Chaina v The Presbyterian Church

Dismissal application

In support of the proposal that the proceedings be dismissed, counsel for the respondent submitted that the grounds of appeal were very general in nature and without any precise detail which would be necessary to enable the respondent to consider whether they have any proper basis. That characterisation is fairly based given the form in which the grounds are presently articulated. It also qualifies the ability of this Court to assess the merit of the appeal.
Many of the grounds deal with rulings on the admissibility of evidence and the fairness of the conduct of the trial. Other grounds challenge findings of fact. There is a ground which alleges bias, or alternatively apprehended bias, on the part of the trial judge. There is also a challenge to the costs order in favour of the respondent which awarded a lump sum of $8.3 million. (That is the figure which outweighed, by several times, the limited success obtained by the appellants at trial.)
None of these grounds have any detail put in support of them and it is not possible to know even the basis upon which they are sought to be proffered, let alone to assess their prospects of success. Although, as the respondent correctly noted, the grounds fall well short of satisfying the criteria specified in the UCPR, r 51.18, it is fair to say that the case is not unique in that respect. Counsel for the appellants made that point and it is valid. However, there are three factors which render the failing of unusual significance in the present case.
The first is that the appellants have had many opportunities to revise and re‑plead the grounds upon which they seek to rely. Directions have been given by the Court that they do so. There may be understandable reasons why that has not occurred, nevertheless the fact is that it has not occurred.
Secondly, deficiencies of this kind can sometimes be overlooked because the details of the grounds to be relied upon are clarified in written submissions filed at the appropriate time, again a point made by counsel for the appellants and fairly so. The problem is that this has not happened in this case. There are no written submissions which would allow either the respondent or the Court to assess the prospects of any appeal.
Thirdly, the length and complexity of the trial render the failure to provide coherent grounds supported by relevant submissions of greater than usual importance. While that length and complexity may cause difficulty in formulating the grounds, it is also fatal to the orderly process of the appeal when grounds are not properly formulated.
Counsel appearing for the appellants could give no satisfactory assurance that these problems would be remedied in the foreseeable future. The result is that, two years having elapsed since the judgment was delivered at trial, the likelihood of an appeal proceeding to the preparation of appeal books and the provision of written submissions, let alone a hearing within a reasonable time, is at best remote. In these circumstances, the costs and prejudice incurred by the respondent in attending hearings where directions are given and orders are made which are not complied with, together with the uncertainty arising from the fact that no clear timing for determination of the appeal can be established, amount to a significant degree of ongoing prejudice. That prejudice also extends to the failure to be able reasonably to enforce the judgment which has been obtained, although the basis upon which it has been challenged is as yet unassessable.
Whether there would be any prejudice to the appellants from dismissal of the proceedings is less clear. First, for reasons already explained, it is quite unclear that they would be able to pursue the appeal in the foreseeable future if it remained on foot. Further, they are not necessarily foreclosed from reagitating properly pleaded grounds supported by appropriate written submissions. To do so would require an application for leave to appeal out of time. But if it were sought expeditiously, they would at least have the ability to argue that the respondent had not been greatly prejudiced by lack of notice of their intention to appeal given the steps which have already been taken.
There is one other matter which needs to be addressed in relation to the proposed order dismissing the proceedings, that is that the appeal grounds relating to the costs orders are articulated with greater precision and with a level of understanding of the issues involved which does not attend the grounds relating to the merits of the damages proceedings.
The suggestion made by counsel for the appellants in the course of argument was that the orders of compromise which had been made in 2007 in relation to the companies, did not comply with UCPR, r 20.26 as in force at the relevant time and as explained in Whitney v Dream Developments Pty Ltd. [2] I do not have the offers of compromise and I have no idea whether they comply with the rule or not. The answer, however, is one which would be readily accessible if that issue were to be raised on an appeal.
The practical significance of such an issue, however, rests upon the orders for costs flowing from the offers of compromise. The orders were made against all four of the outstanding appellants jointly and severally. The orders were based upon the fact that compromises had not only been contained within the defence filed in June 2003, but had been the subject of Calderbank offers. It was on that basis that the appellants were ordered to pay the costs of the respondent on an indemnity basis from June 2003, that is, some four and a half years before the formal offers of compromise were made to the companies in December 2007. In these circumstances it is difficult to see that there is any practical significance in the specific ground relating to the offers of compromise.
Counsel then noted that the question about whether the Calderbank offers should properly have been the subject of an indemnity costs orders, raised a separate question as to whether the conduct in refusing to accept them was unreasonable. On one view, that might be a separate question which could be the subject of the appeal and is sufficiently identified in the grounds. Nevertheless, there is an issue as to futility which arises from the outcome of the proceedings. The defence not only admitted liability but proffered a payment in response to that liability by way of damages. The issue which was therefore to be determined at trial was not whether the appellants were entitled to damages, but whether they were entitled to an amount in excess of that proffered in the defence. Because they failed on that issue, it is undoubtedly arguable that the event which costs should normally follow was a failure to obtain relief in respect of that which was in dispute. On that approach, the plaintiffs, and now the appellants, would have been ordered to pay costs in any event, assessed at least on the ordinary basis. The amount involved would have been a large proportion of the amount which was in fact ultimately ordered.
Further, a challenge to the Calderbank offers based on the reasonableness of the appellants' conduct in not accepting them might well have raised broad issues as to the conduct of various aspects of the proceedings. In these circumstances, it does not seem appropriate to hive off questions as to costs, and allow the appeal to proceed in relation to those issues.
In the end, this is not a case in which the expeditious administration of justice is the predominant factor. The basis for ordering that the appeal should be dismissed is the ongoing prejudice to the respondent, together with the lack of prospect of compliance by the appellants with the rules and directions governing this appeal and appeals generally in the foreseeable future.
The Court orders that - 1. the appeal be dismissed, and 2. the appellants pay the respondent's costs of the respondent's motions of 1 December 2014 filed on 3 December 2014 and of 15 April 2016.

At a glance

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Judgment (7 paragraphs)

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Legislation Cited (2)

Cases Cited (3)

Cited By (1)