National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority (No 2)

1. [1]

   HIS HONOUR: This judgment concerns an application by Ms Charlton by notice of motion filed on 28 February 2018 seeking a stay of proceedings in case number 2015/27843 pursuant to s 67 of the Civil Procedure Act 2005 (NSW), and a vacation of the hearing dates in the matter (“the notice of motion”). No stay application is brought in relation to the related proceedings for a cross application and judicial review.

2. [2]

   That application sought to stay proceedings which were listed for trial today (over 3 days) upon the basis that Ms Charlton intended to bring an appeal from a decision of the Court, as presently constituted, refusing an application for summary dismissal: see National Australia Bank Ltd v Charlton; Charlton v The General Manager, NSW Rural Assistance Authority [2018] NSWSC 157 (“Charlton No 1”).

3. [3]

   The notice of motion was initially before Lonergan J as duty judge who ordered that the notice of motion be stood over for hearing before the trial judge on 14 March 2018: see National Australia Bank Ltd v Charlton [2018] NSWSC 311 (“Charlton No 2”).

4. [4]

   No summons seeking leave to appeal has yet been filed although the time limit for filing of the same expires in 7 days. In the course of the hearing of the matter today, Ms Charlton indicated she had prepared a draft of the appeal. Despite an intimation that the draft may be produced in support of her application, she elected not to put that document before the Court. Nonetheless, arguments were advanced by Ms Charlton as to the central issues that she intended to advance on appeal.

BACKGROUND

1. [5]

   There are a number of relevant matters which by way of background can be drawn from the decision in Charlton No 1:

   1. (1)

      NAB commenced the debt and possession proceedings against Ms Charlton by way of a statement of claim filed 29 January 2015. By a statement of cross-claim brought on 9 July 2015 (and later amended on 2 August 2015) Ms Charlton, then as the first cross-claimant, and Kevin Michael O’Brien, as a second cross-claimant, brought a cross-claim in the debt and possession proceedings (see Charlton No 1 at [2]).

   2. (2)

      There were lengthy case management processes which are described in Charlton No 1 from [21]-[50]. Some particular aspects of the course of those proceedings follow.

   3. (3)

      On 2 June 2016, both the debt and possession and judicial review proceedings were listed for mention before Schmidt J. The following order was, inter alia, made: “The two sets of proceedings are to be heard together where evidence in one matter be evidence in the other.” (see Charlton No 1 at [21(9)]).

   4. (4)

      On 21 July 2017, the Court ordered that the parties be referred to mediation. In response to the orders of the Court, on 31 July 2017, Ms Charlton emailed Chambers of the Court to advise of an intention to appeal those orders. (see Charlton No 1 at [38]-[40]).

   5. (5)

      The matter was listed for directions on 24 August 2017 where NAB indicated that it consented to the vacation of the mediation order given the substantial delay that may be occasioned by any appeal. The application was subsequently withdrawn. The following orders, inter alia, were made:

   6. (6)

      On 6 September 2017, Ms Charlton emailed the notice of motion seeking summary judgment and the separation of the proceedings dated 5 September 2017 to the Court. The first prayer for relief extended beyond the scope of the leave afforded under order 4 (regarding the filing of a notice of motion) in that Ms Charlton sought summary judgment of the debt and possession proceedings: (see Charlton No 1 at [46]).

   7. (7)

      On 7 September 2017, NAB sought that the matter be listed for directions in respect of the notice of motion. The proceedings were listed for directions on 29 September 2017. Directions were made for the hearing of the notice of motion on that occasion but the Court emphasised that it had not vacated the hearing dates fixed: (see Charlton No 1 at [47]).

   8. (8)

      The motion was listed for hearing on 24 November 2017. (see Charlton No 1 at [48]).

   9. (9)

      The matter was listed for a pre-trial directions hearing on 4 December 2017 at which time the present hearing dates were fixed (see Charlton No 1 at [45]).

