Brighton & Ors v Australia & New Zealand Banking Group Limited

Judgment 1HIS HONOUR : The appeal is listed for hearing on 4 May 2011. The appellants are in default in directions for submissions and appeal books. They have applied for vacation of the hearing date. 2The appeal is from a judgment of Einstein J given on 10 September 2010, resulting in orders made on 18 October 2010. The respondent had lent money on mortgage security and with guarantees. It obtained judgment for possession against some of the appellants and judgment for money sums against all of them. 3The appellants filed a notice of intention to appeal on 8 October 2010, and a notice of appeal on a date which is not entirely clear but presumably in November 2010. An amended notice of appeal correcting a deficiency as to parties was filed in January 2011. 4On 21 January 2011 Tobias JA heard an application by the appellants for a stay of execution of writs of possession issued on behalf of the respondent. On the evidence before his Honour the value of the security properties was considerably less than the amount outstanding to the respondent and the personal respondents were highly unlikely to be good for the difference, such that the respondent would be prejudiced by the accrual of further interest pending the hearing of the appeal. His Honour granted a stay, but subject to the appeal being expedited. He specifically said in para 14 of his reasons: "I note for the benefit of all parties that they must be in a position to proceed with the appeal urgently because, whatever date is allotted to it, there will not be any opportunity for that date to be changed to meet the convenience of counsel." 5A date in early March was allotted. On 8 March it was changed to 31 March 2011, as the date on which senior counsel for both parties were available. Regrettably, the solicitor for the appellants did not inform the Registrar that the senior counsel retained for the appellants had previously said that he could no longer take the case. Directions were given for filing submissions and appeal books. 6The appellants defaulted in the directions. The proceedings were re-listed at the request of the respondent. The appellants applied for vacation of the hearing date, which application was opposed, and the proceedings were referred to Tobias JA. 7His Honour vacated the hearing date of 31 March, with costs payable by the appellants, and fixed the hearing of the appeal for 4 May 2011. The transcript of the hearing and his Honour's reasons are not available, but the associate's record notes, "Bench prepared to vacate hearing to 4/5/11 with some reluctance." Consent directions were given for filing submissions and appeal books. 8There was again default in compliance with the directions. The Red Book had been filed, but the date of 7 April 2011 for the appellants' submissions and the Black and Blue Books being the first date in the timetable came and went. 9On 10 April 2011 the respondent's solicitors complained, and required that the appellants either file their submissions and the appeal books or say that they did not intend to proceed with the appeal. The unsatisfactory answer, in a letter from the appellants' solicitors of 11 April 2011, was: "Our clients extend their apologies for their default of the Court Orders. The matter is currently with Mr Paul Menzies QC, who is currently brief in this matter. Mr Menzies QC and our clients are unable to comply with the request contained within your facsimile of 10 April 2011." 10The respondent's solicitors then asked when the appellants "would be in a position to rectify their defaults". This brought a further unsatisfactory reply, a deal of which should be set out. It relevantly said: "We have already indicated to you that the matter is currently with Mr Menzies QC. It is our clients' intention to take every step possible and available to them to have this matter prepared for hearing. We assure you that the failure to comply with the Court's directions has not been a deliberate act by our clients, nor for that matter, that of our firm. As we have already indicted, our clients' currently have Mr Menzies QC retained, and it was our clients' belief that an application to vacate the hearing would be made once Mr Menzies has had the opportunity to review the matter and proceed to draft the submissions. Our client and our office anticipated that this would be done by today. Unfortunately, this has not occurred. Our office and our clients are not in a position to indicate to you when they can rectify their default of the Court's orders and will not be able to do so until Mr Menzies QC's position with respect to these proceedings and submissions is received." 11The respondent asked that the proceedings be re-listed. The appellants then filed a notice of motion applying for vacation of the hearing date, which is the application before me. 12Mr Menzies QC appeared on the application. He said that although he had considered when first briefed that he would be able to prepare submissions within due time, on further consideration he had come to the view that he needed more time properly to prepare and present the appeal. He indicated that there was in particular a matter which had not been run at the trial concerning discharge of the guarantees by reason of a breach of confidentiality to which attention had to be given. I observe that that matter was one of the grounds of appeal from the beginning. 13Mr Morahan of counsel, who had appeared for the appellants at the trial before Einstein J, has been retained at all times for the appeal. From what Mr Menzies said he is still retained, although Mr Menzies said that he wished to obtain the assistance of junior counsel with greater expertise in relevant matters. I do not understand that. 14The appellants should have been able to comply with the directions given on 31 March 2011, to which their solicitor had consented notwithstanding that at that time she did not have senior counsel, with but little slippage. The appellants had been able to frame meaningful grounds for appeal, no doubt on the advice of Mr Morahan. They had the assistance of Mr Morahan as junior counsel, and he had been at the trial. Junior counsel could prepare draft submissions and the solicitor could readily arrange preparation of appeal books, and Mr Menzies could settle the submissions. Whatever additional attention was required by Mr Menzies could be given within a relatively short time after he had been retained on 4 April 2011. 15The appellant's solicitor appears to have regarded the hearing date and the Court's directions as optional, and to have thought that vacation of the hearing date could be had for the asking depending on Mr Menzies' attention to the matter. That is not so, all the more because the stay of execution of the writs of possession was granted on condition of expedition and it was made clear that the hearing date would be given regardless of counsels' availability. 16I do not think that a case has been made out for vacation of the hearing date. There are nearly two weeks until that date. Some are Easter and Anzac Day holiday days, but past inactivity is a reason for expecting appropriate efforts. If the appellants are not able to accept fresh directions which will not unduly leave the respondent unable to prepare its submissions in reply and fairly deal with the appeal, it may be that the appeal should be dismissed for want of prosecution. [Discussion of directions] 17I give the directions in the short minutes of order which I initial and date today's date. Costs of this application will be costs in the appeal.