Manolini v Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 149 178)
[2019] WASCA 196
•2 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MANOLINI -v- RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 149 178) [2019] WASCA 196
CORAM: MURPHY JA
MITCHELL JA
HEARD: 21 NOVEMBER 2019
DELIVERED : 2 DECEMBER 2019
FILE NO/S: CACV 105 of 2019
BETWEEN: WAYNE MANOLINI
Appellant
AND
RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 149 178)
First Respondent
SHERYL MANOLINI
Second Respondent
SIRO MANOLINI
Third Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: KENNETH MARTIN J
Citation: RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178) -v- MANOLINI [2019] WASC 313
File Number : CIV 1532 of 2019
Catchwords:
Practice and procedure - Application for extension of time to file and serve appellant's case - Whether proposed appeal has any reasonable prospect of success - Turns on own facts
Legislation:
Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth), s 22
Result:
Application dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| First Respondent | : | J Taylor |
| Second Respondent | : | No appearance |
| Third Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | Corrs Chambers Westgarth |
| Second Respondent | : | In person |
| Third Respondent | : | In person |
Case(s) referred to in decision(s):
Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643
George 218 Pty Ltd v Bank of Queensland Ltd [2015] WASC; (2015) 303 FLR 231
JUDGMENT OF THE COURT:
Summary
In the primary proceedings, the first respondent (Bank) brought proceedings against the appellant and the second and third respondents. The Bank relevantly claimed repayment of money owing under a loan facility granted to the appellant and second respondent, and vacant possession of land which was subject to a first mortgage securing the debt.
On 13 August 2019, the primary judge granted summary judgment in favour of the Bank against the appellant and second respondent. Judgment was entered against them in the sum of $1,448,085.59 plus interest at the rate of $353.84 per day from 2 July 2019 until payment, and indemnity costs. The appellant and second respondent were ordered to give vacant possession of the secured property within 30 days.
On 11 September 2019, the appellant filed an appeal notice. Despite orders being made, the appellant has not filed an appellant's case or an affidavit of service of the appeal notice on the second or third respondents.
On 1 November 2019, the appellant filed an application in the appeal seeking the following orders:
1.Review of the rules of the court for application[.]
2.The application of rules, pursuant to the Supreme Court (Court of Appeal) Rules 2005, be dispensed with and make use of such most recent rules that are constitutionally compliant to section 2(3) Constitution Act 1889 (WA) and the Commonwealth of Australia Constitution Act; and
3.[E]xtension of time of forty-five days to comply: for [appellant] without professional counsel.
On 5 November 2019, the registrar issued a notice requiring the parties to attend on 21 November 2019:
1.To consider the appellant's application in an appeal filed 1 November 2019.
2.To show cause why the appeal should not be dismissed pursuant to rule 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) for failure to file and serve the appellant's case and for failure to file and serve the affidavit of service.
We are satisfied that there is no arguable merit in the appellant's appeal. As it would be an exercise in futility to grant the appellant a further extension of time to file an appellant's case, the application in the appeal and the appeal should be dismissed, for the following reasons.
Primary proceedings
The primary proceedings were commenced on 26 March 2019, in the name of 'Rural Bank Limited' as plaintiff.[1]
[1] Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 049 178) v Manolini [2019] WASC 313 (primary decision) [33], [36].
On 31 May 2019, the Bank became the successor in law to Rural Bank Ltd, under s 22 of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) (Transfer Act).[2]
[2] Primary decision [37] - [38].
On 11 June 2019, the appellant filed a 'Memorandum of Qualified Appearance', in which he provided an address for service and an email address. To any extent that this document operated as a conditional appearance to the writ, it became unconditional when the appellant failed to apply to the court within 14 days to have the question raised by the conditional appearance decided.[3]
[3] Primary decision [30] - [31], O 12 r 6(2) of the Rules of the Supreme Court 1971 (WA).
On 12 June 2019, the principal registrar ordered that the plaintiff be renamed 'Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 049 178)'.[4]
[4] Primary decision [36].
By amended statement of claim dated 26 June 2019, the Bank claimed, in effect, that:
(1)The Bank entered into a Facility Agreement with the appellant and second respondent under which it agreed to grant them loan facilities.
(2)The facilities were relevantly secured by a first registered mortgage over property known as Marabo.
(3)The Bank advanced money to the appellant and second respondent pursuant to the facilities.
(4)The appellant and second respondent defaulted on their obligations under the facilities.
(5)Notices of demand were sent to the appellant and second respondent terminating the facilities, and demanding payment of the outstanding balance.
(6)The appellant and second respondent failed to pay the outstanding balance of the facilities in breach of the Facility Agreement.
By chamber summons filed on 3 July 2019, the Bank sought summary judgment against the appellant and second respondent. The summary judgment application was supported by an affidavit of an officer of the Bank which verified the contents of the statement of claim and annexed relevant documents, and an affidavit of a solicitor acting for the bank deposing as to service of the notices of demand.[5]
[5] Primary decision [2], [4] - [7].
On 4 July 2019, the Bank's solicitors served copies of the chamber summons and supporting affidavits on the appellant by registered post sent to the address nominated on his memorandum of appearance.[6] The affidavit of the solicitor for the Bank deposed that the documents were also sent to the email address identified in the appellant's memorandum of appearance. Subsequently, the appellant used that email address to communicate with the Bank's solicitors.
[6] Primary decision [16] - [17], [19].
On 10 July 2019, the principal registrar made programming orders listing the summary judgment application for hearing on 13 August 2019. The appellant and second respondent were ordered to file and serve any affidavits in opposition to the application by 24 July 2019, and orders were made for the filing and service of written submissions.
The appellant filed an affidavit of Mr Rodney Culleton on 9 August 2019, which made various assertions, most of which were irrelevant to the issues raised by the summary judgment application.[7]
[7] Primary decision [69].
The appellant filed an affidavit of 12 August 2019, in which he in effect deposed that he had not been personally served with any documents and had never had any dealings with the Bank.[8]
[8] Primary decision [21], [50].
The hearing on 13 August 2019
The primary judge heard the summary judgment application on 13 August 2019.
At 10.41 am on 13 August 2019, the appellant attended in person at the bar table. He was accompanied by Mr Neil Pichinin and Mr Rodney Culleton at the bar table. He referred to both as his 'power of attorney'. Counsel for the Bank and the second respondent (who acted in person) objected to Mr Culleton being at the bar table. The judge asked Mr Culleton to leave the bar table.[9] Mr Culleton then sat in the public gallery.[10] His Honour allowed Mr Pichinin to remain at the bar table as a 'McKenzie friend', but did not permit him to address the court without leave.[11]
[9] Primary decision [8] - [10], [80].
[10] Primary decision [82].
[11] Primary decision [57].
The appellant sought to object to the court's jurisdiction over him by reference to issues said to concern the Crown. The judge overruled his objection. This resulted in the appellant and Mr Pichinin joining Mr Culleton in the public gallery. They left the courtroom together at 11.14 am.[12]
[12] Primary decision [8] - [10], [12] - [13], [82].
The hearing therefore proceeded in the appellant's absence.[13]
[13] Primary decision [14].
At the hearing, the affidavits noted at [12] above were read into evidence, and a 'Dobbs' certificate certifying the amount owing to the Bank under the facility was tendered.[14] Before leaving the court, the appellant read his own affidavit into evidence but did not seek to read the affidavit of Mr Culleton.[15]
[14] Primary decision [95] - [96]. See Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643.
[15] Primary decision [48], [69].
The primary judge then delivered summary ex tempore reasons for granting summary judgment and made the orders noted at [2] above, which are the subject of this appeal. More detailed written reasons for the decision were subsequently published.
In those reasons, the primary judge held that the appellant had raised no arguable defence against the summary judgment application. His Honour held that the affidavits relied on by the Bank established the debt and possession of land claims, and that the 'Dobbs' certificate issued under the facility and mortgage terms established the amount of the debt.[16]
[16] Primary decision [12], [96] - [97].
The appeal to this court
On 11 September 2019, the appellant filed an appeal notice in this court.
On 7 October 2019, the second respondent contacted the Court of Appeal office and advised that she had not been served with any appeal documents. An order was subsequently made for the appellant to file an affidavit of service of the appeal notice on the second and third respondents, neither of whom have filed a notice of respondent's intention. Despite that order being made, the affidavit has not been filed.
On 16 October 2019, the appellant lodged a document purporting to be an appellant's case, which was not accepted for filing because it did not comply with the Supreme Court (Court of Appeal) Rules (Rules). On 17 October 2019, the registrar extended the time for the appellant to file and serve an appellant's case to 31 October 2019.
On 1 November 2019, the appellant filed the application noted at [4] above.
On 5 November 2019, the registrar issued a notice for the parties to attend court on 21 November 2019 to consider the appellant's application and for the appellant to show cause why the appeal should not be dismissed for his failure to comply with the Rules.
On 8 November 2019, the appellant sent an email to the Court of Appeal office indicating that he could not attend on 21 November 2019. The Court of Appeal office replied indicating that the matter remained listed for 21 November 2019, and would not be vacated unless the appellant filed an application in an appeal and supporting affidavit.
On 19 November 2019, the appellant lodged an affidavit, which was not accepted for filing, relevantly deposing to his having a conflicting appointment with a general medical practitioner. On 20 November 2019, the Court of Appeal office emailed the appellant indicating that the affidavit was not accepted for filing, and that the matter remained listed for 21 November 2019.
The appellant did not attend on 21 November 2019 or arrange for a legal practitioner to attend on his behalf. There was no formal application for an adjournment of the hearing and the matters raised in the affidavit referred to above did not appear to us to justify an adjournment of the hearing. However, we made orders giving the appellant an opportunity to file and serve written submissions on the question of whether he should be granted an extension of time to file and serve an appellant's case, including in relation to whether there are any grounds of appeal which have reasonable prospects of succeeding. We ordered that the matters referred to in the registrar's notice to attend be dealt with on the papers, unless the court otherwise directed. The appellant did not take the opportunity to make further written submissions within the time provided for by the court's orders.
Disposition
The central question for this court is whether the appellant should be given a further extension of time in which to file and serve his appellant's case. That extension should not be granted, if it is apparent that the appellant does not seek to advance any reasonably arguable grounds of appeal. That is because it would be futile to grant a further extension of time if the appeal has no reasonable prospect of succeeding.
The following themes which the appellant seeks to advance emerge from the document lodged on 16 October 2019.
First, there is an argument, reflecting that advanced at first instance, that the primary court had no jurisdiction in the matter. Nothing in the confused submissions advanced at first instance or in the appeal provides any rational basis for denying the court's jurisdiction.
Secondly, the appellant claims that he was denied procedural fairness and a reasonable opportunity to present his case before the primary judge. There is no merit in that submission. Programming orders for the filing of evidence and submissions were made by the principal registrar well in advance of the hearing. There was no evidence before the primary court, and there is no evidence before this court, to support the appellant's assertions that he did not receive legible documents until the day before the hearing. The appellant was given a proper opportunity to present evidence and make written submissions in opposition to the application for summary judgment. The appellant was given an opportunity to be make oral submissions at the hearing until he chose to depart from it after his jurisdictional argument was rejected. There was no proper basis on which Mr Pichinin or Mr Culleton, neither of whom are legal practitioners, could have been allowed to represent the appellant in the proceedings.
Thirdly, the appellant in effect challenges the Bank's status as the successor in title to the Rural Bank Ltd. Evidence was given of the issue of a certificate under s 18 of the Transfer Act. The effect of s 22 of the Transfer Act was, in broad terms, to make assets and liabilities of Rural Bank Ltd the assets and liabilities of the Bank, and to make references to Rural Bank Ltd in the finance documents references to the Bank.[17] There is nothing to suggest any arguable error by the primary judge in relation to the operation of the Transfer Act.
[17] See George 218 Pty Ltd v Bank of Queensland Ltd [2015] WASC; (2015) 303 FLR 231 [15] - [47].
Fourthly, the appellant contends that the affidavits relied on by the Bank were made under the Oaths, Affidavits and Statutory Declarations Act 2005 (WA), which is 'not compliant' with s 58 of the Commonwealth Constitution. There is no merit in that submission. Section 58, which provides for Royal assent to Commonwealth Bills, has nothing to say about the enactment of State legislation.
Fifthly, the appellant contends that he was not properly served with the chamber summons materials. There is no merit in that complaint. The primary judge was plainly correct in finding that the Bank had effected good service of those materials upon the appellant. Service on the appellant's physical and email addresses had been deposed to by the Bank's solicitor in an affidavit which annexed relevant documents. It was well open to the primary judge to prefer the evidence of the solicitor, supported by the annexures indicating service had been effected, to the bare assertion in the appellant's affidavit that he had never received any documents in support of the chamber summons.
None of the other matters raised in the purported appellant's case give rise to any reasonably arguable basis for impugning the orders of the primary judge.
More importantly, nothing before us or before the primary court provides any basis for doubting that the judgment debt was owed by the appellant to the Bank, that the judgment debt had not been repaid or that the Bank was entitled to enter into possession of the property secured under the mortgage. There is no suggestion in the submissions advanced by the appellant of any arguable defence to the Bank's claim which could have justified the primary judge refusing the Bank's summary judgment application.
As it is apparent that the appellant does not seek to advance any grounds of appeal that have any reasonable prospect of succeeding, it would be futile to grant an extension of time to serve an appellant's case. The application for an extension of time should be refused. There is no basis for making any of the other orders sought by the application in an appeal. The appeal should be dismissed on the basis that the appellant has not filed an appellant's case as required by the Rules.
Orders
For the above reasons, the following orders should be made in the appeal:
(1)The appellant's application in an appeal filed on 1 November 2019 is dismissed.
(2)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell2 DECEMBER 2019
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