ROWETT v WESTPAC BANKING CORPORATION SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL HANDLEY JA 29 November, 2, 3 December 1993 [1993] NSWCA 240 In 1987 the claimants borrowed moneys from the opponent Bank on the security of a mortgage of their property in Kenthurst. The mortgage was registered under the Real Property Act and its validity was never challenged. On 18 June 1993 Allen J entered judgment in favour of the bank for $604,743 and for possession of the mortgaged property. At the trial the first claimant appeared in person and requested that a cross claim brought by her and her mother, the second claimant, be withdrawn. Allen J ordered a separate trial of the issues raised by this cross-claim. The time having expired for filing a notice of appeal, the claimants applied for an extension of time and for a stay of execution on the judgment. Held: (1) While the Court is generally willing to cure procedural defaults in complying with time limits and other requirements of the Rules, it will not do so where the proposed appeal would be futile. Gallo v Dawson (1990) 64 ALJR 458 applied; (2) In considering whether a proposed appeal would be futile, the Court should limit its attention to the evidence before the trial Judge and any further evidence that would be admissible as fresh evidence on appeal (3) The fact that a party appeared in person at the trial in itself cannot rovide any basis for receiving fresh evidence on appeal outside the established principles for the reception of such evidence. (4) The advice and assistance which a litigant in person ought to receive from the Court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, but the Court should not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented person or act as the legal adviser or legal representative of the unrepresented party. Rajski v Scitec Corporation (unreported, 16 June 1986, Court of Appeal applied); (5) The proposed appeal against the judgment for possession had no appreciable prospects of success. (6) Accordingly the application for a stay of execution of the writ of possession should be refused. Handley JA. This is an application by notice of motion to extend the time for filing a notice of appeal from the judgment of Allen J directed to be entered on 18 June 1993 and for a stay of execution. The judgment in favour of Westpac as mortgagee was for $604,743, and for possession of the mortgaged property known as 61A Annangrove Road, Kenthurst. The time for filing a notice of appeal as of right from this judgment expired on 18 July. However, nothing was done towards commencing an appeal until a notice of appeal was filed on 17 November together with a notice of motion seeking an extension of time and stay of execution on the judgment. At that stage the claimants were appearing for themselves. The motion first came before me at 9.45 am on Monday, 29 November. The claimants instructed solicitors that morning and they were able to brief Mr Lawler of counsel at short notice. However at that stage no affidavit by the claimants in support of the motion had been filed or served. I adjourned the motion until 2 pm that day in the hope that an affidavit in support of the motion could be prepared and sworn during themorning. This proved to be impossible. I then adjourned the motion to Thursday, 2 December 2 UNREPORTED JUDGMENTS at 9.30 am for hearing and gave directions for the filing and service of affidavits by the claimants and the opponent. Both sides filed extensive affidavits. The hearing of the motion commenced before me at 9.30 am on 2 December and was adjourned to 10 past 10 because of my commitments in the Full Court. Fortunately, the appeal listed in the Full Court was settled and I was able to resume the hearing of the motion at 11.30. The affidavits were read and the claimant, Michele Rowett, gave evidence in chief and was cross-examined. Mr Lee, a solicitor from Corrs Chambers Westgarth also gave some oral evidence for the opponent. The hearing of the motion continued until approximately 6.15 pm when I reserved my decision. The bank commenced the proceedings by summons filed on 10 December 1992 returnable on 4 February 1993. The claimants, as defendants in the proceedings, represented themselves and filed an appearance on 20 January. Directions were given on 4 February and on 7 May when a solicitor appeared for the claimants the summons was fixed for trial on 10 June 1993. The evidence established that the claimants were fully aware of the hearing date. The proceedings came on for hearing before Allen J on 10 June. The defendants did not appear though it appears that Michele Rowett had some difficulties in appearing that day. The matter was adjourned to the following day. Again there was no appearance for the defendants and the proceedings were adjourned to 18 June for hearing and directions were given for further service on the defendants. On 18 June the proceedings came on for hearing at 10.35, but there was no appearance by the defendants. Michele Rowett had apparently contacted the Judge's Associate and said that she was running late. The Judge held over the proceedings until she could arrive. She appeared at 11.25 and the proceedings were then heard. Allen J ordered that a cross claim which had been filed by the defendants be heard separately and adjourned it for hearing to a later date. Later that day he gave judgment in favour of the bank on its claim. After these orders had been made the claimant, Michele Rowett, successfully opposed the making of an immediate order for the issue of a writ of possession. The bank's application for the issue of that writ came before Allen J on 30 June, 28 July, 16 August, 6 September, 14 September, 13 October and 18 October. The claimants appeared by solicitor or counsel on 28 July, 16 August and 6 September. They did not appear on 13 or 18 October. On 18 October Allen J made an order that a writ of possession issue on or after 1 November 1993. On 29 October an application was made ex parte by Michele Rowett to Campbell J for an order staying the issue of the writ of possession, and for a variation of the order made by Allen J on 18 October. His Honour gave directions for the matter to be heard urgently and it came on for hearing before Ireland J on 1 November. His Honour dismissed the application for reasons which he then gave. On 22 November 1992 the Sheriff issued a formal notice to vacate to the claimants requiring delivery of possession by 12 noon today. His usual practice is to do this after earlier informal notices to vacate have been ignored. No doubt these informal notices prompted the filing of the notice of appeal and notice of motion in this Court on 17 November 1993. URJ ROWETT v WESTPAC BANKING CORPORATION (Handley JA) 3 This, therefore, is the history of these proceedings and explains how it has come about that this Court has been required to give urgentattention to this matter at the eleventh hour, as it were, this week, and is having to give judgment at the twelfth hour. The mortgage sued upon was granted in 1987 and is registered under the Real Property Act. The validity of that mortgage has never been challenged. A great deal of evidence was placed before me on the hearing of this motion by affidavit, in documentary form, and by oral evidence which was not before the trial Judge. Moreover neither party placed before me the affidavit evidence that was before the trial Judge on 18 June, although I did have the transcript of the oral evidence given by Michele Rowett that day. The first question before me is whether the Court should make orders during the claimants" procedural default. They are well out of time for appealing against the final orders made by Allen J on 18 June. Moreover, they were represented by solicitor or counsel at a number of the hearings after 18 June, as I have already mentioned. Nevertheless, in a real and practical sense the hearing of the proceedings was continuing before Allen J while the bank's application for a writ of possession was before the Court. Moreover at various times since 18 June the claimants have been unrepresented. The Court would, therefore be disposed to extend the time for appealing from the judgment of 18 June 1993 until the notice of appeal was filed on 17 November. While this Court is generally willing to cure procedural defaults in complying with time limits and other requirements of the Rules it will not do so where the proposed appeal would be futile. See Gallo v Dawson (1990) 64 ALJR 458, especially at 459, where McHugh J said: When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding inthe appeal. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted ... That decision was affirmed by the Full High Court, (1992) 66 ALJR 859. A general principle of our administration of justice is that the parties" legal rights are to be decided at the trial. The right of appeal exists to correct errors made at the trial, not to provide an opportunity for a second trial. Thus in Coulton v Holcombe (1986) 162 CLR 1 at 7 in the joint judgment of four Justices of the High Court, their Honours said: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. Although an appeal to this Court is a re-hearing and the Court can receive further evidence on an appeal the right to receive and consider such evidence is a restricted one. Section 75A(8) of the Supreme Court Act provides: Where the appeal is from a judgment after a trial or hearing on the merits the Court shall not receive further evidence except on special grounds. 4 UNREPORTED JUDGMENTS In deciding whether special grounds have or have not been established this Court has consistently followed the established common law principles governing the reception of fresh evidence as a ground for a newtrial. These were stated succinctly by Dixon CJ in Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444, where his Honour said of the fresh evidence that: It must be reasonably clear that if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary. Again, reasonable diligence must have been exercised to procure the evidence which the defeated party failed to adduce at the first trial. The fact that a party appeared in person at the trial in itself cannot provide any basis for receiving fresh evidence on appeal outside these established principles. In the present case, as I have already said, I received a great body of evidence in addition to that which was before the trial Judge. A great deal of this evidence related to matters which had occurred prior to trial and which were then well known to the claimants. It is quite clear that the conditions for receiving that evidence as fresh evidence on an appeal from the decision of Allen J could not be satisfied. In deciding whether or not the proposed appeal has sufficient prospects of success to warrant staying execution of the writ for possession I should confine myself to the evidence that was before Allen J at the trial and any further evidence that meets the established requirements for receiving fresh evidence on appeal. Thave looked at the affidavits in the Common Law Division file that were read before Allen J. The bank established a prima facie case by the evidence in the affidavit of R J Avery sworn 9 December 1992. He deposed to the mortgage debt amounting at that time to $568,330.08. Healso proved the giving of various notices and demands to the claimants from 28 July 1992 onwards. The principal affidavit in answer was that of Michele Rowett of 3 February 1993. Leaving entirely to one side matters of form and the technical requirements of the law of evidence she gave a history in this affidavit of complaints to Westpac about the state of the mortgage debt, the amount claimed by Westpac, and its dealings with the claimants. These complaints were communicated to Westpac at meetings with bank officers and by correspondence. She also indicated that she had complained to the Bank Ombudsman. However, in my opinion, the affidavit contained no evidence however informal about the subject matter of those complaints which would enable an intelligent reader to understand the nature of the acts or omissions of Westpac that were being complained of. There is nothing in that affidavit which establishes or tends to establish any facts which underlie the complainants" long history of complaints to Westpac or provide any substantial basis, in fact, for reducing the prima facie amount of the bank's debt. In addition to that affidavit of 3 February 1993 I have also read the affidavit of Sheena Daley of 16 February, the further affidavit of Michele Rowett of 10 March and Appendix A thereto and her affidavit of 18 June. Paragraph | of the latter affidavit states that the sum of $568,333.08 claimed by Westpac as at 10 December 1992 'is not calculated correct and exceeds the amount owed to Westpac at that date'. The affidavit continues by denying that the claimants failed to comply with the letter of demand, denying the default and denying the receipt of various notices allegedly served by the bank. It goes on to assert that Westpac had been URJ ROWETT v WESTPAC BANKING CORPORATION (Handley JA) 5 repeatedly asked to furnish particulars of moneysowing without any satisfaction and it draws attention to one matter of substance, namely, that instead of $75,000 having been borrowed as asserted in documentation by the bank in 1989 Michele Rowett asserted that only $40,000 had been borrowed. The affidavit concluded with a statement, 'Other discrepancies also appeared to exist'. When the hearing finally commenced before Allen J on 18 June his Honour informed Michele Rowett that the matters before the Court involved a claim by the bank for possession and for judgment for moneys allegedly owing under the mortgage. He said that there was also before the Court a cross claim by the claimants. The first claimant then said: Sir, in relation to the cross claim I have had some legal advice and apparently some of the matters involved in that are related to another area not specifically related to the mortgage matter and I have been advised I should withdraw the cross claim at this stage with your consent and seek orders in relation to the other from you. A discussion then followed between the first claimant and the Judge relating to the disposition of the cross claim. Later the claimant said: On the advice I had I was told the way I had actually prepared the cross claim it was not the level required and, therefore, certain areas to me that appeared to be interrelated with the mortgage issue apparently need to be resolved as separate issues and are not really related to the mortgage and in those areas I have been advised I should take up separate litigation with a solicitor doing it, Sir. The Judge drew attention to the difficulty that the claimants might experience if the cross claim were to be simply