This is an application by the defendant, Ms Farnan, to set aside orders made against her at the suit of the plaintiff, Blue Badge Insurance Australia Pty Ltd ("Blue Badge"). The orders were made by a Judge of this Court (Kunc J) following a hearing which took place on 30 May 2017: Blue Badge Insurance Australia Pty Ltd v Farnan [2017] NSWSC 688. The orders require Ms Farnan to deliver up any records retained by Ms Farnan of information which is confidential to Blue Badge. The orders also require that, to the extent that Ms Farnan no longer retains such records, she file an affidavit identifying what has happened to them.
Ms Farnan did not appear at the hearing before Kunc J. She now makes various complaints about the conduct of the proceedings before his Honour and various criticisms of his Honour's judgment. She seeks to have his Honour's orders set aside with a view to a rehearing of the proceedings.
The background to Blue Badge's claims in these proceedings was set out by Kunc J in his Honour's judgment at [14]-[27]. In brief, between March or April 2013 and November 2014, Ms Farnan was retained or employed to advise Blue Badge on regulatory and compliance issues associated with Blue Badge's insurance business. In November 2014, Blue Badge terminated the arrangement and sought to retrieve from Ms Farnan information provided to her for the purposes of her work which Blue Badge claimed was confidential. Blue Badge's claim was based on the provisions of a Deed of Confidentiality executed by Ms Farnan in March 2013.
The proceedings were commenced by Blue Badge in October 2015 by Summons. At an earlier stage of the litigation, Ms Farnan was represented by a firm of solicitors. In August 2016, Ms Farnan filed a notice removing her solicitors and since then she has been unrepresented.
The procedural history leading up to the hearing before Kunc J was recounted in his Honour's judgment at [3]-[6]. The proceedings were initially fixed for hearing before Slattery J on 14 September 2016. That hearing was vacated following a last-minute application by Ms Farnan. The proceedings were subsequently fixed for hearing on 30 May 2017 before Kunc J. On 23 March, his Honour made directions for the preparation of the case for hearing. Ms Farnan did not comply with the directions. The night before the hearing, she sent an email to the Court saying she was unable to attend. For reasons his Honour gave, he was not prepared to defer the hearing further and it proceeded before him on 30 May. Although Ms Farnan did not attend, evidence was given in the ordinary way and his Honour satisfied himself, on the evidence, that Blue Badge was entitled to relief. His Honour also gave specific consideration to the form of the appropriate orders to make.
Ms Farnan's application to set aside his Honour's judgment was made by way of notice of motion filed on 15 June. Following various directions hearings, it came before me for determination on 1 December. At Ms Farnan's request, I permitted her to conduct the hearing by telephone from her home in Victoria rather than attend Court in person.
Ms Farnan sought to read a lengthy affidavit in support of the application. Parts of the affidavit consisted of argumentative material in the nature of submissions. I rejected these passages as evidence, but I have taken them into account as submissions. I also received, and for convenience marked as exhibits, a number of documents produced by Ms Farnan in the nature of written submissions. I also heard oral submissions from Ms Farnan, both in chief and in reply, at length.
Extensive passages of Ms Farnan's affidavit dealt with her complaints about the conduct of officers and employees of Blue Badge, and its legal representatives. Although these passages did include reference to events in which Ms Farnan had personally been involved, they were not in proper form. I received such evidence on the basis that it was relevant, or at least arguably relevant, to the case which Ms Farnan might make should the judgment of Kunc J be set aside and a fresh hearing ensue. I made it clear that I did not intend to make any factual findings as to whether events had in fact occurred in the way Ms Farnan described and Ms Farnan accepted that I should proceed on this basis. Paragraphs 7-9, 11-13 and 56-59 of the affidavit were received conditionally and I now admit them, but on the same basis.
In Ms Farnan's affidavit and written submissions, she made various complaints and criticisms about the decision of Kunc J. Some of these went to the substance of Blue Badge's claim and the orders made by his Honour. These included arguments that she had executed the Deed of Confidentiality under some type of duress or other pressure; that there was some question as to what had happened to the original of the Deed, including a suggestion that the original might not have been in the same form as the document before his Honour; that there was some error in the period covered by the orders because Ms Farnan had only started work for Blue Badge at a later point; that information provided to her was not confidential, or did not satisfy the definition of confidential information under the Deed; and that she had returned or destroyed all records of such information in any event.
