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[2010] NSWSC 1032
procedural. The Defendant's Notice of Motion filed 30 July 2010 was dismissed. Execution of the Writ of Possession was stayed until after 30 October 2010. The Defendant was ordered to pay the Plaintiff's...
This was Ms McCann's third attempt to set aside the Bank's default judgment. The Court had previously identified specific gaps in her evidence. The new affidavits added some background and payment information, but did not resolve those gaps or explain why important evidence had not been provided earlier. Davies J held that repeating an application without addressing the known deficiencies was an abuse of process. The Court also said that, even if the application was not abusive, the evidence still did not show a defence on the merits, and the delay was not adequately explained. The application was dismissed. The Court nevertheless allowed a short stay of execution to give time to relocate animals from the property.
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National Australia Bank Ltd had obtained a default judgment against Veronica McCann on 24 November 2009. This judgment concerns Ms McCann's third application to set that judgment aside. The Registrar had dismissed her first application on 30 April 2010, and Davies J dismissed her second application on 23 July 2010 ([1]). Ms McCann, then acting in person, filed the third Notice of Motion on 30 July 2010 ([2]).
1 cited instrument linked from this judgment.
The Bank opposed the third application on two principal grounds: it said the application was an abuse of process, and that the additional evidence still did not show a defence on the merits ([3]). The dispute concerned four lending facilities and the Bank's claims connected with them. Davies J's earlier judgment had assessed the evidence relating to each facility and found that Ms McCann had not shown a defence on the merits ([4]-[7]).
For the third application, Ms McCann filed three affidavits dated 30 July, 3 September and 9 September 2010 ([8]). They included background about her relationship with her husband and his businesses, her account of the 2000 dealings with a Bank manager, information about two payments, complaints about a former solicitor, and material about medication she said she had taken following surgery and a motor vehicle collision ([9]-[30]).
The new material was not enough to address the earlier concerns. Some information was available to Ms McCann when the previous applications were being heard, and the affidavits did not explain why it had not been included then ([8], [31]). More importantly, the Court considered that several central evidentiary gaps remained. In relation to the First Facility, there was still no evidence supporting the pleaded allegations about the Bank's influence, representations concerning Rivat, or Ms McCann's belief about what she was signing ([43]-[46]). For the Second Facility, she still did not address evidence that she had signed a Business Purpose Declaration or explain the use of the account ([47]-[48]).
The Court dismissed the application. It also stayed execution of the Writ of Possession until after 30 October 2010, after the Bank did not oppose additional time to relocate animals kept at the property ([70]-[71]). Ms McCann was ordered to pay the Bank's costs ([71]).
Davies J's primary reasoning was that the third application was an abuse of process. The judgment drew on PNJ v The Queen, which identified examples of abuse including court procedures used in a way that is unjustifiably oppressive or brings the administration of justice into disrepute ([33]). The Court also considered the Civil Procedure Act 2005 (NSW), particularly ss 56 and 57, and authorities emphasising the Court's obligation to apply those provisions ([34]).
A key distinction in the reasoning was between, on the one hand, bringing further evidence that had been available for an earlier application and, on the other, bringing a further application that remained deficient on matters the Court had already identified. Davies J reviewed Nominal Defendant v Manning, where the second application was not, without more, treated as an abuse merely because evidence available earlier was later produced. The judgment also referred to the warning in that case that a litigant who fails to put forward available evidence faces a serious risk of an adverse discretionary decision ([37]-[38]).
The Court noted that Fletcher v Besser had raised whether the Civil Procedure Act might affect the approach to repeated applications, and recorded that the continuing authority of Manning might need reconsideration ([39]-[40]). Davies J did not decide that Manning had ceased to apply. Instead, the judgment proceeded on the assumption that it remained good law and found that this case was materially different: the problem was that Ms McCann again failed to lead evidence on matters necessary to support her application ([41]).
That conclusion was based on the repeated opportunities Ms McCann had to present her case and the unchanged deficiencies in the further proposed Defence. The allegations about the First Facility had been repeated without supporting evidence ([43]-[46], [52]). The denial concerning the Second Facility did not answer evidence about the declaration and account use ([47]-[48], [53]). As to the Third and Fourth Facilities, the new pleading remained inconsistent with admissions that Ms McCann had entered into them ([49]-[50], [54]). The proposed pleading about the two payments did not clarify issues identified in the earlier judgment, including which facility should have received the payments and what effect they would have had on the debt ([26], [28], [55]).
Davies J concluded that the third application was unjustifiably oppressive and risked bringing the administration of justice into disrepute. The judgment also applied Aon Risk Services' observation that parties must have a sufficient opportunity to identify the issues they wish to agitate. The Court found that Ms McCann had had that opportunity and the opportunity to provide the evidence needed to show the merits of her asserted defence ([35], [56]-[58]).
The Court gave two independent alternative reasons for refusing the application. First, even if the application was not an abuse of process, it still did not show a defence on the merits ([59]). The Bank sought to rely on letters apparently written by Ms McCann that acknowledged liability. She denied writing them, but had not filed evidence to support that denial, despite knowing that the Bank wished to rely on them ([60]). Bank statements also indicated that the Third Facility had been used for her benefit, but she gave no explanation of that use ([61]). The Court further noted that Ms McCann accepted she had to repay at least the amount used to refinance the Westpac loan and had not tendered that amount ([62]).
Second, delay was an independent reason for refusal. Ms McCann did not explain repeated failures to comply with directions requiring service of the evidence supporting the earlier applications ([64]). The medication material was not accompanied by medical evidence showing that the medication prevented her from managing the litigation or providing instructions to her representatives ([65]). The Court treated the absence of an adequate explanation as significant, having earlier described the delay as potentially gross ([66]).
The judgment did not purport to establish a new general rule about repeated applications to set aside judgment. It applied existing abuse-of-process reasoning while acknowledging uncertainty about how the Civil Procedure Act 2005 (NSW) might affect the approach in Nominal Defendant v Manning.
Manning concerned a second application to extend a limitation period. As Davies J summarised it, the majority held that the second application was not, without more, an abuse of process merely because it sought to remedy an evidentiary deficiency from the first application. The failure to provide that evidence earlier was instead relevant to the exercise of discretion ([37]). Heydon JA's warning, quoted in this judgment, was that failure to present available evidence could itself create serious risks when a further application was made ([38]).
The judgment then referred to Fletcher v Besser, where the Court of Appeal noted that the Civil Procedure Act might need to be considered in deciding whether a second application based on previously available evidence should be permitted. Allsop P was also quoted as agreeing that Manning might need to be reconsidered in light of ss 56-60 of the Act ([39]-[40]). These observations do not amount to Davies J overruling Manning. The reasoning expressly assumed, for the purpose of deciding the case, that Manning remained good law ([41]).
The practical distinction drawn in this judgment was narrower. A further application was not treated as abusive merely because further evidence had existed earlier. Rather, the Court found abuse because the third application repeated earlier positions without addressing specific deficiencies already identified, despite Ms McCann's opportunities to provide the missing support ([41], [56]-[58]). The Court also relied on the additional, independent grounds of no demonstrated defence on the merits and unexplained delay ([59]-[66]).
Accordingly, the judgment's contribution is an application of existing procedural principles to the particular history before it. It does not establish from the text alone that every repeated application, or every attempt to add previously available evidence, is an abuse of process.
At [33], the judgment recites the abuse-of-process characteristics from PNJ v The Queen, including procedure that is “unjustifiably oppressive” or that “would bring the administration of justice into disrepute.” In plain English, the Court considered whether the way the application was brought unfairly burdened the other party or undermined the proper use of court processes.
At [41], Davies J explained that the central problem was not simply that Ms McCann had now produced further evidence. It was that she had again failed to provide evidence on matters that the earlier decision had identified as necessary. Put simply, the applicant had another opportunity but had not filled the gaps that had already been pointed out.
At [56], the Court described the third application as abusive because it was as deficient as the earlier one and did not make a real effort to deal with the identified issues. The significance is the emphasis on the application's continuing deficiencies, rather than on a general prohibition against making a further application.
At [57], the Court applied Aon's reference to a “sufficient opportunity” to identify the issues a party seeks to pursue. Davies J considered that Ms McCann had been given enough opportunity both to identify her proposed defence and to provide supporting evidence.
At [59], the judgment makes clear that the outcome did not depend solely on the abuse-of-process finding. Davies J stated that, if that finding were wrong, the application should still fail because a defence on the merits had not been shown. This alternative reasoning matters because it gives the decision a separate evidentiary basis.
At [62], Davies J treated Ms McCann's acceptance that she had to repay at least the refinancing facility, together with the absence of a tender of that amount, as a reason there was no basis to set aside the possession judgment. This was part of the Court's merits assessment, not a general statement about every mortgage or possession proceeding.
The decision is most directly relevant to a procedural history in which a party has made repeated applications for the same relief, an earlier decision has identified particular evidentiary gaps, and the next application does not meaningfully address those gaps. The judgment places weight on the number of prior opportunities, the clarity of the earlier identification of deficiencies, and the similarity between the later proposed case and the earlier one ([41]-[58]).
It may also be relevant where an applicant relies on evidence that was available earlier but does not explain why it was not produced, especially when the applicant still fails to provide evidence on other matters essential to the proposed case. The Court did not hold that late evidence alone necessarily makes a later application abusive; its reasoning distinguishes that situation from the repeated failure to address identified problems ([37]-[41], [56]).
The judgment also illustrates the importance of matching evidence to pleaded allegations. For example, the Court considered that allegations of influence and misrepresentation about the First Facility needed supporting evidence, while a denial concerning the Second Facility did not answer evidence about a signed declaration and use of the account ([45]-[48]). Evidence of payments was also insufficient without clarifying which facility was to be credited and the effect on the outstanding liability ([26], [28], [55]).
The case is fact-specific. It does not establish that a third application is inherently abusive, nor that an unrepresented litigant cannot bring a further application. Davies J expressly noted Ms McCann's unrepresented status, but considered the prior representation, earlier opportunities and unchanged deficiencies in assessing the application ([58]).
The judgment text does not report any later court treatment of National Australia Bank Ltd v McCann (No. 2) [2010] NSWSC 1032. It therefore does not support a conclusion about whether later courts have followed, distinguished or questioned this decision.
The authorities Davies J discussed were available by the time of this judgment. Aon Risk Services was applied to the requirement that parties have a sufficient opportunity to identify the issues they wish to pursue ([34]-[36], [57]). PNJ v The Queen supplied the abuse-of-process characteristics used in the analysis ([33]). Manning and Fletcher were considered in addressing the status of a second application based on previously available evidence and the possible effect of the Civil Procedure Act ([37]-[41]).
For research purposes, the distinction in the reasoning is important: Davies J assumed Manning remained good law and resolved the application on the particular basis that the third attempt remained deficient. The judgment itself does not settle the broader question it identifies about Manning's status after the Civil Procedure Act. Any account of subsequent treatment would require sources beyond this judgment.
The judgment leaves open how the Civil Procedure Act 2005 (NSW), including ss 56-60, affects the approach in Manning. Davies J noted that Fletcher and Aon raised the possibility of reconsideration, but did not decide the issue because the application was abusive even on the assumption that Manning remained good law ([39]-[41]).
The judgment also does not define a general threshold for when repeated applications become abusive. Its conclusion rests on a combination of features: earlier opportunities to present the case, a prior judgment identifying specific evidentiary deficiencies, a further application that did not address them, and the resulting oppression and impact on the administration of justice ([56]-[58]). The precise significance of each feature in a different procedural history is not resolved here.
There are also fact-specific evidentiary points that the judgment does not determine beyond the application before it. For example, the Court found that the evidence did not show which facility should receive the asserted payments or whether crediting them would remove a default ([26], [28]). It did not decide the broader legal treatment of those payments in another factual setting.
Finally, the judgment's discussion of the possession claim should be read in context. Davies J relied on Ms McCann's acceptance that she had to repay at least the refinancing facility and on the absence of a tender of that amount ([62]). The judgment does not set out a general rule for all possession proceedings or all disputes about the effect of partial payments.
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CITATION : National Australia Bank Ltd v McCann (No. 2) [2010] NSWSC 1032
DECISION : (1) The Defendant's Notice of Motion filed 30 July 2010 is dismissed. (2) Execution of the Writ of Possession is stayed until after 30 October 2010. (3) The Defendant is to pay the Plaintiff's costs.
CATCHWORDS : PROCEDURE - judgment and orders - setting aside - third application by Defendant to set aside default judgment - second application dismissed after contested hearing - further evidence filed which did not show Defence on the merits - no evidence adduced dealing with deficiencies identified in earlier judgment - abuse of process - application to set aside judgment refused.
Civil Procedure Act 2005 LEGISLATION CITED : Motor Accidents Act 1988 Stamp Duties Act 1920 Uniform Civil Procedure Rules
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Bi v Mourad [2010] NSWCA 17 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Fletcher v Besser [2010] NSWCA 30 Halpin v Lumley General Insurance Ltd [2009] NSWCA 372 CASES CITED : Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 National Australia Bank Ltd v McCann [2010] NSWSC 766 Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 Richards v Cornford (No 3) [2010] NSWCA 134 Rivat Pty Ltd v B & N Elomar Engineering Pty Ltd [2007] NSWSC 638
PARTIES : National Australia Bank Ltd (Plaintiff) Veronica McCann (Defendant)
COUNSEL : D C Price (Plaintiff) In person (Defendant)
2009/292027 NATIONAL AUSTRALIA BANK LTD V McCANN (NO. 2)
JUDGMENT 1 This is the third application by the Defendant Ms McCann to set aside a default judgment obtained by the Bank on 24 November 2009. The first Notice of Motion was dismissed by the Registrar on 30 April 2010. I heard the second Notice of Motion where both the Bank and Ms McCann were represented by counsel. On 23 July 2010 I dismissed that application. 2 The present application was filed by Ms McCann then acting for herself on 30 July 2010. 3 To understand this judgment it will be necessary to have regard to my judgment in National Australia Bank Ltd v McCann [2010] NSWSC 766. This third application was opposed by the Bank on the basis that it was an abuse of process, and also on the basis that the further evidence relied upon by Ms McCann did not show a defence on the merits. 4 The factual background and the procedural history are set out in detail in my earlier judgment. I also examined the evidence about each of the 4 facilities and determined that the evidence as a whole showed that the Defendant had no defence on the merits to the claims made on each of the facilities. 5 In relation to the First Facility I noted that Ms McCann admitted that she executed the Facility Agreement but claimed that she did so based on a representation made to her by a Bank Officer, that she executed it under the influence of the Bank and that she never intended to execute it as an agreement. I found that she did not provide any evidence of these matters, although on many occasions directions had been made by the Court for her to file and serve all evidence on which she relied for the purpose of the first and second applications to set aside the judgment. 6 In relation to the Second Facility I determined that Ms McCann's failure to respond to the evidence of the signing of the Business Purpose Declaration on 16 March 2006 in respect of that Facility, and her failure to provide any explanation about the prima facie evidence of a draw-down of the facility meant that she did not show she had a defence to the claim on that facility. 7 In relation to the Third and Fourth Facilities, I noted that she had made admissions in 2 Defences that had earlier been filed that she had entered into these Facilities and that the mortgage secured them.
The new evidence 8 Ms McCann filed and served 3 further affidavits which she relied upon in support of this third application. Those affidavits were dated 30 July, 3 September and 9 September 2010. No explanation was provided as to why the information in these affidavits was not contained in the affidavit evidence that had been directed to be filed in support of her first and second applications, nor given at the hearing of her second application. I shall return to that matter when dealing with the argument based on abuse of process. 9 The affidavit of 30 July 2010 sets out background personal information concerning Ms McCann and a person who has variously been described as her husband and her former husband. I enquired of Ms McCann at the present hearing if she was divorced from this person but she told me she was not yet. I will therefore refer to him as her husband. 10 The affidavit discloses that her husband conducted an auction business. She says that he ran that and other businesses he was involved in and she looked after the family and horses on the property. 11 The property of 69 Silverwood Avenue, Luddenham was bought in her sole name and was purchased with the assistance of the Commonwealth Bank. 12 She said that during 2000 the family business was moving its banking to the National Australia Bank and her husband suggested she move the home loan to that Bank because it would get a better rate of interest. 13 On 4 May 2000 her husband rang her and asked her to come to the office of the Bank Manager for the Liverpool Branch of the National Australia Bank. When she arrived the Manager, Mr Chris Lloyd, said that her husband had told him she was looking for a better rate of interest on the home loan. She asked him what the interest rate was. He told her it was 7.05% "well under the 8.5% you are presently paying". She said she was unaware of her existing interest rate, and nodded approval to Mr Lloyd as she did not want to appear stupid. 14 Mr Lloyd then handed her a document saying that he had approved a $560,000 loan for her and presented a mortgage document for her signature to pay out the existing mortgagee. She said "Okay, where do I sign?". He pointed to a place on the document and she signed it. This evidence must relate to what the Bank called the Fourth Facility. 15 She said that Mr Lloyd then handed her another document and said "This is an approval for $100,000 for the business". She said: "No thank you. I do not want any money. It is important to me that my home loan cannot be used for any business debt of my husband's and unless you can promise me that I will not take your mortgage." 16 She said she did not sign this other document. She said her husband was getting angrier by the minute. Mr Lloyd then said to her "You are the sole proprietor and I will make some notes on the Bank file to that effect". 17 She then left the office and went home with a large yellow envelope containing the mortgage and some other documents that Mr Lloyd had put into it. Amongst the documents in the envelope was a document headed "Continued Reliance and Extension of Security" and referred to a credit contract for $100,000 in the name of Ms McCann with the home mortgage being the security. It can reasonably be inferred that that was the documentation for the Third Facility that Ms McCann said she rejected. The document is unsigned. 18 She said that on 28 June 2000 she received a letter from the Bank concerning the home loan and the other facility. The letter showed that funds from the Home Loan and the Flexi Plus Mortgage Facility totalling $642,265.86 had been paid to Westpac Banking Corporation to refinance a loan from them. 19 Ms McCann said she was shocked when she read this. She telephoned the Bank many times and was repeatedly told that Mr Lloyd was unavailable. She said then that she got a call from a person called Corrine Kelly from the Bank who said to her "Veronica there is nothing we can do now. Your mortgage is now with us." There was discussion about the correct address on the document because it was addressed to Ms McCann at "San Michael", 69 Villerwood Avenue, Luddenham instead of Silverwood Avenue. 20 Ms McCann said in her affidavit that she did not know how the National Australia Bank and Westpac had taken over her mortgage without authorisation. She said she did not get any more letters from the National Australia Bank until 2006 and she did not get any bank statements. 21 In my earlier judgment I dealt in paras [61]-[64] with a pleading in Ms McCann's then proposed Defence concerning the payment of 2 sums of $33,627.76 and $92,744.00 to the Bank. In her affidavit of 30 July 2010 Ms McCann provides evidence about those payments for the first time. 22 The background now appears to be this (and there was some reference made to this in [18] and [19] of my earlier judgment). It appears that Ms McCann had entered into a contract to purchase a property at 5 Junction Road, Auburn. There had been mention of this made in her further Defence of 28 July 2009 (see my earlier judgment para [19]). I referred in para [18] to the fact that there was some inconsistency in that Defence where it was alleged that Ms McCann had entered into the contract although the Defence said in another place that the advance of $500,000 under the First Facility was to a company called Rivat Pty Ltd to assist with legal costs relating to the acquisition of that property. Ms McCann's affidavit did not explain that inconsistency but she informed me from the Bar table on this application that she entered into the contract personally with the intention that Rivat would be the purchaser. She told me that Rivat was incorporated after she exchanged contracts to purchase the property. However, an ASIC search tendered on this application showed that Rivat was registered on 26 March 2003. I was taken to the judgment in Rivat Pty Ltd v B & N Elomar Engineering Pty Ltd [2007] NSWSC 638 in relation to what follows hereafter, but according to that judgment Rivat exchanged the contract on 14 August 2003. I do not really understand, therefore, the circumstances in which Ms McCann entered into the contract but Rivat came to be the purchaser. Certainly, Ms McCann's explanation cannot have been correct. 