Satchithanantham v National Australia Bank [2008] NSWCA 168 (14 July 2008)

Last Updated: 21 July 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Satchithanantham v National Australia Bank [2008] NSWCA 168


FILE NUMBER(S):
40044/08

HEARING DATE(S):
14 July 2008

JUDGMENT DATE:
14 July 2008

EX TEMPORE DATE:
14 July 2008

PARTIES:
Thambiappah Satchitchanantham (First Applicant
Bramooth Satchitchanantham (Second Applicant)
National Australia Bank Limited (Respondent)

JUDGMENT OF:
Campbell JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
15249/05

LOWER COURT JUDICIAL OFFICER:
James J

LOWER COURT DATE OF DECISION:
12 December 2007


COUNSEL:
First Appellant, in person (Applicants)
R Rydge (Respondent)

SOLICITORS:
First Appellant, in person (Applicants)
Dibbs Abbott Stillman (Respondent)

CATCHWORDS:
PRACTICE AND PROCEDURE – application brought on Notice of Motion in proceedings in Court of Appeal seeking leave to appeal – where final hearing has taken place and application for leave to appeal rejected – circumstances in which relief can be obtained in proceedings after final relief has been decided – application to set aside costs order of Associate Justice in proceedings below – where no application to appeal against order made – contention that Judge in proceedings below erred in arriving at quantum of costs order – where leave to appeal against that decision sought but not granted – review sought of decision of bench of two judges by a single judge – whether open on authorities to make such an order – whether contrary to appellate structure – review sought of order of Registrar dismissing motion seeking to vary costs orders in Court of Appeal and court below and review of orders of Court of Appeal – where costs order cannot be enforced as a matter of law until assessed – where orders made in specific amounts to avoid need for costs assessment – where no procedural course open in this Court to challenge refusal of leave to appeal – application for stay of costs orders in proceedings below – whether jurisdictional basis for order – where no application made for leave to appeal from judgments

LEGISLATION CITED:



CASES CITED:


TEXTS CITED:


DECISION:
Notice of Motion dismissed with costs.



JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40044/08

SC 15249/05

CAMPBELL JA

14 JULY 2008

THAMBIAPPAH SATCHITHANANTHAM v NATIONAL AUSTRALIA BANK

Ex Tempore Judgment

1 CAMPBELL JA: This is an application that is brought on a Notice of Motion in proceedings 40044 of 2008 in the Court of Appeal. Those proceedings are ones which sought leave to appeal from a judgment that had been given by James J on 12 December 2007 in proceedings 15249 of 2005.

2 The proceedings that James J was hearing were proceedings seeking possession of a residential property at 76 Houison Street, Westmead. The sole defendant in the proceedings was Mr Satchithanantham’s wife. Mr Satchithanantham had made various applications in the course of the proceedings to be added as a defendant. There were in all four separate notices of motion in which he sought that relief. On at least some of the occasions he also sought that he be added to represent the interests of his son, who apparently is under a disability. On each occasion the Notice of Motion were dismissed. Concerning one of the notices of motion, the first one, there was an application for leave to appeal to the Court of Appeal. That application was refused by Beazley and Tobias JJA on 23 May 2007 in Court of Appeal proceedings 40640 of 2006. Proceedings 40044 of 2008 sought leave to appeal against the decision whereby James J refused, on 12 December 2007, to add the applicant as a party to the proceedings.

3 The final hearing of Court of Appeal proceedings 40044 of 2008 took place on 14 May 2008. On that date, President Mason and Acting Justice Handley rejected the application for leave to appeal.

4 Insofar as the Notice of Motion now before the court seeks orders, they are as follows:

“2 Costs orders made by the court below be set aside and be ordered that the applicants pay the cost on party to party basis after assessed and taxed.

3 Review the orders made by this court from 14/4/08 till to date and grant appropriate relief as to the orders sought in the applicants’ joinder applications/leave to appeal in this court involved in the file matter: 40044/08.

4 Stay of the cost orders entered in the court below on 12/12/07 and 24/9/07 until determination of this application.”

5 In support of the Notice of Motion Mr Satchithanantham has presented to the court a vast variety of material, extending to a subpoena in the Federal Magistrate’s Court that he has served on the National Australia Bank, and an affidavit that he has filed in the Federal Magistrate’s Court on 27 June 2008, relating to an application concerning bankruptcy proceedings that the National Australia Bank presently has on foot against him. He has also presented in evidence today a lengthy statement, and the affidavit verifying it, which tells a complex story in which he alleges that the National Australia Bank has been a contributing cause of his financial misfortune, and that he has various causes of action against the National Australia Bank.

6 All of these matters, however, need to be put into a procedural context. The purpose of any Notice of Motion in proceedings is to advance the relief that is sought in those proceedings. In the present case the relief that was sought in proceedings 40044 of 2008 was leave to appeal from the whole of the decision below and to file some amended draft grounds of appeal. That relief has been refused. There are some occasions when it is proper for a court to consider a Notice of Motion filed in proceedings after a final order has been made, as happens for instance when an application is made for Mareva relief in aid of enforcement of a judgment that has been pronounced. However, the circumstances in which it is possible to obtain, in proceedings, relief after final relief has already been decided in those proceedings are very limited.

