Keating v Keating
[2019] VSC 579
•26 August 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 00954
| MARY BRIDGET KEATING | Appellant |
| v | |
| JOHN KEATING & ELIZABETH KEATING | Respondents |
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JUDGE: | CAMERON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 July 2019 |
DATE OF JUDGMENT: | 26 August 2019 |
CASE MAY BE CITED AS: | Keating v Keating |
MEDIUM NEUTRAL CITATION: | [2019] VSC 579 |
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SUMMARY JUDGMENT – Application for summary judgment – Appeal from Magistrates’ Court – Appeal against costs order – Costs order made by consent – Whether real prospect of success – Civil Procedure Act 2010 (Vic) ss 63, 64 considered – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 referred to.
SUMMARY JUDGMENT – Application for summary judgment – Appeal from Magistrates’ Court – Refusal to re-open case – Whether denial of natural justice – Whether real prospect of success – Civil Procedure Act 2010 (Vic) ss 63, 64 considered – Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Roberts v Harkness [2018] VSCA 215 referred to.
LIMITATION OF ACTIONS – Application for summary judgment – Whether claim statute barred – Whether cause of action concealed by fraud – Whether real prospect of success - Civil Procedure Act 2010 (Vic) ss 63, 64; Limitation of Actions Act 1958 (Vic) ss 5, 6, 27 considered – Hamilton v Kaljo (1989) 17 NSWLR 381; CE Health Underwriting and Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (Supreme Court of Victoria, Batt J, 3 August 1995, unreported); Seymour v Seymour (1996) 40 NSWLR 358; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Levy v Watt (2014) 308 ALR 748; Fourniotis v Vallianatos (2018) 56 VR 85 referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D Hancock | James McConvill & Associates |
| For the Respondents | Ms G Jardine | Patten Robins |
HER HONOUR:
What is this case about?
John M Keating and Elizabeth Keating (the ‘Respondents’) have made an application for summary judgment to this Court. The summary judgment application is in respect of an appeal by Mary Bridget Keating (the ‘Appellant’) from orders of the Magistrates’ Court. Essentially, the Appellant’s basis for the appeal relates to a costs order by the Magistrate in the sum of $44,000, and the Magistrate’s determination that her claim was statute barred.
The Respondents say that there is no merit in the Appellant’s appeal whatsoever. And that is why they have sought summary judgment for the dismissal of that appeal which is now before the Court.
Background
The proceedings before the Magistrates’ Court concerned a motor vehicle which belonged to the Appellant. The vehicle is a Holden Commodore allegedly valued between $5,000 and $15,000. The vehicle came into the possession of the Respondents, was sold, and was subsequently destroyed. The Magistrate found, on the evidence, that the vehicle was sold on or about 20 February 2011 and was destroyed some years thereafter. The Appellant was living abroad when the vehicle came into the possession of the Respondents and remained overseas when it was sold.
On her own evidence, the Appellant learned that the Respondents had taken possession of the car sometime in February 2011. She made enquiries as to its whereabouts and was told by the Respondents that they had spent money on maintaining the car and wanted to be repaid before releasing it. The Appellant was informed by her son sometime in February 2011 that the car may have been sold. On 21 February 2011, the Appellant received an email from the Respondents indicating that they would not release the car to her unless and until she repaid them. The Appellant alleges that thereafter she made several further enquiries of the Respondents as to the location of the vehicle, but they were not forthcoming with information.
The Appellant filed a claim in the Magistrates’ Court on 17 March 2017. The claim alleged that the Respondents were liable for detinue and conversion and claimed damages as well as orders requiring the return of the car. The Appellant alleges that she had made efforts to file her claim by post on 15 January 2017, which claim was not accepted by the Court. There is no record of the Magistrates’ Court ever receiving any filing prior to the claim filed on 17 March 2017.
The Appellant’s claim was heard before Magistrate Smith on 13 April 2018, 11 May 2018, 25 June 2018 and 18 July 2018. The Appellant was unrepresented at the hearings on 13 April and 11 May but was represented by her solicitor, Ms Bradby, on 25 June and by counsel, Mr Ming, on 18 July. Critically, the orders which are the subject of the appeal to this Court were made on 18 July, when the Appellant was represented by counsel.
