Mears v Sydney Anglican Schools Corporation

[2016] NSWCA 159

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mears v Sydney Anglican Schools Corporation [2016] NSWCA 159
Hearing dates:	1 July 2016
Decision date:	01 July 2016
Before:	Basten JA at [1] and [25]; Sackville AJA at [23]
Decision:	(1)   Dismiss the motion to call further evidence.  (2)   Refuse the application for leave to appeal from interlocutory orders made in the District Court.
Catchwords:	PRACTICE AND PROCEDURE – appeal – interlocutory orders refusing belated amendment of pleading – applicant said to be unwell at time of hearing – no application to trial court to reopen – no draft pleading available – evidence inadequate to warrant appellate intervention
Legislation Cited:	Civil Liability Act 2002 (NSW), Part 5
Cases Cited:	Mears v Sydney Anglican Schools Corporation [2013] NSWSC 535 Mears v Sydney Anglican Schools (No 2) [2013] NSWSC 876
Category:	Procedural and other rulings
Parties:	Grant Mears (First Applicant) Gloria Mears (Second Applicant) Sydney Anglican Schools Corporation t/as Roseville College (First Respondent) State of New South Wales (Second Respondent) Helen Daphne Firbank (Third Respondent)
Representation:	Counsel: Mr Mears for the Applicants Mr F F F Salama (First Respondent) Mr G J Sarginson (Second Respondent) Ms C O Gleeson (Third Respondent)   Solicitors: AM Legal Solutions Pty Ltd (First Respondent) Lea Armstrong, Crown Solicitor NSW (Second Respondent) Mervyn Finlay, Thorburn & Marshall (Third Respondent)
File Number(s):	2015/378516
Decision under appeal	Court or tribunal: District Court Jurisdiction: Civil Citation: Sydney Anglican Schools Corporation t/as Roseville College v Mears [2015] NSWDC 348 Date of Decision: 26 November 2015 Before: Taylor SC DCJ File Number(s): 2007/308335

Judgment

1. BASTEN JA: This matter involves an application for leave to appeal from an interlocutory judgment of Judge Taylor SC in the District Court delivered on 26 November 2015. The substantive order made on that occasion was to refuse leave to Mr Mears (one of the two applicants) to amend a cross-claim and join the second respondent in this Court (the State of New South Wales) and the third respondent (a school counsellor, Ms Firbank) in the proceedings.

2. There is also a motion pursuant to which the applicants seek leave to call further evidence in support of their application for leave to appeal and, if granted, the appeal.

3. The tortuous history of these proceedings has been recounted elsewhere and need not be repeated for present purposes. Briefly, the applicants, Grant Mears and Gloria Mears, enrolled their four daughters at Roseville College, operated by the first respondent, Sydney Anglican Schools Corporation, for their secondary education. [1] The girls were later withdrawn from the school and there was a dispute as to liability for school fees in an amount of $20,553.

   1. Mears v Sydney Anglican Schools Corporation [2013] NSWSC 535 (Garling J).

4. The contracts pursuant to which these fees were payable commenced in one case in June 1993 and, in a second, in March 2001. The precise date at which proceedings were commenced for recovery of the outstanding fees is not apparent, but it was some time in 2007. [2] The proceedings, brought by the school, were commenced in the Local Court.

   2. Garling J at [4].

5. The applicants sought to file a defence and, separately, a cross-claim. The defence was filed in June 2008 and the cross-claim in September 2008. The latter appears to have alleged a failure on the part of the school to discharge its contractual obligations and to adhere to representations made to the applicants in relation to the education to be provided. [3] The cross-claim was not allowed to proceed in the Local Court, apparently because it claimed amounts which exceeded the monetary jurisdiction of that Court.

   3. Garling J at [14].

6. The applicants appealed to the Common Law Division against the Local Court orders and obtained judgment in their favour setting aside the orders made in the Local Court. [4] The proceedings were remitted to the District Court. Garling J described the cross-claim as “18 pages long and … verbose, rambling and unfocused.”[5]

   4. Mears v Sydney Anglican Schools (No 2) [2013] NSWSC 876 (Garling J).

   5. Garling J at [16].

7. On 13 July 2015, Mr Mears filed a notice of motion in the District Court seeking a number of orders, including those seeking leave to join the State and Ms Firbank and leave to amend the cross-claim. Those matters came before Elkaim SC DCJ on 28 July 2015. The Court ordered that the proposed cross-claim be served by 25 September 2015. That did not happen and the matter came back before Elkaim DCJ on 16 October 2015. No further order was made with respect to amendment of the cross-claim, but the applicants were ordered to serve any affidavits on which they sought to rely by 19 November 2015.

8. When the matter came before Taylor DCJ on 26 November 2015, no amended cross-claim had been filed. Some indication as to the purpose of the cross-claim was given by the judge in the course of giving reasons for the orders made on that occasion. [6] The judge said that Mr Mears “seeks to cross-claim against the school and against its counsellor, Helen Firbank, in relation to the services provided by the school.” He also noted that the claim against the State was “for licensing Roseville College as an educational institution.”

   6. Sydney Anglican Schools Corporation t/as Roseville College v Mears [2015] NSWDC 348 at [2].

9. The judge indicated that no cross-claim had been filed, served or created because Mr Mears claimed that he required documents in order to be able to take those steps. [7] The judge also noted that the motion before him sought leave to refer to business records of the school which were said to have been “sighted by” the applicants in the course of the proceedings in the Local Court and also the issue of subpoenas for production “of documents material to the progress of the matter”.

