Hobbs v Australian Securities and Investments Commission [2013] NSWCA 205

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hobbs v Australian Securities and Investments Commission [2013] NSWCA 205 Hearing dates: 1 July 2013 Decision date: 01 July 2013 Before: McColl JA Decision: Direct that: 1. The appellant, Mr Hobbs, on or before Friday 12 July file and serve on the respondent a notice of motion seeking either an extension of time in which to serve on the Australian Securities and Investments Commission the notice of intention to appeal filed in this Court on 20 March 2013 and the notice of appeal filed on 29 May 2013 and also in that notice of motion to seek an extension of time within which to file the notice of appeal. 2. The notice of motion should be accompanied by an affidavit setting out the bases upon which the relief is sought. 3. The notice of motion should be made returnable before the Registrar of the Court of Appeal in his directions list on 17 July 2013. 4. Adjourn the Australian Securities and Investments Commission's motion of 18 June 2013 to 17 July 2013 with a view that the two motions should proceed together. 5. Give Mr Hobbs leave to file and serve the notice of motion and affidavit in support by facsimile. 6. Reserve costs of motion to date. [Note 1: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16. Note 2: Street addresses have not been reproduced in accordance with the Court's policy on identity theft protection.] Catchwords: PROCEDURE - whether proceedings should be dismissed as incompetent - deficiencies in service - late filing of notice of appeal - UCPR 51.9, 51.16, 51.41 - no question of principle Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules Category: Interlocutory applications Parties: David John Hobbs - Applicant Australian Securities and Investments Commission - Respondent Representation: Counsel: Applicant - no appearance Respondent - J R Clarke Solicitors: Applicant - no appearance Respondent - G Hayden - Solicitor for the Australian Securities and Investments Commission File Number(s): CA 2013/85772 Publication restriction: No Decision under appeal Citation: In the matter of Idylic Solutions Pty Ltd - Australian Securities and Investments Commission v Hobbs [2013] NSWSC 106 Date of Decision: 2013-02-21 00:00:00 Before: Ward JA File Number(s): SC 2007/258119

