Newington, Jean Edelweiss Alaine v Beneficial Finance Corp Ltd

[1998] FCA 149

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 360 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

JEAN EDELWEISS ALAINE NEWINGTON
FIRST APPELLANT

JACQUES BONNET
SECOND APPELLANT

GENMAN PTY LIMITED
THIRD APPELLANT

AND:

BENEFICIAL FINANCE CORPORATION LIMITED
RESPONDENT

JUDGE:	LINDGREN J
DATE:	24 FEBRUARY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

There is before the Court a motion brought by notice of motion filed on 17 February 1998 by which the appellants seek an order that the hearing of the appeal fixed for 5 and 6 March 1998 be vacated.  The appeal was instituted by notice of appeal filed on 12 May 1997. An amended notice of appeal was filed on 12 December 1997.  In both documents there are two grounds.  The first relates to errors allegedly committed by the trial Judge to be found in his Honour's reasons for judgment dated 30 January 1997.  The second relates to the availability of evidence additional to that which was before his Honour.

It is agreed that a Chronology document which was annexed to the written submissions of the respondent (“Beneficial”) in opposition to the motion for vacation constitutes an accurate chronology, at least in outline, of relevant events. For convenience, I annex a copy of that Chronology to these Reasons for Judgment. 

I mentioned that the trial Judge's reasons for judgment were delivered on 30 January 1997.  The underlying facts, however, go back to events in a period from 1980 to 1983.  In the proceeding below, NG 234 of 1993, the appellants sought to overcome a “verdict and judgment” in favour of Beneficial which had been entered on 27 April 1984 in this Court.  Pursuant to the Reasons for Judgment of the learned trial Judge, delivered on 30 January 1997, he made orders dismissing the appellants’ application on 22 April 1997. It is from that dismissal that the present appeal is brought.

The appeal, like the earlier events, has quite a long history as appears from the Chronology.  It is perhaps worth mentioning that since the filing of the original notice of appeal on 12 May 1997, Beneficial, through its solicitors, has requested particulars of the alleged additional evidence referred to in that notice by letters dated 13 May 1997, 2 June 1997, 13 June 1997, 26 June 1997, 1 July 1997, 11 September 1997, 19 December 1997, 3 February 1998 and 13 February 1998, all without avail, until, on 20 February 1998, there was served a copy of an affidavit which had been sworn on 23 January 1998, by Stephen John Hensby. The appellants’ solicitors have always made clear, however, that their clients may wish to lead further additional evidence on the hearing of the appeal. Counsel appearing for the appellants this morning has said that they may or may not wish also to lead evidence from a person called Wayne Maurice Dunne.

It is common ground that of the appellants, it is Ms Newington who has taken the leading and active role in relation to the litigation with Beneficial.  There are two grounds on which the vacation is sought.  One is Ms Newington's ill health, and in connection with that, a requirement that she vacate premises currently occupied by her.  The second ground is that the cost of printing the Appeal Books of some 3,000 pages amounts to $4,500 of which Ms Newington has only $4,000 at present.

In relation to this second ground, it seemed to be common ground before me that the shortfall of $500 will not pose a real problem.  With co-operation, Appeal Books can be prepared, even if some documents cannot be included in them because of the need to accommodate the printing to the limited fund of $4,000 available.  I would not grant the application on the ground of the shortfall of $500.  It is also true, of course, that lack of funds on the part of an appellant could not be allowed to delay the disposition of an appeal indefinitely.

I turn to the first ground - that of Ms Newington's health. There are annexed to her affidavit sworn 17 February 1998 in support of the motion, reports of Dr Patricia Glover dated 3 October 1997, Dr Ronald Rivett dated 8 October 1997, and a second report of Dr Glover dated 12 February 1998.  The most recent report of Dr Glover refers to Ms Newington as having experienced “serious anaphylatic [sic - anaphylactic] reaction requiring adrenalin and antihistamine resuscitations” and cortisone.  That report says that Ms Newington should be convalescent for six to eight weeks. That period would expire in April. 

