Atanaskovic v Birketu Pty Ltd

Background

1. The application to vacate the hearing dates was advanced on the ground of the likely unavailability of the appellants' senior counsel, Mr Shane Doyle QC, who was not counsel briefed at trial, to attend the hearing in person given that he is currently located in the United Kingdom, his return flight to Australia in early March has been cancelled and additionally, he is unwilling to travel by air until he has received a Covid-19 vaccination. As to the alternative of appearing remotely by video link, the appellants say that Mr Doyle does not believe he could "safely" do justice to the appeal by appearing by video link.
2. The respondents, Birketu Pty Ltd (Birketu) and WIN Corporation Pty Ltd (WIN), opposed the application on various grounds including delay in making the application and prejudice to the respondents if the hearing is vacated.
3. The appeal involves a challenge to a decision of Hammerschlag J given on 15 May 2020 in which his Honour found that the appellants are not entitled to recover their fees of $149,736.19 from Birketu for work performed pursuant to a retainer relating to the investigation of a fraud committed against Birketu by an employee of the appellants: John Ljubomir Atanaskovic and Others t/as Atanaskovic Hartnell v Birketu Pty Ltd - Supervisory Jurisdiction [2020] NSWSC 573. The central issues on the appeal concern whether the appellants did not obtain Birketu's fully informed consent to act on its behalf in respect of the retainer, and whether it was not proper or even possible for the appellants, acting ethically, to accept the retainer and to act in respect of the retainer due to a "clear and profound conflict of interest between the appellants' own interests and the duties which they owed Birketu". The appeal also challenges a factual finding in an earlier decision of Hammerschlag J given on 9 August 2019 that the first appellant, Mr John Atanaskovic, gave an oral undertaking not to charge for certain work performed pursuant to the retainer with Birketu: John Ljubomir Atanaskovic and Others t/as Atanaskovic Hartnell v Birketu Pty Ltd [2019] NSWSC 1006.
4. The quantum in issue is relatively small, being an amount of $149,736.19 plus interest. The respondents have paid money into Court and the amount of $149,736.19 awaits payment pending the determination of the appeal.
5. The appellants briefed Mr Doyle QC on 25 September 2020 to appear as senior counsel on the appeal. He subsequently provided advice, settled the notice of appeal filed 2 October 2020, and drafted and settled the appellants' written outline of submissions.
6. On 28 October 2020, the Registrar fixed the appeal for hearing on 29 March 2021 with an estimate of three days at the request of the parties. Directions were given for the preparation of the appeal, which have been complied with to date. All that remains in terms of preparation are the respondents' written submissions (which the respondents say are well advanced), any reply by the appellants and the filing in due course of the Orange Book.
7. The appellants' solicitor deposed that Mr Doyle informed Mr Atanaskovic on 27 November 2020 that he was travelling from Brisbane to the United Kingdom that night and would return to Australia in the New Year. On 13 January 2021, Mr Doyle informed the appellants by email that his return flight (in fact, in early March this year) had been cancelled by the airline. Mr Doyle's email continued: Additionally, given the present position with the virus in the UK, I am reluctant to come out of lockdown to fly in any event unless and until the vaccine becomes available to me. I thought it important to give you this early notice so that you can retain other senior counsel to appear or at least identify who might be available should my position remain unclear as the hearing date approaches.
8. The appellants' solicitor has made enquiries of Mr Doyle to ascertain when he presently anticipates that he will return to Australia, but Mr Doyle had not responded at the time of the solicitor affirming his affidavit on 5 February 2021. That remained the position on the hearing of the application.
9. In support of the adjournment application the appellants relied upon essentially three submissions: 1. the hearing of the appeal should be vacated because the reasons for the unavailability of their senior counsel were unusual, even unique, and outside the appellants' control; 2. the respondents would not be prejudiced by an adjournment because the main subject matter of the appeal is a simple money judgment and the amount in dispute is relatively small; and 3. the appellants' would suffer substantial prejudice if they had to brief alternative senior counsel in terms of wasted costs involved in briefing alternative counsel and by reason of Mr Doyle's familiarity with the matter.

Decision

1. The Court has power to vacate the hearing dates, both under s 66 of the Civil Procedure Act 2005 (NSW) and the inherent power of the Court to do justice between the parties: Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 at 252. This power must be exercised in accordance with the overriding purpose of the Civil Procedure Act and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to facilitate the just, quick and cheap resolution of the real issues in the proceedings, taking into account the objects of case management and in accordance with the dictates of justice: ss 56(1), 57 and 58, Civil Procedure Act.
2. The considerations that must be taken into account include: the prejudice to the respondents by such an adjournment; the prejudice to the appellants if the adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court: Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 at [13] (Ward JA).
3. The present application rests on the likely unavailability of senior counsel. Ordinarily, the convenience of counsel is not a factor of any particular weight in relation to adjournment of a hearing. Although Mr Doyle has been closely involved in the framing of the grounds of appeal and the preparation of the written submissions, there is no substantial prejudice to the appellants in briefing another senior counsel on the hearing. The appellants fairly acknowledged that they are in a position to do so, and it was not suggested that alternative senior counsel could not adequately present the appellants' oral argument on appeal.
4. The asserted prejudice to the appellants in terms of wasted costs in briefing alternative senior counsel is of little weight when it is the appellants that are seeking the adjournment, and in any event, there was no evidence of the likely amount of those costs.
5. Given the Covid-19 pandemic, the consequential constraints on international air travel and that all parties have known, or ought to have known, about the travel restrictions in place with the UK since at least March 2020, the appellants must be taken to have assumed the risk that Mr Doyle might not return to Australia in time for the hearing when he informed them that he was travelling to the UK in late November 2020. That this risk has now materialised is a matter for the appellants to address, and they are in a position to do so by briefing alternative counsel.
6. Moreover, even if the hearing of the appeal was vacated for 6 months to September 2021, as the appellants' initially suggested, there remains significant uncertainty surrounding Mr Doyle's likely availability to appear later this year. That there is scant evidence on this question highlights the uncertainty concerning Mr Doyle's future availability if the hearing is adjourned. Thus there is no evidence of Mr Doyle's anticipated date of return travel to Australia. There is no evidence of how soon after February 2021 it is anticipated that Mr Doyle's priority age group will receive the vaccine in the UK, assuming he is otherwise eligible under the UK National Health Service scheme. And there is no evidence that Mr Doyle has confirmed air tickets to return to Australia on a particular date, after he has received two vaccine shots, anticipated to be 12 weeks apart.
7. The appellants accepted in argument that the earliest date for any adjourned hearing would be in the last quarter of this year. If the appeal were heard at that time, it is likely that a judgment would not be handed down until early in the following year. That length of delay in the finalisation of an appeal filed on 2 October 2020 is not consistent with the statutory command in s 56 of the Civil Procedure Act.
8. The respondents submitted that the appellants have delayed in making this application since Mr Doyle first left Australia in November 2020. That is putting the matter too highly. I accept however that by no later than 13 January 2021, upon receipt of the email from Mr Doyle outlining his apprehension about failing to return to Australia in time for the March hearing, the matter should have been brought to the attention of the Court and the respondents. The appellants delayed doing so for a period of three weeks.
9. The effect of any adjournment on other litigants in the Court and the efficient maximisation of court resources are both relevant considerations. In Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841, the majority of the High Court observed at 844: In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. … What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.
10. Similar remarks concerning the "efficient dispatch of the business of the court" were expressed by Gleeson CJ in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (1992) 29 NSWLR 487 at 493F-495D.
11. One consequence of the delay is that if the hearing was now adjourned, it would most likely result in a waste of some or all of the three days allocated for this appeal, given the usual lead time of between two to three months in fixing appeals for hearing.
12. In addition, any adjournment would have a detrimental consequence for other parties in this Court in having to compete with the parties in this appeal in obtaining new hearing dates later this year.
13. Turning to the asserted prejudice that would be suffered by the respondents if the hearing was vacated, the most significant is the availability of the respondents' senior counsel, Mr Bret Walker AO SC, if the hearing is vacated. There is unchallenged evidence that Mr Walker has very limited availability to commit to three full days at any later date this year. Mr Walker has had a long association and involvement in the proceedings having been retained by the respondents to advise on the trial, including all preparatory work, and appearing at the trial, and now retained on the appeal and being heavily involved in the appeal preparations. I accept that there is a substantial risk that any vacation of the hearing dates and allocation of a hearing date later in the year would likely require the respondents to brief new senior counsel, at significant cost and inconvenience, in addition to the loss of expertise and insight from a senior counsel who appeared at the trial and was retained on the appeal.
14. The respondents also emphasised the prejudice in terms of delay in finalisation of the matter. The proceedings below were commenced in 2017 when the respondents discovered that they were the victims of a fraud perpetrated by an employee of the appellants. The respondents have a legitimate interest in having the appeal heard and determined on the dates fixed for hearing. It is no sufficient answer for the appellants to say as they do, that the main subject matter of the appeal is only money. Many cases are only about money, but that does not mean that hearing dates for appeals should be readily vacated to suit the convenience of counsel who later becomes unavailable. That would be contrary to the statutory command of the "just, quick and cheap resolution" of the real issues in dispute: s 56(1) Civil Procedure Act.
15. One final matter should be mentioned. This was no challenge to the evidence of the appellants' solicitor that Mr Doyle had informed him that he is reluctant to appear remotely by video link because of counsel's concern that he could not "safely" present the oral argument across three nights (UK time). I accept that Mr Doyle genuinely holds such belief. That however is not a compelling reason to grant an adjournment so that the appellants could hopefully have Mr Doyle appear in person later this year.

Conclusion and Orders

1. Weighing all of the considerations referred to above, in particular, (a) the absence of substantial prejudice to the appellants given that they are in a position to brief alternative senior counsel to appear on the hearing, (b) the prejudice to the respondents in terms of delay in finalisation of the appeal and the substantial risk of unavailability of their senior counsel for a hearing later this year, (c) the delay in making the application, (d) the detrimental effect of an adjournment on other litigants in the Court who would be competing with the parties for hearing dates later this year, and (e) the public interest in achieving the most efficient use of court resources, I am firmly of the view that the interests of justice require that the hearing of the appeal not be vacated.
2. Accordingly, I made the following orders on 15 February 2021: 1. Notice of motion filed 5 February 2021 is dismissed. 2. Appellants to pay the respondents' costs of the motion.

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