Mulligan v Westpac

[2016] NSWCA 273

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mulligan v Westpac [2016] NSWCA 273
Hearing dates:	27 September 2016
Date of orders:	30 September 2016
Decision date:	30 September 2016
Before:	Meagher JA at [1]; Payne JA at [11]; Schmidt J at [80]
Decision:	(1) Leave to appeal refused; (2) The applicants pay the respondents’ costs as agreed or assessed.
Catchwords:	PRACTICE AND PROCEDURE – court made orders for preparation and service of evidence in chief – respondents filed evidence referring to incorrect agreement – respondents discovered error prior to trial – whether primary judge erred in permitting respondents to tender agreement served late – whether the applicants suffered prejudice – whether primary judge erred in refusing to adjourn proceedings – whether primary judge erred in reserving the question of costs
Legislation Cited:	Australian Securities and Investments Commission Act 2001 (Cth) ss 12GF, 12GM Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 59, 60, 61, 98 Supreme Court Act 1970 (NSW) s 101 Uniform Civil Procedure Rules 2005 (NSW) r 42.7
Cases Cited:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 Crowley v Glissan (1905) 2 CLR 402 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 House v The King (1936) 55 CLR 499 In the Will of Gilbert (1946) 46 SR (NSW) 318 Kelly v Westpac Banking Corporation [2014] NSWCA 348 Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411
Category:	Principal judgment
Parties:	Katherine Mulligan (first applicant) Richard Mulligan (second applicant)   Westpac Banking Corporation (first respondent) St George Finance Limited (second respondent)
Representation:	Counsel: E Chrysostomou (applicants) J White / D Habashy (respondents)   Solicitors: Applicants self-represented Gadens Lawyers (respondents)
File Number(s):	2016/256023
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 2-4 August 2016 Before: Gibb DCJ File Number(s): 2014/209951; 2015/110215

Headnote

(This headnote is not to be read as part of the judgment.)

The applicants, Mr and Mrs Mulligan, are defendants in proceedings in the District Court of NSW brought by the second respondent, St George Finance Limited (SGF). SGF claims judgment against each applicant on the basis of loan agreements that were entered into between the applicants and AMG Capital Pty Limited (AMG Capital). AMG Capital assigned its rights under the loan agreements to SGF. On 10 July 2015 SGF filed evidence referring to the agreement purportedly effecting that assignment. However, the document referred to in the evidence filed was an agreement between SGF and AMG Corporate Pty Ltd, not AMG Capital.

On 24 November 2015 Olsson DCJ judge made orders for the preparation and service of SGF’s evidence in chief. After the expiry of the period allowed by Olsson DCJ, SGF served material correcting the error and identifying the correct document, which had been included in the court book (albeit unexecuted by SGF). The day before the hearing was to commence SGF served an executed version of the agreement.

The primary judge (Gibb DCJ) allowed the tender of the correct agreement; reserved the question of costs concerning the late served evidence; and adjourned the matter for approximately three months for further hearing. The applicants claim they suffered prejudice as a result of these decisions.

Held, Payne JA refusing leave to appeal (Meagher JA and Schmidt J agreeing):

(1) Re allowance of evidence served late: An important consideration is that SGF will continue to prosecute its case against the applicants even if the evidence about which the applicants complain is excluded: [56]. The Court is reluctant to grant leave to appeal in an interlocutory matter involving practice and procedure when reversal of the order would not avoid a trial: [57]. The applicants failed to demonstrate clear and irreparable prejudice; prejudice is not demonstrated by the mere fact that the late served evidence made it more likely that the applicants’ case would fail: [59]-[65].

(2) Re adjournment: The primary judge did not err in refusing to stand the matter over generally; the applicants had the benefit of a lengthy adjournment of almost three months in which to deal with the late served evidence: [66]-[71].

(3) Re costs: There was no prejudice occasioned by the trial judge’s decision to defer consideration of the question of costs, which may be agitated at the conclusion of the trial: [72]-[77].

Judgment

1. MEAGHER JA: I agree for the reasons given by Payne JA that this application for leave to appeal should be refused with costs.

2. The applicants’ position before the primary judge was that the late production and tender of plainly relevant material in part heard proceedings in the District Court should have resulted in the rejection of the tender, or in the adjournment of the proceedings for an indefinite period and on the basis that the respondent (SGF) pay the costs thrown away by the late tender and that adjournment.

