Cosgrove v Culloton [No 2]
[2015] WADC 63
•3 JUNE 2015
COSGROVE -v- CULLOTON [No 2] [2015] WADC 63
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 63 | |
| Case No: | CIV:777/2012 | 9 FEBRUARY, 4, 11 & 27 MARCH & 29 MAY 2015 | |
| Coram: | GOETZE DCJ | 3/06/15 | |
| PERTH | |||
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | GEOFFREY GRANT COSGROVE JEFFREY MICHAEL CULLOTON |
Catchwords: | Application to set aside judgment after trial in default of appearance by defendant Misconduct of defendant Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA) O 34 r 3 |
Case References: | Broadway Pty Ltd v Lewis [2012] WASC 373 Johnson & Co Ltd v Clifford (1905) 7 WALR 240 Jones v Dunkel (1959) 101 CLR 298 Policy Nominees v McDougall (Unreported, WASC, Library No 8768, 12 March 1991) Singh v Singh [2006] WASC 182 Tobin v Dodd [2004] WASCA 288 Tomasevic v Travaglini [2007] VSC 337 Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JEFFREY MICHAEL CULLOTON
Defendant
Catchwords:
Application to set aside judgment after trial in default of appearance by defendant - Misconduct of defendant - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 34 r 3
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr S Vandongen SC
Defendant : Mr N D C Dillon with Mr M Goldblatt
Mr J Hammond : Mr A J Power
Solicitors:
Plaintiff : Bradley Bayly Legal
Defendant : Rowe Bristol Lawyers
Mr J Hammond : Hammond Legal
Case(s) referred to in judgment(s):
Broadway Pty Ltd v Lewis [2012] WASC 373
Johnson & Co Ltd v Clifford (1905) 7 WALR 240
Jones v Dunkel (1959) 101 CLR 298
Policy Nominees v McDougall (Unreported, WASC, Library No 8768, 12 March 1991)
Singh v Singh [2006] WASC 182
Tobin v Dodd [2004] WASCA 288
Tomasevic v Travaglini [2007] VSC 337
Vacuum Oil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239
- GOETZE DCJ:
Introduction
1 The plaintiff, Geoffrey Grant Cosgrove, sued the defendant, Jeffrey Michael Culloton, for damages for personal injuries arising from an alleged assault and battery on 12 April 2009 at Three Springs.
2 The action was listed for trial over five days commencing on 1 September 2014.
3 Mr Culloton did not appear at the trial which proceeded in his absence. On 23 October 2014, judgment was awarded in favour of Mr Cosgrove in the sum of $107,432.
4 Mr Culloton now seeks to set aside the judgment pursuant to O 34 r 3 of the Rules of the Supreme Court 1971 (WA). However, the application was not made within time and therefore, an extension of time is required.
Background facts
5 The assault and battery occurred at the wedding of Mr Cosgrove's brother. They, by birth, are the nephews of Mr Culloton's wife. Mr Culloton was subsequently charged with an assault occasioning bodily harm and further and in the alternative, unlawfully doing an act as a result of which bodily harm was caused to Mr Cosgrove. In August 2010, after a trial before a judge and jury at Geraldton, Mr Culloton was found not guilty on both charges.
6 On 16 March 2012, Mr Cosgrove issued a writ of summons against Mr Culloton who engaged a solicitor, Mr John Hammond. He filed a defence on behalf of Mr Culloton.
7 Mr Culloton's general attitude to the civil litigation was expressed by him in an email to Mr Hammond on 31 May 2013 as follows:
… I have no intention of negotiating anything with these scum, I don't want to spend anything until the trial. Could you just delay everything until the last minute and try to annoy these bastards as much as possible? Let us know if you are happy with these arrangements.
8 By correspondence and by email dated 20 November 2013, Mr Hammond advised Mr Culloton that a pre-trial conference had been listed for 4 February 2014 at 9.45 am. On 20 November 2013, Mr Culloton replied by email to Mr Hammond advising that he did not require Mr Hammond to attend that pre-trial conference. Mr Hammond then prepared a notice for Mr Culloton to sign of his intention to act in person.
9 On 3 January 2014, Mr Hammond sent a further letter and email to Mr Culloton reminding him of the pre-trial conference appointment. On the same date, Mr Culloton filed a notice, dated 30 November 2013, of his intention to act in person.
10 On 3 February 2014, Mr Hammond telephoned Mr Culloton to remind him of the pre-trial conference listed for the following day.
11 Mr Culloton did not attend the pre-trial conference. The action was then referred to a listing conference on 17 March 2014. Mr Culloton attended at that listing conference when trial dates were allocated. Mr Culloton attended subsequent directions hearings on 7 April, 26 May, 14 July and 18 August 2014. As noted, he failed to attend at the trial on 1 September 2014 and thereafter.
12 On the day of the trial and prior to the commencement time, my associate telephoned Mr Culloton as he had not arrived at the court. When the trial was called on, it was at first adjourned in an endeavour to contact Mr Culloton by telephone. Telephone calls to him were made again during the afternoon of the first day and on the morning of the second day of the trial. Mr Culloton did not answer any of those calls. The trial proceeded over three days without him and on 23 October 2014, judgment was entered against Mr Culloton in the sum of $107,432.
13 At unknown times, Mr Culloton both instructed Mr Hammond to advise him of the action he could take with respect to the judgment and he also terminated those instructions.
14 On 6 November 2014, Mr Culloton, in person, filed a notice of appeal against the judgment. On 19 November 2014, Mr Culloton formally instructed his present solicitors. Service of the notice of appeal was effected on 8 December 2014.
15 Mr Culloton's appeal case was required to have been filed and served by 11 December 2014. It was filed on the following day. Ground 3 of the grounds of appeal is said to have foreshadowed that an application under O 34 r 3 may have been available to him to be exercised by the Court of Appeal. However, by letter dated 22 December 2014, the registrar of the Court of Appeal required that this ground be either amended or deleted. Mr Culloton subsequently instructed his present lawyers to commence this application, including to seek an extension of time within which to bring it. Mr Culloton has not stated when he gave those instructions.
16 By application dated 8 January 2015, Mr Culloton applied to the Court of Appeal to extend the time limited for filing and serving his notice of appeal. That application also sought to stay the taxation of costs from the trial.
