Frigger v Clavey Legal Pty Ltd
[2015] WASCA 217
•30 OCTOBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: FRIGGER -v- CLAVEY LEGAL PTY LTD [2015] WASCA 217
CORAM: BUSS JA
MURPHY JA
HEARD: 16 OCTOBER 2015
DELIVERED : 30 OCTOBER 2015
FILE NO/S: CACV 56 of 2015
BETWEEN: ANGELA FRIGGER
First Appellant
HARTMUT FRIGGER
Second AppellantAND
CLAVEY LEGAL PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :HERRON DCJ
Citation :FRIGGER -v- CLAVEY LEGAL PTY LTD [No 3] [2015] WADC 21
File No :CIV 1221 of 2011
Catchwords:
Practice and procedure - Springing order - Application to extend time - Turns on own facts
Legislation:
Nil
Result:
Application granted on terms
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : No appearance
Respondent: Mr P Quinlan SC
Solicitors:
First Appellant : In person
Second Appellant : No appearance
Respondent: MDS Legal
Case(s) referred to in judgment(s):
A v C [No 2] [2015] WASCA 199
Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S)
REASONS OF THE COURT:
Introduction - the appellants' application
On 25 August 2015, the appellants filed an application seeking orders in the following terms:
1.An extension of time within which the appellants may file the appellants' case statement to the date upon which the appellants amended case statement is accepted by the court for filing.
2.The appellants have leave to adduce fresh evidence at the appeal, being an email from Mr Gary Cobby to Mr David Lenhoff dated 12 July 2013.
3.Costs in the appeal.
The application was made within an appeal from a decision of the District Court: Frigger v Clavey Legal Pty Ltd [No 3][1] (Frigger v Clavey [No 3]).
[1] Frigger v Clavey Legal Pty Ltd [No 3] [2015] WADC 21.
At the time the application was made, the appeal had been dismissed pursuant to a springing order made on 4 August 2015.
The background to the application
The primary proceedings
Mr and Mrs Frigger had alleged in the District Court, in effect, that the respondent (Clavey Legal) had, in the course of acting for them in certain matters, breached the terms of the retainer, been negligent and breached fiduciary duties. The retainer allegedly related, inter alia, to resisting an application to wind up a company of which Mr and Mrs Frigger were sole directors and shareholders, namely Computer Accounting and Tax Pty Ltd (CAT), and in relation to a proposed application to stay certain orders against CAT, made in the Court of Appeal on 23 October 2009, in CACV 76 of 2008. The Court of Appeal orders had the effect of requiring CAT to pay Professional Services of Australia Pty Ltd (PSA) and the estate of Mr Banning, an amount in the order of $800,000.[2]
[2] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [No 2] [2009] WASCA 183 (S) [21].
An important part of Mr and Mrs Frigger's case was that Clavey Legal's purported termination of the retainer on 30 March 2010 was unlawful and in breach of contract, in consequence of which Mr and Mrs Frigger allegedly suffered loss and damage. They also had claims based upon the manner in which they alleged Clavey Legal represented and advised them.
Mr and Mrs Frigger alleged in the District Court, in effect, that the breaches and negligence of Clavey Legal caused them to suffer loss and damage in that had the retainer been performed properly, CAT would have obtained a stay of the Court of Appeal judgment in CACV 76 of 2008 and, consequently, it would not have been wound up on the ground of insolvency. Mr and Mrs Frigger alleged that it was the winding up of CAT which caused them to suffer certain specified losses.[3]
[3] Frigger v Clavey Legal [No 3] [10].
Mr and Mrs Frigger also alleged that Clavey Legal had been instructed to:
(a)appear on their behalf in Supreme Court proceedings CIV 2001 of 2009 in respect of a deed of company arrangement entered into by PSA (DOCA proceedings);[4] and
(b)act for Mr and Mrs Frigger in Supreme Court proceedings CIV 2265 of 2006, specifically in relation to freezing orders over Mr and Mrs Frigger's assets in the 'Frigger Super Fund' (freezing order proceedings).[5]
[4] Frigger v Clavey Legal [No 3] [290(c)].
[5] Frigger v Clavey Legal [No 3] [290(d)].
Herron DCJ dismissed the appellants' action. Mr and Mrs Frigger appealed that substantive decision.
There was an earlier interlocutory decision dated 15 October 2014 of Herron DCJ during the trial of the matter, in which his Honour refused the admission of a certain report upon which Mr and Mrs Frigger sought to rely by way of expert evidence in relation to their claim for damages. The appellants also challenged that interlocutory decision.
The primary decision
The primary judge found, in effect, that Clavey Legal was retained in the terms of a written costs agreement dated 23 February 2010 to defend the winding‑up application of CAT, and to advise on the prospects of obtaining a stay of the Court of Appeal's orders of 23 October 2009.[6]
[6] Frigger v Clavey Legal [No 3] [5], [180], [289], [293].
His Honour also found, in effect, that on 12 March 2010 the retainer was extended for Mr Clavey to consider the merits upon which PSA's deed of company arrangement could be challenged.[7] The judge also found that on or about 25 March 2010, the retainer was further extended to include instructions to act for Mr and Mrs Frigger in relation to the freezing order proceedings, conditional upon a hearing that was scheduled for 1 April 2010 being adjourned.[8]
[7] Frigger v Clavey Legal [No 3] [6], [229] - [231], [314] - [315].
[8] Frigger v Clavey Legal [No 3] [7], [316] - [317].
His Honour found that, contrary to Mrs Frigger's assertions, Clavey Legal had not accepted instructions to appear on behalf of Mr and Mrs Frigger in the DOCA proceedings;[9] nor had Clavey Legal accepted unconditional instructions to represent Mr and Mrs Frigger in the freezing order proceedings.[10]
[9] Frigger v Clavey Legal [No 3] [314] ‑ [315].
[10] Frigger v Clavey Legal [No 3] [316] - [317].
His Honour also found that, on 30 March 2010, Clavey Legal had terminated the retainer in the matters in which it had been retained because the requisite trust and confidence between solicitor and client had broken down.[11]
[11] Frigger v Clavey Legal [No 3] [8], [264] - [271], [329] - [351], [353].
The appellants' case at trial in relation to the scope and terms of the relevant retainer and the communications between the parties throughout the performance of the retainer up to and including its termination, relied significantly upon the evidence of Mrs Frigger.[12] His Honour found, with detailed reference to Mrs Frigger's evidence and affidavits previously sworn by her that:
(a)Mrs Frigger was dishonest in, and gave a dishonest explanation about, an affidavit sworn 23 September 2008;[13]
(b)Mrs Frigger was a person who showed little or no regard for the truth;[14]
(c)Mrs Frigger deliberately falsely swore an affidavit for the purpose of intentionally misleading the court;[15]
(d)Mrs Frigger manipulated and created documentation, including by swearing affidavits which were often contradictory of and inconsistent with each other to defeat applications against her;[16]
(e)Mrs Frigger swore a false affidavit on 10 February 2010 in connection with CAT's application for special leave to the High Court, and she dishonestly swore the affidavit intending to mislead the High Court as to CAT's financial position;[17]
(f)Mrs Frigger took certain green appeal books away from the court and into her custody, and returned them with a page inserted into volume 3 of the green appeal book which had not been there, and she knowingly and deliberately gave false and untruthful evidence when she denied that she had inserted the document into the book;[18] and
(g)Mrs Frigger gave unsatisfactory evidence with little regard, if any, to the truth on other matters and was otherwise an unreliable witness.[19]
[12] Frigger v Clavey Legal [No 3] [40], [176] - [288], [314] - [317].
[13] Frigger v Clavey Legal [No 3] [90].
[14] Frigger v Clavey Legal [No 3] [94].
[15] Frigger v Clavey Legal [No 3] [101].
[16] Frigger v Clavey Legal [No 3] [105].
[17] Frigger v Clavey Legal [No 3] [113], [115].
[18] Frigger v Clavey Legal [No 3] [138].
[19] Frigger v Clavey Legal [No 3] [143], [148], [156], [164], [169].
On the other hand, the trial judge found that Mr Clavey was a credible, truthful and reliable witness, whose evidence he accepted.[20] His Honour also found that Clavey Legal's other witnesses, Ms Richards and Ms Zohar, were reliable and credible witnesses who gave their evidence in a thoughtful and straightforward way. His Honour noted that it was not suggested by the appellants' counsel that they were unreliable witnesses.[21]
[20] Frigger v Clavey Legal [No 3] [170], [173].
[21] Frigger v Clavey Legal [No 3] [174].
The judge rejected Mr and Mrs Frigger's claims for breach of contract, breach of fiduciary duties and breach of common law duties.[22]
[22] Frigger v Clavey Legal [No 3] [318] - [328], [353].
His Honour also rejected the appellants' contention that there was an implied term of the retainer to the effect that Clavey Legal would comply with the Law Society of Western Australia's Professional Conduct Rules 2008.[23] Further, his Honour found that even if it were assumed that r 19.3(1) and r 19.3(8) of the Professional Conduct Rules were implied terms of the retainer, the circumstances of the termination did not constitute a breach of, and was not contrary to, those rules.[24]
[23] Frigger v Clavey Legal [No 3] [299] - [312].
[24] Frigger v Clavey Legal [No 3] [291], [334] - [335], [353] .
His Honour also rejected specific allegations of negligence pleaded in par 10 of the statement of claim.[25]
[25] Frigger v Clavey Legal [No 3] [354] - [375].
As to the position of Mr and Mrs Frigger following the termination of the retainer, the judge found the following facts.[26]
[26] Frigger v Clavey Legal [No 3] [273] - [288], [352], [359], [380].
The suspension application to the Court of Appeal was not due to be heard until 16 April 2010. The winding up application was not due to be heard until 28 April 2010. Mr and Mrs Frigger had no difficulty obtaining new solicitors. Mr Dutton was retained after only one business day had passed following the termination of the retainer by Mr Clavey. A barrister was consulted and Mrs Frigger advised Mr Clavey that the barrister had been engaged on 8 April 2010.
On 8 April 2010, Mr Clavey offered to speak with the new solicitors to facilitate transfer of the matters, at no charge. That offer was never taken up. Nor did Mr Clavey claim a lien over the papers.
The new barrister gave certain advice which Mrs Frigger rejected.
On 16 April 2010, the new solicitors obtained an adjournment sine die of the suspension application to the Court of Appeal. That application was never brought back on.
On 27 April 2010, Mrs Frigger swore a further affidavit, settled by Mr Dutton, in connection with the application to wind up CAT. The affidavit was filed and was referred to by the master in his reasons delivered on 6 May 2010.
The winding up application came on before Master Sanderson on 28 April 2010. Mrs Frigger appeared through counsel and made submissions in opposition to the application. Master Sanderson ordered CAT to be wound up in insolvency on 6 May 2010.
Subsequently, Mr and Mrs Frigger filed an appeal against that decision, but chose not to pursue it.
The judge further found that the appellants' claims against Clavey Legal were a collateral attack on the decision of the master to wind‑up CAT, and on that basis he would, in any event, have ordered the proceedings to be stayed as an abuse of process.[27]
[27] Frigger v Clavey Legal [No 3] [382].
His Honour found that had either Mr Clavey remained acting for them, or an experienced competent solicitor and counsel appeared on their behalf, the appellants would not have successfully opposed the winding‑up application of CAT. His Honour found that given the master's findings that CAT was indebted to PSA and the Banning Estate in an amount over $800,000 and did not have the capacity to make that payment and was therefore prima facie insolvent, and that in those circumstances, the only way Mr and Mrs Frigger could establish that CAT was solvent would be for Mrs Frigger or Mr Frigger to personally undertake to meet the debts of CAT as and when they fell due, which undertaking was not forthcoming, the conclusion that CAT should be wound‑up was inevitable. His Honour found that the outcome would have been no different no matter who represented the appellants at the hearing.[28]
[28] Frigger v Clavey Legal [No 3] [381], [390].
The judge also found, in effect, that the appellants could not have, in any event, been successful in obtaining a stay or suspension of the Court of Appeal's orders, in that had the true financial circumstances of CAT, as later disclosed by Mr and Mrs Frigger, been known to the Court of Appeal, CAT would never have successfully resisted a stay of the primary judgment in the first place; CAT would thereby never have received and been in a position to dissipate the money which the Court of Appeal subsequently ordered it to repay; and in those circumstances, the prospect of the Court of Appeal then staying its orders requiring repayment, would have been 'remote'.[29]
The appeal to this court
[29] Frigger v Clavey Legal [No 3] [392] - [394].
The appeal notice was filed on 2 April 2015. An electronic copy was not served until 9 April 2015, and a hard copy of the appeal notice was not served until 13 April 2015.
The appellants' case was required to be filed by 7 May 2015. The appellants requested an extension of time to file the appellants' case to 28 May 2015. A consent notice was filed on 8 May 2015 agreeing to an extension to 28 May 2015, and Registrar Davies made orders to that effect on 11 May 2015.
The appellants did not comply with Registrar Davies' order.
On 20 July 2015, Registrar Bush issued a registrar's notice to attend a directions hearing on 4 August 2015 for the appellants to show cause why the appeal should not be dismissed for failure to file the appellants' case, and to consider the respondent's application for security for costs.
On 31 July 2015, the appellants provided to the court a document purporting to be an appellants' case, dated 31 July 2015 (first purported appellants' case). On 4 August 2015, the associate to Registrar Bush informed the appellants that the first purported appellants' case had not been accepted for filing and that it was incomplete and did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) and practice direction 7.4.
On 4 August 2015, the matter came before the court pursuant to the registrar's notice dated 20 July 2015. On that occasion, the respondent sought a springing order that an appellants' case be filed by 14 August 2015. Mrs Frigger accepted on that occasion, in effect, that the first purported appellants' case was not in compliance with the Court of Appeal Rules and that she required 'a bit of extra time', but would leave it to the court as to the further programming of the matter.[30] On that occasion, the court ordered (springing order) that:
Unless by 4.00 pm 14 August 2015 the appellants do file and serve an appellants' case in compliance with pt 5 r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA):
(a)the appeal is and be dismissed; and
(b)the appellants do pay the respondent's costs of and in connection with the appeal, including reserved costs, to be taxed.
[30] ts 5, 04/08/15.
On 14 August 2015, the appellants provided a further document, also dated 31 July 2015, purporting to be an appellants' case (second purported appellants' case).
By letter dated 24 August 2015, the associate to Registrar Bush wrote to the appellants and advised that the second purported appellants' case had not been accepted for filing, and that the appeal was therefore dismissed pursuant to the springing order.
On 25 August 2015, the appellants filed the present application and an affidavit in support of the application by Mrs Frigger. It annexed a further document purporting to be a draft appellants' case (Annexure AF1).
The appellants' affidavit sworn 25 August 2015
Mrs Frigger swore an affidavit on 25 August 2015 in support of the appellants' application dated 25 August 2015. The affidavit is, relevantly, in the following terms:
EXTENTION OF TIME TO FILE COMPLIANT CASE STATEMENT
4.Attached and marked AF1 is an amended case statement, which I believe complies with the directions contained in Registrar Bush's letter of 24 August 2015.
5.The preparation of the appellants case statement has been an extremely difficult exercise for me:
a.My trial barrister Richard Cook practices [sic] in Melbourne, and has been receiving chemotherapy since March of this year;
b.Mr Cook's secretary has on several occasions assured me that the case statement would be ready by a certain date, but when that date arrived, she informed it was still not ready;
c.I am aware that Mr Cook has taken extensive sick leave during this period;
d.When I received the 'show cause' notice from this Court on 20 July 2015, I again informed Mr Cook's secretary that the case statement was required urgently, and she advised me Mr Cook needed 'another half day to finish it off'.
e.Eventually I decided I could no longer wait for Mr Cook and completed the case statement with the advice I had already received from him and his written submissions in the trial.
6.The exhibits and exhibits list in the trial are extremely difficult to follow and I am still unsure what I should do about the exhibits in this appeal. The appellants' documents are in a complete mess, with many pages and documents missing from the file.
7.The trial judge's reasons contain numerous errors of fact and I had difficulty deciding which ones to appeal for the purposes of the appellants claim, and which ones to ignore. This also led me to a misunderstanding of Registrar Bush's letter dated 4 August 2015 and I inadvertently overlooked some of the directions contained in that letter.
FRESH EVIDENCE
8.After the completion of the trial in September and October 2014, I discovered an email from Mr Cobby to Mr Lenhoff dated 12 July 2013, in which Mr Cobby explains instructions he accepted on my behalf.
9.I believe that the email is important to prove my oral evidence that Mr Cobby did not accept instructions from Mr Dutton in April 2010, contrary to the findings of the trial judge. Attached and marked AF2 is copy of the email.
Annexure AF1 (proposed appellants' case)
The 25 August 2015 document contains nine proposed grounds of appeal.
Grounds 1, 2, 4 and 5, as particularised, raise matters in respect of which the judge's findings on credibility are relevant. Ground 8 is a direct challenge to the judge's findings that Mrs Frigger was not a credible witness.
Further, ground 5 alleges:
The trial judge erred in mixed law and fact in his finding at [357] that the defendant undertook the instructions in the retainer in a competent, conscientious and proper manner.
Ground 5 then has five different components, A, B, C, D and E.
Ground 5A is headed 'The Respondent's professional negligence in the Stay Application'. Ground 5B is headed 'The Respondent's professional negligence in the Winding‑Up Application'. Ground 5C is headed 'The Respondent's professional negligence in the DOCA proceedings'. Ground 5D is headed 'The Respondent's professional negligence in the Consent Orders in CIV 2265 of 2006'. Ground 5E is headed 'The Respondent's professional negligence in other instructions contained in the email of 16 March 2010'.
Proposed ground 3 alleges that the judge should have found, in effect, that it was an implied term of the retainer that Clavey Legal would 'exercise care and skill as promulgated by the [Law Society Professional Conduct Rules]'.
Proposed ground 6 alleges that the judge erred in finding that there was ample time for Mr and Mrs Frigger to arrange further representation.
Proposed ground 7 refers to the judge's provisional assessment of the appellants' claim for damages.
Proposed ground 9 relates to the interlocutory decision with respect to the admissibility of a report in relation to the claim for damages.
The appellants' submissions in support of their application
The appellants' submissions in support of their application are to the following effect:
(a)the appellants had misunderstood certain directions in Registrar Bush's letter of 4 August 2015;
(b)that there should always be flexibility to allow for human error and the ultimate objective must be to do justice;
(c)the defective nature of an earlier version of the appellants' case was as 'a result of the size of the action below, in large caused by the forensic tactics of the respondent, the length and form of the reasons and the difficulty caused by trial counsel becoming sick with cancer';
(d)the appellants faced difficulties with the preparation of their 'case statement' as explained in Mrs Frigger's affidavit of 25 August 2015;
(e)Registrar Bush's letter dated 24 August 2015 'directed the appellants to file an application for an extension';
(f)on 25 August 2015, the appellants filed the 'required' extension application, together with amendments to the case statement;
(g)on 27 August 2015, Registrar Bush wrote to the parties indicating that the respondent could consent to the extension sought, and that the appellants believed that this direction meant that the amended case statement complied with the rules;
(h)the merits of the appeal are strong;
(i)the 'respondent's forensic tactics' in the action below which made the 'case statement' difficult to prepare, included:
(i)the volume of documentary material which was 'strictly irrelevant to the issues in dispute';
(ii)opposing the filing of non‑expert witness statements;
(iii)cross‑examining Mrs Frigger for five days on matters that were irrelevant to the issues in dispute;
(iv)'concealing' the oral evidence that would be given by the respondent's witnesses, Mr Clavey and Ms Zohar. Both of those witnesses are 'officers of the court' and their oral evidence was 'false';
(j)there is 'little prejudice' to the respondent in that the respondent was 'deregistered in February 2013 as an incorporated legal practice'; and
(k)there will be 'substantial prejudice' to the appellants, including the costs of the trial awarded against them, and that if the appeal was dismissed at this stage, officers of the court 'will have got away with perjury', and there is a 'substantial and unfair finding' against Mrs Frigger 'which needs to be looked at by this court and set aside, if found to be erroneous'.