3. In the exercise of her discretion in the conduct and management of the proceedings, the primary judge admitted the evidentiary material, deferred the cross examination by the applicants of any relevant witnesses of SGF until the further hearing of the proceedings in October 2016 and reserved the question of costs for consideration at the conclusion of the proceedings.

4. I agree with Payne JA that the primary judge is not shown to have erred in any relevant respect in relation to these rulings on matters of practice and procedure; and certainly not in any respect which might possibly justify the involvement of this Court at this stage of the proceedings.

5. These questions arose in the course of the trial in the following context. SGF’s pleaded case against the applicants relied on a discounting agreement between itself and AMG Capital. The critical evidence, to the tender of which the applicants objected, was a copy of that agreement signed by both parties. That document was first produced by SGF to the applicants on Monday 1 August 2016, the day before the hearing commenced. It had been received by SGF from AMG Capital over the preceding weekend. It was not suggested that before that time SGF was aware that AMG Capital had a copy of the document. On the contrary, in late November 2014 SGF’s solicitor, Mr O’Connor, had been advised by Mr Chan of AMG Capital that the latter did not have a copy of the agreement between SGF and AMG Capital which had been executed by both parties

6. However a copy of that agreement, executed only by AMG Capital, had been included in the Court Book served on the applicants on 22 July 2016 and the applicants had first been provided with a copy of that document as an attachment to an affidavit of Mr O’Connor sworn and served in December 2014. In that affidavit it was said, on the basis of information from Mr Chan, that the agreement between SGF and AMG Capital had been executed by SGF.

7. Thus the position immediately before 1 August 2016 was that the applicants were aware of the existence of a document which proved the execution by AMG Capital of the form of agreement pleaded. In addition they were aware that Mr Chan of AMG Capital maintained that that form of agreement had also been executed by SGF.

8. That position could have been confused by the affidavit of Ms Nguyen sworn in July 2015. That affidavit attached a paginated bundle of documents and referred to, as answering the description of the pleaded discounting agreement between SGF and AMG Capital, a copy of an agreement between SGF and a different entity, AMG Corporate, which was in that bundle. That error was apparently not discovered until July 2016 and was addressed by Ms Nguyen’s further affidavit of 29 July 2016. That affidavit identified as the document relied on, the copy of the agreement between SGF and AMG Capital, which was signed only by the latter and in the Court Book.

9. However Ms Nguyen’s error did not confuse the applicants. They appreciated that she had identified a document which did not evidence the pleaded agreement. In that state of affairs they could hardly have been surprised when on 29 July 2016 they received Ms Nguyen’s second affidavit which identified the correct document. Nor could they have been surprised, having regard to the content of Mr O’Connor’s earlier affidavit, when a copy of the correct document executed by SGF as well as AMG Capital, was produced and relied on.

10. That being the position the only forensic prejudice that the applicants might have suffered as a result of the late production of that copy of the executed agreement was not being given the opportunity to test sufficiently the authenticity of that document, including by cross examination of Mr Chan. That this was the asserted prejudice accorded with the submissions made by the applicants’ counsel to the primary judge, and in this Court. That potential prejudice was addressed by the adjournment of the proceedings, and the directions made by the primary judge, including that any cross examination of Mr Chan and Ms Nguyen be deferred. Any remaining prejudice could be addressed by an order for costs, which is yet to be determined by the primary judge.

11. PAYNE JA: The applicants for leave to appeal, Katherine and Richard Mulligan, are defendants in proceedings currently before the District Court brought by the respondent, St George Finance Limited (SGF).

12. The trial between the parties has commenced in the District Court before Gibb DCJ. As a result of the events the subject of this application for leave to appeal the trial has been adjourned, part heard, to 10 October 2016 for mention and 24 October 2016 for hearing. Accordingly, this application for leave to appeal has been dealt with as a matter of urgency.

13. The principal complaint made by the applicants is that the primary judge permitted SGF to tender certain evidence, which was served on the applicants before the trial commenced but after the date fixed by earlier orders of the District Court, without giving adequate consideration to ss 56-61 of the Civil Procedure Act 2005 (NSW) or the consequences of SGF’s failure to comply with case management orders. The applicants also complain about the terms of an adjournment granted by the primary judge and that her Honour reserved the question of costs on the tender of late evidence rather than making an award of costs in their favour.

