Hammill v Campbell
[2015] VSC 54
•27 February 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 4715
| RAYMOND HAMMILL | Plaintiff |
| v | |
| KYM CAMPBELL | First Defendant |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 February 2015 |
DATE OF JUDGMENT: | 27 February 2015 |
CASE MAY BE CITED AS: | Hammill v Campbell |
MEDIUM NEUTRAL CITATION: | [2015] VSC 54 |
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JUDICIAL REVIEW AND APPEALS – Procedural fairness – Appeal from order of Associate Justice dismissing an application for judicial review of a decision of the Magistrates’ Court of Victoria – Whether an adjournment must be formally requested – No point of principle – Supreme Court (General Civil Procedure) Rules 2005, r 56.01
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P W Cahill (solicitor) | Peter Cahill |
| For the First Defendant | Mr T Chay (solicitor) | Merman Legal |
| For the Second Defendant | No appearance | |
HER HONOUR:
By notice of appeal filed 8 December 2014, the plaintiff appeals from an order of Associate Justice Efthim made on 18 November 2014.
Background
By complaint filed 15 May 2013 in the Magistrates’ Court at Bendigo, the plaintiff sought repayment from the first defendant of two loans totalling $50,217.53 plus interest and costs.
In his initial statement of claim, the plaintiff alleged some of the loan monies had been deposited into the ‘Condon Street Motors Account’ for the first defendant’s benefit, and were then withdrawn by the first defendant. These amounts were specified in the statement of claim as follows:
During 2005 sums totalling $10,500.00; and
During 2006 sums totalling $18,700.00.
On 14 February 2014, the plaintiff provided an amended statement of claim pursuant to an order of the Magistrates’ Court at Bendigo of 30 January 2014.
In his amended statement of claim, the plaintiff provided further details of the alleged deposits, listing fourteen transactions:
Date of Deposit Amount 11 May 2006 2,000.00 13 June 2006 2,000.00 29 June 2006 2,000.00 30 June 2006 4,500.00 13 July 2006 2,500.00 8 September 2006 2,000.00 6 October 2006 2,500.00 23 October 2006 2,000.00 2 November 2006 1,500.00 19 December 2006 2,500.00 14 January 2007 1,200.00 28 February 2007 1,500.00 27 April 2007 1,500.00 5 June 2007 1,500.00
By amended summons dated 16 May 2014, the first defendant sought that the plaintiff’s complaint be dismissed pursuant to r 24.02 or 23.01 of the Magistrates’ Court General Civil Procedure Rules 2010, or alternatively s 89B of the Evidence (Miscellaneous Provisions) Act 1958. Under s 89B(1)(c), a civil proceeding can be dismissed if the unavailability of a document is likely to cause unfairness to a party to the proceeding.
In support of that summons, the solicitor for the first defendant, Mr Chay, filed an affidavit sworn by him on 1 April 2014. In that affidavit, Mr Chay deposed that:
The unsigned Amended Statement of Claim indicates that only 2 of the transactions occurred within the last 7 years. There appears to be a significant risk that in respect of some or all of the other 14 transactions the receiving banks and the cheque issuing bank are likely to have destroyed some or all of the documents evidencing the transaction and the details of it …
The first defendant also filed an affidavit sworn by her on 14 May 2014 in which she described her efforts to obtain copies of relevant deposits into the ‘Condon Street Motors Account’ held at the Commonwealth Bank of Australia. She related a telephone conversation that occurred in her presence between Hayley of the Commonwealth Bank in Bendigo and Andrew of the Commonwealth Bank in Melbourne:
[Hayley] informed me that Andrew stated that the CBA could only access information up to 7 years old and that after that time the information was deleted or destroyed.
The first defendant deposed that she was able to obtain evidence of two deposits into the ‘Condon Street Motors Account’, which were as follows:
Deposit of $1,500 on 27 April 2007; and
Deposit of $1,500 on 5 June 2007.
She also deposed that these deposits were made from an ANZ bank account named ‘Heath William Campbell trading as Condon Street Motors’, not the bank account of the plaintiff, and produced deposit documents obtained from the bank, including two cheques, as evidence of this fact.
