DEKKAN v PICCIAU [2008] NSWCA 18 (3 March 2008)

Last Updated: 4 March 2008

NEW SOUTH WALES COURT OF APPEAL

CITATION:
DEKKAN v PICCIAU [2008] NSWCA 18


FILE NUMBER(S):
40746/06

HEARING DATE(S):
21 February 2008

JUDGMENT DATE:
3 March 2008

PARTIES:
Bassam Dekkan - Claimant
Betty Picciau - Opponent

JUDGMENT OF:
Hodgson JA Tobias JA Basten JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
3696/05

LOWER COURT JUDICIAL OFFICER:
Kearns DCJ

LOWER COURT DATE OF DECISION:
27 October 2006


COUNSEL:
Claimant - Self-represented
J Parnell - Opponent

SOLICITORS:
Claimant - Self-represented
Law & Order - Opponent

CATCHWORDS:
APPEAL – appeal from refusal of District Court judge to grant adjournment – appellate intervention in discretionary judgment
FURTHER EVIDENCE – evidence tending to show procedural unfairness – denial of truth of statements made by lawyer in court – evidence obtained from lawyer but not addressing statements made – further medical evidence – doctor not called
LEGAL REPRESENTATIVE – retainer for litigation – adjournment application refused – not prepared for trial – withdrawal of instructions – advice given to client – application to withdraw from hearing
PROCEDURAL FAIRNESS – defendant taken to hospital in ambulance in course of hearing – defendant withdrew retainer of solicitor – trial judge refused adjournment – hearing continued in absence of defendant and any legal representative of defendant – balance of prejudice between parties

LEGISLATION CITED:


CATEGORY:
Principal judgment

CASES CITED:
[<i>Carryer v Kelly</i>] (1969) 90 WN (Pt) 1 (NSW) 566
[<i>Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd</i>] [2006] HCA 55; 229 CLR 577
[<i>HG v The Queen</i>] [1999] HCA 2; 197 CLR 414
[<i>Hamod v Suncorp Metway Insurance Ltd</i>] [2006] NSWCA 243
[<i>House v The King</i>] [1936] HCA 40; (1936) 55 CLR 499
[<i>Maxwell v Keun</i>] [1928] 1 KB 645
[<i>Opitz v Repatriation Commission</i>] (1991) 29 FCR 50
[<i>Queensland v JL Holdings Pty Ltd</i>] [1997] HCA 1; 189 CLR 146
[<i>Sali v SPC Ltd</i>] [1993] HCA 47; 67 ALJR 841
[<i>Sullivan v Department of Transport</i>] (1978) 20 ALR 323
[<i>Sydney City Council v Ke-su Investments Pty Ltd</i>] (1985) 1 NSWLR 246

TEXTS CITED:


DECISION:
1. Grant leave to appeal. 2. Dismiss the appeal. 3. Order the applicant/appellant to pay the respondent's costs in this Court.



JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40746/06

DC 3696/05

HODGSON JA

TOBIAS JA

BASTEN JA

3 March 2008

Bassam DEKKAN v Betty PICCIAU

Headnote

This appeal arose from proceedings in the District Court brought by the respondent, Ms Picciau, against the applicant, Mr Dekkan, to recover moneys which she claimed she had lent to him between July 2003 and September 2005. The matter was heard on 25, 26 and 27 October 2006 before Kearns DCJ.

On 26 October 2006, during the luncheon adjournment, the applicant was taken to hospital in an ambulance. When the hearing resumed, the applicant’s solicitor, Mr Johnson, informed the Court that the applicant had been taken to hospital and had withdrawn Mr Johnson’s retainer. Mr Johnson was granted leave to withdraw, having indicated to the Court that he had explained to the applicant that the Court could proceed to judgment in the applicant’s absence. The trial judge decided that the hearing should continue. Judgment was given for the respondent on 27 October 2006.

The applicant sought to appeal from the trial judge’s decision on the basis that he was denied natural justice and the proceedings were affected by an apprehension of bias on the part of the trial judge.

The Court held, granting the application for leave and dismissing the appeal:

(per Basten JA, Hodgson and Tobias JJA agreeing)

1. An appellate court will interfere with the discretion of a trial judge to refuse an adjournment if the refusal will result in a denial of justice to the applicant and the adjournment will not result in injustice to another party. This may be seen as a specific application of the general rule that an appellate court will only intervene in a discretionary judgment of a trial judge in the circumstances enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499: [36], [38].

Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841; Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146, considered.

Carryer v Kelly (1969) 90 WN (Pt) 1 (NSW) 566; Sydney City Council v Ke-su Investments Pty Ltd (1985) 1 NSWLR 246; Maxwell v Keun [1928] 1 KB 645, referred to.

2. The trial judge recognised that the appellant would suffer prejudice if the proceedings continued and balanced that factor against the prejudice which would occur to the respondent if the proceedings were adjourned. On the material before the trial judge, the applicant failed to demonstrate any error of a kind which would warrant the intervention of this Court: [49].

3. The failure of a lawyer instructed generally in a matter to prepare for a hearing does not, absent some particular justification, entitle a party to an adjournment to the prejudice of the opposing party. The belief on the part of the lawyer that his or her client was entitled to an adjournment is insufficient to constitute justification: [51].

4. In the circumstances, the mere fact of a refusal of an adjournment does not demonstrate any sufficient basis for a reasonable apprehension of bias: [53].

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40746/06

DC 3696/05

HODGSON JA

TOBIAS JA

BASTEN JA

3 March 2008

Bassam DEKKAN v Betty PICCIAU

Judgment

1 HODGSON JA: I agree with Basten JA.

2 TOBIAS JA: I agree with Basten JA.

3 BASTEN JA: The respondent, Ms Picciau, sued the applicant, Mr Dekkan, in the District Court to recover moneys which she said she had lent to him on a number of occasions between July 2003 and September 2005. The case was heard in the District Court on 25, 26 and 27 October 2006, before Kearns DCJ. His Honour gave judgment on 27 October 2006 in favour of Ms Picciau in an amount of $97,662.41.

4 Because the amount of the judgment was less than $100,000, Mr Dekkan required leave to appeal to this Court. However, as the amount is close to the threshold, the Court would be inclined to give leave, if persuaded that the proposed appeal had merit.

5 The draft notice of appeal, filed with the summons seeking leave, was prepared by a solicitor then acting for the applicant. It sought to challenge the judgment in the District Court on two grounds, namely that the applicant was denied natural justice and that the proceedings were affected by apprehended bias on the part of the trial judge. The basis of both these grounds was that the trial had proceeded in the District Court in the absence of Mr Dekkan and his solicitor, thus depriving him of a reasonable opportunity to present his case to the Court. The three factors relied upon were identified as follows:

(a) the applicant’s solicitor was granted leave to withdraw from representing the applicant at the hearing before Kearns DCJ at about 2.00pm [on 26 October 2006];

(b) shortly before 2.00pm the applicant had been taken to hospital in an ambulance;

(c) the applicant’s solicitor had informed the Court that the applicant had been taken to hospital by ambulance.

6 The draft notice of appeal was also accompanied by a summary of argument prepared and signed by counsel. However, that summary did little more than restate the grounds and assert that the trial judge should have adjourned the hearing when the applicant was taken to hospital by ambulance. The materials filed with the white folder did not include the pleadings or any formal documentation from the District Court.

7 It is not in doubt that a complaint of apprehended bias on the part of a trial judge may constitute a ground of appeal: see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577. On the same basis a complaint of procedural unfairness may be accepted as a proper ground of appeal; the respondent did not suggest otherwise: see HG v The Queen [1999] HCA 2; 197 CLR 414 at [97] (McHugh J) and Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243 at [9]- [11]. It will be apparent that these grounds, which do not go to the merits of the judgment, but rather procedural steps taken at the trial, allege facts which would need to be supported by evidence.

8 At the time of the hearing in the District Court, Mr Dekkan was represented by a solicitor, Mr Joseph Johnson, who was employed by Bruce Dennis & Co. When the proceedings commenced on Wednesday, 25 October 2006, Mr Johnson made an application to vacate the hearing because Mr Dekkan was “in a psychiatric hospital”. It appears that a previous application had been made on the same basis on Monday, 23 October, but had been rejected at that stage because Mr Johnson did not have a medical report to support the application and explain Mr Dekkan’s condition. On the morning of 25 October, it appears that Mr Johnson had a report from Dr Selwyn Smith, who is a physician specialising in psychiatry.

9 The adjournment application was opposed, in part because the matter had previously been set down for hearing in September 2006 and the dates had been vacated on Mr Dekkan’s application. A second basis for opposition was that of the sum allegedly lent by Ms Picciau to Mr Dekkan, an amount of $30,000, was obtained by her on her credit card and the bank was seeking to recover those moneys by way of judgment. Thirdly, there was an amount outstanding for costs which had been ordered in relation to the vacation of the earlier hearing date and which, despite an undertaking to pay them, had not been paid.

10 As Mr Johnson accepted, the written medical report was something less than a comprehensive report as to Mr Dekkan’s condition. Dr Smith had not been available to come to Court, but arrangements were made to take his evidence by telephone. A transcript of his evidence is in the papers with this Court, although his report is not. He explained that Mr Dekkan was experiencing “a major depressive episode”: Tcpt, 25/10/06, p 17. He had developed “a marked degree of depression” over a period of “a couple of years” consequent upon Guillain-Barré Syndrome, which condition had since resolved.

11 In his telephone evidence, Dr Smith accepted that Mr Dekkan was capable of communicating and that, if required, he would be able to attend court. At least he stated that that was not “medically impossible”: Tcpt, p 19. The following exchange also took place:

“Q. I think you said some of this depression is related to these proceedings?

A. He’s certainly you know – he’s under financial pressure he’s advised me. He – I think attending court is stressful to most. It’s not an enjoyable experience and given his psychological make-up I – he’s also concerned about the court appearances. And his ability to function in court.”

12 An exchange with his Honour elicited the following further evidence:

“Q. Doctor I have the distinct impression from the evidence you have given that he would be fit if need be to attend court tomorrow to give evidence in this case that is before me at the moment. Am I right about that or not?

A. As I understand, can he direct, can he recall, the answer is yes. Yes in that sense as I understand the criteria for being a witness.

Q. So far as his health is concerned is there any contra-indication as to why he shouldn’t attend court tomorrow?

A. No.”

13 The transcript recorded that a separate judgment was given by his Honour, relating to the application to adjourn the matter and vacate the hearing dates. The luncheon adjournment followed. No copy of that judgment was provided to this Court by the applicant, although it was important to his complaint of procedural unfairness. A copy was eventually supplied by counsel for the respondent at the hearing of the application.

14 When the Court resumed after lunch at 2.15pm on 25 October 2006, Mr Johnson was not present, but the Court appears to have received a telephone message that he would be “here in 8 minutes”: Tcpt, p 23. His Honour allowed counsel to open the case for the plaintiff, which he did. Mr Johnson appears to have arrived at Court at about 2.30pm. The proceeding continued in Mr Johnson’s presence, without further objection, to the end of October 25.

15 On the morning of 26 October a witness was interposed to give evidence about a missing page of the plaintiff’s affidavit. Mr Johnson cross-examined him briefly. At his Honour’s request, Mr Johnson then outlined his understanding of the issues before the Court. It became apparent to his Honour that the issues outlined by Mr Johnson did not conform to the defence then on the Court’s file. He granted a short adjournment to allow Mr Johnson to consider whether an application would be made to amend the defence and to provide evidence in support of it: Tcpt, p 18. After the adjournment Mr Johnson said:

“Apologies for getting a bit hot under the collar before your Honour. The lack of preparation has put us at a loss.”

16 There was then reference to an affidavit prepared for the defendant and a request from counsel for Ms Picciau for an opportunity to obtain instructions in relation to the amended defence. The matter was then adjourned to 12.30pm. Mr Johnston apparently did not return to Court at that time (p 19) but arrived at 12.40pm, and the following exchange took place (p 20):

“JOHNSON: My client is almost on the point of passing out. I’m trying to see what’s happening with him.

HIS HONOUR: Where is he?

JOHNSON: He’s downstairs at the foyer.

HIS HONOUR: Were your batteries flat on your mobile again?

JOHNSON: Almost.

HIS HONOUR: Or both of them – almost. Your behaviour in this case is proving quite unacceptable Mr Johnson.

...

