Gurappaji v Duncan
[2021] VSC 32
•5 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2019 00999
| KAVITHA SIDDIAH GURAPPAJI | Plaintiff |
| v | |
| CAYLEN DUNCAN (in his capacity as the trustee of the Moores Road Unit Trust) | First Defendant |
| and | |
| REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | MOORE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 & 2 February 2021 |
DATE OF JUDGMENT: | 5 February 2021 |
CASE MAY BE CITED AS: | Gurappaji v Duncan |
MEDIUM NEUTRAL CITATION: | [2021] VSC 32 |
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PRACTICE AND PROCEDURE – Application for adjournment of a trial – Where application made by plaintiff – Where plaintiff alleges that she is incapable of giving instructions and evidence at time of the trial – Where plaintiff’s evidence is a substantial part of her case – Whether the just resolution of the proceeding requires the adjournment of the trial – Trial vacated – Civil Procedure Act 2010, s 7.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | D Carlile | Starnet Legal |
| For the First Defendant | D Collins QC with K Mihaly | Alan Sheppet & Associates |
HIS HONOUR:
The recent progress of this matter to trial has an unfortunate history. On 28 August 2020, I set the trial down to commence on 7 December 2020 with an estimate of five days and a further five days commencing on 1 February 2021. I did so on the application of the then first defendant[1] who was suffering a terminal illness and who it was estimated had only a number of months to live.
[1]The original first named defendant was Mrs Ingrid Phillips, in her capacity as the administrator of the estate of Richard Berian Phillips. Mrs Phillips died on 17 December 2020. On 1 February 2021, I made orders substituting Caylen Duncan, in his capacity as the trustee of the Moores Road Unit Trust, as the first defendant.
Between 23 November 2020 and 9 December 2020, the plaintiff made three applications to adjourn the trial, each of which I rejected. Immediately after I dismissed the plaintiff’s third application for an adjournment on 9 December 2020, the plaintiff, who was then self-represented, contacted my chambers complaining of a sudden medical emergency which rendered her unable to appear for the remainder of the day. The plaintiff did not further appear before the Court that day and I adjourned the trial until 11 December 2020.[2] On 11 December 2020, by which time the plaintiff had not opened her case, I made orders adjourning the trial to 1 February 2021.
[2]The trial was not listed to be heard on 10 December 2020.
On 21 January 2021, the firm Starnet Legal filed a notice of appointment of solicitor on behalf of the plaintiff. On the afternoon of Sunday 31 January 2021, the day before the trial was to commence, the plaintiff’s solicitors gave notice to the first defendant of the plaintiff’s intention to bring a further application for an adjournment. That application was made on the afternoon of 1 February 2021; counsel for the plaintiff commenced opening her case that morning.
The adjournment application was brought on a different basis to the unsuccessful applications made in December 2020. On this occasion, the plaintiff sought an adjournment because her medical condition meant that she was unable to properly participate in the trial. The plaintiff is a key witness in her own case. The trial agenda provided by counsel indicates that it is anticipated that her evidence will proceed over about three days.
The adjournment application was brought on the basis of evidence given by Dr Vasily Lebedev, a medical practitioner who commenced treating the plaintiff on 9 December 2020. Dr Lebedev gave oral evidence in support of the application and was cross-examined at length by senior counsel for the first defendant. In his opposition to the application, the first defendant relied on oral evidence given by the plaintiff’s solicitor, Kimani Boden, of Starnet Legal.
After hearing the parties’ submissions in respect of the adjournment application in the morning of 2 February 2021, I made orders vacating the trial and referring the proceeding for further directions in the Trusts, Equity and Probate List. These are my reasons for judgment for making these orders.
In exercising my discretion in deciding to vacate the trial, I have had regard to the overarching purpose set out in s 7 of the Civil Procedure Act to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute. Ensuring that each party in litigation has an equal opportunity to present their case and to challenge the opposing party’s case is clearly a matter of fundamental importance and critical to the just resolution of disputes.