Brief facts

14. There are two proceedings being heard together before the District Court. The relevant proceeding is 2015/110215 (St George Finance Limited v Mulligan). This proceeding concerns both SGF’s claims on its further amended statement of claim, and the applicants’ amended cross-claim. Proceeding 2014/209951 (Westpac Banking Corporation v Mulligan) is being heard together with the relevant proceeding. The statement of claim in that matter has been dismissed. The applicants’ cross-claim remains on foot in the District Court.

15. The present application for leave is brought only in respect of the SGF proceeding 2015/110215. In that proceeding SGF claims judgment against each applicant (for amounts of $292,374.62 and $82,319.14 respectively) on the basis of two separate loan agreements that were entered into between the applicants and a financier, AMG Capital Pty Limited (AMG Capital).

16. The purpose of the loans was to fund the applicants’ purchase, over five years, of units in a managed investment scheme. The applicants allegedly defaulted in their payment obligations under those loan agreements from October 2012.

17. SGF’s claims are made as an assignee of AMG Capital’s rights under each loan agreement. AMG Capital is the third defendant in the SGF proceeding 2015/110215.

18. In paragraph 16 of the further amended statement of claim SGF pleaded that pursuant to an agreement made in October 2006 between AMG Capital and SGF an assignment of the repayment obligations contained in the applicants’ loans with AMG Capital was made by AMG Capital to SGF.

19. Ms Nguyen, SGF’s Portfolio Assistant Manager, swore several affidavits in the SGF proceeding 2015/110215, including one dated 10 July 2015. In that affidavit, she stated that SGF and AMG Capital had entered into an agreement on 20 October 2006 which effected an assignment of the repayment obligations contained in the applicants’ loans with AMG Capital to SGF. However, the document exhibited by Ms Nguyen in her 10 July 2015 affidavit as being the agreement described above was an agreement between SGF and an entity called AMG Corporate Pty Limited, not AMG Capital.

20. The applicants, by their further amended defence, challenge the validity of the assignment in favour of SGF. By their amended statement of cross-claim, the applicants also claim damages against SGF pursuant to s 12GF of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and alternatively, an order that the court refuse to enforce the loan agreements against them, pursuant to s 12GM of that Act.

Relevant orders of the District Court

21. On 24 November 2015 the following orders were made by consent by Olsson DCJ for the case management of these proceedings:

...

3. Adjourn the proceedings to final hearing to commence 2 August 2016, noting an estimate of three days.

4. Direct the plaintiff to prepare the Court Book, to be provided to the trial judge at the commencement of the hearing, and to be served on the defendants on or before 15 July 2016, to comprise:

i. Current pleadings of each party

ii. The affidavit evidence to be relied upon by each party

iii. A bundle of documents, arranged in chronological order, comprising the annexures / exhibits to each affidavit to be relied upon at the hearing, and any further documents which either party proposes to tender at hearing (as provided for in paragraph 5 herein).

5. Direct the parties to exchange, on or before 1 July 2016:

i. copies of any further documents proposed for tender at the hearing;

ii. a list of affidavits to be read at the hearing, arranged in the order in which each affidavit will be read.

...

22. SGF did not comply with those orders in three respects which are the subject of complaint in these proceedings.

23. First, on 28 July 2016 at around 10.31 am SGF served on the applicants an email dated 16 October 2006 from Ms Paes, an executive of St George Equity Investment Finance, to a Ms Deng of AMG Corporate Pty Limited on the same date. To Ms Paes’ email was annexed a small spread sheet including the names of the applicants, and two versions of the discounting agreement, each in unexecuted form. One form of agreement identified SGF as the financier. The other identified St George Bank as the financier. Each identified AMG Capital as the counterparty.

24. Secondly, on 29 July 2016, the respondent served a further affidavit of Ms Nguyen, sworn on that date. Relevantly, that affidavit, at paragraph [14], identified an error in her July 2015 affidavit, being the incorrect reference to an exhibit namely a discounting agreement to which AMG Corporate was a party. Ms Nguyen stated that at the time of swearing her 10 July 2015 affidavit, the exhibit she was intending to refer to was an agreement between SGF and AMG Capital, whereas she had referred to an agreement between SGF and AMG Corporate. She corrected the page reference in the earlier affidavit so as to identify the discounting agreement relied on, which by that time was included in the court book, to which SGF and AMG Capital were identified parties.

