Togher & Anor v Alexander & Ors

The awareness and involvement of committee members of the proceedings

1. That is not to say that these other committee members were unaware of the proceeding prior to the reasons for judgment being published and orders. In the affidavit evidence before me on the applications: 1. Mr Graeme Peters (of Grace Missions) was aware that Mr Alexander had brought a claim (against Mr Harkness and Mr McClure) about the date it was filed (December 2017); and was also privy to Mr Harkness intention to bring a cross-claim against Mr Alexander (in January 2018); 2. Ms Bronwyn Hancock (SOCIA Church) Mr Timothy McCarthy (of SOCIA Church) and Mr Moyle (of SOCIA Church) were aware of the order for joinder at a point virtually contemporaneous to when the order was made. I have indicated that Mr King put forward no evidence before me. In the absence of such evidence, I would infer that he was in no worse position than Ms Hancock, Mr McCarthy and Mr Moyle. 3. In Ms Hancock's case, she accepts that she was aware of the Court's intention to join her prior to that order for joinder being made.
2. Further, prior to the order for joinder, all the members of the SOCIA committee swore affidavits for Mr Harkness and Mr McClure: 1. Ms Hancock - 27 November 2018; 2. Mr McCarthy - 22 November 2018; 3. Mr Andrew King - 21 November 2018; 4. Mr Andrew Moyle - 7 December 2018;
3. There was no affidavit served in the proceeding prepared by Mr Peters (of Grace Missions). In his affidavit in support of this application, he says he was, in effect, preoccupied with personal issues relating to a family member at the point of the trial [5] . That did not, to my mind, indicate that he was actually 'unavailable' to attend.
4. In the circumstances that occurred, only Ms Hancock gave evidence in the proceeding, as summarised in the reasons for judgment.

The pleadings

1. In practical terms, the cross-claims for Mr Alexander and Mr Harkness were explicable by the competing views as to what was the true nature of arrangements entered into between Mr Alexander, Mr Harkness and Mr McClure in March 2017 and the middle of 2017. Mr Alexander contended that an underwriting agreement was entered into at the former date. Mr Harkness and Mr McClure denied this, but said that an agreement was entered into in July 2016 whereby Grace Missions provided a loan advance to Mr Alexander.
2. Mr Alexander's cross-claim (filed on 21 December 2017) was not strictly compliant with rules of pleading (in this State). Beyond asserting the essential factual matters necessary to sustain the cause of action he relied upon, it travelled into matters for evidence. However, at no stage was any complaint made (by Mr Harkness or Mr McClure) that it was so defective on that account that it should be struck out or was unintelligible. Mr Alexander's cross-claim contained 84 paragraphs.
3. For present purposes, it is sufficient to note that not one of those paragraphs identified, by name, any or all of Bronwyn Hancock, Timothy McCarthy, Andrew Moyle and Andrew King (of SOCIA Group) or Graeme Peters (of Grace Missions). Further, where 'SOCIA Church' and 'Grace Missions' were referred to at all, within the body of the pleading, they were generally referred to in the context that they were entities with which Messrs McClure and Harkness held positions of office. In other words, in substance, all of the factual matters asserted about individuals in Mr Alexander's cross-claim raised allegations of fact against only Messrs McClure and Harkness.
4. In their Defence (filed by their solicitors), Messrs McClure and Harkness did not refer, directly or indirectly, to any of Bronwyn Hancock, Timothy McCarthy, Andrew Moyle and Andrew King (of SOCIA Group) or Graeme Peters (of Grace Missions).
5. Mr Harkness' cross-claim (filed 13 April 2018) pleaded a loan agreement which he (Mr Harkness) entered into with Mr Alexander on 24 July 2016. In substance, however, there was no doubt that as the proceeding continued, the reference was intended to be made to Grace Missions.
6. This cross-claim contained no factual matters, directly or indirectly, identifying conduct by Mr Graeme Peters.