In his evidence to the Court, Dr Lebedev diagnosed the plaintiff as suffering from depression, anxiety, severe distress and panic attacks. Dr Lebedev gave evidence that the plaintiff’s thoughts were disordered and that it was difficult to obtain a clear history or conclusive answer from her as to more complex matters. In his opinion, the plaintiff would be unable to withstand the pressures of giving instructions and giving evidence in a court case for at least the next three months. In addition to these psychological complaints, Dr Lebedev’s evidence was that the plaintiff suffers from severe physical pain in her wrist, back and hips and hot flushes and abdominal pain.
In the face of this evidence about the plaintiff’s current medical condition and capacity to participate in the trial, the central argument advanced by the first defendant was that the plaintiff had deliberately misrepresented her condition in her consultations with Dr Lebedev. That contention relied principally on the proposition that the evidence of the plaintiff’s presentations to Dr Lebedev in the period between 18 and 28 January 2021 was inconsistent and irreconcilable with the evidence about the plaintiff’s capacity to confer with and engage with her legal representatives in the same period. It was submitted that Dr Lebedev’s opinion that the plaintiff could not give instructions or evidence at trial because she was unable to give coherent answers to questions in their four consultations in the above period of between 10 and 20 minutes was inconsistent with Mr Boden’s evidence which established that, over the same period, the plaintiff attended approximately three or four days of conferences with him and counsel in preparation for trial which were of three to four hours duration each.
I reject this submission. It proceeds from an incomplete, inaccurate and unrealistic comparison of the evidence about how the plaintiff presented to Dr Lebedev in the relevant period and her attendances with her legal advisers over the same time frame.
Dr Lebedev’s evidence was that the plaintiff presented with anxiety during all of his consultations with her. That anxiety would manifest itself in speech and behaviour; she would be incoherent, and she would be jittery and sweating. Significantly however, Dr Lebedev’s evidence was that the severity and nature of the plaintiff’s presentation varied and fluctuated.
In the period including and after 18 January 2021, the plaintiff consulted with Dr Lebedev on 18, 25, 27 and 28 January 2021.
(a) The purpose of the plaintiff’s consultation on 18 January was because of her anxiety, as well as other complaints including sore wrist joints, hormone deficiencies and hot flushes. When he consulted with the plaintiff on 18 January, Dr Lebedev did not prescribe her any treatment or make any assessment about her capacity.
(b) In the consultation on 25 January 2021, the plaintiff complained that she was in pain and that she was suffering panic attacks and anxiety.
(c) The consultation on 27 January 2021 was by way of telephone. The plaintiff complained of hot flushes and abdominal pain. Dr Lebedev arranged for various tests to occur and for the plaintiff to commence hormone replacement therapy. The plaintiff did not refer to additional symptoms or recent episodes of anxiety or panic attacks.
(d) In the consultation on 28 January 2021, the plaintiff complained of hot flushes, panic attacks and menopausal symptoms. Dr Lebedev made a referral for the plaintiff to see a psychologist.
Mr Boden gave evidence that he attended three or four days of conferences with the plaintiff and counsel between 18 and 27 January for the purposes of preparing for trial. Although these conferences were about six or seven hours long, the plaintiff would only attend for a portion of this time. On at least one occasion, she left after three hours, saying that she felt unwell.
Mr Boden’s evidence was that the plaintiff appeared ‘pretty scattered’ and ‘all over the shop’ during the first conference. Although the plaintiff indicated that she thought she needed an adjournment of the trial because she was mentally unfit to give instructions and to run the case, it was not obvious to Mr Boden at that time that the plaintiff was unable to provide coherent instructions. He considered that, although the plaintiff appeared anxious and nervous, she would calm down over time as the conferences moved from discussing general matters to particular matters relevant to the case about which instructions were required. He anticipated that, in subsequent conferences, he would be able to obtain proper instructions for the trial.
Mr Boden’s view in this regard changed by the second or third conference. By that time, the plaintiff’s level of stress and anxiety had become apparent to him. By way of illustration, he referred to an incident during one of these conferences where the plaintiff lay down on a sofa complaining of a headache, after which she left the conference.
I do not consider that there is anything irreconcilable or implausible in comparing the above evidence about the nature of the plaintiff’s presentation to Dr Lebedev and her presentation in conference with her legal advisers. This is particularly so in light of Dr Lebedev’s evidence that the plaintiff’s symptoms of anxiety fluctuated. Once that is recognised, there is nothing inherently irreconcilable between Dr Lebedev’s observations about the plaintiff being incoherent at certain times in the period on and after 18 January and the manner in which she presented to Mr Boden in conference. This is particularly so given Mr Boden’s observations about the plaintiff’s behaviour during their first conference which show the plaintiff to have been distracted and agitated.
The very short time frame on which the first defendant’s contention is based should also not be overlooked. Mr Boden formed concerns about the plaintiff’s capacity to participate in the trial by the second or third conference he held with her. Although the request by the plaintiff’s solicitors for a medical report from Dr Lebedev was not made in a timely way until 27 January 2021 – being a matter which appears very relevant to the question of costs in respect of the extremely late time at which the current application was brought – that fact has no particular significance to the proposition that there is a fundamental inconsistency in the way in which the plaintiff presented to her doctor and to her lawyers.
Nor is my analysis and conclusion materially affected by the fact that Mr Boden had some limited involvement with the plaintiff in the hearings in December 2020 and in particular the matters to which he deposed in an affidavit made by him on 10 December 2020. Despite the plaintiff’s distracted appearance during the first conference and the reference she made to seeking an adjournment, it was not unreasonable for Mr Boden to proceed, at least at that early stage, in the way in which he did.
In opposing the application, the first defendant emphasised the absence of any explanation and clarification by the plaintiff or her solicitors as to precisely what occurred in relation to the claimed medical emergency in which the plaintiff was involved on 9 December 2020 and to which Mr Boden referred to in his affidavit made on 10 December 2020. There is some force to this criticism. I am, however, dealing with the plaintiff’s capacity to participate in the trial nearly two months later. The absence of an explanation as to the events of 9 December 2020 does not lead me to reject Dr Lebedev’s opinion as to the plaintiff’s capacity on the basis that she has misrepresented her true medical position to him.
Likewise, the fact that the plaintiff has not acted on the referral for psychiatric support at the Delmont Hospital, provided by Dr Lebedev on 10 December 2020, is not necessarily consistent with a conclusion that, in this application some two months later, the plaintiff has misrepresented her condition to Dr Lebedev. It is also consistent with the hypothesis that, as a result of her impaired mental health, the plaintiff has not followed through on an avenue of support previously provided to her.
The need to facilitate the efficient, timely and cost effective resolution of the real issues in dispute, as mandated by the overarching purpose in the Civil Procedure Act, militates against the plaintiff’s application. This proceeding has been brought by the plaintiff. The hearing dates in December have been wasted principally because of the plaintiff’s misconceived applications for adjournment. In the exercise of my discretion, it would be wrong however to further penalise the plaintiff in respect of those failed applications; I have made costs orders in respect of each of them. This application must be considered separately on its merits, albeit in the context of the relevant procedural history. Further, it is relevant that, except in relation to the third adjournment application made in December, the plaintiff was self-represented.
I also place weight on the fact that the first defendant has taken numerous steps to ready this matter for trial, which steps would ordinarily have been taken by the plaintiff. The first defendant is entitled to seek the efficient and timely resolution of this proceeding brought by the plaintiff. However, with the death of Mrs Ingrid Phillips in December 2020, there is no longer any special feature of the case which otherwise weighs in favour of its early hearing and determination.
Although the efficient, timely and cost effective resolution of this proceeding are matters which weigh against the grant of an adjournment, the just resolution of the proceeding demands that both parties have a proper opportunity to present their case and to challenge the opposing party’s case. Given my acceptance of Dr Lebedev’s opinion as to the plaintiff’s current medical condition, the need to ensure the just resolution of the dispute, including by the plaintiff being in a fit mental state to give evidence and to provide instructions in a two-week trial in which her evidence will likely be very important to the outcome of the proceeding, is decisive in my decision to vacate the trial date.
Given the history of this proceeding and the uncertainties with the plaintiff’s medical condition, I consider that the appropriate course is to vacate the trial date rather than to merely adjourn the trial to a date three months hence as originally sought by the plaintiff. Any re-listing of the matter for trial can be dealt with by the judicial officer in charge of the Trusts, Equity and Probate List.
Within seven days, the parties are to file any minute of proposed consent order in respect of costs or, in the absence of agreement, short submissions on costs no longer than three pages in length.
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