Hudson v Hudson
[2020] VCC 187
•6 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-18-01202
| Troy Cameron Hudson | Plaintiff |
| v | |
| Ross Douglas Hudson and Roslyn Hudson | Defendants |
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JUDGE: | His Honour Judge Woodward | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2020 | |
DATE OF RULING: | 6 March 2020 | |
CASE MAY BE CITED AS: | Hudson v Hudson | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 187 | |
REASONS FOR RULING
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Subject: PRACTICE AND PROCEDURE
Catchwords: Application to set aside final order of the court – whether r46.08 applies where the party fails to appear on their own application – principles to be applied
Legislation Cited: County Court Civil Procedure Rules 2018 (Vic) r46.08; County Court Act 1958 (Vic), s73
Cases Cited:Nicholson v Nicholson [1974] 2 NSWLR 59; Maxwell-Smith v Donnelly [2012] FCA 154; Malak v Malak [2016] FamCAFC 114
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Gregory Doran, Nevett Ford Lawyers | |
| For the First Defendant | In person, by telephone |
HIS HONOUR:
Background
1 This application made by the first defendant Ross Douglas Hudson (“Ross”) has come before me in urgent and unorthodox circumstances. The plaintiff is Troy Cameron Hudson (“Troy”). Ross and Troy are father and son (respectively). Because they share a last name, it is convenient for me to refer to them by their first names. No disrespect is intended. After considering the material submitted by the parties and hearing their submissions, I indicated that I would be making orders dismissing Ross’s purported application with costs and would give full reasons for those orders as soon as possible. These are those reasons.
2 Ross and Troy settled the substantive proceeding by a Deed of Settlement and Release (“Settlement Deed”) dated 17 December 2018. The Settlement Deed describes the background to the proceeding and settlement as follows (I have adopted the definitions in the extract below in the balance of these reasons):
“A.Troy has brought proceedings against Ross as first defendant and Roslyn Hudson as second defendant (“Roslyn”) claiming relief in action no CI-18-01202 in the County Court (“the proceeding”).
B.Troy has not served Roslyn with the proceeding and presently seeks no relief against her.
C.Troy is the registered proprietor of the property described in certificate of title volume 9573 folio 515 and situate at 225 Lynche Road, Bass (“the property”).
CC.In or about February 2013 Troy and Ross entered an agreement for the purchase of the property by which Troy became registered proprietor of the property (“the agreement”).
D.Troy financed his contribution to the purchase of the property with a loan from Westpac Banking Corporation (“the Westpac mortgage”) for $237,500.
E.Ross contributed the balance of the purchase price of the property, the stamp duty and other costs of sale through monies loaned to him by his mother.
F.Troy refinanced the Westpac mortgage on 21 May 2015 (“the refinanced date”) with a loan from the ANZ Bank (“the ANZ mortgage”).
G.As at the refinanced date the payout figure on the Westpac mortgage was $229,620.21.
H.In the proceeding, Troy seeks, among other things, an order for possession and sale of the property.
I.Ross has filed and served a defence in which he denies that Troy is entitled to the relief claimed.
J.The proceeding has been subject to a judicial resolution conference held on various dates between 2 October and 17 December 2018.
K.The parties have reached a settlement of the dispute between them relating to the agreement, the property and the proceeding and now wish to record the settlement in the terms following.”
3 In broad terms, the Settlement Deed provided:
· for a series of payments by Ross to Troy totalling $300,000, to be paid on specified dates beginning on 29 March 2019 and concluding on 17 May 2020, with the first payment of $50,000 due on 29 March 2019;
· that the payments were to be made by Ross into the trust account of Troy’s solicitors, Nevett Ford;
· that Ross was to be responsible for the outgoings and mortgage payments in respect of the property pending payment in full of the agreed instalments;
· subject to Ross making the payments and complying with his other obligations under the Settlement Deed, that Troy would transfer the property to Ross;
· for the making of consent orders that the proceeding be struck out with no order as to costs;
· for the consequences of default by Ross, including that Troy may reinstate the proceeding and apply for judgment for possession of the property and costs, the subsequent sale of the property and the distribution of the proceeds;
· that default may be proved by an affidavit sworn by Troy’s solicitor exhibiting a copy of this deed filed with the court and served on Ross; and
· that time was of the essence of the Settlement Agreement.
4 By an affidavit sworn on 8 April 2019, Gregory Doran of Nevett Ford, Troy’s solicitor, deposed (among other things) that Ross had not paid to the Nevett Ford trust account the sum of $50,000 as was required to be paid by 29 March 2019, and nor had the $50,000 been paid directly to Troy. On 24 April 2019, Judicial Registrar Burchell made orders in Chambers based on correspondence dated 9 April 2019, setting out in “other matters” the background to the settlement and alleged default and ordering that the court proposed to make the following orders, unless an objection was received:
“1. The proceeding is reinstated.
2.Judgment for the Plaintiff against the First Defendant, Ross Douglas Hudson.
3.The Plaintiff recover possession of the land described in Certificate of Title Volume 9573 Folio 515 situated at and known as 225 Lynche Road, Bass Victoria.
4.The First Defendant pay the Plaintiff the sum of $2,804 in costs.”
5 Ross emailed an objection with only minutes to spare on the deadline set by the Judicial Registrar. Troy’s application for the orders foreshadowed by Judicial Registrar Burchell came on for hearing before the Judicial Registrar on 3 June 2019. Troy was represented by his solicitor Mr Doran, and Ross appeared in person. At that hearing, Troy relied on Mr Doran’s affidavit sworn 8 April 2019 referred to above, and a further affidavit of Mr Doran sworn on 30 May 2019. Ross relied on an affidavit apparently circulated in draft in late May, but sworn by Ross on 3 June 2019, the morning of the application (“Ross’s 3 June Affidavit”).
6 Ross’s 3 June Affidavit commences by confirming that he is Troy’s father and the ex-husband of the second defendant. It also notes that Ross’s mother Eileen Hudson (who was then 88 years old) lives with Ross at the property. The following 146 paragraphs of Ross’s 3 June Affidavit describe in considerable detail what Ross considered to be the relevant family background and circumstances leading to the purchase of the property and the issues in dispute in the substantive proceeding. These matters are not relevant to any issue before me. Ross’s discussion of the matters leading up to the Settlement Deed commences after paragraph 148 with a new paragraph 1 and following, under the heading “The Mediation and Direction Hearing process and its effect on me”.
7 In this section of Ross’s 3 June Affidavit, Ross relevantly deposes (in substance) as follows:
· He is a life-long acute anxiety sufferer, having been diagnosed in July 2015 after the breakdown of his marriage. He takes medication for his anxiety and one of the side-effects of his condition and medication is fatigue, leading to diminished attention.
· The judicial resolution conference commenced on 2 October 2018 when Ross had a lengthy telephone conversation with Judicial Registrar Tran during which he outlined his proposal for resolving the dispute.
· This included a requirement that Troy agree to a realignment of the boundary of the property so that a 20 to 25 acre area of the property could be sold to the northern neighbour (“the realignment proposal”).
· I note in passing that the realignment proposal is not referred to expressly in Ross’s 3 June Affidavit, but it is apparent from the transcript of the hearing on 3 June that it is this aspect of Ross’s proposal that Ross later refers to as having been left out of the Settlement Deed.
· Ross first heard back from Judicial Registrar Tran that Troy was considering his proposal, but was later told by her that the matter would be relisted for 22 October 2018. Ross was unable to attend court that day in person but was present by telephone.
· Ross attended court on 13 December 2018 to continue the judicial resolution conference. Ross’s position in relation to the resolution of the matter had not changed since 2 October and again the matter did not resolve.
· Ross attended court again for the continuation of the judicial resolution conference on 17 December 2018. The process commenced at 11am and did not conclude until 9:25pm or thereabouts. During the negotiation, Ross again made clear that he required Troy to agree to the realignment proposal.
· For many hours Ross remained in the small meeting room adjacent to the court room waiting for finalisation of agreement on instalment amounts and payment dates and there were hours of delay as Mr Doran was preparing the Deed document.
· At approximately 9pm when Ross was reviewing the latest version of the Deed, he became aware that it did not contain the realignment proposal. He raised this with Judicial Registrar Tran.
· Judicial Registrar Tran “returned after a short absence having canvassed it with the Plaintiff and advised it was rejected. I was flabbergasted, and dismayed”.
· Ross had believed that the realignment proposal was put to Troy on 2 October 2018, and at no time had he been advised it was unacceptable or rejected. “I was exhausted, I was deflated-I should have walked away”.
· Ross felt that there was a “sense of encouragement and gentle coercion to accept the oversight of the essential agreement to be sought from the Plaintiff (and dismissed by him when the oversight was realised and it was put to him) was a ‘minor’ deficiency, and it would still be workable”.
· “Without my own support I succumbed, and as I am by nature, I remained optimistic common sense and cooperation would eventually prevail. After all, the Plaintiff has ‘a discretion’ whether and what type of action to exercise in the case of a ‘breach’”.
· At the time Ross signed the Settlement Deed, he had been investigating and negotiating the purchase of a local business which he was expecting to buy in mid to late February which he then decided to delay until mid-to-late March. “The expectation of buying an established business had given me a basis for estimating my financial capacity”, to make the instalment payments listed in the Settlement Deed.
· After Ross’s mother’s further hospitalisation in early February 2018 and changes to her diet and food preparation requirements, it was evident that Ross would not have the scope to be a business owner for an unknown period and his intention to buy the business was abandoned.
· “Unfortunately, Mr Doran has continued to seek an opportunity on a technical and partial breach of the Deed, to obtain for his client of premature, unfair and improper advantage”.
· “I contended that the Deed should and can be revised; to preserve the basic integrity of the underlying principles of it. That being that the Plaintiff would be paid in full his monies by 17 May 2020, at which time the deed would expire”.
