Neale v Ancher Mortlock and Woolley Pty Ltd

[2014] NSWCA 7

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Neale v Ancher Mortlock & Woolley Pty Ltd [2014] NSWCA 7

Hearing dates:

30 January 2014

Decision date:

30 January 2014

Before:

Macfarlan JA

Decision:

The Amended Notice of Motion is dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - practice and procedure - no issue of principle

Legislation Cited:

Supreme Court Act 1970
Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

James Woodward Neale (Appellant)
Ancher Mortlock & Woolley Pty Ltd (First Respondent)
Bank of Western Australia (Second Respondent)
Director General of New South Wales Department of Planning and Infrastructure (Third Respondent)
Levitt Robinson Solicitors (Fourth Respondent)
Commonwealth Bank of Australia (not named as a respondent but represented at the hearing)

Representation:

Counsel:
Self-represented Appellant
J Hunt (First Respondent)
P Dowdy (Second Respondent and Commonwealth Bank of Australia)
A Shearer (Third Respondent)
Solicitors:
Self-represented Appellant
Lander & Rogers (First Respondent)
Norton Rose Fulbright (Second Respondent and Commonwealth Bank of Australia)
New South Wales Department of Planning and Infrastructure (Third Respondent)

File Number(s):

CA 2013/16530

 Decision under appeal 

Jurisdiction:

9101

Citation:

Ancher Mortlock & Woolley Pty Limited v James Neale

Date of Decision:

2012-12-06 00:00:00

Before:

Curtis DCJ

File Number(s):

2011/157885

Judgment

1. HIS HONOUR: By Notice of Motion filed on 24 January 2014, Mr James Neale, the appellant, sought the following orders:

"1 That the hearing in Case number 2013/16530 [the present appeal] in this Court set down for 27 February 2014 be vacated.

2 That Case number 2013/16530 in this Court be joined with the following matters:

(a) NSW Supreme Court matter of JW Neale v Commonwealth Bank 2011/211735

(b) NSW Land and Environment court matter of JW Neale v Department of Planning NSW 12/40544.

3 That the Appellant be granted Legal Aid or pro bono assistance".

1. Pursuant to leave granted today he filed in Court an Amended Notice of Motion seeking the following additional orders:

"1 That the hearing in Case number 2011/11735 in the Supreme Court of NSW set down for 3 February 2014 be vacated.

2 That Levitt Robinson pay the Appellant's costs until these proceedings are completed.

3 That the Defence filed by Serene Teffaha of Levitt Robinson on behalf of James Woodward Neale on 10 January 2014 in Case number 2011/211735 be withdrawn without prejudice.

4 That leave be given to James Woodward Neale to file an Amended Defence replacing the Defence filed on 10 January 2014 in Case number 2011/211735 without prejudice".

1. The background to the appeal is set out in the judgment of McColl JA of 9 July 2013 dealing with an application for security for costs of the appeal and other matters ([2013] NSWCA 209). As her Honour noted, there are two aspects to the appeal. The first is a challenge to the decision of Curtis DCJ of 6 December 2012 that the respondent was entitled to recover certain fees from Mr Neale. As the judgment in favour of the respondent was less than $100,000 (although only marginally so), Mr Neale requires leave to appeal against the judgment (Supreme Court Act1970 s 101(2)(r)). The second matter is a challenge by Mr Neale to Curtis DCJ's dismissal of his cross claim for damages brought against the respondent. He does not require leave to appeal against this decision as more than $100,000 was at issue.

1. The appeal (including Mr Neale's application for leave to appeal) has been fixed for hearing on 27 February 2014. As both aspects of the appeal fall within a relatively narrow compass, there should be no difficulty in completing the hearing on that day, if the appeal in fact proceeds then.

