Roddan v Shore - [2001] WASCA 373

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: RODDAN & ANOR -v- SHORE [2001] WASCA 373

CORAM: WALLWORK J
MURRAY J
OLSSON AUJ

HEARD: 5 NOVEMBER 2001

DELIVERED : 27 NOVEMBER 2001

FILE NO/S: FUL 26 of 2001

BETWEEN: LINDSAY GORDON RODDAN
First Appellant (First Plaintiff)
KAY NOMINEES PTY LTD (ACN 067 296 173)
Second Appellant (Second Plaintiff)
AND
RAE-LENE MARY SHORE
Respondent (Third Defendant)

Catchwords:

Practice and procedure - Application for summary judgment by defendant - Sufficiency of evidence in support of application grounded on limitation of action - Application to admit further evidence on appeal - Turns on own facts

Legislation:

Rules of the Supreme Court 1971, O 16 r 1

Result:

Appeal allowed

Category: B

Representation:

Counsel:

First Appellant (First Plaintiff)                :        Mr T R Stephenson
Second Appellant (Second Plaintiff)        :        Mr T R Stephenson
Respondent (Third Defendant)                :        Mr T H Brickhill

Solicitors:

First Appellant (First Plaintiff)                :        Kevin Burgoyne
Second Appellant (Second Plaintiff)        :        Kevin Burgoyne
Respondent (Third Defendant)                :        Brickhills

Case(s) referred to in judgment(s):

Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994
Langdale v Danby [1982] 1 WLR 1123
Talbot v Lane (1994) 14 WAR 120
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514

Case(s) also cited:

Anderson v Effex Seven (1999) 10 ANZ Ins Cas 61-424
Ansett Transports Industries (Operations) Pty Ltd v Newdons Travel Services Pty Ltd (In Liq) [1990] VR 37
Bell v Lever Bros Ltd [1932] AC 161
Cabassi v Vila (1940) 64 CLR 130
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd & Ors; unreported; FCt SCt of WA; Library No 970739; 23 December 1997
Cosgrove v Johns
de Lasala v de Lasala [1980] AC 546
Lewkowski v Bergalin; unreported; FCt SCt of WA; Library No 7675
McCann v Parsons (1954) 93 CLR 418
Metwally v University of Wollongong (1985) 60 ALR 68
Re Juson Pty Ltd (1992) 8 WAR 13
Snowy Mountains Hydro Electric Authority [1965] NSWR 178

WALLWORK J: I agree with the reasons for judgment of Murray J and to the orders proposed by His Honour.
MURRAY J: By a writ issued out of this Court on 20 December 1999, the appellants sued three defendants, relying on a variety of causes of action. The respondent was the third defendant. Mr Roddan sued as a beneficiary and alleged creditor of a trust of which Kay Nominees Pty Ltd was said to be the present trustee. It is unnecessary for present purposes to say anything about the causes of action relied upon against the first and second defendants.
By a statement of claim filed on 6 July 2000, cl 11, it was alleged against the respondent that:
"On a date or dates unknown to the Plaintiffs, until after discovery and answers to interrogatories by the Defendants, but including the 14, 16 and 17 December 1993, the Third Defendant converted some Trust assets and property (particularised in the clause) of the First Plaintiff (Roddan) received by her, in the manner pleaded in paragraph 10.4.2.1 hereof, to her own use or benefit."
Clause 10.4 of the statement of claim pleads an allegation of conversion against the second defendant, a court appointed liquidator of an earlier trustee company. The rather confused pleading is said to concern property which is described as "assets of the Trust, and, including personal property of the First Plaintiff". Relevant for present purposes is subcl 10.4.2.1 which is in the following terms:
"During the time of possession of the property referred to in paragraph 10.4.1 by the Second Defendant, some of the property was lost, some of the property was sold by the Second Defendant, some of the property was given to the Third Defendant by the Second Defendant, and some of the property was damaged by agents or, in the alternative, employees, of the Second Defendant."
Putting all that together, it would appear that the allegation against the respondent is of the tort of conversion committed when the respondent took possession of various items of property given to her by the liquidator in circumstances which constituted a conversion of the property to her own use. There is some confusion on the face of the pleading and in the papers before the Court as to who was said to be the owner of various

items of property and it would not be clear, I think, whether in relation to any particular item of property to which the statement of claim refers, it was the contention that the property was that of Mr Roddan or Kay Nominees Pty Ltd. The prayer for relief in the statement of claim is made on behalf of both plaintiffs and seeks from the respondent as third defendant "an account of the Trust assets and First Plaintiff's property received by her", "damages for conversion of the property of the Plaintiffs" and interest. The subject matter of the appeal does not concern any proposition that the action in conversion was not maintainable because of any difficulty arising out of the allegation of ownership. The cause of action in conversion of the property of either or both plaintiffs is contained within the claim indorsed on the writ.

It is a matter of no particular moment but I note that the respondent in her defence, filed on 10 August 2000, expressly denied the allegations contained in cl 10.4.2.1 of the statement of claim. As to cl 11, again the allegations contained therein are denied and it is further pleaded that "any claim against the Third Defendant by the Plaintiff (sic) is statute‑barred". The pleading no doubt relies upon s 38(1)(c)(vi) of the Limitation Act 1935 (WA) which provides a period of six years after the accrual of the cause of action to pursue an action founded on tort. In this case it appears clear that it was pleaded that the act of conversion was constituted by taking possession of the various chattels from the liquidator with the intention to keep them as the respondent's own property and therefore, so it is alleged, with the intention that the respondent would exercise a dominion over the property inconsistent with the appellants' possessory rights stemming from their respective ownership of particular items.
On 21 November 2000 the respondent applied to a Master for summary judgment against both plaintiffs on the grounds that their action "discloses no reasonable cause of action". I am not sure how it was proposed to support that application, which was presumably intended to be brought under the Rules of the Supreme Court 1971, O 16 r 1(1) which, in circumstances relevant to this case, would allow a defendant by leave of the court to apply for summary judgment, which may be granted if the court is "satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings".
I presume it was intended to rely upon the proposition that the respondent had a good defence on the merits. Certainly that is the tenor of her affidavit in support, a very short document in which she deposes in par 3, that:
"I did not receive any of the items matching the descriptions outlined in paragraph 11.1 of the statement of claim that belonged to the Trust and/or to the First Plaintiff as alleged in the Statement of Claim."
She concludes her affidavit by expressing the belief that neither appellant has any claim against her. It will be noted, however, that there was at that time no express reliance upon the limitation pleading.
The plaintiffs sought to show cause against the application by an affidavit sworn by Mr Roddan which, of course, under O 16 r 2(1a) might ordinarily contain evidence in hearsay form. It did contain such evidence on this occasion because in respect of the pleading in cl 11 of the statement of claim, Mr Roddan deposed that his investigations into the fate of the property in question had produced a document dated 14 December 1993, apparently sent in some fashion by a Detective Schubert to a Mr Strickland at the office of a firm of chartered accountants, who were former liquidators of a trustee company related to Mr Roddan's trust. The document contained the following material:
"As per our telephone conversation today I have made inquiries into the mentioned property and I am satisfied that Ms Raelene SHORE, Lindsay RODDAN's ex defacto has a reasonable claim to some of the property which is being held.
Under these circumstances I would appreciate it if you would contact Gregson's and authorize the release of her property. I have attached a list of the property which she has identified to Detective Eddie ROWE of the Fraud Squad as belonging to her."
On the foot of the document there are two handwritten notations. They are printed, but apparently in the same hand, and one might guess that they were notations made by Mr Strickland. Each is initialled in a way which might bear that out. The first note says, "left message 16/12/93 3.50pm". One might guess that records a telephone call from Mr Strickland to Gregson's Auctioneers where it may be that the property, asserted in Mr Roddan's affidavit to be owned by Kay Nominees Pty Ltd, was held.
The second note says:
"17/12/93 Advised Paul that Raelene could collect her stuff. He will go with her and advise me when it has been collected."
Detective Schubert's Christian name is Paul. He concludes the typewritten document by giving a telephone number and asking Mr Strickland to telephone him as soon as arrangements had been made for Ms Shore, whose Christian name is Rae‑Lene, to take possession of property she claimed to be hers.
Apparently it is this document which is the source of the dates 14, 16 and 17 December 1993 included in the pleading in cl 11 of the statement of claim, but it will be noted that the document provides no evidence, even by way of hearsay upon hearsay, as to when, on or after 17 December 1993, the respondent actually took possession of any items of property claimed by the appellants to be owned by one or other or both of them.
Mr Roddan's affidavit also included material which was designed to attack the respondent's credibility and challenge the capacity to rely upon her sworn deposition that she did not take possession of any items belonging to the second appellant and/or to Mr Roddan as alleged in the statement of claim. It is, of course, the case that the way that statement is made in her affidavit leaves the facts as she would have them open to two interpretations. One possibility is that she swore that she did not receive any of the items described in the statement of claim at all and the second interpretation, perhaps the more likely of the two, is that she was swearing that although she received those items or some items of property in the manner alleged in the statement of claim, none of the items she received were the property of the appellants. As I have noted, the defence does not help to determine which possibility was the intended statement of fact because it simply presents the bland denial of the allegations contained in cl 10.4.2.1 and cl 11 of the statement of claim.
However, Mr Roddan exhibited to his affidavit a copy of extracts from a transcript of proceedings in the Perth Court of Petty Sessions described as being the trial of a prosecution entitled The Queen v Noye & Roddan. Whether it is transcript of a trial or a preliminary hearing, as might be suggested by identifying the Crown as a party, is not clear and is, in any event, immaterial.
The transcript annexed does not completely record the cross‑examination conducted by Mr Roddan in person, but it contains the following questions and answers:
"THE DEFENDANT RODDAN: Are you aware of a police officer by the name of Eddy Rowe, Miss Shore? ‑‑ Yes, I am.
Did you make representations to Mr Rowe that led him to give you possession of certain items of property, real property? ‑‑‑ You mean my property?
We are talking about property that was seized from Jucara Pty Ltd? ‑‑‑ Yes, personal belongings that you thieved from me, Mr Roddan. Is that what we are discussing here?
On what date did you purport to collect - we will put this in brackets - your property that was thieved? ‑‑‑ Which occasion would you like? I tried to get my personal belongings from you on a number of occasions, Mr Roddan.
I am talking about the occasion when Detective Eddy Rowe or Detective Paul Schubert authorised you to attend Gregsons and collect property? ‑‑‑ That's correct.
Is it the case that contained within that property was antiques? ‑‑‑ There was a couple of figurines, yes.
And quite a substantial quantity of property which you have subsequently sold? ‑‑‑ Such as?
Saddles, large quantities of horse‑handling equipment, bridles? ‑‑‑ No, not large quantities. I have sold some of it.
When did you collect this equipment, Miss Shore? ‑‑‑ December of last year.
December."
A little later Mr Roddan continued his questions as follows:
"You have earlier given evidence that on 17 December 1993 you took possession of a large quantity of real property that had been seized from Jucara Pty Ltd? ‑‑‑ I wouldn't call it a large quantity. I took possession of my belongings, yes.
Is it the case, Miss Shore, that you have been selling antiques, horse‑handling equipment and saddles of recent times? ‑‑‑ I sold some of it, yes.
Thank you. Is it the case that as at 17 December 1993 you were an undischarged bankrupt? ‑‑‑ I was an undischarged bankrupt when?
On 17 December 1993 when you took possession of this property? ‑‑‑ Yes, that's correct."
If the earlier occasion upon which the respondent gave evidence that she took possession of property which she asserted she owned was that first quoted above, then it will be seen that she there made no reference to the date 17 December 1993. When asked in a relatively non‑leading manner to nominate when she took possession of the chattels, she merely said it was "December of last year". She was giving evidence on 30 June 1994.
In the second exchange quoted above, the date 17 December 1993 is on both occasions put by Mr Roddan. The first time it is put it is evident that the respondent was not necessarily agreeing with the date but was saying that the property she received was owned by her. On the second occasion when the date was mentioned, she was being asked whether on that date she was an undischarged bankrupt and it may well be that when she agreed that was so, she was not agreeing that she obtained possession of the property on that date but that she was an undischarged bankrupt on that date. I add that it is not material for present purposes to consider whether the leading of this evidence in the proceedings before the Master should have had any impact upon the Master's capacity to rely upon the respondent's affidavit in support of her application for summary judgment.
The significant matter is that it seems that on the state of the evidence before the learned Master the respondent's application for summary judgment effectively proceeded upon the basis of the limitation point. It was argued that the pleading in cl 11 of the statement of claim supported by the evidence led by the appellants themselves led inevitably to the conclusion that the allegation was that the property was converted by the respondent on 17 December 1993. The writ was issued on 20 December 1999 and if that view of the facts was right, the action would be statute‑barred and doomed to failure by reason of the expiry of the six‑year limitation period. The respondent would have a good defence that the action was statute‑barred.
The point found favour with the Master who, in reasons delivered orally on the hearing of the application, expressed the view that prima facie on the pleading in cl 11 of the statement of claim, the respondent received the property and converted it to her use prior to 20 December 1993. The learned Master added a reference to the transcript of Mr Roddan's cross‑examination of the respondent. He said that Mr Roddan consistently put the date of the acquisition of the property as being 17 December 1993 and he mentioned no other date. The Master expressed his conclusion that this was a clear case for summary judgment:
"… because as evidenced in the transcript, the first plaintiff has previously had the chance to interrogate the third defendant and the evidence suggests the goods in question were converted on 17 December 1993, a date that would make this action outside the limitation period. I consider the plaintiffs are time‑barred in their action against the third defendant. I propose to enter summary judgment for the third defendant against the plaintiffs."
It is from the judgment so entered that the present appeal is brought. The grounds of appeal are stated in verbose fashion. I need not set them out. They complain that the learned Master erred in finding as a fact that the respondent came into possession of the goods on 17 December 1993, on the evidence before him and because counsel for the appellants endeavoured to make clear to the Master that he was instructed that the appellants "did not actually know when the conversion had occurred". Of course it was upon the evidence that the decision had to be made, not on what counsel said from the bar table.
Then there are a number of grounds which assert that the learned Master erred in not concluding that the application for summary judgment should be refused upon the ground that there was an arguable case that the respondent had obtained possession of the appellant's goods by fraud, leading to the surprising assertion that in obtaining summary judgment, the respondent obtained a decision in her favour by a fraud committed upon the court which, it appears to be asserted, she contrived when she "failed to tell the truth in affidavit material in support of her application". I propose to say nothing more about that ground which seems to me to be entirely devoid of merit. Finally, there is a ground which asserts that summary judgment should have been refused because, at least in respect of the goods which may remain in the respondent's possession, a claim in detinue would be available.
In support of these grounds, reliance is sought to be placed upon new evidence in the form of a further affidavit by Mr Roddan, an affidavit by his wife and an affidavit by the solicitor who appeared for him on the application for summary judgment before the Master.
This last group of grounds, in my opinion, may be disposed of summarily. I have perused the material in the form of further affidavits upon which it is proposed to rely. There is nothing in them capable of supporting allegations of fraud, or of evidencing facts which would make an action in detinue presently maintainable. Nor is there anything of sufficient cogency in that regard in the affidavit evidence before the Master.
It is unnecessary to say anything about the content of the affidavits sought to be adduced from Mrs Roddan and the solicitor, Mr Mc Cabe. As to Mr Roddan's recent affidavit, it is obvious that no reliance could be placed upon statements made therein, such as that from about June 1990 the respondent stole various items of property owned by Mr Roddan or the trust. The material portion of the affidavit in this regard is in obviously objectionable form and the statement has no evidentiary value.
The affidavit includes hearsay statements that a Mr Bob Gregson told Mr Roddan that the respondent had removed all the property from the auctioneers' premises, other than that which had been sold or subsequently collected by Mrs Roddan. The affidavit says that Mr Roddan was told by a Ms Wagg, a former friend of the respondent, that the respondent had sold a quantity of the property she had removed from the premises of the auctioneer but had retained other property to decorate her home. He says that in September 1999, when making enquiries at the auctioneers to establish the date when the respondent had removed property from their rooms, he was "given a written note by an employee of Bob Gregson stating the date the respondent removed the goods from their rooms in Beaufort Street". He says that he had been unable to locate this note until recently. But in the affidavit sworn in opposition to the application for summary judgment there is no reference to the note or the information contained in it and no reference to the fact that it had been lost or misplaced.