On 18 July 2018 Magistrate Smith gave judgment rejecting the Appellant’s claim. Although the Magistrate accepted that the Appellant may make out a claim for conversion on the facts before him, he nonetheless held that the claim was statute barred. Magistrate Smith considered that the cause of action accrued on 20 February 2011, being the date on which the Respondents refused to return the car and it was sold. From that time the Appellant was aware that if she wanted to protect her interests in the car, some action needed to be taken. Accordingly, for the purposes of any limitation period, time began to run from that date, that is 20 February 2011.
Following judgment, an application was made before Magistrate Smith on 18 July 2018 that the case be re-opened. This application was put on the basis that the Appellant said that she had more evidence in respect of her attempt to file proceedings within the prescribed time limit. Magistrate Smith, having caused the Court registry to be searched, satisfied himself that no further material was received by the Court within the period specified by the Limitation Act. On this basis, Magistrate Smith denied the application to re-open the case.
After receiving judgment, the parties’ counsel met to negotiate costs. The parties returned before the Magistrate and presented orders by consent for a payment by way of costs by the Appellant for $44,000. The orders being by consent, they were accepted by the Magistrate.
The grounds of appeal
The Appellant’s grounds of appeal are as follows:
(a) The Magistrate denied the Appellant procedural fairness by refusing to allow her to re-open her case to adduce further evidence of her attempts to file the complaint.
(b) The Magistrate erred in finding that the claim was statute barred, as that conclusion was not open to make given the weight of evidence demonstrating fraud or concealment on the part of the Respondents.
(c) The Magistrate failed to take into account a relevant consideration – the fraud or concealment on the part of the Respondents.
(d) The Magistrate erred in making an order as to costs which was manifestly excessive in the circumstances.
(e) The Magistrate erred in failing to enquire as to the calculation or justification of the quantum of costs ordered to be paid.
(f) The Magistrate erred in failing to:
(i) consider, or properly take account of, evidence demonstrating fraud and / or concealment on the part of the Respondents;
(ii) consider and / or apply s 27 of the Limitation Act; and
(iii) allow the Appellant’s claim.
Evidence of the parties
Evidence of the Respondents
At the hearing of their application for summary judgment, the Respondents relied upon the following affidavit evidence:
(a) affidavit of Jessica Garcia filed on 4 October 2018;
(b) affidavit of Jessica Garcia filed on 7 January 2019;
(c) affidavit of Jessica Garcia filed on 27 May 2019;
(d) affidavit of Jessica Garcia filed on 30 May 2019; and
(e) affidavit of Amber Tran filed on 8 July 2019.
The Court was taken in detail to particular exhibits to each of those affidavits.
Given the evolution of this proceeding, there were several versions of submissions filed with this Court by the parties. The Respondents confirmed that their outline of submissions dated 19 July 2019 were the submissions to which the Court ought have regard, and that all other submissions were superseded.
Evidence of the Appellant
The Appellant relied upon the following affidavit evidence:
(a) affidavit of Mary Keating filed 21 August 2018;
(b) affidavit of Gary Mrocki filed 23 November 2018;
(c) affidavit of Gary Mrocki filed 23 November 2018;
(d) affidavit of Gary Mrocki filed 23 November 2018;
(e) affidavit of Gary Mrocki filed 24 April 2019; and
(f) affidavit of Gary Mrocki filed 27 May 2019.
In respect of the affidavits referred to in paragraphs 17(b),(c) and (d) above, the Court notes that these appear to have been filed on a date preceding the purported date of the swearing of the affidavits. There was no evidence brought before the Court as to these discrepancies.
There are also issues raised by the Respondents in relation to some procedural irregularities in the proceedings before this Court, more specifically the late filing of documents. In relation to these issues, which I will address later in this judgment, the Court’s attention was drawn to the following evidence filed on behalf of the Appellant:
(a) affidavit of James McConvill filed 27 May 2019;
(b) affidavit of James McConvill filed 3 June 2019;
(c) affidavit of James McConvill filed 19 July 2019; and
(d) affidavit of Mary Keating filed 5 July 2019.
It was urged upon the Court that the Appellant would rely on her further outline of submissions dated 19 July 2019, which superseded all previous submissions.
Legal principles
Summary judgment
The application presently before this Court is for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (the ‘Act’). Section 63 provides:
Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
Section 64 of the Act, to which s 63 is subject, provides:
Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
The principles to be applied in an application of this kind are not controversial, and I do not understand them to be a matter of dispute between the parties. In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[1] Warren CJ and Nettle JA (Neave JA agreeing) described the relevant test under s 63 of the Act as follows:
It follows that, for present purposes, the test under s 63 of the Civil Procedure Act should be construed as one of whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success; that the “real chance of success” test is to some degree a more liberal test than the “hopeless” or “bound to fail” test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent’s case is not “hopeless” or “bound to fail”, it does not have a real prospect of succeeding.[2]
[1](2013) 42 VR 27.
[2]Ibid, 39 [29].
Notwithstanding their recognition that the test to be applied in this jurisdiction was more liberal than the ‘hopeless’ or ‘bound to fail’ test, the Court of Appeal nonetheless observed:
[I]t must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[3]
[3]Ibid, 40 [35(d)].
Natural justice
The Appellant’s submission that she was denied natural justice concerns the refusal by the Magistrate to allow her to re-open her case to elicit additional evidence. In this respect, the submission amounts to an allegation that she was denied procedural fairness.
It is a fundamental obligation of all courts and tribunals to ensure that parties before them are given a fair hearing. That obligation has been described by the High Court of Australia as ‘an essential attribute of a court’s procedures’.[4]
[4]Condon v Pompano Pty Ltd (2013) 252 CLR 38, 99 [156] (Hayne, Crennan, Kiefel and Bell JJ).
Whether procedural fairness has been properly afforded in any given case is primarily a practical question. As was observed by Gleeson CJ in Re Lam:
Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.[5]
[5]Re Minister for Immigration and Multicultural Affairs; Ex parte Hieu Trung Lam (2003) 214 CLR 1, 14 [37].
The practical question in a case of this kind is whether the party in question was given a reasonable opportunity to present their case, and to know the case to be advanced by the opposing party.[6] What is ‘reasonable’ in any given case will vary. In Roberts v Harkness, the Court of Appeal recently identified several matters to be taken into account by the court, including:
[6]Roberts v Harkness [2018] VSCA 215, [48] (Maxwell P, Beach and Niall JJA).
(a) the nature of the decision to be made;
(b) the nature and complexity of the issues in dispute;
(c) the nature and complexity of the submissions which the party wishes to advance;
(d) the significance to that party of an adverse decision; and
(e) the competing demands on the time and resources of the court or tribunal.[7]
[7]Ibid, [49].
Limitation of actions
As observed, the Magistrate’s principal reason for dismissing the Appellant’s claim was that it was statute barred. Section 5 of the Limitation of Actions Act 1958 (Vic) (the ‘Limitation Act’) provides, in relevant part:
Contracts and torts
(1)The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued—
(a)Subject to subsections (1AAA), (1AA) and (1A), actions founded on simple contract (including contract implied in law) or actions founded on tort including actions for damages for breach of a statutory duty;
(b)Actions to enforce a recognizance;
(c)Actions to enforce an award, where the submission is not by an instrument under seal;
(d)Actions to recover any sum recoverable by virtue of enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
(1AAA) An action for defamation must not be brought after the expiration of 1 year from the date of the publication of the matter complained of.
(1AA) Subject to subsection (1A), an action for damages in respect of personal injuries must not be brought after the expiration of 3 years from the date on which the cause of action accrued.
(1A)An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than 3 years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows—
(a)that he has suffered those personal injuries; and
(b)that those personal injuries were caused by the act or omission of some person.
Also relevant is s 6, which provides:
Successive conversions of goods
(1) Where—
(a)any cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person; and
(b)before he recovers possession of the chattel, a further conversion or wrongful detention takes place—
no action shall be brought in respect of the further conversion or detention after the expiration of six years from the accrual of the cause of action in respect of the original conversion or detention.