RELEVANT STATUTORY PROVISIONS AND PRINCIPLES

1. [6]

   Whilst the appeal is not before the Court, even in a draft form, the submissions of NAB to the effect that the appeal which, Ms Charlton contemplates requires, by its nature, the grant of leave may be accepted. Section 101(2)(e) of the Supreme Court Act 1970 (NSW) provides as follows:

2. [7]

   An order refusing summary dismissal, under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW), is an interlocutory decision for the purposes of that section: Wickstead v Browne (1992) 30 NSWLR 1; [1992] NSWCA 272 at 1; Weatherall v Satellite Receiving Systems (Australia) Pty Ltd (1999) 30 ACSR 698; [1999] FCA 218; Page v Mckensey [2004] NSWCA 437 at [30]; Macatangay v State of New South Wales (No 2) [2009] NSWCA 272; at [11]; Fokas v Mansfield (No 2) [2017] NSWCA 261 per White JA at [13]–[14]; Fokas v Mansfield (No 3) [2017] NSWCA 315 at [24]–[26].

3. [8]

   This stay is brought pursuant to s 67 of the Supreme Court Act, which provides:

4. [9]

   The learned authors in Ritchie’s Uniform Civil Procedure NSW note the following in regard to that section:

5. [10]

   NAB placed reliance upon on Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173 (“Hussain”), which was a case where the applicants moved on two notices of motion, the first of which sought an order that District Court proceedings be stayed, pending the determination of an appeal, and that the applicants file a summons for leave to appeal by a date specified by the Court.

6. [11]

   In Hussain, McColl J found the following (at [50]-[55] and [57]):

7. [12]

   In Welker & Ors v Rinehart & Anor (No 2) [2011] NSWSC 1238 (“Welker”), Brereton J found the following:

8. [13]

   In addition to the relevant considerations regarding prospects of success in Hussain at [53] and [57] and Welker at [57], reference should be made to the judgment of the Court of Appeal per Kirby P, Hope and McHugh JJA in Alexander v Cambridge Credit Corporation Ltd (Receiver Appointed) (1985) 2 NSWLR 685 (“Cambridge Credit”). The following remarks by the Court should introduce that reference (at 694):

9. [14]

   The key and often cited passage of the judgment as to prospects of success is as follows (at 695):

10. [15]

    The learned authors of Ritchie’s Uniform Civil Procedure made the following observations (at [51.44.15]):

CONSIDERATION

1. [16]

   The central tenant of Ms Charlton’s contention, in support of the stay application, was that the stay should be granted to permit her to bring an appeal from the judgment in Charlton No 1. Further, as the time for the bringing of such an appeal had not expired, as a matter of fairness, the hearing of the matter should not go forward, it was contended, until she was permitted to exercise any right to bring such an appeal. The time for the filing of an appeal had not expired (there being 7 days remaining).

2. [17]

   Further, it was contended, the Court should permit Ms Charlton to have a full opportunity to prosecute that appeal as there would be ventilated significant points of law, which, it was said, would assist in the disposition of any hearing in the future of a trial of the debt and possession proceedings.

3. [18]

   It was submitted, on behalf of Ms Charlton, there would be no loss of time or cost by the grant of the stay.

4. [19]

   NAB resisted the application on two grounds. First, the prospects of the appeal were low. Secondly, it was argued that Ms Charlton would not suffer any prejudice if the application to stay the proceedings and vacate the hearing fixed was dismissed. At least, so far as summary dismissal was concerned, it was contended, she would have an opportunity to have all arguments agitated by her on that application at the final hearing.

5. [20]

   The Court has a discretion to grant or refuse a stay; the exercise of which will require cognizance of the aforementioned principles but ultimately will be governed by the relevant statutory provision and the need to exercise the power in the interests of justice.

6. [21]

   That reminder of the necessary obligations falling upon the Court in the resolution of the notice of motion must result in the Court resisting the resolution of the application on one basis encouraged by NAB, namely, that Ms Charlton had failed to expedite proceedings for an appeal and asked the Court, as presently constituted, to vacate the hearing dates in that light. Similarly, I do not consider the matter may be resolved upon the basis that Ms Charlton failed to articulate the grounds of a formal appeal so that the question of arguability may be properly considered.

