Grant Mears v Sydney Anglican Schools Corporation

Court of Appeal (NSW)|2016-03-07|Before: McColl JA, Coll JA

[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.]

Judgment

McCOLL JA: By summons filed on 26 February 2015 the applicants, Grant and Gloria Mears, seek leave to appeal against three decisions of the District Court dated respectively, 26 November 2015, [1] 3 December 2015 and 3 February 2016. By notice of motion filed the same day the applicants also seek an order referring them to a barrister for pro bono assistance pursuant to Pt 7 Div 9 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and an order staying orders made by the District Court on the three dates to which I have referred.
At the commencement of the hearing I gave Mr Mears leave to represent his wife, Gloria Mears, for the purposes of the application for pro bono assistance. In the course of the short period of adjournment today in which I prepared these reasons it appeared to me appropriate to grant him leave also to appear for her today for the purposes of the stay application sought in order 4 of the notice of motion. Mr Mears sought that leave in circumstances in which Mr Salama, counsel for the first respondent, the Sydney Anglican Schools Corporation, the proprietor of Roseville College (College), submitted that there was no contemporary evidence that Mrs Mears authorised Mr Mears to represent her, in particular in circumstances where she may be exposed to costs orders.

Background

The proceedings have a somewhat complex procedural history. The College brought proceedings against Mr and Mrs Mears in the Local Court seeking to recover outstanding fees of approximately $20,000 together with interest and costs. The fees claimed related to the secondary education of the Mears' four daughters at the College.
Those proceedings were heard in the Local Court and determined in the College's favour. Garling J allowed the applicants' appeal to the Supreme Court. [3] At the conclusion of the proceedings Garling J ordered, among other matters, that the proceedings be re-heard, that the Local Court proceedings be transferred to the District Court of New South Wales and that a cross-claim filed by Mr and Mrs Mears on 29 September 2008 be reinstated. [4]
The applicants appear always to have been unrepresented, save that they received pro bono assistance when the matter was before the Supreme Court.
Since the matter has been in the District Court, subject to what I will say shortly, Mr Mears has been seeking to have orders made which will deal with the rehearing. On 13 July 2015, he filed a notice of motion in the District Court seeking leave, relevantly, to join the second respondent, the State of New South Wales and the third respondent, Ms Firbank, as parties to the proceedings and that the applicants' "reinstated" cross-claim be "correspondingly amended". [5] On 28 July 2015, Elkaim SC DCJ ordered the applicants to serve a proposed cross-claim on the College, the State of New South Wales and Ms Firbank by 25 September 2015 with any supporting evidence.
It was apparently the 13 July 2015 notice of motion which came on for hearing before Taylor SC DCJ on 26 November 2015.
Taylor SC DCJ refused to accede to paras 8, 9 and 13 of the applicants' notice of motion to which I earlier referred. Among his Honour's reasons were the fact that the causes of action underlying the proposed claims against Ms Firbank and the State of New South Wales were not disclosed in any properly pleaded cross-claim, and that a "proposed cross-claim" had not been served on the plaintiff and the two proposed cross-defendants by 25 September 2015 in accordance with Elkaim SC DCJ's orders. His Honour recorded that: "During submissions, Mr Mears accepted that although various drafts of a cross-claim had been created, some of which have been provided to the other parties, none of those documents sought to propound a cross-claim in the form that Mr Mears sought to have filed." [6]
