New South Wales Supreme Court CITATION : Choo v Banking & Financial Services Ombudsman Ltd [2008] NSWSC 1098 HEARING DATE(S) : 2 September 2008 JURISDICTION : Equity Division Duty List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 2 September 2008 DECISION : Adjournment refused. Appeal allowed only to clarify certain orders, otherwise dismissed, with costs. CATCHWORDS : PROCEDURE – APPEALS – self-represented appellant – appeal from decision of Associate Judge – where only real issue is costs – where Notice of Appeal raises numerous irrelevant side issues – where appellant unable to articulate substantive relief sought – where appellant disputed accuracy of transcript – whether appellant should be granted adjournment to prepare written submissions – whether appellant should be granted adjournment to obtain audio recordings of earlier proceedings - COSTS – whether Associate Judge's exercise of discretion in ordering appellant to pay certain costs miscarried. LEGISLATION CITED : (NSW) Civil Procedure Act 2005, ss 56, 57 (NSW) Uniform Civil Procedure Rules, r 49.19 CATEGORY : Procedural and other rulings Hong Hee Choo (plaintiff) PARTIES : Banking & Financial Services Ombudsman Ltd (first defendant) Colin Robert Neave (second defendant) Angelique Stella (fourth defendant) FILE NUMBER(S) : SC 3131/06 COUNSEL : Mr Choo (in person) (plaintiff) Mr D J A Mackay (defendants) SOLICITORS : Kennedys Lawyers (defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST BRERETON J Tuesday, 2 September 2008 3131/06 Hong Hee Choo v Banking and Financial Services Ombudsman Ltd & 4 Ors JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff Hong Hee Choo sues the first defendant Banking and Financial Services Ombudsman Limited and the second defendant Colin Neave – who apparently is the Banking and Financial Services Ombudsman – on various causes of action said to arise out of the manner in which the defendants dealt with a complaint made by Mr Choo against the National Australia Bank. By an Amended Notice of Motion filed on 6 March 2008, Mr Choo sought (1) an order that Angelique Stella be added as a defendant, (2) "unconditional leave to file a further amended statement of claim as sworn on 5 March 2008", alternatively (3) that the first and second defendants' defence be struck out and (4) judgment for Mr Choo for damages to be assessed, and (5) costs. That motion was heard by Senior Deputy Registrar Musgrave on 25 March 2008, when he dismissed the claims for relief in paragraphs 1 and 2 of the Notice of Motion, taking the view that the then proposed Further Amended Statement of Claim did not disclose a viable cause of action against the proposed fourth defendant Ms Stella. The Registrar also ordered that Mr Choo pay the defendants' costs of the motion. The balance of the motion – which related to striking out and summary judgment – was not dealt with by the Registrar, who indicated it would need to be referred to an Associate Judge in due course. 2 On 21 April 2008, Mr Choo filed a motion ("the review motion") claiming orders, by way of review of the Registrar's decision of 25 March, as follows [sic]: 1. Pursuant to r 49.19 of the Uniform Civil Procedure Rule 2005 (NSW) ("UCPR") that the Registrar's decision or order made on 25 March 2008 be varied to the effect that the following orders be made. 2. By reviewing the Registrar's decision or order made on 25 March 2008 that Angelique Stella, the respondent to the motion, be added as a defendant (the fourth defendant), pursuant to r 6.19 or 6.21 of the UCPR. 3. By review of the Registrar's decision or order made on 25 March 2008 that leave be granted to the plaintiff to file a further amended statement of claim as filed 6 March 2008 or attached to the submission by the first and second defendants and the respondent, Ms Sella, on 25 March 2008. 4. Pursuant to ss 56 and 64 of the Civil Procedure Act 2005 or r 6.18 of the UCPR that leave be granted to the plaintiff to file a further amended statement of claim within 14 days so as to all of the causes of action to be dealt with in the same proceedings. 5. That the first and second defendants and the respondent pay the plaintiff's costs of the motion to review the Registrar's decision and related applications. 6. Such other orders as this Honourable Court deems fit. 3 (NSW) Uniform Civil Procedure Rules ("UCPR"), r 49.19, provides: If in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 4 The review motion, and the balance of the original motion (relating to striking out and summary judgment) came before Macready AsJ for hearing on 10 July 2008. In preparation for that hearing, Mr Choo, on 26 June 2008, served an affidavit which annexed a further proposed Amended Statement of Claim, this time pleading with appropriate particularity claims under the (NSW) Fair Trading Act 1987, s 42, and (CTH) Trade Practices Act 1974, s 75B, against Ms Stella. It is common ground that, at least in one respect, the view the Registrar had taken of the operation of those provisions; in respect of the liability of individual was in error. At the commencement of the hearing before the Associate Judge, counsel for the defendants conceded that the proposed amended pleading now contained a properly pleaded cause of action under the Fair Trading Act and Trade Practices Act against Ms Stella, and that in those circumstances the defendants would consent to the joinder of Ms Stella as fourth defendant and the filing of the new proposed Further Amended Statement of Claim, subject to questions of costs. 5 Argument proceeded before the Associate Judge only on the question of costs. Mr Choo endeavoured to agitate questions as to the merits of the Registrar's decision. The Associate Judge did not permit this, being of the view that, in circumstances where the relief sought (leave to amend) was now consented to, it was no longer necessary to embark on that inquiry. After the argument as to costs, the Associate Judge made orders as follows: 1. By consent, leave be granted to the plaintiff to join Miss Angelique Stella as a fourth defendant. 2. By consent, leave be granted to the plaintiff to file and serve an amended statement of claim in the form of annexure E to the plaintiff's affidavit sworn 26 June 2008 by Friday 11 July 2008. 3. The Court orders that the plaintiff to pay the defendants' costs thrown away which were occasioned by the filing of the further amended statement of claim. 4. The Motion of 21 April 2008 is dismissed. 5. The Court make no order as to costs of the Notice of Motion of 21 April 2008. 6. The Notice of Motion of 6 March 2008 is dismissed with costs. 7. The matter is stood over for further directions before the Registrar on Friday 24 October 2008. 6 A number of observations may be made. Orders 1 and 2 reflected, in substance, the relief sought in the review motion. Order 3 – that Mr Choo pay the defendants' costs thrown away by the amendment – is the order one would ordinarily expect to see consequent upon an amendment. Yet order 4 dismissed the review motion. This is, at least at first sight, inconsistent with orders 1 and 2, which substantially granted the relief sought in that motion. Having regard to the short minutes which were exchanged between the parties prior to the hearing that day, it is likely that what was intended was that the motion of 21 April 2008 be otherwise dismissed; only on that reading does it make sense. Order 6 dismissed the original motion (of 6 March 2008). Insofar as that motion sought striking out and summary judgment, then that consequence seems to follow from what the transcript of the proceedings records as Mr Choo's announcement, at the outset of the hearing, that he was not pressing such an application. However, insofar as it relates to the balance of the original motion, that also seems somewhat inconsistent with the first two orders, which in substance, granted the relief originally sought in the motion of 6 March 2008 when it was before the Registrar. Again, the intent appears to have been that the original motion be "otherwise" dismissed. 7 All that said, the outcome before the Associate Judge was that, save as to questions of costs, the substantive relief which Mr Choo sought in his review motion was obtained, and it was obtained upon the defendants' consent being given. 8 On 5 August 2008, Mr Choo filed a motion, by way of appeal to the Court from the Associate Judge's decision, and it is that motion which is before me for hearing today. In that motion, he seeks the following relief [sic]: 1. Appeal allowed. 2. The orders 3, 4 and 6 made by the Honourable Associate Justice Macready on 10 July 2008 be set aside. 3. The orders 1 and 2 of the Associate Judge be affirmed, with variation of the part of those orders by removing the word "by consent". 4. Further to paragraph 2 above, in lieu of the order 4 of the Associate Judge, the motion of 21 April 2008 for the appeal from the decisions of the Senior Deputy Registrar Musgrave of 25 March 2008 be upheld. 5. The orders (decisions) of the Senior Deputy Registrar Musgrave made on 25 March 2008 be set aside. 6. Further to paragraph 2 above, in lieu of order 6 of the Associate Judge, there be no notice of motion of 6 March 2008 and accordingly no order as to the costs of that motion because that notice of motion was modified by the amendments as a result of filing of the notice of motion 21 April 2008. 7. Alternatively to paragraph 6 above, the notice of motion for striking out defence be heard and determined at the same time as the hearing of this appeal against the orders of the Associate Judge. 8. The defendants pay the plaintiff's costs of and incidental to the plaintiff's notice of motion of the appeal from the decision of the Associate Judge on 10 July 2008. 9 The motion was returnable before the Registrar this morning and referred to me as Duty Judge for hearing, with an estimate of one to two hours. Although Mr Choo has complained that it took longer – in that the hearing of the motion commenced at about 12:50pm and continued until about 1:45pm; and then resumed about 2:15pm and continued until 3:45pm, when I commenced to give this judgment – most of that time was occupied by Mr Choo's submissions and addresses to the Bench. 10 Mr Choo, at least towards the end of his submissions, applied in various ways for an adjournment. He sought time to provide written submissions, particularly on questions of further evidence and costs. He observed that the hearing had taken longer than had been estimated, suggesting that it had therefore been wrongly referred to the Duty Judge for hearing, and that he anticipated that I would have granted a later date for its hearing, rather than proceeding today. 11 In my view, there is absolutely no point in adjourning this matter for further argument or in permitting written submissions. Too much time has been spent already on what is a side issue. Nothing I say in this connection should be taken to reflect on Mr Choo's main claim: while I have only scanned the Further Amended Statement of Claim, it may well be that Mr Choo has a viable and reasonable claim for substantive relief against the defendants. It would be unfortunate if the attention that such a claim may deserve were to become distracted by side issues such as the present application. 12 A main basis on which Mr Choo sought an adjournment was for the purposes of obtaining audio tapes of the hearing before the Associate Judge and before the Registrar, because he complained that the transcript was not a true and accurate one, and he wished to conduct the appeal on a true and accurate transcript. As will become apparent, I do not think that anything that occurred in the course of the hearing before the Associate Judge – let alone before the Registrar – is sufficiently material to the issues which remain on this appeal as to possibly be affected by a dispute over the accuracy of the transcript. It would simply incur further costs and waste further time to adjourn this hearing for the purpose of obtaining audio tapes. 13 Generally, I bear in mind (NSW) Civil Procedure Act 2005, ss 56 and 57. Section 56 dictates that the overriding purpose of the Act in its application to civil proceedings is to facilitate the just, quick and cheap resolution of the real issues in proceedings, and that the Court must seek to give effect to the overriding purpose when it exercises any power given to it by the Act or by Rules of Court. Section 57 provides – for furthering the overriding purpose referred to in s 56(1) – that proceedings in any court are to be managed having regard to the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the respective parties. 14 Mr Choo also sought to tender before me, in addition to two affidavits which were read without objection, documents produced on subpoena to the Registry at some earlier stage, and a further affidavit of Mr Choo, sworn on 1 November 2007. So far as the subpoenaed documents were concerned, no arrangement had been made for them to be produced to the Court. They were not available to be tendered in Court. They had not been in evidence before the Associate Judge, and their relevance to the very narrow real issues on the appeal was not made apparent. I therefore declined the leave that would have been required to tender them in circumstances where they had not been before the Associate Judge. 15 So far as the further affidavit of Mr Choo is concerned, it was said to be relevant to two sub-grounds of the appeal, being grounds 3(g) and (h). I do not see how those grounds could make any difference to the outcome on the narrow issues that remain. 16 The starting point for this appeal must be that, one way or another, the orders made by the Associate Judge in substance granted what Mr Choo sought in his application before the Associate Judge. That may leave disputable questions as to the form of some of the orders, and costs. But Mr Choo implored the Court with pleas for justice and time. I repeatedly asked him to identify what substantive relief he sought (other than on questions of costs, which he appeared to accept were in the Court's discretion), that he had not obtained from the Associate Judge (namely, leave to join Ms Stella and leave to file a Further Amended Statement of Claim); but so far as I could understand his response, no satisfactory answer was ever given to that question, despite its repetition on numerous occasions. It is impossible to be sympathetic to pleas for justice, time and adjournments when Mr Choo was unable to identify what, in substance, ought to have been done differently by the Associate Judge had he not fallen into the errors alleged in the Notice of Appeal. 17 The Notice of Motion contains numerous grounds of appeal, with many sub-grounds. It would be disproportionate, having regard to the real issues on this application, to address each of them. I will endeavour to summarise and focus on what are or should have been the real issues. The Notice of Appeal raises many side issues which, in light of the substantive orders ultimately made by the Associate Judge, really do not bear on the outcome. 18 Insofar as the Notice of Appeal seeks that orders 1 and 2 of the Associate Judge be varied by omitting the words "by consent", I fail to understand the contention, since it is manifest that before the Associate Judge the defendants indicated that they did consent to those orders. 19 As I have indicated, insofar as order 4 made by the Associate Judge dismissed the motion of 21 April 2008, it is inconsistent with orders 1 and 2, and ought to be amended to read "otherwise dismissed". So far as order 6 is concerned, likewise it seems to me that it ought to be limited to that part of the motion of 6 March 2008 the dismissal of which was not inconsistent with the relief granted by Macready AsJ – namely insofar as it sought a striking out and summary judgment. I have perused the Defence filed on 8 August 2008 to the Second Amended Statement of Claim of 11 July, and there is no immediately apparent basis on which it would be struck out; in any event, Mr Choo did not press that application before the Associate Judge. 20 That leaves what always ought to have been apparent as the only real issue in dispute on the appeal – namely, the question of costs. Costs are discretionary, and a judge has a fairly wide discretion as to what costs order should be made. 21 No criticism can be made of the order that Mr Choo pay the defendants' costs thrown away by the amendment he was granted leave to make, that being the ordinary consequence of amending any pleading. 22 The Associate Judge made no order as to the costs of the review motion. In doing so, his Honour would have balanced the fact that Mr Choo succeeded in obtaining the substantive relief sought, but did so as a matter of consent, without admission that he was entitled to succeed, and in circumstances where he had provided a Further Draft Amended Statement of Claim articulating causes of action under s 42 and s 75B clearly for the first time only after the motion was filed and served. In those circumstances, I do not think that the Associate Judge's discretion can be said to have miscarried in making no order as to costs of the review motion. 23 So far as the original motion of 6 March 2008 is concerned – which the Associate Judge dismissed, indicating that part of the relief was unnecessary, and the other part (being the strike out application) not being pressed – that part which the Associate Judge characterised as unnecessary was the part dealt with by the Registrar on 25 March and was ultimately the subject of the review motion before the Associate Judge; to that extent, it ultimately succeeded. On the other hand, when the Registrar dismissed that application, the pleading did not then satisfactorily articulate a cause of action under s 42 and s 75B against the proposed fourth defendant, and it was the pleading of such a cause of action in the further draft pleading of 26 June 2008 that resulted in the defendants changing their position and giving their consent. In those circumstances, the Associate Judge's discretion in respect of the costs of the Motion of 6 March 2008 cannot be said to have miscarried. 24 For the reasons I have given, the costs orders made by the Associate Judge did not involve any miscarriage of discretion. Accordingly, they ought not be set aside. I will affirm the orders of the Associate Judge in respect of the motion of 21 April 2008, varied in the manner I have indicated. Although the plaintiff has achieved a modicum of formal success in varying the terms of the orders, it is without practical significance. The application was a waste of time, and the plaintiff must pay the costs. 25 My orders are: (1) Appeal allowed in part. (2) Vary orders 4 and 6 made by Macready AsJ on 10 July 2008 by inserting the word "otherwise" before the word "dismissed" in each case. (3) Appeal otherwise dismissed. (4) Order that the plaintiff pay the defendants' costs of the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.