): 2015/214153 [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.] Judgment 1. LEEMING: On 30 November 2015 I dismissed an appeal purportedly brought as of right by Ms Sophia McGinn, from orders made by a judge sitting in the Common Law Division of the Supreme Court dismissing proceedings brought by her pursuant to r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). I did so in accordance with Macatangay v New South Wales (No 2) [2009] NSWCA 272, which I regarded as authority, binding on me, that an order pursuant to r 13.4 is interlocutory, such that an appeal lies only with leave. As much was pointed out to Ms McGinn in advance of the hearing by the respondent School, and by the Registrar of this Court, as well as by me in argument. 2. By notice of motion filed 4 December 2015, Ms McGinn seeks the following orders: "1. Set aside the judgment by Leeming JA on 30 November 2015 pursuant to UCPR r 36.15(1), on the basis that the judgment was entered irregularly as no affidavit was filed, was given illegally as no evidence was before the court, and was given against good faith. 2. The Respondent's Notice of Motion filed on 9 November 2015 be dismissed on the basis that no evidence and/or no admissible evidence was tendered in support of the motion. 3. Costs." 1. In order to explain the basis on which Ms McGinn seeks those orders, it is necessary to describe the way in which the hearing on 30 November 2015 occurred. The School had moved, by notice of motion filed on 9 November 2015, to dismiss Ms McGinn's appeal for want of competency. The School had served an affidavit in support of its application, which was the subject of a series of objections by Ms McGinn. Further, when the School sought to read an affidavit, there was a dispute as to whether another affidavit had been served (counsel for the School said it had been served by email; Ms McGinn denied that she had received it), and there was no affidavit of service. In those circumstances I raised with counsel for the School whether the affidavits were needed, and there was the following exchange: "MAY: There is an exhibit which simply annexes the earlier affidavits, the earlier judgments, and the transcript in the proceedings and some correspondence which Ms McGinn has received a copy of the exhibit. HIS HONOUR: Perhaps I am being too simplistic. Either you're right, an appeal from a summary judgment like this requires leave and the present appeal is incompetent and you win or you're wrong and your motion will be dismissed. Either way I cannot understand what the material you've just referred to, some of which is voluminous and some of which Ms McGinn says she hasn't seen and, as I understand it, you can't prove was served upon her, why I need to have it at all. MAY: I'm content not to read those affidavits." 1. After hearing from both parties, I dismissed the appeal as incompetent, exercising the power conferred by s 46(1)(b) of the Supreme Court Act 1970 (NSW): McGinn v Cranbrook School [2015] NSWCA 378. 2. Ms McGinn filed an outline of submissions in support of her motion on 15 December 2015. She did so having been advised by the Registrar that motions such as hers are usually heard by the judge whose decision is being sought to be reopened, on the papers and without the opportunity for parties to attend. The Registrar, after receiving her submissions, raised two points not addressed in them with her, and asked, "are you intending to file further submissions concerning those points, or are the submissions that you have filed the only submissions that you wish the Court to consider?" By her response later that day (17 December 2015), Ms McGinn indicated that she did not wish to make further submissions unless the Court decided to invite the School to respond to the motion. The Registrar had determined that the School would only make submissions if the Court invited it to do so. 3. Ms McGinn's written submissions invoke UCPR r 36.15(1). That subrule is in the following terms: "(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith." 1. Ms McGinn's submissions seek to invoke that power relying on three bases. The first is that "the respondent failed to file an affidavit in support of its motion is a breach of the rules, therefore, the Leeming J's judgment was entered irregularly" [sic]. The second is that "Justice Leeming failed to provide any evidence to support his claim, therefore, the judgment was given illegally, in that, the court has no power to dismiss the appeal without evidence". The third is that "the judgment is given against good faith, in that, Justice Leeming is using s 46(1)(b) as an excuse to justify his erroneous decision." 2. I am unpersuaded that there is any error in the decision of 30 November 2015, let alone that the judgment was given irregularly, illegally or against good faith. The only question was the competence of Ms McGinn's appeal. Sometimes, the question of competency turns upon evidence (for example, evidence establishing that there is an amount in issue exceeding $100,000). Sometimes, as here, the competency of a purported appeal does not turn on evidence. On the face of the notice of appeal, Ms McGinn maintains that she has a right of appeal from an interlocutory judgment of the primary judge. Authority is to the contrary. In addition to Macatangay, see Clarke v State of New South Wales [2015] NSWCA 27 at [14], Wang v Johnston Vaughan [2015] NSWCA 35 at [26], Kwon v Cha; Kwon v O'Neill [2015] NSWCA 111 at [28] and Pi v Pierce and Attorney General for NSW [2015] NSWCA 118 at [1]. The fact that Ms McGinn has purported to invoke this Court's jurisdiction by filing a notice of appeal from orders which are interlocutory is both uncontroversial and also established on the face of the court file. 3. I turn more particularly to each of the matters raised by Ms McGinn. First, Ms McGinn may well be under the impression that the provisions in the rules dealing with notices of motion and affidavits in support are mandatory, and entitled her to a different result. It is true that UCPR r 51.61(1)(a), which requires the filing of a supporting affidavit for a notice of motion, is expressed, in part, in mandatory terms. However, that rule commences with qualifying words not reproduced in her written submissions: "unless the Court orders otherwise". In any event, the School did file an affidavit in support of its motion, although it chose not to read it. Secondly, as I have said, evidence is unnecessary to support the question of competence on this occasion, which turns on matters which are indisputable and obvious on the face of the documents that Ms McGinn has filed. Thirdly, although Ms McGinn complains that the decision adverse to her has been given against good faith, in reality the Court was merely applying the conditions imposed by subss 101(2)(e) and (l) of the Supreme Court Act 1970 (NSW) which qualify Ms McGinn's right of appeal. Ms McGinn only ever had such rights of appeal as were conferred by statute, and s 101(2)(e) and (l) have at all times qualified that right. The fact that s 46(1)(b) authorises a single judge to dismiss an appeal as incompetent has been regularly applied (see, for recent examples, AB v State of New South Wales [2014] NSWCA 243, N'Ge-Sala v NSW Police Force [2015] NSWCA 76 and Donnelly v Australia and New Zealand Banking Corporation [2015] NSWCA 233). 4. The consequence of the foregoing is that there has been no determination of the underlying merits of Ms McGinn's appeal. But the reason that that has occurred is entirely of her own making. It has been pointed out to her, repeatedly, that she needs to apply for leave. She has at no time given any clear answer to why, in light of law which is well-settled, she has not sought to apply for leave to appeal. 5. In those circumstances, there is no utility in inviting the School to respond to Ms McGinn's notice of motion. The notice of motion should be dismissed. To the extent that there have been (it is to be inferred, relatively small) costs incurred by the School, Ms McGinn should pay those 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. Decision last updated: 22 December 2015