Registrar, Supreme Court of Norfolk Island v Walsh (No 3)

[2017] NFSC 4

SUPREME COURT OF NORFOLK ISLAND

Registrar, Supreme Court of Norfolk Island v Walsh (No 3) [2017] NFSC 4

File number:	SC 2 of 2016
Judge:	GILMOUR  J
Date of judgment:	7 September 2017
Catchwords:	PRACTICE AND PROCEDURE – application for adjournment of trial hearing – held: application dismissed
Cases cited:	Registrar, Supreme Court of Norfolk Island v Walsh (No 2) [2017] NFSC 2
Date of hearing:	31 August 2017
Registry:	Norfolk Island
Category:	Catchwords
Number of paragraphs:	15
Counsel for the Applicant:	The applicant did not appear
Counsel for the Respondent:	Mr R Knowles

ORDERS

SC 2 of 2016

BETWEEN:

REGISTRAR OF THE SUPREME COURT OF NORFOLK ISLAND

Applicant

AND:

JOHN WALSH OF BRANNAGH

Respondent

JUDGE:	GILMOUR  J
DATE OF ORDER:	31 AUGUST 2017

THE COURT ORDERS THAT:

1.The application for adjournment made by the respondent on 31 August 2017 be dismissed.

2.The respondent pay the applicant’s costs in relation to the adjournment application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

GILMOUR J:

1. On 31 August 2017, I dismissed the respondent’s interlocutory application to adjourn the trial of this matter and delivered ex tempore reasons.  The following are those reasons, edited, but not so as to alter their substance.

2. The respondent’s application sought to adjourn the trial listed to take place from 4-7 September 2017.  The trial originally commenced before the Chief Justice of the Supreme Court of Norfolk Island in April of this year.  Directions were given by his Honour to that end.  However, when the matter came on for trial, and shortly after its actual commencement, an application was made by the respondent for the Chief Justice to recuse himself on various grounds.  That application was acceded to by the Chief Justice: Registrar, Supreme Court of Norfolk Island v Walsh (No 2) [2017] NFSC 2.

3. It was at that time that the matter became subject to further directions towards a trial before me.  So, for example, on 11 May this year, orders were made including that the respondent file and serve his written outline of submissions for trial by 26 May 2017.  Whilst he did not comply timeously with that order, he has done so.  As I understand it, such affidavit material as the applicant seeks to rely upon has all been filed and the applicant has no intention of putting on any further affidavit material, and the same, as I understand it, is the position in relation to the respondent.

4. By correspondence variously dated 11, 16 and 22 May this year, my associate wrote to the parties seeking their unavailable dates for a four-day hearing in July, August and September 2017.  No reply was received to the first email that was sent.  The solicitors for the applicant replied to the correspondence of 16 May 2017 and provided unavailable dates, and finally, on 25 May 2017, in response to the email of 22 May 2017, the late Mr Nelson wrote to these chambers advising that counsel for the respondent did not have any period of four straight days available in July or August 2017, but was available from the beginning of September until 18 September 2017, when he would again become unavailable.  Counsel for the respondent was Mr Alan Hands.  On the strength of that notification from both parties, I listed the matter for hearing in Melbourne, commencing on 4 September for four days. 

5. As I mentioned earlier, the respondent filed a written outline of submissions for trial on 30 May 2017.  On 9 June, the applicant filed a written outline of submissions in reply.  On 1 August 2017, the applicant filed subpoenas in relation to four witnesses.  Then, by email dated 11 August 2017, Mr Hands, then counsel for the respondent, advised that he was unavailable for the trial.  As a result of correspondence between him and my chambers on that question, it appeared from Mr Hands that he had been misinformed by the late Mr Nelson as to the dates for the trial.  Mr Hands informed the court that he had understood that the trial would be not in the first week of September 2017 but the second week. 

6. Then, on 24 August 2017, a Mr Mark Rowson emailed the applicant’s solicitors, and copying in these chambers, to advise that Mr Nelson had passed away somewhat unexpectedly last week, as he put it.  I have been informed by counsel for the applicant that the actual date of Mr Nelson’s death was 15 August 2017.  Mr Rowson’s email said that he contacted the client – that is, the respondent – and informed him of Mr Nelson’s passing and that he would need to seek alternate representation.  It was not until 30 August 2017 that the application for adjournment was filed by the respondent. It is supported by a short affidavit sworn by the respondent in Melbourne before a lawyer, Ms Julie Anne Pho.  The affidavit was sworn at 205 Williams Street, Melbourne. 

7. The affidavit sworn by the respondent deposes to a number of things, including as to the death of Mr Nelson.  He deposed that since Mr Nelson’s passing, he had been unable to find a suitable replacement, although he does not depose to what efforts he made in order to find a suitable replacement.  I regard that and a number of further matters to which I will turn as being significantly deficient in seeking to obtain an adjournment of the matter so close to trial. 

