Mahaffy v Mahaffy

[2017] NSWCA 199

Court of Appeal
Supreme Court

New South Wales

Case Name:	Mahaffy v Mahaffy
Medium Neutral Citation:	[2017] NSWCA 199
Hearing Date(s):	On the papers
Date of Orders:	9 August 2017
Decision Date:	9 August 2017
Before:	Simpson JA; Payne JA; Emmett AJA
Decision:	Refuse the application to adjourn the hearing of 15 August 2017
Catchwords:	CONTEMPT – practice and procedure – application for adjournment
Category:	Procedural and other rulings
Parties:	David Mahaffy (Applicant) Jeffrey Mahaffy (Respondent) Attorney-General of New South Wales (Amicus curiae)
Representation:	Counsel: In person (Applicant) In person (Respondent) D Kell SC (Amicus curiae)   Solicitors: Not applicable (Applicant) Not applicable (Respondent) New South Wales Crown Solicitor (Amicus curiae)
File Number(s):	2016/234880
Decision under appeal:
Court or Tribunal:	Supreme Court
Jurisdiction:	Common Law
Citation:	D B Mahaffy & Associates v Mahaffy [2015] NSWSC 66; D B Mahaffy & Associates v Mahaffy [2015] NSWSC 1959
Date of Decision:	16 February 2015; 18 December 2015
Before:	Schmidt J
File Number(s):	2010/119143

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

1. THE COURT: On 16 February 2015 the appellant, David Mahaffy, was found guilty of 8 counts of contempt. He was sentenced to imprisonment for 10 months. On 10 August 2016 he filed an appeal, limited to the sentence imposed. He served 7 months and 12 days before being released on bail on 28 July 2016.

2. The sentence appeal came on for hearing on 7 April 2017. The appellant was then represented by counsel. The respondent, Mr Jeffery Mahaffy, was unrepresented. Accordingly, in order to assist the Court, the Crown Advocate, Dr Kell, appeared as amicus curiae. The appellant’s counsel sought leave to amend the notice of appeal by challenging the findings of guilt. Leave was granted, necessitating an adjournment.

3. The appeal was fixed for further hearing on 23 May. Directions were given for the filing of written submissions. Through no fault of the appellant, the submissions were not filed within the time specified. It was necessary further to adjourn the hearing of the appeal. It was further fixed for hearing on 24 July.

4. The hearing resumed on 24 July. The appellant was represented by counsel. Dr Kell again appeared as amicus. Written submissions were provided, both on behalf of the appellant, and by Dr Kell. Although the submissions on behalf of the appellant were completed, it was not possible to complete the submissions of the respondent, Mr Jeffery Mahaffy. Further hearing was fixed for 15 August 2017. All that remains is for Mr Jeffery Mahaffy to complete his submissions, for Dr Kell to advance any matters that might assist the Court, and for the appellant to reply.

5. During the afternoon of 8 August, by email, the appellant sought further adjournment, for at least 6 weeks. He gave a number of reasons for the adjournment sought. He said that he is no longer legally represented, and is not in a position to pay for representation, but has prospects of being granted legal aid. Nor is he financially in a position to travel to Sydney for the hearing, or to pay for accommodation (the appellant lives in north-west NSW).

6. The appellant complained that his former lawyers had not taken what he considered to be appropriate steps to prepare the appeal for hearing. The steps to which he referred included filing subpoenas, issuing notices to produce and making available a 1000 page costs assessment. He asserted that this information was “critical” for the appeal.

7. He also asserted – without specification – that the respondent had been the cause of earlier adjournments.

8. The issue of additional documents can be put to one side. The appeal is an appeal in its true sense, to be decided on the material before the primary judge. It is only in most unusual circumstances that that material would be permitted to be supplemented, and the appellant has given no hint of any basis on which that would be permitted in this case.

9. It is true that there has been a history of delay in this matter, some of which, no doubt, may be attributed to the respondent. But that is no reason further to delay completion of an appeal in which the principal submissions for the appellant are in writing, and have been fully supplemented by oral submissions.

10. The prospect of a grant of legal aid is of little significance in light of the stage the appeal has reached.

11. The inability of the appellant to attend is a matter that must be given weight, particularly in light of his unrepresented status. However, he has in the past appeared by telephone, and arrangements can be made for that to happen again. This is a matter that must be brought to a conclusion.

12. The application for adjournment is refused.

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