Vella v Michael John Bowden of Cannon Bowden & Co [No 2]
[2014] WASC 97
•1 APRIL 2014
VELLA -v- MICHAEL JOHN BOWDEN OF CANNON BOWDEN & CO [No 2] [2014] WASC 97
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 97 | |
| 01/04/2014 | |||
| Case No: | CIV:1709/2010 | 21 JANUARY 2014 | |
| Coram: | KENNETH MARTIN J | 21/01/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | JOSEPH B VELLA MICHAEL JOHN BOWDEN OF CANNON BOWDEN & CO |
Catchwords: | Civil law Evidence Application to tender affidavit Relevance Case management Proportionality Turns on own facts |
Legislation: | Rules of the Supreme Court 1971 (WA), O 1 r 4B |
Case References: | Sheldon v Sun Alliance Ltd (1988) 50 SASR 236 Vella v Bowden [No 2] [2012] WASCA 271 Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MICHAEL JOHN BOWDEN OF CANNON BOWDEN & CO
Defendant
Catchwords:
Civil law - Evidence - Application to tender affidavit - Relevance - Case management - Proportionality - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4B
Result:
Application refused
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr P D Quinlan SC
Solicitors:
Plaintiff : In person
Defendant : MDS Legal
Case(s) referred to in judgment(s):
Sheldon v Sun Alliance Ltd (1988) 50 SASR 236
Vella v Bowden [No 2] [2012] WASCA 271
Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 21 January 2014 during the trial and has been edited from the transcript.)
1 By chamber summons dated 22 December 2013 the plaintiff in this matter, Mr Vella, applies for leave to tender all of vol 2 of his Green Appeal Book in CACV 39 of 2011 as evidence in his civil trial. This book effectively consists of Mr Vella's two affidavits sworn 16 November 2010 and 25 January 2011 in support of his civil action. By letter to my associate dated 7 January 2014 the defendant gave notice that he opposed this application. The defendant reiterated that position through senior counsel on the first trial day.
2 For this trial I am effectively dealing with the residue of surviving issues as raised by Mr Vella in the indorsement to his writ, and which became under orders made by me on 21 June 2013 effectively his statement of claim. These orders followed in the wake of my decision in Vella v Michael John Bowden of Cannon Bowden & Co [2011] WASC 78, upheld in Vella v Bowden [No 2] [2012] WASCA 271.
3 Effectively, there are four residual discrete civil claim issues I am dealing with today. They are the money claims which remain in the aftermath of orders that I made dismissing the substantial component of Mr Vella's claims against the defendant on the basis of an abuse of process.
4 The civil claims that remain to be determined, and which will now be determined in this trial, are these. First, a claim for $5,564.00 on the basis of alleged overcharging by the defendant when he was acting both as the solicitor and defence counsel for Mr Vella at his 2005 wilful murder trial. Argument essentially about this money issue is quite discrete. There is a contention by Mr Vella there was an agreed flat fee of $11,000, and that a further payment he made of $5,564.00 was over and above the $11,000. Payment of $5,564.20 was nevertheless actually made to the defendant as requested. Mr Vella, by these proceedings, effectively claims that so-called extra money back, plus interest. That is claim number 1.
5 Claim number 2 by Mr Vella, again money-related, concerns the alleged failure by the defendant, when acting for Mr Vella as his solicitor advocate, in a context of preparing for a wilful murder trial fixed for early 2005, to invest proceeds of the sale of a Kallaroo house and land property, of which Mr Vella and his late wife, Ruth Vella, had been joint tenants, in an interest-bearing account, rather than an ordinary non-interest bearing (to the client) solicitors' trust account. This property was also the crime scene on 29 December 2003 where Mrs Vella was ultimately found by a jury to have wilfully murdered his wife.
6 The proceeds of sale of this property were placed into the defendant's trust account in July 2004, with the defendant acting as a stakeholder of the funds.
7 Argument on this claim is over whether in a period between July 2004 and November 2004 some or all of the proceeds of the property sale should have been invested in an interest-bearing trust account for Mr Vella. Effectively, the argument is one of professional negligence against the defendant for not causing the settlement funds to be invested. Mr Vella seeks $15,039.82 in satisfaction of this claim (inclusive of compound interest).
8 Claim number 3 is for $393.71 as a claim for loss of interest on the amount of $1,500 – an amount which Mr Vella was asked to pay by the defendant, and did pay in 2005 for the purpose of commencing and filing an appeal against Mr Vella's conviction for wilful murder. A notice of appeal, a short document, was filed by the defendant, thereby commencing Mr Vella's appeal. Soon after that, the defendant ceased to act for Mr Vella on his instructions.
9 At some point, the defendant, partly he says as a gesture of goodwill refunded the entirety of the $1,500. However, Mr Vella says that not only should he have got back $1,500 - but also interest on that sum - amounting to a relatively trivial amount of $393.71 – again this is a money claim only.
10 The last of Mr Vella's claims which remains live in his proceedings is his claim to an amount of $25,000 plus compound interest, totalling $42,236.97. This is a claim put against the defendant for Mr Vella's lost chattel property, said to be either his or his late wife's, and missing from their former home at Kallaroo. This property, it is contended by Mr Vella, was stolen by Mr Vella's sister-in-law, Mrs B.
11 Now, in the context of preparing throughout 2004 for a looming wilful murder trial set to begin in early March 2005, Mr Bowden was asked by Mr Vella to send a letter to Mrs B about the issue of lost chattel property. Mr Bowden did so by letter of 21 June 2004. Mrs B then effectively rebuffed the enquiry by a reply letter of the next day.
12 At root underlying claim four is a contention by Mr Vella, effectively, that the defendant was negligent by not sending a second and more forceful letter to Mrs B. The consequence of that alleged second letter omission, seemingly assumed by Mr Vella, is that had the second letter been sent to Mrs B it would have prompted a return to Mr Vella of all the missing chattel property he claimed. This is a claim articulated in circumstances where Mr Vella did not instruct either the defendant (in 2004) or his subsequently appointed fresh solicitors (in 2006) to ever actually issue civil proceedings against Mrs B for the loss of the property.
13 Adding the four money claims together sees this court sitting for two days to hear a claim totalling, with interest, $66,664.16.
14 They are the only claims that I am concerned with in the trial. They are the only issues live following my determination as to abuse of process which was upheld by the Court of Appeal in Vella v Bowden [No 2] [2012] WASCA 271.
15 Now, for the purposes of determining the four residual issues, I have earlier given directions for the trial of what remains of this action to be determined upon affidavits by orders made on 21 June 2013.
16 To that end, on 28 August 2013 Mr Vella swore his affidavit which specifically addresses his four money claims as pressed in the proceedings. That affidavit is found, conveniently, in a book of affidavits the defendants have assembled for the purposes of the trial.
17 Mr Vella's 28 August 2013 affidavit comprises Mr Vella's evidence across some 33 paragraphs, and it also attaches proposed exhibits 1 through to 11, from pages 1 to 31.
18 As I understand it, that material can all be adduced into evidence and essentially without objection, or at least no objections have been notified to my associate to date.
19 There is an answering affidavit found in this book, sworn by the defendant. Also incorporated into the book of affidavits at pages 32 - 71, are various attachments to Mr Vella's affidavits of 16 November 2010 and 25 January 2011. Mr Vella refers to these documents in his affidavit sworn 28 August 2013.
20 As I have indicated, the civil claims by Mr Vella that remain alive, and which I am now to determine in this trial, are by the standards of this court of small monetary magnitude. This court's civil jurisdiction usually is engaged at amounts exceeding $750,000. Monetary civil claims below that amount are ordinarily litigated in the District Court or in a Magistrates Court.