There has been tendered in opposition to the medical evidence relied on by Ms Newington, a letter dated 23 February 1998 from Dr Gregory Kaufman, addressed to Beneficial’s solicitor. He has not had the benefit of examining or questioning Ms Newington but comments on anaphylactic reactions generally.  In short, he says that in his opinion, a medical condition of this kind should not prevent Ms Newington from attending at court. 

It seems to me that the important consideration is that in the nature of the appeal, it should be possible for Ms Newington's legal representatives to conduct the appeal.  In the event that instructions are necessary and she is not at court at a particular time or indeed at all, the Court's procedures are flexible enough to allow for interruptions by way of a adjournment in the course of the hearing of the appeal.  This is not to invite unnecessary applications of that kind, but is to make the point that if a genuine need were to arise, it could be accommodated.

The submissions of both parties have also referred to other matters. There is, first, the question of the additional evidence sought to be led.  The appellants do not rely upon the uncertain position as to whether further evidence will be sought to be led from Mr Dunne as supporting their application for vacation.  The question of additional evidence will be addressed on the hearing of the appeal. Beneficial submits, however, that the evidence contained in Mr Hensby’s affidavit is not relevant to any issue to be determined on the appeal, and that any evidence which Mr Dunne could possibly give would, likewise, be irrelevant to any such issue.  I have not found it necessary to deal with this submission.  As well, Beneficial relies upon what it says is the weakness of the grounds of appeal themselves, but again, I have not found it necessary to deal with the submission.

In summary, assuming in favour of the appellants that the additional evidence sought to be led can be relevant to the disposition of the appeal and that the appeal has reasonable prospects of success, I am not persuaded that the condition of Ms Newington's health, the requirement that she vacate her home, or the shortfall of $500 in the money available to the appellants to fund the printing of the Appeal Books, constitute grounds on which the hearing dates should be vacated.  I also take into account the very long period during which the disputation between the parties has been on foot.  The Chronology annexed indicates some aspects of this.  It is perhaps worth noting, however, one matter in particular. On 14 October, the appeal was, on the application of the appellants, stood out of the call-over to the call-over on 17 November. On 14 October, the Judge presiding at the call-over, Lockhart J, said “I think someone should move to have the appeal dismissed for want of prosecution”, and at the call-over on 17 November, his Honour said, “I think it should clearly be understood by the appellant that it should proceed in March.”

The appellants submit that a vacation would not prejudice Beneficial. I do not accept the submission. Lack of finality in litigation is itself a prejudice, which exists, whether the other party is a corporation or an individual.  In the result, the motion for vacation of the hearing dates will be dismissed with costs.

[Counsel for the appellants applied for leave to appeal.]

Application is made for leave to appeal from the decision that I have just given on the motion. The ground, as I understand it, is a miscarriage of discretion on the basis that I have misapprehended the medical evidence. The order of dismissal of the motion is of an interlocutory nature and leave to appeal is required.

Ordinarily, I do not hear applications for leave to appeal from decisions of my own, but it seems to me that the circumstances are unusual. There are practical considerations which, to my mind, clearly indicate that leave should be refused. There is only a short period between now and 5 March. By the time these Reasons for Decision are typed and edited and the appellants’ proposed notice of appeal is settled, there will be even less time remaining. I do not know how soon a Full Court could be constituted to hear an appeal from my interlocutory decision. It will be open to the appellants to apply for an adjournment at the commencement of the hearing on 5 March in the light of all the circumstances down to that time. It is true, as Mr Rollinson, counsel for the appellants submits, that there would probably be some saving in terms of costs and inconvenience, if an adjournment were to be granted before, rather than on, 5 March, but the saving would be small according to the proximity of the hearing of the appeal to 5 March.

The balance of convenience clearly favours a refusal of the application for leave to appeal.  I therefore decline to grant leave to appeal.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:             3 March 1998

Counsel for the Appellants:	Mr M K Rollinson
Solicitor for the Appellants:	Holman Webb
Counsel for the Respondent:	Mr M G Skinner
Solicitor for the Respondent:	Landerer & Co
Date of Hearing:	24 February 1998
Date of Judgment:	24 February 1998