Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Kelly v Mosman Municipal Council [2012] NSWCA 291
• Hearing dates: 31 August 2012
• Decision date: 31 August 2012
• Before: Campbell JA

Decision

(1) The appellant pay the respondents costs of the appeal, save insofar as the appellant has not already been ordered to pay those costs.

(2) Note that this appeal has ended pursuant to the self executing order made by Young JA on 5 March 2012.

(3) Note that the stay that I ordered by order 3 made on 13 December 2012, has terminated.

(4) Direct that no further documents be accepted for filing in the present proceedings without the prior leave of a Judge.

(5) I note that the dismissal of the proceedings pursuant to Young JA's order is, "the determination of the appeal", within the meaning of order 9 made on 13 December 2010, and that the stay thereby ordered has come to an end.

[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: JUDGMENTS AND ORDERS - self executing orders - where court had made orders dismissing appeal unless procedural steps taken within particular time - where required steps not taken within specified time - appeal therefore determined by self executing orders and no longer pending - no power available to Court of Appeal to make orders in litigation that has been brought to a regular end; WORDS AND PHRASES - "self executing orders"
• Legislation Cited: Bankruptcy Act 1966
• Cases Cited: Bailey v Marinoff (1971) 125 CLR 529; Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CRL 52; Kelly v Mosman Municipal Council [2010] NSWCA 370; (2010) 178 LGERA 136; Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205
• Category: Consequential orders
• Parties: Lydia Williams (Applicant/Respondent); Mosman Municipal Council (Respondent/Applicant)
• Representation: Counsel: No Appearance (Ms Williams); Ms JS Gleeson (Mosman Municipal Council); Solicitors: No Appearance (Ms Williams); Pikes Lawyers (Mosman Municipal Council)
• File Number(s): 2010/129103
• Publication restriction: Nil

Decision under appeal

• Jurisdiction: 9106
• Before: Biscoe J
• File Number(s): 40967/2006

Judgment

1 CAMPBELL JA: Two notices of motion are listed before me today. The first of them is a notice of motion filed by Mosman Municipal Council on 14 November 2011 in proceedings 2010/129103 in the Court of Appeal. Those proceedings were brought by the late Mr David Kelly. In them he sought to contest the validity of certain orders that had been made against him in the Land and Environment Court including orders imposing fines for failure to comply with court orders. The history of the matter is set out in a judgment which I delivered in these proceedings on 13 December 2010, (Kelly v Mosman Municipal Council [2010] NSWCA 370; (2010) 178 LGERA 136), and I will not repeat that history here.

2 Amongst the orders that I made on 13 December 2010, were the following:

"(3) I order that the decision of Biscoe J given on 19 June 2009 and 23 February 2010 be stayed pending the determination of any appeal or application for leave to appeal from those decisions.

(4) I grant leave to the respondents to apply to terminate that stay in the event that the appeal or application for leave to appeal is not being prosecuted with reasonable diligence."

3 Certain of the paragraphs of the notice of appeal were also dismissed on 13 December 2010. Another order made on that day was:

"(9) I order the appellant to pay the respondent's costs of the portions of the notice of appeal that have been dismissed, but order that enforcement of any order for payment of those costs be stayed pending the determination of the appeal or further order of the court.

(10) I order that the costs of the notice of motion be costs in the cause."

4 The Council's notice of motion was filed on 14 November 2011. It sought the following orders:

"1 The Stay ordered by His Honour Justice Campbell on 13 December 2010, of the Decision of His Honour Justice Biscoe given on 19 June 2009 and 23 February 2010 be terminated.

2 These proceedings be dismissed.

3 The Appellant pay the Respondent's costs of these proceedings.

4 Such further or other Orders as the nature of the case may require."

5 Before that notice of motion had been taken out, the Federal Court had made a sequestration order against the estate of Mr Kelly. That order was made on 13 July 2011. On 22 July 2011, the solicitors for the Council requested the Official Trustee to make an election under s 60(2) Bankruptcy Act 1966 concerning proceedings 2010/129103 in the Supreme Court of New South Wales Court of Appeal. A letter dated 19 August 2011 from the solicitors for the Official Trustee in Bankruptcy to the solicitors of the Council stated that no election had been made within 28 days and therefore, pursuant to s 60(3) Bankruptcy Act, the action had been deemed to have been abandoned.

6 The Council's notice of motion came before Barrett JA on 20 February 2012. At the same time, his Honour heard a notice of motion brought by Mr Kelly, seeking an adjournment. Barrett J dismissed Mr Kelly's motion seeking an adjournment, but it proved impossible for the Council's notice of motion to be heard to completion on that day. That impossibility arose from a circumstance to which I had adverted in my judgment of 13 December 2010, namely, Mr Kelly's failure to provide an address for service. As had happened on previous occasions in the course of the litigation, Mr Kelly denied that he had received various documents that had been, according to the Council, posted to the post office box that he had invalidly nominated as his address for service. Mr Kelly was provided with those documents in Court on 20 February 2012, and the matter was stood over to 5 March 2012.

7 On 5 March 2012, the Council's notice of motion came before Young JA. Young JA declined to make an order dismissing the proceedings on the basis of Mr Kelly's bankruptcy. His Honour took that course because he had some uncertainty, that had not been adequately resolved by the argument before him, about whether an order arising from a contempt of court was the sort of order that was the subject of a stay under s 60 Bankruptcy Act. I do not desire to express any opinion on that topic myself.

8 By the time the matter came before Young JA, nothing of any substance had been done in the appeal for something in the order of two years. The notice of appeal had been filed on 24 May 2010, and none of the usual interlocutory steps had been taken. In those circumstances, and against the opposition of counsel for the Council, Young JA resolved to give Mr Kelly a further chance to put his house in order. He made orders in the following terms:

"I order that unless the Red Appeal Book and the submissions of the applicant are filed and served no later than 9 am on 16 April 2012 the stay granted by Justice Campbell and the appeal will be discharged and dismissed.