17 The application was heard by Murphy JA on 2 February 2015. He delivered written reasons on 6 February 2015 referring the application for an extension of time for the appeal to the hearing of the appeal. He rejected the stay application regarding the taxation of costs. Murphy JA also stayed the appeal pending the determination of this application, which had been filed in this court on 28 January 2015.
Rules of the Supreme Court O 34 r 1
18 Order 34 r 3 provides as follows:
3. Setting aside judgment given in absence of party
Any judgment, order, or verdict obtained where one party does not appear at the trial may be set aside by the Court upon such terms as the Court thinks just upon application made within 14 days after the trial.
20 An extension of time is required by reason that this application was not brought until 28 January 2015.
Applicable principles
21 In Policy Nominees v McDougall (Unreported, WASC, Library No 8768, 12 March 1991) Owen J said:
Decided cases establish that in this type of application the applicant needs to canvas at least four issues:
(a) the reason for the defendant being absent at the appropriate time;
(b) whether there has been delay in bringing the application to set aside judgment;
(c) whether the party in whose favour judgment was given would suffer prejudice; and
(d) whether the applicant has an arguable case on the merits.
22 Further, in Singh v Singh [2006] WASC 182 [8] – [12] inclusive, Simmonds J considered the approach to be applied when seeking to set aside a judgment after trial in the absence of one of the parties. The following relevant principles can be stated:
1. In a case in which one of the parties to the proceedings fails to appear at trial, a new trial will not be granted save in very special circumstances, or as Owen J put it in Policy Nominees v McDougall,extraordinary circumstances.
2. The court has an unfettered, though judicial, discretion.
3. In deciding whether to exercise that discretion, it is necessary to consider:
(a) whether any useful purpose would be served by setting aside the judgment ie, does the defendant have a good defence on the merits?
(b) the reasons for the defendant not attending trial;
(c) whether the application to set aside the judgment was made promptly; and
(d) whether a new trial would cause irremediable injustice to the non-defaulting party.
24 Putting to one side the issue of Mr Culloton being absent from the trial, it can be observed that:
(1) There has been delay in bringing this application. Mr Culloton first instructed Mr Hammond about the judgment but, he terminated those instructions. His present solicitors were engaged on 19 November 2014. They initially sought to continue with the appeal, rather than to bring an application under O 34 r 3. That, of course, was Mr Culloton's right but, it was a forensic decision to do so. This application was not filed until 28 January 2015.
(2) The prejudice to Mr Cosgrove in allowing Mr Culloton's application is that he has obtained a regular judgment, after trial, which he may now lose. He is in no way in default. The trial has been conducted and judgment delivered, now some seven months ago. Further, as will be seen below, Mr Culloton has claimed 'that his Company structure protects [him] from personal damages'. This however, was not a point raised by Mr Cosgrove.
(3) Mr N D C Dillon, counsel for Mr Culloton, provided written submissions pointing to differences in the evidence of some witnesses from the criminal trial to the civil trial as follows:
(a) Mr Cosgrove's evidence in the civil trial was that he had only consumed eight full strength beers and was not intoxicated, whereas in the criminal trial he:
(i) said that he had consumed 10 – 12 beers;
(ii) did not deny that he was intoxicated; and
(iii) said that the consumption of alcohol may have affected his memory.
- Mr and Mrs Culloton's evidence at the criminal trial was that Mr Cosgrove was intoxicated.
(b) There was no evidence in the civil trial of any animosity between Mr Cosgrove and Mr Culloton. At the criminal trial, Mr and Mrs Culloton both said that there was.
(c) In the civil trial, Mr Cosgrove gave evidence that he did not remember that either he or Mr Culloton had anything in their hands at the relevant time. This was contradicted at the criminal trial by a number of witnesses, including some otherwise supporting Mr Cosgrove's case.
Mr Dillon submitted that these differences from the criminal trial 'may have influenced' findings in the civil trial, including findings as to self-defence, contributory negligence and voluntary assumption of risk.
Mr Culloton's written submissions provided for the trial were more expansive than Mr Dillon's submissions including that, at the criminal trial, there were inconsistencies between the evidence of witnesses.
Whether the inconsistencies and differences in evidence are sufficient to show that there is a defence on the merits must remain a moot point. However, it cannot be said that it is reasonably clear that a different decision would have been reached if Mr Culloton had fully participated in the trial and called his witnesses to give evidence. No more can or ought to be said other than that the inconsistencies in evidence 'may have influenced the decision'. Indeed, nothing more should be said at this stage with an appeal pending because of the incompleteness of the evidence. Another difficulty of course is that this trial involved Mr Cosgrove's claim being determined on the lower civil standard of proof on the balance of probabilities, rather than the higher standard of proof requiring the prosecution of the criminal charges to be proved beyond reasonable doubt.
26 It seems that in Policy Nominees and Singh, the non-attending defendants both had good reason to not attend trial and the trial judges ultimately allowed the judgment obtained in each case to be set aside. An example of the defendant not being so successful is Broadway Pty Ltd v Lewis [2012] WASC 373 in which Pritchard J said [47]:
… this was not a case where a party had actively defended litigation throughout, and yet without any explanation, failed to appear at the trial. In such a case, the unexpected failure of a party to appear might warrant further enquiries before a decision were made as to whether to proceed with the trial.
27 Her Honour was concerned that natural justice be afforded to a party to litigation but, she reminded herself, the paramount objective of litigation is the just resolution of disputes [43]. E M Heenan J also referred to the requirements of natural justice to be afforded to a litigant in person in Tobin v Dodd [2004] WASCA 288 [14], being another case relied upon by Mr Dillon.
28 Mr Dillon submitted that Mr Culloton engaged in the litigious process at each step save for his failure to attend the pre-trial conference and then the trial. However, there is also evidence from Mr Hammond to the effect that, in summary, Mr Culloton did not do all those things required of him for the purpose of defending the action, as to which see [41] and [43] below.
