Practice and Procedure - Appeal from order granting summary judgment to respondent - Grounds of appeal have no reasonable prospect of success - Appeal dismissed

Supreme Court (Court of Appeal) Rules 2005 (WA), s 43(2)(g)(i)

Heedes v Legal Practice Board [2005] WASCA 166

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Legal Practice Board v Heedes [2004] WASC 260

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427

Verge (Trustee), Re Underdown (deceased) (a bankrupt) v Fazio (No 3) [2014] FCA 92

Verge (Trustee), Re Underdown (deceased) (a bankrupt) v Fazio [2013] FCA 18

1 JUDGMENT OF THE COURT: The appellant has appealed against an order of Master Sanderson of 24 September 2013, granting summary judgment to the respondent. An appeal notice was filed by the appellant on 17 October 2013, together with an application for an order that execution on the judgment be suspended pending the determination of the appeal. As the appeal notice was filed out of time, the appellant requires an extension of time to commence the appeal.

2 On 24 January 2014, the respondent applied for the appeal to be dismissed on the basis that none of the grounds of appeal has any prospect of success, or alternatively, on the basis that the appellant has failed to comply with a number of the provisions of the Supreme Court (Court of Appeal) Rules 2005 (WA). In the further alternative, the respondent sought an order striking out each of the grounds of appeal on the basis that they have no prospect of succeeding.

3 The appellant's application for the suspension of execution on the judgment and the respondent's application for the appeal to be dismissed were heard at the same time, pursuant to a registrar's notice to attend dated 30 January 2014. It is convenient to turn first to the respondent's application.

4 The appellant is the registered proprietor of a property in Hannah Place, Leeming (the property). The property is subject to a first mortgage to the respondent to secure a loan of $520,000 made to the appellant pursuant to a written loan agreement made on or about 20 February 2009.

5 On 21 February 2013, the respondent commenced proceedings against the appellant alleging that the appellant was in default under the loan agreement and the mortgage, and had failed to rectify the default in accordance with a default notice served by the respondent. The respondent sought an order for possession of the property pursuant to the mortgage.

6 An application for summary judgment was made by the respondent on 19 August 2013. That application was supported by an affidavit of Mr Cannalonga, an officer of the respondent. In the affidavit, which was sworn on 10 May 2013 but filed on 19 August 2013, Mr Cannalonga deposed to the loan and the appellant's default, and to arrears owing by the appellant in the sum of $140,537.24 as at the date of the affidavit. Copies of the loan agreement and the mortgage were attached to the affidavit.

7 The application for summary judgment came before the master on 10 September 2013. The appellant did not appear in person or by counsel. He had, however, written to the court, by a letter dated 9 September 2013, requesting an adjournment of the application for 28 days to enable him to obtain legal assistance. In the letter, the appellant said that he was currently incapable of preparing an affidavit in opposition to the application because of certain mental health problems from which he was suffering. The master adjourned the application for 14 days.

8 On 10 September 2013, following the hearing, the respondent's solicitors wrote to the appellant advising him that the application had been adjourned to 24 September 2013 and saying that if he required a further adjournment he would need to provide evidence from a medical practitioner explaining why he was unable to participate in the proceedings, failing which the hearing may proceed in his absence. The respondent noted that the appellant had been capable of commencing an appeal in proceedings in the Federal Court on 1 August 2013.

9 When the application came on for hearing on 24 September 2013, there was again no appearance by or on behalf of the appellant. He had, however, again written to the court, by a letter dated 24 September 2013 and sent by facsimile in the early hours of that morning, requesting a further adjournment of 28 days to obtain legal assistance. The appellant said he was 'significantly unstable and sleep deprived' and was unable to attend court. The appellant attached to his letter a copy of an email dated 17 September 2013 which he said he had sent to the Mental Health Law Centre requesting legal assistance and to which, he said, he was still awaiting a reply. He also attached a copy of a document, dated 11 June 2013, written by a psychiatry registrar at the South Metropolitan Area Health Service. It was addressed 'To whom it may concern' and expressed to be written 'to support [the appellant's] application for the court appearance to be adjourned'. It is evident from the date of the document that it must be referring to some other, earlier, court appearance. In the document, the psychiatry registrar said that the appellant was suffering from anxiety symptoms and mood instability, the symptoms of which had increased in the previous two weeks and had significantly affected the appellant's level of functioning and concentration. The psychiatry registrar expressed the view that certain proposed medical intervention would have a positive effect for the appellant within a few weeks - that is, within a few weeks of 11 June 2013.

