Tedeschi v Westpac Banking Corporation
[2014] WASCA 223
•3 DECEMBER 2014
TEDESCHI -v- WESTPAC BANKING CORPORATION [2014] WASCA 223
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 223 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:101/2014 | 10 NOVEMBER 2014 | |
| Coram: | NEWNES JA MURPHY JA | 3/12/14 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | THIERRY TEDESCHI ANTOINETTE TEDESCHI WESTPAC BANKING CORPORATION |
Catchwords: | Practice and procedure Whether grounds of appeal have reasonable prospects of success Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(i) Appeal from summary judgment and default judgment by learned master Whether master had jurisdiction Whether master failed to consider evidence Whether master was biased Whether service of writs was effected |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) Rules of the Supreme Court 1971 (WA), O 14 r 3, O 62A r 4, O 1 r 4(2), O 60, O 72 r 4 |
Case References: | Fazio v Westpac Banking Corporation [2014] WASCA 80 Glew v Attorney-General of Western Australia [2014] HCASL 164 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TEDESCHI -v- WESTPAC BANKING CORPORATION [2014] WASCA 223 CORAM : NEWNES JA
- MURPHY JA
- First Appellant
ANTOINETTE TEDESCHI
Second Appellant
AND
WESTPAC BANKING CORPORATION
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : SANDERSON M
File No : CIV 1786 of 2013
Catchwords:
Practice and procedure - Whether grounds of appeal have reasonable prospects of success - Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(i) - Appeal from summary judgment and default judgment by learned master - Whether master had jurisdiction - Whether master failed to consider evidence - Whether master was biased - Whether service of writs was effected
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Rules of the Supreme Court 1971 (WA), O 14 r 3, O 62A r 4, O 1 r 4(2), O 60, O 72 r 4
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : No appearance
Respondent : Mr B C Smith
Solicitors:
First Appellant : In person
Second Appellant : No appearance
Respondent : Gadens
Case(s) referred to in judgment(s):
Fazio v Westpac Banking Corporation [2014] WASCA 80
Glew v Attorney-General of Western Australia [2014] HCASL 164
1 JUDGMENT OF THE COURT: This matter came before the court on 10 November 2014 to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) on the basis that none of the grounds of appeal has a reasonable prospect of success. The appeal concerned a decision by Master Sanderson on 14 August 2014 to enter summary judgment against the appellants. The appeal was dismissed. These are the reasons for decision.
Background
2 The evidence before the master was to the effect that the appellants entered into a loan agreement with the respondent in 2007 under which the appellants borrowed $150,000. The respondent secured the loan by way of mortgage over the appellants' property in Bullsbrook. As at 6 November 2012 the appellants were in default under the loan agreement and mortgage. The respondent filed a writ of summons in the Supreme Court of Western Australia on 15 May 2013 seeking the amount owing under the loan agreement and the mortgage as at the date of judgment, and possession of the Bullsbrook property.
3 On 10 December 2013, the respondent applied for summary judgment against the first appellant pursuant to O 14 r 3 of the Rules of the Supreme Court 1971 (WA) (RSC).
4 The second appellant failed to enter an appearance and on 26 June 2014 default judgment was entered against her pursuant to O 62A r 4(l) of the RSC. The orders included that the second appellant deliver up possession of the Bullsbrook property.
5 On 21 July 2014, the second appellant filed an affidavit which was taken to be an application to set aside the default judgment entered against her.
6 On 14 August 2014, Master Sanderson heard the second appellant's application to set aside the default judgment, and the respondent's application for summary judgment against the first appellant.
7 In relation to the second appellant's application to set aside default judgment, the master found that the application was filed out of time and noted that the affidavit in support of the application confused the default judgment with a summary judgment under O 14. This application was dismissed.
8 In relation to the respondent's application for summary judgment, the master granted the respondent an extension of time (it was outside the 21 day time period), as the master was satisfied from the affidavit in support that there was no prejudice to the appellants. The master found that the respondent complied with the requirements under O 14. The master found that the first appellant's amended defence revealed no basis upon which the summary judgment could be resisted and that there was no arguable defence. The master entered summary judgment in favour of the respondent.
Grounds of appeal
9 The appellants' grounds of appeal were as follows:
1. A master cannot sit in a judicial function.
2. Master Sanderson is not an officer of the crown, he is an employee of a company known as the Department of the Attorney-General (ABN 7059 85 19448) and is a creature of statute.
3. Master Sanderson sat in the Supreme Court of Western Australia in a judicial function in direct contempt of a previous decision of the High Court of Australia.
4. Master Sanderson sat in a corporate gathering, disguised as a court.
5. Master Sanderson has been previously made aware in Glew v Attorney General of Western Australia HCA P19 of 2014 that a court is a gathering under the sovereign as stated by Justice French in Lane v Morrison HCA 29 of 2009.
6. Master Sanderson, pre-judged the issue relating to the hearing of the matter.
7. Master Sanderson erred in law and fact in that he failed to consider evidence including documented evidence of the Defendant.
