Battaglia v ING Bank

Judgment 1THE COURT: On 10 November 2014, the Court dismissed with costs an application for leave to appeal filed on 7 November 2014 by Stefano Battaglia and Florentina Battaglia. The respondent to the application was ING Bank (Australia) Ltd. 2The Court's reasons were reserved. The reasons follow. 3The order against which the applicants wished to appeal was made by Bergin CJ in Eq on 31 October 2014. By that order, her Honour fixed for hearing on 24 November 2014 the first cross-claim in pending Commercial List proceedings as it related to the present parties and the second cross-claim which concerns the present parties. The issue between the applicants and the respondent concerns alleged liability of the applicants as guarantors of financial obligations owed to the respondent by other parties to the proceedings. 4The date 24 November 2014 had already been fixed for the hearing of other aspects of the overall litigation. A form of de facto separation of the proceedings into two segments had occurred when the original hearing date of 4 August 2014 (fixed on 14 February 2014 in respect of all parties and all claims) was vacated as against the applicants after the first applicant suffered a stroke. The order of 31 October 2014 to which the application for leave to appeal related had the effect of bringing the two segments together again. 5The order made by the Chief Judge in Equity was a discretionary order. Appellate intervention would have been justified only on grounds of the kind discussed in House v The King [1936] HCA 40; 55 CLR 499 and, since it was an order with respect to case management, after exercise of the particular restraint that is called for when the challenged decision is a discretionary decision on a matter of practice and procedure: In the Will of F B Gilbert (1946) 46 SR(NSW) 318; Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; 148 CLR 170. Leave to appeal will be granted in such cases only where an issue of principle or a question of general public importance is at stake or the situation is one of manifest (and not merely arguable) injustice: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. 6The applicants based their leave application on the contention that the order sought to be challenged wrought manifest injustice. The Court did not accept that contention. 7It was not disputed that the first applicant had become ill when he suffered a stroke on 13 July 2014. By order made on 18 July 2014, McDougall J vacated the hearing date of 4 August 2014 on the application of the present applicants but only in respect of them. On 25 July 2014, McDougall J adjourned to 3 September 2014 the elements of the case fixed for hearing on 4 August 2014. There was subsequently a further adjournment to 24 November 2014. 8At a directions hearing on 3 September 2014 in respect of the separated aspect involving the applicants, orders were made for the filing by 30 September 2014 of updated evidence concerning the first applicant's health and there was a direction that that aspect be listed for further directions on 28 November 2014. 9The further medical evidence due by 30 September 2014 was not forthcoming. 10On 17 October 2014, the solicitors for the respondent were served with a notice of ceasing to act by the solicitors who until then had acted for the applicants (this followed filing of notice of intention by those solicitors on 30 September 2014). On 21 October 2014, the respondent's solicitors wrote direct to the applicants referring to the absence of the medical evidence (which was then three weeks overdue) and the withdrawal of the solicitors and saying that they would seek relisting of the matter for directions on 24 October 2014 with a view to having the proceedings against the applicants set down for final hearing on 24 November 2014. 11That foreshadowed application was made on 31 October 2014 and a contested hearing took place. In opposing the application, the applicants relied on the 30 October 2014 affidavit of Mr Ward, solicitor, who had been retained by the applicants on 23 October 2014. Among the matters to which he deposed were the following: