Szanto v Bainton & Ors

Judgment 1HIS HONOUR : This is an application under Pt 36, r 36.15 of the Uniform Civil Procedure Rules to set aside orders made by Ward J on 25 August 2011 ( Szanto v Bainton [2011] NSWSC 985). 2Rule 36.15 provides: " 36.15 General power to set aside judgment or order (cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3) (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. " 3Ward J ordered that the plaintiff provide security for the costs of the first and second defendants in a sum of $55,000 inclusive of GST. Her Honour ordered that the proceedings be stayed until security for costs was provided and that the proceedings be dismissed if security for costs was not provided within six weeks of the date of the order. 4Ward J also ordered that the plaintiff's first amended statement of claim be struck out. Her Honour gave the plaintiff conditional leave to file and serve within eight weeks a further amended statement of claim limited to specified causes of action. Her Honour refused leave to the plaintiff to replead other causes of action. The conditions of the grant of leave to file a further amended statement of claim were that security for costs be provided in accordance with the preceding orders and that the plaintiff comply with an undertaking given at a hearing before me on 2 March 2011 to submit a contract to the Stamp Duties Office for stamping. 5In the argument before me the plaintiff, who is self-represented, re-agitated matters argued before Ward J. He submitted that her Honour erred in various respects, that the errors were of such seriousness that they amounted to irregularities such that it could be said that the judgment of 25 August 2011 was made irregularly. He also submitted that those errors demonstrated bias or, it may be, this is not clear, a case of reasonable apprehension of bias on the part of Ward J. 6The plaintiff also submitted that the first and second defendants had been guilty of improper conduct in the conduct of the litigation and that this was also a sufficient ground for an order to be made under r 36.15 setting aside the orders of 25 August 2011. 7In Perpetual Trustees Australia Limited v Heperu Pty Ltd (No. 2) [2009] NSWCA 387; (2009) 78 NSWLR 190, the Court of Appeal said (at [16] and [17]): " [16] The focus of Pt 36.15(1) is on the judgment or order that is attacked, and question is whether it was 'given, ... entered or ... made' irregularly etc. The focus is on irregularity in those steps, not on the merits of any decision, or the irregularity of other steps in the proceedings, or in the proceedings below. [17] The rule applies with particular force to default or consent judgments and orders, and those given or made ex parte. It can only have limited application to judgments and orders made or entered after a hearing on the merits at which all parties were represented and fully heard. " 8It is important that the power under r 36.15 not be used to bypass the ordinary avenues of appeal, or applications for leave to appeal. It is not sufficient for the moving party to demonstrate errors, let alone merely arguable errors, in the judgment in question. 9The plaintiff submitted that he had not been properly heard before Ward J and that the submissions that he made before her Honour had not been properly understood. He submitted that where it appears that the Court has proceeded according to some misapprehension of the facts or the relevant law and this misapprehension cannot be attributed solely to the neglect or failure of the party seeking the rehearing, the orders should be reconsidered and set aside. He referred in this respect to Autodesk Inc v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300 per Mason CJ at 301-302. However, this is not a case in which an application is made to the court that has determined the matter, but whose orders have not been entered, for a judgment to be reconsidered. Rather, it is an application to set aside orders that have been entered. In my view the principles of Autodesk Inc v Dyason (No. 2) are not applicable to the present circumstance. 10Part of the plaintiff's application was based upon the refusal of Ward J to accede to the plaintiff's application to adjourn the hearing that had been listed before her Honour on 12 August 2011. In support of that application the plaintiff had relied before her Honour on a number of matters. These included that the first and second defendants had issued a subpoena to the Department of Immigration to obtain details of the plaintiff's travel to and from Australia and the periods of his presence in this country. This was relevant to the question whether there was jurisdiction to order security for costs against the plaintiff as an overseas resident. The plaintiff contended that the first and second defendants were in breach of the rules in not serving on him as soon as practicable a copy of the subpoena issued to the Department of Immigration. The plaintiff also complained that, contrary to orders made by the Registrar on 25 May 2011, an affidavit of the first and second defendants' solicitor of 6 July 2011 had not been filed. The submissions to Ward J were made by the plaintiff, not in person, but by telephone link to Los Angeles. 11The plaintiff also contended that he had received extensive submissions by way of demurrer from counsel for the first and second defendants with which he was not in a position to deal. 12The first and second defendants' notice of motion filed on 11 May 2011 had sought, amongst other relief, orders that the statement of the first amended statement of claim be struck out on the basis that it disclosed no reasonable cause of action and on the basis that it had a tendency to cause embarrassment or delay or was otherwise an abuse of process. 13Ward J refused the application for adjournment. The same matters were raised on the argument today before me. This is not an appeal from her Honour's refusal of the adjournment. 14Insofar as her Honour's rejection of that application was said to indicate bias, or a reasonable apprehension of bias, that contention must be firmly rejected. Indeed, the material before her Honour, which is before me again today, was that the affidavit about whose non-filing the plaintiff complained had been served by email at the right time. It seems the affidavit was wrongly rejected by the counter staff in the Registry in reliance on the Supreme Court Practice Note SC Gen 4 and in apparent ignorance of the order of the Registrar that the affidavit be filed. In any event, the affidavit was filed before her Honour and is in the same terms as the affidavit that was served. There was no prejudice to the plaintiff from the non-filing of that affidavit. It did not bespeak any improper conduct on the defendants' part. 15In relation to the subpoena, the material before her Honour was that the copy of the subpoena was served on the plaintiff, albeit late. Nonetheless it was served before the return date. Although the plaintiff, by email correspondence, foreshadowed making an application for the setting aside of the subpoena, no such application was made. Nor would there have been any sound basis for such an application, so far as it appears. 16So far as the service of the submissions of counsel for the defendant is concerned, the Registrar had made a timetable for the exchange of submissions and the complaint seems to be as to the length of time provided for in that timetable. 17It could not properly be said that the rejection of the adjournment application bespoke bias, or a reasonable apprehension of bias. 18The plaintiff then submitted that Ward J was in error in the way with which her Honour dealt with the application for security for costs, and, although this was not at the forefront of the argument, with the way in which her Honour dealt with the application to strike out the statement of claim. The plaintiff referred in particular in oral argument to the following matters: