James v The Owners - Strata Plan No 11478

Leave application

1. In addition to filing two documents described as Summary of Argument, the applicant has included in the White Book three documents, the first described as an affidavit of 3 February 2017 (but which was not sworn), the second two both dated 13 March 2017 being sworn affidavits. Each "affidavit" contains material more in the nature of submissions and it is appropriate to treat them in that vein.
2. The documents the applicant has filed are confusing and her challenge to the primary judgment is not clear. It can best be identified from the document described as a "notice of appeal", albeit that it does not state the basis of the applicant's challenge to the relevant findings of fact and law of the primary judge, or identify any orders sought in the event of success. [6] As I have said, most of the "grounds" and the applicant's written and oral submissions complained the applicant had been denied procedural fairness in the refusal of adjournment applications and the conduct of the trial.

Adjournment applications

1. The issue of the adjournment decisions should be considered first as, if the applicant was denied procedural fairness, that strikes at the validity of the trial and its outcome. [7]
2. In this context one pre-trial matter should be dealt with first. The applicant frequently complained in her written and oral submissions that one of the difficulties with which she was confronted, and which in itself warranted an adjournment, was that by reason of her solicitor withdrawing from the proceedings 10 days before the trial commenced, she was suddenly required to read a 15 volume court book prepared by the respondents and provided to her on the first day of the hearing.
3. However, the documents in the White Book indicate that the applicant had had some input into the preparation of the court books in a manner which would indicate familiarity with their contents. Those documents include correspondence from the solicitors for ACM/Mr Anderson to the applicant's solicitor in early May 2016 acknowledging her requests that certain materials be included in the court books. The documents also record the respondents providing the court books on a USB stick to the applicant and, also, seeking to make arrangements at least 5 days prior to the trial to have hard copies of the books delivered to her.
4. Further, the index to the court book in the White Book reveals that it was 11, rather than 15, volumes in length and, leaving aside submissions and pleadings, consisted of six affidavits sworn by the applicant and the exhibits to her affidavits, two affidavits from Mr Anderson and the exhibits to his affidavits and two reports from a strata management expert, Mr Domazetovski. Other than those materials, the court book included a schedule of levies for the applicant's lot in the strata scheme, photographs of the property, a bundle of by-laws, title searches and transcripts of proceedings before other Supreme Court justices which the applicant had asked be included in the court book.
5. One would expect the applicant to have been familiar with the material she relied upon. Further, she should also have been familiar with the materials included in the court book which concerned the levy proceedings as she always represented herself in those. It is not apparent, accordingly, that the task of familiarising herself with the court book was as Herculean as the applicant's submissions suggested.
6. Insofar as the applicant addresses her proposed grounds of appeal complaining about denial of procedural fairness in respect of adjournments, her essential submission is that the primary judge erred in failing to accept medical evidence that she was "ill and incapable of instructing and did not have the organisational capacity to properly conduct a hearing".
7. Otherwise the applicant broadly asserts that the primary judge pressured her throughout the hearing, apparently, in effect, again by refusing her adjournments and proceeding with the hearing, despite her frequent assertions that she was sick, a condition which was "ignored", relevantly, by the primary judge.
8. The primary judge refused a number of adjournment applications made by the applicant both prior to the commencement of the hearing and during the hearing. The adjournments were "in the most part based on the [applicant's] contention that she was not in a fit mental or psychological state to properly conduct her case." [8] The primary judge accepted that the applicant "laboured under a great deal of stress and anxiety associated with the litigation", but observed that while that "obviously affected the manner in which [she] presented her case, she plainly possessed a good knowledge of the facts and events concerning the strata scheme, and showed herself capable at times of conducting effective cross-examination and elucidating arguments." [9]
9. In his ex tempore judgment of 16 May 2016 (the first day of the trial) on the adjournment application made by counsel appearing for the applicant for that purpose only, the primary judge considered whether the matter should be adjourned to a November 2016 hearing date, a potential date previously mooted for a further hearing if the matter was adjourned.
10. The applicant relied upon a report from a psychologist, Mr Henkelman, which pre-dated the hearing by approximately 11 months. He diagnosed her as suffering from post-traumatic stress disorder (PTSD) and suggested a course of treatment. He did not express an opinion that she could not conduct a trial.
11. The primary judge took into account the applicant's PTSD and, too, a draft affidavit of the applicant concerning the difficulties she had experienced when her solicitor ceased to act for her shortly prior to the trial. His Honour recognised that, notwithstanding the applicant was a solicitor, he was not confident that she would have the ability to conduct the case in an efficient manner. However, his Honour was not persuaded that the prospects of the applicant obtaining alternative legal representation for a November hearing was strong in particular in the absence of evidence that any counsel was prepared to accept a brief to appear for her. His Honour also took into account the fact that all defendants opposed the application for an adjournment, emphasising the prejudice their clients would suffer of both financial and non-financial kind. Ultimately his Honour concluded that it was a case which, so far as all individuals including the applicant were concerned, would be better concluded sooner rather than later. Taking all those matters into account, his Honour declined the adjournment application.
12. The applicant made another adjournment application on the 7th day of the hearing. On this occasion she relied upon a report from a clinical psychologist, a Ms Johnston, who she had consulted that morning. Ms Johnston expressed the opinion that the applicant continued to experience symptoms consistent with PTSD and that her current psychological condition was likely to affect adversely her cognitive capacity to represent herself in court. The primary judge once again accepted that the applicant's psychological state affected her ability to represent herself. Nevertheless his Honour observed that the applicant had demonstrated throughout the hearing that she was not only familiar with the factual matrix but, too, had the ability to articulate aspects of her case and had cross examined Mr Anderson over two hearing days in a manner which indicated she was able adequately to put her case to him.
13. At the stage this adjournment application was made, the only witness remaining to be called for cross examination was Mr Domazetovski. Taking into account that the applicant indicated that she would not be prepared to agree to any term that costs thrown away by an adjournment be paid forthwith, and having regard to the interest of the case concluding within the allocated time and the additional costs which would be wasted if the Court was to adjourn the proceedings, and taking into account too the matters referred to in ss 56 - 58 of the Civil Procedure Act 2005 (NSW), the primary judge refused this adjournment application.
14. The applicant made another application on 28 June 2016 seeking an extension of time to provide her closing written submissions. She relied upon a report from a psychologist, Mr Watson-Munro, dated 27 June 2016. At that stage the hearing had been adjourned since evidence finished on 26 May 2016. The applicant's written submissions had been due on 15 June 2016. Mr Watson-Munro's report diagnosed the applicant as suffering from a significant anxiety disorder and a depressive illness, which, absent treatment, had "left her vulnerable and arguably prejudiced in conducting a hearing as a self-represented individual". The primary judge granted the applicant the extension of time she sought and directed her to file her written submissions by 9 August 2016. She complied with that direction.
15. Finally, I note that "ground" 7 of the draft notice of appeal seeks to complain that the primary judge failed to adjourn the trial to enable the applicant to adduce valuation evidence and evidence from a financial expert. As apparently amplified in her summary of argument, this appears to relate to a contention that in the middle of the hearing the applicant sought to amend her case and to that end sought an adjournment to obtain and adduce expert evidence. The applicant has not placed any material before the Court which would support this bare assertion. Absent such material, the respondents' submission that the applicant did not make any formal application to amend her pleadings in the course of the hearing to seek to adduce such evidence should be accepted.
16. Insofar as the applicant seeks to challenge the exercise by the primary judge of his discretion to grant an adjournment, the applicant must demonstrate error of the kind identified in House v The King. [10] Appellate courts rarely interfere with decisions on matters of practice and procedure such as refusals of adjournments. [11]
17. It is apparent that in considering the adjournment applications, the primary judge was acutely aware of the applicant's medical condition and, too, his obligations in a case involving a litigant in person (albeit a solicitor) and the necessity to accommodate those matters with the respondents' interests in the trial proceeding on the allocated hearing dates. His Honour had to consider the adjournment applications by reference to the overall requirements of justice in the particular circumstances. [12] The applicant has not identified any arguable respect in which the primary judge's refusal of her adjournment applications was unreasonable or plainly unjust which would enable this Court to infer that his Honour failed properly to exercise his discretion.
18. Insofar as the conduct of the trial is concerned, in recognition of the applicant's stress and her emotional involvement in the proceedings and, again, her status as a litigant in person, the primary judge said he afforded her "a great deal of latitude in the conduct of her case, including in relation to the cross-examination of witnesses and the giving of time for the making of submissions." [13] Apart from a general complaint that the primary judge failed to appreciate the strain she was under in conducting the case, the applicant has not identified any particular aspect of the trial which involved procedural unfairness.
19. In my view none of the multiple submissions the applicant has made identify any want of procedural fairness or error in a House v The King sense in the manner in which the trial was conducted, which would attract this Court's intervention.

Primary judgment

1. Although the evidence was "largely documentary", to the extent that it depended upon the applicant's evidence otherwise, the primary judge concluded that she was an unsatisfactory witness and that no real weight could be placed upon her evidence. His Honour was only prepared to accept her evidence to the extent that it was against interest or corroborated by reliable evidence such as records made or communications sent at the time of the relevant event. [14]
2. Proposed ground 8 complains that the primary judge erred in that "[a]s a result of discounting entirely the evidence of the Plaintiff [he] relied in [sic, on] representations not supported by fact or records by the Strata agent". Assuming this to be a complaint about his Honour's credit finding, the applicant has not identified any incontrovertible facts or uncontested testimony which might arguably demonstrate that the primary judge's conclusions were erroneous. [15]

Negligence case

1. The primary judge rejected the applicant's submission that Mr Anderson/ACM owed her a duty of care in carrying out the functions of the Owners Corporation. His Honour held that to find such a duty would involve an unacceptable incongruity with the statutory scheme for the functions of an owners corporation and determination of disputes in relation to the exercise of their functions under the Act. [16]
2. Against the possibility that his conclusion concerning duty of care was incorrect, the primary judge considered whether ACM and/or Mr Anderson had been negligent in carrying out the functions of the Owners Corporation as the applicant alleged and whether any negligence had caused loss as she also alleged. In this respect, the primary judge undertook a detailed examination of the allegations of negligence which variously related to the manner in which ACM/Mr Anderson had conducted the remedial works programme of the building, dealt with issues concerning fire safety, lodged a development application for the construction of the balconies at the property, permitted use of the common property without obtaining adequate compensation and miscellaneous matters. His Honour concluded that the applicant had not established that ACM and/or Mr Anderson had been negligent in all but one of the matters of which the applicant complained. [17]
3. His Honour accepted that, if there was a duty of care of the sort the applicant propounded, ACM and/or Mr Anderson were negligent in failing properly to consider and take into account the respective financial positions of all the owners of the lots and their respective capacities to fund costs of works. [18]
4. However, his Honour held that, again assuming there was a duty of care and that the applicant had established one breach thereof, nevertheless, the applicant had not proved that she suffered any financial loss as a consequence. [19] Accordingly the negligence case failed.
5. The applicant has not challenged his Honour's conclusion that ACM and/or Mr Anderson did not owe her a duty of care in either her draft notice of appeal, nor in terms in her summary of argument or in her "affidavit" submissions. Nor has she advanced in any of those documents any argument which could be seen arguably to challenge the duty of care conclusion. Rather, the draft notice of appeal seeks to complain about one aspect of the primary judge's breach findings and his Honour's finding that no loss resulted from negligence. These appeal grounds are futile, absent any challenge to the primary judge's finding that the duty of care for which the applicant contended does not exist. However, even if that were not the case, the applicant has failed to identify any arguable basis upon which it could be said the primary judge erred in finding the applicant had failed to establish breach and/or loss in the negligence case.
6. Insofar as the breach/loss/detriment issues are concerned, the applicant's summary of argument under the heading "Outline of Nature of the Case and Apprehended Loss" undertakes a detailed critique of an historical valuation prepared by a Mr Keen on instructions from ACM/Mr Anderson in 2011 (Keen valuation). [20] The Keen valuation was considered by the primary judge in the context of determining, hypothetically, whether, assuming ACM/Mr Anderson acting as the Owners Corporation owed the applicant a duty of care, that duty had been breached.
7. The applicant relied on the Keen valuation in support of her negligence case to contend that ACM/Mr Anderson breached their duty of care because they should have obtained $212,000 by way of compensation for the use by the owner of Lot 6 of the roof space above that lot. The primary judge rejected that submission on the basis that the Keen valuation turned on property rights, whereas the lot owners had only been granted exclusive use rights. [21]
