Findlay & Co Stockbrokers (Underwriters) Pty Limitedv Carminco Gold & Resources Limited [2007] FCA 499 (17 April 2007)

Last Updated: 19 April 2007

FEDERAL COURT OF AUSTRALIA

Findlay & Co Stockbrokers (Underwriters) Pty Limited v Carminco Gold & Resources Limited [2007] FCA 499

FINDLAY & CO STOCKBROKERS (UNDERWRITERS) PTY LIMITED ACN 078 379 683 v CARMINCO GOLD & RESOURCES LIMITED (FORMERLY KNOWN AS TRANS PACIFIC MINING LTD) ACN 095 749 670, TRANS PACIFIC MINING LTD ACN 107 393 948 AND RODERICK NEIL SALFINGER
NSD 829 OF 2004

COWDROY J
17 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 829 OF 2004

BETWEEN:	FINDLAY & CO STOCKBROKERS (UNDERWRITERS) PTY LIMITED ACN 078 379 683 Applicant
AND:	CARMINCO GOLD & RESOURCES LIMITED (FORMERLY KNOWN AS TRANS PACIFIC MINING LTD) ACN 095 749 670 First Respondent TRANS PACIFIC MINING LTD ACN 107 393 948 Second Respondent RODERICK NEIL SALFINGER Third Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	17 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The third respondent’s application to vacate the hearing date is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 829 OF 2004

BETWEEN:	FINDLAY & CO STOCKBROKERS (UNDERWRITERS) PTY LIMITED ACN 078 379 683 Applicant
AND:	CARMINCO GOLD & RESOURCES LIMITED (FORMERLY KNOWN AS TRANS PACIFIC MINING LTD) ACN 095 749 670 First Respondent TRANS PACIFIC MINING LTD ACN 107 393 948 Second Respondent RODERICK NEIL SALFINGER Third Respondent

JUDGE:	COWDROY J
DATE:	17 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 2 April 2007 the third respondent (‘Mr Salfinger’) made an oral application to vacate the hearing date fixed to commence on 16 April 2007. Mr Salfinger appeared before the Court on his own behalf, and on behalf of the first and second respondents.

2 The proceedings were listed before the Court on that day for the purpose of hearing a Notice of Motion filed by the applicant seeking various orders. For present purposes it is not necessary to deal with the applicant’s Notice of Motion but it is instructive to refer to the orders which have been made in these proceedings to ensure its preparation for hearing.

PRIOR COURT ORDERS

23 November 2006

3 On this date the Court made the following orders which are relevant to these proceedings:

‘1. The respondents file and serve any further affidavit evidence by 21 December 2006.
2. Leave be granted to the respondents to amend their defence if required and file any cross-claim on or before 21 December 2006.
...
7. Any motions to be brought by either party be filed by 21 December 2006 and be made returnable on 8 February 2007.
8. Leave be granted to the respondents to issue subpoenas forthwith and any applications to set aside such subpoenas be filed in such time as to enable the question of the scope of the subpoenas to be heard on 8 February 2007.’

8 February 2007

4 On this date the Court made the following orders which are relevant to this application:

‘1. The respondents complete the service of their evidence by 22 February 2007.
2. The respondents provide the applicant with further and better particulars sought by the letter of 8 February 2007 by 22 February 2007.’

15 March 2007

5 The Court made the following relevant orders on this date:

‘1. The applicant provide to the respondents a list of particulars which are claimed to be inadequate by 12 noon on Friday 16 March 2007.
2. The respondents provide answers to the particulars sought by the applicant by noon on Monday 19 March 2007.
3. The respondents provide to the applicant no later than noon on Friday 23 March 2007 any reports or affidavits upon which they rely in support of their defence and cross-claim whether relating to damages or liability.
...
5. The costs of this hearing be reserved, it being noted that this hearing was necessary because of the absence of particulars and evidence relating to damages.’

Application by Mr Salfinger

6 The application for vacation of the hearing dates was made upon the ground of a medical condition from which Mr Salfinger allegedly suffers which affects his eyesight. Mr Salfinger claimed that he had been unable to comply with the above orders because of such condition.

