Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Van Gorp v Davy [2017] NSWCA 167 Hearing dates: 6 July 2017 Date of orders: 06 July 2017 Decision date: 06 July 2017 Before: McColl JA at [1] and [29] White JA at [27] Decision: Application for leave to appeal dismissed with costs. Catchwords: APPEAL – leave to appeal – where primary judge dismissed applicant's case on grounds of insufficient evidence due to his failure to appear – where non-appearance said to be due to illness – alleged illness not communicated to primary judge – alternative remedy available – Uniform Civil Procedure Rules 2005 (NSW), rr 29.7(2), 29.7(4), 36.16(2)(b) Legislation Cited: Civil Procedure Act 2005 (NSW) Local Court Act 2007 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Gibson v Drumm [2016] NSWCA 206 House v The King (1936) 55 CLR 499; [1936] HCA 40 Michail v Mount Druitt & Area Community Legal Centre Inc [2015] NSWCA 396 NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 Van Gorp v Davy (2014/175601) Van Gorp v Davy (2015/331605) Van Gorp v Davy [2016] FCA 1385 Category: Principal judgment Parties: Sean Cornelius Van Gorp (Applicant) Kate Louise Davy (Respondent) Representation: Counsel: Self-represented (Applicant) D O'Sullivan (Respondent) Solicitors: Self-represented (Applicant) Macphillamy's (Respondent) File Number(s): 2017/67444 Publication restriction: No Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: Ex tempore Date of Decision: 02 February 2017 Before: Fagan J File Number(s): 2016/81705 [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. McCOLL JA: The applicant, Mr Sean Cornelius Van Gorp, seeks leave to appeal from a decision of the Supreme Court in which his Honour Justice Fagan dismissed his summons seeking leave to appeal from two decisions made in Local Court proceedings between the applicant and the respondent, Ms Kate Davy, who is the applicant's ex-wife. [1] The primary judge dismissed the summons under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 29.7 on the basis that the applicant did not appear and, accordingly, his Honour was not presented with evidence upon which leave to appeal could be granted. 2. Leave to appeal to this Court is necessary because the judgment involves a claim of less than $100,000 in value and because it is interlocutory. [2] 3. In the Local Court proceedings, by statement of claim filed on 7 June 2014, the applicant sought to recover an amount of $68,411 he claimed the respondent owed him (First Local Court proceedings). [3] On 31 March 2015, the Court by consent, ordered that there be verdict for the respondent with the applicant to pay her costs (consent orders decision). [4] 4. On 11 November 2015, the applicant filed a statement of claim in the Local Court seeking to recover from the respondent the same amount of $68,411 (Second Local Court proceedings). [5] On 25 February 2016, the application was struck out on the basis the matter had been determined by the consent orders (strike out decision). Costs were awarded in the respondent's favour on an indemnity basis. [6] 5. The applicant sought leave to appeal to the Supreme Court from the decisions in both the First and Second Local Court proceedings. Leave to appeal was required because the judgment in the First Local Court proceedings was an order made with the consent of the parties and the judgment in the Second Local Court proceedings was interlocutory. [7] 6. The leave application was listed for hearing on 2 February 2017. The applicant failed to appear at the hearing. As the primary judge explained, the applicant had previously appeared at four directions hearings in the matter, including the directions hearing at which the date for the hearing was set. He had also communicated with the primary judge's chambers earlier that week regarding the necessity to prepare court books. [8] 7. When the matter was called on on the morning of the hearing and the applicant did not appear, the Court dealt with another matter in the list and returned to his summons at 10.55am. He was called three times outside the Court and still did not appear. The Court then adjourned for half an hour to enable the respondent's counsel to try to contact him by telephone. Those attempts were unsuccessful. In addition, the primary judge's associate sent an email to the applicant at approximately 11.15am informing him of the proceedings to that date, and advising that, if he did not appear at 11.30am, the case would proceed in his absence. At 11.30am the Court resumed dealing with the list. The applicant was called three times again outside the Court, but did not appear. 8. The respondent then moved for the proceedings to be dismissed pursuant to UCPR r 29.7(4). 9. Insofar as the leave application seeking to challenge the consent orders decision was concerned, the summons seeking leave to appeal was filed approximately 11 months late. The primary judge observed that to obtain leave, the applicant would have to provide an explanation by way of evidence as to the reasons for the delay and, too, demonstrate he had a fairly arguable case which could be dealt with without prejudice to the respondent. [9] Insofar as the Second Local Court proceedings were concerned, the primary judge held that that leave application hinged on the applicant's ability to obtain leave in respect of the consent orders decision as, should that decision stand, the strike out decision had been inevitable. 10. As to the Second Local Court proceedings, the primary judge also stated that leave to appeal would only be granted if the applicant could demonstrate an error of principle or a matter of public importance or an injustice which was reasonably clear in the sense of going beyond what is merely arguable. [10] His Honour held that for the summons to be dealt with in that respect, the applicant was required to "go into evidence and present arguments" to prove that the aforementioned tests were satisfied so as to justify a grant of leave in his favour. [11] 11. Accordingly, the primary judge concluded that none of the relief the applicant sought could be granted without him giving evidence. 12. His Honour found that the Court was empowered to proceed with the matter in the absence of a party "when a trial is called on" within the meaning of UCPR r 29.7 and having regard to the definition of "trial", namely "any hearing that is not an interlocutory hearing". [12] His Honour concluded: "In reliance on r 29.7(2) UCPR I proceed to the determination of the Summons generally. As no evidence has been tendered by [the applicant] as moving party, there is no support for the matters of fact which would need to be established to enable me to exercise the Court's discretion to grant leave. It follows that leave cannot be granted." [13] 1. His Honour dismissed the summons, ordering the applicant to pay the respondent's costs. [14] 2. The applicant filed and served a notice of intention to appeal from this decision on 3 March 2017, and a summons seeking leave to appeal on 3 May 2017. 3. The applicant appears for himself today. In the draft notice of appeal, the following appears under the heading "appeal grounds": "[1] The Applicant was unable to appear at the hearing due to a last minute illness on the morning of the hearing, which I advised the Court of a few days later. His Honour, having said that 'it is difficult to determine whether there is or isn't an arguable case without hearing the witnesses who give divergent versions of what occurred at court, hearing them cross examined…a definitive finding could be made…', and having established that His Honour was available in the next week and that the respondent's witnesses also could be available then, His Honour should, in the interests of justice, have adjourned the matter for a few days, so that I could be contacted, and so the matter could be properly determined, rather than dismiss my application due to my non-appearance. 2 []" 1. In his summary of argument, the applicant repeats this paragraph but inserts in handwriting in the second paragraph words to the effect that the respondent may be awarded costs should his application for leave to appeal fail. 2. On 3 July 2017 the applicant filed an affidavit dated 30 June 2017 in which he described the nature of his "last minute illness" in the following terms: "[2] On the morning of the hearing before Justice Fagan on 2 February 2017 I awoke at about 7.30am with severe chest pain and was unable to even turn over in bed let alone get up. [3] I soon realised that this was a repeat of the problem I had experienced about 6 times in the last 15 years, being chest pain caused by the vertebrae in my thoracic spine being pulled out of line by the surrounding muscles due to stress. This was the repeated diagnosis I received from my GP and cardiologist in the past after having my heart checked for possible heart attack and having my spine successfully manipulated by a chiropractor to correct the misalignment. [4] As advised to do in the past, I remained in bed for about 4 hours and meditated breathing deeply to relax the muscles, until I was able to get up in the afternoon and do yoga type stretching exercises on the floor, repeating that process over two days until I felt recovered. [5] On 6 February 2017 I emailed the Court registry to advise of my illness and request a copy of the judgment and transcript." 1. These assertions are not supported by any medical evidence such as would demonstrate what medical condition the applicant was suffering from and why that condition would prevent him from travelling to the Court and participating effectively in a court hearing. [15] 2. However, accepting for present purposes this explanation on face value, the applicant offers no explanation as to why, once he was able to leave his bed as he appears to have been able to do by about midday on the day of the hearing, he made no attempt to contact the court or the respondent's solicitor by phone or email, then 4 days after the hearing date, communicated only with the Court registry rather than the primary judge's chambers whose email address was known to him. 3. In his submissions this morning, Mr Van Gorp has referred to the necessity to ensure trials are conducted in accordance with principles of natural justice that litigants have a reasonable opportunity to appear and present their case. He accepts that he was aware the proceedings were listed for hearing but reiterates, as set out in his draft notice of appeal and his affidavit, that he could not attend court on the date of the hearing and really seeks an opportunity to present his case. 4. As a matter of general principle, leave should only be granted where there are substantial reasons that call for appellate review and, in particular, where there is an error of principle, a matter of public importance, or injustice which is reasonably clear in the sense of going beyond what is merely arguable. [16] The amount in issue is also relevant having regard to the case management principles in the Civil Procedure Act 2005 (NSW). [17] 5. The primary judge's decision to dismiss the proceedings pursuant to UCPR r 29.7 was discretionary. As such, in order to obtain leave to appeal, the applicant has to demonstrate that his Honour's exercise of his discretion miscarried either as a matter of principle or in the light of the facts known to him at the time in a manner which would lead to the applicant suffering substantial injustice. 6. The applicant does not point to any error of principle or a matter of public importance. He simply relies upon his alleged, but uncommunicated, illness on the morning of the hearing and to the necessity that he have an opportunity to present his case. The applicant had that opportunity on the day of the hearing. He was, as I have said, accepting his submission, unable to appear on the morning of the hearing due to illness but took no opportunity to communicate with the Court on the day of the hearing, as it appears he would have been able to, according to his own affidavit, nor, as I have said, took any opportunity or took any immediate steps to communicate with the primary judge's chambers to explain the reason he had been unable to appear on the morning of the hearing. 7. It needs scarcely be said, in my view, that the applicant cannot demonstrate any arguable miscarriage of his Honour's exercise of his discretion on the day of the hearing such as would warrant a grant of leave to appeal in the circumstances where his Honour was unaware of the reason for that absence. Nor, in my view, in the circumstances of the applicant's knowledge of the hearing date, his total failure to respond to all attempts to contact him on the day of the hearing and his failure to inform the court promptly of any alleged disability preventing him from attending on the day of the hearing can he, in my view, establish any substantial injustice in the dismissal of his case, the almost inevitable outcome of his unexplained non-appearance. 8. Further, as the respondent submits, the course which was, and remains, open to the applicant to pursue, was to apply to have the judgment set aside pursuant to UCPR r 36.16(2)(b), an application which should preferably have been made to the primary judge as his Honour was seized of the case. 9. The application for leave to appeal should be refused with costs. 10. WHITE JA: I agree. The applicant has not demonstrated error in the primary judge's exercise of his discretion to proceed under UCPR r 29.7 rather than to adjourn the proceeding in circumstances where there was no explanation for the applicant's failure to appear. Such a decision cannot be characterised as unreasonable or plainly unjust (House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40). Particularly is that so given the procedure available to a party where an order is made in the party's absence, to seek to have the orders set aside under UCPR r 36.16(2)(b). As McColl JA has said, that is a course that the applicant could have pursued and still can pursue. The availability of that course is also a material factor that judges can and do take into account when faced with a situation such as that faced by the primary judge. 11. In so saying I am not to be taken as encouraging such a course in the present case. On an application under UCPR r 36.16(2)(b) the applicant would not only be expected to adduce evidence as to the reasons for his non-appearance. He would also be expected to establish that his claim had arguable merit and was appropriately brought by way of an application for leave to appeal from the orders of the Local Court. Without deciding the question, which is not before us, it might be thought that an application to set aside the consent orders made in the Local Court on 31 March 2015 on the ground of fraud should have been brought in separate proceedings (Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 at 697). 12. McCOLL JA: I agree with White JA's additional remarks. The order of the Court therefore is that the application for leave to appeal is refused with costs. ********** Endnotes 1. Van Gorp v Davy (Supreme Court (NSW), Fagan J, 2 February 2017, unrep). 2. Supreme Court Act 1970 (NSW), ss 101(2)(e), 101(2)(r)(i). 3. Van Gorp v Davy (2014/175601). 4. These facts are taken from Van Gorp v Davy [2016] FCA 1385 (Federal Court judgment) (at [10] – [11]) a case involving the same parties as involved in the leave application to which the respondent referred in its Response (at [3]). 5. Van Gorp v Davy (2015/331605). 6. Federal Court judgment (at [14]). 7. Local Court Act 2007 (NSW), s 40(2)(a) – (b). 8. Primary judgment (at page 3). 9. Ibid (at page 1). 10. Primary judgment (at page 2); citing Gibson v Drumm [2016] NSWCA 206; Michail v Mount Druitt & Area Community Legal Centre Inc [2015] NSWCA 396. 11. Primary judgment (at page 2). 12. UCPR, Dictionary; Civil Procedure Act 2005 (NSW), s 3. 13. Primary judgment (at page 4). 14. Ibid. 15. Cf NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 (at [6]) per Lindgren J. 16. Gibson v Drumm (at [19]). 17. Ibid (at [20]). 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: 26 March 2018