| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TLC EXPORTS PTY LTD -v- AUSTRALIAN FOODS COMPANY PTY LTD [2004] WADC 176 CORAM : CRISFORD DCJ HEARD : 20 AUGUST 2004 DELIVERED : 6 SEPTEMBER 2004 FILE NO/S : CIV 1174 of 2001 BETWEEN : TLC EXPORTS PTY LTD (ACN 059 587 478)) Plaintiff
AND
AUSTRALIAN FOODS COMPANY PTY LTD (ABN 69 081 686)
Defendant
Catchwords: Adjournment - Costs - Turns on own facts
Legislation: Nil
Result: Application for adjournment dismissed
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Representation:
Counsel:
Plaintiff : Mr A P Hershowitz
Defendant : Mr G G Wells
Solicitors:
Plaintiff : Maxim Litigation Consultants
Defendant : Galic & Co
Case(s) referred to in judgment(s):
Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 255
Harrison v Schipp [2001] NSWCA 13
Myers v Myers [1969] WAR 19
Thunderdome Racetiming & Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297
Case(s) also cited:
Nil
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1 CRISFORD DCJ: Before the Court and filed on 10 August 2004 is the defendant's application to adjourn an already part heard trial in this matter.
2 The basis for the application is set out in the affidavit of Gavin George Wells ("Wells") sworn 10 August 2004. Mr Parvan Shivnani ("Shivnani"), the sole director of the defendant and its principal witness is said to have "contracted a serious illness that required urgent medical attention" whilst he was travelling recently in India (par 6). 3 Mr Shivnani had wanted to recuperate in India but due to "very urgent business back in Perth" he returned but "suffered a relapse that necessitated further urgent medical treatment" (pars 7 and 8).
Medical evidence 4 Exhibit B to the affidavit of Wells purports to be a copy of a medical report signed by a Dr M M Patel, consulting physician of the Saibaba Medical Services Pvt. Ltd in Mumbai, India. The report is dated 16 July 2004 and arises out of a review of Shivnani on 14 July 2004. The diagnosis is that Shivnani is suffering from "bleeding piles (bleeding per rectum) leading to anaemia (blood haemoglobin was 8 grams)" The treatment consisted of bed rest of at least two weeks and also various medications, ointments and dietary recommendations. 5 A second medical report (Exhibit D) is dated 10 August 2004 and signed by a Dr Zawadski of the East Perth Medical Centre. That report indicates that Shivnani has had "significant health problems whilst overseas and we are following up these medical problems". Further tests were ordered and the report indicates that Shivnani is currently medically unfit for work for six weeks from this date. 6 On the basis of these two medical reports I would not have been persuaded to vacate this part heard trial. The reports do not address the issue of any court attendance, they are not consistent with the tenor of the affidavit of Wells and in terms of physical incapacity are equivocal.
Adjournment application 7 When this matter came before a Judge in Chambers on 16 August 2004 an affidavit of Dr Zawadski sworn 13 August 2004 was provided to the defendant and the Court. The essence of that affidavit casts doubt on the previous report provided by that medical practitioner: "4. Mr Shivnani advised me that he was feeling weak and tired and unable to work. I took his blood pressure and
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found it was okay. Mr Shivnani appeared to be functioning fine and I could not find any problems with him." 8 The affidavit goes on to suggest that there was pressure put on the doctor to provide the medical certificate attesting to an inability to attend work. The affidavit goes on to say: "10. It is my opinion based on my assessment of Mr Shivnani on 10 August 2004 that Mr Shivnani would have no difficulty in attending a court hearing in the near future." 9 As indicated earlier the original medical certificates filed by the defendant in support of its application to adjourn would not have convinced this Court of the inability of the defendant to proceed with the part heard trial. 10 As a result of the affidavit of Dr Zawadski and the clear inconsistency with the position put by Wells an adjournment was granted until 20 August 2004 for clarification to be provided by the defendant. 11 On that adjourned date an affidavit of Shivnani sworn 19 August 2004 was before the Court. 12 This affidavit indicates that the attendance at the Medical Centre on 10 August 2004 was to obtain an opinion of Shivnani's medical condition. The import of that paragraph is such that the medical certificate was obtained for general purposes, including insurance purposes, and was to verify unfitness for work. 13 There is nothing to suggest that the attendance related to a "relapse" that necessitated further urgent medical treatment (par 8 affidavit of Wells sworn 10 August 2004). 14 Shivnani's affidavit attached another medical certificate. This time from a Dr Grant Russell of the Onslow Road Family Practice stating that Shivnani is receiving medical treatment and for the period 16 August 2004 to 24 August 2004 is unfit to continue his usual occupation. The trial is due to resume on 6 September 2004. Further blood tests were being requested. 15 The medical evidence provided does not satisfy me that there is any reason to adjourn the forthcoming trial.
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History of trial
16 This matter was heard over a three day period in early April 2004. There were at least three separate applications in the weeks prior to the trial and during the course of the trial for the matter to be adjourned due, essentially, to the unpreparedness of the defendant to proceed with the trial at that stage. 17 The defendant went to some length to convince the Court not to proceed. There is now nothing presented either in the documents filed in recent times and in the course of argument to support the proposition that this matter cannot proceed or that the defendant will suffer a serious injustice if an adjournment is not granted. 18 My assessment is that indeed, a substantial injustice may be incurred by the plaintiff if the matter does not proceed. I have considered the principles in relation to adjournments as set out in the various cases including Myers v Myers [1969] WAR 19 and Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137. 19 There are certainly no exceptional circumstances which warrant exceptional intervention in this case.
Costs 20 The plaintiff has sought its costs from the defendant on an indemnity basis. The exercise of this discretion is confined to some form of delinquency in the conduct of the proceedings. (Harrison v Schipp [2001] NSWCA 13 at (1) and (153)). 21 An order for indemnity costs will only be made if there is some special or unusual feature in the case to justify departure from ordinary practice (Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 255 at 233). In considering this adjournment application of the defendant I am disturbed by its approach to this matter. Not only has the particular conduct caused a loss of time to the Court it has raised doubts in the Court's mind about the reasons for the application. 22 At their highest the medical reports in support of the application to adjourn are equivocal. They do not support the assertions contained in the affidavit of Wells of "a serious illness" or an illness that required "urgent medical attention". This is not to say that the defendant's sole director has not suffered some form of incapacity, discomfort and weakness requiring a period of recuperation which was addressed in mid July. Indeed the further tests to be carried out may reveal more of the condition but at this
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stage there is nothing more than a diagnosis of bleeding piles and anaemia. 23 At this stage there is not any support in the medical reports which would justify this Court adjourning the part heard matter. This should have been obvious when the application was first made. 24 If the matter had been left as it stood on 16 August 2004 I would not have contemplated the application for indemnity costs. However the matter has gone further and it appears there has been some, at the very least, difference in perception between Shivnani and Dr Zawadski about the circumstances of the obtaining of the medical report provided to this Court and dated 10 August 2004. 25 I am not in a position and do not intend to place myself in a position to decide where the truth lies in relation to the manner in which that report was obtained. It may well be that Shivnani was pushy, demanding and not as ill as he has tried to tell this Court. Alternatively, the doctor may not be describing the circumstances accurately. I also refer to the use of language in the affidavit of Wells as compared with the tenor of the medical reports. This Court is left with uneasiness about the whole application to adjourn. 26 In the Colgate case, Sheppard J commented that the categories of cases in which there is a departure from party-party costs is not closed but then went on to mention six circumstances: (a) making allegations of fraud knowing them to be false; (b) misconduct causing loss of time; (c) continuation of proceedings for ulterior motives; (d) making allegations that ought not to be made; (e) imprudent refusal to comprise; and (f) proceedings involving a contemnor. 27 Sheppard J noted that while circumstances capable of departing from the usual rule may be present, there is no compulsion in making an order; costs are always in the discretion of the Court. 28 Having read all the affidavit material I have a clear impression that the matters being put to the Court are not what they seem. That is all that
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it is – an impression. I am of the opinion that these proceedings do not warrant an indemnity costs order.
Payment of costs forthwith 29 Order 66, r 10(1) provides: "Costs may be dealt with by the Court at any stage of the proceedings or after the conclusion of the proceedings, and any order of the Court for the payment of costs may require the costs be paid forthwith notwithstanding that the proceedings are not concluded." 30 Although O 66, r 10(1) provides an express power to order that costs be paid forthwith cases indicate that special circumstances must be shown before the Court will make such an order. In Thunderdome Racetiming & Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312, Olney J said: "The discretion should be exercised in favour of party who establishes that the demands of justice require that there be a departure from what appears to be the general practice envisaged by the rule, namely, that an order for costs of an interlocutory proceeding shall not entitle a party to have a bill of costs taxed until the principal proceedings in which the interlocutory order was made is concluded." 31 In this case I do not believe that the plaintiff should be expected to wait for any costs that I do order until the proceedings are finalised. I am satisfied that there are special circumstances which justify the making of an order that the costs be paid forthwith and not await the final conclusion of proceedings.
Conclusion 32 For these reasons I order that the defendant do pay the plaintiff's costs of the application in any event with such costs to be taxed and be paid to the plaintiff forthwith.
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