7. [22]

   Whilst Ms Charlton, as an unrepresented litigant, may not be properly described as uninformed as to her rights or inept in formulating argument (she filed three written submissions in support of the hearing proper, presented substantial argument in favour of her summary dismissal application and has previously brought an appeal), I do not consider the interests of justice warrant the defeat of her application on such a relatively strict procedural basis. This conclusion must at least follow as the time for filing of the appeal has not past, even though it should be observed that at the time of the completion of argument on the summary dismissal argument and at the point of delivery of the same, Ms Charlton announced she would appeal any adverse judgment, that is before the assessment of reasons for judgment.

8. [23]

   However, that conclusion does not rob from consideration, the appropriateness of considering whether there may be a material error or at least an arguable case in the exercise of the Court’s discretion on the stay.

9. [24]

   The Court has had the benefit of argument by Ms Charlton, which in essence rehearsed her central arguments of the appeal. In fact, she identified that she had a draft appeal (albeit not a complete draft) but did not produce the same despite the Court raising with her the prospect of doing so.

10. [25]

    The prospects for success may be judged in that light and, in that respect, there lies, in my view, a significant hurdle for the proposed appeal.

11. [26]

    The submissions advanced paid no heed to the need for leave to appeal and for the most part proceeded upon the basis of an agitation of submissions on the substantive issues in the proceedings proper rather than the subject matter of that which could constitute an appeal. No attention was focused upon where error may be demonstrated in a finding in Charlton No 1, for example, that the case for NAB was not untenable or was arguable.

12. [27]

    Take, for example, the issue which occupied a good deal of the submissions by Ms Charlton today – that is, the issue which was described as “the 2011 enforcement issue” in Charlton No 1. Argument was put at length as to the substance of Ms Charlton’s case and why there were available grounds of appeal. However, whilst this is a serious issue in the trial of this matter, there was no explanation as to why a conclusion in Charlton No 1, that there were real factual and legal issues as to the question, including to those distilled at [97] of that judgment might properly attract leave to appeal. Nor were there (submissions as to why a conclusion that NAB may have an arguable case (see Charlton No 1 at [98]) may also attract leave to appeal (or, for that matter, why NAB’s case was not arguable).

13. [28]

    Those issues are further complicated by Ms Charlton’s intention to raise in the application for leave to appeal fresh evidence which was not before the Court in the hearing of the summary dismissal application.

14. [29]

    The Court raised the issue in Welker at [57] as to whether the refusal of the stay might render the appeal nugatory and as to the implications of that matter for the determination of the stay application. Counsel for NAB accepted that a refusal of the stay would significantly undermine the appeal.

15. [30]

    Whilst a refusal of a stay in this matter may not strictly render the appeal nugatory, it would, in my view, detrimentally effect the prospects of it being prosecuted in a significant way (the Court of Appeal may still, of course, determine the question or questions of law raised by Ms Charlton in relation to the summary dismissal judgment).

16. [31]

    However, this is not a case where the determination of the summary dismissal application has, in any way, finally determined (or determined at all) the debt and possession proceedings, let alone, the judicial review proceedings or cross-claim.

17. [32]

    In that respect, I accept that Ms Charlton may be affected in bringing her appeal and the agitation of the points of law she wished to agitate but any such prejudice is minor because it is substantially mitigated by the fact that the entirety of the arguments she wishes to bring (including new arguments) will be heard in the trial without any delay as the trial is at hand.

18. [33]

    In contrast, the granting of the stay of the proceedings, would further significantly delay the hearing of proceedings which commenced in January 2016 and which are poised for trial.

19. [34]

    The issue of time and costs raised by Ms Charlton cannot be in her favour. If the stay was granted and a successful appeal brought, the remainder of the proceedings for the cross-claim will remain. If she was unsuccessful, the present hearing dates would be lost and further hearing dates would be required to be found which may be significant distance away in the Court’s calendar.

20. [35]

    In the result, the application to stay the proceedings is refused. Costs should be reserved.

ORDERS

1. [36]

   The Court makes the following orders:

   1. (1)

      The notice of motion brought by Ms Charlton, filed 28 February 2018, is dismissed.

   2. (2)

      Costs reserved.