Westpac Banking Corporation Ltd v Kay (No 2)
[2020] NSWSC 175
•04 March 2020
Supreme Court
New South Wales
Medium Neutral Citation: Westpac Banking Corporation Ltd v Kay (No 2) [2020] NSWSC 175 Hearing dates: 4 March 2020 Date of orders: 04 March 2020 Decision date: 04 March 2020 Jurisdiction: Common Law Before: Davies J Decision: (1) Dismiss the second defendant’s notice of motion filed 2 March 2020.
(2) The second defendant is to pay the plaintiff’s costs of the motion.Catchwords: CIVIL PROCEDURE – adjournment – to obtain legal aid or pro bono assistance – where no admissible evidence of impecuniosity – where repeated failures to abide by case management directions – where applicant sought to be joined to the proceedings Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Westpac Banking Corporation Limited (Plaintiff)
Paul William Kay (First Defendant)
Thomas James Clinton (Second Defendant)Representation: Counsel:
Solicitors:
S Docker (Plaintiff)
No appearance (First Defendant)
R Daoud (Second Defendant)
Thomson Geer Lawyers (Plaintiff)
Baker Love Lawyers (First Defendant)
Gibbins Law Firm (Second Defendant)
File Number(s): 2019/47999 Publication restriction: Nil
Judgment
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The second defendant, Mr Clinton, applies by motion filed 2 March 2020 to adjourn the proceedings for 60 days to secure legal aid and the services of counsel who will represent him on a pro bono basis.
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There are three affidavits in support of the motion, two by Mr Clinton's solicitor, Mark Gibbins, and one by Mr Clinton. In one of Mr Gibbins’ affidavits he says this,
“My client's income is minimal and consists principally of a Centrelink benefit and, therefore, it is necessary for him to either obtain legal aid to finance the services of a barrister or engage the services of pro bono counsel."
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Mr Gibbins goes on to say that there have been preliminary discussions with legal aid and an application for legal aid has been lodged. He says also that his client has had several discussions with the Bar Association to apply for the services of pro bono counsel.
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Mr Clinton himself has sworn an affidavit, but all that that affidavit says is that he has never been served with a copy of the plaintiff's notice of motion filed 10 December 2019, which was listed for hearing today. Mr Clinton says nothing about either his financial position or, for that matter, the discussions he is supposed to have had with the Bar Association about obtaining pro bono counsel.
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Whilst I entirely accept that hearsay evidence may be given at an interlocutory application, provided the source for it is disclosed (s 75 Evidence Act 1995 (NSW), it is entirely unsatisfactory that there should be hearsay evidence by the solicitor about the client when the client has himself sworn an affidavit that says nothing about those matters. The only inference I can draw from that approach is a Jones v Dunkel inference, namely, that any evidence from Mr Clinton in that regard would not have assisted his position.
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It is also significant that it was Mr Clinton who sought leave to be added as a defendant in the proceedings to protect the position of the Trust which, he says, is the true owner of the property. Until and including 17 December 2019, Mr Clinton has had solicitor and counsel representing him. He continues to have a solicitor acting for him. No explanation has been provided why his counsel, Mr Levet, is no longer briefed in the matter. The solicitor who appeared as an agent for Mr Gibbins speculated that “funding may have expired”, but no other evidence about the matter was forthcoming.
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On 17 December I ordered that any defence to the further amended cross-claim was to be filed and served by Mr Clinton by 7 February 2020. I also ordered that any proposed cross-claim be filed by 20 December 2019.
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On 12 February 2020 Mr Clinton sought to appear in person, a matter which is highly irregular when a person has a solicitor acting for them. I, however, gave him leave to do so in the absence of his solicitor. He had not filed an amended defence as directed in December. I extended the time for him to do so to 21 February 2020 and I extended the time for him to file any proposed amended cross-claim to 21 February. There has been no such defence or cross-claim filed and in fact there is no explanation for why that has not occurred when Mr Clinton still has a solicitor acting for him.
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In theory, because Mr Clinton is in default of Court orders, he is not even permitted to move on his motion of 2 March 2020. However, I am prepared to overlook that objection to proceed with the motion. It is entirely unsatisfactory that a person who sought to be joined as a defendant has not made satisfactory arrangements about legal representation so that an adjournment of two months is sought when there have already been delays by failures to abide by court directions to progress the matter.
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The fact that there is no evidence from Mr Clinton or from his solicitor to explain why the proposed pleadings have not been filed in accordance with directions, because there is no evidence from Mr Clinton to justify any adjournment for the purpose of obtaining legal aid or pro bono assistance, and because the adjournment will delay considerably other proceedings which all parties agreed should be joined with the present proceedings and heard together with them, the application to adjourn is refused.
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The orders I make are:
Dismiss the second defendant’s notice of motion filed 2 March 2020.
The second defendant is to pay the plaintiff’s costs of the motion.
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Decision last updated: 10 March 2020
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