AWADALLAH v A W & P BROWN PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL POWELL, COLE and STEIN JJA 28 April 1998, 28 April 1998 [1998] NSWCA 28 Appeal and New Trial — new trial — Point not taken below — Claim for moneys due for work done and materials supplied pursuant to agreement said to have been made with two defendants — Agreement admitted in Defence and Cross-Claim — Verdict and judgment against defendants — On appeal appellant seeks to assert not party to agreement and did not give instructions to solicitor — whether point open to be raised on appeal — Whether Court of Appeal has inherent jurisdiction to set aside judgment and order new trial. Powell JA The Court has before it today an appeal by one only of two Defendants in an action which was commenced in the District Court in May 1991. In its Statement of Claim the First Respondent, which was a building company, sought to recover from the Appellant and her former husband ("'the Second Respondent') the sum of some $28,900 odd, together with interest, the principal sum being what was said to be the balance owing for building work and materials supplied by the First Respondent to the Appellant and the Second Respondent, that work being work in the nature of alterations and extensions to the then matrimonial home of the Appellant and the Second Respondent. The Statement of Claim was, in the first instance, served only upon the Appellant. She, so it would seem, retained the services of a firm of solicitors, Messrs Coyne & Whittemore, which firm wrote to the First Respondent's solicitors in May 1991 informing the First Respondent's solicitors that the Appellant had retained them and seeking particulars on behalf of the Appellant in relation to the claim made by the First Respondent. To that letter the First Respondent's solicitors replied some few days later enquiring whether Messrs Coyne & Whittemore had instructions to accept service on behalf of the Second Respondent. The material which is before the Court does not indicate what, if any, reply was given to that letter, but such material as is before the Court would tend to indicate that ultimately service was effected on the Second Respondent some time later. In October 1992 there were filed, on behalf of the Appellant and the Second Respondent, a Notice of Grounds of Defence and a Cross Claim, the former document being verified by an Affidavit which the Appellant admits she subscribed. The Notice of Grounds of Defence filed on behalf of the Appellant and the Second Respondent commenced, "1. The Defendants admit that the plaintiff carried out work at their request between September 1989 and 22 August 1990." In the Notice of Cross Claim it was asserted (inter alia):- "1. In about August 1989 the plaintiff agreed to carry out building work at the Defendant's premises at the request of the Defendant." As will be apparent from what I have just recorded the pleadings did not raise any issue as to the parties to the agreement to carry out the works in question, nor did the particulars, which were later supplied. 2 UNREPORTED JUDGMENTS It would seem that when the matter first came before the District Court the nature of the issues that were tendered by the Defence and Cross Claim led to the matter being referred to a builder for enquiry and report. That report appears to have been returned to the District Court at some time prior to 3 March 1997, on which day there was listed before Sinclair DCJ an application on behalf of the First Respondent to adopt the report. Although we have not read the report enough appears from the material which is before the Court to indicate that the report resolved most, if not all, of the issues which had been referred in favour of the First Respondent. When the matter came before Sinclair DCJ. there were read two Affidavits, one sworn by Mr Brown, the principal of the First Respondent, and the other sworn by the Second Respondent. It would appear that the Appellant was in attendance at the Court on the day in question and remained in Court during the hearing. In the Affidavit which had been sworn by Mr Brown he deposed, (inter alia) to an initiating discussion between himself and the Second Respondent, following which, so he said, he attended at the matrimonial home and discussed with the Appellant, and the Second Respondent, the nature of the work which was contemplated. In his Affidavit Mr Brown also deposed that, thereafter, the Second Respondent discussed with him a variation on what had been originally contemplated, there being no suggestion that the Appellant was a party to the later conversation. In the Affidavit which he swore the Second Respondent deposed to the fact that there had been discussions between Mr Brown on behalf of the First Respondent and the Appellant and himself concerning the work in question. In particular, in parall of that Affidavit, he deposed, (inter alia):- At the time the original tender was given to us by the builder on or about 7 September 1989 the following conversation took place, both in the presence of my wife and Mr Brown on behalf of the Plaintiff." He then recounted the conversation in question. The Appellant has informed us that, at the time the matter came before Sinclair DCJ she informed Mr P J Snelgrove, who by that time had replaced Mr G M Coyne as the solicitor acting for her and the Second Respondent for the purpose of the proceedings, that she disputed, both, that she was present at the time of the conversations deposed to, and, as well, that she was a party to any agreement for the carrying out of the works, but that Mr Snelgrove declined to respond otherwise than to tell her to be quiet and to sit down. Given the issues that were tendered before him by the pleadings, and the report which had been prepared by the referee, it is hardly surprising that Sinclair DCJ found in favour of the First Respondent and found a verdict for some $34,000 after taking into account damages to be awarded in favour of the Appellant and the Second Respondent on the Cross Claim. Accordingly judgment was entered in that sum. A Notice of Appeal was later filed ostensibly on behalf of both the Appellant and the Second Respondent. However, in that Notice of Appeal, the only grounds of appeal taken were that the work done was done for the Second Respondent and not for the Appellant together with the Second Respondent. Since that Notice of Appeal was filed the Appellant has apparently been unable to continue to retain solicitors to act on her behalf and she has appeared today in person. URJ AWADALLAH v A W & P BROWN PTY LTD (Cole JA) 3 I am of the view, which I find in many respects quite distasteful to me, that, having regard to the issues that were tendered before the District Court and dealt with by Sinclair DCJ we can do nothing for the Appellant on this appeal, and that her remedy, if any, lies against others and in another place. I have said that I find that conclusion distasteful to me, because it seems to me that the Appellant, if properly advised, may well