Lee v The State of Western Australia

[2023] WASC 182

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LEE -v- THE STATE OF WESTERN AUSTRALIA [2023] WASC 182

CORAM:   LUNDBERG J

HEARD:   ON THE PAPERS

DELIVERED          :   31 MAY 2023

FILE NO/S:   CIV 2011 of 2022

BETWEEN:   JEFFREY STEWART LEE

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA

Defendant

FILE NO/S:   CIV 2660 of 2015

BETWEEN:   KINGSFIELD HOLDINGS PTY LTD

First Plaintiff

JEFFREY STEWART LEE

Second Plaintiff

AND

ROTTNEST ISLAND AUTHORITY

First Defendant

STATE OF WESTERN AUSTRALIA

Second Defendant

PAOLO FILLIPO AMARANTI

Third Defendant

COLIN ROWLEY BRANDIS

Fourth Defendant

FILE NO/S:   GDA 7 of 2022

BETWEEN:   JEFFREY STEWART LEE

Appellant

AND

PHARMACY BOARD OF AUSTRALIA

Respondent

FILE NO/S:   GDA 10 of 2022

BETWEEN:   JEFFREY STEWART LEE

Appellant

AND

HEALTH SUPPORT SERVICES

Respondent

Catchwords:

Practice and procedure - Late request for adjournment of listed hearing - Adjournment opposed by defendants and respondents - Inadequate explanation for adjournment - Consideration of relative prejudice and case management issues - Interests of justice favour an outcome that the question whether the bankrupt party have leave to proceed with the various proceedings pursuant to s 60(4) of the Bankruptcy Act 1966 (Cth) be determined promptly and without delay - Appropriate for the issue to be determined by the court on the papers - Turns on own facts

Legislation:

Bankruptcy Act 1966 (Cth), s 60
Rules of the Supreme Court 1971 (WA), Order 59 rule 9

Category:    B

Representation:

CIV 2011 of 2022

Counsel:

Plaintiff	:	No Appearance
Defendant	:	No Appearance

Solicitors:

Plaintiff	:	In Person
Defendant	:	State Solicitor's Office

CIV 2660 of 2015

Counsel:

First Plaintiff	:	No Appearance
Second Plaintiff	:	No Appearance
First Defendant	:	No Appearance
Second Defendant	:	No Appearance
Third Defendant	:	No Appearance
Fourth Defendant	:	No Appearance

Solicitors:

First Plaintiff	:	Jeff Lee Corporate Solicitor
Second Plaintiff	:	In Person
First Defendant	:	State Solicitor's Office
Second Defendant	:	State Solicitor's Office
Third Defendant	:	State Solicitor's Office
Fourth Defendant	:	State Solicitor's Office

GDA 7 of 2022

Counsel:

Appellant	:	No Appearance
Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
Respondent	:	Minter Ellison

GDA 10 of 2022

Counsel:

Appellant	:	No Appearance
Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
Respondent	:	State Solicitor's Office

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

AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303

Greer (1992) 62 A Crim R 442

Lee v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2023] WASCA 60

Lee v Lawfirst Pty Ltd [2023] WASCA 59

Lyster v Kemp [2010] WASC 47

Myers v Myers [1969] WAR 19

Pallett v Paul [2007] WASC 290

Re Lofthouse [2001] FCA 25; (2001) 107 FCR 151

Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204

Table of Contents

A.     Introduction and summary

B.      The adjournment application

C.     Relevant principles

D.     Disposition

Explanation for the adjournment

Prejudice

Nature of the substantive application

Conclusion

E.      Orders

LUNDBERG J:

A.     Introduction and summary

1. These reasons address the informal adjournment application made by Mr Jeffrey Stewart Lee[1] who is both a plaintiff and the appellant in four separate matters presently listed for hearing at 10.00 am on Thursday, 1 June 2023.[2]  Mr Lee is a pharmacist and a legal practitioner who represents himself in all of these proceedings.  The adjournment is opposed by the defendants and respondents to these matters, who are represented by the State Solicitor's Office and by MinterEllison.  Those parties have made submissions that the issues that have been listed for hearing can now appropriately be determined by the court on the papers, rather than having them adjourned.

   [1] The application was made by email on 29 May 2023, without any application being filed by Mr Lee and without conferral with the solicitors for the other parties.

   [2] The matters are CIV 2011 of 2022, CIV 2660 of 2015, GDA 7 of 2022 and GDA 10 of 2022.

2. All of the matters appear to have their origins in the dispute between Mr Lee and the Rottnest Island Authority concerning the lease to operate the Wellness Centre on Rottnest Island, as well as arising from Mr Lee's registration as a pharmacist.  Mr Lee and his company operated Quokka Joes Café, a pharmacy, a retreat and a hairdresser as part of the Wellness Centre.  The dispute has led to endless litigation between Mr Lee and a multitude of parties, including most particularly a large‑scale defamation action heard by Kenneth Martin J in 2015.  Mr Lee has become a significant user of the resources of this court.

3. The four matters were listed before the same Judge in order to determine an issue which is common to all matters. Specifically, the primary purpose of that particular hearing was to determine whether Mr Lee, who is presently the subject of sequestration orders, ought to have leave to proceed with his litigation pursuant to s 60(4) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act).[3]  It is common ground that Mr Lee was made subject to sequestration orders on 3 November 2022 (and each of the proceedings in question had been commenced before Mr Lee became a bankrupt).  Mr Lee's trustee in bankruptcy has expressly elected not to continue with CIV 2011 of 2022 and GDA 10 of 2022[4] and it appears, given the lapse of time, the trustee is deemed to have elected to discontinue CIV 2660 of 2015 and GDA 7 of 2022.[5]

   [3] In CIV 2011 of 2022, see the orders of Justice Tottle dated 23 February 2023 (par 3) and the orders of Justice Lundberg dated 24 May 2023 (par 3), together with the listing email from the court to the parties sent on 28 April 2023 (point 1).  In CIV 2660 of 2015, see the orders of Justice Vandongen dated 6 April 2023 in CIV 2660 of 2015 (par 7).  In GDA 7 of 2022, see the listing email from the court dated 19 April 2023 (par 2) and the orders of Justice Lundberg made on 27 April 2023.  In GDA 10 of 2022, see the orders of Justice Vandongen dated 6 April 2023 (par 2).

   [4] Affidavit of Mr Lee sworn 30 March 2023 filed in CIV 2011 of 2022, [4] and Attachment JL‑1.

   [5] Bankruptcy Act, s 60(2) and s 60(3).

4. By operation of s 60(2) Bankruptcy Act, each of the proceedings was stayed upon Mr Lee becoming a bankrupt.

5. Additionally, the first and second defendants in CIV 2660 of 2015 sought an order by way of a chamber summons dated 6 April 2023 that the plaintiffs provide security for the costs of the action (the Security for Costs Application).[6]  That Security for Costs Application was ordered to be heard on 1 June 2023 as well.  Mr Lee opposes the request for security to be provided.

   [6] The security for costs application is supported by the affidavit of Stephen John Olynyk sworn 27 April 2023.  Mr Lee has filed an affidavit in opposition, which was sworn on 10 May 2023.  The first and second defendants filed submissions in support of the application on 27 April 2023.  Mr Lee filed submissions in opposition on 12 May 2023.

6. Finally, on 24 May 2023, I ordered that Mr Lee's chamber summons dated 13 April 2023, filed in CIV 2011 of 2022 (the Restraint Application), which was filed with a certificate of urgency, be listed for directions only on 1 June 2023 at not before 10.00 am, with the intention that the directions hearing follow the substantive hearing of the plaintiff's application for leave to proceed pursuant to s 60(4) Bankruptcy Act. The determination of the issue arising under the Bankruptcy Act is the first issue which should naturally be addressed in these matters. The Restraint Application sought, amongst other things, orders that solicitors employed by the State Solicitor's Office be restrained from acting in CIV 2011 of 2022. The Restraint Application was filed without a supporting affidavit or memorandum pursuant to Order 59 rule 9 of the Rules of the Supreme Court 1971 (WA) (RSC), but sought an order that the operation of that rule be waived, and did not state the grounds for the restraint which was sought.[7]

   [7] As a result of which, the court sought clarification from Mr Lee by email on 9 May 2023, to which a response was received on 10 May 2023.  That response is difficult to follow but it ultimately appears that Mr Lee contends that the State Solicitor's Office failed to disclose matters to the court.  Mr Lee contends that those solicitors were likely to have breached their duties to the court, had a conflict of interest which might interfere with the due administration of justice, might not be able to conduct itself with proper objectivity, and should be prevented from acting in CIV 2011 of 2022 in the interests of the protection of the integrity of the judicial process and the due administration of justice including the appearance of justice.  On the presently available materials, all of these rather serious contentions rise no higher than mere conjecture or assertion.

