Black v Rafa Pastoral Pty Ltd
[2013] VSC 317
•21 June 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT
S CI 1991 6154
| ROBERT JOHN BLACK | Plaintiff/Respondent |
| v | |
| RAFA PASTORAL PTY LTD & ORS (According to the schedule annexed) | Defendants/Appellants |
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JUDGE: | HARGRAVE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21, 22, 24 May, 5 June 2013 (final written submissions filed) | |
DATE OF JUDGMENT: | 21 June 2013 | |
CASE MAY BE CITED AS: | Black v Rafa Pastoral Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 317 | |
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PRACTICE AND PROCEDURE – Self-executing order – Whether ambiguous order – Whether order under ‘slip rule’ correcting error in self-executing order should be set aside - Whether proceeding dismissed for non-compliance – Supreme Court (General Civil Procedure) Rules 2005 rr 36.07, 46.08 – L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2) (1982) 151 CLR 590; Elson v Ayton (2010) 241 FLR 178; Cameron v Cole (1944) 68 CLR 571 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff/Respondent | Mr T Mullen (Duty Barristers Scheme) | |
| For the Third, Fourth and Fifth Defendants/Appellants | Mr L Glick SC with Mr A Segal | Turks Legal |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 2
Was the self-executing order sufficiently clear?........................................................................... 3
Should the slip rule order be set aside?......................................................................................... 6
Should the self-executing order be set aside?............................................................................... 9
Conclusion......................................................................................................................................... 10
HIS HONOUR:
Introduction
The plaintiff, Robert Black, claims relief from the Court in relation to alleged misappropriations of land and other property which were the assets of a family farming enterprise. He alleges that the primary culprit was his deceased brother, Gary Black. The proceeding is defended by Messrs Andrew Yeo and Giuseppe Rambaldi, in their capacity as liquidators of the first defendant and as trustees of the bankrupt deceased estate of Gary Black. The third defendant is Gary Black’s ex-wife, Judith Black.
The proceeding was commenced about 22 years ago in 1991. The extraordinary delay in bringing the proceeding to trial reflects badly on all of the parties and, indeed, the Court. As other judges have justifiably commented in the course of recent interlocutory applications, the proceeding has been running for an ‘outrageous’ time.[1]
[1]Per Bell J, 19 December 2011; per Hollingworth J, 26 June 2012.
The plaintiff represented himself from about 2000 until he received assistance from the Duty Barristers Scheme for the purposes of the application giving rise to the appeal before the Court and for the hearing of that appeal. The Court expresses its gratitude to Mr Mullen, who appeared in that capacity. His submissions were of great assistance to the Court.
The issues before the Court arise from the plaintiff’s failure to comply with a self-executing order made by Daly AsJ on 12 June 2012. The self-executing order required the plaintiff to file and serve his outline of evidence within a specified time, and provided that the proceeding would be dismissed if he did not comply with that requirement. Daly AsJ recorded in ‘OTHER MATTERS’ that:
This Court considers that given the age and the history of this case, and the necessity for the defendants to understand the manner in which the plaintiff will put his case at trial, a self-executing order is appropriate. The plaintiff has already been given extraordinary time to provide his outlines of evidence: see Jorgensen v Slater & Gordon Pty Ltd [2008] VSCA 110, [32].
The plaintiff did not file and serve his outline of evidence by the end of 24 July 2012. On 7 August 2012, the defendants’ solicitors asserted to the plaintiff that his proceeding had been dismissed by operation of the self-executing orders and that they had ‘sought final Judgment’ from Daly AsJ. The plaintiff applied to Daly AsJ for an extension of time to comply with the self-executing order, so as to avoid dismissal of his case consequent upon his non-compliance with that order. The plaintiff’s summons was heard by Daly AsJ on 13 March 2013. On 16 April 2013, her Honour further extended the time for the plaintiff to file and serve his outline of evidence – until 31 May 2013 – and published reasons for her decision (‘Reasons’).
The effect of the further extension of time is that, provided the plaintiff files and serves his outline of evidence by 31 May 2013, the case can proceed to a trial on the merits.
The defendant appealed against the order granting an extension of time.
On the hearing of the appeal, issues arose as to whether that self-executing order was sufficiently clear on its face to give rise to the drastic consequence that the plaintiff’s proceeding would be dismissed if he did not comply, and as to whether an order made under the ‘slip rule’ to correct an error in the self-executing order should be set aside. I will first deal with those issues.