7 In support of his oral application, Mr Salfinger provided letters which became Exhibit A. Such correspondence comprised reports of Dr John B Myers dated 3 January 2007 and 31 March 2007, a letter from the Royal Victorian Eye and Ear Hospital dated 10 January 2007 recording a visit to that hospital by Mr Salfinger on 29 November 2006, and a letter from his employer, Cassal Drilling Pty Limited.

8 In his report dated 3 January 2007 Dr Myers refers to his first examination of Mr Salfinger on 26 November 2006. Dr Myers found that Mr Salfinger was suffering from a condition known as iritis when he examined him. Dr Myers states that iritis is a painful condition affecting the eye which can lead to ongoing inflammation and blindness. He recommended the use of eye drops. At that stage Dr Myers states that Mr Salfinger was unable to fulfil his work obligations ‘that required meeting deadlines for submission of Court documents’. Mr Salfinger attended at the Royal Victorian Eye and Ear Hospital on 28 November 2006 and on 29 November 2006, as evidenced by the letter of that hospital dated 10 January 2007. There is no evidence of any treatment provided by the hospital.

9 By report dated 31 March 2007 Dr Myers states:

‘Mr Salfinger has been suffering from iritis, an acute and potentially blinding condition of the eye, which is ongoing and has limited his ability to full performing [sic] his work duties, as medication required dilates the eye and alters vision by interfering with lens focussing, which prevents him from driving and reading.
He has also been under considerable stress, which aggravates the eye condition but has resulted in symptoms of chest pain. Investigations including cardiograph have been performed, which have indicated that no actual heart muscle damage has occurred.
It is of importance that he has sufficient rest to reduce stress and allow his eye condition to settle.
It is recommended that formal time off work be taken to allow him to recover, so as to not require eye drops, which will allow him to return to work.
It is reasonable to allow three or so weeks for him to recover, when he will be reviewed as to his return to work status.’

10 On 2 April 2007 the hearing of Mr Salfinger’s application to vacate the hearing date was adjourned until 5 April 2007 to enable him to provide any additional evidence in support of his application.

Orders of 2 April 2007

11 The Court made the following orders on 2 April 2007:

‘1. The hearing of the notice of motion filed in Court today will be heard at 10.15 am on Thursday 5 April 2007. Each party is required to appear in Sydney.
2. Any further evidence to be relied upon by the third respondent concerning his medical condition is to be adduced at the hearing on Thursday 5 April 2007 at 10.15 am.
3. A statement of issues to be determined at the final hearing is to be filed by the applicant by 4 pm on Thursday 5 April 2007. Each issue is to be stated in no more than 4 lines.
4. The respondents are to provide their responses to each issue in no more than 4 lines by Thursday 12 April 2007.
5. The third respondent is to file an affidavit deposing to the means of the first and second respondents by 10.15 am on 5 April 2007 listing the current assets, liabilities and income of each of the first and second respondents. Such affidavit is also to include an outline of any evidence which the third respondent claims is recent and that the respondents wish to adduce at the hearing.’

Hearing on 5 April 2007

12 Mr Salfinger failed to appear at the directions hearing listed for 5 April 2007. Instead he telephoned the Court to explain that he was seeking medical treatment in Melbourne and would not be able to attend the hearing. Accordingly the Court made the following orders:

‘1. All applications currently before the Court be adjourned to the commencement of the hearing.
2. The date of 16 April 2007 is confirmed.
3. Access be granted to all parties to documents produced to the Sydney Registry in answer to subpoenas.
4. Costs be reserved.’

Hearing on 13 April 2007

13 On 13 April 2007 the Court listed the proceedings in view of the fact that Mr Salfinger had sent directly to the Court a letter from his mother attaching two medical reports which he had apparently not provided to the applicant. A note attached to the records claimed that they were confidential.

14 Since such conduct was inappropriate, the Court listed the matter to enable the position to be clarified. Accordingly, arrangements were made for Mr Salfinger, Dr Myers, and Dr David Freedman, a doctor from Canada who had treated Mr Salfinger previously, to appear at this directions hearing via telephone. Mr Salfinger provided telephone numbers for himself and his medical experts for the directions hearing which was fixed for 9.30 am on 13 April 2007.

