Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Battaglia v ING Bank (Australia) Limited [2014] NSWCA 387 Hearing dates: 10 November 2014 Decision date: 10 November 2014 Before: Barrett JA; Gleeson JA Decision: 1. The summons seeking leave to appeal is dismissed. 2. The applicants are to pay the respondent's costs of the proceedings in this Court. [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 AND NEW TRIAL - application for leave to appeal - leave sought in respect of order setting cross-claims down for trial at same time as other aspects of the proceedings - whether manifest injustice - application dismissed Cases Cited: Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; 148 CLR 170 House v The King [1936] HCA 40; 55 CLR 499 In the Will of F B Gilbert (1946) 46 SR(NSW) 318 Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 Category: Interlocutory applications Parties: Stefano Bruno Battaglia (First Applicant) Florentina Battaglia (Second Applicant) ING Bank (Australia) Limited (First Respondent) Grant Dene Sparks, Michael Andrew Owen and Stephen Parbery (Second Respondents) Representation: Counsel: Mr N A Cotman/Mr D Parish (Applicants) Mr D A Savage QC/Mr A C Kaufmann (Respondents) Solicitors: Mills Oakley Lawyers (Applicants) Gadens (Respondents) File Number(s): CA 2014/328912 Decision under appeal Before: Bergin CJ in Eq File Number(s): 2013/231527 Judgment 1THE COURT: On 10 November 2014, the Court dismissed with costs an application for leave to appeal filed on 7 November 2014 by Stefano Battaglia and Florentina Battaglia. The respondent to the application was ING Bank (Australia) Ltd. 2The Court's reasons were reserved. The reasons follow. 3The order against which the applicants wished to appeal was made by Bergin CJ in Eq on 31 October 2014. By that order, her Honour fixed for hearing on 24 November 2014 the first cross-claim in pending Commercial List proceedings as it related to the present parties and the second cross-claim which concerns the present parties. The issue between the applicants and the respondent concerns alleged liability of the applicants as guarantors of financial obligations owed to the respondent by other parties to the proceedings. 4The date 24 November 2014 had already been fixed for the hearing of other aspects of the overall litigation. A form of de facto separation of the proceedings into two segments had occurred when the original hearing date of 4 August 2014 (fixed on 14 February 2014 in respect of all parties and all claims) was vacated as against the applicants after the first applicant suffered a stroke. The order of 31 October 2014 to which the application for leave to appeal related had the effect of bringing the two segments together again. 5The order made by the Chief Judge in Equity was a discretionary order. Appellate intervention would have been justified only on grounds of the kind discussed in House v The King [1936] HCA 40; 55 CLR 499 and, since it was an order with respect to case management, after exercise of the particular restraint that is called for when the challenged decision is a discretionary decision on a matter of practice and procedure: In the Will of F B Gilbert (1946) 46 SR(NSW) 318; Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc [1981] HCA 39; 148 CLR 170. Leave to appeal will be granted in such cases only where an issue of principle or a question of general public importance is at stake or the situation is one of manifest (and not merely arguable) injustice: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. 6The applicants based their leave application on the contention that the order sought to be challenged wrought manifest injustice. The Court did not accept that contention. 7It was not disputed that the first applicant had become ill when he suffered a stroke on 13 July 2014. By order made on 18 July 2014, McDougall J vacated the hearing date of 4 August 2014 on the application of the present applicants but only in respect of them. On 25 July 2014, McDougall J adjourned to 3 September 2014 the elements of the case fixed for hearing on 4 August 2014. There was subsequently a further adjournment to 24 November 2014. 8At a directions hearing on 3 September 2014 in respect of the separated aspect involving the applicants, orders were made for the filing by 30 September 2014 of updated evidence concerning the first applicant's health and there was a direction that that aspect be listed for further directions on 28 November 2014. 9The further medical evidence due by 30 September 2014 was not forthcoming. 10On 17 October 2014, the solicitors for the respondent were served with a notice of ceasing to act by the solicitors who until then had acted for the applicants (this followed filing of notice of intention by those solicitors on 30 September 2014). On 21 October 2014, the respondent's solicitors wrote direct to the applicants referring to the absence of the medical evidence (which was then three weeks overdue) and the withdrawal of the solicitors and saying that they would seek relisting of the matter for directions on 24 October 2014 with a view to having the proceedings against the applicants set down for final hearing on 24 November 2014. 11That foreshadowed application was made on 31 October 2014 and a contested hearing took place. In opposing the application, the applicants relied on the 30 October 2014 affidavit of Mr Ward, solicitor, who had been retained by the applicants on 23 October 2014. Among the matters to which he deposed were the following: 1. On 27 October 2014, he received from the former solicitors approximately 10 binders containing pleadings and other materials and on 28 October 2014 he received from the same source 21 boxes containing approximately 105 binders of documents. 2. He and his employed solicitors had in the period to the swearing of the affidavit on 30 October 2014 reviewed as much of that material as had been practically possible. 3. He was concerned that, if a trial were to proceed on 24 November 2014, he would not be able properly to advance the applicants' interests because: (a) junior counsel who had been retained by the previous solicitors from October 2013 and was now retained by him would be "overseas and then in a hearing from 12 November 2014 to 12 December 2014" and therefore unavailable; (b) senior counsel briefed by him on 29 October 2014 was available for only part of the proposed hearing starting on 24 November 2014; (c) the earliest "common availability" of those barristers was March 2015. (d) Mr Ward and his colleagues were themselves in a part heard trial that would recommence on 27 November 2014. 4. The previous solicitors had undertaken no trial preparation since 18 July 2014 when the first applicant suffered his stroke. 12The solicitor annexed to his affidavit a short letter from the first applicant's consultant neurologist dated 30 October 2014 stating that weakness in the first applicant's left side was "improving" and that he was "depressed and anxious" and remained "easily tired and lacking in confidence". 13At the hearing on 31 October 2014, counsel for the applicants confirmed that all their evidence had been served. The only aspect of preparation that was mentioned related to cross-examination of the respondent's main witness, Mr McCabe, a bank officer. It was said that the 24 November 2014 date may not allow sufficient time to prepare for that cross-examination. The respondent indicated that it intended to call Mr McCabe last and the judge referred to the possibility of an application by the applicants at the hearing to defer his cross-examination. The principal issue, from the applicants' perspective, appears to go to their lack of knowledge and approval of things done in their name by other family members purportedly exercising authority given by power of attorney. Just how cross-examination of Mr McCabe might contribute to the assembling of evidence of what the applicants knew or did not know and what passed between them and their attorneys was not explained. 14As at 31 October 2014, the applicants were in default regarding the further medical evidence due by 30 September 2014 and had produced the very brief medical report to which reference has already been made (indicating that the first applicant was fit to deal with court proceedings and to give evidence), the applicants' former solicitors had had the 10 binders and 21 boxes for some time but had done nothing with them; those solicitors ceased to act on 17 October 2014 (having given notice of intention on 30 September 2014); the applicants were informed on or about 21 October 2014 that the respondent intended to press for a hearing date of 24 November 2014; and the applicants then chose to instruct solicitors and senior counsel whose other commitments did not allow them to appear on that date. 15As at 31 October 2014, the new solicitors and senior counsel chosen by the applicants could not have become intimately familiar with the matter. It would have been quite feasible to instruct others in place of them. Junior counsel who had been involved before the withdrawal of the previous solicitors could also have been replaced. The order made by the judge (which had the obvious advantage of bringing together once again segments of the proceedings that had previously become separated) allowed ample opportunity for those steps to be taken. The applicants chose not to take those steps. The judge's foreshadowing of the possibility of deferral of Mr McCabe's cross-examination accommodated concerns of the applicants. That possibility must be taken to continue. 16In the whole of the circumstances, it was very clear that the order the applicants sought to challenge in no way wrought manifest injustice. ********** 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: 11 November 2014