Sharpe v W H Bailey and Sons Pty Ltd

[2013] NSWSC 1094

Supreme Court

New South Wales

Medium Neutral Citation:

Sharpe v W H Bailey & Sons Pty Ltd [2013] NSWSC 1094

Hearing dates:

12 August 2013

Decision date:

12 August 2013

Before:

Adamson J

Decision:

(1) The stay of the execution and enforcement of the judgment entered in the Local Court at Bellingen on 6 December 2011 granted by Campbell J in orders (1) and (2) made on 2 July 2013 is dissolved.

(2) The defendant's notice of motion filed by the defendant on 1 August 2013 is otherwise dismissed.

(3) The plaintiff is to pay the defendant's costs of the notice of motion filed on 1 August 2013, assessed at $2000, within 14 days.

(4) Stand the matter over for further directions before the Registrar at 9.30 am on 14 October 2013, with liberty to restore to the Registrar's list on 3 days' notice.

Catchwords:

PRACTICE AND PROCEDURE - stay of judgment - condition of stay - strict compliance - effect of non-compliance

PRACTICE AND PROCEDURE - application for summary dismissal of application for leave to appeal - whether no arguable grounds

PRACTICE AND PROCEDURE - costs - application for order conditioning prosecution of matter upon payment - poverty no bar to a litigant

Legislation Cited:

- Farm Debt Mediation Act 1994, s 5(2)(b)
- Uniform Civil Procedure Rules 2005, r 50.14

Category:

Interlocutory applications

Parties:

David George Sharpe (Plaintiff)
W H Bailey & Sons Pty Ltd (Defendant)

Representation:

Counsel: Plaintiff in person
R Mulquiney (solicitor)
Solicitors: Hargraves Solicitors (defendant)

File Number(s):

2013/172370

Publication restriction:

Nil

Judgment

Introduction

1. The plaintiff, David George Sharpe, filed a summons dated 3 June 2013 seeking leave to appeal against a decision of Evans SM in the Local Court at Bellingen made on 23 May 2013 refusing Mr Sharpe's application to set aside a judgment entered on 6 December 2011 in that Court in the sum of $73,499.56.

1. At a directions hearing in this Court on 19 June 2013 the Registrar ordered Mr Sharpe to file documents pursuant to UCPR 50.14 by 24 July 2013. The documents specified by UCPR 50.14 include the reasons for decision, the transcript and other parts of the record of the Court below. Such documents are the principal, if not the only, documents relevant to an application for leave to appeal and any appeal against a decision of the Local Court.

1. Mr Sharpe sought a stay of the judgment and any enforcement action relating to the judgment pending determination of his application for leave to appeal and any consequential appeal. The impetus for his application appeared to be impending proceedings for his bankruptcy in the Federal Circuit Court. His stay application was heard on 2 July 2013 by Campbell J as the duty judge. At the conclusion of the hearing his Honour made orders which were in substance as follows:

(1)   Execution of the judgment entered for the defendant in the Local Court at Bellingen on 6 December 2011 is stayed pending the disposition of the summons seeking leave to appeal.

(2)   The defendant is prohibited from taking any action to enforce the judgment including prosecution of the matter in the Federal Circuit Court of Australia at Sydney.

(3)   The costs of this application are the parties' costs in the appeal.

(4)   Orders 1 and 2 hereof are conditional upon the plaintiff strictly complying with the requirements of the rules and any orders or directions made for the purpose of prosecution of his application for leave to appeal.

(5)   In default of compliance with order (4) hereof, the defendant has leave to apply for the summary dissolution of orders (1) and (2) on three days' prior written notice to Mr Sharpe and the Court.

1. Mr Sharpe did not file the documents he had been ordered to file by 24 July 2013. The defendant by email of that date sent at 10.45 pm foreshadowed an application to dissolve the stay pursuant to the leave granted by Campbell J in order (5) above. On 25 July 2013 Mr Sharpe filed the documents required to be filed by UCPR 50.14.

1. W H Bailey & Sons Pty Limited, the defendant, filed a notice of motion on 1 August 2013 seeking to dissolve a stay of the judgment and any enforcement action by reason of alleged non-compliance by Mr Sharpe with orders made in this Court on condition of strict compliance with orders and directions relating to the proceedings. It did so pursuant to the leave granted by Campbell J in order (5) above. The defendant also seeks an order that the summons be summarily dismissed. I will deal with these two applications separately since they give rise to different issues.

