Rossi v Qantas Airways Limited (No 3)
[2021] FCA 942
•9 August 2021
FEDERAL COURT OF AUSTRALIA
Rossi v Qantas Airways Limited (No 3) [2021] FCA 942
File number: NSD 1549 of 2019 Judgment of: BANKS-SMITH J Date of judgment: 9 August 2021 Date of publication of reasons: 10 August 2021 Catchwords: PRACTICE AND PROCEDURE - application by respondent on first day of trial for trial to be adjourned part‑heard on completion of the allocated four days - where witness unavailable by reason of hospital admission - submission that witness's evidence critical to respondent's case - whether unfair prejudice to applicant in delaying completion of proceeding - whether unfair prejudice to respondent in proceeding without witness's evidence - application allowed Cases cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 173
Magi Enterprises Pty Ltd v Luvalot Clothing Pty Ltd [2017] FCA 340
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 41 Date of hearing: 9 August 2021 Counsel for the Applicant: Ms K Edwards with Ms A Costin Solicitor for the Applicant: Harmers Workplace Lawyers Counsel for the Respondent: Ms E Raper SC with Mr A Smorchevsky Solicitor for the Respondent: Ashurst Australia ORDERS
NSD 1549 of 2019 BETWEEN: SARA ROSSI
Applicant
AND: QANTAS AIRWAYS LIMITED
Respondent
ORDER MADE BY:
BANKS-SMITH J
DATE OF ORDER:
9 AUGUST 2021
THE COURT ORDERS THAT:
1.By 4.30 pm AEST on 11 August 2021 and subject to further order, the respondent provide a medical certificate from one of Mr John McCristal's medical practitioners stating:
(a)the medical basis upon which Mr McCristal is unable to attend court (via internet video connection) and give evidence in this matter during the dates of 9 to 12 August 2021;
(b)the length of time during which it is currently expected that Mr McCristal will be unable to give such evidence; and
(c)whether, if Mr McCristal remains in [redacted] Private Hospital beyond 23 August 2021, he will be permitted by the hospital to have access to online facilities so that he can give his evidence by internet video connection.
2.Liberty to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BANKS-SMITH J:
This matter was listed for hearing on 8 March 2021 on the allocated trial dates of 9‑12 August 2021. An issue has arisen with respect to a witness, Mr John McCristal, who was due to be called by the respondent, Qantas Airways Limited. It appears that Mr McCristal will not be available to be called by Qantas in the allocated trial dates, for reasons explained below.
This proceeding relates to the capacity of the applicant, Ms Sara Rossi, at the time of entry into a deed of settlement with Qantas in 2008. Mr McCristal acted for Ms Rossi at that time. This short precis is sufficient to indicate that Mr McCristal's evidence is likely to be of significance for Qantas.
Over the last nine months, the parties and the Court have addressed a number of practical issues that have arisen due to the impact of COVID-19 and also because of particular requests made on behalf of Ms Rossi as to the manner in which her evidence is to be given. For example, the trial did not proceed as planned in December 2020, in part because of the effect of so-called lockdown arrangements that were in place in Victoria, arrangements that caused some difficulties for Ms Rossi. Ms Rossi applied to vacate the trial dates. As it happens, Mr McCristal was also unavailable at that time due to ill-health. The trial dates were vacated.
At Ms Rossi’s request, I also made orders by consent that permit Ms Rossi during the current trial to have the assistance of a transcriber during her cross‑examination, so that she may read the questions prior to answering them. A transcriber has been reserved for the current trial dates. Further, a large number of expert or other professionally qualified witnesses are scheduled to give evidence during the current dates. Experience indicates the difficulty in rescheduling trials that involve such witnesses.
I should add that it was always intended that this trial proceed by way of an online hearing, with all witnesses giving evidence by video-link. Orders have been made to that effect.
Qantas does not seek to adjourn the trial, having regard to those and other matters. Rather, it anticipates that the trial will be adjourned part-heard and Mr McCristal will give his evidence and the parties will make closing submissions on a later date. Ms Rossi opposed the trial continuing on that basis, in effect seeking that the matter proceed only during the four allocated trial dates, and so in circumstances where Mr McCristal would not be available to give evidence.
The matter was raised at the commencement of the first day of the trial. Having heard submissions from the respective parties, I determined that the trial should proceed in the manner suggested by Qantas. These are my reasons for that decision.
Evidence
Qantas relies on three affidavits that explain the situation with respect to Mr McCristal. The following matters are based on those affidavits.
Mr McCristal is a solicitor, but he does not work for the solicitors on the record in these proceedings, and nor is he affiliated in any way with Qantas. He is represented by K&L Gates, or at least they are retained in some manner to communicate on his behalf at present.
Qantas relies on affidavits of Olivia McIntosh, a solicitor employed by its solicitors, Ashurst Australia, and an affidavit of Christien Corns of K&L Gates.
Ms McIntosh deposes that she is one of the lawyers at Ashurst with carriage of this matter. Ms McIntosh says that she attended a witness conference with Mr McCristal by video-link shortly prior to 23 July 2021 and that she did not have any concerns as to his availability to give evidence during the scheduled trial dates.
Ms McIntosh said that on or around 23 July 2021 she was informed by Mr McCristal that he would be unavailable for a witness conference prior to the hearing of this matter on account of a planned hospital admission, but that he would be discharged from hospital on 6 August 2021, and that he would be able to give evidence at the hearing listed to commence on 9 August 2021. Mr McCristal told Ms McIntosh of the reason for his hospital admission, but told her he did not wish to have the reason disclosed to others. The reason has not been disclosed to Ms Rossi or the Court.
Ms McIntosh became aware of the intervening difficulty with Mr McCristal's attendance at trial on 4 August 2021, when she received a message to call 'Julie' at Mr McCristal's law firm.
Ms McIntosh said she called Julie that day, and was told that John McCristal 'was unwell', 'he is in hospital', and 'his stay in hospital has been extended for two weeks'. Julie told Ms McIntosh that Mr McCristal was expected to be discharged from hospital on or around Monday 23 August 2021.
Ms McIntosh spoke to Julie again that day and asked her to confirm whether Mr McCristal was able to give evidence from hospital. Julie told her that the matter was not clear to her and she had no way of contacting Mr McCristal to check. Julie told Ms McIntosh that before he had called her that day (presumably 4 August 2021), she had not heard from him for two weeks.
Ms McIntosh then called the hospital where Julie had informed her Mr McCristal had been admitted, and left a message with a staff member who indicated she would pass a message on to one of Mr McCristal's treating practitioners to contact Ms McIntosh.
Ms McIntosh said that subsequent to that call, she has not received any communication from Mr McCristal or any of his treating practitioners, and nor was she aware of any such communication having been received by anyone else at Ashurst.
It is apparent that there were then some communications between K&L Gates and Ashurst. Mr Corns said that on or around 5 August 2021 he became aware that Qantas had concerns about Mr McCristal's availability and capacity to give evidence at the hearing from 9‑12 August 2021. He said that Qantas requested that he make further inquiries about those matters. Mr Corns said that he called Mr McCristal's personal assistant, Julie, who said words to the effect that 'John is in hospital in Melbourne and is not well enough to give evidence. He will be in hospital for at least the next two weeks'.
Both Ms McIntosh and Mr Corns referred to the fact that Mr McCristal had also been unavailable when the matter had previously been listed for the hearing scheduled in December 2020, due to surgery. Mr Corns said that Mr McCristal's current condition is unrelated to his previous surgery.
By further affidavit, Ms McIntosh deposed to the fact that on 6 August 2021 she requested from the relevant Melbourne private hospital a letter confirming whether Mr McCristal was unable to give evidence in the hearing for the proceedings listed on 9‑12 August 2021. In response, the hospital director sent a letter that said:
This letter is to inform you that John is a current inpatient at [redacted]. John was admitted to the hospital on 26 July 2021 and has an expected discharge date of 23 August 2021.
Due to his admission [redacted], John will be unable to provide evidence in court as inpatients are unable to access mobile phones or computers whilst admitted in the facility.
There was a further email exchange with the hospital in which a member of the hospital administration told Ms McIntosh:
I can confirm John McCristal was initially booked for a 14 day admission, however on 2 August he requested to extend to 28 days.
Ms Rossi relies on an affidavit of Amelia Dowey, a solicitor at Harmers Workplace Lawyers, dated 7 August 2021. Ms Dowey relevantly refers to communications by telephone and email that occurred between Harmers and Ashurst. From those exchanges and from Ms Dowey's evidence it is apparent that at approximately 10.52 am on 5 August 2021 Ms McIntosh called Ms Dowey and informed her that Mr McCristal was hospitalised and unlikely to be out of hospital for the next two weeks, and that Qantas presumed that the hearing could still proceed part-heard with Mr McCristal's evidence being deferred to a later date. There were further communications as to proposed orders about how the hearing might proceed.