29 Mr Dillon also relied on Tomasevic v Travaglini [2007] VSC 337 [129] – [149] for the proposition that a trial judge has a duty to ensure natural justice is provided to a litigant in person and where necessary, to recognise that such litigants can be disadvantaged. It may be necessary to explain matters to such litigants. From this, Mr Dillon sought to extrapolate the principle that, at trial, a non-attending litigant should be provided with assistance when it becomes clear to the trial judge that the non-attending litigant may be acting under a misapprehension, such as Mr Culloton, who it was submitted, believed he had done everything required of him by providing the transcript from the criminal trial and written submissions. The real problem with this is how Mr Culloton's claimed belief could become known to a trial judge.
30 In general, neither the reading of a court file, nor the provision of submissions and other materials by a non-attending litigant, either singularly or together, would necessarily demonstrate a belief by the non-attending litigant of the performance of everything required for trial. Indeed, submissions and materials may be provided without any belief at all as to the requirement to attend or not attend trial or worse, the non-attending litigant may believe that the provision of written materials to a court will give the appearance of full co-operation, but yet be designed to frustrate the litigious process. In that circumstance and on an application to set aside the judgment, even a strongly arguable case on its merits may not overcome a litigant's failure to attend trial.
31 In Johnson & Co Ltd v Clifford (1905) 7 WALR 240, there was a refusal to set aside a judgment obtained in the defendant's absence at trial. Burnside J, in dissent, said:
… that unless there is evidence of misconduct on the part of one of the parties, such as might be called of a grave nature – that where a case goes by default – I should feel inclined to set aside that judgment by putting the parties in the position in which they were originally.
32 The consequence of not setting aside a judgment against a defaulting defendant who has engaged in misconduct of a grave nature may appear unjust if the true nature of the defendant's misconduct is not fully understood. There must however, be a just resolution of the dispute.
33 It cannot be said in this case that a claimed belief by Mr Culloton that he was not required to attend the trial can be determined from a perusal of the court file, noting his involvement in the action and the fact of him having delivered the criminal trial transcript together with his submissions to the court for civil trial purposes. Such a belief that there was no requirement to attend trial must then come from other matters which must in some way be conveyed to the trial judge. The transcript and submissions were simply delivered to the court. They were not received under the cover of a letter disclosing his mistaken belief. It is conceded in Mr Culloton's submissions at par 25 filed 8 May 2015 that neither Mr Cosgrove nor myself were aware of the reasons for his non-attendance at the time of the trial.
34 It would seem therefore that there are or may be different requirements to assist a litigant in person attending at trial as compared to such assistance as may be required when a litigant does not attend trial.
35 The issue requires an examination of the reasons for the non-attending litigant being absent from the trial. It is Mr Culloton's claimed beliefs as to the need for him to not attend trial which underpin his application to set aside the judgment obtained in default of his appearance at trial.
The evidence and some preliminary findings
36 In his supporting affidavit sworn 28 January 2015, Mr Culloton, relevantly, swore as follows:
4. For these proceedings I initially retained Mr John Hammond of Hammond Legal to represent me and to have the conduct of my defence. Hammond Legal represented me until shortly after my defence was filed in the Proceedings. However, at about that time, I terminated Hammond Legal's retainer and thereafter represented myself in the Proceedings for the following reasons:
a. I believed that the Plaintiff would not be able to succeed in proving his allegations against me as Mr Hammond would often tell me that he did not believe that the Plaintiff had any chance of being successful in the Proceedings, which he considered would have to follow the same path of reasoning as the Criminal Proceedings.
b. In light of the conclusiveness of Mr Hammond's advice that the Plaintiff would not be able to prove his allegations, I believe that I would be able to adequately represent myself in the Proceedings as the matter had already been dealt with in detail in the Criminal Proceedings, which was recorded in the transcript of the trial of the Criminal Proceedings ('Transcript').
…
6. During the course of the Proceedings, I attended all directions hearings of which I was notified while I was self-represented, except for a mediation conference which I did not attend because:
a. I did not believe that the Plaintiff had a valid claim against me and there was no reasonable prospect of a settlement being agreed; and
b. I also did not wish to undergo the stress and unpleasantness of dealing with the Plaintiff and being in the same room as him as I held him responsible for the events leading to the Criminal Proceedings and the significant stress that I underwent during the Criminal Proceedings.
7. The hearings I attended during the Proceedings were typically 5 to 10 minutes (sometimes shorter). I would only occasionally be asked something to which I would reply to the Registrar. Otherwise, I was not usually involved in conversations or interchange between the Registrar and the Plaintiff's solicitor in relation to technical legal or procedural matters. I did not completely understand most of the conversation between the Registrar and the Plaintiff's solicitor but I did not think this was a concern as I believed that the Registrar would inform me if I was required to do something. To be clear, I would not say anything unless asked a question by the Registrar. Otherwise, there was no substantive conferral or interchange between the Plaintiff's solicitor and myself.
…
10. On or about 24 August 2014, in what I understood was compliance with the Court's orders, I filed the Transcript and a document setting out my submissions for the judge. Attached to this affidavit and:
a. marked 'JMC5' is a true and correct copy of an email that records the submissions I filed with the Court; and
b. marked 'JMC6' is a true and correct copy of the Transcript. However, the copy of the transcript in my possession contained at this attachment is missing pages 329 to 362 (inclusive).
…
13. From 1 September 2014 to 3 September 2014, Goetze DCJ presided over the trial of the Proceedings. I did not attend the trial for the following reasons:
a. I had been told by Mr Hammond that I was not required to attend the trial as unlike in the Criminal Proceedings, my attendance was not mandatory in the Proceedings – I was told 'You are not obliged to attend';
b. I did not wish to attend due to the stress and hardship that it caused me to be in contact with the Plaintiff who had caused significant hardship to me. I was traumatised and my energy exhausted by my experience in the Criminal Proceedings and found it extremely difficult to attend another trial because of false allegations against me; and
c. I believe that I had done everything required of me and that the Transcript would be used by the Court to evaluate my defence and test the Plaintiff's allegations. I believed that the evidence given in the trial of the Criminal Proceedings had effect in the trial of the Proceedings as it was given under oath and related to exactly the same event that was the subject of the Proceedings. Given the Transcript had been formally filed at the Court before the trial, I believe it was inconceivable that the Judge in the Proceedings would come to a different conclusion to a jury of 12 in the Criminal Proceedings and, accordingly, the Proceedings would also be found in my favour, that is, taking into account the evidence in the Criminal Proceedings as set out in the Transcript I had filed.
