Penson v Titan National Pty Ltd (No 5)

THE COURT: The proceedings the subject of this judgment are proceedings given, in this Court, the numbers: 2014/373028 and 2015/231328. Also before the Court is a Notice of Motion filed 27 November 2015 in proceedings 2015/231328.

Ms Shirley Penson has commenced two proceedings in this Court that address the same subject matter. In each case, that subject matter is identified as seven separate decisions of the District Court of New South Wales, being decisions of Judge Gibson of 8 August 2014, 19 August 2014, 9 October 2014 and 21 November 2014; of Judge Truss of 1 May 2014 and 7 May 2014; and of Judge Balla of 1 August 2014.

All decisions relate to costs of proceedings commenced by Statement of Claim filed in the District Court in 2009 on behalf of the Aquaqueen International Pty Ltd (“Aquaqueen”) (a company of which Ms Penson was a director) against Titan National Pty Ltd (“Titan”) and Ms Kathryn Wood-Weber (a director of Titan). On 6 June 2011 the Statement of Claim was dismissed with costs. An order was made that Ms Penson be jointly and severally liable with Aquaqueen for the costs, some of which were ordered to be paid on an indemnity basis. The various orders the subject of the present proceedings all relate to those costs orders.

By Summons filed on 23 February 2015 and allocated Court of Appeal No 2014/373028, Ms Penson sought leave to appeal against each decision, although she stated that the application was brought:

Ms Penson filed an Amended Summons on a date which is not clear, and a Further Amended Summons on 3 August 2015. In the Further Amended Summons she purported to seek, in respect of each decision, judicial review under s 69 of the Supreme Court Act 1970 (NSW), and, alternatively, leave to appeal under s 127 of the District Court Act 1973 (NSW).

Section 127 of the District Court Act relevantly provides:

By Summons filed on 7 August 2015 and allocated Court of Appeal No 2015/231328, Ms Penson purported to seek judicial review of the same seven decisions. She stated that she had filed a Notice of Intention to Appeal, although no such document appears in the papers provided to this Court. Ms Penson has set out 17 grounds of her proposed review. These include:

On 1 May 2015 Ms Penson sought a stay of six orders of the District Court, five of which were orders which are the subject of the present proceedings. On the same day that application was refused by Campbell AJA: Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 120.

On 8 September 2015, by Notice of Motion filed in proceedings 2015/231328 Ms Penson again sought a stay of, and other orders relating to, the orders the subject of the present proceedings. She subsequently sought to discontinue that application, which was dismissed. By Notice of Motion filed on 23 September 2015, Titan and Ms Wood-Weber sought costs of the 8 September 2015 Notice of Motion, an order that the costs be payable under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) as a gross sum, and calculated on an indemnity basis. On 13 November 2015 Emmett AJA ordered that Ms Penson pay (in respect of the Notices of Motion of 8 May and 23 September) costs on a gross sum basis totalling $11,250, together with interest: Penson v Titan National Pty Ltd (No 4) [2015] NSWCA 350. The history of the litigation between Ms Penson (or Aquaqueen) and Titan and Ms Wood-Weber has been set out in detail by both Campbell AJA and Emmett AJA and we do not propose to repeat it.

On 27 November Ms Penson filed in this Court a Notice of Motion seeking orders that the orders of Emmett AJA be set aside or varied, and ancillary orders. That Notice of Motion is the third application presently before this Court.

It is now necessary to identify the various orders the subject of the proceedings. It is best to deal with them chronologically. All the following are taken from documents filed by Ms Penson in a White Folder (see Uniform Civil Procedure Rules 2005 (NSW), 51.12 and 51.45).

By consent Judge Truss set aside a judgment based upon a costs assessment certificate filed in the District Court under the provisions of the Legal Profession Act 2004 (NSW). She ordered that the original costs assessment certificate be returned to the solicitor for Titan and Ms Wood-Weber. The purpose of this order was to enable Titan and Ms Wood-Weber to register the costs assessment certificate as a judgment debt. It was the order that the costs assessment certificate be returned to the solicitor for Titan and Ms Wood-Weber that was the subject of Ms Penson’s complaint. She was unable to articulate any clear reason for her objection to the order.

On 7 May 2014 Truss DCJ made a series of orders, most of which it is unnecessary to set out. The entry in the “orders” of which Ms Penson complains in these proceedings is numbered 7, in the following terms:

The only material contained in the White Folder bearing date 8 August and relevant to Judge Gibson is a transcript of proceedings before her Honour that day. Although there appears to have been lengthy discussion, the only order that was made was that the matter be adjourned to Tuesday, 19 August 9am. A “Notice of Orders made” on District Court letterhead shows the various directions that were made on 8 August, none of which could be contentious. Ms Penson advanced no basis for complaint about any of the directions.

Gibson DCJ made a series of orders, including:

Gibson DCJ made the following notations and orders:

The order made is recorded as follows:

All of the orders Ms Penson seeks to challenge are costs orders or related to costs orders. They are also interlocutory orders.

Pursuant to UCPR 51.10 an application for leave to appeal must be made within 28 days of “the material date”; that may, for present purposes, be taken to be the dates on which the various orders were made. The last of the orders the subject of the application was made on 21 November 2014. The application for leave to appeal was filed on 23 February 2015, well outside the time allowed.

Ms Penson has not applied for an extension of time in which to seek leave to appeal. She has adduced no evidence to explain the delay, and made no argument in support of an extension of time.

Pursuant to s 127 of the District Court Act she requires leave to appeal against such orders. She has advanced no comprehensible basis for the grant of leave.

Pursuant to UCPR 59.10, applications under s 69 of the Supreme Court Act are to be filed within 3 months of the material date – again, the date of the orders. Each order in question was made more than 3 months before the original summons was filed on 23 February 2015 (when judicial review was not sought). It was not until 3 August that she sought relief under s 69. Again, she has not sought an extension of time, and has provided no explanation for the delay, or argument in support of an extension of time.

Moreover, she has failed to provide any arguable ground for judicial review. By way of example, in respect of the transcript of the proceedings before Truss DCJ on 1 May 2014, Ms Penson complained that she had not been given an opportunity to put submissions. A reading of the transcript of the proceedings on that day shows convincingly that this is incorrect. There are instances where her Honour required Ms Penson to wait until an appropriate time to put what she wanted to put. That was because her Honour was dealing with one issue, and Ms Penson was attempting to address on another issue.

There is no basis in the evidence, and no basis in Ms Penson’s written or oral argument for any conclusion that the making of any of the orders in question involved error.

Although no extension of time has been sought, we would refuse to extend the time in which to seek leave to appeal against any of the orders in question under s 127 of the District Court Act. We would refuse to extend under UCPR 59.10(2) the time for commencing proceedings seeking judicial review of any of the orders.

If Ms Penson were to be granted an extension of time in which to appeal, we would, in any event, refuse leave to appeal. In reaching that conclusion, we have taken into account the absence of any merit in any of the proposed challenges to the orders.

If Ms Penson were granted an extension of time in which to seek judicial review of any of the orders, we would, in any event, dismiss the application. In reaching that conclusion, we have taken into account the absence of any arguable ground asserting error in the making of the order.

That leaves the decision of Emmett AJA, which Ms Penson seeks to have set aside or varied. She has advanced no legal or other basis on which such an order should be made. The Notice of Motion is dismissed.

The orders of the Court are: