Paccar Financial Pty Ltd v Menzies; Menzies v Paccar Financial Pty Ltd (No 4) [2013] NSWSC 743

Supreme Court New South Wales

Medium Neutral Citation: Paccar Financial Pty Ltd v Menzies; Menzies v Paccar Financial Pty Ltd (No 4) [2013] NSWSC 743 Hearing dates: 13/06/2013 Decision date: 13 June 2013 Jurisdiction: Common Law Before: Harrison AsJ Decision: The Court orders that: (1) The application to reopen the hearing is refused. Catchwords: PROCESS AND PROCEDURE - application to reopen hearing before judgment handed down - applicant did not attend hearing - discretion to be exercised with caution Cases Cited: Autodesk Inc v Dyason [1993] HCA 6; (1992-1993) 176 CLR 300 Category: Procedural and other rulings Parties: 2010/377702 Paccar Financial Pty Ltd (Plaintiff) Ian David Menzies (First Defendant) Colleen Anne Menzies (Second Defendant)

2011/176144 Ian David Menzies (First Plaintiff) Colleen Anne Menzies (Second Plaintiff) Paccar Financial Pty Ltd (Defendant) Representation: Counsel: D Rayment (Paccar Financial Pty Ltd) Solicitors: Mills Oakley Lawyers (Paccar Financial Pty Ltd) I Menzies (In person) File Number(s): 2010/377702; 2011/176144

