BMW Australia Finance Ltd v Palmer
[2010] VSC 178
•22 March 2010 (Ex tempore. Revised reasons published 30 April 2010).
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 7304 of 2009
| BMW AUSTRALIA FINANCE LTD | Plaintiff |
| v | |
| MICHAEL GARETH PALMER | Defendant |
---
JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 March 2010 | |
DATE OF JUDGMENT: | 22 March 2010 (Ex tempore. Revised reasons published 30 April 2010). | |
CASE MAY BE CITED AS: | BMW Australia Finance Ltd v Palmer | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 178 | |
---
PRACTICE AND PROCEDURE – Discovery by categories of documents – Application by plaintiff for short retrospective extension of the time fixed by prior order for service of list of categories – No prejudice to defendant – List signed in name of firm of solicitors representing plaintiff – Firm not a legal entity – List nevertheless sufficient – Appeal from order of Associate Justice granting extension of time dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Bravender-Coyle | Douros Lawyers |
| For the Defendant | In person | Not applicable |
HIS HONOUR:
This is an appeal from an order made by Associate Justice Mukhtar on 10 March 2010. The order was made on a summons filed by the plaintiff, BMW Australia Finance Limited, on 16 February 2010. In that summons the plaintiff sought orders extending certain times that had been fixed by an order concerning discovery made by Associate Justice Daly on 16 December 2009. The summons filed on 16 February 2010 also sought orders that the defendant, Mr Palmer, provide inspection of documents by a specified time.
I have read all of the material that was filed by or on behalf of the plaintiff in support of the summons, and also the material in opposition that was filed by Mr Palmer. I have also read the further affidavit material that was admitted on the appeal by special leave, being an affidavit of Mr Palmer of 17 March 2010 and an affidavit of Peter Douros, solicitor, of 19 March 2010 on behalf of the plaintiff.
By paragraph 1 of his order of 10 March 2010, Associate Justice Mukhtar ordered that the time within which the plaintiff was required to comply with paragraph 1 of Associate Justice Daly’s order of 16 December 2009 be extended retrospectively from 23 December 2009 to 28 December 2009. The effect of Associate Justice Mukhtar’s order was to extend the time by which the plaintiff was to serve a list of categories of documents in relation to which it sought discovery from the defendant. Such a list had been prepared by the plaintiff’s solicitors in the form of a document headed “Schedule of Documents for Discovery” and had been put in the post on 23 December 2009 under cover of a letter from the plaintiff’s solicitors, Douros Lawyers, dated the same day. A copy of the schedule was also filed on the same day (23 December 2009), although Associate Justice Daly’s order did not expressly require that a copy be filed. It appears that the letter with the schedule did not reach Mr Palmer until 28 December 2009. (Mr Palmer has an address for service in this proceeding which is a locked post office box.) Of course in the meantime the Christmas period intervened.
Subsequently, in letters addressed to Mr Peter Douros (the principal of Douros Lawyers), Mr Palmer objected to the late receipt of the schedule. He also complained about the form of the schedule. He complained about the fact that it was not signed in the name of an individual solicitor or other legal entity but was rather endorsed “Douros Lawyers”. (It was so endorsed in hand and in print at the foot of the document on page 3.) Mr Palmer submitted in the correspondence and also, apparently, to Associate Justice Mukhtar, and likewise to me today, that the endorsing of the schedule in that way was a deficiency, indeed a fundamental deficiency, in the document such that it did not comply with the order of Associate Justice Daly, and such that it rendered the document not a legal document at all, to use the expression that Mr Palmer favoured.
Mr Palmer also objects to the fact that Associate Justice Mukhtar was prepared to grant the extension of time retrospectively. He submits that no sufficient reason was or has been advanced on behalf of the plaintiff for the indulgence sought. He points out that this is not the first time that the plaintiff has been late in complying with a requirement of an order of an Associate Justice in this proceeding. In particular, he points out that the plaintiff was approximately one week late in complying with an order for the filing of an affidavit of documents in September/October 2009. But he does not assert that there was any prejudice to him as a result of the schedule not reaching him within the period initially specified. He makes his stance, he says, as a matter of principle and submits that this Court should mark its disapproval of the plaintiff’s non-compliance with the Court’s orders by requiring the plaintiff to start again by re-sending a schedule of documents.
