Jaffari v Grabowski

[2013] NSWCA 114

Court of Appeal (NSW)|2013-04-03|Before: McColl JA, Ward JA, Barrett JA, Bathurst CJ, Coll JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2013-04-03

Before

McColl JA, Ward JA, Barrett JA, Bathurst CJ, Coll JA

Catchwords

(2002) 55 NSWLR 149 Gallo v Dawson [1990] HCA 30
(2010) 107 SASR 309 Tomko v Palasty (No 2) [2007] NSWCA 369
(2007) 71 NSWLR 61 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136

Source

Original judgment source is linked above.

Catchwords

(2002) 55 NSWLR 149 Gallo v Dawson [1990] HCA 30(2010) 107 SASR 309 Tomko v Palasty (No 2) [2007] NSWCA 369(2007) 71 NSWLR 61 Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136

Judgment (19 paragraphs)

[1]

Judgment 1McCOLL JA: Mehdi Jaffari and Tracey Jaffari, the applicants, seek a review pursuant to s 46(4) of the Supreme Court Act 1970 of Barrett JA's ex tempore judgment dismissing their application for an extension of time for the filing of a notice of appeal: Jaffari v Grabowski [2012] NSWCA 425 (the "review judgment"). 2The application for review was heard by two judges of appeal by direction of Bathurst CJ pursuant to s 46B(2) of the Supreme Court Act.

[2]

Background 3The applicants were the unsuccessful defendants in an action in the District Court in which they were sued by Livia Grabowski, the respondent, to recover $150,000 said to have been lent to them by her mother, Mrs Cato, during her lifetime. The respondent is, and at all material times was, the late Mrs Cato's legal personal representative. 4Gibb DCJ heard the proceedings over 5 days in July 2011. The applicants were represented by solicitors and counsel at the trial. On 15 July 2011 her Honour found in the respondent's favour and ordered judgment against the applicants in the sum of $186,480.83: Grabowski v Jaffari (District Court of New South Wales, Gibb DCJ, 15 July 2011, unreported) (the "primary judgment"). 5Soon after the primary judgment was delivered, Macquarie Lawyers, the applicants' solicitors, ceased to act for them. At the time they served the Notice of Ceasing to Act on behalf of the applicants, their legal representatives provided the respondent's solicitor with email contact addresses for each applicant. 6The District Court judgment was entered on 15 July 2011. The time to appeal expired 28 days later on 12 August 2011: Uniform Civil Procedure Rules ("UCPR") 51.16(1)(c). The motion seeking an extension of time to appeal was filed on 11 October 2012. It was heard on 6 December 2012. 7The applicants are not Australian residents. They say they have not been residents since March 2010 when they moved to New Zealand. 8The applicants did not have legal representation before Barrett JA or in this Court. The applicants did not appear in person before Barrett JA and participated in that hearing by way of what they describe as "telephone conference". 9The applicants sought leave to be represented before this Court by a "litigation friend", a role more commonly referred to in this jurisdiction as a "McKenzie friend". The Court acceded to the application being of the view that it was desirable to do so in the interests of the administration of justice: Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149 (at [33]) per Stein JA (Mason P and Sheller JA agreeing). Mr C Henry discharged that role and was of great assistance to the Court. Mr Jaffari was present in Court and sat next to Mr Henry at the bar table and gave him instructions throughout the hearing. The Court also acceded to Mrs Jaffari's application for leave to participate in the hearing by way of telephone link from New Zealand. Prior to the hearing, however, she advised the Court of Appeal Registrar that as the respondent's counsel did not require her for cross-examination, she did not need to take advantage of the leave granted.

[3]

Evidence on the extension application 10The applicants swore two affidavits for the purpose of their application for an extension of time before Barrett JA. The substantive affidavit was that of Mr Jaffari dated 10 October 2012. Mrs Jaffari in her affidavit of the same date said she had read his affidavit and agreed with its contents. The respondent's solicitor, Mr Nichols, swore an affidavit of 5 November 2012 to which Mrs Jaffari responded in her affidavit of 26 November 2012. 11Mr Jaffari's affidavit sought to explain the reasons for the delay in seeking to appeal from the primary judgment. It outlined circumstances of financial hardship said to have been occasioned to the applicants by a longer than anticipated trial hearing and the fact that after the trial their solicitors ceased to act for them and retained the papers pending payment of outstanding fees. It attached an email from Mr Jaffari to the primary judge's associate dated 22 July 2011, which was copied to the respondent's solicitors. The first paragraph of the email stated that Mr Jaffari had received an email from Macquarie Lawyers relating to the "orders presented at the District Court". It advised that Mr Jaffari was making an application for legal aid and had been told that if that was refused then "the Law Society's pro bono scheme may be able to assist [his] appeal". It further advised that Mr Jaffari was unable to appear on 5 August 2011 which was, apparently, the return date of a motion filed by the respondent seeking a variation in the primary judge's costs orders. I presume advice of that return date was communicated to the applicants by their former solicitors. According to Mr Nichols' affidavit he also advised the applicants of that date, although as will be apparent, this is a matter of controversy. The email sought an adjournment "from 5th August to a suitable date". A letter from Legal Aid NSW to Mr Jaffari dated 16 August 2011 advising that his application for legal aid had been refused was also annexed to Mr Jaffari's affidavit. 12Mr Jaffari's affidavit further explained that applications for pro bono assistance were unsuccessful because the reasons for judgment were required. Mr Jaffari said he did not have access to those reasons because they had been sent to his former solicitors who refused to release the files for reasons to which I have already referred. Mr Jaffari said he only obtained a copy of the primary judge's reasons in August 2012. The affidavit referred to numbers of phone calls Mr Jaffari said he and his wife had made to "various Australian government departments in desperation for free legal advice to understand what to do next and assist in our application to appeal" in respect of which he said he received conflicting answers that pointed to many legal rules "which we found totally confusing and unable to understand." The affidavit also referred to health problems Mr Jaffari said he had had since 2007 in relation to his heart and kidneys, adding to "the immense stress of being self-represented". 13Paragraphs 15 and 22 of Mr Jaffari's affidavit stated: "15 I was unable to exercise my right to file a notice of intention to appeal within the 28 day time limit because after returning to New Zealand ... we were no longer able to afford any further legal assistance and as we have no legal background, we did not understand the legal formalities and time frames of what was required to appeal after the judgment. 22 We were unable to exercise our right to file a notice of intention to appeal within the time limit because we had no knowledge that a notice of intention was required, nor did we have knowledge that any notice had to be filed within a specific time frame to begin the process of an appeal. We were not made aware and did not receive any information from the court or Macquarie Lawyers of this right." 14The respondent's solicitor's affidavit set out the history of the proceedings. It noted that when the applicants' legal representatives served their notice of ceasing to act they provided an email contact address for each applicant. It attached documents which Mr Nichols said he had served on the applicants via email to their email addresses. These included a letter dated 22 July 2011 advising the applicants of the primary judge's verdict and judgment, its quantification and the fact that an application had been made on the respondent's behalf to the primary judge to assess the amount of costs payable in accordance with s 98(4)(c) of the Civil Procedure Act 2005 which had been set down before her Honour on 5 August 2011. In accordance with orders made by the primary judge on 20 July 2011, the letter attached a copy of the notice of motion and Mr Nichols' affidavit in support. 15On 9 August 2011 Mr Nichols wrote to the applicants referring to the return date of the motion on 5 August 2011, noting that there had been no appearance by them or on their behalf and attaching a copy of the Notes, Orders and Directions made by the primary judge. The applicants' attention was specifically drawn to certain orders set out in the Notes document. They were advised, in substance, that the court had formed a preliminary view about the quantification of costs (details of which were set out in her Honour's orders) and the orders referred to would be made unless the applicants expressed a contrary view at the next hearing on 18 August 2011. Mr Nichols' affidavit further noted that there was no appearance by the applicants on 18 August 2011 and, accordingly, her Honour had made the costs orders the respondent had sought. 16Mr Nichols said that at the time he served the primary judge's Notes document of 5 August 2011, he sought, and received, a "read receipt" for the email communication he sent to the applicants forwarding those orders. 17The affidavit then recounted Mr Nichols' attempts, commencing in October 2011, to have the District Court judgment and orders registered in New Zealand pursuant to the Reciprocal Enforcement of Judgments Act 1934 (NZ). In short, the proceedings to register the judgment in New Zealand are pending, in part because the Auckland High Court is awaiting the outcome of the present application. 18In her affidavit in response to Mr Nichols' affidavit, Mrs Jaffari denied that the applicants received the respondent's costs notice of motion and affidavit, or Mr Nichols' letter advising of the outcome of the proceedings before the primary judge on 5 August 2011. It suggested that "read receipts" were not an infallible record of the fact that the relevant email had been seen or read by the recipient or received. It asserted that Mr Nichols had the applicants' postal address but did not forward any of his correspondence to them by that means and finally asserted that had the applicants received his email(s), they would have acknowledged and replied to same.

[4]

The review judgment 19After setting out some preliminary matters, Barrett JA said: "2 ... Judge Gibb delivered comprehensive reasons for judgment in which she canvassed defences which included, in general terms, the propositions that the acknowledged loan had been forgiven or that there had been other forms of indulgence by Mrs Cato, removing the liability of the present applicants to repay the loan. Those matters were canvassed in detail. The defences were not upheld and the judgment I have mentioned was entered. 3 The applicants referred immediately or fairly soon to the possibility of appeal. They attempted to obtain Legal Aid in New South Wales to permit them to pursue an appeal or at least to pursue the possibility of appeal. They were by that time living in New Zealand where they now reside. The application for Legal Aid was refused in August 2011. The letter of refusal referred to rights to seek review of the decision but there is [no] evidence before me that any such review was sought. 4 Shortly beforehand, in July 2011, the solicitors who had acted in the District Court proceedings for the present applicants had ceased acting. They retained the file against a claim for unpaid costs. 5 There is no evidence of any tangible steps taken by the applicants after August 2011 - towards the pursuit of an appeal although they do refer (or Mrs Jaffari refers in her affidavit) in general and undefined terms to attempts to discover what to do in order to appeal and to obtain an understanding of the legal processes that would have to be followed in New South Wales. The point is made that being in New Zealand made it even more difficult than it would otherwise have been for people with no legal knowledge or legal training to obtain the necessary information and understanding. 6 There was renewed activity and tangible action after July 2012, when steps were initiated by the present respondent to obtain registration of the District Court judgment in New Zealand. Following that move, the present applicants filed the application for extension of time that is now before me, supported by affidavits of both applicants of 10 October 2012 and a subsequent affidavit of Mr Jaffari of 26 November 2012." 20Barrett JA referred (at [7]) to Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 ("Tomko") (at [55]) which he said required him in considering the extension application: "... [to] acknowledg[e] ... the proposition stated in Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 519 at 516 that the respondent to the application has a vested right to retain the judgment which the applicant seeks to challenge on appeal or intended appeal [and] ... the factors to be examined upon such an application are (1), the length of the delay, (2) the reasons for the delay, (3) the prospective appellant's prospects of success, and (4) any prejudice suffered by the respondent." 21There is no challenge to Barrett JA's identification of the relevant principles. His Honour (at [8]) described the length of delay as "gross". The applicants do not challenge that characterisation. 22Barrett JA dealt with the remaining factors identified in Tomko as follows. First (at [9]), his Honour said: "As to the reasons for the delay, there is really nothing to which the applicants point apart from their lack of knowledge of what it was that they needed to do and their inability - they say through lack of means although there is no evidence before me on that - to discover what it was that they should be doing and how they should discover what they should be doing. That is a position in which litigants in person are always placed. A balance must be struck. Persons who have no legal knowledge must be recognised as being at a disadvantage but that is not something that can be turned on its head, as it were, to produce under [sic, undue] prejudice for another party. The lack of evidence of diligent and detailed steps to pursue the possibility of appeal, means that there is really very little beyond generalised statements now before the Court to explain the reasons for the delay." (Emphasis added) 23Secondly, his Honour considered the applicants' prospects of success on appeal. He examined the five grounds of appeal identified in the proposed notice of appeal. It is apparent from the papers that his Honour undertook that exercise by reference to the notice of appeal apparently signed by each applicant on 11 October 2012. As to these grounds of appeal, his Honour said: "13 Ground No 5 is that the trial judge 'failed to recognise the authenticity of the counterclaim filed by the appellants'. This is largely unexplained but to the extent that it may suggest that the judge did not duly weigh and come to a conclusion on the defences that the present applicants put forward in the District Court as defendants, then a perusal of the District Court judgment (which is annexure B to Mr Nichols' affidavit of 5 November 2012 now before me), shows that there is no substance to the complaint. The judge dealt in detail with the defences. 14 Ground No 4 is that the judge 'demonstrated a predisposition against the defendants from the start of the case'. That is a vague statement of which no further particulars are given. In response to it, counsel for the present respondent makes the valid point that there is nothing before this Court to suggest that the issue of bias or apprehension of bias, was raised with the trial judge. Nor is there any suggestion that her Honour was asked to disqualify herself from the further hearing of the matter because of bias or apprehension of bias. There is therefore nothing before me that suggests any cogency so far as the fourth ground is concerned. 15 Ground No 3 is that the judge 'excluded relevant evidence set out in the affidavits of the defendants'. So far as I can make out, the only evidence that was rejected by the judge in the affidavits put forward by the present applicants as defendants, was rejected on the grounds of form and the form objection and the upholding of the objection was accompanied by a grant of leave to adduce oral evidence. From that one surmises that there is no apparent basis on which ground 3 would have prospects of success on an appeal. 16 Ground No 2 is that the judge 'prevented the defendants' counsel from cross-examining the plaintiff's witness about evidence that was critical to the claim below'. I do not have a transcript. I cannot tell how this ground would fare. 17 Ground No 1 is that the judge 'excluded relevant evidence, namely, a DVD showing an interview in which the deceased, Mrs Cato, showed the close relationship between herself and the first defendant'. The suggestion here seems to be that a DVD containing evidence of a close relationship between persons found to be have been debtor and creditor would have had some bearing on the finding with regard to the debt claim and the defences to it. That cannot be so. There are many debtors who have close relationships with their creditors. There are many creditors who have close relationships with their debtors. There are many people in close relationships who do not make gifts to one another. One could go on with examples that show that this ground is of very little utility." 24Finally, his Honour considered (at [18]) the prejudice suffered by the respondent. His Honour was of the view that that was self-evident. The respondent had taken steps to register the judgment in New Zealand, but that process had been effectively put on hold awaiting the outcome of the application for an extension of time to appeal. His Honour viewed the prejudice to the respondent as "clear". 25Having regard to those matters his Honour concluded: "19 Weighing all of the matters that arise for consideration on this application, my conclusion is that the delay is gross delay; that the reasons for the delay are weak in that there is no sufficient explanation of why such gross delay occurred; also that the appellants' prospects of success according to the grounds of appeal they have put forward are very weak indeed; and that there would be significant prejudice suffered by the respondent if the extension of time were granted."

[6]

The application for review 28An application for review of an order of a Judge of Appeal is brought pursuant to UCPR 51.58. It must be made by notice of motion filed within 14 days after the date on which the order is made, or within such extended time as the Court may fix: UCPR 51.58. 29The notice of motion seeking to review Barrett JA's order is dated 21 December 2012, which was one day out of time. However, it bears a court stamp showing it as having been filed on 1 February 2013. The first order sought in the notice of motion was one extending the time for filing the review motion by 24 hours. The applicants sought to explain the 24 hour delay, but not that which led to the date the motion was ultimately filed. When this was drawn to Mr Henry's attention he said Mr Jaffari advised that as far as he is aware the delay was only one day and suggested that the further time that elapsed may have occurred in the Registry. It is unclear accordingly how it came to be the case that the notice of motion was stamped as filed on 1 February 2013 despite what I accept were the applicants' attempts to have it filed at least by 21 December 2012. The respondent opposed the Court extending the time for the filing of the review motion, but did not point to any prejudice other than that occasioned by yet another period in which she was delayed proceeding to enforce her judgment. The Court determined as the period of delay was comparatively brief it would grant the extension of time sought, albeit, having regard to the date the motion was finally stamped as filed, it is necessary to extend the time to file the motion to 1 February 2013. 30The applicants relied upon two substantive affidavits for the purpose of the review hearing and two affidavits of a procedural nature. The substantive affidavits were Mrs Jaffari's affidavit of 20 December 2012 (the "December affidavit") and Mr Jaffari's affidavit of 22 March 2013 (the "2013 affidavit"). The December affidavit complained that the respondent's submissions dated 3 December 2012 prepared for the purposes of the hearing before Barrett JA had been served late (a matter the respondent conceded) and that his Honour had allowed them insufficient time to read them prior to having to respond to them. The December affidavit sought to respond to those submissions as well as make submissions complaining about the review judgment. It also sought to address factual propositions identified in the review judgment. 31The 2013 affidavit repeated some matters in the December affidavit. It also included material which was not before Barrett JA which, while it may have been relevant to that application, was not relevant to an application to review his Honour's order and, save as to the matter referred to in [32] below, was accordingly rejected. It also annexed a memory stick containing the transcript of the District Court hearing. Although there were many references to pages of that transcript in the applicants' submissions for the 6 December hearing, as I have said, the transcript was not before his Honour. I have had the relevant transcript pages printed from the memory stick to ascertain whether, had that transcript been before his Honour, it would demonstrate that the applicants' grounds of appeal, insofar as they had sought to refer to that transcript, had any prospects of success. 32Paragraph 15 of the 2013 affidavit asserted: "As we had not received any response from the Respondent's solicitor and the trial judge after our email dated 22 July 2011, we assumed that the adjournment was granted, and that the time for filing our appeal would not begin to run until that hearing happened. We did not think that the court would go ahead with the hearing without telling us that our application for adjournment had been refused." 33The Court reserved its decision on the admissibility of paragraph 15 to determine whether that evidence was before Barrett JA in either of the applicants' affidavits. It was not. Accordingly, I would not admit it on a review of his Honour's order. However I would receive it on the present application against the possibility that the applicants' failure to refer to that matter was a consequence of their lack of legal representation. 34The first procedural affidavit was Mrs Jaffari's affidavit of 5 March 2013 seeking leave to have a litigation friend represent the applicants and for her to participate in the hearing by way of telephone link from New Zealand. As I have said, the Court acceded to both applications. 35The second procedural affidavit was Mr Jaffari's affidavit dated 27 March 2013 in which he corrected typing errors in various documents and attached documents which had been attached to previous affidavits.

[9]

Failure to consider the grounds of appeal 48It is convenient to consider first the applicants' complaint that Barrett JA erred in his consideration of their grounds of appeal as, if their prospects of success have "more substantial merit than merely being fairly arguable", that would be relevant even if their "explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice": Tomko (at [14]) per Hodgson JA. 49The grounds of appeal Barrett JA considered were set out in a notice of appeal apparently signed by each applicant on 11 October 2012 and were presumably filed in support of their notice of motion to extend time (the "October notice of appeal"). However, according to the December affidavit, those grounds of appeal were amended in a document emailed to the Court of Appeal Registrar on 8 November 2012 (the "November notice of appeal"). It is clear the November notice of appeal was not drawn to Barrett JA's attention. Had it been, his Honour would undoubtedly have referred to it. However, even if the November notice of appeal had been before his Honour, as will be apparent from what follows, the changes it effected did not substantially alter the grounds his Honour did consider. 50The December affidavit also stated that the applicants' appeal grounds had been amended "as from 19 December 2012" and annexed a copy of the amended appeal grounds (the "December notice of appeal") which the affidavit said the applicants would rely upon if the extension of time was granted. The same affidavit, substantial portions of which were of the nature of submissions, addressed all but one (ground 3) of the amended grounds. The respondent objected to the applicants relying upon grounds of appeal which were not before Barrett JA. Mr Henry did not press the December notice of appeal. Accordingly it need not be considered. However as shall be apparent from what follows, because some of the grounds of appeal in the December notice of appeal did not differ in substance from those in the October and November notices of appeal, some of the submissions in relation to the former document are arguably relevant to the latter documents and I have, accordingly, taken them into account.

[10]

