Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 049 178) v Manolini
[2019] WASC 313
•28 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178) -v- MANOLINI [2019] WASC 313
CORAM: KENNETH MARTIN J
HEARD: 13 AUGUST 2019
DELIVERED : 13 AUGUST 2019
PUBLISHED : 28 AUGUST 2019
FILE NO/S: CIV 1532 of 2019
BETWEEN: RURAL BANK (A DIVISION OF BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)
Plaintiff
AND
WAYNE MANOLINI
First Defendant
SHERYL MANOLINI
Second Defendant
SIRO MANOLINI
Third Defendant
Catchwords:
Practice and procedure - Summary judgment application - Recovery of possession of land as proof of service - Attempted appointment of power of attorney - McKenzie friend - Summary judgment issued against first and second defendants
Legislation:
Royal Style and Titles Act 1973 (Cth)
Rules of the Supreme Court 1971 (WA)
Result:
Summary judgment orders issued against first and second defendants
Representation:
Counsel:
| Plaintiff | : | Ms J Taylor |
| First Defendant | : | In Person (until 11.14 am) |
| Second Defendant | : | In Person |
| Third Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Corrs Chambers Westgarth |
| First Defendant | : | In Person |
| Second Defendant | : | In Person |
| Third Defendant | : | No appearance |
Case(s) referred to in decision(s):
Cristovao v Butcher Paull & Calder [2006] WASCA 184
Giniots v Farrugia (Unreported, NSWCA, BC 8500603, 19 August 1985
Glew v Shire of Greenough [2006] WASCA 260
Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416
National Australia Bank Ltd v Joyce [2012] WASC 224
O'Connell v Western Australia [2012] WASCA 96
Pennicuik v City of Gosnells [2011] WASC 63
Rehu v The State of Western Australia [2012] WASCA 275
Santos v The State of Western Australia [No 2] [2013] WASCA 39
Scarce v Killalea [2003] WASCA 81
Schagen v The Queen (1993) 8 WAR 410
Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113
Waddington v Dandenong Magistrates' Court [2014] VSCA 12
KENNETH MARTIN J:
Overview
At the conclusion of the special appointment hearing convened on 13 August 2019, I issued orders as regards the first and second defendants on the basis that I was satisfied that the prerequisites for the summary judgment application against them had been established by the plaintiff bank. I provided some summary reasons at the time, but indicated that I would provide fuller reasons in due course. These are my substantive reasons. The summary judgment orders I issued at the time are found at the concluding paragraph of these reasons.
By the plaintiff's chamber summons filed 3 July 2019 the plaintiff bank sought summary judgment pursuant to Rules of the Supreme Court 1971 (WA) (RSC) O 14 r 1 against the first and second defendants for liquidated amounts said to be due and unrepaid pursuant to a facility agreement of 28 August 2011, alternatively pursuant to a guarantee of 3 July 2006 (the present application). Interest is also claimed on the liquidated debt.
The plaintiff bank also seeks an order for possession in respect of a rural property known as Marabo (the Marabo property). The Marabo property is the subject of a registered first mortgage security, granted by the first and second defendants. I refer to the mortgage instrument dated 3 July 2006 numbered J818530 which mortgage secures the repayment to the plaintiff of the secured moneys.
The plaintiff bank's present application is supported by the affidavit of Brian Norman Patton sworn 3 July 2019 (the Patton affidavit).
Mr Patton is an employee of the plaintiff bank in the position of Manager ‑ Asset Management. At par 6 of the Patton affidavit he deposes:
I have read the Rural Bank's Amendment Statement of Claim dated 26 June 2019 (Amended Statement of Claim) filed in this action, and verify the contents in their entirety as true and correct. I adopt the same definitions in this affidavit as used in the Amended Statement of Claim, unless otherwise stated.
At par 7 Mr Patton continues:
I verily believe that Rural Bank has a good cause of action against the First Defendant and the Second Defendant and that the First Defendant and the Second Defendant respectively have no defence to Rural Bank's claim in these proceedings.
The plaintiff bank also reads two affidavits of Radhika Vijayan Kayarat both sworn 3 July 2019 and filed 4 July 2019 (the 3 July 2019 Kayarat affidavits). The 3 July 2019 Kayarat affidavits address the issue of the dispatch of multiple written demands for payment (or repayment) issued on behalf of the plaintiff bank (by its lawyers) over time to the first and second defendants. These demands were sent to various addresses and were made under the facility agreements and guarantees as contended in pars 27, 28, 29, 30, 31, 33 and 34 of the amended statement of claim (filed 26 June 2019).
The hearing of the present application
Appearances
At the special appointment hearing of the present application convened on 13 August 2019 at 10.41 am, the first defendant, Mr Wayne Manolini, attended in person at the bar table. He had brought along with him a Mr Neil Pichinin and a Mr Rodney Culleton. Both Mr Pichinin and Mr Culleton had seated themselves alongside Mr Manolini at the commencement of the hearing. Mr Manolini had referred to Mr Pichinin and Mr Culleton as his power of attorney (ts 4).
But counsel for the plaintiff indicated from the outset of the hearing that the plaintiff objected to Mr Culleton being at the bar table or acting in any capacity to assist Mr Manolini. In addition, the second defendant expressed her unwillingness to be at the bar table alone, especially in the presence of Mr Culleton (ts 3).