1. In his affidavits of 24 and 30 January 2014, Mr Neale refers at some length to proceedings which he and his company have brought in the Equity Division of the Court against Commonwealth Bank of Australia (the "CBA") and others relating to that Bank's acquisition of Bank of Western Australia Ltd and a loan or loans that Mr Neale or his companies had from the latter Bank.

1. The basis for Mr Neale's application for adjournment of the hearing of the present appeal (which he refers to as "AMW Appeal") appears to be encapsulated in the following paragraph of his affidavit of 24 January 2014:

"44 I recently informally advised the Appeal Court that I would be unable to meet the timetable for the AMW Appeal on 27 February 2014 because a provisional date in the CBA matter had been made final for 3 February 2014 and may run for 14 days. The AMW matter is otherwise quite well prepared".

1. This does not demonstrate any reason why the present appeal cannot proceed on 27 February 2014. Mr Neale's suggestion is that the Equity Division matter "may run for 14 days" but even if this occurred, the hearing would be completed prior to 27 February 2014 and the paragraph contains an acknowledgement that the appeal is adequately prepared on his part. The written submissions that he has filed on the appeal address both aspects of it and also a Notice of Contention filed by the respondent in September 2013. The form of these submissions suggests that Mr Neale had the benefit of legal advice and assistance in drafting at least part of them.

1. As I have noted, in the affidavits that he relies on on this motion, Mr Neale provides much detail concerning his Equity Division proceedings. In my view none of that material supports his application for adjournment of the present appeal which should be refused.

1. I would similarly refuse to make the order sought by Mr Neale concerning Legal Aid or pro bono assistance. The Court's power in this respect is limited to the making of an order referring "a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance" (Uniform Civil Procedure Rules 2005 r 7.36). The Court may only make such an order if it is in the "interests of justice" to do so (ibid). I do not consider that this condition is here satisfied as the making of such a referral at this stage would have the potential to put the hearing date in jeopardy and Mr Neale's affidavits indicate that he is well familiar with instructing both barristers and solicitors and has done so as recently as the second half of last year and this month in relation to the proceedings in the Equity Division. Further, Mr Neale has for a long time been aware of the possibility of seeking an order under r 7.36 as he says in his affidavit of 24 January 2014 that on 5 April 2013 Hammerschlag J gave him "leave to apply under Division 9 Pt 7 of UCPR". This could only be a reference to a referral under r 7.36.

1. The order sought by Mr Neale for joinder of the present appeal with the matter in the Equity Division should also be refused, if for no other reason than that the issues in the two proceedings are quite distinct. Similarly, there is no basis for joinder of the appeal with the proceedings brought by Mr Neale in the Land and Environment Court against the Director General of the New South Wales Department of Planning and Infrastructure (the "Director General"). Even if such an order could be made, it should be refused because Mr Neale has not demonstrated that the resolution of the issues in these proceedings would be facilitated by such a joinder.

1. The additional orders sought by Mr Neale in his Amended Notice of Motion should likewise be refused. They relate to the conduct of the Equity Division proceedings which are not before this Court. The making of any such orders is a matter for Hammerschlag J before whom those proceedings are fixed for hearing.

1. For these reasons, Mr Neale's Amended Notice of Motion is dismissed with costs. The benefit of this order extends not only to the respondent to the appeal but also to the Commonwealth Bank of Australia and the Director General who were joined as parties to the appellant's Motion.

1. After delivering the above reasons orally, I recalled that Mr Dowdy of counsel announced his appearance on the Motion on behalf of the Commonwealth Bank of Australia (which he described as "a successor to Bankwest"), and noticed that the Commonwealth Bank was not named as a party to the Notice of Motion, although Bankwest (that is, Bank of Western Australia) was. As it is clear that both the Commonwealth Bank of Australia and Bankwest had an interest in opposing the orders sought in the Motion, the order for costs that I made should stand, with both Bankwest, and the Commonwealth Bank (as well as the other respondents) entitled to the benefit of the order.

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Decision last updated: 05 February 2014