(2) Where—
(a) any such cause of action has accrued to any person; and
(b)the period prescribed for bringing that action and for bringing any action in respect of such a further conversion or wrongful detention as aforesaid has expired; and
(c)he has not during that period recovered possession of the chattel—
his title to the chattel shall be extinguished.
It is well established that for causes of action in tort which are actionable per se, the relevant period of limitation runs from the time of commission of the wrong.[8] With respect to a cause of action in conversion, that date is the date of the alleged improper use of the goods. Where a claim is in detinue, the limitation period does not begin to run until a demand for return of the goods, and refusal of that demand, have occurred.[9]
[8]O’Neill v Foster (2004) NSWLR 499. See also, R Balkin & J Davis, Law of Torts (LexisNexis Butterworths, 2013), 800 [28.9]; D Dal Pont, Law of Limitation (LexisNexis Butterworths, 2017), 113-114 [6.4].
[9]Ming Kuei Property Investments Pty Ltd v Hampson (1994) 126 ALR 313; Balkin & Davis, Law of Torts, 105 [4.62].
The prima facie limitations prescribed by the Limitation Act may be extended or postponed in certain circumstances. Relevantly to this case, s 27 provides:
Postponement of limitation periods in case of fraud or mistake
Where, in the case of any action for which a period of limitation is prescribed by this Act—
(a)the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or
(b)the right of action is concealed by the fraud of any such person as aforesaid; or
(c) the action is for relief from the consequences of a mistake—
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:
Provided that nothing in this section shall enable any action to be brought to recover or enforce any charge against or set aside any transaction affecting any property which—
(i)in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or
(ii)in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made by a person who did not know or have reason to believe that the mistake had been made.
I was taken to the recent decision of Croft J of this Court in Fourniotis v Vallianatos[10] which provides useful guidance as to the meaning of ‘concealed by the fraud’ for the purposes of s 27 of the Limitation Act. In that case, his Honour reviewed several authorities which went specifically to the question of whether dishonesty or moral turpitude was required (that is, common law fraud) or whether mere unconscionability was sufficient (fraud in the equitable sense).
[10](2018) 56 VR 85.
Justice Croft referred to several decisions of the New South Wales Supreme Court to the effect that common law fraud, or at least consciousness of the deceptive character of the conduct, is necessary.[11] In Hamilton v Kaljo, McLelland J considered the meaning of ‘fraudulently concealed’ for the purposes of the Limitation Act 1969 (NSW):
For my own part, I would regard it as a misuse of language, and unsound, to apply the statutory expression ‘fraudulently’ in s 55 to any conduct which did not involve some form of dishonesty or moral turpitude. I see no reason to think that the expression does not carry the same limited connotation as the expression ‘fraud’ where used in the Real Property Act 1900, s 42 and s 43, and equivalent legislation.[12]
[11]Ibid, 113-114 [129]-[133].
[12](1989) 17 NSWLR 381, 386[G].
That observation was subsequently applied by the Supreme Court of Victoria in CE Health Underwriting and Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd, where it was said by Batt J:
On the whole, whilst acknowledging the claim of equitable principles I prefer the reasoning of McLelland J and therefore proceed on the footing that (leaving aside equitable claims) ‘fraud’ means common law fraud and that intentional concealment is requisite.[13]
[13](Supreme Court of Victoria, Batt J, 3 August 1995, unreported).
Hamilton v Kaljo was also applied by the Court of Appeal of New South Wales in Seymour v Seymour, where Mahoney ACJ expanded upon McLelland J’s observations as follows:
In my opinion, there must be in what is involved a consciousness that what is being done is wrong or that to take advantage of the relevant situation involves wrongdoing. At least, this is so in the generality of cases. (There is in this as in many things, the problem of dealing with the person who ‘closes his eyes to wrong’ or is so lacking in conscience that he is not conscious of his own lack of proper standards).[14]
[14](1996) 40 NSWLR 358, 372[E] (Mahoney ACJ, Meagher JA and Abadee AJA agreeing).
Returning to Fourniotis, Croft J also referred to observations of Santamaria JA of the Victorian Court of Appeal in Levy v Watt[15] to the effect that mere unconscionability was sufficient to enliven s 27(b).[16] In that case, Santamaria JA quoted the following observations of Brightman J in Bartlett v Barclays Bank Trust Co Ltd (No 1) with approval:
“Fraud”, in the context of section 26(b), does not mean common law fraud or deceit. But it does seem to envisage conduct which, if not fraudulent in the more usual sense, is unconscionable having regard to the relationship between the parties: see Kitchen v Royal Air Force Association. “Fraud” is used in the equitable sense to denote conduct by the defendant or his agent such that it would be against conscience for him to avail himself of the lapse of time.
[15](2014) 308 ALR 748.
[16]Ibid, 772 [85].
Despite acknowledging the observations of Santamaria JA, Croft J nonetheless observed that they were made in obiter and indicated a preference for the approach of the New South Wales Supreme Court.[17] In my opinion, I prefer the analysis of Croft J; that is that the preferable interpretation of s 27(b) is that the relevant conduct must involve some dishonesty or conscious wrongdoing. That approach, in my view, better reflects the policy of the provision, namely to prevent litigants from protecting themselves by taking deliberate steps to conceal a cause of action.
[17](2018) 56 VR 85, 114 [135].
Analysis
The costs grounds
The Appellant’s fourth and fifth grounds of appeal concern the costs order assented to by Magistrate Smith. The Appellant submits that the order is manifestly excessive, and that it was incumbent upon Magistrate Smith to enquire as to the justification for the consent order before accepting it.
In my opinion, there is no merit in these grounds of appeal. I say that for the following reasons:
(a) the costs order was by consent of the parties, the order followed an adjournment, discussion and agreement between the parties, through their counsel;
(b) although the Appellant had been self-represented at other stages of the Magistrates’ Court proceeding, she was represented by counsel on 18 July 2018, the day of the costs order;
(c) there was no suggestion to the Magistrate by counsel for the Appellant that the costs order was excessive, nor was there any application to the Magistrate requesting the Court to consider whether the quantum of costs was justifiable;
(d) there was no request by the Appellant, through her counsel, that a fixed costs order was premature, ought not be made or that costs ought be taxed; and
(e) there is no evidence at all of any lack of consent, or duress, on the part of the Appellant in relation to the costs order.
It was suggested in oral submissions on behalf of the Appellant that she misunderstood the costs order because she understood it to be an inevitable consequence of an offer of compromise previously presented by the Respondents. Even taken at its highest, as I am bound to do in an application of this kind, the Appellant’s evidence does not substantiate that submission. In her affidavit filed 21 August 2018 the Appellant deposed that ‘[i]ndemnity costs were awarded against me because of the compromise agreement mentioned above, in the sum of $44,000’. There is no suggestion in that affidavit, or elsewhere in her evidence, that the Appellant’s consent to the costs order was the result of a mistake or misapprehension, merely that she understood it to be ‘because of the compromise agreement’.
In some circumstances the Court would have serious regard to the nature and content of consent orders. This is particularly the case where litigants are self-represented. However, in this case, the Appellant was represented and had the benefit of legal advice. It is not uncommon for Judges, Magistrates, or Tribunal Members to be presented with consent orders which may not concord with orders they may have made in the event that consent orders were not presented. This clearly was not the case on this occasion. The learned Magistrate responsibly and properly, in my view, made the orders which were proffered by consent of the parties. As I have observed, it may have been different were the parties not legally represented and properly advised, but they were.
For these reasons, in my opinion, the Appellant’s fourth and fifth grounds of appeal have no real chance of success.
The natural justice ground
The Appellant’s first ground of appeal concerns the Magistrate’s refusal of her application to re-open the case. The Appellant says that she was denied natural justice as she was not given an opportunity to elicit further evidence regarding her attempts to file proceedings before the expiration of the limitation period.
I do not consider that there is any merit in this ground of appeal. The transcripts of the proceeding before the Magistrate show that the Appellant was given every opportunity to present her entire case. She was granted two adjournments, firstly in order to call upon an expert witness about the value of the vehicle, and secondly to file evidence with respect to the limitation defence raised by the Respondents. It appears that the Appellant did not take advantage of that second opportunity.