It is apparent that Ms Dowey sought further and better information from Ms McIntosh about Mr McCristal's condition, having first been informed about the letter from the hospital director. It appears that the email from the hospital administrator was obtained by Ms McIntosh following that request.
Copies of the various affidavits were exchanged by the parties and filed on Friday 6 August 2021 and Saturday 7 August 2021.
Grounds of opposition
Counsel for Ms Rossi relied on the High Court's consideration of case management and other applicable principles relating to adjournments (in the context of an application to amend pleadings) in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 173, citing in particular the well‑known observations of French CJ:
[4]… the history of these proceedings reveals an unduly permissive approach at both trial and appellate level to an application which was made late in the day, was inadequately explained, necessitated the vacation or adjournment of the dates set down for trial, and raised new claims not previously agitated apparently because of a deliberate tactical decision not to do so. In such circumstances, the party making the application bears a heavy burden to show why, under a proper reading of the applicable Rules of Court, leave should be granted.
[5]In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed …
Ms Rossi also referred to Murphy J's decision in Magi Enterprises Pty Ltd v Luvalot Clothing Pty Ltd [2017] FCA 340, in which a witness was said to be unavailable to travel from China on the listed trial dates, and a late application for adjournment of a trial was refused. I note that in that case, it appeared that the relevant witness was unwilling to come to Australia even if the adjournment was granted; whilst the witness was heavily pregnant, in any event she had no Chinese passport or visa; and there was no evidence she had sought travel documents. His Honour considered the evidence indicated an unwillingness to give evidence, rather than an inability. Further, there were critical gaps in the evidence, including as to when the solicitors ascertained that the witness was pregnant; when and whether the witness was informed of the need to give evidence; and whether any inquiries were undertaken as to whether the witnesses had appropriate passports and visas. I also note that although the adjournment application was refused, Murphy J permitted an application to be brought for the evidence to be given by video.
Against the backdrop of those authorities, it was submitted on behalf of Ms Rossi that:
(a)if Mr McCristal does not give evidence, then the trial is likely to finish within the allocated four days because the cross-examination of Ms Rossi would necessarily be condensed;
(b)there is no appropriate explanation for the delay by Ashurst on 4 and 5 August 2021 in ascertaining the reason for Mr McCristal's admission for treatment or why he could not give evidence by video from the hospital;
(c)there is no evidence that Ashurst, having known from 23 July 2021 that Mr McCristal would be having treatment, took proper steps to ascertain whether his estimated discharge date was realistic or likely to be the subject of any extension, or sought appropriate information from his treating practitioners;
(d)whilst the evidence discloses that Mr McCristal currently has no access to the internet and so cannot participate by video‑link, it does not address the underlying reason why he is currently undergoing medical treatment and why he has chosen to extend the period of that treatment until after the trial;
(e)there is no evidence Mr McCristal was told he would be required for cross‑examination at the trial, and no evidence that he was aware of the importance of his evidence;
(f)Mr McCristal previously was said to be unavailable for the trial in December 2020 due to ill-health, and that no evidence supporting that position was provided at the time; and
(g)Qantas has not discharged its obligation to provide an explanation as to why the trial should be adjourned part-heard as proposed.
Consideration
Whilst I acknowledge the force of those submissions, it seems to me clear that the interests of justice favour Qantas's proposal that the trial commence and be adjourned part-heard on the fourth day of trial so that Mr McCristal can give evidence on a later date to be fixed. Closing submissions can then proceed.
I have come to this view for the following reasons.
First, whilst the Court is to be guided by the principles discussed in Aon, this is not an application for the trial to be adjourned as a whole. The potential prejudice to Ms Rossi in terms of delaying her own evidence and that of the other witnesses is mitigated by the proposal that the trial otherwise proceed. There is no inconvenience to other witnesses and the Court's allocated time will still be utilised.
Second, there remains a real prospect, having regard to the number of proposed witnesses and foreshadowed objections to their evidence, that the trial may not be finished within the four allocated days in any event. It is therefore difficult to assess whether there is any prejudice to Ms Rossi caused by the proposal. To the extent that such prejudice is apparent during or after the four allocated trial days, there will be a further opportunity when the trial resumes for Ms Rossi to make submissions as to prejudice. Any such prejudice might be met, at least in some manner, by a costs order.
Third, I consider that Qantas, through Ashurst, has done all that it reasonably could since the issue of Mr McCristal's inability to attend trial (by video-link) was disclosed to it. Ashurst acted quickly upon learning of the issue. Further, the inability to communicate directly with Mr McCristal has complicated Ms McIntosh's attempts to obtain an explanation and medical evidence that explains Mr McCristal's non-attendance. It is to be recalled that Ms McIntosh contacted the hospital and sought to have a practitioner contact her. Her call was not returned. I also infer that, as a solicitor who has sworn affidavit evidence for the purpose of this hearing, Mr McCristal should be well aware that there was a prospect he would be cross-examined, regardless of the absence of evidence of Ashurst expressly informing him of that fact. The conduct of the solicitors and the circumstances are quite distinguishable from those discussed in Magi Enterprises Pty Ltd v Luvalot Clothing Pty Ltd.
Fourth, I decline to infer that Mr McCristal is deliberately avoiding or seeking to defer the giving of evidence. Whilst Mr McCristal appears to have voluntarily extended his stay, a matter not disclosed to Qantas until 6 August 2021, I accept the submission of senior counsel for Qantas that it would be unlikely that a health facility would permit a person to stay an additional 14 days without good cause. Nor do I consider anything turns on the fact that Mr McCristal was previously unavailable for allocated trial dates due to surgery. Those trial dates were vacated for a number of reasons. I do not draw any negative inference from the fact that Mr McCristal required apparently unrelated surgery at that time.
Fifth, whilst a subpoena might have been issued with an abridged return date, the prospect of Mr McCristal being served with the subpoena in his present circumstances, or taking a step other than applying to have it set aside, would appear slim. Further, it is unclear whether he is in a position to instruct his solicitors with respect to any subpoena.
Sixth, I take into account the difficulties faced in Sydney (where Qantas's solicitors are located) due to stay-at-home directions in place on 4, 5 and 6 August 2021, when they were attempting to urgently address the issues raised by Mr McCristal. There needs to be some recognition that it is not necessarily as straightforward for solicitors to liaise with clients, with counsel or with each other when subject to such stay-at-home directions as might otherwise be the case. In the circumstances, I do not consider that there was any undue delay in providing affidavit evidence in support of Qantas's proposal.
Seventh, the issue of prejudice to Qantas looms large in this application. The prejudice to Qantas of not allowing Mr McCristal to give evidence, or the risk of heavily discounting his affidavit evidence in the absence of cross-examination, is potentially great. Mr McCristal is a key witness for Qantas, as counsel for Ms Rossi readily acknowledged. I consider the magnitude of that potential prejudice to Qantas outweighs any prejudice to Ms Rossi brought about by an adjournment of the trial part-heard. As I have indicated, Ms Rossi will have another opportunity to address the Court as to the nature and extent of any prejudice in due course, once the current uncertainties as to the completion of the trial and Mr McCristal's availability reduce.
Having reached the decision that the trial should commence as planned, there are two other matters to note.
I am aware that the proposal to adjourn the hearing in due course part-heard introduces uncertainties of its own. It is unclear when Mr McCristal might give evidence, although I am told Qantas remain hopeful that any delay will be only short. A position of uncertainty cannot endure indefinitely. As senior counsel for Qantas readily accepted, it may be necessary at some point for Qantas to proceed on the basis that Mr McCristal is unavailable. However, at present, there is no reason to believe that will be the case.
I also consider it appropriate that Qantas take urgent steps to secure better evidence from one of Mr McCristal's treating practitioners as to the basis for Mr McCristal's ongoing admission; how long that admission might continue; and whether there is a prospect that he would be granted access to the internet by the hospital for the purpose of given his evidence, assuming he is otherwise in a condition to give such evidence. It may be that a suppression order will be appropriate in due course, depending on the nature of such evidence.
Accordingly, I have made orders addressing those matters.
The trial will otherwise commence and proceed on the basis that it will be necessary to adjourn part-heard to facilitate Mr McCristal being in a position to give evidence.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Banks-Smith. Associate:
Dated: 10 August 2021
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