The matter is stood over to my list on 16 April 2012 and I note that Mr Kelly's address for service is [address] Street, Mosman, and that Mr Mullard, accountant, is authorised to accept service."

9 Those orders have been entered in the Court's records. The entry from the Court's records containing the orders, is exhibit A in the application before me.

10 It is clear that the red appeal book and the submissions of the applicant, were not filed and served by 16 April 2012. Mr Kelly had died on 28 March 2012, but no application was made to vary the orders that the Court had made in the light of his death. Indeed, on 13 April 2012, a Ms Lydia Williams filed a notice of motion, that was returnable on 16 April 2012, seeking orders, "that the Court appoint the applicant as representative of David Kelly (deceased) pursuant to UCPR 7-10(2)(b)". That is the second notice of motion that is before me today.

11 The matter came before Young JA on 16 April 2012. On that occasion Ms Williams appeared, and Mr Simpson, who was the solicitor acting for the Council. The only order made on that day was:

"Note that Mr Kelly has died. Ms Williams has filed a motion of 13/4/2012 to continue the proceedings. By consent the motion can stand over for three months to 16/7/2012 before the Registrar at 9am."

12 The effect of a self executing order is well established. In Bailey v Marinoff (1971) 125 CLR 529, this Court had ordered that if certain appeal books were not filed by a particular date the appeal was dismissed. After that date had passed, this Court purported to extend the time for filing the appeal books. The High Court held that this Court had had no power to make the latter order. At 531, Barwick CJ said:

"However wide the inherent jurisdiction of a Court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end."

13 The ratio of the case was that once a self executing order for dismissal of an appeal had operated, there was no pending appeal. That principle has since been repeated on numerous occasions. The cases are collected in Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd (No 2) [2008] NSWCA 205 at [6]-[8].

14 In my view, the appeal proceedings have been brought to an end by the non-compliance with the self executing order of Young JA.

15 I should also record a procedural matter. Ms Williams was not in Court today. There was made available to the Court an "urgent fax" dated 30 August 2012 addressed to my associate, to the Registrar of the Court of Appeal, and to Mr Simpson. While my associate has not received that fax, and at present I do not know whether the Registrar has received it, the copy that was sent to Mr Simpson was received, and it was that copy that has become an exhibit in the case. The fax asserts that Ms Williams has an interest in Mr Kelly's estate, and refers to certain letters of administration in the estate of Mr Kelly that have been granted to her. She says:

"I am adjourning the matter and having it stood over for resolution of issues out of court."

16 She annexes various documents that she has sent to Her Majesty the Queen, and some legislation and case extracts, but that does not it seems to me bear upon any question of whether the litigation has been dismissed pursuant to Young JA's order. The fax also says:

"On the 16 July 2012 Registrar Riznyczok listed two motions for hearing on the date of 31 August 2012, without my consent and with my objection. The hearing date had never been consented to by me, or any other representative of David Kelly's estate.

I am still outside of New South Wales and cannot travel to be in your court rooms on the 31 August 2012.

Please ensure the matter is stood over, for resolution outside of court."

17 From this, it is clear that Ms Williams was aware of the hearing date today, and has voluntarily absented herself. On 5 July 2012 she obtained a limited grant of letters of administration of Mr Kelly's estate, for purposes that included "legally defending the estate". While the scope of the grant is not as clear as it might be, and I might not have all the material that would be relevant on a contested question of its construction, prima facie that grant would have empowered Ms Williams to act for the estate in resisting the Council's application for costs of the appeal. In those circumstances, the Court is warranted in proceeding to deal with such parts of the notice of motion as can be dealt with, bearing in mind that the proceedings have been dismissed.

18 In my view, notwithstanding the dismissal of the proceedings, the Court still retains a jurisdiction to make any adjectival order arising from or connected with the dismissal that has occurred through the self executing order. The order that Ms Gleeson, for the Council, seeks is that the applicant pay the respondents costs of the appeal. In my view, it is appropriate to make that order. I would mention that, of course, there has already been a limited order for the payment of the costs of the appeal, and thus the proper drafting of the order that Ms Gleeson seeks, should be that the appellant pay the costs of the appeal, save insofar as the appellant has not already been ordered to pay those costs. As this order is made after the sequestration order, it may well not create a debt that is provable in the bankruptcy: Foots v Southern Cross Mine Management Pty Ltd [2007] HCA 56; 234 CLR 52.

19 Necessarily because of her absence, Ms Williams has not sought today the order in her Notice of Motion of 13 April 2012. However, as that Notice of Motion was an interlocutory one concerning the future conduct of the appeal, it has been brought to an end by the appeal being dismissed.

20 As is demonstrated by Ms Williams having sent the facsimile that speaks as though the present applications can be adjourned, it is desirable to note that the proceedings have terminated by virtue of Young JA's self executing order. It is also appropriate to direct that the Registrar receive no further documents for filing in the present matter, without the previous leave of a Judge. The orders I make are therefore:

(1) The appellant pay the respondents costs of the appeal, save insofar as the appellant has not already been ordered to pay those costs.

(2) Note that this appeal has ended pursuant to the self executing order made by Young JA on 5 March 2012.

(3) Note that the stay that I ordered by order 3 made on 13 December 2012, has terminated.

(4) Direct that no further documents be accepted for filing in the present proceedings without the prior leave of a Judge.

(5) I note that the dismissal of the proceedings pursuant to Young JA's order is, "the determination of the appeal", within the meaning of order 9 made on 13 December 2010, and that the stay thereby ordered has come to an end.

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Decision last updated: 14 September 2012