25. This late evidence, being the relevant agreement pleaded in paragraph 16 of the further amended statement of claim, had been disclosed to the applicants in the context of the Westpac proceeding in 2014. It was part of exhibit FJO-1, an affidavit sworn on 4 December 2014 by Mr O’Connor (Westpac and SGF’s solicitor), which had been served in early December 2014.

26. The purpose of Mr O’Connor’s affidavit was to support an application to substitute SGF as the plaintiff in the Westpac proceedings. Each of the parties had formally notified the O’Connor affidavit on their respective lists of affidavits to be relied upon at the final hearing which, it will be recalled, was being heard together with the SGF case. Parts of the O’Connor affidavit were tendered by the applicants in the SGF proceeding and the remainder was tendered by SGF. The primary judge admitted the affidavit but reserved to the applicants liberty to re-agitate the question of admissibility in the October 2016 hearing. That version of the relevant agreement, however, whilst executed on behalf of AMG Capital, was not executed on behalf of SGF.

27. Thirdly, on 1 August 2016 the applicants were served with a version of the agreement dated 20 October 2006 between SGF and AMG Capital which was also executed on behalf of AMG Capital. It was this document which was identified by the applicants as critical to the present application.

The hearing before the primary judge

28. The primary judge heard this matter for three days between 2 and 4 August 2016.

29. Relevantly, for present purposes, examination of the transcript and the orders made by the primary judge reveals:

1. her Honour allowed SGF to tender the email dated 16 October 2006 from Ms Paes and two versions of the agreement in unexecuted form but not the small spread sheet including the names of the applicants;

2. her Honour permitted Ms Nguyen’s affidavit explanation for the mistake she had made in exhibiting an incorrect document to her affidavit to be read;

3. her Honour allowed SGF to tender MFI 1, which was the relevant agreement dated 20 October 2006 between SGF and AMG Capital which had been executed by each of the parties;

4. her Honour reserved the question of costs concerning the late served evidence;

5. her Honour did not permit SGF to call either Mr Chan (AMG Capital’s principal) or Ms Nguyen as she was persuaded that the applicants were not in a position to cross-examine either witness,

6. her Honour adjourned the trial for further hearing to 24 October 2016;

7. her Honour made orders permitting the applicants to serve notices to produce and subpoenas relating to the late served evidence; and

8. her Honour made orders permitting the applicants to file any evidence in reply to the evidence at (1)-(3) above by 30 September 2016.

Prejudice claimed by the applicants

30. The applicants did not lead any evidence on the application for leave to appeal.

31. The only evidence led before the primary judge about prejudice caused by the tender of the evidence referred to at [23]-[27] above was contained in an affidavit from Mr Mulligan sworn 2 August 2016 and expressed at a high level of generality.

32. The essence of Mr Mulligan’s evidence was that:

1. The process of being sued by Westpac and one of its subsidiaries, SGF, with its considerable resources at its disposal, has had “a significant and detrimental effect on him and Mrs Mulligan personally”;

2. He and Mrs Mulligan have had to divert considerable time, effort and money in defending the proceedings brought by SGF and/or its related entities and in the consideration of consumer protection remedies available to them;

3. This preparation had been “derailed by the (in all respects) unconscionable methodology employed by Westpac, its subsidiaries and solicitors”. Mr Mulligan asserted that that he “no longer feels that it is possible to know exactly what [SGF] are claiming”; and

4. He and Mrs Mulligan had, as at 2 August 2016, “totally insufficient time” to examine other than a miniscule part of the additional material referred to at [23]-[27] above.

33. Counsel for the applicants in this Court identified the prejudice suffered by the applicants as being a lost opportunity to resolve the proceedings based on an assessment of the strength of SGF’s case. With one exception, he did not point to any other respect in which his clients were said to have been disadvantaged in the conduct of their defence of SGF’s claim by the late production of the material referred to.

33. That exception was the suggestion by counsel that the applicants had suffered or would suffer prejudice in being put to the expense of testing the authenticity of the agreement dated 20 October 2006 between SGF and AMG Capital.

Relevant principles

35. There was no dispute about the relevant principles to be applied on this application.

36. Leave to appeal is required: s 101(2)(e) Supreme Court Act 1970 (NSW).

37. The Court will rarely grant leave to appeal in matters of practice and procedure: In the Will of Gilbert (1946) 46 SR (NSW) 318 at 322-3; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. The Court will be more reluctant to grant leave to appeal in an interlocutory matter involving practice and procedure when reversal of an interlocutory order would not avoid a trial: In the Will of Gilbert at 322-3.

38. The Court will generally only intervene in such a case where it considers that there is “a clear case of material error in the decision at first instance”: Cornelius v Global Medical Solutions Australia Pty Ltd; Farag v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65 at [21].

39. The applicants may challenge in an appeal from her Honour’s final judgment the correctness of the interlocutory orders to which the present application relates provided those orders have affected the final result: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at 483 [6]; Crowley v Glissan (1905) 2 CLR 402.

40. To succeed on any appeal, the applicants would need to demonstrate House v The King (1936) 55 CLR 499 error.

The applicants’ submissions

41. The applicants complained of the following matters.

Disallowance of the evidence served late

42. The applicants submitted that allowing the tender of a “substantial volume” of additional evidence, and in particular changes to the evidence in chief that the second respondent sought to rely upon, amounted to a significant procedural unfairness and substantially prejudiced the applicants.

43. The applicants submitted that the primary judge fell into House v The King error by failing to avert to the relevant principles in ss 56-61 of the Civil Procedure Act. The applicants submitted that the error was demonstrated by the primary judge starting from an incorrect premise that all parties had “been naughty”.

44. The applicants contended that the primary judge failed correctly to exercise her discretion in not excluding the evidence. It was submitted that, by analogy, it was incumbent on the second respondent to provide an explanation about why the new evidence was served so late (citing AonRisk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [106]-[109]).

45. The applicants submitted that there is a pattern of behaviour evidenced by the respondents: see Kelly v Westpac Banking Corporation [2014] NSWCA 348 at [38].

46. The applicants submitted that the lack of any reasonable notice that the evidence would be served made it impracticable for the applicants to investigate and marshal the evidence required to rebut it: Singh v Newridge Property Group Pty Ltd [2010] NSWSC 411 at [21].

47. The applicants submitted that, considering the “dictates of justice”, courts should not ignore the disparity which can exist between the “resources available to a well-funded litigant such as Westpac and a self-represented litigant”: Kelly v Westpac at [42].

48. The applicants submitted that the agreement dated 20 October 2006 was essential to SGF’s case and that SGF was on notice, by an amendment made to paragraph 24(a) of the amended defence, that Ms Nguyen had not correctly identified in her July 2015 affidavit the agreement that she had described which was also the agreement SGF had pleaded in paragraph 16 of its further amended statement of claim.

49. Thus, it was submitted, it should be concluded that SGF had ignored a clear warning from the applicants (said to have been given by the terms of that amendment) as to the deficiency of their evidence; and that the primary judge should have refused to admit the document because its admission might result in an undue waste of the court’s time and unfairly prejudice the applicants’ case and preparation.

Adjournment

50. The applicants submitted that throughout the three days of the hearing the primary judge refused to hear argument from their counsel on multiple occasions as to why the matter required adjournment.

51. Ultimately, counsel in this Court identified the adjournment argument as an alternative argument and submitted that the primary judge erred in failing to order that the matter should be “stood over generally”.

Costs

52. The applicants submitted the primary judge refused to consider an application for costs caused by the unreasonable conduct of the respondent and instead ordered that the issue of costs be reserved.

53. The applicants submitted they had spent considerable time and effort preparing to meet the case made by SGF on the basis of the primary evidence served on 10 July 2015. This was said to include amending their defence (in particular paragraph 24(a)) in response to the evidence indicated as relied on.

54. The applicants submitted that, at a minimum, costs should have been awarded on an indemnity basis for the preparations of well over a year by them which were “derailed” by the respondents. As self-represented litigants running their own business, the commercial toll extracted, with its related stress, had been high, and that this factor should be taken into account: Aon at [101].

