Anton & Malitsa (No. 3)

[2009] FamCA 243

FAMILY COURT OF AUSTRALIA

ANTON & MALITSA (NO. 3) [2009] FamCA 243

FAMILY LAW – PRACTICE AND PROCEDURE –Adjournment based on medical grounds – Adjournment refused

Family Law Act 1975 (Cth)

Queensland v J L Holdings Pty Ltd [1997] HCA 1
Sali v SPC Ltd and Another [1993] HCA 47

APPLICANT: MR ANTON

RESPONDENT: MS MALITSA

FILE NUMBER: DGF 928 of 2005

DATE DELIVERED: 31 March 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 31 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR STRUM

SOLICITOR FOR THE APPLICANT: TAUSSIG CHERRIE & ASSOCIATES

SOLICITOR FOR THE RESPONDENT: MR LENNON, LENNON MAZZEO LAWYERS

IT IS NOTED that publication of this judgment under the pseudonym Anton & Malitsa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 928  of 2005

MR ANTON

Applicant

And

MS MALITSA

Respondent

REASONS FOR JUDGMENT

1. On the second day of this final hearing, I heard an oral application put by the solicitor for the wife to adjourn the proceedings on the ground of the wife’s incapacity to proceed because of her health.

2. I refused the application and because the wife’s solicitor had to leave for a personal commitment, I said I would provide reasons later. These are those reasons.

3. On the first day of this final hearing, I refused the wife’s application, then put by her counsel, to adjourn the proceedings. Upon the conclusion of that determination, the wife terminated the services of her counsel but not her lawyers. The wife’s solicitor then attended and sought an adjournment which in part covered the material that I had earlier ruled upon. A new issue was raised about the wife wanting to obtain some evidence that might go to the issue of what is known as “wastage” but, as a basis for an adjournment, that issue was not then argued nor in my view, could it be as I had made specific orders about it in 2008.

4. I have given written reasons for the refusal of the first application and I will not repeat them other than to obliquely refer to them.

5. On the morning of the second day, the wife’s solicitor attended but the wife did not. He said that she was ill. He said he had had a telephone discussion with the wife’s doctor and consequently wanted the proceedings adjourned.

6. I indicated that I would permit an oral application to be made but it had to be supported by evidence. Over opposition of counsel for the husband, I permitted the wife’s medical practitioner to be called to give evidence by telephone and to be cross-examined. I also made an order for the production of the wife’s medical file.

7. The background to the difficulty in starting this case is in part the fact that it was listed for hearing in 2006 and did not then begin. In 2008, the matter was listed before me for management and I made orders after hearing from all parties. There was no suggestion then that the matter was not to proceed. The wife has not complied with orders for trial made by me during a long lead-in period for final hearing. There has also been considerable court involvement with a registrar managing the case and that registrar had power to extend times for filing material so that the final hearing could proceed.

8. In my view, the unusual feature of this case is that the wife has made no effort to ready herself for trial and there is a strong suggestion that this second application is a delaying tactic. It was put by counsel for the husband that the wife began seeking an adjournment from the registrar managing the file some weeks ago and that approach was rejected. That in turn necessitated the wife to make the written application to which I have earlier referred and which was dealt with by me on the first day of the hearing when she was represented by counsel.

9. If this application amounts to a delaying tactic or has a strong appearance of that, it is incumbent upon a court to refuse to adjourn it if for no other reason than to allow it would create an injustice for the other party. That is particularly relevant in this case because of the long delay that the parties have endured since the matter was apparently ready to proceed in 2006.

10. There is no rigid rule that can be applied in an adjournment application. The decision must be approached on the basis that it is a discretionary exercise. That discretion must be exercised judicially. Some guidance has been provided by authorities.

11. In Sali v SPC Ltd and Another [1993] HCA 47, the majority in the High Court (Brennan, Deane, McHugh JJ) made the observation that:

    It is true that it is only in extraordinary circumstances that the interests of justice will be served by a refusal of an adjournment in a case such as the present where the practical effect of the refusal is to terminate the proceedings.

12. Sali was a case in which an adjournment was sought to enable certain counsel to be engaged. The application was refused and it was ordered that the matter proceed the following day. The Victorian Court of Appeal felt that the application was a delaying tactic. The majority in the High Court said that the appellant failed to show any error on the part of the Court of Appeal.

