Soo v Yang & Vale Pty Ltd
[2022] VSCA 227
•19 October 2022
| 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 had been making it difficult for him to focus on things happening around him’. The psychologist also stated that Mr Soo had been experiencing regular hyperarousal when reflecting on his experiences in prison and that this included difficulties managing his thoughts, and regular mood fluctuations.
The letter from the GP stated the following:
Mr Soo suffers from a number of mental health issue[s] including anxiety, depression and PTSD and is seen by his psychologist, and has not sufficiently recovered yet to attend any court hearings.
He is currently very stressed and agitated to be able to focus and concentrate on doing any legal preparation work properly or to argue his case by himself in open court.
In the past he had suicidal thoughts when put under stressful situation and will need some time to stabilise his medical condition and to recover before he is fit enough to attend court.
He is compliant with the recommended psychologist management.
I certify that he is NOT FIT to attend any court proceedings for two months from 09 October 2022 up to 09 December 2022.
Next review: 09 December 2022.
At today’s hearing, the applicant handed to the Bench a one-page written submission which emphasised that he feels anxious and distressed and that he needs time to recover. In oral submissions, the applicant contended that an adjournment would help him recover.
Although we are satisfied that Mr Soo suffers from anxiety, depression and PTSD, we are not satisfied that, as a result of those conditions, he is unable to adequately represent himself at today’s hearing.
The psychologist’s report is more than two years old. Although the GP states in his letter that Mr Soo is ‘seen by his psychologist’ and that he is ‘compliant with the recommended psychologist management’, there is no material before the Court about when Mr Soo last saw the psychologist, what treatment he is receiving, or the psychologist’s view of Mr Soo’s current mental state.
Even if it is assumed that the contents of the psychologist’s report remain current, there is nothing in the report from which it can be concluded that Mr Soo’s current mental state prevents him from adequately representing himself before us. Mr Soo completed his prison sentence on 30 October 2018. Whilst it appears that his experience in prison continues to affect him in the manner set out in the psychologist’s report, we note that, since Mr Soo’s release from prison, he has been able to commence proceedings at VCAT, the Trial Division of the Supreme Court and the Court of Appeal and to prepare detailed documents in connection with those proceedings. Those documents indicate: that Mr Soo is very familiar with the legal points he wishes to make; that he has conducted extensive legal research to support those legal points; and that he is able to articulate his arguments and seek orders to protect his interests.
We accept that the GP’s letter states that Mr Soo is not fit to attend any court proceedings. However, the letter is conclusionary in nature and does not explain why Mr Soo is unfit. It is not clear whether the GP is aware of the nature of the proceeding before this Court or of the extensive documents that Mr Soo has prepared in connection with that proceeding. The issues before this Court do not require any reference to the applicant’s period of imprisonment so as to risk triggering the symptoms to which the psychologist referred. Further, the detailed nature of the documents prepared by Mr Soo contradicts the GP’s assertion that Mr Soo is not able to focus and concentrate on doing any legal preparation work properly. The GP’s letter also does not explain how and why Mr Soo’s condition might change within the proposed adjournment period of two months. The applicant’s oral submissions today also failed to explain how his condition might change. Due to these deficiencies in the GP’s letter, we are not satisfied on the basis of that letter that Mr Soo is unable to adequately represent himself before us due to his mental health.
The adjournment sought by Mr Soo is to 9 December 2022, being the date of his next review with his GP. Such an adjournment is not possible because all hearing dates for the rest of 2022 have been allocated to other cases. In the absence of any information about any psychological treatment that the applicant will be receiving from his psychologist in the interim period, there is a risk that, upon the GP’s further review, a similar letter will be provided by the GP in support of a further application for an adjournment. Clearly, this Court cannot adjourn the hearing indefinitely.
In Taylor v Merlino, which was decided on 11 March 2022, this Court stated:
There is clearly a public interest in finality in litigation, including for appeals against judicial decisions to be heard and determined as soon as possible. Once an appeal is listed for hearing on a particular day, parties to other appeals are deprived of the opportunity of having their appeals heard on that day. Likewise, where a hearing of an appeal is adjourned to a new date, the adjournment affects not only the parties to that appeal, but also the parties to other pending appeals who are not able to have their appeals heard on the new date. Judicial resources are limited and it is in the interests of justice — and consistent with the overarching purpose in s 7(1) of the [Civil Procedure Act 2010] — that adjournments are granted only when they are necessary to prevent practical injustice.[1]
[1][2022] VSCA 37, [43].
For the above reasons, we are not satisfied that an adjournment is necessary to prevent practical injustice to Mr Soo. Accordingly, his application for an adjournment is refused.
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