In any event, the note is incomprehensible, as well as in part, indecipherable. It is handwritten on Gregson's Auctioneers Pty Ltd stationery. In one margin it has Mr Roddan's name and a mobile telephone number. Otherwise it appears to say:
"Hall Chadwick
Marblon Park
April 1994
23rd Dec 1993
Raylene Shore."
And on the following line there are two further words which I cannot decipher, in a handwritten rectangle.
I would not accept this even as hearsay evidence establishing when anything involving Ms Shore happened. Nor is it even clear whether the note was made by the employee in September 1999 or contemporaneously with whatever events it is supposed to record.
In short, the new evidence which is sought to be adduced utterly lacks cogency. The evidence, whilst new, is certainly not fresh in the sense that it was not discoverable for use at the hearing at first instance by the exercise of reasonable diligence. New evidence is only exceptionally admitted on appeal, where it is not only credible but also would probably have had an important, although not necessarily decisive, impact upon the matter at issue at first instance which is now the subject matter of the appeal: Talbot v Lane (1994) 14 WAR 120, 153 ‑ 4. That general rule has been applied in the context of an application for summary judgment: Langdale v Danby [1982] 1 WLR 1123, 1133.
I summarise my conclusion with respect to this last group of grounds as follows. There is no ground for the admission of the new evidence. It could with reasonable diligence have been available at the hearing of the application and in any event it lacks cogency. On the material which does fall for consideration, there is nothing capable of supporting the conclusion that the appellants ought to have been permitted to pursue the litigation because they had, on the face of the materials before the Court, causes of action available in fraud or detinue, neither of which cause of action has been pleaded.
This Court has long accepted in respect of an application by a defendant under O 16 r 1, at least in a case where the Court is not also concerned with an application under O 20 r 19(1)(a) that the pleading be struck out and the action dismissed because it discloses no reasonable cause of action, that the capacity of the plaintiff to show cause by relying on a cause of action not pleaded is, if it exists at all, particularly limited. In Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994 at 7, Franklyn J said:
"It is for the plaintiff to determine what is his cause of action. The defendant then knows what is the case he has to meet. It is not for the Court, on an O 16 application, to identify or accept some other cause of action, not pleaded, which the evidence before it might arguably support and which, possibly for good reason, was not relied on by the plaintiff in his statement of claim and to then allow the statement of claim to remain on foot in reliance on a possible subsequent amendment. The action is as identified by the statement of claim. If that action must fail it will be regarded as frivolous or vexatious."
That such is the correct view of an application made under O 16 is, in my opinion, confirmed by the wording of O 16 r 1(1) itself. The Court may act if it is satisfied that "the action" is frivolous or vexatious or that the defendant has a good defence on the merits. In the ordinary course, the nature of the action will be that framed by the pleading; the indorsement of the writ and/or the statement of claim.
In my opinion, however, there is merit in the grounds which challenge the finding of fact upon which the learned Master's conclusion was reached. The legal onus to establish that the action for conversion of the property was statute‑barred remained on the respondent. Her affidavit did not establish when she took possession of the property in question. No firm date when that occurred was pleaded in cl 11 of the statement of claim. On the evidence before the Court it was in fact clear that the appellants were not asserting that the respondent took possession of the property on all or any of the dates 14, 16 and 17 December 1993. The appellants pleaded that they did not know when that occurred.
If, without deciding, it was open to the respondent to rely upon the affidavit of Mr Roddan sworn in answer to the application and in particular upon the annexure in the form of the transcript of the cross‑examination of the respondent in the Court of Petty Sessions, then, in my opinion, for the reasons I have given, that did not provide evidence in the form of any statement by the respondent to establish with sufficient clarity that she was asserting that she took possession of the property in question on 17 December 1993.
The learned Master directed himself to the well‑accepted law that it is only in a clear case, where it is plain that the plaintiff has no maintainable cause of action and that the action must fail, that the defendant is entitled to summary judgment. The learned Master referred, in respect of the question of limitation of action as the foundation for an application for summary judgment, to a passage from the judgment of Mason CJ, Dawson, Gaudron and McHugh JJ in Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533 where their Honours said:
"We should, however, state in the plainest of terms that we regard it as undesirable that limitation questions of the kind

under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases."

This was not such a case and in my opinion, the appeal should be allowed and the application for summary judgment dismissed.

OLSSON AUJ: I have had the advantage of reading in draft the reasons for judgment of Murray J. I agree both with conclusions to which he has come and the orders which he proposes.