Consequently, I asked Mr Culleton from shortly after the outset of the hearing (ts 7) to leave the bar table. As a general member of the public, Mr Culleton was, of course, free to sit in the public gallery and observe the proceedings, as he did for a portion of the hearing. That was until 11.14 am when he, together with Mr Manolini and Mr Pichinin, unilaterally left the court room together (see ts 24).
The second defendant, Ms Manolini, also attended before me in person for all of the hearing, albeit she advised that she prefers now to be addressed as Ms Carpenter. There was no appearance from the third defendant at the hearing but that is unsurprising given the application is only brought against the first and second defendants.
Issues raised by the first defendant
Mr Manolini has raised no credible defence argument against the present application. He had purported to assert from the bar table that he had not received the materials relied upon in support of the present application (ts 18). In addition, Mr Manolini sought to object to the court's jurisdiction over him on the present application by his reference to issues said to concern the Crown. I overruled Mr Manolini's objection to the court's jurisdiction over him (ts 12 - 13).
Following Mr Manolini's further attempts to engage over the question of jurisdiction by reference to issues said to (somehow) concern the Crown, he stated that the court could not proceed until jurisdiction was established (see ts 23 - 24). This resulted in Mr Manolini and Mr Pichinin leaving the bar table. They joined Mr Culleton in the public gallery and all three men then left the court room at 11.14 am (ts 24).
Therefore, the hearing proceeded in Mr Manolini's absence.
In addition to the question of the pre‑requisites for summary judgment (which I have found to have been met), I will proceed to address the following issues:
(a)the service of the materials for the present application to Mr Manolini;
(b)the court's jurisdiction to deal with the present application;
(c)the validity of Mr Manolini's so-called power of attorney to Mr Pichinin and Mr Culleton; and
(d)the role of Mr Pichinin and Mr Culleton, if any, as a McKenzie friend.
I turn to discuss these issues.
Service of the materials for the present application
Service to the first defendant
As there may have been some issue attempted to be raised about service of the present application on the first defendant at the hearing, I gave leave to the plaintiff bank at the hearing to read and rely upon a further affidavit of Ms Kayarat sworn on 13 August 2019, on the day of the hearing (the 13 August 2019 Kayarat affidavit). This affidavit essentially addressed, as a matter of formality, the proof of service of the plaintiff bank's chamber summons dated 3 July 2019 and of supporting affidavit materials read and relied upon by the plaintiff bank in support of the application - namely the Patton affidavit and the 3 July 2019 Kayarat affidavits (the summary judgment materials).
In short, the 13 August 2019 Kayarat affidavit verifies and proves that the summary judgment materials were dispatched by express post by the plaintiff bank's lawyers to the postal addresses that were nominated by the first and second defendant in their respective memoranda of appearance as filed in this action as a self-represented litigant.
I refer first to a memorandum of so-called 'Qualified' appearance, filed on behalf of the first defendant - in which Mr Wayne Manolini nominates himself as being self‑represented. This memorandum carried the date 28 May 2019. It was filed at the central office of the Supreme Court on 11 June 2019 as reflected by the court file stamp. That document nominates Mr Manolini's postal address for service of documents as being 'as above'. The 'above' address then refers to the box identified as 'address where lawyer conducts business'. This box displays as the relevant information 'RMB 386 Kojonup, 6395 Western Australia' (the RMB address).
The 13 August 2019 Kayarat affidavit concerning service upon Mr Manolini explains that the summary judgment materials were dispatched by the plaintiff bank's lawyers to Mr Manolini at the RMB address on 4 July 2019. Paragraph 4 of that affidavit states that the documents were dispatched under a covering letter sent by express post to Mr Manolini (see attachments RK1 and RK2). That covering letter also nominated that the first return date for the hearing of the chamber summons for summary judgment was Thursday 18 July 2019. That first return date was, of course, prior to the current special appointment hearing date before me today. The 18 July 2019 hearing was administratively vacated, and a hearing for today's application was relisted by programming orders of the Principal Registrar of 10 July 2019.
An Australia Post tracking history for the dispatch of the covering letter and the summary judgment materials at attachment RK2, indicates the status of the summary judgment materials being duly delivered to that nominated RMB address on Monday, 8 July 2019 at 7.45 am.
Consequently, I am satisfied that the summary judgment materials concerning the first defendant were properly dispatched and delivered to the RMB address as had been nominated by Mr Manolini under his memorandum of (so-called) qualified appearance. That conclusion has been reached notwithstanding an unparticularised bare assertion in Mr Manolini's affidavit sworn on 12 August 2019 (the Manolini affidavit) at par 6, at which he says 'I have never received any documents in support of the chamber summons'. Mr Manolini adds 'Annexed and marked WM 3 is a true copy of the response of the [Plaintiff's] lawyers requiring leave of the court in order to obtain documents'.
