Kelly v Westpac Banking Corporation

The appeal concerned proceedings brought by Westpac Banking Corporation seeking to enforce a guarantee and obtain possession of the defendant's home. The defendant, representing himself, raised a defence under the Contracts Review Act 1980 (NSW). The primary judge had refused an application to adjourn the hearing date, despite the plaintiff failing to serve evidence in accordance with court orders and serving new evidence raising fresh issues only seven business days before the hearing. The defendant argued that this new evidence, which should have been disclosed during discovery, provided insufficient time to prepare for the hearing and respond to the new material. The appeal was heard by McColl and Gleeson JJA and Sackville AJA.

The central legal issue before the Court of Appeal was whether the primary judge had made a material error in refusing the defendant's application to adjourn the hearing. This involved considering whether the late service of evidence by the plaintiff, which introduced new issues and contained previously undisclosed documents, prejudiced the self-represented defendant and rendered the existing hearing date inadequate for a fair trial. The court also had to consider the implications of the plaintiff's failure to comply with earlier court orders regarding evidence service.

The Court of Appeal found that the primary judge had erred in refusing the adjournment. Their Honours reasoned that the late service of evidence, particularly documents that should have been disclosed earlier, created a significant disadvantage for the self-represented defendant. The court emphasised the importance of procedural fairness and the need for parties, especially those unrepresented, to have adequate time to prepare their case and respond to new evidence. The court concluded that the circumstances warranted setting aside the orders made by the primary judge.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and ordered that the orders made by the primary judge on 30 September 2014 be set aside. Westpac was ordered to pay the costs of that hearing. The hearing date of 13 October 2014 was vacated, and the matter was referred back to the Registrar to establish a timetable for further evidence, potential amendments to pleadings, and to set a new trial date.