Ground 1 51There was an insignificant change between the October and November notices of appeal in respect of this ground. In the November document the word "defendant" had been replaced by "Applicant". The applicants made no complaint in their written submissions of 22 March 2013 about Barrett JA's consideration of ground 1. However it is possible to read the complaint in the December affidavit about ground 1 in the December notice of appeal as comprehending complaints about Barrett JA's consideration of their November notice of appeal ground 1. This is because both that ground and that in the December notice of appeal ("the judge excluded evidence, namely a DVD showing an interview with the deceased Mrs Cato indicating the context in which she made monetary gifts to the first applicant") rested upon the fundamental premise that they had prospects of success in demonstrating that the trial judge had wrongly excluded relevant evidence. It is convenient, accordingly, to consider that complaint as turning upon the issue of the trial judge's ruling on the admissibility of the DVD. 52The transcript recording the rejection of this tender was attached to the December affidavit. It was not before Barrett JA. The applicants also referred to transcript they contended demonstrated the trial judge's "many references to exclude the time frame of 2.5 minutes of Ms Cato's interview ... even though it was Ms Cato's request to be taped as pointed out in the first applicant's affidavit dated March 2011". That transcript was also not before Barrett JA but could be printed from the memory stick attached to the 2013 affidavit. 53The debate concerning the admissibility of the DVD occurred when the trial judge was dealing with the respondent's objections to an affidavit sworn by Mr Jaffari. There were many objections. As is frequently the case at an early stage of the proceedings when a trial judge is coming fresh to the issues as was clearly the case here, there were also many inquiries from the bench as to, among other matters, the admissibility of matters to which objection was taken. 54Counsel for the respondent objected to the tender of the DVD on the basis that the applicants had not proved Mrs Cato had consented to the footage being taken. Counsel for the respondent informed her Honour that he had seen the DVD and "[t]here is no indication whatsoever that that raw footage was ever put to her for her approval in any final edited form or any other form." Counsel for the applicants informed her Honour that he was instructed that "a document was obtained", I infer indicating Mrs Cato's consent to the footage, but that it could not "be produced". He then did not pursue the matter. He does not appear to have put to the trial judge that consent could be established from Mr Jaffari's affidavit, presumably because any assertion to that effect was hearsay. 55The trial judge clearly rejected the DVD on the basis that the applicants had not established that Mrs Cato consented to being filmed. 56Like Barrett JA, I have difficulty understanding the basis of the complaint even on the reformulated ground of appeal. 57The assertion that the DVD would have demonstrated either "the close relationship between herself and the first applicant" (the October/November ground 1) or the "context in which she made monetary gifts to the first applicant" (the December ground 1) does not demonstrate that the trial judge erred in rejecting the tender for the reasons which can be discerned from the transcript. Whatever it may have ultimately proved, the DVD had to be admissible in the first instance. The applicants did not advance any reason why the trial judge erred in acceding to the respondent's objection to its tender which, having regard to the reference to the absence of proof of Mrs Cato's consent to the recording, was based on the failure to establish its legality: cf s 7, s 11 Surveillance Devices Act 2007; see also Thomas v Nash [2010] SASC 153; (2010) 107 SASR 309 (at [54] - [56]) per Doyle CJ; See v Hardman [2002] NSWSC 234 (at [27] - [28]) per Bryson J (as his Honour then was).

[11]

Ground 2 58Ground 2 did not differ in substance in any of the versions of the proposed notice of appeal before either Barrett JA or this Court. In short it complained about the judge's role in the course of the cross-examination of the "plaintiff's witnesses". 59Paragraph 15 of the applicants' submissions before Barrett JA sought to explain their prospects of success in relation to ground 2 by referring to pages 107 to 114 of the trial transcript. The applicants complain that Barrett JA erred in failing to make any attempt to satisfy himself "from the transcript of the hearing which was available in the court file" in respect of this ground of appeal. Barrett JA said that he did not have the transcript so he could not evaluate its prospects of success. His Honour was clearly correct in this respect. The pages of the trial transcript referred to in the applicants' submissions were not attached to any of the affidavits before his Honour. It was attached to the December affidavit. However, as I have said, I have examined transcript even though it was not before his Honour to ascertain whether, had it been, it would demonstrate that ground 2 had prospects of success. 60One of the issues at trial was whether Mrs Cato had demanded repayment of the alleged loan. The applicants asserted that she had not. It appears that Mrs Cato's solicitors wrote to the applicants on the day she died demanding repayment, asserting that they did so on her instructions. In the passages of transcript the applicants sought to draw to Barrett JA's attention by cross-reference to their written submissions, their counsel at trial sought to test the respondent's credit insofar as she asserted that her mother had asked her to send the letter of demand - or, I assume, to instruct the solicitors to do so. 61Counsel for the applicants first sought to engage the respondent on this question by asking questions concerning her knowledge of instructions Mrs Cato had given to her solicitors. Counsel for the respondent objected to that line of questions. The applicants' counsel was given the opportunity to put it again. He did so. The primary judge asked a question to clarify the question and the respondent then answered it. Counsel for the applicants then embarked upon another line of questioning which appeared to relate to the respondent's knowledge of matters communicated to her by Mrs Cato's solicitors. The primary judge suggested that if such matters were within the respondent's knowledge, it would be a breach of privilege for her to respond to the question. Counsel for the applicants then said he would approach the matter in a different way. 62Counsel for the applicants then asked the respondent questions about her state of mind prior to the letter of demand being written. Counsel for the respondent objected on the basis of relevance. The primary judge sought to determine the basis of the line of questioning. Counsel for the applicants explained that it was part of the applicants' case that "no action was taken by the solicitors prior to the date of [the letter of demand]". Counsel for the respondent then objected to that line of questioning on the basis that if it was part of the applicants' case it should have been pleaded. 63There was then a debate between counsel for the applicants and the primary judge about whether or not that was so. It is apparent from that debate that her Honour understood counsel for the applicants to be putting to the respondent that the letter of demand was a fraud or that the respondent had lied when she said to the solicitors that she was conveying her mother's instructions. Her Honour conveyed to counsel for the applicants that, if that was so, it was a matter that should have been pleaded. I infer her Honour was referring to UCPR 14.14(2)(a) and/or (b) and/or UCPR 15.3 in this respect. 64At the end of the debate her Honour invited counsel for the applicants to consider the position over the evening, an invitation he accepted. On the following day, he informed her Honour that the applicants did not "rely on any allegation of fraud against either the solicitor or the executor". Her Honour then said that questioning would have to be limited on the same basis, a proposition with which counsel agreed. His cross-examination of the respondent resumed. In the course of that resumed cross-examination, the following exchange took place: "Q. I suggest to you that, as far as you were aware, your mother had been prepared to leave to Mehdi to repay the funds when he could. A. My mother asked me to recover the funds. So it was up to her when I moved forward on her instructions. I had nothing else to do with it." 65Counsel for the applicants then completed his cross-examination. 66In my view, when one has regard to the passages of the transcript which the applicants sought to place before Barrett JA, it is not apparent that any conduct on the part of the trial judge prevented their counsel from cross-examining the respondent about matters that they asserted were critical to the success of the claim. The exchanges which took place between the primary judge and the applicants' counsel in the passages referred to were, in my view, nothing out of the ordinary in a trial in which counsel for the respondent variously complained that the cross-examiner was not asking proper questions and/or was not asking relevant questions and/or had not pleaded a case to which the questions appeared to go. 67The primary judge engaged counsel for the applicants in debate to seek to ascertain what his response was to each of those complaints. I discern no basis for the applicants' assertion that the primary judge's engagement with their counsel in the pages of transcript referred to transgressed the boundaries of proper judicial conduct. Accordingly, in my view, an examination of those pages of transcript by Barrett JA would not have changed his Honour's view as to the prospects of success of ground 2 of the notice of appeal.

[12]

Ground 3 68Ground 3 was that "the judge excluded relevant evidence set out in the affidavits of the defendants". The applicants' written submissions before Barrett JA complained that the trial judge had excluded evidence in their affidavits which "tended to show the nature of the relationship between the first appellant [sic] and Ms Cato". Copious reference was made to passages of the transcript which, as I have said, was not before his Honour. Nevertheless it is apparent that his Honour was satisfied from the respondent's submissions that "the only evidence that was rejected by the judge in the affidavits put forward by the present applicants as defendants, was rejected on the grounds of form and the form objection and the upholding of the objection was accompanied by a grant of leave to adduce oral evidence": review judgment (at [15]). 69The applicants' complaint in respect of ground 3 relates to the first day of the trial when the trial judge was dealing with a large number of objections the respondent's counsel made to the applicants' affidavit evidence. Having read the pages of the transcript to which the applicants refer, it is apparent that Barrett JA's description of what occurred accords to a large extent with what is set out therein. Her Honour also upheld objections on the basis of relevance. As might be expected, not all of the objections were successful and, on occasions, the applicants' counsel did not press material to which objection was taken. At certain stages when the trial judge queried the relevance of evidence going to the relationship between the applicants and Mrs Cato, she nevertheless either appears to have admitted it on the basis that the applicants' counsel would make its relevance clear, presumably when calling the relevant witness (transcript 4 July 2011, at 25 - 26), or rejected objections to it despite doubts about relevance, some illustrations of which are transcript 4 July 2011, at 42, 63, 66, 68. 70In short, a reading of the transcript to which the applicants referred does not demonstrate that the trial judge made rulings which were not open to her.

[13]

Ground 4 71The applicants made a number of complaints about Barrett JA's consideration of ground 4. 72The first was that his Honour did not consider their ground 4 as set out in the November notice of appeal. The amended version was "[t]he Judge demonstrated a predisposition against the first appellant on or from Day 2 of the Hearing." In my view, there is no substantial difference between that ground and ground 4 as considered by Barrett JA. 73In their written submissions of 26 November 2012 before Barrett JA, the applicants complained that the primary judge interrupted the first applicant's answers on many occasions "during cross-examination by his counsel" as well as during his cross-examination by the plaintiff's counsel. A number of pages of transcript (139 - 140, 144 - 145, 149 - 155, 158 and 161 - 163) were referred to, none of which were placed before Barrett JA. They were printed from the memory stick attached to the 2013 affidavit. 74Having read that transcript, I cannot discern anything in the trial judge's interventions which would support a complaint that her Honour demonstrated a predisposition against the first applicant. Rather, her Honour's interventions were directed to ensuring the first applicant answered the questions he was asked, that the questions were in proper form, to deal with objections by counsel for the respondent as to the relevance of questions or complaints such as that counsel for the applicants was leading the witness and to ensure the witness did not act as an advocate. Finally, it is significant to note that the applicants' counsel did not object to her Honour's interventions or ask her Honour to recuse herself. He was an experienced counsel who it might have been expected would object if of the view that her Honour's interventions transgressed the bounds of judicial conduct. 75As is apparent from the discussion in relation to ground 2, it is not uncommon for judges to intervene in the course of a witness's evidence to ensure that questions are relevant and properly framed. The bald assertion made before Barrett JA of excessive judicial interruption did not demonstrate a predisposition against the party during whose evidence such interruptions occurred. Nor is any such tendency apparent on reading the transcript. 76The applicants' written submissions also referred to the difficulty the first applicant was said to have had in understanding the questions that were presented to him having regard to the fact that English is his second language. It is said that "he was not able to answer the questions put to him in a distinguishable English form." It is not apparent whether, or how, that is relevant to the complaint about the primary judge's interruptions. 77The next complaint the applicants sought to make before Barrett JA in relation to ground 4 was that the trial judge relied upon an affidavit of a witness (the respondent's brother) who was not present and so could not be cross-examined. In the passage in the primary judgment to which the written submissions referred (page 3), the trial judge noted that the case turned on her acceptance of either the documentation and the evidence of the respondent and her brother or the applicants' evidence. Later on the same page, the trial judge referred to a passage from the respondent's brother's affidavit to the effect that the respondent's family was "close". 78Save as to those references, I have been unable to identify any other part of the primary judgment in which the trial judge referred to the respondent's brother. Even if there had been frequent references to him, it would appear that his affidavit was read without him being required for cross-examination. This is not uncommon. It was a matter for the applicants' legal representatives to determine whether, having regard to the issues and the contents of his affidavit, the witness was required for cross-examination. It was not a matter for the trial judge to determine. 79The applicants also relied in support of ground 4 on the complaints they made about the trial judge's interruptions during the cross-examination of the respondent under ground 2. I have already dealt with that complaint under that heading. Nothing in the trial judge's conduct in that context, in my view, evidenced a predisposition against the first applicant. 80Finally, the applicants complained that Barrett JA failed properly to consider the example of the trial judge's predisposition displayed by her statement in her reasons that the late Mrs Cato "fell into the hands of the first defendant". That remark, of itself, was said to demonstrate bias on her Honour's behalf. I cannot see any substance in that assertion. By the time the trial judge came to write her reasons she had clearly formed a view about the applicants' relationship with Mrs Cato. She was entitled to express that view in pithy form by way of introduction to what was to follow. 81The applicants also complained about her Honour's statement that Mrs Cato fell into the first applicant's hands in "the last year of her life" in 2008. Rather, they contend Mrs Cato first saw the first applicant in April 2006. Nothing in that inaccurate reference to the date Mrs Cato first consulted the first applicant could, in my view, amount to any suggestion that the trial judge demonstrated a predisposition against the applicants. The trial judge's misidentification of the time period was a simple error.

