McCourt v National Australia Bank Ltd
[2013] WASC 222
•5 JUNE 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: McCOURT -v- NATIONAL AUSTRALIA BANK LTD [2013] WASC 222
CORAM: MASTER SANDERSON
HEARD: 23 MAY 2013
DELIVERED : 5 JUNE 2013
PUBLISHED : 5 JUNE 2013
FILE NO/S: CIV 1809 of 2010
BETWEEN: DANIEL PATRICK REDDEN McCOURT
Plaintiff
AND
NATIONAL AUSTRALIA BANK LTD
Defendant
Catchwords:
Practice and procedure - Appeal from Registrar in relation to springing order - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr C S Gough
Solicitors:
Plaintiff: In person
Defendant: Minter Ellison
Case(s) referred to in judgment(s):
Nil
MASTER SANDERSON: This is a long‑running dispute between the plaintiff and the defendant. By January 2013, after many fits and starts, it had reached the point of where it was ready to be listed for trial. A status conference was held on 21 January 2013 before Registrar Whitby. The learned registrar made the following orders:
1.The plaintiff file and serve any further affidavit of discovery by 4 February 2013.
2.Unless by 5 March 2013 the plaintiff, by notice in writing to the defendant:
(a)specifies the documents he intends to tender at trial, and if inspection has not been directed, where the documents may be inspected; and
(b)advises the defendant which of the specified documents may be tendered by consent, and whether the authenticity of any of the remaining documents (specify which) is disputed and give reasons in writing as to why consent to tender the remaining documents is withheld
the statement of claim be struck out and the action be dismissed with costs.
3.The status conference be adjourned to 11 March 2013 at 11.15 am.
4.The costs of today be reserved.
It is common ground that the plaintiff did not comply with order 2(b). When the matter came on before the registrar on 11 March, she struck out the statement of claim and entered judgment for the defendant.
In an attempt to retrieve the position, on 15 March 2013, the plaintiff lodged an application for an extension of time to appeal against the registrar's orders of 11 March 2013. The matter came on before me on 28 March 2013. During the course of hearing submissions, I pointed out to the plaintiff (who is self‑represented) it was not really the decision of 11 March against which he needed to appeal. It was the earlier decision of the registrar on 21 January 2013. On that basis, I dismissed his application.
On 7 May 2013, the plaintiff lodged a further application which, although garbled in form, can be taken to be an application for an extension of time within which to appeal the registrar's decision of 21 January 2013 and an appeal. In support of that application, the plaintiff relies on an affidavit sworn 7 May 2013. It is the defendant's position the affidavit does nothing to advance the plaintiff's appeal, no explanation is provided for the delay in bringing the appeal and there is no merit in the appeal itself.
It is the case that much of the affidavit of the plaintiff is irrelevant. It deals at some length why the plaintiff did not attend the status conference on 10 December 2012. Of course, that is not relevant to the present question. The plaintiff admits he was at the status conference on 21 January 2013. The only explanation he offers for not complying with the springing order is found in par 14 of his affidavit. It is in the following terms:
Of the two parts of the springing order, I complied with part 1. Part 2 had two components (a) and (b). I complied with (a) and I believed that I had complied with (b). The order said to register your objection in writing. I didn't realise that I had an objection. I acknowledged that this was a default.
It must be said the terms of the order, particularly par 2(b), are not entirely clear. Order 2(a) is perfectly clear. The plaintiff was required to send a list of the documents upon which he intended to rely to the defendant. That is a perfectly proper trial direction. But by order 2(b), the plaintiff is directed to advise the defendant which of the 'specified documents' may be tendered by consent. That presumably refers to the documents specified in par 2(a). The plaintiff was not in a position to say which documents he intended to tender at trial could be tendered by consent. The defendant would have to advise the plaintiff as to which of the documents he had specified could be tendered by consent. It is also not clear why the plaintiff should advise the defendant as to any problems with authenticity of documents he intended to tender. A reading of the statement of claim does not make it apparent there is an issue between the parties as to the authenticity of some documents. However, that may be the case. Even if it is, there is a difficulty in interpreting par 2(b) of the orders.
It is the case an appeal against the registrar's decision was not brought promptly and it is not entirely clear from the plaintiff's affidavit why something has not been done sooner. However, the plaintiff is acting in person and it is clear the procedure in relation to appeals from decisions of registrars has caused him some difficulty. In the circumstances, I am satisfied it is proper to allow the extension of time within which to bring this appeal.
Further, I am satisfied the appeal should succeed. Paragraph 2(b) of the orders is confusing and, in my view, it is understandable the plaintiff did not appreciate precisely what he had to do. There is no suggestion a springing order was not appropriate. It is the terms of the springing order which provide the difficulty. To do justice to the plaintiff the appeal ought be allowed and par 2(b) of the orders ought be reworded.
I will hear the parties as to the precise form of orders and as to costs.
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