Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sanders-Pattinson v Brown [2013] NSWCA 137 Hearing dates: 20 May 2013 Decision date: 20 May 2013 Before: Basten JA Decision: (1) Dismiss the summons filed on 10 October 2012 seeking leave to appeal against the judgment and orders in the Common Law Division given and made on 31 May 2012. (2) Order the applicant for leave to appeal to pay the respondent's costs of this motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - civil application to dismiss - summons seeking leave to appeal filed out of time - applicant seriously unwell - whether reasonably arguable grounds of appeal - where proceedings below summarily dismissed - whether failure to set aside would unduly burden respondents - no indication applicant's health likely to improve sufficiently to continue proceedings - summary dismissal not fatal to applicant's interests Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 12.11, 13.4, 14.28 Category: Procedural and other rulings Parties: Andrew Stuart Brown (Applicant) Paul Sanders-Pattinson (Respondent) Representation: Counsel: I Griscti (Respondent) Solicitors: Self represented (Applicant) Mullane & Lindsay (Respondent) File Number(s): 2012/212673 Decision under appeal Jurisdiction: 9111 Citation: Sanders-Pattinson v Brown [2012] NSWSC 443 Date of Decision: 2012-05-31 00:00:00 Before: S G Campbell J File Number(s): 2010/425204 Judgment 1BASTEN JA: This case reveals another aspect of the sorry saga of events involving the affairs of former solicitor, Charles Alroy Goldberg. The injured parties in this episode were Mr Anthony Samek and his father, Mr Valerian Samek. Acting on Mr Goldberg's advice, they lent $125,000 on an unregistered second mortgage over a property owned by Anita and Adam Whitton. It appears that the Sameks obtained a judgment against the Whittons in an amount of some $330,000, but received a payment of only $60,000, leaving a significant shortfall. 2On 15 July 2004 the Law Society of New South Wales cancelled Mr Goldberg's practising certificate and appointed Mr Brown (the respondent to the leave application) as manager of the practice of Goldberg and Co. The Sameks, or at least Mr Anthony Samek, continued to seek redress, including from Mr Brown, in respect of the loss suffered on the Whitton loan. At least in part, the loss appears to have resulted from the lapsing of a caveat over the Whitton property, which took place after Mr Brown's appointment, namely on 2 May 2005. However, whether the fault lay with Mr Brown or Mr Goldberg is not apparent from the limited material before this Court. 3At least from March 2005, the applicant, Mr Paul Sanders-Pattinson, acted as an agent for one or both of the Sameks. On 22 February 2008 Mr Valerian Samek assigned his debt to the applicant, who appears to have been a commercial agent for this purpose. 4On 5 February 2010, the applicant commenced proceedings against Mr Goldberg and, on 23 December 2010, against the respondent. The proceedings against the respondent were heard by S G Campbell J in the Common Law Division on 3 May 2012. On 31 May 2012, the trial judge dismissed the proceedings generally pursuant to the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 13.4: Sanders-Pattinson v Brown [2012] NSWSC 443. 5An appeal was lodged, but it has not proceeded smoothly. This may be explained shortly by the fact that the applicant, Mr Sanders-Pattinson, is acting for himself and is in ill-health. As the trial judge noted at [4]: "I should say the apparent delay in the matter coming before the Court for determination was due to serious ill health suffered by the plaintiff in 2011. The parties, as appropriate, so it seems to me, agreed that the hearing should be delayed to allow the plaintiff to undergo necessary medical treatment." 6The applicant's problems did not cease then. The medical evidence before this Court demonstrates that he has continuing serious health problems which have multiplied over the last year or 18 months. It is not necessary to state the details, but the reports from various practitioners provide ample reason for accepting the following statements in a letter of 15 April 2013 from the intake officer at St Vincent's Hospital, Mental Health Service: "The physical strain placed on Mr Pattinson due to his current medical conditions combined with other pressures and no family support have subsequently resulted in Mr Pattinson becoming psychologically exhausted. Mr Pattinson is however doing everything in his power to manage his situation by seeing a counsellor, accessing St Vincent's Community Mental Health Service. Mr Pattinson has displayed enormous resilience given what he has had to deal with, and I would ask that you compassionately consider his circumstances in this matter." 7Those propositions may be accepted without qualification. However, the Court must also consider the circumstances of the respondent, against whom the applicant unsuccessfully brought proceedings in the Common Law Division and now seeks to pursue in this Court. The respondent seeks to have the summons seeking leave to appeal set aside pursuant to UCPR r 12.11 or struck out pursuant to UCPR r 14.28. The former rule allows a proceeding to be struck out if it has been irregularly commenced; the latter allows a pleading to be struck out if it discloses no reasonable cause of action, is likely to cause prejudice, embarrassment or delay or is otherwise an abuse of process. 8The matters relied upon in support of such relief fall into two categories. First, there is a complaint that the summons seeking leave to appeal, filed on 10 October 2012, was out of time. That was correct: judgment having been delivered on 31 May 2012, either a summons or a notice of intention to seek leave to appeal should have been filed and served by 28 June 2012. That was not done. The notice of intention given on 9 July 2012 and served shortly thereafter, absent an extension of time, did not permit the filing of a later summons. Even were that extension of time to be granted, the summons should have been filed on or before 31 August 2012. It was not filed until some six weeks later. 