PAGE v McKENSEY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 29 January 1996 [1996] NSWCA 418 Priestley JA. There is a motion before the court by Mr Page asking that an appeal which was decided by this court on 28 February last year should be reopened. The notice of motion further asks that the reopened appeal be expanded to include reference to certain matters and that further evidence should be allowed. Mr Page has presented the case for reopening the appeal in person. I would understand that to be because, as a result amongst other things of litigation, he is not in a position to obtain legal representation. The appeal was argued on 17 February last year when Mr Page was represented by senior and junior counsel. The appeal was from orders made by Mr Justice Windeyer in partnership proceedings. The appeal raised certain issues which the court decided. Following the pronouncement of the court's decision on 17 February last formal orders were passed and entered. Mr Page accepted that what is stated in the headnote of Haig v The Minister (1994) 85 LGERA 143 was an appropriate statement of the law. The headnote summarised the position as being that the President Mr JusticeKirby said and Mr Justice Handley and I assumed, that it was the law that the Court of Appeal has jurisdiction to set aside a previously perfected order which it has made and allow reopening of the appeal concluded by that order but the jurisdiction is confined to the most exceptional circumstances. Mr Page said that the exceptional circumstances in his case were that the trial court had been misled by the conduct of the opposing parties and that it followed that this court had decided the appeal on incorrect evidence. Had the proper evidence been before the court the result would have been different. He was, therefore, suffering from an injustice and the court should exercise its exceptional power and reopen the matter to allow the case to be decided on what, in his contention, would be the proper and correct evidence. The circumstances however do not support this view of the matter. According to Mr Page there were affidavits before Mr Justice Windeyer at a hearing on 9 May 1993. Later directions were given concerning the filing of further affidavits. So far as the opposing parties were concerned these directions were not complied with. The result was that affidavits which, according to the directions, should have been filed at an earlier date than they were in fact filed did not come into the possession of Mr Page's legal representatives until 6 December 1993, three days before the further and final hearing before Mr Justice Windeyer which commenced on 9 December 1993. Mr Page described the non-compliance with the directions for filing of the affidavits and their late service upon his legal representatives as 'surprise' and surprise which led to the court accepting what was said in the affidavits which were received on 6 December 1993. He also said that evidence in those affidavits 2 UNREPORTED JUDGMENTS — in particular by one of the opposing parties personally — was quite inconsistent with evidence given by that same party in affidavits that had been before the court on 9 May 1993. His contention was that the reception of the affidavits in evidence at the hearing on 9 December1993 was not in conformity with the rules and because they had not been filed in compliance with the court's directions they should not have been received. Their reception and acceptance as a result of what he termed 'surprise' led on to the adverse judgment and eventually what, in his submission was, the unjust decision of this court in February 1995. Why I cannot accept this submission is that Mr Page told me that at the hearing before Mr Justice Windeyer he was represented by solicitor and counsel. He said he had not had an opportunity to consider what was in the affidavits that were only received on 6 December but he candidly acknowledged that he had heard them read before Mr Justice Windeyer. At that stage, that is, when the evidence was presented before Mr Justice Windeyer, and when Mr Page was represented by solicitor and counsel, decisions had to be made about how the litigation would be conducted. I do not know any detail of why it was that solicitor and counsel proceeded on the evidence as it was left before Mr Justice Windeyer. However, it is patently clear that they did choose to proceed upon that evidence when they had in their hands all the affidavits of May and December. It may be that they made the wrong decision in not seeking an adjournment, or in not getting further instructions from Mr Page. It may be that they proceeded fully aware of all the circumstances after having decided, in the best interests of their client, that they should proceed. I do not know the answer to that question — as to which of those alternatives is the correct one — but it does not matter from the point of view of the Court of Appeal for reasons which I will mention in a moment. The immediate point is that Mr Page's legal representatives chose to go ahead with the proceedings. The result was unfavourable to Mr Page. An appeal was filed, and that was the one which the court dealt with in February of last year. None of the matters of surprise — as Mr Page calls them — whichhe has brought up before the court today were mentioned to the Court of Appeal. There was no ground of appeal relating to the matter Mr Page now relies on, either the alleged non-compliance with the rules, or the substantial complaint that there was a surprise which brought about an unjust result. The court decided the appeal on the argument before it. Mr Page has not sought to say today that there was any error in what the court decided on the argument which was presented to it. His complaint is that the court acted on the basis of incorrect misleading and deceptive evidence which had got before Mr Justice Windeyer on 9 December 1993 as a result of the sequence of events concerning the affidavits which I have mentioned. That complaint, if it had any merit, is not one which falls within the area of exceptional circumstances referred to by the court in Haig v The Minister. On Mr Page's own case, as I understand it, this court did not make a mistake or overlook an argument put to it. It simply decided the matter on the body of evidence which was in the appeal papers to the extent that there was any discussion of that evidence in the appeal, where, in any event, the main argument was one concerning principle. This leads to the conclusion, which seems to me to be quite inevitable in the circumstances of everything that Mr Page has put to me, that this court would not grant leave to him to reopen the perfected appeal. URJ PAGE v McKENSEY (Priestley JA) 3 Mr Page has urged upon the court that the result of refusal to reopen the appeal will be that the court will not have heard him on an issue upon which he wished to be heard. I acknowledge what he put to the court, that courts will, in all reasonable ways, decide cases on the true substance and merits of them as between the parties and will not wish a judgment to remain on the court's record when a person has not been heard on an issue relevant to that judgment. In the present case, however, what has happened is that Mr Page's case was heard by the trial judge on all issues which Mr Page's representatives raised with the trial judge and an appeal has been heard by this court on all issues raised by Mr Page's legal representatives at that appeal. I mentioned in the course of argument that, in the circumstances, it simply is too late for Mr Page to seek to raise the issue in this court which he wishes to raise. He sought to submit that the reason why it had not been raised in this court was the fault of his opponents because of their conduct in regard to what he termed the 'surprise' affidavits. This is the vital point on which his argument breaks down, it seems to me. It was not the fault of the opponents, on the facts as I have recounted them, that Mr Justice Windeyer proceeded on the footing of the affidavits which were filed late. Mr Page's representatives had those affidavits three days before the hearing. If there was any default involved in the putting of evidence before Mr Justice Windeyer then the blame for that cannot rest upon the other side's shoulders. True they had given the affidavits to Mr Page's legal representatives late but they had given them to Mr Page's legal representatives before the hearing before Mr Justice Windeyer, so, if Mr Page has a remedy, it does not lie in seeking to raise an issue in this court which his legal representatives on his behalf never sought to raise. The remedy, if any, must be sought elsewhere. In mentioning that Mr Page's legal representatives did not seek to raise the issue which he has sought to raise today as a basis of reopening the appeal, I have in mind that Mr Page asked me to read a letter dated 13 February 1995 to his then solicitors signed by his senior counsel. In that letter counsel indicated the way in which he proposed to conduct the appeal. There was reference to the May 1993 affidavits and, at the end of the letter, counsel asked his solicitor to obtain Mr Page's instructions as to whether the way he was proposing to conduct the case was acceptable. He added if it was not hewas content to return the brief without charging for anything beyond the time spent by him on the matter to that time. The appeal was heard on 17 February 1995. When the matter came on for hearing today Mr Page had prepared himself very thoroughly with an affidavit sworn by himself with a great many annexures and having obviously spent some considerable time on looking at the authorities and the rules relevant to the case. I asked him when he began to address me to tell me what was the substance of what he wanted to say and he did that and I heard him until I felt that I had fully heard the substance of what he wished to say in the reopening application. His affidavit, which was sworn on 18 January 1996, was not formally read. I did not invite Mr Gruzman, who appeared for the opponents to the motion, to indicate whether he had any objections to any parts of the affidavit. Quite probably, in a formal sense, he may have wished to object to parts of it. I mention this in case the matter should go further. I have paid attention, in setting out the facts, to everything that Mr Page has said in regard to the sequence of events. Without making any final decision as to matters which may be subject to contest accepting what Mr Page has said for 4 UNREPORTED JUDGMENTS purposes of dealing with the motion I have come to the conclusion that there is nothing that can be done with the motion except to dismiss it with costs, and that is the order that I make. 5 Orders accordingly.