Was the self-executing order sufficiently clear?
Before a self-executing order can operate according to its terms, so as to bring an end to a proceeding if it is not complied with, the terms of the self-executing order must be precise and unambiguous, so that the party against whom the order is made should be left in no doubt as to what must be done to avoid judgment against him, her or it in the proceeding.[2]
[2]Lexis Nexis, Williams Civil Procedure Victoria at [24.02.35] and the cases there referred to.
The self-executing order in this case was made in the absence of the plaintiff. In circumstances where the plaintiff is a self-represented litigant, Daly AsJ would doubtless have explained the seriousness of non-compliance if the plaintiff had been present in Court when the order was made.[3] Accordingly, although every self-executing order must be precise, complete and unambiguous, that must especially be so in a case where the self-executing order is made in the absence of a litigant in person. Unfortunately, for the reasons given below, the self-executing order in this case was not precise, complete and unambiguous.
[3]Reasons, [12(c)].
First, the self-executing order was, in its terms, an extension of time for the plaintiff to file and serve his outline of evidence. But the order initially fixing that time was not referred to in the self-executing order. The time which was extended was that fixed by Bell J on 19 December 2011, when his Honour ordered that: ‘By 4:00pm on 21 March 2012 all parties file and serve any outlines of evidence they wish to rely upon at trial.’[4] That order is not referred to in the self-executing order, which is expressed to have been obtained: ‘On return of the order of the Honourable Associate Justice Zammit made 28 May 2012’.
[4]Emphasis added.
Second, the self-executing order relates only to the plaintiff. This is apparently because counsel for the defendants informed Daly AsJ on the day the order was made that the defendants did not then intend to file any outlines of evidence; while reserving the right to do so once they had considered the plaintiff’s outline.[5] This led to the disconformity between the orders of Bell J, for mutual outlines to be filed, and the self-executing order. In effect, the self-executing order was a variation of Bell J’s order. But the self-executing order contains no reference to the disconformity or variation, either in ‘Other Matters’ or in the body of the orders, as it should have.
[5]Junior counsel for the defendants so informed the Court during the hearing of the appeal.
Third, the self-executing order contains a typographical error. That error was made by the defendants, who drafted the order and submitted it to the Court for authentication. The extension of time is contained within para 1 of the order. Paragraph 2 of the order incorrectly states that: ‘If the plaintiff does not comply with paragraph 2 of these orders, then the proceeding shall be dismissed.’[6] That particular error is obvious, and was drawn to the plaintiff’s attention in a letter dated 13 June 2012, the day following the making of the self-executing order, enclosing a copy of a draft of the self-executing order:
We draw your attention to the following matters:
1.We note the printing error in paragraph 2 of the draft copy of the Orders which incorrectly refers to paragraph 2 instead of paragraph 1.
2.The Orders require you to file and serve your outlines of evidence by 24 July 2012. Our clients may apply to strike out the Proceeding if you fail to do so.
3.We will serve an authenticated copy of the Orders of Associate Justice Daly dated 12 June 2012 by ordinary pre-paid post on receipt from the Court.
[6]Emphasis added.
In these circumstances, it is regrettable that the defendants’ solicitors did not endeavour, at that time, to ensure that the authenticated orders did not contain this typographical error. In fact, the authenticated self-executing order perpetuated the error. No application was made at that time to correct the mistake, as it should have been.[7] The authenticated order containing the error was served on the plaintiff without comment. Presumably, the defendants’ solicitors believed that they had done enough, in their earlier letter when providing a copy of the draft self-executing order to the plaintiff, to put the plaintiff on notice as to the error. That letter did not refer to the other ambiguities described above, arising from the genesis of the self-executing order in Bell J’s orders made 19 December 2011. Nor did the letter explain to the plaintiff why Bell J’s order that the defendants file their outlines of evidence was not going to be complied with.
[7]Rule 36.07.
Ambiguity in the self-executing order was recognised by Cavanough J on 22 November 2012, when he heard an application by the defendants under s 90(3) of the Transfer of Land Act 1958 (Vic) for orders removing caveats lodged by the plaintiff over certain land. In the course of the hearing, Cavanough J considered the terms of the self-executing order, and expressed his opinion that it did not operate as a self-executing order. In the other matters section of his order removing the caveats, Cavanough J stated:
Contrary to the submissions of the liquidators and the third, fourth and fifth defendants, the Court was not satisfied that the order made by the Honourable Associate Justice Daly on 12 June 2012 operated as a self-executing order. Accordingly, notwithstanding that the plaintiff did not file or serve any outlines of evidence by 24 July 2012, the Court was not satisfied that this proceeding stands dismissed as a result of non-compliance with the order of 12 July 2012 (or at all).[8]
[8]Emphasis added.
This statement by Cavanough J does not contain any reason or reasons as to why he was not satisfied that the proceeding stood dismissed as at that date. In an affidavit sworn by the defendants’ solicitor, which was before Daly AsJ on the hearing of the application to extend time for compliance with the self-executing order, he deposed that statements made by Cavanough J in the course of discussion with counsel on 22 November 2012 prompted him to apply under r 36.07 to have Daly AsJ amend the self-executing order. On 4 December 2012, Daly AsJ amended the self-executing order pursuant to r 36.07, so as to correct the typographical error (the ‘slip rule order’). The corrected order was served on the plaintiff without explanation.
Should the slip rule order be set aside?
The application for the slip rule order was made in an inappropriate manner. There was no summons, no affidavit in support and no notice to the plaintiff. Instead, the defendants’ solicitor had a private conversation with the associate judge’s associate on 30 November 2012. He asked the associate whether her Honour would be willing, on the Court’s own motion, to make the slip rule order. He then sent an email to the associate on 4 December 2012, in which he referred to the private conversation ‘in relation to a slip’ in the self-executing order and asked for ‘an update’ as to whether the slip rule order had been made. The email was copied to the plaintiff. There was then a chain of emails that day between the associate and the solicitor, copied to Mr Black, and the slip rule order was made either that afternoon or two days later, on 6 December 2012.[9] The slip rule order states that it was obtained pursuant to r 36.07 and that there was no appearance. It was clearly made ‘on the papers’ following the earlier private conversation and the email exchanges. Although the plaintiff was copied into those emails, he was not, nearly six months after the self-executing order was made, reminded as to what ‘the slip’ was and was not invited to indicate his attitude to the application or to make submissions, even though the time for compliance with the self-executing order had passed and the defendants were contending that the proceeding stood dismissed.
[9]Although dated 4 December 2012, it may be that the slip rule order was in fact made on 6 December 2012, following a further email exchange with another associate, but nothing turns on that issue.
At the hearing of the appeal, the Court invited further submissions as to the effect of the slip rule order in circumstances where it effected a correction of a self-executing order which the defendants contended had operated to bring about dismissal of the proceeding. Both parties filed written submissions on this issue.
It was submitted on behalf of the defendants that the corrected self-executing order operated nunc pro tunc, so that the correction speaks as from the time of the original self-executing order. If the slip rule order was properly made, that submission would be accepted. For example, in Elyard Corp Pty Ltd v DDB Needham Sydney Pty Ltd,[10] Lindgren J (Black CJ and Lockhart J agreeing) described the effect of an order made under the slip rule in the following terms:
where an order is properly made under the slip rule, its effect is that the ‘clerical mistake’ or ‘error’ in the original judgment or order is eradicated so that the original judgment or order is treated as having been always made as corrected.[11]
[10](1995) 133 ALR 206.
[11]Ibid 219 (emphasis added).
As to whether an order under the slip rule has been ‘properly made’ there is in my opinion, no right to an order wherever clerical error is established. As the High Court stated in L Shaddock & Associates Pty Ltd v Parramatta City Council (No 2): ‘an order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made’.[12]
[12](1982) 151 CLR 590, 597.
The defendants’ submissions in this regard treated the making of the order under the slip rule as a complete answer to any suggestion that the earlier operation of the self-executing order, giving rise to dismissal of the proceeding, could be questioned on the hearing of this appeal by reason of the typographical error. Strictly speaking, that is so. To raise this issue for determination, it was necessary for the plaintiff to apply to set the slip rule order aside - for example, under r 46.08 on the basis that it was made in his absence and without notice to him. When the issue arose, I convened a further hearing to ventilate it and invited further submissions. At that time, counsel for the plaintiff made an oral application to set aside the slip rule order. He also submitted that the circumstances in which the slip rule order was made were in any event relevant to the discretion exercised by the associate justice when she decided to extend the time for compliance with the self-executing order; a matter raised by her in the Reasons and arising on appeal in any event.[13]
[13]Reasons, [12(d)].
