New South Wales Bar Association v Stevens

[2003] NSWCA 133

CITATION:	New South Wales Bar Association v Stevens [2003] NSWCA 133
HEARING DATE(S):	27 May 2003
JUDGMENT DATE:	27 May 2003
JUDGMENT OF:	Giles JA
DECISION:	The hearing fixed to commence on Monday 2 June 2003 be vacated; I order that the opponent pay the claimant's costs of and occasioned by the adjournment, including the costs of this notice of motion.
CATCHWORDS:	Adjournment of proceedings seeking removal from Roll - default in filing affidavits - attention to filing affidavits unsatisfactory - nonetheless should be further opportunity - adjournment not opposed - undertakings not to apply for practising certificate or practice - adjournment granted. ND
PARTIES :	New South Wales Bar Association - Claimant Clarence James Stevens - Opponent
FILE NUMBER(S):	CA 41003/02
COUNSEL:	P R Garling SC - Claimant P H Greenwood - Opponent
SOLICITORS:	Hicksons - Claimant Beazley Singleton - Opponent

CA 41003/02

GILES JA

Tuesday 27 May 2003

THE NEW SOUTH WALES BAR ASSOCIATION

v

CLARENCE JAMES STEVENS

Judgment

1 HIS HONOUR: The claimant has brought proceedings seeking declarations of unprofessional misconduct and fitness to remain on the Roll of Legal Practitioners and an order that the name of the opponent be removed from the Roll of Legal Practitioners. The hearing of the proceedings has been fixed for three days commencing on Monday next.

2 By his notice of motion filed on 23 May 2003 the opponent has asked that the hearing dates be vacated. The claimant does not oppose that being done, and I will so order, but I consider that the circumstances should be explained in some detail.

3 The claimant brought its proceedings by a summons filed on 29 October 2002. The summons was returnable on 2 December 2002. On that date short minutes containing directions were handed up and, apparently by consent, the directions were given. In the short minutes it was noted that the claimant’s affidavit evidence in chief was complete, and it was directed that certain particulars be provided by 16 December 2002 and that the opponent serve any affidavit evidence on which he proposed to rely by 4 February 2003. The summons was stood over to 10 February 2003.

4 On 10 February 2003 it was noted that the opponent had not complied with the direction for service of any affidavit evidence on which he proposed to rely. The record sheet in the file has the words “R says within two weeks”, plainly enough meaning that the Court was told that the opponent would serve his affidavit evidence within two weeks. The record also includes the words “R to put on all evidence by 21/02/03”, with further words about evidence in response from the claimant by 28 February 2003. The summons was stood over to 3 March 2003.

5 The summons came before the President on 3 March 2003. Still there was default. It is not entirely clear whether a further direction was given in relation to the filing of the opponent’s affidavit evidence on that day, but it is common ground that at least it was indicated that the opponent’s own affidavit was expected to be filed within the week. An order was made that the summons be expedited, and the parties were directed to approach the Registrar to have a date fixed.

6 No doubt from that came the hearing dates commencing on Monday next, which must have been in the expectation that the opponent’s affidavit evidence in full would be filed in a timely fashion. It was not.

7 An affidavit of the opponent sworn 22 May 2003 was filed on 23 May 2003. Apart from one affidavit filed earlier, of a testimonial kind, there was no further affidavit evidence in the opponent’s case has been filed.

8 The opponent instructed different solicitors on about 12 May 2003. The new solicitor’s affidavit states that on 14 May 2003 he received two archive-sized boxes of files from the previous solicitors, being the files in these proceedings and some other proceedings concerned with cancellation of the opponent’s practising certificate. The solicitor says that upon being retained he received a draft affidavit of the opponent of some length, and an affidavit of the opponent’s wife of shorter length which he considered required further substantial work. He says that following a conference with the opponent he considered it necessary to obtain expert medical evidence, and that the opponent had been attending upon the expert who was instructed to prepare a report. Finally, he says that he considers that it will be necessary for further character evidence to be prepared and filed.

9 The opponent’s affidavit of 22 May 2003 has been filed, and the need for the further affidavit evidence is the ground for the application for adjournment: that is, evidence from the opponent’s wife, medical evidence, and further character evidence. The solicitor estimates that he requires a further four weeks to complete the opponent’s evidence.

10 This must be regarded as wholly unsatisfactory. Two explicit directions, plus an implicit need to file evidence in a timely manner even if there was not a further explicit direction, were flouted (and I use that word advisedly) by the opponent.

11 There has been read before me part of the opponent’s affidavit of 22 May 2003 in which he speaks of the difficulties he encountered in concentrating upon the preparation of his affidavit, amongst other things saying it was as if, upon entering Chambers on days which he had committed to working on the affidavit, “a fog descended and my productivity was negligible”.

12 What is left unexplained is how the assistance of the opponent’s solicitors did not enable him to escape from this fog; why the preparation of the affidavit of the opponent’s wife was not progressed; why the need for further character evidence was not recognised, or at least was not attended to, until the new solicitor came on board; and why the task of obtaining expert medical evidence was not recognised, or at least was not attended to, until the new solicitor came on board. None of these further matters would be obscured by the fog.

13 As I have said, the claimant does not oppose the adjournment of the hearing. It says that it recognises that the opponent should have the (further) opportunity of putting forward the evidence on which he wishes to rely, however unsatisfactory the past attention to his case has been. I feel constrained to agree, without any hint of condonation of the past lack of attention.

14 However, I raised with counsel for the opponent the question of the opponent practising during the period until the hearing of the summons occurs and the summons is determined. Had the summons been heard next week, there would be a good prospect of a decision by the end of June or at least not too long thereafter. The opponent presently does not have a practising certificate and cannot practise, but at least in principle he can apply for a practising certificate for the period after 30 June. I indicated to counsel for the opponent that I did not think that an adjournment should permit the opponent to apply for a practising certificate and practise until the determination of the summons. An undertaking was offered to accommodate this, and it has been noted in the transcript.

15 I order that the hearing fixed to commence on Monday 2 June 2003 be vacated. I order that the opponent pay the claimant’s costs of and occasioned by the adjournment, including the costs of this notice of motion.

(Counsel to send to Chambers draft directions.)
**********

Last Modified: 06/02/2003