Corrigan v Owens

It goes on to give further details of the treatment and its effect.

1. This is in fact a different picture to what I was told this morning. There I was told that the attendance was for a blood test and for an interview and examination, not for an operation or a systemic treatment. In either event, whether the appointment was made by Ms Owens or made as she now tells me by the hospital, she must have known some considerable time before the 21st that she was going to receive treatment on that day, and it cannot have been impossible for her to have applied to either adjourn the proceedings or otherwise adjourn or alter the time at which she was likely to have to have the treatment, which I note was well and truly finished by the afternoon.
2. There is no cogent explanation or evidence from the surgeon in this letter or otherwise as to why it would not have been possible to reschedule the procedures that took place on 21 August. The complaints against Mr Wolff are not made out to the extent that they were pressed, and I note that in the ultimate it seems to be put that this matter be more a matter of misunderstanding than otherwise.
3. I note that as long ago as 10 May 2005 there was an issue about representation of Ms Owens. On that day, Mr Bornstein of counsel appeared in Court as a matter of courtesy to say that he was not appearing for Ms Owens, as is apparent from paragraph 7 of Phipps FM's decision given that day. I mention this because the complaints against Mr Wolff are strikingly similar in their character. There has been a pattern of adjournments with indemnity costs; at least two before Phipps FM on 22 and 23 August 2005.
4. Another very relevant consideration is Ms Owens' health. She is seriously ill at the moment, and it is for that that she is receiving treatment from Ms Kemp. There is no reason to doubt that the stress of these proceedings is damaging to her health generally, as her general practitioner Dr Jones has asserted, and in relation to the particular illness that she suffers.
5. I further note that Ms Owens has very genuine allegations against the Trustee. Contrary to her assertion this morning, this Court understands the intensity of her views about the Trustee. Her health is also as I say relevant, but generally and more particularly so too is Ms Owens' capacity to conduct the proceedings because she says that she is, although not impaired, unable effectively to conduct it. I accept that that is likely to be so.
6. So there are two strands to the case. There are the two applications before the Court, and then there is the interrelated issue of Ms Owens' health.
7. Here, dealing with the applications first, I am not prepared to exercise my discretion to reinstate the application that was dismissed on

21 August. Ms Owens knew the date. Ultimately I do not regard the evidence from the treating medical practitioners, Dr Jones and Ms Kemp, as satisfactorily explaining why it was that Ms Owens was not here. I have already dealt with the question of Mr Wolff being briefed. Ms Owens must have known or ought to have known that her attendance was vital. It was her application for an inquiry, and the first logical point of departure would have been for her to be cross-examined on her various and numerous affidavits. She is after all a lawyer and would reasonably be understood to have known that. 8. Next, her entitlement to be heard is not absolute. It is ultimately a question of discretion. The court has to consider other litigants and the other party and the creditors. 9. Finally, although it is not a matter at the forefront of my deliberations, Ms Owens' past conduct both in relation to Mr Bornstein and other numerous adjournments, is not such as to give great satisfaction. 10. So for all these reasons, and bearing in mind the competing considerations and the fact that not to allow the reinstatement is of course a very important and serious matter, it seems to me a proper exercise of my discretion is not to reinstate the application. 11. Even if I did, I would not have been minded to re-consolidate the proceeding, because the whole point was to deal with it as a discrete issue. 12. Third in the various matters that are in the application, I am not prepared to order that $50,000 be advanced by the Trustee to Ms Owens. I accept Mr O'Brien's submission that no legal basis has been advanced to support this proposition, which would amount to making an interim distribution before the payment of creditors and certainly before the conclusion of the administration of the estate. This is required by Ms Owens to occur in circumstances where she would then use the funds to sue the Trustee, and it is at least as possible as otherwise - bearing in mind one or other result might be achieved either in her favour or against - that the costs would come out of her own estate in the event of an unfavourable result. 13. Finally, there is no proper basis to make the broadly ranging order for discovery sought. 14. That leaves the second issue, which is Ms Owens' health, and it is a matter of major concern. The summary of what she puts to me - and I accept it - is that it is really almost beyond her powers at the present time to conduct the litigation, not so much because of mental impairment but because of the stress and the anxiety and the general pressures she is under both in her health and otherwise. She is unfortunately not able to pay lawyers, for obvious reasons. 15. One possible appropriate way forward would be to stay proceedings until either a litigation guardian is appointed on application, or Ms Owens' health improves to a point where she is able properly to conduct such litigation. That would be a very unusual step, but I am not persuaded that it is something that ought not to be considered. I think it should be. Accordingly, I am going to adjourn this matter to 2.15 on 19 September 2008, at which time I will consider further whether I should generally stay these proceedings pending Ms Owens being in a position to satisfy the Court that her state of health enables her properly to continue or alternatively, until such time as an appropriate application is made and granted for the appointment of a litigation guardian.

I certify that the preceding 25Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !twenty-fivetwenty-five (25) paragraphs are a true copy of the reasons for judgment of Burchardt FM