Taylor v Schaub
[2014] VSC 415
•21 August 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 2048
| WESLEY RAYMOND TAYLOR | Appellant |
| v | |
| MARK SCHAUB GAYLE BRENDA SCHAUB | First Respondent Second Respondent |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2014 |
DATE OF JUDGMENT: | 21 August 2014 |
CASE MAY BE CITED AS: | Taylor v Schaub |
MEDIUM NEUTRAL CITATION: | [2014] VSC 415 |
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APPEAL – Appeal on question of law from Magistrates’ Court – Claim in conversion – Summary dismissal of claim – Plaintiff’s Statement of Affairs containing statements about ownership of property – No evidence by plaintiff about his ownership of the goods the subject of his claim – Application to rely on further evidence refused – Open to Magistrate to decide that claim had no real prospect of success – Civil Procedure Act 2010 (Vic) ss 63, 64.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondents | Mr S Rubenstein | Logie-Smith Lanyon |
HIS HONOUR:
Mr Taylor appeals from orders of His Honour Magistrate McNamara, given on 7 April 2014, which dismissed his claim and ordered him to pay the defendants’ costs.
The order dismissing Mr Taylor’s claim was made under s 63 of the Civil Procedure Act2010 (Vic).
An initial issue arose in the appeal as to whether Mr Taylor needed leave to appeal because the order of Magistrate McNamara was interlocutory. I directed that any application for leave and the appeal be heard together.
I will proceed on the assumption that Mr Taylor has a right of appeal.
Mr Taylor represented himself and made comprehensive submissions. His solicitor had very recently been given leave to cease to act. I asked Mr Taylor if he wanted an adjournment to obtain further legal representation, but he did not wish that to occur. I have considered, and taken into account, the written submissions that Mr Taylor’s lawyers prepared while they were acting. I have also taken into account the respondents’ written submissions.
The question of law relied on by Mr Taylor was whether it was reasonably open to the Magistrate to find Mr Taylor’s case had no real prospect of success and to give summary judgment for the respondents, pursuant to s 63 of the Civil Procedure Act 2010 (Vic). The associated ground of appeal was whether the Magistrate was wrong in law in finding that Mr Taylor’s claim had no real prospect of succeeding at a hearing, based upon his finding that Mr Taylor’s Statement of Affairs under a Personal Insolvency Agreement made in 2008 was contradictory of his claim.
Sections 63(1) and 64 of the Civil Procedure Act 2010 (Vic) provide:
63(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim … has no real prospect of success.
64 Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
Mr Taylor’s claim asserts that he was the owner of goods that were stored at a property in Wonga Park. In August 2007, the goods came into the possession of the respondents, Mr and Mrs Schaub, when they settled their purchase of the premises, following a mortgagee sale. Mr Taylor contends that the goods were not part of the contract of sale and he has demanded that the Schaubs deliver them up to him. Mr Taylor contended that they have failed to do so and have therefore converted the goods. He seeks an order for delivery up of the goods or, alternatively, damages.
The respondents did not admit Mr Taylor’s ownership of the goods and said, in essence, that they he had abandoned them. They also relied on claims of trespass and nuisance against Mr Taylor and on various other defences, including a limitation of actions defence.
The respondents, by summons of 2 April 2014, sought the dismissal of the proceeding, in part in reliance on s 63 of the Civil Procedure Act 2010 (Vic). The summons also relied on Mr Taylor’s alleged failure to give discovery, but that contention does not seem to have been pursued at the hearing or decided by the Magistrate and formed no part of the argument before me.
The supporting affidavit, which was sworn by the solicitor for Mr and Mrs Schaub, insofar as it dealt with the summary judgment application, stated under the heading, “Statement of Affairs of the Plaintiff, dated 23 September 2008”, that the solicitor had obtained a copy of the Statement of Affairs of Mr Taylor, declared on that date. That was about a year after the settlement of the mortgagee sale. The affidavit states that the Statement of Affairs formed the basis of Mr Taylor’s Personal Insolvency Agreement under the Bankruptcy Act 1966(Cth). Mr Des Ryan was appointed controlling trustee. The Statement of Affairs included the following questions and answers:
27. Vehicles. Do you own, or have an interest, in any vehicles? No.
…
31.Money Owed to you. Do you have any debts owed to you? No.
…
34.Assets you own which are in somebody else’s possession. Do you own any assets which are not currently in your possession? No.
…
37.Other items of value. Other than your general household furniture, do you own any other assets or items of value? No.
Mr Taylor also answered “no” to questions about whether he owned business assets.
The affidavit of Mr and Mrs Schaub’s solicitor states that on 20 March 2014, her firm provided a copy of the Statement of Affairs to Mr Taylor’s solicitors and invited them to consider whether Mr Taylor’s claim had a proper basis. The Schaubs contend that answers given by Mr Taylor in the Statement of Affairs suggest that he did not own the goods.
Page 20 of the Statement of Affairs contains the following statement: “S267(2) of the Bankruptcy Act provides that a person must not sign a declaration that the person knows to be false. Penalty: Imprisonment for 12 months”. Mr Taylor signed the Declaration. Mr Ryan signed it as the person who provided him assistance. The reason given for Mr Taylor requiring the assistance was: “Didn’t understand questions”.
Neither Mr Taylor, nor anyone on his behalf, filed affidavits in opposition to the Mr and Mrs Schaubs summons of 2 April 2014. At the hearing of the summons on 7 April 2014, Mr Taylor was represented by counsel and the Schaubs were represented by their solicitor.
There was extensive discussion between the Magistrate and counsel for Mr Taylor about the effect of the Statement of Affairs. Counsel asserted that any contradiction between the Statement of Affairs and Mr Taylor’s claim was a matter for cross-examination. Counsel for Mr Taylor relied on the Reference was made to the Mr Taylor’s statement in the Statement of Affairs that he did not understand the questions.
Counsel for Mr Taylor also submitted that many of the goods that he claimed did not have to be disclosed in the Statement of Affairs under bankruptcy law and that Mr Taylor was entitled to retain them. Counsel also argued that many of the goods were not in Mr Taylor’s possession, because, as at September 2008, they were not goods that were available to him to take possession of them.
Counsel submitted that Mr Taylor’s claim should be permitted to go to a full hearing with rights of cross-examination of witnesses. When counsel was asked whether Mr Ryan would be called as a witness, he answered “Not necessarily” and reiterated that the goods had not been in Mr Taylor’s possession and that the Statement of Affairs did not operate as an estoppel.
No application was made to the Magistrate for Mr Taylor to give oral evidence, nor any application made for an adjournment to file an affidavit in response to the affidavit filed on behalf of the Schaubs.
The Magistrate, in giving reasons, referred to the relevant authorities governing the application of s 63 of the Civil Procedure Act2010 (Vic) and stated:
So is there a real chance of success? On the face of the document that has been provided in the bankruptcy proceedings, the statement of affairs, it entirely contradicts … the claims that are made in the claim in this case. If there was no mistake and no misunderstanding in making that statement then this claim would have, I think clearly, to be dismissed.
It would absolutely be destructive of the maker’s credit in every way and it’s such a total contradiction that it would have to be dismissed. What’s said however is that Mr Taylor didn’t understand the form that he completed. I simply don’t accept that that’s, I mean it is theoretically possible, but I think it’s fanciful. I think it’s fanciful to accept that that’s the case.
This was a very serious document, a very considered document. It was sworn. It was sworn with assistance and it formed the basis of the settlement of the bankruptcy proceedings. It can’t be simply credibly put that this was simply a mistake. And following that logic I find that the prospect of success of this claim is fanciful and the claim will be dismissed under s 63 of the Act.
Mr Taylor referred to the Magistrate’s use of the words “if there was no mistake and no misunderstanding” despite there being no material before him suggesting that there was any mistake or misunderstanding, except for the statement in the Statement of Affairs that Mr Taylor did not understand the questions. However, that response was an explanation of why Mr Ryan had assisted him.
I raised with Mr Taylor the fact that on exceptional occasions in the hearing of an appeal on a question of law, the appellant will seek to rely on additional evidence and that the Court has a discretion to permit that additional evidence to be relied on. No such application had been made in this case. Mr Taylor said he was not aware of that right. He did make a formal application to provide additional evidence.
As I have said, Mr Taylor was represented by solicitors acting for him until recently. The additional evidence that he sought to rely on had not been prepared in the form of an affidavit. However, I assume that the additional evidence would contain the matters that Mr Taylor discussed in his submissions and a letter that is said to have been obtained from Mr Ryan. Mr Taylor stated that his solicitors had advised him in a letter of 31 July 2014 that they did not propose to rely on Mr Ryan’s evidence.
I do not grant Mr Taylor’s application to rely upon additional evidence as part of his appeal. The principles that govern the reception of additional evidence on an appeal require the court to consider the explanation provided for the failure to lead the evidence at first instance, whether the evidence was discoverable in time to be used at the trial by the exercise of reasonable diligence, whether it is reasonably clear that if the evidence had been adduced at the trial, an opposite outcome would have occurred, the credibility of the evidence, and the overall justice of the case.[1] The justice of the case requires the court to consider not only Mr Taylor’s case position, but also that of the Schaubs.
[1]Clark v Stingel [2007] VSCA 292.
I take into account that Mr Taylor has had a number of opportunities to place before the Magistrates’ Court and this court evidence about the Statement of Affairs. Those opportunities occurred before the hearing in the Magistrates’ Court, at the hearing, including being able to apply to have Mr Taylor give oral evidence, and also after the appeal was lodged, including pursuant to orders and directions that the Associate Justice gave for the conduct of the appeal.
I take into account that Mr Taylor is dissatisfied with the way in which his case was presented. However, he retained the solicitors, who had acted for him in the Magistrates’ Court, for the purposes of preparing this appeal. Taking that into account and also considering the effect on the Schaubs by the lengthening of this appeal, if further evidence was permitted, I refuse Mr Taylor’s application.
A decision was taken with Mr Taylor’s knowledge not to have any affidavit put before the Magistrates’ Court. He may well have relied on lawyers’ advice but the justice system has to operate primarily by reference to decisions that are made in litigation.
Mr Taylor put extensive submissions in support of his appeal about the course that the Magistrate should have taken. He submitted that the Magistrate should have ordered a full hearing of his claim and that he had pointed to the explanations that had been provided to the Magistrate of the statements made in his Statement of Affairs. He submitted that his case had not been properly presented to the Magistrate and that he had left the Magistrates’ Court feeling that an injustice had occurred. He submitted that Mr and Mrs Schaub, through their lawyer, had made statements to the Magistrates’ Court that were inaccurate and may have coloured the Magistrate’s views. Mr Taylor also referred to statements made in proceedings commenced by the Schaubs seeking an intervention order against him, which he submitted showed that they realised that he had been pressing for the return of the goods and had not abandoned them.
Counsel for the respondents relied on the terms of the questions and answers in the Statement of Affairs and pointed to the fact that no explanation for them had been provided.
I return to the question of law that is the basis of this appeal, and the associated ground of appeal: whether it was reasonably open for the Magistrate to reach the finding that Mr Taylor’s case had no real prospect of success and to give summary judgment for the respondents, and whether the Magistrate erred in law in finding that Mr Taylor’s claim had no real prospects of success at a hearing based on his finding that Mr Taylor’s Statement of Affairs was contradictory of his claim.
This appeal is not a de novo appeal and I am limited to the question of law stated in the Notice of Appeal. The question of whether a claim has no real prospects of success may often involve questions of fact, as well as law. To some extent, that is the case in this appeal.
I consider that it is important that the Magistrate received no explanation from Mr Taylor about the Statement of Affairs or any affidavit in which Mr Taylor sought to establish his ownership of the goods. In those circumstances, I consider that it was reasonably open to the Magistrate to conclude that the Statement of Affairs constituted an admission that Mr Taylor did not own the goods. In those circumstances, the Magistrate was entitled to conclude that the Schaubs had established that Mr Taylor’s claim had no real prospects of success.
The Magistrate did consider whether the case should go to trial and I see no error in his exercise of discretion on that issue. It is not for this Court to decide whether it would have reached the same decision as the Magistrate in respect of that exercise of discretion.
For those reasons, the appeal is dismissed.
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