dismissed and pointedout that since Michele Rowett could not appear for her mother Joy Rowett, he could not grant leave to discontinue the cross claim and in any event that would have to be on terms. The course finally taken by the Judge was to order a separate trial of the issues raised by the cross claim. As Mr Lawler pointed out in his submissions to me, this effectively prevented the claimants relying upon the matters in the cross claim as giving rise to an equitable set-off against the bank's debt as an answer or partial answer to the claim for possession. However that order was made on the application of the first claimant who said that she had received legal advice that the cross claim should be withdrawn. If the cross claim had been withdrawn this would also have terminated any entitlement of the claimants to rely upon matters in the cross claim as an equitable set-off, in whole or in part, to the bank's claim for its debt and for possession. I fail to see how his Honour could have acted any differently without taking upon himself the task of advising the first claimant and of giving her different advice to that which she had previously received. As I will endeavour to explain that is a course which is not legally open to a judge in a civil case. The hearing before Allen J continued with the bank's evidence being received and then his Honour received the affidavit evidence of the defendants. Objection was taken by counsel for Westpac to parts of those affidavits and his Honour rejected them or read them in the limited way in order to sustain their admissibility. It is established by the evidence before me that Michele Rowett had been informed well before the hearing that the bank would be objecting to the affidavits that she had prepared and filed on behalf of the defendants. She had also been told by the solicitor then acting for her, although he was not on the 6 UNREPORTED JUDGMENTS record, that the affidavits were not inappeal to proceed against the judgment for the debt should the claimants be so advised. Mr Lawler submitted that because Michele Rowett appeared before Allen J as a litigant in person the Judge was bound to do more for her than he would have been bound to do had she been legally represented. However, as McHugh J said in Gallo v Dawson (above) at 459: 'Lack of legal knowledge is a misfortune, not a privilege'. The principles under which judges in civil cases must conduct themselves when one litigant appearing before them is appearing in person and the other is legally represented are not in doubt. They are explained by the majority judgments of this Court in Rajski v Scitec Corporation (unreported) 16 June 1986. In that case Samuels JA said at p 6: In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. In these days of reasonably available legal aid, a litigant in person is becoming increasingly uncommon. At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the Rules as any other litigant. The Court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the Rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person asenjoying a privileged status would be quite unfair to the represented opponent. It seems to me, with respect, that Allen J's conduct of the trial in this case fully complied with the standards laid down by Samuels JA. It is unfortunate that in 1993 it can no longer be said that legal aid in civil cases is reasonably available. The times are hard and litigants in person are becoming increasingly common rather than uncommon as Samuels JA said in June 1986. Nevertheless, the role of a judge in a civil case is not to actively assist one party against the other; to advise one party against the other; or in any way to act as the legal adviser or the legal representative for that party even if that party is unrepresented. The role of the judge in a civil case in our system is to act as the umpire and he or she has no active role such as may occur under our system in criminal proceedings where a citizen is facing the State as prosecutor, and the judge has a proper role in protecting the accused, especially an unrepresented accused. Civil cases involve citizen (corporate or otherwise) against citizen, and the judge's role, as I have said, is that of an umpire. In all the circumstances, therefore, I decline to stay the execution of the writ. I order that the time for appealing against the judgment of Allen J of 18 June 1993 be extended to 17 November 1993. I order the claimants to pay the costs of the motion. 1. Application to stay execution of the writ of possession refused. 2. Time for appealing against the judgment of Allen J of 18 June 1993 is extended to 17 November 1993. 3. The claimants are to pay the costs of this motion. Counsel for the appellant: M LAWLER URJ ROWETT v WESTPAC BANKING CORPORATION (Handley JA) Solicitors for the appellant: JSP LAW Counsel for the respondent: D PRITCHARD 5 Solicitors for the respondent: CORRS CHAMBERS WESTGARTH