Bank of Western Australia Ltd v McDonald [2012] NSWSC 717
Wardley Australia v Western Australia (1992) 175 CLR 514
Source
Original judgment source is linked above.
Catchwords
Bank of Western Australia Ltd v McDonald [2012] NSWSC 717
Wardley Australia v Western Australia (1992) 175 CLR 514
Judgment (2 paragraphs)
[1]
Judgment
By summons filed on 15 February 2021, Karl Williams (the plaintiff) appeals, or if and where necessary seeks leave to appeal, against a decision made by the Toronto Local Court on 14 January 2021. The decision was to strike out the plaintiff's statement of claim and dismiss civil proceedings he brought against Malcom Harrison (the defendant). The defendant is a property valuer who was retained by the plaintiff in Family Court proceedings that were resolved some years ago.
Williams v Harrison [2021] NSWSC 1488 | Case summary | Zoe
The conduct giving rise to the substantive proceedings in the Local Court arose from the defendant (on the plaintiff's case) changing his opinion as to the value of matrimonial property in the course of the Family Court Proceedings. Initially, the defendant provided a valuation of the relevant real estate and the plaintiff relied on the opinion in alleging that the sale of the estate breached two property orders. In evidence, the defendant (again, on the plaintiff's case) changed his position. It appears that the following exchange in cross-examination, taken from the Family Court transcript (reformatted by the writer in an attempt to achieve clarity), lies at the heart of the plaintiff's suit:
"Q: Against that background - I'm sorry. I need you to assume one more thing. I need you to assume there is in force a court order requiring the sale of this property - the subject property - and that - sorry, your Honour - and that the wording of that order is this. It requires the sale by private treaty for the best price reasonably obtainable in the current market. Assuming all of those things, you would agree with me, wouldn't you, that it would be reasonable for a vendor to accept a price of $530,000?
A: On the basis that it was for sale.
Q: Is that - am I reasonable in making that point? I'm not suggesting to you that it's anything other than what I've - the assumptions I've asked you to make, namely, that the order requiring the sale by private treaty for the best price reasonably obtainable in the current market?---
A: I can see that.
Q: And when you say you can see that, are you saying that you accept---?
A: --- I certainly accept it. No problem.
Thank you.
HIS HONOUR: I'm sorry. I'm not sure I understand what you accept. Are you accepting that that would be the best price reasonably obtainable in the then current market?
A: ---Well I would suggest that it was - if it was on the market for as long as it was, and there were sufficient and multiple groups of people through the property, then Mr Fox has made a fair call."
The effect of the above exchange is that the defendant changed his expert evidence by conceding that, in the circumstances put to him by the cross-examiner, his original valuation ($575,000) might be amended so that it was reasonable for the plaintiff's ex-wife to accept a lower offer in order to sell the property ($530,000).
The plaintiff's statement of claim in the Local Court purports to claim damages against the defendant. This judgment has nothing to do with the merits of that claim. Nor has there been any decision of the local Court determining its merits or whether it is arguable. I set out the evidence at the heart of the controversy to put the current appeal in its factual context. There is no suggestion that the Magistrate dismissed the plaintiff's action because it was destined to fail, or hopeless and untenable, or otherwise pursuant to the Local Court's power to order summary dismissal of proceedings under Uniform Civil Procedure Rules 2005 (NSW) r 13.4. The parties' joint position is that the claim was struck out, not on the basis of its lack of substantive merit, but because it was statute barred under the Limitation Act 1969 (NSW).
The plaintiff asserts (under grounds 2 and 3) that he was denied of procedural fairness and natural justice. An appeal on that ground does not require the leave of the Court. [1]
There is no dispute that the statement of claim was struck out in the plaintiff's absence. There was a great deal of evidence, and information provided by the self-represented plaintiff in submissions and from the bar table, as to the reason he was not at Court or did not appear remotely by telephone or otherwise. I am not persuaded, in the circumstances, that this affects the outcome of this appeal.
A real issue for this Court in considering the appeal is the almost absolute lack of clarity as to what happened in the Local Court on 14 January 2021.
The solicitor who appeared for the defendant on the hearing of the appeal also appeared, apparently by telephone, in the Local Court. His accounts of what happened that day were inconsistent and confusing. I do not mean to be critical by saying this, and it is understandable that the precise details were hazy given the passage of time. However, he provided different accounts on a number of fundamental matters, for example:
Whether the Registrar or the Magistrate made the decision to summarily dismiss the plaintiff's claim.
Whether the matter was dealt with in open Court or in the Magistrate's chambers.