However, the annexure marked WM 3 to that affidavit deals with an entirely different issue. It contains a series of emails from the plaintiff bank's lawyers despatched to the first defendant in which they refuse to deal with a Mr Rodney Culleton, who had purported to hold a power of attorney granted from Mr Manolini. By these emails the plaintiff bank's lawyers advised (correctly) that, absent the court's leave to that end, they would not deal with Mr Culleton (who is not a lawyer) as Mr Manolini's representative in the present application.
As I have explained, at the hearing on 13 August 2019 Mr Manolini had attended in person and presented at the outset, seated at the bar table. This was an opportunity for him to elaborate upon his asserted non‑receipt of the summary judgment materials. But he did not do that. Apart from advising me that 'RMB' should be read as reference to 'road mail box' (ts 18) and his suggesting in a rather offhand way that there had been some error made by his nomination of the RMB address on his qualified memorandum of appearance document as filed (ts 21), Mr Manolini did not say anything to support that the summary judgment materials as dispatched had not reached the RMB address that he had designated for service on his memorandum of 'qualified' appearance. Personal service of those materials is not required.
Accordingly, a dispatch of the summary judgment materials to the nominated RMB address was good service upon Mr Manolini.
Service on the second defendant
I add that the 13 August 2019 Kayarat affidavit also dealt with the issue of the dispatch of the summary judgment materials to the second defendant. As mentioned, the second defendant also attended before me in person at the hearing, although she said she preferred now to be addressed as Ms Carpenter.
Ms Carpenter did confirm that she was the person referred to as the second defendant in these proceedings.
I did not understand the second defendant to raise any issue at all over her receipt of the summary judgment materials at the address which as a self‑represented litigant she had nominated on her memorandum of appearance filed 8 May 2019. As seen, this was a residential address in the suburb of Camillo, Western Australia.
In any event, the 13 August 2019 Kayarat affidavit also satisfies me that the summary judgment materials were sent by express post to the second defendant's nominated address. See par 6 of the 13 August 2019 Kayarat affidavit and attachments RK5 and RK6. The Australia Post tracking record at attachment RK6 confirms the delivery of the dispatched materials (the summary judgment materials) on Friday, 5 July 2019 at 10.42 am.
Consequently, all issues of proper service concerning the summary judgment materials have been met by the plaintiff bank as against the first and second defendants to my satisfaction.
The first defendant's 'qualified' memorandum of appearance
Whilst on the subject of the first defendant's 'memorandum of appearance', I observed earlier that it carried a heading, 'Memorandum of Qualified Appearance'. It was filed on 11 June 2019 by the first defendant and then nominating himself as a self‑represented litigant.
If the reference to 'qualified' had indicated the intention to file a conditional appearance, by way, say, of raising or objecting to the jurisdiction of the court over him (as would be permitted by RSC O 12 r 6(1)), then the court file record indicates that no subsequent step was ever taken by the first defendant to act further upon the basis of such a position of objection to the court's jurisdiction. For such circumstances, I refer to the terms of RSC O 12 r 6(2). It provides:
The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance.
Since there was no application brought within the 14 days after the filing of the first defendant's memorandum of 'qualified' appearance on 11 June 2019, the first defendant's appearance then became unconditional from 26 June 2019. Like observations may be made in respect of the so called memorandum of 'qualified' appearance as filed by the third defendant on 11 June 2019, also then as a self‑represented litigant.
Procedural history
It is necessary to say something more about the procedural history of this matter. The plaintiff bank's writ of summons containing an indorsed statement of claim was issued on 26 March 2019.
Subsequently, the second defendant entered her memorandum of appearance I mentioned on 8 May 2019 as a self‑represented litigant. On 29 May 2019, Registrar S Boyle issued an order directing that the parties attend a case management conference before a Registrar on 10 July 2019.
It was not, however, until 11 June 2019 that both the first and third defendants then filed memoranda of so called qualified appearance(s). Those instruments carried the dates of 28 May 2019 and of 25 May 2019 respectively.
On 12 June 2019, Acting Principal Registrar Whitby issued an order granting leave for the plaintiff to be altered and renamed as Rural Bank (A Division of Bendigo and Adelaide Bank Limited ACN 068 049 178). The writ of summons had been issued merely in the name of Rural Bank Limited as plaintiff. The order of the Acting Principal Registrar of 12 June 2019 duly altered the plaintiff's name. There was good reason for that order due to the events of 31 May 2019 as explained below
On 26 June 2019 the plaintiff had filed (as of right) an amended statement of claim and amending par 1 through to 4 of that pleading to read in the following terms:
1.The Plaintiff is:
(a)a public company limited by shares duly incorporated pursuant to the Corporations Act 2001 (Cth) and carrying on business as a commercial banker; and
(b)the successor in law of Rural Bank Limited (RBL) by virtue of section 22 of the Financial Sector (Business Transfer and Group Restructure) Act 1999 (Cth) (Transfer Act).
2.By Certificate of Transfer dated 3 May 2019 the Australian Prudential Regulatory Authority certified that as and from 31 May 2019 the Plaintiff became the successor in law to RBL by virtue of section 22 of the Transfer Act.
3.By operation of law, the Plaintiff acquired all the undertaking and banking business of RBL, including RBL's rights, title and interest arising out of any banking relationship with the defendants.
4.At all material times up to 31 May 2019 RBL was known as Elders Rural Bank Limited or Rural Bank Limited, being the names of one and the same entity, each holding the Australian company number 083938416.
