Di Liristi v Matautia Developments Pty Ltd (No 3)
[2021] NSWSC 660
•09 March 2021
Supreme Court
New South Wales
Medium Neutral Citation: Di Liristi v Matautia Developments Pty Ltd (No 3) [2021] NSWSC 660 Hearing dates: 09 March 2021 Date of orders: 09 March 2021 Decision date: 09 March 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: The hearing will be adjourned until 12pm.
Catchwords: CIVIL PROCEDURE – Hearings – Adjournment – Short adjournment ordered to allow self-represented plaintiff to obtain legal advice
Category: Procedural rulings Parties: Antonio Di Liristi (Plaintiff)
Matautia Developments Pty Ltd (First Defendant)
Michael Bernard Fowler (Second Defendant)
Brian Garnet Wheaton (Fourth Defendant)Representation: Counsel:
Solicitors:
A Avery-Williams (First and Fourth Defendants)
Plaintiff (Self Represented)
Centurion Lawyers (First and Fourth Defendants)
File Number(s): 2020/71955 Publication restriction: None
REVISED EX TEMPORE Judgment
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At 10.00am on day 2 of the hearing, the plaintiff, who is representing himself, made what I understand to be an application for an adjournment so that he may seek legal advice about what happened in the hearing yesterday and go to the Judicial Commission, I assume, to report some form of misconduct on my part.
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I also apprehend that the plaintiff is suggesting that I should disqualify myself because of my conduct. However, when I asked him specifically whether he was making that application, he said he was not.
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In the circumstances, I will deal with what I understand to be an application that the matter be adjourned so that he may seek legal advice and go to the Judicial Commission. The plaintiff has identified four aspects of the way the case was conducted yesterday which are of concern to him.
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Firstly, he says that he has spoken to a barrister, Mr Norrie, who has said that he has never heard of a party to the proceedings being asked to leave the witness box and, indeed, leave the Court whilst an issue was dealt with in his absence. Apparently, he has spoken to the barrister and told him that he was asked to leave the Court while certain things happened in his absence. That is the first point.
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The second point is that I ruled out large portions of his evidence on the basis that it was inadmissible and, as I understand his submission, this means that much of his evidence will not be before the Court and, as he says, the result is already in and I have already made up my mind. He contrasts my rejection of his evidence or parts of his evidence with the defendants being allowed to cross-examine on certain aspects of his behaviour in the past.
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The third aspect relates to the cross-examination about what happened with the Department of Fair Trading many years ago. He says that this in some way demonstrates my uneven approach to him.
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The fourth aspect is that when admitting evidence about which I had a doubt (in terms of its admissibility), I made a comment about the matter going elsewhere (meaning to the Court of Appeal). I suggested that I would not want the plaintiff to be shut out from running some argument that he seeks to maintain, albeit I did not see the merit of it.
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I will deal with each of those points.
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On the first point, the position is that during cross-examination the plaintiff objected to a question from the witness box. Ms Avery-Williams suggested it would be difficult to respond to my question to her as to relevance whilst the plaintiff was present. Consistent with what normally happens when the witness is in the witness box and the cross‑examiner seeks to retain some forensic advantage, I asked Mr Di Liristi to leave the Court in these terms:
“Q. Yes, just go outside for a minute, please. I’m dealing with your objection but you’re in cross-examination.
IN THE ABSENCE OF THE WITNESS
HIS HONOUR: Actually, I’m not sure whether that should be right because he’s a party to the proceedings, so it’s difficult.
AVERY-WILLIAMS: Yes. So--
HIS HONOUR: Yes. Bring him back in. I don’t think - you’ll just have to answer my question as best you can.”
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That was directed at Ms Avery-Williams. The next line:
“IN THE PRESENCE OF THE WITNESS
HIS HONOUR
Q. Sorry, Mr Di Liristi. It’s difficult when you’re representing yourself. Normally, a witness would be excused--
A. Yeah.
Q. --but you’re not just a witness, you’re a party. So, I won’t be doing that. So, that’s my error. Nothing happened since you left.
HIS HONOUR: So, what’s the basis--
AVERY-WILLIAMS: Your Honour, I’ll withdraw the question.”
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So, it is plain from the transcript, that nothing actually occurred whilst Mr Di Liristi was outside the Court and, indeed, I made it plain to the plaintiff on his return that my initial reaction was wrong and nothing occurred. There is no substance to the first complaint.
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The second complaint relates to the exclusion of evidence and the suggestion that this is a reflection of me apparently having already made up my mind. In my view, there is no substance to that submission. I went through the usual process of ruling out evidence which was inadmissible. The plaintiff may not like those rulings but there is nothing that I said yesterday which indicates that I have already made up my mind about the outcome of the case.
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The third point relates to my permitting questioning of him in terms of what happened in the Fair Trading Tribunal. In fact, I did not allow the question and, on further exchange with Ms Avery‑Williams, she withdrew the question. There is no substance to the third allegation or complaint.
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The fourth complaint relates to my comment about this matter going elsewhere. That is a comment that is regularly made by trial judges during the course of a hearing to the effect that it will be important that, in the event that certain things happen, there is a record of everything and, indeed, that the plaintiff is permitted to pursue whatever case he wants, even though the trial judge really does not understand the case at the time. That is a classic example of a comment I made.
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I accept that it was an unnecessary comment. It was a comment that was better off not made but it certainly does not indicate any view on my part as to the likely outcome of the matter. As I said, these sorts of comments are made by trial judges almost every week in every case and the plaintiff has probably pointed out why perhaps they should not be made. If cases must be vacated because of such a comment, frankly, very few cases would go on. In my view, there is no substance to the complaints, if I put it that way, by Mr Di Liristi.
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Be that as it may, I am concerned that he says he now needs to seek legal advice, albeit I understand that he has attempted to obtain legal advice previously. I wish to afford him a fair opportunity to do that, but this case is listed for five days. It will be finishing this week. I am not adjourning the matter to some other date.
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The defendants do not oppose the matter being adjourned for a short period so that Mr Di Liristi can seek legal advice. The defendants have offered to provide a copy of the transcript to him so that whoever he sees can look at the transcript and give proper advice to him. I think the best course in those circumstances is to allow Mr Di Liristi the morning to obtain legal advice if he can.
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In those circumstances, I will adjourn the matter at this stage until 12.00pm.
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Decision last updated: 11 June 2021
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