Wood v Boskovitz

[2015] NSWSC 29

Supreme Court

New South Wales

Medium Neutral Citation:	Wood v Boskovitz [2015] NSWSC 29
Hearing dates:	06/02/2015
Date of orders:	06 February 2015
Decision date:	06 February 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Adjourn the concurrent hearing of the application for leave to appeal and the appeal. (2) List the matter for directions before the common law case management registrar at 9 a.m. on 5 May 2015. (3) The question of the defendant's costs thrown away by reason of the adjournment is reserved.
Catchwords:	APPEAL – civil – leave to appeal – interlocutory decision of Local Court PRACTICE AND PROCEDURE – adjournment of hearing – self represented litigant ill – no question of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Barry Wood (Plaintiff)
Representation:	Counsel: Self-represented. Brother, Laurence Wood appears by leave (for plaintiff) AM Gruzman (Defendant) Solicitors:
File Number(s):	2014/237755

Judgment

1. This is an application for leave to appeal from two interlocutory decisions of the Local Court given in a case which seeks to recover, by one means or another, moneys paid to a solicitor for legal costs. The costs were paid back in about 1997, perhaps 1998, and the proceedings were not commenced until 2012.

2. I am informed by Mr Gruzman of counsel, who appears for the defendant, that the proceedings were originally commenced in this Court when the solicitor was joined as a second defendant to proceedings against the Legal Services Commissioner which were subsequently settled. After the settlement with the Commissioner, an order was made (I am informed on the application of the plaintiff) remitting the matter to the Local Court, the amount remaining in dispute being well within that Court's monetary jurisdiction.

3. On the plaintiff's case the amount in dispute is $32,000; on the case for the defendant, who strenuously denies any liability, the costs paid do not exceed $10,000.

4. I have drawn the attention of the parties to the provisions of s 149 of the Civil Procedure Act 2005 (NSW). I will not say more about it now. I have expressed very provisional views about its relevance in the course of my discussion with Mr Gruzman of counsel and Mr Laurence Wood who is the brother of the plaintiff, Mr Barry Wood. Mr Laurence Wood was given leave to appear today because his brother Barry, who is the plaintiff, is, on the evidence I have received, which is not disputed by the defendant, unfit to attend.

5. There is a certificate from Dr James dated 5 February 2015 which I have admitted as Exhibit A. That certificate says that Mr Barry Wood has been Dr James' patient since 1992. He suffers from cardiovascular disease and from anxiety and depression. His anxiety and depressive condition has deteriorated recently. Dr James saw him yesterday. I interpolate I understand he was taken to the doctor by his brother who had found him in a very distressed state, according to his brother's letter to my associate of 5 February 2015 which is also part of Exhibit A. Dr James said he presented as very anxious. He had in the last week prescribed Valium and he has now referred him back to the psychologist. Dr James is of the opinion that he will be unfit for court for three months.

6. May I say that very fairly the defendant does not wish to be heard in contradiction of Dr James opinion, but this means that the case cannot proceed. It is fundamental that a party has the right to be present when his or her litigation is heard. The rule is not absolute but in my judgment it would be unfair to deal with the case in the absence of Mr Barry Wood as he is self-represented. And Mr Laurence Wood should not be forced to run the case even though he does have some interest in it because it arises out of proceedings brought on behalf of a trust of which he is a co-trustee. He has not been named as a party in these proceedings or in the Local Court.

7. As I have said, the application for leave to appeal relates to the refusal of two adjournment applications in July of 2014. Immediately after the adjournment applications were refused, Mr Barry Wood filed a notice of discontinuance of the proceedings, and Mr Gruzman has today, for the first time, raised a question about the competence of the appeal given that the proceedings below are no longer on foot. That is not to say that he asserts that the claim has been finalised.

8. It seems to me that the interests of justice require the case to be adjourned, and the only order I can make on the evidence is that it be adjourned for directions in three months' time.

9. I have made some observations in the transcript. I am going to provide the transcript to both parties so that they may consider the tentative views I have expressed. I won't make any formal direction about that but when the transcript is provided to my chambers I will direct my associate to forward it to the parties so they can consider, if they think it appropriate, the views I have expressed.

10. Mr Barry Wood is a man in his seventies and he suffers from the anxiety condition and the cardiovascular condition I have referred to. It seems to me that some indulgence should therefore be granted on the basis of the evidence I have received. However, it is obviously very important that the litigation proceed because litigation is vexing for individual litigants even where as here the defendant is a legal practitioner; perhaps especially when the defendant is a legal practitioner. This vexation cannot always be alleviated by procedural orders within the power of the Court.

11. I will grant the adjournment for three months.

12. It seems to me that as the matter relates to interlocutory orders it should be capable of being heard within one or two hours. I would envisage, presuming Mr Barry Wood's health has improved, that the matter should be listed as soon as the Court reasonably can following the date for directions which I will fix. That of course ultimately will be a matter for the discretion of the registrar. But the registrar may wish to consider whether the matter is capable of being referred to the duty judge to be dealt with expeditiously, subject of course to the reasonable availability of the parties and counsel.

13. My orders are:

1. I adjourn the concurrent hearing of the application for leave to appeal and appeal.

2. List the matter for directions before the common law case management registrar at 9 a.m. on 5 May 2015.

3. The question of the defendant's costs thrown away by reason of the adjournment is reserved.

14. As I have said, Mr Gruzman raised with me the question of the competence of the proposed appeal given the discountenance of the proceedings below. It seems to me that it would result in further unnecessary costs to require a motion to be brought forward to determine this question. If the point is to be argued on the concurrent leave application and the appeal, I think it appropriate that the plaintiff have advance notice of the defendant's argument in that regard. I will leave it to the appropriate sense of fair play of counsel to file and serve a written submission raising any point in that regard on or before 5 April 2015.

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Decision last updated: 16 February 2015