The factual matters in those paragraphs are, of course, verified as being correct under the Patton affidavit. They explain a change of position for the plaintiff corporation between the time of commencement of these proceedings by writ on 26 March 2019, before the change as from 31 May 2019, when the plaintiff became successor in law to RBL by virtue of statute.
Hence, the rationale for the amendments under the orders of the Acting Principal Registrar of 12 June 2019 is clear from that information. It also provides the explanation in part for why there was an amended statement of claim filed on 26 June 2019.
The plaintiff's chamber summons application seeking summary judgment was filed on 3 July 2019. It was within 21 days of the amended statement of claim: see RSC O 14 r 1(1). But that, of course, was beyond a period of 21 days measured from the time of the filing of the writ with its indorsed statement of claim on 26 March 2019.
Consequently, out of an abundance of caution, at the hearing of the application the plaintiff, by counsel, verbally sought leave to apply for the summary judgment, as is reflected under order 1 of its proposed orders for judgment as submitted at the hearing.
I proceed then on the basis that there is a motion for leave submitted through counsel as reflected in the terms of the minute of orders sought. To the extent necessary, I grant leave for the present summary judgment application to be brought. Apart from the fact the present applications are of overwhelming and essentially unanswered merit, there was, I assess, a legitimate basis here for the plaintiff to see 14 days run from after the filing of the so called 'qualified' memoranda of appearances by the first and third defendants on 11 June 2019. This time was required to see whether in fact some sort of application put against jurisdiction of the court would be filed within that timeframe by those defendants. In the end, that did not eventuate. But by then the time elapsed was at or close to 26 June 2019, being when the amended statement of claim was filed.
On that basis, to the extent leave is required to bring the present application, I assess it as appropriate that leave be granted. That grant of leave is embodied in order 1 of the orders for judgment which issued, as is seen at the end of these reasons.
As a further formal matter I note that the terms of the relief under the plaintiff's minute at the hearing had sought orders for vacant possession within 30 days against both the first and second defendant. Such relief is in line with par 5(b) of the amended statement of claim - which refers to the registered proprietors of the Marabo property as being both the first and second defendants. However, order 2 of the plaintiff's chamber summons had only sought an order for possession against the first defendant for him to give vacant possession of that property to the plaintiff. As a matter of pragmatism, that relief I assume had reflected the separation of the first and second defendants and the consequential fact that the second defendant looks to have been a resident at either an address in urban Busselton or in an outer suburb of Perth for some time.
Nevertheless, out of an abundance of caution, I grant further leave to the plaintiff to move for an order for possession against both the first and second defendants in all the circumstances.
The second defendant who attended at all of the summary judgment hearing in person did not then indicate to me any level of opposition by her against any aspect of the present application. In all the circumstances, she is not prejudiced, as I assess matters, by an order for vacant possession issuing in terms formally binding her as well to the extent that such relief is necessary, given the state of the title for the Marabo property - which property secures the facility debts due to the plaintiff bank.
Substantive relief
I observe that no defendant to date has sought to file any defence pleading indicating their contended defence to the matters the subject of the amended statement of claim of 26 June 2019. Of course, the formal obligation in respect of the filing of a defence pleading is, in effect, by RSC O 20 r 4 suspended upon the service of a summons seeking relief under RSC O 14 r 1 (see RSC O 20 r 4(2)), unless the court makes an order to the contrary. Sometimes, however, an existence of an arguable defence to resist summary judgment can be made evident by a defence pleading. I record that this is not the position here as regards any defendant.
The position of the first defendant - Mr Wayne Manolini
As I have earlier indicated, Mr Manolini attended a part of the summary judgment hearing in person until 11.14 am, when he then left the bar table and, after that, the court room. The day before the hearing Mr Manolini had electronically filed his Manolini affidavit which was effectively relied upon by him in resistance to the present application -with the plaintiff reserving its rights in respect of issues of relevance and admissibility in that affidavit (ts 16).
I have already mentioned par 6 of the Manolini affidavit as regards his alleged non‑receipt of materials in support of the present application. However, I reiterate by reference to the 13 August 2019 Kayarat affidavit that I conclude he has been properly served with the materials at the RMB address for service that he himself had nominated.
The balance of the Manolini affidavit proceeds as follows as regards pars 2 - 4:
2.I am the maker of this affidavit and have appointed a Power of Attorney(s) in the above application. Annexed and marked WM 1 is a true copy of the Power of Attorney dated the 24th June 2019 in favour of Mr Rodney Culleton and Mr Neil Pichinin.
[In fact, attachment WM 1 to the Manolini affidavit is something else altogether. The attached document indorsed 'WM 1' commences at page 4 of the Manolini affidavit. There follows a document entitled 'Notice of Extracts - Queen and Crown. First & Final Constitutional Commission Reports 1988. Darren Dickson'].
3.I have yet to receive any personal service of documents and or any instrument to validate a claim of right in order to have standing to the farm despite multiple requests to support a right of claim
[I discuss this paragraph below].
