Finikiotis & Anor v Sandhurst Trustees Ltd

[2003] HCATrans 317

[2003] HCATrans 317

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A1 of 2001

B e t w e e n -

EFSTATHIOS FINIKIOTIS
CHRISSAFINA ZERVOS

Applicants

and

SANDHURST TRUSTEES LTD

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 15 AUGUST 2003, AT 11.04 AM

Copyright in the High Court of Australia

MR D.G.W. HOWARD:   If the Court pleases, I appear with my learned friend, MR J.A. NEATE, for the respondent.  (instructed by Lynch & Meyer Lawyers)

KIRBY J:   Yes, Mr Howard.  I had a note here that you were not making oral argument, is that correct?

MR HOWARD:   That was the original intention, if your Honour pleases.

KIRBY J:   Do we know if Mr Finikiotis is present?

MR HOWARD:   He was not here so far as we could ascertain yesterday afternoon.  We have not seen him this morning, but it may be that he is outside the Court, so I suppose he should be called.

KIRBY J:   Perhaps he should be called outside the Court.  Call Efstathios Finikiotis and Chrissafina Zervos, please.

COURT OFFICER:   No response, your Honour.

KIRBY J:   Thank you.  Now, Mr Howard, we have an affidavit which is sworn by Efstathios Finikiotis dated 6 August 2003 which produces a number of medical certificates and a letter to the Chief Justice of this Court and a paragraph which Justice Hayne and I would be willing to read as effectively an application for an adjournment.  Have you seen that document?

MR HOWARD:   Yes, I have, your Honour.

KIRBY J:   What is your response to that document?

MR HOWARD:   Your Honour, we oppose the adjournment of the matter.  In our submission, the medical certificate is insufficient to justify an adjournment.  The condition referred to apparently causes symptoms of vertigo, tinnitus and poor balance, but those symptoms, in our submission, are not, so far as appears, of a nature as would prevent this matter being dealt with by Dr Finikiotis.  Dr Finikiotis is a medical practitioner.  I am unsure as to whether he continues to practice, his other occupation being that of a developer.  The second page of the medical certificate does indicate that he could not currently do any work for eight hours or more a week but, in our submission, that is a ‑ ‑ ‑

KIRBY J:   Where is that in the medical certificate?

MR HOWARD:   On my copy of the affidavit, there are two pages to the medical certificate and the second page has the ‑ ‑ ‑

KIRBY J:   Yes, I have that:

Can the patient currently do their usual work for 8 hours or more a week?

MR HOWARD:   Yes.

KIRBY J:   The doctor has ticked that “no”.

MR HOWARD:   Yes.

KIRBY J:   It is not for eight hours, it is for eight hours a week.

MR HOWARD:   Yes.

KIRBY J:   I can fully understand your response to the medical certificate, but I hope you can understand the response of the Court receiving a document of this kind.  We are not doctors.  We have a certificate which says a person has tinnitus and poor balance and a condition of endolymphatic hydrops, which I do not know and which I am not competent to judge, and the certificate from the doctor saying he is not fit for work for quite a long period, from 4 August to 3 November. 

So the question then arises, does the effective application for an adjournment cause – is it sustained by some evidence and would the granting of an adjournment cause an injustice to you that cannot be repaired by some appropriate order that we can make?  Given the lengthy history of this matter, is it something that has to be dealt with and determined today?  That is what it comes down to, I think.

MR HOWARD:   I understand what your Honour is saying.  For obvious reasons, my client would like to see the matter ‑ ‑ ‑

KIRBY J:   The reasons are very obvious to Justice Hayne and me, but we have to act in a principled way when we get an affidavit with, effectively, a statement that a litigant is not able to come before us, attaching a medical certificate.  It seems to me that the proper course may be to stand it over with some clear indication that the matter will be expected to proceed on the next occasion, either with the applicant in person or with a legal representative or some other person who can speak for him.

MR HOWARD:   Yes, your Honour.  Could I make one further suggestion.  On the first page of the certificate, in column 1, the second reference is:

Is this condition (tick one for each condition)
Temporary                Permanent –

and various other conditions, and the doctor has again ticked “Permanent”, so it would seem unlikely that ‑ ‑ ‑

KIRBY J:   But that is a reference to the endolymphatic hydrops.

MR HOWARD:   Which is the condition, as I understand it, that Dr Finikiotis is suffering from.

KIRBY J:   That is the one that causes vertigo, tinnitus, which is ringing in the ears, and poor balance.

MR HOWARD:   Yes, quite.

KIRBY J:   Depending on its state, that could be very distracting to a person and if they were going through an acute phase, presumably, make it impossible for them or difficult for them to put forward an argument, especially if they were a non-English speaker.

MR HOWARD:   Yes.  Your Honour, I have put all that I possibly can, I think.

KIRBY J:   Yes.

HAYNE J:   Do you say anything about any terms on which adjournment should go?

MR HOWARD:   Yes, your Honour.  In my submission, if the matter is put off to a later date, it should be on the basis that it proceeds either with Dr Finikiotis representing the applicants on that date or with appropriate legal representation and on the basis that no further adjournment would be granted, simply on the grounds of his medical condition.

HAYNE J:   What if we were to say that the matter should not be relisted without the applicants certifying in writing that they will be ready to proceed on the date fixed?

MR HOWARD:   That too would be an ideal condition, if your Honour pleases.

KIRBY J:   Would there be a problem in that that the applicant may simply leave the matter unattended and that leaves your client in a position of

uncertainty, whereas your client would presumably want to have the whole thing completed one way or the other as quickly as possible?

MR HOWARD:   It certainly would.

KIRBY J:   Perhaps we could deal with it on the basis that the applicant has to certify or provide evidence that they are in a position to proceed with the matter but, in any case, that the matter should proceed before the end of the year on a date fixed by the Registrar and notified to the parties and that in the event that the applicants cannot present their own argument, that the matter should proceed on the papers, or by some other person appearing to speak for the applicants.

MR HOWARD:   Yes.

KIRBY J:   Is that what you ask us to do?

MR HOWARD:   Yes, I do.

KIRBY J:   We have before us an application for special leave to appeal in proceedings brought by Efstathios Finikiotis and Chrissafina Zervos against Sandhurst Trustees Ltd.  The applicants have not appeared, although called outside the Court.  The respondent appears by counsel.  The reason for the non‑appearance of the applicants appears in an affidavit which has been filed in this Court.  To that affidavit is annexed a medical certificate.

The medical certificate indicates that the applicant, Mr Finikiotis, is suffering from endolymphatic hydrops with symptoms of vertigo, tinnitus in the left ear and poor balance.  The certificate states that Mr Finikiotis is “unfit for work or study” from 4 August 2003 until 3 November 2003.  Effectively, the affidavit asks for an adjournment.  Initially, the respondent, for understandable reasons, resisted the application for adjournment.  However, in the face of the certificate, it appears appropriate to allow the adjournment on this occasion.

The orders we make are that:

(1)  The proceedings be adjourned to a date to be fixed by the Registrar;

(2)  The proceedings be relisted upon a certificate from the applicants indicating that the applicants are fit to present the application;

(3)  If the applicants do not present that certificate before 1 October 2003, the matter be relisted by the Registrar on a date to be notified to the parties, if possible before the end of 2003, on the basis that, if the applicants are not present on that occasion, the Court will proceed to deal with the application on the papers.

Adjourn the Court now until 3.15 pm on Thursday, 21 August 2003 in Canberra.

AT 11.16 AM THE MATTER WAS ADJOURNED