Plaintiff v Defendants

Plaintiff v Defendants - [2012] VSC 362 - VSC 2012 case summary — Zoe

[5]

It is important to bear in mind the reason why the requirement of special leave was introduced. It was introduced to stop the mischief of a party using the hearing before the Master as a dry run and, depending on the result, appealing and, on the appeal, filing additional affidavits to bolster its case in light of the arguments presented to the Master and the Master's reasons for decision. This became all too common an occurrence. It could cause vexation to another party in terms of time and costs, and it could take up an unreasonable amount of a Judge's time when there might not have been an appeal if the case had been properly presented to the Master. In short, in many cases it constituted an unreasonable taking advantage of the fact that under Rule 77.05(7) an appeal is by re-hearing de novo.[2]

In that case his Honour refused to give special leave saying:

In my view special leave should be refused. There are several reasons for this conclusion.

First, the present proceeding is the very sort of case for which the requirement of special leave was introduced. It is a case in which the applicant for relief, represented by solicitors and experienced counsel, elected to press on before the Senior Master, deliberately refusing the opportunity to adjourn the proceeding to consider whether it ought to file further affidavits to establish a genuine dispute and an offsetting claim.

Secondly, that election was made in the context, clearly exposed by the proposed further affidavits, but obvious enough from Pullar's affidavits filed before the Senior Master, of an awareness of defects in the irrigation system, and with knowledge that advice on quantum was required.

Thirdly, the subject matter of the further affidavits in respect of which special leave is now sought, in particular that with which Love and Jones are concerned, is the very matter which Pullar and Brownport's legal advisers had in mind from at least the time of preparation of the County Court Writ which was filed in April 2002. The subject-matter is not something new, or of a kind that was not or could not have been in contemplation when the case was before the Senior Master.

Fourthly, Brownport provided no evidence to explain why it had elected to proceed before the Senior Master rather than adjourn to obtain the additional affidavit evidence to establish a genuine dispute or an offsetting claim, and on which further affidavits it now seeks to rely to establish those very matters. Merely making the application for special leave does not constitute evidence, let alone an explanation. The further affidavits do not explain the course adopted or why special leave should now be granted. Brownport's position was put in sharp perspective by its counsel when he said, at the end of his submissions, that:

[10]

The classic statement of what amounts to "special grounds" within the meaning of Ord. 59, r. 10 (2), comes from the judgment of Denning L.J. (as he then was) in Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 W.L.R. 1489, and was expressly approved by your Lordships' House in Skone v Skone [1971] 1 W.L.R. 812 in the speech of Lord Hodson, at p. 815. with which all the other members of the Appellate Committee agreed. The statement reads, at p. 1491:

"To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

In the situation arising on an appeal to the Court of Appeal from a summary judgment, the application of these conditions and perhaps the conditions themselves will require some modification. It may well be that the standard of diligence required of a defendant preparing his case in opposition to a summons for summary judgment, especially if under pressure of time, will not be so high as that required in preparing for trial. The second and third conditions will no doubt be satisfied if the further evidence tendered is sufficient, according to the ordinary principles applied on applications for summary judgment, to raise a triable issue.

But I can see no injustice at all in requiring a defendant to use such diligence as is reasonable in the circumstances to put before the judge on the hearing of the summons, albeit in summary form, all the evidence he relies on in defence, whereas it would be a great injustice to the plaintiff to allow the defendant to introduce for the first time on appeal evidence which was readily available at the hearing of the summons but was not produced.[12]

[13]

5 The additional material now sought to be relied upon in this proceeding is directed to what was described as a need to correct the means by which certain matters pleaded in the defendants' Defence and Counterclaim had to be verified in an application for summary judgment under s 63 of the Civil Procedure Act 2010 (Vic) and Rule 22.02 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The application for summary judgment under those provisions was heard by Gardiner AsJ on 14 December 2011. The plaintiff had filed two affidavits sworn 27 October 2011 in support of its application and the defendant had filed two affidavits sworn by its solicitor, Mr Warren, on 9 December 2011 and 13 December 2011. The view had been taken by the defendants' legal advisors that it was sufficient to verify matters for the purposes of the proceeding before Gardiner AsJ by relying upon affidavits by a solicitor containing statements based upon information and belief. In the proceeding before me Mr Warren swore a further affidavit explaining that he believed at the time that the defendants were entitled to show cause against the plaintiff's application for judgment pursuant to those provisions by affidavit containing statements based on information and belief. Mr Warren went on to add that this belief had been confirmed by Junior Counsel. His Honour's decision to grant summary judgment upon the plaintiff's application was based in part upon the conclusion that the material relied upon by the defendants was not sufficient evidence to persuade him against ordering summary judgment. The plaintiff had been critical of the defendants' approach to the evidence tendered in answer to its application and had submitted to that effect, at some length, in the proceeding before his Honour. No application was made before his Honour to correct or to add to the material which the defendants relied upon in that proceeding. The hearing was conducted before his Honour upon the basis that put in issue the state of the material upon which the defendants sought to rely. Senior Counsel for the defendants submitted that in the application for special leave I should assume that Gardiner AsJ was correct to have regarded the proofs tendered through Mr Warren as insufficient to meet the application for summary judgment.