4.I have never had any dealings with the Plaintiff and fully rely on Mr Rodney Norman Culleton,s [sic] affidavit as my Power of Attorney dated the 9th August 2019 filed in this application. Annexed and marked WM 2 is a true copy of the extracts of the 1988 Constitutional Report by Mr Darren Dixon and the affidavit of Rodney Norman Culleton dated the 9th August 2019.
There is no paragraph 5 to the Manolini affidavit. Paragraph 6 has already been referred to earlier in the reasons.
There was obviously some confusion within the assembled attachments to the Manolini affidavit. A Darren Dickson constitutional report document of 1988 to which Mr Manolini refers would appear to be his attachment WM 1 at between pages 4 and 11 of that affidavit. However, that Dickson report of 1988 is wholly irrelevant to unrepaid debt and property security and possession matters that are at issue on the present application.
Commencing at page 12 of the Manolini affidavit would appear to be an incorporated affidavit sworn in the present proceedings - made by Mr Rodney Culleton and then containing Mr Culleton's own internal attachments RNC00 through to RNC17 (the incorporated Culleton affidavit).
The 45 pages of the incorporated Culleton affidavit and attachments as sought to be incorporated by reference to the Manolini affidavit run to page 56 of the Manolini affidavit. At page 57 and below a notation 'WM 2' which has been indorsed on the document, is found there a document headed 'Power of Attorney'. I return to its content in a moment. The concluding pages (pages 58 and 59) of the Manolini affidavit display copies of emails sent to Mr Manolini of 19 July 2019 and 8 August 2019 by the plaintiff bank's lawyers, to which I earlier referred.
Power of attorney
I deal first with a document that is marked WM 2 and headed 'Power of Attorney' found at page 57 of the Manolini affidavit. Making due allowance for the fact Mr Manolini acts in person, I proceed on the basis that this one page attachment document that is marked WM 2 is in fact the document he seeks to refer to at par 2 of his affidavit (albeit he erroneously refers at par 2 to a power of attorney document marked WM 1).
Of course, at par 2 of his affidavit Mr Manolini refers to a power of attorney 'in favour of Mr Rodney Culleton and Mr Neil Pichinin'. However, the document which is WM 2 at page 57 under the heading 'Power of Attorney' only reads as follows as regards a Mr Neil Pichinin:
I, Wayne Manolini of Kojonup - Frankland Road, Kojonup Western Australia, hereby authorise Neil Pichinin of Victoria Park, to act on my behalf in the matter of CIV 1532/2019 in the Supreme Court of Western Austarlian [sic].
I understand that the Supreme Court may hear Mr Pichinin to speak on my behalf when I am unable, due to my recent condition as outlined in the letter of Dr Anthony G.S King Dated the 5/07/2019, to grasp complex matters of jurisdiction for which, I believe, Mr Pichinin is relatively conversant and upon whose documents for evidence I have sought and have relied upon.
I attach my medical report of Dr Anthony G.S King Dated the 5/07/2019.
[The apparent personal signature of Mr Manolini]
Wayne Manolini
24 June 2019
Jurat:
Affirmed to and subscribed before me, by the above party, as true, correct, complete and not misleading, on the ninth day of August two thousand and nineteen at 3434 KojonupFrankland Road Kojonup Western Australia
[Signature of Justice of the Peace - stamped notation Colin David Campbell, 160 Albany Highway Kojonup WA 6395, JP 6199]
Mr Neil Pichinin
Given Mr Manolini acts in person and what was seen in Dr King's note, I allowed Mr Pichinin to sit with Mr Manolini at the bar table for the hearing - on the basis that Mr Pichinin would act as a 'McKenzie friend' in the true sense. I indicated that Mr Pichinin had no right to speak without my leave and that his role as a McKenzie friend was essentially to quietly provide support and advice to Mr Manolini at the hearing.
Nevertheless, there are a number of obvious errors or misconceptions in or around the so called power of attorney document that is WM 2 that need to be exposed, as regards Mr Pichinin.
First, and most fundamentally, a power of attorney even if validly granted does not authorise any person who is not a duly certificated legal practitioner to speak at court on behalf of the person granting the power of attorney. See Waddington v Dandenong Magistrates' Court [2014] VSCA 12 [7]; Giniotis v Farrugia (Unreported, NSWCA, BC 8500603, 19 August 1985, page 3).
Second, and correlatively, a valid power of attorney might, at best, authorise the attorney so appointed to instruct a duly certificated legal practitioner to appear at court on behalf of the grantor of the power, whilst otherwise affording no rights to the donee to institute legal proceedings personally.
Third, as regards the WM 2 document, there was, in fact, no medical report of Dr Anthony GS King of 5 July 2019 attached to that document (albeit I believe I was able to locate the Dr King document attempted to be referred to as I discuss below from the incorporated Culleton affidavit).
Fourth, this WM 2 document, albeit describing itself as a power of attorney, is not that at all. The document only attempts to authorise Mr Pichinin (who is not suggested to be a lawyer) to act on Mr Manolini's behalf in the current action in the 'Supreme Court of Western Austarlian [sic]'. I do not interpret that sentence as anything more than an attempt to authorise Mr Pichinin to act for Mr Manolini in this action. That attempt is misconceived. In my view, such an authorisation could only be given to a duly certificated legal practitioner. The WM 2 document does not, by its terms, appoint Mr Pichinin as Mr Manolini's duly authorised attorney.
