Application to extend the time within which to commence an appeal - Whether the applicant is subject to the operation of the Vexatious Proceedings Restriction Act in these proceedings - Whether, on its face, the defence raised in the Magistrates Court amounted to a collateral attack or abuse of process

Supreme Court (Court of Appeal) Rules 2005 (WA), r 26

Vexatious Proceedings Restriction Act 2002 (WA)

Leave to extend the time within which to commence an appeal granted

1 MARTIN CJ: The applicant, Edward James Bride (Mr Bride), applies for an extension of time within which to appeal from the decision of Judge O'Brien given in the District Court on 6 July 2007 (Bride v Shire of Katanning [2007] WADC 116). However, the proceedings which he has commenced in this Court in which he seeks to challenge the decision of Judge O'Brien have not always been viewed in that light. It is necessary to explain that observation.

2 Mr Bride and his wife have been parties to a large number of proceedings in the courts of this State, which have varying degrees of connection and association with a dispute between Mr and Mrs Bride and Australian Bank Ltd and its successor, Commonwealth Bank of Australia, and receivers and managers which Australian Bank Ltd appointed in respect of land and a business owned by a trust with which Mr and Mrs Bride were associated. As a result of those proceedings, on the application of the Commonwealth Bank of Australia, on 17 August 2004, EM Heenan J made a number of orders pursuant to the Vexatious Proceedings Restriction Act 2002 (see generally Commonwealth Bank of Australia v Bride [2004] WASC 177). Those orders included orders staying various proceedings which were then on foot in the Supreme Court and the District Court.

instituting any action, proceeding, appeal or other application in any court in Western Australia against:

(a) the [Commonwealth Bank of Australia]

(b) Australian Bank Limited (ABL)

(c) the partners and employees of Peat Marwick Mitchell, KMG Hungerfords, KPMG and their successors in title

(d) all subsequent purchasers of

(1) ...

...

(3) portion of Kojonup Location 255 and Lot 1 on diagram 9860 being the whole of the land in certificate of title volume 1322 folio 461 (Winery Land)

...

(e) the legal, financial and real estate advisers and/or agents of any of the abovenamed parties.

The prohibition upon the commencement of proceedings was limited to certain subjects specified in the order.

4 The Shire of Katanning (the Shire), which is the respondent to these proceedings, commenced proceedings in the local court claiming from Mr Bride outstanding rates and charges in respect of the winery land. In those proceedings, the winery land is described by reference to its current title particulars, which are to the effect that it is Lot 29 on diagram 62969, being the whole of the land comprised in certificate of title volume 1682 folio 357. However, it is common ground that this land is the same as the land described as the winery land in the order of EM Heenan J to which I have referred.

5 In his defence to the Shire's claim for rates and charges, Mr Bride denied that he was ever in possession of the winery land, and asserted that at all material times, the mortgagee of the land, being Australian Bank Ltd and/or its successor, the Commonwealth Bank of Australia, were in control of or in possession of the land. The precise nature of this defence is a matter of controversy to which I will return. The Shire applied to strike out his defence on the grounds that it was an abuse of process, because it raised an issue which had been decided in prior proceedings. The Magistrate accepted that submission and struck out Mr Bride's defence.

6 Mr Bride appealed to Judge O'Brien against that decision. Judge O'Brien dismissed that appeal on 6 July 2007 in Bride v Shire of Katanning [2007] WADC 116.

7 Mr Bride has filed an affidavit in which he deposes that he lives in Katanning. He deposes that on 26 July 2007, he attended the District Court in order to commence appeal proceedings against the orders of Judge O'Brien. Predictably, he was told at the District Court that he was in the wrong place, and that his documents were not in order, and that any appeal would have to be commenced in the Supreme Court.

8 On 3 August 2007, Mr Bride attended the offices of the Supreme Court and again attempted to lodge appeal papers. They were rejected because they were not in the correct form. On 14 August 2007, Mr Bride lodged appeal papers and an application seeking the waiver of fees relating to the lodgement of those papers at the central office of the Supreme Court. By letter dated 31 August 2007, Mr Bride was advised that his application for the waiver of fees had been refused, and that therefore the documents that he had lodged would not be accepted. On 14 September 2007, Mr Bride again attended the central office of the Supreme Court and lodged papers relating to the appeal from Judge O'Brien. The papers were marked as an application for leave to proceed. It appears that Mr Bride was under the impression that he required leave to proceed, because of the previous order of EM Heenan J. Mr Bride deposes that he tendered the lodgement fees for payment on 14 September 2007, but they were refused. It may be that they were refused because of a similar perception on the part of the court officer, to the effect that a grant of leave to proceed was necessary because of the previous order of EM Heenan J.

