Austrack Infrastructure Development Pty Ltd v Sharvine Pty Ltd (No. 2)

[2011] VSC 685

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

S CI  2005 10032

AUSTRACK INFRASTRUCTURE DEVELOPMENT PTY LTD (ACN 065 271 141) AND ORS (according to the schedule attached)	Plaintiffs
v
SHARVINE PTY LTD (ACN 080 518 396)	First Defendant
- and -
TRANSPACIFIC CLEANAWAY PTY LTD (formerly known as Brambles Australia Limited) (ACN 000 164 938)	Second Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	In chambers
DATE OF JUDGMENT:	24 November 2011
CASE MAY BE CITED AS:	Austrack Infrastructure Development Pty Ltd and ors v Sharvine Pty Ltd and anor (No. 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 685

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PRACTICE AND PROCEDURE-Application for adjournment of the hearing of procedural applications on medical grounds- Nature of medical evidence required-Limited nature of instructions to solicitors required-Application refused

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Robert Taylor, director
For the Defendant	Mr C.P. Young	Thomsons Lawyers

HER HONOUR:

1. By orders made 7 November 2011, I adjourned three interlocutory summonses in these proceedings for further hearing on 16 December 2011.  That order was expressed to be subject to an order that permitted the director of the plaintiffs to file and serve an affidavit “as to proposed medical treatment overseas by reason of which he seeks further adjournment” by 4.00 pm on 14 November.  The defendants were permitted to file an affidavit and/or submissions in response.  The order provided that any such adjournment application would be considered in chambers.

1. Mr Taylor filed an affidavit on 14 November seeking adjournment for the indicated reasons.  The defendants filed submissions on 21 November opposing the grant of any adjournment. 

1. The summonses that have been adjourned are the defendants’ summons filed 18 March 2011 seeking dismissal of the proceedings, the plaintiffs’ summons filed 17 October 2011 seeking reinstatement of the proceedings and other orders (the proceedings are currently stayed), and the defendants’ summons filed 22 September 2009 seeking security for costs.  There is a long history to these applications which is set out in my reasons delivered 17 November 2011 for the orders made on 7 November 2011.  In short, the defendants’ summons filed 18 March 2011 seeking dismissal of the proceedings is part‑heard, argument by the defendants having been put on 28 September 2011.  The summons was adjourned to 7 November 2011, but on that date the entire time available was consumed by the plaintiffs’ application that Mr Taylor be granted leave to represent them.  I refused that application on 7 November.  The defendants’ summons for security for costs has not been heard, notwithstanding that it was filed more than two years ago.  The delay has been due to adjournments requested by the plaintiffs on the basis of  Mr Taylor’s ill health and other aspects of the plaintiffs’ conduct of the proceedings.  The plaintiffs’ summons filed 17 October 2011 seeking reinstatement of the proceedings was occasioned by the plaintiffs permitting their registration as companies to lapse.  It has not been heard to date. 

1. The issue currently before me is whether the hearing of these summonses should be further adjourned from 16 December 2011 to a date to be fixed in March 2012.  The defendants oppose the further adjournment. 

1. The adjournment is sought by Mr Taylor on the basis that he wishes to undertake overseas medical treatment for prostate cancer “in November-early December”.  He deposes that the treatment will require follow‑up treatment until February 2012. 

1. Accordingly, relevant issues include whether this treatment has indeed been scheduled, and, if so, on or before 16 December; whether such treatment will prevent Mr Taylor giving instructions; and whether his physical presence is required at the adjourned hearing on 16 December.  By my orders of 7 November 2011, I refused leave to the plaintiffs to be represented by Mr Taylor.  Accordingly, the issue is not whether he is able to attend to represent the plaintiffs on 16 December, but whether by reason of the proposed treatment he is unable to give instructions to solicitors to represent the plaintiffs on that day. 

1. The first observation I make in relation to Mr Taylor’s affidavit is that the only medical evidence exhibited by a registered medical practitioner is a certificate from Mr Taylor’s general practitioner dated 10 November 2011.  At the conclusion of the hearing on 7 November, when Mr Taylor raised the question of this treatment in the context of discussion of the adjourned date and produced an earlier version of the certificate, I observed that the certificate was in very general terms and, as it came from Mr Taylor’s general practitioner rather than the proposed treating physician, it may not be of much assistance. 

1. Notwithstanding these comments, there is no medical evidence from Mr Taylor’s proposed treating physicians or surgeons exhibited to his affidavit.  The certificate of his general practitioner recites a number of conditions from which it states Mr Taylor has suffered or for which he has been treated in the last four years, which is the period of time he has been a patient of that practice, including prostate cancer, but does not indicate the source of this information i.e. whether solely as reported by Mr Taylor himself, or whether supported by other information, such as reports from overseas medical practitioners or tests.

1. In relation to prostate cancer and the proposed overseas treatment, the certificate says only that the proposed treatment is “ideal” and not available in Australia.  The general practitioner does not say that there is no alternative treatment available in Australia or express any opinion as to the effect the proposed treatment, whether here or overseas, would have on Mr Taylor’s ability to give instructions.  Further, the certificate makes no specific comment as to the timing for the “ideal” treatment, merely saying that “ideally this treatment would be carried out sooner rather than later”.  This is an expression of considerable generality.  In particular, there is no comment as to why the treatment could not be undertaken after 16 December rather than before. 

1. The certificate also sets out a medical condition of Mr Taylor additional to those of which he has previously given evidence, being depression.  The certificate implies this condition may have caused some cognitive impairment.  The certificate asserts that Mr Taylor is now under treatment for that condition and “has already noticed some improvement”.  It does not give any opinion as to the effect of the improvement to date on Mr Taylor’s capacity to instruct solicitors or say that he cannot currently do so.  The certificate concludes: “no assessment should be made without at least a further six weeks of therapy”, but does not indicate what is intended to be assessed.

1. Mr Taylor himself in his affidavit purports to express medical opinions, without giving any indication as to the source of the information on which he relies for the opinion or the basis on which he may be qualified to express an opinion.  I assume, in the absence of evidence of medical qualifications, that he is not qualified to express medical opinion. 

1. Mr Taylor says his treatment is “urgent” and that he intends to undergo the procedure overseas “in November-early December” and will be unable to attend to preparation of these proceedings until February 2012.  He provides no corroboration by way, for example, of information from the hospital confirming any scheduled surgery or other treatment; he does not explain why the treatment cannot be undertaken after 16 December; he provides no information as to any steps taken in relation to the treatment (for example the booking of flights or accommodation); he states that he had planned to undertake the treatment previously in September-October and abandoned it due to his court attendance on 28 September, but does not explain why it cannot now be again rescheduled.

1. Mr Taylor’s affidavit also sets out that he has made some attempts to contact legal practitioners.  He says that he had meetings with three firms of solicitors in Melbourne on 8 and 9 October and that they all stated they needed to review the documentation and discuss further with him “in order to competently prepare responses to defendants’ applications and develop our applications, and competently instruct counsel to appear at the hearing currently set down for 16 December 2011.”  Mr Taylor says that this task would require him to inspect “some 200 archive boxes of documents” and undertake other preparation. 

1. Mr Taylor does not exhibit any corroborating information as to the requirements of firms of solicitors he has contacted (and he may legitimately not wish to do so having regard to solicitor/client privilege) but it would seem unlikely, had Mr Taylor correctly explained the current applications to these firms, that more would be required by them than inspection of Court documents and some limited instructions from him.  One would ordinarily expect Mr Taylor as the director of the plaintiffs to have a copy of the currently relevant Court documents easily to hand because they have been the subject of the recent Court attendances, on 28 September and 7 November 2011.  If he does not, copies may be obtained from the Court or, possibly, from the defendants.

1. Importantly, the current applications do not require an in depth understanding of the underlying facts in the proceedings.  What is required is an understanding of the pleadings, the extent to which the proceedings have progressed to date, recent Court orders, the current summons and the affidavits filed in respect of them.  I am not persuaded that this level of review could not have been undertaken from 8 or 9 October to date, so as to enable solicitors retained by the plaintiffs to file fresh evidence in relation to the part‑heard summonses and any proposed amended plaintiffs’ summons by the date stipulated in the orders of 7 November, being 9 December 2011. 

1. Mr Taylor’s affidavit also deposes that it is not possible for him to appear as a witness on 16 December, having regard to his proposed medical treatment.  This is a further illustration of a lack of appreciation of the purpose of the hearing on 16 December.  Oral evidence is not usually given in interlocutory applications such as the instant applications.  Interlocutory applications usually proceed on the basis of evidence by affidavit and submissions.

1. Mr Taylor’s request for further adjournment must be weighed against the factors that militate against further adjournment of the hearing of these summonses.  As set out in more detail in my earlier reasons delivered 17 November, substantial delay has already been occasioned in these proceedings by the plaintiffs and Mr Taylor.  Further, the plaintiffs and Mr Taylor have been aware since at least 10 November 2010 when words to this effect were recorded in the Court order of that date that the defendants would not consent to further adjournment of the proceedings on the basis of his ill‑health.  While there is no evidence before me as to any specific prejudice that would be occasioned to the defendants by the requested further adjournment, the past history of delay at the hands of the plaintiffs means that there is a high threshold that must be satisfied to justify further adjournment at their request.  Every adjournment adds to the delay before trial, if the proceedings continue, and so difficulty for all parties in witnesses recalling events that occurred now between 11 and 14 years ago.  Experience is that costs also increase the longer the delay.

1. Given the generality of the assertions of Mr Taylor, the entire lack of corroborating information from his proposed treating doctors, and the absence of explanation why the treatment could not be undertaken after 16 December, I do not consider that his request to adjourn for proposed overseas medical treatment meets this threshold.  He does not seek the adjournment because of a current inability to instruct solicitors due to depression.  The retention of solicitors for the plaintiffs is required by my orders of 7 November.  Were he to do so, substantially more specific medical evidence would be required, and adjournment for those reasons may have implications for his capacity to give instructions as director of the plaintiffs for these proceedings.

1. Assuming for the purpose of this application that Mr Taylor has suffered from the medical conditions set out in his general practitioner’s certificate and suffers currently from prostate cancer and depression, that has been very unfortunate for him and for these proceedings.  However, for the reasons set out above, I do not consider that on the evidence before me there is sufficient justification for further adjournment of the hearing of the current summonses. 

1. The application for adjournment is refused.