Fifth, Mr Manolini's as expressed 'understanding' concerning the court 'hearing' Mr Pichinin to speak on Mr Manolini's behalf is also wholly misconceived and baseless.
Sixth, the reference to Mr Pichinin's so called documents 'for evidence' also appears to be wholly misconceived.
By my assessment then, the terms of the WM 2 document do not, taken at their highest, constitute any grant of a common law general power of attorney to Mr Pichinin. But even if they had done that, even then that would provide Mr Pichinin no legitimate basis to represent or speak for Mr Manolini at court at the present summary judgment hearing.
Mr Rodney Culleton
As earlier seen at par 2 of the Manolini affidavit, Mr Manolini had also referred to Mr Culleton in conjunction with Mr Pichinin in reference to attachment WM 1 (but which was actually WM 2).
Accepting that was an attempted reference to the attachment which is WM 2 then, as now seen, nothing is to be found in that WM 2 document referring to Mr Culleton. That document concerns only Mr Pichinin.
However, at par 4 of the Manolini affidavit, Mr Manolini refers to Mr Culleton's affidavit. There follows an erroneous reference to attachment WM 2 as a true copy of extract from the 1988 constitutional report by Mr Darren Dickson and the affidavit of Mr Culleton dated 9 August 2019.
For avoidance of any doubt, the affidavit of Mr Culleton sworn 9 August 2019 (the Culleton affidavit) has not been read or received upon this application. To the extent the Culleton affidavit is sought to be incorporated by Mr Manolini as a part of the attachment WM1 commencing at page 12 of Mr Manolini's affidavit, I observe that most of what is found in the attachment vis-a-vis Mr Culleton (at between par 1 through to par 27), is legally irrelevant, substantively, in the present application for summary judgment. In particular, par 18 of the Culleton affidavit references (Mr Culleton) having been given 'folios' whilst in Parliament acting as a Federal Senator for Western Australia. This again is wholly misconceived.
From within the incorporated Culleton affidavit, however, I would receive and identify for Mr Manolini what is the one page document marked RNC00 (page 19 in the Manolini affidavit) and further, an ensuing one page document that is marked RNC1, at page 20.
RNC00 presents a copy of an email ostensibly sent from the first defendant to the email address, [email protected]. The time stamp of that email is 1 August 2019 at 7.11 pm. The subject is 'Re Power of Attorney'. Within the email is a document headed 'Power of Attorney', which reads:
I, Wayne Manolini of Kojonup - Frankland Road, Kojonup Western Australia, hereby authorise Rodney Norman Culleton, of Victoria Park, to act on my behalf in the matter of CIV 1532/2019 in the Supreme Court of Western Austarlian [sic].
I understand that the Supreme Court may hear Mr Culleton to speak on my behalf when I am unable, due to my recent condition as outlined in the letter of Dr Anthony G.S King Dated the 5/07/2019, to grasp complex matters of jurisdiction for which, I believe, Mr Culleton is relatively conversant and upon whose documents for evidence I have sought and have relied upon.
I attach my medical report of Dr Anthony G.S King Dated the 5/07/2019.
[The apparent personal signature of Mr Manolini]
Wayne Manolini
24 June 2019
Jurat:
Affirmed to and subscribed before me, by the above party, as true, correct, complete and not misleading, on the first day of August two thousand and nineteen at 3434 KojonupFrankland Road Kojonup Western Australia.
[Signature of Justice of the Peace - stamped notation Colin David Campbell, 160 Albany Highway Kojonup WA 6395, JP 6199]
As seen, its format is in terms almost identical to the earlier document concerning Mr Pichinin. I return to discuss this document below. Before that, however, I refer to the next document marked RNC1 at page 20 of the Manolini affidavit, which is a long‑hand document on a letterhead of a Dr Anthony GS King.
The document of Dr King looks to be the subject of the email from Mr Manolini to the Culleton gmail email address time stamped 30 July 2019 at 8.27 pm.
Under that doctor's name and provider number appears a date in long‑hand '5.7.19' and reference also seen in long‑hand 'To whom it may concern'. Dr King's document then refers to his assessment of Mr Wayne Manolini (DOB 2.12.60) and an address referred to is 'RMB 386 (indecipherable)/Kojonup Rd Kojonup 6395'. [I do note that the very same RMB number was used on Mr Manolini's memorandum of qualified appearance.]
The following long‑hand which I will assume to be of Dr King is in terms:
Mr Manolini is suffering anxiety. He finds it difficult to confront the many issues he faces. He has had marital and financial issues. He finds it difficult to open mail. In other words he is overwhelmed by the circumstances he faces. He would need a support person to help him through any court proceedings.
[Signature of Dr Anthony GS King]
Observations on attempted power of attorney documents
On the assumption that the long‑hand note of Dr King dated 5 July 2019 was the medical report which Mr Manolini refers to in each of his separate attempted power documents concerning Mr Pichinin and then Mr Culleton respectively, I observe that Dr King's note refers only to Mr Manolini's 'anxiety' and his need for a 'support person' to help him through any court proceedings. Given that, I did allow Mr Pichinin to be Mr Manolini's McKenzie friend at the hearing of the present application. However, as I indicated at the time, that authorisation did not extend to authorising Mr Pichinin to speak on behalf of Mr Manolini.
My earlier observations concerning the multiple deficiencies in the so called power of attorney document at WM 2 concerning Mr Pichinin are equally and fully applicable concerning the RNC00 document regarding Mr Culleton.
For completeness, I record that I do not assess the RNC00 document to be any valid grant of a power of attorney to Mr Culleton. In any event, even if it were a valid grant of a power, that would still not authorise Mr Culleton to act on behalf of Mr Manolini in this action, or to speak on his behalf.
At the hearing I was prepared to allow Mr Pichinin to act for Mr Manolini as a McKenzie friend.
However, as I have now discussed, counsel for the plaintiff indicated at the outset of the hearing that the plaintiff objected to Mr Culleton being at the bar table or acting in any such capacity to assist Mr Manolini. In addition, the second defendant had personally indicated an unwillingness to be at the bar table in the presence of Mr Culleton.
Furthermore, it seemed to me that Mr Culleton's presence at the bar table as a further McKenzie friend for Mr Manolini in light of the irrelevant content of the affidavit he had attempted to file would likely be distracting and unhelpful to these proceedings.
Consequently, I then asked Mr Culleton at the outset of the hearing to leave the bar table. Mr Culleton then sat in the public gallery for a portion of the hearing before he left with Mr Pichinin and Mr Manolini at 11.14 am.
In all these circumstances, it may be helpful if I first render some observations concerning the legal role of a McKenzie friend.
McKenzie friend
In Schagen v The Queen (1993) 8 WAR 410 the Court of Criminal Appeal granted leave to two law students to act as a McKenzie friend for the appellant due to that appellant's language and hearing difficulty, and also taking account of the fact that Legal Aid had been refused. The court allowed those McKenzie friends to address the court on the appellant's behalf by speaking to a written statement prepared on behalf of the appellant. In that case, rare and exceptional circumstances were demonstrated because of the fact the court reporting service had found the appellant virtually incomprehensible. This difficulty was compounded because he also had a severe hearing problem. Malcolm CJ had then observed at page 412:
In my opinion, it is within the inherent jurisdiction of the court to determine what extent a 'McKenzie friend' may take part in the proceedings. It would be a rare and exceptional case however, in which a person other than a duly qualified legal practitioner would be permitted to address the court or otherwise take an active part in proceedings. The court was prepared to go further in the present case because the court recording service had found the appellant virtually incomprehensible and this difficulty of understanding was compounded because he also had a severe hearing problem.
In Scarce v Killalea [2003] WASCA 81 McLure J (as she then was) summarised the role of a McKenzie friend. Her Honour had said at [47] - [48]:
... A McKenzie friend assists a party before the court by, for example, making notes and giving suggestions or advice to the litigant in person but does not perform the role of an advocate or representative: McKenzie v McKenzie [1970] 3 All ER 1034 at 1036.
It is only in rare and exceptional circumstances that a McKenzie friend is permitted to address the court or otherwise take an active part in proceedings: Schagen v The Queen (1993) 8 WAR 410 at 412 per Malcom CJ.
In Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416, that court allowed a Mr Tennant to assist that appellant as a McKenzie friend. However, that appellant (unlike the appellant in Schagen) was assessed as demonstrably capable of speaking for himself and presenting his case with the assistance of Mr Tennant. [Incidentally, that also being the position as I assessed matters for Mr Wayne Manolini at the present hearing prior to his departure.]
Macartney was not one of those rare and exceptional cases in which the interests of justice required the court to exercise a discretion in favour of allowing an appellant to be represented by an unqualified person.
In Pennicuik v City of Gosnells [2011] WASC 63, a Mr Dean was allowed to act as a McKenzie friend in the traditional sense of sitting beside that appellant at the bar table, to offer suggestions, take notes or answer questions from the appellant and generally to guide the appellant in relation to the conduct of the proceedings. The circumstances were not sufficient to permit Mr Dean to address the court on behalf of the appellant.
In Santos v The State of Western Australia [No 2] [2013] WASCA 39 the Court of Appeal noted in passing that they had dismissed that appellant's application for a McKenzie friend. The court briefly observed on the role of a McKenzie friend in these terms at [10]:
... A McKenzie friend assists a party before a court by, for example, making notes and giving suggestions to a litigant in person but does not perform the role of an advocate or representative.
In Rehu v The State of Western Australia [2012] WASCA 275, as regards that self‑represented party's wish to be represented by another lay person, Mazza JA had said there at [4]:
The circumstances in which a court will permit a party to proceedings to be represented by a person who is not admitted to practice are exceptional. The reasons for this are not designed to protect lawyers' privilege or monopoly and must not be seen as a technicality. An admitted legal practitioner has ethical duties and responsibilities that unqualified persons do not have. It will not generally be in the interests of justice for an unqualified person to represent a party in proceedings.
In Cristovao v Butcher Paull & Calder [2006] WASCA 184 the swearing of an affidavit containing large volumes of irrelevant material was a matter that was taken into account in the negative exercise of that court's discretion, in terms of not granting leave to a person who sought to act as a McKenzie friend. In that case, the material was assessed to be irrelevant and scandalous.
