Gurappaji v Duncan (No 2)
[2021] VSC 62
•18 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: | On the papers |
DATE OF JUDGMENT: | 18 February 2021 |
CASE MAY BE CITED AS: | Gurappaji v Duncan (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 62 |
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COSTS – Plaintiff made application for an adjournment of the trial date – Medical practitioner gave evidence that the plaintiff did not have capacity to participate in trial – Evidence provided on the first day of the trial – Where adjournment application successful – Where plaintiff had delayed in declaring medical status – Where first defendant’s costs of the application be paid by the plaintiff – Where first defendant’s costs fixed – Supreme Court Act 1986 s 24 – Supreme Court (General Civil Procedure) Rules 2015 r 63.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Starnet Legal | |
| For the First Defendant | K Mihaly | Alan Sheppet & Associates |
HIS HONOUR:
I commenced hearing the trial of this proceeding on 1 February 2021. Early that morning, I was informed by counsel for the plaintiff that he intended to make an adjournment application on the basis that he was unsure whether his client had the capacity to proceed with the trial.
At that time, I was provided with an unsworn affidavit of Dr Vasily Lebedev, a medical practitioner who had commenced treating the plaintiff on 9 December 2020. There was some difficulty and delay in getting Dr Lebedev to give evidence. The plaintiff’s counsel proceeded with his opening submissions for the trial and Dr Lebedev was called to give evidence in relation to an oral adjournment application which was then made in the afternoon. The first defendant also cross-examined Kimani Boden of Starnet Legal, the plaintiff’s solicitor.
The parties delivered their oral submissions in relation to the adjournment application on the morning of 2 February 2021. I then ordered that the trial date be vacated and the proceeding be returned to the Trusts, Equity and Probate List. I handed down my reasons on 5 February 2021 and provided the parties with an opportunity to make submissions as to the costs of the adjournment application.[1] The parties provided the Court with written submissions on 12 February 2021. The first defendant also relies on the affidavit of Alan Sheppet sworn 12 February 2021.
[1]See Gurappaji v Duncan [2021] VSC 32 for the factual background of the adjournment application and my reasons for vacating the trial.
The plaintiff submits that there should be no order as to costs in relation to the adjournment application and my order vacating the proceeding. The first defendant seeks an order that the plaintiff pay his costs of the vacated trial of this proceeding on 1 and 2 February 2021, fixed in the sum of $31,464.15, stayed until the completion of the proceeding or further order.
The Court’s jurisdiction in relation to costs is conferred by s 24(1) of the Supreme Court Act 1986. The Court’s discretion in relation to costs is to be exercised judicially and in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2015.
Plaintiff’s submissions
The plaintiff submitted that the adjournment application should be considered on its own merits without regard to the history of the proceeding, including the various unsuccessful adjournment applications previously brought by the plaintiff. It was submitted that the plaintiff’s lawyers were ready to proceed with the trial and that the application was made solely on the basis of the plaintiff’s ill health. But for her ill health, the plaintiff would have proceeded with the trial; she should not be punished for health issues beyond her control.
The plaintiff relied on Dr Lebedev’s evidence that he had diagnosed her as suffering from depression, anxiety, severe distress, panic attacks as well as other physical ailments. She also relied on the Court’s finding that the plaintiff did not show inconsistent presentations to her solicitor and Dr Lebedev and that the evidence provided by both was consistent with the diagnosis of impaired mental health. The plaintiff relied on the principle that absence due to ill health amounts to an act of God and that no costs should be ordered in such circumstances:[2]
There are cases in which, when an adjournment is occasioned through an event which occurs without the fault of either party (sometimes described as an ‘Act of God’, and encompassing sickness or death of critical witnesses, lawyers, parties and even members of the Court), the Court determines that there should be no order as to costs.
[2]Zuecker v Bruggmann [2016] QSC 115, [18], citing Earp Woodcock Beveridge & Co ltd v Gordon (1927) 44 WN (NSW) 123 (Harvey CJ in Equity).
The plaintiff’s solicitor, Mr Boden, gave evidence that he and the plaintiff had conferences on three or four occasions in the lead up to the trial. He had not met the plaintiff prior to 18 January 2021 and in his opinion, he did not consider her presentation during their first conference to be an impediment to her participation in the trial. He began to have concerns as to her medical condition and her ability to participate in the trial around the second or third attendance, which is when he requested a medical report from Dr Lebedev.
The plaintiff submitted that the time frame during which Mr Boden spent with the plaintiff was very limited and that after only a couple of attendances he had concerns and requested a medical certificate. It was submitted there was no delay between the time of obtaining the medical certificate and foreshadowing an adjournment application. At a directions hearing on 27 January 2021, the plaintiff’s counsel also foreshadowed to the Court the need to obtain a medical certificate. It was requested the same day.
First Defendant’s submissions
The first defendant accepted that a party is not usually ordered to pay costs if a delay occurs for medical reasons. However, despite this general rule, the first defendant submitted that the plaintiff ought to pay his costs of the trial because:
(a) the plaintiff was on notice that her capacity to take part in a trial was in issue in December 2020, when the trial was adjourned for that reason;
(b) the plaintiff was on notice that proper medical evidence was required by, if not before, 12 January 2021;
(c) the plaintiff failed to seek medical evidence in support of an adjournment until 28 January 2021;
(d) the plaintiff failed to make the first defendant aware of her intention to apply for an adjournment until 31 January 2021;
(e) the plaintiff initially foreshadowed an adjournment at the commencement of the trial, despite having no evidence in support (in that the purported evidence was an unsworn affidavit from Dr Lebedev); and
(f) the plaintiff conducted the adjournment application inefficiently, in that Dr Lebedev was not available to give evidence in support of the application until after lunch on 1 February 2021, after the trial had commenced and therefore necessitating a second day of hearing.
Additionally, although Starnet Legal only commenced representing the plaintiff on the record on 21 January 2021, the first defendant noted that that firm was assisting the plaintiff off the record from at least 8 December 2020. During this time, Starnet Legal sent emails to the Court, one of its solicitors made an affidavit and another applied to appear as amicus curiae, drew costs submissions and took instructions. In those circumstances, the plaintiff was submitted not to be entitled to the usual indulgences offered to a self-represented litigant.
Consideration
I accept that a party is not usually ordered to pay costs of an adjournment where the adjournment is occasioned by the party’s medical condition. Although I granted the plaintiff’s adjournment application for this reason, the timing and manner in which the application was brought were, in the circumstances of this case, unreasonable such that the first defendant should have the benefit of an order as to costs of the type that he seeks.
Given the lengthy and regrettable procedural history of this proceeding and the many adjournment applications brought by the plaintiff, one of which was due to her medical issues, the plaintiff and her solicitor must be regarded as having been on notice that her health and medical condition was a potential obstacle to her capacity to participate in the trial. In particular, at the penultimate adjournment application in this proceeding on 9 December 2020, the plaintiff’s current solicitor, who was not formally on the record at that time, was the person who informed the Court of the plaintiff’s precarious medical status. It was primarily because of this that I adjourned the trial date at that time.
In those circumstances and where the trial was listed to commence on Monday 1 February 2021, it was unreasonable that medical advice about the plaintiff’s capacity to participate in the trial was not sought until Wednesday, 27 January 2021. It was also manifestly unreasonable that information about the plaintiff’s medical condition was only provided to the Court in an unsworn form on the morning the trial commenced. Such evidence was in fact only provided after counsel for the plaintiff began opening her case through the morning of the first day of the trial. The first defendant had put the plaintiff on notice on 12 January 2021 that, if any application is sought on medical grounds, proper medical evidence was required.
As the first defendant submitted that, although the plaintiff’s medical condition is out of her control, her conduct of the proceeding is not. She failed to promptly investigate her capacity to take part in the trial, putting the first defendant to the cost of preparing for and appearing at a trial that did not proceed. The manner in which the plaintiff addressed her medical capacity to participate in the proceeding was unreasonable. That failure extended to include the fact that the hearing of the adjournment application was unnecessarily elongated, extending onto the second day of the trial. As a result, she should pay the first defendant’s costs of the vacated trial.
The first defendant has sought that his costs be fixed in the sum of $31,464.15. I have already ruled in this proceeding as to whether it is appropriate to fix the quantum of a costs order in relation to discrete adjournment applications.[3] For the same reasons, I consider that such an approach is appropriate in respect of this application.[4]
[3]See Gurappaji v Phillips [2021] VSC 11, [19]-[20].
[4]The quantum of the first defendant’s is calculated as follows: $18,120 for senior counsel; $7,200 for junior counsel; $5,142.50 for the first defendant’s instructing solicitor; and $1,001.65 for transcript.
I will make the following order:
The plaintiff pay the first defendant’s costs of the vacated trial of this proceeding on 1 and 2 February 2021, fixed in the sum of $31,646.15, stayed until the completion of the proceeding or further order.
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