Whether he (the solicitor) spoke to the Magistrate by telephone in what was essentially a private call, or as a form of audio link to the courtroom.
The basis upon which the power to summarily dismiss the claim was exercised (although, as I have said, it seemed to be common ground in the end that it was on the basis that the claim was brought out of time).
To provide some examples of the confusion surrounding what happened in the Local Court, the transcript of the appeal hearing records the following:
"HIS HONOUR: … Perhaps I should just identify, Mr Glaser, which of the defences was ultimately pressed?
GLASER: I believe the registrar dismissed the statement of claim." [2]
…
"HIS HONOUR: Thank you. Again, in paragraph 1(d), is the relevant pleading, namely that it is statute barred?
GLASER: Yes, your Honour. That is one of the arguments.
HIS HONOUR: We will get to it and I am sorry to be so painstaking about this. It is very difficult for me to really understand what the case is about. As I do understand it, that is how you won the case?
GLASER: Your Honour, it was made - the decision was made by a registrar perhaps and I recall the registrar referring to all the aspects of our defence." [3]
…
"HIS HONOUR: Then who made the order, the registrar or the magistrate?
PLAINTIFF: I am of the understanding ---
GLASER: Your Honour, on that day I appeared by telephone. The plaintiff wasn't on the line. I wasn't too sure who I was speaking to. I thought it was the registrar, your Honour.
HIS HONOUR: So we don't know. Was that a court case, you know, like the sort of thing we are doing now?
GLASER: No. I believe it was a mention.
HIS HONOUR: You say that Mr Williams did not appear?
GLASER: Yes, your Honour.
HIS HONOUR: I just want to be clear about that. Mr Williams did not appear, you are agreeing with that proposition?
GLASER: Yes, I agree with that proposition, your Honour.
HIS HONOUR: Were any reasons given for these decisions?
GLASER: Verbally, the registrar or the court officer went through ---
HIS HONOUR: It is actually quite important, I think, whether it was the registrar or a court officer or the magistrate who made these orders or purported to make these orders because jurisdictional issues arise, as do questions of fairness, if Mr Williams wasn't present.
GLASER: Yes, your Honour. I believe it was the registrar." [4]
…
"GLASER: Your Honour, if I could assist?
HIS HONOUR: Yes, please.
GLASER: I am looking at my file note of 14 January 2021 in relation to a court appearance at 2.39pm.
HIS HONOUR: Yes.
GLASER: I appeared by telephone before Magistrate Barnett.
HIS HONOUR: Yes?
GLASER: His Honour referred to trouble concerning the cause of action in the amended statement of claim, referred to the Limitations Act, and he referred to the Act, the Limitation Act and Mr Williams was called several times.
HIS HONOUR: Sorry, say that again? I beg your pardon, Mr Glaser, I misheard you.
GLASER: My notes indicate that Mr Williams was called several times at 2.39pm and then proceedings were paused until 2.50pm to see if Mr Williams would appear.
HIS HONOUR: Who called him?
GLASER: The court officers. I am just looking at the file note that says 'Williams did not appear in court, was called several times', appears in my file notes.
HIS HONOUR: So it was actually Magistrate Barnett, so there is no issue of power?
GLASER: Yes, your Honour." [5]
These passages of the transcript show that there was real confusion over who made the order although I am satisfied, ultimately, that it was the Magistrate so that "no issue of power" arises.
The documents emanating from the Local Court registry are also confusing. A document dated 16 February is entitled "NOTICE OF ORDERS MADE". It says:
"On 14 January 2021 the following orders (and/or directions) were made:
Statement of Claim and Amended Statement of Claim struck out - outside limitation of 6 years. Costs of the Defendant of the cause to be paid by the Plaintiff as agreed or assessed.
[Signed]
Registrar
Orders made by Magistrate Barnett in Court". [6]
There is also a "JUDGMENT/ORDER" "ISSUED: 20 January 2021 10:05AM" which records:
"Statement of Claim and Amended Statement of Claim struck out - outside limitation of 6 years. Costs of the Defendant of the cause to be paid by the Plaintiff as agreed or assessed." [7]
That document indicates the order was "made or given" on 14 January 2021 and "entered" on 15 January 2021. It is unsigned but refers to the signatory as "J Bourne" in their capacity as Registrar and bears the date 20 January 2021.
The plaintiff, who was not present on the day, attempted to obtain a transcript to find out what happened and to include it in the court book for this appeal. He received a response on 13 April 2021 in the following terms:
"Good afternoon, Mr Williams.
I am writing to confirm that we are unable to supply a transcript for the requested date of 14 January 2021 as on this date the matter was dealt with by the magistrate in chambers in the absence of the parties.