The summons for dismissal of the plaintiff’s complaint was heard by Magistrate Tregent on 16 May 2014.
On 8 August 2014, the Magistrate made orders striking out the plaintiff’s complaint with costs and delivered written reasons for that decision.
In her reasons, the Magistrate relied on the fact that the first defendant was only able to provide evidence of the final two transactions alleged by the plaintiff, due to the bank’s practice of destroying financial information up to seven years old, and said:
I am satisfied that the loss or destruction of all the records and financial statements referred to in the course of this decision will lead to an unfairness to the Defendant as thereby not being in a position to appropriately or sufficiently challenge the assertions or claims of the plaintiff. As noted previously, of the two documents the Defendant could trace back to origin, namely the original cheques, that information worked in the Defendant’s favour and against the Plaintiff. If the Defendant were in a position to undertake the same exercise with the other 12 allegations the outcome may be the same. The difficulty is that on the available documentary evidence the answer will never be known.
During the hearing, the Magistrate noted that the two cheques that still existed contradicted the claim of the plaintiff that he was the source of the loan. The plaintiff submitted there was a ‘very good explanation’ for this, and to deprive the plaintiff of an opportunity to give this explanation would deliver an unfairness to him. This submission took place in the following exchange:[1]
Mr Cahill: Well, in those circumstances, if there are these two cheques that exhibits to the Defendant’s Affidavit and that arrived on Wednesday then my, in respect, my client should be given the opportunity to explain it.
Her Honour: No. Absolutely not -
Mr Cahill: If that’s going to be used against him –
Her Honour: Absolutely not.
Mr Cahill: He hasn’t been given sufficient time –
Her Honour: Absolutely not. No, the question is these are documents and on their face what they establish or not, that’s what I’m – I’m not going to go into a Hearing of this Matter, this Matter is going to be decided on the documents placed before me and the arguments otherwise put.
[1]Transcript of Proceedings, Hammill v Campbell (Magistrates’ Court Victoria at Bendigo, D11408526, Magistrate J Tregent, 16 May 2014) 36–7.
In her reasons, the Magistrate reiterated this reluctance to allow the plaintiff an opportunity to provide an explanation for the two cheques, stating:
it is the Plaintiff who allegedly made the loan and who is now seeking to enforce it, so it must be said he has an obligation to sufficiently and in a timely manner advise the Defendant what the case is that must be answered.
Relevantly, the Magistrate also noted that the first defendant had drawn attention to the Commonwealth Bank’s practice in court. The plaintiff complained they were unable to challenge the first defendant’s assertion that the bank had a policy of destroying documents after seven years, as they had only received her affidavit in the day or so prior to the proceedings.
In her reasons, the Magistrate acknowledged this complaint but said:
I note however, Mr Cahill did not seek an adjournment of the proceedings to permit for that to happen. In the event such application had been made I would anticipate I would have been against him, as the Plaintiff was put on notice by the contents of the earlier affidavit sworn by Mr Chay as to these facts. In that affidavit Mr Chay detailed that his enquiries of the Bendigo, Adelaide and Commonwealth Banks revealed they were only bound to hold transaction records for 7 years.
Review of the Magistrate’s decision
By originating motion filed 8 September 2014, the plaintiff sought judicial review of the order of the Magistrates’ Court at Bendigo made 8 August 2014.[2] Amongst other things, the plaintiff sought relief on the grounds that:
(a) The learned Magistrate failed to observe procedural fairness towards the plaintiff by refusing the plaintiff the opportunity to provide evidence by way of affidavit to provide an explanation of certain matters;
(b) The learned Magistrate was wrong in law in granting the application of the first defendant by striking out the plaintiff’s statement of claim.
[2]Pursuant to r 56.01 of the Supreme Court (General Civil Procedure) Rules 2005.
By summons filed 6 October 2014 the first defendant sought an order that the plaintiff’s claim in this proceeding be dismissed pursuant to Pt 4.4 of the Civil Procedure Act 2010. That summons was heard and determined by Efthim AsJ on 18 November 2014, and the plaintiff’s claim was dismissed.
Before Efthim AsJ, Mr Cahill, who appeared for the plaintiff, submitted that the plaintiff was denied procedural fairness as he was not given an opportunity to provide a ‘very good explanation’ by way of affidavit for the source of funds for the two cheques.