15 At this hearing Mr Cheshire appeared for the applicant. Dr Myers and Dr Freedman were in attendance by telephone. However Mr Salfinger could not be contacted and the Court received a message that Mr Salfinger was then attending a medical appointment. Due to the failure of Mr Salfinger to be available at this time the directions hearing was aborted and the Court made the following orders:

‘1. The hearing date to commence on 16 April 2007 at 10.15 am is confirmed.

2. Should the respondents not appear at the hearing it will proceed ex parte.

3. Each party is to submit to the Court by 4 pm today a list of evidence and pleadings to be relied upon at the hearing.

4. Costs of the directions hearing today be borne by the respondents.’

Hearing 16 April 2007

16 Mr Moran of counsel appeared for the respondents at the commencement of the hearing on 16 April 2007 but only for the purpose of continuing Mr Salfinger’s previous application to adjourn the hearing. Mr Moran was granted leave to rely upon an affidavit affirmed by Mr Salfinger on 16 April 2007 which annexed medical reports of Dr Myers dated 31 March 2007, 4 April 2007 and 10 April 2007. The affidavit also annexed a report of Dr Freedman dated 1 April 2007 and a medical certificate from the Royal Victorian Eye and Ear Hospital dated 15 April 2007. In addition, a letter of 15 April 2007 from that hospital indicating that Mr Salfinger had an emergency review scheduled at 3.00 pm on 17 April 2007 was attached.

17 As both Mr Salfinger and Dr Myers were in Melbourne, arrangements were made for their respective cross-examination to take place via video at 2.15 pm. Dr Myers attended at the appointed time at the Federal Court in Melbourne. However Mr Salfinger did not attend. Through his counsel, Mr Salfinger informed the Court that on the advice of Dr Myers, he would not be attending the Court at the appointed time. On the basis that Mr Salfinger was legally represented, the Court directed that Mr Cheshire cross-examine Dr Myers in the absence of Mr Salfinger.

FINDINGS

18 The evidence establishes that Mr Salfinger first complained to Dr Myers of an eye condition on 26 November 2006. Dr Myers diagnosed the condition of iritis and prescribed eye drops known as Predneffin. At a later date Mr Salfinger complained of chest pains.

19 Dr Myers is a consultant physician and geriatrician specialising in aged care and the provision of medical reports for legal purposes. Dr Myers is not an ophthalmologist and does not have any expert qualifications in respect of cardiovascular conditions. In apparent recognition of his lack of relevant expertise, Dr Myers referred Mr Salfinger to Dr Leber, an ophthalmologist on 10 April 2007 (although the referral was not forwarded to Dr Leber until 13 April 2007). Dr Leber examined Mr Salfinger on 13 April 2007 and provided a medical report of his findings on the same day to Dr Myers. Dr Leber’s report has not been tendered in evidence.

20 Dr Myers also referred Mr Salfinger to Melbourne Pathology for investigations into chest pains of which Mr Salfinger had complained. Melbourne Pathology provided results of its investigation to Dr Myers. The Court has not been provided with a copy of the results of the cardio investigations, but Dr Myers acknowledged in cross-examination that no abnormality was revealed.

21 During the course of Dr Myers’ evidence certain disturbing facts were revealed. Dr Myers disclosed that Mr Salfinger had a general practitioner, Dr Pinczower. Dr Myers had had no communication whatsoever with Dr Pinczower concerning Mr Salfinger’s claimed medical conditions.

22 Further, it is established that Dr Myers is a very close friend of Mr Salfinger. They first met approximately one year ago and since that time Mr Salfinger has been a regular guest in Dr Myers’ home. The relationship is in fact so close that Mr Salfinger stayed with Dr Myers in his home over Passover, a period of eight days commencing on 2 April 2007. It was during this period that Dr Myers prepared some of the reports, as well as the referral for Mr Salfinger to see Dr Leber. The relationship between Mr Salfinger and Dr Myers was not referred to in any of Dr Myers’ reports.

23 Dr Myers testified that he prescribed eye drops known as Predneffin for Mr Salfinger on 26 November 2006. However, Dr Myers had no record of such prescription. Dr Myers’ medical records relating to Mr Salfinger were confined to notes written on loose sheets of paper. Dr Myers acknowledged that he did not usually keep his patient records in such form.

24 Dr Myers also gave evidence that the medical report dated 4 April 2007 was actually prepared by Mr Salfinger, possibly with the assistance of a lawyer, and submitted to Dr Myers for signature. While Dr Myers states that he made some amendments to the draft, the draft could not be presented to the Court as Dr Myers claims that he had not retained the original and that he may have returned it to Mr Salfinger. Dr Myers’ evidence on this matter was vague.

25 The Court also observes that Dr Myers was unable to provide a satisfactory explanation for the inconsistencies in his recommendations relating to the amount of time Mr Salfinger should take off work both before and after it was known that Mr Salfinger did not suffer from any heart condition. His attempted explanation concerning the differences between his two reports of 31 March 2007 is both confusing and obscure.

26 Despite the evidence of Dr Myers that Mr Salfinger has been suffering from iritis since at least November 2006, the Court observes that it was not until 2 April 2007 that Mr Salfinger referred to any medical condition which he claimed was disabling him.

27 The Court was unimpressed with the evidence given by Dr Myers and based upon the above facts considers that his medical opinion is compromised and should be substantially discounted. Dr Myers’ conduct falls short of that which the Court is entitled to expect of an objective professional expert.

28 The report of Dr Freedman similarly cannot be afforded any significant weight. Dr Freedman has not examined Mr Salfinger in 2007. Dr Freedman appears to be a general practitioner only with no expertise relating to conditions of the eye, and his report is general and lacks detail in respect of the exact nature of the advice he provided to Mr Salfinger.

29 Further, a medical certificate issued by the Royal Victorian Eye and Ear Hospital on 15 March 2007 carries little weight. It simply refers to the fact that Mr Salfinger is suffering from an ‘eye condition’ and states ‘Mr Salfinger is not fit to work as a pilot, please excuse him from his duties’.

30 In January 2007 Mr Salfinger commenced employment with Cassal Drilling Pty Limited. In that company’s letter dated 15 March 2007 the accountant wrote:

‘Our Company has tight deadlines to meet, with the drill rig being required for 24 hour per day operations. This has required Mr Salfinger’s full time ongoing attention to manage the rig deployment and rectify the problems encountered. In addition he has had to attend to human resources issues and preparation of site accounting for process by our head office. Mr Salfinger has been required to attend site and work for extended hours on a 6 day per week basis. I note that the drill site is serviced by a radio phone service with poor reception.
Due to the above situation, Mr Salfinger has had little if any other time to attend to issues other than his employment with the Company.’

31 Earlier this month Mr Salfinger was able to attend at his office as well as at Pyramid Hill, which is several hundred kilometres from Melbourne, to attend to the operations of Cassal Drilling Pty Limited. Accordingly, the Court is satisfied that Mr Salfinger was able to attend to his daily activities.

32 It is a matter of public record that Mr Salfinger has been engaged in other litigation and was able to conduct, in person, litigation in this Court in Melbourne on 14 March 2007 (see Salfinger v Niugini Mining (Australia) Pty Ltd [2007] FCA 470.). The e-search records tendered in evidence show that Mr Salfinger was actively engaged in the preparation for that hearing and conducted the hearing personally. Additionally, Mr Salfinger was able to prepare a 72 page document for use in this Court on 26 March 2007, and on 28 and 30 March he appeared before Registrar Hedge.

33 Mr Salfinger failed to attend at Court without adequate explanation on 5, 13 and 16 April 2007. Mr Salfinger claimed that he did not attend the hearing on 16 April 2007 because of the advice of Dr Myers. Contrary to such claim Dr Myers denied that he provided such advice.

CONCLUSION

34 Order 30 Rule 7 of the Federal Court Rules provides that a date for trial fixed by the Court may be vacated only by order of the Court. The Court will not vacate a hearing date unless there are sound reasons for doing so and justice is done to all parties.

35 Mr Salfinger’s application for vacation of the hearing dates is predicated upon illness, namely the condition of iritis. Since Dr Leber’s report has not been tendered, the Court is not satisfied that Mr Salfinger is unable to conduct his litigation. Accordingly, the application to vacate the hearing date is refused and the hearing will proceed.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 17 April 2007

Counsel for the Applicant:	A. Chesire
Solicitor for the Applicant	Gye Associates Lawyers
Counsel for the Respondent:	S. Moran
Solicitor for the Respondent:	Glynns Lawyers
Date(s) of Hearing:	16 – 17 April 2007
Date of Judgment:	17 April 2007