Mason v Carroll
[2002] VSC 38
•8 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 20 of 2000
| DEREK BRETT MASON & HELEN ELIZABETH MASON | Plaintiff |
| v | |
| GEOFFREY MARK CARROLL & CAROL JEANETTE CARROLL | Defendant |
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JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2002 | |
DATE OF JUDGMENT: | 8 February 2002 | |
CASE MAY BE CITED AS: | Mason v Carroll | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 38 | |
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Procedure – Appeal from Master to Judge – Striking out defence for procedural non-compliance – r24.02(1)(b) Rules of Civil Procedure.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr. Wallace | Heinz and Partners |
| For the Defendants | In person |
HIS HONOUR:
By a writ issued out of this Court on 10 October 2000, Derek Brett Mason and Helen Elizabeth Mason seek possession of a residential property situated in a suburb of Ballarat against the defendants, Geoffrey Mark Carroll and Carol Jeanette Carroll. The basis of the claim is default under a mortgage.
The action has proceeded with Mr and Mrs Carroll representing themselves and has been through numerous interlocutory skirmishes, most of which have been caused by Mr and Mrs Carroll failing to comply either with Rules of the Court or with orders made by Masters. The matter came to a head when, late last year, an order was made by Master Wheeler requiring, finally, the filing and service of an affidavit of documents, (in a proper form and relating to relevant documents) and the service of appropriate further and better particulars of the defendants' defence. Their original defence did not comply with the Rules, being merely denials of allegations made by the plaintiffs.
Master Wheeler's order of 5 October 2001, was not the first order of a self-executing nature which had been made.
On 30 November 2001 the plaintiffs took out a summons seeking that the defence of the defendants be struck out. Master Wheeler heard that summons on 17 December and, on the basis of an affidavit of Michael Sean Cavanagh sworn 30 November 2001 and a supplementary affidavit of Mr Cavanagh sworn 14 December, made an order in terms striking out the defendants' defence pursuant to r.24.02(1)(b) of the Rules. He also ordered that the defendants pay the plaintiffs' costs. That order was made in the absence of Mr and Mrs Carroll, Mr Carroll alleging that he was ill at that time and that he was unable to attend.
Mr Carroll lodged a notice of appeal, (presumably on behalf of himself and his wife) which now comes before me today. In accordance with the relevant rules, that appeal is to be treated as a hearing de novo of the matter that was originally before Master Wheeler, and I have approached it on that basis.
Mr Carroll has again appeared for himself; the plaintiffs being represented by Mr Wallace of counsel. Mr Carroll was referred to the affidavit of Mr Cavanagh and I took him through that affidavit, paragraph by paragraph, in the course of which he conceded that all of the allegations in it, with the exception of a couple of errors as to dates, were true. An examination of the documents, or the best documents that Mr Carroll can rely upon as having been an attempt at compliance with Master Wheeler's order, reveals a sad lack of even rudimentary compliance. Some of the documents discovered in some of the purported affidavits are irrelevant documents relating to his medical history; the rest appear to have very little or nothing to do with the case.
I have heard Mr Carroll at length and it is difficult not to be sympathetic to someone who is completely at sea in a court of law and completely unable to comprehend the not simple rules by which courts operate. Nevertheless, this action has now been going for over a year. It has, presumably, swallowed up a large amount of money in costs. Many documents have been produced and the file is now running to three folders. It really should never have got anywhere near this far. I raised with Mr Carroll the possibility that, if he were to undertake to the Court that he would see a solicitor immediately, I might have been inclined to adjourn the matter for a few days, if the plaintiffs were agreeable to such a course. Mr Wallace for the plaintiffs, not surprisingly, was not agreeable to such a course. Had this course been followed I am sure it would have achieved nothing other than a delay in the inevitable result.
In the circumstances there would appear to me to be no reason why Master Wheeler's order should not have been made. It is justified by the affidavit of Mr Cavanagh. Accordingly, I have no option but to dismiss Mr Carroll's appeal.
The order of Master Wheeler will stand. There will be a further order that Mr and Mrs Carroll pay the plaintiffs' costs of this appeal.
I should add by way of addendum that it would seem that at this point Mr and Mrs Carroll’s interests would be best served by immediately entering into negotiations with the solicitors for the plaintiffs in order to reach some possible settlement of what Mr Carroll concedes is clearly a debt which he and his wife owe to the mortgagees. There may be some course which could be followed which may enable Mr Carroll to extricate himself from the position that he is presently in, but he will never be able to do so by means of any defence to the plaintiffs' claim in this case. Indeed, nothing I have seen or heard from Mr Carroll would suggest that he would have had any possibility whatsoever of successfully defending this claim even if he were capable himself of doing so.
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