Martin v NRMA Insurance Limited C11/2000 [2001] HCATrans 432 (14 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Registry No C11 of 2000

B e t w e e n -

ANTHONY GILBERT MARTIN

Applicant

and

NRMA INSURANCE LIMITED

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 14 SEPTEMBER 2001, AT 12.07 PM

Copyright in the High Court of Australia

MR A.G. MARTIN appeared in person.

MR J.W.J. STEVENSON: I appear for the respondent, if your Honours please. (instructed by Abbot Tout Harper & Blain)

MR MARTIN: Could I first get your Honours to open up at page 91 of the appeal book, your Honour, from lines 1 to 3, which has just been highlighted. Your Honour, the Master did not go into the substance of the summary judgment. The Master did not dismiss the summary judgment on discretionary grounds. If you read AB 89 to 92, top of 92, you would see that I deliberately made sure that that was made clear. The Master made a perverse ruling on the law of evidence, did not give the applicant an adjournment to test that ruling on evidentiary law, and dismissed the summary judgment application. The Master did not hear the notice of motion of 5 October 1999, which addresses leave to defend conditionally or unconditionally, and there is a statutory provision in relation to that, which is rule 6, Order 15. Your Honour will find it in tab C of my authorities.

GAUDRON J: Now, all of that may be correct, but what you have to do is address the question of error on the part of the Full Court.

MR MARTIN: Yes, your Honour. I am just bringing this as my introduction, and then I am going into the details of it. I have about a six page written summary, which I am going read, on the error of the Federal Court, and the Federal Court Act, section 24(1A). If your Honour could just sort of bear with me a little bit, and I will get into that quickly, your Honour, within the 20 minutes. The rulings of the court below and Chief Justice Miles have the appearance - and I will put it no higher than that - of protecting the respondent, who has (a) no defence to the summary judgment application; (b) has no defence - and his three defences are defined to the rest of the statement of claim is demonstrably a sham. And yet unconditional leave was given for this.

Now, section 24(1A) of the Federal Court Act is not met in these conditions. It was introduced in the 1980s - early 1990s, to stop spurious appeals in relation to case management, et cetera. There was innumerable reason for the case management; there were four adjournments for this summary court hearing, and numerous other things. None of those things - were all ignored in front of the Master, in front of Chief Justice Miles, in front of the Federal Court below. The respondent could not even put the bare minimum of an affidavit stating he has a defence, and furthermore, the respondent was not able even to come to the court and claim that the application was incompetent, as it did two years ago, in effect.

In Bradley v Chamberlyn (1893) 1 QB 439 - and it has not been upset in any of this High Court's decisions, which are listed in AB 57, in "High Court of Australia Authorities", paragraph 15. Now, in Bradley v Chamberlyn, the judge ruled that if you did not come with an affidavit, and then you said that the application is - and Chief Justice Miles has misunderstood and misrecorded it - and then he comes in that it is incompetent, and if you fail on that, you cannot even go up and ask that I want to put in an affidavit. My submission to your Honours is here is a respondent who came in without that affidavit, came in without even the incompetence application, yet it appears - and I put it no higher than that - the appearance is that the court below, and the Supreme Court, has given tenfold, hundredfold, thousandfold, levee than this High Court has done in all the cases it has heard on summary judgments. Furthermore, it has given ten hundred times more levee than any of the reported cases.

Now, one other quick point I would like to make, before I read out my written one, is that there is a vast difference, practice and procedures, on which this High Court should not interfere in. When it is like a case management for a delay, or an adjournment, or asking for affidavits or evidence to be put on affidavit, such things are true practice and procedures. There is a difference when there are procedures which are statutory, like Order 15. I will get into that later on, your Honour, if I have any time left. Your Honour, I submit special leave should be granted because this application involves rulings and reasonings of the Full Federal Court, and the rulings and reasonings of Chief Justice Miles of the ACT Supreme Court and Master of the ACT Supreme Court, involving important questions of law of general application and matter of public interest.

