Higgins v Brennan [2004] NSWCA 23 (13 February 2004)

Last Updated: 27 February 2004

NEW SOUTH WALES COURT OF APPEAL

CITATION: Higgins v Brennan [2004] NSWCA 23

FILE NUMBER(S):

40134/04

HEARING DATE(S): 13 February 2004

JUDGMENT DATE: 13/02/2004

PARTIES:

M Higgins - Claimant

P Brennan - Opponent

JUDGMENT OF: Giles JA Santow J

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): ED 1414/04

LOWER COURT JUDICIAL OFFICER: Young CJ in Eq

COUNSEL:

D J Hammerschlag SC - Claimant

S Dawson - Opponent

SOLICITORS:

Cara Marsasco & Co - Claimant

Tress Cox & Maddox - Opponent

CATCHWORDS:

Leave to appeal - application for interlocutory relief - failure to hear submissions - remarks about taking technical points - strong arguable case that did not give procedural fairness.

LEGISLATION CITED:

DECISION:

Leave to appeal granted. By consent order made this morning in the Equity Division dismissing the claimant's application for interlocutory relief set aside. Costs of the application for leave to appeal to be paid in accordance with the order made by the judge in the Equity Division before whom that application comes when renewed. Remit the proceedings to the Equity Division so that the claimant may renew her application for interlocutory relief.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40134/04

ED 1414/04

GILES JA

SANTOW JA

Friday 13 Febuary 2004

HIGGINS v BRENNAN

Judgment

1 GILES JA: This is an application for leave to appeal, brought on as a matter of urgency and with commendable co-operation between the solicitors and counsel for the parties.

2 The claimant applied for interlocutory relief in the Equity Division. She first applied on 10 February 2004 when relief was declined and a direction was given that the opponents serve any affidavit evidence by 4pm on 12 February 2004: according to the evidence before us, it seems with the rider "if possible".

3 The matter came back before the judge this morning. An affidavit had not been served by the opponents. Counsel for the opponents informed the Court that he wished to file an affidavit in Court, that he also sought leave to file a cross-claim and a notice of motion, and that the opponents intended to proffer undertakings which in his submission would make interlocutory relief unnecessary.

4 After a brief adjournment to enable the claimant to consider her position on those matters, the proceedings resumed. Counsel for the claimant was asked his attitude to the opponents' affidavit, cross-claim and notice of motion. The response was that their filing was opposed on the basis that they were late and the direction with respect to the affidavit had not been complied with.

5 According to the evidence before us, as supplemented by statements from the bar table which the opposing party was content to accept for the purposes of the application, the following then occurred.

6 The judge said to counsel for the claimant, "So you are not doing equity, if you seek equity you must do equity". Without affording either counsel the opportunity to address the Court, the judge refused the opponents' leave to file their affidavit, and said words to the effect -

"I will not permit the taking of technical points. Even though documents have been filed late, I expect parties to co-operate where it is a one day matter and the Court has set aside time. In this matter, in the same transaction the plaintiff refuses to do equity. I have read the papers and I am satisfied that there is no interest entitling the plaintiff to the relief she seeks. The opposition by the plaintiff seeks to have the plaintiff in the same transaction do equity by bringing the agreement on her side and she refuses to do equity. For these reasons of substance and discretion I dismiss the motion."

7 The penultimate sentence is difficult to understand, but is as stated to us. The judge then made an order whereby costs were reserved. His Honour said at some point, "If the parties are going to spend $5000 for the day, I expect the matter to be dealt with".

8 Leave was given to file the cross-claim and the claimant's summons was stood over until Monday next before the Registrar.

9 The claimant seeks leave to appeal for reasons which include that she was denied procedural fairness and that it was wrong that relief was refused to her because she opposed the filing of the affidavit, cross-claim and motion.

10 The opponents' response is that the judge had read the affidavit on which the claimant relied on 10 February, had commented then upon the unsatisfactory nature of the material warranting interlocutory relief, and had dealt with the matter on its merits when this morning he said that he had read the papers and was satisfied that there was no interest entitling the claimant to the relief she sought. Having dealt with the matter on its merits, it was said, quite apart from any procedural observations, in the course of a busy list it was sufficient on an interlocutory application such as was before his Honour to state the brief conclusion.

11 I do not think that is a sufficient response. On the evidence and supplementary statements before us, the judge did not afford counsel for the claimant the opportunity to be heard, and I do not feel able to say that the refusal of an opportunity to be heard made no difference at all. More than that, in the circumstances of the surrounding remarks it seems to me that the claimant would justifiably have been entitled to think that she had not had her application dealt with on its merits, but rather that the dealing with it was affected by displeasure at the taking of technical points.

12 It is important that justice both be done and be seen to be done, and in my opinion leave to appeal is warranted because there is a strong arguable case that the claimant was denied procedural fairness in the respects I have mentioned.