[14]

6 The proceeding was commenced after an earlier proceeding[16] in which Portbury Development Co (the plaintiff in this proceeding, and the defendant in the earlier proceeding), had successfully obtained summary judgment from Dixon J on 27 May 2011. Both proceedings arose from a contract for the purchase of property in December 2008 which was not completed. In the earlier proceeding the present defendant, Ottedin Investments Pty Ltd, had sought a declaration for the repayment of a deposit in respect of the sale of land. In this proceeding the present plaintiff, Portbury Development Co, seeks to recover the shortfall from the subsequent re-sale of the property. Summary judgment in the earlier proceeding for the present plaintiff, Portbury Development Co, was given on 27 May 2011 from a hearing on 13 May 2011. The present proceeding was commenced in July 2011. The plaintiff's application for summary judgment was first foreshadowed on 20 October 2011 and initially given a special fixture on 24 November 2011. On 27 October 2011 the defendants gave the plaintiff a proposed Amended Defence and Counterclaim signed by Senior and Junior Counsel containing paragraphs and particulars challenging the plaintiff's process in the re-sale of the property, upon which its damages claim was based. On 10 November 2011 the plaintiff issued its application for summary judgment which was made returnable on 14 December 2011 as a special fixture for one day. The plaintiff served upon the defendants the two affidavits of Francis Lynch and Susan Kelly, each sworn 27 October 2011, upon which it relied in that application. The affidavits of Mr Warren were not filed on behalf of the defendants until 9 December 2011 and 13 December 2011 and contained the entirety of the evidence upon which the defendants sought to rely for the allegations in para 44 of the Amended Defence and Counterclaim filed 27 October 2011 impugning the process in the re-sale of the property. The decision of Gardiner AsJ was delivered on 21 June 2012 and on that occasion Junior Counsel for the defendant announced that the defendant would appeal the decision. A Notice of Appeal was filed on 28 June 2012.

[15]

7 This is not a case where a party seeking summary judgment had failed because of what may fairly be described as an irregularity[17] in the applicant's material or would fail because of an absence of material in response to a highly technical issue raised in the course of the hearing.[18] It is, rather, a case of a party to a commercial dispute, in which there had been pre-existing litigation and judgment, having decided to meet an application for summary judgment, and then to maintain its case against summary judgment at the hearing, upon the material as filed. The proceeding was commenced in July 2011 and an application for summary judgment was foreshadowed in court before Mukhtar AsJ on 20 October 2011. A special fixture on 24 November 2011 was first given on 20 October 2011 for the hearing of the application and the special fixture was subsequently changed to 14 December 2011, before Gardiner AsJ, to accommodate the defendants' legal representatives. The plaintiff filed evidence on the application by affidavits sworn by persons able to give direct evidence, and both before and during the hearing by Gardiner AsJ the plaintiff's counsel submitted that the defendants' evidence was insufficient to resist summary judgment. The facts are that a conscious decision had been made on behalf of the defendants to respond to the application for summary judgment on the basis only of the affidavits of Mr Warren. It had been his view that affidavits by him would be sufficient for meeting the application for summary judgment. That view was apparently confirmed to him by Junior Counsel appearing in that, and in this, proceeding. The decision to proceed on that basis was not inadvertent. The defendants, and its legal advisors, knew that the plaintiff would contend, and did contend, that the material was insufficient to resist the application for summary judgment. The proceeding nonetheless continued for the defendants upon that basis. Most of the evidence now sought to be tendered was always within the power of the defendants to have relied upon at the hearing and the defendants should not now be permitted to rely upon additional evidence as if the proceeding before the Associate Judge was no more than a trial run.[19]

At a glance

Court

Decision date

Before

Source

Judgment (40 paragraphs)

Parties

Legislation Cited (16)

Cases Cited (2)