21 By submissions dated 18 April 2013, Mr Vella had sought to have the matter remitted to the Magistrates Court in light of its much reduced monetary scope. Although that would normally be appropriate, I refused the application on the basis that it was preferable for what is now the long-running action to continue to be intensively case managed in my CMC list to resolution in the Supreme Court, either through mediation or a trial. I am dealing with it because it is effectively the surviving rump of the main action.
22 I raise the quantum of the claim because principles of proportionality found in O 1 r 4B of the Rules of the Supreme Court 1971 (WA) are relevant. Without good reason, this court must not see itself unnecessarily diverted by haystacks of extra affidavit material dumped on it at the last minute in a context of a relatively small civil claim. Through prior directions, I have tried to direct that the relevant material be assembled in orderly fashion. This has been done by reference to materials which now find their way into a book of affidavits.
23 Having sworn, on 28 August 2013, his affidavit which looks to have culled a great deal of irrelevant material from evidence he had previously sought to tender, Mr Vella now indicates that he would like to rely upon much of that removed material, effectively to rebut, he says, the defendant's answering affidavit. Mr Vella would now seek to rely upon the entirety of two massive affidavits earlier sworn by him in this action and used on his appeal. This application is made some time after the defendant had sworn his affidavit on 7 October 2013 pursuant to my trial programming directions.
24 But these were affidavits relied upon by Mr Vella in a different context. The first was originally sworn on 16 November 2010, containing 42 attachments, effectively over 100 pages of material. The second affidavit Mr Vella would now like to rely upon is sworn 25 January 2011. This is again over 100 pages of material, including attachments 1 through 19.
25 Mr Vella's late attempt to expand the magnitude of the evidentiary materials put before this court in determining his four civil claims for $66,664.16, is unacceptable. His request to do so is late and, effectively, unprincipled.
26 Senior counsel for the defendant firmly opposes the receipt of this material on a basis that it goes only, effectively, to collateral issues. It is irrelevant. At best it contains materials which could go to propensity evidence which, in the context of money claims in civil, by reference to Sheldon v Sun Alliance Ltd (1988) 50 SASR 236 (which Mr Quinlan SC referred to) is generally speaking not received. So the utility of what is offered is only marginal in any event.
27 I reject Mr Vella's application to expand upon effectively, by threefold the amount of documentary affidavit material I already hold. I reject his application to tender holus-bolus the extra two affidavits.
28 Nevertheless, I will say that if within the voluminous attachments to the two affidavits Mr Vella can point me to a document or documents that have some arguable relevance to one or other of his four civil claims I am concerned with (that is, the overcharging claim for $5,564.20, the failure to invest the proceeds of the received moneys, the house sale proceeds, in an interest-bearing trust account rather than a non-interest-bearing solicitor's trust account, the notice of appeal interest claim, or the pursuit of stolen property) then I would hear an application from Mr Vella to admit a discrete document or documents.
29 I indicate that this extra material would be a handful of documents at best and that I would be prepared to listen to Mr Vella's argument about it. I leave that opportunity open to Mr Vella.
30 But I cannot stress enough that any extra documentary material Mr Vella wants to adduce into evidence must have a relevance and connection to one or other of the four issues I have mentioned twice now as all that I am concerned with in this trial.
31 On that basis, I refuse Mr Vella's primary application to admit the extra content of his two affidavits.
Addendum
32 I add by way of postscript that after delivery of these ex tempore reasons senior counsel for the defendant indicated that the defendant did not oppose the tender in evidence of pages 32 to 71 of the Book of Affidavits (ts 9, 10). This material was accordingly received, along with Mr Vella's affidavit sworn 28 August 2013, as exhibit 1 in evidence before me. I further advised Mr Vella that specific attachments to his affidavits of 16 November 2010 and 25 January 2011 could be tendered if they were in fact relevant to his four remaining claims. Pages 511, 512, 513 and 519 of the Green Appeal Book, being handwritten letters containing Mr Vella's instructions to Mr Bowden as his solicitor, were tendered by consent in the trial as exhibit 2.
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