9The second basis for relief sought by the respondent is that the summons provides no basis for granting leave to appeal. The sole ground of appeal, which is repeated in the summary of argument was as follows: "His Honour erred at the interlocutory hearing on 3rd May 2012 by the dismissal of the Statement of Claim issued by the applicant who sought leave to amend. His Honour did so on the basis that the applicant failed to demonstrate an arguable case denying the applicant the opportunity of natural justice and procedure [sic] of fairness in pursuit of the claim to trial or hearing on the merits." 10The precise timing of particular medical events which occurred in 2012 is identified in an affidavit sworn on 15 May 2013 for the purpose of today's proceedings. In particular it records an operation which was performed in October 2012 with subsequent operations in November. Before that the applicant had been subject to other serious illnesses. In toto it is probably sufficient to record that they would warrant the extensions of time which though necessary were not lengthy. One factor which would be relevant in that regard is the respondent's knowledge of the applicant's ill health. Nevertheless, time would not be extended if the Court were not satisfied that there were reasonably arguable grounds of appeal. 11It is clear from the careful and lengthy judgment of the trial judge that, although there was no oral testimony, the applicant filed affidavits which were read, appeared at the hearing, and presented argument. There is no apparent support for the proposition that he did not obtain procedural fairness in the sense that he was not provided with a reasonable opportunity to present his case. 12The rather cryptic ground of appeal may best be understood as indicating an acceptance of the proposition that the statement of claim as filed was inadequate, and that he had sought to amend to overcome relevant deficiencies. However, the judgment below indicates that the applicant's motion before the trial judge sought to join Mr Goldberg and his putative insurer as additional defendants: at [2]. Given there were extant proceedings against Mr Goldberg, the trial judge held that the initiation of a second set of proceedings, based on the same facts and relying on the same causes of action, would have been an abuse of process: at [101]. Further, the trial judge stated that the joinder of Mr Goldberg would not render "the unmaintainable, maintainable": at [102]. In short, the trial judge did not decline to consider the application to amend but, having considered it, held that it did not assist the applicant. That conclusion was not evidently erroneous. 13An alternative understanding of the ground of appeal suggested by counsel for the respondent in Court is that it was procedurally unfair of the trial judge to dismiss the statement of claim without allowing the applicant an opportunity to call evidence in support of his claim. That however is not a basis for an appeal in circumstances where it was not the absence of evidence but the absence of a maintainable cause of action which led to the proceedings being summarily dismissed. 14It may be unusual for a judgment on summary dismissal to require consideration extending over 112 paragraphs. However, there are occasions on which extensive consideration is appropriate, even though the final conclusion is that there is no arguable case warranting a trial. Despite the absence of any ground of appeal seeking to raise a challenge to the reasoning of the trial judge, it is appropriate to add that there is no manifest error in the approach adopted. 15Although these factors are not on their own conclusive, the fact that the proceedings relate to a commercial venture being pursued by the applicant for his own economic benefit, rather than a matter in which he is pursuing interests personal to him, or was a defendant, may be taken into account. It is also relevant, and apparent from the analysis of the trial judge, that the amount in issue is, at least as a practical matter, likely to be less than the amount below which leave is required to pursue an appeal, regardless of other factors which require leave. 16Finally, the medical condition of the applicant, so far as it is revealed by the evidence, does not warrant a conclusion that he is likely to make a sufficient recovery, or that any improvement in his health is likely to be sufficiently sustained, to enable him to pursue these proceedings in the near future. In those circumstances, the respondent would, if the proceedings were permitted to remain on foot, be left in a state of suspension, the object of an unresolved claim. That course is not desirable. Nor would a dismissal of the present proceedings, if later shown to be premature, be fatal to the interests of the applicant. Thus, if, for reasons not presently apparent to the Court, the applicant recovers and is able to pursue the proceedings, the requirements of justice can be reassessed if and when he seeks to commence fresh proceedings by way of seeking leave to appeal out of time. However, the burden of taking that course, if thought appropriate, should lie on the applicant and the matter should not be left in the hands of the respondent to make repeated strike out applications on a six monthly basis. 17Accordingly, the Court makes the following orders: (1) Dismiss the summons filed on 10 October 2012 seeking leave to appeal against the judgment and orders in the Common Law Division given and made on 31 May 2012. (2) Order the applicant for leave to appeal to pay the respondent's costs of this motion. ********** 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. Decision last updated: 27 May 2013