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  • Unreported Judgment

Heritage Bank Limited v Gleeson & anor (No 4)

 

[2020] QDC 224

DISTRICT COURT OF QUEENSLAND

CITATION:

Heritage Bank Limited v Gleeson & anor (No 4) [2020] QDC 224

PARTIES:

HERITAGE BANK LIMITED
ACN 32 087 652 024
(plaintiff/respondent)

v

JAROD LUKE GLEESON (AKA JAROD LUKE)
(first defendant)

SHEREE AMY TAYLOR
(second defendant/applicant)

FILE NO/S:

3066/18

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

15 September 2020

DELIVERED AT:

Brisbane

HEARING DATE:

29 July 2020

JUDGE:

Porter QC DCJ

ORDER:

  1. Order 4 of the Amended Order of Koppenol DCJ issued 12 May 2020 be set aside and the endorsement on the file be altered to delete reference to that Order; and
  2. The parties bear their own costs of the application.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS – where the defendants had defaulted on mortgage repayments – where default judgment was entered against the defendants following service under an order for substituted service – where the defendants applied to set aside an order of substituted service – where the court ordered that the application to set aside the order for substituted service be listed for hearing not before 28 May 2020 – where a mention limited only to the issue of production and access to subpoenas was listed on 23 April 2020 – where the orders made on that day and initially endorsed on the file and included in a sealed order taken out by the plaintiff related only to the subpoena issues – where the plaintiff’s solicitors approached the associate without notice to the defendants seeking the orders be amended to add an order dismissing the substantive application – where the initial sealed order was amended to add an order dismissing the substantive application without notice to the defendants – whether the amended order was properly made – whether the amended order should be set aside

Legislation

Uniform Civil Procedure Rules 1999 (Qld) r. 667(2)

Cases

Legal Services Commissioner v Trost [2019] QCAT 357

Heritage Bank Limited v Gleeson & anor [2019] QDC 119

Heritage Bank Limited v Gleeson & anor (No 2) [2020] QDC 36

COUNSEL:

Applicants self-represented
G Koning (sol) for the respondent

SOLICITORS:

Applicants self-represented
Dentons Australia for the respondent

  1. [1]
    This is an application by the first and second defendants to set aside order 4 of the amended order of Koppenol DCJ issued 12 May 2020 and apparently made on 23 April 2020 (Order 4).  For the reasons which follow, Order 4 should be set aside and the endorsement added to the Court file including that order should be deleted.

Factual background

  1. [2]
    The procedural history of this matter up to 29 June 2019 is detailed in Heritage Bank Limited v Gleeson & anor [2019] QDC 119 (my first judgment) from paragraphs [1] to [19].  So far as is relevant to today, that judgment records:

[1] On 23 August 2018 the plaintiff commenced proceedings in the District Court of Queensland seeking possession, under a registered mortgage, of a certain house and land (the house) and judgment for sums owing under a loan agreement secured by the mortgage.  The first defendant, Jarod Luke Gleeson, is the husband of the second defendant, Sheree Amy Taylor although they have not lived as husband and wife for some time.  Mr Gleeson, is the registered proprietor and mortgagor of the house. 

[2] The house came to be owned by him in its current form, in general terms, in this way.  Mr Gleeson and Ms Taylor began living together in a domestic relationship in around 2004.  In 2006 they bought a piece of land and obtained funding to build a house on it.  They married in late 2012.  The house was funded by lending from Heritage Bank Limited (the Bank), along with some part of the purchase of the land.

[3] There have been various dealings between Mr Gleeson and Ms Taylor and the Bank since then, but they are not of great significance to this particular application.  By about early 2018, the Bank was asserting that the loan was in default and it was seeking to realise its security.  Thus the plaintiff commenced proceedings on 23 August 2018 seeking possession under the terms of the mortgage and section 78 of the Land Title Act 1994 (Qld) and judgment for amounts due under the loan agreement. 

[4] Ms Taylor, as I have a said, was not a registered proprietor or a mortgagor.  She was, however, a joint borrower with Mr Gleeson of the funds which are secured by the mortgage.  Between August and November 2018, the Bank undertook efforts to cause the proceedings to be personally served on Mr Gleeson and Ms Taylor.  Those efforts are described in affidavits of Mr Phillips and Mr Veivers, the process servers. 

 ...

[13] The above evidence of attempted service was put before her Honour Judge Richards of this Court and her Honour made orders for substituted service on 9 November 2018.  Her Honour’s orders were that personal service be dispensed with and under the relevant rule service be effected by posting the claim and the statement of claim to the property, delivering a copy of the documents to the house, and notifying the defendants by SMS to a certain mobile that that had occurred.  I presume that that mobile number was Mr Gleeson’s mobile number.  The service of the statement of claim was deemed to have occurred five business days after those steps were taken.

[14] ... 

[15] It is not disputed that Her Honour’s substituted service order was complied with and that default judgment was entered on 30 January 2019.  Default judgment was ordered both for possession of the land and for a sum said to be due under the loan agreement.  The Bank sought an enforcement warrant.  The warrant has been executed and the Bank is in possession.

[16] Mr Gleeson seemed to respond to the proceedings from time to time with documents which were misconceived.  Things took a rather more disciplined turn when Ms Taylor found out about the default judgment and the enforcement warrant.  Her evidence is that the proceedings did not come to her attention as a result of compliance with the substituted service orders.  I am willing to accept that that was so based on the fact that Ms Taylor’s industry, since 24 April 2019 when she says she did find out about the default judgment and enforcement warrant, has been consistent and energetic. 

[17] It is, of course, irrelevant to the validity of the substituted service order as such, that the documents did not come to her attention as long as that order was properly made.  If default judgment has been regularly entered following substituted service it will only be set aside if there is an arguable defence on the merits.

[18] Ms Taylor applied to set aside the default judgment on 24 April 2019.  On 8 May 2019 Ms Taylor sought to stay the enforcement warrant and various consequential orders.  However the fundamental requirement for Ms Taylor was always to set aside the default judgment, upon which the enforcement warrant for possession was based.

[19] There were some adjournments of those applications for Ms Taylor to obtain legal assistance.  Ultimately she has obtained that assistance from Ms Chekirova.  The application is supported by a great deal of material.  The structure of the application is really this: 

