Phillip Mulcahy v Registrar General Office of Regulatory Services
[2013] ACTCA 45
•6 November 2013
PHILLIP MULCAHY v REGISTRAR GENERAL OFFICE OF REGULATORY SERVICES & ANOR
[2013] ACTCA 45 (6 November 2013)
PRACTICE AND PROCEDURE – appeal from Master – appellant’s Statement of Claim struck out and summary judgment entered for failure by plaintiff to provide particulars and comply with directions – whether Master had power to strike out – power to dismiss for failure to comply with a direction about the conduct of the proceedings: r 1404 Court Procedures Rules 2006 (ACT) – whether appellant provided all necessary particulars – an obligation of the party providing particulars to do so in the form requested so as to enable the other parties to understand the way in which the case is pleaded
PRACTICE AND PROCEDURE – appeal from Master – appellant’s Statement of Claim struck out and summary judgment entered for failure by plaintiff to provide particulars and comply with directions – application to adduce new evidence on appeal – material does not answer request for particulars in appropriate way – material does not provide second respondent with information requested – material in form provided requires second respondent to engage in onerous exercise to determine relevance
Court Procedures Rules 2006 (ACT), rr 430, 434, 1404
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 24 – 2013
No. SC 284 of 2011
Judge: Murrell CJ, Burns and Cowdroy JJ
Court of Appeal of the Australian Capital Territory
Date: 6 November 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 24 – 2013
) No. SC 284 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PHILLIP MULCAHY
Appellant
v
AND:REGISTRAR GENERAL OFFICE OF REGULATORY SERVICES
FirstRespondent
ALEXANDRA BRIDGET AND THOMAS MICHAEL JOHN MULCAHY AS EXECUTORS OF THE ESTATE OF THE LATE HEATHER JOAN MULCAHY
Second Respondent
ORDER
Judges: Murrell CJ, Burns and Cowdroy JJ
Date: 6 November 2013
Place: Canberra
THE COURT ORDERS THAT:
Leave be granted for “Alexandra Bridget and Thomas Michael John Mulcahy as executors of the estate of the late Heather Joan Mulcahy” to be substituted for “Heather Joan Mulcahy” as the name of the second respondent.
The time for the filing of the appeal papers be extended.
The appeal be dismissed.
The appellant’s application to adduce evidence dated 9 October 2013 be dismissed.
The appellant’s stay application dated 21 May 2013 be dismissed.
The appellant pay the second respondent’s costs of the appeal.
IN THE SUPREME COURT OF THE ) No. ACTCA 24 – 2013
) No. SC 284 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PHILLIP MULCAHY
Appellant
v
AND:REGISTRAR GENERAL OFFICE OF REGULATORY SERVICES
FirstRespondent
ALEXANDRA BRIDGET AND THOMAS MICHAEL JOHN MULCAHY AS EXECUTORS OF THE ESTATE OF THE LATE HEATHER JOAN MULCAHY
Second Respondent
Judges: Murrell CJ, Burns and Cowdroy JJ
Date: 6 November 2013
Place: Canberra
REASONS FOR JUDGMENT
MURRELL CJ:
I agree with the reasons of Burns J.
I certify that the preceding paragraph numbered [1] is a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.
Associate:
Date: 25 November 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 24 – 2013
) No. SC 284 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PHILLIP MULCAHY
Appellant
v
AND:REGISTRAR GENERAL OFFICE OF REGULATORY SERVICES
FirstRespondent
ALEXANDRA BRIDGET AND THOMAS MICHAEL JOHN MULCAHY AS EXECUTORS OF THE ESTATE OF THE LATE HEATHER JOAN MULCAHY
Second Respondent
Judges: Murrell CJ, Burns and Cowdroy JJ
Date: 6 November 2013
Place: Canberra
REASONS FOR JUDGMENT
BURNS J:
The second defendant before the Master passed away in August 2013. At the outset of the proceedings before this Court, leave was sought for “Alexandra Bridget and Thomas Michael John Mulcahy as executors of the estate of the late Heather Joan Mulcahy” to be substituted for “Heather Joan Mulcahy” as the name of the second respondent. The Court granted that leave. The first respondent did not appear before the Court on appeal but, by Notice, submitted to the orders of the court except as to costs.
These proceedings are an appeal from the decision of Master Harper given on 12 April this year in which Master Harper ordered that the Statement of Claim lodged by the appellant in proceedings SC 284 of 2011 be struck out and that judgment be entered for the second respondent. There were further ancillary orders that were made, but it is not necessary at the present time to refer to those.
The appellant lodged an appeal against the decision of Master Harper. There is a question as to whether the appeal was lodged within time, and as such whether the present appeal is competent. The Notice of Appeal which is on the court’s papers suggests that the appeal may well have been lodged out of time, although there is some material which has been put by the appellant before the Court today to suggest that his then solicitors’ claim that the appeal was lodged in time.
In my opinion, the confusion relating to this issue in itself would constitute special grounds for extending the time for the lodgement of the appeal if that were indeed necessary, and I would make an order extending the time for the appeal to be lodged.
Before I consider the grounds of appeal raised by the appellant in the Notice of Appeal, it is important to note that the judgment of Master Harper was a discretionary judgment. As such, the appeal before this Court is an appeal from a discretionary judgment.
That means that the appellant must demonstrate that Master Harper made an error, either of fact or law, in the decision which he handed down on 12 April this year. It is not sufficient for this Court, for example, to determine that they would not have made the orders made by Master Harper. The appellant must demonstrate error.
THE GROUNDS OF APPEAL
The grounds of appeal relied upon by the appellant are firstly that the Master acted without power in ordering that the Statement of Claim be struck out and judgment be entered for the second respondent. In my opinion, there is no merit with respect to that ground of appeal. It is quite apparent that there were numerous sources of power available to the Master to make the orders that he did.
Some of those are set out in the summary of argument by the second respondent. In particular I note that pursuant to r 1404 of the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules) the Master was specifically empowered to dismiss the proceedings that were then before the court on the basis that there had been a failure to comply with a direction about the conduct of the proceedings.
There was ample evidence before the Master that there had been failures to comply with directions that had been given about the conduct of the proceedings and in particular about the provision of answers to particulars. As such, as I said, I am satisfied that the Master had power to make the order that he made.
Alternatively, the appellant argues that if the Master did act with power the exercise of the court’s discretion to effectively enter judgment for the second respondent miscarried because the Master wrongly failed to take into account that the Statement of Claim included all necessary particulars within the meaning of r 430 of the Court Procedures Rules.
In my opinion, the Master made no such error. Clearly, particulars were required with respect to those matters that were pleaded in the Statement of Claim, and in particular in relation to those sums of money which the appellant claimed in the Statement of Claim he had expended either for the purchase of the premises or in their maintenance and upkeep.
In my opinion, the particulars that were sought, in particular those seeking details as to the amounts that were paid, to whom they were paid, and in what way they were paid, were necessary particulars for the conduct of the proceedings. I would reject that ground of appeal.
The appellant next argues that the Master wrongly concluded that the particulars sought by the second respondent were particulars to which the second respondent was entitled, and to which she (as the second respondent then was) required an answer in order to know the case she would have to meet if the matter went to trial.
In my opinion, for the reasons that I have already given with respect to the last ground of appeal, that ground of appeal also must fail. The particulars that were sought were clearly particulars that were relevant and necessary to the conduct of proceedings.
The appellant, next, argues that the Master wrongly concluded that the appellant had failed to provide proper particulars in compliance with orders by the court. Again, in my opinion, that ground of appeal must fail. The Master was entitled to conclude on the basis of the material that had been put before him that those basic particulars to which I have referred had not been provided in the form in which they were required to be provided. It is not for the second respondent to have to go through reams of bank statements and other documents to try to piece together how the appellant was putting his case. It was the obligation of the appellant to provide particulars in the form requested so as to enable the second respondent to understand the way in which he was putting his case. In my opinion, the Master was entitled to find that the appellant had failed to provide proper particulars in accordance with orders made by the court.
Next, the appellant argues that the Master failed to take into account that there was a dispute about the adequacy of particulars, and that no order for better or further particulars had been sought or made under r 434 of the Court Procedures Rules.
Again, I see no merit in this ground of appeal. It appears to me that the Master was well aware of the state of the proceedings, and that he was aware of the fact that directions had been given for particulars to be provided in a certain form, and that those particulars had not been provided. In my opinion, there is no merit to this appeal ground.
The next ground of appeal on behalf of the appellant is that the Master failed to take into account that the second respondent’s request for particulars was oppressive and, in many cases, requested evidence. In my opinion, that is simply incorrect. The particulars that were sought by the second respondent were, as I have said, ordinary particulars that would be sought in this type of matter and were necessary for the proper conduct of the proceedings. That ground of appeal must fail.
The next ground agitated by the appellant is that the Master wrongly took into account that in the period during which the Master’s decision was reserved no notice of appointment of a solicitor had been filed, and that “no further steps had been taken by him”, presumably referring to the appellant.
It is clear that the Master referred to the fact that during the period after the hearing of the application up until the date when the Master handed down his decision in April this year, the appellant had taken no further steps to provide particulars or other material.