7. For the brief reasons which follow, which have been prepared in short order given the urgency of the issue, I consider that it is in the interests of justice that the court refuse Mr Lee's application for an adjournment of the hearing, insofar as that hearing will address the issue arising under the Bankruptcy Act. Instead, I consider it appropriate that the court proceed to determine that issue on the papers, without the need for an oral hearing. I will, however, adjourn the balance of the matters which had been listed for 1 June 2023, namely the Security for Costs Application and the directions hearing listed to deal with the Restraint Application. Those additional matters can be re‑listed for hearing in due course if that remains necessary, at a time when Mr Lee is able to attend court, either in person or remotely.

B.     The adjournment application

1. By an email which was received by the court at 9.37 am on Monday, 29 May 2023, Mr Lee provided the court with a somewhat vague medical certificate.  The medical certificate is dated 29 May 2023.  The certificate states that:

   Mr Jeffrey Lee has a medical condition and will be unfit to attend court hearing from 29/05/2023 to 30/06/2023 inclusive. 

2. The certificate was signed by a medical practitioner.  Mr Lee's covering email similarly lacks explanation or detail.  The email merely states that due to a medical condition:

   I will be unable to attend court on 1 June 2023. 

3. The email received from Mr Lee did not expressly request an adjournment of the hearing.  As Mr Lee is a legal practitioner, I infer he would be well aware of the correct approach to follow in order to seek an adjournment and the need to properly justify such a request.  Nonetheless, despite the lack of an express request for an adjournment, and in fairness to Mr Lee, I proceeded on the basis that Mr Lee's email and attached certificate constituted an informal application to adjourn the hearing of all of the matters presently listed for 1 June 2023.[8] 

   [8] Mr Lee's email was not marked with any of the court reference numbers, but was sent to the parties in each of the proceedings.

4. In response, I directed my associate to communicate with the parties in the following terms:

   Your email and the medical certificate have been drawn to the attention of his Honour.  Having regard to the terms of the email and the attached certificate, his Honour has directed that I respond to you as follows:

   First, it is not clear from the email and attached certificate whether you are unable to attend the hearing on Thursday by way of remote technology (either audio or video).  Subject to the views of the parties, the court is prepared to accommodate your attendance by way of either audio or video link.  Can you please urgently confirm your position in this regard.

   Second, in the event your application is to vacate the listed hearing date and adjourn the matters, it is insufficient to merely provide a medical certificate in the manner you have.  In the circumstances, and in fairness to all parties, the application for an adjournment must be supported by an affidavit.  Once that affidavit is provided, the respondents and defendants to the matters will be asked to confirm whether the application is opposed and the bases therefor.  

   His Honour therefore proposes to direct as follows, subject to your response to the first issue above (and will make orders in these terms in each matter):

   1.By no later than 10.00am on Tuesday, 30 May 2023, the plaintiff shall file and serve an affidavit in support of his application for an adjournment of the hearing (Application).

   2.By no later than 3.00pm on Tuesday, 30 May 2023, the defendants shall inform the court and the plaintiff by email as to whether the Application is opposed and file and serve any materials in opposition.

   3.The plaintiff's Application be urgently determined by the court on the papers without the need for an oral hearing (to be determined by no later than 10.00am on Wednesday, 31 May 2023).

   4.The costs of the Application be reserved.[9]

   [9] Email from Associate to the parties sent at 3.35 pm Monday, 29 May 2023.

