Jo-Anne Finch v Arnold, Thomas and Becker Pty Ltd
[2016] VSCA 117
•24 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2015 0068
| JO-ANNE FINCH | Applicant |
| v | |
| ARNOLD, THOMAS AND BECKER PTY LTD | Respondent |
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| JUDGES: | TATE, OSBORN AND FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 March 2016 |
| DATE OF JUDGMENT: | 24 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 117 |
| JUDGMENT APPEALED FROM: | Arnold Thomas and Becker v Jo-Anne Finch (County Court of Victoria, Judge Macnamara, 19 June 2015) |
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PRACTICE AND PROCEDURE – Procedural fairness – Defendant’s case deemed closed in her absence – Leave to re-open case granted and two days set for conclusion of evidence and closing submissions – Defendant requested that judge consider adjournment and varying orders – Judge’s associate sent email advising hearing dates cancelled – Judge’s associate sent second email stating that matter listed for next day for judge to hand down judgment – Reasons for judgment attached to email – Reasons expressed concluded view on central factual issues – Trial miscarried – No notice given to defendant that judge proposed to proceed to judgment without defendant completing her case – Request for consideration of short adjournment did not justify termination of hearing before defendant completed her case – No notice given that judge intended to make orders for costs in absence of defendant on day judgment handed down – Appeal allowed – Matter remitted to County Court for hearing before different judge.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Applicant in person | |
| For the Respondent | Ms A M Ryan QC with Mr D Harrison | Wisewould Mahony Lawyers |
TATE JA
OSBORN JA
FERGUSON JA:
Introduction
Ms Finch seeks leave to appeal a judgment in the County Court dismissing a counterclaim made by her against solicitors who formerly acted for her. She also seeks leave to appeal costs orders made in the County Court proceeding.
The proceeding commenced when Arnold Thomas & Becker Pty Ltd (‘ATB’) claimed fees for work done in connection with a Victorian Civil and Administrative Tribunal (‘VCAT’) proceeding pursuant to a cost agreement with Ms Finch.
Ms Finch counterclaimed alleging that ATB had breached the terms of its retainer and wrongfully repudiated that retainer causing her loss and damage.
The trial judge ultimately dismissed both the claim and counterclaim.
Ms Finch now seeks leave to appeal that part of the judge’s determination which was adverse to her on the following grounds:
(1) The trial judge denied Ms Finch natural justice.
(2) The trial judge erred by demonstrating reasonably apprehended bias.
(3) The trial judge erred in the construction and application of s 49 of the Civil Procedure Act 2010 (‘Civil Procedure Act’).
(4) The trial judge erred in holding that (under the relevant costs agreement) Ms Finch had an obligation to accept reasonable advice.
(5) The trial judge erred in holding that a term that ATB only had to use reasonable efforts to brief counsel on a no win/no fee basis could be implied into the relevant costs agreement.
(6) The trial judge erred in holding that the failure of ATB to comply with procedural orders for the filing of witness statements at VCAT and the failure of ATB to brief counsel in time for a VCAT hearing were protected by advocates’ immunity.
(7) The trial judge erred in holding that Ms Finch terminated the costs agreement with ATB by commenting that she had lost confidence in her legal team.
(8) The trial judge erred in making an order that Ms Finch pay ATB’s costs of the counterclaim on an indemnity basis.
(9) The trial judge erred in permitting ATB to rely upon confidential information that was the subject of legal professional privilege.
Ground 1 seeks to agitate a series of matters relating to the fairness of the procedures adopted at the trial. Counsel for ATB accepted that if ground 1 were made out then it would be dispositive of the appeal and the Court should determine the matter on the basis of that ground and expeditiously remit the matter for rehearing.
Ms Finch’s complaints concerning procedural fairness culminate in a series of objections to the termination of the hearing before she had completed presenting her case.
For the reasons set out below, we accept that what had become a very troubled trial ultimately miscarried. In our view, leave to appeal should be granted and the appeal allowed.
(1) No proper notice was given to Ms Finch that the trial judge proposed to determine the matter without hearing the balance of the evidence which she wished to adduce and without hearing her final submissions.
(2) The trial judge erred in finding that a request to consider a short adjournment of the further hearing of the matter justified the termination of the hearing before Ms Finch completed her case.
(3) No proper notice was given to Ms Finch of the trial judge’s intention to make orders for the costs of the proceeding on the morning upon which judgment was handed down.
It is necessary next to say something more about the background facts before turning in some detail to the manner in which the proceeding came to a conclusion.
Background facts
Between July 2002 and October 2006, Ms Finch worked for The Heat Group Pty Ltd (‘The Heat Group’) in a cosmetics business. Thereafter she received benefits under WorkCover legislation for disability resulting from work-related stress.
As a result of grievances concerning her treatment at work, Ms Finch made a complaint to the Equal Opportunity Commission alleging that she had been subjected to unfair discrimination contrary to the Equal Opportunity Act 1995.
This complaint was referred to VCAT in 2007. Ms Finch was represented in the VCAT proceeding by a series of firms of solicitors. In June 2008, when she was represented by the second such firm, The Heat Group made an offer of settlement to Ms Finch in the sum of $75,000. Ms Finch rejected this offer and counter-offered $125,000 all in. The counter-offer was rejected.
In July 2008, Ms Finch retained ATB to act for her both in the VCAT proceeding and in respect of proposed proceedings in the Federal Court. Ms Finch entered into a ‘no win/no fee’ costs agreement with ATB.
There was difficulty in formulating Ms Finch’s claim to her satisfaction and in completing other preliminary steps in the VCAT proceeding. In December 2008, however, ATB obtained instructions to put an offer of settlement of $115,000 all in to The Heat Group. This offer was made by letter on 19 December 2008 but rejected.
A directions hearing was listed for 23 February 2009. There were difficulties in retaining counsel to appear at this hearing on a ‘no win/no fee’ basis but counsel was eventually retained and directions were made in anticipation of a final hearing fixed for 21 September 2009. The directions required a series of steps to be undertaken prior to the hearing.
There was difficulty in completing these steps but ultimately the matter was re-fixed for hearing on 29 October 2009.
ATB was unable to retain appropriate counsel on a ‘no win/no fee’ basis but it was agreed between ATB and Ms Finch that Mr Staindl of counsel would be retained for the hearing on a daily fee of $1,800. Arrangements were made for Ms Finch to pay $18,000 representing counsel’s fees for 10 days into ATB’s trust account.
When the matter came on for hearing on 29 October 2009, a Deputy President of VCAT ordered that the proceeding be mediated.
In the course of the mediation there was discussion between Ms Finch, her legal advisers, and the mediator both as to the formulation and computation of her claim and its potential chances of success.
At one point Ms Finch made an open offer in accordance with advice from her counsel and solicitor to settle the claim for $115,000 on conditions suggested by the mediator. This offer was accepted by The Heat Group but Ms Finch refused to sign terms of settlement maintaining that she did not agree to the scope of the release which she was required to give under the terms.
Following this, the mediation broke down and the retainer of ATB and counsel appearing for Ms Finch was terminated. The circumstances in which this termination occurred are the subject of competing accounts and, from Ms Finch’s point of view, are highly contentious. In essence, ATB contends Ms Finch sacked her legal team. Ms Finch says that her legal team ‘walked out’ on her.
Thereafter Ms Finch retained Holding Redlich Solicitors to act for her in the VCAT proceeding. The matter was heard before Vice President Judge Harbison over some 20 days. Ms Finch was wholly unsuccessful and was ordered to pay two-thirds of The Heat Group’s costs. In turn, Ms Finch failed in an appeal to this Court against the substantive decision of Judge Harbison[1] and the High Court refused her special leave to appeal from the decision of the Court of Appeal.[2] Leave to appeal the costs order was also refused by this Court.[3]
[1]Finch v The Heat Group Pty Ltd [2010] VSCA 256.
[2]Finch v The Heat Group Pty Ltd [2011] HCASL 117.
[3]Finch v The Heat Group Pty Ltd [2011] VSCA 100.
In November 2009, ATB rendered an account to Ms Finch for fees for the work done prior to the termination of ATB’s retainer. Ms Finch responded with a request for specific invoices and running sheets of the hours spent on her case.
In February 2011, ATB filed a complaint in the Magistrates’ Court seeking to recover $72,049 in fees allegedly owing for work done pursuant to the costs agreement made with Ms Finch in August 2008. Ms Finch defended the claim on a series of bases including an allegation that she had requested an itemised bill which had not been provided to her as required by the Legal Practice Act 1996 (and later the Legal Profession Act 2004).
Ms Finch also filed a counterclaim which alleged, amongst other matters:
·ATB breached its retainer by ‘unilaterally and wrongfully’ withdrawing its services prior to the conclusion of the VCAT proceedings without ‘good cause’;
·such wrongful termination constituted a repudiation of the agreement and Ms Finch had suffered damage as a result;
·ATB was negligent in failing to prepare for the mediation and failing to obtain reasonable and proper directions from VCAT as to the filing and service of witness statements within a reasonable time;
·ATB engaged in misleading and deceptive conduct by representing to Ms Finch that it would act on a ‘no win/no fee’ basis until the conclusion of the proceeding; and
·ATB was estopped from resiling or departing from the assumptions upon which the parties entered into their relationship.
The proceedings were transferred to the County Court and came ultimately to trial before his Honour Judge Macnamara. The trial occupied some 16 hearing days between 18 May and 15 June 2015.
The dispute between the parties raised a series of fundamental factual issues including the following.
(1) Did Ms Finch sack her legal team or did her legal team, as she put it, ‘walk out’ on her?
(2) Was the advice given by ATB and Mr Staindl at the mediation, that Ms Finch should settle her claim against The Heat Group for $115,000 ‘all in’, reasonable?
(3) Did ATB breach the Legal Profession Act by failing to provide Ms Finch with an itemised bill?
Prior to the trial in the County Court, Ms Finch requested a series of adjournments and made a series of preliminary applications which ultimately led the trial judge to conclude that she was engaging in systematic conduct aimed at derailing a final hearing and determination of her claim.
In March 2015, counsel for ATB made an open offer in Court to settle the claim and counterclaim on the basis that each party walked away and bore its own costs.
On 18 March 2015, being the sixth date on which the matter had been fixed for trial, Ms Finch made a series of applications in the proceeding including applications against lawyers who had previously acted for her, the law firm then acting in defence of the counterclaim, and counsel then appearing for ATB.
Judge Macnamara disposed of the applications in four separate rulings and subsequently made 17 orders, including an order refixing the trial.
Ms Finch sought and was refused leave to appeal these orders by the Court of Appeal on 6 May 2015.[4]
[4]Finch v Arnold Thomas & Becker Pty Ltd [2015] VSCA 86.
The commencement of the trial
On the first day of the trial, 18 May 2015, the judge made a special direction pursuant to s 49 of the Civil Procedure Act 2010 in the following terms:
CIVIL PROCEDURE ACT 2010
SPECIAL DIRECTION TO FURTHER THE OVERARCHING PURPOSE
The Court directs the Defendant immediately following the Plaintiff’s case to present the substance of her case as to her counterclaim and to continue presenting it subject to the Court’s directions until it is completed. Pending compliance with this Order no further applications will be entertained.
Warning: Contravention of this Order may lead to the making of orders under section 51 of the Civil Procedure Act 2010 including an order of summary dismissal of the Defendant’s counterclaim without any further notice.
The overarching purpose of the Civil Procedure Act is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[5] Relevantly, s 49 provides that a court may give any direction it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
[5]Civil Procedure Act 2010 s 7.
Under the Civil Procedure Act, the overarching obligations include the obligation to cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding.[6] By s 10, the overarching obligations apply to any person who is a party to a civil proceeding.
[6]Civil Procedure Act s 20.
Before making the direction set out above, his Honour foreshadowed the basis upon which it might be made. He spoke about the overarching purpose and the provisions that deal with the powers of the Court to further the overarching purpose and to make orders where there has been a contravention of any overarching obligation. As noted above, the judge formed the view that Ms Finch was intent on derailing the proceeding. The judge referred to the fact that 18 May 2015 was the seventh trial date that had been set. His Honour referred to adjournment applications that had been made by Ms Finch including what he referred to as baseless and scandalous issues raised by her. He indicated that the intent of the s 49 direction that he was contemplating making would be to preclude Ms Finch from making any further preliminary applications because he was of the view that there would always be preliminary issues which Ms Finch would seek to raise in an effort to avoid determination of the real issues in dispute.
Ms Finch then defended the course she had adopted in conducting the proceeding but the judge went on to rule against her and made the s 49 direction set out above. We interpolate that Ms Finch would join issue with the judge’s conclusions that a special direction was necessary.
Nonetheless, the trial then proceeded in accordance with the special direction. There was no appeal in respect of it. Whilst it is therefore not necessary to consider it further, we should not be taken to accept that there was a proper basis for making a direction of such breadth purporting absolutely to preclude a litigant from making any further preliminary applications regardless of their potential justification.
