FEDERAL COURT OF AUSTRALIA Hiskey v Westpac Banking Corporation Limited [2001] FCA 169 PRACTICE AND PROCEDURE – appeal – decision dismissing applicant's claim – failure to provide affidavit containing further and better particulars of claim – whether decision should be set aside – exercise of discretion under O 10 r 7 of the Federal Court Rules Federal Court Rules: O 10 r 7 Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 applied Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 applied ELIZABETH HISKEY v WESTPAC BANKING CORPORATION LIMITED S 119 of 2000 WILCOX, MOORE & GOLDBERG JJ 27 FEBRUARY 2001 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 119 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ELIZABETH HISKEY Appellant AND: WESTPAC BANKING CORPORATION LIMITED Respondent JUDGE: WILCOX, MOORE & GOLDBERG JJ DATE OF ORDER: 27 FEBRUARY 2001 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2 The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 119 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ELIZABETH HISKEY Appellant AND: WESTPAC BANKING CORPORATION LIMITED Respondent JUDGES: WILCOX, MOORE & GOLDBERG JJ DATE: 27 FEBRUARY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT WILCOX J: 1 I agree with the Reasons for Judgment of Justice Goldberg. I certify that the preceding one (1) paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 2 March 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 119 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ELIZABETH HISKEY Appellant AND: WESTPAC BANKING CORPORATION LIMITED Respondent JUDGE: WILCOX, MOORE & GOLDBERG JJ DATE: 27 FEBRUARY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT MOORE J: 2 I agree also with the Reasons for Judgment of Justice Goldberg. I certify that the preceding one (1) paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 2 March 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 119 of 2000 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ELIZABETH HISKEY Appellant AND: WESTPAC BANKING CORPORATION LIMITED Respondent JUDGE: WILCOX, MOORE & GOLDBERG JJ DATE: 27 FEBRUARY 2001 PLACE: MELBOURNE REASONS FOR JUDGMENT GOLDBERG J: 3 The appellant, who appears in person, appeals against an order of a judge of the Court of 10 November 2000 dismissing her claim and ordering her to pay the respondent's costs to be taxed in default of agreement. 4 The appellant's grounds of appeal are as follows: "That particular circumstances within the Court itself, which caused me to decide to request leave of the Court to file at a hearing in person in the absence of other procedural advice, have not been considered; That the history of my punctual attendance at hearings in this & related matters known to & experience by Westpac representative Mr Williams, who has accepted on Court record my workplace injury have not been considered (SCSA #1020 of 1998 transcript refers)." The appellant seeks the following orders: "1. That the dismissal order be set aside (in the absence of 'availability' of either Minter Ellison or Westpac personnel for negotiation); 2. That the matter be reconvened before the Court to enable filing of documents appropriately given particular circumstances; 3. That the Court hear & consider the effect on me of more recent 'distractions' than those ordered to be included in an affidavit, & also received medical certificates, for consideration in granting a further brief extension of time; 4. That the Court dismiss the respondent's motion." 5 The order made by the primary judge on 10 November 2000 was made in response to a notice of motion filed by the respondent on 25 August 2000 seeking an order that the proceeding be dismissed for failure to comply with orders of the Court. In order to understand how the motion came about it is necessary to rehearse the progression of the proceeding. 6 On 21 December 1999, the applicant filed an application against the respondent under the Trade Practices Act 1974 (Cth). In the application, the applicant's claim was expressed as follows: "1. Misleading & deceptive conduct. 2. Unconscionable conduct & duress. 3. Misleading advertising. 4. Conduct of directors reveals the 'mind' of Westpac Banking Corporation." The relief claimed was damages and compensation. 7 The application was accompanied by an affidavit in which the appellant alleged that: · the respondent misled and deceived her repeatedly in its conduct towards her as a customer/consumer of its services; · the respondent was her principal banker during the period in question, providing the services of cheque account, home loan, life insurance and personal superannuation; · the respondent misled and deceived her in agreeing verbally to her proposed arrangement regarding her mortgage loan account; · the respondent, which was aware of the appellant's ongoing workplace injury, behaved unconscionably towards her in relation to her mortgage loan account and placed her under duress in negotiations in relation to that account; · the appellant became aware during the period in which the respondent was litigating in relation to her mortgage loan account that the respondent was favourably promoting its services to women, particularly women's business services and its services regarding similar loan accounts; · the previous managing director and chairman of the respondent reinforced those breaches by their own conduct. 8 The application first came before the Court on 3 February 2000, but as the respondent had not been served, the directions hearing was adjourned to 28 February 2000. On that date the appellant was not present and the hearing was adjourned to 30 March 2000. On that date von Doussa J ordered the appellant to file and serve a further affidavit within twenty‑one days, giving particulars of the facts and circumstances relied upon by her in support of her claim. The matter was adjourned to 17 May 2000. The appellant failed to comply with that order. 9 There was a fourth directions hearing on 17 May 2000 when the time within which the appellant was ordered to comply with the order for the filing of a further affidavit with full particulars was extended to 14 July 2000. 10 Further directions hearings were held on 17 July when a direction was given that the appellant file a further affidavit setting out full particulars of her claim before 7 August 2000. The appellant again failed to file a further affidavit. On 7 August 2000 von Doussa J ordered the appellant to file the further affidavit he had previously ordered as soon as possible, but the appellant failed to do so. Von Doussa J also ordered that the respondent file any notice of motion by 25 August 2000. 11 The respondent's notice of motion filed 25 August 2000, which sought an order that the application be dismissed on the grounds of the appellant's failure to comply with orders of the Court, came on for hearing on 4 September when von Doussa J set the motion down for hearing before O'Loughlin J on 25 September 2000. 12 On 25 September 2000, O'Loughlin J explained to the appellant the nature of the further and better particulars that were required. The appellant informed him that she would be able to supply the draft documentation she was then preparing within three weeks. His Honour, out of an abundance of caution, suggested that the appellant be given six weeks within which to supply the particulars. The appellant accepted that invitation. His Honour then said: "Ms Hiskey, please understand this: in six weeks' time it will be definitely the day of reckoning. If your papers are no better improved than they are today, I will have to dismiss your action." His Honour then adjourned the motion to Friday 10 November 2000 at 10.00am. 13 The appellant failed to file any papers in Court, either by way of further particulars or affidavit by 10 November 2000. 14 When the motion came on for hearing on 10 November 2000, the appellant did not appear in Court, although she was called. O'Loughlin J recited the history of the proceeding and the various orders that had been made. Having referred to the fact that the appellant had failed to file any papers with the Court, his Honour continued: "She has failed to give the necessary particulars in support of her claim. I for my part feel that the day of reckoning has come. I am of course aware of the authorities of this and the High Court to the effect that summary dismissal is a step of last resort and is only to be taken when all other avenues have been exhausted. I believe that those avenues have been exhausted. I consider it appropriate to dismiss the claim, and there will be an order accordingly." 15 The notice of appeal was filed on 10 November 2000. 16 On 20 February 2001 the appellant filed an eighty‑three page affidavit sworn on 25 January 2001. Paragraph 1 of the affidavit stated: "This affidavit has been provided pursuant to directions by the Honourable Justice von Doussa." However, the affidavit covered a much wider ground. It set out that the appellant had arrived at Court on 10 November 2000 at 10.30am to 10.45am expecting an 11.00am hearing. O'Loughlin J was dealing with other applications in Court and when the appellant entered his Court, according to the appellant's version, he told her that he had decided to dismiss the matter in her absence and that he had no choice but to do so. O'Loughlin J said that the Court had waited for some time, but had been unable to delay longer. 17 The appellant's affidavit continued: "4.6 With carefully logical clarity, he said that I had two choices: (1) approach Westpac/Mr Williams & request that they agree that the judgement be set aside; or (2) appeal to the Full Court of the Federal Court of Australia." 4.7 While agreeing that (1) would be the more sensible course of action, I explained to the Court that I had some difficulties in undertaking it due to the history of interactions between Westpac Banking Corporation & myself, both directly & through Minter Ellison as agent of WBC, principally as represented by Mr Williams, so I would need to proceed with option (2). 4.8 I stated that I rarely make such errors of timing, & that the history of the matters in both this Court & the Supreme Court of South Australia meant that Mr Williams was also aware of my reliability in attendance at scheduled times for hearings." The appellant was unable to obtain the agreement of the respondent or its solicitors to the setting aside of the orders. 18 The affidavit provides what the appellant has called an account of "various distractions" which have impeded the appellant in the progress of the proceeding. It deals with matters totally unrelated to the respondent. One strains to find in the affidavit any material or circumstances which could properly be described or characterised as further and better particulars of the allegations made by the appellant against the respondent in the application. The closest the affidavit comes to these allegations is para 27.6 which states: "It is unclear whether it is Westpac's solicitation of me as a potential borrower which is misleading & deceptive or its prosecution without negotiation of my position following use of its loan facilities." 19 In my view, O'Loughlin J was faced with little alternative when the matter came on for hearing before him on 10 November 2000. By that date the appellant had been in default in supplying further and better particulars of her claim for an excessive period of time. She had been given great latitude by both von Doussa J and O'Loughlin J and had indicated on several occasions that papers were being prepared, but nothing appropriate has been produced. In my view, it was open to his Honour, whether in the absence of the appellant, or in her presence, to have made the order he did. His Honour was faced with little alternative. 20 His Honour's decision was one resulting from an exercise of a discretion. The principles applicable to an appellate court's consideration of the exercise of a discretion by a primary judge are well established: House v The King (1936) 55 CLR 499 at 504‑505; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 386‑387 per Gummow J. It does not appear that his Honour made any error in exercising his discretion. 21 The jurisdiction to be exercised under O 10 r 7 of the Federal Court Rules was analysed comprehensively by Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388. Their Honours said at 395‑396: "It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. … The discretion conferred by O 10, r 7 is unconfined, except for the condition of non‑compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non‑compliance by an applicant is such as to indicate an inability or unwillingness to co‑operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant's state of mind or resources – in which the non‑compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent." Having regard to this analysis, I do not consider that there is any reason to disturb his Honour's orders. 22 More particularly is this so when it is recognised that the Court is being asked to review the decision of a primary judge which relates to a matter of practice and procedure. As was acknowledged by the majority the High Court (Gibbs CJ, Aickin, Wilson and Brennan JJ) in Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177: "… appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure". Whether the appellant must show an error of principle as well as demonstrating that the decision appealed from will work a substantial injustice, or whether she need only establish one of these criteria matters not in the present case. There was no error of principle in the manner in which his Honour reached his decision, nor has it been demonstrated that the decision appealed from will work a substantial injustice to the appellant if not set aside. 23 There is nothing in the affidavit filed on 20 February 2001 that remotely resembles the provision of the required further and better particulars. 24 The appeal should be dismissed. I certify that the preceding twenty‑four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 2 March 2001 Counsel for the Appellant: Appellant in person Counsel for the Respondent: N L Strawbridge Solicitor for the Respondent: Minter Ellison Date of Hearing: 27 February 2001 Date of Judgment: 27 February 2001