Watiwat v Dixon

[2018] NSWCA 48

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Watiwat v Dixon [2018] NSWCA 48
Hearing dates:	14 March 2018
Decision date:	14 March 2018
Before:	Basten JA and Simpson JA
Decision:	(1)   Dismiss the summons filed 19 December 2017 seeking leave to appeal from the judgment of Robb J given on 20 September 2017.  (2)   Order that the applicant pay the respondents’ costs of the summons, assessed on the basis of their joint representation.
Catchwords:	CIVIL PROCEDURE – application for leave to appeal – proposed appeal from decision regarding practice or procedure – where leave sought to appeal from dismissal of proceedings under Uniform Civil Procedure Rules 2005 (NSW), r 14.3 – whether issue of principle, question of general public importance, or more than merely arguable error raised – whether leave should be granted
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 13.4
Cases Cited:	Be Financial Pty Ltd atf Be Financial Operations Trust v Das [2012] NSWCA 164 In Re the Will of FB Gilbert (Dec’d) (1946) 46 SR(NSW) 318 Watiwat v Dixon [2017] NSWSC 360
Category:	Procedural and other rulings
Parties:	Bienvenido Watiwat (Applicant) Stephen Robert Dixon (First Respondent) Winnie Leung (Second Respondent) Carlos Vincenzo (Third Respondent) Lion Financial Pty Ltd (Fourth Respondent)
Representation:	Counsel: No appearance by Applicant R Parsons (Respondents)   Solicitors: Applicant self-represented CLH Lawyers (Respondents)
File Number(s):	2017/313745
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Division Citation: [2017] NSWSC 1242 Date of Decision: 20 September 2017 Before: Robb J File Number(s): 2016/310747

Judgment

1. THE COURT: In November 2010 trustees were appointed to the bankrupt estate of the applicant’s wife, Ms Bernadita M Badillo-Watiwat. Since then, assets have been sold, including a house jointly owned by the applicant, Bienvenido Watiwat, and his bankrupt wife.

2. In October 2016 the applicant commenced proceedings against the trustees and those involved in the administration of Mrs Watiwat’s bankruptcy, together with the petitioning creditor (Lion Finance Pty Ltd). On 20 September 2017 Robb J dismissed the proceedings commenced by the applicant, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). The applicant seeks leave to appeal from that judgment.

3. The applicant did not attend at the hearing of the application today. He indicated by telephone to the solicitor for the respondents that he had received no notice of the proceedings. As the court records indicate and as was pointed out to him by the respondents’ solicitor, he appeared before the Registrar on 5 February 2018 when the date was fixed for the hearing of the application, dealing only with the question of leave.

4. Mr Parsons appearing for the respondents seeks to have the matter dealt with today. Given the written submissions filed by both parties, the Court is in a position to do that. The matter should be disposed of without additional cost to the respondents.

5. The draft notice of appeal states: [1]

“There are material issues that need to be tested in court; Malicious Prosecution by the Bankruptcy Trustees and Lion Finance Pty ltd, Unconscionable Conduct by the bankruptcy trustees for abuse of fiduciary duties, Unconscionable conduct by Lion Finance Pty Ltd targeting a person/s of special disadvantage along with intentional misrepresentations, issuing false affidavits, manufacture of evidence, breach of harassment and coercion laws, breach of section 73 of the Bankruptcy Act 1966 and theft of trust monies.”

1.    Draft notice of appeal, par 14.

6. The proceedings were commenced by summons but, understandably, the Registrar ordered the applicant to file and serve a statement of claim. That was done, but when the defendants sought to strike it out in February 2017, the applicant obtained leave to file an amended statement of claim. On 29 March 2017 Ward CJ in Eq struck out the amended statement of claim but gave the applicant leave to file a further amended statement of claim. Justice Ward also referred the matter to the Registrar for referral for pro bono legal assistance. Assistance was provided by a barrister, but the applicant withdrew his instructions. In the judgment under appeal, Robb J stated, in explaining his reasons for refusing leave to file a further amended statement of claim:[2]

“The first is that Mr Watiwat’s further amended statement of claim could have been struck out for the same reasons that his original amended statement of claim was struck out on 29 March 2017. The second is that, even where it is possible to discern the meaning of his claim, it discloses no reasonable cause of action.”

2. Watiwat v Dixon (No 2) [2017] NSWSC 1242 at [17].

7. In her judgment of 29 March 2017, Ward CJ in Eq explained in some detail the failings in the pleading before her. [3] In his later judgment, Robb J also gave quite precise reasons why the pleading was inadequate. It is not necessary to repeat those reasons here, as the applicant did not engage with them or provide any basis in his written submissions upon which error might be discerned.

   3. Watiwat v Dixon [2017] NSWSC 360.

8. Although the proceedings have been summarily dismissed, without a hearing on the merits, the applicant is entitled to commence fresh proceedings. Robb J refused an order sought by the defendants barring the applicant from bringing fresh proceedings in relation to the same or substantially the same causes of action as originally pleaded without leave of the Court. [4] That fact substantially removes the basis of any potential injustice flowing from the other orders.

   4. Watiwat (No 2) at [15].

9. There are two reasons why leave to appeal should be refused. First, the Court seeks to keep a tight rein upon applications for leave to appeal from an exercise of discretion on a point of practice or procedure which is not determinative of substantive rights. [5] Secondly, in terms of the criteria explained in Be Financial Pty Ltd atf Be Financial Operations Trust v Das,[6] this is not a case which involves any issue of principle, nor any question of general public importance, nor an error which is more than merely arguable.

   5. In Re the Will of FB Gilbert (Dec’d) (1946) 46 SR (NSW) 318 at 323 (Jordan CJ).

   6. [2012] NSWCA 164 at [32]-[39].

10. In these circumstances leave to appeal should be refused. The Court makes the following orders:

1. Dismiss the summons filed 19 December 2017 seeking leave to appeal from the judgment of Robb J given on 20 September 2017.

2. Order that the applicant pay the respondents’ costs of the summons, assessed on the basis of their joint representation.

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Endnotes

Decision last updated: 14 March 2018