14. I refer to Goetze DCJ's reference at paragraph 15 of his Honour's judgment that 'Numerous telephone calls by court staff were made to Mr Culloton on the morning the trial commenced, on the afternoon of the first day of trial, and on the morning of the second day, but such calls were not answered'.
15. I do not specifically recall receiving call [sic] from the Court on the first day of the trial in the Proceedings. However, it is my usual practice to ignore calls from unknown numbers on my mobile telephone as I regularly receive unsolicited calls from marketers soliciting for my business. I would likely have ignored any calls from the Court staff as I would not have recognised the relevant telephone number.
16. In any event, I would not have thought that the Court would seek to contact me as I believed that I had done everything that I was required to do in relation to the Proceedings. If I had known that I was required to attend to take some step to have my evidence accepted by the Court, I would have:
a. attended the trial in the Proceedings despite the severe mental and emotional hardship that it would have caused me to attend a trial again for the same event; or
b. alternatively, I would have (as I did for the trial of the Criminal Proceedings) engaged a solicitor and barrister to attend on my behalf to take the necessary steps.
…
3. To the best of my recollection, I spoke with Mr John Hammond about the prospects of my success in the Proceedings twice with a couple of months time between the discussions. The earlier of these conversations likely occurred in about December 2013 with the later likely having occurred in March 2014.
4. During these conversations, I recall that Mr Hammond said words to the effect that:
a. 'You can't change the evidence against you. All of the evidence has to stay the same as the criminal proceedings';
b. 'I can't understand why Bradley Bayly Legal had taken the case on because I can't see any precedents of a criminal trial that had been overturned by a civil trial'; and
c. [In response to my question, 'Do you actually have to go to trial?'] 'No, you're under no obligation to turn up, but I didn't tell you that'.
5. Based on the statements by Mr Hammond as to the importance of the evidence given by the witnesses in the trial of the Criminal Proceedings as set out in the Transcript, I understood that:
a. the Transcript would be the main and only reference in the trial of the Proceedings;
b. all the evidence in the trial of the Proceedings would remain the same as the trial of the Criminal Proceedings, which I took to mean that the Plaintiff and his witnesses would have to give the same evidence they gave in the trial of the Criminal Proceedings; and
c. there would be no judgment against me if the Transcript was admitted into evidence because the Judge would have to read and consider (and accept) the contents of the Transcript.
6. I wish to clarify the following matters:
a. Mr Hammond did not know of my intention to file the Transcript at the time we had discussions in December 2013 and March 2014 about my prospects of the Proceedings;
b. Mr Hammond did not say any words to me to the effect that filing the Transcript would have the effect of preventing judgment ultimately being entered against me – such was to be decided by the Trial Judge after the trial; and
c. however, Mr Hammond did not advise me that I needed to attend the trial to produce any documents into evidence, including the Transcript.
7. Until about May 2014, I intended to instruct Hammond Legal to brief Mr Trowell QC to appear on my behalf at the trial of the Proceedings. Mr Trowell QC was my counsel during the Criminal Proceedings. I considered that he had a good understanding of the facts and issues pertinent to the Proceedings and could represent me without the need for a significant amount of preparation. During this period, I did not believe that I would need to do anything personally in relation to the trial of the Proceedings as I believed it would be dealt with by Hammond Legal and Mr Trowell QC closer to when the trial was to take place.
8. On 16 May 2014, Mr Trowell QC informed me by email that he had reconsidered whether it would be appropriate for him to represent me given the Proceedings were civil rather than criminal (which Mr Trowell QC's practice area). He recommended another barrister from his chambers to do so instead. However, my intention for Mr Trowell QC to represent me at the trial of the Proceedings was based on his prior understanding of the facts and issues and my belief that he would not need significant preparation. I did not wish to incur significant costs for another counsel to be briefed when I believed that all of the relevant issues and evidence was set out in the Transcript. I believed that Mr Trowell QC's function at the trial of the Proceedings would have simply been to demonstrate the evidence in the Transcript established that the civil claim should be dismissed by the Court.
9. I came to the conclusion that filing the Transcript would be sufficient to set out my case at the trial of the Proceedings due to the weight placed on the Transcript by Mr Hammond and his advice that the evidence in the trial of the Proceedings could not deviate from that of the trial of the Criminal Proceedings. This conclusion was not based on specific advice to that effect by Mr Hammond.
10. At the time of the trial of the Proceedings, based on my discussions with Mr Hammond, I understood that that there was not a requirement for me to attend the trial as there had been for the trial of the Criminal Proceedings.
11. With respect to evidence to be presented by me, I believe that I needed to present evidence to the Court to support my case, without which there could be a judgment against me. I also believed that if I did not have any evidence, the only thing I could do was to attend the trial and call witnesses and cross-examine the Plaintiff's witnesses. I do not know how I had come to have these beliefs.
12. However, I also believed I had already provided to the Court all the necessary evidence by my sending two copies of Transcript to the court registry along with my submissions. I believed that my actions meant that the Transcript had been presented to the Court, which meant that what was recorded in the Transcript would be taken into account by the Judge in coming to a decision. I believe that this was the reason why I was required to provide two copies of the Transcript to the court registry, one for the Judge and the other a copy to the other party.
13. If anyone had told me that I would have a judgment against me if I did not attend the trial despite having provided the Judge with a copy of the Transcript, I would have definitely attended the trial or made arrangements to be represented by counsel to ensure that the Judge would consider the evidence which had resulted in my acquittal in the Criminal Proceedings.
38 Mr Culloton was cross-examined by counsel for Mr Cosgrove, Mr S Vandongen SC.
39 Mr Culloton did not recall that, on 31 May 2013, he informed Mr Hammond's executive assistant, amongst other things, that he 'prefers he not to turn up to court', saying that it was 'all so ridiculous'.
40 Mr Culloton was evasive when faced with the email referred to at [8] above. This went beyond mere nervousness and discomfort of the occasion. He said that he did not literally mean every word thereof and that he could not now speculate what he meant at the time. He was unable to explain his then frame of mind. It is, of course, also to be appreciated that this email was sent some two years ago and that allowance must be allowed for that lengthy period.
41 On 11 November 2013, Mr Hammond requested Mr Culloton's discoverable documents and his unavailable dates for the listing of a pre-trial conference. Mr Culloton replied by email the next day and said he was unavailable until the following March. Mr Hammond then requested advice as to why Mr Culloton was not so available. Mr Culloton responded by email dated 12 November 2013 as follows:
I'm unavailable because I have other commitments, I'm pulling the strings now, I won't be dictated to by Fucken [sic] criminals.
42 On 20 November 2013 and 3 January 2014, Mr Hammond advised Mr Culloton by email and letter of the pre-trial conference listed for 4 February 2013. Mr Culloton repeatedly claimed in his evidence that he did not know of those letters until he found them at his home on Sunday 22 March 2015. He claimed to have not read those letters, yet he responded by email at 6.39 pm on 20 November 2013 to the first email by answering the question raised therein concerning the need for Mr Hammond's attendance at the pre-trial conference as follows:
At this stage I will not need John to attend, I don't want to spend one more cent on these criminals until the trial, therefore I don't require any assistance from Hammond Legal until the trial.
43 Mr Hammond's evidence was that he was not prepared to not do those things which were required as part of the court process. On 21 November 2013, Mr Hammond sent an email to Mr Culloton enclosing a notice of acting in person for Mr Culloton to sign and advising him that:
It will be considered unprofessional of my firm and me to remain on the record and take no action in response to any demand or Court hearing that may eventuate.
44 On 30 November 2013, Mr Culloton signed the notice that he would thereafter act on his own behalf. He filed that notice on 3 January 2014.
45 Mr Culloton conceded in cross-examination that Mr Hammond telephoned him on 3 February 2014 to remind him of the pre-trial conference on the following day but, Mr Culloton persisted in his evidence claiming that he did not know of that pre-trial conference appointment until that telephone call. He did not attend because he was unable to 'make it'. He 'had other arrangements', although he could not now recall what those arrangements were.
46 Further, on 17 March 2014 at the listing conference which followed the pre-trial conference, the following exchange took place:
THE DEFENDANT: I wasn't told about the date of the mediation until the day before. John Hammond rang me in the afternoon.
THE REGISTRAR: So what happened? There was a letter dated 19 November for 4 February pre-trial. You never got that letter?
THE DEFENDANT: No, I didn't get any letter. The only notification I got was the day before when John Hammond rung me. And as I'm in business I could not take the time off the next day.
THE REGISTRAR: That was sent to your solicitors, Hammond Legal.
THE DEFENDANT: Well, maybe. But the only problem was, and I don't know whether this is what occurred, but I'm not using Hammond Legal at the moment until – if it goes to trial, so I don't know whether it's an oversight on their behalf, but we certainly didn't receive any notification about anything until John Hammond rang me that afternoon and he said, 'Look, there's a mediation in the morning.' And I said, 'Well, John, I don't know whether I can make it'.
47 Mr Culloton's explanation to the learned registrar is inconsistent with the emails and letters from Mr Hammond dated 20 November 2013 and 3 January 2014 and his own email at 6.39 pm on 20 November 2013 to Mr Hammond.
48 Mr Culloton's refusal to acknowledge receipt of correspondence from Mr Hammond dated 20 November 2013 advising of the pre-trial conference cannot be excused. Mr Culloton responded to that email himself on the same day it was received.
49 Mr Culloton has provided yet another inconsistent explanation for not attending the pre-trial conference. This appears from his affidavit sworn 28 January 2015 at par 6, swearingthat he did not attend because he did not believe Mr Cosgrove had a valid claim against him, there was no reasonable prospect of settlement and he did not wish to undergo the stress of such conference. The full text is set out above at [36]. Put simply, Mr Culloton also told the registrar on 17 March 2014:
I was never going to mediate with them.
50 On 24 March 2014, Mr Culloton met with Mr Hammond. They discussed the action by telephone with Mr M Trowell QC, who previously acted for Mr Culloton in the criminal proceedings.
51 Mr Culloton gave evidence that he assumed that the civil trial would be run on the same evidence as the criminal trial and he could not see why that would not happen. He assumed that all that was necessary in the civil trial was the production of the criminal trial transcript. He said that Mr Hammond had told him that witnesses could not change their evidence from one trial to the next.
52 Mr Culloton denied that the need to call witnesses at trial was discussed at this meeting. He said that only witness statements were discussed. Mr Culloton believed it was not necessary to obtain any witness statements because their statements were already in the criminal trial transcript. Mr Culloton thought Mr Hammond was wasting his time seeking witness statements.
53 Following this meeting, Mr Culloton sent an email to Mr Hammond on 2 April 2014, including the following:
Also you mentioned that we need witness statements so you know what they are going to say in court, well just look at the court transcript, no-one can change their story. I'll only have 3 or 4 witnesses including Cherylle [his wife].
54 Mr Hammond replied by email dated 3 April 2014 to Mr Culloton, relevantly including the following:
Witnesses: The witnesses you intend to call or Counsel suggests you call will still need to be proofed by Hammond Legal and subpoenaed.
Each witness will require conduct money (travel and possibly accommodation expenses) if they are coming from the country.
The fact that they have previously given evidence before will not avoid this process.
55 Mr Culloton accepted that Mr Hammond had sent this email to him. When cross-examined on it and asked about 'this process' not being avoided, Mr Culloton at first acknowledged the need 'to call the same witnesses as the criminal trial'. When pressed as to what he meant by 'call', he became evasive and said he meant 'to ring' the witnesses to talk to them. This was a nonsensical explanation. It is clear from Mr Hammond's email that Mr Culloton was advised in writing of the need for witnesses he intended to call to be proofed and to be subpoenaed to attend trial. The purpose in being called can only have been to give evidence. That is why Mr Culloton acknowledged, in his email dated 2 April 2014, the need for 'witness statements so you know what they are going to say in court'. He also acknowledged this in his evidence, as noted, 'to call the same witnesses as the criminal trial'.
56 Mr Culloton did not think the discussion on 24 March 2014 concerned how the trial would be conducted and, he said, the term 'beyond reasonable doubt' was not used at that meeting.
