Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Neale v Commonwealth Bank of Australia [2014] NSWCA 443
• Hearing dates: 8 December 2014
• Decision date: 08 December 2014
• Before: Leeming JA

Decision

1. Grant leave to the appellants to file and serve on or before 4pm Friday 13th February 2015 (a) any proposed amended Notice of Appeal and (b) written submissions in support of their appeal.

2. In the event of non-compliance with the filing of submissions in accordance with order 1 these proceedings will be dismissed with the appellants to pay the respondents' costs.

3. Order that the respondents are to file and serve their written submissions 4 weeks after the appellants file their submissions.

4. Grant liberty to apply to both parties to my Associate on 48 hours' notice.

5. Otherwise dismiss the respondents' Notice of Motion dated 1 December 2014, with the appellants to pay the respondents' costs of the 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: PRACTICE - application of dismissal for want of competency - delayed service of notice of appeal - application not made promptly - application for dismissal for want of prosecution - evidence of ability to fund appeal - extension granted, subject to guillotine order
• Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 51.41(1)
• Cases Cited: Hobbs v Australian Securities Investments Commission [2013] NSWCA 205; Hobbs v Australian Securities and Investments Commission [2013] NSWCA 432
• Category: Interlocutory applications
• Parties: Commonwealth Bank of Australia Ltd (1st Applicant on Motion); Brett Stephen Lord (2nd Applicant on Motion); Stephen James Parbery (3rd Applicant on Motion); Secured Global Opportunity Ltd (4th Applicant on Motion); James Woodward Neale (1st Respondent on Motion); JW Neale Pty Ltd (Receivers and Manager Appointed) ACN 001 839 854 (2nd Respondent on Motion)
• Representation: Counsel: P Dowdy (Applicants); In person (1st Respondent); Solicitors: Norton Rose Fulbright Australia (Applicants)
• File Number(s): 2014/133038

Decision under appeal

• Citation: James Woodward Neale v Bank of Western Australia Ltd; Bank of Western Australia Ltd v James Woodward Neale [2014] NSWSC 750
• Date of Decision: 2014-03-27 00:00:00
• Before: Hammerschlag J
• File Number(s): 2011/211735; 2011/401621C

Judgment

1 LEEMING JA: Before me is a notice of motion dated 1 December 2014, filed by the Commonwealth Bank of Australia trading as Bank of Western Australia Ltd, the successful judgment creditor and respondent to an appeal brought by Mr Neale and his company JW Neale Pty Ltd. There are other applicant who need not separately be described; it will suffice to refer to the Bank. The Bank seeks orders that (a) the appeal be dismissed as incompetent or (b) it be dismissed for want of prosecution. The judgment in its favour is large: it is some $31,552,497, excluding interest. Those orders were made on 27 March 2014.

2 Logically the first application is as to competency. After constructive exchanges between Bar and Bench, the Bank's application as to incompetency based on what it said was a late notice of intention to appeal was no longer pressed (a notice of intention to appeal was filed on 28 April 2014, which is the last day within which such a notice is to be filed, having regard to the fact that 28 days after Friday 27 March 2014 was Anzac Day). A notice of appeal was filed on 27 June 2014, within time, but according to the evidence before me it was not served until the second week of August 2014. As refined, the Bank's objection to competency was founded on and confined to the late service of the notice of appeal.

3 The matter has been before a Registrar of this Court on a number of occasions. The first was on 27 August 2014 when timetabling orders were made for the filing and service of submissions and a red book. There was no compliance with any of those directions save for one which had been put forward by the Court, namely, filing an affidavit demonstrating Mr Neale's capacity to act as a director of his company, with a copy of the instrument evidencing his authority to do so. Further orders were made by the Registrar on 15 October 2014 as to the filing of submissions, a red book and any amended notice of appeal. There had been no compliance with those orders either, until this morning, when a red book was served on the solicitors for the Bank.

4 On neither 27 August nor 15 October 2014, so far as the materials before me disclose, did the Bank take any point that the appeal was incompetent by reason of the failure to serve the notice of appeal in a timely fashion. Accordingly, as the notice of motion correctly makes plain, an extension of time is required for the Bank now to take this point: Uniform Civil Procedure Rules 2005 (NSW), r 51.41(1).

5 In circumstances where (a) the delay was relatively small (a period of about five weeks in service), (b) the Bank was on notice by reason of its receipt of a notice of intention to appeal that an appeal was likely, (c) there were, I would infer by reason of an application for a stay of execution relating to the sale by the Bank of property, ongoing communications between the Bank and Mr Neale, and (d) there is no evidence of any communication by the solicitors for the Bank either with the Court to determine whether a notice of appeal had been filed or with Mr Neale's former solicitor Mr Mahoney, or with Mr Neale himself, I would not regard this as an appropriate occasion for the extension of time that the Bank seeks.

6 If objection is to be made to the competency of an appeal brought by a litigant in person by a well-funded, sophisticated and regular litigant in this Court it should be made promptly. If an objection is not made promptly then there should be a full explanation as to why it has not been made promptly. That has not occurred. Accordingly I refuse the extension of time required for the Bank to bring its application for the dismissal of these proceedings as incompetent.