8. The applicant's written submissions appear to seek to abandon her reliance upon the Keen valuation at trial, in favour of a critique conducted by a Mr Donovan. The precise purport of this exercise is not apparent. It may go both to challenge his Honour's conclusion on breach to the extent that turned on the Keen valuation. It may also be advanced to demonstrate that, had Mr Donovan's critique been before the primary judge, his Honour may have reached a different conclusion on the applicant's loss/detriment cases. [22]
9. To whatever end the applicant seeks to point to Mr Donovan's critique, these submissions appear to miss the point that it was incumbent on her to adduce any expert evidence at trial, [23] not for the first time on appeal. The applicant has not advanced any reason why such expert evidence was not adduced at trial, [24] although, in apparent contradiction to that approach, in her oral submissions she frequently contended that it was not possible to get expert opinion which would prove her loss/detriment.
10. An applicant for leave to appeal must demonstrate the matter involves issues of principle, questions of general public importance or an injustice which is reasonably clear, that is to say goes beyond merely being arguable. [25] In my view, the applicant has failed to demonstrate any matter of this nature insofar as her negligence case is concerned.

Oppression/fraud on the minority case

1. The primary judge rejected the applicant's oppression and fraud on the minority case which was advanced against the Owners Corporation, ACM and Mr Anderson. [26]
2. Part of the applicant's oppression case involved her contention that ACM/Mr Anderson decided to proceed with a balcony construction program for the purpose of commercial development, which differed from the purpose for which ACM had been appointed, was in excess of the powers of an Owners Corporation under s 65A of the Act and the powers of an agent appointed under s 162 of that Act, was taken in the knowledge that the applicant objected to it and that the decision operated oppressively in relation to her. [27]
3. The primary judge accepted that the applicant's lot was adversely affected in one respect by the construction of the balconies, but concluded that it did not follow that she had thereby been oppressed when the overall situation was considered. As his Honour noted, the applicant conceded that her unit had been enhanced by the construction of a balcony adjacent to it. His Honour concluded that it had not been shown that the applicant's lot as a whole had been adversely affected, or affected in any less advantageous way, compared to any of the other lots. Moreover, his Honour held that the applicant had adduced no valuation evidence which supported her case that the value of her lot had been adversely affected by the construction of the balconies or had deteriorated relative to other lots in the scheme as a result of their construction, nor that special levies imposed for the purpose of paying for the construction would operate in a financially unfair manner to the owners of her unit. [28]
4. The draft notice of appeal complains that the primary judge erred in "finding there was no financial oppression". To the extent the applicant's written submissions address this aspect of the primary judgment, they do not suggest the primary judge erred in the legal principles he applied but, rather, appear to criticise his Honour's fact finding insofar as he considered the issue of the benefit other lot owners received from aspects of the repair work, and the corresponding detriment the applicant suffered. The applicant does not advance any submission which might demonstrate that the primary judge's conclusions were arguably incorrect such as to warrant leave to appeal. Nor, as I have said, on the basis of the evidence before his Honour, does the applicant identify any evidence upon which he could have found that she had suffered detriment.
5. In this respect, too, the applicant has failed to meet the criteria earlier identified which would warrant a grant of leave to appeal.
6. Finally, I note that on the morning of the hearing of the leave application, the applicant forwarded to the Court by email a lengthy document containing "leave submissions" and a valuation letter dated 3 May 2017. It is apparent that the critique of the Keen valuation the applicant made in her summary of argument was based on the latter report. The Court refused to grant the applicant leave to rely upon this new material having regard to the fact it was not filed in accordance with the time limited by the Uniform Civil Procedure Rules. [29]
7. BASTEN JA: I agree.

