Soulis v R & A Henry Auto Repairs Pty Ltd

1. [1]

   WHITE JA: On 24 November 2021, the applicant, Mr Soulis, filed a summons in the Common Law Division seeking leave to appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal (“NCAT”) (viz, Soulis v R & A Henry Auto Repairs Pty Ltd [2021] NSWCATAP 338).

2. [2]

   The appeal to the Supreme Court from the Appeal Panel’s decision lay only with leave and only on a question of law (Civil and Administrative Tribunal Act 2013 (NSW), s 83(1)).

3. [3]

   On 16 September 2022, Bellew J summarily dismissed the proceedings (Soulis v R & A Henry Auto Repairs Pty Ltd & Ors (No 3) [2022] NSWSC 1109).

4. [4]

   Bellew J refused an application that he should recuse himself from hearing the application for summary dismissal. His Honour refused Mr Soulis’s application for an adjournment of the hearing. His Honour held that the grounds of appeal for which leave was sought did not identify any questions of law and the contentions advanced by the applicant were without substance (at [56], [60], [65]-[66], [69]-[71]). His Honour correctly directed himself in accordance with Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720; [1935] HCA 48; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91; [1949] HCA 1; and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130; [1964] HCA 69.

5. [5]

   The applicant seeks leave to appeal from the decision of Bellew J. The grounds of appeal that would be advanced if leave were given are as follows:

6. [6]

   The proposed grounds of appeal appear to have been formulated on the misconception that a summons seeking leave to appeal should identify as questions, questions of law arising from the decision of the primary judge. That was a requirement of the summons seeking leave to appeal filed in the Common Law Division from the decision of the Appeal Panel, because an appeal only lay on questions of law, and it was those questions of law that formed the subject matter of the appeal. An appeal from the decision of Bellew J summarily dismissing the proceedings, if leave were given, is not limited in the same way; it could go beyond questions of law.

7. [7]

   To obtain leave to appeal, Mr Soulis needs to demonstrate that the proposed appeal raises issues of principle, questions of general public importance, or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [6], [32]-[39]).

8. [8]

   As Basten JA emphasised in Be Financial Pty Ltd, where the claim is a monetary claim and the amount in dispute is small and out of proportion to the costs that would be incurred if leave were granted, the quantum of the claim is highly relevant to a decision whether or not to grant leave to appeal, lest the costs involved swamp the money sum in dispute (at [37]-[39]). The primary judge found that the amount in issue in the Tribunal was $9,017 (primary judgment [17]).

9. [9]

   The proceedings related to repairs carried out by the first respondent to the applicant’s motor vehicle. The Tribunal Member at first instance found that the respondent carried out the required repairs with due care and skill and in a proper manner, and dismissed the applicant’s claim for a refund. The Tribunal Member found that the applicant had not established that the respondent had caused damage to the applicant’s vehicle and dismissed the claim that the respondent was liable for the cost of carrying out additional repairs (Tribunal’s reasons quoted at [10] of the Appeal Panel’s reasons).

10. [10]

    It was common ground in the Tribunal that, at the time the repairs on his motor vehicle were carried out by the respondent, the respondent’s licence under the Motor Dealers and Repairers Act 2013 (NSW) had lapsed. The Tribunal found that this was as a result of inadvertence on the part of the respondent and that the licence had been restored with retrospective effect. The Tribunal and the Appeal Panel rejected the applicant’s claim that the respondent had engaged in misleading or deceptive conduct by trading when its licence had lapsed (Appeal Panel decision at [10]). The Appeal Panel found that there was no evidence before it to demonstrate that the respondents held themselves out as being licensed.

11. [11]

    I understand the proposed grounds of appeal to contend that:

    1. (1)

       the primary judge’s decision to refuse to adjourn the hearing on 17 August 2022 and 2 September 2022 denied the applicant procedural fairness;

    2. (2)

       his Honour erred in not applying r 13.6 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), that is, by not adjourning the hearing to another date and giving the applicant notice that the proceedings may be dismissed if there were no attendance by the applicant at the adjourned hearing;

    3. (3)

       the primary judge should not have acted on the respondents’ notice of motion seeking summary dismissal, which did not comply with UCPR r 18.3;

    4. (4)

       the primary judge erred in not recusing himself from the proceedings;

    5. (5)

       the applicant was denied procedural fairness by unparticularised obstruction in his being able properly and fairly to prosecute his summons.

Proposed Grounds 1 and 2

1. [12]

   The primary judge gave reasons as to why he should not adjourn the hearing on 17 August 2022. The applicant sent an email at 8.04am on that day to the judge’s associate stating he had been admitted to the Emergency Department of Canterbury Hospital, that he was not feeling well and did not think he would be able to make the hearing that morning. The applicant was advised at 8.32am that the judge would require a medical certificate confirming the applicant’s inability to attend if the proceedings were to be adjourned. No such certificate was provided. There was good reason for this. Unbeknownst to the judge, the applicant had been transferred from the Emergency Department to the Intensive Cardiac Care Unit and placed under observation. He was admitted for cardiac catheterisation and an angiogram on 5 September 2022, and later underwent coronary artery bypass surgery.

2. [13]

   The judge did not give judgment immediately after the hearing on 17 August, but reserved his decision. His Honour summarised the events following the hearing as follows:

3. [14]

   The applicant submitted that he had received strict medical advice from his doctors to avoid any stressful or challenging situation, and was admitted to Concord Hospital on 5 September 2022 for investigative procedures. He submitted that the primary judge did not consider his serious medical condition in any meaningful way but required him to attend the scheduled hearing on 2 September 2022. He did not address the primary judge’s reasons for taking that course.

4. [15]

   The primary judge was correct to say that procedural fairness required him to disclose to the respondents the medical evidence on which the applicant relied for his application to adjourn the hearing listed for 2 September 2022. When consent to that disclosure was refused, the judge did not err in proceeding with the applications.

5. [16]

   The judge’s decision on the adjournment applications was discretionary. No error in the exercise of the discretion was identified or is apparent. Nor does the applicant identify any plausible argument that he might have advanced had the adjournment sought been granted.

6. [17]

   It would have been open to the applicant to have applied to the primary judge under UCPR r 36.16(2)(b) to set aside the order summarily dismissing his proceeding, as the order was made in his absence. As he represents himself, I do not regard his not availing himself of that avenue of redress as militating against the grant of leave. Had he taken that course, he would need to have established that his non-attendance on 17 August and 2 September 2022 was not due to fault on his part, and that his summons seeking leave to appeal from the orders of the Appeal Panel was reasonably arguable (Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116). The material provided to the primary judge and advanced on the application for leave would satisfy the first requirement, but not the second. That is relevant to whether leave should be given for this admittedly small claim.

Proposed Ground 3

1. [18]

   At a directions hearing on 16 May 2022, the solicitor for the respondent advised the primary judge that an oral application for dismissal of the proceedings was made on the first return of the matter, an affidavit in support of that claim had been filed on 9 March, but no notice of motion had been filed. His Honour said that he was minded to order that the respondents file any motion for summary dismissal, or whatever order they wanted, and the matter would be brought back for directions on 31 May. His Honour ordered that any notice of motion of the respondents could be filed by forwarding it to his associate by email.

2. [19]

   On 26 May 2022, the respondents’ solicitor copied the applicant into an email to the judge’s associate attaching a notice of motion for filing. The attached notice of motion contained the relief sought as set out in the primary judge’s reasons at [31].

3. [20]

   On 31 May 2022, the primary judge listed the respondents’ notice of motion of 26 May 2022 for hearing on 30 June 2022. That notice of motion was complete. The applicant submitted that it was incomplete. Amongst other things, it did not specify the orders sought. He submitted that the notice of motion dated 26 May 2022 was abandoned and never acted on by the primary judge.

4. [21]

   This submission has no merit. The relief sought in the notice of motion dated 26 May 2022 was the same relief as sought in the notice of motion described by the judge as having been filed on 31 May 2022 (at [31]). Part of the applicant’s complaint was that the notice of motion was not accompanied by an affidavit, and the judge permitted that to occur. That was appropriate. The grounds for summary dismissal were apparent on the face of the summons and the reasons of the Appeal Panel.

5. [22]

   The applicant had made an application to Bellew J on 30 May 2022 that his Honour disqualify himself. That application was dismissed on 31 May 2022 (Soulis v R & A Henry Auto Repairs & Ors (No 1) [2022] NSWSC 966). Part of the applicant’s submission was that the effect of the judge’s order that the notice of motion could be filed by sending it by email to his Honour’s associate was that no filing fee would be payable. That was not so. On 31 May, a document was filed on Justicelink styled “notice of motion” naming the parties and specifying the applicant as a person affected by the orders sought, though not specifying any orders sought. On the same day an invoice was sent to the respondents for the filing fee.

6. [23]

   The relief sought by the respondents was never abandoned and at no point did the applicant submit to the primary judge that it had been.

Proposed Ground 4

1. [24]

   The primary judge dealt with the applicant’s application that he recuse himself as follows:

2. [25]

   In his summary of argument, the applicant submits that the primary judge should have acceded to his application that his Honour recuse himself from the proceedings. In his summary of argument he did not advance any reason as to why the primary judge ought to have done so (summary of argument, paras [15] and [16]). In submissions filed on 27 February 2023, the applicant contended there was overwhelming and cogent evidence that the primary judge was biased. In his submissions of 16 August 2022 seeking the judge’s recusal the applicant accused Bellew J of corrupt conduct by providing the defendants with a free notice of motion, and allowing a notice of motion to be filed without a supporting affidavit. He then accused the judge of directing registry staff to create a fictitious notice of motion to demonstrate that the free notice of motion was never free at all.

3. [26]

   All that the judge did was direct that the notice of motion could be filed by being sent by email to his associate. Justicelink records on 31 May 2022 “NOM created, filed in court on 31 May 2022 (email from assoc to Bellew J to SCO-Adj)”. The payment of filing fees, and the creation of a pro forma and incomplete document by the registry contemporaneously with the creation of an invoice were matters for the registry staff. There is no evidence that the judge acted corruptly.

4. [27]

   The applicant contended that steps taken by the judge to attempt to bring the respondents’ application for a summary hearing promptly denoted bias. The applicant had been refused legal aid and appealed from that refusal on 7 March 2022. His appeal was still undetermined on 16 May. While his appeal was pending, the hearing could not proceed. The judge on 16 May 2022 directed the respondents’ solicitor to advise the Legal Aid Commission that the court would be assisted if the applicant’s appeal from the refusal of legal aid were determined before 31 May 2022.

5. [28]

   Nothing in that, or in any other aspect of the primary judge’s handling of the proceedings before him, gives rise to any arguable claim of actual bias, apprehended bias or denial of procedural fairness.

Proposed Ground 5

1. [29]

   To the extend this ground is not covered by the earlier grounds, it appears to relate to an asserted failure by a registrar to waive, or to make a decision on the applicant’s application to waive, fees for the provision of transcript, and the refusal by a registrar to give leave for the issue of a subpoena. Neither matter gives rise to an arguable ground of appeal from his Honour’s order for summary dismissal.

Conclusion

1. [30]

   None of the proposed grounds of appeal challenges the substance of the primary judge’s reasons for summarily dismissing the appeal. The applicant does not identify any question of law arising from the Appeal Panel’s reasons or even any error in the Appeal Panel’s reasons. In those circumstances, the applicant has not shown that he has suffered any substantial injustice, even if he could establish that he was denied procedural fairness. To put it another way, he has not shown that any denial of procedural fairness would be material.

2. [31]

   None of the proposed grounds of appeal is seriously arguable. In any event, none of the grounds of appeal, if substantiated, would suggest that an appeal on a question of law from the decision of the Appeal Panel would enjoy any realistic prospect of success. I propose that the applicant’s summons seeking leave to appeal be dismissed with costs.

3. [32]

   SIMPSON AJA: I agree with White JA.