[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: On 12 May 2020, the Court delivered judgment in this matter dismissing the appeal of Mr Wayne Lawrence against the decision of Henry J on 26 April 2019 dismissing claims by Mr Lawrence that he had an interest in a property owned by the respondents at Angophora Crescent, Forestville, that the respondents had not validly terminated certain agreements between Mr Lawrence and the respondents and that Mr Lawrence was entitled to specific performance of those agreements: Lawrence v Ciantar [2020] NSWCA 89 (the Appeal Judgment).
Mr Lawrence filed a notice of motion on 26 May 2020 seeking to reopen the decision of this Court. The motion also seeks ancillary relief that the Appeal Judgment be stayed.
In accordance with directions made by the Registrar, the parties filed submissions in relation to the reopening application. After the filing of those submissions, Mr Lawrence forwarded an email to the Registrar on 23 July 2020 seeking leave to amend his reply submissions filed 20 July 2020. He also sought an oral hearing via telephone link "to identify the factual circumstances in [his] submissions". The respondents indicated they were content for the matter to be dealt with on the papers. Having considered submissions and documents filed by Mr Lawrence in support of the motion, the Court is satisfied that the application may be disposed of without a further hearing.
Whilst Mr Lawrence was legally represented, both at trial and on appeal, he is unrepresented on the present application. The notice of motion makes reference to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), the slip rule, denial of procedural fairness and alleged improper conduct at trial by the respondents' solicitor. It is convenient to address the reopening application on the basis that these are the grounds relied upon by Mr Lawrence.
[3]
UCPR r 36.16
As to the first ground, a perusal of Mr Lawrence's submissions, and in particular, the lengthy submission styled "Review of Appeal based on incorrect contents of 5 February 2019 submissions", reveals that Mr Lawrence complains that both the primary judgment and the Appeal Judgment contain factual mistakes and findings and that he believes there would be a different outcome if the matters in his two-volume white folders were highlighted to the Court.
The relevant legal principles applicable to an application to set aside or vary part or all of a judgment pursuant to r 36.16 are those discussed by Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302-303; [1993] HCA 6.
The power to do so is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. The power is enlivened where a court has "apparently proceeded according to some misapprehension of the facts or the relevant law" and where that misapprehension cannot be attributed solely to the neglect or default of the party seeking to set aside or vary the judgment (at 303).
Importantly, Mason CJ emphasised in Autodesk (at 303) that the jurisdiction is not to be exercised for the purpose of re-agitating the arguments already considered by the Court or "to provide a backdoor method by which unsuccessful litigants can seek to re-argue their cases": see also Waterhouse v Independent Commission Against Corruption (No 2) [2015] NSWCA 362; Streetscape Projects (Australia) Pty Ltd v City of Sydney (No 2) [2013] NSWCA 240.
Here, it is plain that this is what Mr Lawrence is now seeking to do. Mr Lawrence was ably represented by experienced senior counsel on the appeal and there is no suggestion of inadequacy in the manner in which his counsel argued the appeal in the first place. No basis has been shown now to permit Mr Lawrence a second attempt to persuade the Court that his appeal should be allowed. To do so would be inconsistent with the principle of finality of litigation and outside the scope of UCPR, r 36.16.
[4]
Slip rule
As to the second ground, the slip rule contained in UCPR, r 36.17 expressly applies only to the correction of errors that arise from "a clerical mistake" or "an accidental slip or omission". The slip rule has no application to alleged mistakes that are a consequence of a deliberate decision: Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd (No 2) [1991] NSWCA 92. None of Mr Lawrence's complaints concerning the Appeal Judgment engages the slip rule.
[5]
Procedural fairness
The third ground relied upon by Mr Lawrence is an asserted denial of procedural fairness. The complaint made is that relevant evidence was not put before the Court by the respondents' solicitor, Ms Karen McLean. The substance of this complaint is directed to a bill of costs served by mail on Mr Lawrence by the respondents' solicitor on 28 November 2019, being the same day as the hearing of the appeal in this Court. Mr Lawrence complains that the bill of costs includes a claim for costs outside the scope of the costs order made by the primary judge in favour of the respondents. He says that it includes costs "for the supervision and management of the completion of the subdivision[,] the costs are intermixed[,] the legal costs and the costs as project manager".
The proper forum for any objection by Mr Lawrence to the costs claimed by the respondents pursuant to orders made by the primary judge is the costs assessment process under Pt 7 of the Legal Profession Uniform Law Application Act 2014 (NSW).
The voluminous submissions of Mr Lawrence do not otherwise identify the relevance for the appeal of the allegation that Ms McLean acted as project manager in connection with the subdivision of the Forestville property following the termination by the respondents of their agreement with Mr Lawrence. It is not necessary to decide whether Ms McLean acted in the manner alleged. This ground may be disposed of on the basis that it has not been shown that there is a high degree of probability that, if the bill of costs was admitted as fresh evidence on appeal (pursuant to s 75A of the Supreme Court Act 1970 (NSW)), there would be a different outcome: Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. There is no merit in the asserted denial of procedural fairness.
[6]
Alleged conduct of the respondents' solicitor
In his written submissions, Mr Lawrence makes various allegations against the respondents' solicitor, including that in giving affidavit evidence at trial in support of the respondents' case, Ms McLean breached r 27.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. Rule 27 provides:
27 Solicitor as material witness in client's case
27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.
There are at least three difficulties with this submission. First, no ground of appeal was directed to any allegation based on r 27. Accordingly, the Court has not failed to deal with the matters advanced on appeal. Second and in any event, the complaint is misconceived. Ms McLean did not appear as "advocate" for the respondents at the trial; rather, the respondents were represented by senior and junior counsel. Third, it should be noted that the submissions of Mr Lawrence did not place any reliance on r 27.2. Here, Ms McLean is the principal solicitor of the law firm McLean & Associates.
Insofar as order 7 of the notice of motion implies an allegation of perjury, it seems directed to an affidavit of Ms McLean sworn 17 November 2017. The submissions of Mr Lawrence dated 25 May 2020 (pars 6(d) and 9) refer to par 32 of that affidavit in which Ms McLean deposed in relation to the deed of loan dated 26 March 2015 (which was referred to in [21]-[22] of the Appeal Judgment) that "I am informed by my clients and verily believe that while the Deed of Loan implies an acknowledgement of an advance, the Principal Sum of $435,000 referred to in that document was not received by the Defendants".
There are concurrent findings of the primary judge and this Court that no funds were advanced to the respondents pursuant to the deed of loan or otherwise: primary judgment at [64(c)], Appeal Judgment [112]. No grounds for revisiting that finding have been demonstrated by Mr Lawrence.
No new evidence was sought to be tendered, nor was any intelligible submission advanced by Mr Lawrence in support of the proposition of "potential perjury". It was not suggested that the allegation of perjury meant that the trial was unfair or went to the heart of the issues that were litigated: see Cabassi v Vila (1940) 64 CLR 130; [1940] HCA 41 at 147-148 (Williams J), cited by Windeyer J in McDonald v McDonald (1965) 113 CLR 529 at 544; [1965] HCA 45).
As to the application by Mr Lawrence to amend his reply submissions, nothing in the proposed amended reply submissions advances the claims for relief in the notice of motion.
[7]
Orders
There being no basis to set aside the Appeal Judgment, the Court makes the following orders:
1. Dismiss the notice of motion filed 26 May 2020.
2. Applicant to pay the respondents' costs of the motion.
[8]
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: 21 August 2020