55. The applicants also submitted that in the circumstances reserving the decision as to costs was a miscarriage of the exercise of the primary judge’s discretion where the respondents had clearly failed to follow the processes and procedures of the court and had not acted in accordance with the dictates of justice.

Consideration

56. An important initial consideration about the grant of leave is that SGF will continue to prosecute its case against the applicants even if the evidence about which the applicants complain is excluded. The submission by counsel for SGF that paragraph 16 of the further amended statement of claim SGF permitted the applicant to seek to prove an agreement made in October 2006 between AMG Capital and SGF constituted by conduct should be accepted. Further, the applicants’ cross-claims against SGF and Westpac will continue to trial, regardless of the outcome of this interlocutory application.

57. This Court is reluctant to grant leave to appeal in an interlocutory matter involving practice and procedure when reversal of an interlocutory order would not avoid a trial. Further, the fact that the applicants may challenge on appeal the correctness of the interlocutory decisions to which the present application relates is another weighty factor tending against the grant of leave in this case.

58. Absent clear and irreparable prejudice to the applicants, this is not a case that warrants the grant of leave to appeal. To consider whether clear and irreparable prejudice was established, it is convenient to address the applicants’ complaints in the order they chose to make them.

Disallowance of the evidence served late

59. No material error in the primary judge’s decision concerning the admission of the evidence described at [23]-[27] above has been shown.

60. First, relevant prejudice is not demonstrated by the mere fact that the late served evidence made it more likely that the applicants’ case would fail. What has to be considered is unfair prejudice that is procedural or substantive prejudice resulting from the late service. That prejudice does not include disadvantage or unfairness resulting merely from the fact that the evidence is adverse (as in this case). SGF’s tender of the late evidence was in accordance with its pleaded case and the text of Ms Nguyen’s affidavit of July 2015 which was plainly and in terms referring to an October 2006 agreement between SGF and AMG Capital. The problem was one of a witness’ mistaken identification of a particular critical document. There was no House v The King error shown in a failure to avert to the relevant principles in ss 56-61 of the Civil Procedure Act. Those principles all address, at their core, the dictates of justice in relation to a particular course proposed. In this case, the course proposed by SGF was to tender the critical document in the case, which had been identified in SGF’s pleading. The primary judge was correct to observe at Tr 31, that:

“..we are not going to have a farcical position in which a document narrating an agreement which you denied, which is at the core of the proceedings, is held to one side in a hearing which was never going to take three days is going to be delayed in circumstances where that was going to happen anyway…”.

61. Secondly, any prejudice suffered by the applicants was ameliorated by the adjournment of almost three months granted to the applicants together with the various orders for further subpoenas and notices to produce made by the primary judge. The primary judge has fixed a hearing on 10 October 2016 to address these matters and ensure that the hearing fixed for 24 October 2016 is ready to proceed. Orders were made permitting the applicants to file evidence in reply by 30 September 2016.

62. Thirdly, the applicants did not establish any relevant prejudice by the course adopted by the primary judge in admitting the evidence about which complaint was made. Assuming the existence of the suggested requirement based on Aon that SGF provide an explanation about why the new evidence was served so late, that requirement was satisfied here. The evidence is clear that SGF did not have the document referred to in paragraph [27] before the weekend of 30-31 July 2016. So much is clear from the evidence as a whole, including the evidence of its non-production in response to the subpoena issued to AMG Capital and the evidence of SGF’s unsuccessful attempts to obtain the document contained in the affidavit of Mr O’Connor sworn 4 December 2014 upon which the applicants rely, at least to some extent.

63. Further, the submission that paragraph 24(a) of the amended defence provided notice of a defect in SGF’s case should be rejected. That paragraph is not reasonably capable of bearing the meaning contended for by the applicants. Furthermore the submission makes clear that the applicant appreciated the real case which was sought to be made and that SGF always intended to tender and rely upon a document evidencing the agreement in the terms pleaded.

