WESTPAC BANKING CORPORATION -v- FIGLIOMENI [2024] WASC 292 | Case summary

Supreme Court of WA|2024-08-15|Before: Ms P

The Application was filed on 14 March 2024, a little over nine months after the defendant entered an appearance on 30 May 2023.
I accept that the plaintiff proceeded on the basis that it did not consider it necessary to seek leave to bring the Application out of time. This is because, as outlined in its written submissions, the plaintiff understood that leave had been granted for it to bring any application for summary judgment by 15 March 2024. The plaintiff relied on the order made on 12 December 2023 by a registrar of the court, set out in [12] and reproduced below, for ease of reference:
1. The plaintiff has leave, pursuant to Order 14, Rule 2 (sic) of the Rules of the Supreme Court 1971 (WA), to make an application for summary judgment (if any), which application must be filed and served by 15 March 2024.
The usual practice of the court is for applications for summary judgment to be determined by a judge or master as such do not fall within the jurisdiction of a registrar, as prescribed in O 60A RSC. It follows, in my view, that the grant of leave to bring an application for summary judgment later than 21 days after an appearance is filed, under O 14, r 1, is a matter to be determined by a judge or master. This was accepted by counsel appearing for the plaintiff.
Although the plaintiff has not adduced evidence in support of an application for leave and explaining the delay in bringing the Application, I am satisfied that, in the circumstances of this case, it is appropriate to extend the time for bringing the Application.
There was a delay in bringing the Application, but it is not an undue delay. I accept the submission made on behalf of the plaintiff to the effect that it may be inferred from the procedural history that a significant amount of the delay was to afford the defendant time and the opportunity to file a defence.
The Application was still brought at an early stage of the proceeding, within a relatively short time of the Defence being filed, and by the date the plaintiff understood it was required to make the Application under the orders made. There is no evidence of any prejudice to the defendant caused by the delay in bringing the Application.

For these reasons, I was satisfied at the hearing on 13 August 2024 that the time for bringing the Application should be extended and that summary judgment should be entered for the plaintiff.
The plaintiff also sought an order for costs of the Application and of the proceeding on an indemnity basis, pursuant to cl B1(b) of the Memorandum.
I am satisfied that the plaintiff is entitled to an order for costs to be paid under that provision, which relevantly provides that the defendant promises to pay to the plaintiff all reasonable amounts which the plaintiff reasonably incurs in relation to enforcement of the Mortgage. Amongst the other things stated, this includes legal fees on a full indemnity basis and GST on any such amounts.
I made the following orders:
1. The plaintiff has leave to bring the Application pursuant to Order 14, rule 1 of the Rules of the Supreme Court 1971 (WA) (RSC), the time for which is extended to 14 March 2024.
2. Pursuant to Order 14, rule 3 RSC, judgment is entered for the plaintiff against the defendant.
3. By 10 September 2024, the defendant is to deliver up to the plaintiff vacant possession of all of that land known as 4571 West Swan Road, West Swan in the State of Western Australia, more particularly described as Lot 83 on Deposited Plan 404715 and being the whole of the land contained in Certificate of Title Volume 2872, Folio 293.
4. The defendant is to pay the plaintiff's costs of the Application and of the proceeding on an indemnity basis pursuant to clause B1(b) of the memorandum of common provisions incorporated into the mortgage between the plaintiff and defendant registered on 9 July 2015 (registration number N057728).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Rosemary Lemmens affirmed on 14 March 2024 [5], 'RL-1'.

[2] Affidavits of attempted service of Shane Hedley Shaw of writ of summons on Anna Liezyl Bubuli Figliomeni sworn on 30 January 2023 and 9 March 2023.

[3] Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 049 178) v Manolini [2019] WASC 313 [59] - [60].

[5] O 14 r 1(1) RSC; Cologna Investments Pty Ltd as trustee for the P. and D. Panizza Family Trust v Caranna [2023] WASC 368 [27].

[6] Westpac Banking Corporation v Anderson [2017] WASC 106 [38] (Pritchard J) and the authorities referred to.

[7] Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459.

[8] Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24].

[9] Westpac Banking Corporation v Anderson [53] - [54], [103]. See also Deputy Commissioner of Taxation v Lafferty [2017] WASC 257 [54] (Tottle J) and the authorities referred to.

[10]Deputy Commissioner of Taxation v Lafferty [54] citing Moscow Narodny Bank Ltd v Mosbert Finance (Aust) Pty Ltd [1976] WAR 109 (Brinsden J), 113; Wallingford v Mutual Society (1880) 5 App Cas 685, 704 (Lord Blackburn).

[12] Lemmens Affidavit [6] - [7], 'RL-2'.

[18] Lemmens Affidavit 'RL-2', pages 45 - 46, cl 16 'Default - Accelerated Payment of Amounts'.

[19] Lemmens Affidavit 'RL-2', pages 76 -77, cl B1 'Your Obligations, B1. What you Must Pay.'

[20] Lemmens Affidavit 'RL-2', pages 79 - 80, cl C2 'Powers on default'.

[24] Da Silva Affidavit [3] - [8], 'BDS-1', 'BDS-2', 'BDS-3'.

[25] Lemmens Affidavit 'RL-2', page 46, cl 18 'How Westpac gives Notices and Demands'.

[26] Da Silva Affidavit [7], 'BDS-1'.

[28] Chard Affidavit [4] - [6], 'BEC-1'.

[29] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].

[30] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).

[31] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51]; MTI v SUL [No 2] [2010] WASCA 58 [42] ‑ [43] (Newnes JA, with whom Pullin & Buss JJA agreed); Glew v Frank Jasper Pty Ltd [10].

[32] See for example Kelly v Fiander [2024] WASC 275 [26] ‑ [29] (Musikanth J); Kelly v Fiander [2023] WASC 187 [10] ‑ [13] (Vandongen J); Yap v Matic [No 7] [2023] WASC 55 [44] (Solomon J); Yap v Matic [No 4] [2022] WASC 422 [23] (Solomon J).

[33] Kelly v Fiander [2024] WASC 275 [29], and the authorities referred to.

[34] Connell v Australia and New Zealand Banking Group Limited [2023] WASCA 48 [24].

The defendant did not attend the hearing of the Application. Mr Nicola Figliomeni, who introduced himself as the defendant's husband, sought to appear or speak on behalf of the defendant, stating she was unable to attend due to work commitments. The defendant has been on notice of the hearing of the Application since it was listed for hearing on 11 July 2024. No application was made by the defendant to adjourn the hearing of the Application.
I did not grant leave for Mr Figliomeni to appear or speak on behalf of the defendant. There was no legitimate basis upon which I could do so. Mr Figliomeni is not a party to the proceeding. He stated that he had a power of attorney for the defendant. There is no evidence before the court of any power of attorney. In any event, as observed by Kenneth Martin J in Rural Bank (A Division of Bendigo and Adelaide Bank Limited (ACN 068 049 178) v Manolini:[3]
1. First, and most fundamentally, a power of attorney even if validly granted does not authorise any person who is not a duly certificated legal practitioner to speak at court on behalf of the person granting the power of attorney. See Waddington v Dandenong Magistrates' Court [2014] VSCA 12 [7]; Giniotis v Farrugia (Unreported, NSWCA, BC 8500603, 19 August 1985, page 3).
2. Second, and correlatively, a valid power of attorney might, at best, authorise the attorney so appointed to instruct a duly certificated legal practitioner to appear at court on behalf of the grantor of the power, whilst otherwise affording no rights to the donee to institute legal proceedings personally.
I was satisfied that the defendant had been served with the Application and supporting affidavits and given notice of the hearing of the Application. I proceeded to hear the Application in the absence of the defendant. Mr Figliomeni remained in court in the public gallery.

... Summary judgment will be granted only when there is no real question to be tried. The power to order summary judgment is one that should be exercised with great care: Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99. It is only in the clearest of cases, when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial, that summary judgment ought properly be granted: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57]; Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [46]; Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [24], [53] - [55].

I note that the defendant is a litigant in person. Although a memorandum of appearance was filed on her behalf by TGC Lawyers in May 2023, it is not clear whether that firm has taken any active role in representing the defendant for some time. I would not expect a legal practitioner to file a document in the nature of the Defence.
The defendant has been formally self-represented since filing her notice of change of representation on 27 June 2024. As a litigant in person, the defendant is entitled to some leniency in relation to compliance with the court rules.[29] It is appropriate that I approach the documents in which she articulates her case with some flexibility.[30] However, at the same time, I must ensure that any latitude given to her does not deprive the plaintiff of its right to procedural fairness and a fair hearing.[31]
Even allowing the defendant some latitude, she makes many assertions in the Defence which have no legal or evidentiary basis, are largely nonsensical and which have been described, in other decisions of this court, as 'psuedo-law'.[32]
Theories such as those advanced in the Defence and variants of such theories have, as observed by Musikanth J in Kelly v Fiander [2024] WASC 275,[33] been repeatedly rejected by Australian courts, including this court, having been variously described as 'nonsense', 'nonsensical', 'fundamentally misguided' and 'gobbledygook'.
The Defence contains broad allegations to the effect that, amongst other things, the plaintiff has engaged in fraud and has been deceptive, and that the remedy sought in the claim has placed the defendant at a disadvantage in the proceedings, has caused a miscarriage of justice and is an abuse of process. No facts are pleaded and no evidence has been adduced to support any of those contentions.
The Defence also makes statements to the effect that the 'Genuine Binding Financial Agreement signed in wet ink' has not been provided and discovery of all 'Genuine Original Instruments' is required to validate their existence.
The evidence adduced by the plaintiff includes what are deposed to as being true copies of the Loan Agreement and Mortgage signed by the defendant and the terms and conditions that apply to them. As the Court of Appeal stated in Connell v Australia and New Zealand Banking Group Limited,[34] it is sufficient for a bank to produce what is deposed to be a true copy of the original loan agreement signed by all parties to the agreement, without producing 'a wet-ink signed' document.

WESTPAC BANKING CORPORATION -v- FIGLIOMENI [2024] WASC 292 (15 August 2024)

At a glance

Court

Decision date

Before

Source

Judgment (26 paragraphs)

Legislation Cited (1)

Cases Cited (9)