[14]

Ground 5 82Finally, the applicants complain that Barrett JA failed to address their November ground 5. Rather than that ground being as stated by Barrett JA (at [13]), the applicants contend his Honour ought to have considered a ground that the trial judge erred because her Honour "dismissed the counter claim filed by the applicants contrary to the weight of the evidence". Their more substantive complaint is that Barrett JA erred because his Honour considered ground 5 as though it referred to the primary judge's treatment of their defences rather than their counter-claim. I accept that this was an error however, as will be apparent, the applicants have no prospects of success in respect of ground 5 in any event. 83This matter can be dealt with briefly. Mr Jaffari's occupation was described by her Honour as "leech therapist". He provided, among other treatments, something he called "energy healing". The late Mrs Cato was a smoker who ultimately died of emphysema. She sought treatment from Mr Jaffari. 84The "counter claim" to which the applicants refer was filed on behalf of Mr Jaffari and claimed payment for two years of attendances to treat the deceased. It asserted: "... any liability of the defendants should be reduced by set-off created by the services provided by the First Defendant and not charged for totalling $159,885 ..." 85The primary judge did not deal directly with what the applicants describe as a "counter claim". However her Honour did refer to the "set-off" in the course of dealing at some length with what she described as the applicants' "joint and several lack of credit" (pages 40 - 46 of 52, primary judgment). Significantly, her Honour said that "[t]he set-off was abandoned as a defence in submissions." 86When this passage of the primary judgment was drawn to Mr Henry's attention, he responded to the effect that Mr Jaffari did not recall his counsel abandoning the set-off, nor did he give any instructions to do so. The respondent's counsel, who also appeared at the trial, agreed with the primary judge's statement of the position. 87It may be that Barrett JA misunderstood the tenor of the applicants' fifth ground of appeal by addressing the defences but, in the circumstances, where there was no "counter claim" or "set-off" extant before the primary judge, ground 5 is clearly hopeless.

[15]

The procedural fairness complaint 88Finally, the applicants complain that Barrett JA did not accord them procedural fairness having regard to what they contend was the limited time he afforded them to respond to the respondent's tardy written submissions. 89It appears that directions were given for the exchange of written submissions in relation to the application. The applicants prepared written submissions dated 26 November 2012. The respondent prepared written submissions dated 3 December 2012. It is common ground that the respondent's submissions were late because it had been directed that they be filed by the close of business on 30 November 2012. It is also common ground that the applicants complained before Barrett JA that by the time the respondent's submissions were forwarded late on 3 December 2012, they had left their home on a trip from which they returned on the date of the hearing of the application. Accordingly, they said they did not see the respondent's submissions until the morning of the hearing. The applicants drew this to Barrett JA's attention. The respondent apologised to the Court for the lateness of her submissions but sought leave, which was granted, to rely upon them. Barrett JA gave the applicants an hour to read the submissions. 90The respondent's written submissions of 3 December 2012 were five pages long. Apart from matters by way of background, they addressed the applicants' explanation for the delay in filing the notice of appeal which they contended, in short, was inadequate to attract the discretion to grant the extension of time sought. Unsurprisingly, the written submissions also contended that the proposed grounds of appeal had no prospects of success. 91It was a matter for Barrett JA to determine how to deal efficiently with the application which was before him on 6 December 2012. It was apparent from the evidence the applicants sought to adduce to support their notice of motion for an extension of time and their written submissions that they had addressed the substantive matters covered by the respondent's written submissions. It might be inferred that his Honour took that into account in determining the amount of time he gave them to consider the respondent's written submissions. There is no suggestion that the applicants asked for an adjournment to consider the respondent's written submissions. However even if they had, in my view Barrett JA would have been justified in refusing it because, as I have said, there was nothing in the respondent's written submissions which it could be anticipated the applicants would have been unable to meet. 92As I have said, the December affidavit, prepared for the purpose of the review application, purported to respond to the respondent's 3 December submissions. Nothing in it, in my view, demonstrates that the outcome before Barrett JA would have been different if his Honour had adjourned the hearing and permitted the applicants to place before him the materials set out in that affidavit. 93The applicants have not established that there was any procedural unfairness in the hearing of the extension application.

