Kelly v Westpac Banking Corporation

Primary judgment 18The primary judge noted in his ex tempore reasons (at [2]) that the basis of the adjournment application was the "late service of two additional affidavits [Westpac] wishes to rely upon at the hearing [which go] ... principally to the question whether the bank made disclosure to Mr Kelly before he signed the guarantee, and entered into other transactions, in accordance with ... the Banking Code of Conduct." (the "disclosure evidence"). 19The primary judge then turned to matters relating to the history of the proceedings. These included that the appellant had raised an issue as to whether his signature had been forged by his father, on some of the documents on which he is sued: primary judgment (at [3], [6]). As his Honour recorded (at [8]), Westpac "was given leave on 15 August to file evidence in reply in relation to that forgery issue." However: "[9] As Mr Koch of counsel has explained, the bank does not wish to lead evidence to contradict that evidence, but says that in considering Mr Kelly's evidence it became alive to what Mr Kelly said of the lack of disclosure and prepared the affidavits which are in issue before me of Mr Adam Michael Lidbury sworn 5 September 2014 and Ms Sanjesni Lata Singh sworn on 29 September 2014. As I have said, they relate to the disclosure issue, not the forgery issue." 20The primary judge accepted that the disclosure evidence was relevant to the issues in the proceedings, saying: "[11] It may be that strictly these documents are not in reply to the forgery issue, as Mr Koch, I think, fairly conceded. However, they are clearly relevant because they provide circumstantial evidence as to whether the bank did make disclosure about the obligations it said Mr Kelly was assuming by way of guarantee in accordance with the Banking Code of Practice. The evidence of those witnesses after all this time is largely circumstantial detailing the practice each of them says he or she invariably followed. Although in Ms Singh's case, according to her testimony, she has a recollection of directly speaking to Mr Kelly, however, she was unable to set out a precise recollection of the details or content of those conversations and in giving any evidence of that at all had to rely again, or fall back, on her usual practice. [12] So, as I have said, the evidence is clearly relevant to the issues in the case and Mr Kelly says that he is caught by surprise by the evidence at this late stage. As a self-represented litigant he feels that he is unable in the time available to him now, however one looks at it, either two weeks or, allowing for weekends, eight business days, to adequately prepare to meet the case and he is concerned that an injustice will occur." 21The primary judge then referred (at [13]) to the applicant's uncertainty and the anxiety engendered by him "wondering whether he would have adequate time to deal with the evidence that the bank was going to put together", which his Honour recognised was relevant. His Honour observed: "[13] ... It is well-recognised that prejudice in terms of litigation cannot be measured simply in legal costs but the effect of the strain of litigation on individuals is a relevant consideration, as is, of course, the fact that this evidence has been served in breach of court orders. Case management orders are not imposed in the interests of forensic diligence for its own sake but forensic diligence is a virtue which the Court seeks to encourage." (Emphasis added) 22The appellant was also concerned that, "as a self-represented individual, ... he has been put upon by [Westpac] which is taking advantage of its well-funded position and he is disadvantaged by it serving documents late when it should have complied with the timetable": primary judgment (at [14]). 23After referring (at [15] - [17]) to authorities demonstrating the evolution of the courts' attitudes to case management, culminating in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 ("Aon"), in the course of which his Honour noted (at [16]) that the appellant's "point about the advantage of litigants with deep pockets is not without point", the primary judge said: "[18] The purpose of case management is, of course, to do justice and to advance the administration of justice and Mr Kelly's argument puts what he sees as the potential for injustice at its heart and I accept that is appropriate. However, certainly in the case of civil litigation the concept of justice is not an absolute or abstract standard. Justice is a practical concept and when litigants invoke it, generally it is relevant to the exercise of the Court's discretion that practical injustice or prejudice of that type needs to be shown and demonstrated. [19] It seems to me that other than the consideration that as a non-lawyer, self-represented litigant, Mr Kelly will take longer to prepare his case and his arguments than an experienced barrister, there was little that could be said at a practical level about why an adjournment was required. I asked specifically about whether or not there were witnesses who might be required to meet this evidence and although he said there could be, he did not identify them. I did not really understand if there were witnesses who could be called to deal with the issues to be addressed by Mr Lidbury and Ms Singh why they could not be spoken to before 13 October to deal with the evidence in their affidavits. I must say it is difficult to see what witnesses could contradict what they say about their business practices within the St George Bank. However, I will leave that last consideration to one side. Had there been some specific step identified by Mr Kelly in relation to the gathering of further evidence that was necessitated by this material if it is admitted, it would have been relevant for me to know what it was to put it in the balance in the exercise of my discretion. [20] As things presently stand, I am not persuaded that the interests of justice or of the administration of justice require an adjournment of the hearing set down for 13 October. I think that although the order allowing [Westpac] to put on the evidence in reply was perhaps strictly expressed, I accept that this evidence arises out of the new evidence put on by Mr Kelly and I also bear in mind that a degree of leeway has been permitted to both parties in the preparation of this case by the judges and registrar who have been case-managing it. [21] It seems to me that the considerations referred to in Sali and in Aon about the effect of the loss of court time on not only the parties in the present proceedings but on other litigants, and the waste of judicial resources potentially involved, require me to refuse Mr Kelly's application, especially as he has been unable to persuade me that there is any practical injustice in allowing the matter to proceed on 13 October. [22] I should say that, naturally, the question of the admissibility of the evidence of Mr Lidbury and Ms Singh will be a matter for the trial judge who, no doubt, will rule upon such objections as Mr Kelly feels advised to take at the point of tender. [23] I think it also appropriate that I should allow Mr Kelly some time to put on any evidence dealing with this question of disclosure referred to by the new witnesses if he finds that there is a witness who can assist him in that regard, but I think that that should be done by close of business on 10 October 2014. It seems to me that it would ill-behove the bank, given what I referred to as the leeway afforded both parties in preparation, to object to such a course." 24His Honour then made the orders to which we have referred.

Submissions 25The appellant submitted that the primary judge's orders (and reasons) failed to recognise the fact and extent of Westpac's default and the disadvantageous position in which that placed him. That disadvantage arose both by reason of the late service of the disclosure evidence and the primary judge's expectation that he demonstrate, in a short period, its practical effect. He contended that, as a self-represented litigant, it was not just for the primary judge to expect him, within the short time he was afforded on 30 September, to be able both to digest the substantial body of new evidence Westpac had served as well as to specify what evidence he would need to amass to respond to it and the time needed to do so. He also argued that the time his Honour then allowed for him to respond to the new evidence (effectively 7 business days taking into account the October long weekend) was demonstrably inadequate and failed to recognise the necessity for him as a self-represented litigant, to prepare for the trial and assemble reply evidence at the same time. 26Having had the opportunity to consider the new evidence since the primary judge's orders, the appellant submitted in this Court that in order to respond to it, he would have to prepare at least three new affidavits (two from other members of his family as well as one from himself), as well as issue subpoenas both to Westpac and third parties, including the former accountants of D V Kelly and its liquidator. He also foreshadowed an application to amend his defence. 27One of the documents attached to Ms Singh's affidavit was a Credit Approval Memorandum ("CAM") dated 15 August 2008 which discussed the pros and cons of extending the finance facilities to D V Kelly. The appellant submitted (and Westpac conceded during argument) that this document should have been provided during discovery. The appellant contended that the CAM went to a major issue in the proceedings, being the commercial setting, purpose and effect of the contract: s 9(1), CRA. He raised the question whether it demonstrated that Westpac had engaged in asset lending, (see generally Provident Capital v Papa [2013] NSWCA 36; (2013) 84 NSWLR 231 (at [107] ff per Macfarlan JA) contending that parts of the CAM demonstrated that Westpac was aware that he could not service, or repay, any of the finance facilities and that his home was his only asset. He submitted, in effect, that the late discovery of the CAM cast a new light on the proceedings and that he required time to consider its significance and how to deal with it in the course of his defence. 28Mr J Hynes, who appeared for Westpac in this Court, but not below, submitted that there had been no restriction on the evidence Westpac had been given leave to serve by the orders made on 15 August and 19 September respectively. 29Mr Hynes contended that the appellant had sworn an affidavit in June 2014 which raised the issue of him never having received a COBP Disclosure Pack. He suggested that the 15 August and 19 September orders were intended to enable Westpac to file evidence going to that issue as well as to the forgery issue raised in Mr Lawrence Kelly's 8 August affidavit. 30Mr Hynes next contended that Westpac had faced difficulty securing the affidavits from Ms Singh and Mr Lidbury, neither of whom worked for it any longer. He pointed out that those difficulties had been raised before the Registrar on 19 September when Westpac had been given, in effect, an extension of time to serve the new evidence. He accepted that the CAM had not been, but should have been, discovered. 31In the course of oral argument Mr Hynes very fairly accepted the following propositions: (1)the issue of what documents the appellant had received from Westpac prior to executing the guarantee and mortgage (assuming he did execute them) was important to the appellants' claim for relief under the Contracts Review Act; (2)the issue only assumed particular significance once Westpac served the new evidence; (3)the appellant was entitled to investigate Westpac's practices as described in the new evidence; and (4)Westpac's default in complying with directions was responsible for the appellants' difficulty in investigating these matters prior to the scheduled hearing. 32Mr Hynes also accepted that the CAM suggested that the provision of a mortgage by the appellant was critical to Westpac's approval of finance facilities to DV Kelly. Nonetheless, Mr Hynes submitted that the primary judge had given the appellant sufficient time to deal with these matters. He also queried whether, in the circumstances, the appellant would realistically be able to put on evidence answering the affidavits by the former bank officers.

Consideration 33The court is reluctant to grant leave to appeal in matters of practice and procedure such as the granting of an adjournment or the vacation of a trial date: In re the Will of F B Gilbert [1946] NSWStRp 24; (1946) 46 SR (NSW) 318. It will generally only intervene in such a case where it considers there is "a clear case of material error in the decision at first instance": Cornelius v Global Medical Solutions Australia Pty Ltd [2014] NSWCA 65; (2014) 98 ACSR 301 (at [21]) per Macfarlan JA (Ward JA and Tobias AJA agreeing). 34In our view the primary judge's reasons, with respect, demonstrate such error. 35The principles recognised in Aon have substantially been embodied in s 56ff of the Civil Procedure Act 2005 (NSW) (the "CP Act"). The overriding purpose dictated by s 56(1) of the CP Act and the rules of court, "to facilitate the just, quick and cheap resolution of the real issues in civil proceedings", is well-known. Section 56(3) imposes a duty on "[a] party to civil proceedings ... to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court." Section 57 provides: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 36Section 58(1), CP Act required the primary judge to act in accordance with the dictates of justice in deciding whether to make any order granting the adjournment of the proceeding the appellant sought. Among the factors relevant to that determination were the provisions of s 56 and s 57 and, too, s 58(2), the latter relevantly including: "(i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, ... (iv) the degree to which the respective parties have fulfilled their duties under section 56(3), ... (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction." 37Allsop P (McColl and Basten JJA agreeing, the latter adding some observations) set out relevant background to the insertion of these provisions in the CP Act in Richards v Cornford (No 3) [2010] NSWCA 134 as follows: "[42] The litigious process is inherently stressful for any party, in particular an individual. ... Litigation can be described as 'a costly and stressful, though necessary, evil': White v Overland [2001] FCA 1333 at [4]. The wider passage and the paragraph in which this appeared as part of the reasoning were approved by this Court in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; 53 NSWLR 116 at [1], [28] and [39]. That stress includes the uncertainty and concern as to the effects of legal costs that can lead to bankruptcy and financial ruin. The reality of the personal strain of litigation is now clearly recognised by the Courts: Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [37]; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 715 - 716; Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 at [100]. [43] This being the nature of the process of litigation, the courts in this country in modern times, have sought to exercise control and supervision over litigation in order to see cases resolved in a relatively timely fashion. It cannot always be done. Parties, practitioners, courts and judges sometimes fall behind by reference to appropriate standards of efficiency and timeliness. Nevertheless, the need for the due despatch of the cases of litigants is ever-present and is a fundamental aim of the administration of justice. [44] To put the matter simply and bluntly, parties are entitled to expect that the costly and stressful, though necessary evil