Franks v Cameron

Court of Appeal (NSW)|2024-03-07|Before: Leeming JA, Adamson JA, Stern JA, Robb J

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

LEEMING JA: Mr Gregory Michael Franks and Mr Brad Alan Cameron are brothers who have been estranged for some years. They are co-owners of land at Port Macquarie. The first respondent, Mr Cameron, has sought by amended summons to have trustees for sale appointed, and that has occurred (the second and third respondents are the trustees who have filed submitting appearances). The appellant, Mr Franks, had sought by his cross-claim to obtain full ownership of the land. On the date fixed for final hearing of the summons and cross-claim, Mr Franks did not appear. At 9.34am that morning, the primary judge's Associate received an email which recorded that a friend of Mr Franks had left a telephone message at 9.22am as follows: The defendant has been taken to hospital and is unable to attend. He is having heart problem [sic]. The defendant is requesting an adjournment on this basis and also on the basis that he no longer has legal representation and would like time to find a new lawyer.

Background

In 2011 Mr Franks and Mr Cameron made applications for family provision orders following the death of their mother. Ultimately, this Court ordered that Mr Franks have an undivided two-thirds share, and Mr Cameron have an undivided one-third share, of a residential home in Port Macquarie, in respect of which their surviving father was to have a life estate: Franks v Franks [2013] NSWCA 60. At the time of that litigation, Mr Cameron had not changed his name.
Although for some time thereafter, Mr Franks and his father lived (separately) in Sydney, in the years prior to his father's death in April 2020, Mr Franks and his father lived in the Port Macquarie home. Mr Franks has continued to live at that address thereafter. Mr Cameron lives in Queensland.
It was common ground that Mr Franks did not advise his brother of their father's death on 8 April 2020. Mr Cameron learned this some months thereafter. In 2022, Mr Cameron commenced proceedings in the Equity Division for the appointment of trustees for sale.

Mr Franks' cross-claim

By cross-claim in those proceedings, Mr Franks maintained that during the lifetime of their father, Mr Cameron had transferred for valuable consideration his interest in the property pursuant to a written agreement executed in July 2017. The consideration was said to have been $90,000, of which $60,000 was to be paid when the agreement was executed, and $30,000 was to be paid within 12 months of their father's death. Mr Franks made an affidavit in July 2022 in which he said he paid the $60,000 in cash, in the presence of his father and a solicitor Mr Hilton King, at the premises. It was not suggested that Mr Cameron gave a receipt for the money. The document upon which Mr Franks relied as evidence of the agreement was poorly reproduced, and Mr Franks said that was because it had suffered water damage. By the time the document was served, Mr King had died.
Mr Cameron said he had never seen the document, that the signature was not his own, that he had changed his name years before the date of the document, and that the document used the address which he had used in court documents he had filed in 2011, but which had not been his address in 2017. He denied receiving any money from his brother. He denied being at the property at the time the document was said to have been executed. His affidavit annexed electronic records from his mobile phone and banking records which suggested that he was in Queensland at the entirety of the time when the document was said to have been executed.
It is difficult to resist the conclusion that at least one of the brothers was consciously lying. I mention this not because it was anything which was resolved by the primary judge or will be resolved by this Court. I mention this because it would have been obvious to everyone that when Mr Franks' cross-claim was heard, both brothers would be cross-examined on the basis that the other was consciously lying. It is also obvious that Mr Franks would have been cross-examined on how his account correlated with Mr Cameron's changed name, changed address, and numerous photographic and banking records which told against his being at the premises to execute the document and receive $60,000 in cash. It is inherently plausible that, in the days before 17 April 2023, the prospect of the hearing of Mr Franks' cross-claim would have been stressful to him.

Procedural background

The judge administering the Real Property List had earlier, pursuant to r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), referred Mr Franks to the Registrar for referral to a barrister or solicitor on the pro-bono panel for legal assistance. Solicitor and counsel were retained.
The Court was told that there was a mediation in late 2022, which did not resolve the dispute.
In late 2022, Mr Cameron's summons seeking the appointment of trustees for sale, and Mr Franks' cross-claim were set down for final hearing with an estimate of two days on 17 and 18 April 2023.

Mr Franks' pro bono lawyers cease to act for him

However, on 31 March 2023, in the absence of Mr Franks, the primary judge acceded to an application made on behalf of the solicitor retained by Mr Franks pursuant to that referral that she be permitted to cease to act. The application was made necessary because the hearing was within 28 days: see UCPR r 7.29(2). The evidence on which the application was based may be summarised as follows.
Communications had taken place by both email and on Mr Franks' mobile phone, including as recently as 13 February 2023. However, on each of 14 and 21 February 2023, counsel sent correspondence detailing the steps that needed to be taken for the preparation of the hearing, and in each case warning that if instructions were not received counsel would take steps to return the brief and cease providing pro bono representation. On the first occasion, counsel asked for instructions by 20 February 2023. On the second occasion, counsel asked for instructions by 28 February 2023. The evidence was that counsel had not received any reply from Mr Franks. Counsel ceased to act shortly thereafter.
There were further communications between the solicitor and Mr Franks, culminating in an application to the Duty Registrar on 22 March 2023 seeking leave to file a notice of ceasing to act. That application was referred to the trial judge, who acceded to it following a hearing in open court on 31 March 2023, following which he gave short ex tempore reasons.
In granting leave, his Honour recorded: I am satisfied that the defendant has entirely declined to provide the instructions to which his pro bono legal representatives were entitled.
His Honour added that it was "entirely unacceptable" that lawyers who were prepared to act pro bono were put in the position that Mr Franks' legal representatives found themselves in this case.
The fact that his pro bono lawyers ceased to act relatively shortly before the hearing was prominent in the applications which Mr Franks thereafter made in support of an adjournment. Mr Franks also relied upon those reasons as one aspect of an animus that, according to him, the primary judge displayed towards him.

Mr Franks' application to vacate the hearing

Shortly thereafter, Mr Franks indicated to the other side that he would seek to vacate the hearing. Ultimately, that was supported by his affidavit affirmed on 14 April 2023 (the Friday before the hearing on the following Monday) in which he made the following complaints: 1. he had not received his file back from his former solicitor; 2. he did not have the files to prepare his cross-claim; 3. he was not "currently mentally able to prepare [his] case if the files are produced to me and [was] unable to represent myself at the hearing", annexing a medical report and a report from his treating psychologist and a consultant psychologist; and 4. he disputed some of the matters put forward by his former solicitors, and in particular did not accept that there had been a failure by him to provide instructions.

