Davey v Quigley
[2018] WASCA 137
•3 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DAVEY -v- QUIGLEY [2018] WASCA 137
CORAM: MURPHY JA
MITCHELL JA
HEARD: 3 AUGUST 2018
DELIVERED : 3 AUGUST 2018
PUBLISHED : 3 AUGUST 2018
FILE NO/S: CACV 43 of 2018
BETWEEN: JOHN WALTER DAVEY
First Appellant
CHRISTOPHER MARK CREWE
Second Appellant
IAN BRUCE BELL
Third Appellant
AND
JOHN ROBERT QUIGLEY
First Respondent
LARISSA STRK
Second Respondent
SANDRA MARY BOYLE
Third Respondent
WESTPAC BANKING CORPORATION
Fourth Respondent
COMMONWEALTH BANK OF AUSTRALIA
Fifth Respondent
ON APPEAL FROM:
For File No: CACV 43 of 2018
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MARTIN CJ
Citation: DAVEY -v- QUIGLEY [2018] WASC 107
File Number : CIV 1167 of 2018
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: MARTIN CJ
Citation: DAVEY -v- QUIGLEY [2018] WASC 107
File Number : CIV 1167 of 2018
Catchwords:
Application for a stay pending determination of an appeal - Whether appeal has reasonable prospects of success - Turns on own facts
Legislation:
Nil
Result:
Application for a stay dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | In person |
| Second Appellant | : | No appearance |
| Third Appellant | : | No appearance |
| First Respondent | : | Ms M E Lindley |
| Second Respondent | : | Ms M E Lindley |
| Third Respondent | : | Ms M E Lindley |
| Fourth Respondent | : | Mr J Garas |
| Fifth Respondent | : | Ms J K Taylor |
Solicitors:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Third Appellant | : | In person |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | Not taking part |
| Third Respondent | : | Not taking part |
| Fourth Respondent | : | Minter Ellison |
| Fifth Respondent | : | Dentons Australia |
Case(s) referred to in decision(s):
Davey v Quigley [2018] WASC 107
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Westpac Banking Corporation v Davey [2016] WASC 316
Westpac Banking Corporation v Davey [2018] WASC 189
REASONS OF THE COURT:
At the hearing of the application in this appeal, we made orders in effect dismissing the appellants' application for a stay of orders made by the General Division of this court. We also adjourned an application for a consolidation of this appeal with another appeal to a hearing listed for 24 August 2018. These are our reasons for making those orders.
Background
In 2009, the first appellant (Mr Davey) entered into loan agreements with the fourth respondent (Westpac). The loans were secured by mortgages over land of which Mr Davey was registered proprietor (Properties).[1] Westpac claimed that Mr Davey failed to make payments required under the loan agreements. On 11 January 2016, Westpac commenced proceedings (CIV 1027 of 2016) against Mr Davey seeking orders for possession of the mortgaged Properties. On 4 October 2016, Acting Master Strk allowed Westpac's application for summary judgment and made orders that, within 28 days, Mr Davey give Westpac possession of the Properties. The acting master gave written reasons for that decision.[2]
[1] The mortgaged properties are 8 Rainsworth Gardens, Heathridge more particularly described as: Lot 123 on Plan 14812 and being the whole of the land comprised in Certificate of Title volume 1681 folio 183; Lot 22 Great Southern Highway, Broomehill more particularly described as: Lot 22 on Plan 2850 and being the whole of the land comprised in Certificate of Title volume 2094 folio 749; Lot 23 Great Southern Highway, Broomehill more particularly described as: Lot 23 on Plan 2850 and being the whole of the land comprised in Certificate of Title volume 2087 folio 782 and 29 Rodereda Crescent, Ravenswood more particularly described as: Lot 44 on Plan 7657 and being the whole of the land comprised in Certificate of Title volume 1306 folio 352.
[2] Westpac Banking Corporation v Davey [2016] WASC 316 (Summary Judgment Decision).
Mr Davey has never instituted an appeal against the acting master's orders of 4 October 2016. Mr Davey indicated from the bar table that he attempted to lodge an appeal notice against that decision but that versions of the appeal notice he had prepared were not accepted for filing by the court's registry.
On 8 January 2018, Westpac sought and obtained Property Seizure and Delivery Orders in respect of the Properties under the Civil Judgments Enforcement Act 2004 (WA).
On 2 February 2018, the appellants instituted the primary proceedings (CIV 1167 of 2018) seeking judicial review of a number of decisions. Relevantly for present purposes, the appellants sought judicial review of the acting master's orders of 4 October 2016. On 28 March 2018, Martin CJ dismissed the application in the primary proceedings on the ground that it had no reasonable prospect of succeeding. Martin CJ published written reasons for that decision.[3] Relevantly, his Honour dismissed the application so far as it related to the acting master's orders on the ground that the decisions of the Supreme Court (including when constituted by an acting master) were not amenable to judicial review other than by way of appeal.[4]
[3] Davey v Quigley [2018] WASC 107 (Primary Decision).
[4] Primary Decision [39] - [44].
On 26 April 2018, the appellants commenced the present appeal against the orders made by Martin CJ. Despite being granted a number of extensions of time (the last being to 10 July 2018) the appellants have not yet filed a compliant appellant's case in this appeal.
On 22 June 2018, Chaney J made orders on an application by Westpac for removal of two caveats lodged by Mr Davey and a Mr Ian Roger Ainsworth over the Properties. Chaney J made an order that the Registrar of Titles remove the caveats. His Honour also made an order that Mr Davey and Mr Ainsworth must not lodge any further caveat, and that the Registrar of Titles is not to register any further caveat from Mr Davey or Mr Ainsworth over the Properties, without the leave of the court. His Honour published written reasons for that decision.[5]
[5] Westpac Banking Corporation v Davey [2018] WASC 189 (Caveat Decision).
So far as Mr Davey's caveat was concerned, the interest claimed was as registered proprietor of the land, and for additional reasons set out in a page of 'supporting facts'.[6] Chaney J noted that the estate or interest claimed in Mr Davey's caveat was not some equity to restrain the registration of any identified voidable transaction.[7] Chaney J found that the caveat lodged by Mr Davey was simply designed to operate as a stay of execution of the order for possession made by the acting master.[8] His Honour found that Mr Davey's caveat did not identify an interest in the Properties which was capable of being supported by a caveat.[9]
[6] Caveat Decision [12].
[7] Caveat Decision [13].
[8] Caveat Decision [14].
[9] Caveat Decision [15].
On 12 July 2018, the appellants filed an application in this appeal seeking various orders, including an order in effect staying the orders made by Chaney J pending the determination of this appeal.
On 13 July 2018, the Court of Appeal Registrar issued a notice for the parties in this appeal to attend on 24 August 2018:
(1)To consider the appellants' application in an appeal filed on 12 July 2018; and
(2)To show cause why the appeal should not be dismissed for the appellants' failure to file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA).
On 20 July 2018, Mr Davey and Mr Ainsworth instituted an appeal against Chaney J's orders (CACV 73 of 2018).
On 30 July 2018, in CIV 1027 of 2016, a registrar dismissed Mr Davey's application for a suspension of the Property (Seizure and Delivery) Order.
The present application
On 2 August 2018, the appellants filed a further application in this appeal seeking, in effect, an order consolidating this appeal and the appeal in CACV 73 of 2018 and a stay of Chaney J's orders pending determination of this appeal. In an affidavit sworn 1 August 2018, Mr Davey and Mr Bell deposed that the matter was now urgent as Mr Davey had received notice from the Sheriff's office that it intends to take possession of two of the Properties, including Mr Davey's residence, on 6 and 9 August 2018. These reasons deal with that application in an appeal.
General principles
The general principles governing the grant of a stay or suspension order by this court pending an appeal are well established, and were summarised by the court in Eastland Technology Australia Pty Ltd v Whisson,[10] in the following terms:
•The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
•It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
•It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
•The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
•If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
•If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
[10] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
Disposition
It may be accepted that this appeal, so far as it challenges Martin CJ's decision to dismiss the application for judicial review of the acting master's orders of 4 October 2016, will be rendered nugatory if possession of the Properties is taken and the Properties, or some of them, are sold.
However, the material before us does not establish that this appeal has reasonable prospects of success so as to result in the grant of relief to the appellants.
While the appellants make a number of allegations of improper conduct by Westpac and others, and seek to impugn the correctness of the acting master's decision, none of those matters give rise to any reason for doubting the correctness of Martin CJ's decision in relation to the application for judicial review of the acting master's orders of 4 October 2016.
Mr Davey also submits that he has not had a proper hearing with an opportunity to submit evidence, obtain discovery of documents and subpoena documents. However, the point on which the appellants were unsuccessful before Martin CJ concerned a legal question as to the Supreme Court's power to judicially review its own decisions other than by way of appeal. That is not a question which can be affected by evidence.
Mr Davey also submits, in effect, that Martin CJ's decision was equivalent to awarding summary judgment, which it is established should be awarded only in the clearest of cases, where one party can demonstrate that the question will certainly be resolved in their favour.[11] However, nothing in the materials before us at this stage provides any reason for doubting the correctness of the legal principle which Martin CJ identified.
[11] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [54] - [55].
At this stage, the material before us and the submissions which have been advanced by Mr Davey do not appear to us to disclose any sufficiently arguable case for impugning the orders made by Martin CJ, so as to justify the grant of a stay of Chaney J's orders pending determination of the appeal. Nor does the material currently before us provide any reason to doubt the correctness of Chaney J's decision.
For these reasons, we were not satisfied that a stay was justified, and the application for a stay was refused. It was unnecessary to deal with the application to consolidate the appeals, which was referred to the hearing listed for 24 August 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE JUSTICE MITCHELL3 AUGUST 2018
0
5
1