8 The transcript of the hearing before Judicial Registrar Burchell on 3 June 2019 discloses that the Judicial Registrar heard at length from Ross, both at the outset of the application and in reply to submissions made by Mr Doran. In the course of the hearing:
· the Judicial Registrar observed that Ross had signed the Settlement Deed, he was supposed to pay $50,000 by 29 March, the application to enter judgment had been made in April and there had since been time for Ross to sell some assets or otherwise remedy the default, knowing that it was open to Troy to reinstate the proceeding and seek possession of the property;
· Ross confirmed that he was not capable of making the payments due under the Settlement Deed;
· Ross stated that Troy could be guaranteed the payment due under the Settlement Deed by 17 May 2020, if he agreed to the realignment proposal;
· Ross agreed that at the time he signed the Settlement Agreement he had been advised that Troy had rejected the realignment proposal;
· Mr Doran submitted that there was no evidence before the Judicial Registrar as to any matters that would otherwise bring undone, or vitiate the enforceability of, the Settlement Deed; there was no suggestion of fraud and it was not asserted that Ross lacked the legal capacity to sign the Settlement Deed;
· in the course of Ross’s lengthy reply, there was a brief reference to Ross being subject to “implied coercion to sign” the Settlement Deed, which appeared to be a reference to no one suggesting to him that they should “come back in a week’s time” and his impression that the “mindset” of Judicial Registrar Tran was that “we are coming up to a Christmas closure… let’s get it wrapped up”.
9 At the conclusion of submissions, Judicial Registrar Burchell delivered detailed oral reasons. Those reasons set out the background to the proceeding and summarise the terms of the Settlement Deed and the relevant parts of Ross’s 3 June Affidavit. The Judicial Registrar noted that, although there was some disappointment on Ross’s behalf that his realignment proposal had been rejected by Troy, this had been supplanted by his plans to purchase a local business to enable him to pay the instalments pursuant to the Settlement Deed. She then observed that, unfortunately for Ross, what then occurred was that in early February 2019 he was unable to work or commit to the purchase of the business because of his mother’s ill-health. The Judicial Registrar then stated:
“In my view, although it is unfortunate that the circumstances changed for the first defendant in early February 2019, he made choices about the application of his finances. He submitted to the court that he did have assets that he could put on the marketplace in a valuation of $187,000 and has chosen not to engage agents to sell those assets in circumstances where, because of his anxiety and being a primary caretaker of his mother, he is unable to personally sell those assets.
Further, it is not the fault of the plaintiff that the first defendant has been unable to pursue the opportunity of the local business which he was relying on to pay the instalment payments listed in the deed and signed on 17 December 2018. In addition, the first defendant submitted that he could find $10,000 to pay a surveyor in relation to the realignment of the boundary-therefore, there again is a forensic analysis in not applying funds available to the first defendant pursuant to his obligations under the deed of settlement.
Mr Hudson was of the view that there was an interpretation open to the parties that the amount agreed to be paid to the plaintiff could be paid as a balloon on 17 May 2020 and that the parties were not bound by the instalments set out at clause 1.1. In my view, that is an incorrect interpretation of those conditions and it was clear on the terms that $50,000 was to be paid by 29 March 2019 and Mr Hudson has either chosen not to pay that amount by that date or cannot pay the amount by that date, and therefore he is in default of the terms of settlement.
Given the circumstances that Mr Hudson finds himself in, the plaintiff can have no confidence that the first defendant can pay the instalments as and when they fall due, which is precisely the reason why there was that default clause contained in the deed—to give the plaintiff security that if the first defendant was unable to avail [himself] of the opportunity to raise the funds, that the property could then be sold and the amount agreed to be paid between the parties would be raised through liquidation of that asset.”
10 In concluding her reasons, the Judicial Registrar noted that it was open for Ross to, within 14 days, appeal her decision to the Duty Judge or “at the time of the possession of the property, seek a stay of the sale if he is of the view that his mother has an interest in the property, and make those submissions to the relevant Duty Judge”. The Judicial Registrar then proceeded to make the orders reinstating the proceeding, entering judgment for Troy against Ross and that Ross recover possession of the property, as foreshadowed in her earlier orders dated 24 April 2019 set out above (“JR Burchell’s 3 June Orders”). The only variation from those orders was that the amount of the costs was increased and fixed at $5,000.
11 Despite the Judicial Registrar explaining to Ross that he had 14 days within which to apply to the Duty Judge to review her decision, he apparently took no action in relation to Judicial Registrar Burchell’s 3 June 2019 Orders until 1 October 2019. What happened on that date is explained in the “other matters” section of the orders of her Honour Judge Marks dated 1 October 2019, which includes the following (emphasis added):
“6. On 19 June 2019 the plaintiff obtained a warrant for possession.
7.That warrant was due to be executed today at 11am. Shortly before 11am the first defendant approached the Court saying he wanted to seek a stay of the execution of the warrant, so that he can make a late application for review of the Judicial Registrar’s decision of 3 June.
8.The first defendant gave some explanation for his delay in filing the notice for review, and in making this application for a stay. He is self represented and has been seeking help from Justice Connect and a mental health law centre. He has communicated with the self represented litigant co-ordinator at the Court about what needs to be done to review the 3 June decision. He has been looking after his elderly, ill, mother, who has been hospitalised recently. He suffers from severe anxiety and depression and is receiving treatment for that. Although that is not a satisfactory explanation for leaving this application (and the application to review the Judicial Registrar’s decision of 3 June) to the last minute, the Court is satisfied that the delay is not a reason that he should be stopped from seeking to review the decision of the Judicial Registrar on 3 June in the circumstances.
9.The orders made provide for the hearing of the notice for review (to be filed by the first defendant), such hearing to take place on 25 November 2019. It will be a de novo (new) hearing of the plaintiff’s application for an order for possession, made before a judge of this Court under Order 84 of the County Court Civil Procedure Rules 2018.
10.The first defendant was asked today what defence he had to the fact that he signed the Deed, and by it consented to judgment for possession if he did not make necessary payments under it. He said that he has ongoing mental health issues and suffers from fatigue as a result of his medication and did not understand what he was signing at the end of a lengthy mediation which continued into the evening before the Deed was signed. He also said that he felt he signed under some duress.
11.The first defendant will need to file affidavits swearing to the matters he wants to rely on by way of defence to the plaintiff’s claim seeking possession of the property. If he seeks to defend on the basis of his mental capacity at the time he entered the Deed, he will need to file medical evidence as to his mental capacity at that time.
12.The evidence he relied on today is inadequate. However, as the first defendant seeks time to file detailed evidence and to get help if he can with doing so, and as the property concerned is his home and that of his elderly mother, the balance of convenience weighs in favour of granting the stay.
13.The times ordered for filing documents must be complied with so that the parties are ready to proceed at the review hearing.
14.If the first defendant does not file a notice for review under Order 84.03(3) by 11 October 2019 or does not comply with other orders, then the plaintiff may apply under the liberty to apply ordered, to have the stay of the warrant of possession lifted.”
12 Her Honour then made orders staying the warrant of possession and adjourning Ross’s summons until 4pm on 25 November 2019 and setting a timetable for Ross to file a notice seeking review of Judicial Registrar Burchell’s 3 June Orders and supporting affidavits. Her Honour also made orders allowing for Troy to file any further affidavit he sought to rely on by 18 November 2019. Ross filed a form of Notice Seeking Review of Judicial Registrar Burchell’s 3 June Orders on 10 October 2019 (“Review Notice”). The grounds for review in the Review Notice included:
· the Judicial Registrar’s failure to “consider adequately the medical grounds, and mental health circumstances (and effects) on the First Defendant, at the hearing on 3 June 2019 itself, or during prior mediation between the parties”;
· at the hearing on 3 June 2019 Ross was unable to adequately represent himself “due to confusion, and his inability to accurately and appropriately explain his experience in circumstances; which adversely effected [sic] his capacity to participate in” the lengthy judicial resolution process between 2 October and 17 December 2018;
· during the hearing on 3 June 2019 Mr Doran “displayed behaviours” that distracted Ross and heightened the adverse effects of his medical condition at the time;
· during the hearing on 3 June the Judicial Registrar “did not accurately assess or understand circumstances or facts relevant to the First Defendant” and “did not adequately explain or conduct the hearing to afford the First Plaintiff [sic], as a [sic] unsupported Self Represented Litigant…sufficient explanation, opportunity to reflect and compose himself”;
· during the judicial resolution conference, Judicial Registrar Tran failed “to accurately or adequately represent the First Defendant’s offer for settlement to the plaintiff, and failed to accurately or in sufficient detail relay the Plaintiffs response to the first defendant-on each and every occasion”;
· Ross “was unfairly and unjustly disadvantaged by the manner in which the mediation was conducted by Judicial Registrar Tran, due to inadequate feedback, insufficient progressive summarising…or a full and sufficient explanation on the potential effects of the Deed on the First Defendant”;
· on 17 December 2018 the judicial resolution conference was of a duration of almost 10.5 hours and Ross “was exposed to, and included in, increasingly casual and inappropriate communications with and between Judicial Registrar Tran and her Associate”, which impaired his capacity to concentrate and exercise adequate and sustained sound judgment;
· “A combination of the First Defendant’s mental health, physical or mental capacity, intended or unintended breakdown in professional and independent behaviour, by court officials on 17 December 2018, coerced and caused the First Defendant to not have the necessary capacity to sign a Deed of Settlement, and understand the full and severe adverse consequences to him, inherent in the Plaintiff’s intent”.
13 On 26 November 2019, his Honour Judge Cosgrave made orders in chambers at Ross’s request, adjourning the hearing of the Review Notice to 9 December 2019 and extending the dates for Ross to file affidavit material. His Honour noted in “other matters” that Ross had attested in his email to the court on 20 November 2019 “to a number of health issues affecting both himself and his mother whom he cares for. Having regard to those issues, I adjourned the hearing for a period of 14 days”. In the meantime, on 18 November 2019 Troy had filed and served a further affidavit by Mr Doran, as required by the orders of her Honour Judge Marks made 1 October 2019. That affidavit included a detailed summary of what had occurred during the various sessions of the judicial resolution conference on 2 October and 13 and 17 December 2018.
