Ziverts v City of Albany - [2018] WASC 283

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   ZIVERTS -v- CITY OF ALBANY [2018] WASC 283
CORAM:   PRITCHARD J
HEARD:   31 AUGUST 2018
DELIVERED          :   Ex tempore
PUBLISHED           :   7 SEPTEMBER 2018
FILE NO/S:   CIV 3001 of 2012
BETWEEN:   CATHERINE RENEE ZIVERTS
Plaintiff
AND
CITY OF ALBANY
Defendant

Catchwords:

Practice and procedure - Adjournments - Application to adjourn a trial - Whether expedient in the interests of justice

Legislation:

Rules of the Supreme Court 1971 (WA), O 34 r 4

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:
Defendant	:	Mr J A Thomson SC & Mr S D Hubbard

Solicitors:

Plaintiff	:	In Person
Defendant	:	DLA Piper Australia - Perth

Case(s) referred to in decision(s):

AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22
Martincic v Marusco [2016] WASCA 133

PRITCHARD J:

(These reasons were delivered extemporaneously on 31 August 2018 and have been edited from the transcript).

This is an application by the plaintiff (Ms Ziverts) to adjourn the trial of this action, in effect, for a period of at least three months (Application). The defendant (the City) opposes the Application. The trial is listed before me for 12 days, to commence on 15 October 2018.
The application is brought pursuant to Order 34 rule 4 of the Rules of the Supreme Court 1971 (WA) (RSC), which grants the trial judge the discretion to adjourn a trial.
The basis for the application is that Ms Ziverts is presently experiencing symptoms of stress, anxiety and depression, which she says makes it difficult for her to prepare for her trial, particularly in circumstances where she is not legally represented. She has also submitted today in the course of the hearing that she needs more time to prepare for her trial.
For the reasons which follow, I am not persuaded that it is expedient in the interests of justice to adjourn the trial from the dates presently listed.
In these reasons, I deal with the following matters:
(1)The principles relevant to an application to adjourn a trial;
(2)The matters relied upon by Ms Ziverts in support of her Application;
(3)The matters raised by the City in opposition to the Application; and
(4)Why the Application should be dismissed.

The principles relevant to an application to adjourn a trial

As I have said, the power of the Court to adjourn a trial is contained in O 34 r 4 RSC, which provides that:
The judge may if he [or she] thinks it expedient in the interest of justice, adjourn a trial for such time, and to such place, and upon such terms, if any, as he [or she] thinks fit.
The principles in relation to adjournment applications of this kind have been the subject of discussion in a number of cases, most significantly the decision of the High Court in AON Risk Services Australia Limited v Australian National University.[1] The application of the principles discussed in that case have been discussed in a number of authorities, including the decision of the Court of Appeal in Martincic v Marusco.[2] For present purposes, it is convenient to refer to the summary of the principles set out by Mitchell J in Cauldron Energy v Beijing Joseph Investment,[3] which I gratefully adopt:
Order 34 r 4 of the Rules empowers me to adjourn a trial to such time as I think fit if I think it 'expedient in the interests of justice to do so'. That rule is to be construed and applied so as best to ensure the attainment of the objectives referred to in O 1 r 4B(1) of the Rules. Those objectives include promoting the just determination of litigation, disposing efficiently of the business of the court, maximising the efficient use of available judicial resources and facilitating the timely disposal of business.
Also relevant to the exercise of my discretion to grant an adjournment is the requirement of O 1 r 4A that:
The practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
The discretion to grant or refuse an adjournment must also be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case or defence. What is required is that the parties are provided with a sufficient opportunity to present their cases. A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court has declined to provide a further opportunity to do so.
In considering whether determination of litigation is just, regard must be had to the interest of other parties to the litigation and other litigants in other cases. Speed and efficiency, in the sense of minimum delay and expense, are aspects of the just resolution of proceedings. Considerations of speed and efficiency cannot detract from the requirement that a party to litigation be given sufficient opportunity to present their case. However, where a party has been given a sufficient opportunity to present their case then a decision about an adjournment to provide further opportunity must take account of the injustice to the other parties which may follow from the delay, expense and disruption which results from a listed trial not proceeding.
[1] AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175.
[2] Martincic v Marusco [2016] WASCA 133.
[3] Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd [2016] WASC 22 [135] - [138] (citations and paragraph numbers omitted).

The matters relied upon by Ms Ziverts in support of her Application

I turn now to the matters relied upon by Ms Ziverts in support of her Application.
At the heart of Ms Ziverts' Application was her reliance on a written report provided by a psychologist, Mr Barry Critchison. Mr Critchison gave evidence and was cross-examined at the hearing of Ms Ziverts' Application today. I will turn to Mr Critchison's report, and to what he said in oral evidence, in a moment.
In addition, I have taken into account some emails from Ms Ziverts dated 29 August and 31 August 2018, in which she outlined her difficulties in trying to comply with the orders of the Court and in managing her health, the difficulties and overwhelming feelings that she has had in having to deal with the evidence concerning her case, the trauma that she is experiencing in dealing with the evidence, and her difficulties in preparing the case generally, without the assistance of legal representation.
In the course of her submissions today, Ms Ziverts has also indicated that she needs more time to prepare for the trial, on the basis that she is still marshalling her evidence, and only obtained case files from her former solicitors on 29 June 2018.
Turning to Mr Critchison's evidence, the salient points from his written report are as follows. He indicated that Ms Ziverts has reported now experiencing panic attacks, extremely severe anxiety, severe migraines, and feelings of hopelessness and helplessness. Mr Critchison said that these were among the symptoms of severe depression. He also indicated that Ms Ziverts needs 'at least three months grace' from the Court to give her time to recover her health so that she is able to represent herself in Court, 'against experienced lawyers who know the law and the procedures'.
Mr Critchison's evidence today assisted the Court to understand the basis for the opinion set out in his written report. The salient features of Mr Critchison's evidence in Court today included that he had asked Ms Ziverts to undertake what he described as the DAS test, which looks at depression, anxiety and stress levels. The outcome of that test, in his opinion, was that Ms Ziverts was suffering from extreme stress, extreme or severe anxiety and severe depression.
However, it emerged in cross-examination that the DAS test results are based on self-reporting by the person completing the test (namely Ms Ziverts). That is, the test is a subjective test. Consequently, I approached Mr Critchison's evidence concerning the results of the DAS test with caution because of the risk that the results of the test, based on responses provided by the person undertaking the test, might be prone to being affected by conscious or unconscious manipulation of the responses.
More importantly, however, Mr Critchison acknowledged some additional factors he had taken into account in reaching his opinion. The first was that his opinion was based on Ms Ziverts' advice to him that she was feeling rushed by virtue of the way that the case was proceeding. Mr Critchison confirmed that that was a factor in reaching his opinion. In addition, Mr Critchison accepted that there were two things that were driving the stress Ms Ziverts was experiencing. The first was that she needs more time to prepare, or that she feels that she needs more time to prepare. The second was that she needs time, or more time, to try to find legal representation.
However, Mr Critchison accepted that he had had only a very short period of time to see and assess Ms Ziverts, and had not really had long enough to get a full picture of all of the events that may be contributing to her present situation.
In relation to his opinion that Ms Ziverts required an adjournment of three months, Mr Critchison accepted that that time period was only an estimate, and that some people can recover in less time than three months, and some people would take more than six months to recover from the stress, depression and anxiety that Ms Ziverts was experiencing. The speed of that recovery would be dependant on whether the person implemented the sorts of strategies that Mr Critchison had in mind to assist Ms Ziverts to deal with the stress that she was experiencing. Mr Critchison acknowledged that his estimate was really a 'ballpark' amount of time. He acknowledged that it was possible that Ms Ziverts would see some effects of implementing the strategies he proposed within less than three months, but that her progress would necessarily depend on whether she was willing to 'do the homework'. On the other hand, Mr Critchison acknowledged that it may take longer for Ms Ziverts to see real improvement. The point was that he was unable to estimate with any kind of accuracy what period of time might be required to see Ms Ziverts overcome her present difficulties. In addition, Mr Critchison accepted that even without any treatment or improvement it was possible that Ms Ziverts would be able to prepare for the trial, bit by bit, but slowly.
Finally, Mr Critchison was asked to comment on whether four and a half months would be sufficient for Ms Ziverts to prepare for trial, given her current symptoms. (Four and a half months is the period within which Ms Ziverts will have been self‑represented, since the end of May 2018 when her former solicitors ceased to act, to the beginning of the trial in October 2018.) He accepted that he would only be able to speculate as to whether that would be a sufficient period of time, with her current symptoms, for her to be able to prepare adequately for trial.

The matters raised by the City in opposition to the Application

I turn now to the matters raised by the City in opposition to the Application.
In short, they were that: the City has prepared for trial; that an adjournment would necessarily result in the City incurring further costs; that the trial has already been adjourned once, and that another adjournment would likely result in further interlocutory applications (as has been the case since trial was originally adjourned from mid‑August 2018 to October 2018) which themselves will lead to increased costs; and that if the adjournment is granted and if counsel for the City continues to be briefed for the trial, the trial could not proceed until May 2019, given counsel's availability. That final factor is not a factor that is determinative (and counsel for the City did not contend that it was), but it is a factor which warrants some weight, given the additional costs which would be involved in briefing a new counsel.
Finally, counsel for the City referred to the fact that while costs thrown away by an adjournment might be awarded, that is not a sufficient basis for the grant of an adjournment in any event.[4] He submitted that in this case it was relevant that it is unlikely that Ms Ziverts would be in a position to pay any costs awarded as costs thrown away by an adjournment, given her present financial difficulties.
[4] Cf AON Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [94] - [99].

Why the Application should be dismissed

I turn then to explain why I have concluded that the Application to adjourn the trial should be dismissed.
First, it is important to take into account the position of the City. There will be some consequences for the City of the trial being adjourned, in terms of costs and inconvenience. These are not determinative in this case. Other factors weigh more heavily in my consideration of the Application. Nevertheless, the position that the City would suffer some prejudice is certainly relevant.
Ms Ziverts' position, and the limitations of the evidence upon which she has relied in seeking an adjournment, have weighed more heavily in my consideration of the Application.
The report of Mr Critchison and his evidence today permits the following conclusions. First, although Mr Critchison estimated that Ms Ziverts would require at least 'three months' grace' from the Court to give her time to recover, with respect, that really amounted to little more than a guess. He was unable to say whether that would be a sufficient period of time. It may well be that less time would be required, or that more time would be required, for Ms Ziverts to recover from her symptoms of stress, anxiety and depression. In that circumstance, the Court could not be satisfied that an adjournment, perhaps of even longer than three months, would be adequate to permit Ms Ziverts to improve in her current psychological state of mind. On the other hand, Mr Critchison accepted that even without implementing any of the strategies that he proposes to assist Ms Ziverts to adopt, she would nevertheless be able to prepare for the trial 'bit by bit'. This is, therefore, a case in which Ms Ziverts is not entirely incapacitated and unable to do any preparation whatsoever.
Secondly, turning to Mr Critchison's evidence that Ms Ziverts' present degree of stress comes from the fact that she is no longer legally represented, the difficulty with that situation is that that is the regrettable experience for many self‑represented litigants who appear in this Court. Moreover, even if more time is given to Ms Ziverts to endeavour to find legal representation, there is no guarantee whatsoever that she would obtain pro bono representation.
The consequence of these two factors is that even if the Court were to grant an adjournment of three months or even more, it would remain possible that Ms Ziverts may not be in an improved position, having regard to her present psychological state, and she may not be able to obtain legal representation. In other words, the Court would have granted an adjournment where there would be no guarantee of any practical or meaningful improvement in the situation that presently exists.
In addition to the evidence of Mr Critchison, I take into account the following factors.
First, this matter has been on foot since 2012, and some of the allegations in it pertain to matters which occurred well before the issue of the writ. A further delay in the trial will mean that this matter will have an even longer time coming to its resolution. Further delay in the trial also necessarily impacts on any witnesses who may be called. That is so, even though, at least from the City's perspective, witnesses will not be called upon to recall particular facts or events from first‑hand observations to such an extent as might be required in other cases.