57 Mr Hammond's evidence was that at the meeting on 24 March 2014, they discussed the trial, which was then listed for 1 September, and the requirement to brief Mr Trowell. Mr Hammond said that Mr Trowell was contacted by speaker phone during this meeting.
58 Mr Hammond said that Mr Culloton wanted what was said in the criminal proceedings to be used in the civil proceedings, but Mr Hammond advised him that could not be done. He said he told Mr Culloton that it would be necessary to interview witnesses and to take their witness statements. He said that he told this to Mr Culloton on several occasions. He said there was a need for witnesses to give their evidence at trial and if there was any difficulty in securing their attendance then, they would need to be subpoenaed, as to which see [54] above.
59 Mr Hammond said he confirmed that it was important to obtain the transcript of the criminal trial, which was not then to hand. Any evidence from Mr Cosgrove and his witnesses given in the civil proceedings, which was inconsistent with their evidence in the criminal trial, could be used to Mr Culloton's advantage. However, Mr Hammond was not really sure of the evidentiary requirements and it was best to leave that issue to Mr Trowell. This aspect was discussed with Mr Culloton on another occasion.
60 Mr Hammond's evidence was that he did not say to Mr Culloton that witnesses could not change their evidence from a criminal trial and that their evidence has to stay the same in the civil proceedings. Nor did he say that there was no precedent for a civil trial to overturn a criminal trial. He did not tell Mr Culloton that he could not understand why Bradley Bayly Legal, solicitors, had taken on the case for Mr Cosgrove.
61 Further, Mr Hammond said Mr Culloton was advised of the difference between the standard of proof in civil and criminal proceedings, including the fact that it was easier for Mr Cosgrove to make out his cause of action in the civil court.
62 Mr Hammond's advice was it was necessary to prepare for trial, and given that the claimed damages then exceeded $150,000, together with costs, the matter had to be properly defended and counsel had to be briefed. On 3 April 2014, he wrote by email to Mr Culloton about briefing Mr Trowell. On 16 April 2014, he again wrote to Mr Culloton by email confirming that:
You will consider over the next week or so whether you will engage legal representation to defend the claim brought by Cosgrove.
63 Mr Hammond gave evidence that, on 9 May 2014, Mr Trowell queried whether he was to be briefed in the matter. On the same date, Mr Hammond sent an email to Mr Trowell advising that:
Jeff has been prevaricating about what he will do.
64 On 14 May 2014, Mr Hammond sent an email to Mr Trowell indicating
Jeff may decide to appear unrepresented, or not appear at all (even though that may be adverse to his interests).
65 This email followed a telephone discussion between Mr Hammond and Mr Culloton which Mr Hammond 'vividly remembered'. He said Mr Culloton had said he would divest himself of his assets so he would not have to pay anything to Mr Cosgrove. Mr Hammond advised Mr Culloton that this was not a good idea. Mr Culloton had earlier said he would not 'pay one brass razoo' and 'not negotiate with scum and garbage'. Mr Hammond previously had a note of this conversation but, given that his file has been sent to Mr Culloton's new solicitors and elsewhere in consequence of this application, that file note cannot now be found.
66 On 16 May 2014, Mr Culloton received an email from Mr Trowell advising it would be inappropriate for him to act in the civil proceedings. He recommended another barrister from his chambers. Mr Culloton replied by email to Mr Trowell in the following terms regarding Mr Trowell's decision to not act for him at trial:
Hi Mark,
That's no problem, it would have been good to see you make these idiots look even more stupid, but I am considering not even turning up. I have got nothing to gain or prove and our Company structure protects me from personal damages so they can waste as much money as they want. Thanks for your reply.
Regards
67 Mr Trowell responded on 17 May 2014 by an email in the following terms:
Jeff
Sorry about that, but it is in your best interest.
Think carefully before you decide 'not to turn up'. You risk having a judgement [sic] made against you, which is not what you want.
…
Best wishes
Mark
68 Mr Culloton's supplementary affidavit only refers to Mr Trowell's email concerning Mr Trowell's representation of him at trial. It does not refer to his own email to Mr Trowell and Mr Trowell's response, as to which see pars 8 – 13 thereof set out above at [37].
69 Mr Culloton's email to Mr Trowell however, advising that he was considering 'not turning up' at trial, demonstrates that he was considering not attending trial as at 16 May 2014. Mr Culloton's evidence was that he did not give any consideration to Mr Trowell's advice to 'Think carefully' before he decided 'to not turn up' at trial.
70 Mr Culloton has been less than frank and fulsome in failing to disclose in his affidavits all of the advice he was given, including full detail of the email exchange with Mr Trowell on 16 and 17 May 2014 above, regarding his consideration of not turning up at trial.
71 Mr Culloton said that had he been told it was necessary to attend at the trial then, he would have done so, either in person or by counsel. That cannot be accepted. Mr Trowell warned Mr Culloton to 'Think carefully before you decide not to turn up' at trial and that he risked having judgment entered against him as a consequence of not 'turning up' at the civil trial.
72 Further, Mr Culloton claimed that his comment regarding his 'Company structure' in his email to Mr Trowell was simply putting a scenario to Mr Trowell. He said it was a coincidental comment. He did not mean that he would not turn up at trial because his assets were beyond reach but rather, that he was seeking Mr Trowell's opinion and reaction. This explanation is entirely unsatisfactory. Mr Hammond also recalled, as noted above at [65], that Mr Culloton would structure his affairs so as to avoid any liability to Mr Cosgrove.
73 In his oral evidence, Mr Culloton conceded that he raised with Mr Hammond 'the legalities of not turning up at trial'. However, he denied that he ever told Mr Hammond that he would not attend trial. He said he only asked Mr Hammond would happen if he did not turn up to the civil trial. He said that he was curious, but could not explain the reason for his curiosity.
74 Mr Culloton's evidence, from his first affidavit at par 13(a), was that Mr Hammond said in respect of the trial:
You are not obliged to attend
- and, from his supplementary affidavit at par 4(c), in answer to his question as to whether a litigant is required to attend trial, Mr Hammond's response was:
No you're under no obligation to turn up, but I didn't tell you that.
76 In cross-examination, Mr Hammond was adamant that it was 'preposterous' to say he told Mr Culloton that he did not need to attend the trial. Mr Hammond explained that he did not know why any lawyer would say such a thing. He 'absolutely' did not tell Mr Culloton that he was not obliged to attend the trial or that he could simply tender the transcript and solely rely upon it.
