Menzies v Paccar Financial Pty Ltd

Applicants self-represented Mills Oakley Lawyers (Respondent) File Number(s): 2013/153139 Decision under appeal Jurisdiction: 9003 Citation: Menzies v Paccar Financial Pty Ltd (No 2) [2014] NSWCA 2 Date of Decision: 2014-01-21 00:00:00 Before: Leeming JA File Number(s): 2013/153139

Judgment 1THE COURT: On 21 June 2013, the appellants, Ian David Menzies and his wife Colleen Anne Menzies, who are self-represented litigants, filed a notice of appeal in respect of three judgments of the Supreme Court delivered by Harrison As J in the Common Law Division. The first judgment appealed involved an application by Mr and Mrs Menzies to adjourn the hearing of a trial, the application being made on the first day of the five days set aside for the hearing: Paccar Financial Pty Ltd v Menzies (No 3) [2013] NSWSC 551. The procedural history is set out in the judgment and need not be repeated. 2The adjournment application took the whole of the first day, being 13 May 2013. It was refused. The trial went ahead on the following day, but Mr and Mrs Menzies were neither present nor represented. At the conclusion of the relatively brief hearing, Harrison AsJ reserved her judgment. It was listed to be delivered on 13 June 2013. On that morning, Mr Menzies made an oral application to reopen the hearing. That application was dismissed: Paccar Financial Pty Ltd v Menzies (No 4) [2013] NSWSC 743 (being the second judgment appealed). Harrison AsJ then proceeded to deliver the principal judgment: Paccar Financial Pty Ltd v Menzies (No 5) [2013] NSWSC 772 (being the third judgment appealed). 3The primary proceedings, thus resolved in the Common Law Division, related to a commercial loan agreement, pursuant to which the appellants' company, Menzies Haulage Pty Ltd, obtained finance from Paccar Financial Pty Ltd ("Paccar") for the purchase of two Kenworth prime movers and trailers ("the equipment"), over which it granted security to Paccar. Mr and Mrs Menzies guaranteed and indemnified Paccar against loss resulting from any default in repayment of the loans by Menzies Haulage. Menzies Haulage defaulted on the loans and the first proceedings were brought by Paccar seeking possession of the equipment and related relief. (Menzies Haulage, by then in liquidation, was not a party to the proceedings.) 4In additional to filing a defence and cross-claim in those proceedings (alleging misleading and deceptive conduct by Paccar), Mr and Mrs Menzies filed separate proceedings seeking damages from Paccar for abuse of process and malicious damage. 5The appeal was listed for hearing on Monday next, 10 February, with two days allocated. On 21 January 2014, Leeming JA heard and dismissed an application by the appellants for an order vacating the hearing dates. He also dismissed an application by Paccar to set aside a stay of the money judgment it had obtained at trial. 6On 5 February 2014, the appellants filed a notice of motion seeking review of the decision of Leeming JA, discharge of his order refusing vacation of the hearing dates and, in its place, the vacation of those dates. The motion also sought other directions which are not of present relevance. The application is made under s 46(4) of the Supreme Court Act 1970 (NSW) and has been heard as a matter of urgency before the dates fixed for hearing the appeal. 7Proceedings under s 46(4) are not appeals, nor are they a rehearing de novo: s 19(2), Supreme Court Act; Uniform Civil Procedure Rules 2005 (NSW), ("UCPR"), r 51.2; Porter v Gordian Runoff Ltd [2004] NSWCA 171 (at [4]). A review under s 46(4) of a procedural decision "will ordinarily not succeed unless the decision turns on an error of law, a material error of fact, a failure to take into account some material consideration or the taking into account of an irrelevant consideration, or unless the decision is so unreasonable as to suggest that one of these types of error has been committed even though it does not appear on the face of the reasoning": Patrick v Howorth [2002] NSWCA 285 (at [10]); see also Transglobal Capital Pty Ltd v Yolarno Pty Ltd [2004] NSWCA 136; (2004) 60 NSWLR 143, at [4]-[6]; Kiri Te Kanawa v Leading Edge Events Australia Pty Ltd [2007] NSWCA 274 (at [14]); Lo v Iverach [2009] NSWCA 92 (at [29]). This is a heavy burden to discharge. 8Described by Leeming JA as being "very much at the forefront of Mr and Mrs Menzies application to vacate", was a claim by them that there had been non-compliance with UCPR, r 51.24. Rule 51.24 relevantly provides: 51.24 Registrar to collect certain papers when notice of appeal filed (1) On the filing of a notice of appeal, the Registrar: (a) may obtain from the Reporting Services Branch the original of the transcript (if any) of the proceedings in the court below, and (b) must obtain from the proper officer of the court below: (i) the exhibits, and (ii) the list of exhibits and certificate under rule 51.43, and (iii) all other relevant documents before the court below, together with a list, certified by the proper officer of the court below, and (iv) the reasons for judgment (if any) or the summing up (if any) in the court below certified by or on behalf of the court below. (2) Unless the Appeal Book is prepared by the Registrar, the Registrar must allow the party required to prepare the Appeal Book to have custody of the documents necessary to prepare it. 9Before Leeming JA the appellants contended, not that documents had not been provided to the Registrar or that they were unavailable for inspection, but that they were not properly certified in accordance with the requirements of sub-r (1)(b)(ii) and (iii). Rule 51.42 requires that a person who appeals from a decision in a