Combe v Ziade [2002] NSWCA 309

New South Wales Court of Appeal

CITATION : Combe v Ziade [2002] NSWCA 309 FILE NUMBER(S) : CA 40370/02 HEARING DATE(S) : 9 September 2002 JUDGMENT DATE : 9 September 2002

Faye Combe PARTIES : v Anthony Ziade JUDGMENT OF : Handley JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT DC 2640/94 FILE NUMBER(S) : LOWER COURT Hosking DCJ and Gibson DCJ JUDICIAL OFFICER :

COUNSEL : Claimant - in person Opponent - B Skinner SOLICITORS : Claimant - in person Opponent - Acuiti Legal CATCHWORDS : LEAVE TO APPEAL OUT OF TIME - NO QUESTION OF PRINCIPLE Supreme Court Act s 75A LEGISLATION CITED : Supreme Court Rules Pt 51 r 19 District Court Act CASES CITED: Gallo v Dawson (1990) 64 ALJR 458 DECISION : Motion dismissed. Claimant to pay the opponent's costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40370/02 DC 2640/94 HANDLEY JA

9 September 2002 FAYE COMBE v ANTHONY ZIADE

Judgment 1 HANDLEY JA: This is a most unfortunate case as will appear from the reasons I am about to give. The claimant, who is representing herself, has moved on a notice of motion of 29 August for an extension of time for seeking leave to appeal from a judgment of Hosking DCJ given on 14 November 2000 and a judgment of Gibson DCJ given on 30 May 2001 followed by an order for costs made on 25 October that year. 2 The first attempt to challenge these judgments was made by the filing of a summons for leave to appeal on 7 May of this year. The notice of motion foreshadows an application that new evidence be received and it also seeks a stay of the orders of Hosking DCJ and Gibson DCJ pending the determination of the summons for leave to appeal. A further claim that the opponent, Mr Ziade, deliver up the original business records and trust account records of the estate to the administrator was not pressed. 3 These proceedings arise out of events which occurred substantially between 1990 and 1993. The claimant's late father, Mr Douglas Harris, made his last will on 6 January 1977. This, however, was revoked when he remarried later that year although that marriage was dissolved three years later. He died on 21 January 1990 without having made a new will. The claimant was named as executrix of the revoked will which left the deceased's estate equally to herself and her brother. She instructed the opponent, a solicitor, to apply for probate of the will. The opponent accepted her instructions, obtained probate and acted for her in connection with estate matters until the grant was revoked. 4 An alleged de facto wife of her late father commenced proceedings under the Family Provision Act which came on for hearing before Hodgson J in the Equity Division during 1993. At a late stage in these proceedings the existence of the subsequent marriage came to the attention of the legal advisers for the parties and as a result the grant of probate to the claimant was revoked and Letters of Administration were granted to her brother. The claimant informed me that the grant to her brother has never been revoked. 5 As a result of the grant of administration all the rights of the estate became vested in the claimant's brother as administrator. He is therefore entitled to an accounting by Mr Ziade of any monies received on behalf of the estate and to payment of any funds held by him or which ought to be held by him on a proper accounting. He is also entitled to any estate documents in Mr Ziade's possession. 6 The claimant is not entitled to exercise or enforce the rights of the estate that are vested in her brother although, of course, she is beneficially entitled to half the estate. It appears that the estate has been fully administered apart from whatever monies are retained by Mr Ziade for which he has not properly accounted to the administrator. 7 After Mr Ziade ceased to act for the claimant he prepared and delivered one or more bills of costs which, it seems, were in taxable form. The claimant did not seek to have the bills taxed by the court. 8 Mr Ziade also acted for the claimant in divorce proceedings against her former husband in the Family Court. The costs in respect of those proceedings were taxed in the Family Court and Mr Ziade sued on the certificate of taxation in the Burwood Local Court. After lengthy proceedings he obtained judgment for his taxed costs. An appeal by the claimant to the Supreme Court failed or was withdrawn. 9 In 1994 Mr Ziade sued the claimant in the District Court for the costs incurred by her in connection with estate matters. The claimant said during argument that these are a liability of the estate and in a sense they are but they were incurred after the death of the deceased under a contract of retainer she made with Mr Ziade and she is personally liable. She probably has, although I'm not in a position to express a final view, a right of indemnity against any unadministered assets and she may have a right to contribution from her brother. However these rights were not a defence to the proceedings brought by Mr Ziade to recover his costs. 10 The claimant defended these proceedings but in substance only by a cross-claim for professional negligence. 11 The claimant believes and asserted during her submissions that Mr Ziade had been or may have been paid in whole or in part out of estate funds in respect of the costs for which he sued. However, no defence of payment was ever pleaded and no attempt was made to plead it. 12 The proceedings came on for hearing before Hosking DCJ some six years after they were commenced and no evidence of payment was led during the hearing. 