Rule 46.08(b) gives the Court power to set aside or vary an order which affects a person where the application for the order was not made on notice to that person. The defendant contends that the application for the slip rule order was made on notice, because all email correspondence between the defendants’ solicitors and the associate judge’s associate was copied to the plaintiff, and because the plaintiff was in communication with the associate on the day the slip rule order was made. I will deal with the second point first. It has no relevance. The plaintiff’s own communications with the Court on that day had nothing to do with the slip rule order being proposed by the defendants. To the contrary, the plaintiff’s email that day was addressed to his earlier requests, in August 2012, that the associate justice extend the time to comply with the self-executing order.[14]
[14]See the plaintiff’s email to the associate and the defendants’ solicitor sent 13 August 2012 and enclosed document seeking an extension of time (para 5), and the plaintiff’s emails of 26 and 30 August 2012.
I reject the submission that the defendants gave proper notice to the plaintiff of the application for the slip rule order by copying him with the emails between the defendants’ solicitor and the associate to the associate justice. Provision of copies of those emails to the plaintiff was not notice of an application, in the sense that the plaintiff (a self-represented litigant) would appreciate that he had a right to be heard in opposition. The emails dealt with the mechanics and timing of the slip rule order, on the assumption that an entitlement to it had been established in the private conversation.
The fact that the error was an obvious one is no answer to the need to give proper notice. This is especially so in circumstances where six months had elapsed since the self-executing order was made, and where Cavanough J had stated that the self-executing order ‘had not operated as a self-executing order’. The course adopted by the defendants deprived the plaintiff of any real opportunity to be heard and was in my opinion plainly wrong, as applications under the slip rule must be made on reasonable notice to affected parties.[15] The defendant ought to have made a formal application on reasonable notice to the plaintiff, and sought a date for the application to be heard by the Court. In the absence of express consent, the application ought not to have been dealt with on the papers – a course obviously suggested by the defendants’ solicitor in the private conversation with the associate. I conclude that the slip rule order was not properly made and did not, therefore, operate nunc pro tunc. The slip rule order was obtained in breach of the rules of procedural fairness and must be set aside.[16]
[15]Ninnis v Miller [1905] VLR 669; Hatton v Harris [1892] AC 547, 560; Elson v Ayton (2010) 241 FLR 178, [86]-[88].
[16]BP Australia Ltd v Brown & Ors (2003) 58 NSWLR 322, [133]; Cameron v Cole (1944) 68 CLR 571, 590-1.
Should the self-executing order be set aside?
It was submitted on behalf of the defendants that the other ambiguities in the self-executing order were of no moment, because a self-executing order can stand alone and did not need to refer to its source or otherwise be in conformity with the original order giving rise to it. I do not accept that submission. In my opinion, parties propounding a self-executing order bear a heavy responsibility to the Court and the party to whom the proposed self-executing order is directed. If the form of order is not complete, precise and unambiguous on its face, there is a risk of injustice and, additionally, a risk that the Court’s time will be wasted in resolving disputes about the operation of the order in the circumstances of a particular case. Appropriately framed self-executing orders can further the overarching purpose in the Civil Procedure Act 2010 (Vic). But if self-executing orders are not properly framed they will likely lead to disputes such as that which arises in this case, and thus act contrary to that purpose.
In my opinion, even if the slip rule order was properly made, the self-executing order was not sufficiently complete on its face to operate as a self-executing order and should be set aside.
Conclusion
As both the self-executing order and the slip rule order must be set aside, the appeal is therefore moot. It is therefore unnecessary to consider whether Daly AsJ was right to extend the time for the plaintiff to comply with the self-executing order. In that regard, I note that the plaintiff has now filed his outline of evidence – within the extended time given by Daly AsJ. Directions should be made for a trial at the earliest available opportunity.
I will hear the parties as to costs.
SCHEDULE OF PARTIES
| S CI 1991 6154 | |
| BETWEEN: | |
| ROBERT JOHN BLACK | Plaintiff/Respondent |
| - and - | |
| RAFA PASTORAL PTY LTD | Firstnamed Defendant/Appellant |
| GARY THOMAS BLACK (deceased) | Secondnamed Defendant/Appellant |
| JUDITH LOUISE BLACK | Thirdnamed Defendant/Appellant |
| ANDREW REGINALD YEO (as Trustee for the bankrupt estate of Gary Thomas Black) | Fourthnamed Defendant/Appellant |
| GIUSEPPE MICHAEL RAMBALDI (as Trustee for the bankrupt estate of Gary Thomas Black) | Fifthnamed Defendant/Appellant |
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