10 The master declined to adjourn the hearing again. He considered there was nothing to suggest that the appellant had any defence to the claim. The master made orders that the appellant give possession of the property to the respondent within 28 days and pay the costs of the action

11 The appellant relies upon the following grounds of appeal:

1. A Denial of Natural Justice, in that as of my right to be heard, Ex Debito Justitiae, was denied by Master Sanderson.
2. A Denial of procedural Fairness in that the affidavit of Ljubica Petrovic sworn and dated the 24th September 2013 and somehow handed to Master Sanderson that very same morning of his decision, was not served upon me until 6 weeks later and that the programming was particularly onerous upon me in the actual circumstances.
3. The Master erred in the application of his discretion to grant the Summary Judgment Application pursuant to Order 14 (Rule 3) as evinced by usage of the word may, in antithesis to compulsion of law by a usage of the word must.
4. The Master erred in regard to Order 14 (Rule 3) by not giving a proper or fairly balanced regard to the nature of remedy or relief claimed.
5. The Master erred in that he failed to properly and or impartially consider all of the evidence that was before him, with the law, especially the failure by Westpac to expeditiously register the mortgage on the property for over some 28 months, but only after issuing some threats and causing some elements of duress.
6. An Apprehension of Bias, as to the test of Johnson v Johnson [2000] HCA 48.

The disposition of the application to dismiss the appeal Ground 1

12 The appellant contended, in effect, that by reason of the master's refusal to adjourn the hearing of the summary judgment application on 24 September 2013, he was not given an adequate opportunity to be heard. That contention has no merit.

13 The appellant's request for the hearing of the application to be adjourned was the second occasion on which he had sought an adjournment at the eleventh hour. After the appellant was granted an adjournment of 14 days on 10 September 2013 to enable him to seek legal assistance, he was expressly put on notice by a facsimile sent by the respondent's solicitors that day that if he sought a further adjournment on the basis of his mental health he would need to provide evidence from a medical practitioner.

14 The request for an adjournment of the hearing on 24 September 2013 was made without any satisfactory explanation as to why a further adjournment was necessary. No affidavit was filed in support of the request and the material attached to the appellant's letter was entirely inadequate. The document of 11 June 2013 prepared by the psychiatry registrar at the South Metropolitan Area Health Service said nothing about the appellant's current mental state and there was no explanation as to what, if any, attempts had been made to obtain legal assistance, apart from the rather belated email of 17 September 2013 to the Mental Health Law Centre. In short, there was nothing from which it might reasonably be concluded that the appellant had not had sufficient time to enable him to respond to the application.

15 Nothing has been put before this court which offers any better explanation as to why a further adjournment was necessary. In the circumstances, it cannot be said that the master's refusal to grant the adjournment meant that the appellant was denied an adequate opportunity to be heard. This ground of appeal has no reasonable prospect of success.

16 We would add that there is nothing in any of the material before us which suggests that the appellant has an arguable defence to the respondent's claim.

17 The affidavit of Ms Petrovic of 24 September 2013 was an affidavit of service which simply exhibited a copy of the letter dated 10 September 2013 from the respondent's solicitors to the appellant, referred to above at [8]. It is not in dispute that the appellant received the letter and was aware of the hearing on 24 September 2013. The appellant has not identified how the fact that he was not served with the affidavit prior to the hearing gave rise to a denial of procedural fairness, and it is not apparent that it might.

18 What is meant by the assertion that 'the programming was particularly onerous on [the appellant]' is not evident. It appears that no programming orders as such were made in relation to the summary judgment application. The application first came before the master on 10 September 2013 and was simply adjourned to 24 September 2013, when it was determined. For the reasons given above, the contention that the appellant was not provided with an adequate opportunity to be heard is without merit.

20 There is no substance in these grounds. On the evidence before the master, the respondent was clearly entitled to judgment and the master correctly ordered that the appellant give possession of the property to the respondent.

21 It is not clear what is sought to be raised by this ground but two particular matters were raised in the appellant's submissions. It was submitted, first, that the transaction in 2007 by which the appellant became the registered proprietor of the property had been 'retrospectively invalidated' by an order of the Federal Court, thereby putting at issue the validity of the mortgage to the respondent; and, secondly, the mortgage had not been registered by the respondent until some 28 months after the loan was made and after the respondent had made threats and exercised duress on the appellant. There is no substance in either submission.