Affidavit evidence

1. In preparation for the trial, Mr Alexander swore affidavits on 23 May 2018, 23 October 2018, 28 November 2018 and 20 February 2019. All were read at the trial. He also served affidavits from Ms Christiane Hill (his wife), Mr Timothy Wilson and Mr Goran Dojcinovic. These were all read as well.
2. Mr McClure and Mr Harkness swore two affidavits. They also served affidavits from some of the applicants to these motions: Ms Hancock (27 November 2018 [6] ), Mr McCarthy, Mr King, Mr Moyle (and Ms Buckley - who is a third party to the proceeding). No affidavit was prepared by Mr Peters. No evidence was served at trial, by Mr McClure or Mr Harkness, which explained why he was unavailable to give evidence.
3. Only Ms Hancock was called to give evidence. She was cross-examined. Her evidence is summarised at paragraphs [185]-[191] of my reasons for judgment. To paraphrase, the predominant part of her affidavit evidence concerned her participation in and proof of a meeting of the SOCIA committee members that occurred on 31 July 2016. A minute was taken of that meeting and was put into evidence. The affidavit evidence of Messrs McCarthy, Hoyle and McCarthy was effectively corroborative of what occurred at the meeting on 31 July 2016. They were not called as witnesses.
4. It was only in his affidavit in reply (20 February 2019) that Mr Alexander made any reference to any or all of Mr Moyle or Ms Hancock. In substance, Mr Alexander responded to their affidavit evidence by saying that: 1. he believed that their evidence was inadmissible as either being irrelevant or hearsay; 2. any evidence Ms Hancock or Mr Moyle could give in relation to the events in the proceeding could only have been based upon what Messrs McClure and Harkness had informed them.
5. Mr Alexander did not respond to the affidavit evidence of Mr McCarthy or Mr King.
6. It may be seen from these events that: 1. It was no part of Mr Alexander's pleaded claim, and it was not part of any of the evidence served prior to trial on his behalf, to make assertions of fact about conduct of any of Ms Hancock, Mr McCarthy, Mr Moyle, Mr King or Mr Peters. 2. Mr McClure and Mr Harkness (when legally represented) had the opportunity to include in their respective affidavits, evidence from each of Ms Hancock, Mr McCarthy, Mr Moyle, and Mr King, in order to respond to Mr Alexander's claim against Mr McClure and Mr Harkness, based as that claim was upon the agreement that Mr Alexander contends was reached with SOCIA Church and Grace Missions in March 2016. 3. no explanation was given by Mr McClure or Mr Harkness at trial as to whether and why Mr Peters was unavailable to give evidence [7] .

The trial

1. Relatively early in the trial, and having regard to the circumstance that each of Mr Alexander, Mr Harkness and Mr McClure were unrepresented, I articulated (both verbally and, subsequently, by email to each of Mr Alexander, Mr Harkness and Mr McClure) my understanding as to what I saw the issues arising in the proceeding. I did so with the purpose of guiding each of these individual parties as to the scope of the evidence throughout the trial (and, particularly to try to limit or minimize evidence veering towards irrelevant matters not germane to the transactions in dispute between the parties). None of the parties suggested that the issues that I had then articulated fell outside the scope of the pleadings or were not 'triable'.
2. Eventually, I referred, in my reasons for judgment, to the issues that had been finally identified after the cases for the parties had closed. Those issues had been refined as the trial went on and I requested the litigants to direct their submissions to those issues (being): 1. whether I should accept Mr Alexander's account of a verbal conversation with Mr McClure and Mr Harkness in March 2016; 2. whether a verbal agreement (constituted by such conversation) was reached in March 2016 and, in particular: 1. who are the parties to the contract; 2. was there legal capacity in the parties to contract; 3. whether Mr McClure (and/or Mr Harkness) was authorised to bind SOCIA Church (through its committee of members) to an agreement with Mr Alexander 4. whether Mr Harkness was authorised to bind Grace Missions to any agreement with Mr Alexander; 5. what were the essential terms of the contract (including, without limitation, what was the consideration for any promises made on behalf of SOCIA Church or Grace Missions); 6. if such agreement was reached, was Mr Alexander authorised (by SOCIA Church or Grace Missions) to enter into contracts on their behalf the purposes of advancing the festival 1. was the said verbal agreement breached by SOCIA Church and/or Grace Missions; 2. what if any loss arises from such breach? In particular, our damages recoverable for loss of reputation? 3. Is there an issue estoppel arising from the compromise of the Partnership's claim against each of Messrs Alexander, McClure and Harkness (all on behalf of Grace Missions) that prevents Mr Alexander recovering against Messrs McClure and Harkness on his claim 4. if there was no agreement in March 2016, was an enforceable agreement reached on or about 31 July or 1 August 2016, in the terms alleged by Mr Harkness (in his cross-claim)? 5. If so: 1. was that agreement breached by Mr Alexander; 2. what, if any consequences that have in connection with Mr Alexander's claim?

The applicants' complaints

1. The applicants commonly complain that: 1. they have not been served with originating process 2. they have not been served with the affidavit evidence relied upon by Mr Alexander on his claim; 3. judgment and orders were made in their absence; 4. they were, in all the circumstances, denied procedural fairness.
2. In the cases of three of the applicants, they assert in their affidavits that certain findings within the summary of findings in the reasons for judgment were wrong and they have been deprived of the opportunity to put on evidence to prove that this is so. 1. Mr McCarthy specifically says that paragraphs 396(1), (2) and (3) are wrong; 2. Mr Moyle specifically says that paragraph 396(2) is wrong; 3. Mr Peters specifically says that paragraph 396 is wrong.
3. Ms Hancock did not specifically indicate, in her affidavit, any part of the reasons for judgment that she believes is wrong. She said (at paragraph 17) that, if given the opportunity, she would have filed a Defence and "evidence in support of the fact that Trevor (ie Mr Alexander) has no valid claim against me or against my church". She went on to say, in effect, that she would have given instructions for legal representation to appear for her to do all the things a legal representative would have been expected to do if she had representation.

The position of the added cross-defendants

1. At the outset of the hearing of these applications, I indicated to the added cross-defendants (and, in Mr Peters case, added cross-claimant) that I determined that the orders made on 24 June 2019 should be set aside as against the cross-defendants as they were not served, and did not appear, at the hearing. I can state my reasons for this determination briefly.
2. There was no proven service of the originating process (of Mr Alexander and of Mr Harkness) after the order for joinder was made, as required by the UCPR. That, I think, is dispositive of the application, since it amounts either to an irregularity (and therefore suffices to establish 'sufficient cause' for the purpose of r 36.15), or at least satisfied one threshold basis for the Court's jurisdiction to set aside orders, being that the judgment or orders is made in the absence of a party (for the purpose of r 36.16(2)(b) of the UCPR). A failure to serve a defendant with originating process is an example of an irregularity which entitles the defendant to have it set aside unconditionally: Hoskins v Van Den-Braak (1998) 43 NSWLR 290. Judgments entered contrary to a material requirement of court rules are irregular: Arnold v Forsythe [2012] NSWCA 18. The requirement to serve originating process is one such rule.
3. In opposition to this, Mr Alexander cites the actual wording of many of the rules, which, by their terms, confers discretion upon the Court to do certain things. He also cites a number of circumstances which suggests that the cross-defendants had the opportunity to object to joinder, were aware of the proceeding and chose to 'sit it out' in the expectation that Messrs McClure and Harkness would adequately represent the entities of which they were committee members.
4. In my view, however, the failure to serve originating process is an irregularity and, as the decision in Hoskins indicates, constitutes an irregularity of such nature as to suggest that orders made should be set aside as of right. In other words, the matter does not turn upon discretionary considerations (although, that said, I do consider that discretionary matters are relevant to any question of costs following the outcome of this application).
5. It is not, therefore, necessary, for me to consider whether any or all other provisions in the Court rules of the kind that Mr Harkness says were not complied with (rr 6.21, 6.28, 6.32, 10.1, 14.3), in relation to the position of these added cross-defendants, even if I was to assume that Mr McClure or Mr Harkness had standing to raise these rules on behalf of the other cross-defendants.

The position of Messrs McClure and Harkness

1. As I noted, in respect to his disqualification application, Mr Harkness complains that orders should have been made by the Court in respect to facilitating notice to the additional cross-defendants and opportunity for their participation in the proceeding. However, Mr Harkness does not say that he himself did not receive notice of Mr Alexander's claim, did not have opportunity to compile evidence, appear at trial, exercise rights of cross-examination and make submissions as to findings and orders that should follow from such findings. Patently he did.
2. Mr McClure did not put on evidence in support to his application to set aside of the kind given by Mr Harkness. But he was relevantly in the identical position to Mr Harkness.
3. Neither of the grounds in r 36.16(2)(a) or (c) of the UCPR apply to them. Mr Harkness submitted at the hearing, that the ground in r 36.12(b) was potentially available. He submitted that the wording of the provision does not preclude the possibility that a defendant (A) may have standing to apply set aside court orders where defendants (B) & (C) are absent. He cited no authority to support this proposition. He accepted that whether that was appropriate was a matter for the Court's discretion.
4. I would be surprised if the proposition is correct. Although in this case, it is true, there are close relationships between Messrs Harkness, McClure and the other cross-defendants who were added, such closeness in relationship or association between multiple defendants to a claim will not always be present. Further, in many cases, the actions against multiple defendants might be completely different. It would be hard to see how, for example, if defendants A and B were complete strangers, A might have standing to apply to set aside an order on the basis of B's absence even though the causes of action sued upon to judgment were unrelated. If the position was right, it might lead to the tactic of one defendant encouraging, and thereafter taking forensic advantage of, another defendant not to appear at a hearing.
5. Be that as it may, I do not find it necessary to consider this particular point. The real gravamen on the applications, by both Messrs Harkness and Mr McClure was their claim that they were denied procedural fairness. This is something I now consider in relation to r 36.15 of the UCPR.
6. As to r 36.15, an applicant who seeks to set aside a judgment or order under that provision needs to identify 'sufficient cause' on one or more of three alternative bases: 'irregularity', 'illegality' and 'good faith'. There is, in my view, any sensible suggestion that any illegality attended the making of the orders. As to 'good faith', this has been interpreted as misconduct or dishonourable conduct by the person procuring the judgment or order sought to be set aside (in this case Mr Alexander) [8] . There is nothing to suggest conduct by Mr Alexander of this kind.
7. That leaves the basis of 'irregularity'. It has been said that, for the purposes of r 36.15 of the UCPR, it has been held that any procedural irregularity will not itself authorise setting aside orders entered after a hearing on the merits where the parties were represented and fully heard: Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No.2) (2009) 78 NSWLR 190. Mr Harkness represented himself, and he was fully heard in the sense of being able to actively participate in the hearing, in the various senses described earlier.
8. Nevertheless, irregularity may be established where the applicant seeking to set aside the orders has been denied procedural fairness [9] . That said, a related, but separate, point is that 'irregularity' does not extend to errors attributable to the forensic decisions of parties [10] .
9. The application of Mr Harkness (and Mr McClure) centres upon the assertion that because the cross-defendants belatedly joined to Mr Alexander's claim and therefore did not participate in the trial, Mr Harkness and Mr McClure were denied procedural fairness.
10. In the circumstances I now turn to, in my opinion, they were not. This involves consideration of the pleadings, the issues identified, the way in which the 'joinder' question was and could have been approached, and the way that Messrs McClure and Harkness conducted their cases prior to trial.

The pleadings

1. First, as the claimant, significant responsibility rests upon Mr Alexander for his failure to join the added cross-defendants originally to his cross-claim. He had indeed erroneously joined the unincorporated entities, SOCIA Church and Grace Missions (until they were later removed prior to the trial). At the point of their removal, viewing his position objectively, he should have then acted to join the cross-defendants at that point.
2. Nevertheless, I do not regard the responsibility for joining the additional cross-defendants was exclusive to Mr Alexander. It was open to Messrs McClure and Harkness to plead, as a defence, (being a matter that I consider required pleading under r 14.14 of the UCPR) that if, contrary to their primary position that no agreement was reached in March 2016, there was an agreement that they reached with Mr Alexander, it had not been authorised by SOCIA Church and Grace Missions. That was a point which would have made Mr Alexander's claim, premised as it was upon the belief, or assumption, that an agreement was entered into with SOCIA Church and Grace Missions, not maintainable. Messrs McClure and Harkness did not do so, in their pleading or their evidence.
3. In contrast, in their evidence, they did make it clear that, according to their version of events, an agreement that they say was entered into in late July or early August 2016 had been authorised by the SOCIA Church. That argument was eventually not accepted, not because of any absence of proof of authority, but because no agreement was actually found to have been entered into with Mr Alexander.
4. In my view, it should have been apparent, well before the trial, to Messrs McClure and Harkness that the opportunity was available for them to allege and seek to prove that any agreement entered into with Mr Alexander, as Mr Alexander was alleged, was unauthorised and unenforceable for want of being authorised by other committee members of SOCIA Church and/or Grace Missions.
5. Had they done so, Mr Alexander would have been on notice and could have done a number of things. First, he might have said something in a Reply to the Defences to his cross-claim; he might possibly have been prompted to either apply to join other cross-defendants himself or, more probably, address in his affidavit evidence in chief in support of his cross-claim their positions. He might have invoked coercive court process, such as discovery, sought leave to administer interrogatories, serve notices to produce, subpoenas to give evidence against the additional cross-defendants.