23 In any event, it seems that Rivat brought proceedings against the vendor for specific performance. At some stage the Defendant obtained an order for security for costs and it was necessary for Rivat to obtain a bank guarantee for $52,000 in that regard. 24 Ultimately Rivat lost the proceedings. That resulted in the Office of State Revenue refunding the Stamp Duty on the contract of $92,744. Ms McCann annexed to her affidavit a Stamp Duties Act Refund Notice addressed to Rivat Pty Ltd c/- Veronica McCann for that sum. In her affidavit she said her husband handed her a cheque for that amount and said to her that he would take the cheque to the National Australia Bank and credit it to her home loan so she would not have to come up with the monthly repayments for a while. 25 In her affidavit of 3 September 2010 Ms McCann annexed a deposit slip in relation to the cheque for $92,744. That deposit slip shows that the cheque was deposited into the account of Smithfield Auctions, a company of which Ms McCann's husband was at the time a director. That the cheque went into that company's account is corroborated by a bank statement for that company. Ms McCann said in her affidavit of 3 September that she did not authorise the cheque to be paid into the account of Smithfield Auctions, and alleges that the Bank allowed Smithfield Auctions to bank the cheque to their account when it was made out to her. When I pointed out to Ms McCann that the Refund Notice from the Office of State Revenue was addressed to Rivat Pty Ltd who was the ultimate purchaser under the contract (according to what Ms McCann told me) Ms McCann told me that she had many meetings with the Commissioner and the cheque was issued to Rivat Pty Ltd/Veronica McCann. There was no evidence that that was so. 26 The only significance of this payment appears to be that Ms McCann puts it forward as some sort of satisfaction of a liability she had to the Bank. I mentioned this in para [62] of my earlier judgment. However, nothing is put forward in the recent evidence to identify to which facility the cheque ought to have been credited, nor whether, if it was, that was all that was owing to the Bank. The amount is certainly far less than is outstanding under any particular facility. 27 Ms McCann gave evidence in her affidavit of 30 July 2010 that when Rivat lost the case seeking specific performance, her husband told her to take the bank guarantee to the Bank, pay DLA Phillips Fox and credit the balance to her home loan. Ms McCann said that DLA Phillips Fox were the solicitors for the successful Defendant, although I note the judgment records a different firm of solicitors. 28 Quite why her husband, rather than DLA Phillips Fox, would have had possession of the bank guarantee, or why it would have been negotiable by him in all the circumstances, was never explained in evidence. Ms McCann said she attended the Pitt Street Branch of the National Australia Bank, tendered the bank guarantee, and asked the teller for a cheque made out to DLA Phillips Fox and the balance of $33,627.76 to be credited to her loan account. She did not say which loan account. Nor, again, is there any evidence which throws any light on whether the crediting of that amount to any of the facilities would have meant that there was no default in respect of whichever facility it was credited to. 29 Of other matters in the recent affidavits which are relevant to the issues on the application, Ms McCann makes complaint again about Mr Yakenian, the solicitor who acted for her in 2009. She also denied receiving any Notices as alleged and set out in the affidavit of Mr George of 12 March 2010. She also said that she had never used the address 65 Silverwood Avenue, Luddenham. She added that that address was taken from the Plaintiff's documents by a Mr Platcher when he assisted her drafting legal documents. I discussed this in paras [76]-[82] of my earlier judgment. 30 Finally, Ms McCann swore a third affidavit where she annexed copies of prescribed medication that she said she was taking following surgery on 23 August 2009, and following a motor vehicle collision on 4 September 2009. Ms McCann said the significance of this medication was that she was in a lot of pain and she did not have the capacity to deal with the litigation - that was why she engaged Mr Yakenian. 31 In summary, therefore, the 3 affidavits now relied on by Ms McCann in support of this third application contain some evidence that was available to her at the time the earlier applications were on foot. The evidence was known to Ms McCann at that time because they concerned matters involving her which took place prior to the commencement of the proceedings. 32 On the other hand, the 3 recent affidavits failed to deal with a number of matters which are identified in my earlier judgment and which remained unanswered by the Defendant when answer was needed. I shall return to the detail of those matters later in this judgment.