The gentleman of the court below was not clearly correct and is attended by sufficient doubt about his correctness. Now, let me show you what the smoking gun evidence that was put before Master Connolly. One other thing, in Fancourt v Mercantile Credits and in every single authority which says care must be taken, care must be taken to meticulously follow the rights of each party and if part of the claim had been satisfied absolute care must be taken to grant it and, your Honours, in the authority the court below quoted in Fancourt v Mercantile that is precisely what this Court did and in every other important case absolute care was taken to meticulously and my submission is that the lower court and Chief Justice Miles did not do that.

Now, if your Honours could refer to AB74, "THE FACTUAL BACKGROUND TO THE APPLICATION" and then turn to AB75, the summary judgment was based on paragraphs 24 to 27 of the statement of claim.

McHUGH J: Yes, I know, Mr Martin, but, look, you really have to face up to the fact that the Full Court was exercising a discretion whether or not to grant leave to appeal and you want us to grant special leave to appeal against their exercise of a discretion to grant leave. Now, they set out their reasons at the bottom of 48 and 49 of the book. Why should this Court be bothered with determining whether or not those statements are right or wrong? There is nothing special about them.

MR MARTIN: If I could humbly submit to your Honour that it was based on a perverse finding of fact and perverse finding of law.

McHUGH J: Well, at the bottom of page 48, Justice Burchett said:

For two reasons, each of which would be sufficient if standing alone, the decision of Miles CJ appears clearly correct. (1) The affidavit did not in strictness verify within the meaning of the rule, because the verification, which was required, did not clearly distinguish between personal knowledge and knowledge gained otherwise.

That is one reason. Why should we get into an argument about whether or not the verification complied with the rules? That is not a special leave point.

MR MARTIN: Your Honour, that is a factually perverse finding because the Master himself found that to be and the affidavit - if you look at my affidavit, paragraph 4 of the affidavit of 31st, if you look at it, your Honour, for quick reference, the respondent's additional material. If you look at the respondent's additional material at page 8:

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 16th of August 1999.

5. The deponent verily believes that the defendant has no defence -

His Honour confused the secondary affidavit of 9/4/98. He confused in it all the formal requirements. The other thing is that his Honour - the summary judgment application was based, not on hearsay evidence, and this was acknowledged by the Master and I can give you - if your Honour looks at your - I can take you to where. The summary judgment application was based on document from the ACT Land Titles Office, document from the Australian Securities Commission Office and from the respondent's own auditors.

McHUGH J: Yes, but that is the point. There is a distinction between swearing to what you were a party to, what you perceived through your own senses and knowledge that you would gain by reference to looking at other people's documents and so on. You made no attempt in your affidavit to do that and that is the point that the Full Court is making against you.

MR MARTIN: Your Honour, if your Honour could go to paragraphs 23 to 28 of Justice Miles' reasoning, his whole reasoning is based on perverse findings of fact which is self-evident, including that the special leave application was made after the defence was put in and that it should simply not have been made. The Master himself verified - apart from my own affidavit, the Master himself verified from folio numbering that the special leave application was done before the defence was put in. Order 15 rule 1(1), since 1997, specifically clears this issue, which was a question mark on it previously, that there was a doubt previously whether one could apply for summary judgment after a defence has been put in.

But, if you look at tab B of my authorities under Order 15 rule 1(1) that an amendment in 1997 which sets out that you can make a summary judgment application and there are authorities that say that if a defendant puts in a defence when a summary judgment was pending, it may be considered improper.

Justice Miles misunderstood the affidavit that supported the formal affidavit that fulfilled all of the requirements of the summary judgment. Justice Miles misunderstood the order when the application was made and the court below accepted it, accepted it lock, stock and barrel. Your Honour does not have to accept my point of view on it. The transcript of - and I have taken it in my summary of argument, I have taken out the.....points from - if your Honour could look to page 88 of the appeal book, line 16:

Yes, and that is supported by your affidavit of the same date which indicates that you serve the further amended statement of claim in the proper manner by serving it on the employee . . . at the time of filing this affidavit there was not a defence - and that is undoubtedly true because the defence appears some folios later on that same day - and you depose, swear positively to the cause of action and you depose that you believe there is no defence. So you say you have complied with what needs formally to be done -

Now, Justice Miles, and if your Honour could bear with me, I have written out in detail paragraphs 23 to 28 where the whole of Justice Miles' ruling on law in itself is perverse, with or without the perverse finding of fact. But the perverse finding of fact which is in - if your Honour looks at AB34, I think it is 33 to 34, and if your Honour can, before my time runs out and it might have already run out, if I could take you quickly to what I have written, each and every.

