SCALES and MACQUARIE GROUP LIMITED - [2010] WASAT 170

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: CONSUMER CREDIT (WESTERN AUSTRALIA) ACT 1996

CITATION: SCALES and MACQUARIE GROUP LIMITED [2010] WASAT 170

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 2 NOVEMBER 2010

DELIVERED : 24 NOVEMBER 2010

FILE NO/S: CC 153 of 2010

BETWEEN: MICHAEL DAVID SCALES
Applicant
AND
MACQUARIE GROUP LIMITED
Respondent

Catchwords:

Consumer credit - Application to extend time for compliance with springing order - Dismissing proceeding - Principles to be applied - Whether applicant has demonstrated a reasonably arguable case

Legislation:

Consumer Credit (Western Australia) Act 1996 (WA), s 5
Consumer Credit (Western Australia) Code, s 5(a), s 6(1)(b), s 6(4), s 6(5), s 11, s 11(3), s 70(1)
Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010 (WA), s 5(2)
State Administrative Tribunal Act 2004 (WA), s 9(b), s 32(5), s 87(1), s 92(1), s 92(2)
State Administrative Tribunal Rules 2004 (WA), r 22

Result:

Application for extension of time dismissed
Proceedings stand dismissed

Category: B

Representation:

Counsel:

Applicant: Mr G Cridland
Respondent: Mr GD Cobby

Solicitors:

Applicant: Lyons & Lyons
Respondent: Gadens Lawyers

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

Ambrus v Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141
FAI General Insurance Co Ltd v Southern Cross Exploration NL 165 CLR 268
McLean and Permanent Custodians Limited [2010] WASAT 127
MTQ Holdings Pty Ltd v Lynch & Ors [2007] WASC 49

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant applied for an order extending the time for compliance with a springing order under which the proceedings were dismissed.
The Tribunal applied the principles in MTQ Holdings Pty Ltd v Lynch & Ors [2007] WASC 49 together with other factors identified by the applicant. Although there were a number of factors in favour of the applicant, the Tribunal concluded that the prospects of the applicant succeeding with his claim were particularly weak and noted that there was no point in resuscitating a case devoid of merit. Accordingly, the Tribunal concluded that the application for an extension of time should be refused with the result that the proceedings stood dismissed.

The proceedings before the Tribunal

In this matter, the Mr Michael Scales (applicant) has applied to the Tribunal pursuant to s 70(1) of the Consumer Credit (Western Australia) Code (Code). The Code at all material times had effect under s 5 of the Consumer Credit (Western Australia) Act 1996 (WA) (CC(WA) Act). The CC(WA) Act was repealed by the Credit (Commonwealth Powers) (Transitional and Consequential Provisions) Act 2010 which came into operation on 1 July 2010 (Western Australia, Government Gazette, No 130 (30 June 2010)). Pursuant to s 5(2) of the last mentioned Act, these pending proceedings are to be dealt with under the CC(WA) Act despite the repeal of that Act.
At a directions hearing and call-over on 14 June 2010, this matter and a related matter between the applicant and ANZ Banking Group Limited, being Matter No CC 155 of 2010, were identified…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] WASAT 170
Decision Date: 24 NOVEMBER 2010

CaseChat Overview and Summary

In the matter of Scales and Macquarie Group Limited, the State Administrative Tribunal of Western Australia was tasked with determining the application for an extension of time for compliance with a springing order. The applicant, Scales, sought relief from the Tribunal to extend the time for compliance with the order, despite having failed to comply with it. The legal issues before the Tribunal involved the principles governing the extension of time limits for compliance with such orders and whether the applicant had demonstrated a reasonably arguable case for an extension.

The Tribunal examined the statutory framework provided by sections 92(1) and 92(2) of the State Administrative Tribunal Act 2004 (WA), as well as rule 22 of the State Administrative Tribunal Rules 2004 (WA). The respondent conceded that the Tribunal had the authority to extend time limits under these provisions, a concession the Tribunal found to be correct. The Tribunal also considered the broader discretion under section 32(5) of the SAT Act, though it determined that this broader power was not relevant in this context. The applicant had indeed failed to comply with the springing order, despite initial denials in earlier submissions. The Tribunal acknowledged the significance of this non-compliance, particularly given the history of the case and the role of the Scales matters in establishing principles for similar cases.

The Tribunal then assessed the various factors relevant to the decision, including the merits of the case, the history of non-compliance, and the reasons provided for the delay. It was noted that non-compliance with a springing order is generally a serious matter, and this case was particularly so due to the circumstances leading up to the order. The applicant argued that the non-compliance was due to the actions of former solicitors, not the applicant personally, and that a costs order had already been made against those solicitors. The Tribunal concluded that the applicant had not demonstrated a reasonably arguable case for an extension of time, given the history of non-compliance and the lack of sufficient justification for the delay.

Ultimately, the Tribunal dismissed the applicant’s application for an extension of time. The decision underscored the importance of compliance with Tribunal orders and the principle that litigants must bear the consequences of their non-compliance, including that of their former solicitors.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In its written submissions, the respondent concedes that by virtue of the provisions of s 92(1) and s 92(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), read with r 22 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), and if need be, supported by the powers conferred by s 32(5) of the SAT Act, the Tribunal has power to extend the time limit for doing anything in a proceeding, even where the time for doing so has expired. In my view, the respondent's concession is correctly made, although I do not consider it is appropriate to have regard to the general power expressed in s 32(5) of the SAT Act. This conclusion is consistent with the principles expressed in FAI General Insurance Co Ltd v Southern Cross Exploration NL 165 CLR 268 (HC). In the applicant's last mentioned written submissions, it is accepted that the applicant had failed to comply with the springing order, contrary to the earlier submissions filed. It is clearly the case that the applicant did fail to comply with the order. The written submissions reflect that the applicant has withdrawn the application for a stay and that witness statements were filed and served on or before 27 September 2010 [sic]. The single witness statement was filed on 30 September 2010. It is submitted for the applicant, correctly, that there is no closed list of matters to be properly considered by the Tribunal in determining to exercise its discretion on the question of whether to extend time for compliance with a springing order. The submissions then proceed to address the particular factors identified by Master Newnes, as he then was, in MTQ Holdings Pty Ltd v Lynch & Ors [2007] WASC 49 (MTQ Holdings) at [55], including a consideration of the merits of the case, and in addition to other factors submitted to be relevant. Each of those matters will be addressed. Those circumstances are set out fully above. Any breach of a springing order is a serious matter, but it is particularly so in this case given the history of the matter prior to the making of the order and in particular, because the Scales matters had, with the concurrence of the applicant's counsel, been identified as matters to be determined by the President of the Tribunal in order to provide principles which would guide the determination of other cases which have been held in abeyance. It is submitted for the applicant that the respondent has not yet provided all documents sought by the applicant. Mr Lyons refers to this in a general way at para 30 of his affidavit, although counsel for the respondent said that there had been no request until shortly prior to the hearing. It is also submitted that the noncompliance was attributable to the former solicitors and not the actions personally of the applicant, and that a costs order had already been made against those former solicitors. The costs order related only to the hearing on 31 August 2010 which was necessary as a result of the noncompliance with the Tribunal's earlier directions. The provision of documents has evidently had no impact on the ability of the applicant to provide his witness statement and has had no impact on the course which the applicant actually followed, which was to apply for a stay. As explained in MTQ Holdings at [54], generally a litigant must bear the consequences of a failure to comply with a springing order, whether the failure was due to the litigant or his solicitor.