Efthim AsJ repeatedly highlighted to Mr Cahill that the plaintiff had failed to ask for an adjournment to give this explanation, and concluded:
As to your first point of the no procedural fairness given, [the cheques were] given to you on that day, on my reading of the transcript and also on my reading of the judgment. You didn’t ask for an adjournment. You wanted the opportunity to explain but that could easily mean to explain at the trial but you didn’t ask for the adjournment, as you should have, to put further material before the court. On the material that was before the court, I don’t see how you could win this strike out.
The learned Associate Justice summarised this point in his reasons as follows:
No application for an adjournment was made at the Magistrates’ Court hearing. Before me, the Plaintiff was unable to point to sufficient evidence of procedural unfairness in the transcript of the hearing.
Efthim AsJ also rejected the plaintiff’s submission that the bank policy of destroying documents had not been substantiated in the evidence put forward by the first defendant.
He stated:
The loss of the records was dealt with by the Magistrate and was in issue due to the way in which discovery was provided by the plaintiff.
Appeal from Efthim AsJ
By notice of appeal filed 8 December 2014, the plaintiff appealed the order of Efthim AsJ on the ground that:
On the hearing of the First Defendant’s Summons that the Plaintiff’s Originating Motion had no real prospects of success the learned Associate Justice was wrong in law to find that on the Hearing before the learned Magistrate at the Magistrates’ Court of Victoria at Bendigo on 16 May 2014, the Plaintiff on making a submission that the Plaintiff had not been given sufficient time to respond to matters in the Defendant’s Affidavit sworn 14 May 2014 and filed therein, should have applied for an Adjournment or used the word ‘Adjournment’ in the plaintiff’s such Application.
Mr Cahill appeared for the plaintiff on the hearing of the appeal. He submitted that the plaintiff had asked the learned Magistrate for an opportunity to explain various matters raised during the course of the hearing, but she had refused him that opportunity by not making an order for an adjournment to allow the plaintiff to present further material, most relevantly relating to the bank policy of destroying documents and the existence of the two cheques. The plaintiff submitted that the decision by the learned Magistrate to determine the matter without giving the plaintiff the opportunity to put evidence by affidavit was a breach of procedural fairness. As a consequence, the plaintiff submitted:
The Learned Associate Justice was wrong in law to determine that an application for an adjournment or the use of the word ‘adjournment’ was necessarily given the request by the Plaintiff’s Solicitor for the Plaintiff to file Affidavit material set out in Page 37 of the Transcript in the Magistrates’ Court at lines 1 to 9. That is specifically so given that the Learned Magistrate refused the opportunity to file Affidavit Material.
In response, the solicitor for the first defendant, Mr Chay, drew attention to the transcript of the hearing before Efthim AsJ, where his Honour gave many examples of where the plaintiff had failed to ask for an adjournment during the hearing before the Magistrate.
Mr Chay also submitted that the existence of the two cheques was not the reason for the Magistrate’s decision to dismiss the plaintiff’s claim and, accordingly, the fact that the plaintiff was denied the opportunity to respond to the existence of the two cheques did not unfairly prejudice the plaintiff.
Mr Chay further relied on the reasons given by Efthim AsJ set out above that the plaintiff did not ask for an adjournment to put further material before the court and submitted:
the basic premise of the Plaintiff’s appeal is that a legal practitioner acting as an advocate before a tribunal … is not required to use the word adjournment or the word affidavit when seeking an adjournment to file further material in a matter before the Court. The implication of this submission is that a judicial officer is to seek to interpret statements made in the course of a hearing to try to glean whether the advocate is, in fact, seeking an adjournment.
Applicable principles
The legal principles underpinning the requirement of procedural fairness are well established, particularly in relation to the requirement that parties receive a fair hearing.[3] The specific principle under consideration was described by Bromberg J in Gbojueh v Minister for Immigration and Citizenship as follows:
.…persons whose interests are likely to be affected must be given the opportunity to deal with any matters relevantly adverse to their interests which the decision-maker proposes to take into account.[4]
[3]SZBEL and Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 25; Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 19; Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 101; Gbojueh v Minister for Immigration and Citizenship (2012) 289 ALR 107.
[4]Gbojueh v Minister for Immigration and Citizenship (2012) 289 ALR 107, 79.
Bromberg J also stated that the information must be ‘credible, relevant and significant’ to the matter at hand.
Consideration
There were two key issues before the Magistrate where the plaintiff claimed he had been denied the opportunity to respond to matters in the first defendant’s affidavit which, in turn, prevented him from receiving a fair hearing: the evidence pertaining to the destruction of bank documents after seven years and the evidence of the two cheques made out to ‘Heath William Campbell trading as Condon Street Motors’.
In respect of the first issue, the formal basis for the request to provide material to explain the existence of the bank policy of destroying documents was a request to the Magistrate that the Court:
make any ruling law [sic] that the Court considers necessary to ensure fair-ness to all parties to the proceeding.[5]
[5]Transcript of Proceedings, Hammill v Campbell (Magistrates’ Court Victoria at Bendigo, D11408526, Magistrate J Tregent, 16 May 2014) 37.
That this request should be transformed into a refusal by the Magistrate to grant an adjournment is a not a proper basis for claiming the plaintiff was denied the right to respond. It could not be construed as an application for an adjournment. In any event, by the time of the hearing of the first defendant’s dismissal application, the solicitor for the plaintiff already had sufficient time to prepare material to challenge this point. Although the affidavit of the first defendant filed shortly before the hearing set out the results of her enquiries from the bank as to its document destruction policy, the plaintiff was already on notice of the existence of such a policy by reason of the affidavit of Mr Chay filed 1 April 2014.
In my view, it is unreasonable to expect that the Magistrate should have been required to interpret such imprecise language as was used by the plaintiff into a request for an adjournment. Any request for an adjournment needs be made in clear terms.
In respect of the second issue, the plaintiff made a type of request in that he wanted an opportunity to explain evidence in relation to the two cheques. His request for an ‘opportunity to explain’ is vague and unclear and is not a request for an adjournment. Before me, the solicitor for the plaintiff agreed that he did not make an application for an adjournment before the Magistrate.
In any event, the fact that the Magistrate did not allow the plaintiff an opportunity to do so was irrelevant because the consideration of the two cheques did not form part of her Honour’s decision to strike out the plaintiff’s complaint. Her Honour’s reasons for dismissing the application were based upon the lack of documents providing evidence for the alleged transfer of payments from the plaintiff to the first defendant, due in part to the bank policy of destroying documents that were over seven years old and the prejudice that flowed from these documents being unavailable. Thus, with the existence of the two cheques not being material to her Honour’s findings, it could not be said to be a ‘relevant and significant’ consideration in the outcome of the case.[6]
[6]Gbojueh v Minister for Immigration and Citizenship (2012) 289 ALR 107, 79 (Bromberg J).
The learned Associate Justice found that the plaintiff had failed to ask for an adjournment when seeking an opportunity to explain matters in the first defendant’s affidavit. He highlighted multiple times that when requesting an opportunity to explain during the hearing of the strike out application, the plaintiff failed to ask formally for an adjournment.[7] The plaintiff’s requests for an opportunity to explain elements of the first defendant’s case were poorly phrased and were given sufficient consideration by her Honour.
[7]Transcript of Proceedings, Hammill v Campbell (Supreme Court of Victoria, S CI 2014 04715, Efthim AsJ, 18 November 2014) 8, 27–8, 33, 35, 37–8.
The learned Associate Justice also found that he was ‘unable to point to sufficient evidence of procedural unfairness’ when examining the transcript of the proceeding. The plaintiff’s lack of evidence to support the alleged loans to the first defendant gave the Magistrate ample grounds for her decision to grant the strike out application of the first defendant.
In my view, the learned Associate Justice was correct in finding that no application for an adjournment had been made at the hearing before the Magistrate and his Honour did not err in dismissing the plaintiff’s claim on the ground of a lack of procedural fairness.
Accordingly, the plaintiff’s appeal is dismissed. Subject to any submissions the parties wish to make as to costs, I consider the appropriate order to be that the plaintiff pay the defendants’ costs, to be taxed in default of agreement.
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