Culleton v Dakin Farms Pty Ltd [No 2]

[2017] WASCA 29

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CULLETON -v- DAKIN FARMS PTY LTD [No 2] [2017] WASCA 29

CORAM:   MARTIN CJ

NEWNES JA
MURPHY JA

HEARD:   2 FEBRUARY 2017

DELIVERED          :   2 FEBRUARY 2017

PUBLISHED           :  10 FEBRUARY 2017

FILE NO/S:   CACV 130 of 2013

BETWEEN:   IOANNA CULLETON

First Appellant

RODNEY NORMAN CULLETON
Second Appellant

AND

DAKIN FARMS PTY LTD
First Respondent

BALWYN NOMINEES PTY LTD
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :CURTHOYS DCJ

Citation  :DAKIN FARMS PTY LTD -v- ELITE GRAINS PTY LTD [No 2] [2013] WADC 160

File No  :CIV 2787 of 2011

Catchwords:

Application by second appellant for new trial by a single judge to set aside decision of Court of Appeal - Application misconceived and without merit - Application dismissed

Legislation:

Bankruptcy Act 1966 (Cth)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     No appearance

Second Appellant          :     In person

First Respondent           :     Mr M G Lundberg

Second Respondent      :     Mr M G Lundberg

Solicitors:

First Appellant               :     No appearance

Second Appellant          :     In person

First Respondent           :     King & Wood Mallesons

Second Respondent      :     King & Wood Mallesons

Case(s) referred to in judgment(s):

Culleton v Dakin Farms Pty Ltd [2015] WASCA 183

MARTIN CJ: 

(This judgment was delivered extemporaneously on 2 February 2017 and has been edited from the transcript.)

1. The application before the court was filed on 30 September 2016.  The applicant, who is the second appellant in the appeal proceedings, Mr Rodney Norman Culleton, seeks an order that he be granted a new trial by a single judge in order to set aside the finding of the Court of Appeal in Culleton v Dakin Farms Pty Ltd [2015] WASCA 183, a decision delivered on 8 September 2015.

2. It is necessary to put that application in its context.  In 2011, Dakin Farms Pty Ltd and Balwyn Nominees Pty Ltd, both companies associated with Mr Dick Lester, commenced proceedings in the District Court against Mr Culleton, Mr Culleton's wife, Ioanna, and a company of which Mr Culleton was a director, Elite Grains Pty Ltd.  In those proceedings Dakin Farms and Balwyn Nominees claimed damages and associated relief arising from alleged breaches of various agreements made in 2009.

3. These proceedings were tried in July 2013, and for reasons published in October 2013 judgment was entered in favour of Dakin Farms against Elite Grains and in favour of Balwyn Nominees against each of Mr and Mrs Culleton in the amount of $205,536.50 together with interest from 1 March 2011 until judgment.  Mr and Mrs Culleton were also ordered to pay the costs of Balwyn Nominees. 

4. Mr and Mrs Culleton commenced an appeal against that judgment.  There was only one ground of appeal which was to the effect that the trial judge should have found that Balwyn Nominees had failed to establish an entitlement to anything more than nominal damages. 

5. On 31 October 2014, after the appeal was commenced, but before it was heard, a Federal Circuit Court judge made a sequestration order against Mr Culleton pursuant to the provisions of the Bankruptcy Act 1966 (Cth). That order remained in force at the time the appeal to this court was heard in May 2015 and at the time it was determined by reasons published and orders made by this court on 8 September 2015.

6. In those reasons the court noted that no election to pursue the appeal had been made by Mr Culleton's trustee in bankruptcy with the result that Mr Culleton's appeal was deemed to have been abandoned by the operation of s 60(3) of the Bankruptcy Act. 

7. Mrs Culleton's appeal, however, remained competent and was considered on its merits by the court.  The court expressly considered the order to be made in respect of Mr Culleton's appeal in light of the sequestration order that had been made against him, and, having found that the sole ground of appeal was without merit in the context of considering Mrs Culleton's appeal, distinguished those cases in which a bankrupt's claim at first instance was not dismissed following a deemed abandonment in order to preserve the underlying cause of action.  The court concluded that those cases had no relevant application to an appeal from a judgment at first instance and ordered that Mr Culleton's appeal be dismissed.  That order was perfected by the issue of a written order bearing the seal of the court in due course. 

8. On 4 December 2015, Perry J in the Federal Court of Australia allowed an appeal from the sequestration order which had been made in the Federal Circuit Court in October 2014 and set that order aside.  Although the revocation of that sequestration order is apparently the basis for the current application, no explanation or justification has been proffered for the failure to bring this application until more than nine months had elapsed after Perry J set aside the first sequestration order. 

9. On 23 December 2016, after this application was made but before the hearing, Barker J in the Federal Court of Australia made another sequestration order against Mr Culleton pursuant to the provisions of the Bankruptcy Act.  That order has, however, been stayed pending the determination of Mr Culleton's appeal from that order.  The appeal has been heard by the Full Court of the Federal Court which has reserved its decision on the appeal, and we have been advised by counsel that that decision will be delivered on 3 February 2017.  

10. In these circumstances a question arises as to whether, notwithstanding the stay of the sequestration order, Mr Culleton is unable to proceed with this application because that sequestration order was made.  However, in the unusual circumstances of this case that question should be put to one side and the application determined on its merits.  Essentially, that is because the application is so obviously devoid of any apparent merit that it should be dismissed as soon as possible before any further prejudice is suffered by the respondents to this application.

11. This court ordered that Mr Culleton's appeal be dismissed.  Although there are very limited and exceptional circumstances in which a perfected order of the court can be reopened, the public interest in the finality of litigation is such that those circumstances are very narrowly confined, and

the cases in which such a course will be permitted are extremely rare and entirely exceptional.  There is no credible basis for the contention that this is such a case.  Mr Culleton's appeal was dismissed by this court in part because the court concluded that it was devoid of merit.  The only way in which that judgment can be challenged is by way of appeal to the High Court of Australia.  In addition, there is absolutely no basis upon which it could be credibly contended that a single judge of the general division would have either power or jurisdiction to review the orders made by this court.  This application is misconceived and, in my view, should be dismissed.

1. NEWNES JA:  I agree with the Chief Justice.

2. MURPHY JA:  I agree with the Chief Justice.