have had a defence to the action to which she was joined as a Defendant. But I am unable to see on what basis this Court can intervene on her behalf. And I regrettably propose that the appeal should be dismissed with costs. Cole JA I am not able to agree. No error has been demonstrated in respect of the judgment delivered by Sinclair DCJ. His Honour dealt with the issues which were tendered to him. Those issues, however, did not include the issue of whether or not the Appellant, Mrs Stacey Awadallah, was a party to the contract upon which the Respondent sued. Mrs Awadallah says that she was not, and she complains that for whatever reason she has not properly had an opportunity to have litigated the question whether she was, or whether she was not, a party to the agreement upon which the Respondents sued. Plainly if she was not such a party then she should not have a judgment against her. In one sense there had been no systemic failure of the legal system, because Mrs Awadallah has had available to her the services of, I think, three successive solicitors. But in reality there has been a failure of the legal structure, because it seems tolerably plain to me that she was never asked by those who were purporting to act for her whether in truth she was a party to the agreement upon which she was sued. The circumstances in which that came about do not require investigation by this Court, but it seems that it came about by a combination of the fact that those solicitors took instructions from her husband, rather than from herself, and further did not draw to her attention what I should have thought was a critical question, namely were you a party to the contract. And so the result is that the Court has before it an Appellant who complains that there is a critical issue which ought to be litigated, that she has not in a real sense had the chance to have it litigated, and that accordingly she is denied justice. In my view this Court has an overriding jurisdiction to ensure that justice is done. $23 of the Supreme Court Act provides that the Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. The Court also has an inherent jurisdiction to ensure that justice is done and the authorities in respect of that are collected in the Supreme Court practice. Ihave a feeling of disquiet that justice may not have been done. It is true, as has been pointed out, that in considering the requirements of justice one must also have regard to the position of the Respondent. For the Respondent has been through the quite lengthy and undoubtedly expensive processes which the Court and the legislature and the rules lay down as appropriate to the disposition of litigation. It has troubled me that the Respondent may be put to further trouble and expense in this litigation. Nonetheless I think the interests of the Respondent must be made subservient to the overall interests of justice which require that where there is a real issue which requires to be determined, and where a party has not in a true sense had the chance to have that issue litigated, that party should be given that chance. That seems to accord with recent decisions of the High Court, in particular the decision of Queensland v J L Holdings Pty Ltd.! In my 1. (1997) 71 ALJR 294 4 UNREPORTED JUDGMENTS view, faced with what appears to me to be the prospect that there has been a significant injustice, this Court should interfere to set aside the judgment of Sinclair DCJ against Mrs Stacey Awadallah, and to direct that there be a further trial limited to one issue only, namely whether or not Mrs Awadallah was a party to the agreement with R W and P Brown Builders Pty Ltd, being the agreement upon which those builders sued Mrs Awadallah. We should further direct that Mrs Awadallah have leave to amend her statement of defence in the proceedings in the District Court to raise only that issue. Regarding costs, in my view the appropriate order is that the Appellant should have no costs of this appeal, as she appears in person, but that the Respondent should have a certificate under the Suitors Fund Act in respect of the costs of this appeal. The costs in the District Court of the issue which I would propose to have tried should abide the outcome of those proceedings, and the costs of the District Court in the previous proceedings awarded against Mrs Awadallah should also abide the outcome of the trial which I would propose. Stein JA Before saying anything about the Appeal itself, there being no real opposition by the Respondent, the Court should give leave to the Appellant to rely upon her affidavits sworn 21 November 1997 and 7 April 1998, and the affidavits of Glen Michael Coyne, sworn 26 March 1998 and Russell Clark Wheeler, sworn 3 April 1998. The issue of whether the Appellant was a party to the agreement was never raised before the District Court. Having reflected on the matter it is my opinion that there is a real possibility that there may have been a miscarriage of justice to the appellant. She should be given the opportunity to have the issue of whether she was a party to the agreement litigated. This is unfortunate for the respondent builder, and I have sympathy for its plight. Nonetheless, the overriding interests of justice require, even at this late stage, that the appellant have the opportunity to have the issue litigated. This Court should intervene to enable it to occur and, in my opinion, the power exists to enable the Court to do so. I agree with what Cole JA has said, and with the orders he proposes. Powell JA The Court orders that leave be, and be deemed to have been, granted to the Appellant to have read and to rely upon the additional evidence to which Stein JA has referred. By majority the orders and directions of the Court disposing of the appeal are those that have been proposed by Mr Justice Cole. The judgment of Sinclair DCJ against Mrs Stacey Awadallah is set aside. There will be a further trial limited to one issue only, namely whether or not Mrs Awadallah was a party to the agreement with R W and P Brown Builders Pty Ltd, being the agreement upon which those builders sued Mrs Awadallah. Further Mrs Awadallah has leave to amend her statement of defence in the proceedings in the District Court to raise only that issue. Regarding costs, it is ordered that the Appellant has no costs of this appeal, as she appears in person, but that the Respondent should a certificate under the Suitors Fund Act in respect of the costs of this appeal. The costs in the District Court of the issue will be tried should abide the outcome of those proceedings, and the costs of the District Court in the previous proceedings awarded against Mrs Awadallah should also abide the outcome of the trial. The appellant appeared in person. Counsel for the first respondent: T V Martin (solicitor) URJ AWADALLAH v A W & P BROWN PTY LTD (Powell JA) Solicitors for the first respondent: T V Martin & Associates (Riverwood) Counsel for the second respondent: No appearance Solicitors for the second respondent: No appearance