Citation : WESTPAC BANKING CORPORATION -v- NINAN [No 2] [2015] WASC 315

Practice and procedure - Whether grounds of appeal have any reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Application for leave to appeal - Application for review of decision of registrar - Turns on own facts

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Application for review of decision of registrar dismissed

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170

Ninan v Westpac Banking Corporation [2015] WASCA 94

Re the Will of FB Gilbert (Dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318

The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40

Westpac Banking Corporation v Ninan [2014] WASC 456

Wilson v Metaxas [1989] WAR 285, 294

1 JUDGMENT OF THE COURT: On 3 November 2015, three matters came before the court for determination. They were:

(1) An application by the appellants for leave to appeal;

(2) A registrar's notice to attend 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 had any reasonable prospect of succeeding; and

(3) An application by the appellants to review the decision of the registrar to issue the notice to attend to show cause why the appeal should not be dismissed.

2 We ordered that the appellants' application to review the decision of the registrar to issue the notice to attend and the appellants' application for leave to appeal be dismissed, and that the appeal be dismissed. We said we would provide reasons for our decision. These are the reasons.

3 The appeal is from a decision of Chaney J who ordered that an application by the respondent for security for its costs of the appellants' counterclaim be heard before the appellants' application for discovery of documents in the counterclaim. Put shortly, the background to that decision is as follows.

4 A writ of summons was issued by the respondent on 26 August 2014 claiming possession of a property owned by the appellants and for repayment of amounts said by the respondent to be owing by the appellants under a loan agreement and mortgage. On 2 October 2014, the respondent applied for summary judgment. On 3 November 2014, the appellants filed a defence and counterclaim. On 5 December 2014, the primary judge ordered that there be summary judgment for the plaintiff: see Westpac Banking Corporation v Ninan [2014] WASC 456. That left the counterclaim still to be heard.

5 The appellants appealed against the order for summary judgment. On 13 May 2015, Newnes JA ordered the appellants to provide security for the respondent's costs of the appeal by 10 June 2015, failing which their appeal would stand dismissed: Ninan v Westpac Banking Corporation [2015] WASCA 94. An application for review of that decision was dismissed by the Court of Appeal. The appellants failed to provide security for costs and the appeal was therefore dismissed.

6 On 14 June 2015, the appellants applied for discovery of documents in the counterclaim. Two days later, on 16 June 2015, the respondent applied for security for the costs of the counterclaim. An issue then arose as to the order in which the applications should be heard, each party contending that their application should be heard first.

7 The primary judge noted that the categories of documents of which discovery was sought were quite extensive and compliance was likely to cause the respondent considerable expense. His Honour also noted that the respondent had indicated that it intended to apply to strike out some, if not all, of the counterclaim. The counterclaim was described by his Honour as making wide-ranging and extensive allegations of what was said to be deceptive and fraudulent conduct in relation to a number of transactions in the period 2002 to 2014, involving numerous parties, and it was therefore likely that substantial costs would be involved in any strike out application.

8 The primary judge concluded that the security for costs application should be dealt with before substantial costs were incurred in the proceedings and therefore before the appellants' discovery application. His Honour made procedural directions for the hearing of the security for costs application.

9 The appellants have applied for leave to appeal from that decision.

10 Any attempt to summarise the appellants' grounds of appeal would inevitably fail to capture their true nature and import. They are as follows:

The judgment erred in law & in fact as the judge omitted to consider key issues; issues of "default judgment"; "the statutory duty of disclosure" & instead considered only "selective issues": BEING TOO EXPENSIVE IS NOT AN EXCUSE FOR NOT DOING A PRESCRIBED DUTY

It is an error in law to approve and absolve a statutory crime. The judgment erred in law as the concealment approved by the order was subject to a jail sentence on both Westpac and their lawyers (and on the judge too now). A JUDGMENT CANNOT APPROVE A CRIME.

Judgment was unsafe. Judge contended that fraud of the judge and fraud in the appeal by the appeal judges were not relevant to the case & that judges had no duty to exonerate by logical reasoning. JUDGES DO NOT HAVE IMMUNITY FROM FRAUD.

The judgment erred in law & in fact as the documents requested to be disclosed was essential to determine the merits of the case and the overall case:

• Did Westpac engage in false valuations in the mortgages?

• Did Westpac engage in fraud in the particular case?

• Did Westpac engage in fraud as routine? WESTPAC IS A HABITUAL FRAUDSTER.

The judgment erred in law & in fact as the duty of disclosure denied in court by the order was a statutory duty of Westpac Banking, the Respondent without a court proceeding & was against the normal discovery process. WESTPAC MUST DO FIRST ITS STATUTORY DUTY.

Judgment was against the evidence as it was a one sided judgment with judge arguing for Respondents more than they had pleaded while concealing key issues what Appellants had carefully pleaded. JUDGE SHOULD NOT ENGAGE IN SELECTIVE EVIDENCING.

Judgment was unsafe. The judge pretended that Judge does not understand pleadings written in plain simple English to obscure well written pleadings. JUDGE SHOULD NOT ENGAGE IN POSTURING TO ENABLE SELECTIVE EVIDENCING.

Judgment was unsafe. Judge made false allegations directly against the judge's own orders to paint the Appellants as acting irresponsibly. JUDGE SHOULD NOT ENGAGE IN FALSE FINGER POINTING. (original emphasis)

11 The decision of the primary judge that the security for costs application be heard first was an interlocutory decision involving an exercise of discretion on a matter of practice and procedure. As it was an interlocutory decision, leave to appeal is required: s 60(1)(f), Supreme Court Act 1935 (WA).

12 In order to justify the grant of leave, an appellant must generally show that the decision was wrong, or attended with sufficient doubt to warrant leave being granted and, in addition, that substantial injustice would be done by leaving the decision unreversed: Wilson v Metaxas [1989] WAR 285, 294; The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 57.

13 In addition, an appellate court will exercise particular caution in reviewing a decision which involves the exercise of discretion on a matter of practice and procedure. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177, the High Court adopted the following statement of Jordan CJ in Re the Will of FB Gilbert (Dec) [1946] NSWStRp 24; (1946) 46 SR (NSW) 318, regarding the approach to interlocutory appeals:

... I am of opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a judge in Chambers to a Court of Appeal (323).

14 In this case, there is nothing that is capable of justifying a grant of leave to appeal. The appellants' affidavit in support of the application for leave to appeal is replete with windy allegations of a scandalous nature but contains nothing that might be capable of impugning the primary judge's exercise of his discretion. The grounds of appeal are of a similar nature, as were the appellant's oral submissions. The appeal is entirely lacking in merit.

15 We should add that even had we considered the primary judge to have erred, we would nevertheless have refused leave to appeal as no substantial injustice would be done by leaving unreversed his Honour's decision that the application for security for costs should be heard first.

16 There is also nothing before us that might suggest the registrar was in error in issuing the notice to show cause why the appeal should not be dismissed. It is not suggested the appellants were given inadequate notice of it and the conclusion we have come to on the merits of the appeal demonstrates the appropriateness of the notice. It is in the interests of the efficient use of the public resources of the court and of fairness to the other party that frivolous appeals of this nature are disposed of as soon as possible.

It was for those reasons that we made the following orders:

(1) the appellants' application to review the decision of the registrar to issue the notice to attend to show cause is dismissed;

(2) the appellants' application for leave to appeal is dismissed;

(4) the appellants are to pay the respondent's costs of the applications and the appeal to be taxed.