The Oak Hotel Cessnock Pty Limited v Deputy Commissioner of Taxation

[2023] NSWSC 522

Supreme Court

New South Wales

Medium Neutral Citation:

The Oak Hotel Cessnock Pty Limited v Deputy Commissioner of Taxation [2023] NSWSC 522

Hearing dates:

15 and 16 May 2023

Date of orders:

16 May 2023

Decision date:

17 May 2023

Jurisdiction:

Common Law

Before:

Griffiths AJ

Decision:

1. The proceedings be adjourned.

2. The parties are directed to approach the Registrar three weeks from today with a view to obtaining hearing dates for two days so that the proceedings may be completed.

3. Plaintiffs pay the defendants’ costs thrown away by the adjournment.

Catchwords:

CIVIL PROCEDURE – notice of motion – adjournment application – where third plaintiff is litigant-in-person representing all plaintiffs – medical certificate provided – adjournment sought relying on third plaintiff’s poor health and to seek legal representation for plaintiffs

Cases Cited:

The Oak Hotel Cessnock Pty Ltd (in liq) v Deputy Commissioner of Taxation [2020] NSWSC 1589

Category:

Procedural rulings

Parties:

The Oak Hotel Cessnock Pty Ltd (ACN 150 948 619) (First Plaintiff)
Hunter Valley Dental Surgery Pty Ltd (Second Plaintiff)
Dr John Harvey (Third Plaintiff)

The Deputy Commissioner of Taxation (First Defendant)
The Commonwealth of Australia (Second Defendant)

Representation:

Counsel:
J Harvey (First Plaintiff)
J Geale (Second and Third Plaintiff)
E Ball (Defendants)

Solicitors:
MinterEllison (Second and Third Plaintiff)
Ashurst (Defendants)

File Number(s):

2019/274489

JUDGMENT (EX TEMPORE REVISED)

1. The substantive proceedings involve claims for damages. The causes of action which have been pleaded in an amended statement of claim are in negligence and in misfeasance of public office. The allegations of misfeasance in public office are very serious allegations. I need say no more about the substance of the matter.

2. Dr Harvey, who is not a legal practitioner, appears for both the first and second plaintiffs (who are called The Oak Hotel Cessnock Pty Ltd, and Hunter Valley Dental Surgery Pty Ltd respectively), as well as representing himself (as the third plaintiff). The proceedings have a long history. They were listed for hearing for three days commencing yesterday. During the course of the first day of the hearing on 15 May 2023, Dr Harvey made an oral application to adjourn the proceeding. The application was made against a background of Registrar Jones having recently rejected the plaintiffs’ application for leave to file subpoenas requiring three former or serving ATO officers and a lawyer retained by the ATO to attend to give evidence.

3. Dr Harvey complained that he had been denied an opportunity to cross-examine those witnesses.

4. The Court explained that, even if the Registrar had granted leave, Dr Harvey would not have any right to cross-examine those witnesses, and that they would be treated as the plaintiffs’ witnesses with the procedural implications that carries. The Court explained that if the plaintiffs were unsuccessful in the substantive proceeding, they would have an opportunity to appeal against the Registrar’s decision. It was also explained that if the plaintiffs were successful in their substantive claims, the evidence of those ATO officers would be irrelevant.

5. The Court informed Dr Harvey that it was open to him to make an oral application for an adjournment if he saw fit. He proceeded to make such an application. It was opposed by the defendants.

6. Initially, Dr Harvey said that he needed an adjournment in order to find a legal practitioner to represent him on the making of a foreshadowed further adjournment application. There was then an exchange with Dr Harvey as to why he had not engaged lawyers before this time, noting that the proceedings had been on foot since 3 September 2019. Dr Harvey said that there was no money for that purpose. He subsequently said that he would simply have to find the money as he was personally unable to conduct the adjournment application.

7. The Court drew Dr Harvey’s attention to the fact that he had been heavily involved in the past conduct of the case, including drafting the amended statement of claim and reply, as well as preparing seven affidavits. The Court also noted that Dr Harvey had represented the first and second plaintiffs in the proceedings before Adamson J, which resulted in the decision in The Oak Hotel Cessnock Pty Ltd (in liq) v Deputy Commissioner of Taxation [2020] NSWSC 1589.

8. Dr Harvey then shifted his ground regarding the basis for the adjournment. He said that he needed more time to review the pleadings so as to remove any reference to the people he had sought to subpoena and to readjust his case accordingly. The Court understood Dr Harvey to say that he needed the time to strike out any references to those ATO officers in the pleadings and thereby narrow the plaintiffs’ case. When confirmation of this understanding was sought from Dr Harvey, he shifted his ground again and said he would not be amending his pleadings, but wanted some time to rethink how he should present his case and those of the two other plaintiffs in relation to those people he had sought to subpoena that I have mentioned.

9. The Court refused that application for an adjournment and said that reasons for that ruling would be included in the final reasons of the judgment. If necessary, I will fulfil that statement in the final reasons for judgment.

10. There has however been a subsequent development. It occurred at the commencement of the second day of the hearing when Mr Jeremy Geale, a partner of MinterEllison, announced his appearance for Dr Harvey and the second plaintiff. Mr Geale said he did not have instructions at this time to announce any appearance for the first plaintiff.

11. Mr Geale said that he was instructed to seek an adjournment. He indicated that the adjournment that was sought was for a period of three weeks. He said that the basis for the application related to Dr Harvey’s health, and also to Dr Harvey’s desire to retain legal representation for the plaintiffs’ future conduct of the proceeding, which, of course, is part heard before me. Mr Geale relied upon an affidavit affirmed by him dated 16 May 2023. Over objection, I admitted into evidence a letter dated 15 May 2023 from a medical practitioner, Dr John Cummins, who apparently practises in a practice called Executive Medicine.

12. In the letter dated 15 May 2023 Dr Cummins said as follows in relation to Dr Harvey:

“This man is unfit to attend an ongoing court case between now and the next 7 days due to experiencing excessively high stress levels. There are significant medical issues that would be adversely affected by the effects of acute stress, for example blood pressure surges if he is put under psychological pressure. He has known coronary artery disease (prior history of acute heart attack with stent placed in situ) and end stage chronic kidney disease - both conditions are serious and treated with medications with specialist review. I have know [sic] John now for 17 years and have serious concerns for his health.”

13. Mr Geale confirmed from the Bar table that Dr Cummins had examined Dr Harvey yesterday and that Dr Cummins is Dr Harvey’s regular medical practitioner. Some aspects of Dr Cummins’ letter are unsatisfactory as has been pointed out by the defendants. There should have been more comprehensive information set out in the letter. It is appreciated, however, that the letter has obviously been obtained in the presence of significant time pressures.

14. Not without some doubt, but having regard to the medical evidence, I am prepared to grant the adjournment application. I grant the application on the basis that there is no contest that the costs thrown away should be borne by the plaintiffs.

15. I also direct that the parties approach the Registrar in three weeks’ time to obtain a hearing date so that the proceedings can be completed. Presumably that will mean that two further days will have to be found which are not only convenient to myself (because I am part heard in the matter), but also to the parties’ legal representatives.

16. The orders of the Court are:

1. The proceedings be adjourned.

2. The parties are directed to approach the Registrar three weeks from today with a view to obtaining hearing dates for two days so that the proceedings may be completed.

3. Plaintiffs pay the defendants’ costs thrown away by the adjournment.

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Decision last updated: 17 May 2023