13. Sali was considered by the High Court again in Queensland v J L Holdings Pty Ltd [1997] HCA 1. Kirby J made the following observation (citations omitted):

    But it was Sali v SPC Limited, another adjournment case, that saw this Court endorse the need to consider the competing claims of other litigants and the public:

    "In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties ... What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources."

    The majority in Sali cautioned that the older principles, addressed exclusively to justice to the parties, were "formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become". The minority similarly acknowledged that the "contemporary approach to court administration has introduced another element into the equation or ... put another consideration onto the scales". However, the minority affirmed the obligation of the appellate court in discharging its function to consider, even with these added factors, whether the discretion had miscarried. Just as Lord Griffiths had done in Ketteman, many Australian decisions continued to emphasise the need to avoid inflexibility. Case management, and procedural directions, were means to the attainment of justice. They were not ends in themselves. Nor were they to be applied rigidly so as to forbid pleading amendments, adjournments or other indulgences where these were necessary for the attainment of justice.

14. I propose therefore to focus on questions such as whether this is simply a delaying tactic as well as the attainment of justice for both parties.

15. I do not accept that the wife is incapacitated to the extent that she cannot participate in the hearing. The evidence to which I shall turn is that it would be “preferable” if she did not but her health situation was not an impediment to the matter proceeding. The problem here is compounded by the fact that the wife made the first application for an adjournment on the basis that she wanted to do things such as further discovery and challenge valuers but more importantly, she had not filed all of the relevant material required to proceed. No explanation was given as to why there had been no required material prepared regardless of her requirements for further discovery and desires to challenge the valuers, nor realistically could there have been.

16. It is also important to note that the husband has not, at this stage, sought to proceed on an undefended basis notwithstanding the lack of material of the wife. The undefended hearing has been a subject of discussion but the husband has made clear that he wishes the matter to proceed and to that end, has not pressed a variety of issues that might be argued to exclude the participation of the wife.

17. Thus, the question is whether the wife is unable to proceed because of health considerations.

18. The wife’s solicitor called the wife’s doctor to give evidence and that was the only evidence relied upon.

19. Dr L has been the wife’s general medical practitioner since 1978 so he knows her well. He holds the usual medical qualifications and a Diploma of Child Health from London. He has been in practice for 44 years. He conceded that he did not have any formal qualifications in the field of psychiatry or counselling but relied on his experience of many years in dealing with patients to work out what was affecting them.

20. The wife attended Dr L at 5.10 pm on the first night of the final hearing. This was the day in which the wife had lost the adjournment application and terminated her counsel’s engagement. Dr L said the wife was very emotional, upset and crying. He tried to counsel her by listening to her problems. Having been told that she had to attend court, Dr L formed the view that she was not in the right state of mind for that. By that he meant that she would find it difficult to collect her mind for that purpose. He said the wife had been upset over stresses over previous months, couldn’t cope, was very weepy and crying and could not bring herself to do things. His view was she was quite depressed. Because of that diagnosis, Dr L suggested that the wife see a psychiatrist. Importantly for my purposes, he did not refer her specifically to a psychiatrist but gave her some names of practitioners in her area. He thought that before making any definite diagnosis, he would like to have an “expert” opinion. He then prescribed her an anti-depressant medication and said that it would need time to begin to have effect. He was not sure how long the wife’s assessed state would continue but thought “a week or two” would tell. He said he had treated her in the past for anxiety and depression. He thought that her situation had been aggravated by the death of her parents but conceded that had been some years before. That did not mean that she was not grieving or unaffected.

21. When questioned about the wife’s depression, Dr L agreed the wife was not depressed to the point of hospitalisation nor to warrant a referral to an external counsellor because he thought his own skills would suffice. He felt that this depression was reactive rather than psychotic.

22. As for the hearing itself, Dr L said he could not recall whether he had been told of the precise hearing date.

23. When Dr L’s records were discussed in cross-examination with him, he confirmed that the wife had not attended upon the clinic between April 2008 and January 2009. The April attendance was related to a variety of issues and certainly not apprehension or anxiety about the court proceedings. In January 2009, there was no mention of the impending court hearing. That has some significance having regard to the hearing that I conducted in November. Equally puzzling is the fact that when the matter was before me in February 2009, I would have thought that the anxiety, stress and depression problems would have surfaced but obviously did not such as to justify the wife going to see Dr L.