Service of affidavit evidence

1. Mr Harkness and Mr McClure's omission to plead that they were unauthorised to enter any alleged agreement with Mr Alexander in March 2016 meant that by the time he served his affidavit in chief, there was no reason for Mr Alexander to say anything about the actual conduct of the additional cross-defendants who were later joined.
2. Then Messrs Harkness and McClure served their evidence in response to Mr Alexander's cross-claim (and in support of Mr Harkness' claim). Aside from their own affidavits, they served affidavits from all of the other cross-defendants who were later joined (other than Mr Peters). I have generally summarised the content of those affidavits above. The point, for present purposes, is that the gist of the evidence was intended to support Mr Harkness' cross-claim, which was centred upon the contention that although no agreement was entered into in the terms that Mr Alexander alleged in March 2016, a loan agreement was entered into with him in July or August 2016. Nevertheless, Messrs Harkness and McClure had the opportunity to adduce evidence from each of these cross-defendants to respond to Mr Alexander's pleading and affidavit evidence in chief to meet his case about the existence of an agreement in March 2016.
3. In his affidavit of 20 February 2019, Mr Alexander replied to some (but not all of) the affidavits of these other cross-defendants, In that affidavit, he made it plain that he was avowedly ignorant of the committee deliberations of SOCIA Church and Grace Missions.

Responsibility for joinder of added cross- defendants (and cross-claimant)

1. The rules which govern the joinder of parties are dealt with in Division 5 of Part 6 of the UCPR. The order I made for the joinder of the additional cross-defendants to Mr Alexander's cross-claim (and, in Mr Peters case, as a cross-claimant to Mr Harkness' claim) was made pursuant to r 6.24. As the terms of that rule suggest, the power may be exercised unilaterally ie without the necessity of a party making application for the joinder. However, other rules (especially rr 6.20 and 6.21), read in conjunction with a party's case management obligations (s 56(3) of the Civil Procedure Act), indicate the mutual responsibility of the parties to raise issues of joinder of parties to the Court.
2. The obligation to comply with Court rules applies no less to unrepresented litigants than litigants who are represented [11] . In this case, Mr Alexander has at all times been unrepresented. Messrs McClure and Harkness were represented by the firm Fox & Staniland Lawyers, at least from the period that their Defence was filed (13 April 2018) through to 2 May 2019, when a Notice of Ceasing to Act was filed [12] , shortly before the hearing commenced.
3. I say, again, that Mr Alexander was obliged to join all relevant cross-defendants to his claim. Nevertheless, in my opinion, in circumstances where no notice had been given to Mr Alexander that a point might be available, or taken, that any agreement entered into by them with Mr Alexander in March 2016 was unauthorised by the committees of SOCIA Church and Grace Missions, and where plainly such point would be of benefit to them and not to Mr Alexander, Messrs Harkness and McClure shared part of the responsibility for the joinder of the other committee members rested upon Messrs Harkness and McClure. This is all the more so where for virtually the entire period before trial, Messrs Harkness and McClure were legally represented; whereas Mr Alexander was not.

Identification of issues at trial

1. Then, at a still relatively early stage of the trial, all of Messrs Harkness, McClure and Alexander were, as I have indicated earlier, alerted to the Court's understanding of the issues. No one objected to them, or sought to correct them, or indicate that they did not understand them. No one later sought to clarify, correct or object to the statement of issues identified by the Court for their consideration just prior to their preparation of closing submissions.