On the 13th day of the trial (3 June 2015), Ms Finch sought, by email, to have the hearing adjourned on the basis of a medical certificate which was emailed to the judge’s associate. That certificate related both to the previous day (on which Ms Finch had been under cross-examination) and the day in question. The trial judge described what then occurred as follows:
… On the thirteenth day of the trial, my associate received an email communication from [Ms Finch] that she was unwell and tendering a doctor’s certificate. The doctor’s certificate appeared to cover the previous day’s sitting (during which Ms Finch was in the box under cross-examination) and that day. As a result, I stood over the trial till 10.30 the following morning and my associate at my direction advised Ms Finch that if any further deferral of the progress of the trial was sought, a detailed report should be provided or the certifying doctor should be made available for questioning by the Court and by counsel for the plaintiff.
The following day a certificate from another practitioner was offered without any indication that the doctor would be available to be asked questions. My tipstaff made inquiries on the Internet and it was possible to make telephone contact with the doctor. As a result of that evidence, I concluded that the ailment from which Ms Finch was suffering, namely bronchitis, was not sufficiently serious to prevent her attending Court. I directed the transmission of an email to her saying that the trial would resume later that day at 2.00pm. The email further stated that if she did not appear she would be deemed to have closed her case. … By that time the plaintiff had put on its entire case, Ms Finch had called one witness, Mr Flanagan, and given evidence herself in chief and been cross-examined at length. All that seemed outstanding was her re-examination and evidence from her husband. Then the matter could proceed to final submissions.
As a result of other commitments the following week and thereafter, it then seemed there would be no further sitting days available to me for some time. Further communications came from Ms Finch by email indicating that she might feel able to continue with the trial some time the following week. At the resumption at two o’clock I then determined to continue, deemed Ms Finch to have closed her case and heard final submissions from Mr Harrison on behalf of the plaintiff. … The result was that the trial concluded without the entirety of Ms Finch’s case having been put forward and without her having made final submissions. In the circumstances I regarded her as having had the opportunity both to complete her case and to put on further submissions, but by absenting herself from the trial without good cause, she failed to take up those opportunities.
Had the trial continued, I am confident that the evidence could have been completed and either submissions could have been made on Friday or they could have been put in in writing thereafter. Throughout the whole trial, Ms Finch had been coughing and spluttering and complaining that she was suffering from ‘flu’. It was not obvious to me why, if she was able to cope with that condition on previous days, she was not able to continue, particularly in light of the evidence which I heard from one of the certifying doctors, Dr Oldmeadow, as to the nature of the disorder Ms Finch was suffering, namely bronchitis, and its severity and its capacity to disable her from participating in the trial.[7]
[7]Arnold Thomas & Becker Pty Ltd v Finch (Unreported, County Court of Victoria, Judge Macnamara, 18 June 2005) [138]–[141] (‘Reasons’)
It can be seen that the judge’s decision to complete the hearing was based in part upon evidence elicited from one of Ms Finch’s treating doctors by questioning in the absence of Ms Finch. This and other aspects of the hearing are complained of by Ms Finch as evidencing bias but for present purposes it is unnecessary to explore further what occurred at this stage of the hearing.
Ms Finch then made a series of applications to be allowed to finish putting her case. On 15 June 2015, the trial judge granted leave to Ms Finch to re-open her case and fixed it for further hearing on 18 and 19 June 2015. He made the following orders:
1.The Defendant is granted leave to re-open her case upon the following terms:
(a)Her re-examination and the evidence of Mr Ndiege must commence at 10:00 AM on 18 June 2015 and conclude on that day;
(b)The Defendant's closing address commences 10:00 AM on 19 June 2015 and concludes on that day.
2.Any further documents to be produced or relied on by the Defendant must be provided to the Plaintiff's solicitor, Mr McGirr, by 5:00 PM on 17 June 2015.
3.The Plaintiff must forthwith provide to the Defendant its outline of submissions as presented to the Court and the transcript of the submissions made to the Court.
4.The costs of this day are costs of the trial.
Mr Ndiege, who is referred to in the order, is the husband of Ms Finch. He was present at the mediation during which the critical conversations occurred bearing on the first central factual issue, namely whether Ms Finch sacked her legal team or not.
The completion of the trial
On 16 June 2015, Ms Finch sent an email to the judge’s associate attaching a seven page letter and asked the Court to consider a further short adjournment of the hearing. In that letter, she set out a series of matters which she asserted she would not have time to address properly before the date which had been fixed for hearing. She also referred to a whole series of other matters including the following: the burden she was under in connection with proceedings in the Federal Court; the recent receipt of the transcript and submissions (totalling 85 pages) made when she was not in attendance; the fact that her children’s school was closed on the proposed hearing dates, the undesirability of the attendance of her children at court on the days proposed for the further hearing and her inability to organise childcare at such short notice; the fact that her latest solicitors had ceased to act for her shortly before the commencement of the trial; her inexperience in conducting trials and the allegedly unfair criticism she had received from opposing counsel concerning her conduct of this trial; the fact that she struggled to keep notes during counsel’s cross-examination of her; the fact that she is generally busy looking after children and that her husband, who also runs a business, is not able to assist; the fact that the discovery process had been complex and lengthy; the short time until written submissions were due (5:00 pm on 17 June 2015); the assertion that new, misleading, complex and contradictable arguments (some based on allegedly inadmissible evidence) had been raised on behalf of ATB in closing submissions; the fact that the trial judge appeared to have reached a concluded view on some issues; her desire for further independent advice on crafting her closing submissions; the imbalance between a self-represented litigant and ATB’s representation involving counsel and instructor; the assertion that ordinarily litigants are given more than one day to prepare (she compared the conduct of the County Court proceeding and timelines with her pending matter in the Federal Court); the conclusion of the trial judge that she was fit to attend court, despite doctors’ evidence she was ‘still somewhat unwell and not one hundred percent’; the proposition that it would not be in the interests of her children to observe her treatment by opposing counsel in the course of the hearing and that they would struggle to sit still for the whole day; her husband’s medical issues and a medical appointment which he had on 18 June 2015; and the general proposition that she had previously only been given short notice of events to come in the trial. Ms Finch also noted that the judge had previously indicated that he could sit on 2 July 2015. She concluded the letter:
… I therefore ask the Court to consider the following:
(a)the evidence requested for me to provide to the plaintiff is provided to them by 5 pm 3 July 2015; and
(b)the parties return to Court for one day after 6 July 2015, whereby I will:
(i) conduct re-examination and call Bush Ndiege; and
(ii) give my closing submissions.[8]
[8]AB 534.
It may be noted that the letter did not state that Ms Finch would not comply with the terms of the order of 15 June 2015 but simply requested the judge to consider varying those terms in the light of the various matters she raised. It can also be seen that those matters were wide-ranging and might well be regarded as canvassing matters which had in part been overtaken by the trial and were otherwise of debateable relevance. Nevertheless, the letter identified a series of discrete factual matters which did on their face bear directly on the fairness of the matter proceeding two days later.
These matters included the short time available in which to comply with the direction as to service of written material upon which Ms Finch relied, difficulties with child care, and difficulties facing Ms Finch’s husband in attending the court (he having acted as a McKenzie friend in the proceeding and being the remaining witness she intended to call).
At 9:11 am on 17 June, the solicitors for ATB sent an email to Ms Finch (copied to the Court) indicating that they were prepared to accommodate her to a limited extent by interposing her husband as a witness on Thursday morning. They also indicated that they would not provide transcript unless Ms Finch paid for her share. The solicitors further advised Ms Finch of the authorities provided to the Court in the course of the plaintiff’s closing address and included in their email hyperlinks to them.
At 9:55 am on 17 June 2015, the judge’s associate responded to Ms Finch’s request of the previous day by email in the following terms:
We acknowledge receipt of your correspondence and attachments.
In light of its contents the listing for Thursday and Friday of this week are cancelled.
I will advise the parties of further listings shortly.[9]
[9]AB 538.
Ms Finch did not understand this email to mean that her request for some delay in the further hearing had been refused. Nor, would it seem, did the solicitors for ATB for they sent an email to the court at 10.03 am on 17 June 2015 stating that they opposed any adjournment of the trial and would like to be heard on the issue the next day.
Shortly after 2:00 pm, Ms Finch responded to the associate:
I … note my understanding, I therefore do not need to serve evidence by 5pm today, in that:
1. It was to be served the day before the first hearing day of which has now been cancelled;
2. I am yet to receive other material from the plaintiff’s in support of their closing submissions, which may then warrant further evidence to be introduced and added to the evidence served; and
3. I am being provided with other material tomorrow which may eventuate to being included with the evidence needing to be served.
At about 5:00 pm, the associate sent a further email to Ms Finch. It referred to the email which had been sent to Ms Finch earlier that day and stated that the matter was listed for the next day at 10:30 am for the judge to hand down judgment. The email further stated that a ‘copy of the judgment to be handed down’ was attached. The document attached comprised detailed reasons of more than 75 pages.
Shortly after 9:00 am the following day (18 June 2015), Ms Finch emailed another seven page letter dated 17 June 2015 to the judge’s associate. In this letter, Ms Finch first referred to health issues, which she said were affecting her. She then recorded that, although her case had been deemed closed on 4 June 2015, she was granted leave to re-open it on 15 June 2015, and that she had been informed only that day (17 June 2015) of the ‘rescinding’ of that decision and ‘making judgment’ in the matter. She referred to the fact that the email sent on the morning of 17 June 2015 did not refer to the judgment ‘being made’ later that day, and that judgment had then been listed on the County Court website at 3:49 pm on 17 June 2015. She asserted that, as the plaintiff had not called for judgment to be delivered, but had assented to the re-opening of her case, and that she had sought a short extension in her letter of 16 June and that, in response by email, ATB had sought to be heard in opposition, if judgment were to be given, the matter should be ‘argued out in Court, rather than merely given’. She asserted breaches by ATB of the trial judge’s orders of 15 June 2015 and the Civil Procedure Act. She again asserted that her understanding was that it was frequent that requests were made for further time to prepare, that she had not been advised that the Court was ‘making a judgment’ and that she was not able to ‘rectify any issue/concern’. She said she had had limited time to review and digest the judgment. She said she had not been told that, if she sought consideration of an extension of time, then judgment could be made, rather than the Court just proceeding with the hearing as listed. She purported to identify various ‘slips’ in the judgment as emailed, and she asked that a copy of her email of 16 June 2015 not be attached to the judgment (as the draft she had received had indicated it would be). Ms Finch then referred to findings as to her credibility and character, and her rights to a fair hearing. She further asserted that proper reasons had not been provided for the change of position of the Court between the morning and afternoon of 17 June 2015 and requested ‘full and proper reasons’. She asked that no further steps be taken in the proceeding, that judgment not be handed down and that the case be referred to another judge. If that was not done, she asked that orders as to costs be reserved and argued on a later date.
The matter came on for hearing that morning in the absence of Ms Finch. The judge made the following orders with respect to the claim and counterclaim:
·Ms Finch’s liberty to re-open her case was rescinded.
·Judgment was given for Ms Finch on ATB’s claim.
·Judgment was given for ATB on Ms Finch’s counterclaims subject to ATB’s obligation to refund $9,000 held on trust.
The judge published his Reasons which were identical to those which had been sent to Ms Finch by email the previous evening.
ATB’s claim against Ms Finch failed because ATB had not served an itemised bill in accordance with its statutory obligation.
Insofar as the counterclaim was concerned, the judge reached the following conclusion on the central issue of whether Ms Finch had ‘sacked’ her lawyers:
Ms Finch, in cross-examination, contended that counsel and solicitors walking out on her was consistent with the repeated threats which the evidence records were made to her that her no win/no fee arrangements would be cancelled if she failed to accept reasonable advice. There is no doubt that this warning, threat or observation, however one characterises it, was made repeatedly by a number of Arnold Thomas & Becker practitioners to her, including both Mrs Eleftheriou and Mr Price. Nevertheless, on Ms Finch’s account, the person who allegedly quit was Mr Staindl. Mr Staindl was not on a no win/no fee arrangement. If, as I accept, it might be thought quite plausible that Arnold Thomas & Becker would withdraw in the light of the repeated warnings or threats they had given, Mr Staindl’s retainer had no proviso which obliged Ms Finch to accept his reasonable advice. The contemporary documentation, including the notes made by Mrs Eleftheriou and Ms Finch’s own communications in November 2014, all support the view that it was she who terminated the retainer. I find as a fact that this is what happened. ….[10]
[10]Reasons [166].
Earlier the judge had said:
Finally, I note the findings which I have reached on the key question of whether Ms Finch sacked ‘her legal team’ or they quit, leaving her in the lurch. These findings are made without regard to issues of credibility, merely upon inherent probability and the documentary record. I reject Ms Finch’s account on this matter, and rejection of her evidence on so key a point, which cannot be explained by quirks of memory or misunderstanding, necessarily reflects on her credibility.[11]
[11]Reasons [157].
Lack of notice about what was to occur
At no time before the email sent by the judge’s associate just before 5:00 pm on 17 June 2015 was Ms Finch informed that:
(a) the judge had done more than vacate the hearing dates previously fixed for 18 and 19 June;
(b) Ms Finch’s request for consideration to be given to further hearing dates shortly thereafter had been refused;
(c) the judge had determined that Ms Finch’s request for consideration of a further adjournment was capable of being regarded as sufficient reason to justify a decision to rescind the leave she had been given to re-open her case;
(d) such leave was in fact proposed to be rescinded; and
(e) the judge proposed to proceed to judgment without allowing Ms Finch to complete the evidence she wished to call in support of her case and without hearing any further submissions from her.
It is not clear whether the judge had determined to follow the course that he did before or after his associate’s email of 9:55 am on 17 June. If the email was intended to give notice of what was to occur, then it was misleading in its language. The email simply conveyed first that the hearing dates previously fixed had been vacated and secondly that further listings (plural) would be advised. In short, the email did not give Ms Finch notice of the course that the judge proposed to follow.
The failure to give proper notice of what was to occur effectively deprived Ms Finch of the right to pursue a further hearing on the dates previously fixed and, in particular, deprived her of the opportunity to seek to do so before the judge formulated final and concluded reasons.
The decision to terminate Ms Finch’s right to further present her case
In his reasons for judgment the trial judge said:
I attach the email. This is yet another example of Ms Finch’s limitless capacity to raise irrelevant, misconceived or at best collateral issues in the face of a professed inability to prepare the substance of her case. It is obstructive of the Overarching Purpose under the Civil Procedure Act and in flagrant violation of her overarching obligation under that Act. Another attempt to derail or delay. I cancelled the hearing and made arrangements to publish judgment.[12]
[12]Reasons [145].
It does not follow from the making of a misconceived application for an adjournment that a court should do anything other than proceed to complete a hearing on the date fixed for trial.
It may be that, having regard to the history of the matter, the judge was well entitled to require Ms Finch to proceed on 18 and 19 June, but it does not follow that he was entitled to refuse to hear her further simply because she asked him to consider an adjournment.
The request made by Ms Finch did not itself breach the judge’s directions of 15 June 2015 but left open the possibility that the trial could continue as directed.
In our view, the matters raised in Ms Finch’s letter requesting an adjournment could not reasonably justify a decision to terminate the hearing of her case.
In so concluding, we do not discount the very real difficulties which had attended the conduct of the trial to that point. Nor do we discount the following considerations:
(f) the request for a further adjournment of the hearing raised issues as to the ongoing efficient allocation of court resources;
(g) the request for a further adjournment of the hearing raised real issues of fairness to ATB;
(h) the request for a further adjournment fell in part to be considered in the light of the history of the trial as a whole; and
(i) the request for a further adjournment of the matter raised underlying issues as to what was objectively in the best interests of Ms Finch. By the time it was made, it is probable that the judge had substantially progressed his thinking with respect to the counterclaim. It may be a difficult task for a judge to allow a litigant in person to press on with proceedings which appear to the judge to be pointless and have the capacity to inflict significant continuing financial self-harm upon that litigant in person.
Nevertheless, despite each of the above considerations:
(1) The Court had already allocated time to complete the hearing of the case and that time was available forthwith.
(2) ATB was able to proceed on the days set aside for the fixture and had indicated a willingness to accommodate difficulties confronting Mr Ndiege.
(3) The judge did not, in the relevant portion of his Reasons, expressly rely upon the special direction he had previously given. He did not conclude that Ms Finch had contravened the special direction that he had given under s 49 of the Civil Procedure Act on 18 May 2015 or the directions he had given on 15 June 2015 as to the re-opening of Ms Finch’s case. He did not purport to act under s 51 of the Civil Procedure Act.[13] He did, however, conclude that Ms Finch’s letter constituted a ‘flagrant violation of her obligations under the Act’. With respect, although the letter may be regarded as unduly discursive and embellished with statements which the judge might conclude raised irrelevant, misconceived or at best collateral issues, the gravamen of the letter was simply a request for the Court to consider a short adjournment. That request was supported at least in part by the assertion of a series of practical difficulties.
(4) The simple fact was that Ms Finch’s case was not complete and however low the probabilities as to the likelihood that further evidence and submissions would affect the judge’s view of the merits of her case, the evidence remaining to be called included direct evidence from a witness as to the content of discussions which went to what the judge himself described as the ‘key question’ of whether Ms Finch sacked her legal team or not. It is thus logically possible that, had the evidence that Ms Finch wished to adduce been received, it may have altered the conclusion the trial judge reached on this key question.
(5) Whilst it may be that Ms Finch’s email requesting an adjournment raised ‘irrelevant, misconceived or at best collateral issues’ that is not uncommon in submissions made by unrepresented litigants to a court. The email did not justify the judge determining to hear Ms Finch no further on the merits. The email was directed to subsidiary procedural issues and did not do more than request that the judge consider a further adjournment. It did not evidence a refusal to accept the terms on which Ms Finch had been given leave to reopen her case. It simply requested the judge to consider varying those terms.
[13]Section 51 of the Civil Procedure Act provides that ‘if a person to whom a direction has been given … under this Part applies contravenes the direction … , the court may … dismiss the civil proceeding … [or] … disallow or reject any evidence that the person has adduced or seeks to adduce … [or] … make any other order or give any other direction that the court considers appropriate.’
Counsel for ATB submitted on the appeal that there was no procedural unfairness. Counsel noted that although the judge’s reasons had been emailed to the parties on 17 June, the judge had not pronounced any orders. That being the case, counsel submitted that Ms Finch could have come to court on the morning of 18 June 2015 and sought to complete her case and make submissions. Counsel submitted that Ms Finch did not avail herself of that opportunity and had given no explanation as to why she had failed to attend court on 18 June.
There is an air of unreality about this submission. When Ms Finch was advised of the listing of the matter for judgment she was also provided with a ‘copy of the judgment to be handed down’. It was plain that the judge had reached a concluded view on her counterclaim and the underlying facts. The judgment handed down the following morning was in identical terms to that provided to Ms Finch on the previous evening.
It follows that Ms Finch was denied a fair opportunity to conclude the presentation of her case and in particular to call relevant evidence before the judge reached and expressed a concluded view on the central factual issues.
The procedural directions embodied in the emails sent to Ms Finch by the court on 17 June 2015 did not pay due regard to the just determination of the civil proceeding in accordance with the overarching purpose set out in s 7(1) of the Civil Procedure Act and the consideration set out in s 9(1)(a), that in making any order, a court must further the overarching purpose by having regard to the just determination of the proceeding.
Costs
The draft judgment emailed to Ms Finch foreshadowed an order that costs would be reserved. Ms Finch was not advised that costs would be the subject of final determination the following morning.
As we have said, she requested by email at 9:00 am on that morning that she be heard on the question of costs. In the event the judge dealt with the question of costs on that morning and in her absence. The judge ordered:
·Ms Finch pay 80 per cent of ATB’s costs of the proceeding up to 25 June 2014.
·Ms Finch pay ATB’s costs of the proceeding on an indemnity basis from 26 June 2014.
Once again, Ms Finch did not receive fair notice of the course which the Court proposed to follow. It is one thing to proceed to finalise a hearing when a party fails to appear. It is another to finalise an issue which the Court has advised the party will be reserved for future determination and on which the party has requested to be heard.
Conclusion
The effect of the three aspects of the procedure adopted which we have analysed above was to deprive Ms Finch of a fair hearing both with respect to the substance of her counterclaim and the consequential question of costs.
In our view, the matter must be remitted to another judge for rehearing. It is apparent that the trial judge formed a concluded adverse view as to Ms Finch’s credit and, in the circumstances which have arisen, it would not accord with the appearance of justice if the matter were remitted to him for further hearing.
Finally, for completeness, we note that Ms Finch sought a direction from this Court that trial counsel for ATB not be permitted to appear on any retrial. Such an order would be exceptional. A court would not interfere with a party’s choice of representation save in circumstances where it was plain that such interference was necessary to secure a fair trial or to protect the due administration of justice.[14]
[14]Grimwade v Meagher [1995] 1 VR 446.
In the present case, the point was raised without proper notice to the respondent or counsel concerned. Nor did the applicant identify either a reasonably arguable ground or an evidentiary basis for such an order. If Ms Finch wishes to take this matter further, it would first be necessary for her to give proper notice to the respondent of any proposed application, the legal basis for such application and the evidence upon which she proposed to rely. Any properly founded application should be made to the remitter judge. The jurisdiction of a court to restrain a practitioner from acting in relation to litigation arises from the inherent jurisdiction of a court to control its own processes.[15] It may well be that the issue will not arise.
[15]Ibid. Extreme Body Works Pty Ltd v Insurance Australia Group Ltd [2013] VCC 1578; Phong v Attorney-General (Cth) (2001) 114 FCR 75.
Leave to appeal should be granted and the appeal allowed. The orders of the trial judge with respect to:
(j) the counterclaim; and
(k) costs
should be set aside and the matter remitted for hearing by a different judge in accordance with law.
Having regard to the overarching purpose of the Civil Procedure Act and the history of the matter, we would also direct that:
Subject to further order by the remitter judge:
(l) the transcript of evidence given before Judge Macnamara stand as evidence upon the retrial, supplemented by the re-examination of the applicant, Ms Finch, and any evidence of Mr Bush Ndiege; and
(m) final addresses be confined to written submissions.
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