Cavar v Department of Human Services (Comcover Insurance & Compensation Department)

HIS HONOUR: Before me, referred by the Registrar, is the question of the competency of an appeal purportedly commenced by Ms Celia Cavar by notice of appeal filed 6 May 2016. Further notices of appeal were filed on 16 and 18 May 2016. Previously Ms Cavar had filed a notice of intention to appeal within the time provided by the rules following the decision of the District Court (Curtis DCJ) on 19 February 2016.

Curtis DCJ dismissed the proceedings brought by Ms Cavar because they disclosed no cause of action. The substance of his Honour’s ex tempore reasons is as follows:

Before me, Ms Cavar has maintained, and I do not doubt, that officers in the Registry of this Court permitted her to file, first, a notice of intention to appeal, and secondly, a notice of appeal. The provision for the filing of notices of intention to appeal, thereby extending the time within which to invoke the jurisdiction of the Court of Appeal, applies equally to applications for leave to appeal and to appeals: see UCPR rr 51.6, 51.9. Nothing turns on anything that was said by the Registry in relation to the notice of intention to appeal.

In relation to the notice of appeal, on the first occasion the matter came before the Registrar of the Court of Appeal the respondent proposed, if I may say so, constructively, the following short minutes of order:

Had that approach been followed, the difficulties encountered today would not have arisen, and Ms Cavar’s undoubted right to invoke this Court’s jurisdiction subject to the obtaining of leave could have proceeded in an efficient manner. However, Ms Cavar maintained before the Registrar, just as she has maintained before me, that she has a full right of appeal, rather merely than a right to seek leave to appeal. It was in the face of that attitude, unchanged before me today, that the Registrar referred the question of competency for me to determine.

Ms Cavar maintains that her right of appeal is conferred by s 101 of the Supreme Court Act 1970 (NSW). As I have pointed out, that section applies only to judgments of this Court in a Division (namely the Equity Division and the Common Law Division), and not to the appeal which Ms Cavar wishes to bring from the decision of Curtis DCJ constituting the District Court of New South Wales. However, s 127 of the District Court Act 1973 (NSW) is in materially identical terms.

Authority which binds me establishes that where, as here, a pleading has been struck out, the decision is interlocutory, and therefore an appeal only lies with the grant of leave. In Macatangay v New South Wales (No 2) [2009] NSWCA 272 at [13], the Court of Appeal stated, this time in relation to s 101(2)(e) of the Supreme Court Act, the appeal being brought from the order of a judge sitting in the Common Law Division, that, “the order of Grove J was interlocutory, s 101(2)(e) of the Supreme Court Act 1970 (NSW) applies, and the plaintiff’s appeal as of right was incompetent.”

As I said in comparable circumstances in McGinn v Cranbrook School [2015] NSWCA 378 at [4], that judgment binds me. In other words, I am bound to hold in accordance with the views expressed by the Registrar and by the respondent and contrary to what Ms Cavar puts to me, that an appeal only lies from the interlocutory decision of Curtis DCJ with leave.

Accordingly, the notices of appeal filed by Ms Cavar are incompetent. She has made it clear throughout that (a) she does not wish for those notices of appeal to be treated as an application for leave to appeal, and (b) she maintains that she has other means of recourse to vindicate her rights.

I have power to dismiss an appeal “for want of prosecution or for other cause specified in the rules”: see Supreme Court Act, s 46(1)(b). The same course should be taken here as was taken in McGinn.

Accordingly, I propose to dismiss the notices of appeal filed 6, 16 and 18 May 2016.

The respondent seeks, and Ms Cavar opposes, an order that the appeal be dismissed with costs. Within a fortnight of filing the notice of appeal, the solicitors for the respondent advised her by letter that because the decision of Curtis DCJ was interlocutory, leave was required. They advised her that the parties may incur unnecessary costs in the proceedings because they have been improperly instituted and encouraged her to seek legal advice.

In circumstances where, as here, the respondent has promptly pointed out the want of competence, I think it is appropriate that the appeal be dismissed with costs, notwithstanding that a formal notice of motion seeking that course was only filed a few weeks after the time specified in r 51.41 of the UCPR.

The order of the Court is appeal dismissed with costs.