7 I turn to the substantive matter. The position may be summarised as follows. First, there has been, on any view, a serious and sustained non-compliance by Mr Neale and his company and the solicitor who formerly acted for him with the Court's procedural directions. By way of partial explanation for this, it would appear that Mr Neale very recently has lost the services of a solicitor who has acted for him from time to time over an extended period of time.

8 Secondly, Mr Dowdy, who appears for the Bank, very properly has pointed to the fact that the Bank suffers no particular prejudice, other than the prejudice which all litigants suffer of the uncertainty of having litigation undetermined hanging over their heads.

9 Thirdly, had there been compliance with the timetabling orders then this Court would in the ordinary course have allocated a date for hearing of the appeal in the first half of next year. That cannot happen now although if there were to be compliance with some extended period of time in the way that has been debated during the course of the afternoon, there is no reason why that cannot happen very early next term.

10 Fourthly, Mr Neale points to the litigation involving Hobbs v Australian Security Investments Commission, whose procedural history can be found in [2013] NSWCA 432, which bears some similarities to this litigation, both in terms of the length of the trial, the amount at stake, and the slight delays with service of both a notice of intention to appeal and an appeal. In Hobbs v Australian Securities Investments Commission [2013] NSWCA 205, Mr Hobbs' appeal came before McColl JA, who observed at [12] that Mr Hobbs should be "given an opportunity to put his house in order to address" some issues referred to in the judgment. I note that in circumstances more extreme than those demonstrated to me on the evidence, on 9 December 2013 when the matter came back before Barrett JA, and where there had been a further six months of ongoing delay and "there can be no expectation that Mr Hobbs could ever prosecute an appeal in the required manner", his Honour refused a further short extension that Mr Hobbs had sought: see [2013] NSWCA 432 at [54]-[56]. Mr Neale's short point is that the delay that he has caused to date is not in the same category as that of Mr Hobbs and that he too should be given the extra time that he seeks. His evidence is that he has now obtained loan funds which are "sufficient to enable me to now brief senior counsel to prosecute my appeal. I am now able to amend my grounds of appeal and draft my submissions on appeal".

11 Fifthly, the judgment debt from which he seeks to appeal is very substantial, and the grounds of appeal include errors by the trial judge permitting the solicitor for Mr Neale and his company to cease to act on the first day of hearing and refusing an adjournment in those circumstances.

12 It is not my function to express any view on the merits of the appeal at this stage, and I have not been asked to do so and do not do so. The matter comes before me on the basis that the appeal is not by any means self-evidently hopeless. In all of those circumstances I have reached a view that, principally by reason to the severe prejudice which would be suffered by Mr Neale if he were to be denied the right of appeal on the merits of a very substantial judgment, the evidence such as it is explaining the delays which have occurred, the non-compliances with the Court's directions hearings and the relative absence of prejudice on behalf of the Bank, Mr Neale should be given one (and I emphasise one) last chance, to use McColl JA's language in Hobbs, "to put his house in order".

13 That will involve permitting Mr Neale and his company one further opportunity to file an amended notice of appeal (or proposed amended notice of appeal if it is not consented to) and the submissions on which he seeks to rely. Ultimately that position was the Bank's fallback position.

14 There was debate before me as to what period of time Mr Neale should be permitted for this last indulgence. There are nine working days remaining this term. I do not think it is realistic, nor in the interests of the Court or the parties, that an extension be granted for such a limited period of time. I also do not think that it is in the ultimate interests of the parties to provide for this last extension of time to be until the middle or the end of January, having regard to the Court vacation. An order which I propose to make in the nature of a guillotine order must be clear on its face and the consequences of non-compliance with it will be severe for Mr Neale and his company. If there be any dispute about it, it is not one that need burden the vacation Judge.

15 What I propose to do is to grant leave to both parties to apply on two days' notice to me in the event that there is any uncertainly about the operation of the orders I am about to make, but also to grant until 4pm on Friday 13 February 2015 to file and serve any proposed amended notice of appeal and final submissions in support of the appeal.

16 These are the orders that I make:

(1) Grant leave to the appellants to file and serve on or before 4pm Friday 13th February 2015 (a) any proposed amended Notice of Appeal and (b) written submissions in support of their appeal.

(2) In the event of non-compliance with the filing of submissions in accordance with order 1 these proceedings will be dismissed with the appellants to pay the respondents' costs.

(3) Order that the respondents are to file and serve their written submissions 4 weeks after the appellants file their submissions.

(4) Grant liberty to apply to both parties to my Associate on 48 hours' notice.

(5) Otherwise dismiss the respondents' Notice of Motion dated 1 December 2014.

[Debate about costs]

17 The Bank seeks costs of its notice of motion. True it is that the Bank failed in relation to its application to extend time to have the appeal dismissed for lack of competency. However, the substantive matter before me was the continuing failure by Mr Neale and his company to comply with the Court's directions. The orders that I have made today are the third timetabling orders for the service of submissions and any amended notice of appeal that have been made in this appeal. The Bank's notice of motion was brought about by reason of the failure by Mr Neale and his companies to comply with either the first or second of those orders. In those circumstances, and where Mr Neale and his company have obtained an indulgence from me today, it is appropriate that they pay the Bank's costs of the notice of motion filed 1 December 2014.

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Decision last updated: 17 December 2014