Login
Supreme Court criticises Sydney firm over its handling of interstate case
A Supreme Court judge has hit out at an interstate law firm for failing to understand or review its procedural rules.
Naomi Neilson
Justice Michael Lundberg of the Western Australian Supreme Court criticised Sydney mortgage firm Parsons & Partners for the number of important procedural matters “which have gone awry” in its handling of a summary judgment application and order for possession.
“The requirements imposed by the [Rules of the Supreme Court 1971] are not identical to those found in the rules which apply in other state superior courts,” Justice Lundberg said.
“Nonetheless, they are our rules, and they should be understood by practitioners who intend to practice in this court – including those practitioners located in other states and territories – when taking instructions to commence or defend matters in this court.”
The procedural matters concerned affidavits prepared by a legal practitioner with Parsons & Partners, which Justice Lundberg said manifested failures to comply with the form and procedural requirements in rules O 37 r2 and r 6 RSC.
For one, the affidavits referred to a “single” exhibit, which consisted of several pages and documents, when it instead should have been an attachment that was individually marked and identified in an index.
“This is particularly important in a case in which the plaintiff is relying on a suite of financing documents which should each be separately identified in an affidavit as an attachment, rather than attached as simply one document without delineation,” the judge said.
Further, the affidavits were filed without the “so-called” exhibits, meaning only the bodies of those affidavits were filed with the court.
Two re-filed affidavits were also deemed insufficient, as was an “unnecessary” reference to another section under the rules.
Justice Lundberg also took issue with the lack of information about the legal practitioner’s role and seniority at Parsons & Partners and evidence about how he was involved in the finance arrangements.
While the legal practitioner said he is “able to affirm positively to the facts hereinafter set fourth [sic] from his own knowledge”, Justice Lundberg said he could not discern the basis for this assertion.
As for the substance of the affidavits, Justice Lundberg said there was no “evidentiary foundation”, with much of the material consisting of reference to documents and “unnecessary commentary”.
“Where there are disputed questions of fact, which might be capable of resolution on an application such as this, the absence of persuasive affidavit material from a person on the plaintiff’s side with direct knowledge of the facts strikes me as highly detrimental to the ability of the plaintiff to demonstrate that summary judgment ought be granted,” Justice Lundberg said.
While the affidavits of the other party also suffered from deficiencies, it was up to Parsons & Partners client to “bear the legal onus” on the application, and it was theirs that needed to be taken at the highest.
“These problems can be avoided by engaging or consulting a law firm [that] is familiar with this court’s practice and procedure, or briefing independent counsel from this jurisdiction, at an early juncture.
“To allow the ship to steer off course before it is too late for anyone to get to the wheelhouse, is simply unwise,” Justice Lundberg said.
The case is Accelerated Loans Pty Ltd v Forbes [2024] WASC 504 (23 December 2024).
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
You can email Naomi at:
