Terrence Edward Gavaghan v Angus O'Shea

[2003] ACTCA 18

TERRENCE EDWARD GAVAGHAN v ANGUS O’SHEA
[2003] ACTCA 18 (14 August 2003)

EX TEMPORE JUDGMENT

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 5 - 2003
No. SC 770 of 2002

Judges:  Higgins CJ, Crispin P, Spender J
Court of Appeal of the Australian Capital Territory
Date:  14 August 2003

IN THE SUPREME COURT OF THE  )   No. ACTCA 5 - 2003
  )  No. SC 770 of 2002
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TERRENCE EDWARD GAVAGHAN

Appellant

AND:ANGUS O’SHEA

Respondent

ORDER

Judges:  Higgins CJ, Crispin P and Spender J
Date:  14 August 2003
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent’s costs of the appeal on an indemnity basis.

IN THE SUPREME COURT OF THE  )   No. ACTCA 5 - 2003
  )  No. SC 770 of 2002
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TERRENCE EDWARD GAVAGHAN

Appellant

AND:ANGUS O’SHEA

Respondent

Judges:  Higgins CJ, Crispin P and Spender J
Date:  14 August 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

HIGGINS CJ:

1. So far as I am concerned, I accept that Mr Lunney has put everything that could possibly be put in support of this appeal, but regrettably I do not find myself in agreement with those submissions.

1. Firstly, I consider the point made that it was arguable that the application, as originally framed, for the order for the production of records under O 34A r 5 should not have proceeded under that order.  I say arguable because it was never argued and the contrary view, if there be one, has never been put.  This is not the appropriate vehicle for considering an issue of that kind, particularly in the light of the history of the matter.

1. The original order made pursuant to that notice was allegedly flawed because it did not contain the endorsement required under O 42 r 6. I agree that it did not contain that endorsement.  Had that been the only defect relied upon at the hearing of the subsequent application – and assuming that there had been a desire to proceed further with the application for contempt – it may have brought forth an application to excuse the irregularity, which would have required the exercise of the court’s discretion. That discretion would, no doubt, have been informed by the question as to whether the respondent to the then application was aware of the order, and of the time within which it was to be complied with, as a matter of substance.

1. In the circumstances of this case, and having regard to the correspondence which ensued, it seems to me that this would inevitably have led to that particular irregularity being excused.  Had there been any attention drawn to the alleged irregularity under O 34A r 5, and had the issue been argued and decided in favour of the respondent to the application, there may have been a cause for a substantial amendment to the originating application, and it might have proceeded on that basis.  At that point, it probably would not have involved a question of contempt, but certainly would have had regard to the question of whether there had been an unreasonable refusal to comply with a request for the production of records.

1. If then the application had been made, and the substantive relief was then no longer required because of the matters I will come to in a moment, the issue of costs would still have remained a live one.  It is not possible to say what would have been the outcome in that event. It may have been that a different order would have been made, or that no order would have been made.  If an order were to be made, it may have been made with some allowance to the present appellant, due to the fact that some amendment to the proceedings had to be made and some waste of time had ensued.

1. The parties decided before his Honour to avoid all of that, by way of the appellant filing affidavits which did not raise any question of irregularity, or any question of the inappropriateness of the originating process which had led to the order in question.  Rather, their approach was to simply rely upon the fact that, first, there were no records outstanding as at that date and, second, to apologise for having given a contrary impression.

1. In those circumstances, of course, the applicant in the court below did not need to proceed any further with the application. It would have been entirely a waste of time and money for the applicant to have raised any question of the need to excuse any irregularity, even had the other side, then represented by Mr Erskine of counsel, raised it.

1. Before this court Mr Lunney asks that the order made by his Honour be set aside on the basis that, first, there was an argument, which was not put to his Honour, that the application should not have proceeded under O 34A r 5 to make the order which founded the application.  As it was not raised before him it is difficult to see how his Honour could, in failing to take account of that matter, be said to have taken an erroneous matter into account in deciding upon the order for costs.

1. The other issues now raised were not raised with his Honour either.  That is, the irregularity under O 42 r 6, and the question of short service between the application for the order and the making of it.  There was no other point taken about the notice of motion of 4 February.  It was treated as if it were substantively regular, but should be dealt with on its merits.  It was dealt with on its merits and, whilst the appellant effectively succeeded, the appellant was successful because he corrected a misleading impression which he had given – namely, that he had outstanding records that he was not prepared to produce.

1. It is no answer to that to say that there were in fact no records outstanding.  That does not make the application of 4 February speculative.  I do not agree with that submission.  I do not agree there was no evidence to support the notice of motion as it existed at 4 February, either.

1. The further material provided by Dr Gavaghan certainly did make that point, and that point was then accepted.  But he had not made it clearly before.  He had left a misleading impression and it was entirely open, in my opinion, for his Honour to have decided to make the order for costs that he did.  Indeed, it may then have been open to him to have made a more draconian order, but certainly the order made was well within his Honour’s discretion. I would dismiss the appeal.

1. The court is in agreement as to the order that should be made as to the costs of the appeal.  For my part, I regard this appeal as being without merit.  It ought not to have been brought.  The order made as to costs could only be challenged on the basis of the somewhat optimistic submission that there had been submissions that could have been made below, but which were not put.