It appears that there was a document before his Honour on 26 November 2015 entitled "Draft Amended Cross-Claim of 19 November 2015 for hearing listed on 26 November 2015 for leave to join two respondents". Ms Gleeson, who appears for Ms Firbank, informed the Court, without demur from Mr Mears, that he eschewed reliance on that document.
Among the other matters to which Taylor SC DCJ referred in declining to make the orders sought in the notice of motion were that granting leave to file a pleading customarily requires a copy of the proposed pleading to have been considered by the parties. His Honour considered that "rule" to have been evident in the orders Elkaim SC DCJ had made in respect of the service of the proposed cross-claim. His Honour concluded that in the absence of such a document being created and provided to the other parties, it would be inappropriate for the Court to grant leave for the document to be filed. [7]
His Honour added that: "This rule was not at all times forcefully opposed by Mr Mears. Rather he was concerned that the Court make orders to progress the matter even though he submitted that he was unable, in part due to his absence of legal training, to draft an appropriate cross-claim. He also submitted that he was unable to draft subpoenas to enable him to obtain documents that might assist him or others to draft an appropriate cross-claim." [8] Taylor SC DCJ remarked: "14. Be that as it may, in the absence of a document being available to the Court and served on the parties, in respect of which leave could be granted, I do not propose to make any order granting leave."
His Honour was also of the view that to make the orders sought in the notice of motion would not accord with the overriding purposes in s 56 of the Civil Procedure Act 2005 (NSW) (CPA) in that it would not "serve to bring the real issues of the proceedings to a quick, just and cheap conclusion if the cross-claim continues without those real issues being clearly identified or having any real prospect of being identified." [9]
The notice of motion sought orders with which Taylor SC DCJ did not deal. Accordingly, his Honour stood the matter over for directions before the Judicial Registrar in relation to the residue of those matters on 3 December 2015 and also for directions in relation to the proceedings generally.
As leave had been refused to join the proposed cross-defendants, or to file a cross-claim against them, his Honour recorded that they should no longer be regarded as parties to the proceedings, if they ever were to be so regarded. [10] His Honour also made orders in relation to costs, in particular ordering Mr Mears to pay the College's and the respondents' costs of and incidental to the application for orders 8, 9 and 13 of the motion and also costs which had been reserved on 16 October 2015. He granted the second and third respondents to this motion leave to enforce the costs order forthwith as if the proceedings had been concluded. It is those costs orders in particular to which I understand order 4 of today's notice of motion seeking a stay is addressed.
Thereafter the proceedings apparently came before Judicial Registrar Howard on 3 December 2015. There are no papers before me in relation to that hearing. However Mr Salama informed the Court that the Registrar considered the effect of Taylor SC DCJ's orders was that the pleadings were closed and that the matter should be set down for trial. The matter has been listed for a seven day hearing commencing on 28 November 2016.
There are also no papers before me concerning the matter which is the subject of the third date referred to in the summons seeking leave to appeal, 3 February 2016. However, it again seems to be uncontroversial that that date refers to an application Mr Mears filed in the District Court seeking to have the 26 November 2015 orders stayed. That matter found its way back before Taylor SC DCJ. His Honour refused to grant a stay. If the applicants continue to seek to challenge that decision, they will have to file a copy of his Honour's reasons. That matter can await directions from the Registrar of this Court in due course.

