McCourt v National Australia Bank Limited
[2018] WASCA 132
•31 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McCOURT -v- NATIONAL AUSTRALIA BANK LIMITED [2018] WASCA 132
CORAM: MURPHY JA
MITCHELL JA
HEARD: 24 JULY 2018
DELIVERED : 31 JULY 2018
FILE NO/S: CACV 1 of 2018
BETWEEN: DANIEL PATRICK REDDEN McCOURT
Appellant
AND
NATIONAL AUSTRALIA BANK LIMITED
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: TOTTLE J
Citation: McCOURT -v- NATIONAL AUSTRALIA BANK LTD [No 2] [2017] WASC 370
File Number : CIV 1809 of 2010
Catchwords:
Practice and procedure - Application to extend time for springing order - Turns on own facts
Legislation:
Nil
Result:
Applications dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In Person |
| Respondent | : | Mr W C J Zappia |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Commonwealth Bank of Australia v Quade [1991] HCA 55; (1991) 178 CLR 134
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
McCourt v National Australia Bank Ltd [No 2] [2017] WASC 370
Sims v Suda Ltd [No 2] [2015] WASCA 105
Williams v The Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSWCA 255
REASONS OF THE COURT:
This matter came before the court on 24 July 2018 to consider an application filed by the appellant on 2 July 2018 for orders, in effect, to extend the time for filing the appellant's case and to set aside or vary the registrar's 'decision' to dismiss the appeal.
At the hearing on 24 July 2018, the appellant also sought, and was granted, leave to file and serve two related applications dated 24 July 2018.
We dismissed the three applications and said that we would provide our reasons subsequently. These are our reasons.
The appellant's applications were brought in the context of an appeal against the primary judge's decision in McCourt v National Australia Bank Ltd [No 2][1] (primary decision).
The primary proceedings
[1] McCourt [No 2] [2017] WASC 370.
In the primary proceedings the appellant claimed damages against the respondent arising from the termination of a financing facility and the realisation of the respondent's securities over the appellant's properties.[2] The appellant alleged, in effect, that (1) the respondent breached an oral agreement made at a meeting on 21 October 2008; (2) certain representations were made on behalf of the respondent to the appellant between 21 October 2008 and 26 February 2009 to the effect that the respondent would not terminate the facility and would continue to provide financial accommodation; (3) the respondent acted unconscionably by denying the appellant an opportunity to refinance elsewhere; (4) the respondent wilfully and recklessly sacrificed the appellant's interests when exercising its power of sale over two of the properties over which it held security; and (5) the respondent had conceded liability at an earlier interlocutory hearing before the master.[3]
[2] Primary decision [1].
[3] Primary decision [5].
The judge found that the appellant's evidence was unreliable.[4] The judge found that (1) no oral agreement had been reached as alleged by the appellant;[5] (2) the respondent did not make the oral representations alleged;[6] (3) the appellant's allegations of unconscionable conduct were inconsistent with the contemporaneous documents and could not be accepted;[7] (4) the evidence did not establish that the respondent had acted in the absence of good faith, or that it had acted fraudulently, wilfully or recklessly in sacrificing the interests of the appellant as mortgagor;[8] and (5) there was no evidence that senior counsel for the respondent had admitted liability at an earlier interlocutory hearing before the master as alleged by the appellant.[9]
The dismissal of the appeal
[4] Primary decision [10] - [19].
[5] Primary decision [59] - [63].
[6] Primary decision [64] - [79].
[7] Primary decision [80] - [96].
[8] Primary decision [97] - [119].
[9] Primary decision [120] - [128].
The appellant's applications were brought in circumstances where the appeal had been dismissed for failure by the appellant to file and serve an appellant's case by 5 June 2018, pursuant to a springing order made by the court on 23 April 2018. The springing order was made against the background of a history of failures by the appellant to file and serve an appellant's case.
Following the dismissal of the appeal, the registrar, on 6 June 2018, issued a certificate of conclusion of appeal, which certified that the appeal stood dismissed for the appellant's failure to comply with the court's orders of 23 April 2018.
The appellant's applications
On 2 July 2018, the appellant attempted to file a document described as an 'appellant's case' which was not accepted for filing. On the same day, the appellant filed the application referred to in [1] above. He also filed an affidavit sworn 2 July 2018. By that affidavit, the appellant said, in effect, that he was not a trained legal practitioner and contended, in effect, that the registrar had, by her 'decision' on 6 June 2018, dismissed the appeal and had done so on the basis 'of formatting technicalities alone'.