5. On 30 May 2023, I made orders substantially in the terms set out in the email referred to above.

6. Mr Lee duly filed an affidavit in support of his request to vacate the listed hearing.  That single‑page affidavit was sworn on 30 May 2023.  Within the affidavit, Mr Lee relevantly deposes that he consulted his doctor from The Walk‑In GP on 29 May 2023 as he was feeling unwell, and his doctor provided him with a medical certificate.  Further, Mr Lee deposes that:

   Due to my condition my doctor was of the view that I cannot attend court personally or remotely.[10]

   [10] Affidavit of Jeffrey Stewart Lee sworn 30 May 2023, [4].  I note the medical certificate supplied by Mr Lee does not expressly address the question whether Mr Lee's medical condition prevents him from attending the hearing remotely.

7. The affidavit contains no additional evidentiary material in support of the adjournment application.

8. I directed my associate to enquire of the parties whether the hearing could proceed on the papers, without the need for an oral hearing. This option presented as potentially viable in the current circumstances as the issues for determination are legal questions, no witnesses were intended to be called by any of the parties, and the parties had already filed comprehensive submissions on the Bankruptcy Act issue and in relation to the security for costs application.[11]

   [11] The materials filed by the parties in each matter are identified in Attachment A to these reasons.

9. The solicitors for the respondent in GDA 7 of 2022 (which is the Pharmacy Board of Australia) informed the court on 30 May 2023 that it was content for the Bankruptcy Act issue to be determined on the papers without the need for an oral hearing. The solicitors for the defendants and the respondent in the other matters filed brief submissions to the effect that the hearing of the matters could proceed on the papers on 1 June 2023 but in any event, they opposed the vacation and adjournment of the hearing.[12]

   [12] Defendant's submissions in CIV 2011 of 2022 dated 30 May 2023.  The solicitors for the respondent in GDA 7 of 2022 have indicated by email that they adopt [1] ‑ [13] of those submissions.

10. On 30 May 2023, it became apparent that Mr Lee had filed appeals to the Court of Appeal in GDA 7 of 2022 and GDA 10 of 2022 (being CACV 59 of 2023 and CACV 58 of 2023), against the order made by the court on 30 May 2023 that Mr Lee's application for an adjournment be determined on the papers by no later than 10.00 am on 31 May 2023.  Mr Lee also initiated an appeal on 25 May 2023 in CIV 2011 of 2022 (being CACV 56 of 2023) against the orders made by the court on 24 May 2023 to decline to urgently list the Restraint Application and to list that application for a directions hearing on 1 June 2023.  I understand Mr Lee's appeal in relation to CIV 2011 of 2022 has been listed before the Court of Appeal at 2.15 pm today.

11. During the evening of 30 May 2023 (at 8.08 pm and 8.56 pm), the court received two sets of written submissions from Mr Lee in support of the adjournment.  In those submissions, Mr Lee relevantly asserted that:

    (a)there was no prejudice to the parties in awaiting the outcome of the appeal notices;

    (b)he has not appealed the orders in CIV 2660 of 2015;

    (c)he has been unable to pursue his applications for interim orders until the respondent parties accept service of the notices;

    (d)he urged the court to decline to consider the submissions filed by the State Solicitor's Office and MinterEllison as they were filed out of time;[13] and

    (e)he asked the court to note that the 'broad nature of [his] medical condition is mental health issues and a virus' and noted that his medical practitioner could provide further details.

    [13] I should say I reject this submission.  The submissions filed by the State were received in adequate time to allow the court to consider them, in the context of a speedy timetable set by the court on 29 May 2023 to permit the issues to be addressed.  In any event, it appears Mr Lee has been able to review the submissions and meaningfully comment upon them.

12. In the circumstances, the court is required to consider, in exercising its discretion, the two competing outcomes proposed by the parties to these proceedings.  First, whether to accede to Mr Lee's adjournment application and re‑list the matter for a date in July or August 2023 (or perhaps later, depending on the availability of the parties).  Second, in the alternative, whether to dismiss Mr Lee's adjournment application and to proceed with the hearing on the papers (as is sought by the defendants and respondents).  To be clear, I do not consider it would be an appropriate outcome to proceed with an oral hearing in the absence of Mr Lee.