The hearing on 17 April 2023

The hearing took just over an hour (according to the Associate's Record of Proceedings on the court file), commencing at 10am. The first thing his Honour asked, when Mr Cobb-Clark appeared for Mr Cameron and there was no appearance for Mr Franks, was whether Mr Cobb-Clark had received an email, and when told that he had not, lent him his own copy of a print-out of the 9.34am email.
Shortly thereafter, the primary judge said that he had Mr Franks' affidavit of 14 April 2023. Mr Cobb-Clark advised that his solicitors had received submissions from Mr Franks dated 16 April 2023 (a Sunday) and provided them to his Honour. Mr Franks' submissions occupied four pages and 19 paragraphs. They complained about the absence of appropriate notice from the pro bono lawyers. They said that he did not receive any emails from his lawyers. They said that there were documents which they had not provided to him. They said that there were legal services for which he might be eligible, but they were not available on short notice. They said that he had received a new diagnosis of PTSD earlier in the year, in addition to other mental health conditions. He said that there was no particular urgency, nor any material prejudice if the hearing dates were vacated. His submissions concluded: I suggest if the dates are vacated there is no demonstrable prejudice to the plaintiff's case, we are not relying on witnesses that may not be available later, or evidence that may fade with time. If the court decides to vacate the matter and list it for mention in 4 weeks' time, I will know what forms of legal help I can get and/or pay for. I can use that time to try to recover the file still NOT provided to me and begin to prepare a case myself. A hearing date could be set at that next mention date. I have spent 2 days preparing this submission with the help of a friend.
Both the email and the submissions were marked as exhibits (the former was not reproduced in the appeal books, but its substance is in the judgment, and I have also confirmed its accuracy from a copy which is in the court file).
There followed some debate on the appropriate course to take. Mr Cobb-Clark applied to dismiss the cross-claim for Mr Franks' non-attendance as well as seeking to have the trustees appointed. He pointed to the fact that his own clients (Mr Cameron and his wife) had travelled to Sydney from Queensland, having had to rearrange various medical appointments to do so, their presence being made necessary by the cross-claim.
Mr Cobb-Clark suggested that the order could direct that they take no action for a two week period, and directed his Honour to UCPR r 36.16(2)(b) which authorised Mr Franks to apply to vary or set aside an order made in his absence. The primary judge said that he would not take that course, would not make any orders that day, but would reserve and deliver reasons in due course. His Honour said the following: 18 I think, Mr Cobb-Clark, what I should do is this: I will give a short judgment, I will not simply adjourn the proceedings, I will give the plaintiff an opportunity to read his evidence, and I will receive your submissions. It seems to me that it would be egregious, in the circumstances, simply to adjourn the proceeding on the basis of the limited information that the Court has, which would achieve nothing. 19 The reality is that the third hand information that the Court has received this morning, concerning Mr Franks' position, is suspicious, even though there is some evidence from a psychologist that Mr Franks has psychological problems. This is quite a diabolical problem, because there's no real reason to believe that Mr Franks will ever resolve his difficulties and appear represented in this Court given what happened with his pro bono lawyers.
His Honour indicated that he was concerned to permit Mr Franks to have an opportunity to be heard, and also to give some guidance as to what might be expected from Mr Franks if he sought to renew his application to be heard.
Some 11 days later, the primary judge delivered reasons and made orders: Cameron v Franks [2023] NSWSC 437. The penultimate paragraph of those reasons encapsulated his Honour's approach: In these circumstances, I decided that the most appropriate course for the Court to follow to satisfy the requirements of s 56 of the Civil Procedure Act 2005 (NSW) was as follows: (1) I would not adjourn the hearing on the basis of the informal application made by Gregory. (2) As Brad and his wife (being a witness) were present in Court with their legal representatives, I would hear Brad's application on his amended summons by receiving his evidence and his counsel's submissions, so that the Court would be able to give judgment on that claim at an appropriate time, and so that the time of the Court would not be wasted. (3) Brad's counsel then read the affidavits upon which Brad relied in support of the relief sought in his amended summons. Counsel informed the Court that he would rely upon his written submissions. (4) Given that Brad's claim was for an order under s 66G of the Conveyancing Act for the appointment of trustees for sale of the Port Macquarie property, and that Brad, as the holder of a beneficial interest in possession of one third of the title to the property, had a right to the orders sought in the absence of any valid defence mounted by Gregory, I informed counsel that I was satisfied in principle that Brad was entitled to the orders that he sought, subject to what might eventuate as a result of the course that the Court would take to deal with Gregory's cross summons. (5) As Gregory had not appeared to prosecute his cross claim, as matters stood on 17 April 2023, Brad was entitled to an order that the cross claim be dismissed for want of prosecution. (6) However, it would be inappropriate for the Court to make any formal orders on the amended summons or the cross claim, as that might lead to circumstances where the Court became functus officio at first instance by reasons including the running of time, and so lose the power to control the just determination of the proceedings in a manner that would not require the intervention of the Court of Appeal. (7) As the Court had only received informal notice that Gregory may have been unable to appear in court to make an application for the adjournment of the hearing, or to prosecute his claim if an adjournment was not granted, at the last moment, the Court had to face the possibility that the reason given for Gregory's non-appearance was genuine and would, if properly proved, have caused the Court to adjourn the hearing. Alternatively, the reason may not have been genuine, or for some other reason the circumstances may not have justified the Court in making an order that the hearing be adjourned. Accordingly, the Court was required to formulate orders that would permit the just, quick and cheap completion of these proceedings having regard to these uncertainties. (8) The formulation of those orders would need to take into account that the Court had successfully arranged for Gregory to receive adequate pro bono legal representation, and that his evidence had been prepared with the advice of his legal representatives. However, on the evidence that had been received by the Court, Gregory had lost the advantage of his pro bono legal representation because he had not provided his legal representatives with the instructions that they considered were necessary to enable them to fulfil their professional obligations to Gregory and to the Court. Consequently, there is ground for considerable doubt that Gregory will be able to engage and instruct new legal representatives in a timeframe that will permit the Court to list the proceedings for final hearing in a way that will do justice to Brad. (9) Given the high level of uncertainty as to Gregory's real position, the Court should give Gregory an adequate but relatively brief opportunity to provide proper evidence to the Court that will establish the truth of the reason that was given informally as to why Gregory was medically unable to appear. (10) Gregory should be informed that, by reason of his non-appearance on the date fixed for the final hearing of the proceedings, the Court will make the orders sought by Brad in his amended summons and will make an order dismissing the cross claim, unless Gregory makes a proper formal application that has the effect of retrospectively justifying his non-appearance, and persuading the Court that it should act upon the same basis as it would have acted had it adjourned the proceedings on 17 April 2023, save that it will treat the part of the hearing that occurred on that date as part of the final hearing. (11) Any application that Gregory makes must accommodate Brad's entitlement to procedural fairness and his right to a reasonably early completion of these proceedings. The application must be formally made in accordance with the Court's procedures and be supported by evidence in proper form. In the ordinary way, Brad will be given the opportunity to contest any application made by Gregory. (12) If Gregory wishes to be legally represented, he must act to retain satisfactory legal representation quickly and effectively. As the proceedings could not be determined completely on the date fixed for the hearing, in part because Gregory did not conduct himself in a way that preserved his pro bono legal representation, the Court cannot permit any further indefinite delay while Gregory engages in what may be a forlorn endeavour to secure legal representation. Furthermore, at the appropriate time, if any application is made by Gregory, the Court will have to consider the proper balance between Brad's entitlement to finality of these proceedings and the psychological difficulties that Gregory apparently faces in conducting the proceedings himself without legal representation. (13) I will reserve the costs of the hearing on 17 April 2023, and will deal with those costs either in chambers or at the time of the listing of any application made by Gregory. Gregory will need to take into account that Brad has incurred all of the costs involved in the appearance on 17 April 2023, and is not in any way responsible for the inability of the Court to hear and determine the proceedings in the two days that were allotted for the hearing.
The most important orders have already been reproduced above.
Mr Franks availed himself of the entitlement to explain his absence on 17 April 2023, and the largest component of the parties' submissions on appeal was directed to the adequacy of that explanation, to which I now turn.

Mr Franks' evidence

The documentary medical evidence relied upon fell into two categories. The first were letters and certificates which had previously been provided to the Court; the second were those obtained by Mr Franks pursuant to the orders reproduced above.

Earlier medical and psychological evidence

Mr Franks relied on a letter dated 13 February 2023 from a clinical psychologist who diagnosed him with PTSD for the purpose of a disability support pension, and a further letter from a treating psychologist written in his support, who said that she was aware of the history with his lawyers and was "in the process of disputing the suggested reasons for their withdrawal". She said that she was hopeful that "in due course this will be explained, demonstrating that Mr. Franks is not a problematic client as was suggested". She said: It is not recommended that Mr Franks represents himself as the circumstances surrounding this case are emotionally charged and the outcome of him doing this is highly likely to be detrimental to his wellbeing.
Mr Franks also relied on two letters from his treating general practitioner. The first, dated 4 April 2023, merely confirmed that Mr Franks was a regular and long-term patient of this practice and that he had been diagnosed with post-traumatic stress disorder. The second, dated 13 April 2023, was "to provide additional information for his upcoming case in the Supreme Court on the grounds of his mental health". After describing his conditions and history, the doctor said: I understand that Greg is seeking new representation for the upcoming case in the Supreme Court. I wish to advise that in my opinion, based on my knowledge of Greg's medical history and his current condition, that he would not be fit to self-represent - in fact, it is likely that doing so would exacerbate his PTSD and anxiety, as some of the triggers to these conditions relate to the actions of the plaintiff in this case. We would request understanding in terms of the above matters and request additional time for Greg to be able to access the appropriate supports and legal advice.

Evidence concerning the hospitalisation on 17 April 2023

Mr Franks also provided the following documents produced by the paramedics and Port Macquarie Base Hospital connected with his admission on the morning of 17 April 2023.
The Discharge Referral Note from the Emergency Department, created at 12.10pm on 17 April 2023 recorded that the "Attending Medical Officer" was Doctor Torgrim Soeyland and that the author of the document was "Doctor Benedicta Yudianto (medical intern; medical officer)". The document stated that Mr Franks had presented with chest pain (2/10) and chest tightness, his ECG was negative, any acute ischemic changes/cardiac pathology and his serial troponin were all negative. It included the following history: Chest pain started at 630am this morning, upon waking up is due to have court case in Sydney regarding his house, and feels anxious and stress[ed] about it mean[s] to have flight to Sydney 0730 am, missed the flight described as chest tightness, in the middle of the chest denied radiation, denied pleurisy constant, 2/10 severity ATOR
The document concluded with a "Medical / Attendance Certificate" signed by Dr Yudianto, which certified that Mr Franks had attended the emergency department on 17 April 2023 and that "he/she will be unfit for: Usual activities". The document also stated that it had been created at 14.18 on 17 April 2023.
Mr Franks also annexed three ECG printouts. The first two had been produced at Port Macquarie Base Hospital. Both were dated 17 April 2023, and had timestamps of 8:06:14 and 10:41:56. Neither contains any text or other marking to indicate that it discloses any abnormality.
Mr Franks emphasised a third ECG printout. It bears the date of 17 April 2023 and the time of 12:10:36, but bearing in mind the timing of the Discharge Referral Note, the latter is suggestive of when it was printed out, rather than when Mr Franks' heartbeat was monitored. There seems to be no other timestamp on the document. Mr Franks said that the third ECG graph had been produced by the paramedics, and that may be so, especially bearing mind that two other documents prepared by the paramedics stated: "12 Lead ECG Taken". The heart rate on the third ECG is 75 bpm (as opposed to 69 and 64 bpm on the other two ECGs). Unlike the others, the third ECG included the following words: "ABNORMAL ECG / Acute MI" and "Unconfirmed Diagnosis". It was accepted that "MI" is to be understood as "myocardial infarction".
The ambulance records demonstrated that a call had been received at 7:11 AM, and an ambulance arrived at the scene at 7:19, with the patient being loaded at 7:32, placed in triage at the hospital at 7:50 and taken off the stretcher at 8:10. It gave the following case description: 58 YOM PT AT HOME LIVES ALONE STATES NOTICED CHEST HEAVINESS AFTER WAKING THIS MORN APPROX 6:40AM. PT STATES STRESS ++ LATELY. HX PTSD, HT, HI CHOL, ASTHMA, STATES HAD CHEST PAIN BUT NIL ACS BEFORE. O/E PT ALERT, WELL PERFUSED, AMBULANT, OBS BTF, ECG SR W 1ST DEG AV BLOCK POSS RBBB. PT STATES TRIED VENT INHALER THIS AM NIL EFFECT. PT STATES INITIAL SOB AND CHEST PAIN EASED AT TRIAGE.
The document also stated that the ECG recorded a "first degree AV block". By way of history it said "acute coronary syndrome NSTEMI & time of onset: 17-Apr-2023 06:40".