First of all, your Honour, there was weighted decisions of law, rulings of law Justice Miles made and the Master made. That is what went to the court below and section 24(1A) was not meant to be used to refuse leave for both purposes. Now, paragraph 23 - this is pages 33 and 34 of Justice Miles' reasoning, your Honour - claimed that affidavit - okay, I have addressed that, your Honour. In paragraph 24, Chief Justice Miles dismisses notice of 25 October 1999 because not determined by Master on 26 November. If you look at AB page 2 you would see that - - -

McHUGH J: Yes, but, Mr Martin, you have to face up to the fact that your amended statement of claim included such statements as at paragraph 17:

The defendant interfered with the sale of Solar Village Kambah by public auction . . .

18. Immediately following the auction . . . the defendant took control of the offers for purchases -

Now, that is obviously hearsay and your affidavit does not distinguish between what you knew of your own knowledge and what you found out from somebody else and which you verily believe. That is the point Justice Miles makes on page 33.

MR MARTIN: No, your Honour. Your Honour, if you look at my affidavit of 31, the summary judgment was based on one single item of the statement of claim. It was item No 27, not on any other part of the statement of claim. If your Honour could take a quick look at page 8 of the respondent's authorities - - -

McHUGH J: Yes, but if item 27 you mean the statement:

From the proceed of sale of the defendant's exercise of mortgagee power . . . the plaintiff is entitled to be paid the sum of $331, 845.86.

MR MARTIN: Yes.

McHUGH J: Well, that is not good enough to get a summary judgment.

MR MARTIN: Sure, it is not, your Honour. I admit totally it is not good enough. That is why paragraphs 7 and 8 of my affidavit of 9 April was put in and which gives complete detailed calculation and that is given in my, I think, summary of argument. The paragraph, your Honours, agreed and if your Honour looked at the transcript before the Master, the Master distinctly said, "Yes, you have given the calculations in the statement of claim". Further up, if you look from item 24 to 28, the various calculations in the statement of claim were made and he further says "that has been backed up in your affidavit of 9/8", which I refer to, the transcript shows - - -

McHUGH J: Mr Martin, all this shows is that there is a dispute about facts and where they come from. There is no point of general principle. This Court is not a Court of Appeal.

MR MARTIN: Your Honour, the general principle is the Master made only one and one. He made a ruling on evidentiary law in contravention of sections 54 and 55 of the Supreme Court Act, in contravention of Order 15 rule 1(2).

McHUGH J: Let it be assumed for the moment that he did make such an error, that does not raise a special leave point. You have to understand there has to be something special about the case, something that takes it outside the ordinary run of complaints for the ordinary litigant. Every litigant that loses has some complaint about findings of fact or how the judge applied the law. It does not make the case special.

MR MARTIN: I agree, your Honour, but every single authority that the lower court has quoted, and every single authority that Justice Miles has quoted, and the Master quoted none of the authorities, every single one of those authorities, your Honour, if you read it, is against the very principles they have said that it supports.

Now, that makes this a special - this is an extraordinary, extraordinary judgment which, not only is based on perverse findings of fact, in.....perverse finding of fact. If your Honour could show me one single authority that supports, supports the lower court's ruling. Fancourt v Mercantile Credits does not. Caddy v Beattie is opposed to what is said, absolutely opposed and if your Honour gives me time I will go through the detail.

GAUDRON J: Your time has, I think, come to a close, Mr Martin.

MR MARTIN: Sorry, your Honour.

GAUDRON J: Yes, thank you. We need not trouble you, Mr Stevenson.

In this case the applicant seeks special leave to appeal from a decision of the Full Federal Court dismissing an appeal from a decision of Chief Justice Miles of the Australian Capital Territory Supreme Court. Chief Justice Miles dismissed an application for leave to appeal from a decision of the Master dismissing an application for summary judgment.

The power to enter a summary judgment is a discretionary power and should be exercised only in a clear case. That being so, it is clear that neither the decision of Chief Justice Miles nor that of the Full Federal Court is attended by appealable error.

Accordingly, special leave is refused with costs.

AT 12.30 PM THE MATTER WAS CONCLUDED