Endnotes

1. James v The Owners - Strata Plan No 11478 [2016] NSWSC 1558. The summons seeking leave to appeal was filed one day late, but that is de minimis and should not on this occasion preclude consideration of the application.
2. Primary judgment (at [9]).
3. Ibid (at [5]).
4. Ibid (at [23] - [25]).
5. Supreme Court Act 1970 (NSW), s 101(2)(r); Jabulani Pty Ltd v Walkabout II Pty Ltd [2016] NSWCA 267 (at [80]) per curiam (Bathurst CJ, Leeming and Payne JJA).
6. Cf Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 51.18; Durham v Durham [2011] NSWCA 62 (at [30]) per Tobias JA (Campbell and Young JJA agreeing).
7. Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (at [117]) per Kirby and Crennan JJ; Drew v State of New South Wales [2015] NSWCA 159 (at [21]) per curiam (McColl, Ward and Leeming JJA).
8. Primary judgment (at [10]).
9. Ibid.
10. (1936) 55 CLR 499 (at 505); [1936] HCA 40.
11. Will of Gilbert (1946) 46 SR (NSW) 318 (at 323) per Jordan CJ (Maxwell J and Nicholas CJ in Eq agreeing); Bloch v Bloch (1981) 180 CLR 390 (at 395-396); [1981] HCA 56 per Wilson J (Gibbs CJ, Murphy, Aickin and Brennan JJ agreeing).
12. Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 (at [5], [26] - [27], [30]) per French CJ; Squire v Rogers (1979) 39 FLR 106 (at 113 - 114) per Deane J (Forster and Brennan JJ agreeing).
13. Primary judgment (at [11]).
14. Ibid (at [15], [17]).
15. Cf Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (at [27]).
16. Primary judgment (at [94] - [112]); cf Sullivan v Moody (2001) 207 CLR 562; [2001] HCA 59 (at [50]) per curiam (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ); see also Brookfield Multiplex Ltd v Owners Corp Strata Plan No 61288 (2014) 254 CLR 185; [2014] HCA 36.
17. Primary judgment (at [114] - [179]).
18. Ibid (at [175] - [176]).
19. Ibid (at [177] - [178]).
20. The Keen valuation was considered by Ball J in James v The Owners Strata Plan No SP 11478 (No 4) [2012] NSWSC 590, proceedings brought by the applicant seeking to restrain the Owners Corporation from registering exclusive use by-laws. In the course of those proceedings, Ms James sought unsuccessfully to establish that Mr Keen's valuations were flawed. Ball J rejected that submission (at [66]).
21. Primary judgment (at [171] - [173]).
22. The applicant also frequently referred in her written material to the need for an independent valuation, in a sense of an expert not retained by the parties. The basis for that suggestion was not apparent.
23. Cf primary judgment (at [178]).
24. Cf Supreme Court Act, s 75A(7).
25. Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 per Kirby P; see also Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 (at [13]) per Bathurst CJ (Beazley and McColl JJA agreeing); Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 (at [46]) per Campbell JA (Young and Meagher JJA agreeing).
26. Primary judgment (at [180] - [216]).
27. Ibid (at [183]).
28. Ibid (at [200] - [204]).
29. Cf UCPR rr 51.10, 51.12. 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: 10 July 2017