64. Fourthly, the submission that the applicants had suffered prejudice in being put to the expense of testing the authenticity of the agreement dated 20 October 2006 referred to at [27] should not be accepted for the following reasons:

1. the document contains a facsimile transmission printout dated 20 October 2006. That facsimile printout in identified as pages 17/31 to 31/31. That numbering is consistent with the numbering of missing facsimile pages relating to the executed agreement dated 20 October 2006 referred to by Mr O’Connor in his affidavit at FJO-1 66;

2. the applicants were offered the opportunity to call for the original of the document before the primary judge and declined;

3. the applicants were permitted to serve notices to produce and subpoenas directed to the authenticity of the document and, so far as the evidence reveals, have failed to do so. The only evidence regarding notices to produce demonstrates that they were not directed to this issue;

4. this matter was heard in this Court on 27 September 2016, almost two months after the hearing before the primary judge. If the authenticity of the executed agreement dated 20 October 2006 was to be challenged, the applicants would have been in a position to make submissions about possible reasons to doubt the authenticity of the executed agreement dated 20 October 2006. No such submissions were made; and

5. before leaving this topic, it should be made clear that nothing in this judgement or in the leave to appeal process warrants a conclusion that the applicants should be taken to have been excused from investigating the authenticity of the agreement dated 20 October 2006 while the matter was pending in this Court. The submission that it was “impracticable” for the applicants to investigate and marshal the evidence required to rebut the late evidence should be rejected. No evidence was led to support such a claim. If evidence had existed it would no doubt have been led. No stay was sought or granted of the primary judge’s orders, including the orders that any evidence in reply to the late filed material should be filed by the applicants by 30 September 2016.

65. Leave to appeal on the question of the tender of further evidence should be refused.

Adjournment

66. No error, let alone a clear case of material error in the decision by the primary judge, has been shown concerning the applicants’ adjournment applications.

67. On the first day of the hearing the primary judge expressed the view that the trial would not conclude within the time allocated, even leaving to one side the late served evidence and promptly made arrangements for the continuation of the trial at a later date which suited the applicants. There is no challenge to that conclusion.

68. The applicants thus had a lengthy adjournment, of almost three months in which to deal with the late served evidence. No material error in the decision to refuse other adjournment applications has been shown.

69. The applicants’ principal submission on this appeal that the matter should have been “stood over generally” or to an undisclosed and indeterminate time in the future was rightly rejected by the primary judge. The suggestion that such an outcome was the only available course properly open to the primary judge needs only to be stated to be rejected.

70. Further, the primary judge made orders permitting the service of notices to produce and subpoenas to allow the applicants to investigate relevant issues concerning the discounting agreement and to serve evidence in reply. In those circumstances, any concern about prejudice to the applicant was adequately addressed.

71. Leave to appeal on the grant of an adjournment should be refused.

Costs

72. No error, let alone a clear case of material error in the decision at first instance, has been shown in the primary judge’s decision concerning costs.

73. First, the draft notice of appeal identifies as the relevant ground of appeal that the trial judge erred in failing to exercise her discretion to make a costs order pursuant to s 98(4)(a) of the Civil Procedure Act. That provision permits a court to order that the party to whom costs are payable is entitled to specified costs up to or from a specified stage of proceedings, prior to the referral of costs for assessment. The applicants did not seek such an order from the primary judge.

74. Secondly, the question of costs cannot sensibly be determined before the Court has considered the evidence of Mr Chan and Ms Nguyen. Mr Chan and Ms Nguyen’s evidence was deferred, to accommodate an adequate time for the applicants to prepare cross-examination. The exercise of discretion by the primary judge on this question was not challenged.

75. Thirdly, the relevant order sought by the appellants provides simply for an order that the “respondents pay the appellants’ costs”. The applicants are free to agitate the question of costs, and the appropriate basis for the award of costs, at the conclusion of the trial.

76. Fourthly, if the trial judge had made the order sought on the appeal, which could only sensibly be construed as seeking costs thrown away as a result of the adjournment, the costs order would not, absent a special order which has not been sought, be assessed until the conclusion of the proceedings: Uniform Civil Procedure Rules 2005 (NSW) r 42.7(2). There is, therefore, no prejudice occasioned by the trial judge’s decision to defer consideration of the question of costs.

77. Leave to appeal on the question of costs should be refused.

Conclusion and orders

78. No sufficient reason has been shown to interfere in this matter of practice and procedure in the District Court.

79. I propose the following orders:

1. Leave to appeal refused;

2. The applicants pay the respondents’ costs as agreed or assessed.

80. SCHMIDT J: I agree with Payne JA.

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Decision last updated: 30 September 2016