Yours faithfully,
Lachlan Jenkins
Acting Registrar at the Toronto Local Court." [8]
After the hearing, and with the parties' consent, [9] my Associate attempted to obtain a transcript of the proceedings. She met with no success. On 29 July 2021 a clerk at the Registry at Toronto Local Court confirmed there was no transcript available because the decision was made "in chambers" by Magistrate Barnett following no appearance by the plaintiff at 2.30pm. Further correspondence confirmed that the defendant's legal representative appeared via telephone.
Upon receipt of this information, I invited further submissions from the parties. The plaintiff provided a brief submission dated 8 August 2021 requesting that his matter be remitted to Toronto Local Court in light of the transcript being unavailable. The defendant did not provide further submissions
It appears that the document the terms of which are reproduced at [11] above is incorrect insofar as it suggests the case was dealt with "in court". It also appears that no record of the proceedings was made or kept. As a result:
It is not clear whether the case was dealt with in open court, the Registry office, or in the Magistrate's private chambers.
It is not clear whether the defendant's solicitor made submissions by telephone in Court or in what was, in effect, a private telephone call with either the Magistrate or the Registrar.
There is no record of reasons the matter was dealt with on an ex parte basis or what attempts were made to allow the plaintiff to be represented.
The one thing that is clear is that the Local Court struck out the statement of claim on the singular basis that it was brought out of time. There were other bases upon which summary dismissal may have been appropriate, but it is apparent that these bases were not employed.
If the limitation issue was clear beyond dispute, then it may be that the Court could accept the defendant's contention that the plaintiff's appeal should be dismissed. However, there is an issue in this case as to when the cause of action accrued. That issue is central in determining whether the six-year limitation period had expired by the time the statement of claim was filed. The defendant submitted that the cause of action accrued on 3 September 2014, being the date upon which the defendant gave evidence in the Family Court and made the statements or concessions at the heart of the plaintiff's claim. Initially, in his written submissions, the plaintiff adopted the same date but argued that he attempted to file the statement of claim on 2 September 2020, and therefore he had not breached the limitation period. I note, in passing, there is also some confusion as to the date the statement of claim was filed but that matter need not be expanded upon here other than to observe that it is unclear, other than by implication, whether this issue (if the Magistrate was aware of it) was resolved in the Local Court.
While the defendant's evidence was given on 3 September 2014, the decision of the Family Court and the resolution of the appeal that followed did not occur for some time thereafter. An ex tempore judgment of the Full Court of the Family Court was included in the appeal book. [10] Ainslie-Wallace J wrote the leading judgment and referred at [1] to the orders made by Johnston J on 16 November 2015 and his Honours reliance on the change of the defendant's evidence in coming to a decision. The relevant judgment of Johnson J was not included in the court book, although his Honour's costs judgment dated 27 May 2016 was included. [11] The costs judgment also refers to the decision dated 16 November 2015. [12] The Full Court's judgment was delivered ex tempore on 26 September 2017.
It is arguable that that any cause of action based on the evidence given on 3 September 2014 did not accrue until the decision was made in the Family Court at first instance, or until the appeal was finally disposed of. The cause of action purported to be in negligence. [13] Section 14 of the Limitation Act provides that a cause of action in tort "is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff." Neither the expression "first accrues" nor the word "accrue" is defined in the Limitation Act. However, it is accepted that the cause of action, in actions for negligence, does not accrue until actionable damage is sustained. [14] There are also questions around whether the damage was discoverable to the plaintiff, until receipt of reasons from the Family Court. It is at least arguable that the cause of action did not accrue until the decision was made by the Family Court.
In Wardley Australia v Western Australia (1992) 175 CLR 514; [1992] HCA 55, Toohey J referred (at 558-9) to "the difficulty and undesirability of trying to determine a limitation point in interlocutory proceedings, unless the position is clear beyond peradventure". Mason CJ, Dawson, Gaudron and McHugh JJ) said (at 533):
"We should...state in the plainest of terms that we regard it as undesirable that limitation questions of the kind under consideration should be decided in interlocutory proceedings in advance of the hearing of the action, except in the clearest of cases. Generally speaking, in such proceedings, insufficient is known of the damage sustained by the plaintiff and of the circumstances in which it was sustained to justify a confident answer to the question."
See also, for example, McDonald v Grech; Bank of Western Australia Ltd v McDonald [2012] NSWSC 717.
