By statement of claim filed 20 October 2021, Commonwealth Bank of Australia ('the plaintiff') seeks to recover the sum of $779,309.90 from Filomina Kyriacou ('the defendant') under the terms of guarantees, said to guarantee the payment to the plaintiff of money owing under two agreements entered on 16 June 2015 but varied on 4 February 2016.
The defendant relies upon an amended defence filed on 25 August 2023. The defence, largely, makes non-admissions in relation to the loan facilities but in connection with the guarantees raises a number of substantive matters, including that she denies signing any guarantee (par 17(a)); that her signature "was forged on the 16 June 2015 guarantor acknowledgement and acceptance" (par 17(c)); seeks relief under s 4 of the Contracts Review Act 1980 (NSW) essentially on the footing that there was an "inequality in bargaining power" (par 17(d)); and seeks relief under ss 20 and 21 of the Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law (par 17(e)).
On 9 August 2024, the matter was fixed for hearing for three days commencing 9 December 2024.
The defendant, by notice of motion filed 25 November 2024, seeks an order vacating that hearing on "medical grounds": in very broad terms, it is suggested that the defendant is "not mentally fit to stand trial" (defendant's submissions at [1] and [13]).
The application is opposed.
The defendant read, on the application, an affidavit of her solicitor, Khoder Dandachli, sworn 25 November 2024. Exhibited to that affidavit were two reports from a psychologist, Sam Borenstein, dated 12 November 2024 and 21 November 2024. The plaintiff read, on the application, an affidavit from its solicitor, Campbell Hudson, affirmed 26 November 2024.
[2]
Adjournments: background principles
The Court has power, in an appropriate case, to adjourn the hearing: s 66 of the Civil Procedure Act 2005 (NSW) ('CPA').
The parties relied upon what was said by Henry J in Valuestream Investment Management Ltd as Trustee for the Tip Tofs Trust v Drenside Pty Ltd as Trustee for the Nosivad Investment Trust [2022] NSWSC 1099 at [18]-[20] ('Valuestream') as reflecting the well-established principles that apply to an application such as this:
18. The principles applicable to the exercise of my discretion whether to vacate the hearing date are well established. In determining the defendant's motion, I am required to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: CPA, s 56(1). I also need to manage the proceedings having regard to the matters listed in s 57(1) of the CPA and take account of s 58 of the CPA, which requires the Court to seek to act in accordance with the dictates of justice having regard to the matters listed in s 58(2)(b) of the CPA and the provisions of ss 56 and 57 of the CPA.
19. The dictates of justice are paramount as Beazley JA (as her Excellency then was), observed in Hamod v State of New South Wales [2011] NSWCA 375 (Hamod), at [141]. Her Honour noted that what constitutes a 'just resolution' is to be understood in light of the purposes and objectives stated in the statutory provisions. The minimisation of delay and expense are seen as essential to a just resolution of proceedings. However, those terms are relative and the parties should be given an appropriate opportunity to plead and argue their case. Nonetheless, there are limits to the extent that a party will be accommodated in the conduct of the litigation: Hamod at [141].
20. In the context of an adjournment based on medical grounds, it has also been observed that, generally speaking, if a person is genuinely ill or unable to take part in proceedings, the Court should vacate or adjourn the matter until the appropriate time. However, there are situations where the Court will take another course. One is where a party is so ill that it is unlikely that even if the case is adjourned, he or she will be in any better position on the next occasion…
Additionally, the defendant drew attention to what was said in NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559 at [6] and Bobolas v Waverley Council [2016] NSWCA 139 at [221] where the critical question, relevant to an application such as this was identified, as being "whether, and if so why, the medical condition would prevent the [litigant] from… participating effectively in a court hearing".
The defendant essentially argues that she is within the general position identified by Henry J: she is unwell and in consequence of that "unable to take part in proceedings", and that the dictates of justice favour the adjournment. The plaintiff argues that whilst it may be accepted that the evidence demonstrates that the defendant suffers from a [REDACTED], the Court should not be persuaded that the defendant is unable to reasonably participate in the forthcoming hearing.
[3]
The basis for the adjournment: consideration
As I have said, the defendant's essential submission is that, given her current [REDACTED] state, the hearing should be adjourned. The defendant relies upon two reports from Mr Borenstein, and the opinions that he has expressed about the defendant's ability to participate in the forthcoming trial.
[REDACTED]
There are aspects of this report that should be noted. First, it seems clear that Mr Borenstein was asked to assume, and did assume, that the defendant [REDACTED]. Whether this is, or is not, accurate is simply unknown. The material tendered on the current application relating to the precise subject matter of the proceedings, and the evidence that has been served, is confined to the statement of claim filed 20 October 2021 and the amended defence filed 25 August 2023. Secondly, as noted above, Mr Borenstein appears to proceed on the footing that the cross-examination, putting to one side its length, extends to "complex financial matters". Whether that is, in fact, so appears, based upon the pleadings, to be doubtful. Again, I would emphasise that none of the material that would be relevant to inform whether the cross-examination would be of this character was in evidence. [REDACTED]. Fourthly, the tests that were administered involved self-reporting; or, at a minimum, it is unclear precisely what they do involve.