Division must file a copy of the notice of appeal in the Registry of the Division. That action triggers an obligation on the part of the proper officer of the Division to "make out and certify a list of the exhibits" that had been tendered in the proceedings: r 51.43. The second reference to certifying a list of "all other relevant documents before the court below" is somewhat obscure. On its face, it could include affidavits read in the proceedings, pleadings and possibly transcript. It is not necessary to resolve the scope of this provision, although it seems unlikely that a certified list would be required otherwise than in relation to evidence. Whether a certified list has been prepared is not readily ascertainable from the material before this Court, but it may be presumed that no such list was prepared. Leeming JA made an order waiving the requirement to comply with the obligations to certify lists under r 51.24(1), being satisfied that there was no evidence of any prejudice to the interests of Mr and Mrs Menzies, even if lists had not been prepared and certified. 10The apparent purpose of the rule, which requires the Registrar to obtain relevant documents from the proper officer of the court below, is to allow the party responsible for preparing an appeal book to "have custody of the documents necessary to prepare it". The party who must prepare the appeal books is, in the ordinary course, the appellant. However, Leeming JA noted the respondent had in fact assumed the burden of preparing appeal books in this case so that, if there were any failure to comply with the rule in question, it was difficult to see how the appellants were prejudiced, assuming that the material relied upon by the trial judge was available for the appeal. (The appellants, not having attended at the hearing, did not tender material, the disregarding of which might reveal error.) 11At an earlier stage - specifically, on 16 December 2013 - Leeming JA had made directions, the effect of which was to deem a particular book produced by the respondent to be the blue appeal book (containing the documents in evidence at trial), with liberty for the appellants to supplement it if they wished. Those directions had also dealt with the preparation of the orange book (containing submissions on the appeal) by fixing a timetable for the filing and service of submissions and requiring the respondent to produce the orange book. Both the red book (containing the pleadings and judgments appealed from) and the black book (containing the trial transcript), were in fact prepared by the respondent and each is marked as having been filed on 29 January 2014. This was in accordance with Leeming JA's directions of 21 January 2014. 12The appellants complained that they had no assurance that documents included in the "blue book" were in fact those that were before the trial judge or that the content comprised everything that was before her, the appellants not having been present or represented at the hearing. They maintained that they were entitled to some form of certificate from the court to that effect. They also complained that they should have been given physical possession of the court file or been taken through it by a court officer to indicate what was and was not before the trial judge. 13Documents tendered and the affidavits read at a trial are recorded contemporaneously on the associate's records and in the transcript. There can of course be mistakes, but in the experience of the Court they are rare. A certificate by the associate who kept the record is unlikely to reveal a mistake in preparing the record. A certificate by any other officer is even less likely to reveal an error. Further, it is no longer in doubt that the appellants have had access to the documents in the registry and been able to compare them with the judgment and the transcript. 14In circumstances where the file was readily available for inspection within the registry and the respondent had obviously gone to considerable lengths to facilitate the preparation of books, Leeming JA did not accept that the appellants had suffered or would suffer any prejudice from an absence of any relevant certificate and he dispensed with compliance with any relevant requirement, if it had not been met. Such an order was made on 21 January 2014. To the extent that the appellants challenge those findings and the dispensing order, no relevant error is revealed and the challenge must be dismissed. 15A second basis for the application to vacate the hearing date was an indication by the appellants that they wished to amend the notice of appeal in two respects, one of which was briefly articulated to Leeming JA while the other was not. Neither was fully formulated but as to the one that was described, Leeming JA expressed a preliminary view that, if and when formulated, it would not take the respondent by surprise as the issue had already been covered in written and oral submissions made over several weeks. He was thus not satisfied that, if the amendment application were made and were to be allowed it would require an adjournment. Flagging the possibility of a very late and unspecified amendment certainly did not form a basis for vacating the imminent hearing dates. No proposed amendment has yet been served on the respondent and no ground has been made good to interfere with this finding. 16It is clear that the course taken by Leeming JA represented a practical and constructive approach to the preparation of an appeal brought by unrepresented litigants. Those litigants were assured of full and free access to the file in the court below, albeit that they were not permitted to uplift documents and were refused a certified list of documents. In addition, the respondent - no doubt wishing to see the proceedings brought to a conclusion sooner rather than later - undertook to provide copies of the "Court Book" used at trial, work that appellants would normally have had to undertake. 