JOHNSON: I’m dealing with quite difficult circumstances with my client almost on the point of passing out. I can’t get instructions [from] him. It’s quite difficult for me to run these proceedings.”

17 Shortly thereafter, it appears from the transcript (p 22) that Mr Dekkan came back into Court and passed Mr Johnson a note. There was then some discussion between Mr Dekkan and the trial judge as to whether he had recovered. In the course of that exchange, Mr Dekkan stated:

“Excuse me sir I’ve got an appointment with Legal Aid 16 November. I feel I’m being misrepresented. I don’t want to waste anybody else’s time.

...

I swear I haven’t been presented the proper way while I don’t have barrister. You can see on the other side they’ve got barrister and while I was in depression and anxiety your Honour. Everyone understand that. I wish and hope you’ll understand. My appointment with Legal Aid is 16 November, the earliest one, because I want to finish the headache, 10 o’clock.”

18 It will be necessary to refer to later evidence as to what happened between Mr Dekkan and Mr Johnson at that point in the hearing. However, Mr Johnson understood that his services were no longer required and made an application to withdraw from the proceedings. The following exchange took place with his Honour (p 25), his Honour noting that there was “the risk that the matter could then proceed in your absence”, a possibility that Mr Johnson said would be procedurally unfair. His Honour enquired as to what had brought about Mr Dekkan’s loss of confidence in Mr Johnson:

“HIS HONOUR: But what brings that on. I mean yesterday you were not briefing counsel because you were fully competent to do it.

JOHNSON: Yes.

HIS HONOUR: What’s changed?

...

This Court has been knocked around from pillar to post by, dare I say your lack of preparation Mr Johnson.

JOHNSON: Your Honour I had – considering my client was in a hospital I did not have time to prepare. I’ve never come into a hearing this unprepared.

HIS HONOUR: I don’t accept that you haven’t had time to prepare. His presence in hospital has had nothing to do with your preparation and everything to do with whether or not he could attend court.”

19 The Court then took the luncheon adjournment, after which Mr Johnson stated that his client “has just been carted away in an ambulance, he’s off to hospital”.

20 In the course of the application to withdraw, the following exchange took place (Tcpt, p 35):

“HIS HONOUR: Mr Johnson did you advise your client the consequences of his withdrawing instructions?

JOHNSON: Yes, I did.

HIS HONOUR: What did you advise him?

JOHNSON: I advised the judgment could be entered in my absence.

HIS HONOUR: And that the case could proceed without him and without you?

JOHNSON: Certainly.”

21 There was further discussion between the trial judge and Mr Johnson in the course of which the latter accepted that he had come to Court completely unprepared to run a hearing, because he had been confident that the trial dates would be vacated. After expressing further disquiet as to the manner in which the case had been run, his Honour stated (p 36):

“HIS HONOUR: I would be proposing to continue with this matter ex parte on the existing pleadings. Does your client know that?

JOHNSON: Well he can’t possibly know what your Honour has just said until I inform him.

HIS HONOUR: Which means you haven’t advised him that this could have happened.

JOHNSON: I just informed your Honour that I have advised him that it could continue ex parte. Judgment could be entered without me being here and ---

HIS HONOUR: And on the existing pleadings.

JOHNSON: On the existing pleadings, yes.

HIS HONOUR: Well then you have advised him of that.

JOHNSON: But your Honour just came to the conclusion that you would be continuing along that path.

HIS HONOUR: Leave to withdraw granted.”

22 His Honour then gave a short judgment providing reasons, which was again not put before this Court by the applicant, but a copy of which was finally provided by counsel for the respondent during the hearing of the application for leave to appeal. The judgment sets out the history of the matter as understood by his Honour and largely as reflected in the transcript. He stated (p 5):

“In circumstances that have arisen and in the nature that they have now arisen when the defendant has withdrawn instructions from his solicitor, a serious question arises as to whether the matter should proceed now or whether it should be adjourned.

Whichever way it goes there is going to [be] prejudice, or there is the potential [for] prejudice. There is the potential for the defendant to have an adverse judgment entered against him with what, on his understanding, so far has been inadequate representation, and hereafter there will be no representation. Yet, if I am to accede to the alternative, it will involve a long delay. I have been informed that the defendant has an appointment with Legal Aid. It is notorious that it takes time for Legal Aid applications to be processed. It is also notorious that it is extremely difficult to obtain Legal Aid. It is also notorious that appeals from the rejection of Legal Aid tend not to be successful.

To put the plaintiff on a wait while that process occurs will keep her out of court for a period, and for a period where prejudice will occur to her. Prejudice will occur to her because the bank is on the verge of pursuing bankruptcy proceedings against her, and as I understand it, is holding off pending the outcome of this matter on the understanding that it is presently proceeding.

Somebody has to [be] harmed or has the potential to be harmed prejudicially. I cannot avoid, whatever decision I make, that occurring. In my view the balance lies in favour of the plaintiff. It lies in favour of the plaintiff because she has had this case fixed for hearing more than once. There is no certainty of when it can finish if I do not proceed with it now.

Also, the defendant seeks today to raise issues that had not been raised before and to some extent I have dealt with that in observations I have made earlier in these reasons. For those reasons I intended to proceed with the case.”

Proceedings in this Court

23 The course of proceedings in this Court has also been fraught. The application for leave to appeal filed by solicitors then representing the applicant were dealt with by the Registrar on 13 April 2007 when the matter was set down for concurrent hearings of the application and the appeal on 30 August 2007. The applicant was required to file and serve any affidavits relating to further evidence by 1 June 2007 and written submissions, as on an appeal, by 15 June 2007.

24 On 6 August 2007 the respondent sought to have the application dismissed for want of prosecution. That application was refused, but the hearing date of 30 August was vacated. The applicant was then given further time to file additional evidence, a draft notice of appeal and written submissions.

25 On the final day for such material to be filed, namely 27 August 2007, an affidavit was filed which was largely confined to challenging the merits of the judgment in the District Court and provided no material relevant to the grounds of appeal in the draft notice of appeal. A number of subsequent affidavits were filed, upon which the applicant sought to rely on the leave application. Counsel for the respondent taking no objection, that material is now before this Court.

26 The next affidavit relied on chronologically, was that of 28 October 2007, signed by the applicant. To a large extent it contains irrelevant material or refers to things which are recorded in the transcript, however, at paragraph 9, Mr Dekkan stated:

“His Honour continued the court as ex parte and I was not told by Mr Johnson that the court may continue without me.”

A similar statement was made in an affidavit dated 17 February 2008 and filed in Court.

27 On 13 November 2007 Mr Dekkan filed two further affidavits, one of which is in the form of a defence verified by him, and accompanied by certain other documents and the second of which is an affidavit of his former solicitor, Mr Johnson. The “defence” constituted a response to the claim of moneys owing to Ms Picciau. Most of Mr Johnson’s affidavit related to affidavits filed in the District Court after 27 October 2006, which, though included in the bundle of material provided by the applicant to this Court are not of direct relevance to the present proceedings. Mr Johnson referred in his affidavit, albeit briefly, to events relating to the trial and stating that he was responsible for “the day to day carriage of the underlying District Court proceedings under the supervision of Mr Bruce Dennis, principal of Dennis & Co”. He stated:

“In the immediate period prior to the hearing our firm had virtually no opportunity to consol [sic] with the plaintiff due to his sickness and the fact that he was consistently in [and] out of hospital.”

28 Mr Johnson then referred to the unsuccessful application to vacate the hearing date and his withdrawal from the proceedings. He affirmed that he remained friends with the applicant “on a personal level and the like”. Nothing was said about any advice that might have been given as to the likely course of proceedings, after his withdrawal.

29 The affidavits filed in this Court on the day of the leave application were first, an affidavit of the applicant dated 17 February 2008, four pages of which bear the signature neither of the deponent nor the witness, and an affidavit of his son, Mr Danny Dekkan, dated 15 February 2008 describing his father’s appearance and ill health on 26 October 2006, when he accompanied him to the District Court hearing. He stated that it was he who had called the ambulance after noticing that his father “was on the brink of collapsing”.