14 Among other things, this affidavit exhibited documents confirming that a settlement offer including the realignment proposal had been put by Ross to Troy on 2 October 2019. Mr Doran deposed that he and Troy were concerned that the realignment proposal required the cooperation of external parties, including the “northern neighbour”, the local council, a surveyor and the Land Titles Office. He asked for the judicial resolution conference to be adjourned so he and Troy could consider the proposal further. When the judicial resolution conference recommenced on 13 December 2018, Mr Doran asked Judicial Registrar Tran to tell Ross that Troy rejected his 2 October settlement offer, including the realignment proposal. At the end of the negotiation on 13 December 2018, Troy and Ross signed a non-binding heads of agreement to form the basis of further negotiations. In his affidavit, Mr Doran confirmed that this document shows that “the proposal for the subdivision of the property had been ‘dropped’”.
15 Mr Doran’s affidavit also deposes that:
· apart from his assertions, Ross had provided no evidence of any diagnosis of any medical condition which may have affected or impaired him during the judicial resolution conference between 2 October and 17 December 2018 or in the hearing on 3 June 2019;
· a review of the transcript of the hearing on 3 June 2019 showed that Ross was able to represent himself and that he displayed no confusion, and that Judicial Registrar Burchell did explain the process and provided procedural fairness;
· during the judicial resolution conference on 17 December 2018 at about 8pm, Ross again proposed a settlement including the realignment proposal, which Troy instructed Mr Doran to reject and Mr Doran conveyed this to Judicial Registrar Tran; and
· Troy did not draw out the judicial resolution conference on 17 December 2018, but the negotiations leading to the settlement were long, intense and tough.
16 On 6 December 2019 his Honour Judge Murphy made orders by consent further adjourning the hearing of the Review Notice to 11 February 2020 and again extending the dates for Ross’s affidavits. Ross failed to file any affidavits by the dates ordered, or at all. Mr Doran swore a further affidavit on 10 February 2020, summarising what had occurred in the matter since 1 October 2019.
17 When the Review Notice came on for hearing on 11 February 2020 pursuant to the orders of Judge Murphy, her Honour Judge Marks was the Duty Judge. In orders made that day (“11 February Orders”), her Honour noted in “other matters” that the matter was called outside of the Court at the start of the hearing and there was no appearance for Ross and nor had Ross made any application to appear by video link (as occurred on previous occasions). Her Honour provided a brief background, including by referring to her orders for a stay made on 1 October 2019 and then noted as follows:
“4.It has now been over four months since that stay was granted, and those orders made. Twice the matter has been adjourned, and time limits have been extended by further orders.
5.Yesterday afternoon, the first defendant emailed the court seeking a further adjournment. He attached medical certificates dated 7 November 2019 and 10 February 2020, and an aged care support plan for Eileen Hudson. He was advised by the Self Represented Litigant Case Manager that any such application would need to be supported by an affidavit. He has not provided one.
6.He wrote this morning to the Self Represented Litigant Case Manager to advise that he is not persisting (for now) with an affidavit, and that he is seeking a deferment till March 2020 (maybe the 11th) and that the plaintiff’s lawyers ought to be aware of this and why he is asking for it.
7.The first defendant has not prosecuted the Notice Seeking Review of the Decision of the Court Constituted by a Judicial Registrar, which he filed on 11 October 2019. He has not filed any affidavit in support of it. He has not filed any affidavit in support of any application to adjourn the hearing of the Notice.
8.In those circumstances the matter will not be adjourned further. The orders below are made.”
18 Her Honour’s orders were:
“1.The first defendant’s Notice Seeking Review of the Decision of the Court Constituted by a Judicial Registrar filed 11 October 2019 is dismissed.
2.The first defendant pay the plaintiff’s costs of this application on the standard basis, to be assessed by the Costs Court in default of agreement.”
The 26 February Application
19 I referred at the outset of these reasons to the hearing coming before me on 26 February 2020 in urgent and unorthodox circumstances. It seems Ross received a final notice to vacate the property from the Sheriff’s Office on Monday 24 February 2020, giving a deadline of 10am on 26 February 2020. This prompted him to seek further urgent assistance from the court’s self-represented litigant case managers (“SRL Case Managers”).
20 As a result of that contact and assistance provided by the SRL Case Managers, late on 25 February 2020 Ross sent to the court by email a document using (in part) the language of a summons, but not in the proper form (“purported summons”). He also sent an email indicating that he sought interim relief overnight preventing the execution of the warrant on 26 February 2020, pending the hearing of the matters raised in his purported summons. Ross informed the SRL Case Managers that he would need to appear at any hearing by telephone.
21 On being appraised of these matters late on 25 February, I determined that I would seek to deal with all of Ross’s requests at 10.00am on 26 February 2020 and asked the SRL Case Managers to attempt to arrange an appearance on behalf of the plaintiff. By the time the matter was called on at 10.00am, Ross had emailed an unsworn affidavit and was present by telephone. Ross formally sought leave to appear by telephone and I granted that leave. Troy’s solicitor Mr Doran had sworn a further affidavit and appeared at the hearing on behalf of Troy.
22 Having given leave to Ross to appear by telephone, I noted that the affidavit he had sent was unsworn and I asked him whether he was able to confirm that the matters set out in the affidavit were true. He said that they were. I also explained to him (in substance) that I would hear from both parties in relation to his application to set aside the 11 February Orders, before deciding what (if anything) to do about the deficiencies in his purported summons and other material.
23 In his unsworn affidavit (as in Ross’s 3 June Affidavit), Ross commenced with a number of paragraphs relevant to the background to the substantive proceeding, but not relevant to the enforceability of the Settlement Deed or the procedural matters before me. In the section headed “Particulars specific to the orders sought today”, Ross referred to correspondence with Mr Doran concerning a possible further adjournment of the Review Notice fixed for 11 February 2020. A copy of that correspondence is exhibited to Mr Doran’s affidavit sworn on 10 February 2020. It confirms that Mr Doran had emailed Ross on 6 February 2020 suggesting an adjournment of the Review Notice until 25 February 2020. Ross responded by email on 7 February 2020 at 4:55pm, agreeing to the adjournment, but not to Troy’s proposed hearing date of 25 February 2020. His email states: “At the moment I am unable to make any undertaking as to when I shall be available for a new hearing”, and then sets out at length the circumstances of his own and his mother’s ill health, preventing him from attending to the demands of the hearing. He does, however, suggest a date for the next hearing of 10 March 2020. He concludes:
“If you are unwilling to make amendment to those dates I anticipate I will be seeking a deferment until then anyway, in light of my current carer responsibility, no organised support worker scheduled, and my state of health and impediments as outlined.”
24 Mr Doran responded by email later that evening, withdrawing the proposal to adjourn the hearing of Ross’s review notice until 25 February 2020 and confirming that Troy would seek to proceed on 11 February 2020. In the email, Mr Doran explained that it seemed clear to him and Troy that “you are never going to be ready to prosecute your application for review of the judicial registrar’s decision if what you are saying is correct”.
25 Returning to the content of Ross’s unsworn affidavit, this makes clear that Ross was aware that Troy had withdrawn the proposal to adjourn the hearing of the Review Notice and intended to proceed with the 11 February 2020 hearing. Ross then refers to having sent the email exchange between himself and Mr Doran on 6 and 7 February to the SRL Case Managers and asking them what he needed to do but notes that, “I misunderstood the instructions email back to me”. He also refers to the pressures of caring for his mother and having “sent a couple of emails to the SRL Case Managers around 5-7am [on the morning of 11 February, I assume], as I had given up finishing the Affidavit and needed to get some sleep”. Apparently referring to the emails sent to the SRL Case Managers, Ross asserted in his unsworn affidavit that he believed that he had “provided enough information” by the morning of 11 February 2020 to indicate that he continued to be unwell and was not in a position yet to present his case for the Review Notice.
26 In my view, Ross has not adequately explained his failure to carry out his expressed intent to seek an adjournment of the hearing on 11 February 2020, beyond what is referred to in the “other matters” section of the 11 February Orders. In particular, apart from his reference to being tired and needing to sleep, he apparently made no attempt to appear at the hearing by telephone as he had on previous occasions. Further, as noted in paragraph 7 of the “other matters” section of the 11 February Orders, Ross has not prosecuted the Review Notice as urged by Judge Marks’ orders of 1 October 2019. Notably, despite the guidance provided by Judge Marks’ orders of 1 October 2019, in the more than four months since those orders, Ross had not filed any affidavits concerning his medical condition during the judicial resolution conference or at the hearing on 3 June 2019 and he had not filed an affidavit properly explaining that delay or otherwise supporting any application to adjourn the hearing of the Review Notice.
27 To the extent that Ross seeks to rely on his emails and communications with the SRL Case Managers, they cannot be expected to interpret requests for assistance and emails explaining Ross and his mother’s health problems, as an application for an adjournment and submit this to the court accordingly. In my experience, the SRL Case Managers go to extraordinary lengths to work with and assist self-represented litigants to navigate the complexities of legal proceedings, but they cannot give legal advice or themselves prepare and submit court documents on behalf of self-represented litigants. It is ultimately the responsibility of the litigant themselves to undertake those tasks. This is something that Ross has consistently failed to do, despite the assistance he has been afforded.
28 At the commencement of the hearing, I said to Ross that I had reviewed as much of the background material as I could in the limited time available, including his unsworn affidavit. I explained to him that his comments concerning the substantive proceeding had effectively been superseded by his execution of the Settlement Deed, and the only issues that were relevant to the Review Notice concerned whether or not that Settlement Deed was enforceable in accordance with its terms. I said that it was therefore important that he focus his submissions on the circumstances in which he entered into the Settlement Deed and his alleged breach of that Deed.
