Filby v Neeson

[2016] NSWSC 193

Supreme Court

New South Wales

Medium Neutral Citation:	Filby v Neeson & Anor [2016] NSWSC 193
Hearing dates:	3 March 2016
Date of orders:	03 March 2016
Decision date:	03 March 2016
Jurisdiction:	Common Law
Before:	Beech-Jones J
Decision:	Application for an adjournment refused.
Catchwords:	LOCAL COURT APPEAL – application for adjournment – no question of principle.
Category:	Procedural and other rulings
Parties:	Mark Andrew Filby – Plaintiff Daniel Cormac Bernard Neeson and Kieran Corey Michael Neeson – Defendants
Representation:	Counsel: M.K. Rollinson (until 11.55am) – Plaintiff In person (from 11.55am) – Plaintiff A. Kaylinger – Defendants   Solicitors: Mark Filby – Plaintiff Bay Legal – Defendants
File Number(s):	2015/229608

Judgment (revised from ex tempore)

1. Listed today is an appeal from a Local Court judgment entered against the plaintiff, Mark Andrew Filby, in July 2015. Mr Filby's right of appeal is restricted to an appeal on a question of law. He also has a right to seek leave to appeal on a question of mixed law and fact. The sole ground raised in support of his appeal is that there was a breach of procedural fairness by the Presiding Magistrate in refusing to adjourn the proceedings to take evidence from two of his witnesses who did not attend the hearing in the Local Court.

2. This appeal was initially listed for hearing in November 2015 but was adjourned on Mr Filby's application. Today, some time after submissions on the appeal commenced, an application for a further adjournment was made. That application was partly interrupted while the parties had some discussions in an effort to resolve the matter, which were unsuccessful.

3. Two bases for the adjournment were put forward. As a matter of history it is appropriate to record both, although by the end only the one based on medical grounds was pressed, at least with any vigour.

4. The first concerned a suggestion from the Bar Table that an adjournment was necessary to obtain evidence to explore a suspicion that a media outlet had placed pressure on the witnesses, which led to their non-attendance at the Local Court. This proved to be something of a red herring. The Court pressed Counsel for Mr Filby for any evidence to support even the suspicion that that is what occurred, leaving aside the question as to what the relevance of that factual allegation is to an appeal on a question of law. Ultimately, one of the witnesses gave evidence on the application, namely Mr Jensen. Mr Jensen disclaimed any suggestion that pressure had been brought to bear on him by any media outlet not to attend the Local Court. Instead, he stated that on the morning of the hearing he was feeling ill, because he was suffering from the effects of medication for treatment for cancer. He said he was contacted by Mr Filby and told not to attend. He said that part of the reason was Mr Filby's concern for Mr Jensen's well-being as there were apparently television cameras outside the court.

5. The other witness who was the subject of the adjournment application in the Local Court was Mr Barnes. There was no material put in support of the adjournment application in this Court concerning the position of Mr Barnes.

6. This basis for seeking an adjournment has no weight whatsoever. The only material that could possibly support it has always been in the possession of Mr Filby, namely that it was his concern about media presence outside the court in July 2015 that led to his advising Mr Jensen not to attend. He has already addressed that in an affidavit sworn in support of the appeal.

7. As the matter developed this morning a further basis for seeking adjournment was put forward, namely Mr Filby's mental state and personal well-being. His Counsel submitted from the Bar Table that Mr Filby was in a poor mental state. It was said that he had previously been admitted to a mental clinic, that his medication had run out and he was suffering from a chronic lack of sleep. Counsel submitted that Mr Filby’s straitened financial circumstances as well as his extremely heightened level of anxiety about these proceedings and their potential aftermath, affected Mr Filby’s ability to provide Counsel with instructions.

8. The Court pressed Counsel as to the subject matter that he needed instructions upon. As I have already said, the nature of this appeal is very much restricted. When pressed, Counsel stated that Mr Filby's instructions were necessary if there were to be any further attempts made to resolve the matter. So much can be accepted, but in the face of the opposition of the defendants to this appeal to any adjournment, that is certainly no basis for the matter to be adjourned at this stage. There has been a very long period of time available to the parties to allow them to resolve the matter.

9. As I have said, this is the second application to adjourn this appeal. The nature of Local Court appeals is such that they should be dealt with as expeditiously and cost-effectively as possible. After all, they are an appeal from the Local Court which is confined in its monetary jurisdiction and which strives to administer justice in civil proceedings with a minimal level of cost to the parties.

10. Further, the long experience of the courts is that all parties to litigation experience stress and anxiety at least to some degree or other, and that stress and anxiety simply does not go away by adjourning the matter. This is Mr Filby's appeal and he must prosecute it with dispatch. The adjournment application is refused.

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Decision last updated: 11 March 2016