Australian Securities and Investments Commission v Hobbs

[2013] NSWCA 267

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Australian Securities and Investments Commission v Hobbs [2013] NSWCA 267

Hearing dates:

5 August 2013

Decision date:

05 August 2013

Before:

Barrett JA

Decision:

1. Each notice of motion is stood over to the Registrar's list on Monday 2 September 2013.

2. I direct that any further evidence to be relied on by Mr Hobbs be filed and served by 28 August. Any evidence in response on the part of ASIC may be filed and served before the Registrar on 2 September 2013.

3. Any evidence in response on the part of ASIC may be filed and served before the Registrar on 2 September 2013.

4. The costs of today are reserved.

5. Direct that the appeal be removed from the call over on 14 August 2013 and the question of its further call over be placed before the Registrar on 2 September 2013.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - appeal initiated out of time - relatively short delay only - but questions abut capacity of appellant to proceed and whether he will have legal representation - need for appellant to address these issues - motions for dismissal of appeal and for extension of time adjourned

Legislation Cited:

Uniform Civil Procedure Rules 2005, r 51.41

Category:

Interlocutory applications

Parties:

Australian Securities and Investments Commission - Applicant/Respondent
David John Hobbs - Respondent/Applicant

Representation:

Counsel:
J R Clarke - Applicant/Respondent
D Collard - Lay Representative for Respondent/Applicant
Solicitors:
G Hayden - Solicitor for Australian Securities and Investments Commission - Applicant/Respondent
Respondent - self-represented Respondent/Applicant

File Number(s):

2013/85772

 Decision under appeal 

Citation:

[2013] NSWSC 106

Date of Decision:

2013-02-21 00:00:00

Before:

Ward J

File Number(s):

2007/258119

Judgment

1. BARRETT JA: There are two motions before the Court. The earlier in point of time is that of ASIC. It was filed on 18 June 2013 and seeks an order under r 51.41 of the Uniform Civil Procedure Rules 2005 that Mr Hobbs' appeal be dismissed as incompetent.

1. The other motion is that of Mr Hobbs. It was filed on 12 July 2013 and seeks an extension of time for the initiation of his appeal.

1. The matter was before McColl JA on 1 July 2013. At that stage, Mr Hobbs had not filed his motion and her Honour, in effect, gave him an opportunity to do so, noting that, on one version of events (which it has been shown this morning is the correct version), the filing of Mr Hobbs' appeal was only seven or eight days late - disregarding the matter of service on the footing that ASIC is, in any event, fully aware of the content of all the documents.

1. The approach that McColl JA took was that Mr Hobbs should have an opportunity to put his house in order. He has taken some steps in that direction. The real question now is whether those steps are sufficient and what, in the light of them, should be done in respect of the two motions.

1. Additional evidence has been placed before the Court today. An affidavit of Mr Hobbs of 23 July 2013 refers to his medical condition. Mr Hobbs lives in New Zealand. He is a long-time sufferer of multiple sclerosis. He refers to episodes where he loses consciousness without any warning. This can happen anywhere from one to three times a day. He says that that problem alone would stop any person from being able to travel internationally. The condition also causes difficulty with speech. He has trouble finding the correct words quickly and, therefore, cannot say what he wants to say in the way that unaffected people do. He says that his thought process is not clear and he often forgets what he was going to say part way through a sentence.

1. Mr Hobbs' affidavit has annexed to it very brief reports by three doctors in New Zealand. Dr Cliffe, in a report of 22 July 2013, expresses a belief that Mr Hobbs is not presently fit to take part in any legal process that requires reasonable cognitive skills, or requires him to deliver his opinion in a coherent articulate manner.

1. Dr De Villiers, in a report of 28 June 2013, refers to symptoms of immediate and short term memory loss, difficulty articulating thoughts and poor word finding, making Mr Hobbs unfit to participate in a telephonic court appearance.

1. Dr Ewer refers in a report of 29 June 2013 to marked impairment of cognitive abilities and memory, in addition to several syncopal episodes, headaches, and increased upper body pain for the last two to three weeks at that point. The opinion is expressed that Mr Hobbs is not presently fit to take part in any legal process that requires reasonable cognitive skills.

1. In an affidavit of 2 August 2013, Mr Hobbs deals with the matter of legal representation. He says:

"The barristers that will be acting for me are Mr Tony Bamford, who belongs to the New South Wales Bar, and Mr Mark Southwick, barrister, of Sydney."

1. An affidavit of Mr Docherty, an ASIC officer, of 5 July 2013 reports enquiries made by the deponent of Mr Bamford and Mr Southwick. Mr Bamford is a lawyer practising in New Zealand who informed Mr Docherty that he is admitted as a solicitor and barrister in New South Wales but does not have a current practising certificate and has not been given any instructions to appear for Mr Hobbs. Mr Bamford said to Mr Docherty that he had received emails from Mr Hobbs requesting representation, but had told Mr Hobbs that he could not appear for him.

1. Mr Docherty next refers to an enquiry he made of Mr Southwick of counsel. Mr Southwick said that he is not formally briefed and that Mr Docherty could tell the Court that Mr Southwick was not formally briefed.

1. This material highlights the two significant difficulties in the management of this matter. There is a very distinct likelihood that Mr Hobbs is not, and never will be, fit to pursue the appeal he wishes to pursue. The evidence he has put before the Court calls seriously into question his ability to do so. ASIC is justified, in those circumstances, in working on a hypothesis that the proposed appeal may never proceed and that such preparations as it may be minded to make will be in vain; and that there is therefore good reason for it to defer making any such preparations. The true state of Mr Hobbs' health and capability needs to be assessed.

1. There is then the question of legal representation. Mr Hobbs accepts that he needs legal representation and could not proceed without it. It appears that such attempts as he has made to obtain legal assistance through Mr Bamford and Mr Southwick have not been successful, at least at this stage. Whether there is a possibility that either or both of them might be able to provide some assistance in the future is not known.

1. It is necessary for these matters to be brought to a head. While, in the normal course, a delay of seven or eight days in the initiation of an appeal would not weigh very greatly when it came to the question of whether the appeal should be dismissed out of hand, the other matters are of much greater relevance and significance in relation to ASIC's application for dismissal of the appeal. In the light of the evidence he has himself put before the court, it is really for Mr Hobbs to show how he will progress an appeal, including by the instructing of lawyers, in an efficient way, and how his state of health will allow that to happen.

1. I propose to give Mr Hobbs a period of four weeks in which to deal with the matters that require his attention. Each notice of motion is stood over to the Registrar's list on Monday 2 September 2013.

1. I direct that any further evidence to be relied on by Mr Hobbs be filed and served by 28 August. Any evidence in response on the part of ASIC may be filed and served before the Registrar on 2 September 2013.

[Submissions on costs]

1. The costs of today are reserved.

[Further submissions]

1. I direct that the appeal be removed from the callover on 14 August, and the question of its further call over be placed before the Registrar on 2 September 2013.

1. I will note that, if Mr Hobbs seeks to rely on further medical evidence, ASIC may wish to cross-examine the medical witnesses and in that regard Mr Hobbs should take steps to ensure that any such witnesses are available for cross-examination by video link or telephone link on 2 September 2013.

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Decision last updated: 15 August 2013