Grant and Gloria Mears are sued by the Sydney Anglican Schools Corporation trading as Roseville College ("the school") for unpaid fees arising from the attendance of their daughters at Roseville College up until 2007.
Mr Mears, who is self-represented, seeks to cross‑claim against the school and against its counsellor, Helen Firbank, in relation to the services provided by the school. The cross‑claim also includes a claim against the State of New South Wales for licensing Roseville College as an educational institution.
The causes of action underlying the claims against Mrs Firbank and the State of New South Wales are not disclosed in any properly pleaded cross‑claim.
Mr Mears filed a notice of motion on 13 July 2015 seeking orders in 14 paragraphs, although during the early part of the hearing today he submitted that the only matters he was prepared to deal with today were paras 8 and 9 of that notice of motion. After further submissions, he accepted that he could also deal with para 13.
Paragraphs 8, 9 and 13 are in the following terms:
"8 Leave to join as a party to the proceedings the STATE OF NSW, as: the BOARD OF STUDIES NSW (BOS) as it formerly existed at material times, in its current form as the Board of Studies Teaching and Educational Standards NSW (BOSTES).
9 Leave to join as a party to the proceedings Mrs HELEN DAPHNE FIRBANK, a registered psychologist, school teacher and school counsellor at material times.
…
13 Leave, in accord with orders and leave sought elsewhere hereinto, to accordingly and correspondingly amend the re-instated cross‑claim." [Emphasis in original].
The reinstated cross‑claim referred to in para 13 does not make reference to Mrs Firbank or the State of New South Wales. The purpose of the amendment mentioned in para 13 is to make a claim against them.
On 28 July 2015, Elkaim SC DCJ made orders in the following terms:
"1. The Notice of Motion filed by the defendants on 13 July 2015 is to be treated as a Notice of Motion seeking leave to join the State of New South Wales and Ms Helen Firbank as cross-defendants and leave to file a Cross-Claim against the plaintiff.
2. The defendants are to serve a proposed Cross-Claim on the plaintiff and the two proposed cross-defendants by 25 September 2015.
3. The defendants are to serve any affidavit evidence in support of the Notice of Motion including affidavit evidence concerning the limitation period by 25 September 2015.
4. The plaintiff and the proposed cross-defendants are to serve any evidence in reply by 9 October 2015.
5. The defendants' Notice of Motion referred to in Order 1 is set down for hearing on 23 October 2015.
…"
On 16 October 2015, Elkaim SC DCJ made further orders in the matter in the following terms:
"1. All affidavits upon which the defendant wishes to rely are to be served by 19 November 2015.
2. The hearing date of 23 October 2015 for the defendants' Notice of Motion filed on 13 July 2015 is vacated.
3. The Notice of Motion is listed for hearing on 26 November 2015 with an estimate of 3 hours.
4. The cross-defendants are to serve any material on which they rely by post provided that the material is posted by 24 November 2015.
5. The hearing of the Notice of Motion on 26 November 2015 is not to be adjourned by the defendants other than in exceptional circumstances.
6. Costs are reserved to the Judge hearing the Notice of Motion."
A "proposed Cross-Claim" has not been served on the plaintiff and the two proposed cross‑defendants by 25 September 2015 in accordance with the orders of 28 July 2015, or at all. During submissions, Mr Mears accepted that although various drafts of a cross‑claim had been created, some of which have been provided to the other parties, none of those documents sought to propound a cross‑claim in the form that Mr Mears sought to have filed.
Mr Mears indicated that the reason why no cross‑claim had been filed, served or created was because he was unable to do so until he obtained other documents. In this regard, I note that in paras 6, 7 and 10 of the notice of motion the following orders are sought:
"6 Leave to refer to business records, of the plaintiff/ cross‑defendant's and or the contents of same as sighted by the defendants/ cross‑claimants during the course of proceedings in the Local Court, with any amended defence or amended cross‑claim.
7 Leave to use and rely upon the business records and or the contents of any such documents produced by the plaintiff during the course of the Local Court proceedings.
…
10 Leave, generally, or as the Court directs, for the cross‑claimants/ defendants to have issued by the Court, subpoenas for production to the Court, of documents material to the progress of the matter, by the (first) cross‑defendant/ plaintiff, and by the respondents who the cross‑claimants/ defendants are herein seeking leave to have joined." [Emphasis in original].
No application has been made to excuse the default arising from the defendants' failure to comply with the orders of 28 July 2015 or to seek alternative orders bearing in mind the asserted need for the production of documents.
In relation to the documents, the plaintiff has indicated that all documents that it produced in relation to the Local Court proceedings remain with the court file and have not been returned to it. Mr Mears disputed this. It is the case that there were four boxes of documents in court along with the substantial file in this matter.
Granting leave to file a pleading customarily requires that a copy of the proposed pleading has been considered by the parties. That rule is evident in the orders made by Elkaim SC DCJ in respect of the service of a proposed cross‑claim. In the absence of such a document being created and provided to the other parties, it would be inappropriate for the Court to grant leave for the document to be filed. This rule was not at all times forcefully opposed by Mr Mears. Rather he was concerned that the Court make orders to progress the matter even though he submitted that he was unable, in part due to his absence of legal training, to draft an appropriate cross‑claim. He also submitted that he was unable to draft subpoenas to enable him to obtain documents that might assist him or others to draft an appropriate cross‑claim.
Be that as it may, in the absence of a document being available to the Court and served on the parties, in respect of which leave could be granted, I do not propose to make any order granting leave.
Accordingly, I propose to refuse to make orders in accordance with paras 8, 9 and 13 of the notice of motion. In my view, the existence of a proposed pleading is crucial in order for a grant of leave to satisfy the overriding purpose referred to in s 56 of the Civil Procedure Act 2005. It will not serve to bring the real issues of the proceedings to a quick, just and cheap conclusion if the cross‑claim continues without those real issues being clearly identified or having any real prospect of being identified. This remains the position whilst ever there is no proposed cross‑claim available.
The status of the residue of the motion is somewhat uncertain. Order 1 of Elkaim SC DCJ on 28 July 2015 may have reflected the circumstance that paras 8, 9 and 13 were the primary concerns of Mr Mears. However, there are matters that go beyond a joinder and amendment to the cross‑claim which have not properly been ventilated before me today and it is at least possible that Mr Mears seeks to maintain them.
In those circumstances, I propose to stand the matter over for directions in relation to the residue of the notice of motion to the Judicial Registrar on Thursday, 3 December 2015 and also for directions in relation to the proceedings generally.
As leave has been refused to join the proposed cross‑defendants or to file a cross‑claim against them, they should no longer be regarded as parties to the proceedings, if they ever were to be regarded as parties. In the absence of some further order, they are excused from further appearance in the proceedings.
Finally, as concerns the matter of costs, the defendants' application for leave to file a cross‑claim has been unsuccessful. Although there remain other matters in the motion, it seems to me in relation to the argument today, that the appropriate order should be that costs follow the event in accordance with r 42.1 of the Uniform Civil Procedure Rules 2005. Mr Mears should pay the costs of the argument concerning joinder and leave to file the cross‑claim. Otherwise the costs of the notice of motion are reserved.
Accordingly, the orders of the Court are:
1. Refuse to make orders 8, 9 and 13 of the defendants' notice of motion filed 13 July 2015.
2. Stand the matter over for directions in relation to the residue of the notice of motion (filed 13 July 2015) and for directions in relation to the proceedings generally on Thursday, 3 December 2015 at 9.30am before the Judicial Registrar.
3. The first defendant, Mr Mears, pay the plaintiff's and the respondents' costs of and incidental to the application for orders 8, 9 and 13 of the motion (the application for leave to join parties and amend the cross-claim) and including any such costs of those reserved on 16 October 2015 but otherwise the costs of the notice of motion are reserved.
4. The respondents have leave to enforce order (3) forthwith, as if the proceedings were concluded, and be otherwise excused from the proceedings in the absence of a further order, subject to order (5).
5. Stay orders (3) and (4) for 2 weeks and grant liberty to Mr Mears to make an application within 2 weeks regarding orders (3) and (4).
6. Note that should Mrs Mears seek in the future to be represented by Mr Mears on the basis that her interests are fairly served by Mr Mears acting for her, then an application to that effect should be made.
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Decision last updated: 04 February 2016
Parties
Applicant/Plaintiff:
Sydney Anglican Schools Corporation t/as Roseville College