Mr Harkness' and Mr McClure's submissions

1. With this background in mind, Mr Harkness submitted, in writing, that if the additional cross-defendants had the opportunity to participate and appear, he may have wanted to have amend his Defence and call some evidence.
2. Mr McClure did not put any submissions in writing, but spoke at length at the hearing of the motion.
3. Prior to their making their oral submissions, I informed Messrs Harkness and McClure that I was disposed to finding that the orders of the Court should be set aside as against each of Ms Hancock, Mr McCarthy, Mr Moyle, Mr King and Mr Peters.
4. That being so, both Messrs Harkness and McClure both submitted that it must follow that the Court's orders against them must also be set aside as well. They argued that if there was an irregularity affecting the orders against the others, so too, there was an irregularity affecting them as well.
5. I disagree. No authority was put to me in support of the proposition. It depends on the nature of the irregularity as to who is affected by it. The irregularity affecting the belatedly joined cross-defendants was the absence of service upon them of the originating process, the absence of notice to them of the hearing and lack of opportunity for them to participate. None of these matters were applicable to Messrs Harkness and McClure.
6. The real point of the application is that Messrs McClure and Harkness contend that they have been denied procedural fairness. They say that, from the date the joinder of the additional cross-defendants, the failure to take steps to ensure the appearance and active participation of the other cross-defendants, deprived them of the opportunity of obtaining a different outcome.
7. A common theme, and indeed submission expressly made by Mr McClure during the hearing of the motion, was that the entire procedural history of the litigation prior to the date that the order for joinder of these additional cross-defendants was made, is irrelevant and to be disregarded.
8. Procedural fairness, as has been stated many times, is essentially a matter of securing practical justice. In my view, the argument of Mr McClure (embraced by Mr Harkness) is too narrow. Rather, all of the considerations, including but not limited to, the possibility of a different outcome from the date of the joinder are to be weighed. But the possibility of a different outcome is not a matter to viewed in the abstract, but must be weighed against the consideration of whether the putative steps to secure the different outcome could and should have been obtained earlier.
9. Mr McClure says that he was entitled to know of the identity of the other cross-defendants prior to the trial. Mr McClure and Harkness submit that the joinder of the cross-defendants would have occasioned entitlements to amend his Defence or serve new evidence; or to rely upon the evidence and arguments that the cross-defendants might muster.
10. As to the first aspect, whether or not a defendant has the right to know of the identity of other defendants does not, in my view, practically take the matter anywhere. The more practical question is the consequence of the joinder of multiple cross-defendants to the position of the existing ones.
11. As to the second aspect, Messrs McClure and Harkness had no right, but would have required leave to amend and leave to serve further evidence; and a large question for the exercise of discretion was why they could not have acquired such evidence from them earlier than the time for application for more evidence. It was a 'large' question precisely because they had, in fact, obtained affidavit evidence from the other cross-defendants earlier. More than that, they also had the opportunity himself to use court process (subpoenas) to obtain documentary evidence from them. Whether leave would be granted depended upon a range of matters, including, relevantly the size of the claim (which was modest) and, pertinently (in the context of a proceeding that would go on to occupy 10 days' of hearing time) the public interest in the prompt resolution of litigation [13] .
12. Mr Harkness and Mr McClure did not seek to articulate, in the light of the evidence put before the Court of the added cross-defendants in support of their applications, what new evidentiary matters or arguments arose which would or could ground any new defences: (a) which they might have sought to add to their case; and (b) which they had not been able to procure from the added cross-defendants during the proceeding prior to the trial and the later joinder.
13. To reiterate, one of the matters notified to all the parties prior to the hearing of these motions was to familiarise themselves with the reasons for judgment I delivered on 4 June 2009. That judgment was delivered over six weeks ago. Since then, Mr Harkness has made very detailed written submissions, some of which specify, in detail, numerous provisions of the Court rules which he says were not complied with. I infer from this that either Mr Harkness himself has, at some point, acquired developed appreciation of court rules or that he prepared his written submissions with legal assistance. Precisely which of these inferences should be drawn does not relevantly matter for present purposes. In his written submissions, Mr Harkness referred to the theoretical possibility that some new evidence might have come from the involvement of the added cross-defendants, but did not seek to say that what that evidence was or why it could not have been obtained from the cross-defendants when they prepared affidavits on behalf of Messrs Harkness and McClure prior to trial.
14. At the hearing of this motion, I asked Mr McClure whether he was able to identify any factual findings I made in the reasons for judgment which: (a) could have been the subject of evidence from the additional cross-defendants; and (b) which of this evidence he (or Mr McClure) were unable to obtain from these additional cross-defendants when, with the assistance of their then lawyers, affidavits had been obtained from. Mr McClure referred me to the finding in the judgment that (at 396], but there was no explanation given by him that the circumstances leading to the absence or presence of his authority to enter the agreement alleged by Mr Alexander could not have been obtained from the other cross-defendants at the time that they gave evidence to support Mr Harkness' claim centred upon a different agreement with Mr Alexander.
15. Mr Harkness and Mr McClure both complain about what he said was an indication I had given, in justification for the joinder of the other cross-defendants that I had said it was a "technicality" and, in this regard, Mr Harkness said he had a confused understanding of what followed from it. Mr McClure said he was 'misled' by the reference. From this, both argue that they might have acted differently had they been more accurately informed about the consequence of the joinder.
16. At the time of this hearing, I have not seen the transcript of the case at trial [14] . I cannot therefore vouch for whether or not I used that description or not (or the context in which I used the word). But if I did use that word, even now, I do not consider it a wholly inaccurate attempt to describe, in a shorthand way (to then unrepresented litigants), my view that all committee members of an unincorporated association should have been joined. But what follows from the circumstance that I did say that word? The Court's primary function is to resolve disputes; not to give advice about the consequences of orders; or what others should do in the execution of the requirements of Court rules. To do might the run the of jeopardising my impartiality (no small thing, considering the no doubt sincerely held belief of Mr Harkness that throughout the trial I was 'favouring' Mr Alexander). There is a distinction, if not balance to be struck between a Judge trying to assist unrepresented litigants to understand the reasons for a procedural direction, and an unrepresented litigant presuming to be informed about steps they might wish to take in consequence of a procedural direction; and then, if dissatisfied with the ultimate result, harking back to say they were misled by the explanation and thereafter acted to their detriment. As it happens, following the joinder, an obligation fell upon Mr Alexander to serve the originating process. There was no obligation upon Messrs McClure and Harkness to do anything.
17. In my opinion, Messrs Harkness and McClure have sought to assimilate their positions with the other cross-defendants, when their positions are qualitatively different. They submit that a denial of procedural fairness to the other cross-defendants had 'knock on' effects for their ability to present their own cases, but did not articulate how. They could not say that they had no responsibility for the prior joinder of the additional cross-defendants. They did. They could not say that they had been deprived of the opportunity to obtain evidence from the other cross-defendants. With one exception, they did and, moreover, availed themselves of that opportunity. (In Mr Peters' case, though this was not apparent at trial, it appeared he did not want to provide evidence, as he was preoccupied with personal concerns). The proposition that anything raised by the added cross-defendants in hypothetical defences (had they been served) would have entitled them to amend their own defences, or entitle them to supplement their evidence, is speculative. They could not establish that anything that these additional cross-defendants might have wanted to have said, in their own defences, could not been obtained by them at the point during the preceding where the evidence from these other cross-defendants had been served on their behalf.
18. I do not consider that Mr Harkness and Mr McClure have been denied procedural fairness.
19. There being no further ground advanced for vacation of the orders made against them, I reject the applications of Mr Harkness and Mr McClure to set aside the Court's orders made against them on 24 June 2019.