That might seem to be pointless, but Mr Palmer submits that it is not pointless because the schedule as presently prepared is not a valid document anyway, because it was not appropriately signed. I will come to that in a moment, but I note that Mr Douros has filed an affidavit attributing the delay to the amount of work necessary to obtain instructions and to prepare the schedule together with the pressure of other work in the period immediately before Christmas; and on that basis, and also on the basis that there has been no suggestion of prejudice to the plaintiff, the plaintiff asks that I do what Associate Justice Mukhtar did, namely, retrospectively authorise service on the defendant by 28 December 2009.
In all the circumstances I am satisfied that it is appropriate to grant that extension, just as Associate Justice Mukhtar was. In coming to that view I note that the order of Associate Justice Daly allowed the defendant to respond to the schedule over a period that stretched to 5 February 2010 and also that when the defendant raised his complaints about the matter in one of his early letters to the plaintiff’s solicitors, the plaintiff’s solicitors offered immediately to grant a further week to the defendant to comply with the requirement. Implicitly, of course, that offer was made on the basis that proposed consent orders would be submitted to the Court if the proposal was agreed to. However Mr Palmer did not agree, and insisted that the plaintiff needed to obtain the Court’s fresh authority in advance for the re-service of a list of categories and that any such list would need to be properly signed and that to endorse it (as before) with the name of the firm of solicitors would not constitute signing it. That was not, in my view, an appropriate response, and the plaintiff’s solicitors’ proposal was far more reasonable and in accordance with what one would expect in the circumstances.
Putting aside, for the moment, the question of signature, I do not see any reason at all to not extend the time until 28 December 2009.
I come then to the question of Mr Palmer’s objection to the fact that the schedule was endorsed “Douros Lawyers”. The schedule was accompanied by a letter dated 23 December 2009 that indicates that it came from the firm known as Douros Lawyers. The letter concludes, in type, “Yours faithfully, DOUROS LAWYERS” followed by an illegible signature followed by “for Peter Douros”. No complaint has been made by Mr Palmer about the nature of that signature on that letter. The complaint, rather, is about the schedule that went with it. Mr Palmer submits that because the schedule is endorsed “Douros Lawyers”, it has no legal existence or legal validity and he should not be required to respond to it.
However Mr Palmer has not been able to point me to any statutory provision or to any provision of any relevant rule or to any common law principle or to any Court order whereby the schedule itself needed to be signed at all, much less that it needed to be signed in the name of an individual human being who was an Australian lawyer, as Mr Palmer has submitted to me today. As far as I can ascertain there is simply no legal requirement for that to be done. The document speaks for itself. It was obviously sent pursuant to the order made by Associate Justice Daly, of which Mr Palmer was well aware. Its import was clear. There is no substance or merit in the suggestion that it was not a valid document or that it did not convey the requirements which it purported to convey, merely because of the way in which it was endorsed at its foot or merely because it did not bear the signature of an individual Australian lawyer as such.
I note that it was held as long ago as 1833, in Engleheart v Eyre,[1] a case of which a copy is contained in Mr Palmer’s own affidavit material, that even in relation to a document which is required to be endorsed by a solicitor, it is sufficient if the name of the solicitor’s firm be endorsed on the document. That has been the universal practice of the courts in England and in Australia ever since.
[1](1833) 2 Dowl 145; 37(2) The Digest 2101.
A very similar, if not identical, argument was advanced by Mr Palmer to Smith J in the Practice Court in February 2009 in a case involving an attempt by Mr Palmer to obtain the setting aside of a default judgment that had been entered against a company, Virgin Investments Pty Ltd, associated with Mr Palmer. On 24 February 2009 Smith J rejected Mr Palmer’s suggestion that a law firm could not sign a statement of claim because it was not a legal entity. On 24 April 2009 the Court of Appeal refused Mr Palmer leave to appeal,[2] saying[3] that there was no merit in any of Mr Palmer’s submissions; and saying, in relation to the present point in particular:[4]
“Rule 5.11(2) of the Rules provides that where a party sues by a solicitor, the writ must be signed by the solicitor and r 13.01(3) provides that a pleading must be signed by the solicitor where it is not settled by counsel. The Legal Profession Act 2004 (Vic) recognises that solicitors may practise as sole practitioners or as partners of a law firm and imposes a number of obligations on law firms notwithstanding that they are not separate legal entities. The Rules also recognise law firms. Accordingly, a writ and a statement of claim can be signed in the name of a law firm even though the firm is not a separate legal entity and there is no requirement to identify the person signing in the name of the firm.”
[2]Permanent Custodians Ltd v Palmer [2009] VSCA 80 (Buchanan JA and Kyrou AJA).
[3]At [11].
[4]At [13]. Footnotes omitted.
On 21 July 2009 the Court of Appeal (differently constituted) refused an application by Mr Palmer for a stay of the default judgment against Virgin Investments Pty Ltd pending the outcome of an application that had been made by Mr Palmer to the High Court for special leave to appeal against the decision of the Court of Appeal of 24 April 2009.[5] Counsel for BMW Australia Finance Ltd informs me that the High Court has since refused special leave to Mr Palmer to appeal from the decision of the Court of Appeal of 24 April 2009.
[5]Palmer v Permanent Custodians Ltd [2009] VSCA 164 (Dodds-Streeton JA and Beach AJA).
Mr Palmer also put a similar argument to me in the Practice Court on 28 May 2009 in another application in that same proceeding. Unsurprisingly I followed the abovementioned decisions of Smith J of 24 February 2009 and of the Court of Appeal of 24 April 2009 and rejected Mr Palmer’s argument.[6] I do the same again today.
[6]Permanent Custodians Ltd v Virgin Investments Pty Ltd [2009] VSC 246.
It seems to me there is no reason why order (1) made by Associate Justice Mukhtar on 10 March should not stand.
I turn to the other paragraphs of the order. Paragraph 2 was to the effect that the time within which the defendant, Mr Palmer, must comply with paragraph 2 of the Court’s previous order, is extended from 5 March 2010 to 26 March 2010. That is plainly a reference to paragraph 2 of Associate Justice Daly’s order of 16 December 2009 which required the defendant to make, file and serve an affidavit of documents and/or a list of objections to the categories by 5 February 2010. The effect of paragraph 2 of Associate Justice Mukhtar’s order is to extend that time until 26 March 2010. In other words, the defendant has until 26 March 2010, namely this Friday, to make, file and serve an affidavit of documents and/or a list of objections to the categories. He has sought no further time to do that. So, again, I see no reason why that order of Associate Justice Mukhtar should be interfered with.
The effect of paragraph 3 of Associate Justice Mukhtar’s order was to extend the time within which the parties might file and serve any summons seeking further and better discovery from 5 March 2010 (which was the date specified by Associate Justice Daly’s order of 16 December 2009) to 4 June 2010. That extension was given to accommodate Mr Palmer’s intention to be overseas for some two months in April and May of this year. Again, I have heard no application to vary that particular provision. So, again, it should stand.
Next, Associate Justice Mukhtar vacated the provision in Associate Justice Daly’s order in relation to the return of the directions hearing and ordered instead that the next directions hearing take place on 4 June 2010 in Associate Justice’s Court 4, simultaneously with any discovery application. That follows logically from his Honour’s previous order. Again, nothing has been said to me to suggest that there is anything wrong with that order. So it will stand.
I order that the appeal be dismissed and that the appellant/defendant, Mr Palmer, pay the plaintiff’s costs of the appeal.
0