9 Some time after 12 October 2007, Mr Bride received a letter from the Supreme Court advising that his documents were in the central office awaiting payment of the relevant fees. On 23 October 2007, Mr Bride attended the court and paid the relevant fees.

10 Following lodgement of the papers, the matter was referred to a Judge of the Court of Appeal. At that time it was apprehended that leave to proceed was required pursuant to the provisions of the Vexatious Proceedings Restriction Act 2002. The relevant Judge of the Court of Appeal formed the view that the question of whether or not leave should be granted should be determined by a Judge of the General Division. The papers were accordingly referred to me.

11 After investigation, I formed the view that the order of EM Heenan J did not apply to Mr Bride's attempt to pursue an appeal from the decision of Judge O'Brien. That is because, as I have mentioned, the order of EM Heenan J was limited to the commencement or prosecution of proceedings against certain specified parties. The Shire of Katanning is not one of those parties. Accordingly, Mr Bride is not constrained in prosecuting his appeal from the decision of Judge O'Brien by reason of the order made by EM Heenan J under the Vexatious Proceedings Restriction Act 2002.

12 However, Mr Bride's application for leave to appeal from the decision of Judge O'Brien was not lodged within the period of 21 days specified by r 26 of the Supreme Court (Court of Appeal) Rules 2005 (WA). I therefore caused Mr Bride to be advised that while I had concluded that he did not need leave under the Vexatious Proceedings Restriction Act 2002, he did require an extension of time for the commencement of an appeal against the decision of Judge O'Brien, and that I would treat his application as an application for an extension of time, and deal with it in my capacity as a member of the Court of Appeal.

13 When the matter came on before me for directions, I advised Mr Bride that applications for extension of time within which to commence an appeal were invariably heard upon notice to the other party to the prospective appeal, as compared to applications for the grant of leave under the Vexatious Proceedings Restriction Act 2002 which were invariably heard ex parte. However, in an attempt (which was ultimately unsuccessful) to keep costs to a minimum, and to avoid Mr Bride being exposed to an order that he pay the Shire's costs, I proposed to Mr Bride that he might allow me to first consider his application for an extension of time prior to that application being served upon the Shire, and to form a view as to whether there was any prospect that the application might be granted. I indicated to him that significant in my consideration of the prospects of the application being granted would be my assessment of whether an appeal would have any arguable prospects of success. Mr Bride indicated to me that he wished to take that course. However, before following that course, I caused the solicitors for the Shire to be advised as to the course proposed, and an inquiry to be made as to whether they had any objection to that course. The solicitors advised that the Shire had no objection and accordingly I proceeded to consider whether there was any prospect that an extension of time might be granted. Of course, I undertook that evaluation only by reference to documents provided by Mr Bride.

14 After that consideration, I concluded that there was a prospect that an extension of time might be granted. It is appropriate for me to shortly explain why I formed that view. In order to do so, it is necessary to refer briefly to the decision of Judge O'Brien.

15 Judge O'Brien enunciated at [6] the established legal principle that if a litigant mounts a collateral attack on a final decision made against that litigant in a court of competent jurisdiction in which the litigant had a full opportunity of contesting the decision, the action or pleadings in which that attack is made constitute an abuse of process. That principle is, of course, of wider application than the principles of res judicata, or issue estoppel. The principle can extend to proceedings between parties who are different to the parties to the proceedings in which the issue was previously determined - see Walton v Gardiner (1993) 177 CLR 378, 392 - 393; Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529; Reichel v Magrath (1889) 14 App Cas 665; Donnellan v The Public Trustee [2007] WASC 213.

16 Judge O'Brien noted that the Shire had submitted that the question of whether the bank was a mortgagee in possession of the land had been previously considered and determined in three previous judicial determinations being:

1. Bride v Australian Bank Ltd [2000] WASC 116 - a decision of Parker J.
2. Bride v The Australian Bank Ltd [2000] WASC 310 - a decision of Acting Master Chapman.
3. Bride v Shire of Katanning [2003] WADC 92 - a decision of Registrar Kingsley.