STAY APPLICATION

1. The Court is empowered under s 67 (and/or s 135) of the Civil Procedure Act to stay execution of a judgment. It is well-established that a stay of execution pending appeal can be granted where a successful appeal would be rendered nugatory unless a stay is granted. Relevant factors include the improbability of an appellant recovering back the judgment amount from the respondent if the appeal was successful, the likelihood of an appeal succeeding, the size of the damages awarded at first instance.
2. There was no evidence by Mr Harkness or Mr McClure, on affidavit, to support their stay application. As to prospective grounds of appeal, and taking a broad view of Mr Harkness' affidavit on his disqualification application, he brings a complaint of actual bias is made against me. That would be a ground of appeal, but as I have indicated in my earlier reasons, I do not regard the strength of that ground, with nothing else, as supporting a stay. To the contrary, whatever be the grievances about my 'favouring' Mr Alexander, his complaint about bias runs into the not insignificant obstacle that, at no stage during the trial itself was any application made by Messrs McClure or Harkness to recuse myself. Nothing was put before me that went to the substantive findings in the judgment to suggest an appeal indicative of reasonable prospects of success. All that was put by Mr Harkness and Mr McClure were vague complaints that I should not have accepted Mr Alexander's version of events: that I "failed to perceive the true objective facts". I took that to be a complaint specifically about a finding of fact that an agreement was entered into with Mr Alexander in March 2016. But there was no articulation as to how I erred in reaching that finding, or otherwise "failed to perceive the true objective facts".
3. No evidence has been put before me to indicate Mr Alexander's current financial position; and thus the prospects that a judgment may not be recovered should the appeal be successful.
4. Plainly, the size of damages awarded to Mr Alexander is relatively modest.
5. Mr Harkness and Mr McClure have not offered any terms for a stay, such as the payment of part of the monetary judgment, or payment into Court, or offer for the provision of security.
6. On the basis of the evidence in support of the application, or lack thereof, I am not persuaded to impose a stay of execution.