Abuse of process 33 In PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR 384 at [3] the Court said: [3] It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics: (a) the invoking of a court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures would be unjustifiably oppressive to a party; or (c) the use of the court's procedures would bring the administration of justice into disrepute. …
I agree with the Plaintiff's submission that paragraphs (b) and (c) are both relevant when considering the present application. 34 In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 ANU applied for an adjournment of the trial to make substantial amendments to its Statement of Claim against Aon. When considering the proper approach to the issue of amendment and adjournment the plurality judgment made clear at [55] that the starting point was the relevant statutory provisions and rules that govern the Court's procedure. In this Court ss 56 and 57 of the Civil Procedure Act 2005 are the most significant provisions. A string of Court of Appeal decisions since 2008 have emphasised the importance of these provisions and the fact that the Court is obliged to act in accordance with them: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [29]; Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 at [38] and [41]; Halpin v Lumley General Insurance Ltd [2009] NSWCA 372 at [21]-[25] and [28]-[30]; Bi v Mourad [2010] NSWCA 17 at [47] and Richards v Cornford (No 3) [2010] NSWCA 134 at [98]-[111]. 35 Consistently with those authorities the plurality judgment in Aon said this at [112]: [112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. 36 I note in passing at this point that Ms McCann has been given more than one opportunity to put forward the evidence in relation to the matters that had been clearly raised by the claims made in the Statement of Claim. I shall return to that matter presently. 37 Prior to the enactment of the Civil Procedure Act, an issue arose in Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 whether it was an abuse of process to bring a second application to extend the limitation period under the Motor Accidents Act 1988 in respect of the part of the claim for which leave had earlier been refused. By majority the Court of Appeal determined that the bringing of the second application, without more, was not an abuse of process. Rather, it preferred the view that the circumstances that the previous application had failed for want of evidence explaining the delay in commencing the proceedings, and that the second application was brought to remedy that deficiency by the adduction of evidence which should have been presented in the first application, was a matter to be considered in determining how the discretion should be exercised in the second application (see at [101] per Foster A-JA). 38 The other Judge in the majority (Heydon JA) said at [72]: [72] Nothing in the above reasoning rejecting the Nominal Defendant's submission is intended to encourage litigants to avoid putting their best cases forward in any interlocutory application. The deliberate non-tender of evidence for use in a second interlocutory application should the first fail, or for use in an interlocutory appeal from the interlocutory application, might of itself be fatal to success; and even the non-deliberate failure to tender evidence is extremely risky. The Nominal Defendant's proposition that no second interlocutory application can be entertained unless there is a change of circumstances or unless evidence is relied on which could not reasonably have been obtained earlier is too extreme, but a litigant bringing a second application where circumstances have not changed on evidence available earlier is facing serious and self-created risks of an adverse exercise of judicial discretion. (emphasis added) 39 A similar issue arose after the enactment of the Civil Procedure Act in Fletcher v Besser [2010] NSWCA 30 where a second application to extend the limitation period was brought. Sackville AJA (with whom Allsop P and McColl JA agreed) noted that the parties accepted that the second application could not simply be dismissed as an abuse of process even if it was based on evidence available at the time of the first application in conformity with the decision in Manning. Sackville AJA went on to say at [17]: For present purposes, it is enough to observe, without casting doubt on the correctness of Manning at the time it was decided, that the Civil Procedure Act may need to be taken into account in determining whether a second application for an extension of the limitation period should be permitted where the application is based on evidence that was available at the time of the unsuccessful first application. 40 In agreeing with Sackville AJA, Allsop P added this: [2] I would also, in particular, agree with his Honour that in the light of the Civil Procedure Act 2005 (NSW), ss 56-60, the authority of Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 may need to be reconsidered. 41 In my opinion, on the assumption that Manning is still good law, the making of the third application in this case with the evidence relied upon to support it amounted to an abuse of process. The abuse of process arises in the present case not so much because of the further evidence that was led but because Ms McCann again failed to lead evidence on matters which needed to be led if this application was not to suffer the same fate as, at least, the previous application which I heard and determined. 42 In my earlier judgment I identified in a number of places where I would have expected there to be evidence led if it was available to provide support for the defences which Ms McCann wished to put forward in the defence she then proffered. Some of that evidence can be identified as follows.
(a) The First Facility 43 It will be recalled that Ms McCann's Defence to this facility (dated 8 December 2006) was that she admitted to executing the facility but said she did it under the influence of the Bank and representations were made to her about it as a result of which she executed it. In the Defence she now puts forward she reiterates those matters although in the particulars under paragraph 5 she mistakenly refers to it as the Fourth Facility. It is clear, however, from the dates and details that it is the facility described by the Bank as the First Facility. 44 In my earlier judgment I discussed the Defence and the evidence put forward on her second application to set aside the judgment in paragraphs [83] to [85]. I pointed out there what was lacking in the evidence to justify the pleading about the execution of this document. 45 Although Ms McCann has provided greater detail about the execution of this facility in her affidavit of 30 July 2010 the evidence about the matters she already pleaded and continues to plead about the execution of this facility is entirely lacking. There is no evidence concerning the influence the Bank is said to have exercised over her. There is no evidence about the representations concerning Rivat. There is no evidence in support of the Defence that she thought that she was signing something different from what she in fact signed. 46 In substance, nothing has altered about the evidence relating to this facility from Ms McCann's second application.
