Grainger v WILLIAMS - [2000] WADC 95

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: GRAINGER & ANOR -v- WILLIAMS & ORS [2000] WADC 95

CORAM: YEATS DCJ

HEARD: 8 MARCH 2000

DELIVERED : Delivered Extemporaneously on 8 MARCH 2000 typed from tape and edited by Trial Judge.

FILE NO/S: CIV 237 of 1999

BETWEEN: GEOFFREY ORMOND GRAINGER
JOAN HARRINGTON GRAINGER
Plaintiffs
AND
GALE CURTIS WILLIAMS
First Defendant
RUTH EILEEN WILLIAMS
Second Defendant
MARK CURTIS WILLIAMS
Third Defendant

Catchwords:

Practice and procedure - Appeal from decision of Deputy Registrar - Whether at the hearing of the appeal the appellant should have leave to cross-examine the plaintiff on his affidavits - Purpose of summary judgment application is to consider if there is a triable issue on affidavit evidence - No basis for parole evidence - Application refused - Turns on own facts.

Legislation:

Nil

Result:

Application refused

Representation:

Counsel:

Plaintiffs:     Mr M J Buss QC
First Defendant             :     Mr M A R Blundell
Second Defendant         :     Mr M A R Blundell
Third Defendant           :     Mr M A R Blundell

Solicitors:

Plaintiffs:     Martin De Haas
First Defendant             :     Messrs Solomon Brothers
Second Defendant         :     Messrs Solomon Brothers
Third Defendant           :     Messrs Solomon Brothers

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

Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Sullivan v Henderson (1973) 1 WLR 333
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

Case(s) also cited:

Nil

YEATS DCJ : This is the hearing of two preliminary issues raised by the appellant arising from the appellant's appeal against a decision of Deputy Registrar Hewitt and orders made on 24 August 1999. The appellant was the defendant in an action brought by the plaintiff/respondent. The respondent sought possession of land and other orders related to damages, mesne profits and compensation. Summary judgment was entered against the appellant on the issue of possession. Deputy Registrar Hewitt dealt with that matter and on 24 August 1999 made an order in favour of the respondent but, two days later, after a notice of appeal was filed by the appellant in this Court the learned Deputy Registrar stayed his order until the appeal was determined on condition that the rent be paid.
On 17 February of this year, the learned Deputy Registrar ordered that the stay would cease to have effect from 29 February 2000 because it was apparent on the terms of the contract and the submissions by both the appellant and respondent that any right of possession to the land by the appellant ceased, in any event, on 29 April 2000.
The two issues set down for preliminary hearing were: (1) an issue as to the representation of the respondent in this matter. The appellant contended that, because the respondent's counsel, Mr Clay, had sworn affidavits which would be used in the hearing of the appeal, Mr Clay should not appear as counsel at trial. (2) the appellants seek leave for the court to order that the respondent, Mr Grainger, be available at the hearing of the appeal to be cross‑examined on his affidavits.
Those two preliminary issues were set down by me for hearing before a Judge of this Court. When they came on for hearing before his Honour Judge Viol on 25 October 1999, Judge Viol dealt with a further preliminary point - whether the District Court of Western Australia has jurisdiction to make an order concerning counsel. It was contended it was an inherent power of the Supreme Court which supervises counsel and not a part of the jurisdiction of this Court. On 29 November 1999, Judge Viol delivered his judgment in which he determined that the District Court does have jurisdiction, not an inherent jurisdiction, but incidental jurisdiction to consider the issue.

Issue 1

The respondent has now filed a further affidavit of Mr Grainger dated 29 February 2000, replacing the affidavits originally sworn by Mr Clay, so that the contention of the appellant that counsel cannot be a witness and that counsel must withdraw if counsel has sworn an affidavit which could be the subject of cross‑examination, have fallen away. Issue 1 does not any longer need to be determined by me.

Issue 2

The issue that remains for determination is the question of whether at the hearing of this appeal the appellant should have leave to cross‑examine Mr Grainger. The respondent contends that the court should not allow leave in these circumstances but, submits that if leave is granted, that both parties have leave to cross‑examine deponents on their affidavits.
The appellant submits a number of matters in support of his contention that in this particular appeal they should have leave to cross‑examine Mr Grainger on his affidavits. First, they refer to a recent judgment of the learned Deputy Registrar on 9 November 1999, wherein , in the course of lifting the stay, he commented:
"The level of bitterness and confrontation between these two parties leads me to the conclusion that it is not safe to draw any inferences on the affidavit material which is on the file, without the opportunity of the witnesses being cross‑examined and assessments as to credibility made."
He goes on to say:
"I take the view that it would not be safe to reach any conclusion about the rights and wrongs of the matter without the opportunity to see the witnesses and hear their testimony and make a decision as to credibility."
The appellant then relies on its grounds of appeal and submits that in relation to his reasons Deputy Registrar Hewitt interpreted three agreements making up the contract between the parties, and submits that in the circumstances of the case there should be terms implied into those agreements and that the rule in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 would apply, so that testimony would be required and cross‑examination would be appropriate.
The appellant also pointed to inconsistencies between some of the testimony of Mr Grainger in his affidavits and some countering affidavit material submitted by the appellant. The appellant also noted that it had brought deceit and fraud allegations in the Supreme Court and that its allegations had been unanswered.
The respondent contends that it would be a rare and unusual step for a court to allow any cross‑examination of a plaintiff, which is the position the respondent would be in, on a summary judgment application. I note that the hearing in this Court will be a hearing de novo. Although there have been grounds of appeal filed and properly served, the notice of appeal in those matters are properly brought before this Court, yet it is clear that a decision of a Deputy Registrar is appealable to a judge of the District Court and that it is a hearing de novo; that is, the Judge hearing it is not bound by the findings of the learned Deputy Registrar and will look at the matter afresh and reconsider the matter.
It is important to realise that what the judge will be doing on appeal is considering a summary judgment application. On appeal the appellate Judge will be considering whether on the affidavit evidence there is an arguable defence that should go to trial, whether there is a triable issue that should be tried. Now, it does not seem to me that determining issues of credibility is going to assist that. On a summary judgment application, unless there are some significant difficulties with the appellant's affidavit material, there would be no reason to resolve factual differences between the position of the respondent and the position of the appellant. That is because the purpose of the hearing is not to finally resolve the matter, but only to determine whether a trial should be held.
A trial will be necessary on the remaining matters raised by the respondents:- that is, on the question of damages, mesne profits and compensation. If on the appeal the appellate Judge were to determine that there was a triable issue as to the question of possession of the land up until 29 February 2000, then that issue could be considered at trial. It is difficult for me to see the point, on a summary judgment application, of allowing the appellant to cross‑examine the respondent's principal witness on issues of this nature.
The issue as to the contract itself is governed by the rule in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 per Mason J, as he then was, at page 352:
"The true rule is that evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language is ambiguous or susceptible of more than one meaning. But it is not admissible to contradict the language of the contract when it has a plain meaning. Generally speaking facts existing when the contract was made will not be receivable as part of the surrounding circumstances as an aid to construction, unless they were known to both parties, although, as we have seen, if the facts are notorious knowledge of them will be presumed.
It is here that a difficulty arises with respect to the evidence of prior negotiations. Obviously the prior negotiations will tend to establish objective background facts which were known to both parties and the subject matter of the contract. To the extent to which they have this tendency they are admissible. But in so far as they consist of statements and actions of the parties which are reflective of their actual intentions and expectations they are not receivable. The point is that such statements and actions reveal the terms of the contract which the parties intended or hoped to make. They are superseded by, and merged in, the contract itself. The object of the parol evidence rule is to exclude them, the prior oral agreement of the parties being inadmissible in aid of construction, though admissible in an action for rectification."
That passage makes it clear that for the purpose of a summary judgment application, there is no basis for the introduction of parol evidence quite apart from the terms of the contract itself.
The other issue is one of principle. I have been referred to the decision of Vice‑Chancellor McGarry J in Sullivan v Henderson (1973) 1 WLR 333 at 338 which shows that there are dangers in allowing cross-examination of a matter during a summary procedure when later that same matter could well be set down for trial. McGarry J said:
"The present case seems to me to illustrate the difficulties that may arise if leave to cross‑examine a witness on his affidavit is given in cases under Ord. 86. The summary process under Ord. 86 is one thing, and the trial of an action is another: a hearing under Ord. 86 with oral evidence is liable to become neither one nor the other, and to share the disadvantages of each. The hearing ceases to be summary, and the absence of pleadings and discovery, for example, prevents the hearing from achieving the exhaustiveness of a trial. The court may be put in the position, at the end of a two-day hearing, of saying that there ought to be a trial of the action, in which case there will then be the repetition of much that has occupied the court and the parties during the hearing under Ord. 86. I observe that rule 5(3)(b) of the Order, which authorises the making of an order for the defendant to attend and be examined on oath, qualifies the power by the words 'if it appears to the court that there are special circumstances which make it desirable that he should do so.' This is a weighty qualification, and I would subscribe to the cautionary words of Field J. in Millard v Baddeley [1884] W.N. 96 (affirmed (1884) 28 S.J.427), uttered in relation to the corresponding procedure under Ord. 14. There may be cases where it is right to give leave to cross‑examine, perhaps limited to a single point, though this has its own problems both for counsel and for litigants who are bursting to reveal all; and in any case I would expect cases in which it would be desirable for such leave to be given to be of comparatively rare occurrence."
I note that O86 under the English rules in the White Book is quite similar to what was O15 which has now been repealed in the Red Book in Western Australia.
I also note that r5 subrule (3)(b) is similar in terms to O4 r4(2), that special circumstances should be shown before witnesses are ordered to attend for cross‑examination in a summary procedure:
Having looked at this case as it fits into the factual matrix as it has developed and the limited summary judgment order that was made by Deputy Registrar Hewitt and the appeal against that order, it seems to me that it would be contrary to the purpose of summary judgment in the circumstances of this particular case for this Court to allow cross‑examination on affidavit material. Therefore the appellant's application is refused.