Conley v Commonwealth Bank of Australia [2000] NSWCA 172

New South Wales Court of Appeal

CITATION : Conley v Commonwealth Bank of Australia [2000] NSWCA 172 FILE NUMBER(S) : CA 40625/99 HEARING DATE(S) : 26 June 2000 JUDGMENT DATE : 26 June 2000

PARTIES : Stephen Roger Conley (Appellant) Commonealth Bank of Australia (Respondent) JUDGMENT OF : Heydon JA at 1

COUNSEL : Appellant in person Respondent - G KBurton SOLICITORS : Appellant in person Respondent - L E Taylor

DECISION : See paras 15-19

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40625/99

HEYDON J

Monday, 26 June 2000

STEPHEN ROGER CONLEY v COMMONWEALTH BANK OF AUSTRALIA

JUDGMENT

1 HIS HONOUR: This is an application by Stephen Roger Conley, against whom Master Malpass made orders in effect for possession of his residence in respect of indebtedness to the Commonwealth Bank of Australia. The application is for a stay of execution of Master Malpass' judgment pending the outcome of Mr Conley's application for special leave to appeal to the High Court of Australia No.S119 of 2000. 2 Alternatively, the position was adopted in oral argument that the application was for a stay pending the outcome of an application for legal aid in order to prosecute that special leave application. 3 The Commonwealth Bank of Australia did accept that if it executed on Master Malpass' judgment it would have the effect of depriving Mr Conley of his residence and that loss would render any appeal, assuming special leave were granted and the appeal succeeded, nugatory. But the Commonwealth Bank put as its first submission that it was extremely difficult for an application for special leave to obtain a stay unless that applicant could show substantial prospect of success in the application for special leave and in any consequential appeal. For that proposition the bank cited several authorities, being principally decisions of single Justices of the High Court of Australia. 4 The Bank submitted that Master Malpass' decision was a discretionary decision and the Court of Appeal had not interfered with the outcome of it, that is to say it had not found any error in his manner of formulating the test or any error in his application of it. The Bank submitted that there was no error in the Court of Appeal's formulation of the test or in its application of it. 5 The Bank drew attention to the fact that in two relatively recent cases applications for special leave to appeal in relation to the Contracts Review Act 1980, on which Mr Conley relies, failed and the Bank, accordingly, submitted that there was some reason to suppose that it could not be predicted of the High Court that it was likely to grant special leave in that case in relation to that legislation. 6 So far as Mr Conley's application for legal aid is concerned, the Bank submitted it was highly unlikely he would obtain legal aid. The Bank drew attention to certain of the evidence that was tendered to Master Malpass, in particular the following: "On 7 March 1997 the Legal Aid Commission informed Robert T Dunn & Co, solicitors then acting for Mr Conley that his application had been refused because his assets exceeded the limits allowable under the Commission's means test guidelines and further that the application did not satisfy the Commission's merit test or whether it was reasonable in all the circumstances to grant legal aid." 7 In fact, the Bank submitted that if the application failed in 1997 there was no reason to suppose it was likely to have a better chance of success in the year 2000. 8 Finally, the Bank drew attention to the fact that in the Court of Appeal's reasons for judgment it had been pointed out that even if the application under the Contracts Review Act succeeded it would not totally absolve Mr Conley from the need to repay at least the principal moneys owing and possibly some interest as well. 9 It is difficult to grapple in satisfactory fashion with the bank's argument, in view of the fact that Mr Conley has, since the departure of Robert T Dunn & Co from the scene, not had the advantage of legal advice. Mr Conley has to overcome the difficulty that Master Malpass has rejected his contentions, and the decision was unanimously upheld by the Court of Appeal. 10 Mr Conley's application for special leave to appeal, as filed with the High Court, does not, according to traditional thinking, propound any ground which would be likely to attract special leave to appeal. The ground is expressed as follows in para 2: "As the applicant could not present matters of evidence to his advantage by being unrepresented due to the lack of funds the other party had unfair advantage". 11 However, the history of special leave applications in the High Court in recent years has thrown up a not insignificant number of instances, including instances where the litigation was largely conducted by litigants in person, where traditional thinking was overturned in criminal proceedings. An example is Dietrich v R (1992) 177 CLR 292, where special leave was granted to an applicant who complained of an inability to secure proper representation because of a lack of funds. 12 Civil proceedings of course are radically different from criminal proceedings in many respects. The point is it is not unthinkable that the ground formulated by Mr Conley might form some avenue of success. 13 In my judgment, the appropriate course is to grant the more limited of the two possible stays, namely a stay until the legal aid application is determined, not on the basis that Mr Conley has demonstrated a ground which has substantial prospect of special leave being granted, but simply to hold the position until such time as an independent legal adviser can bring his or her mind to that question and advise Mr Conley as to how to proceed from that point on. 14 I think if that form of stay is to be granted, though, it will be necessary to secure from Mr Conley an undertaking to use his best endeavours to expedite his application for legal aid so far as anything further remains to be done by him and to keep the Commonwealth Bank of Australia informed as to its outcome. (His Honour had a short discussion with Mr Conley and Mr Conley agreed to give an undertaking.) 15 The orders are as follows. I grant a stay of execution of the judgment of Master Malpass made on 27 July 1999 until 9 October 2000. I stand the notice of motion dated 15 June 2000 over to 9 October 2000. 16 I note the undertaking to the court of Mr Conley that he will correspond with the Legal Aid Commission before 1 September 2000 in order to endeavour to expedite the progress of his application for legal aid with the Commission. 17 I note Mr Conley's indication of willingness to send a copy of these orders and these reasons for judgment to the Commission with a view to acquainting them of the relative urgency of the matter. 18 I grant liberty to both parties to apply on seven days' notice. 19 I reserve the costs of the notice of motion on the basis that the just disposition of that matter will depend on the outcome of events in future. . **********