(b) The Second Facility 47 In her earlier Defence Ms McCann simply denied entering into this facility dated 14 March 2006. She continues to deny she entered into this facility in her Further Proposed Defence. 48 In my earlier judgment I pointed out (para [86]) that Ms McCann had failed to respond to the evidence the Bank tendered showing that she had signed the Business Purpose Declaration in relation to this facility. She has still not provided any evidence concerning the signing of that Declaration. Secondly, I drew attention to the provision in the facility which provided that acceptance of the facility was proved by use of the account established in relation to the facility. The account documents showed frequent use of the facility. No evidence was put forward by Ms McCann that any other person was able to use or had used the facility if it was not her. She has still not provided any evidence concerning those matters.
(c) The Third and Fourth Facilities 49 These were the facilities that Ms McCann admitted at various times she had entered into. The Fourth Facility was the facility that substituted the National Australia Bank for the pre-existing mortgagee. Ms McCann claimed she had previously been with the Commonwealth Bank but the documents put forward by her on this application tended to show that it was Westpac which was replaced as the mortgagee. Nevertheless, Ms McCann accepted that the provision of at least the $560,000 of the Fourth Facility paid out a pre-existing liability on the property. 50 Despite accepting the Fourth Facility was entered into (and the evidence put forward in her affidavit of 30 July 2010 tends to prove that Ms McCann accepts that she entered into this Fourth Facility) the proposed Defence put forward is pleaded in identical terms to the earlier Defence I considered on the second application and which is set out in para [56] of that judgment. That Defence is inconsistent with the evidence that establishes that she entered into the Fourth Facility. It is inconsistent with the earlier Defence filed by her admitting to entry into the Third and Fourth Facilities.
(d) Further proposed Defence 51 Although the further proposed Defence put forward by Ms McCann is not in identical terms to that which was annexed to her affidavit of 21 May 2010 and considered by me in my earlier judgment, it is in substance the same. 52 The defence in relation to the First Facility was to be found in paragraphs 4, 3 (where secondly appearing), 4 (where secondly appearing), 5, 6, 7 and 8 of the earlier defence. The Defence in relation to this facility now put forward is contained in paragraphs 4-13. However, it pleads the same matters concerning the alleged influence of the Bank, the representations concerning Rivat, and the fact that she thought she was signing something different from what she in fact signed. Although some greater detail is provided in the particulars under paragraph 5 of the further proposed Defence, there is, as I have already noted, no evidence to support these matters to show that there is any defence on the merits. 53 The pleading in relation to the Second Facility in the further proposed Defence is the same as the pleading in the earlier form of the Defence, that is, a denial of entry into the matter. 54 In relation to the Third and Fourth Facilities, as I have noted earlier, the pleading now contained in paragraphs 25 and 26 of the further proposed Defence is in almost identical terms to what was contained in paragraph 21 of the earlier form of the Defence. 55 In relation to the payments of $33,627.76 and $92,744.00, the pleading now contained in paragraphs 27 and 33-35 of the further proposed Defence is in almost identical terms to what was contained in paragraphs 28 and 29 of the earlier form of the Defence. No effort has been made to clarify the problems that I identified in paras [61]-[64] of my earlier judgment in relation to these payments. 56 In my opinion, it is an abuse of process for Ms McCann to make a further application to set aside the judgment when neither the further proposed Defence nor the evidence put forward on this application differs from the form of the Defence and the evidence earlier put forward when the second application was made. It is not difficult to understand why the majority in Manning took the view that even putting forward evidence on a second application, which had been available at the time of the first but was not then put forward, did not constitute an abuse of process but went to the issue of discretion. The same cannot be said, however, of a further application which is as deficient as the earlier application, and where no real effort has been made to deal with the issues clearly pointed out in the earlier judgment that resulted in the earlier application failing. Making a further application on that basis seems to me to be unjustifiably oppressive to the other party and is a use of the Court's procedures which brings the administration of justice into disrepute. Further, even if Ms McCann's failure to avail herself of the opportunity on the previous application to bring forward the evidence she needed to show a defence on the merits was somehow excusable, the same cannot be said of the present application. 57 In the words of the plurality judgment in Aon at [112], she has had a sufficient opportunity to identify the issues she seeks to agitate and, I would add, to put forward the evidence that was necessary to show the merits of the defence she asserted. 58 I am not unmindful of the fact that Ms McCann appeared on this third application unrepresented. However, at various times she has had 2 different legal practitioners representing her. Furthermore, I made very clear in my earlier judgment where the deficiencies in the evidence lay as far as Ms McCann showing a defence on the merits to the claims made by the Bank. Despite that, Ms McCann has not led the evidence to cure those deficiencies. Whether that is because there is no evidence to lead or for some other reason, the failure to lead appropriate evidence to show that she has a defence on the merits in this third application to set aside the judgment, must mean that this application is an abuse of process.
Defence on the merits 59 If I am wrong in thinking that the present application is an abuse of process, I consider it should fail because Ms McCann has still not shown in respect of each of the facilities that she has a defence on the merits. I have largely dealt with the detail of this in considering the evidence in the previous section of this judgment. However, there are some further matters. 60 The Bank sought at the hearing of this application to read the whole of the affidavit of Rachel Tyson sworn 26 March 2009. At the hearing of the second application I declined to permit the Bank to rely on paragraphs 4, 6 and 8 of that affidavit together with annexures A, C and E referred to therein. This was because I did not consider, in the light of the late service of that affidavit, that Ms McCann had sufficient time to respond to it. She has now had since at least 9 July 2010 to respond to it. Annexures A and E are letters apparently written by Ms McCann to the Bank which acknowledge liability under the facilities. Ms McCann informed me that she did not write those letters but she has not filed any evidence to that effect. She has known since 9 July that the Bank wished to rely on those letters. She was present in Court on that day when the debate about them took place and her then counsel sought instructions from her about them. 61 Secondly, bank statements in relation to the Third Facility (Account Number 48-585-8127) tend to show disbursements for the benefit of Ms McCann. These bank statements are addressed to her at what she says is the correct address for her property "San Michael, 69 Silverwood Avenue, Luddenham". She leads no evidence explaining how it might be that correctly addressed material would not have come to her attention. It is to be recalled that both on this and the previous application Ms McCann made a great deal of the fact that mail did not reach her because it was "wrongly" addressed to 65 Silverwood Avenue and P.O. Box 9 Luddenham. There is no explanation about the use of that facility that suggests it was not for her benefit as the evidence suggests. That facility was also used to pay Westpac $82,265.86 of the total sum of $632,265.86 paid to it to discharge its mortgage. 62 Thirdly, Ms McCann accepts that she must repay to the NAB at least the facility to refinance the Westpac loan. That is the facility described by the Bank as the Fourth Facility. There has been no tender of that amount by Ms McCann nor, even if the 2 amounts of $92,744.00 and $33,627.76 are taken into account, any tender of the Fourth Facility less those amounts. That alone must entitle the Bank to possession of the property and means that there is no basis for setting aside the judgment for possession. 63 However, for the reasons I have already given, Ms McCann does not adduce any evidence to show that she has a defence on the merits to the claims based on the other facilities.
Delay 64 Ms McCann has provided no explanation why she failed on a number of occasions to comply with directions of the Registrar to serve all evidence on which she relied for both the first and second applications to set aside the judgment. She knew from the terms of my earlier judgment that those were significant failures and probably led to the dismissal of the first application by the Registrar. 65 The only further evidence she has led in relation to delays in the latter part of 2009 is the evidence showing some medication that she said she was on during that period. Even putting to one side the fact that the material annexed showed that 2 types of medication related to the year 2008, no medical evidence is led to show that the medication somehow inhibited her either from dealing with matters herself or from providing instructions to Mr Yakenian and/or her friend Mr Platcher. She provided no evidence dealing with the matters I made reference to in para [99] of my earlier judgment in that regard. 66 I said in my earlier judgment that I considered the delay by Ms McCann in the matter could be regarded as gross. In those circumstances, the failure on this third application to provide any explanation for the delay is a further and separate reason for refusing the present application.
Pro bono assistance 67 Ms McCann seeks in her Notice of Motion that the Court appoint pro bono legal assistance to her under Part 7 rule 36 UCPR. When the Notice of Motion came before me for mention, I said that I would decline to make a reference under that rule. I declined because Ms McCann has on 2 separate occasions had lawyers acting for her in the matter. As I have mentioned, at the hearing of her second application she was represented by counsel of many years experience. 68 Pro bono schemes operated by the Law Society of NSW and the NSW Bar Association have many demands made upon them by needy litigants who have no other access to legal assistance. I do not consider it fair to either those administering the schemes or to the other needy litigants to make a reference for someone who had already had 2 lawyers acting for her, and who was now making a third application to set aside a judgment where I had already held that no defence on the merits had been shown and no explanation given for the gross delays involved. 69 The closer examination of the material now put forward on this application strengthens the view I earlier held that a referral for pro bono assistance was not appropriate for this Applicant.
Stay 70 The Bank obtained a Writ of Possession. Pursuant to that Writ the Sheriff served a Notice to Vacate requiring Ms McCann to vacate the property by 10.30am on 14 October 2010. Ms McCann asked that, if I did not set aside the judgment, she be given until 30 October to vacate because she needed to relocate a large number of animals that were kept at the property. Commendably, the Bank did not resist the request for extra time, and indicated that they may be prepared to negotiate a further time in the event I refused Ms McCann's application.
(1) The Defendant's Notice of Motion filed 30 July 2010 is dismissed.
(2) Execution of the Writ of Possession is stayed until after 30 October 2010.
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.
National Australia Bank Ltd
McCann
(2009) 239 CLR 175
(2000) 50 NSWLR 139
(2009) 83 ALJR 384
The Defendant's Notice of Motion filed 30 July 2010 was dismissed. Execution of the Writ of Possession was stayed until after 30 October 2010. The Defendant was ordered to pay the Plaintiff's costs ([71]).