Secondly, I take into account the fact that the trial was originally listed to commence on 15 August 2018. That listing was made in late 2017. Ms Ziverts and her then solicitors were on notice for many months of that trial date. In addition, well prior to that listing, orders were made for the preparation of the evidence upon which Ms Ziverts would rely. Ms Ziverts' former solicitors had taken some steps to prepare that evidence, and Ms Ziverts has had the benefit of that preparation. By way of example, Ms Ziverts' former solicitors had prepared her witness statement, and had arranged the preparation of expert reports from Dr Davies and Ms Ryan. This is, therefore, not a situation in which Ms Ziverts is commencing her preparation 'from scratch'.
Ms Ziverts' claim that she needs more time to prepare for trial seems to have arisen because Ms Ziverts now seeks to rely on additional evidence to that identified by her former solicitors, and seeks to adduce evidence from additional witnesses, and because she is now dealing with objections to her evidence which have been raised by the City. I note that some of those objections, most significantly some of those dealing with Dr Davies' report, were identified some months ago by the City's solicitors, and her then legal representatives were on notice as to those objections.
Thirdly, this is litigation which Ms Ziverts herself is pursuing. She is not a defendant facing litigation whether she likes it or not. This is her action, and it is up to her whether she proceeds with it.
Fourthly, although Ms Ziverts has experienced some difficulties, it is apparent to me that she has some ability to prosecute her own action. In her submissions to the Court today, Ms Ziverts has been lucid and confident, and clearly has the ability to present her argument. I do not overlook the very significant difficulties that any litigant in‑person has in preparing a matter for hearing and presenting it to the Court. However it is apparent to me that Ms Ziverts is a person who has some ability, taking advantage of the preparation already done, to present her case to the Court. There is no doubt that that is harder without legal representation, but as I have said, Ms Ziverts stands in no different position from the many other people in our justice system who are self-represented.
Fifthly, Ms Ziverts has already had a number of indulgences from the Court. The most significant indulgence has been an initial adjournment of the trial from its original listing date in August 2018, to the trial dates commencing on 15 October 2018. That adjournment and the other indulgences that have been granted - in the form of further time to file witness statements and to provide expert reports - have been consistent with my attempts to ensure that Ms Ziverts is able to progress her preparation towards trial with the most time that can be given to her, but consistent with the overall objective of ensuring a fair trial to all.
Finally, while the Court can and does try to use vacant hearing days where possible, the reality of a further adjournment would be that two substantial trial periods will have effectively been under-utilised, in terms of their most efficient use for other litigants in the Court. Given the pressure on the Court's resources, that consequence cannot be ignored.

Taking all of these considerations into account, I bear in mind the requirement that the Court is to consider whether an adjournment of the trial is expedient in the interests of justice. In determining what is just in the determination of litigation, whether a party has been given a sufficient opportunity, or will have a sufficient opportunity, to prepare for and present their case, does not require that they be given an unlimited amount of time. The question in the end, taking all of the circumstances into account, is whether a party will have a sufficient opportunity to prepare for and present their case. Taking all of the matters to which I have referred into account, I am satisfied that Ms Ziverts will have had sufficient time to prepare for and present her case if the action proceeds to trial in October.
Consequently, I am not satisfied that it is expedient in the interests of justice to adjourn the trial in the circumstances.
The final observation I wish to make is that this case is one which, despite some pessimism (resulting from previous unsuccessful attempts to mediate) a further attempt at mediation should be made. In making that observation, I wish to emphasise the importance of both sides adopting a willingness to compromise as to what might be done to bring an end to this litigation. A mediated outcome very rarely involves one side getting entirely what it wants. What a mediated outcome involves is both parties coming to the table with an appreciation that there are risks to litigation, not just in costs, but in the time, inconvenience, distraction and devotion of resources which are necessary for a trial, particularly a lengthy trial, and that a compromise as to the ultimate relief which is sought by either side may be warranted in the interests of quickly resolving the litigation with certainty, and in a way that each party can live with.
The Application should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD
7 SEPTEMBER 2018