30 Of more direct relevance to the grounds of appeal, were a number of documents which were annexed to the applicant’s affidavit. These included the Ambulance Service report in relation to the applicant and the notes from St Vincent’s Hospital relating to his admission on 26 October 2006. The ambulance report noted the chief complaint as “anxiety” and reported his statement that he had “felt anxious in court and started feeling headache and abdo [abdominal] pain”. The ambulance was apparently booked at 1.10pm and delivered the applicant to St Vincent’s Hospital shortly before 2.00pm. The nursing notes at the hospital confirm his admission at 2.05pm with headache and abdominal pain. He was then awaiting review by a medical officer. At 3.00pm he was apparently agitated and irritated and was asking for his “book”. He then signed himself out of St Vincent’s Hospital.

31 Finally, included with the very recent affidavit was a report from Dr Selwyn Smith dated 28 May 2007. Doctor Smith stated that the applicant had first been admitted to St John of God Hospital at Burwood in July 2001. Subsequent admissions included a period of approximately one month in November/December 2003, two weeks in May 2004, six weeks in August/September 2006 and then from 4 October 2006 until 12 December 2006. There was a further admission in March/April 2007. For most of the latter two periods it appears that he was at the Richmond campus of the hospital.

32 There are a number of points which may be made in respect of Dr Smith’s report of 28 May 2007. First, it was not before the trial judge, but was obtained later by the applicant’s then solicitors. Secondly, the general diagnostic report was quite unclear as to the period covered or the dates of the events being described. It stated that the applicant “displayed a Major Depressive Disorder” and that his “particular psychosocial stressors pertained to loss of livelihood, financial and home pressures and concerns over this [sic] ability to provide for his family”. In terms of financial stressors, the applicant had apparently reported that he was “in a significant degree of financial debt to the extent of approximately $1 million”. Doctor Smith further expressed the opinion that “in light of his Major Depressive Episode ... he was not fit to attend a hearing in regard to his matter in the District Court between 25 and 27 October 2006”.

33 A third difficulty in placing weight upon this report derives from it not being in the form of an affidavit and, because Dr Smith was not called, not being the subject of cross-examination. Fourthly, it is by no means clear how that report differed from the one provided to the trial judge, from which Dr Smith apparently departed significantly in his oral evidence, but which is not before this Court.

34 Amongst the material accompanying the affidavit was a lengthy handwritten document, in the form of a letter to Dr Smith, dated 27 October 2006, clearly prepared by the applicant and describing his feelings about the Court proceedings and his part in them. It is tolerably clear from this material that when he attended at Court on 26 October, Mr Dekkan formed the views that:

(1) his solicitor, Mr Johnson, was not adequately prepared to run the case;

(2) inadequate representation was placing him at a severe risk of an adverse judgment, and

(3) the stress engendered by (1) and (2) caused his physical distress, in the form of a headache and stomach pains.

He said that the stomach pains had continued while writing the letter.

Procedural unfairness

35 Both parties approached the matter on the basis that principles applicable to procedural fairness before administrative tribunals were also applicable in relation to the District Court. Thus, reliance was placed on comments of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342-344 and of Hill J in Opitz v Repatriation Commission (1991) 29 FCR 50 at [58]-[59]. The respondent contended that, consistently with these authorities, the applicant had been given a reasonable opportunity to defend the proceedings and had, either through his own fault or that of his solicitors, failed to avail himself of that opportunity. Accordingly, it was said that there was no breach of procedural fairness.

36 It is not possible to resolve such matters at a high level of generality. So much may be demonstrated by the different approaches of the High Court in Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841, involving an application to vacate the hearing dates for an appeal before the Full Court of the Supreme Court of Victoria on the day the matter was listed for hearing and in Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146 in which the Court set aside a refusal to permit the filing of an amended defence some six months before the date fixed for hearing. In Sali, the majority (Brennan, Deane and McHugh JJ) at p 843 approved statements in Maxwell v Keun [1928] 1 KB 645 at 650, 657, 658 that “although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party”. Their Honours also referred to the judgment of Atkin LJ in Maxwell to the effect that “an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action”. As the dissenting judgment of Toohey and Gaudron JJ noted, a similar approach had been adopted by Asprey JA in Carryer v Kelly (1969) 90 WN (Pt) 1 (NSW) 566 at 569 and by Kirby P in Sydney City Council v Ke-su Investments Pty Ltd (1985) 1 NSWLR 246.

37 In considering injustice to the other party, an important question will always be whether that injustice can be avoided by a favourable costs order.