Mr Franks' affidavit

Mr Franks also provided an affidavit dated 18 May 2023, which in large measure addressed the pro bono lawyers ceasing to act for him and the delay in his brother commencing proceedings, but included in its final paragraph some evidence concerning his presentation to the Emergency Department. That paragraph was as follows: I was hospitalised on 17 April which prevented me from attending the hearing, 11 days after I sought to have the hearing dates vacated due to my health and loss of legal representation. A friend informed the court prior to the hearing commencing that I was in Port Macquarie Hospital, which could be easily confirmed. l have already sent proof of that heath incident to the court. It includes a report I obtained from the ambulance service where they identified by ECG my heart condition (1st degree heart block) at my home, and they told me I needed to go to hospital for testing. I supplied the discharge hospital summary confirming I was there until 2.30pm. My friend transported me home. I supplied evidence of my missed flight for which I had paid. It is contrary to usual medical advice to fly while having a heart incident and contrary to air travel advice.
Mr Franks was not cross-examined so as to challenge that paragraph of his affidavit.
Electronic records provided by Mr Franks indicated that on the evening of Tuesday 11 April 2023 he purchased a one-way ticket from Port Macquarie to Sydney for the following Monday morning (17 April 2023). The records do not suggest that he had made arrangements for his return.
Other documents which bore upon the events of the morning of 17 April 2023 were: 1. some internet pages which suggested that passengers should present at regional airports 20 minutes prior to scheduled departure, 2. a Google Maps document dated 8 June 2023 and timed at 2.16pm which stated that the distance from Mr Franks' home to the airport was 8.1kms and gave an estimation of 12 minutes' driving time, 3. a document obtained from the internet concerning "first-degree heart block" which suggested that this was "generally asymptomatic and without significant complications", and 4. a notice to produce which required production of copies of "any plane ticket, receipt for plane ticket, confirmation or boarding pass referring to a ticket in your name from Sydney to Port Macquarie" for any time in the ensuing six weeks. The notice to produce was called upon and Mr Franks confirmed he had no further documents to produce.

The hearing before the primary judge

On 9 June 2023, Mr Franks represented himself, appearing by audio-visual link. The transcript records that the hearing commenced at 10.09am and concluded at 11.22am.
The cross-examination occupied ten pages of transcript. Mr Franks said he was planning to return to Port Macquarie "by plane or train", but denied having purchased any ticket. He said that he woke up at 5.30am, couldn't fall back asleep, got dressed in his tracksuit and returned to bed to watch television. He denied that he had told the paramedics or anyone at the hospital that he had woken up at 6.30 or 6.40am. He said it was not necessary for him to reach the airport by 6.50am for a 7.10am departure, because "they allow people to board up until the plane starts its engine and takes off, which is only a few minutes before the departure time". When confronted with his affidavit and earlier submissions which denied that he was able to advance his case without legal representation, and his more recent statements that he was able to represent himself, Mr Franks said "I've been getting some treatment for the condition and I've had time to do some preparation based on the documents I do have".
The primary judge then heard submissions and reserved.
His Honour published reasons rejecting the application for an adjournment and dismissing the cross-claim and appointing trustees for sale on 11 August 2023: Cameron v Franks (No 2) [2023] NSWSC 929.

The reasons of the primary judge

The primary judge recorded at [18] that Mr Franks conducted his application in a "coherent and lucid way that gave the Court no reason at all to understand that Mr Franks was suffering from some disability that made him any more vulnerable than any other lay party who was required to present themselves in proceedings in this Court".

Summary of evidence

The reasons reproduce the entirety of Mr Franks' affidavit and comprehensively summarise its annexures, including the medical evidence. His Honour also recorded that on 6 April 2023, his Associate had sent a standard form email to the parties explaining that the practice was that the hearing would proceed by way of a live hearing but advised that "if there was any difficulty with any self-represented party attending in person, the Court would hear matters using a virtual courtroom by audio-visual link or telephone, provided an application was made as early as possible and contained a clear statement of the basis for the application". Of this, his Honour said at [29]: Mr Franks was entitled to make his own decision as to whether he preferred to participate in the hearing in person or remotely by audio-visual or telephonic means. He apparently chose the former as he purchased a plane ticket to fly from Port Macquarie to Sydney on the morning of the hearing. I have only mentioned the communications that advised Mr Franks of the alternative possibility that he could participate in the hearing remotely, because they establish that Mr Franks had the means to communicate with the Court if the need arose, and that it was possible for him to ask to be allowed to participate remotely if that was more convenient to him.
Referring to the timing of the flight on the morning of 17 April 2023, his Honour said that it was "at best rash that Mr Franks put himself in the position where his ability to appear at a hearing in the Supreme Court in Sydney at 10 AM required that he fly from Port Macquarie leaving at 7:10 AM".
The primary judge addressed the cross-examination concerning the events of that morning, saying at [35]-[36]: 35 Mr Franks was cross-examined on the basis that, if he woke up at 6:30-6:40 AM, he could not seriously have expected to catch an aeroplane leaving Port Macquarie airport at 7:10 AM. Mr Franks responded by denying that he woke up at that time, and said instead that he woke up at about 5:30 AM and went back to bed dressed in the tracksuit in which he intended to fly to Sydney. Mr Franks repeatedly denied that the paramedics and the medical intern had correctly recorded what he told them in relation to the time that he woke up in the morning. Mr Franks sought to explain their errors by saying that the information that he provided mostly concerned his medical history, and the paramedics and the medical intern did not take notes and must have recorded the time of his waking up later, so that they made errors. 36 Mr Franks said in cross-examination that he did not experience chest pains at 5:30 AM when he woke up and that he only did so at about 6:30 AM. He sought to explain the fact that he did not call the Ambulance Service until 7:11 AM by saying that he carried out some exercises that he expected would relieve his chest pain, but the exercises were unsuccessful.
The primary judge then referred to the order made on 28 April 2023 that the evidence in support of any application made by Mr Franks would "include the evidence of a medical practitioner who examined the defendant in hospital on 17 April 2023, including any diagnostic or treatment records of that date, to substantiate the defendant's claim that he was unable to attend in Court due to attending hospital for a heart condition".
The following three paragraphs were at the heart of the matters debated when the appeal was heard: 38 I included the requirement that the evidence to be filed by Mr Franks "shall include the evidence of a medical practitioner who examined the defendant in hospital on 17 April 2023", because it was obvious that Mr Franks may have relied upon a sham medical event as a pretext for avoiding the proceedings being heard on that date, so that it would be necessary for the Court to have considered medical evidence by a doctor who treated Mr Franks at the Hospital in order for the Court to be in a position to make a sound judgment about whether or not Mr Franks' failure to appear in court was the result of extenuating circumstances for which he was not responsible. 39 Although Mr Franks annexed diagnostic and treatment records to his affidavit, he did not provide evidence from a doctor who examined him, and did not explain why he had not done so. I consider this to be a serious omission, as the symptoms recorded by the paramedics and the medical intern, being limited to chest pain and chest tightness, and stress and anxiety due to the imminence of the hearing, would not usually be considered sufficient to justify a party in not appearing in court. Mr Franks' decision to leave it to the morning of the hearing to fly to Sydney from Port Macquarie plainly exacerbated the difficulty. The absence of direct medical evidence on this issue is problematic, because the Court has no scientific means of deciding whether symptoms that would be experienced by many litigants in person, and indeed many practitioners, were in fact of a seriousness that justified hospital intervention. As it has happened, the sequelae to the event are not consistent with Mr Franks having any serious cardiac pathology. 40 I do not consider the fact that the paramedics decided that it was warranted that Mr Franks be conveyed to the Hospital for observation and testing is of great significance. Mr Franks waited until 7:11 AM to call the Ambulance Service, which was one minute after his flight was due to leave Port Macquarie airport. As a practical matter, Mr Franks decided for himself that his physical symptoms justified him in not travelling to Sydney to appear at the hearing.
Mr Franks was especially critical of the finding in [39] that there had been a "serious omission" in the material supplied by Mr Franks. He said that he had gone further than the orders had required, in that he had provided hospital and ambulance records. He said that the intern who signed the medical certificate and the discharge notes was a medical practitioner and that there was nothing to indicate that she had not been the person who had examined him, thereby complying with the orders. He maintained that the intern was acting under the supervision of the doctor described in the discharge notes as the "attending medical officer". He did not accept that the orders required either a letter or an affidavit to have been produced from a medical practitioner who examined him on the day.
Mr Franks also disputed the way in which the primary judge addressed the evidence of the paramedics. He said that they were medically trained, and advised that he should go to hospital for further tests. The fact that it turned out that he had no serious cardiac pathology was not something that was known in the early hours of the morning and that he had no choice but to miss his flight.
Mr Franks also disputed the concluding sentence in the passage reproduced above, a point to which I shall return.