1. There may be some circumstances in which that might lead to success on appeal, but often without any effect on the order for costs made below, when the party seeking to avoid a particular order has not put submissions that would achieve that result.

1. It may be that in a different context some of the procedural questions could have been agitated, but it seems to me entirely without merit to suggest that the application in the court below was rushed on.  The fact is that the application was brought on the 4^th.  It was heard on the 7^th.  It was heard after the respondent to it had filed affidavits in response to the application.

1. If the respondent in the court below had considered that there were matters that needed further to be investigated, an application for adjournment could have been made. It was not.  It seems to me that the appeal challenging the order made as to costs is, and was, without merit. Therefore, I would order costs on this appeal on an indemnity basis, and direct that the appellant pay the respondent’s costs on that basis.

1. The order of the court is that the appellant pay the respondent’s costs of, and incidental to, this appeal, on an indemnity basis.

   I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Chief Justice Higgins.

   Associate:

   Date: 14 August 2003

IN THE SUPREME COURT OF THE  )   No. ACTCA 5 - 2003
  )  No. SC 770 of 2002
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TERRENCE EDWARD GAVAGHAN

Appellant

AND:ANGUS O’SHEA

Respondent

Judges:  Higgins CJ, Crispin P and Spender J
Date:  14 August 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

CRISPIN P

1. I too would dismiss the appeal for with the reasons put forward by the learned Chief Justice. I have nothing to add.

1. I also agree that the costs of the appeal should be paid on an indemnity basis.  This was an appeal against a costs order.  The only substantial grounds involved the contention that his Honour fell into error by failing to consider matters that had not been properly put to him in the court below.  Those were, in my opinion, matters which, even if they had been raised in the court below, were insufficient to have denied the respondent the order he in fact obtained.

1. The appeal was in my opinion totally without merit, and was unreasonably instituted and maintained.

   I certify that the preceding paragraphs numbered seventeen (17) to nineteen (19) are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

   Associate:

   Date: 14 August 2003

IN THE SUPREME COURT OF THE  )   No. ACTCA 5 - 2003
  )  No. SC 770 of 2002
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:TERRENCE EDWARD GAVAGHAN

Appellant

AND:ANGUS O’SHEA

Respondent

Judges:  Higgins CJ, Crispin P and Spender J
Date:  14 August 2003
Place:  Canberra

EX TEMPORE REASONS FOR JUDGMENT

SPENDER J

1. I agree, and I agree with the reasons given by the Chief Justice.   However, I just want to say this.  In my opinion, the only basis on which this appeal could possibly succeed is if the submission made by counsel for the appellant below to the primary judge was made good.  That submission was:

It is our submission that as at the time of 4 February, when the application for contempt was lodged, the applicant knew that Dr Gavaghan was saying absolutely clearly “I don’t have any clinical notes.  There’s nothing more to produce”.

1. The claimed knowledge, on the evidence before the primary judge, was quite to the contrary.  In the letter of 4 February 2003 to the medical practitioner, the solicitors for the respondent to this appeal said -

The five documents delivered to our office on 31 January 2003 do not meet the description of the documents ordered to be produced by the Supreme Court on 13 December 2002 and entered on 20 December 2002.  Again we emphasise our view that you are in contempt of the court.  You have persistently refused to deal with the fundamental issue, namely production by you of your clinical notes, or other notes relating to your former patient, the applicant in these proceedings.

1. The primary judge said in relation to that -

It still seems to me though that as at 4 February and notwithstanding the fact that at an earlier stage in the heated, and soon to become even more heated and unpleasant, telephone conversation of 20 December, Dr Gavaghan said, “I have no notes”, he had previously written to the effect that “My notes are my business and not your business” and there is of course the letter to the insurer, I’m not sure whether it’s the insurer or an insurer, but a letter to an insurer which expressly refers to certain things being in the notes. 

that letter being a letter of 20 May 2001 to Royal & Sun Alliance where Dr Gavaghan said, “I noted in my notes at the time that he had great expectations of himself”.

1. The breathtaking inconsistency between the claim that there were in fact notes but which were his own, and that there were no notes, is a point which never seems to have been a source of embarrassment to Dr Gavaghan.

1. In the light of the finding by the primary judge that -

… Ms Hayes had, it seems to me, good reason to be concerned that there had not been proper compliance with the order, given particularly the intemperate way in which the conversation of 20 December ended, intemperate and inappropriate I regret to say from the doctor’s point of view, I suppose I should say it, it’s comforting to see not intemperate from the legal practitioner’s point of view, it seems to me that bringing this application was appropriate,

and later, “These proceedings were properly brought”, there is no error by the primary judge, and the order appealed from in my opinion was not erroneous.

1. On the issue of costs I also agree with the reasons of the Chief Justice and the reasons of Justice Crispin.

   I certify that the preceding paragraphs numbered twenty (20) to twenty-five (25) are a true copy of the Reasons for Judgment herein of his Honour, Justice Spender.

   Associate:

   Date: 14 August 2003

Counsel for the Appellant:  Mr G Lunney

Solicitor for the Appellant:  Bradley Allen

Counsel for the Respondent:  Mr Kearns SC and Ms Donohue

Solicitor for the Respondent:  Nicholl & Co

Date of hearing:  14 August 2003

Date of judgment:  14 August 2003