Penson v Titan National Pty Ltd

THE COURT: By Summons originally filed in this Court on 7 September 2015 and Amended Summons filed on 7 October 2015, the applicant, Ms Shirley Penson, seeks, purportedly under s 69 of the Supreme Court Act 1970 (NSW), judicial review of two decisions of the Court of Appeal constituted by Ward and Leeming JJA on 5 June 2015 and 15 July 2015.

In the proceedings the subject of the first judgment Ms Penson sought leave to appeal against decisions of Black J and Brereton J, both of the Equity Division. Ward and Leeming JJA dismissed the application, for reasons given by Ward JA with which Leeming JA agreed: Penson v Titan National Pty Ltd [2015] NSWCA 165. In the proceedings the subject of the second judgment, Ms Penson applied to their Honours to set aside or vary their judgment. That application also was refused with reasons given in a joint judgment: Penson v Titan National Pty Ltd (No 2) [2015] NSWCA 197.

Ms Penson now purportedly seeks judicial review of each decision under s 69 of the Supreme Court Act. The respondents contend that the Summons is brought out of time. Pursuant to Uniform Civil Procedure Rules 2005 (NSW) 59.10(1), proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision, unless, pursuant to sub-r (2), the court extends the time.

Since the first decision was made on 5 June, the 3 month period expired on 5 September, a Saturday. By UCPR 1.11(4), where the last day for doing “a thing” is not a business day, “the thing” may be done on the following business day. Ms Penson was not, therefore, out of time in respect of either of the decisions.

In an Amended Summons filed on 7 October 2015 Ms Penson has identified as her grounds:

She seeks, inter alia, the following orders:

As an alternative to her claim for judicial review, Ms Penson filed a Notice of Intention to Appeal against the judgment of 5 June. That Notice expired on 5 September 2015. So far as the evidence discloses, Ms Penson has not filed a Notice of Appeal.

Section 69 of the Supreme Court Act provides for a procedure that replaces the prerogative writs for which the common law provided. Those writs did not lie against a superior court: The Queen v The Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union [1953] HCA 60; 89 CLR 636. A judge of the Supreme Court has no power to direct an order in the nature of prohibition against another judge of the same Court: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW [2008] NSWCA 227 at [36]; Barton v Walker [1979] 2 NSWLR 740. Nor is there power to make an order in the nature of certiorari, as sought by Ms Penson in Order 5 of her application. Section 69 has not altered that position. The orders of judges of the Supreme Court, including of the Court of Appeal, are not amenable to review under s 69. Ms Penson’s application in this respect is misconceived and should be dismissed.

Apparently in recognition of the absence of any power in this Court to review the judicial decisions of Ward and Leeming JJA, Ms Penson sought to characterise the judgments as administrative, rather than judicial. Even if this characterisation were correct, s 69 would not be available to permit review: R v Wright; Ex parte Waterside Workers’ Federation of Australia [1955] HCA 35; 93 CLR 528 at 541; and see the commentary to s 69 in LexisNexis Butterworths, Ritchie’s Uniform Civil Procedure NSW, vol 2, 2005.

In any event, the decisions are clearly judicial, the first being the refusal of leave to appeal. Such a decision involves, among other things, an evaluation of the prospects of success of the proposed appeal. The second decision, refusal of leave to reopen the earlier decision, also involved the exercise of a judicial function.

The Summons and Amended Summons are dismissed with costs.