38 These principles may be seen as a specific application of the general rule that an appellate court will only intervene in a discretionary judgment of a trial judge in the circumstances enunciated in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, namely where there has been some error such as acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect the outcome, mistaking the facts or failing to take into account some material consideration or, where the reason for the order is not clear, where the facts demonstrate that the outcome is unreasonable or plainly unjust.

39 The applicant did not approach the matter in this way in his oral submissions, nor was the appropriate test addressed in the written summary of argument. (No full written submissions, as on an appeal, were filed, despite the Registrar’s direction.)

40 It is clear from the judgment of 26 October 2006 on the application of Mr Johnson to withdraw that his Honour expressly considered whether the matter should proceed or should be adjourned: see [22] above. His Honour was fully conscious of the potential prejudice to the applicant in the event that the matter went ahead, knowing that he would be unrepresented and that the applicant had been taken to hospital in an ambulance.

41 So far as the background circumstances are concerned, his Honour appeared to share the applicant’s view that Mr Johnson was hopelessly unprepared and not in a position to provide competent representation. The reason for that appears to have been his belief that the adjournment application based on the applicant’s medical state would be granted. However, that cannot be a satisfactory explanation. If solicitors who are briefed to appear generally in proceedings act on such a basis, and can then successfully abort the hearing by withdrawing because they are ill-prepared, the administration of justice in a busy court could readily be manipulated by the party in whose interests it is to cause delay. As between the applicant and the respondent, the applicant must generally bear responsibility for the conduct of his solicitors. Were it otherwise, a trial judge would need to engage in the invidious task of apportioning blame between one party and his solicitors, in the course of a trial. That may need to be left to subsequent dispute resolution between them on a different occasion or in a different forum.

42 So far as the position of the applicant personally was concerned, the trial judge had formed the view on the previous day that whilst he was in hospital, he had not been shown to be unfit to attend court. That view must to some extent have been confirmed in his Honour’s mind by the fact that the applicant did attend Court on 26 October 2006. He had left the Court on one occasion shortly before lunch and, on his return, had confirmed that he was unwell and had expressly stated that he was depressed and anxious, because of the inadequate representation he was receiving. If that were the cause of his collapse at lunchtime (and no alternative explanation was proffered) then it was a result consequential on the apparent breach of duty by his solicitors. In relation to the respondent, that does not demonstrate that he did not have a reasonable opportunity to present his case.

43 The only consideration which gives rise to concern in these circumstances is the conversation set out at [20]-[21] above in which his solicitor advised the Court that the applicant was fully aware that the case might proceed to judgment in the absence of his solicitor and of him. That exchange occurred before the judgment dealing with the withdrawal application and the decision that the proceedings should go ahead. The evidence which the applicant gave in two affidavits, and on which he was cross-examined in this Court, included a denial that any such advice had been given. If accepted, that evidence might demonstrate that the trial judge had proceeded on a false basis as to a material fact in proceeding with the hearing.

44 However, there are difficulties in accepting that evidence as establishing that the advice was not given. Its acceptance would involve the almost inevitable inference that his solicitor had falsely given several unequivocal assurances to the Court, a conclusion which might well be characterised as professional misconduct. While the Court would not hesitate to draw such an inference on the basis of appropriate evidence, the present circumstances militates against such an inference. The inference is sought in circumstances where the applicant has tendered evidence from Mr Johnson that they remain on goods terms but has not sought to obtain from Mr Johnson any evidence in relation to the instructions and advice given on 26 October 2006.

45 The possibility that an advocate who is handed a note by his client, withdrawing his authority to continue to act, would not, when the opportunity arose, discuss the consequence of such a step with his client is at least unlikely. This was not a case where the lawyer collected his papers in a fit of petulance and walked out; rather he spoke with his client during the midday adjournment outside the Court: Tcpt, 26/10/06, p 22. He then returned to Court after lunch and sought leave to withdraw, providing the Court with a copy of the note and explaining his circumstances.

46 There is no doubt that Mr Johnson acted in conformity with his instructions in seeking to withdraw. Nor is it in doubt that the applicant maintained those instructions despite his own ability to obtain alternative representation or attend in person, should the hearing proceed. (The evidence does not suggest that he had at that time any intention of running his own case.) Nor does the applicant say he instructed Mr Johnson not to withdraw unless the judge agreed to adjourn the matter.

47 In any event, had his Honour been made aware that there was such a dispute, it could not possibly have been resolved in the course of the trial without aborting the hearing. The proper place for its resolution would be in proceedings between the applicant and his former solicitors, to the extent that such proceedings were open to him.

48 One possible answer may be, of course, that there was either a misunderstanding as to what advice was given or that the applicant, in a state of high anxiety, was told things which he simply did not comprehend or the significance of which he did not then appreciate. In any event, these matters are sequelae of the situation which had been brought about by the failure of the solicitor (on his own admission) to be prepared for the hearing and are therefore not matters which need to be resolved as between the applicant and the respondent.

Conclusions

49 The applicant has not established that the refusal to adjourn the proceedings when he withdrew Mr Johnson’s instructions was procedurally unfair in a relevant sense. There is no doubt that he suffered prejudice, but so, as his Honour recognised, would the respondent if the proceedings did not continue. Not only did his Honour consider whether the applicant would suffer prejudice, he accepted that he would. He placed that factor in the balance in considering what course to take. Prior to determining that course, his Honour had inquired of Mr Johnson if the applicant was aware of the possibility that the case might proceed without him or Mr Johnson, if Mr Johnson withdrew. He was assured that that was the case. On the material before his Honour, the applicant has failed to establish any error of a kind which would warrant the intervention of this Court.

50 The next question is whether the evidence presented in this Court justifies intervention. That must be on the basis that, contrary to what Mr Johnson told the trial judge, the applicant had not been informed that the proceedings might go ahead if Mr Johnson withdrew. For the reasons indicated above, the applicant’s evidence that he was not informed of that possibility does not lead to the conclusion that he was not given appropriate advice. Nor did he give evidence that he was not aware of that possibility in any event. That is not to say that his evidence in this Court was untruthful, but rather that there were a number of unexplored possibilities which, in the absence of evidence from Mr Johnson, leave the true facts unclear.

51 There is no doubt that the applicant was in an invidious position at the time of the trial. He was unwell and his solicitor was unprepared. However, it does not follow that the trial judge erred in refusing to adjourn the hearing. The failure of a lawyer to prepare for a hearing may provide the basis for a claim against the lawyer by his or her client, but, absent some particular justification, will not entitle a party to an adjournment to the prejudice of the opposing party. The belief on the part of a lawyer that his or her client was otherwise entitled to an adjournment, at least in the circumstances of this case, is insufficient. Were it otherwise, litigants would often be at risk of a forced adjournment because a manipulative adversary was deliberately unprepared.

52 The remaining question is whether the fact that the applicant was unwell should give rise to a different conclusion. There was no challenge in the notice of appeal to his Honour’s conclusion that, on the evidence before him, the applicant was fit to attend the trial. If the further report from Dr Smith were intended to cast doubt on that conclusion, for the reasons indicated, I am not satisfied that it is sufficient for the purpose. Although no objection was raised to its admissibility, the weight which it can be accorded is quite limited.

53 The second ground of appeal alleged a reasonable apprehension of bias on the part of the trial judge. The same particulars were relied upon in support of this ground. No separate argument was addressed to this ground either in the summary of argument or in the applicant’s submissions at the hearing. The mere fact of a refusal of an adjournment, in the circumstances set out above, does not demonstrate any sufficient basis for a reasonable apprehension of bias. The trial judge expressed himself in strong terms as to Mr Johnson’s conduct, but far from indicating prejudice against the applicant, the applicant appears to have accepted his criticisms as justified, he himself realising that Mr Johnson’s failure to prepare for the hearing had seriously prejudiced his defence. Because no submissions addressed Mr Johnson’s conduct, it is neither necessary nor appropriate for this Court to comment further in that regard. This ground of appeal has not been made out.

54 For these reasons, the applicant’s challenge to the refusal to adjourn the proceedings on 26 October 2006 must fail.

55 The issues raised by the applicant were fully ventilated in the course of the hearing and, although the challenge to the procedure adopted at trial has failed, significant issues were raised, which have warranted the careful consideration of this Court. Accordingly, I would grant leave to appeal, but dismiss the appeal with costs.

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LAST UPDATED:
3 March 2008