Integrated Growth Solutions Pty Limited v Latesha Elizabeth Campbell

Supreme Court of NSW|2015-06-12|Before: Kunc J, Stevenson J, Brereton J

EX TEMPORE Judgment

HIS HONOUR: This is an application brought by the defendant, Ms Campbell, by notice of motion filed 28 May 2015 to set aside a judgment entered against her by Stevenson J on 29 April 2015. That judgment was entered in favour of the plaintiff, Integrated Growth Solutions Pty Ltd ("IGS"). For the reasons which follow, Ms Campbell's notice of motion will be dismissed with costs.
The evidence on the motion primarily consisted of Ms Campbell's affidavit sworn on 28 May 2015. Ms Campbell appeared, without objection by IGS, with the assistance of her husband, Mr Helal Safi, who spoke on Ms Campbell's behalf. Mr C Robinson of Counsel appeared for IGS.
In addition to Ms Campbell's affidavit, Mr Safi provided to the Court what I might, without any disrespect, describe as an undifferentiated bundle of material comprising trust account statements, affidavits, email and other correspondence which he said was material which, if the judgment were to be set aside, was evidence Ms Campbell would wish the Court to take into account on any new hearing of the proceedings against her. Mr Safi also suggested that I should review the transcript of what occurred before Stevenson J on 29 April 2015. Mr Robinson did not object to my doing so.
Furthermore, I indicated to the parties that, unless anyone objected, I would also review and take into account the entirety of the material on the Court file in order, as best possible, to understand the history of these proceedings. Neither party objected to that course and I have reviewed the Court's file over the lunch adjournment.

Consideration

Mr Robinson fairly accepted that the Court had power to set aside the judgment entered against Ms Campbell by Stevenson J pursuant to UCPR Part 36, Rule 36.16(2)(b), which provides: (2) the Court may set aside or vary a judgment or order after it has been entered if: … (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or …
Mr Robinson also helpfully drew my attention to the judgment of Barrett JA in Northey v Bega Shire Council [2012] NSWCA 28, where his Honour summarised the legal principles relevant to an application of this kind: 12. I turn, therefore, to rule 36.16(2)(b) which reflects what Griffith CJ, in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694, called "an elementary rule of justice". 13. It is not disputed that Ms Northey was absent (and was not represented) on 21 March 2011 when the order was made. But that, of itself, is insufficient to justify setting aside of the order. There must be some added factor that makes it unjust for the order to stand. 14. In arguing that a court should set aside an order that was regularly made, an applicant under rule 36.16(2)(b) must contend with the proposition that great value attaches to certainty in the outcome of litigation. It is relevant to quote what was said by Gibbs CJ, Mason J, Wilson J, Brennan J and Dawson J in University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 59 ALJR 481 at 482-3: It may be assumed, without deciding, that the Court has power to vacate its order of 22 November 1984, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard. 15. This passage enjoins "great caution" in approaching applications of the kind that Ms Northey now presses. It also gives some examples of situations in which it may be found appropriate for the Court to intervene in relation to a final order that has been perfected: where the order was made by mistake, where the order was made as a result of fraud and where, by some accident, an order has been made against a party who was not heard. 16. The central question is whether it is unjust to let the perfected order stand. The matter was put thus by Jordan CJ (Davidson J and Roper J concurring) in Vacuum Oil Co Pty Ltd v Stockdale [1942] NSWStRp 31; (1942) 42 SR NSW 239 at 243-4: The question is whether, upon the material that has been placed before us, there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand. If so, it should be set aside on such terms as it will minimise the possibility of injustice to the plaintiff. If not, we should not interfere." 17. Examples of cases in which such a factor indicative of injustice has been found to be at work are: (a) where the applicant proceeded to obtain the order in the face of an agreement with the respondent not to do so: Double Bay Newspapers Pty Ltd v The Fitness Lounge Pty Ltd [2006] NSWSC 226; (2006) 57 ACSR 131; (b) where the applicant proceeded to obtain the order despite the respondent's accountant having been told by the applicant that "nothing would happen" while negotiations continued: Deputy Commissioner of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755; (c) where the applicant proceeded to obtain the order after overlooking the fact that the basis for doing so had disappeared: Workers Compensation Nominal Insurer Pty Ltd; re Deli Glenbrook Pty Ltd [2010] FCA 380; and (d) where solicitors instructed by the respondent in the proceedings failed to protect the respondent's interests: Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404. … 29. Against the background of this evidence, I return to the proposition that, to justify an order under rule 36.16(2)(b), the fact of the affected party's absence when an order is made must be accompanied by some additional factor that makes it unjust for the perfected order to stand.
I gratefully adopt his Honour's statement of the principles governing the exercise of the Court's discretion under r 36.16(2)(b).
To adopt the language of Barrett JA, the Court is not satisfied that the evidence adduced by Ms Campbell on this application establishes any additional factor over and above the fact that she was absent when the judgment was entered against her that makes it unjust for the perfected judgment to stand. In particular, Ms Campbell has failed to satisfy the Court that she had evidence or has any prospect of obtaining evidence in support of her case that she did not sign the deed and related documents. There are six reasons for this conclusion.
First, Ms Campbell had every opportunity over a period of many months to file handwriting evidence in support of her contention that the signature on the deed and related documents was not hers. No evidence was led by Ms Campbell on this application as to why that was not done. From the Bar table, Mr Safi made a number of allegations about difficulties which he and Ms Campbell had had with their solicitors, including apparently in relation to the payment of fees.
Mr Safi also said that he and Ms Campbell were not informed by the solicitors of the need to file a handwriting expert's report or that the matter had been fixed for hearing. I am not prepared to accept those statements from the Bar table. Having regard to the Court's own records of proceedings which demonstrate that either a solicitor or barrister representing Ms Campbell was present at every relevant directions hearing, I am not prepared to make a finding on the basis of Mr Safi's assertions from the Bar table of what would be serious derelictions on the part of Ms Campbell's then lawyers.
Second, the Court takes into account the very strong opinion of Mr Anderson as to the likelihood that the signatures on the deed and related documents were Ms Campbell's.
Third, there has been no explanation for the delay between when the judgment was entered on 29 April 2015 (and when Stevenson J clearly indicated to Ms Campbell that the appropriate course was for her to file a notice of motion to have the judgment set aside) and the filing of Ms Campbell's motion on 28 May 2015.
Fourth, there is no evidence of what has happened since 29 April 2015 in relation to the progress of her application for legal aid. The evidence rises no higher than the statement in her affidavit of 28 May 2015 that "Legal Aid needs more documents to process my application. If I'm given the opportunity, I will be represented by Legal Aid". No correspondence with Legal Aid at all, let alone correspondence giving any indication of the likely success of her application, has been provided to the Court by Ms Campbell.
Fifth, Mr Safi informed me from the Bar table that he and Ms Campbell were now in a position to retain a lawyer and a handwriting expert. However, again, there is no evidence in support of that or that they have done anything towards retaining anyone, for example, even obtaining a short form preliminary report from a handwriting expert that might have suggested that there was a proper basis for traversing the strong conclusions expressed by Mr Anderson in his report.
Sixth, what I referred to above as the undifferentiated bundle of documents neither explains the failure to obtain any handwriting evidence earlier nor do any of those documents appear to falsify in any respect IGS' entitlement to the judgment obtained from Stevenson J on 29 April 2015. Nor is it suggested that any of the material in the bundle of documents was not available for submission to and consideration by Ms Campbell's lawyers in the course of preparation for the hearing. In other words, none of those documents is a document of which it could be said that it provided a basis for supporting Ms Campbell's contention that the signatures on the deed and related documents were not hers or that any such document was only recently discovered.
For these reasons, the Court will dismiss Ms Campbell's notice of motion.
The orders of the Court are: 1. The defendant's notice of motion filed 28 May 2015 is dismissed. 2. The defendant is to pay the plaintiff's costs of the motion.

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 June 2015

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