MC Labour Services v Biyas Co
[2011] VCC 143
•23 February 2011 (Revised 24 February 2011)
| IN THE COUNTY COURT OF VICTORIA | Revised from |
transcript
Not Restricted
AT MELBOURNE
COMMERCIAL LIST
GENERAL DIVISION
Case No.CI-10-01101
| MC LABOUR SERVICES PTY LTD | Plaintiff |
| ABN: 14 078 417 133 | |
| v | |
| BIYAS CO PTY LTD | First defendant |
| ACN: 082 204 368 | |
| & | |
| OKTAY SECEN | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE KENNEDY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 February 2011 |
| DATE OF JUDGMENT: | 23 February 2011 (Revised 24 February 2011) |
| CASE MAY BE CITED AS: | MC Labour Services v Biyas Co & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 143 |
REASONS FOR JUDGMENT
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Catchwords: Practice and Procedure- application for adjournment by unrepresented persons on basis of medical certificate/desire to retain lawyers- application granted on basis of medical certificate
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. P. Agardy | Pryles & Co Lawyers |
| For the First Defendant | Mr O. Secen (Appearing with leave) | |
| For the Second Defendant: | Mr. O. Secen (in person) |
HER HONOUR:
1 Mr Secen (who appeared for himself and also obtained leave to appear for the first corporate defendant) has applied for an adjournment of this matter which was listed for trial today.
2 The application was made on two bases. Firstly, Mr Secen said he wanted an opportunity for a solicitor (whom he claimed to have retained) to take instructions and also retain counsel. The second basis was made pursuant to a medical certificate, which was forwarded to the court yesterday afternoon. The medical certificate certifies that Mr Secen is suffering from, "significant stress and depressive symptoms for the period 21 February 2011 to 28 February 2011 inclusive," and that he will be, "unfit to continue his usual occupation." The certificate was completed on 21 February 2011.
3 The application was opposed by Mr Agardy, of Counsel, who appeared for the plaintiff.
Background
4 This proceeding was issued on 17 March 2010. The defendants were initially represented. However, by notice, dated 24 August 2010, J.N. Martin and Partners, solicitors, ceased to act on behalf of the defendants.
5 Subsequently, by order of 5 November 2010, His Honour, Judge Ginnane vacated the trial then listed for 9 November and ordered the trial to be refixed for hearing today. I do not have any sworn evidence as to what occurred before His Honour, however, it appears that his orders vacating the November trial were consequential on, or at least related to, the withdrawal of the defendant's solicitors earlier in August.
6 In the result the matter came before me today.
Retention of a lawyer
7 In terms of the first basis for the adjournment, the defendants have now been without legal representation since August, last year. Mr Secen has thereby had ample opportunity to retain lawyers, and I am not prepared to grant an adjournment in order to give the defendants any further opportunity to retain lawyers.
8 Accordingly, the first basis for an adjournment is rejected.
Medical certificate
9 The second basis for the adjournment is the medical certificate.
10 Mr Agardy criticised the medical certificate in stating that Mr Secen would be unfit to continue his "usual occupation" rather than to attend court. He also cited a number of cases in support of his opposition. Finally, he highlighted that Mr Secen had been able to attend court notwithstanding his alleged medical condition.
11 The medical certificate is less particular than is desirable. It does, however, recite that Mr Secen is suffering from "significant stress and depressive symptoms." Further, although it only talks about fitness to continue “an occupation”, the stress and depressive symptoms cited raise concerns given the obvious stress of a courtroom. Mr Secen also confirmed that he was stressed (albeit from the Bar table) and claimed that he had experienced issues at work in the last week that had made him stressed and made him feel unable to defend the case today, or even tomorrow.
12 In terms of the authorities cited by Mr Agardy, the case of Foster v Harvey [2006] NSWSC 112 does not appear to assist the plaintiff in terms of the circumstances in the present case. Thus it appears that in Foster, there had already been previous delays due to the claimed illness. Although in this case there has been a previous adjournment, it does not appear that it was based on a claimed illness. In Foster, the defendant had also not appeared at all, which is, again, different from the present case.
13 The decision in Magjarrajv Asteron Life Ltd [2009] NSWSC 1433 is also distinguishable. Again, there was no attendance by the plaintiff in that case, and the medical certificate appeared to be in very vague terms, simply certifying for an unspecified "medical condition." As indicated already, a specific condition has been certified in the present case, namely, significant stress and depressive symptoms.
14 In terms of the suggestion that Mr Secen’s attendance weighed against an adjournment, I have had regard to the circumstances described in a file note of my associate, dated 22 February 2011 (which has been shown to both parties). That note details that the defendant did not wish to appear today but was told, (properly) that he would need to attend in person, which he has done. I am not prepared to find that he is not suffering from the claimed medical condition by reason of an attendance in those circumstances.
15 I remain concerned as to whether there is a purpose to adjourning this matter, given the medical certificate does not clearly explain how any stress will be ameliorated by an adjournment (and with this proceeding left unresolved again). However, the defendant has suggested that the work problems that have been the catalyst for the stress episode he is currently suffering have been recently resolved. He should also be aware that, consistent with the authorities cited by Mr Agardy, a court may well take a different view were he to again rely on such a medical certificate.
16 In all of the circumstances, and particularly because of the high risk of prejudice to the defendants in making Mr Secen defend this matter today (and/or tomorrow), I am, therefore prepared to grant the adjournment.
17 I will hear from the parties further as to the appropriate orders to ensure that the prejudice to the plaintiff is fairly addressed, including by way of a speedy relisting and for appropriate costs orders.
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Certificate
I certify that these 4 pages are a true copy of the reasons for decision of Her Honour Judge
Kennedy, delivered on 23 February 2011, and revised on 24 February 2011.
Dated: 24 February 2011
Sonja Mileska
Associate to Her Honour Judge Kennedy
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