The third and fourth matters noted combine with the earlier ones, and do not persuade me that I should act on Mr Borenstein's opinion. I am unpersuaded that the key matters assumed, relating to the length and subject matter of any cross-examination, are likely to be representative of the course of the trial. There is simply no evidence upon which I could, even in a preliminary way, make any reliable finding about those matters. Further, on the face of the report, there remains some outstanding questions: [REDACTED]. It is possible that these matters are reconcilable, but that is not evident from the terms of the report or, if it is, at least in a way that I accept.
There is a further matter. [REDACTED]. This trial, it was accepted, was a reference to three sets of proceedings in this Court brought by a number of parties against the defendant: Dandachli affidavit, pars 6(a)-(c) and 8. [REDACTED].
To be clear, however, Mr Borenstein did not address when, if at all, the defendant was likely to become fit to participate. [REDACTED]. Whether a patient decides to be treated with that type of medication is a matter for them, of course, but the fact that the defendant has expressed that position has the consequence that I am not prepared to infer that, over a period of time, the defendant's symptoms would necessarily abate. Further, I would add that there is nothing in the treatment regime suggested by Mr Borenstein that might be suggestive of the likely course of the defendant's condition in the short to mid-term.
This squarely raises what Henry J described as a situation where the Court "will take another course" - namely, that the party is "so ill that it is unlikely that even if the case is adjourned, he or she will be in any better position on the next occasion": Valuestream at [20]. Before dealing with this further "situation", reference will be made to Mr Borenstein's second report.
[REDACTED]
[REDACTED]
[REDACTED]
To return to the likely course of the defendant's condition, to the extent anything can be inferred about this matter based upon the content of his second report, it tends to suggest, consistent with the matters to which I have earlier referred, that the defendant's condition will not change in the foreseeable future.
Aside from the issue raised about the timeliness of the interlocutory activities of the parties, the focus of the submissions was upon the dictates of justice. The defendant's basic submission was that it favoured an adjournment because of the defendant's medical condition. The plaintiff submitted to the contrary, particularly emphasising the wider statutory considerations in the CPA.
I have given consideration to the overriding purpose (ss 56(1) and (2)), the objects of case management (s 57(1)) and the dictates of justice in ss 58(1) and (2). Each side has sought to call in aid the timely way in which they have dealt with "their interlocutory activities" (s 58(2)(b)(ii)). The plaintiff, however, submitted that the defendant's submission to the effect that she has been "reasonably expeditious" in the way in which she has conducted the litigation, including the interlocutory activities, should not be accepted (plaintiff's submissions at [14]-[16]). There is force to this submission, based as it is upon the matters set out in the affidavit of the solicitor for the plaintiff, which I accept: Hudson affidavit, pars 16-31. However, in the circumstances, this is not a matter that I have attached significant weight. In making that finding, I have not overlooked the submission made by the plaintiff, to the effect that the plaintiff had default judgment entered in its favour on 4 May 2022 such that the conduct, and delay generally, should not be dismissed lightly.
In my view, absent evidence that the defendant's position is likely to change in the foreseeable future, the dictates of justice favour refusal of the application. Even if one were to assume, favourable to the defendant, that the position will change by the middle of next year such that, at that time, or shortly thereafter, the matter was ready to be fixed for hearing, there is a realistic prospect that no hearing dates will be available to hear the matter until, at the very earliest, this time next year but more likely some time in 2026. Given the history of the litigation in this Court, when the cause of action is said to have arisen, and when the proceedings were commenced, they reinforce why I consider the dictates of justice are against adjourning the matter.
There is a further matter. [REDACTED]. As I have indicated, there was no evidence about the issues that arise in the action, although Ms Steer emphasised that any assumed length of cross-examination was done without the involvement of the plaintiff, and its legal representatives. [REDACTED]. That, the plaintiff submitted, was apparent from an examination of the letter of instruction dated 19 November 2024 together with what is recorded on page 1 of the report dated 21 November 2024. In my view, that submission should be accepted. In short, it is apparent that the opinion expressed by Mr Borenstein is linked to that assumption and, given there is no evidence that the matter would involve "complex financial matters", it provides a further basis why I consider the application should be refused.
[4]
Orders
For the above reasons, I make the following orders:
1. Refuse the defendant's application to adjourn the hearing commencing 9 December 2024.
2. Order the defendant to pay the plaintiff's costs of, and incidental to, the application to adjourn the hearing.
[5]
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Decision last updated: 10 December 2024
Parties
Applicant/Plaintiff:
Commonwealth Bank of Australia
Respondent/Defendant:
Kyriacou
Legislation Cited (4)
Court Suppression and Non-Publication Act 2010(NSW)