22 As to the first matter, the decision of the Federal Court on which the appellant relies, Verge (Trustee), Re Underdown (deceased) (a bankrupt) v Fazio [2013] FCA 18, does not have the effect the appellant attributes to it. That case concerned an application by the trustees of the estate of the appellant's late wife, Samantha Underdown, for an order for the sale of the property. On 28 April 2010, orders had been made that the estate of Ms Underdown be administered pursuant to pt XI of the Bankruptcy Act 1966 (Cth). Put shortly, the court found that, on 10 January 2007, Ms Underdown, who was then the sole registered proprietor of the property, had executed a transfer to the appellant granting him a joint interest in the property by way of a gift. The appellant had lodged the transfer for registration on 17 October 2007. Following Ms Underdown's death on 1 July 2007, the appellant had, on 2 July 2007, executed a survivorship application in favour of himself which he also lodged for registration on 17 October 2007. McKerracher J concluded that at the date of her death Ms Underdown was bankrupt and as the transfer was for no consideration and occurred within five years of the commencement of the administration of her estate, it was void as against the trustees [18] - [19].

23 McKerracher J ordered, in substance, that the appellant provide vacant possession of the property, the trustees have conduct of its sale and that the proceeds of sale be paid to the trustees [18], [23]. His Honour noted the respondent's interest in the property by way of its mortgage and gave the respondent liberty to apply.

24 It is evident that the trustees subsequently concluded that no purpose would be served by them pursuing a sale of the property as no funds would be available after the respondent's mortgage was satisfied: see Verge (Trustee), Re Underdown (deceased) (a bankrupt) v Fazio (No 3) [2014] FCA 92 [6].

25 The appellant has appealed to the Full Court of the Federal Court against the orders of McKerracher J, contending, as we understand it, that his Honour erred in finding that the transfer by Ms Underdown to the appellant of an interest in the property was void as against the trustees. The appeal was listed to be heard on 27 February 2014.

26 Nothing that has occurred in the Federal Court proceedings puts at issue the validity of the respondent's mortgage. It is clear that the orders made by McKerracher J do not affect the position of the respondent as mortgagee and the trustees of the estate of the late Ms Underdown plainly do not contend otherwise. Nor would the respondent's position be different if the appellant were to be successful in overturning his Honour's decision that the transfer by Ms Underdown to the appellant of the interest in the property was void. The appellant would simply be restored as the owner of the property and the mortgage would remain unaffected.

27 In relation to the second issue, there is nothing to suggest that anything turns on the fact that the respondent did not exercise its right to register the mortgage until some 28 months after the loan was made.

28 The claim that the circumstances gave rise to a reasonable apprehension of bias is in the most general terms. It appears from the appellant's submissions to be based on two grounds. The first is an assertion that in another case the master made derogatory comments and exhibited 'a predetermined mind against [the appellant]'. It is alleged that the master's statements in that case were described by the Court of Appeal as 'unfortunate'. The other ground is that the orders which the master made were themselves sufficient to give rise to a reasonable apprehension of bias.

29 The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. That requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67]. The onus of establishing the facts upon which an allegation of a reasonable apprehension of bias is made lies on the party making it.

30 There is nothing in this case which is capable of making out such an allegation. In respect of his first contention, the appellant did not state the nature of the derogatory remarks allegedly made by the master and was unable to identify the case in which they were made, beyond saying that he believed it was an action by him against Telstra for negligence. A search has been made of the court's records. That has revealed, among others, an action by the appellant (under his former name of Arthur Heedes) against Telstra but nothing said by the master in that action is of the nature suggested. An action by the appellant in relation to his late wife's estate also came before the master but again there was nothing there which is capable of falling within the appellant's description.

31 It seems that what the appellant has in mind is a proceeding by the Legal Practice Board of Western Australia against the appellant (again in the name Arthur Heedes) for contempt of court in that, not being a duly certified practitioner, the appellant engaged in legal practice, contrary to the Legal Practice Act 2003 (WA). The appellant was convicted of contempt by McKechnie J: Legal Practice Board v Heedes [2004] WASC 260. The appellant appealed alleging, among other things, that comments made by Master Sanderson at an interlocutory hearing gave rise to a reasonable apprehension of bias.

32 It is unnecessary to canvass the reasons for decision of the Court of Appeal in dismissing the appeal: Heedes v Legal Practice Board [2005] WASCA 166. Suffice it to say that the court did not accept that the comments made by the master bore the prejudicial meanings attributed to them and rejected the proposition that they were capable (as the appellant put it) of causing 'the judicial process and the decision of Justice McKechnie [to be] tainted'. The Court of Appeal did not say or suggest that anything the master said was 'unfortunate'. This contention is hopeless.

33 There is equally nothing in the appellant's second contention. For the reasons given earlier, on what was before him the orders the master made were entirely appropriate.

34 None of the grounds of appeal has any prospect of success. The application for an extension of time should be refused and the appeal dismissed. It follows that it is unnecessary to consider the appellant's application for the suspension of execution on the master's orders.