17 The decision of Acting Master Chapman was a decision striking out a statement of claim and denying leave to replead. I formed the view, to which I adhere, that the only issue determined by that decision was whether the draft pleading disclosed a cause of action. A decision of that kind could not be characterised as a final determination of the question of whether or not the bank was mortgagee in possession of the winery land. Accordingly, with respect to Judge O'Brien, it seemed to me then, and seems to me now, that it was not a decision which was capable of giving rise to the application of the principles relating to abuse of process by way of collateral attack on an earlier decision.

18 The decision of Registrar Kingsley was also an interlocutory determination. It was to the effect that claims made by Mr Bride against the Commonwealth Bank and the receivers which it had appointed constituted an abuse of process because they amounted to a collateral attack upon the previous determinations of Justice Parker and Acting Master Chapman. The Registrar upheld the application of the bank and the receivers and dismissed the claims against them. Although the Shire was a defendant to those proceedings, it seems from the reasons for decision given by Registrar Kingsley that the Shire did not apply to the Court for dismissal of the claim against it on the same ground. I note also that the action against the Shire was one of the actions specifically stayed by the order of EM Heenan J in August 2004. Accordingly, as between Mr Bride and the Shire, the decision of Registrar Kingsley does not give rise to an issue estoppel. I was of the tentative view, to which I adhere, that, like the decision of Acting Master Chapman, the decision of Registrar Kingsley could not itself be taken as a final determination of the question of whether or not the bank was a mortgagee in possession. Because the decision of the Registrar depended upon the proper characterisation of the decision of Justice Parker, the critical question was, and remains, whether Justice Parker determined that the bank had not been a mortgagee in possession in order to resolve an issue which was in dispute in the proceedings before him.

19 On that issue, having somewhat superficially reviewed the decision of Justice Parker (which runs to 102 pages), it occurred to me that there were passages in that judgment which were capable of supporting a contention that Justice Parker had not in fact determined the question of whether the bank had been mortgagee in possession of the winery land. Because of my view as to the irrelevance of the decisions of Acting Master Chapman and Registrar Kingsley to the issues before Judge O'Brien, it seemed to me that if such a proposition could be made good, an appeal from the decision of Judge O'Brien would have arguable prospects of success. That conclusion would be relevant to, although not determinative of, Mr Bride's application for an extension of time within which to commence an appeal from that decision.

20 Accordingly, having formed that view, I advised the parties and directed Mr Bride to serve the Shire with all relevant papers. Directions were also made for the exchange of submissions, and I have had the benefit of written and oral submissions from each of the parties.

21 The principles governing an application for an extension of time within which to commence an appeal have been the subject of a number of decisions. They were considered by the High Court in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516. In that case, the High Court observed that the grant of an extension of time within which to commence an appeal deprives the prospective respondent of the substantive right to enforcement of judgment flowing from the expiry of the time for commencement of an appeal without such an appeal being instituted. The High Court confirmed that in such a circumstance, the four considerations identified by Malcolm CJ, drawing from the case of Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 were properly considered, although in the view of Kirby J those factors should not be considered to be exhaustive. Those factors, set out in Esther at 198, are the length of the delay, the reasons for the delay, whether there is an arguable case, and the extent of any prejudice suffered by the respondent.

22 In the present case the length of the delay was significant although not inordinate. The reasons for it have been explained by Mr Bride. They derive from the fact that he resides in Katanning and is self-represented. It seems to me that Mr Bride has made reasonable efforts to prosecute his appeal and that therefore these factors do not count significantly against his application. The Shire does not submit, nor does the evidence establish, any significant prejudice suffered by the Shire by reason of the delay between delivery of the judgment of Judge O'Brien and the commencement of the application for an extension of time by Mr Bride.

23 Accordingly, it seems to me that if I conclude that Mr Bride has an arguable case, the interests of justice would sustain the conclusion that an extension of time should be granted to enable that case to be presented and considered.

24 The critical question therefore comes down to the question of whether there is an arguable case to the effect that Justice Parker did not determine, as one of the issues which arose for his determination in the proceedings before him, the issue which Mr Bride sought to raise in his defence to the proceedings brought by the Shire for recovery of rates, to the effect that the bank had taken possession of the winery land. As will be seen, it will be necessary to address in a little more detail the question of the precise terms of Mr Bride's defence to the proceedings brought by the Shire in due course.

25 Two actions were tried simultaneously by Justice Parker. Action CIV 1570 of 1989 was a claim brought by Mr and Mrs Bride against the Australian Bank Ltd (the bank), Southern Rolled Oats Pty Ltd and Milne Foods Pty Ltd. Action CIV 1804 of 1989 was an action brought by Mr and Mrs Bride against Peat Marwick Mitchell.

26 An appropriate starting point for the assessment of the issues that were tried and determined by Justice Parker is the pleadings in each of the actions tried by him. In matter CIV 1570 of 1989, in an amended substituted statement of claim dated 16 November 1999, a number of allegations were made relating to the winery land.

27 In par 5 of the pleading, Mr and Mrs Bride alleged that in their capacity as trustees of the Pinwernying Family Trust, they were the registered proprietors of a number of parcels of land including the winery land. The land referred to in par 5 of the pleading is thereafter collectively referred to as 'the Land'.

28 By par 9 of the same pleading, they alleged that on 26 March 1982, a mortgage over land, including the winery land, was granted in favour of the bank. In par 18, they alleged that at no material time prior to 9 August 1984 were they in default of any term of the loan of funds from the bank or of the mortgage securities granted over the land including the winery land.

29 In par 19 of the pleading, Mr and Mrs Bride allege that on or about 20 June 1984, the bank entered into possession of "The Land and the Business of the Trust purportedly secured by the Securities". In par 21 of the pleading, they allege that the bank's entry into possession was unlawful for a variety of reasons, including a breach of a clause of the mortgage over the winery land.

30 In par 28, Mr and Mrs Bride allege that if the securities were valid and enforceable (which they denied), the bank as mortgagee of 'the Land' owed a duty of care to the Brides to act in good faith in, inter alia, the sale of the Land and in attempting to obtain the best reasonable market price for the Land.

31 In par 32.6 of the pleading, Mr and Mrs Bride alleged that, in breach of that duty, the bank sold 'the Land' to Southern Rolled Oats Pty Ltd, in which a wholly owned subsidiary of the bank was the majority shareholder.

32 In the prayer for relief, Mr and Mrs Bride claimed a declaration that the appointment of the receivers and managers to, inter alia, 'the Land' was invalid and further sought damages.

33 The amended substituted statement of claim in these proceedings bears a close resemblance to the equivalent pleading in CIV 1570 of 1989, and the same date, (16 November 1999). Paragraph 4 of the pleading in this action is identical to par 5 in CIV 1570 of 1989. Paragraph 9 of each pleading is identical. Paragraph 19 of the pleading in this action pleads that on 9 August 1984, the bank purported to appoint John Anderson and David Young as receivers and managers of the business and 'the Land'. Paragraph 20 of the pleading asserts that the appointment of the receivers and managers was invalid because of, inter alia, breach of a clause of the mortgage over the winery land.

34 Paragraph 24 of the statement of claim in these proceedings is virtually identical to par 28 in the pleading in CIV 1570 of 1989. Paragraph 27 alleges various breaches of the duties pleaded in par 24, including sale of 'the Land' to Southern Rolled Oats Pty Ltd being a company in which a wholly owned subsidiary of the bank was a majority shareholder and at a price which was less than market value. In the prayer for relief in these proceedings, Mr and Mrs Bride sought a declaration that the appointment of the receivers and managers to, inter alia, 'the Land' was invalid, and damages.

35 In CIV 1570 of 1989, in which the bank was a defendant, it denied that it had taken possession of the winery land.

36 In September 1995, Mr and Mrs Bride gave particulars of the damages they were claiming in CIV 1570 of 1989. As against the bank, they sought return of the title to the winery land, restoration and repair of the buildings on the land to the condition in which those buildings were on 18 June 1984, payment of all rates, taxes and other outgoings in relation to the property and interest on the value of the property from 18 June 1984 until return of title. A schedule to the particulars places a value of $39,000 upon the winery land.

37 Justice Parker published reasons for decision in both actions on 12 May 2000, (Bride v Australian Bank Ltd [2000] WASC 116). At [6], Parker J refers to the land owned by Mr and Mrs Bride, including the winery land. At [8] he refers to the general nature of Mr and Mrs Bride's case, being to the effect that it was in their capacities as trustees of the Trust that they owned and conducted the business and owned some of the land. At [15] he refers to their claim that, in their capacities as trustees of the Trust, Mr and Mrs Bride were 'wrongly deprived of the land and the business, and suffered loss and damage' being the 'loss of profit and capital gain from the land and the business from the date of the purported appointment of the receivers and managers and the taking of possession of the land and the business in August 1984'.

38 At [16], the land the subject of the proceedings is described in detail, and includes the winery land.

39 Paragraphs 141, 157 and 160 of the reasons for decision are in the following terms:

1. There was, however, error and confusion about notices of these appointments. In fact, notices of appointment of Mr Young and Mr Anderson pursuant to all the Bank's securities, including the two real estate mortgages and the securities granted by the two companies, were served at the premises of Mr and Mrs Bride at Katanning on 9 August 1984 by Mr Anderson and by Mr Adams an accountant employed by Peat Marwick Mitchell who was acting for Mr Young and Mr Anderson, and they were actually handed to Mr Bride the next morning 10 August 1984 by Mr Adams. The receivers and managers purported by Mr Adams to enter into possession on 9 August 1984 of all secured assets of and relating to the business including the Oatmill land and the Stockfeed land. It is possible that the receivers and managers acted to enter into possession of the secured assets on 9 August 1984, including the land other than the Oatmill land and the Stockfeed land, but the evidence as to this is lacking in detail and I am unable to come to a finding that possession was taken on that day of any land other than the Oatmill land and the Stockfeed land. As indicated there had been no appointments pursuant to the real estate mortgages which secured respectively the Oatmill land and the Stockfeed land so that the notices of appointment of receivers and managers pursuant to those mortgages were not correct but were, in my finding, acted on by Mr Adams on behalf of Mr Young and Mr Anderson. Written notices of default pursuant to the real estate mortgages were received by post by Mr and Mrs Bride on 11 August 1984. They too were dated 9 August 1984. No notice was ever given to Mr and Mrs Bride, however, of the appointments of receivers and managers pursuant to the two real estate mortgages which were actually effected on 22 August 1984. By these circumstances Mr and Mrs Bride were led to believe, and in my finding did believe, that Mr Young and Mr Anderson had been appointed as receivers and managers pursuant to the two real estate mortgages on 9 August 1984 and in my finding they continued in this belief until 1994 when, only after much persistence by Mr and Mrs Bride, documents were discovered which alerted them to the fact that the appointments of receivers and managers pursuant to the real estate mortgages had not been made on 9 August 1984.

1. While the original giving of the two notices of appointment has not been shown to be deliberate, I am persuaded that at some time thereafter, most probably 22 August 1984 when the Bank and Mr Young and Mr Anderson signed appointments pursuant to the real estate mortgages, both the Bank and the receivers and managers realised that the notices of appointment which had been prepared had been served and acted on earlier, even though the appointments had not then been made. No attempt was made to give further notice after the appointments were purportedly made on 22 August 1984. It is submitted that notice was not required by the terms of the mortgages. This is so but it is a usual practice for practical reasons to give written notice of such appointments and it had clearly been intended in this case that notice be given. At no time during the course of the receivership were Mr and Mrs Bride ever informed by the Bank or by the receivers and managers that, despite the notices dated 9 August 1984, the appointments of which they gave notice had not then been made. I am persuaded by these circumstances, and despite the inability of Mr Young and Mr Adams to recall in 1999 becoming aware of the error during the receivership, that there was a conscious decision by both the receivers and managers and the Bank not to inform Mr and Mrs Bride of the error that had been made.

1. It is the case, therefore, that no valid appointment of Mr Anderson and Mr Young as receivers and managers pursuant to either of the real estate mortgages had been made before 22 August 1984. Yet, on 9 August 1984, Mr Anderson and Mr Young, acting by their employee Mr Adams, purported not only to enter the Oatmill land as authorised by the Bills of Sale, but also to take possession of that land. An entitlement to possession of the land could arise only by virtue of a valid appointment pursuant to mortgage C337514. Hence, they had no authority to do so. It is on this entry into possession on which Mr and Mrs Bride rely for their claims in trespass. Their claims also extended to the other land they owned as trustees of the Trust but for the reasons given earlier the evidence does not enable me to conclude that on 9 August 1984 or at any time before 22 August 1984 the receivers and managers purported to enter into possession of any such land except the Oatmill land.

40 In the portion of the reasons dealing the claim by Mr and Mrs Bride for loss and damage, Parker J refers to the claim for $39,000 in respect of the value of the winery land and buildings. At [254] of his reasons, Parker J sets out his conclusion in relation to that aspect of the claim:

1. The evidence with respect to claim for the loss of the other land owned by Mr and Mrs Bride in their capacities as trustees of the Trust, ie the Winery and the Vineyard land is not very satisfactory. I have already noted that it was not established that the receivers and managers purported to enter into possession of this land on 9 August 1984. General references in the evidence suggest that at some point of time this may have occurred but the evidence of Mr Vaughan a solicitor questioned this. No finding is possible. As far as the evidence reveals the Winery land has not been sold. The claim for the Winery land is quantified at $39,000 but I have not identified any admissible evidence as to its value in 1984 or 1985 or at any time. Estate agents acting for either the Bank or the receivers and managers advertised the Vineyard land and were active in attempts to sell it. There was evidence of an auction of the Vineyard land, whether at the direction of the Bank or the receivers and managers is not established. This seems to have been late in 1984. It was passed in. Efforts to sell seem to have continued thereafter and it was only in 1986 that a sale was effected to Mr and Mrs Porter by the Bank. The claim in respect of the Vineyard land is quantified at $116,000. Again the evidence does not deal with its value at any time. The evidence does not reveal the price paid by Mr and Mrs Porter so no finding as to its value is possible. There is no reason to conclude that it was sold at less than market price.

41 The terminology used by Parker J in these portions of the reasons gave rise to my initial hesitation as to whether or not a determination had been made on the question of whether the bank had entered into possession of the winery land. For example, at [141], Parker J stated, 'I am unable to come to a finding that possession was taken on that day of any land other than the Oatmill land and the Stockfeed land'. At [160] his Honour observed that the evidence 'did not enable him to conclude that on 9 August 1984 at any time before 22 August 1984 the receivers and managers purported to enter into possession of any such land except the Oatmill land', and at [254] he referred to his conclusion in terms that 'it was not established that the receivers and managers purported to enter into possession of this (winery) land on 9 August 1984'.

42 However, when those passages in the reasons are placed in the context of the pleadings, and in particular, the allegation that possession was taken of the winery land in August 1984 as a consequence of which Mr and Mrs Bride suffered loss and damage, it seems to me to be clear that Parker J found that Mr and Mrs Bride had failed to establish that allegation, and, in particular, had failed to establish their allegation that the bank had taken possession of the winery land in August 1984. Their claim for damages in respect of the value of that land was dismissed. Accordingly, when the passages in the reasons to which I have referred are placed in the context of the pleadings, it seems to me to be clear beyond argument that Parker J determined the allegation to the effect that the bank had taken possession of the winery land in August 1984 adversely to the claim of Mr and Mrs Bride.

43 Mr Bride has referred me to a passage in the transcript of the lengthy trial before Justice Parker. In the course of that trial, Mr Bride was cross-examining Mr Young, who was one of the receivers. He was asking questions about the winery. Justice Parker intervened and asked as to the relevance of those questions on the pleadings. He received a somewhat enigmatic response from Mr Bride, in the form of one word - 'dead' (ts 925). Justice Parker repeated the question as to whether the questions being asked were relevant to anything in the pleadings, to which Mr Bride responded 'look I'll leave it'.

44 It does not seem to me to be reasonably arguable that the interchange to which I have referred constituted an abandonment of the claim made by Mr and Mrs Bride with respect to the winery land. In my opinion, something much less equivocal than that interchange would be required before that proposition could be made out. And it is clear from the passages in the reasons for decision given by Justice Parker to which I have referred, that his Honour certainly did not take the claim arising from the allegation that possession had been taken of the winery land to be abandoned.

45 Accordingly, I have concluded that it is clear beyond argument that in proceedings in which Mr and Mrs Bride alleged that the bank had entered into possession of the winery land in August 1984, Mr and Mrs Bride had failed to establish that allegation and their claim arising from that allegation was dismissed.

46 The next question which would arise in any appeal from the decision of Judge O'Brien would be whether the defence which Mr Bride sought to advance to the claim for rates made by the Shire was identical to the issue determined against him in the proceedings before Parker J. In an attachment to written submissions filed in support of his application for an extension of time, Mr Bride attached copies of three letters written by Mr Charles Fear, of Peat Marwick Hungerfords, dated 27 May, 3 November and 19 December 1988 respectively.

47 In the first of those letters, Mr Fear asserts that Messrs Young and Anderson had retired as the receivers and managers of the property of Mr and Mrs Bride and associated entities, and that at the date of their retirement, the debt due to Australian Bank Ltd had not been paid in full, with the result that the bank continued to hold mortgage security over the winery land. The letter went on to assert that on 12 February 1987, he and Mr Young had been appointed as the agents for the bank to administer and collect outstanding accounts on behalf of the bank, including accounts due from Mr and Mrs Bride. The letter asserted:

ABL has now taken control of the property at Lot 29 Creek Street Katanning [the winery land] as mortgagee in possession and, as agent of the bank, I am arranging for its sale. Upon sale all outstanding rates and taxes due in respect of the property are expected to be paid in full on settlement.

48 In the letter of 3 November 1988, headed 'Lot 29 Creek Street, Katanning WA' (the winery land), Mr Fear wrote:

ABL has now taken possession of the property as mortgagee in possession and is progressing to the appointment of selling agents.

49 In the letter dated 19 December 1988, Mr Fear referred again to his appointment as agent of the bank in February 1987. He wrote:

Furthermore, I note that my appointment and the action by ABL in taking possession of the Creek Street property under mortgage C337514 were advised to you in writing in my letter dated 27 May 1988, but no response was forthcoming at that time.

50 Upon reviewing those documents, it occurred to me that it was possible that Mr Bride had been seeking to defend the Shire's claim for taxes not on the basis of entry into possession by the bank in August 1984, but rather upon the basis of entry into possession by the bank through its agent, Mr Fear, some time after February 1987 - notice to that effect having been given in May 1988. The matter was therefore adjourned on the basis that I would invite submissions from the parties as to whether that was in fact the defence or part of the defence, which Mr Bride had advanced in response to the claim for taxes by the Shire and, if so, whether that defence was outside the scope of the determinations made in the proceedings before Parker J, which were centred upon an assertion that the bank had entered into possession in August 1984. I also made arrangements for the Magistrates Court file to be provided, and made available for inspection by each of the parties.

51 In her reasons for decision, the Magistrate set out the particulars of defence lodged by Mr Bride in response to the claim by the Shire. They were in the following terms:

Take notice; - that the defendant from the 20th August 1984

1. Never was, has never been and is not now in possession of Lot 29 Creek Street, Katanning, Western Australia.
2. the Plaintiff and their solicitors are aware of the fact and have documented proof that the Mortgagee, as a mortgagee and/or the Mortgagee's agents were at all material times in control of, in possession of the said property.

52 I have also reviewed a partial transcript of the argument before the Magistrate. It seems clear that the transcript is wrongly dated 8 December 2005, and in fact is the transcript of argument that took place on 24 October 2005. It omits the opening portion of the hearing, which appears to include some part of the argument advanced by Mr Bride. Page 2 of that transcript records the following interchange between the Magistrate and Mr Bride (ts 2):

HER HONOUR: So, you are saying to me that in these proceedings you want to relitigate that issue because you say there is a lie in the previous proceedings. Is that what you're saying to me?

BRIDE, MR: That is what I'm saying to you, your Honour. What I'm saying to you is, I do not want to relitigate the issue, I want someone to go into a witness box and be put on oath and explain the validity of the documents. That, to date, has not happened. That is not an expensive exercise, but it is wrong that Wendy and I should be lumbered with rates that we are not legally liable for. If we had been in possession of the property I would by all means - we will pay the rates, but we have not been.

From 9 August 1984, until about 1 December 2004. Now, I have sent Mr Gillett a letter saying that we are confirming that we have retaken possession of that property, and it is now once again covered by a common boundary fence, and there are no internal fences on that property.

53 A little later, the transcript records Mr Bride as submitting (ts 2 - 3):

The issue is not whether they [the bank] are currently in possession of [the winery land], the issue is that they were in possession and those liabilities, until they discharge, their possession or their things - legally discharge it, and advise the parties, they are still deemed to be in possession of the property. It is the only way it can be. They took possession on 9 August, the receivers and managers retired some time in 1986. The bank wanted the property handed back to them and their agents for the bank, [Fear] and Young by a deed were appointed agents for the mortgagee in possession of the property. I do not believe it can be clearer.

54 Later in the transcript, counsel for the Shire specifically addresses each of the three letters from Peat Marwick Hungerfords to which I have referred, being the letters of 27 May, 3 November and 19 December 1988 (ts 4). It is therefore clear that those letters were before the Magistrate. Counsel for the Shire put submissions on the question of whether those letters supported the conclusion that the bank had taken possession of the land.

55 There is no reference that I have been able to identify in the reasons for decision of Parker J to the letters of 1988 from Peat Marwick Hungerfords. Nor is there any apparent determination of the question of whether or not the bank, by its agent, Mr Fear, took possession of the winery land in or about 1987 or 1988. That is not surprising, because there is no assertion to that effect in the pleadings in either of the actions tried by Parker J. However, on their face, the three letters of 1988 assert clearly and unequivocally, that the bank, by its agents, had taken possession of the winery land. So far as I can see on the information presently available, the question of whether those letters sustain the conclusion that the bank had in fact taken possession of the winery land has never been determined.

56 In the reasons for decision given by the Magistrate, she refers to the fact that in the course of his submissions, Mr Bride took the court to numerous documents to demonstrate the basis of his arguments that the bank was a mortgagee in possession of the land. The Magistrate refers specifically to the letters from Mr Fear as agent for the bank dated 27 May 1988, 3 November 1988 and 19 December 1988.

57 In the portion of the transcript which is available, Mr Bride makes only an oblique reference to those letters, albeit in times which make clear that he was relying upon them. It therefore seems a distinct possibility that submissions were made by him as to the significance of that correspondence in the portion of the transcript which is not now available. An inference to that effect arises from the terms of the Magistrate's reasons.

58 It is important to emphasise that in determining an application for an extension of time within which to commence an appeal, the question is whether there is a sufficiently arguable case to justify the grant of the extension sought. It is not for the court hearing such an application to determine the appeal - rather the inquiry is directed to the question of whether there is a sufficiently arguable case to justify the extension of time sought.

59 I will endeavour to summarise the views which I have formed in relation to that issue. It is clear beyond argument that Parker J determined that Mr and Mrs Bride had failed to sustain their allegation that the bank entered into possession of the winery land in August 1984. However, the pleadings in the actions tried before Parker J do not suggest that it was ever asserted in the course of those proceedings that the bank went into possession of the winery land by its agent Mr Fear some time after his appointment as agent in February 1987 - perhaps when his letter of 27 May 1988 was sent, in which he clearly asserted that the bank was mortgagee in possession. There does not appear to be any reference to the correspondence of 1988 in the reasons for decision given by Parker J.

60 Turning now to the terms of the defence which Mr Bride sought to advance in response to the claim brought by the Shire for rates in respect of the winery land, on the one hand, the particulars which he provided specifically refer to the bank taking possession in August 1984, and at least part of the submissions he advanced to the court in opposition to the Shire's application refer to possession being taken at about that time. On the other hand, it is clear that he tendered to the Magistrate the three letters from 1988 to which I have referred, and there arises, from the Magistrate's reasons for decision, a fair inference to the effect that he relied upon those letters to sustain an arguable case to the effect that the bank had taken possession of the property for at least a portion of the period in respect of which rates were claimed. The letters themselves appear to clearly and unequivocally assert that possession was taken some time after the appointment of Mr Fear as agent in February 1987 - perhaps in May 1988. The portion of transcript that remains suggests that counsel for the Shire took issue with that proposition, and put submissions to the contrary. The Magistrate's reasons for decision also suggest that issue was joined in relation to the significance of the 1988 correspondence.

61 In these circumstances, it seems to me to be arguable that, notwithstanding the terms of the particulars of defence filed by Mr Bride in response to the Shire's claim, and after making due allowance for the fact that Mr Bride is a self-represented litigant, that at least one of the arguments he wished to advance in opposition to the Shire's claim for rates was an argument based upon the proposition that the correspondence of 1988 provided evidence that the bank had taken possession at or around that time. That is a proposition which, so far as I can see on the materials presently available, has never been determined one way or the other.

62 It therefore seems to me to be reasonably arguable that at least one aspect of the defence which Mr Bride sought to advance in response to the claim brought by the Shire had not been the subject of any prior determination by a court, of a kind which would render the assertion of that defence an abuse of process. Whether or not that argument should succeed is, of course, a matter for the appellate court, and not for me. However, in my opinion, the matter is sufficiently arguable to justify the extension of time sought by Mr Bride in order to commence his appeal. I therefore propose to grant the leave sought.