The appellant, at the hearing on 24 July 2018, submitted, in effect, that the two applications referred to in [2] above contained versions of the appellant's case which the appellant would wish to file if leave to extend time to file the appellant's case were granted.[10]
Disposition
[10] Appeal ts 14 - 15.
There was nothing in the materials before the court which provided any, or at least any adequate, explanation for the failure to file and serve an appellant's case within the time required by the court's order of 23 April 2018. Also, the application of 2 July 2018 is misconceived insofar as it seeks to set aside the registrar's 'decision'. The registrar did not 'dismiss' the appeal for 'formatting technicalities', or at all. The certificate of the registrar merely recorded, administratively, the consequence of the appeal having been dismissed pursuant to the operation of the springing order made on 23 April 2018. These matters, together with the history of delay to date, are themselves prima facie good grounds for rejecting the appellant's applications.
Further, the document described as an appellant's case which the appellant sought to file on 2 July 2018 is not an appellant's case as required under r 32(4) of the Supreme Court (Court of Appeal) Rules 2005 (WA). It contains no grounds of appeal and no submissions in support. One section headed 'Conduct of the Bank and NAB Representatives'[11] raises a number of rhetorical questions and makes assertions about documents which, it is alleged, were produced at the trial but which, according to the appellant, had not previously been discovered.[12] It is said that this affected the appellant's ability to conduct his case and involved a denial of natural justice. However, no particularity is given to the complaint. It is not, for example, suggested that he applied for, but was not granted, an adjournment. Another section headed 'Exhibit Evidence Document Request'[13] also refers to documents which the appellant says 'would usually be removed from a trial bundle'[14] or which 'will be removed',[15] or in respect of which he intends to 'seek for the ruling on the relevant objections'.[16] The point of this appears to be to invite this court to survey the evidentiary material and reach its own conclusions on the admissibility and weight of the evidence, without identifying error by the judge. That is not the role of this court in an appeal.[17]
[11] See pages 5 - 6 of the document described as 'Appellant's Case' dated 2 July 2018.
[12] The documents referred to appear at pages 16 - 25 of the document described as 'Appellant's Case' dated 2 July 2018.
[13] Page 7 of the document described as 'Appellant's Case' dated 2 July 2018.
[14] Page 7 of the document described as 'Appellant's Case' dated 2 July 2018.
[15] Page 10 of the document described as 'Appellant's Case' dated 2 July 2018.
[16] Page 11 of the document described as 'Appellant's Case' dated 2 July 2018.
[17] Williams v The Minister Aboriginal Land Rights Act 1983 and The State of New South Wales [2000] NSWCA 255 [60] - [61].
The proposed iterations of the appellant's case in the applications referred to in [2] above also do not contain grounds of appeal accompanied by submissions. Whilst they raise general complaints about aspects of the judge's findings, they do so without identifying why the findings were not open to the judge on the evidence as a whole, and how the matters referred to might arguably lead to final orders different from those made by the judge.
It is to be observed that the appellant does not seem to suggest that material documents emerged only after the trial of which the appellant was unaware during the course of the trial.[18]
[18] Compare Commonwealth Bank of Australia v Quade [1991] HCA 55; (1991) 178 CLR 134; see also appeal ts 15.
Whilst this court must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case, and some leniency may be required in relation to compliance for the procedural rules in relation to a self‑represented litigant, in the end the allowances that can be made are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court.[19]
[19] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]; Sims v Suda Ltd [No 2] [2015] WASCA 105 [19].
Making due allowance for the appellant as a self‑represented litigant, there is nothing in the materials before this court to suggest that the appellant has some reasonably arguable ground of appeal against the primary decision. Accordingly, even if the matters referred to in [11] above were overlooked, it would not be in the interests of justice to grant an extension of time.
In all the circumstances, we dismissed the appellant's applications.
It may also be added that the respondent sought leave to file submissions in relation to the appellant's applications, and the appellant sought leave to file a document with annotations to the respondent's submissions by way of response to those submissions. We dismissed the late application for leave sought by the respondent, and, correspondingly, dismissed the appellant's consequential application to file an annotated response to the respondent's submissions.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
ASSOCIATE TO THE HONOURABLE JUSTICE MURPHY31 JULY 2018
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