13 SANTOW JA: I agree. It is clear from the comments that passed from the bench that in the nature of this application we could not be apprised of matters pertaining to the merits of the original application. The gravamen of what my brother Giles JA has said is that the denial of natural justice related to the failure to permit the claimant to put any case at all orally, not as to what might have occurred in terms of merit had he done so.

14 GILES JA: We order that leave to appeal be granted. We will come back to the question of costs in a moment. The question is what happens next. It is an unusual situation, there are only two of us, we cannot allow the appeal if we were so minded immediately, although it is fairly obvious from the way I cast my remarks that I would as at present advised be willing to do so for myself.

Mr Hammerschlag, there is not much point if you get leave to appeal but the appeal comes on in six months' time.

HAMMERSCHLAG: That's correct, your Honour.

GILES JA: What do you want us to do next?

HAMMERSCHLAG: In the ordinary course I would ask your Honours to determine the appeal now but since that can't be done, the question is as to if there is anything that your Honours could and would be prepared to do to facilitate the bringing on of an appeal before your Honours and one additional member of the Court as soon as possible.

GILES JA: Mr Dawson, is there any possibility given the way that we have expressed ourselves that you might get instructions that let the matter go back and the application be heard before the duty judge as soon as the duty judge can be arranged?

DAWSON: I can certainly take some instructions, your Honour.

GILES JA: I would be grateful if you would do that, that might be a common sense way of trying to deal with an interesting situation.

DAWSON: Would your Honours pardon me?

GILES JA: Certainly.

DAWSON: Your Honours, I'm pleased to be able to inform the Court that we are prepared to consent to some form of order that remits the matter to the Equity Division below.

GILES JA: I'm most grateful, that's very sensible.

DAWSON: In effect to do what would perhaps have occurred this morning had things not ended as quickly as they did.

GILES JA: Yes, that is right I think. Thinking aloud, it might be convenient if by consent the order dismissing the claimant's notice of motion in the Equity Division be set aside and the proceedings be remitted to the Equity Division, full stop, and that would probably end our function and it would be up to Mr Hammerschlag to get himself before the duty judge as fast as he can.

DAWSON: The question I suppose your Honour is this, whether the matter ought to be remitted to Young CJ in Eq, he being familiar with the papers and the application.

GILES JA: One can see problems in that. I think it might be better if we don't say anything about that. Who is the duty judge at the moment?

HAMMERSCHLAG: It was Young CJ in Eq this week but I don't think he's duty judge next week.

GILES JA: That may solve a problem, because I don't think you're going to find anyone this afternoon.

HAMMERSCHLAG: No, I don't think I'll even try, your Honour.

SANTOW JA: Do we also need to set aside that part of his Honour's orders which precluded the filing of the notice of motion by the opponent and the affidavit?

DAWSON: Yes, that was the next matter to which I was to direct a submission.

GILES JA: I don't know that his Honour actually--

DAWSON: On Mr Hammerschlag's evidence, his Honour refused me leave to file that motion and the affidavit in support in Court.

GILES JA: Yes.

HAMMERSCHLAG: That wouldn't preclude them from seeking leave.

DAWSON: No, it wouldn't.

SANTOW JA: No, that's true.

GILES JA: No, I think it would be a matter for the next judge and obviously the time problems which might have affected things this morning will have changed by Monday.

DAWSON: That leaves only then the question of costs.

GILES JA: You're not looking too good.

DAWSON: I'm not seeking them. I was going to suggest that costs be costs in the cause as determined by the duty judge on the application my friend brings next week.

GILES JA: What do you say, Mr Hammerschlag?

HAMMERSCHLAG: Other than the fact that we'd invited my learned friend to consent to this application and he didn't, that would be a fair outcome but he should have consented, your Honour, given the affidavit evidence. We'd ask your Honour to either reserve the costs or grant the costs to us.

GILES JA: We don't want to reserve them, if by that you mean reserve them for ourselves.

HAMMERSCHLAG: No, reserve them for the next judge.

GILES JA: The judge down below, you mean.

HAMMERSCHLAG: Yes.

GILES JA: Yes, that probably is the best way. The root cause was neither party.

HAMMERSCHLAG: Yes and it can't be said that they should be in the cause because they're not in the cause, so the reserving would probably be the best and fairest.

GILES JA: That seems a reasonable course, Mr Dawson.

DAWSON: Yes, I accept that, your Honour. I accept that course.

15 GILES JA: We note with gratitude the instructions which have been conveyed to us by counsel for the opponents. We order by consent that the order made this morning in the Equity Division dismissing the claimant's application for interlocutory relief be set aside. Costs of the application for leave to appeal are to be paid in accordance with the order made by the judge of the Equity Division before whom that application comes when renewed. We remit the proceedings to the Equity Division so that the claimant may renew her application for interlocutory relief.

HAMMERSCHLAG: I'm indebted to the Court.

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LAST UPDATED: 27/02/2004