77 Mr Hammond amplified his reasoning by recalling that he had previously had an argument with Mr Culloton about his non-appearance at the pre-trial conference, in respect of which, Mr Culloton was ordered to pay costs on 4 February 2014. Mr Culloton wanted to appeal that costs order, but Mr Hammond told him there was no good reason to appeal.
78 Mr Hammond conceded that he had not expressly told Mr Culloton that he had to attend the trial, in those words.
79 In cross-examination, Mr Hammond said that he had refreshed his memory from the file, but he rejected that he was reconstructing his evidence. He said that the events and behaviour of Mr Culloton were etched on his mind. He did however, refresh his memory as to dates and the sequence of events.
80 Mr Hammond is a senior solicitor of many years standing. He explained, and wrote, to Mr Culloton of the need to obtain witness statements and to subpoena witnesses to attend trial. I accept that he did not tell Mr Culloton that he need not attend the trial. Mr Hammond's evidence is plausible, logical and compelling. It is what would be expected of a solicitor of his standing, or indeed, of any solicitor. It is fanciful to think that any solicitor would tell a litigant that he or she was not obliged to attend at his or her trial in a case like the present. Indeed, the suggestion that Mr Hammond told Mr Culloton he need not attend the trial is inconsistent with Mr Hammond's oral advice on 24 March 2014 as confirmed by the email exchange dated 2 and 3 April 2014 between Mr Culloton and Mr Hammond respectively as set out at [53] and [54] above. Witnesses needed to give oral evidence at trial. Mr Culloton was obviously to be a witness himself. The provision of the criminal trial transcript would 'not avoid this process'.
81 Given the previous costs order made against Mr Culloton for not attending the pre-trial conference, it is also most unlikely that Mr Hammond would tell Mr Culloton to not attend trial. They argued about that costs order. By email dated 3 April 2014, Mr Culloton insisted that Mr Hammond had not notified him of the pre-trial conference until the day before it was listed. Mr Hammond advised against an appeal. Mr Hammond advised Mr Culloton by email dated 4 April 2014 that he was then not sure if Mr Culloton still wanted him to act for him given Mr Culloton's expressed dissatisfaction.
82 In his affidavit sworn 28 January 2015 at par 8, Mr Culloton mistakenly referred to a listing conference on 17 March 2014, whereas he meant a directions hearing on 18 August 2014, as to which the transcript reveals that he did not have any trial witnesses. The registrar asked him:
Mr Culloton, you've filed and served a list of witnesses?
THE DEFENDANT: No, sir. I don't have any witnesses.
THE REGISTRAR: Right. So there's going to be no witnesses?
THE DEFENDANT: No.
- This exchange is at odds with Mr Culloton's earlier email to Mr Hammond on 2 April 2014 advising that he would 'only have 3 or 4 witnesses': see [53] above. This witness proposal reflects Mr Hammond's advice on 27 March 2014 that witnesses would need to give their evidence at trial and supports his evidence. However, Mr Culloton's remarks to the registrar on 18 August 2014 are consistent with him then having determined to not attend trial, notwithstanding emails from Mr Hammond and Mr Trowell.
83 Mr Culloton said in his evidence that he was concerned about the trial once it had begun and so he checked 'the status' of it 'on line' and saw that it was in progress and so he assumed there was not an issue or problem.
84 Mr Culloton's evidence was that he does not answer telephone calls if he does not know who is calling. He first gave evidence that he did not have his telephone with him on the first day of the trial. He then said he did not think he had his telephone that day and finally, he did not know if he had his telephone that day. He said that he sought a call history for his telephone that day. His first received call was, he said, at 5.30 pm. He also said that on the second day of the trial, he did not receive any messages at all. He claimed to have not received any messages at all from my associate. He has not provided any evidence of his telephone records. It can be inferred that such records would not have assisted Mr Culloton's application: Jones v Dunkel (1959) 101 CLR 298.
85 Telephone messages were left for Mr Culloton by my associate. This was before the trial commenced as Mr Culloton was then obviously absent and two calls were made immediately after the trial was called on. Further messages were left in the afternoon of the first day of trial and on the morning of the second day of the trial.
86 The fact of repeated messages over two days from an unidentified caller being left for Mr Culloton, without more, should have prompted him to listen to those messages. If he had done so, he would then have appreciated the need to contact the court. He did not return any telephone calls. Had he done so, he would have been advised to attend the trial. Had he attended, even if on the second or third day of the trial, then the requirements of natural justice would have been offered to him in an appropriate manner.
87 However, contrary to Mr Culloton's evidence, his submissions dated 8 May 2015 concede at par 28 that two telephone messages from my associate were forwarded direct to his message bank, but the caller identification was blocked.
88 If he had received the messages, as conceded, he certainly did not respond to them. Whatever the circumstances, natural justice has been afforded to him.
Further findings
89 Mr Culloton was a most unsatisfactory witness. His evidence cannot be accepted. His reasons for not attending trial are refuted by emails from not only Mr Hammond and Mr Trowell QC, but also by his own email dated 2 April 2014. Mr Culloton's non-attendance at trial amounts to misconduct of a grave nature as expressed by Burnside J in Johnson & Co Ltd v Clifford.
90 There is absolutely no reason whatever to doubt any of Mr Hammond's evidence, some of which was supported by documentary evidence. The fact that Mr Hammond's discussions and meetings are not all recorded by contemporaneous notes may well be a reason to level criticism at him. However, it is not sufficient to displace the truthfulness and reliability of his evidence, especially given Mr Culloton's email exchange with Mr Hammond and Mr Trowell referred to at [53], [54] and [67] above.
91 Mr Culloton well knew that notwithstanding the provision of the criminal trial transcript and submissions, but without his attendance at trial, he risked judgment being entered against him after trial. Mr Trowell so advised him in writing. If, as Mr Culloton said at [69] above, he did not give any consideration to Mr Trowell's advice to 'Think carefully' before he decided 'to not turn up' at trial, then, he was reckless by not paying heed to that advice and not caring about the consequences of not turning up at trial.
