Watiwat v Dixon

THE COURT: In November 2010 trustees were appointed to the bankrupt estate of the applicant’s wife, Ms Bernadita M Badillo-Watiwat. Since then, assets have been sold, including a house jointly owned by the applicant, Bienvenido Watiwat, and his bankrupt wife.

In October 2016 the applicant commenced proceedings against the trustees and those involved in the administration of Mrs Watiwat’s bankruptcy, together with the petitioning creditor (Lion Finance Pty Ltd). On 20 September 2017 Robb J dismissed the proceedings commenced by the applicant, pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). The applicant seeks leave to appeal from that judgment.

The applicant did not attend at the hearing of the application today. He indicated by telephone to the solicitor for the respondents that he had received no notice of the proceedings. As the court records indicate and as was pointed out to him by the respondents’ solicitor, he appeared before the Registrar on 5 February 2018 when the date was fixed for the hearing of the application, dealing only with the question of leave.

Mr Parsons appearing for the respondents seeks to have the matter dealt with today. Given the written submissions filed by both parties, the Court is in a position to do that. The matter should be disposed of without additional cost to the respondents.

The draft notice of appeal states: [1]

The proceedings were commenced by summons but, understandably, the Registrar ordered the applicant to file and serve a statement of claim. That was done, but when the defendants sought to strike it out in February 2017, the applicant obtained leave to file an amended statement of claim. On 29 March 2017 Ward CJ in Eq struck out the amended statement of claim but gave the applicant leave to file a further amended statement of claim. Justice Ward also referred the matter to the Registrar for referral for pro bono legal assistance. Assistance was provided by a barrister, but the applicant withdrew his instructions. In the judgment under appeal, Robb J stated, in explaining his reasons for refusing leave to file a further amended statement of claim: [2]

In her judgment of 29 March 2017, Ward CJ in Eq explained in some detail the failings in the pleading before her. [3] In his later judgment, Robb J also gave quite precise reasons why the pleading was inadequate. It is not necessary to repeat those reasons here, as the applicant did not engage with them or provide any basis in his written submissions upon which error might be discerned.

Although the proceedings have been summarily dismissed, without a hearing on the merits, the applicant is entitled to commence fresh proceedings. Robb J refused an order sought by the defendants barring the applicant from bringing fresh proceedings in relation to the same or substantially the same causes of action as originally pleaded without leave of the Court. [4] That fact substantially removes the basis of any potential injustice flowing from the other orders.

There are two reasons why leave to appeal should be refused. First, the Court seeks to keep a tight rein upon applications for leave to appeal from an exercise of discretion on a point of practice or procedure which is not determinative of substantive rights. [5] Secondly, in terms of the criteria explained in Be Financial Pty Ltd atf Be Financial Operations Trust v Das, [6] this is not a case which involves any issue of principle, nor any question of general public importance, nor an error which is more than merely arguable.

In these circumstances leave to appeal should be refused. The Court makes the following orders: