Martin v Nrma Insurance Ltd [1999] ACTSC 143 (22 December 1999)

Last Updated: 11 May 2005

Anthony Gilbert Martin v NRMA Insurance Limited

[1999] ACTSC 143 (22 December 1999)

CATCHWORDS

APPEAL - appeal from Master dismissing application for summary judgment and dismissing separate application for like orders - need for separate notices of appeal - appeals heard together - whether discretion miscarried.

PRACTICE AND PROCEDURE - application for summary judgment - whether applicant entitled to judgment where refusal to submit to cross-examination - whether defendant entitled to cross-examine where defendant fails to file affidavit in opposition - whether defendant entitled to rely on defects in plaintiff's application and discretionary factors - need for applicant for summary judgment to comply with o 15 of Supreme Court Rules.

COSTS - whether costs of unsuccessful application for summary judgment usually costs in cause - whether unsuccessful applicant should be ordered to pay costs when application should not have been brought.

Supreme Court Rules, o 15

Supreme Court Act 1933, s 53A

Harry Smith Car Sales Pty Limited v Claycom Vegetable Supply Co Pty Limited (1978) 29 ACTR 21

Sydney Holdings Pty Limited v New Holders Pty Limited [1938] VLR 217

Bradley v Chamberlyn (1893) 1 QB 439

Argento v Cooba Developments Pty Limited (1987) 71 ALR 253

Civil Procedure Australian Capital Territory, Butterworths, [7010.1]

No. SC 1006 of 1988

Judge: Miles CJ

Supreme Court of the ACT

Date: 22 December 1999

IN THE SUPREME COURT OF THE )

) No. SC 1006 of 1988

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ANTHONY GILBERT MARTIN

Plaintiff (Appellant)

AND: NRMA INSURANCE LIMITED

Defendant (Respondent)

ORDER

Judge: Miles CJ

Date: 22 December 1999

Place: Canberra

THE COURT ORDERS THAT:

1. The appeals be dismissed and the orders of the Master be confirmed.

2. The notice of appeal of 1 December 1999 be struck out.

3. The appellant pay the respondent's costs of the appeals.

1. These are two appeals from decisions of the Master given on 26 November 1999. One is an appeal from an order dismissing with costs a notice of motion dated 31 August 1999, the other is an appeal from an order dismissing with costs a notice of motion dated 25 October 1999. Although there was no application to have the appeals heard together, that is what happened. Towards the end of the hearing, a question arose whether there could be any appeal on the merits against the Master's decision dismissing the motion of 25 October 1999 because, as I understand the submission of the appellant, the Master did not proceed to determine the matters raised on the notice of motion of 25 October 1999 and they still remain to be the subject of a hearing and a decision. However, for reasons to which I shall return, on my reading of the transcript of the proceedings before the Master, both motions were the subject of the hearing by the Master and the formal record of the Court is that each was dismissed with costs.

2. The motion of 31 August 1999 was made pursuant to o 15 of the Supreme Court Rules and sought an order for summary judgment against the respondent for the sum of $331,845.86 together with interest under s 53A of the Supreme Court Act 1933.

3. The motion of 25 October 1999 sought a number of rulings. On analysis, the motion is argumentative and its true nature is to assert a number of propositions, which, if true, may have assisted the appellant in seeking the order for summary judgment. If the notice of motion had been presented by or through a legal practitioner representing the appellant, it would have been struck out. As the appellant was and is acting in person, a certain amount of latitude was and is necessary in order to ascertain whether the notice of motion of 25 October 1999 serves some legitimate purpose. I shall return to that aspect.

4. Omitting the many matters with which it is not necessary to be concerned, the following is a short chronology of the steps in the proceedings:

* 1 August 1988: plaintiff files originating summons accompanied by statement of claim.

* 25 August 1988: defendant files defence to statement of claim.

* 1988-1999: various interlocutory proceedings including amendments of pleadings.

* 16 August 1999: appellant files latest amended statement of claim pursuant to leave.

* 31 August 1999: respondent files defence to latest amended statement of claim.

* 31 August 1999: appellant files notice of motion seeking summary judgment.

* 25 October 1999: appellant files notice of motion seeking various rulings.

5. At the commencement of the hearing on 26 November 1999, the following exchange took place:

"MASTER: Now, just some housekeeping. Let us work out what we are moving on. We are moving on your notice of - - -

MR MARTIN: 31 August and we are not moving on my subsequent notice of motion.

MASTER: 25 October.

MR MARTIN: October, on the basis, Master, that no affidavit has been filed to defend the summary judgment application. Now, I will not - if I could put it like this, Master. We are moving on the notice of motion of the - - -

MASTER: Yes, on the 31^st you filed a notice of motion seeking leave to sign judgment for that sum. Also on 31 August the defendant filed its defence to the further amended statement of claim, although after you put your notice on.

MR MARTIN: That is right, Master. And subsequent to that I filed a notice of motion on 25 October."

6. After a further exchange, the appellant repeated:

"... now that some affidavit has not been filed, as required to defend a summary judgment, it is inappropriate for me to follow on with the notice of motion dated 25 October. So we do not have to go into the substantial legal issue."

7. Submissions followed on the application for summary judgment and there was no further reference to the notice of motion of 25 October 1999, except as noted in [9] below.

8. The major submission of the appellant both before the Master and on the appeal is that once an affidavit of an applicant has been filed in support of a motion for summary judgment, the onus shifts to the respondent to file affidavits showing facts disclosing a defence on the merits.

9. The appellant acknowledged before the Master, and correctly so, that it was open to a defendant to oppose an application for summary judgment by showing that there are defects in the plaintiff's application or by showing that there are discretionary reasons why judgment should not be entered. He went on to put further submissions to support the ruling sought in the notice of motion of 25 October 1999, namely that each of the defences filed at various stages of the proceedings is a "sham". When asked to confirm that he relied on his affidavit sworn 31 August 1999, the appellant replied that he relied also on affidavits sworn 25 October 1999 and 9 April 1998 previously filed in relation to other interlocutory proceedings. Counsel appearing for the respondent said that he objected to parts of the affidavit of 9 April 1998 and applied to cross-examine the appellant on it. The Master rejected the submission of the appellant that counsel for the respondent was not entitled to cross-examine him on the affidavit of 9 April 1998. The Master informed the appellant that if he refused to be cross-examined "it would follow that the notice of motion must be dismissed on the basis that you are required to be cross-examined".

10. The respondent sought to be further heard by the Master on the point that he was not refusing to be cross-examined, but that under the summary judgment proceedings, a deponent of an affidavit sworn in support of the application could not be required to be cross-examined until the defendant had filed an affidavit in opposition. The Master adhered to what he had said earlier and stated that "there is no admissible evidence before me and I, therefore, dismiss the notice of motion". There were then submissions on costs. The Master said that costs should follow the event and said, "I dismiss the notice of motion with costs". The appellant said that he wished to make a "final submission". The Master said that he was "functus" and adjourned the court.

11. The further point taken on the appeal is that the Master was wrong in law in perceiving that there is a principle that where a deponent declines to submit to cross-examination on an affidavit, that affidavit may not be relied upon.

12. It is correct that, in a trial where evidence is given orally, if a witness having given evidence-in-chief refuses to submit to cross-examination, the refusal may be dealt with in one or more of several ways. The behaviour of the witness may warrant proceedings for contempt of court. In a criminal trial, depending upon whether the witness is called by the prosecution or the defence, the jury may be given a direction about whether or not to accept the witness, or a new trial may be ordered. In a civil trial by jury, the jury may be instructed not to give the evidence of the witness any weight. In a trial by judge alone, the judge may decide that the evidence-in-chief has no probative value if it cannot be tested by cross-examination. However, the particular response depends on the circumstances and the issue to which the witness' evidence is directed.

13. Apart from the situation in a trial, there are many situations in interlocutory proceedings in which it is necessary for a party to rely on an affidavit going to a formal matter, such as service, search of registers and the like, and where cross-examination would normally be permitted only if the court were appraised of some issue to which cross-examination is relevant.

14. Generally speaking, allowing cross-examination on an affidavit is a matter of discretion and the Master's statement that "evidence is only admissible if the deponent will be cross-examined" is an over-simplification.