8. He then deposed at paragraph 3 of his affidavit to the fact that Mr Alan Hands was no longer acting in this matter.  He does not depose to the circumstances in which that occurred.  More importantly, he said that it had recently become necessary to appoint a new barrister, but that a suitable candidate who was able to appear before the court for the above hearing had not yet been found.  Again, nothing is said by him as to what efforts were made to obtain the services of a barrister in Melbourne.  I would not accept on the face of it that had inquiries been made with the various clerks of barristers’ chambers in Melbourne, that some suitable barrister could not have been found.  However, as I say, the affidavit is uninformative as to that important matter. 

9. Then the respondent describes having fallen whilst he was in Cairns on 10 August 2017 and that he was bound to a wheelchair for the following two days, suffering severe muscle weakness, and that he had been unable to walk during that time.  He then said he had another fall on 13 August 2017 where he collapsed in the bathroom of his hotel in the Hilton Hotel where he suffered a “serious head injury necessitating hospitalisation at the Cairns Hospital”, and following his discharge, he flew back to Melbourne for further medical treatment. 

10. He says that, since being back in Melbourne, he has had six further falls necessitating medical attendances by the National Home Doctor Service: the falls and subsequent at-home doctor visits being on 14, 15, 17, 20, 21 and 24 August 2017.  He deposes to now being under the care of a Dr Matt Shaw of City Medical on Queen Street, Melbourne.  The respondent deposes that he attended Dr Shaw’s clinic on 17 August and again on 29 August 2017, and that Dr Shaw’s advice has been for him to stay inside his hotel, which is the Adina Apartment Hotel in Queen Street, and apparently across the road from Dr Shaw’s offices.  He then describes the drugs which he has been prescribed.

11. The respondent’s affidavit exhibits two medical certificates, which appear to be signed by Dr Shaw.  When I say medical certificates, they are in the barest of terms.  The first is dated 17 August 2017 and is in terms as follows (edited to reflect the references used in these reasons):

    This is to certify that [the respondent] has a medical condition and will be unfit for work from 17 August to 11 September 2017 inclusive.

    The second medical certificate is in similar terms, certifying that the respondent has a medical condition making him unfit for work from 29 August to 14 September 2017 inclusive.  I do not regard either of those medical certificates individually or in combination as being sufficient evidence from a medical expert to support any conclusion that the respondent is unable to attend court for the trial next week.  As I say, the medical certificates are directed to him being unfit for work and say absolutely nothing about his fitness to appear at the trial next week.  More than that, there is no medical evidence whatsoever concerning any injuries suffered by the respondent as a result of the falls that he referred to and the at-home doctor visits.  There is no evidence of diagnosis or hospitalisation and the treatment afforded there or prognosis for recovery generally, and in particular sufficient recovery for the respondent to appear at the trial. 

12. On 30 August 2017 my associate informed me that the respondent had written to these chambers querying how the hearing of the adjournment application was to be heard, noting that he was ‘…practically immobile and restricted to [his] room’. My associate replied to the respondent by email to inform him that I was content for the respondent to appear by telephone at the hearing. Later that day, the respondent provided to my associate both a landline number as well as the respondent’s personal mobile telephone number. Immediately prior to the adjournment application coming on for hearing on 31 August 2017, a number of attempts were made by the Court’s court officer to contact the respondent on both of those phone numbers.  The respondent did not answer either of the landline or his mobile.  Thereafter, the reception at the hotel where the respondent is living was contacted by the court officer, and reception was requested to send someone to the respondent’s room to see if there was any difficulty and to ensure that he was able to attend by telephone.  I was informed at that time that the reception staff had informed the court officer that the respondent was not in his hotel room.

13. I am far from satisfied that the affidavit evidence put on by the respondent adequately explains why the respondent would not be able to proceed in the trial next week.  He is an experienced barrister.  The material upon which he proposes to rely has been filed for some time.  An outline of written submissions has been filed.  And, as I say, I am not satisfied that appropriate efforts were made by the respondent to obtain the services of substitute counsel or to appoint an instructing solicitor.  That said, the services that would be required by an instructing solicitor at this stage, given all the work that has already been completed, would not have been onerous. 

14. Beyond that, I was informed by counsel for the applicant that there are six witnesses due to give evidence. One witness (Ms Kellie Le Vien) is to give evidence solely by affidavit, without need for her attendance for cross-examination, while the other witnesses (Mr Alan Bataille, Mr Geoffrey Atkinson, Mr John Brown, Mr Craig Anderson, and Dr Ping-Fat Sze) are to do so by affidavit, but were required to be available for cross-examination. Two of them are to come from Norfolk Island, one from Sydney, and I was not given information as to the other two.  In any event, I infer that those five persons for the second time this year, would have had to make private and possibly professional or business or employment arrangements to make themselves available to give evidence in this very important matter.  As well as their convenience, or were the matter to be adjourned, their inconvenience, there is the question of the interest of the court. This matter has been listed for a considerable period of time.  It has, in effect, displaced the possibility of another matter being listed before me during that time. 

15. In all of the circumstances, the application for an adjournment will be refused, and I will order that the respondent pay the costs of the applicant in relation to the application.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        7 September 2017