[16]

Other complaints 94The applicants criticised Barrett JA's statement (at [5]) that "[t]here is no evidence of any tangible steps taken by the applicants after August 2011 towards the pursuit of an appeal". Another challenge was to the passage I have emphasised from paragraph [9] of Barrett JA's reasons (see [22] above) in which his Honour considered the consequences of the inadequacy of the evidence of steps taken by the applicants to pursue the possibility of appeal on the success of the application. They contend there was detailed evidence of these steps. 95I discern no error in either of Barrett JA's observations. The "tangible step" to which his Honour was referring (at [5]) was clearly the application for legal aid to appeal to which his Honour had previously referred (at [3]). His Honour was entitled, in my view, to characterise that as indicating "[t]he applicants referred immediately or fairly soon to the possibility of appeal". The only "evidence" of steps taken thereafter to explore appeal to which the applicants pointed was what his Honour fairly described (at [9]) as "generalised statements" - they being the numerous unsuccessful phone calls the applicants said they made to Australian government bodies seeking free legal advice about "what to do next and assist[ance] in our application to appeal". Mr Henry said the steps taken were set out in an email attached to Mr Jaffari's October affidavit. I have already set out the contents of that email (at [11]). I find it difficult to see how that constitutes a "tangible step" in the sense to which Barrett JA was referring. It was an application to the primary judge for an adjournment of the costs hearing. 96This leads to an observation concerning the applicants' assertion (the 2013 affidavit, para 15 - set out at [32] above) that after that email, absent response from the respondent's solicitor and the trial judge, they "assumed that the adjournment was granted, and that the time for filing our appeal would not begin to run until that hearing happened". As I have said, while a statement in those terms was not in the affidavits before Barrett JA, I will consider the assertion to determine whether, had it been, it may have influenced the outcome. Moreover the applicants' knowledge of the outcome of the proceedings before the trial judge was clearly in issue before Barrett JA. 97As will be recalled, Mr Nichols' affidavit carefully explained the steps he had taken to communicate to the email addresses he had received from the applicants' former legal representatives that at the hearing before the primary judge on 5 August 2011 the adjournment application had been refused and, absent their communicating a contrary view to the court, the costs orders set out in the Notes document would be made on 18 August 2011. The applicants do not dispute those are their email addresses. There are many emails in the documents they rely upon emanating from those addresses or documents identifying one or other email address as their contact email. Mr Nichols received confirmation that his email had been relayed to the applicants' email addresses. Mrs Jaffari suggested not all such delivery messages can be relied upon, but there is no reason in my view to doubt that advice of the status of the case was communicated to the applicants' email addresses. Whether or not they read it was a matter for them. 98In any event, even if they had not received a response to their email to the primary judge's associate, the applicants could not assume that nothing had happened. It was incumbent upon them to ascertain the progress of the proceedings in which they were no longer legally represented. 99The applicants also complained that Barrett JA did not take into account their assertion that they did not know the time was running for appeal. This appears to be a reference to paragraphs 15 and 22 of Mr Jaffari's October affidavit (see [13] above) which asserted, in substance, that the applicants were unaware of the "time frame" for an appeal. As is manifest, there is a degree of tension between this statement and that in paragraph 15 of the 2013 affidavit that the applicants "assumed that the adjournment was granted, and that the time for filing our appeal would not begin to run until that hearing happened". 100In my view, Barrett JA's reference (at [9]) to "[the applicants'] lack of knowledge of what it was that they needed to do" arguably comprehended the proposition that they were unaware of the "time frame" for an appeal. However, as his Honour continued, "[t]hat is a position in which litigants in person are always placed", "[a] balance must be struck" and while "[p]ersons who have no legal knowledge must be recognised as being at a disadvantage ... that is not something that can be turned on its head, as it were, to produce under [sic, undue] prejudice for another party." As McHugh J said in Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458 (at 459), "[l]ack of legal knowledge is a misfortune, not a privilege". 101The applicants also complain that Barrett JA failed to take into account Mr Jaffari's serious health problems, the stress of their financial hardship, the stress of their being unable to obtain legal representation to assist them in understanding how to appeal after the judgment and the stress imposed on their domestic relationship. In fact, Barrett JA observed (at [9]) that the applicants relied on their "lack of means" as an explanation for "their lack of knowledge of what it was that they needed to do", but commented "there is no evidence before me on that". I understand his Honour to have been referring to the fact that the applicants' affidavits contained bald assertions of impecuniosity. His Honour did not refer to Mr Jaffari's asserted health problems. There were some documents attached to his affidavit which referred to some medical matters, none of which suggested that those matters in any way impeded the applicants' ability to pursue their appeal. There is no substance in these complaints.

Jaffari v Grabowski

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