8. Master Sanderson, erred in law and fact in that he accepted the plaintiff's submissions and evidence, when that evidence and those submissions and documents before the court were incorrect and not up to date and fully disputed by the defendant.
9. Master Sanderson erred in law, when he displayed complete bias by he [sic] accepting the evidence of Westpac which was refuted by the defendants and not proved by Westpac. He failed to refute the evidence of the Defendant yet he refused to accept Mr Tedeschi's evidence.
10. Master Sanderson on the evidence before the court and the testimony of the appellant should have ordered, declared and found that the respondent, was dishonest and accordingly at law should have found that Westpac had no place in this matter in a court of record.
11. Master Sanderson erred in law and fact, in that he failed to take into account the obtuse, dishonest and the unprofessionalism of the plaintiff's lawyer.
12. At no time was a writ served on either Appellants by the Respondents.
10 The first appellant, who appeared on behalf of the appellants at the hearing on 10 November 2014, accepted that the appeal raised, in effect, four points:
(a) Master Sanderson had no jurisdiction to hear the application;
(b) the Master did not consider the appellants' evidence;
(c) the Master was biased in accepting the respondent's evidence; and
(d) the writs were not served.
11 In relation to (a), with respect to ground 7, the appellants referred, in effect, to Glew v Attorney-General of Western Australia [2014] HCASL 164 P/192014. In that matter, Kiefel and Keane JJ said:
On 12 February 2014, the Supreme Court of Western Australia (Master Sanderson) declared the applicant a vexatious litigant pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA) on the basis of the applicant's persistence in instituting proceedings that had no hope of success.
On 17 April 2014, the Court of Appeal of the Supreme Court of Western Australia (Newnes and Murphy JJA) dismissed the applicant's appeal on the basis that none of the applicant's grounds of appeal had a reasonable prospect of success.
The applicant now seeks special leave to appeal to this court. The applicant's grounds of appeal disclose no reason to doubt the correctness of the Court of Appeal's decision. An appeal to this Court would enjoy insufficient prospects of success to warrant the grant of special leave to appeal. Special leave should be refused.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
Disposition
12 In relation to the first point, O 60 of the RSC sets out a master's jurisdiction. Rule 1 relevantly states that a master 'has the same jurisdiction that a judge sitting in chambers has under the Supreme Court Act 1935 or [the RSC], unless it is expressly stated otherwise'. The restrictions on a master's jurisdiction, which are listed under O 60 r 1(3), do not refer to summary judgment under O 14 or default judgment pursuant to O 62A r 4. Further, O 1 r 4(2) provides that within the RSC, 'the Court' means 'the Supreme Court or any one or more judges thereof, whether sitting in court or in chambers, or a master'; and the RSC states that an application for summary judgment (O 14 r 1) and for default judgment (O 62A r 4; O 13) are to be made to 'the Court', which includes a master. The appellants' reference to Glew evidently does not assist the appellants. The first point, to the effect that the master lacked jurisdiction, has no arguable foundation.
13 In relation to the second point, the material submitted by the appellants before Master Sanderson comprised the first appellant's defence and amended defence; the first appellant's affidavit filed 24 June 2014; and the second appellant's affidavit filed 21 July 2014. The master expressly considered the second appellant's affidavit and decided to dismiss the application to set aside default judgment (14 August 2014, ts 3 - 4). In relation to the first appellant's affidavit, he essentially deposed that he had been unable to work for medical reasons. The affidavit did not contain anything that was not covered in the amended defence. The master stated '[t]aking into account what is said in [the] amended defence, it seems to me there is no basis upon which the summary judgment application can be resisted. There simply isn't a defence to the claim.' (14 August 2014, ts 7). The master clearly considered the material filed by the appellants. There is nothing in the second point.
14 As to the third point, in Fazio v Westpac Banking Corporation [2014] WASCA 80, where an allegation of bias was made against a master, Pullin and Newnes JJA expressed the relevant law as follows:
The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it [29].
15 It appears from the appellants' case that the basis for the allegation of bias is that the master accepted the evidence of the respondent and 'refused to accept [the first appellant's] evidence'. Further, the appellants submit that the master should have insisted that the deponents of the respondent's affidavits be present so the appellants could cross examine them. It was open to the master to accept the respondent's evidence. The respondent fulfilled the requirements under O 14 of the RSC in its application for summary judgment. There was no requirement for the deponents of the affidavits to be present at the hearing. The allegation of bias is entirely without merit.
16 In relation to the fourth point, the statement of claim was indorsed on the writ of summons which was filed in the Supreme Court. The first appellant filed an appearance and a defence on 3 July 2013 (which made reference to the statement of claim). The second appellant did not enter an appearance, and the court made an order on 6 August 2013 for substituted service pursuant to O 72 r 4 of the RSC. Further, the respondent filed an affidavit dated 23 August 2013 deposing that on 21 August 2013 the respondent's solicitors had sent the writ of summons to the address specified in the order for substituted service. This ground has no arguable merit.
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