1. The defendant relied on the affidavit of John Brian Gorman sworn 31 July 2013. The plaintiff relied on his affidavit of 31 July 2013. The defendant objected to the plaintiff's affidavit since it had not been served, notwithstanding that the Registrar had directed him on 31 July 2013 to serve any affidavit evidence on which he proposed to rely at the hearing of the defendant's notice of motion for dissolution of the stay. The first time the defendant became aware of the plaintiff's affidavit was when it was handed to its representative at the bar table at the hearing of this motion this morning. Notwithstanding non-compliance with the Court's directions, I permitted the affidavit to be read.

Whether the stay ought be dissolved

1. It is accepted, as it must be, that the plaintiff failed strictly to comply with order (1) made by the Registrar on 19 June 2013 because he did not file the affidavit required by 24 July 2013.

1. The defendant also relied on an alleged failure to serve the affidavit. UCPR 50.14 requires a plaintiff, unless the court otherwise orders, is to serve the specified documents on the defendant no longer than three days before the date fixed for the hearing of the summons. However, as no date has yet been fixed for the hearing of the summons, there was no requirement for the plaintiff to serve the material on the defendant. Whilst it might be implicit in the Court's order made on 9 June 2013 that the documents to be filed ought also be served within the same period, I am not disposed to act on any implied non-compliance, having regard to the seriousness of the consequences of breach and of the orders sought in the notice of motion filed 1 August 2013. Indeed, the defendant abandoned reliance on alleged failure to serve the affidavit in the course of oral argument.

1. Mr Sharpe sought to excuse his delay on the grounds that he is impecunious, lives in Coffs Harbour, does not have access to office resources and was, on 24 July 2013, thwarted by these matters combined with Sydney traffic which stopped him from filing the relevant affidavit in the Registry in this Court in accordance with the directions. He deposed to these matters in his affidavit of 31 July 2013 referred to above.

1. Mr Sharpe submitted that although the orders made on 2 July 2013 referred in terms to strict compliance, they ought be construed to mean merely that the application for leave to appeal ought be prosecuted with due despatch and without delay. He contended that he was prosecuting the proceedings in such a manner and that there ought be no dissolution.

1. The defendant's primary submission before me was that the orders made by Campbell J on 2 July 2013 were, effectively, self-executing and that the purpose of order (5) was, in essence, to formalise the effect of non-compliance. In other words, failure strictly to comply with a direction would lead to a dissolution of the stay on the judgment and any enforcement action arising from the judgment. The defendant submitted that in these circumstances, non-compliance having been established, the stay ought be dissolved.

1. The defendant submitted, in the alternative, that if there was any discretion to excuse non-compliance, it ought not be exercised in Mr Sharpe's favour. The defendant submitted that Mr Sharpe's explanation for his delay showed that he had left his run too late and taken the risk of non-compliance by coming to Sydney from Coffs Harbour and endeavouring to file the documents on the last day for compliance. The defendant also relied on the fact that the plaintiff had given no notice of his breach of the order and had only filed the affidavit after the defendant had notified him on the evening of 24 July 2013 that it would rely on the non-compliance to dissolve the stay. The defendant also referred to the circumstance that the plaintiff's explanation for delay was contained in an affidavit of 31 July 2013, which was first served on the defendant at the bar table when this matter was called this morning.

1. I accept the defendant's submissions. The condition on which the stay was granted was one of strict compliance. There has not been strict compliance. I am not satisfied that, but for the email of 24 July 2013, the plaintiff would have filed the affidavit on 25 July 2013. Although it might be said that a day's non-compliance is of little moment, the plaintiff's explanation indicates the extent to which he has failed to give priority to these proceedings and was prepared to take the risk of non-compliance. Therefore even if I did not regard Campbell J's orders as effectively self-executing, I would not be disposed to excuse the plaintiff's non-compliance.

1. I am satisfied that the stay granted by Campbell J on 2 July 2013 ought be dissolved, since the condition to which it was subject has not been fulfilled and secondly, because I do not consider there to be sufficient grounds to excuse the plaintiff's non-compliance.

1. This has the effect that the stay granted by Campbell J has been dissolved and the defendant is no longer prohibited from taking any action to enforce the judgment entered in the Local Court at Bellingen, which is the subject of the plaintiff's application for leave to appeal.

Whether the application for leave to appeal ought be summarily dismissed

1. The defendant submitted, in support of the application in prayer two of the motion for summary dismissal of the summons, that there were no arguable grounds of appeal against the judgment. It contended that the only basis on which it was sought to appeal the decision of the Local Court was that Mr Sharpe had a defence under the Farm Debt Mediation Act1994 (the Act) and that the Act no longer applied because a creditor's petition had been filed in the Federal Court on 12 July 2013 by a Mr Heywood: s 5(2)(b) of the Act. Section 5(2)(b) provides that the Act does not apply in respect of a farmer whose property is the subject of a bankruptcy petition presented by any person.

1. The defendant contended that although Campbell J considered that there were arguable grounds of appeal, the petition had not been filed when the matter came to be considered by his Honour on 2 July 2013. The defendant submitted that, as the provision now applied, there ought be no impediment to the enforcement of the judgment the subject of the application for leave to appeal.

1. Mr Sharpe submitted that I ought not summarily to dismiss his application for leave to appeal because it was questionable whether s 5(2)(b) of the Act has the effect for which the defendant contended. Furthermore he informed me, and this is common ground, that the decision of the Registrar of the Federal Circuit Court to grant leave to Mr Heywood to issue a creditor's petition is the subject of review by Federal Circuit Judge Altobelli on the plaintiff's application. The application for review was heard on 6 August 2013. His Honour's decision is still reserved. Mr Sharpe further submitted that, even if the creditor's petition was not set aside, s 5 of the Act could not have the effect of resurrecting a judgment that the Act had rendered void in any event.

1. I am not satisfied that there are no arguable grounds for appeal or that s 5(2)(b) of the Act necessarily has the effect of making irrelevant that which has already occurred. In circumstances where Campbell J found, in a carefully reasoned judgment delivered on 2 July 2013, that there were otherwise arguable grounds of appeal, I do not consider it appropriate to decide that there are not, based on the intervening filing of a creditor's petition which attracts the operation of s 5(2)(b) of the Act, although the filing of such petition may well have that effect.

1. The matter could shortly become moot having regard to the parallel proceedings in the Federal Circuit Court for the bankruptcy of Mr Sharpe, but I need say no more about that since those proceedings are in the hands of the Federal Circuit Court and not this Court.

1. Accordingly, I make orders in terms of prayer one of the notice of motion filed on 1 August 2013, but I refuse the order in prayer two of the notice of motion.

Costs

1. The defendant sought an order for costs of the motion and also that the costs be quantified in an amount of $2000, which will cover the filing fee for the motion, the hearing fee and travel expenses. I do not consider that sum to be unreasonable, and Mr Sharpe did not contend otherwise. The defendant sought a further order that, unless and until the plaintiff pays the costs of the motion, he not be permitted to prosecute these proceedings. Mr Sharpe resisted any order that would require him to pay the costs of the motion as a condition of his prosecuting the proceedings on the basis that he has no available cash to meet such an order and that that order would stymie the proceedings.

1. In all the circumstances, I consider it to be appropriate to order the plaintiff to pay the defendant's costs of the notice of motion in the sum of $2000 within fourteen days. I decline to make the prosecution of these proceedings conditional upon payment of that amount since I am satisfied, on the basis of his repeated admissions, that the plaintiff has no funds and that to impose such a condition would bring the litigation to an end and would infringe the principle that poverty is no bar to a litigant.

1. Because the proceedings in the Federal Circuit Court might result in Mr Sharpe's bankruptcy, the parties did not oppose an order that these proceedings be stood over for period with a view to seeing if that occurs. Accordingly, I stand the matter over before the Registrar on 14 October 2013 with liberty to restore the matter to the Registrar's list for further directions on three days' notice.

Orders

1. I order:

(1)   The stay of the execution and enforcement of the judgment entered in the Local Court at Bellingen on 6 December 2011 granted by Campbell J in orders (1) and (2) made on 2 July 2013 is dissolved.

(2)   The defendant's notice of motion filed by the defendant on 1 August 2013 is otherwise dismissed.

(3)   The plaintiff is to pay the defendant's costs of the notice of motion filed on 1 August 2013, assessed at $2000, within 14 days.

(4)   Stand the matter over for further directions before the Registrar at 9.30 am on 14 October 2013, with liberty to restore to the Registrar's list on 3 days' notice.

Decision last updated: 13 August 2013