   7. Taylor DCJ at [10].

10. The judge noted Mr Mears’ claim that the failure to comply with the directions was because “he was unable, in part due to his absence of legal training, to draft an appropriate cross-claim.” He said he was also “unable to draft subpoenas”. [8]

    8. Taylor DCJ at [13].

11. The orders made by the primary judge involved matters of practice and procedure, were interlocutory, and accorded with proper practice. Not only was there no draft of the proposed amended cross-claim, but little if any information was provided as to the basis of the fresh causes of action. With respect to the claim against the counsellor, it was not explained why any negligence on her part (if such were intended to be pleaded) was not conduct for which the school was vicariously liable. To the extent that it was sought to join the State in relation to licensing decisions made by the relevant statutory authority, it was not explained on what basis damages could be awarded in respect of the exercise of statutory powers of licensing, in favour of a third party, in the position of the applicants. The basis for such a claim is legally obscure and could, in any event, face defences under Part 5 of the Civil Liability Act 2002 (NSW).

12. In terms of the matters recorded above, the dismissal of the application for leave to appeal would be all but inevitable. However, the only ground of appeal set out in the draft notice of appeal seeks to rely on evidence of Mr Mears' medical condition in November 2015. It is necessary therefore to deal with the evidence, described as fresh evidence, sought to be tendered in this Court. That evidence may be summarised in the following terms. Mr Mears said that he had, from April 2014, required heavy opiate medication for chronic lower back pain and related symptoms. A year later, his general practitioner had strongly recommended that he cease taking opiate pain killers, advice to which he eventually acceded in October 2015.

13. In December 2015, he saw a doctor regarding his “recent severe mental health condition”, apparently arising from the side-effects of suddenly ceasing to take the opiate pain killers. She opined that the applicant was “unable to present documents in November due to unforeseen circumstances.” She stated that he was “completely unable to properly prepare the amended cross-claim that was supposed to be presented in mid-November due to the severe significant mental impact resulting from his acute withdrawal from the physical dependency.” The general practitioner referred him to a psychologist, who saw him for six sessions between 18 December and 2 February 2016. The psychologist expressed the view that Mr Mears “was not functioning at his normal capacity prior to our first meeting”.

14. There are three problems with this material. First, it could have been presented to the District Court in support of an application to set aside the interlocutory decision of 26 November and provide a further opportunity for the applicants to file an amended cross-claim. As counsel for Ms Firbank fairly noted, there is no restraint on the applicants making a further application so long as it is supported by a properly prepared notice of cross-claim. There might of course be other reasons on which even such a notice might properly be opposed.

15. Secondly, neither the chronology nor the medical evidence provided any explanation for the failure to serve the proposed cross-claim in accordance with the order made on 28 July 2015, or indeed at any time after the decision was made to prepare their cross-claim, which must have been prior to the notice of motion of 13 July 2015.

16. Thirdly, the medical evidence provided no explanation as to whether or not the statement made to the District Court, namely that the applicants needed further documents before being able to prepare the cross-claim, was true or false. Assuming it was true, the further evidence does not provide a basis on which one would expect the District Court to review its decision of 26 November 2015. If it were false, that should have been revealed.

17. The evidence proffered on behalf of the second applicant, Mrs Mears, was tendered in support of her application that her husband be granted leave to appear for her. The evidence is of no assistance in relation to the matters relied upon in support of the application for leave to appeal.

18. Mrs Mears stated in her affidavit of 2 May 2016 that she was “unfit to attend” any proceeding in the court and has been “unable to participate in the … preparations and proceedings in recent years.” The general practitioner whose brief report accompanied her affidavit stated that she would be “unable to attend court in regard to this case indefinitely.”

19. Mrs Mears gave consent to her husband appearing for her. Leave was granted for her husband to appear for her for the purpose of the application presently before this Court.

20. It is readily understandable that involvement in court proceedings is stressful to many litigants. That may be particularly so where the litigants appear in person and without legal assistance. In some cases, that will be attributable to the uncertainty of litigation and the fear of financial disaster in the case of loss. No doubt an anxiety based on that consideration would be exacerbated on receipt of advice, or in light of the belief, that the proceedings are likely to fail.

21. Limited weight can be placed upon the medical certificates provided by way of “fresh evidence”. The opinions expressed go well beyond the scope of the medical expertise of the authors. However, the more important reason for rejecting the evidence is that it provides no basis, even if accepted in full, for granting leave to appeal. This Court would not, whatever the circumstances of the applicants, grant leave to appeal in relation to a matter of practice and procedure in the District Court, where no error has been identified in the judgment below and where any issue as to the ability of the applicants to run the proceedings is a matter to be dealt with by the District Court on the evidence before it.

22. The Court should make the following orders:

1. Dismiss the motion to call further evidence.

2. Refuse the application for leave to appeal from interlocutory orders made in the District Court.

23. SACKVILLE AJA: I agree with the orders proposed by the presiding judge and with his Honour's reasons.

24. I would only add one comment. The Court was informed that the trial in the District Court, in relation to the proceedings as currently constituted, is set down for a period of seven days. Having regard to the unfortunate history of this litigation, it seems to me a matter of some importance that the trial proceed as scheduled.

25. BASTEN JA: The orders of the Court are as I indicated.

**********

Endnotes

Decision last updated: 06 July 2016