In delivering his judgment the Magistrate made clear that he accepted the Appellant’s evidence that she had made attempts to file a statement of claim within the limitation period, but nonetheless observed that ‘there is no other evidence that this item was in fact delivered to the Magistrates’ Court’. The Appellant has not identified any evidence which could have been presented upon re-opening the case which would contradict that conclusion. In those circumstances, I do not consider that there is a real, as opposed to remote, chance of success in an argument that the Appellant has suffered any practical injustice as a result of the refusal to re-open her case.
The limitation ground
The Appellant’s remaining grounds of appeal identify allegations that the Magistrate failed to consider evidence of concealment by the fraud of the Respondents. Those grounds of appeal are also without merit.
In written and oral submissions made on her behalf, the Appellant identified several extracts of the transcript of proceedings before Magistrate Smith which, she says, contain evidence that the Respondents concealed the vehicle from her. The Appellant submitted that the Magistrate failed to give adequate weight to that evidence in determining that her claim was statute barred.
Those submissions are, with respect, misconceived. Section 27(b) of the Limitation Act applies where ‘the right of action is concealed by the fraud of any such person’ (emphasis added). The provision is concerned with conduct of a party who conceals a right of action, not simply where the underlying claim involves some concealment generally. Section 27(a) does provide for a postponement of the limitation period where an action is based upon the fraud of the defendant, but no such allegation was made in this case.
The learned Magistrate identified that the Appellant’s cause of action accrued on or about 20 February 2011, being the time at which her demand for return of the car was refused and she was placed on notice that it may have been sold. At that time the Appellant had knowledge of the material facts going to the essential elements of at least her cause of action in detinue, and likely that in conversion as well. Those facts were clear, and there was no evidence of deliberate concealment of them by the Respondents in a manner which would justify postponement of the limitation period. Even if it were said that the cause of action in conversion was concealed by the Respondents in a dishonest or fraudulent manner such as to postpone the running of the limitation period, s 6 of the Limitation Act prescribes that the limitation period runs from the first act of detinue or conversion, being the detention of the car in February 2011.
In my opinion, I do not consider that there is a real prospect of success for the Appellant in arguing that s 27(b) of the Limitation Act applies to postpone the limitation period in this case.
Other matters
Notwithstanding my findings above, it is nonetheless within the Court’s discretion under s 64 of the Civil Procedure Act to order a full trial on the merits where it is in the interests of justice to do so. In my opinion, there is no such justification in this case.
Since filing her appeal before the Supreme Court, the Appellant has on several occasions failed to comply with orders of this Court. Several reasons for those failures were contained in evidence of the Appellant’s solicitor, including:
(a) difficulties with the Supreme Court’s RedCrest e-filing system;
(b) delays in receiving copies of the transcript of the Magistrates’ Court proceeding, despite transcript not being ordered until February 2019, some six months after the Appellant filed her appeal; and
(c) the departure of two solicitors from the Appellant’s solicitor’s firm.
As a result of the Appellant’s delays, the hearing of the Respondents’ application has been adjourned several times. Although the Appellant is now in compliance with all orders, the proceedings before the Supreme Court have thus far been unnecessarily protracted. In light of those delays it is not, in my opinion, in the interests of justice for this proceeding to nonetheless progress to a full hearing on the merits. Much time and expense has already been committed to the proceeding, and significantly more is likely to be required to see it through to a final judgment. In this regard it is pertinent that the quantum of the underlying proceeding is between $5,000 and $15,000.
The Respondents also made submissions before me regarding the truthfulness of the contents of the Appellant’s affidavit material, which they say is another factor going to the exercise of my discretion under s 64 of the Act. Given my observations above it is not necessary to address this issue or make any positive findings as to the veracity of the Appellant’s evidence.
Decision
It follows from my observations above that, in my opinion, none of the grounds of appeal advanced by the Appellant has a real prospect of success. In these circumstances, the Respondents’ application for summary judgment on the appeal is granted.
Costs
At the hearing of the Respondents’ application for summary judgment submissions were briefly made on the question of costs of the application. Those submissions were not completely ventilated. Having reflected upon the submissions which were made I do not consider myself, at this stage, to be in a position to make a determination on costs of the application.
Accordingly, I will hear the parties on the form of orders and the question of costs.
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