13 It is now far too late, in an appeal from Hosking DCJ's judgment, for the claimant to prove that the debt on which she sued had been paid in whole or in part. She may have a remedy elsewhere subject to a possible defence of res judicata if she can prove payment which would entitle her to restrain enforcement of the judgment. However such a remedy is not available in the proposed appeal because the evidence which might support it could have been obtained during the six years in which the proceedings were pending. 14 It is evident from the judgments, the transcript, the affidavits and the submissions of the claimant that, as a self-represented litigant, she has had extraordinary difficulties in representing herself in the situation which arose after the grant of probate was revoked. She also claimed that the opponent failed at various times to produce documents to the Court in answer to subpoenas. However the Court cannot act as her solicitor and barrister but must adjudicate on the case before it in accordance with established principles. 15 The claimant was also troubled by ill health and, of course, the break up of her marriage. She had professional assistance at some stages but at other times either no professional assistance or some pro bono assistance at the last minute where there was not the time or the opportunity to properly prepare and present her case. 16 It is apparent that there has not been any determination of these proceedings on the merits as the claimant would see them but they have, nevertheless, been determined on the merits so far as the law is concerned. 17 After Hosking DCJ entered judgment for the opponent for the debt claimed of $44,418.37, together with pre judgment interest from February 1994 until judgment, he refused a stay of proceedings. The only defence that had been filed to those proceedings was a cross-claim for professional negligence and the hearing of that cross-claim was adjourned to a later date. 18 The cross-claim came on for hearing before Gibson DCJ in May 2001 and was dismissed following a lengthy hearing. Part of the cross-claim was based on the claimant's allegation that Mr Ziade had been negligent in the conduct of proceedings in the Family Court on her behalf. Gibson DCJ struck out these particulars of negligence during the trial. In doing so she followed an earlier decision of Simpson J in proceedings for professional negligence brought in the Supreme Court which were dismissed because the cross-claim raising the same issues was pending in the District Court. 19 The claimant wishes to rely on some assurance or undertaking given by or on behalf of Mr Ziade at some stage during earlier proceedings that he would not rely on the decision of the Burwood Local Court as a res judicata or issue estoppel in answer to this part of her cross-claim in the District Court. 20 If this was the case, and I am not in a position to form any judgment on that matter at this stage, the existence of that assurance or undertaking was a matter of vital importance to be brought to the attention of Simpson J and it seems that this was not done. The claimant says this was because the barrister representing her on that occasion was not aware of the existence of this assurance or undertaking. Whether that is true or not the fact is that Simpson J did express a clear view that res judicata or issue estoppel would be available as a result of the decision of the Burwood Local Court against any claim by the claimant for professional negligence in the conduct of proceedings in the Family Court. 21 For all practical purposes Gibson DCJ was bound by the judgment of Simpson J and it follows that her order striking out this part of the cross-claim is not really open to challenge. The claimant really has no prospects of having that part of Gibson DCJ's decision reversed on appeal. 22 The rest of the cross-claim was for professional negligence while acting on behalf of the claimant as executor of the estate. Insofar as this was a claim for breach of contract that contract was with the claimant. Insofar as it was a claim of tort the claimant may have had a cause of action for loss sustained by her as a beneficiary. If not the cause of action in tort would have been vested in her brother as administrator. However, this part of the cross-claim was heard and determined by Gibson DCJ on its merits. 23 The claimant gave oral evidence before Gibson DCJ in support of her cross-claim and Mr Ziade gave evidence in support of his defence. Gibson DCJ, in a lengthy extempore decision, accepted Mr Ziade's evidence in preference to that of the claimant wherever their evidence conflicted. In particular, she accepted Mr Ziade's evidence that he was not told about the remarriage of the deceased after he made his will in January 1977. On that basis the Judge found, unsurprisingly, that he had not been negligent in obtaining probate of the will on the claimant's instructions. 24 As I said on all other disputed questions of fact Gibson DCJ preferred the evidence of Mr Ziade to that given by the claimant. Furthermore the Judge held that there was no evidence that the claimant had suffered any quantifiable loss as a result of any professional negligence that Mr Ziade may have committed while acting for her in connection with the estate. Accordingly she dismissed the cross-claim. 25 It is apparent that there was no basis whatever for interfering with the decision of Hosking DCJ on the evidence before him and the claimant faces real and, I think I can fairly say, enormous difficulties in seeking to disturb the judgment of Gibson DCJ. 26 The High Court of Australia has held again and again that an intermediate appellate court, such as the Court of Appeal of New South Wales, is not free to reverse a finding of fact made by a trial judge based on his or her assessment of the credibility of conflicting oral evidence except in special and limited circumstances. The present case does not appear to fall within any of the recognised exceptions. Indeed, it seems evident from the claimant's submissions that her prospects of success in an appeal from Gibson DCJ's decision depend on her ability to adduce fresh evidence in the appeal. 27 There are strict limits on the extent to which fresh evidence can be admitted on an appeal after there has been a hearing in a lower court on the merits. This is referred to in the Supreme Court Act s 75A and the Supreme Court Rules Pt 51 r 19. At the present time it is a matter of speculation whether any significant body of new evidence could be obtained which would cast doubt on the correctness of the decision of Gibson DCJ. However in view of the period of seven years or more which elapsed between the commencement of the proceedings by Mr Ziade in 1994 and the hearing before Gibson DCJ in May 2001 it seems practically impossible for the claimant to ever establish that the requirements for fresh evidence were satisfied in respect of any additional evidence that she may seek to lead in the appeal. 28 Then, of course, there is the question of delay. The claimant obviously had real difficulties in pursuing her appeal rights from these judgments. She did not obtain the judgment of Hosking DCJ until September 2001. However, in that respect I have already pointed out that there was no defence to those proceedings other than the cross-claim and the judgment of Hosking DCJ on the pleadings and evidence before him was inevitable. The claimant also had difficulties in pursuing appeal rights in respect of the judgment of Gibson DCJ although she did have pro bono professional assistance in connection with the argument for costs. She was represented by Mr Marr of counsel before Gibson DCJ on 13 September 2001 when argument took place on the costs question, judgment being given on 25 October. The fact remains that something a few days less than one year elapsed between Gibson DCJ's substantive decision and the first attempt made by the claimant to exercise appeal rights. 29 Since the claimant cannot and does not assert that her cross-claim involved an amount in excess of $100,000 she needed leave to appeal from the decision of Gibson DCJ in accordance with s 127(1)(c) of the District Court Act. The Court would be cautious in granting leave to appeal in a case such as this where the judgment below was based upon the absence of evidence of quantifiable loss and on a credibility finding. However, to these existing difficulties must be added the effect of the delay. 30 There may be somewhere in all this material, and in material not before the Court, the basis for some claim, perhaps by the administrator on behalf of the estate, perhaps by the claimant against the administrator, whereby the claimant can get some protection or some recompense against her liability under the judgment in the District Court. If I thought there was any practical prospect that the Court of Appeal would receive fresh evidence which could lead to the appeal being successful I would wish to extend every possible indulgence to the claimant to enable her to pursue the remedy of an appeal in this Court. It seems to me, however, that the difficulties in her way are just insuperable. 31 She is personally liable for these costs to the plaintiff. She did not ask for the bills to be taxed and after six years there was no plea of payment and after seven years there was no evidence of loss and her evidence has been rejected where it conflicted with that of the opponent. The matter in substance is in the hands of the administrator to pursue an accounting and to collect any outstanding assets to enable some payment or, perhaps, complete payment to be made either to the claimant or to the opponent. 32 Apart from that the claimant may be entitled to recover half these costs from her brother as administrator and as an equal beneficiary but those rights have to be exercised in other courts and in other proceedings. 33 In the circumstances it seems to me that the case is covered by the decision in Gallo v Dawson (1990) 64 ALJR 458. McHugh J there held that when an application is made to file an appeal out of time it is always necessary to consider the applicant's prospects of succeeding in the appeal. In the present case I have concluded that for a host of reasons the claimant has no realistic prospects of obtaining leave to appeal to this Court from the judgment of Gibson DCJ and no prospects at all of obtaining leave to appeal from Hosking DCJ. In those circumstances I must dismiss the motion and order that the claimant pay the opponent's costs. ******