Ms Farnan also criticised the conduct of the proceedings by Kunc J. She submitted that his Honour's conduct gave rise to an apprehension of pre-judgment and of favouritism towards Blue Badge. Extensive reference was made to the transcript of the pre-trial directions hearing on 23 March and the hearing on 30 May in an attempt to support these submissions.
All of these matters were complaints about the judgment of Kunc J which would ordinarily be dealt with by way of appeal proceedings. But Ms Farnan also criticised the outcome by reference to factors standing outside the proceedings. She asserted that the proceedings were an abuse of process by Blue Badge and went so far as to assert that Blue Badge's conduct was tainted by fraud, both on the part of executives and its legal representatives.
[2]
Setting aside judgment given in the absence of a party
Ms Farnan's application was made under r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW). That rule relevantly provides:
36.16 Further power to set aside or vary judgment or order
(1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order.
(2) The court may set aside or vary a judgment or order after it has been entered if:
(a) it is a default judgment (other than a default judgment given in open court), or
(b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order,
…
(3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it:
(a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or
(b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.
(3A) If notice of motion for the setting aside or variation of a judgment or order is filed within 14 days after the judgment or order is entered, the court may determine the matter, and (if appropriate) set aside or vary the judgment or order under subrule (1), as if the judgment or order had not been entered.
…
(3C) Despite rule 1.12, the court may not extend the time limited by subrule (3A) or (3B).
(4) Nothing in this rule affects any other power of the court to set aside or vary a judgment or order.
The orders made by Kunc J were entered in the Court's computerised record on the day they were made, namely 30 May. Sub-rule (1) is, therefore, inapplicable. And although Ms Farnan did not attend the hearing, the judgment was not a "default judgment" for the purposes of sub-r (2)(a). As the judgment determined Blue Badge's claim for relief in the proceedings, sub-r (3) is not applicable either. Ms Farnan sought to rely on sub-r (3A) which I address in more detail below. But it is clear that, quite independently of sub-r (3A), sub-r (2)(b) is engaged because Ms Farnan did not attend the hearing at which the orders were made.
Recently, in Majak v Rose (No 5) [2017] NSWCA 238 the Court of Appeal considered an application under sub-r (1) where the applicant had filed a notice of motion within the time prescribed by sub-r (3A). The Court (Leeming JA, Simpson JA and Emmett AJA) said (at [12]):
The rule is, like all rules made under the Uniform Civil Procedure Act 2005 (NSW), subject to the "overriding purpose" of facilitating the "just, quick and cheap resolution of the real issues" between the parties to litigation (s 56). It does not give a licence to disgruntled litigants to re-agitate, in the hope of obtaining a more favourable outcome, issues that have been determined against them. Nor does it make of a court some sort of magic pudding from which unsuccessful litigants may take slice after slice, ever hopeful that the next will be more palatable than the last. The rule has a serious, but limited, purpose which is to permit readily identifiable, readily rectifiable, inadvertent errors to be corrected without the complication and expense of an appeal (or, in the case of this Court, an application for special leave to the High Court). Abuse of the rule is detrimental to the administration of justice in unnecessarily and unfairly (to other litigants) taking up the time of the court. Nor does abuse of the rules facilitate the just, quick and cheap resolution of the issues between parties. On the contrary, unwarranted reliance on r 36.16 is oppressive to the successful party and a drain on the Court's resources.
This statement of principle refers to sub-r (1) (including where it is properly engaged under sub-r (3A)), but, in my view, provides authoritative guidance as to the proper approach to the application of sub-r (2) as well. The general principle is that judgments, once given, are final. In the case of a judgment at first instance following a final hearing, such as that of Kunc J in the present case, any challenge to the decision must usually be pursued by way of appeal (in the present case, an application for leave to appeal).
The r 36.16 procedure is a summary one which is generally ill-suited to the resolution of contested challenges to the reasoning or the evidentiary basis for the trial judge's conclusions, or to complaints of denial of natural justice based on the trial judge's conduct of proceedings. This is especially so where, as here, the application comes before a different judge sitting at first instance. It would obviously be unworkable if a litigant dissatisfied with a trial judge's judgment could, in effect, appeal to another trial judge by the simple expedient of making an application under r 36.16. All this underlines the Court of Appeal's focus on "readily identifiable, readily rectifiable, inadvertent errors" being corrected as an alternative to appeal proceedings.
When considering the application of sub-r (2)(b), it is important to remember that r 36.15 provides for the setting aside of a judgment which has been obtained "irregularly, illegally, or against good faith". Default judgments (as referred to in sub-r (2)(a)) and judgments given where there is no appearance by the defendant (as in sub-r (2)(b)) are cases where such irregularities may arise. However, the power under sub-r (2) must not be exercised so freely that the restrictions on the Court's power under r 36.15, and the general principle that appeal is the appropriate way to raise complaints, are subverted. In Northey v Bega Valley Shire Council [2012] NSWCA 28, Barrett JA, sitting as a single judge of the Court of Appeal on an application under sub-r (2)(b) said (at [13]) that the applicant's absence from the hearing:
… is insufficient to justify setting aside of the order. There must be some added factor that makes it unjust for the order to stand.
I respectfully agree with his Honour. Ordinarily, the proper remedy for a party who has suffered judgment where that party was not represented at the hearing but was on notice of the hearing must be an appeal rather than an application under sub-r (2)(b).
The criticisms made of his Honour's reasoning and orders which I have summarised at [9]-[10] above do not, of themselves, disclose any exception to the general rule. They are all complaints which, if valid, could have been the subject of an application for leave to appeal. They are obviously controversial and could not possibly be dealt with in a summary way under the r 36.16 procedure. For this reason, I have not considered the merits of these complaints, or whether they are even arguable. It is enough to say that the Court could not possibly uphold any of them on a summary basis under r 36.16.
The same observations apply to the allegations of apprehended bias against Kunc J. I have not considered the merits, or even the arguability, of these complaints. On the material presented, the Court could not possibly uphold them on a summary basis.
The contention that the judgment was obtained by fraud depends, of course, on matters which were not before Kunc J and could not be a basis for appellate challenge to his Honour's orders. But that does not mean that it is necessarily appropriate to deal with that contention on an application under r 36.16.
In Jonesco v Beard [1930] AC 298 Lord Buckmaster said (at 300):
It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires.
This settled practice is followed in Australia also: see, for example, McDonald v McDonald (1965) 113 CLR 529 at 533 (Barwick CJ), 535 (Taylor J), 542 (Menzies J); Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009) 78 NSWLR 190 at 192 [6]. In my opinion, it is relevant in the present case. Ms Farnan's contention was not articulated in any formal way by pleadings or particulars and could not practicably have been investigated on a factual level on this application. In those circumstances, I think the contention is wholly irrelevant for the purposes of r 36.16. There is nothing to stop Ms Farnan, should she wish, from pursuing the contention that the judgment of Kunc J was obtained by fraud in the ordinary and usual manner in which such a contention is pursued, namely by way of separate proceedings in the Court.
In saying this, I do not wish to be seen as endorsing any such proceedings. As articulated before me, Ms Farnan's complaints appeared to be largely centered on the conduct of earlier proceedings in the Federal Circuit Court to which Kunc J referred in his judgment, but which seem to me to be quite irrelevant for present purposes. Fraud in those proceedings (and I do not suggest that Ms Farnan's allegations raise even an arguable case of such fraud) would not be a basis for impeaching the judgment given by Kunc J. The allegations against Blue Badge's legal representatives appear particularly egregious. I see nothing to support the allegations that Ms Farnan has made against them, although I do not claim to have investigated those allegations fully because, for reasons which I have given, they could not be a proper basis for summary action under r 36.16.
Similar considerations apply to Ms Farnan's allegations for the abuse of process on the part of Blue Badge. Abuse of process is a tort just as fraud is. In principle, it would appear to be open to Ms Farnan to bring separate proceedings in the Court for abuse of process which would allow for the formal articulation of Ms Farnan's claims and for the full panoply of Court procedures to be available for their proof in the ordinary way. Again, the allegations fall far short of being suitable for summary determination in Ms Farnan's favour on this application. Again, it is not necessary to evaluate those allegations any further for present purposes.
Once these matters are put to one side, it becomes necessary to ask whether there is any remaining aspect of the proceedings before Kunc J which could not be the subject of appeal or collateral proceedings in the usual way. Ms Farnan said that there was. She asserted that at the time of the proceedings before Kunc J she was labouring under disabilities produced by mental health problems. She asserted that she had been unfairly treated as a result of the proceedings continuing in her absence.
As I have mentioned, Kunc J referred to some aspects of the procedural history as part of his Honour's judgment. Strictly speaking, it would have been open to Ms Farnan to have included in her appeal a complaint of denial of procedural fairness on this ground and, if such allegations were sustained, that could be a reason for setting aside his Honour's judgment. But such an allegation would be confined to the record before his Honour. As I understood it, Ms Farnan sought to present her case on a wider basis, not limited to the material which was before his Honour. I consider that the proper scope of sub-r (2)(b) permits me to look at the question on a wider basis and I have therefore done so.
The letter which Ms Farnan wrote to the Court the night before the hearing on 30 May was quoted in full by Kunc J in his Honour's judgment at [7]. There was some supplementary evidence going beyond matters which would have been known to his Honour, but it was not very extensive. It is important to recognise that, on this aspect of the case, the onus is on Ms Farnan to establish the factual basis for her contentions. The question is not whether, at some future hearing, she will be able to present evidence in admissible form to support her contentions; on this part of the case, she must establish the facts in a proper and admissible way. I have proceeded on the basis that this is an interlocutory hearing and, accordingly, hearsay evidence is permissible; however, that provision does not permit the Court to dispense with other requirements of form and admissibility.
Ms Farnan's evidence was that on 29 September 2016 she attempted to commit suicide and was taken by ambulance to St Vincent's Hospital in Melbourne. She was admitted to a psychiatric unit as an in-patient. This was about two weeks after the adjourned hearing before Slattery J in this Court. Ms Farnan tendered two documents concerning her medical condition which I admitted provisionally, in view of the objections which were taken to them. One was an undated medical certificate signed by a Dr Anusha Jayasinghe of the Echuca Medical Centre in country Victoria. It stated that Ms Farnan was "receiving medical treatment" and that she would be unfit to continue her "usual occupation" from 5 September to 26 September 2016 inclusive. The other document was a brief report dated 5 October 2016 by a psychiatry registrar, Dr Elinor Kitson, from St Vincent's Hospital, Melbourne. It stated:
Ms Farnan is currently an inpatient at St Vincent's Hospital, Melbourne. She presented to emergency on 26/9/16 and was subsequently admitted with depression which has been acutely exacerbated by the stress of her upcoming court date. She is currently an inpatient and does not yet have a fixed discharge date. However, following her discharge it is likely that she will require approximately 6 weeks to continue to improve in the community before it is thought that she would be able to manage with the stress of a court case.
It is the opinion of the medical team treating Ms Farnan that appearing in court within the next 6 weeks would be of detriment to her mental health and may result in further hospitalisations.
Should you require any further information please contact myself here at St Vincent's, Melbourne.
Counsel for Blue Badge objected to the receipt into evidence of these documents. Counsel contended that, to the extent that they express opinions, they were not expressed in terms which would enable the Court to identify whether such opinions were "wholly or substantially based on" expertise and, accordingly, they did not satisfy the requirements of the Evidence Act 1995 (NSW), s 79: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [83]-[85]; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [35]-[37]. Given the lack of time to hear the application, I admitted the documents provisionally on the basis that I would now rule as to their admissibility.
In my opinion, counsel's submission is clearly correct in the case of the medical certificate given by Dr Jayasinghe. I am prepared to accept that he or she was a qualified medical practitioner, but the opinion that he or she expressed of Ms Farnan's unfitness to continue her "usual occupation" was not based on any identified, let alone diagnosed, condition of any kind.
The opinion expressed by Dr Kitson that Ms Farnan would need a period of six weeks before she could handle the stress of a court case without detriment to her mental health is in a somewhat different position. It is not essential, as a matter of admissibility, that the opinion itself sets out the expertise which has been brought to bear; in some circumstances, that can be inferred. Once it is accepted, as I do accept, that Dr Kitson was indeed a medical practitioner in a specialist medical team at St Vincent's Hospital dealing with mental health, I think I can infer that the opinion that she expressed was based upon clinical assessment of Ms Farnan and experience of the effects of stress on patients with mental health difficulties. The opinion is therefore admissible, although, given the vague terms in which it is expressed, its weight is slight.
Accordingly, I now rule that Dr Jayasinghe's medical certificate is inadmissible but Dr Kitson's report of 5 October is admissible, so far as it goes. But it does not go very far. The report speaks only of a six week period after the end of September 2016. It does not speak to the circumstances in the period leading up to May 2017 when the hearing before Kunc J took place. It does not provide any basis for inferring that Ms Farnan had a medically recognised mental health condition as at that time, let alone that the condition was of such severity as to justify her non-appearance before his Honour.
Ms Farnan's letter to his Honour referred to her having a mental condition and also to being overseas. Before me, Ms Farnan made various assertions about this in her submissions, but the actual evidence on the subject was very limited. The topic was not addressed in Ms Farnan's affidavit. Subsequently, Ms Farnan tendered telephone records which establish that she was in India between 14 May and 4 June 2017. The bill showed that Ms Farnan had been able to make contact by text and email over this period, and indeed it appears that the email sent to his Honour was in fact sent from India. But the evidence does not address, far less justify, why Ms Farnan went to India in the first place, when the hearing date had already been fixed for a considerable period and when directions had been made requiring her to prepare for the hearing. In this regard, the evidence before me established that, following the 23 March hearing, at his Honour's direction, the solicitors for Blue Badge sent Ms Farnan a copy of his Honour's orders together with some additional comments. Those comments were:
1. The Court has not prejudged any aspect of these proceedings, and wishes to give you every opportunity to present your case.
2. The matter remains listed for hearing from 30 May to 1 June 2017. If you do not attend, and do not have a good reason for failing to attend, the hearing may proceed - and further Orders may be made - in your absence.
3. If Orders are made in the same (or in materially similar) terms to those outlined in the Summons in these proceedings, you are at risk of being arrested if you do not comply with those Orders.
Also provided was a fact sheet published by the Court for self-represented litigants. Among other things the fact sheet stated:
18. ADJOURNMENTS
Applications for an adjournment are not to be made by email or phone without the consent of all other parties. Unless there is a very good reason for a last minute application, any application for an adjournment should be made well before the day of the hearing.
If there is no consent, the application must be made by notice of motion supported by an affidavit explaining why an adjournment is needed, to which is annexed supportive evidence, such as medical certificates.
It was not suggested by Ms Farnan that she did not receive this communication. Yet, as Kunc J noted, she did not comply with any of the directions which his Honour made and she did not contact the Court until 9.30pm on 29 May to say that she would not be attending. According to the telephone bill, she had by that stage already been in India for two weeks.
Ms Farnan asserted that she had gone to India because of a belief that she was about to be arrested. This was unsupported by evidence, but in any event, it cannot withstand scrutiny. The note sent to Ms Farnan which referred to the possibility of her arrest was clearly worded. All it did was notify her that, should orders be made against her and should she not then comply with the orders, she might then be liable to punishment for contempt.
Ms Farnan asserted that she was in a state of severe mental distress at the time of the hearing. She also asserted that she could not afford to pay for legal representation. She said that she had not appreciated that she could attend the hearing by telephone. As I have indicated, there was no medical evidence to support the suggestion that Ms Farnan lacked the ability to appear at the hearing. Nor was there any evidence to support Ms Farnan's assertion that she lacked the means to obtain legal representation. There was evidence from Ms Farnan, that was not contested, that she learned for the first time when speaking to Kunc J's Associate after his Honour's judgment was delivered, about the Court facility for telephone hearings. However, attendance by telephone had been referred to (in an interlocutory context) in the fact sheet sent to Ms Farnan in April. Nor was there any explanation as to why the availability of a telephone hearing would have made any difference.
The excuses offered by Ms Farnan for not complying with his Honour's directions and not attending the hearing are, therefore, not supported by evidence and should be rejected for that reason alone. But, given the vehemence with which Ms Farnan pressed her submissions, I think it is appropriate to say that, even if there were evidence which demonstrated that she had some recognised mental health condition at the time, this would not, of itself, have operated as an excuse. At the time the proceedings came on for hearing before Kunc J they had already been unnecessarily protracted. An adjournment had been granted over eight months beforehand to accommodate Ms Farnan. Mental health difficulties, even if diagnosed, should not be regarded as suspending the operation of the rules which apply to litigants' conduct of their cases in Court. Ms Farnan suggested that the Court could, and should, have done more to assist her in what she characterised was a vulnerable state. Of course, the Court makes every attempt to accommodate demonstrated medical and other difficulties which litigants may encounter. But it was not the Court's responsibility to try to assist Ms Farnan to defend the case. In Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) Samuels JA said:
In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. In these days of reasonably available legal aid, a litigant in person is becoming increasingly uncommon. At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement. It may add weight on the unrepresented party's side of the scale; it must not lighten the other. An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.
As I have noted, Ms Farnan criticised Kunc J for supposedly showing favouritism towards, and assisting, counsel for Blue Badge in the presentation of its case. She, of all people, should understand that the Court could not apply special rules in her favour. It was not the Court's responsibility to ensure that Ms Farnan complied with the relevant directions for the hearing and attended the hearing. Nor was it the responsibility of Blue Badge's legal representatives. It was Ms Farnan's responsibility. If she was incapable of doing it herself, she should have retained a legal practitioner to act for her. It should not be assumed that this would necessarily have been very expensive. On the findings of Kunc J, Blue Badge had a clear entitlement to equitable relief. Had Ms Farnan taken advice, that advice might well have been that she should consent to appropriately worded orders in Blue Badge's favour. If Ms Farnan could afford to travel to India at the time of the hearing, I see no reason why she could not have obtained at least preliminary advice on the claim being made against her. In my opinion, no excuse or explanation has been provided for the failure to appear at the hearing which would give rise to circumstances sufficient to justify the exercise of the Court's power under sub-r (2)(b).
This conclusion is supported by what, in my opinion, is a significant discretionary consideration. As I have mentioned, Ms Farnan asserted at a number of points that she had already returned or destroyed all records of the confidential information in her possession. I am not sure about the factual basis for these assertions in the evidence, and there is some tension between them and some of the other arguments Ms Farnan presented. But, on the face of it, the orders made by Kunc J would appear to inflict little or no real hardship on Ms Farnan. It is not suggested that the information she received from Blue Badge is of any ongoing use or value to her. Nor does it appear that compliance with the orders would be particularly onerous. Ms Farnan said at one point she was unable to comply with the orders because the computer on which some of the information had been stored had been destroyed or disposed of. However, the orders accommodate this; in that situation, Ms Farnan only needs in her affidavit to explain what happened to the computer in order to comply.
In these circumstances, any residual dispute between Ms Farnan and Blue Badge concerning her obligations to keep the information confidential would seem to be of little or no practical significance. Even if I had considered that the requirements of sub-r (2)(b) were satisfied, I would have declined, in the exercise of my discretion, to set the judgment aside in the absence of any evidence that compliance with the orders imposed any real hardship on Ms Farnan.
In the course of her submissions by way of reply at the end of the hearing, Ms Farnan sought leave to adduce further evidence. This was apparently prompted by the submissions made by counsel for Blue Badge which pointed out the lack of explanation in the evidence for Ms Farnan's failure to attend the hearing. Ms Farnan sought an adjournment to allow her to obtain medical evidence which she said would support her assertions of a severe mental health condition. I refused this application and indicated that I would give my reasons when handing down my decision.
I refused Ms Farnan's application for a number of reasons. First, the application was made at the very end of the hearing. It may be that Ms Farnan only realised the deficiencies in her argument at that point, but the need to support her assertions of prejudice with evidence should have been obvious from the outset. In fact, in the course of the directions hearing before the Registrar on 23 August, Ms Farnan blamed mental health difficulties for failing to comply with an earlier timetable. The Registrar mentioned to her that she needed to put on evidence on that subject, and Ms Farnan then referred to "a document filed by the psychiatrist on the record which confirms that I have an illness" (presumably the report of Dr Kitson) and said she intended to contact the psychiatrist and put on further medical evidence.
The second factor was that the adjournment was open-ended. I had no confidence that Ms Farnan would be able to obtain further evidence in a reasonable time. An order for costs in Blue Badge's favour was unlikely to be of any practical benefit.
Thirdly, and most importantly, I was not convinced that further evidence on this subject would have made any difference. It would not have been enough for Ms Farnan to demonstrate that she had some mental health problems, or even that she had been diagnosed with a condition and was undergoing treatment for it. It would have been necessary to show, by expert opinion evidence, that she had been unable to comply with the Court's orders and to appear at the hearing. It seemed inherently unlikely that, if Ms Farnan was able to travel to India, her condition would have been so fragile that it would necessarily have required an adjournment of the hearing on medical grounds. Anything less than this would have been futile. Accordingly, I was not satisfied that there was any real utility in granting the adjournment sought.
I should mention one other complaint by Ms Farnan. Counsel for Blue Badge provided written submissions to the Court and Ms Farnan shortly before the hearing of the application was to commence. The submissions referred to the Court of Appeal decisions in Majak and Northey to which I have referred above. In the course of her reply submissions, I invited Ms Farnan to address those authorities in any submissions that she might make. She then protested that the circumstances were unfair because she had had insufficient time to consider those authorities. The force of this complaint was reduced when counsel for Blue Badge pointed out that Ms Farnan herself had cited Northey in her written submissions to me. In any event, I do not accept it.
I appreciate that preparation for the hearing would have been stressful for Ms Farnan, particularly as a self-represented litigant with limited experience of the Court's processes. However, as I have stated, the Court cannot create special rules in favour of self-represented litigants. Counsel could simply have addressed the authorities orally without putting on a written submission at all. It would have been desirable for Ms Farnan to have addressed the authorities if she had any submission to make, but it was not essential. I have analysed the authorities and if I have taken the wrong view of them that can be corrected. In my opinion, there was nothing unfair in this to Ms Farnan and there was no occasion to adjourn the hearing on this account.
[3]
Setting aside judgment if notice of motion filed within 14 days
As I have mentioned, Ms Farnan referred to sub-r (3A). The difficulty is that her application was made outside the 14 day period. Ms Farnan's notice of motion was filed using the Court's electronic filing system and was marked as received at five minutes past midnight on the morning of 15 June 2017. According to my calculations, the 14 day period expired at midnight on 13 June, just over 24 hours beforehand. But even if the notice of motion had been filed five minutes too late rather than 24 hours and 5 minutes too late, that would make no difference. The time limit is strict and the Court is prohibited from extending it.
Ms Farnan tendered evidence of her dealings with the Court in the period leading up to the filing of the notice of motion. She said that she had prepared the notice of motion in time (and it is indeed dated 13 June) but had been unable to arrange to have it filed. Even if this is correct, it makes no difference. The condition which must be satisfied for a valid application under sub-r (3A) is that the applicant's notice of motion is filed within the 14 day period. As I have mentioned, there is no provision for extension and the rule makes no exception for a case where the notice of motion has been prepared in time but for some reason has not been filed in time. Accordingly, the requirements of sub-r (3A) are not satisfied and there is no power to set aside the judgment under sub-r (1).
In any event, even if there were power under sub-r (1), it would make no difference. For the reasons which I have already given, there was nothing in this case to justify departure from the usual rule.
[4]
Conclusions and orders
For these reasons, I have concluded that Ms Farnan's application fails and should be dismissed.
Counsel for Blue Badge sought orders for indemnity costs. I am not prepared to accede to this application. Ms Farnan's motion has proved to be unsuccessful but, on balance, I do not think that her conduct was such as to invite the sanction of an indemnity costs order. Costs should follow the event in the ordinary way.
The orders of the Court are:
Order that the defendant's notice of motion filed 15 June 2017 be dismissed.
Order that the defendant pay the plaintiff's costs of the motion on the ordinary basis.
[5]
Amendments
07 December 2017 - inserted the word "defendant" on front page
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Decision last updated: 07 December 2017