  1. (a)
    Has the judgment been regularly entered?  If not, the default judgment should be set aside. 
  1. (b)
    If it has been regularly entered, is there a sufficiently arguable defence on the merits to justify setting aside the default judgment?  
  1. [3]
    By my first judgment, I determined that default judgment had been regularly entered against Ms Taylor and that there was no arguable defence on the merits to set aside the default judgment.  The arguments advanced at the hearing were largely confined to the first question.  Ms Taylor contended that the judgment was not regularly entered because the substituted service order was irregularly obtained and should be set aside on two grounds:
    1. (a)
      That Mr Veivers’ evidence was unreliable and should be rejected; and
    2. (b)
      That the Bank failed to disclose all relevant information on the substituted service application before her Honour in breach of its duty of full disclosure such that the order ought to be set aside.
  2. [4]
    I rejected both arguments.  I did not think that the evidence justified rejection of Mr Veivers’ evidence.  Further, although I found that the defendants succeeded in identifying an alleged non-disclosure, I refused to set aside the substituted service order because the defendants had no arguable defence on the merits in any event.  My first judgment was not appealed.
  3. [5]
    Much has happened since then. On 11 March 2020, the defendants filed an application to be heard on the papers seeking once again to set aside the order for substituted service made by her Honour Judge Richards dated 9 November 2018 (the 11 March application). I dealt with that application the first time in Heritage Bank Limited v Gleeson [2020] QDC 36 (my second judgment).  As stated there, I had real concerns that the application raised matters which had already been determined in my first judgment. Furthermore, the application did not appear to be served on the plaintiff Bank, contrary to r. 27 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  Accordingly, I ordered that the application be adjourned to a date to be fixed, and that any further hearing of the matter be by way of oral hearing. I further ordered that should the matter be re-listed, it was to be re-listed in the applications list for mention only.  I made those orders in chambers on 18 March 2020.
  4. [6]
    The application was re-listed and came before his Honour Judge Barlow QC for mention on 9 April 2020. His Honour ordered that the 11 March application be adjourned for mention on 23 April 2020, the mention to be limited to the production of documents sought by subpoena and any application for access to subpoenaed documents. His Honour further ordered that the application filed 11 March 2020 be listed for hearing (up to one day) on the civil list on a date to be fixed, but not before 28 May 2020.   It must be emphasised that the effect of his Honour’s orders was that the 11 March application was listed on 23 April only to deal with subpoenas, not for hearing.  There is no evidence of any order thereafter changing that situation.
  5. [7]
    On 15 April 2020, the defendants filed Requests for Subpoena to produce documents directed to the Bank, the Bank’s solicitors Dentons, Mr Veivers and Sharmans Investigations (the April Subpoenas).  
  6. [8]
    So far as I am aware, the evidence does not disclose if one or more of the April Subpoenas had been served nor does it disclose if any documents had been produced in response to them.
  7. [9]
    The 11 March application came before Judge Koppenol on 23 April 2020 as directed by Judge Barlow.  What passed before his Honour on that day is central to resolution of this case.  Neither party has put a transcript before the Court.  There appears to be no written record of reasons given by his Honour for the orders made. The only account of the hearing is that provided by Ms Taylor in her affidavit filed in this application (CD 63). 
  8. [10]
    According to Ms Taylor, Judge Koppenol questioned Mr Koning, solicitor for the Bank, as to what the matter before him related and Mr Koning responded “this matter was before Judge Barlow on the 9th of April, at that time his honour set the matter down, and he did set it down for mention today, but limited strictly to the production of subpoenas and any application for access to subpoenaed documents”. Mr Koning is then said to have reiterated “the purpose of this mention as I understand, is strictly in respect of orders being made with respect to access to subpoenaed documents”.
  9. [11]
    Ms Taylor continues:

Koppenol DCJ stated “there will be no difficulty in my making an order that you and Jarod Luke have general access to the documents which have been produced to the court from Heritage Bank, so that’s the first point. So, you need to concentrate on why you should have access to the documents from the plaintiff’s solicitors and the two process servers please”. I raised that video recorded evidence of admissions of perjury by one of the process servers has been filed with the court and therefore access to the subpoenaed material from the process servers should be granted.

Koppenol DCJ went on to say that “what we will have to do now, is I will make an order for the, I assume that there is a draft order here somewhere, for the applicants to have general access to the documents which have been produced to the court by the Heritage Bank, but when it comes to the documents produced to the court by the plaintiffs solicitors, and any documents produced to the court by the two process servers, Sharman Pty Ltd and Veivers, there will need to be affidavits filed by Ms Taylor and Jarod Luke and served on Mr Koning so that Mr Koning can respond in respect of why the applicants should have access to those documents, now I hope you understand that”.

Koppenol DCJ commented that he knew nothing about the matter and he had nothing in front of him.

Koppenol DCJ asked Mr Koning if the defendants applied to set aside the default judgement (sic). Mr Koning’s response was “correct, correct, that application was made last year and that application was dismissed”.

At the end of the mention on 23 April 2020 Koppenol DCJ pronounced his orders in the court. The only three (3) orders pronounced were:

“one, these are the orders I make. The applicant, defendant’s applications for subpoenas, and for access to the subpoenaed documents are dismissed.

two, I direct the registrar of this court to return the subpoenaed documents to the party who produced them.

three, costs… the application having been dismissed and in my opinion the application being misconceived ab initio I order the applicant, defendant’s to pay the respondent, plaintiffs costs of and incidental to these applications on the standard basis, such costs of and incidental to these applications on the standard basis, such costs to be agreed between the parties or assessed. Thank you, good morning, adjourn the court please.”

Koppenol DCJ never pronounced “Paragraph 1 of application dismissed.”

[underlining added]

  1. [12]
    That is the only evidence before me as to what passed before his Honour. It is evident from this that more must have occurred.  The evidence I have does not explain why his Honour changed his position on the documents produced by the Bank and why he made orders in the absence of the affidavits to which his Honour had earlier referred.  There is no evidence of whether any documents had been produced in response to the subpoenas, though it seems the Bank might have done so.   However, in the context of the evidence before me, it appears that the application referred to in the costs order must be a reference to the applications for access to the subpoenaed documents.  As has been noted, there is no evidence of any other application being before the Court.
  2. [13]
    On 28 April 2020, the Bank’s solicitors provided a draft order in the following terms for settling by the registry. It provided:
  1. The Application filed 11 March 2020 be dismissed;
  1. The subpoenas issued as against the plaintiff and Dentons Australia Limited be set aside;
  1. The first and second defendants pay the plaintiff’s costs of and incidental to this application on a standard basis.
  1. [14]
    While this draft seeks to record orders dismissing the 11 March application (which was not listed for hearing on that date) and setting aside two of the April subpoenas, as I have noted, there is no evidence of any applications before his Honour for any of that relief.
  2. [15]
    The first order settled and issued by the Registry (CD 60) was dated 28 April 2020, and reflects the orders made by Judge Koppenol on 23 April 2020 set out in Ms Taylor’s affidavit.  It provided:

THE ORDER OF THE COURT IS THAT:

  1. Applicant/Defendant’s [sic] application for subpoenas and access to subpoenaed documents dismissed.
  2. Direct Registrar to return the subpoenaed documents to the parties they were obtained from.
  3. Applicant to pay the Respondent’s costs of and incidental to this application on the standard basis to be agreed between the parties and failing agreement to be assessed.
  1. [16]
    An amended version of that order was sealed and issued by the Registry 19 days later, on 12 May 2020 (the amended order) (CD 61). The amended order included Order 4.  It provided:             

THE ORDER OF THE COURT IS THAT:

  1. Applicant/Defendant’s [sic] application for subpoenas and access to subpoenaed documents dismissed.
  2. Direct Registrar to return the subpoenaed documents to the parties they were obtained from.
  3. Applicant to pay the Respondent’s costs of and incidental to this application on the standard basis to be agreed between the parties and failing agreement to be assessed.
  4. Paragraph 1 of the application dismissed
  1. [17]
    As is evident, Order 4 purports to dismiss the defendants’ 11 March application.  However:
    1. (a)
      Based on the evidence before me, no such words were used by Judge Koppenol; and 
    2. (b)
      As ordered by Judge Barlow QC on 9 April, the matter listed on 23 April was limited only to the production of, and access to, subpoenaed documents; and
    3. (c)
      The amended order was issued on 12 May 2020, 17 days after the hearing. 
  2. [18]
    How did Order 4 then come to be included in a sealed order issued by the Registry?  What in fact occurred appear to be this.
  3. [19]
    Ms Taylor says she first became aware of the amended order on 12 May 2020, when she viewed the court file on e-civil and noticed the amended order. This caused her to make subsequent enquiries with the section of the Registry responsible for considering draft orders and sealing orders (referred to in email as SDC orders) to obtain a copy of the amended order, which had not been served on her by the Bank.
  4. [20]
    In response to her enquiry, the Registry responded on 12 May 2020:

Good afternoon,

I refer to your below enquiry.

The sealed order of Judge Koppenol of 23 April 2020, incorporating subsequent amendment of his Honour’s Associate’s endorsement, was requested and taken out by Dentons Australia for the Plaintiff.

Please see attached scan of the duplicate of that sealed order, which has also been provided to Dentons Australia.

  1. [21]
    The amended order was provided with that email.  Ms Taylor responded the following day:

Dear Mr Tinniswood,

Thank you for your reply.

I am hoping that you may be able to assist me further with some information about this Order?

I am seeking clarification about point four (4) of the “AMENDED ORDER” and exactly what it is in relation to. This was not one of the three points his Honour Koppenol made in his order on 23 April 2020.

The solicitor for the Plaintiff, Denton’s Australia, have drafted both the “ORDER” and “AMENDED ORDER”. How would I ascertain why the order has been changed and to whom that request was made? Is it directly to his Honour’s Associate?

Further, can you explain what you mean by “endorsement of his Honour’s Associate”?

Can you please provide a copy of the “AMENDED ORDER” which has been signed by his Honour, Judge Koppenol? Or in the alternative, please advise how I am able to obtain a copy of it.

Thank you for your assistance with this.

Kind regards,

Sheree Amy Taylor.

  1. [22]
    SDC Orders responded on the same day:

Dear Ms Taylor,

I refer to your below enquiry.

When a Judge makes orders in court, they may make those orders verbally or by signing a draft order as handed up by the parties. The Judge’s Associate then record those orders on the court file, which is called an “endorsement”. The Registry produces the sealed orders from those endorsements.

In this particular matter, his Honour made orders which his Associate then recorded onto the court file; it does not appear his Honour signed a draft order in court, so these will likely have been made verbally.

Dentons Australia for the Plaintiff requested a sealed copy of those orders, and provided a Microsoft Word version of a Form 59 Order. The Registry compared that document to the Associate’s endorsement, made corrections so that they matched exactly what was recorded, then issued the sealed order. This was the sealed order which was forwarded to you on 28 April 2020.

Subsequent to this, his Honour’s Associate amended the endorsement, and the Plaintiff’s representative requested a sealed copy of the order incorporating this amendment. Accordingly, an amended sealed order was issued, with the amendments highlighted in underlining. This is the sealed order which was forwarded to you yesterday, 13 May 2020.

Again, his Honour did not sign a draft order, but the amended sealed order reflects the orders currently on the court file as endorsed by his Honour’s Associate.

The Registry cannot advise as to the reason the amendment was made; the sealed orders produced by the Registry are simply reflections of the orders already on the court file. If you have any further queries regarding this, you may wish to raise this with the Plaintiff’s representative.

[underlining added]

  1. [23]
    This email is in my view correct as to the usual process and appears accurately to reflect what the Registry was acting on when it settled the amended order.  It seemed then, that his Honour’s associate had altered the endorsements after the first order was taken out.
  2. [24]
    The second defendant then enquired with Judge Koppenol’s associate as to the addition of Order 4. Relevantly in an email dated 18 May, Ms Taylor asked:

I am seeking clarification as to what the “Paragraph 1 of application dismissed” is in relation to. As this was not one of the three (3) orders that were handed down by his Honour on 23 April 2020 I am wanting to know exactly how this fourth order has come about.

  1. [25]
    The associate responded on the same day via email:

Good Morning,

To clarify your concerns:

The orders made by His Honour on the 23rd of April 2020 still stand, what occurred was he amended his order to include “paragraph 1 of the application is dismissed”. The amendment was made to clarify that the application was heard and dealt with on 23/04/2020. The amendment occurred on 05/05/2020.

The application filed 11 March 2020 (which is court document 48) was heard by His Honour on 23/04/2020, the order made by His Honour stating “Paragraph 1 of the application dismissed” is in relation to this application (court doc 48).

If you have further questions, please ensure the other parties are copied into the email. Thank you.

  1. [26]
    It is unclear how the 11 March application came to be treated as being before his Honour for hearing on 23 April 2020.  That was inconsistent with Judge Barlow’s orders and there is no suggestion in the evidence before me that it was listed for hearing after that.   Nor is there any suggestion that the Bank’s solicitors applied on 23 April orally or in writing for dismissal of the 11 March application.
  2. [27]
    What is clear is that the making of Order 4 was the result of an approach to the associate by the Bank’s solicitors without notice to the defendants.  This was disclosed in an email by the Bank to SDC Orders on 8 May 2020, which was annexed to the second defendant’s affidavit.  It stated:

Dear Deputy Registrar

We refer to the Orders made in this matter on 23 April 2020, a copy of which we received on 28 April 2020 (as per your email below).

On 5 May 2020, we spoke to the Associate of His Honour Koppenol DCJ in respect of having the Orders amended. She confirmed the Orders would be amended and she would send them through to you to be sealed.

We respectfully request a copy of the amended orders once sealed.

  1. [28]
    It appears, then, that the Bank’s solicitors (Dentons) telephoned the associate and made representations that the sealed order should be altered and that the indorsement was changed as a result.   I do not know exactly what was said to cause that to happen because Dentons have not disclosed this detail to the Court or the defendants.
  2. [29]
    Mr Taylor made further enquiries: this time with Judge Barlow QC’s associate and my associate, as well as the Registry.  The email of 8 May 2020 was on the Court file.  I looked into the matter and concluded from that email and the other correspondence with SDC Orders that there appeared to be a genuine dispute as to whether the 11 March 2020 application was in fact dismissed on 23 April 2020.
  3. [30]
    I caused the District Court civil list manager to email both parties on 22 June 2020 in the following terms:

Good afternoon Parties,

His Honour has not closely considered the material from either party, but there appears to be a genuine dispute as to whether the 11 March 2020 application has been dismissed and if so, whether it was properly dismissed.  Either party has leave to file any application relevant to that question, returnable before His Honour Judge Porter on Wednesday 29 July 2020 at 10:00am.

If His Honour finds that the application is or should remain on foot, His Honour intends to deal with it in substance also on that date.

Any application (such as to set aside any order by Koppenol DCJ) and any material must be filed by 22 July 2009 (sic).

Any submissions must be provided to Judge Porter’s associate and the other side by 28 July at 4pm.

  1. [31]
    This prompted  a response from the Mr Koning of Dentons as follows:

Dear List Manager

We do not understand how it can be considered that there is a genuine dispute as to whether the 11 March application has been dismissed given the attached order?  Can we suggest that the Court make enquiries with His Honour Judge Koppenol?

If His Honour is not available, a review of the transcript from 23 April 2020 will show that Justice (sic) Koppenol was clear in his views and the lack of merit within this application.  It is clear to see why given that the Plaintiff has judgment in its favour and the defendants (sic) application to set aside that judgment was dismissed on 25 June 2019 by His Honour Judge Porter.  That decision has not been appealed from, the judgment stands, the further attempt to enliven this matter (the application filed 11 March 2020) has been dismissed as lacking in any merit and yet this matter continues? 

It is entirely unreasonable that my client must continue to incur the costs of dealing with this matter in these circumstances.

Nonetheless, can we ask that if any further application is filed by the defendants, the Court forward a copy of that application to us?  The defendants have a history of not doing so.  The 11 March application itself, now dismissed, was not initially served on the plaintiff.

Regards

  1. [32]
    I caused the list manager to respond as follows:

Good afternoon Mr Koning,

My previous email was sent at his Honour’s direction.  I have referred your response to his Honour. 

His Honour asked me to inform you that the matter will proceed in the way he has directed and no further contentious submissions ought to be sent to the Court or his Honour’s associate other than as directed by his Honour.   That comment applies equally to Ms Taylor.

His Honour also asked me to make clear that it is not the position of practitioners to tell the Court how to conduct matters before it. 

Nor will the Court become involved in providing documents to one party or the other at that party’s direction.

Kind regards,

  1. [33]
    The defendants filed an application seeking to have the Order 4 set aside.  They also filed Ms Taylor’s affidavit which set out the factual material and correspondence relied upon in this judgment.  The Bank did not file any affidavit material.  It relied on a brief outline of argument. 
  2. [34]
    Despite the obvious difficulties attending the inclusion of Order 4 in amended order, Dentons merely contended that because the amended order had been sealed by the registry, it was regular. 
  3. [35]
    At the hearing of the defendants’ application on 29 July 2020, Mr Koning accepted that a solicitor from Dentons had called the associate and urged on her, and indirectly his Honour, that the order should be changed.   (As I have observed, precisely what was said and by which solicitor was never disclosed).  Mr Koning accepted that consent to that communication was not sought from the defendants and on the evidence before me, even as at 29 July 2020, Dentons had still not informed the defendants of the communication nor of its content. 

Order 4 should be set aside

  1. [36]
    Ultimately, when confronted with the circumstances set out in this judgment, Mr Koning for the Bank conceded that he could not maintain the validity of Order 4.  That concession was rightly made for the following reasons.
  2. [37]
    Rule 667(2) of the UCPR states that the Court may set aside an order at any time if—
  1. (a)
    the order was made in the absence of a party; or
  2. (b)
    the order was obtained by fraud; or
  3. (c)
    the order is for an injunction or the appointment of a receiver; or
  4. (d)
    the order does not reflect the court’s intention at the time the order was made; or
  5. (e)
    the party who has the benefit of the order consents; or
  6. (f)
    for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.
  1. [38]
    As to Rule 667(2)(d), at the time the orders were made by Judge Koppenol on 23 April 2020, the 11 March application was not before him for hearing, nor was any application made to dismiss it by the Bank.  The only issue before his Honour, as correctly explained by Mr Koning to his Honour at the start of the hearing, was dealing with the April subpoenas.  His Honour’s orders as originally (and contemporaneously) recorded on the order sheet, were consistent with that procedural context.  It is impossible therefore to conclude that the Court’s intention on 23 April 2020 was that the 11 March application be dismissed.  The only reference to the application was in relation to costs where the fact that his Honour considered it misconceived was seemingly a factor in the costs order made by his Honour. 
  2. [39]
    The later amendment of the indorsement on the file appears to have been undertaken by his Honour after representations by Dentons which were themselves misconceived.  Further, it does not appear there was any reference back to the transcript at that time.  It appears his Honour’s instruction to amend the indorsements was made in error.  Certainly on the evidence before me, nothing which occurred on 23 April can sustain it.  I am satisfied that Order 4 does not reflect the Court’s intention as at 23 April 2020.
  3. [40]
    That is sufficient to sustain the setting aside of Order 4.  However, another basis exists.  Dentons’ approach to the associate was in substance an application to vary the sealed orders issued by the Court in relation to the 23 April 2020 hearing.  It resulted in the making of Order 4 in the absence of the defendants.  It may be set aside under Rule 667(2)(a), and it clearly should be.

Compliance with the Australian Solicitors Conduct Rules (ASCR)

Communications with the associate

  1. [41]
    Rules 22.5 and 22.6 ASCR provide:

22.5  A solicitor must not, outside an ex parte application or a hearing of which an opponent has had proper notice, communicate in the opponent’s absence with the court concerning any matter of substance in connection with current proceedings unless:

22.5.1  the court has first communicated with the solicitor in such a way as to require the solicitor to respond to the court; or

22.5.2  the opponent has consented beforehand to the solicitor communicating with the court in a specific manner notified to the opponent by the solicitor.

22.6  A solicitor must promptly tell the opponent what passes between the solicitor and a court in a communication referred to in Rule 22.5.

  1. [42]
    It was not in dispute on the hearing that a solicitor under Mr Koning’s direction communicated with his Honour through his associate by telephone, and that consent was not sought from the defendants before that communication occurred, nor at any time thereafter.  Further, as I observed in paragraph [35] above, even at the end of the hearing before me on 29 July, the precise terms of the communication remained undisclosed to the Court or the defendants.  There was no suggestion that this communication comprised a response to a communication from the Court of the kind identified in Rule 22.5.1
  2. [43]
    Despite those matters, it might be contended that the telephone communication with his Honour’s associate did not breach the ethical rules set out in Rules 22.5 and 22.6 because it did not amount to a communication concerning a matter of substance in connection with current proceedings.  Two possible contentions occur.
  3. [44]
    First, it might be contended that a communication about the content of an order of the Court did not concern a matter of substance.  Such a contention would in my view be wrong, at least in the context of this matter.  The making of orders is the ultimate outcome of the exercise of judicial power.  The content of those orders is a matter of substance.  It is hard to conceive of any matter of more substance in inter partes litigation than whether or not an order was made dismissing a proceeding, especially where the sealed order first issued by the Court does not contain any such order.   
  4. [45]
    Second, it might be contended that the communication was not in connection with current proceedings because his Honour had dismissed the 11 March application.  That contention is also wrong.  At the time of Mr Koning’s firm’s communication with associate, there was no order of the Court dismissing the 11 March application, as this judgment has established.  But even in the absence of this judgment, there was a sealed order issued on 28 April 2020 which left the 11 March application on foot.  On the state of the Court file and the Court’s orders at that time, the 11 March application was a current proceeding. 
  5. [46]
    In my opinion, if Mr Koning had done the defendants the courtesy of informing them of his view as to the orders made on 23 April 2020, this entire situation might have been avoided.  Ms Taylor would likely have made exactly the points made on this application and the matter could have been properly considered by his Honour, with the result being that order 4 would never have been made.  

Communications with the Registry 

  1. [47]
    I refer to the communications set out in paragraphs [29] to [32] above and especially the email at [31] from Mr Koning.   That email communication also comprises a breach of Rule 22.5 in my view:
    1. (a)
      It comprises a communication concerning a matter of substance in connection with current proceedings in that it comprises a submissions as to why the Court ought not to proceed with the hearing notified in the email at paragraph [27];
    2. (b)
      It was not in response to an invitation by the Court.  The email specifically states that submissions were to be provided in the manner directed; and
    3. (c)
      There was no question of consent being obtained in advance from the defendants. Although the email was copied to the defendants, merely copying the defendants into a communication is not obtaining their consent for the purposes of the rule.[1]
  2. [48]
    There are other concerning aspects of the communication:
    1. (a)
      It is written in a high-handed manner, putting rhetorical questions and purporting to direct the Court as to how to conduct the matter. In my view, it falls well below the standard of courtesy which the Court is entitled to expect from a legal practitioner;
    2. (b)
      It calls upon the transcript as justification for its tone and content in circumstances where no transcript had apparently been obtained; and  
    3. (c)
      No apology for the tone and content of that communication was made despite the matters contained in the response from the Court set out at paragraph [32].
  3. [49]
    The conduct in this case is of concern.  Not only does it involve, in my respectful view, a number of breaches of the ASCR, it is the kind of conduct apt to produce exactly the impression which the Rules 22.5 and 22.6 are designed to avoid: i.e. that unfair advantage has been taken by private communications with the Court leading to an apparent lack of impartiality in the conduct of proceedings.[2]  That result is all the more likely where the other party is a litigant in person. 
  4. [50]
    The conduct has caused considerable inconvenience to the defendants and absorbed a considerable amount of Court time.  Mr Koning had a paramount duty to the Court, and that duty included in my view assisting the Court to discharge its duty to ensure that proceedings involving a litigant in person were conducted fairly.[3]  In my view, his conduct in this matter fell short of what the Court is entitled to expect from a practitioner in that regard.  
  5. [51]
    I direct that the transcript of the hearing on 29 July 2020, the Bank’s submissions on the application to set aside Order 4 and these reasons be referred to the Legal Services Commissioner for her consideration.  It might be that jurisdiction over these matters lies with the equivalent officer holder in New South Wales[4], in which case I leave it to the Commissioner to forward these papers to the appropriate officer should she think it proper to do so.

Footnotes

[1] Legal Services Commissioner v Trost [2019] QCAT 357 at [55] – [58].

[2] Legal Services Commissioner v Trost [2019] QCAT 357 at [41].

[3] Australian Solicitors Conduct Rules 2012 Rule 3 and see also  New South Wales Bar Association

Guidelines for barristers on dealing with self-represented litigants paragraph 2. 

[4] Legal Services Commissioner v Trost [2019] QCAT 357 at [20] – [32].

Close

Editorial Notes

  • Published Case Name:

    Heritage Bank Limited v Gleeson & anor (No 4)

  • Shortened Case Name:

    Heritage Bank Limited v Gleeson & anor (No 4)

  • MNC:

    [2020] QDC 224

  • Court:

    QDC

  • Judge(s):

    Porter QC DCJ

  • Date:

    15 Sep 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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