Bhagat v Cowley Hearne Solicitors & Ors [1999] NSWCA 367

New South Wales Court of Appeal CITATION : Bhagat v Cowley Hearne Solicitors & Ors [1999] NSWCA 367 FILE NUMBER(S) : CA 40960/98 HEARING DATE(S) : 27 September 1999 JUDGMENT DATE : 27 September 1999

Hari Bhagat v Cowley Hearne Solicitors Grant Smith PARTIES : Tyndall Funds Management (NSW) Ltd Tyndall Funds Management Australia Ltd Michael Wilkins Sir Ron Brierley Gary Weiss JUDGMENT OF : Mason P; Handley JA; Fitzgerald JA

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CLD 20986/97 LOWER COURT JUDICIAL OFFICER : Hulme J

C: Mrs LK Robinson, then claimant in person COUNSEL : 1O: RD Wilson 2-7O: BJ Preston C: In person SOLICITORS : 1O: Ebsworth & Ebsworth, Sydney 2-70: Mallesons Stephen Jaques, Sydney CATCHWORDS : Summons - Whether abuse of process - Whether procedural fairness - No question of principle. DECISION : Leave refused

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40960/98

MASON P HANDLEY JA FITZGERALD JA

Monday, 27 September 1999

Hari BHAGAT v COWLEY HEARNE & Ors

JUDGMENT

1 MASON P: Master Harrison ordered the claimant's amended statement of claim in action 20986 of 1997 to be struck out against the first opponent on the ground that it was manifestly hopeless and an abuse of process. The Master declined to grant leave to file an amended statement of claim. The judgment was given on 18 June 1998. There was a twenty-eight day period prescribed under the Rules within which to bring an appeal. 2 On 31 July 1998, that is, outside the twenty-eight day period, the Master granted an application for extension of time, extending time until 11 September 1998. At that stage the claimant was unrepresented, but he was the party who sought and obtained that particular extension. The time extended ran out on 11 September 1998. 3 On 14 September 1998 the claimant filed a further notice of motion in which he sought to extend the time further, indicating in that notice of motion that what he was seeking was an extension until after the determination of another action commenced by the claimant against the opponents and others, No 3398 of 1998 which he had commenced on 4 August 1998. The draft notice of appeal filed in connection with the summons before us indicates that that he is still seeking that relief. 4 The other opponents, who are also defendants in action 20986 of 1997, had applied to have the amended statement of claim in that action struck out against them also. The claimant filed notices of motion in that action in which, so far as presently material, he sought to have the opponents' application to strike out his amended statement of claim in action 20986 of 1997 itself struck out as an abuse of process. The other relief which the claimant proposes to seek in this Court if granted leave to appeal is an order that the second to seventh opponents' application to strike out his amended statement of claim in action 20986 of 1987 "be only heard 90 days after the determination of proceedings No 3398 of 1998". 5 Shortly stated, the claimant, as plaintiff in that proceeding, alleges that the defendants, including the opponents, have abused the Court's process, including by their applications in action 20986 of 1997 to strike out his amended statement of claim in that proceeding. There is also other litigation between the claimant and some or all of the opponents, in some of which the claimant is the plaintiff and in some of which he is the defendant. 6 Hulme J in the exercise of his discretion, declined to extend the time within which to bring the appeal challenging Master Harrison's judgment. The principal submission made before us was that the opponents were themselves disentitled from challenging the claimant's statement of claim as an abuse of process by reason of their own abuse of process. That submission is, in my view, quite untenable. 7 The learned primary judge considered whether the interests of justice in the present matter called for the grant of an extension of time within which to bring the appeal out of time. There is nothing in his judgment or in the matters that have been put to this Court by the claimant's counsel, and latterly by the claimant, to disclose any error in his Honour's reasoning or any other basis for challenging the decision. 8 Belatedly it was submitted by the claimant that the transcript of 3 November 1998, page 29 in particular, discloses a denial of procedural fairness in that Hulme J in effect accepted a particular position in the course of the claimant's submissions and then proceeded to judgment in the teeth of that position. I am quite satisfied that this misunderstands the dialogue that was proceeding. It would have been quite improper for the trial judge to have accepted from the claimant the very matter that was a key point in his argument when that was itself a matter of dispute. 9 But even if there has been some abuse of process by the opponents, that provides no reason why Master Harrison erred in striking out what she correctly perceived to be a manifestly hopeless pleading in these proceedings. Two wrongs do not make a right. 10 The other matter principally relied upon by the claimant is that he is an unrepresented litigant engaged in numerous actions apparently, from statements made by the primary judge below, involving voluminous documentation. This, it seems, is put forward as a reason why the time limits ordinarily applicable should not apply to him. This proposition is asserted despite, or perhaps because of, the time which the claimant spent during the extended period in which he might have appealed from the Master's order of 18 June 1998 in connection with his new action, 3398 of 1998. There is no substance in this point. 11 For those reasons I would refuse leave to appeal, and dismiss the summons with costs. 12 HANDLEY JA: I agree with Mason P. 13 FITZGERALD JA: I agree with Mason P. 14 MASON P: That is the order of the Court. * * * * * * * * *