7 The substantial complaint that underlies order 2 of the Notice of Motion arises from some costs orders that were made in the proceedings below. On 24 September 2007 Malpass AsJ dismissed with costs an application for a review of the order of Registrar Bradford concerning the third Notice of Motion that Mr Satchithanantham had brought in the proceedings between NAB and his wife. Registrar Bradford had set aside that Notice of Motion, and it was that decision that was sought to be reviewed. Malpass AsJ made an order for the payment of some $4,262.50 of costs. One of the complaints that Mr Satchithanantham makes today is that Malpass AsJ did not say whether that amount of costs that he ordered was on an indemnity basis.

8 There was no application at any time to appeal against the order of Malpass AsJ.

9 When James J dismissed the fourth Notice of Motion seeking to be joined to the proceedings on 12 December 2007 he made a specific costs order of $10,000 against Mr Satchithanantham. Mr Satchithanantham apparently wishes to contend that James J made an error in arriving at that quantum. If it were correct that James J had made an error in arriving at that quantum, that would be a matter appropriately to be dealt with in an appeal from the decision of James J. However, leave to appeal against that decision has been sought, and not granted. In that circumstance, the order that is sought in the second prayer of the Notice of Motion could be granted only if it were possible to grant the third prayer in that Notice of Motion, to which I now turn.

10 The bases on which Mr Satchithanantham sought to have me today review the orders that had been made by this court on 14 May 2008 were that, in his contention, the judgment of the President did not disclose the reasons for refusing leave, and ignored critical matters. He submitted that that decision had failed to deal with the situation of Mr Satchithanantham’s son. He asserted that there was no disadvantage in letting him and his son become a party to the proceedings now. He says that the practical importance of granting a review is that he is out of time to appeal to the High Court.

11 I specifically asked Mr Satchithanantham to identify the authority by reference to which it was open to me to make such an order. He was unable to do so. I myself am unaware of any such authority. Indeed, it is fundamentally opposed to the way in which the appellant structure operates for a single judge to review a decision that have been given by a bench of two judges, that disposes of the application before the court. There is simply no jurisdiction to make order 3, insofar as it seeks review of the decision of 14 May 2008.

12 It will be seen that order 3 seeks not only a review of the order on 14 May 2008, but also orders made from then and “to date”. The only relevant order is an order that was made by the Registrar, when a motion that Mr Satchithanantham filed on 29 May 2008 came before him. It sought some additional orders to those sought in the motion of 25 June 2008, but amongst the orders that it sought were that enforcement of the costs orders made in the Court of Appeal on 14 May 2008 and in the court below on 12 December 2007 be stayed until assessed and taxed, a review of the orders made by the court on 14 May 2008. The Registrar dismissed the motion, with costs, on the basis that it amounted to an abuse of the court’s process. Amongst the reasons was that there was no procedural course open in this court to challenge a refusal of leave to appeal, and that as a matter of law a costs order could not be enforced until the amount of costs had been assessed, in consequence of which there was no practical point in seeking to vary the costs orders made in the Court of Appeal so that it explicitly provided that it be stayed until the costs were assessed or taxed. As well, I note that the point of Malpass AsJ and James J making costs orders in specific amounts was to avoid the need for those costs to be assessed. There had been no application for leave to appeal from Malpass AsJ’s judgment, and the application for leave to appeal from James J’s judgment had been rejected.

13 In my view, the decision of the Registrar was clearly right. While this court has authority to review decisions of the Registrar, there is no occasion to do it concerning the decision he made relating to the Notice of Motion filed on 29 May 2008. Thus the third order in the Notice of Motion is one that will not be made.

14 The fourth order in the Notice of Motion was sought on the basis that Mr Satchithanantham is presently involved in bankruptcy proceedings. He points out, as is the inevitable consequence of such proceedings, that a bankruptcy order would have very serious consequences for the whole of his family. I would be prepared to accept that that is so. However, orders of the court of the kinds that are sought by are ones that could only be made if there were a jurisdictional basis for them. A stay of the costs order made on 12 December 2007 would be appropriate in this court if there were some pending application for leave to appeal from the judgment. But there is no pending application for leave to appeal from the judgment. There never has been an application for leave to appeal from the judgment of 24 September 2007. In those circumstances, the orders that are sought in prayer four of the Notice of Motion are not ones that this court has any jurisdiction to make.

15 Paragraph 1 of the notice of the motion had sought an order that both parties recognised was unnecessary to seek. There is no live issue concerning it.

16 In these circumstances, the appropriate order to make is that the Notice of Motion be dismissed.

[The respondent sought costs. Argument on that application.]

17 The respondent to the Notice of Motion seeks costs. No reason of substance has been put forward why that order should not be made. Mr Satchithanantham seeks an order that, if a costs order is made, that this court should stay it, until he can have time in which to make an application for leave to appeal to the High Court.

18 Insofar as the present proceedings were ones that were doomed to fail, because there was no jurisdictional basis for them, or otherwise no basis of substance for them, there is no occasion to grant any such stay. I say that quite apart from having the usual reluctance of a court to grant a stay pending the filing of an application that it has not yet seen. The order of the court will therefore be the Notice of Motion is dismissed with costs.

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LAST UPDATED:
18 July 2008