29 I also explained to Ross that there was an additional complexity to the application before me because, on one view, the Review Notice had already been the subject of final determination in this court by her Honour Judge Marks on 11 February 2020. As a general rule, I had no authority to conduct any kind of review of that final order, and Ross’s only option was to appeal the order to the Court of Appeal. However, it was possible that r46.08 of the County Court Civil Procedure Rules 2018 (Vic) (“Rules”) might provide a basis for me to hear his application. I outlined, in broad terms, the effect of the rule and uncertainties affecting its application in the circumstances of this case.
30 Mr Doran submitted that s73(1) of the County Court Act 1958 (Vic), prevented any review of the 11 February Orders notwithstanding r46.08. I indicated to the parties that I considered the question of the application of r46.08 to be finely balanced, but I was inclined to the view (without finally determining the question) that it did permit me to revisit the 11 February Orders and that I was prepared to proceed on that basis for the purposes of determining Ross’s application. However, it was clear that r46.08 conferred a broad discretion as to whether to set aside or vary the 11 February Orders. I said to Ross that one matter I would need to consider in the exercise of that discretion was whether the Review Notice had any real prospects of success. That was why it was important for Ross to explain to me as best he could the matters on which he would rely on seeking to challenge the Settlement Deed.
31 After hearing further from both Ross and Mr Doran, I told the parties that I would be taking a short break, primarily to give Ross the opportunity to reflect on whether there were any other matters that he wished to raise in support of his challenge to the Settlement Deed. On resuming the hearing, Ross said there was nothing more he wanted to say about the matters I had raised. I then explained (in substance) that I was not satisfied that Ross’s challenge to the Settlement Deed had sufficient prospects of success to justify me exercising my discretion to re-open the 11 February Orders (assuming for that purpose that I had jurisdiction to do so). I was also mindful of the failure by Ross to prosecute his application as referred to by Judge Marks in the “other matters” section of those orders. I ordered as follows:
“1.The first defendant’s purported application by email dated 25 February 2020 seeking to set aside the orders of Her Honour Judge Marks made 11 February 2020 is dismissed.
2.The first defendant pay the plaintiff’s costs of and incidental to the purported application on the standard basis in default of agreement.”
Analysis
32 Rule 46.08 provides that:
“The Court may set aside or vary an order which affects a person where the application for the order-
(a)was made on notice to that person, but the person did not attend the hearing of the application; or
(b) was not made on notice to that person.”
33 Instinct might suggest that this rule should not be available to assist a party like Ross, who had failed to attend the hearing of his own application. However, there is authority at least for the proposition that the rule is not limited to an application by the party suffering the making of an order and is unlimited as to the parties who may apply. Accordingly, a party who has obtained an order without notice to another party may itself apply to have the order varied: Nicholson v Nicholson [1974] 2 NSWLR 59, see also Scott v Casualife Furniture Int Ltd (Hong Kong) [2005] VSC 463.
34 I accept that the circumstances of this case are not the same as those in the two authorities identified. However, these authorities clearly recognise that the rule has wide application and I am persuaded, on balance, that I should not read it down to exclude in all circumstances a case like the present, where the absent party failed to appear at the hearing of an application brought by that party. I am also satisfied that r46.08 operates (in effect) as an exception to s73(1) of the County Court Act 1958 (Vic), by manifesting the inherent jurisdiction of the court to set aside an order made against a person who did not have a reasonable opportunity to appear and present his or her case (Taylor v Taylor (1979) 143 CLR 1). On the other hand, the fact that Ross is in substance seeking to take advantage of his own failure, is in my view a factor that should weigh heavily in the exercise of the discretion conferred by the rule. What are the other factors I should consider in the exercise of my discretion?
35 Maxwell-Smith v Donnelly [2012] FCA 154 had a number of similarities to the present case. The appellants had filed a notice of motion seeking, among other things, a stay of an order for the issue of a writ of possession. The appellants had failed to appear at the hearing of the motion, having faxed a letter a few days earlier stating that one of the appellants would be unable to attend due to commitments for urgent surgery. The judge hearing the original application (Rares J) nevertheless considered the merits of the matters brought forward on the motion, including the affidavit sworn in support and written submissions that had been filed. Rares J concluded that there was no evidentiary basis upon which to defer the order for the issue of the writ of possession, also noting that there was no evidence before him of the first appellant’s medical condition, it only being the subject of an assertion in her submissions but not in an affidavit.
36 When the matter later came before Justice Yates, his Honour noted that the document on which the appellants sought to move for a review of the order of Rares J was, on its face, incompetent. However, gave the appellants leave to file it and noted that it referred to r39.05(a) of the Federal Court Rules 2011 (Cth), which is in relevantly the same terms as r46.08 of our Rules. After noting that the affidavit on which the first appellant relied did not adequately explain her failure to attend the hearing before Rares J, Yates J dismissed the application. His Honour held:
“I can see no basis upon which I should revisit the order made [by Rares J].
