McWilliam v Watson

[2000] NSWSC 757

CITATION:	McWILLIAM & ORS v WATSON & ORS [2000] NSWSC 757 revised - 12/04/2001
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 15356/92
HEARING DATE(S):	17 July 2000, 18 July 2000
JUDGMENT DATE:	17 July 2000
PARTIES :	Bruce McWilliam (First Plaintiff) Bruce Scott McWilliam (Second Plaintiff) Peter Bruce McWilliam (Third Plaintiff) Richard Anthony Watson (First Defendant) Phillip Gregory Davey (Second Defendant) Louis William Le Compte (Third Defendant)
JUDGMENT OF:	Adams J at 1

LOWER COURT JURISDICTION :	Supreme Court (Master)
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Master Harrison

COUNSEL :	Mr P R Glissan (First and second Plaintiffs) Mr B Shields (Defendants)
SOLICITORS:	John Cunningham (Plaintiffs) Ebsworth & Ebsworth (Defendants)
CATCHWORDS:	Appeal from Master - Self executing order striking out statement of Claim for non-compliance - Admissibility of fresh evidence - whether hearing on the merits - whether special circumstances required
LEGISLATION CITED:	Supreme Court Act 1970
CASES CITED:	Wickstead v Browne (1992) 30 NSWLR 1
DECISION:	See paragraph 6

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

MONDAY 17 JULY 2000

15356/92

BRUCE MCWILLIAM & 2 ORS v RICHARD ANTHONY WATSON & 2 ORS

JUDGMENT

1 HIS HONOUR: In this matter the Master made a self-executing order which had the effect of bringing to an end litigation brought by the present applicants. The timetable set by the Master was not complied with. A Notice of Motion was filed some ten months later, the effect of which was to seek an extension of that time limit. Not surprisingly this application was not sympathetically received, there being what appeared to be only inadequate reasons explaining the delay. Essentially, the reason put forward to the Master was that the plaintiffs were unable to finance the work which was required by the self-executing orders. Unbeknown to the Master a significant part of that delay, between two to three months perhaps, was due to negotiations for settlement undertaken on behalf of the plaintiffs (by Mr Andrew Forsyth, a solicitor who was a close personal friend and who therefore was acting without fee), a practical condition of which was that the application to amend the self-executing orders would not be filed. The plaintiffs and their solicitor, who appeared for them on the proceedings, were aware that Mr Forsyth had advised that the application should not be made whilst he was attempting to settle the matter but were unaware that this arrangement had been agreed to, if it had not actually been instigated, by the solicitor acting for the putative defendants. 2 It is most unfortunate that this omission occurred but I accept that it did not arise out of either negligence or tactical considerations. The affidavits which give rise to these facts are objected to by Mr Shields on behalf of the defendants on the ground that s 75A(8) of the Supreme Court Act 1970 governs their being read and that special grounds have not been shown justifying their reception. It has been argued on the applicant's behalf by Mr Glissan that s 75A(8) does not apply, having regard to the judgment of Wickstead v Browne (1992) 30 NSWLR 1, especially at 11, where Handley JA and Cripps JA said -

"This is not an appeal following the trial on merits but an appeal from an interlocutory order for summary dismissal on the grounds that the plaintiffs have failed to show any triable issue. The case falls within section 75A(7) of the Supreme Court Act 1970 and there is no requirement that the party tendering the further evidence to establish special grounds as is the case pursuant to section 75A(8) where the appeal is from the judgment if the trial was heard on the merits: see Martin v Abbott Australasia Pty Limited (1981) 2 NSWLR 430 AT 436-437."

3 It is clear that s 75A(8) itself draws a distinction between judgment following a trial and the hearing on the merits on the one hand, and judgment following a proceeding without a determination of facts on the other. I consider that the phrase "hearing on the merits" in the circumstances refers to a hearing in which a determination of facts is required in order to decide the point in issue and that it applies both to an interlocutory and to a final proceeding. Wickstead v Browne, as the passage quoted makes clear, concerned the legal question whether evidentiary materials placed before the court disclosed a triable issue rather than being placed before it for the purpose of making findings of fact, whether or not the evidence conflicted, as a necessary preliminary to giving judgment. 4 In this case it was necessary for the Master to determine whether there had been an adequate explanation for the delay in order to enliven her discretion to extend the time limits previously imposed. In my view there was, therefore, a hearing on the merits within the meaning of s 75A(8) and, accordingly, "special grounds" are required. Having regard to the nature of the jurisdiction, this phrase should not be used to exclude material evidence significantly changing the balance of justice at issue in the case below, especially in the instance of an impecunious plaintiff who was making a bona fide attempt, for appropriate reasons, to settle the litigation. 6 I am satisfied therefore that special grounds have been demonstrated in this case justifying the reception of the following affidavits: the affidavit of Bruce Scott McWilliam sworn 5 May 2000, and the affidavits of Andrew Dymock Forsyth sworn 9 March and 5 May 2000. I also receive the documents marked exhibits 1 and 2 and A, B and C on the voir dire. Subject to the question of privilege I admit into evidence that material. I admit into evidence the testimony of Andrew Dymock Forsyth on the voir dire.

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Last Modified: 04/23/2001