Naroth v Innovative Hair Loss Solutions Pty Ltd and Ors (No.2)
[2011] FMCA 685
•31 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAROTH v INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD & ORS (No.2) | [2011] FMCA 685 |
| PRACTICE AND PROCEDURE – Application for adjournment – prejudice to the respondents – allegation of tampering with evidence – time limit on cross-examination of remaining witnesses – points of defence and substituted points of cross claim – costs implications. |
| Federal Magistrates Act 1999 (Cth), s.60(c) Federal Magistrates Court Rules 2001 (Cth), r.15.01 |
| Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3) [2010] FMCA 250 |
| Applicant: | NANDITA RAGINI NAROTH |
| First Respondent: | INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD |
| Second Respondent: | DEREK BEST |
| Third Respondent: | DEBRA BEST |
| Fourth Respondent: | ALEXANDRA MCCLUNIE |
| File Number: | PEG 119 of 2010 |
| Judgment of: | Lucev FM |
| Hearing date: | 31 August 2011 |
| Date of Last Submission: | 31 August 2011 |
| Delivered at: | Perth |
| Delivered on: | 31 August 2011 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondents: | Mr G Dean |
| Solicitors for the Respondents: | Metaxas & Hager |
ORDERS
The Minute of Points of Defence and Proposed Substituted Points of Cross Claim stand as the Points of Defence and Substituted Points of Cross Claim, and that any further service of the document be dispensed with.
The matter be adjourned to 9:00am tomorrow.
If the applicant seeks further adjournment of the proceedings tomorrow:
(a)that adjournment must be supported by the evidence of a medical practitioner who is to attend Court and be available for cross examination by the respondents; and
(b)any application for further adjournment of the proceedings is to be made by application, including the grounds for the application by 4:00pm today.
The costs of the adjournment yesterday and today be reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 119 of 2010
| NANDITA RAGINI NAROTH |
Applicant
And
| INNOVATIVE HAIR LOSS SOLUTIONS PTY LTD |
First Respondent
| DEREK BEST |
Second Respondent
| DEBRA BEST |
Third Respondent
| ALEXANDRA MCCLUNIE |
Fourth Respondent
REASONS FOR JUDGMENT
(Ex tempore reasons revised and edited from the transcript)
Application for adjournment
The Court is sufficiently satisfied on the basis of what it has been told today by Ms Naroth that her present medical condition, including the increase in the dosage of her medication overnight, means that she is not in a position to proceed with the hearing today. Ms Naroth’s condition and the increase in her medication may well have affected her overnight, and may well have affected ongoing preparation for the hearing.
In making that determination, the Court is conscious that there has been a considerable time in which Ms Naroth ought to have – and by all accounts has – undertaken preparation, particularly for cross-examination of the witnesses. However, her state of health, such as is apparent to the Court, is of sufficient concern that the Court considers the matter ought to be adjourned to 9:00am tomorrow. Again, in making that determination, the Court has taken account of the fact that Ms Naroth has put argument in a reasonably clear and cogent manner this morning. However, given the:
a)increase in medication; and
b)events of yesterday,
the Court is not necessarily satisfied that much progress would be made today.
The Court accepts that there is practical prejudice to the respondents which might not be able to be compensated by way of costs. It is clear that, subject to any further submissions from the parties, the costs of the adjournment for yesterday afternoon and today, on a scale or on a basis yet to be determined, will have to be borne by Ms Naroth.
In adjourning to 9:00am tomorrow, the Court wishes to make it clear that it intends to proceed tomorrow unless there is evidence given by a medical practitioner that Ms Naroth is unable to properly conduct the proceedings. Such a medical practitioner must attend Court to give that evidence and will be open to cross-examination by the respondents, particularly cross-examination as to when, or if,
Ms Naroth will be in a position to properly conduct the remainder of the proceedings. If that occurs, the Court will have to make a further determination as to the future conduct of the proceedings.
Allegation of tampering with evidence
In relation to exhibit 3 and the allegation that the document has been tampered with, there is presently no cogent evidence – or indeed any evidence – before the Court which supports that allegation. In relation to such a serious allegation, the Court has made it clear that proper evidence and proper challenges as to the authenticity of exhibit 3 will need to be made before the Court in the course of any further proceedings if that allegation is to be maintained.
Time limit on cross-examination of remaining witnesses
With respect to the cross-examination of the remaining witnesses,
Dr McCarthy has been subpoenaed to attend Court at 9:00am tomorrow, and Ms Naroth will be required to cross-examine
Dr McCarthy at that time. With respect to the remaining witnesses that Ms Naroth requires for cross-examination, the Court has regard – and has had regard in making its adjournment determination – to
Ms Naroth’s statement to the Court that she will tailor her cross-examination to fit the remaining available time for which this matter is listed. In that regard, however, the Court reserves the right given to it under the Federal Magistrates Act 1999 (Cth)[1] and the Federal Magistrates Court Rules 2001 (Cth),[2] to specify a time within which cross-examination must be conducted and completed for all, or any, of those remaining witnesses required to attend for cross-examination, namely:
a)Dr McCarthy;
b)Mr Best (whose cross-examination will be ongoing at some point tomorrow);
c)Mrs Best; and
d)Ms McClunie.
[1] Section 60(c).
[2] Rule 15.01.
The Court notes that Ms Naroth has advised the Court that she no longer intends to cross-examine Mr Metaxas. Therefore, his affidavit sworn 19 November 2010 will be taken as read and tendered in evidence.
Points of Defence and Substituted Points of Cross Claim
With respect to the Minute of Points of Defence and Proposed Substituted Points of Cross Claim which was tendered in Court yesterday, having heard from Ms Naroth and Counsel for the respondents, it is clear that:
a)no further factual material will be required to be put before the Court in relation to that pleading;
b)it raises a new claim in contract which is arguable on the evidence presently before the Court; and
c)it withdraws a claim in negligence which the Court would, therefore, no longer be required to deal with.
There will, therefore, be an order that the minute stand as the Points of Defence and Substituted Points of Cross Claim, and that any further service of the document be dispensed with.
Costs implications
The Court proposes that the issue of costs, including any reserved costs and the costs of the adjournments yesterday and today, be dealt with separately at the end of the hearing following judgment. The Court does this because there are, or will be, a series of matters to be considered having regard to the outcome with respect to liability, and the applications in a case, of which there are three, but only two of which Ms Naroth now proposes to argue.
There will also be an issue to be determined as to the appropriate basis for any award or awards, as the case may be, of costs. Ordinarily, those costs would be on the Federal Magistrates Court fixed scale, and in that regard the Court refers to Pierson’s Pro-Health Pty Ltd & Ors v Silvex Nominees Pty Ltd & Anor (No.3),[3] an earlier judgment of this Court as presently constituted. But as the Court indicated earlier, this is a case in which it may be arguable that a different basis for costs ought to be imposed and, in particular, whether consideration might be given to awarding costs on the Federal Court scale or on some other basis.
[3] [2010] FMCA 250
In these circumstances, there will be an order:
a)as indicated with respect to the points of defence and substituted points of cross claim;
b)that the matter be adjourned to 9:00am tomorrow;
c)that if the applicant seeks further adjournment of the proceedings tomorrow, then that adjournment must be supported by the evidence of a medical practitioner who is to attend court and be available for cross-examination by the respondents;
d)that any application for further adjournment of the proceedings is to be made by application, including the grounds for the application, by 4:00pm today; and
e)that the costs of the adjournment yesterday and today be reserved.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Lucev FM
Date: 2 September 2011
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