15. The appellant is correct in submitting that o 15 r 3 allows a defendant to show cause against an application for summary judgment in only one of three ways, and that the respondent chose not to proceed in any one of them. It provides:

"3 Defence

(1) The defendant may show cause against an application under rule 1 -

(a) by affidavit;

(b) if the statement of claim relates only to a claim for a debt or liquidated damages - by offering to pay into Court the total amount claimed; or

(c) with leave of the Court - by the examination on oath of the defendant or any other person.

(2) The affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part, of the plaintiff's claim.

(3) For the purpose of hearing an application under rule 1, the Court may order the plaintiff or the defendant, or, in the case of a corporation, any officer thereof, to attend and be examined and cross-examined on oath, or to produce any papers, books, or documents, or copies of or extracts therefrom."

16. However, o 15 r 3 does not exclude the right of a defendant to submit that the plaintiff has not met the requirements of o 15 r 1. Thus the authors of the current Civil Procedure Australian Capital Territory state at [7010.1] that in addition, or in the alternative to, filing an affidavit of facts which, if true, would establish an arguable defence, the defendant may show that there are defects in the plaintiff's application, or otherwise show that there are discretionary factors why judgment should not be entered. The authors refer to authority in this Court including, Harry Smith Car Sales Pty Limited v Claycom Vegetable Supply Co Pty Limited (1978) 29 ACTR 21 in which Blackburn CJ stated clearly that if the application does not comply with o 15 r 1 then it must be dismissed.

17. Elsewhere it has been decided under similar provisions that the plaintiff must comply strictly with the provisions. Where the defendant has filed an affidavit, the court may nevertheless entertain a preliminary objection by the defendant that the plaintiff's affidavit does not meet the requirement of the rules without entering upon a consideration of the adequacy or otherwise of the defendant's affidavit: Sydney Holdings Pty Limited v New Holders Pty Limited [1938] VLR 217. In another case, Bradley v Chamberlyn (1893) 1 QB 439, it appears to have assumed without argument that a defendant can rely solely on its legal position without an affidavit of merit: see also Argento v Cooba Developments Pty Limited (1987) 71 ALR 253.

18. The appellant relied also on Rosser v Australian Wine & Spirit Co Pty Limited [1980] VR 313 to submit that a defendant who has not filed an affidavit as to merits cannot be permitted to raise a defence by way of cross-examination of the plaintiff. However, the case is not authority for that proposition. What the Full Court of the Supreme Court of Victoria decided was that a defendant on a summary judgment application will not be given leave to defend by mere assertion by counsel that he or she wishes to test the plaintiff by cross-examination. With respect, that must be plainly so. On the other hand, I cannot see any reason why a defendant should not be permitted to rely on any defects which might emerge during the cross-examination of the plaintiff on the plaintiff's affidavit or otherwise disclosed in the plaintiff's case. Sometimes, for instance, in a claim against a deceased estate or a company in liquidation, there will be no one in a position to swear to facts or a belief in facts which constitute a defence and it is difficult to see why in such cases cross-examination of the plaintiff should not be permitted or why, if the plaintiff refuses to submit to cross-examination, summary judgment may be refused on discretionary grounds. Thus, seen as an exercise in discretion, which it is, the Master's decision is not shown to be erroneous.

19. Mr Harper, who appeared for the respondent in the appeal, sought to justify the Master's decision not only in the light of the above but also on the basis that the appellant had not complied with o 15 r 1(3). The relevant provisions are:

"1. Summary Judgment

(1) Where this Order applies, the plaintiff may apply to the Court for leave to enter judgment whether or not a defence has been delivered.

(2) An application under subrule (1) shall be accompanied by -

(a) the originating application; and

(b) an affidavit or affidavits which -

(i) verify the cause of action;

(ii) in the case of a claim for debt or a liquidated demand - verify the amount claimed; and

(iii) state that in the belief of the deponent there is no defence to the action except (if relevant) as to the amount of damages claimed.

(3) A deponent to an affidavit referred to in paragraph (2)(b) who includes in it an item of hearsay evidence shall -

(a) adduce evidence of the source of the information; and

(b) state that the deponent believes the information."

20. The appellant's affidavit sworn 31 August 1999 states, inter alia:

"4. The deponent can from his own knowledge swear positively to the facts and cause of action contained in the Further Amended Statement of Claim dated the 16^th of August 1999.

5. The deponent verily believes that the defendant has no defence to item 27 of the said Further Amended Statement of Claim, which reads - `From the proceed of sale of the defendant's exercise of mortgagee power of sale of the 12 units the plaintiff is entitled to be paid the sum of $331,845.86'.

6. ...

7. The deponent depends on this affidavit and the following affidavits sworn and filed and served on the defendant, in this action in this Court, in support of this application for summary judgment - affidavits of the deponent sworn on 1/8/1988; 2/8/1988; 2/2/1989; 20/7/1992; 17/8/1992; 20/3/1997; 17/4/1997; 4/11/1997 and 9/4/1998."

21. The present rule was introduced in 1997 and its precise operation is perhaps not yet as clear as that of preceding provisions. It applies where an originating application is accompanied by a statement of claim, but the respondent, understandably, has taken no point on that since the original statement of claim was filed before the present rule was introduced. Furthermore, no point has been taken that the affidavit does not "verify the cause of action", nor that the affidavit accompanying the application relies upon affidavits filed at various stages of the proceedings. I leave aside the question of whether the affidavit should have made it clear whether the deponent believes that there is no defence to the amount of damages claimed, but from a cursory reading of only one of the previous affidavits referred to, that sworn on 9 April 1998, it is apparent that the matters raised by the appellant in his affidavit range far beyond from what it is legitimate to raise in an application for summary judgment and what is authorised by o 15 r 1. It is impossible to isolate out what is in the deponent's knowledge and what is outside the deponent's knowledge and is relied upon by way of hearsay.

22. In the past applications for summary judgment were restricted in the main to claims for debt. Since the 1997 amendments such restrictions are no longer necessary. At the same time it remains true that in actions for unliquidated damages, like the present application, summary judgment should be granted only in the clearest of cases.

23. I am of the view that the affidavit sworn on 31 August 1999, which accompanied the application for summary judgment, does not satisfy the requirements of o 15 r 1(3) in that it does not adduce evidence of the source of information of items of hearsay evidence, nor does it state that the defendant believes the information. If I am wrong in that regard, I think that the prolix nature of that affidavit and the earlier affidavits upon which the deponent purports to rely is further discretionary ground to justify refusing the application for summary judgment.

24. In my view, the Master was correct in dismissing the motion dated 31 August 1999 which sought an order for summary judgment. I think also that the Master should be taken to have dismissed the notice of motion of 25 October 1999 and that he was correct in doing so since it did not raise any real issue.

25. On the question of costs, the Master has not been shown to be incorrect in ordering that the appellant pay the costs of the motions. The costs of an unsuccessful application for summary judgment are, it is true, often ordered to be costs in the cause, especially where the application has the effect of bringing forth matters in dispute not previously disclosed by a defendant, but as Blackburn CJ held in Harry Smith Car Sales at 23-24, where the application should not have been brought, there is no reason why the unsuccessful plaintiff should not pay the defendant's costs. Here the Master was of the clear view that the parties, having taken some years to reach the stage where the defendant had filed its defence one day outside the 14 days allowed after delivery of the latest amendment to the statement of claim on the part of the plaintiff, the application for summary judgment, filed the same day as the defendant's defence, simply should not have been brought. That view was open to the Master and it justified the orders for costs.

26. The appeals are dismissed, the orders of the Master are confirmed. The appellant is to pay the respondent's costs of the appeals.

27. I note that there is a single notice of appeal on the file dated 1 December 1999 which purports to initiate an appeal against each of the orders of the Master made on 26 November 1999. That notice of appeal was the subject of directions on 3 December 1999 when it was ordered that a separate notice of appeal be filed in respect of each order appealed against. That notice of appeal of 1 December 1999 should be struck out. I shall hear the parties on costs if they wish to be heard, otherwise I will make no order as to costs in respect of that notice of appeal.

28. The action was commenced more than 11 years ago. The various amendments to the plaintiff's statement of claim now appear to be complete and the defendant has filed a defence. The case must be prepared for trial on the merits and firm directions are to be given to that end forthwith.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 22 December 1999

Counsel for the plaintiff/appellant: Plaintiff/appellant appeared in person

Counsel for the defendant/respondent: Mr D Harper

Solicitor for the defendant/respondent: Abbott Tout Harper & Blain

Date of hearing: 17 December 1999

Date of judgment: 22 December 1999