Unless there were good reasons to deal with the matter on an ex parte basis, the plaintiff was entitled to be heard on these issues. Apart from the fact that the plaintiff was not present on the day, a matter noted by the Registrar (or Assistant Registrar) in correspondence, no reasons for proceeding in the plaintiff's absence were provided (or if such reasons were given, they were not recorded).
The appeal presents difficulties for many unrelated reasons. First, there are other arguments that militate in favour of summary dismissal of the plaintiff's claim. It would be inappropriate for me to venture into those arguments. Second, the record of proceedings is woefully inadequate. Third, it is impossible for me to test or scrutinise the plaintiff's claims as to the reason he did not attend court. Fourth, and without criticism, the defendant's solicitor was unable to provide any insight into what happened at the Toronto Local Court on 14 January 2021.
Another difficulty is that it is not clear form the record which power under the Uniform Civil Procedure Rules to dismiss or strike out the plaintiff's claim was exercised by the learned Magistrate. The relevant orders could conceivably have been made pursuant to Uniform Civil Procedure Rule 13.4 (summary dismissal of a claim), 13.6 (dismissal for non-appearance), 14.28 (strike-out of pleadings) or under r 4.4 of the Local Court Rules 2009 (NSW) (summary stay or dismissal). As to the power under rule 13.6, to dismiss proceedings because the plaintiff does not appear, the pre-requisites for the exercise of that power do not appear to have been established or, once again, if they were established there is no record to that effect.
The plaintiff is self-represented and the documents he has filed - both in the Local Court and on this appeal - lack legal finesse. However, despite the difficulties in discerning the precise import and scope of the plaintiff's grounds of appeal, what is clear is that he asserts that the Magistrate erred in law because the plaintiff was denied procedural fairness (or natural justice). On the material before me, inadequate as it is, I am satisfied that the plaintiff was denied procedural fairness. He had a right to be heard and was not. He had a right to adequate reasons, and received none. There were no reasons provided for the decision to proceed in the plaintiff's absence or to illuminate the reasoning for the Magistrate's determination as to when the cause of action accrued, preceding the determination that it was statute barred.
It is accepted that the Magistrate was probably dealing with many other matters and that the plaintiff failed to appear at court, or by way of video link or telephone. However, the records maintained by the Court and the incomplete memory of the solicitor who appeared on the other side, make it impossible to determine whether the case was dealt with according to law and the basic requirements of procedural fairness. His claim may prove to have no merit but the absence of any reasons as to why the case was disposed of ex parte is a matter of concern. The records of the Court and its orders, and the information provided by the defendant's lawyer, does not allow me to conclude that the plaintiff abandoned his right to be heard.
The appeal will be allowed and the decision of the Local Court to strike out (or dismiss) the statement of claim will be quashed. The matter will be remitted to the Local Court at Toronto to be determined according to law.
The plaintiff wrote to my Associate on 13 September 2021 requesting costs, in the amount of the court filing fee. I will make no order as to costs for the following reasons:
The plaintiff is self-represented.
The plaintiff failed to appear in the Local Court and the explanations for that failure have not been tested.
There are substantial questions remaining concerning the merit of the plaintiff's claim.
The defendant has not been heard on the question of costs.
If the plaintiff ultimately succeeds, the Local Court may order the defendant to pay the plaintiff's costs on this appeal, that is the filing free to institute the proceedings. On the other hand, if the plaintiff's claim is ultimately dismissed, either summarily or after a hearing on the merits, any costs order in the defendant's favour should not include the costs of this appeal.
For the foregoing reasons, I make the following orders:
1. The appeal is allowed.
2. The decision of the Toronto Local Court on 14 January 2021 striking out the plaintiff's claim is quashed.
3. The defendant's notice of motion for summary dismissal is remitted to the Toronto Local Court to be dealt with according to law.
4. No order as to costs.
[2]
Endnotes
Local Court Act 2007 (NSW) ss 39-40.
Tcpt, 29/07/21, p 17.
Tcpt, 29/07/21, p 17.
Tcpt, 29/07/21, pp 19-20.
Tcpt, 29/07/21, pp 21-22.
Exhibit A (Court Book), p 2. The size of the font, and the small print at the bottom, reflects the formatting in the original document.
Exhibit A (Court Book), p 82.
Tcpt, 29/07/21, p 23; Plaintiff's affidavit filed 27 April 2021 Annexure A.
Tcpt, 29/07/21, p 32.
Exhibit A (Court Book), pp 38-42.
Exhibit A (Court Book), pp 29-34.
Exhibit A (Court Book), p 29 paragraph [2].
Exhibit C, Annexure A.
See, for example, Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245.
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Decision last updated: 18 November 2021