that is litigation be resolved with reasonable despatch so as to minimise, where reasonably possible, the time during which people are subjected to its rigours and strains. [45] Considerations of this character lay behind the decision of Parliament to pass the CP Act..." 38No criticism can be directed at the primary judge for seeking to give effect to the obligations of case management to which his Honour referred (at [18]). However, with respect, his Honour (who was no doubt dealing with the appellant's motion in the course of a busy list), failed to appreciate the difficult position in which Westpac's default in compliance with the two orders for filing evidence and its concomitant late service of substantial new evidence placed the appellant in what was clearly going to be a somewhat complex case. 39Even a legal practitioner might have needed more than 25 minutes to assess the significance of the evidence that Westpac effectively served on the appellant at the bar table on 30 September 2014. The evidence required the appellant to determine its importance to the issues in the case and to identify the steps that were needed to investigate the evidence and, in due course, to respond appropriately. The time afforded to the appellant to undertake that task at the hearing was, with respect, insufficient. It was, in our view, a material error for his Honour to conclude, in the circumstances, that the adjournment application should be rejected because the appellant had failed to demonstrate either practical injustice or prejudice arising from the late service of the new evidence. 40The appellant sought to explain to this Court the significance of further evidence he submitted the new evidence would require him to amass. It must be said that the relevance of some of it was not readily apparent to a Court with a somewhat imperfect understanding of the issues - the matter having been brought on speedily having regard to the imminence of the trial date, the pleadings were not before us. Nevertheless, as we have said, Mr Hynes frankly and fairly conceded that the new evidence raised issues not hitherto alive which the appellant should have the opportunity to investigate to propound his defence. The relevance and admissibility of such evidence the appellant may seek to rely upon in this respect must be a matter for the trial judge in due course. 41In this context, it was relevant however for his Honour to take into account that the appellant was advancing a defence under the CRA, the probable success of which might turn on an examination of the circumstances surrounding the entry into the facilities the appellant had guaranteed. The new evidence went directly to that issue. Not only did Westpac serve that evidence late, in default of two court orders, but in doing so it disclosed an important document which had not hitherto been provided in the course of discovery. In fairness to his Honour, that fact was not brought to his attention, no doubt because the appellant did not appreciate either the significance of the documents he was reading for the first time in court and possibly, too, because he did not appreciate at that time that the document had not been discovered. However, that merely highlights the significance of Westpac's default. 42It was also relevant, in our view, for the primary judge to take into account the relative position of the parties in preparing the case for the imminent trial. All are equal before the law. Courts cannot prefer the interests of self-represented litigants over those who are legally represented: Reisner v Bratt [2004] NSWCA 22 (at [4]) per Hodgson JA (Ipp JA agreeing); Malouf v Malouf [2006] NSWCA 83 (at [94]) per Mason P (McColl and Bryson JJA agreeing). Nevertheless, that does not mean that in considering the dictates of justice (s 58, CP Act) courts ignore the disparity which can exist between the resources available to a well-funded litigant such as Westpac and a self-represented litigant: see, for example, Serobian v Commonwealth Bank of Australia [2010] NSWCA 181 (at [42]) per Macfarlan JA (Tobias JA and Sackville AJA agreeing). 43It should, with respect, have been apparent to the primary judge that the appellant would be in great difficulty in the seven business days remaining to the commencement of the trial after 30 September, in dividing his resources between preparing to conduct a four day trial and amassing a case to respond to the new evidence. By way of comparison, Westpac, with all its resources, including representation by a highly regarded firm of solicitors, had been 25 days late in complying with orders intended to ensure the trial could proceed on 13 October. Westpac's lack of expedition placed the appellant in the invidious position in which he found himself on 30 September. These, too, were matters the primary judge should have, but did not, take into account in rejecting the adjournment application. This was also a material error. 44The degree of injustice the appellant faced consequent on Westpac's default warranted the primary judge acceding to the appellant's notice of motion. His Honour's failure to do so warranted this court's intervention to correct the injustice the appellant suffered.

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