Finally, and most recently, in Van Der Feltz v Legal Practice Board of Western Australia [2017] WASCA 113, the appellant had been convicted in the Magistrates Court for representing and advertising that he was entitled to engage in legal practice when he was not an Australian legal practitioner. There was an appeal against that conviction, but also a cross‑appeal against the magistrate's spent conviction order by the Legal Practice Board. The Court of Appeal observed, as regards the role of a McKenzie friend at [28] - [29]:
... A court has the discretion to allow a person to attend as a friend of an unrepresented party to provide some assistance to that party. The court has a broad discretion as to the precise role which the person may play. Commonly the role involves taking notes and quietly making suggestions to the party. Although to do so is generally undesirable, in exceptional circumstances the person may be permitted to address the court on behalf of the party.
… A McKenzie friend has no entitlement to engage in legal practice, or to perform any particular role when given permission to assist a party in court.
Application of McKenzie friend principles at the present hearing
As an exercise of discretion, I did allow, as mentioned, Mr Pichinin to sit alongside Mr Manolini at the bar table and to act as his McKenzie friend in the traditional way. As regards Mr Culleton, the assessment was different. The Culleton affidavit, which Mr Manolini had sought to incorporate through his materials, displayed that Mr Culleton was seeking to act for and raise legal arguments for Mr Manolini (somehow) linked to the Royal Style and Titles Act 1973 (Cth), and the (somehow) actions of the Whitlam government at in around 1973 related to that Commonwealth Government's interactions with Buckingham Palace around the time. Apparently, this Commonwealth Crown nomenclature material was supposed to somehow support arguments bearing against the court's present jurisdiction to deal with the plaintiff bank's present application against the first and second defendants. Entertaining such an irrelevant and misconceived exercise would be wholly time wasting and pointless.
Arguments put against the court's jurisdiction had been made and rejected on previous occasions: See Glew v Shire of Greenough [2006] WASCA 260; National Australia Bank Ltd v Joyce [2012] WASC 224 and O'Connell v Western Australia [2012] WASCA 96 [92] - [95]. Wasting time upon distracting and unmeritorious arguments of this kind about the Crown as appeared to be foreshadowed by an inclusion of these materials in the Culleton affidavit provided another basis to exclude Mr Culleton as a McKenzie friend.
As regards Mr Manolini, my impression of him at the bar table is that he was anything but anxious. I assessed him as at ease and perfectly capable of speaking on his own behalf. Regrettably for him, it seemed to me that he displayed no willingness to focus on true issues at hand, namely, his unrepaid indebtedness to the plaintiff bank, and the adverse consequences flowing from out of that. Mr Manolini's repeated attempts to engage over the question of jurisdiction by reference to issues concerning the Crown, to the extent that I could understand them, simply indicated that Mr Manolini was unwilling to engage with the reality of his situation. He had raised no credible defence argument to be put against the plaintiff bank's claim against him.
Conclusions
Consequently, I assessed that there was no arguable defence at all raised by the first or second defendants against the debt and possession of land claims of the plaintiff bank upon the present summary judgment application. The amount of the respective indebtedness was the subject of a conclusive evidence ('Dobbs') certificate I received at the hearing - on the basis that its terms be corrected to indicate that it was being provided by the same Mr Brian Norman Patton (not 'Pelton', as had been first mistyped on the first document) I have previously referred to.
As at 13 August 2019, the certificate provides conclusive evidence against the borrowers and guarantors (unless proven incorrect under the terms of cl 13.1 of the facility terms and cl 19.1 of the mortgage common provisions by reference to those provisions Mr Patton's corrected certificate as certified) that the amount repayable by the first and second defendants to the plaintiff bank under the facility agreement and mortgage was $1,448,085.59 and further, that interest continues to accrue on that amount in the sum of $353.84 per day, or at the rate of:
(1)7.15% per annum on the term loan or $152.81 per day;
(2)11.20% per annum on the seasonal facility or $201.03 per day.
Orders
In the circumstances then, I ordered that summary judgment should issue against the first and second defendants at 13 August 2019 in the following terms:
(1)The plaintiff be granted leave to apply for summary judgment against the first and second defendant's respectively pursuant to O 14 r 1 of the Rules of the Supreme Court 1971 (WA) by 3 July 2019.
(2)The first defendant and the second defendant pay to the plaintiff the sum of $1,448,085.59 being monies owing by the first defendant and the second defendant to the plaintiff pursuant to a Facility Agreement dated 28 August 2011, (as varied), alternatively pursuant to a Guarantee dated 3 July 2006, with interest on the sum at the rate of $353.84 per day from and including 2 July 2019 until payment.
(3)Within 30 days the first and second defendant give vacant possession to the plaintiff of the land described as Lot 1 on Diagram 31597, being the whole of the land in Certificate of Title Volume 1299 Folio 561 otherwise known as 'Marabo'.
(4)The first defendant and the second defendant do pay the plaintiff's costs of this application and the action on a full indemnity basis save to the extent that they are not reasonably incurred.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JT
Research Associate to the Honourable Justice Martin28 AUGUST 2019
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