Prior pro bono assistance

While the proceedings have been before the District Court there have been two prior occasions on which the applicants have been given the opportunity to avail themselves of assistance pursuant to that Court's Pro Bono Scheme.
The first occasion appears to have been on 9 July 2014 when her Honour, Truss DCJ, noted that the applicants undertook to the Court to be guided by advice given by way of any pro bono assistance and, having been satisfied pursuant to UCPR 7.36, that it was in the interests of justice to refer the applicants to a solicitor or barrister from the Pro Bono Scheme, made that referral. Her Honour limited the referral to advice to the applicants with regard to whether they had a viable cause of action against the College and, if so, also to advise with regard to their prospects of success on a cross-claim, and finally, if appropriate, to draft an amended cross-claim disclosing a viable cause of action. Her Honour's order was subject to a second proviso, namely that if the barrister or solicitor so appointed formed the opinion the provision of legal assistance was futile, he or she might apply to the Court under UCPR 7.39(1)(c) to cease to provide legal assistance. On 13 August 2014 the matter came back before her Honour, on which occasion it appears the pro bono counsel had been appointed but sought further time to consider the papers and advise the defendants, the applicants in this Court.
On 9 September 2014 the matter came before McLoughlin SC DCJ, on which occasion his Honour noted, "papers withdrawn from barrister (appointed pro bono)." The matter came back before his Honour again a week or so later on 17 September 2014, on which occasion his Honour referred to an affidavit from Mr Mears, and pursuant to UCPR 7.36, once again referred the matter, on this occasion to a different solicitor or barrister, under the pro bono scheme under the proviso set out in Truss DCJ's orders of 9 July 2014. On 7 October 2014 McLoughlin SC DCJ terminated his order of 17 September 2014.
In his affidavit in support of the orders sought in the notice of motion before the Court today, Mr Mears sets out a deal of the history I have already recited. He has attached to his affidavit what he describes as fresh evidence of a medical nature regarding his physical and emotional impairment at what he describes as material times, and relevant to the conduct of the 26 November 2015 hearing. He has annexed to his affidavit two letters from a Dr Brener, who assessed him as suffering from medical conditions, the details of which he asked not be specified in my reasons, a course the respondents did not oppose. In her first letter, Dr Brener recorded that as a result of these conditions, she advised Mr Mears he was unable properly to prepare an amended cross-claim that was supposed to be presented in mid-November 2015. In her second letter of 2 February 2015, which appeared to be prepared in relation to the appearance before Taylor SC DCJ on 3 February 2016, Dr Brener recorded he was trying to be prepared within approximately four weeks. It is not apparent how that last letter relates to the matter which was before Taylor SC DCJ on 26 November 2015.
Mr Mears' affidavit also attached what purported to be advice from the New South Wales Legal Aid Grants Division that the applicants' status of "Legal Aid refused" remained as it had been as at a date in January 2012 when the Legal Aid Commission had refused Mr and Mrs Mears' Legal Aid application. The correspondence does not identify the matter or matters to which the refusal related, nor is the precise basis of the refusal apparent. The letter advised that legal aid was not available for matters "of this nature", then added a number of other reasons why legal aid might not be granted, including reference to means tests, other participation in internal dispute resolution and/or external dispute resolution processes and whether there was a significant point of law to be determined.

Consideration

The Court may refer a litigant to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance if satisfied it is in the interests of the administration of justice to do so: UCPR 7.36(1). In considering whether that criterion is established, the Court may take into account the means of the litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other matter the Court considers appropriate: UCPR 7.36(2). The Court may not refer a litigant for assistance under UCPR 7.36 if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of three years, unless the Court is satisfied there are special reasons that justify a further referral: UCPR 7.36(2A).
When asked what it was about the complexity of the application for leave to appeal which warranted pro bono referral, Mr Mears sought to identify a number of matters not directly in my view related to the proceedings before Taylor SC DCJ. One of his repeated statements was that there was no record in the District Court of the reinstated cross-claim. That, the reader will recall, is a reference to the order Garling J made reinstating a 2008 cross-claim, which had apparently been struck out in the Local Court proceedings. [11]
Mr Salama advised the Court that the College accepted that the 2008 cross-claim was a matter which formed part of the pleadings in the District Court, and that the issues it raised were to be the subject of controversy at the November 2016 hearing.
That cross-claim, as will be apparent from the other orders Mr Mears has sought in the District Court, named only the College as a cross-defendant. It is only insofar as the applicants sought to join the second and third cross-respondents, as I understand it, that the cross-claim remains, at least in the applicants' view, in some way deficient.
Mr Mears also submitted in relation to the "complexity issue", that he had been unsuccessful in attempts to file an amended cross-claim in the District Court because of the Court's assertion there was no extant cross-claim. It is not the function of this hearing to seek to resolve these matters which most probably are unknown to those present save insofar as Mr Mears may have had interaction with staff in the District Court. As I have said, the College accepts it is subject to the 2008 cross-claim. One can also infer from the order Elkaim SC DCJ made on 28 July 2015, that the question of whether the applicants could file a cross-claim joining the second and third respondents was squarely in his Honour's understanding, and of course was squarely before Taylor SC DCJ. [12]
Another matter Mr Mears raised going to complexity, was the fact that he had been under the impression that the purpose of the hearing before Taylor SC DCJ was to argue whether the second and third respondents should be joined, but not to resolve the issue as to what cross-claim could be filed against them. It is difficult to understand this, having regard to the orders Elkaim SC DCJ made on 28 July 2015 and the matters which were canvassed before Taylor DCJ as reflected in his Honour's reasons. Those reasons make it clear, in my view, that his Honour put to Mr Mears, and Mr Mears accepted, that he had not prepared nor served on the College and the two proposed cross-defendants any proposed cross-claim in compliance with Elkaim SC DCJ's orders.
Mr Mears also submitted that pro bono assistance was sought to enable the applicants to articulate the fundamental issues going to the heart of the appeal in a legal fashion, which would enable the matter to move forward.
The College, as Mr Salama said, somewhat unusually for a party in its position, opposed the application for a pro bono referral. However, the College's opposition to such a referral, is made in part because of the earlier referrals to which I have referred. Mr Salama submitted that each occasion on which a pro bono referral had been made in relation to the District Court proceedings, had led to a lengthy delay, which had the effect of exacerbating the duration of what was already a lengthy hearing process in relation to what was, at least from the College's point of view, a relatively small amount of money. [13]
For reasons which were unexplained, it had apparently taken some eight to nine months for the matter to be "moved" from the Supreme Court into the District Court following Garling J's orders. The matter having been in the District Court since December 2014, it had taken at least until 3 December 2015 when the matter came before Judicial Registrar Howard to obtain a trial date. Mr Salama also submitted that Mr Mears had not identified any matter which would make the application for leave to appeal a complexity, warranting a pro bono referral, nor did the summons seeking leave have prospects of success.
Ms Gleeson, who appeared for the third respondent, also opposed the application for a referral for pro bono assistance on the basis of the delay which would be occasioned by such a referral. She drew the Court's attention to the fact the proposed third respondent was a retired school psychologist who had been subjected to these mooted proceedings for more than a year. She argued the fact that any further delay could occasion injustice to her should be taken into account. Ms Gleeson argued the applicants had drawn no matter to the Court's attention concerning their means and why they had not been able to seek other legal assistance in the past, including more expeditiously, by making direct application for such assistance to the Law Society or the Bar Association. Insofar as order 4 in the notice of motion, concerning the stay of the costs orders was concerned, Ms Gleeson submitted such relief had already been refused by Taylor SC DCJ and Mr Mears had not identified any ground which would attract a stay of the costs orders.
Mr Sarginson, who appeared for the State of New South Wales, neither opposed or consented either to the pro bono referral application or the stay application. He did, however, also submit that the application for leave to appeal had little prospect of success and that the merits of the matter could be taken into consideration when the Court determined whether or not a pro bono referral should be made.
As will be apparent the application for leave to appeal arises in relation to discretionary decisions in respect to matters of practice and procedure made by Taylor SC DCJ. In order to succeed on an appeal against such an order it would be necessary for the applicants to satisfy the Court of an error of the nature of those identified in House v The King. [14] The Court will not lightly interfere with matters going to the exercise of a discretion of a procedural nature, being of the view that granting such leave in such matters liberally unnecessarily prolongs trials. [15]
In addition, in determining the prospect of leave to appeal being granted, the Court will take into account the just, quick and cheap disposition of proceedings and also whether or not any direction which is made in the course of proceedings is in the interests of parties. [16] Those interests include not only the interests of the immediate parties to the proceedings, but also other litigants in the court system. [17]
It is not, of course, a matter for me in this application to determine finally the merits of the leave application. Nevertheless it is appropriate for me to take into account the applicants' likely prospects of success in seeking leave to appeal, as the Court "should ordinarily be reluctant to grant certificates in respect of matters that appear to be without merit". [18] Further, the Court should not impose upon the voluntary services of the profession where it may be inferred that legal aid has been sought and refused for lack of merit or a referral would otherwise be futile. [19]
In addition there have been, at least, one successful pro bono referral which led to the proceedings being in the District Court, one pro bono referral which was apparently terminated after a period of some three or so months and McLoughlin SC DCJ's referral, which his Honour terminated very soon after the event, for reasons which do not appear from the court file. At least the two District Court referrals were within the period of the last three years referred to in UCPR 7.36(2A).
The issue which the applicants seek to canvass on the leave application does not appear to me to be of such a complexity as requires a referral for legal assistance. The matter before Taylor SC DCJ was a straightforward application to join parties to a cross-claim, and to amend a cross-claim, in relation to which directions had been given. There is no complaint about the ambit of his Honour's reasons. In my view it is not a matter of such complexity that I could be satisfied that it is in the interests of the administration of justice (UCPR 7.36(1)), or having regard to the other pro bono referrals already within the last three years, that there are special reasons for there being any further referral to the Pro Bono Scheme (UCPR 7.36(2A)).
When UCPR 7.36(2A) was first raised, I queried whether it applied when the other referrals were not in the Court in respect of which the application for a pro bono referral was made. No party addressed me on that issue. If that was a relevant limitation, the fact of the prior referrals is, in my view, a matter which I can take into consideration under UCPR 7.36(2)(d) in determining whether or not to make the pro bono referral.
I turn then to the fourth (stay) order sought in the notice of motion. An application for leave to appeal does not operate as a stay on the judgment below. The second and third respondents are, prima facie, entitled to the "fruits" of the costs orders made by Taylor SC DCJ.
The applicants have not placed any material before the Court which would enable this Court to be satisfied that if a stay of the costs orders was granted the interests of the second and third respondents in pursuing those costs orders would be protected. [20] In my view, therefore, the applicants have not demonstrated any basis upon which order 4 in the notice of motion should be made.
Orders 1 and 2 in the notice of motion concern the filing of appeal books and their preparation. It is appropriate that the Registrar deal with those matters by way of a direction on 11 April 2016 when the summons is listed for direction.
Accordingly, I make the following orders: 1. Leave granted to Mr Mears to represent Mrs Gloria Mears for the application for pro bono assistance pursuant to Division 9 Part 7 of the UCPR. 2. Leave granted to Mr Mears to appear on behalf of Mrs Gloria Mears on the stay application sought in the notice of motion dated 26 February 2016. 3. Refuse the application for a referral to a barrister or a solicitor on the Court's pro bono panel, sought in order 2 of the 26 February 2016 notice of motion. 4. Refuse the application for a stay of the orders of the District Court made in the decisions to which I have earlier referred. 5. Applicants to pay the respondents' costs of the application.

Endnotes

Sydney Anglican Schools Corporation t/as Roseville College v Mears [2015] NSWDC 348 (Primary judgment).
Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149.
Mears v Sydney Anglican Schools Corporation [2013] NSWSC 535.
Mears v Sydney Anglican Schools (No 2) [2013] NSWSC 876.
Paragraphs 8, 9 and 13 of the notice of motion.
Primary judgment (at [9]).
Primary judgment (at [13]).
Primary judgment (at [13]).
Primary judgment (at [15]).
Primary judgment (at [18]).
See above at [6].
His Honour referred (at [9]) to the "reinstated cross-claim".
The College's claim was originally commenced in the Local Court of New South Wales. The case was, I was informed, referred to the District Court by Garling J because of the mooted quantum of the cross-claim to which I have referred.
[1936] HCA 40; (1936) 55 CLR 499.
Re The Will of Gilbert (dec'd) (1946) 46 SR (NSW) 318 (at 323).
CPA, ss 56, 58.
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
M v Director General, Department of Family and Community Services [2013] NSWCA 118 (at [21]).
Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257; M v Director General, Department of Family and Community Services op cit.
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2016

At a glance

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Legislation Cited (2)

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