He said that the stomach pains had continued while writing the letter.
Procedural unfairness
35 Both parties approached the matter on the basis that principles applicable to procedural fairness before administrative tribunals were also applicable in relation to the District Court. Thus, reliance was placed on comments of Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 342-344 and of Hill J in Opitz v Repatriation Commission (1991) 29 FCR 50 at [58]-[59]. The respondent contended that, consistently with these authorities, the applicant had been given a reasonable opportunity to defend the proceedings and had, either through his own fault or that of his solicitors, failed to avail himself of that opportunity. Accordingly, it was said that there was no breach of procedural fairness.
36 It is not possible to resolve such matters at a high level of generality. So much may be demonstrated by the different approaches of the High Court in Sali v SPC Ltd [1993] HCA 47; 67 ALJR 841, involving an application to vacate the hearing dates for an appeal before the Full Court of the Supreme Court of Victoria on the day the matter was listed for hearing and in Queensland v JL Holdings Pty Ltd [1997] HCA 1; 189 CLR 146 in which the Court set aside a refusal to permit the filing of an amended defence some six months before the date fixed for hearing. In Sali, the majority (Brennan, Deane and McHugh JJ) at p 843 approved statements in Maxwell v Keun [1928] 1 KB 645 at 650, 657, 658 that "although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party". Their Honours also referred to the judgment of Atkin LJ in Maxwell to the effect that "an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action". As the dissenting judgment of Toohey and Gaudron JJ noted, a similar approach had been adopted by Asprey JA in Carryer v Kelly (1969) 90 WN (Pt) 1 (NSW) 566 at 569 and by Kirby P in Sydney City Council v Ke-su Investments Pty Ltd (1985) 1 NSWLR 246.
37 In considering injustice to the other party, an important question will always be whether that injustice can be avoided by a favourable costs order.
38 These principles may be seen as a specific application of the general rule that an appellate court will only intervene in a discretionary judgment of a trial judge in the circumstances enunciated in House v The King (1936) 55 CLR 499 at 505, namely where there has been some error such as acting upon a wrong principle, allowing extraneous or irrelevant matters to guide or affect the outcome, mistaking the facts or failing to take into account some material consideration or, where the reason for the order is not clear, where the facts demonstrate that the outcome is unreasonable or plainly unjust.
39 The applicant did not approach the matter in this way in his oral submissions, nor was the appropriate test addressed in the written summary of argument. (No full written submissions, as on an appeal, were filed, despite the Registrar's direction.)
40 It is clear from the judgment of 26 October 2006 on the application of Mr Johnson to withdraw that his Honour expressly considered whether the matter should proceed or should be adjourned: see [22] above. His Honour was fully conscious of the potential prejudice to the applicant in the event that the matter went ahead, knowing that he would be unrepresented and that the applicant had been taken to hospital in an ambulance.
41 So far as the background circumstances are concerned, his Honour appeared to share the applicant's view that Mr Johnson was hopelessly unprepared and not in a position to provide competent representation. The reason for that appears to have been his belief that the adjournment application based on the applicant's medical state would be granted. However, that cannot be a satisfactory explanation. If solicitors who are briefed to appear generally in proceedings act on such a basis, and can then successfully abort the hearing by withdrawing because they are ill-prepared, the administration of justice in a busy court could readily be manipulated by the party in whose interests it is to cause delay. As between the applicant and the respondent, the applicant must generally bear responsibility for the conduct of his solicitors. Were it otherwise, a trial judge would need to engage in the invidious task of apportioning blame between one party and his solicitors, in the course of a trial. That may need to be left to subsequent dispute resolution between them on a different occasion or in a different forum.
42 So far as the position of the applicant personally was concerned, the trial judge had formed the view on the previous day that whilst he was in hospital, he had not been shown to be unfit to attend court. That view must to some extent have been confirmed in his Honour's mind by the fact that the applicant did attend Court on 26 October 2006. He had left the Court on one occasion shortly before lunch and, on his return, had confirmed that he was unwell and had expressly stated that he was depressed and anxious, because of the inadequate representation he was receiving. If that were the cause of his collapse at lunchtime (and no alternative explanation was proffered) then it was a result consequential on the apparent breach of duty by his solicitors. In relation to the respondent, that does not demonstrate that he did not have a reasonable opportunity to present his case.
43 The only consideration which gives rise to concern in these circumstances is the conversation set out at [20]-[21] above in which his solicitor advised the Court that the applicant was fully aware that the case might proceed to judgment in the absence of his solicitor and of him. That exchange occurred before the judgment dealing with the withdrawal application and the decision that the proceedings should go ahead. The evidence which the applicant gave in two affidavits, and on which he was cross-examined in this Court, included a denial that any such advice had been given. If accepted, that evidence might demonstrate that the trial judge had proceeded on a false basis as to a material fact in proceeding with the hearing.
44 However, there are difficulties in accepting that evidence as establishing that the advice was not given. Its acceptance would involve the almost inevitable inference that his solicitor had falsely given several unequivocal assurances to the Court, a conclusion which might well be characterised as professional misconduct. While the Court would not hesitate to draw such an inference on the basis of appropriate evidence, the present circumstances militates against such an inference. The inference is sought in circumstances where the applicant has tendered evidence from Mr Johnson that they remain on goods terms but has not sought to obtain from Mr Johnson any evidence in relation to the instructions and advice given on 26 October 2006.
45 The possibility that an advocate who is handed a note by his client, withdrawing his authority to continue to act, would not, when the opportunity arose, discuss the consequence of such a step with his client is at least unlikely. This was not a case where the lawyer collected his papers in a fit of petulance and walked out; rather he spoke with his client during the midday adjournment outside the Court: Tcpt, 26/10/06, p 22. He then returned to Court after lunch and sought leave to withdraw, providing the Court with a copy of the note and explaining his circumstances.
46 There is no doubt that Mr Johnson acted in conformity with his instructions in seeking to withdraw. Nor is it in doubt that the applicant maintained those instructions despite his own ability to obtain alternative representation or attend in person, should the hearing proceed. (The evidence does not suggest that he had at that time any intention of running his own case.) Nor does the applicant say he instructed Mr Johnson not to withdraw unless the judge agreed to adjourn the matter.
47 In any event, had his Honour been made aware that there was such a dispute, it could not possibly have been resolved in the course of the trial without aborting the hearing. The proper place for its resolution would be in proceedings between the applicant and his former solicitors, to the extent that such proceedings were open to him.
48 One possible answer may be, of course, that there was either a misunderstanding as to what advice was given or that the applicant, in a state of high anxiety, was told things which he simply did not comprehend or the significance of which he did not then appreciate. In any event, these matters are sequelae of the situation which had been brought about by the failure of the solicitor (on his own admission) to be prepared for the hearing and are therefore not matters which need to be resolved as between the applicant and the respondent.
Conclusions
49 The applicant has not established that the refusal to adjourn the proceedings when he withdrew Mr Johnson's instructions was procedurally unfair in a relevant sense. There is no doubt that he suffered prejudice, but so, as his Honour recognised, would the respondent if the proceedings did not continue. Not only did his Honour consider whether the applicant would suffer prejudice, he accepted that he would. He placed that factor in the balance in considering what course to take. Prior to determining that course, his Honour had inquired of Mr Johnson if the applicant was aware of the possibility that the case might proceed without him or Mr Johnson, if Mr Johnson withdrew. He was assured that that was the case. On the material before his Honour, the applicant has failed to establish any error of a kind which would warrant the intervention of this Court.
50 The next question is whether the evidence presented in this Court justifies intervention. That must be on the basis that, contrary to what Mr Johnson told the trial judge, the applicant had not been informed that the proceedings might go ahead if Mr Johnson withdrew. For the reasons indicated above, the applicant's evidence that he was not informed of that possibility does not lead to the conclusion that he was not given appropriate advice. Nor did he give evidence that he was not aware of that possibility in any event. That is not to say that his evidence in this Court was untruthful, but rather that there were a number of unexplored possibilities which, in the absence of evidence from Mr Johnson, leave the true facts unclear.
51 There is no doubt that the applicant was in an invidious position at the time of the trial. He was unwell and his solicitor was unprepared. However, it does not follow that the trial judge erred in refusing to adjourn the hearing. The failure of a lawyer to prepare for a hearing may provide the basis for a claim against the lawyer by his or her client, but, absent some particular justification, will not entitle a party to an adjournment to the prejudice of the opposing party. The belief on the part of a lawyer that his or her client was otherwise entitled to an adjournment, at least in the circumstances of this case, is insufficient. Were it otherwise, litigants would often be at risk of a forced adjournment because a manipulative adversary was deliberately unprepared.
52 The remaining question is whether the fact that the applicant was unwell should give rise to a different conclusion. There was no challenge in the notice of appeal to his Honour's conclusion that, on the evidence before him, the applicant was fit to attend the trial. If the further report from Dr Smith were intended to cast doubt on that conclusion, for the reasons indicated, I am not satisfied that it is sufficient for the purpose. Although no objection was raised to its admissibility, the weight which it can be accorded is quite limited.
53 The second ground of appeal alleged a reasonable apprehension of bias on the part of the trial judge. The same particulars were relied upon in support of this ground. No separate argument was addressed to this ground either in the summary of argument or in the applicant's submissions at the hearing. The mere fact of a refusal of an adjournment, in the circumstances set out above, does not demonstrate any sufficient basis for a reasonable apprehension of bias. The trial judge expressed himself in strong terms as to Mr Johnson's conduct, but far from indicating prejudice against the applicant, the applicant appears to have accepted his criticisms as justified, he himself realising that Mr Johnson's failure to prepare for the hearing had seriously prejudiced his defence. Because no submissions addressed Mr Johnson's conduct, it is neither necessary nor appropriate for this Court to comment further in that regard. This ground of appeal has not been made out.
54 For these reasons, the applicant's challenge to the refusal to adjourn the proceedings on 26 October 2006 must fail.
55 The issues raised by the applicant were fully ventilated in the course of the hearing and, although the challenge to the procedure adopted at trial has failed, significant issues were raised, which have warranted the careful consideration of this Court. Accordingly, I would grant leave to appeal, but dismiss the appeal with costs.
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