The test applied by and the reasoning of the primary judge

The primary judge treated the test he was applying as whether "the evidence now before the Court establishes to an adequate degree of confidence that Mr Franks would have appeared to contest the proceedings on 17 April 2023 were it not for his having suffered a medical episode that reasonably deprived him of the ability to attend court": at [53].
His Honour said that he had considered the evidence carefully, and in particular the absence of evidence of a medical practitioner to substantiate Mr Franks' claim that he had been unable to attend Court due to attending hospital for a heart condition. His Honour said at [55] that "I am not satisfied that Mr Franks suffered a cardiac episode on the morning of the hearing that prevented him from travelling to Sydney". His Honour accepted that Mr Franks might have been suffering stress and anxiety as a result of the imminent hearing, and that he may have experienced feelings of pressure in his chest. However, his Honour concluded that the evidence did not justify a finding that the effects were other than disorienting and transitory.
His Honour said that he was in no position to assess objectively the reasonableness of the timing of the flight, but added that it was "not unreasonable for the Court to consider the plan to be improbable of success and, in any event, it involved an unjustifiable degree of risk".
His Honour said that he was "not satisfied with Mr Franks' explanation of why the records made by the paramedics and the medical intern that he told them that he awoke at 6:30 AM were incorrect". He added that "whether or not his understanding expressed in his evidence that he could board the plane at the last minute notwithstanding the advertised boarding schedule was sound, I am satisfied that the arrangements that Mr Franks made to ensure that he was able to appear were irresponsible having regard to his obligations to the Court".
His Honour criticised the timing of his calling the ambulance, namely, one minute after the flight was due to leave, as demonstrating "at the least an exceedingly casual approach" to his civic obligation to appear to prosecute his cross-claim, if he wanted to avail himself of the opportunity to do so.
His Honour added the fact that Mr Franks had forfeited the opportunity afforded to him by the pro bono scheme to be represented by counsel and a solicitor. His Honour said that those circumstances caused substantial doubt to be cast upon the genuineness of his claim that it had been his intention to prosecute his cross-claim.
Finally, his Honour noted that he was satisfied, having heard from Mr Franks, that "he was as capable of conducting his case in person as would be the majority of people who were placed by circumstances in that uncomfortable position".
For all of those reasons, his Honour concluded that the reasons subsequently given by Mr Franks for not appearing to prosecute his cross-claim did not demonstrate extenuating circumstances that were sufficient to justify the Court in retrospectively adjourning the hearing. Accordingly, his Honour dismissed Mr Franks' notice of motion with costs, made appointments of trustees pursuant to s 66G, required Mr Franks to deliver up possession of the property within 28 days of a direction by the trustees to do so, and dismissed his cross-summons with costs.
Subsequently, those orders were stayed by the primary judge pending the determination of Mr Franks' appeal.

The nature of Mr Franks' appeal

Mr Franks purported to appeal as of right. It was said that that entitlement was a consequence of the orders dismissing the cross-claim. The unusual course adopted by the primary judge may very well mean that that submission is correct, even though there has not been a final hearing of the cross-claim.
A more familiar course in cases such as this, which is what Mr Cameron had sought, is the dismissal of the proceeding for default and an application to set aside the default judgment. Had the cross-claim been dismissed for default, and had Mr Franks' application to set aside the default judgment then been refused, then an appeal would require leave: see Pham v Gall (2020) 102 NSWLR 269; [2020] NSWCA 116. However, it may very well be that the fact that the dismissal only took place following a hearing attended by Mr Franks alters that position. It is unnecessary to determine this, because Mr Franks also seeks to set aside the orders appointing the trustees for sale and vesting the land in them. Those orders divested his beneficial interest in the co-owned property: see Foundas v Arambatzis (No 3) [2020] NSWCA 87 at [6]-[11] and the authorities there considered. Mr Franks has an appeal as of right from those orders. In any event, Mr Cameron made it clear that no part of his submissions sought separately for leave to be refused, as opposed to Mr Franks' appeal to be dismissed.
A related, and more substantive, threshold question is the standard of appellate review. Mr Cameron maintained that the applicable principles were those stated in Sali v SPC Ltd (1993) 67 ALJR 841; [1993] HCA 47, and that it was necessary to identify House v The King error in the discretionary decision to refuse an adjournment. I do not think that is correct. The decision the subject of the appeal is not the decision on 17 April 2023 to refuse an informal application for an adjournment. It was the decision on 11 August 2023 to appoint trustees for sale and to dismiss the cross-claim. It does not follow from the fact that the orders made by the primary judge on 28 April 2023 styled the application as "an order to be made retrospectively adjourning the hearing" that what occurred was a contested adjournment to which the principles in Sali applied. The position must be determined as a matter of substance, rather than by reference to the description given in the orders.
It is clear that save for Mr Franks' cross-claim, this was a clear case for the appointment of trustees to sell the estranged brothers' co-owned property where one had lived for many years. But the decision concerning the cross-claim was binary: either it should be dismissed summarily, or else it should be permitted to go to trial. I think the correctness standard applies to this Court's appellate review: see Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [46]-[49], [85]-[87], and this Court's analysis in Cooke v Tweed Shire Council [2024] NSWCA 50 at [33]-[36]. As in Cooke, if there be error in that approach, it is an error which is favourable to Mr Franks.
However, I respectfully agree with Mr Cameron that the factual findings made by the primary judge were affected by his impressions of Mr Franks' credibility as a witness, and that in order to set them aside, it is necessary for Mr Franks to show that they were glaringly improbable or contrary to compelling inferences: Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 at [55].

Mr Franks' submissions on the appeal

Mr Franks' notice of appeal suggests it was drawn without the assistance of a lawyer. It annexes a document headed "Grounds of Appeal" with 19 numbered paragraphs.

Oral submissions

Mr Franks appeared for himself. While making it clear that he abandoned no aspect of his appeal, his oral submissions in chief helpfully concentrated on what he regarded as the three salient points.
First, Mr Franks submitted that the primary judge was biased against him by relying upon findings he had made in proceedings in which the grant of pro bono representation was revoked. The primary judge recorded that Mr Franks had "entirely declined to provide the instructions to which his pro bono legal representatives were entitled". Mr Franks noted that similar statements were made by the primary judge in the judgment of 11 August 2023. Although his Honour was there "satisfied … that Mr Franks had not properly engaged with his pro bono lawyers, had not provided them with the instructions that they sought, and had created the situation where both his barrister and his solicitor had been driven to seek the leave that they needed to be permitted to return their brief or file a notice of ceasing to act", Mr Franks maintained on appeal that he had not received the communications - various emails and a "phone message" - apparently sent by the appellant's former solicitors.
Mr Franks clarified his submissions on bias in the following exchange: LEEMING JA: If the judge had formed the view that you were going to lose, irrespective of the evidence and what you were going to submit, what do you say about the fact that he made directions for you making an application for this retrospective adjournment? APPELLANT: Now, I'm not suggesting he'd formed the view that he was going to decide against me on the whole case. I believe that he'd formed the view that I was an irresponsible litigant for having lost my pro bono solicitors, and that biased him against what I said when I applied for the adjournment of the actual hearing date.
However, no clarification was provided as to whether the primary judge's "reasonable bias" against him was apprehended or actual, although the tenor of Mr Franks' submissions, and his use of the term "reasonable bias", was suggestive of the former.
Secondly, Mr Franks submitted that the primary judge erred in finding that he had not provided the medical evidence in accordance with the orders of 17 April 2023. He took issue with what the primary judge had said at [39] of the second judgment, which was that, [a]lthough Mr Franks annexed diagnostic and treatment records to his affidavit, he did not provide evidence from a doctor who examined him, and did not explain why he had not done so. I consider this to be a serious omission, as the symptoms recorded by the paramedics and the medical intern, being limited to chest pain and chest tightness, and stress and anxiety due to the imminence of the hearing, would not usually be considered sufficient to justify a party in not appearing in court.
Mr Franks submitted that while the primary judge had requested evidence from a "medical practitioner" who had examined the appellant in hospital, the 'Discharge Referral Note' was prepared and signed by Dr Benedicta Yudianto, a medical intern, under the supervision of a 'Dr Torgrim Soeyland', who is listed on the Note as the 'Attending Medical Officer'. At one stage, Mr Franks appeared to submit that the printouts of the ECGs performed by "paramedics" fell within the terms of Robb J's orders, as they were obviously medically trained, but later (and correctly) resiled from that position.
Thirdly, Mr Franks took issue with the primary judge's finding that the appellant was not in the first place inclined to attend the hearing in person given medical reports had indicated he awoke at 6:30am in circumstances where his flight was due to depart at 7:10am. Evidence was adduced in the adjournment hearing that the boarding gate ordinarily closes 20 minutes before departure, and that it would have taken the appellant 12 minutes to travel from his house to the airport. On appeal, Mr Franks noted that the document had referred only to metropolitan airports and that his prior experience had indicated that no such restriction applied in regional airports where the passenger had only carry-on baggage. Mr Franks also submitted that the part of the 'Case Description' in the Ambulance Electronic Medical Record that stated "58 YOM PT AT HOME LIVES ALONE STATES NOTICED CHEST HEAVINESS AFTER WAKING THIS MORN APPROX 6:40AM" should have been read as a statement that the appellant's symptoms had materialised at that time, and not that he awoke at that time.
A fourth point emerged in Mr Franks' reply, where he fixed upon comments made by the primary judge to the effect that he was capable of representing himself in the adjournment hearing despite earlier claims that he was incapable of representing himself. Mr Franks submitted that those two hearings were very different: the forensic requirements of the adjournment hearing were a "far cry" from the demands of the trial of 17-18 April 2023, where he was expected to cross-examine the respondent, with whom the appellant has apparently had a difficult history.

Mr Franks' written submissions

Many of the grounds of appeal and in Mr Franks' written submissions were elaborated in the oral submissions summarised above. However, many were only barely if at all developed orally. They are summarised below.
Ground 2 challenged the conclusion that Mr Franks' file had been delivered to him by his former solicitors, when it was clear that there were 1,000 pages of documents obtained on subpoena which were absent.
Ground 12 alleged that there was no supporting evidence to support the claim that the contract was prepared by Mr Franks' deceased solicitor, "when in fact the lawyer's handwritten notes produced showed that he had acted in preparing it. A legible version of the agreement was made available that clearly mirrored the signed copy and signatures on the copy of the contract were visible". Similarly in support of ground 16 it was said that "[e]vidence in the deceased lawyer's own hand that he organised the settlement was provided, but the court incorrectly concluded that there was no supporting evidence from the deceased lawyer". Mr Franks did not point the Court to the handwritten notes, or the legible version of the agreement.
Grounds 13 and 14 concerned the references by the primary judge to caveats in his earlier judgment.
Grounds 15 and 16 concerned the approach the judge took to the written agreement on which Mr Franks relied. It was said that the signature resembled that of Mr Cameron, and it was wrong to conclude from the erroneous address that the agreement was false, and that there was corroborative evidence in the deceased's lawyer's own hand.
Ground 17 complained that the court had failed to consider the 18 month delay between learning of his father's death and Mr Cameron commencing proceedings. Grounds 18 and 19 complained that the judge had said that Mr Cameron had voluntarily changed his claim from 1/2 to 1/3 of the proceeds of sale, whereas in fact this had been ordered, with ground 19 going so far as to assert that Mr Cameron "had deliberately misled the court to believe he was entitled to a one half share of the house".

Consideration

The grounds advanced solely, or predominantly, in writing are readily disposed of.
The missing 1,000 pages to which Mr Franks referred were not established by evidence. As the primary judge said, he was in receipt of a court book. The court book did not necessarily contain all the documents upon which Mr Cameron was to be cross-examined, but that was a matter as to which Mr Franks bore the onus, and nothing that was said to the primary judge or to this Court on appeal discharged it. The inability to adduce testimonial evidence from the deceased solicitor is obvious. The references to the caveats in the earlier judgment played no part in the orders from which Mr Franks appeals. No final determination was made as to whether the contract on which Mr Franks relied was authentic or a forgery. Mr Cameron's delay in commencing proceedings is of peripheral relevance at best to the decision. It is true as Mr Franks submitted that Mr Cameron's original summons wrongly sought a one-half interest in the proceeds of sale. That has been corrected. No foundation has been made for the proposition that Mr Cameron had deliberately misled the court, and were such submission to have been made by a legal practitioner without proper basis, it would be a serious matter, quite probably warranting reporting to professional authorities.
I do not accept that the decision of the primary judge was affected by any bias, to the extent that this submission is pressed by Mr Franks. His Honour was entitled to look with scepticism upon the various explanations which Mr Franks had sought to advance. His Honour rejected Mr Cameron's application for default judgment, and made directions which permitted Mr Franks to give a full account, at a time convenient to him, of his absence on 17 April 2023. His Honour was also entitled to observe that Mr Franks' presentation was lucid and capable. As much is clear from the transcript, and is confirmed by the oral submissions I heard Mr Franks make.
Accordingly, I turn to the gravamen of this appeal, which concerns whether the medical and other evidence supplied by Mr Franks warranted permitting his cross-claim to go to trial notwithstanding his failure to appear.
The reasons of the primary judge are characteristically careful. As referred to above (at [58]), his Honour framed the test to be applied at [53] as follows: The question now before the Court is whether the Court should take the unusual step of ordering that the hearing retrospectively be adjourned. That would be justifiable if the evidence now before the Court establishes to an adequate degree of confidence that Mr Franks would have appeared to contest the proceedings on 17 April 2023 were it not for his having suffered a medical episode that reasonably deprived him of the ability to attend court.
It was not suggested that that formulation of applicable principle was inapt. The ultimate conclusion reflected the formulation: his Honour was not satisfied that the reasons subsequently given by Mr Franks demonstrated extenuating circumstances justifying his application: at [62].
Despite the repetition involved, it may be reiterated that that conclusion was informed by the following matters: 1. The primary judge's view that there had been a "serious omission" by Mr Franks in complying with the Court's orders, in his failure to supply "direct medical evidence" of whether "Mr Franks' failure of appear in court was the result of extenuating circumstances for which he was not responsible". 2. The finding that, "[a]s a practical matter, Mr Franks decided for himself that his physical symptoms justified him in not travelling to Sydney to appear at the hearing". 3. the opinions of Mr Franks' general practitioner and treating psychologist to the effect that he was not able to appear without exacerbating his mental condition, which were balanced against his Honour's own experience that Mr Franks was able to prepare and file cogent evidence in the hearing on 9 June 2023 in what appeared to be a competent and satisfactory manner, as elaborated at [48]: Since I made the order on 31 March 2023 granting Ms Kinslor leave to file a notice of ceasing to act for Mr Franks, in circumstances where the Registrar had earlier given Mr Franks' counsel leave to return her pro bono brief, Mr Franks' case in all of his communications has been that the hearing fixed for 17 April 2023 should be vacated, so that Mr Franks could recover his file from his previous solicitor, and so that he could obtain new legal representation because his psychological condition, and in particular his PTSD, had the effect that he could not competently conduct a hearing as a litigant in person. Yet, when I put the issue to Mr Franks on 9 June 2023, having formed the impression that he was not as incompetent as he claimed, he readily agreed to conduct the hearing himself, if he could not find new legal representation, provided that he could obtain his file. That proviso was problematic, as Mr Franks had been provided with a properly prepared court book, and, on balance, the evidence suggested that Mr Franks had been given the file by his previous solicitor, and, if the file was in fact incomplete, Mr Franks had not acted positively to obtain the balance of the file. 1. The interests of Mr Cameron, who with his wife suffered a very serious injury in a car accident in 2022, and who for more than three years had been prima facie entitled to one third of the beneficial ownership of the property. 2. Concerning the medical evidence supplied by Mr Franks, his Honour said at [55]: I have considered that evidence carefully, and I am not satisfied that Mr Franks suffered a cardiac episode on the morning of the hearing that prevented him from travelling to Sydney. I accept that Mr Franks may have been suffering stress and anxiety as a result of the imminent hearing and that he may have experienced feelings of pressure in his chest. However, the evidence does not justify a finding that the effects were other than discomfiting and transitory. 1. His Honour's opinion that it was not unreasonable to consider that Mr Franks' plan to catch a plane leaving Port Macquarie at 7.10am was improbable of success and in any event involved an unjustifiable degree of risk. 2. His Honour's not being satisfied of Mr Franks' explanation of why the records made by the paramedics and medical intern said that he awoke at 6.30am or 6.40pm. 3. His Honour forming the view that "substantial doubt" must be cast upon the genuineness of Mr Franks' claim that he intended to prosecute his cross-claim by the circumstances in which he forfeited the opportunity to have pro bono lawyers.
All save for the first of those points were plainly informed by Mr Franks' answers and demeanour during cross-examination.
Mr Franks' main point was that the primary judge was wrong to conclude that there was any deficiency in his compliance with the orders, let alone a serious omission. That was based upon the certificate provided by Dr Yudianto, who although only a medical intern was on the face of the certificate a qualified medical practitioner. I do not accept that the appropriate inference to draw is that Dr Yudianto examined Mr Franks, and Dr Soeyland, who was described as the "Attending Medical Officer", merely supervised Dr Yudianto. On the face of the document it is not clear whether it was Dr Soeyland or Dr Yudianto who examined Mr Franks, or whether Dr Yudianto's role went beyond preparing the discharge referral note and medical attendance certificate.
I do not accept Mr Franks' submission. The orders were clear: they required his evidence to include "the evidence of a medical practitioner who examined the defendant in hospital on 17 April 2023, including any diagnostic or treatment records of that date". The terms of the order make it tolerably clear that "the evidence of a medical practitioner who examined" Mr Franks is something more than the "diagnostic or treatment records", such as the discharge referral note, medical attendance certificate and ECG printouts. The order was made in a context where Mr Franks had relied upon detailed letters from his general practitioner and treating psychologist as well as a clinical psychologist who purported to diagnose his psychiatric condition. It is not unduly strict to construe the "evidence of a medical practitioner who examined" Mr Franks to be a letter or a report from a medical practitioner, rather than the somewhat generic documents that accompanied his discharge from hospital.
The point of the orders was to supply an opinion of a qualified medical practitioner on a point which was not only obvious but was also explicitly raised by the primary judge in his first judgment, namely, whether "the reason given for [Mr Franks'] non-appearance was genuine and would, if properly proved, have caused the Court to adjourn the hearing", or "[a]lternatively, the reason may not have been genuine …". Direct opinion evidence of a medical practitioner obtained from one of the treating doctors would have borne directly and probably conclusively on that issue. However, the approach to compliance adopted by Mr Franks meant that a great deal of time was spent reviewing primary electronic records produced by the hospital and the ambulance paramedics, and seeking to draw inferences including as to the identity of the doctor who treated him and the conditions from which he suffered.
But even if I am wrong about that, and the position is that the primary judge erred when stating that there had been a "serious omission" by Mr Franks, nothing turns on the error. It was not suggested that this Court if it detected error should remit the matter to a judge in the Equity Division. If there was any error in the conclusion that there was a "serious omission", that does not mean that I would conclude that Mr Franks should succeed.
There is simply far too much that is unexplained.
First, no basis has been made out to interfere with the findings at [55]: I am not satisfied that Mr Franks suffered a cardiac episode on the morning of the hearing that prevented him from travelling to Sydney. I accept that Mr Franks may have been suffering stress and anxiety as a result of the imminent hearing and that he may have experienced feelings of pressure in his chest. However, the evidence does not justify a finding that the effects were other than discomfiting and transitory.
Those findings are supported by the contemporaneous medical evidence, and informed by Mr Franks' demeanour.
Secondly, it is to be borne in mind that in a very formal way, including by submissions supplied on the Sunday before the hearing, Mr Franks had marshalled a range of arguments in support of the hearing being vacated. Essentially these were the need for legal representation, the need for a file, and his psychiatric conditions. All were separate from any difficulty with his heart.
Thirdly, when one turns to the events of the morning of 17 April 2023, there is no proper basis for the conclusion that statements recorded in the notes taken in the hospital and by the ambulance paramedics were both inaccurate when they recorded that Mr Franks woke up at 6.30 or 6.40am.
Fourthly, that finding leads to a difficulty with the evidence of Mr Franks that although he was intending to catch a 7.10am flight to Sydney to run his court case, he nonetheless only woke up at 6.30am or 6.40am, notwithstanding that he lived 10 minutes drive from the airport.
Fifthly, even if it be accepted that Mr Franks was awake at 6.30am or 6.40am and could have reached the airport on time if he left immediately, he did not seek to go to the airport. Nor did he call an ambulance until after the plane's scheduled departure. Instead he remained at home. The finding at [40] that "[a]s a practical matter, Mr Franks decided for himself that his physical symptoms justified him in not travelling to Sydney to appear at the hearing" is unassailable.
Sixthly, this was squarely raised with Mr Franks during the hearing of the appeal: LEEMING JA: Do you disagree with the last sentence of para 40? APPELLANT: No, I didn't consider it was my decision. The paramedics made it very clear to me, I needed to go to hospital because they couldn't say if I was having a heart attack. LEEMING JA: His point is that if you were going to catch the plane, you wouldn't have been at home at half past 6 or 20 to 7. APPELLANT: Which is incorrect, and I'm quite happy to go into that because we discussed that at length at the adjournment. I made it and - I mean, we can go into that now if you wish to, but I was just wanting to deal with all the medical documents that I produced. And I don't know that his point in para 40 is that because I waited till 7, 10 past 7 to call the ambulance, I was deciding not to catch the plane to Sydney, because I knew there were three planes to Sydney each morning, and I knew I could get on a later plane if I absolutely needed to, and the plane after that still would have got me to court on time. I was trying to catch the plane that I had booked and paid for at 7.10, and that's why I had explained under cross-examination why I had waited half an hour after the pain started before I called the ambulance, because I was anticipating that this was stress related as chest pains often are, and that I might be able to calm myself down, practicing the relaxation exercises I had been taught, and still be able to catch that plane. It wasn't until it got till 10 past 7 when it was obvious I couldn't catch that plane, and the chest pains persisted, that I decided to call the ambulance. That didn't necessarily mean I couldn't catch the next plane, that would depend on what the paramedics said to me when they attended. LEEMING JA: Well, what is the evidence about when the next plane was? APPELLANT: There is none.
Seventhly, there was no evidence of the three flights all of which were said to depart Port Macquarie that morning.
It is to be steadily borne in mind that the question is not whether Mr Franks, having fabricated an agreement entitling him to sole ownership of the property, then feigned a cardiac episode so as to justify an adjournment. Contrary to some of the submissions made by Mr Franks, no such findings were made by the primary judge, nor are they made by this Court. Any such findings would attract the strictures in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and s 140 of the Evidence Act 1995 (NSW). Instead, the question is merely whether Mr Franks had established a sufficient reason to justify being let back into the litigation. The primary judge, who saw Mr Franks' cross-examination, concluded that the case advanced by him was insufficient. I agree. Even if his Honour were wrong to regard the evidence put forward by Mr Franks as serious non-compliance with the orders made on 28 April 2023, I would still find that Mr Franks' application should have been refused.
For those reasons, the appeal should be dismissed. The consequence is that the stay ordered by Robb J on 4 December 2023 is thereby dissolved, and the second and third respondents can proceed to sell the property. There is no reason to displace the general rule in UCPR r 42.1 that costs follow the event.
I propose that the appeal be dismissed with costs.
ADAMSON JA: I agree with Leeming JA.
STERN JA: I agree with Leeming JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2024

(2020) 102 NSWLR 269

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