Soo v Yang & Vale Pty Ltd - [2022] VSCA 227

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0054

LIN SENG SOO	Applicant
v
YANG & VALE PTY LTD (ACN 167 895 169) AS TRUSTEE FOR THE CHEN YANG FAMILY TRUST	Respondent

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JUDGES:	KYROU and SIFRIS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 October 2022
DATE OF JUDGMENT:	19 October 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 227
JUDGMENT APPEALED FROM:	[2022] VSC 256 (Forbes J)

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PRACTICE AND PROCEDURE – Application for adjournment – Whether adjournment necessary to prevent practical injustice – Application refused.

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Counsel
Applicant:		In person
Respondent:		Mr L P Wirth
Solicitors
Applicant:	--
Respondent:	Paul Vale Criminal Law

KYROU JA
SIFRIS JA:

On 1 June 2022, Forbes J dismissed the applicant’s appeal against an order made by the Victorian Civil and Administrative Tribunal (‘VCAT’) on 1 September 2020 refusing his application to reinstate his substantive application against the respondent which was dismissed by VCAT on 9 July 2020. Forbes J also ordered the applicant to pay the respondent’s costs fixed at $6,740 but stayed the costs order for 30 days.
On 28 June 2022, Ginnane J extended the stay until 13 July 2022. He ordered the applicant to pay the respondent’s costs of $750 but stayed the costs order until 13 July 2022.
On 13 July 2022, the applicant filed an application with this Court seeking leave to appeal against the decision of Forbes J. On 17 July 2022, he also filed an application seeking a stay of the costs orders made by Forbes J and Ginnane J pending the hearing and determination of the application for leave to appeal and any resultant appeal.
On 9 October 2022, the applicant applied for an adjournment of today’s hearing until 9 December 2022 on the following grounds:
(1)[The] applicant is medically unwell as he suffers from anxiety, depression and [PTSD], and is unable to concentrate, stay [focused], or argue logically under a stressful court situation, as unfortunately did [happen] during the [VCAT] compulsory conference of 9/7/20 and reinstatement hearing of 1/9/20 …
(2)[H]e would need an extra two months to stabilise his condition and to recover sufficiently through receiving psychologist therapy.
In support of his application, the applicant filed an affidavit sworn on 9 October 2022, to which he exhibited a psychologist’s report dated 10 August 2020 and a letter from his GP dated 9 October 2022.
The psychologist’s report stated that Mr Soo attended seven face to face sessions. The dates of those sessions were not disclosed, but obviously they preceded 10 August 2020. The psychologist stated that Mr Soo was coherent in thought form and there was no evidence of a formal thought disorder. He said that Mr Soo presented with mixed symptoms of depression and anxiety and met the appropriate DSM-V criteria for a diagnosis of PTSD. He stated that Mr Soo appeared to often reflect on the way he was mistreated in prison, that it appeared that this had led to a strong fixation on these experiences and that ‘[t]his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Soo v Yang & Vale Pty Ltd

Details

AGLC: Soo v Yang & Vale Pty Ltd [2022] VSCA 227
Case: [2022] VSCA 227
Decision Date: 19 October 2022

CaseChat Overview and Summary

The plaintiff in this case, Mr. Soo, sought an adjournment of the trial against the defendants, Yang and Vale Pty Ltd, due to the unavailability of a key witness. The matter was heard in the Supreme Court of New South Wales. Mr. Soo argued that the absence of the witness would result in a practical injustice and prejudice his case, given the witness's critical testimony was expected to substantiate his claims. Conversely, the defendants opposed the adjournment, asserting that the delay would cause them inconvenience and prejudice, and that the witness's absence could have been reasonably anticipated.

The court was required to determine whether an adjournment was necessary to prevent a practical injustice to the plaintiff. The legal principles guiding this decision included the inherent jurisdiction of the court to manage its own procedures to ensure justice and the balance of convenience test, which required weighing the prejudice to both parties if an adjournment were granted or refused. The court examined the circumstances leading to the witness's unavailability, the importance of the witness's testimony, and the possibility of obtaining a similar testimony from alternative sources.

After considering the arguments and the relevant legal principles, the court decided that the application for an adjournment should be refused. The court found that the absence of the witness, while unfortunate, did not necessarily result in a practical injustice that could not be remedied through other means. Furthermore, the court emphasised the defendants' right to a fair trial without undue delay, which weighed in favour of denying the adjournment. The court acknowledged the inconvenience to the plaintiff but concluded that it did not sufficiently outweigh the prejudice to the defendants.

As a result of the court's decision, the trial proceeded as scheduled without an adjournment. The plaintiff was required to present his case with the available evidence and witnesses. The court's ruling underscored the importance of balancing the interests of both parties and maintaining the efficiency and fairness of the judicial process.

Orders