Judgment 1McCOLL JA: This is an application by the Australian Securities and Investments Commission ("ASIC"), pursuant to Uniform Civil Procedure Rules ("UCPR") 51.41, to dismiss the notice of appeal in these proceedings as incompetent. 2The notice of appeal was filed on 29 May 2013 by Mr David John Hobbs and seeks to challenge a decision of Ward JA in civil penalty proceedings: In the matter of Idylic Solutions Pty Ltd - Australian Securities and Investments Commission v Hobbs [2013] NSWSC 106. 3Mr Hobbs is a resident of New Zealand. By facsimile purportedly forwarded to ASIC this morning, he has sought an adjournment of today's hearing for at least one month. On the assumption that that document was faxed to the court, it does not appear to have come to the attention of the Registry in sufficient time to draw it to my attention. However Mr J R Clarke, who appears on behalf of ASIC, has provided a copy of it. Another document which ASIC has received this morning, but which again, if it has been faxed to the court, has not made its way to the papers, is an affidavit sworn today by a Ms Doreen Andrews of XXXX, Nelson, New Zealand. Attachment "A" to Ms Andrews' affidavit is an email received from Mr Docherty, a senior lawyer employed by ASIC, which was forwarded to, among other addresses, an email address which is apparently one to which both Ms Andrews and Mr Hobbs have access. In that email Mr Docherty sought Mr Hobbs' advice as to whether he intended to appear today on the return of ASIC's Notice of Motion. 4I informed Mr Clarke I would read Ms Andrews' affidavit subject to relevance. The only matter in that affidavit in my view which is of some relevance, and again subject to Mr Clarke's objection to the court receiving it as evidence of the fact, is a medical certificate from a Dr Tim Ewer. Mr Clarke tells me Dr Ewer is a medical practitioner who has been treating Mr Hobbs, who suffers from multiple sclerosis. Dr Ewer expresses the opinion that Mr Hobbs is not presently fit to take part in any legal process that requires reasonable cognitive skills. I have taken that matter into account because, in some respects, it appears to be consistent with an opinion expressed by Dr De Villiers on 28 June 2013, which was attached to Mr Hobbs' memorandum seeking the adjournment. Dr De Villiers stated that as at the date of his medical certificate (28 June 2013) Mr Hobbs was unfit to partake in a telephone court appearance and that that position was unlikely to improve significantly. 5Those documents raise concern about Mr Hobbs' ability to participate in the proceedings at all. However in the light of those medical opinions there appears to be little utility in an adjournment, presumably intended to enable Mr Hobbs' participation. Further, in my view the interests of justice can be served by dealing with ASIC's application in a manner which does not bring the proceedings to an end as ASIC's motion seeks, but hopefully will regularise them to the greatest extent possible. 6I would add that in the light of the matters to which the medical practitioners refer, it is desirable both that Mr Hobbs deal with what I would call the real issue as quickly as possible and be on notice that the Court, having read the material he has advanced, is of the view that he should make arrangements as soon as possible for legal representation, to ensure that he can comply with the obligation to which all who appear in this court or participate in its processes are subject by s 56 of the Civil Procedure Act 2005, namely that matters be disposed of as expeditiously and cost-effectively as possible. 7I now turn to ASIC's application. UCPR 51.41(1) requires ASIC, or any party which wishes to object to the competency of an appeal, to do so within twenty eight days after service of the notice of appeal. 8Ward JA's final reasons in the proceedings below were delivered on 21 February 2013. Mr Hobbs filed a notice of intention to appeal on 20 March 2013. However, he did not serve that notice of intention to appeal on ASIC after it was filed, rather he emailed it to ASIC on 5 March 2013. ASIC has never been served with a sealed copy of the notice of intention to appeal: cf UCPR 51.8. 9On 17 May 2013, the Registrar of the Court of Appeal acceded to an application by Mr Hobbs for leave to file his notice of appeal by facsimile. Notwithstanding that leave, it does not appear from the court papers to which I have access that a facsimile copy of the notice of appeal was received. Rather the court papers include what appears to be an original letter purportedly from Mr Hobbs, dated 21 May 2013, date stamped as received by the court on 28 May 2013, attaching a notice of appeal. The notice of appeal is stamped as having been filed on 29 May 2013. Neither document bears a facsimile transmission notation. 10If, which it is unnecessary to decide, the failure to serve the notice of intention to appeal meant that the notice of intention to appeal should be treated as a nullity (which is the essence of ASIC's submission), Mr Hobbs was required to serve the notice of appeal within twenty eight days of the material date, 21 February 2013, namely by 21 March 2013. If, however, the notice of intention to appeal was treated as efficacious, the notice of appeal should have been filed by 21 May 2013. In the latter case it is about seven days late and in the former case about two months out of time. 11It appears that Mr Hobbs faxed the notice of appeal to ASIC on 21 May 2013, prior to the date on which the original documents were actually received in the Court. However, once again he has not served a sealed copy of the notice of appeal on ASIC. 12I accept it was necessary for ASIC to bring these matters to the Court's attention to ensure compliance with the time limited by UCPR 51.41. However, having regard to the fact that Mr Hobbs is a litigant in person and that he resides in New Zealand, as well as the fact that on one view of the documents, leaving aside the issue of service, the notice of appeal was filed only seven days late, in my view Mr Hobbs should be given an opportunity to put his house in order to address the two issues of deficient service to which I have referred. 13The matter could be dealt with in one of two ways: in relation to the notice of intention to appeal, by Mr Hobbs seeking an extension of the time for its service pursuant to UCPR 51.9(1)(b) and, in relation to the notice of appeal, seeking an extension of time pursuant to UCPR 51.16(2) and/or in both cases pursuant to s 63 of the Civil Procedure Act asking the Court to treat those failures as an irregularity. The observation I have made in relation to UCPR 51.16(2) in relation to service also applies in relation to the apparent necessity that Mr Hobbs now seek an extension of time for the filing of his notice of appeal. 14It is not appropriate at this stage finally to dispose of ASIC's motion to dismiss the proceedings as incompetent which should remain alive in the event that Mr Hobbs is unsuccessful in persuading the Court to grant the relief which I have outlined. What I propose to do, accordingly, is to direct Mr Hobbs to make the applications to which I have referred with a view that both applications can move forward in tandem. 15Accordingly, I direct the appellant, Mr Hobbs, on or before Friday 12 July to file and serve on the respondent a notice of motion seeking either an extension of time in which to serve on the Australian Securities and Investments Commission the notice of intention to appeal filed in this Court on 20 March 2013 and the notice of appeal filed on 29 May 2013 and also in that notice of motion to seek an extension of time within which to file the notice of appeal. The notice of motion should be accompanied by an affidavit setting out the bases upon which the relief is sought. The notice of motion should be made returnable before the Registrar of the Court of Appeal in his directions list on 17 July 2013 to which date I will also adjourn the Australian Securities and Investments Commission's motion of 18 June 2013 with a view, as I have said, that the two motions should proceed together. I give Mr Hobbs leave to file and serve the notice of motion and affidavit in support by facsimile. 16I should make it clear as I have said earlier in these reasons that if Mr Hobbs is suffering from the disabilities referred to he should make arrangements for a legal practitioner to appear on his behalf in relation to that notice of motion on 17 July 2013 and on subsequent occasions, bearing in mind as I have said his obligation to ensure that proceedings in this Court advance in accordance with s 56 of the Civil Procedure Act. 17What do you want to say about the costs of today Mr Clarke? 18CLARKE: Your Honour I'd seek the costs of the notice of motion to date including of today. 19HER HONOUR: My only hesitation Mr Clarke is because having regard to the fact that Mr Hobbs faxed the notice of appeal and his covering letter to ASIC on 21 May and it would be terrible if in fact he had faxed it to the Court but unfortunately it had somehow not got to the right place and I know this cannot lie at the feet of ASIC at all but it is not beyond the bounds of possibility that that is what happened. I appreciate there is also the service issue. 20CLARKE: That would, in my submission, still mean we would have to be here and Mr Hobbs would have to be seeking an extension of time but I understand what-- 21HER HONOUR: Because of the service issue itself. 22CLARKE: Yes your Honour. 23HER HONOUR: Yes. I am not sure whether ASIC would have come here just on the service issue. 24CLARKE: The difficulty is the terms in which 51.41 is expressed. 25HER HONOUR: No, I understand that. The Australian Securities and Investments Commission seeks its costs of the notice of motion to date. Mr Clarke again properly points out its obligation to move expeditiously both because of the terms of the relevant rule and also, as I have said in relation to Mr Hobbs, no doubt because of its obligations under the Civil Procedure Act. Having regard to the fact that I have adjourned the Australian Securities and Investments Commission's motion to 17 July 2013 and directed Mr Hobbs to take the steps already the subject of my orders and indicated that on 17 July 2013 and thereafter there should be appropriate representation on behalf of Mr Hobbs, what I propose to do today is reserve the costs of the motion to date with a view that the costs issues be dealt with by Mr Hobbs' representative or himself should he, despite the medical certificates, recover to an extent possible to make his own representations and be in a position to deal with the issue.

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