[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
This morning I heard Ms Charlton's application to vacate the hearing of this appeal on 26 and 27 November 2020. Following oral argument (the parties appearing by telephone) I made the following orders:
1. Dismiss the first appellant's application to vacate the hearing dates set for 26 and 27 November 2020.
2. Order the first appellant pay the costs of that application.
3. Amend para 9 of the directions and orders made on 17 August 2020 to provide that the respondent serve the electronic copy and agreed hard copy appeal book by 6 November 2020.
At the request of the parties, and so as not to delay them, I reserved my reasons which were delivered later on 28 September 2020. Those reasons follow.
The dates for hearing the appeal were fixed on 17 August 2020 following a directions hearing at which Ms Charlton was present (by phone), as was the respondent bank. At that time the Registrar also made directions to ensure the matter would be ready for hearing on those dates. To that point the appellant had filed an amended notice of appeal and written submissions on behalf of herself and her father, the second appellant.
Although there was no appearance by the second appellant before me, the application proceeded on the basis that it was brought with his agreement and support. That assumption was justified having regard to the way in which the underlying proceedings were conducted and documents filed in this Court.
The notice of motion was supported by an affidavit of Ms Charlton sworn 15 September 2020. The motion does not indicate whether the application to vacate was brought by way of review of the Registrar's earlier decision to fix the hearing date in November 2020 (Uniform Civil Procedure Rules 2005 (NSW), rr 51.59; 49.19) or more generally in the exercise of the power of the Court of Appeal to make any orders or give any direction in any appeal proceedings (see Supreme Court Act 1970 (NSW), s 46(2)). As the application was argued without regard to the Registrar's decision, I have treated it as made under the latter provision and accordingly as not constrained by the particular considerations or factors which may arise with respect to a "review" under UCPR r 49.19 (see Tomko v Palasty (No 2) (2007) 71 NSWLR 61).
In the underlying proceeding the bank sought against Ms Charlton a money judgment and judgment for possession of a property known as "Oriel"; which on the bank's case was acquired and mortgaged by Ms Charlton as trustee of the Phoenix Trust. Those proceedings were commenced in January 2015 and heard on various dates between 24 November 2017 and 22 October 2018. Reasons for judgment were delivered one year later on 29 October 2019 and orders giving effect to those reasons made on 23 March 2020. The respondent secured a judgment against Ms Charlton for $1,838,388 and for possession of the Oriel property.
At the time of the directions hearing before the Registrar in August 2020 the available dates for a two day hearing were in November 2020 and February 2021. The counsel briefed by the bank, since before November 2017, Mr Colquhoun, was unavailable to appear in an appeal in February because of existing commitments. The Registrar was advised that his first available dates were in April 2021. Ms Charlton (as she says in her affidavit at para 8) "suggested February was a more appropriate time for the hearing due to my personal work commitments". The Registrar determined to fix the matter for two days at the end of November. The alternative was to delay the hearing until April 2021.
In her affidavit in support of the vacation of the hearing date, Ms Charlton says (paras 8, 9, 11 and 12):
This is a complex matter with voluminous material an allowance of 1 day hearing noted on Annexure B is not adequate. The Directions given on the 17th August 2020 listed 26th and 27th November 2020 for hearing the notice of motion and the hearing. During the direction I indicated that November/December was not a suitable time to allocate a hearing date that I could fairly participate in as it is during harvest time, a crucial time economically for us and other farmers. I explained to the court we have just come out of a very lengthy drought period, no crop since 2016, this made this year extremely important for us and many farmers in the district who we also assist during harvest. I suggested February was a more appropriate time for the hearing due to my personal work commitments.
My work commitments as a farmer were secondary and disregarded, in comparison to Mr Colquhoun legal counsel for the National Australia Bank who pushed for a November hearing due to his work commitments in Feb, March and his unavailability until April 2020. No compromise of the parties' availability was made rather the hearing date was dictated by National Australia Bank's Legal counsel supported by the Registrar. My interests were not taken into account at all.
…
I request procedural fairness in this matter to avoid practical injustice and improve the potential outcome of the matter in its entirety, that being a quality decision - not a rush job. With allowances for Covid-19 impacts via an appropriate timetable.
The timetable also does not allow time to brief legal counsel assistance should it become necessary.
The Court's directions for the exchange of submissions and preparation of appeal books have been complied with to this point in time. They provide for the exchange of written submissions to be completed by 14 October 2020. The only submissions remaining to be served are Ms Charlton's submissions in reply.
The respondent has prepared a page numbered electronic bundle of all of the material before the primary judge and notified the appellants of the documents in that bundle which it says should form part of the hard copy appeal books. The appellants are to notify the bank of the documents they require be included in those books by 14 October 2020. The content of the appeal books is then to be agreed by 23 October 2020 with those books to be produced by the respondent by 16 November 2020. (In the course of oral argument, the respondent agreed to this date being brought forward to 6 November 2020).
Reference to the exchanged written submissions and to the appellant's amended grounds of appeal shows that there are various issues as to the application of the Farm Debt Mediation Act 1994 (NSW) to the bank's maintaining of the debt and possession proceedings, as well as issues as to Ms Charlton's liability as trustee of the Phoenix Trust; in circumstances where the second appellant was said to have been a joint trustee with her until she purported to resign as trustee in August 2011. None of this suggests that the appeal is particularly complex or that it will require more than two days to dispose of it and the appellants' motion to adduce further evidence. In relation to that motion the respondent has filed an affidavit which suggests that the documents in question total no more than 60 pages.
Ms Charlton is very familiar with the issues in the proceedings as she has conducted her defence, and effectively that of her father, since before November 2017 when her application for summary dismissal of the bank's proceeding was argued and determined (National Australia Bank Ltd v Charlton [2018] NSWSC 157).
Turning to the matters from Ms Charlton's affidavit which are set out above, there is no indication as to the specific nature of her "work commitments" during harvest time which are said to have the consequence that she could not "fairly participate in" a two day hearing at the end of November.
During the course of oral argument I raised the difficulty presented by the generality of the references to the nature of those work commitments. In response Ms Charlton indicated that the harvesting activity referred to was to take place on her husband's property, which was operated separately from the Oriel property, which in turn was managed by Ms Charlton's brother, Justin O'Brien. In argument Ms Charlton's involvement was described as moving and operating machinery, although the precise nature of the machinery and what was involved was not explained. Ms Charlton also made reference to her having school aged children, who would require supervision. Again there was no explanation as to why that prevented her from preparing and participating in the two day hearing.
Notwithstanding these further general statements I remain unsatisfied that Ms Charlton's work commitments in relation to any forthcoming harvest are such that her otherwise necessary involvement cannot be rescheduled or undertaken by other persons so as to enable her to participate in the appeal. The "others" who have an interest in the outcome of the appeal include, apart from the second appellant, her brothers Justin and Gavin.
In her oral submissions Ms Charlton focused on the possibility that at some point in time in the near future she may be in a position to brief a solicitor or barrister to appear or otherwise provide assistance on the hearing of the appeal. Although that possibility was referred to in para 12 of her affidavit, it was not, according to Mr Lewin who appeared for the bank, mentioned at the earlier directions hearing before the Registrar. Ms Charlton speculated that if such assistance was to become available it would not be possible in the time remaining for any such lawyer to read the relevant material so as to be in a position to appear or assist.
To the extent that possibility is put forward as a reason for vacating the hearing date, I am not satisfied that it is a sufficiently realistic one to justify such an order. Ms Charlton's submissions did not explain at all what has been done or is proposed to be done to pursue that prospect. All that was disclosed was that an application or request had been made to some entity for legal assistance.
Furthermore it is not obvious that if a lawyer was retained in the next week or so, that lawyer would not be able to review the judgments and written arguments sufficiently to advise and, if instructed, prosecute the appeal. The amended direction for the preparation of the hard copy appeal books means that they will now be available almost three weeks before the scheduled commencement of the appeal.
In these circumstances the affidavit material and matters raised in argument did not justify the vacation of the hearing date of an appeal in proceedings which have already been considerably delayed in the course of their prosecution.
[3]
Amendments
29 September 2020 - Paragraph 2: "parties so" replaced with "parties, and so". Paragraph 8: "may" replaced with "many" in indented quote. Paragraph 15: "scheduled appeal" replaced with "appeal".
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Decision last updated: 29 September 2020