Court of Appeal Supreme Court New South Wales Medium Neutral Citation: French v Bremner [2020] NSWCA 77 Hearing dates: 20 April 2020 Date of orders: 24 April 2020 Decision date: 24 April 2020 Before: Basten JA Decision: (1) Vacate the direction for the hearing of the appellant's motion on 4 May 2020. (2) Dismiss the appellant's motion filed on 17 December 2019. (3) Order that the costs of the motion be costs in the appeal. (4) Set aside the directions made by the Registrar on 1 April 2020. (5) Return the matter to the Registrar's list for further directions after the parties have had an opportunity to agree and appropriate timetable. Catchwords: CIVIL PROCEDURE – application to vacate hearing date – COVID-19 pandemic – appellant with chronic medical condition living in the country – difficulty in coming to Sydney to prepare court books and seek legal advice – date fixed in absence of appellant through no fault on his part CIVIL PROCEDURE – federal jurisdiction – application to remove matter to High Court – whether Judiciary Act 1903 (Cth), s 40(2) engaged – failure of respondent to file appearance in High Court – summary judgment sought in default of appearance –removal to the High Court not ordered CONSTITUTIONAL LAW – federal jurisdiction – jurisdiction of Supreme Court to make order which could be made by a Justice of the High Court sitting in chambers – whether Judiciary Act 1903 (Cth), s 17 engaged – jurisdiction of High Court to control its business – Constitution, s 73 Legislation Cited: Constitution, ss 51(xviii), 73 Judiciary Act 1903 (Cth), ss 17, 35, 35A, 40 Family Law Act 1975 (Cth), s 95 High Court Rules 2004 (Cth), r 26.07.1 Cases Cited: Collins v The Queen (1975) 133 CLR 120, 122; [1975] HCA 60 DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 French v Provident Capital Ltd (Receivers and Managers Appointed) (In liq) [2020] HCASL 46 LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575, 581; [1983] HCA 31 Category: Procedural and other rulings Parties: Andrew Boyd French (Appellant / First Cross-Respondent) Christopher Bremner (Respondent / Cross-Appellant) Gabrielle June Bakey (Second Cross-Respondent) Representation: Counsel: Appellant in person Mr A Harding (First Respondent) Ms G Bakey in person (Second Cross-Respondent) Solicitors: Applicant self-represented Johnson Winter & Slattery (Respondent) File Number(s): 2019/285092 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity – Commercial List Citation: [2019] NSWSC 1033 Date of Decision: 15 August 2019 Before: Parker J File Number(s): 2014/101136 [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. BASTEN JA: The appellant, Andrew Boyd French, is the inventor of magnetic coupling technology designed to allow the removal of physical connections such as pulleys, gears and cogs, which are the conventional means of transferring power, for example, from a drive shaft to wheels or a propeller. [1] Mr French was also involved in purchasing properties. For some years he engaged in various activities in partnership with Dr Christopher Bremner, who financed many of Mr French's property deals and arrangements to commercialise his inventions. Other financial accommodation was obtained from Provident Capital Ltd, now in liquidation, but a party to the proceedings below. In about 2011 the partners fell out. In 2014 Mr French commenced proceedings in the Equity Division against Dr Bremner. Dr Bremner cross-claimed against Mr French. The proceedings were determined by Parker J on 15 August 2019, largely in favour of Dr Bremner, although he did not obtain all of the relief which he had sought in his cross-claim. 2. On 12 September 2019 Mr French filed a notice of intention to appeal in this Court from the judgment of Parker J. A notice of appeal was filed on 15 November 2019. 3. Prior to filing the notice of appeal, namely on 15 October 2019, Mr French filed in the High Court of Australia an application for removal of the proceedings in this Court. The application for removal contained a required notice to the respondent advising that before taking any step in the proceedings he must "within 14 days after service of this application, enter an appearance in the office of the Registry in which the application is filed and serve a copy on the applicant." 4. The application was sent to Dr Bremner care of the solicitors, Johnson Winter & Slattery, who had acted for Dr Bremner in the Supreme Court proceedings. On 27 November 2019 they wrote to Mr French indicating that, although they had received copies of the notice of appeal filed in this Court and an amended application for removal filed in the High Court, they did not have instructions to act for Dr Bremner in relation to either of those proceedings. Nevertheless, two days later, on 29 November 2019, the solicitors sent a letter to Mr French advising that they now had instructions in relation to the Court of Appeal proceedings and, on the same day, filed not only an appearance, but also a notice of cross-appeal on behalf of Dr Bremner. Both Mr French and his de facto partner, Gabrielle June Bakey, were named as cross-respondents. 5. Despite the solicitors' letter of 27 November 2019, Mr French remained of the view that they did have authority to accept service and proceeded to take steps to have default judgment entered against Dr Bremner in the High Court. He did so by filing a notice of motion on 17 December 2019 in this Court. By that step, Mr French sought to invoke a jurisdiction conferred on the Supreme Court, by s 17(1) of the Judiciary Act 1903 (Cth), to hear and determine an application which could be made to a Justice of the High Court sitting in Chambers. Such federal jurisdiction may be exercised by a single judge of the Supreme Court sitting in chambers, and the order of the judge shall have the effect of an order of a Justice of the High Court sitting in Chambers: s 17(2). 6. Pursuant to s 40(2) of the Judiciary Act, where there is a matter pending in a court of a State involving the exercise of federal jurisdiction, the High Court may order that the cause be removed into the High Court on such terms as the Court thinks fit. However, the Court "shall not" make an order under that provision unless it is satisfied that it is "appropriate to make the order having regard to all the circumstances, including the interests of the party and the public interest": s 40(4). 7. While it initially appeared that what Mr French sought was an order for removal of the proceedings to the High Court, and a consequential stay of any further steps being taken in the proceedings in this Court, it became apparent on the hearing of the motion that he in fact sought a default judgment for the relief sought, including damages for the loss of partnership property, for the loss of patents and the loss of an opportunity to enjoy the fruits of the patents. He asserted that there was sufficient material annexed to an affidavit filed by him in the High Court proceedings (and an affidavit filed in this Court) to support his claims for default judgment on the substantive issues. There are multiple reasons why this application must be rejected. Proposed removal to High Court 1. Dealing first with the order for removal, s 40(2) requires that a cause sought to be removed is "pending in a court of a State". No such cause was pending at the time the removal application was filed; an appeal is not commenced by a notice of intention to appeal. Then the cause must involve "the exercise of federal jurisdiction" by the state court. There was limited attention to the nature of the federal jurisdiction being exercised by this Court (other than in considering whether to exercise jurisdiction under s 17 of the Judiciary Act). Mr French appears to have relied upon the fact that s 51(xviii) of the Constitution confers power on the Commonwealth Parliament with respect to "patents of inventions" (and copyright, designs, and trademarks). To the extent the subject matter of one part of his claim involved the loss of an opportunity to exploit an Australian patent with respect to his inventions it was arguable that there was a matter arising under a federal law because the subject matter of his claim arose under a federal law: LNC Industries Ltd v BMW (Australia) Ltd. [2] 2. Nevertheless, even if there were power to order the removal of the proceedings in this Court to the High Court, this is not a case in which such an order would be made by this Court. 3. First, the power under s 17 of the Judiciary Act is only engaged in relation to a "matter pending in the High Court". By analogy with an application for special leave to appeal, there is no matter pending in the High Court until the order for removal is made. [3] Secondly, an application for removal cannot be made to "a Justice of the High Court sitting in Chambers", as required to engage s 17. The Rules require that an application for removal be determined by two justices. [4] 4. Even assuming that a judge of this Court had power under s 17 of the Judiciary Act to order the removal of a cause from this Court to the High Court, there are yet three major obstacles to Mr French's claims for relief. The first is that an order for removal would not be made as a right, even in circumstances where the proposed respondent had not filed a notice of appearance. The court would need to be affirmatively satisfied as to the criteria constraining power conferred by s 40(2) and (4) of the Judiciary Act. That power would not in the present circumstances be exercised; neither the interests of the parties, nor the public interest, favour removal. Such an order would subvert the general requirement that appeals to the High Court will only follow a grant by two or more justices of that Court of special leave to appeal: Judiciary Act, s 35. Almost invariably, such a grant would relate to a judgment of an intermediate appeal court. The criteria circumscribing the grant of leave are restrictive: Judiciary Act, s 35A. This is not the time or place to consider the circumstances in which an order for removal might be made by the High Court, let alone by a judge of this Court. 5. Secondly, again assuming that the power existed, a judge of this Court would not exercise a power so as to impose an obligation on the High Court to consider a matter. The difficulties arising from such a power conferred by s 95(b) of the Family Law Act 1975 (Cth), empowering the Full Court of the Family Court to grant a certificate providing for an appeal to the High Court, were considered in DJL v The Central Authority. [5] It is manifestly in the public interest that the High Court control the exercise of its own judicial functions. In any event, as noted in DJL with respect to s 95(b) certificate, the formal order of the Family Court in granting a certificate would engage the operation of s 73 of the Constitution so that it could be reviewed by the High Court. [6] The same result would attach to an order for removal made by a judge of this Court. 6. Thirdly, on 11 March 2020, the High Court (Nettle and Gordon JJ) dismissed the application for removal without listing it for hearing. [7] Accordingly, there is no application pending in the High Court which could be the subject on any view of an order by a judge of this Court. 7. Mr French sought to avoid this last obstacle by noting that when his notice of motion had been filed last December, the respondents were in default and no order had been made by the High Court. Those statements may be true; they provide no basis for this Court to make an order in circumstances which no longer exist. Proposed summary judgment 1. Dealing next with the proposal to order substantive relief in default of an appearance in the High Court, it follows that if no order for removal is made, no substantive orders can be made. Nor would such orders be made in any event, either in the High Court or in this Court. It follows that it is not open to this Court to make the orders sought in the notice of motion of 17 December 2019; the motion must be dismissed. Request to vacate hearing date 1. In the course of oral submissions, Mr French expanded his application to request vacation of the hearing of his appeal which had been fixed for 15 July 2020. He sought vacation of the hearing date on the basis that he lived in the country, was not able to come to Sydney in order to prepare the necessary court books and to seek legal advice, or indeed to visit a hospital which he needed to do to obtain treatment for a chronic condition. He also stated that he wished to be present in court to present his case, which could not occur under the present arrangements during the State lockdown for the COVID-19 pandemic. He sought that a new date be fixed for 10 February 2021. 2. Ms Bakey also appeared by telephone unrepresented and expressed distress that Dr Bremner had filed a cross-appeal joining her as a party in circumstances where no relief had been granted against her by the trial judge. 3. Counsel for Dr Bremner was content to work towards the proposed hearing date and indicated that, subject to arrangements as to cost, his client would be prepared to take responsibility for preparing the court books. (Arrangements are not yet in place for the preparation of court books.) However, he was not opposed to the vacation of the hearing date. 4. It was common ground that the hearing date was fixed by the Registrar at a directions hearing on 1 April 2020 on an occasion when Mr French was not in attendance, because he had not been informed by the Court of the means of joining the telephone directions hearing. The matter has been set down on the basis of a hearing to take "one day plus" and in circumstances where it is not presently known whether the parties will be able to attend the Court in person. Further, although in cases where the parties are represented by lawyers, audio-visual links have provided a satisfactory means of conducting appeals, it is not clear whether Mr French and Ms Bakey have access to the necessary equipment. It would not be entirely satisfactory if they were to be restricted to telephone appearances, whilst Dr Bremner's lawyers were able to attend by audio-visual link. Indeed, there are considerations favouring unrepresented litigants being granted the opportunity to appear physically before the court on the final hearing of their matters. It should not be assumed, however, that that will not be possible this year. 5. Orders were made on 1 April in relation to the filing of submissions and the hearing of the motion, which was listed for 4 May 2020. If, as it appears, that motion was the one now before the Court, those orders are otiose. If the hearing date is vacated, the orders made to prepare the appeal for hearing on that date may be relaxed. 6. The preferable course in these circumstances is to set aside the directions made by the Registrar on 1 April 2020 and return to the matter to the Registrar's list for further directions to be made, preferably in accordance with a timetable agreed between the parties, with the expectation that the appeal may be listed later this year. Orders 1. Accordingly, the Court makes the following orders: 1. Vacate the direction for the hearing of the appellant's motion on 4 May 2020. 2. Dismiss the appellant's motion filed on 17 December 2019. 3. Order that the costs of the motion be costs in the appeal. 4. Set aside the directions made by the Registrar on 1 April 2020. 5. Return the matter to the Registrar's list for further directions after the parties have had an opportunity to agree an appropriate timetable. ********** Endnotes 1. French v Bremner [2019] NSWSC 1033 at [63]. 2. (1983) 151 CLR 575, 581; [1983] HCA 31. 3. Collins v The Queen (1975) 133 CLR 120, 122; [1975] HCA 60; DJL v The Central Authority (2000) 201 CLR 226; [2000] HCA 17 at [47] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). 4. High Court Rules 2004 (Cth), r 26.07.1. 5. Above, fn 3, at [12]-[15]. 6. DJL at [11] and [14]. 7. French v Provident Capital Ltd (Receivers and Managers Appointed) (In liq) [2020] HCASL 46. Amendments 24 April 2020 - Correcting numbering of orders on coversheet and at [22]. 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: 24 April 2020