Plainly, that order was made in the absence of the appellants. However, I do not think that the absence of the appellants on that day has been adequately explained or justified on the evidence which is currently before me. In any event, Rares had the benefit of and consider the affidavit in support of the notice of motion and the appellants written submissions.
[The first appellant] has addressed me today on a variety of matters dealing with her dispute with the first respondent and other matters touching upon her bankruptcy. On a number of occasions I directed her attention to the need to address me on the judgement to which the present application relates. I have had regard to the matters that [the first appellant] has put to me orally as well as to the matters stated in her written notice of the oral argument she wished to put. Having considered those matters, there is, in reality, no additional matter that has been put forward which would support the relief sought …”
37 In Malak v Malak [2016] FamCAFC 114, the Full Court of the Family Court of Australia articulated the matters to which a court should have regard when considering the operation of the equivalent rule in the Federal Circuit Court Rules (r16.05) (see also Sampson (Trustee) v Taboada [2017] FCA 79, Burley J at [10]-[11]). The Full Court held at [95]-[96] as follows (citations omitted):
“The engagement of our 16.05(2) requires the exercise of discretion which is unfettered but nonetheless is to be exercised judicially bearing in mind the public interest in there being an end to litigation.
We have previously identified the matters to which the court must have regard in considering our 16.05(2). There are three criteria, each of which should usually be demonstrated before a judgement or order is set aside, namely:
1.Is there an adequate explanation proffered by the absent party for their failure to appear? If not, principles of the importance of finality would ordinarily see the relief pursuant to the Rules refused.
2.The necessity for an applicant to demonstrate an arguable case for the relief sought. That is, a case which is credible with real prospects of success. In other words, material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside.
3.No prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the court.”
38 Applying each of the criteria referred to above to the circumstances of this case, I have already observed that Ross’s failure to appear at the hearing before Judge Marks on 11 February (or even attempt to do so by telephone) is not adequately explained, for the reasons given (see [26]-[27] above). Turning to the second criteria, in my view, Ross’s application constituted by the Review Notice has no real prospects of success. Noting that any hearing of the Review Notice is a hearing de novo (that is, from the beginning), I have been unable to identify from the documents Ross has filed for the purposes of and since the hearing on 3 June 2019, the transcript of that hearing and his submissions before me, any sustainable basis for an order avoiding the operation of the Settlement Deed or excusing Ross’s breach of that Deed.
39 In particular, despite the asserted importance to Ross of the realignment proposal, it is clear that he knew at the time he signed the Settlement Deed that Troy had rejected the proposal. Indeed, the evidence as a whole suggests it is more likely than not that the realignment proposal had already been rejected on at least one earlier occasion (see [14] above). Thus I am doubtful about Ross’s evidence that he was “dismayed and flabbergasted” when it was rejected a second time. Regardless, there can be no doubt on the evidence that he well knew the document he signed did not include the realignment proposal. Further, I reject Ross’s suggestion that he was in any way coerced into signing the Settlement Deed, beyond the usual encouragement to settle encountered in all mediations. The matters Ross relies on in this regard are suggestive of no more than this. I otherwise respectfully refer to and adopt the oral reasons of Judicial Registrar Burchell extracted above (at [9]).
40 Turning finally to the question of prejudice, the delays Troy has encountered in seeking to implement the terms of the Settlement Deed and the judgment relying on that Deed have been prolonged. Further, it is notorious that when a process of enforcement of a warrant for possession is halted, it can take weeks and sometimes months to make arrangements to recommence the process. This is particularly the case where (like the present) the enforcement requires the presence of an ambulance and police officers. In those circumstances, and given the court has limited capacity to direct the sheriff to act any sooner than circumstances permit, I am satisfied that the prejudice to Troy of further delay could not be adequately addressed.
41 In making the orders dismissing Ross’s purported application, I did not overlook the effect of the enforcement process on Ross’s mother. In his affidavit sworn 25 February 2020 for the purposes of the hearing before me, Mr Doran deposes, among other things, that on or about 21 February 2020, he had a telephone conversation with Ms Glenys McNeight, the agent he had retained in relation to the execution of Troy’s warrant for possession. Ms McNeight informed Mr Doran that the Sheriff had an ambulance on standby to take Ross’s mother to hospital for the execution of the warrant for possession fixed for 26 February 2020. Given the other difficulties attending Ross’s application, it seemed to me that delaying the enforcement was merely putting off the inevitable, perhaps to a time when Ross’s mother’s medical condition had deteriorated further. I was satisfied that the presence of an ambulance to transport Ross’s mother to hospital was sufficient in all the circumstances to ensure that her medical needs would be attended to.
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Certificate
I certify that these 23 pages are a true copy of the reasons for decision of His Honour Judge Woodward delivered on 6 March 2020.
Dated: 6 March 2020
Simone Karmis
Associate to His Honour Judge Woodward
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