Johnston v Morien - [2007] WADC 224

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: JOHNSTON -v- MORIEN & ORS [2007] WADC 224

CORAM: PRINCIPAL REGISTRAR GETHING

HEARD: 13 DECEMBER 2007

DELIVERED : Delivered Extemporaneously on 13 DECEMBER 2007 typed from tape and edited by Trial Judge

FILE NO/S: CIV 2028 of 2005

BETWEEN: DERRAN CHARMAINE JOHNSTON
Plaintiff
AND
NEIL EDOUARD MORIEN
First Defendant
BOAB FINANCE ACCOUNTING PTY LTD
Second Defendant
PROPERTY SERVICES INVESTMENTS PTY LTD
Third Defendant

Catchwords:

Application to vacate trial - Litigant in person

Legislation:

Nil

Result:

Trial date vacated and re-listed

Representation:

Counsel:

Plaintiff:     Mr B G Grubb
First Defendant             :     In person
Second Defendant         :     No appearance
Third Defendant           :     No appearance

Solicitors:

Plaintiff:     A Metaxas & Co
First Defendant             :     Not applicable
Second Defendant         :     Williams & Co
Third Defendant           :     Maxim Litigation Consultants

Case(s) referred to in judgment(s):

Nil

PRINCIPAL REGISTRAR GETHING: The first defendant, Mr Morien, has applied to vacate the trial dates in this action currently listed for 4 February 2008. The first defendant in his application also raises a number of issues about some documents filed by the plaintiff. I propose to leave those specific queries for a later occasion but take into account the submissions made by both parties as to whether or not any non‑compliance is such that it would prejudice the first defendant to the extent that the trial dates should be vacated.
The legal principle underlying this judgment is the question of where the interests of justice lie. In this judgment what I am seeking to do is balance the risk of injustice to the plaintiff and to the first defendant. The obvious risk of injustice to the plaintiff is that her trial date is once again delayed. I say once again because this action was listed for trial in December 2006. That trial was vacated. It is true that the trial was vacated on the application of the plaintiff; however, it was vacated in the context of Mr Morien's medical evidence. Mr Morien again asserts that his medical condition is not up to preparing for trial. This position is largely the same as existed when this trial was vacated in December 2006.
The risk of prejudice to Mr Morien is, firstly, that he won't be able to prepare his case properly and, secondly, that the continuing conduct of this litigation leading to a trial in February will have significant adverse consequences to his mental state of health.
In analysing the submissions it seems to me to be useful to list the reasons to vacate and reasons not to vacate before undertaking a balancing exercise. The principal reason that the first defendant seeks to have the trial vacated is because of his current medical state. In this regard he has filed an affidavit sworn 12 December. I should note at this point that the plaintiff was offered the opportunity to have this application adjourned and file an affidavit in response but chose to press on with the application on the materials that are currently before the court.
One critical problem with the first defendant's affidavit is that the significant psychiatric reports relied on by Dr Peter Hoffman are dated 2 November 2006 and 12 June 2006. There is then a letter from someone who perhaps appears to be Mr Morien's general practitioner from Mead Medical dated 16 October 2006. The sum total of the current medical evidence is a three‑paragraph letter from Dr Michael Hagan. Dr Hagan recites the fact that Mr Morien has a long psychiatric history and includes the following terms, and I quote:
"Because of his psychiatric conditions he has difficulty processing and completing requirements for his legal proceedings. As a consequence he has experienced a worsening of his symptoms and has become increasingly anxious and depressed."
In his affidavit Mr Morien deposes to the difficulties he has in processing information and in particular dealing with matters efficiently, a point reiterated in oral submissions before me. The primary argument that this trial should be vacated is thus on the basis of Mr Morien's mental condition.
The consequence of this has a number of dimensions. The first is that Mr Morien was able to express no confidence that he would be well enough to turn up at the trial of the action. Secondly, I can summarise his submissions in saying that the effect of the illness is an inability to prepare his case at its strongest.
In terms of the reasons not to vacate the trial, this again has a number of dimensions. The first one is that as I have mentioned this trial has already been vacated once in December 2006. The second is that this trial was listed in July 2007, therefore Mr Morien has had ample notice of the fact that there was a trial coming up in February 2008.
The third is that it is apparent from the submissions made to me and from Mr Morien's affidavit, that he does have the capacity to engage lawyers. He has engaged lawyers in relation to a number of other proceedings in the Supreme Court. This tells me two things: firstly, that he has the mental capacity to engage lawyers and, secondly, he has the financial ability to engage lawyers. I am not provided with an adequate explanation as to why he has not sought or chosen to engage lawyers on his behalf in this action.
In terms of the evidence of financial ability to engage lawyers on this point, there is in Mr Morien's affidavit evidence of the impact on his earning capacity of his depressive illness. However, there is no evidence before me of his asset position and as I have mentioned, there is evidence that he has engaged lawyers in relation to a number of other matters. From this I can only conclude that he does have the capacity to engage lawyers in relation to this action if he chose to do so.
The fourth reason goes to whether or not the documents filed by the plaintiff to date are sufficiently deficient for Mr Morien to be prejudiced in his ability to undertake this matter for trial. At this stage I am not going to go through each document in detail but rather make this observation. In an order I made on 30 July (at the same time as I listed this action for trial) I directed that any further interlocutory applications be filed and served by 17 September 2007. I then listed the action for a callover on 24 September to hear any application so filed. No applications were filed on behalf of Mr Morien within the time period allowed. To the extent that the first defendant might have wanted for the purposes of trial preparation to secure particulars of damages or secure a Scott schedule or secure orders in relation to witness statements, that opportunity was given and a period of some seven weeks was allowed for that opportunity to have taken place.
I then move to the balancing exercise. One important fact in the balancing exercise is the background of the bankruptcy proceedings in the Federal Magistrates Court. My understanding of those proceedings from Mr Morien's affidavit and submissions is that a decision on an application to set aside a bankruptcy notice is due to be handed down on Monday, 17 December. Mr Grubb has made it very clear that if the application is successful and the notice is set aside, he has instructions to issue a fresh bankruptcy notice.
The issue of whether or not these proceedings should be stayed effectively pending the disposition of the bankruptcy proceedings was dealt with when the matter was listed for trial in July 2007. On that occasion the plaintiff, notwithstanding the bankruptcy application, pressed for trial dates, and that of course is the plaintiff's right.
It seems to be in terms of a balancing exercise that the appropriate balance is struck by doing two things: firstly, vacating the trial due to commence on 4 February 2008 but, secondly, only doing so to the extent of granting a short further period of time for Mr Morien to make arrangements to prepare and present his case at its fullest.
Looking at the court's trial listing information, the court could accommodate the parties again for an eight‑day trial commencing on 21 April 2008. There was some issue in submissions as to whether or not this trial will take eight days. It is reasonably apparent from the submissions and the conduct today that there is probably no goodwill between the parties. That means that it is unlikely that there is going to be significant amounts of concessions in terms of the information that goes to the trial Judge. On that basis, experience would say err on the side of a longer trial rather than a shorter trial.
In making the trial order I am conscious that I have not taken on board the unavailable dates of Mr Grubb and counsel for the plaintiff. I am prepared to give the plaintiff liberty to apply in relation to the dates of the trial listing in case there is a clash of dates for counsel which would cause the plaintiff particular prejudice. I can also act to minimise any prejudice to the plaintiff by directing that the existing hearing fees get transferred over to the re‑listed trial.
There then remains the question of the first defendant's compliance with the trial listing rules. What I propose to do there is to reset the defendant's timetable and to provide a structure within which any specific issues relating to trial preparation can be raised by the parties.