92 As noted, Mr Culloton advised Mr Trowell not only that he may not 'turn up' at trial but also, that his assets were protected. That he had such protection in place may well have given him a false sense of security in not attending the trial. His explanation that he was only seeking an opinion or a reaction from Mr Trowell about his assets cannot be accepted.
93 In addition to the transcript, Mr Culloton also sent in submissions pointing out certain matters from that transcript. Mr Culloton claimed he misunderstood the requirements for him to attend trial given his belief that the trial judge would take into account the transcript and submissions he had provided to the court. That evidence is not accepted.
94 Mr Hammond advised Mr Culloton by email dated 3 April 2014 that the fact that witnesses had previously given evidence would not avoid the process of taking witness statements to be called at trial and issuing subpoenas to them, together with the payment of conduct money. This is logical and compelling. I do not accept that Mr Culloton believed that the provision of the transcript would be sufficient. It would not be a reasonable belief given Mr Hammond's written advice and Mr Trowell's caution.
95 By par 5(b) of his supplementary affidavit, Mr Culloton acknowledged that Mr Cosgrove
and his witnesses would have to give the same evidence they gave in the trial of the criminal proceedings.
- If Mr Culloton believed that Mr Cosgrove and his witnesses would have to give the same evidence in the civil trial as they gave in the criminal trial then, one could rhetorically ask how Mr Culloton could think that he and his witnesses did not likewise have to give evidence in the civil trial?
96 Further, Mr Hammond wanted Mr Trowell's advice on evidentiary matters and he so advised Mr Culloton. This advice concerned the evidence of witnesses in the civil trial who may have given evidence inconsistent with their evidence from the prior criminal trial. This advice was required only because Mr Cosgrove's witnesses would need to give oral evidence in the civil trial. Their civil trial evidence would not be sourced from the criminal trial transcript. The same reasoning applies to Mr Culloton's witnesses. He well knew that he and his witnesses would need to give evidence in the civil trial.
97 I do not accept any belief Mr Culloton may have had that a trial judge in a civil matter could not come to a different conclusion to the jury in the criminal matter given that, by email dated 17 May 2014, Mr Trowell advised Mr Culloton of the risk of judgment being entered against him should he decide not to turn up at trial.
98 Complaint was made in Mr Culloton's submissions by his solicitors that his
counsel could only be afforded less than one hour to cross-examine Mr Hammond before the lateness of the day forced proceedings to be adjourned.
- Two experienced counsel together with two instructing solicitors attended at the hearing of this application on behalf of Mr Culloton when Mr Hammond was cross-examined until Mr M Goldblatt, the cross-examiner, completed his cross-examination. None of the counsel or solicitors made any submission at the time of cross-examining Mr Hammond that they were cut short in that cross-examination or that they wished to cross-examine him further.
99 It should be noted that it was not counsel who signed the submissions, but one of the solicitors. The complaint that 'the lateness of the day forced proceedings to be adjourned' is unfounded. The application was heard and the usual court sitting time was extended for the very purpose of ensuring that all of the oral evidence was completed that day. Given the lateness, written submissions were ordered to be provided. However, since the complaint, Mr Culloton's solicitors were given a further opportunity to be heard as to it on 29 May 2015. A perusal of the transcript does not reveal any reason to allow further cross-examination of Mr Hammond. The only real reason for requiring further cross-examination seems to be the failure of Mr Hammond to have made full file notes. However, a lack of complete file notes does not overcome the finding that Mr Hammond was a credible witness and that his evidence, in critical parts, was supported by emails.
100 Mr Hammond also explained to Mr Culloton the difference in the degree of persuasion required in a criminal trial of beyond reasonable doubt as compared to that in civil proceedings on the balance of probabilities and told him that it would be easier for Mr Cosgrove to make out a cause of action on the lower civil standard. This is another reason why Mr Culloton should have attended trial.
101 This is a trial court. The work of the court would be unnecessarily delayed if it were compelled to adjourn trials because of the non-attendance of a party. Reasonable endeavours were made to contact Mr Culloton by telephone immediately before and during the trial over two of the three days it proceeded. Messages were left for him. Had he attended the trial, even if late in the course of it, then, any misunderstanding as to taking the transcript into account could have, and would have, been readily explained to him so as to afford natural justice as required by Pritchard J in Broadway. The transcript would have been used to contradict a prior inconsistent statement from the criminal trial, if necessary.
102 It should be observed however, that the obligations of a trial judge in dealing with an unrepresented litigant and the requirements of a trial judge as to proceeding or not proceeding with a trial in the absence of a party are not relevant to the present issues of why Mr Culloton did not appear at trial and whether the judgment now should be set aside. Those other issues should more properly be dealt with on the hearing of any appeal against the judgment now sought to be set aside.
103 Accepting, only for the sake of the argument and without deciding, that the evidence referred to by Mr Dillon and Mr Culloton at [24] above 'may have influenced' the decision, such influence on the merits of Mr Culloton's defence is not so reasonably clear that the discretion should be exercised to intervene and set aside judgment given Mr Culloton's misconduct: VacuumOil Pty Co Ltd v Stockdale (1942) 42 SR (NSW) 239, 243 – 244. Mr Cosgrove is without fault and the judgment he has obtained should only be set aside in very special or extraordinary circumstances. He now is at risk of prejudice in that to set aside the judgment will expose him to further costs in litigating with Mr Culloton whether or not his 'Company structure protects [him] from personal damages'.
104 The onus is on Mr Culloton to satisfy the court that it should exercise the discretion in his favour. He has not done so.
Leave to apply out of time
105 Subsequent to the hearing of this application, Mr Culloton filed a further affidavit sworn 8 May 2015. It appears that his present solicitors were not instructed until 19 November 2014, being after the expiration of the 14 day time limit provided by O 34 r 3. Accepting that until 22 December 2014, they may have believed this application could be dealt with by the Court of Appeal, they were then corrected in that view by advice from the registrar of the need to amend or delete ground 3 of the grounds of appeal. However, this application was not commenced until 28 January 2015. That further delay has not been explained at all. Mr Culloton's course of action was no doubt a matter of forensic decision determined by him on the advice of his legal representatives. On the papers, the application for an extension of time is opposed. Leave to extend time should be refused.
106 The application is dismissed.
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