17There is another aspect of the case, which appears not to have been fully articulated by the appellants in the course of the hearings before Leeming JA, nor in the written submissions on the present application, which, at least initially, took the form of an affidavit by Mr Menzies. The "Court Book", which it was proposed to treat as the Blue Appeal Book, would not in fact have served that purpose. First, it was prepared for the substantive hearing and was tendered before the trial judge on that hearing. Accordingly, it did not purport to contain the material relied upon by the appellants for the purposes of seeking an adjournment of the hearing on 13 May 2013, nor in seeking to have the hearing reopened, on 13 June 2013. Both those applications are within the subject matter of the present appeal. Because the appellants did not participate in the hearing of the substantive issues, their chances of succeeding on their appeal may well be quite limited, unless they can succeed in challenging either the refusal of the adjournment or the refusal to reopen the hearing. 18With respect to the adjournment application, it appears from the transcript that a considerable volume of material was tendered and accepted in evidence. So far as this Court can tell, none of that material was included in the "Court Book" and would not be available to the Court if the hearing proceeded next Monday. 19So far as the reopening application is concerned, it is not entirely clear whether any particular documents, which were not already in evidence, were admitted as evidence on the application. If there were such documents, they should be included in a separate volume of a Blue Appeal Book, so as to be available for the hearing before this Court. More importantly, the appellants had delivered to the respondent on the evening before the application (12 June 2013) a box containing three affidavits, involving some seven folders of material. This, as it appears, was the material which the appellants wished to rely upon in support of their reopening application. It was (presumably) material which they would have sought to place before the Court on the hearing of the substantive issues, but which they had not been in a position to present on 14 May 2013. How much of that material is sought to be relied upon in challenging the refusal to reopen is not known to this Court. It is not available in a form which can be considered by the Court if the hearing of the appeal were to proceed on Monday. 20The appellants also had in Court a second box containing material which they asserted related to other proceedings in other courts and was apparently relied on in relation to their proceedings for abuse of process and malicious damage. That material was either not in a state to be presented at the trial, or on the reopening hearing on 13 June 2013. Nevertheless, it appears that the appellants wish to seek leave to rely on that material in support of the appeal, presumably as material which would have been presented at trial had a sufficient adjournment been granted to allow them to prepare it in a proper form. 21The last category of material would constitute "further evidence" for the purposes of s 75A(7) and (8) of the Supreme Court Act and shall not be received "except on special grounds". An application to tender such evidence must be made in accordance with the UCPR, r 51.51. It is undoubtedly very late in the date for the appellant to be seeking to rely upon additional evidence, and that may provide a reason why the Court will not admit it. However, in order to deal with such an application on its merits (as opposed to dismissing it summarily) the Court would need an opportunity to see such of the material as the appellants might wish to rely upon. It would not be available for a hearing next Monday. 22There is an additional problem. If the appellants do wish to place reliance upon any material other than that which is within the Court Book, there are no submissions dealing with the way in which particular material is said to be relevant (or would have been relevant at trial) which would allow the respondent to deal with it in an appropriate manner. Accordingly, if the matter were to proceed on Monday, both the respondent and the Court would be without any form of assistance with respect to significant aspects of what appears to be a proposed challenge to the adjournment judgment and the reopening judgment. 23It is true that the appellants cannot complain they were not aware of the material presented on the adjournment application hearing and on the reopening application. These were their applications; they were present throughout. It is also true, given their lengthy experience with the courts (over several years) that they might have been expected to undertake essential preparation for their appeal at an earlier stage. On the other hand, the orderly disposition of business in this Court will not be promoted if, when the appeal commences, the Court (and the respondent) are asked to deal with a volume of material which has not been properly served, identified or dealt with in submissions explaining the purpose for which reliance is placed upon it. There is at least a possibility that, if the hearing commenced, it might be adjourned before completion to allow the documentary material to be placed in order. Acknowledging that the material may never be placed in an appropriate order, nor supported by helpful submissions, it is nevertheless preferable to allow the appellants one more opportunity. 24The basis for allowing the review of Justice Leeming's decision is that it was based upon an assumption that the evidential material in the Court Book could properly be treated as the Blue Appeal Book. Although the directions allowed the appellants to "supplement" the Court Book if they discovered relevant documents which were missing, it is apparent that his Honour was not fully apprised of the extent to which the "Court Book" was likely to prove inadequate for the conduct of the appeal. 25In response to the Court foreshadowing the orders set out below, counsel for Paccar sought a direction that the further folders required to constitute the "Blue Book" should be prepared by the appellants, without its assistance. That position may be noted. It is, in any event, for the appellants to determine which of the documents should be included in the Blue Book. That exercise should be undertaken bearing in mind that if the evidence is controversial (as it is likely to be) this Court is unlikely to determine any disputes. The primary purpose of such evidence must be to demonstrate that there was material upon which the appellants wished to rely at trial and which might have affected the outcome. If satisfied on the appeal that the appellants had been improperly deprived of an opportunity to put their case fully before the trial judge, the likely consequence would be a setting aside of the orders made by the trial judge and the ordering of a retrial. The appellants would need to establish a miscarriage of justice: UCPR, r 51.53. 26Further, counsel for Paccar indicated that, in the event the hearing dates were vacated, the company would wish to pursue its application to have the stay on execution of the money judgment revoked. It appears that, the hearing dates not being vacated, Paccar did not pursue that motion before Leeming JA: at [37]. Now that the hearing dates have been lost, it indicated its intention to renew its application to revoke the stay. However, it did not put on a motion seeking to reagitate that issue and this Court is not in a position to deal with it. Whether the circumstances have changed significantly and whether the Court would think fit to revoke the stay at this stage will depend in part on the timetable agreed for the further disposition of the matter. Given the success of the appellants, it is appropriate that the dismissal of the respondent's motion be set aside. It can take such steps as it may wish to reagitate the motion, but must advise the Registrar of that potential demand on the appellants' time and resources before the timetable is settled. 27In these circumstances, the Court makes the following orders: (1) Allow the application to review the judgment and orders of Leeming JA of 21 January 2014 to the extent necessary to give effect to the following orders and directions. (2) Vacate the listing of the appeal for hearing on 10 and 11 February 2014. (3) Set aside orders (6) and (8) made on 21 January 2014. (4) Direct that the costs of the proceedings before Leeming JA on the motions of 9 December and 12 December 2013 be costs in the appeal. (5) Order that the costs of the review application be costs in the appeal. (6) Stand the appeal over to the Registrar's list on Monday, 10 February 2014 for further directions in accordance with these orders and proposed directions. (7) Direct that: (a) the Court Book filed by the respondent stand as volume 1 of the Blue Appeal Book; (b) the appellants prepare the following further volumes of the Blue Appeal Book (in the form of folders) containing so much of the material falling into the following categories as they seek to rely upon in support of their appeal: (i) material before the trial judge at the hearings on 14 May 2013, other than the Court Book, to form volume 2 of the Blue Appeal Book; (ii) material admitted as evidence on the adjournment application on 13 May 2013, to form volume 3 of the Blue Appeal Book; (iii) material tendered on the reopening application on 13 June 2013, to form volume 4 of the Blue Appeal Book; (iv) any extra material served on the respondent on 12 June 2013 and not admitted in evidence on the reopening application, to form volume 5 of the Blue Appeal Book; (v) any other material sought to be relied upon by the appellants for the purposes of the appeal, together with a motion seeking to rely on the material and an affidavit to explain why the material is relevant, to form volume 6 of the Blue Appeal Book; (c) if the appellants wish to rely on the transcript of the hearing before Registrar Bradford on 7 May 2013 they make it a supplementary Black Book; (d) the appellants file written submissions (not exceeding 20 pages) in lieu of any affidavits and submissions presently before the Court, identifying concisely and without discursive explanation, the documentary material in the Blue Appeal Books upon which reliance is placed and the purpose for which it is relied upon; (e) the appellants to prepare a chronology setting out the dates of critical events to which they propose to refer in the course of the appeal; (f) the respondents to file written submissions (not exceeding 20 pages) in lieu of the submissions filed on 4 February 2014; (g) the appellants to file written submissions in reply (not exceeding 7 pages). (8) Direct that the Registrar: (a) fix a timetable for the preceding steps to be taken as expeditiously as practically possible; (b) fix dates for the hearing of the appeal, and (c) if requested by the President at any time, refer the matter for case management by a judge of the Court.

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 February 2014