24. In Dr L’s consultation in the evening of March 30, 2009, he said he could not recall the wife mentioning the court case. He said she could have but he did not recall. He thought she mentioned something about going to court the following day but he said the wife did not say she did not want to go. That has some significance because this consultation was less than 24 hours old and I would have thought that if it was the stress of the proceedings that had caused the depression or distress, the wife might have mentioned it or more importantly, Dr L would have looked for something other than what he had seen in January 2009 and April of 2008 which could have explained the distress. 

25. On the morning of 31 March 2009, according to Dr L, the wife telephoned him at about 9 a.m. or 9.10 a.m. and requested him to speak to her solicitor which he dutifully did. He said the wife told him that she was not well enough and was too upset to go to court. Whilst this was apparently not the same as what the wife had said the previous evening, Dr L thought it still consistent with what he had found the previous evening. He said she was not crying; she was composed.

26. Curiously, when asked by counsel for the husband whether he thought the wife was “compes”, Dr L replied that she just couldn’t cope with the case. He thought she needed “a bit” of counselling and to see a psychiatrist.

27. When Dr L rang the wife’s solicitor, he said he told Mr Lennon that the wife was “a bit” depressed and could not attend court.

28. Finally, Dr L was asked what would happen if the wife was required to attend court that day or the next. He said she would not be able to because she would be “weepy”. It was specifically put to him that it was “preferable” that she not attend but that there was no impediment and he agreed.

29. I accept that Dr L has considerable experience and knows the wife well. Whilst I accept that he thought it preferable for the wife not to attend because she would be “weepy” by which I understood him to mean distressed, what she needed was a “bit” of counselling and a psychiatric examination to contemplate all of the things that had been happening in the wife’s life as recorded by him in his consultations in April 2008 and January 2009. None of those issues was specifically referable to these proceedings or the stresses that I accept all parties to such a case have to face. In addition, Dr L was able to tell me that he had prescribed anti-depressant medication on a number of occasions over recent years but none between April 2008 and January 2009. In January 2009, he did not prescribe a repeat of the anti-depressant medication but saw the wife in two consultations. In the first of those, he ordered blood tests and some days later, saw her a second time to review the tests. That review did not give rise to the prescription of any medication for anxiety or depression.

30. Mr Lennon submitted that the evidence was strong and the wife was entitled to an adjournment. I reject the submission about the strength of the evidence; it does no more than say that the wife was depressed and needed counselling along with an assessment from a psychiatrist to see whether she needed something more. Importantly, the evidence was not strong about the wife not being able to attend court until the telephone call from the wife to Dr L on the 31 March.

31. Mr Lennon said that it was a tenet of natural justice that the wife be able to participate properly and that costs could ameliorate the problems for the husband. Those matters too have to be seen in the context of what the authorities say and the impact of a further adjournment on the husband. In this case, the wife could not satisfy me that she is being denied natural justice in circumstances where I am not satisfied that she cannot participate.

32. Mr Strum submitted that despite the history of what he described as “mild depression”, Dr L had never been previously concerned to refer the wife to a psychiatrist. He focused on the distinction between “preferable” and some “impediment” in respect of the wife’s capacity to attend court. I agree that Dr L did not say there was anything to prevent the wife attending and most importantly, no suggestion of any serious problems of a health nature if she did. In addition, Dr L’s explanation that the wife could not collect her mind or her thoughts is not something that would preclude the wife from fully participating. If I found that there was evidence of confusion or incapacity during the hearing, I would stop the matter then proceeding. I am not satisfied that the evidence suggests that will happen.

33. Mr Strum submitted that this was a game being played by the wife and a cynical attempt by an unprepared litigant. I would not make that finding at this stage because I have not heard from the wife herself.

34. I have said above that there was a strong suggestion of a delaying tactic by the wife because of the timing of this second adjournment application. I make that observation again considering the evidence of Dr L which indicated that previous problems of the wife had been solved by some counselling and medication but nothing of recent times. During the recent months, I would have expected the anxiety of the wife to be rising. It is to be remembered that in the weeks before this hearing, the wife swore a complex affidavit about her complaints concerning the state of the evidence and disclosure. No mention was made of her personal incapacity to proceed. No similar concern was raised by Ms Colla as the wife’s counsel and that has some significance because not only did counsel appear with and for the wife but she informed me that she had had a conference some days before and read all of the material she had been provided. I can also presume that it was not an issue for the wife’s solicitor because he sought to issue a number of subpoenae on her instructions only days before the final hearing was due to start.

35. On the evidence therefore, particularly with Dr L being apparently willing to be her counsellor, I can see no basis to find that the wife is incapable of fully participating.

I certify that the preceding Thirty Five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 April 2009