Judgment 1HER HONOUR: Judgment in this matter was due to be delivered this morning. Mr Menzies appeared for himself and his wife. Mr Rayment of Counsel appeared for Paccar. 2Before I delivered judgment, Mr Menzies made an oral application to reopen the hearing. Paccar objects to this application and points out that it had no notice that it was going to be made. Due to time constraints, I shall provide some short reasons for my decision. 3While I have power to reopen the hearing, the issue that I have to determine is whether I should grant leave to Mr Menzies to reopen the hearing. I do not have a transcript of this morning's proceedings. It appears that Mr Menzies' reasons for seeking a rehearing include: (1) He has further evidence including further affidavits of him and his wife, affidavits of his in relation to proceedings in other courts, together with a box of the original court documents, and an affidavit of his accountant Suzanne Niven. Apparently Suzanne Niven was overseas on the days of the hearing. (2) He will lose his property, upon which his daughter is building a house and the decision will affect his children and his grandchildren. (3) it would be better if further evidence is considered. 4Paccar opposes the application on the basis that: (1) This application could have been made earlier than today and it was made without prior notice to the defendant's solicitors. (2) Mr Menzies made a conscious decision not to appear at Court for the hearing on 14 May 2013 after he was informed by this Court that the hearing would proceed. (3) Paccar has done nothing wrong and it will be prejudiced if the costs of the earlier hearing are thrown away. It is common ground that Mr Menzies is not in a position to pay costs awarded against them. (4) The history of prior adjournments and opportunities Mr and Mrs Menzies have been given to prepare their material for trial. (5) It would cause prejudice to Paccar. (6) There is no change in circumstances that would warrant the reopening of the case. 5In Autodesk Inc v Dyason [1993] HCA 6; (1992-1993) 176 CLR 300 Mason CJ stated: "...The exercise of the jurisdiction to reopen a judgment and to grant a rehearing is not confined to circumstances in which the applicant can show that, by accident and without fault on the applicant's part, he or she has not been heard. It is true that the jurisdiction is to be exercised with great caution, having regard to the importance of the public interest in the finality of litigation. It is equally true, as this Court said in Wentworth v Woollahra Municipal Council that '[g]enerally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.' ... These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law." (citations omitted) 6I shall briefly refer to my earlier decision in relation to the refusal of the adjournment. 7In my earlier judgment refusing Mr Menzies' adjournment application, I referred to the previous adjournment applications at [13] to [24]. I will not repeat them here. Suffice to say he had been given more than ample opportunity to have his case ready for trial. As I stated at [22] from the comments of Garling J on 22 March 2013, Mr Menzies would have been left in no doubt that the hearing was to proceed on 13 May 2013. Nevertheless, Mr Menzies made further applications for an adjournment before Registrar Bradford and myself. 8My reasons (at [35]) for refusing Mr Menzies' application for an adjournment were that: "35 I accept that the Menzies are now not legally represented, and take into account their medical conditions. I also accept the evidence of their former solicitors that 80 percent of their affidavit evidence was prepared as at 25 January 2013. I take into account the hearing date has already been vacated twice and this is the third application to vacate the hearing date. I am not persuaded that if a further adjournment is granted the Menzies will be ready to proceed at a further hearing. I also accept Paccar is suffering prejudice even if it is successful at the hearing and recover and sell the trucks. Paccar may not be able to recover the amount owing to it and its costs that it has expended. There will be a shortfall. After taking all of these factors into account, I refuse to grant the Menzies a further adjournment. The hearing will proceed on the evidence I have before me." 9On 13 May 2013, at the end of the adjournment hearing, the following exchange took place (T58.16-33, 50; T59.1-17): HER HONOUR: No. And can I say, I'm going to give you some reasons tomorrow but I'm going to refuse the adjournment. So we're on for hearing tomorrow. Now, I don't know whether you want to turn up and get your affidavit sworn, the April one. That's a matter for you, or do you want to give evidence? You might want to be crossexamined, or they might run an argument that I don't know, but you can't rely on that affidavit if you're not here. It's a matter for you what you want to do, but sorry I'm not going to grant the adjournment; I am going to proceed to the trial. As I said, now that I go off the bench I'll write my reasons and I'll give them to you in the morning. So the matter is listed for 10 o'clock tomorrow morning. MENZIES: So without any of our evidence or anything? HER HONOUR: Yes, that's right. I'm going to proceed. MENZIES: So what happens if we don't turn up? HER HONOUR: Well, I'll proceed in your absence. ... MENZIES: So I'm here now. I probably hardly got enough money for petrol to get back to Kempsey again, to get whatever documents that are lying around there. HER HONOUR: Well, you must have known that it was on the cards you weren't going to get an adjournment. MENZIES: Well, I wouldn't have dreamt I wouldn't have got an adjournment." 10During the hearing on 14 May 2013, while I was in Court, Mr Menzies emailed my associate. He proffered an explanation for not appearing in Court that day (Ex 5). It was: "I had loaded all of our evidence on to a box trailer approx. 1/2 tonne plus reference books along with her computer because she contains hundreds of thousands of documents that must be perused to obtain our evidence in a vain attempt to try to present it in the hearing, that was indicated would go ahead today. She [Colleen] started vomiting and was upset so therefore I was unable to leave. She has to come with me because I can not operate a computer at all." 11It is difficult to comprehend why Mr Menzies returned to the Kempsey region overnight when he knew the hearing was to commence the next day, particularly as he hardly had any petrol money to get there. Hence, I regard this explanation with some scepticism. 12To reopen this case now would involve days of hearing. The witnesses that were present from interstate would most likely need to be recalled for cross examination. Other witnesses such as the Menzies' accountant would have to give evidence, Mr and Mrs Menzies would have to give evidence at least in the case where they are plaintiffs. It would take days of hearing and would be costly. A condition of any reopening of the hearing would be on the basis the Menzies pay Paccar's costs thrown away on 13 and 14 May 2013. Mr and Mrs Menzies are not in a financial position to do so. There is already a shortfall between the value of the trucks and the amount of debt. 13I remind myself that the discretion to reopen a hearing is to be exercised with great caution. Mr Menzies had been afforded opportunities to have his case fully prepared for trial and did not do so. Even when he was informed the hearing set down on 13 May 2013 would not be adjourned by Garling J, Registrar Bradford and this Court. Despite this he said, "I wouldn't have dreamt I wouldn't have got an adjournment." Nevertheless, he still adhered to the view that he was entitled to an adjournment and elected not to appear at the hearing. Even now, Mr Menzies has left it to the last minute to seek to reopen the hearing and without notice to Paccar's legal representatives. He is not in a position to pay the costs thrown away on 13 and 14 May 2013 and there is a shortfall between the value of the trucks and the amount of the debt. Paccar would be unfairly prejudiced if the hearing was reopened. Taking these circumstances into account, it is my view that the hearing should not be reopened.