Summary

1. I accede, in substance, to order 1 of Ms Hancock's motion (8 July 2019), which is substantially similar to the main relief sought by the other additional cross-defendants in their respective motions to set aside the Court's orders. I also propose to follow the precedent of Hoskins in relation to striking out the names of the additional cross-respondents out of Mr Alexander's claim and Mr Peter's name out of Mr Harkness' claim.
2. Subject to hearing from the parties, the orders I propose which give effect to these reasons are: 1. Mr Harkness's notice of motion dated 16 July 2019 is dismissed. 2. The notices of motion of Mr McCarthy and Mr Moyle dated 18 July 2019 are dismissed. 3. Orders 1 & 2 made on 24 June 2019 are varied to the extent that they are set aside as against each of Ms Hancock, Mr King, Mr McCarthy, Mr Moyle and Mr Peters in so far as Judgment was entered against each of them. 4. The names of Bronwyn Hancock, Graeme Peters, Andrew King, Andrew Moyle and Timothy McCarthy are struck out of Mr Alexander's cross claim and the name of Graeme Peters is struck out of Mr Harkness' cross-claim. 5. Mr Alexander's cross claim is dismissed as against Bronwyn Hancock, Graeme Peters, Andrew King, Andrew Moyle and Timothy McCarthy 6. I dismiss the applications for vacation of the orders of 24 June 2019 brought by Messrs McClure and Harkness. 7. I dismiss the applications for stay brought by Messrs McClure and Harkness.

Costs

1. The applicants who were joined belatedly have succeeded with their motion. All of them claim costs of the motion. However, only Ms Hancock was represented on the motion. None of the others are entitled to an order for costs [15] .
2. In relation to Ms Hancock's position, I order that 80% of her costs of her motion be paid and shared, in the proportions of 50% as to Mr Alexander and 50% as between Mr McClure and Mr Harkness.
3. My reasoning for this order is as follows. Mr Alexander did not serve his cross-claim against the added cross-defendants to his claim, as required by the rules. Neither did Mr Harkness serve his cross-claim. Further, neither Mr McClure nor Mr Harkness (through their then legal representatives) raised any point about the joinder question associated with Mr Alexander's (or Mr Harkness') cross-claims. In this day and age of civil litigation, the issue of the constitution of the proceedings, by the non-joinder of proper defendants, should not solely be the responsibility of claimants: it would cause great inconvenience and very likely amount to a non-compliance with a litigant's obligations under s 56 of the Civil Procedure Act if, say, it thought some other party should be joined without raising it to the appropriate party's attention. Finally, in circumstances where Ms Hancock was aware of her joinder, but was apparently prepared to rely upon Mr McClure or Mr Harkness' advice when she was joined, as to what consequences may flow to her, but did not take the opportunity of seeking independent legal advice (until after orders were made affecting her interests), I consider that by adopting this purely passive approach, she did not act reasonably in the protection of her own interests.

Endnotes

1. Separate reasons for the orders appear in Togher & Anor v Alexander & Ors (No.3) [2019] NSWDC 280).
2. Damjanovic v Maley (2002) 55 NSWLR 149
3. Vakauta v Kelly (1989) 167 CLR 568
4. Ebner v Official Trustee (2000) 205 CLR 337 at [19]
5. I note that throughout the trial and even in the directions hearing on 17 July 2019 statements were made by Mr Harkness and Mr McClure about their understanding that Mr Peters had health issues. No reference to health issues was contained in Mr Peters' affidavit in support of his application to set aside or stay the Court's orders.
6. A separate affidavit from Ms Hancock (29 January 2018) was also served. The subject matter of that affidavit concerned a personal complaint by Ms Hancock regarding the alleged (mis)treatment of a piano. That affidavit was not relevant to the issues relating to the two cross-claims before the Court. My recollection (unaided by transcript, which was not ordered by the parties and thereby not made available to the Court during the trial) was that if Ms Hancock sought to bring a claim in relation to this event, it would not be determined in this proceeding; but in return, Mr Alexander undertook not to raise any 'Anshun' estoppel defence from precluding her from doing so.
7. This led to a Jones v Dunkel inference being drawn against the executive committee of Grace Missions from its unexplained failure to call Mr Peters (at [319]).
8. Coles v Burke (1987) 10 NSWLR 429
9. Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38 at [85]
10. Dimitrovski v Australian Executor Trustees Ltd [2013] NSWSC 337 at [3]
11. Rajski v Scitec Corporation Pty Ltd (NSWCA, Unreported, 16 June 1986), approved in Nobarani v Mariconte [2018] HCA 36 at [47]
12. A notice of removal was filed on 6 May 2019.
13. UB SAG v Tyne [2018] HCA 45 at [46]
14. Reflecting the unfortunate reality in this Court that unless parties themselves request (and pay for) transcripts, they are not automatically made available for a Judge, at least in contemporaneous way.
15. Cachia v Hanes (1994) 179 CLR 403 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: 22 July 2019