C.     Relevant principles

1. Adjournments are not simply available for the asking, whether in civil or criminal proceedings.  The orderly disposal of the work of the court is undermined when hearings are adjourned unnecessarily:  Myers v Myers [1969] WAR 19, 21 (Jackson J); Pallett v Paul [2007] WASC 290 [52] ‑ [55] (Hasluck J); Lyster v Kemp [2010] WASC 47 [54] ‑ [56] (Beech J); and Greer (1992) 62 A Crim R 442, 448 (Kirby P).

2. As Hasluck J explained in a criminal law context in Pallett v Paul, to grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made.  Where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other party.

3. We are not presently dealing with an application to adjourn matters on the criminal side of the court's jurisdiction. A number of additional issues arise for consideration in requests for the adjournment of matters in the criminal jurisdiction. The four matters listed before me are either civil proceedings in the original jurisdiction of the court (in the case of CIV 2011 of 2022 and CIV 2660 of 2015) or appeals brought pursuant to Order 65 of the Rules of the Supreme Court 1971 (WA) (in the case of GDA 7 of 2022 and GDA 10 of 2022). Self‑evidently, case management considerations must be considered in dealing with an adjournment application in these contexts. The court should have a clear focus on the overriding objectives as stated in Order 1 rules 4A and 4B RSC. The just determination of cases, efficiency and expedition, and proportionality are key focal points in this analysis.

1. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 [56], the High Court observed that:

   The evident intention and the expectation of the CPA [which relevantly contains objectives equivalent to Order 1 rules 4A and 4B] is that the court use these broad powers to facilitate the overriding purpose.  Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court.  It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose.

2. I should also make reference to the earlier analysis of the High Court in AON Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. In essence, AON Risk Services makes it clear that it is wrong, in principle, to approach a late application to amend pleadings on the basis of an entitlement to amend (similarly with an application for adjournment of proceedings), subject to payment of costs by way of compensation to the plaintiff.

3. Finally, and most relevantly for present purposes, the Court of Appeal in Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204 (Beech and Vaughan JJA) opined that (footnotes omitted):

   The court has an inherent power to grant or refuse an adjournment of proceedings.  The power involves the exercise of a judicial discretion. The exercise of the discretion will be informed by the goal and objects in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) and proper principles of case management as enunciated in AON Risk Services Australia Ltd v Australian National University.  Insofar as the time of the court is a publicly funded resource, inefficiencies in the use of that resource arising from the vacation or adjournment of hearings is properly taken into account in the exercise of the discretion.  The public interest in the efficient use of court resources is a relevant consideration in the exercise of the discretion to adjourn.[14]

   [14] Snook [29] (Beech and Vaughan JJA).

D.     Disposition

Explanation for the adjournment

1. The first logical issue to address in dealing with this application is the reason proffered by Mr Lee for the adjournment.  The sole basis for the requested adjournment is Mr Lee's medical condition.  The information adduced by Mr Lee on affidavit is that he has a medical condition which precludes him attending at court, either in person or remotely.  The medical practitioner who assessed him has indicated that Mr Lee's medical condition will preclude him from appearing in court for the next month, through until 1 July 2023, in effect. 

2. The explanation provided by Mr Lee is vague at best.  The unsworn clarification offered by Mr Lee in his submissions filed on the evening of 30 May 2023 gives some additional content to the explanation (that the 'broad nature' of his condition concerns 'mental health issues and a virus' and asserts that his medical practitioner can provide further details). 

3. This rather perfunctory approach by Mr Lee to his own adjournment application, by which additional information is drip fed to the court and the opposing parties, is not acceptable and leaves me with the distinct impression that Mr Lee regards an adjournment of these matters as available when necessary to suit his circumstances.  An adjournment request is not a process by which a litigant, and certainly not a legal practitioner, places the onus on the court to probe in order to seek further information in support of the litigant's own application.

4. The solicitors for the defendant in CIV 2011 of 2022 have submitted that little weight should be afforded to Mr Lee's explanation and supporting affidavit.  I respectfully agree. 

5. I reasonably anticipate that a medical certificate which seeks to support a person's inability to attend court, either in person or remotely, for a period of one month would contain far greater detail as to the medical condition concerned and the seriousness of the health issue.  On the affidavit adduced by Mr Lee, the court is left to speculate on these matters. 

6. Further, it is significant that Mr Lee's affidavit deals only with the medical condition he says he is suffering - this is the sole basis for the request.  No additional detail has been included in the affidavit to explain or persuade the court as to why the adjournment of the scheduled hearing is warranted. 

7. While I do not discount the impact and strain of personal litigation on the person conducting the litigation, being Mr Lee in this case, and I note his unsworn comment that his medical condition broadly concerns mental health issues, the material adduced by Mr Lee to support the adjournment request is simply unsatisfactory and inadequate.  For example, it is unclear to me whether the primary explanation is a mental health issue, or whether it is the unnamed virus.  The medical certificate, said to support Mr Lee's absence for a month, is insufficient and provides no insight into these issues. 

Prejudice

1. Next, it is relevant to consider the prejudice which may be suffered by Mr Lee in having these matters determined on the papers, without him having an opportunity to orally address the court.  I accept that an oral hearing allows a party an opportunity to amplify or clarify written submissions, to respond to questions from the court, as well as to directly address issues which may be of concern to the judicial officer hearing the matter. 

2. The benefits of such an oral hearing will naturally depend on the nature of the issues that require ventilation at the hearing and whether the parties have had an opportunity to file fulsome submissions and supporting materials, or merely outlines of argument.

3. Of course, if the court considers it appropriate to have the matter determined on the papers, the likely prejudice (if any) to the parties arising from the absence of an oral hearing will fall evenly across all parties.

4. My assessment of the submissions and materials which have been filed and served by the parties during April and May 2023 is that all parties have had a comprehensive opportunity to outline their arguments on the key issues for determination. The submissions focus on the construction and scope of the relevant provisions of the Bankruptcy Act, and analyse the numerous decisions on the issue, particularly as to the scope of the phrase 'any personal injury or wrong done to the bankrupt'.

5. Allied to the above issue, I note the issue before the court concerning the scope of s 60 Bankruptcy Act has recently been addressed by the Court of Appeal in two decisions concerning Mr Lee. I refer to Lee v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2023] WASCA 60 (Murphy and Vaughan JJA) and Lee v Lawfirst Pty Ltd [2023] WASCA 59 (Murphy and Vaughan JJA). The court will thus have the additional benefit of recent analysis of s 60 of the Bankruptcy Act by an intermediate appellate court. These matters weigh in favour of an outcome whereby the court determines the issue on the papers.

6. Further, I should have regard to the prejudice which may be suffered by the defendants and respondents to these matters in the event the hearing is adjourned for some months. 

7. As I perceive it, amongst the prejudice likely to be suffered by these parties is the overall delay in the proceedings but, more importantly, in my view, there is the impact of additional costs to those parties by having the hearing adjourned to a further date.  I can readily infer that the shifting of a court hearing date to a later date (as a result of a late adjournment application) will involve additional inconvenience to the parties and a likely increase in their legal costs.  Given Mr Lee is presently an undischarged bankrupt, he is likely to be unable to satisfy any substantial costs orders made against him in favour of the defendants/respondents.  There is real and compounding prejudice to the defendants/respondents in deferring this issue to a later hearing, which will require their solicitors to freshly prepare for that adjourned hearing.

8. There is also a prejudice to the court occasioned by an adjournment such as the present.  That is to say, there is a public interest in the efficient use of the court's limited resources.  I agree with the defendants/respondents that this is a relevant issue in assessing the adjournment application.  The court should be astute to ensure that its limited resources are not wasted by reason of late adjournment applications and recognise that the inefficient use of the court's time has an indirect effect on other litigants seeking to avail themselves of the court's facilities and processes.

9. My assessment is that an adjournment of the listed hearing would occasion significant prejudice to the defendants and respondents by reason of the delay and additional costs, and also prejudice to the court by reason of the inefficient use of the court's resources.  The prejudice which arises in these respects outweighs any particular prejudice to Mr Lee by reason of a denial of an oral hearing (bearing in mind that the prejudice arising from the absence of an oral hearing impacts all parties equally).

Nature of the substantive application

1. A further relevant factor is the nature and importance of the application which is to be addressed by the court on 1 June 2023, or instead on the papers.  The issue arises because of Mr Lee's bankruptcy.  If Mr Lee is incorrect, and his arguments are not accepted by the court on this issue, it would follow that each of the proceedings should remain stayed. 

2. My preliminary assessment is that the arguments gathered together by Mr Lee are far from strong and it can fairly be said at present that the contentions advanced by the State Solicitor's Office and MinterEllison are at least reasonably arguable.  I emphasise that this remains a preliminary assessment, not a final determination.

3. I accept that the determination of Mr Lee's applications for leave to continue with the proceedings, notwithstanding his bankruptcy, is an important question from his perspective.  It will directly impact his ability to advance each of these proceedings.  An adverse decision for Mr Lee will mean that the proceedings remain stayed, in effect.

4. Equally, the issue is one of importance to the parties defending the proceedings and the creditors of Mr Lee's estate generally. The provision of the Bankruptcy Act in question, s 60, is directed towards the protection of the bankrupt's creditors, by preventing the unnecessary dissipation of the assets of the estate in fruitless litigation. This provision also has the purpose of protecting a defendant or other party to a pending proceeding in that, should those parties succeed in the litigation and obtain an order as to costs against the bankrupt litigant, the order will be effectively unenforceable by reason of the person's bankruptcy: Re Lofthouse [2001] FCA 25; (2001) 107 FCR 151 [18] ‑ [20] (Gray J).

5. In my view, the question whether Mr Lee is permitted to proceed with these proceedings is an important one, and should be addressed promptly and as the next substantive matter in the proceedings, given its potential impact on these proceedings.  The determination of this issue in each of the proceedings is on the critical path of these proceedings and should now be resolved by the court so the parties fully understand the status of the proceedings following on from Mr Lee's sequestration order.

Conclusion

1. Weighing all of these matters in the balance, including the insubstantial basis for the adjournment application itself, I am of the view that the court's discretion is best exercised in the circumstances by refusing the adjournment. It is not appropriate that the important issue arising under the Bankruptcy Act, which impacts whether the proceedings should remain stayed or whether Mr Lee may continue with them, be held over. It should be determined promptly, in fairness to all parties. The hearing scheduled for 1 June 2023 was listed to enable this to occur.

2. In my view, as Mr Lee has indicated he cannot attend the hearing on 1 June 2023 (either in person or remotely), the hearing of the Bankruptcy Act issue should now be determined on the papers. The court has received comprehensive submissions from all parties on the issue, and has the benefit of two recent decisions of the Court of Appeal (in which Mr Lee was involved).

3. The Security for Costs Application and the Restraint Application are not of such a nature that, in my view, they are required to be heard as promptly as the Bankruptcy Act issue, or that directions need to immediately be made in relation to those applications. I consider both applications may be adjourned until Mr Lee is next available to address the court.

4. The above approach will minimise the prejudice to the parties, ensure that any prejudice falls evenly on the parties, and will facilitate the timely disposition of an important issue in this litigation.  The timely disposal of this issue will benefit the parties to the present matters and, in terms of the efficient use of the court's resources generally, is in the interests of all litigants.

5. I propose to determine the issue arising under the Bankruptcy Act (which was due to be heard on 1 June 2023), and deliver my reasons on that issue, prior to 30 June 2023.

E.     Orders

1. I will make the following orders in CIV 2011 of 2022:

   1.The plaintiff's application for an adjournment of the hearing listed for 1 June 2023 is dismissed, save as to the matter dealt with in order 4 below.

   2.The plaintiff's application for leave to proceed with the action pursuant to s 60(4) of the Bankruptcy Act 1966 (Cth) be heard and determined on the papers and the hearing listed for 1 June 2023 be vacated.

   3.The defendant's costs of the adjournment application be paid by the plaintiff in any event, such costs to be taxed if not agreed.

   4.The directions hearing listed for 1 June 2023 in respect of the plaintiff's chambers summons dated 13 April 2023 (Folio 27) be adjourned sine die.

   5.The parties are directed to provide their unavailable dates to the court to facilitate the re‑listing of the chamber summons dated 13 April 2023 (Folio 27).

2. In CIV 2660 of 2015, I will order that:

   1.The plaintiffs' application for an adjournment of the hearing listed for 1 June 2023 is dismissed, save as to the matter dealt with in order 4 below.

   2.The plaintiffs' application for leave to proceed with the action pursuant to s 60(4) of the Bankruptcy Act 1966 (Cth) be heard and determined on the papers and the hearing listed for 1 June 2023 be vacated.

   3.The defendants' costs of the adjournment application be paid by the plaintiffs in any event, such costs to be taxed if not agreed.

   4.The hearing listed for 1 June 2023 in respect of the first and second defendants' security for costs application dated 6 April 2023 (Folio 103) be adjourned sine die.

   5.The parties are directed to provide their unavailable dates to the court to facilitate the re‑listing of the chamber summons dated 6 April 2023 (Folio 103).

3. In GDA 7 of 2022, I will also order that:

   1.The appellant's application for an adjournment of the hearing listed for 1 June 2023 is dismissed.

   2.The appellant's application for leave to proceed with the appeal pursuant to s 60(4) of the Bankruptcy Act 1966 (Cth) be heard and determined on the papers and the hearing listed for 1 June 2023 be vacated.

   3.The respondent's costs of the adjournment application be paid by the appellant in any event, such costs to be taxed if not agreed.

1. In GDA 10 of 2022, I will order that:

   1.The appellant's application for an adjournment of the hearing listed for 1 June 2023 is dismissed.

   2.The appellant's application for leave to proceed with the appeal pursuant to s 60(4) of the Bankruptcy Act 1966 (Cth) be heard and determined on the papers and the hearing listed for 1 June 2023 be vacated.

   3.The respondent's costs of the adjournment application be paid by the appellant in any event, such costs to be taxed if not agreed.

ATTACHMENT A
MATERIALS FILED BY THE PARTIES IN RELATION TO THE BANKRUPTCY ACT ISSUE

Matter	Summary	Submissions and Affidavits
CIV 2011 of 2022 Jeffrey Stewart Lee v. The State of Western Australia	This proceeding was brought pursuant to Order 26A rule 4 RSC seeking pre-action discovery from the Department of Justice.	§  Mr Lee filed an outline of submissions dated 5 April 2023 (16 pages). §  The respondent filed an outline of submissions dated 12 April 2023 (10 pages). §  Mr Lee filed an affidavit sworn by him on sworn 30 March 2023 (1,026 pages with 53 attachments).
CIV 2660 of 2015 Kingsfield Holdings Pty Ltd and Jeffrey Stewart Lee v. Rottnest Island Authority and The State of Western Australia and others	This action was commenced by writ and seeks damages for misleading or deceptive conduct and misfeasance against the defendants.	§  Mr Lee filed an outline of submissions dated 27 April 2023 (7 pages). §  The respondent filed an outline of submissions dated 11 May 2023 (10 pages). §  Mr Lee filed a further outline of submissions dated 18 May 2023 (4 pages). §  Mr Lee filed an affidavit sworn by him on 27 March 2023 (6 pages with 2 attachments).
GDA 7 of 2022 Jeffrey Stewart Lee v. Pharmacy Board of Australia	This is an appeal from orders made in the State Administrative Tribunal which dismissed Mr Lee's application for an extension of time to make a costs application and ordered Mr Lee to pay certain costs of the respondent.	§  Mr Lee filed an outline of submissions dated 8 May 2023 (11 pages). §  The respondent filed an outline of submissions dated 8 May 2023 (8 pages). §  Mr Lee filed a further outline of submissions dated 22 May 2023 (4 pages). §  The respondent filed an outline of submissions in reply dated 22 May 2023 (5 pages). §  Mr Lee filed an affidavit sworn by him on 1 May 2023 (1,174 pages with 55 attachments). §  Mr Lee filed an affidavit sworn by him on 22 May 2023 (320 pages with 7 attachments).
GDA 10 of 2022 Jeffrey Stewart Lee v. Health Support Services	This is an appeal against a decision of the Information Commissioner to dismiss the appellant's complaint on the basis that it lacked substance	§  Mr Lee filed an outline of submissions dated 21 March 2023 (18 pages). §  The respondent filed an outline of submissions dated 5 April 2023 (23 pages). §  Mr Lee filed an affidavit sworn by him on 21 March 2023 (1,026 pages with 53 attachments).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

IHN

Associate to the Honourable Justice Lundberg

31 MAY 2023