The respondent's submissions
The respondent submits, in effect, that:
(a)serious delays have occurred;
(b)there has been no proper explanation for the delay;
(c)there is still no indication when an appellants' case in compliance with the Court of Appeal Rules might be filed;
(d)the appellants have a history of seeking extensions of time in this court, and in ignoring court orders;
(e)the proposed grounds of appeal in Annexure AF1 contain serious deficiencies, including in relation to proposed ground 5;
(f)the appeal has no merit, so that there is no real prejudice to the appellants; and
(g)there is real prejudice to Mr Clavey and to the other solicitors who remain the subject of continuing allegations concerning alleged impropriety.
The relevant principles
The relevant principles were recently restated in this court in A v C [No 2].[31] There the court said:
[31] A v C [No 2] [2015] WASCA 199.
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. See, for instance, MTQ Holdings Pty Ltd v Lynch[2007] WASC 49 [38] - [57] and the cases there cited; TP Engineering Pty Ltd v JM [2015] WASCA 181 [53].
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court: MTQ Holdings; TP Engineering.
Disposition
Having considered carefully the parties' arguments, we are not disposed to grant the application in terms. There can be no order in effect giving the appellants an extension of time for as long as they might take to produce an appellants' case in compliance with the Court of Appeal Rules. That would be, in effect, to grant an extension for an indefinite period. A party in default of a springing order cannot expect such open‑ended latitude. On the other hand, the following matters seem to us to indicate that it would be in the interests of justice to allow the appellants a further opportunity to prosecute the appeal in terms of Annexure AF1, subject to certain matters discussed at [58] ‑ [62] below. Our reasons are essentially as follows.
First, whilst there has been significant delay at the time that the springing order was made, the delay had not been egregious. Secondly, the appellants are litigants in person. There is evidence that their trial counsel has been indisposed on serious medical grounds. Whilst that is not itself a complete answer to the delay that has occurred given that, not infrequently, new counsel need to be retained for an appeal when trial counsel are unavailable, it is nevertheless a factor to be taken into account in explaining the delay and reasons for non‑compliance. Thirdly, the second purported appellants' case and Annexure AF1 constitute some attempt to comply with the court's orders.
Fourthly, Mrs Frigger informed the court that if an extension of time were to be granted, she would retain solicitors to appear on the court record as her lawyers in the appeal, and that she would be represented by a barrister at the appeal hearing. Although it was not, in terms, an undertaking, Mrs Frigger gave very positive assurances in that regard.[32]
[32] ts 16 - 18, 16/10/15.
Fifthly, whilst Annexure AF1 has some evident deficiencies, it is nevertheless a document which, taken as a whole, tolerably discloses the nature and scope of the appellants' proposed appeal, subject to some important qualifications referred to later. Sixthly, whilst some limited arguments were directed to the merits of the appeal, the points were not canvassed comprehensively and we are not satisfied at this particular point that the appeal is necessarily 'devoid of merit'.
Finally, whilst we accept that there is prejudice of the kind outlined by the respondent in its submissions, it is to be weighed against the prejudice to the appellants of having the appeal, in effect, summarily dismissed.
The qualifications referred to in [52] above are as follows.
Ground 5 refers to his Honour's findings in Frigger v Clavey Legal [No 3] [357]. His Honour's findings at [357] addressed a specific allegation alleged in par 10(b) of the statement of claim. His Honour's findings are:
Paragraph 10(b) alleges a failure to file the suspension application and affidavit in support on an urgent basis and in accordance with Mrs Frigger's instructions. I have already dealt with the circumstances in which the suspension application and the affidavit in support were prepared and filed on 23 March 2010 after Mr Clavey received the funds from the plaintiffs he had requested. In my view Mr Clavey took all proper and necessary steps in preparation and filing of the suspension application and Mrs Frigger's affidavit sworn in support of the application. The drafting of the affidavit and in particular the compiling of the voluminous exhibits in circumstances where Mrs Frigger had not provided much of the necessary documentation to Mr Clavey, and where there were ongoing requests for further documentation to be provided, was a difficult exercise and necessitated a considerable amount of work by Mr Clavey, Ms Richards and Ms Zohar. In my view Mr Clavey undertook the work involved in a competent and conscientious manner. In all of the circumstances the suspension application was filed in a timely manner. (emphasis added)
The specific findings made by his Honour at [357], with respect to the specific allegation in par 10(b) of the statement of claim, only relate to proposed ground 5A and cannot be used as a vehicle for ranging over the other matters alleged in proposed grounds 5B ‑ 5E. Also, the appellants have merely inserted the word 'nil' in the column headed 'Evidence which supports the finding of fact' in schedule 4 attached to their proposed written submissions. This is despite it being obvious from the judge's reasons that his Honour canvassed in detail the evidence which he found supported his findings.[33]
[33] Schedule 4 attached to the appellants' proposed written submissions also makes reference to evidence allegedly relevant to proposed grounds 4B ‑ 4E, however, this appears to be a misdescription of grounds 5B ‑ 5E.
Further, Annexure AF1 omits essential elements of an appellants' case required under r 32 of the Court of Appeal Rules. It omits:
•legal authorities;
•chronology;
•orders wanted; and
•draft appeal indexes.
There is no credible explanation as to why these matters have still not been attended to. Whilst the appellants' affidavit in support of the application states that the exhibits and exhibits list at trial are 'extremely difficult to follow', and that her documents are 'in a complete mess', the appellants' proposed grounds and submissions refer to exhibit numbers, and there is no adequate explanation as to why her documents are in a mess.
In oral submissions, Mrs Frigger in effect accepted that proposed ground 5 was deficient with respect to grounds 5B ‑ 5E. She nevertheless suggested that further amendments might be made in due course to deal with these matters. Nevertheless, the deficiencies were raised by the respondent in written submissions over a month ago, and at this stage no additional or different grounds are in prospect.
Finally, we should record that we do not accept that there is any evidentiary basis for the contentions made by the appellants to the effect that the respondent's alleged 'forensic tactics' have contributed to any difficulties in the preparation of a proper appellants' case. Also, we do not accept that Registrar Bush's letter dated 24 August 2015 'directed' the appellants to file an application for an extension. The letter merely pointed out, for their benefit as unrepresented litigants, that it was open to them to make such an application. Nor do we accept that the merits of the appeal are strong, as alleged by the appellants. As indicated above, we are not satisfied at this point that the appeal is totally devoid of merit, but in so saying, it should not be thought that we accept that the proposed appeal has good merits.
Proposed orders
Taking everything into account, we propose to make the following orders:
1.The time for filing and serving an appellants' case be extended from 4.00 pm, 14 August 2015 to the date and time referred to in order 4 hereof, subject to and upon the terms set out in orders 2, 3 and 4 hereof.
2.Subject to order 4, the appellants have leave to file and serve an appellants' case containing grounds of appeal and submissions in terms of Annexure AF1 to the affidavit of Mrs Frigger sworn 25 August 2015, subject to the deletion of grounds 5B, 5C, 5D, 5E and subject to the deletion of all references to what is described as 'Ground four‑B winding‑up application'; 'Ground four‑C DOCA'; 'Ground four‑D consent orders'; and 'Ground four‑E other instructions' on page 44 of annexure AF1 to the appellants' affidavit of 25 August 2015.
3.Any appellants' case filed in accordance with order 1 must contain, in accordance with r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA):
(a)legal authorities;
(b)chronology;
(c)orders wanted; and
(d)draft appeal indexes.
4.Unless by 4.00 pm on [date to be fixed] the appellants do file and serve an appellants' case in accordance with orders 2 and 3:
(a)the appeal is and be dismissed; and
(b)the appellants do pay the respondent's costs of and in connection with the appeal, including reserved costs, to be taxed.
5.Paragraph 2 of the appellants' application dated 25 August 2015 be adjourned to any final hearing of the appeal.
6.The appellants' application dated 25 August 2015 otherwise be dismissed.
We will hear the parties as to the date to be fixed for the purposes of proposed orders 1 and 4, and on the question of costs, including whether costs should be fixed, and if so in what amount.
5
5
1