Sebie v Pham (No 5)

BRERETON JA: The relevant background is set out in the judgment of the Court (Bell P, Basten JA and Brereton JA) delivered on 19 November 2021, [1] dismissing with costs a summons by which the present applicants Robert Sebie and Ronald Jemmott sought leave to appeal from four series of orders made in the proceedings in the Equity Division between 2017 and 2020 (“the Earlier Orders”), and also from certain orders made by Sackar J on 18 March 2021 and 30 April 2021 for the payment out of Court to the respondents of certain sums to which Mr Sebie was prima facie entitled but on which the third respondent ENA had an arguable claim (“the Payment Out Orders”). The Court unanimously refused leave to appeal from the Earlier Orders, and by majority (Brereton JA dissenting) from the Payment Out Orders.

The Payment Out orders had been stayed pending the hearing of the application for leave to appeal. [2] By a Notice of Motion filed on 27 November 2021, Mr Sebie and ENA sought a further stay of the Payment Out Orders and other associated relief pending an application for special leave to appeal to the High Court of Australia. That motion was dismissed by Meagher JA on 16 December 2021. [3] Citing the statement of Brennan J (as he then was) that “A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted”, [4] his Honour concluded that “there is not a substantial prospect that special leave to appeal will be granted”. [5]

On 22 December 2021, Mr Sebie and ENA filed a further motion claiming substantially the same relief, and also seeking reconsideration of this Court’s judgment pursuant to UCPR r 36.16. That motion has since been amended, on 4 May 2022, most relevantly by substituting Mr Jemmott for ENA, which has since gone into liquidation, as an applicant. After multiple adjournments, on 23 May 2022 the Registrar, declining further to adjourn the motion, but “to give the applicants one last opportunity to get their act into order and to provide their submissions”, made directions that Mr Sebie and Mr Jemmott file and serve their submissions by 6 June 2022, reserved to the Court whether it required submissions in reply, and directed that the motion be dealt with on the papers.

The file contains a document entitled “Summary of Argument on behalf of the Appellant 4 April 2022”, filed on 20 June 2022, two weeks after the deadline directed by the Registrar. It commences:

It is argued that the case is of importance and public interest because Mr Pham is said to be an officer of the Court who has infringed the integrity of the justice system. The submissions state four grounds, as follows:

Expansive submissions are made as to the alleged wrongdoing of Mr Pham. There are also submissions which if accepted would be relevant to establishing that Rose Sebie, Ramzy Sebie and/or ENA might have a claim on the funds in Court. Extensive submissions are made impugning the judgment of Slattery J of 29 March 2018, [6] and also that of Pembroke J of 26 April 2017. [7]

Insofar as the motion seeks reconsideration by this Court of its earlier judgment pursuant to UCPR r 36.16, that course is not available: judgment of this Court was not a default judgment, nor given in the absence of a party (Mr Sebie and Mr Jemmott were present, by audio link, at the hearing), so sub-rule (2) is not applicable; the judgment dismissed the claims for relief, so sub-rule (3) is not applicable; and the motion of 22 December 2021 was filed more than 14 days after the judgment was delivered on 19 November 20921, so sub-rules (1) and (3A) are not applicable. The motion in that respect is out of time, and the time limit cannot by extended, by reason of sub-rule (3C) which prohibits it. Accordingly in that respect the motion is incompetent.

Insofar as the motion seeks a stay pending an application for special leave to appeal to the High Court, the test is as stated by Meagher JA in his Honour’s judgment on the earlier application, extracted above. [8] On a second application for such a stay, it is relevant that no application was made for a review of the decision of Meagher JA, and no change of circumstances since Meagher JA’s judgment declining to grant a stay has been identified. Nor has anything appeared to suggest that Meagher JA’s conclusion that there was not a substantial prospect of a grant of special leave was not correct. Indeed it is not apparent whether an application for special leave has even been made: no Special Leave Application and supporting argument has been put before this Court.

The stay is not sought by ENA, which is the only party potentially prejudiced by the implementation of the Payment Out Orders. Moreover, after Meagher JA had refused a stay, the sum of $203,673.06 was paid out of court to Andy Pham Lawyers on 23 December 2021 in full performance of the Payment Out Orders. [9] The orders have already been fully performed and cannot now be stayed.

Although that is sufficient to dispose of the application, I shall briefly address the main further arguments. In respect of the judgments of Slattery J and Pembroke J, this Court was unanimously of the view that leave to appeal should be refused, for the following reasons (footnotes omitted): [10]

The recent submissions reiterate complaints of error affecting the above-mentioned judgments of Slattery J and Pembroke J, but they do not show why the reasons of this Court for refusing leave to appeal from them are even arguably wrong. Although they refer to an observation of Simpson AJA to the effect that the properties might be reconveyed, there is no prospect that the rights of third parties in properties they have acquired would now be disturbed. Insofar as it is alleged that Mr Pham has engaged in misconduct, that is not a subject matter of the present litigation which could conceivably result in a grant of special leave to appeal to the High Court.

Moreover, the rights asserted are not those of Mr Sebie or Mr Jemmott, but those of the late Mr Ramzy Sebie, Mrs Rose Sebie, and perhaps ENA (which now has a liquidator). None of them is a party to the present application.

In those circumstances, there is no prospect of the High Court granting special leave to appeal to Mr Robert Sebie and Mr Jemmott.

The notice of motion filed on 22 December 2021 and amended on 4 May 2022 is therefore dismissed with costs.