Huang v Drumm (No 2)

PAYNE JA: On 12 October 2018, Pembroke J, sitting in the Equity Division of the Court, made the following orders in Supreme Court proceedings 2016/00096823 between the appellant Ms Biru Huang, and Mr Bernard Drumm ([2018] NSWSC 1556 at [68]):

On 17 April 2019, this Court made a limited grant of leave to appeal together with the following orders ([2019] NSWCA 77 at [10]):

By email exchange with the chambers of Macfarlan JA, Ms Huang was granted an extension of time to 15 May 2019 to file a notice of appeal on the limited issues where she was granted leave to appeal.

In accordance with order 3 made by the Court on 17 April 2019, the matter came before me on 6 May 2019 for directions to set the appeal down for hearing. I permitted Ms Huang to participate in the directions hearing by telephone and for her non-legally qualified friend, Mr Gibson, to make submissions on her behalf. Mr Dooley of counsel appeared for the respondent.

At the outset of the hearing on 6 May 2019 Mr Dooley handed up proposed short minutes of order that he invited the Court to make as follows:

Ms Huang confirmed that those proposed short minutes had been sent to her before the hearing on 6 May 2019 and that she had considered them.

The respondent submitted that, if order 1 of the proposed short minutes of order was made and Pembroke J’s orders (a) and (b) were set aside, the underlying subject matter of the appeal for which leave was granted would disappear. As I explained to Ms Huang and her friend Mr Gibson on 6 May 2019, the subject matter of order 1(b) made by the Court of Appeal on 17 April 2019 was predicated on Pembroke J’s orders (a) and (b) being valid. This is because, as this Court said in the first judgment:

Ms Huang and Mr Gibson objected to order 1 in the short minutes being made. Their reasons, as best as I understood them, were that Ms Huang was seeking advice about making an application for special leave to appeal to the High Court. The making of order 1 was thought in some way to inhibit that special leave application, or make the proof of the myriad claims about which this Court refused leave to appeal, including what Ms Huang asserts was bias on the part of Pembroke J, more difficult. Subsequent to the hearing Ms Huang sent, without leave, the following email to my chambers:

Whatever the merits of the various matters raised by Mr Gibson orally and by Ms Huang in this email, it is clear that she opposes the making of the orders proposed by the respondent.

Section 46 of the Supreme Court Act 1970 (NSW) provides, relevantly:

Because this is a matter where Ms Huang does not consent to the making of order 1 in the proposed short minutes, sitting as a single judge I am without power to make the order sought by the respondent. In the absence of making any order no question of costs arises at this stage.

As this is a matter which may ultimately be relevant to any costs discretion I have set out in this short judgment the history of what occurred on 6 May 2019. Mr Drumm indicated that he will consent to Pembroke J’s orders (a) and (b) being set aside. Notwithstanding that consent, such an order can only be made, if at all, by a three-member bench of this Court.

Ms Huang is required to file and serve a notice of appeal limited to the precise issues identified in order 1 made by the Court of Appeal in the first judgement no later than 15 May 2019. I propose in the circumstances to reconvene the directions hearing concerning the conduct of the appeal at 9.30am on Monday 20 May 2019. Time is limited on that day and the parties should expect that the directions hearing will conclude by 10am.

Given the attitude of the respondent to orders (a) and (b) made by Pembroke J, it is obviously desirable that the appeal in this matter be heard as soon as practicable. The parties should expect that a date for hearing the appeal will be fixed at that directions hearing and that orders will be made in preparation for that hearing.

As was the case on 6 May 2019, I grant leave to Ms Huang to participate in that directions hearing by telephone.