There appears to have been something of a misunderstanding between the Master and the appellant in that regard. The appellant has, in the course of his submissions to this Court today, indicated that the Master said to him, after hearing the application to strike out the Statement of Claim, that the appellant would be notified of the date when the decision was to be handed down, and that nothing further would happen in the court.
In my opinion, what the Master was probably referring to was that there would be no further steps with respect to the proceedings within the court itself; that is, that no further orders would be made by the court. That, of course, would not have precluded the appellant from providing the particulars sought to the second respondents.
In any event, it does not appear to me that that was a matter which was significant in the Master’s reasoning with respect to the decision to strike out the Statement of Claim. In my opinion, that ground of appeal must also fail.
Finally, the appellant argues that the Master wrongly assumed that the appellant would be unlikely to provide satisfactory particulars given more time. In my view, the second respondent’s counsel was correct when he said that the Master had not made any such assumption. This was a finding which was made by the Master. It was a finding which was open to the Master on the evidence, and that is so because of the way in which the proceedings had been conducted up to that point. The Master was entitled to take into account the period of time during which proper particulars had not been supplied in determining that it was unlikely that those particulars would be supplied in a timely fashion if further time were given to the appellant. That ground of appeal, in my opinion, must also fail.
The appellant has not demonstrated that the Master made any error, either of law or fact, in his decision of 12 April this year. As such, there are no grounds for this Court to interfere with the decision of the Master, and the appeal should be dismissed.
APPLICATION TO ADDUCE FURTHER EVIDENCE
Before finally disposing of the matter, however, I would refer to the fact that the appellant sought leave to adduce further evidence on this appeal. That evidence was an affidavit of Duncan Harrington sworn on 9 October this year which had annexed to it a significant amount of material, including photocopies of bank statements, cheque stubs and other documents such as invoices and receipts. In my opinion, this Court should not receive that evidence on this appeal, and the application for leave to adduce it should be refused.
The material which the appellant seeks to adduce in this way is, in reality, nothing more than a collection of documents which do not answer the request for particulars in an appropriate way. Again, it does not provide the second respondent with the information which has been requested. The second respondent would be required to go through that material and to try to ascertain which of the payments were relied upon by the appellant as payments that are relevant to his claim, and try to marry those up with other documents in order to try and determine whether they were in fact documents that are relevant to the proceedings.
ORDERS
The fact is that the material which has been provided does not demonstrate that the appellant has, or is capable of, complying with the directions that were given by the Master with respect to the provision of particulars, and that the material itself lacks sufficiency cogency to warrant reception into evidence in these proceedings. And so for those reasons I would dismiss the appeal.
There is an outstanding application by the appellant for a stay dated 21 May 2013, that application will also be dismissed.
I would order that the appellant is to pay the second respondent’s costs of the appeal. I do not think there is any further order needed in relation to that.
I certify that the preceding thirty (30) paragraphs numbered [2]–[31] are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 25 November 2013
IN THE SUPREME COURT OF THE ) No. ACTCA 24 – 2013
) No. SC 284 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PHILLIP MULCAHY
Appellant
v
AND:REGISTRAR GENERAL OFFICE OF REGULATORY SERVICES
FirstRespondent
ALEXANDRA BRIDGET AND THOMAS MICHAEL JOHN MULCAHY AS EXECUTORS OF THE ESTATE OF THE LATE HEATHER JOAN MULCAHY
Second Respondent
Judges: Murrell CJ, Burns and Cowdroy JJ
Date: 6 November 2013
Place: Canberra
REASONS FOR JUDGMENT
COWDROY J:
I also agree with the reasons of Burns J, but I add a couple of comments. Mr Mulcahy informed the court that he was obtaining legal advice next week. Whilst that legal advice will be of no use in relation to these proceedings, the Court is conscious that Mr Mulcahy will potentially have a claim under the Family Provision Act 1969 (ACT).
I make that observation only because the details which have been provided by an affidavit of Mr Harrington could be of some use in those proceedings, so that may not have been a wasted effort, as far as it goes. Otherwise I agree with the comments, the observations and the findings of Burns J.
I certify that the preceding two (2) paragraphs numbered [32] and [33] are a true copy of the Reasons for Judgment herein of his Honour, Justice Cowdroy.
Associate:
Date: 25 November 2013
Counsel for the Appellant: The Appellant appeared in person
Counsel for the Second Respondent: Dr S Hausfeld
Solicitor for the Second Respondent: A Relf & Co
Date of Hearing: 6 November 2013
Date of Judgment: 6 November 2013
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