HSBC Bank Australia Limited v Murtough

Cameron v Rural Press Pty Ltd (1992) 35 FCR 211 Director of Public Prosecutions v Emanuel [2009] NSWCA 42 CASES CITED : Edelstein v Medical Tribunal of NSW (No 2) [1993] NSWCA 87 Fibre-Tek Pty Ltd v Skye Bennett [2006] NSWSC 111 Lewis v Spencer [2007] NSWSC 1383 Waverley Council v Bobolas [2009] NSWLEC 188

PARTIES : HSBC Bank Australia Limited (Plaintiff) Christopher Murtough (Defendant)

COUNSEL : J White (Plaintiff) In person (Defendant) (by telephone link)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION POSSESSION LIST

EX TEMPORE JUDGMENT 1 This is a further application by the Defendant for an adjournment in relation to a summary judgment application by the Plaintiff which has been set down for hearing tomorrow before me. The adjournment application is put on two grounds, which may in one sense be related but ought to be considered separately in any event. The first basis relies on s 57 of the Legal Aid Commission Act 1979 which provides: Where it appears to a court or tribunal, on any information before it:

(a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit. 2 This is the second application for an adjournment based on s 57. I dealt with the first application in a judgment on 15 March 2010. Some of the background concerning the application to Legal Aid that gave rise to that application and the present one is set out in that judgment. 3 In short, Mr Murtough applied again for Legal Aid on 25 January 2010 and the Legal Aid Commission determined the application against him. As that judgment makes clear, he persuaded the Legal Aid Commission to reconsider his application under s 34 of the Act, and it was for that reason on 15 March 2010 that I determined there was no appeal extant under s 56 to justify an adjournment under s 57. 4 The application for Legal Aid in January this year was not the first time Mr Murtough has applied for Legal Aid in relation to these present proceedings. He applied in 2008 and as a letter on his behalf to the Bank's solicitors of 22 May 2009 made clear, legal aid at that time was refused based on both means and merits. Mr Murtough in that letter and in the course of submissions to me today has said that that decision of the Legal Aid Commission to refuse that application on merits was an error on the part of the Legal Aid Commission because he had asked the Legal Aid Commission not to consider those merits at the time. It was not made clear to me during the course of the hearing why that was so. 5 In any event, after the Legal Aid Commission reconsidered his application pursuant to s 34 in March of this year, it determined to refuse the application. It wrote to Mr Murtough on 26 March 2010 setting out the reasons for its refusal as follows: On the information available the application does not satisfy the merit test. The merit test in State matters asks whether it is reasonable in all the circumstances to grant legal aid. Matters taken into account include but are not limited to: - the nature and extent of any benefit that may accrue to the applicant by providing legal aid or of any detriment that the applicant may suffer if legal aid is refused, and - whether the applicant has reasonable prospects of success in the proceedings. It appears that the benefit which may result to you from a grant of legal aid is disproportionate to the likely costs of the proceedings and therefore it is not reasonable in all the circumstances to grant legal aid.

On the information supplied to the Legal Aid NSW you are not eligible for legal aid under the means test. 6 As can be seen, it is apparent that one basis for the refusal was on the merits of the case. Mr Murtough has now appealed under s 56 to the Legal Aid Review Committee. He says that in support of that appeal he has made, and is making further submissions about matters that the Legal Aid Commission may not have had before it to consider his appeal. 7 The application under s 57 is opposed by the Plaintiff, particularly in reliance on paragraph (b) of that section. The Plaintiff submits that the provisions of paragraph (b) are not satisfied. 8 The second basis for the application for adjournment today is on the basis of Mr Murtough's health. Mr Murtough was diagnosed with a form of leukemia in 1998 although it is not particularly for that reason that Mr Murtough seeks the adjournment. It more particularly concerns a growth on the left side of his face, which according to a letter he wrote to my Associate on 29 March this year and is in evidence on this application, has been diagnosed as being a malignant growth. He has surgery by Dr Jensen provisionally booked for 13 April 2010. Because the growth is said to be a malignant growth following the surgery there will, after recuperation, be the necessity for radiation therapy for a period of about six weeks. 9 Mr Murtough says that the diagnosis of a malignant growth has only been made within the last few days, and he is not only particularly upset because of that diagnosis and what he will have to go through but he is unwell in any event. 10 The principal issue at the hearing of the application this afternoon has been the question of whether paragraph (b) of s 57 is satisfied. 11 In Fibre-Tek Pty Ltd v Skye Bennett [2006] NSWSC 111 at [26] Simpson J held that the onus lies on the party who opposes the adjournment to establish one or more of the relevant considerations in paragraph (b). In other cases it has been said that once it is established that an appeal has been lodged under s 56 there is a prima facie right to obtain an adjournment under s 57: Lewis v Spencer [2007] NSWSC 1383 at [11], Waverley Council v Bobolas [2009] NSWLEC 188 at [10] and see also Edelstein v Medical Tribunal of NSW (No 2) [1993] NSWCA 87 at pp1-2. 12 Mr White of counsel for the Plaintiff draws my attention to what was said by Spigelman CJ, with whom Tobias JA agreed, in Director of Public Prosecutions v Emanuel [2009] NSWCA 42 at [36] as follows: Mr Emanuel was convicted at a trial at which he was unrepresented during a period when he was seeking legal aid to acquire representation. He was entitled, as a matter of law, for the Local Court to address the provisions of s 57 once he had lodged an appeal against the refusal of legal aid. If each of the other conditions in (b) and (c) were made out, s 57 requires the Court to adjourn the proceedings. … 13 He also draws my attention to what was said by the Full Court of the Federal Court in Cameron v Rural Press Pty Ltd (1992) 35 FCR 211 at 220 and 222. Particularly the passage from Emanuel, he submits, suggests that the onus remains at all times on the party seeking the stay under s 57 to satisfy the Court that all the elements of that section are made out. 14 In my opinion, when Simpson J made reference to the onus being on the party opposing the stay, she was doing no more than making reference to an evidentiary onus. Ordinarily, in the first instance, a party would not be expected to prove a negative as the judgment in Cameron v Rural Press notes at 222. The introductory words to s 57 (that what follows are to be the matters of which the Court is to be satisfied) suggest that the overall onus remains on the party seeking the adjournment. If the wording in paragraph (b) had been expressed as a proviso reading, perhaps, "unless it is shown that the appeal or intention to appeal is not bona fide or is frivolous or vexatious etc" there may have been an overall shift of onus to the party opposing the application. 15 The Plaintiff says that the appeal to the Legal Aid Review Committee is not bona fide and is frivolous or vexatious and is otherwise intended to hinder or delay the conduct of the proceedings. In that regard the Plaintiff points to the long procedural history of the matter, which is detailed more particularly in a volume of documents which has became exhibit 1 on this application. 16 A perusal of the history of this matter together with the fact that this is the second time Legal Aid has been refused on merits leads me to have considerable doubts about whether this appeal, in fact, satisfies the matters in paragraph (b). 17 It cannot be of much significance that Mr Murtough asked the Review Committee not to make a determination because he wanted to put more material to it. That ought to have been done either at the time when the initial application was made or at the time he lodged his appeal. That must be a matter that goes to bona fides. Two refusals on merits is a significant matter. 18 If that was all there was to consider in the matter I would not have much hesitation in refusing this application. I would have considered that the Plaintiff had discharged its evidentiary onus. 19 With regard to Mr Murtough's ill-health, the Plaintiff says that given his chronic condition and the other problems he has suffered from, particularly during the course of this year, it is likely that Mr Murtough will never feel that he is well enough to defend the proceedings, particularly in the event that Legal Aid is ultimately refused and he is not otherwise to obtain legal assistance. 20 I have concerns because of Mr Murtough's state of health, and particularly in the light of his recent diagnosis and the (admittedly, somewhat unsatisfactory and second-hand) evidence about what is likely to ensue over the course of the next six to eight weeks concerning treatment of what he has been diagnosed with. 21 I can take into account, however, that there have been a number of appearances before me during the course of this year in these proceedings and in particular the hearing that took place before me on 23 March 2010, a hearing that lasted about one and a half hours. I had become concerned by the end of that hearing about Mr Murtough's health and ability even to continue appearing on that application in the light of matters I observed about him. I have raised this matter with Mr White at today's application, and it was at least partly in response to that, that Mr White submitted, not without some justification, that there might be some doubt about whether Mr Murtough would ever feel well enough to be able to conduct the proceedings. 22 Nevertheless, I have to take into account the fact that this summary judgment application has been set down for hearing tomorrow (1 April 2010), and from the material that has been filed on both sides and what is likely to be argued, it seems to me that the matter will run for most of the day if not longer. 23 I have very considerable concerns that Mr Murtough is simply not well enough to appear for himself and to defend the summary judgment application. Today's application was heard with Mr Murtough on a telephone link because he claimed he was too unwell to attend Court. 24 The summary judgment application is not an application of insignificance in the proceedings such as an application for the provision of particulars or some other interlocutory matter of that sort. It is an application which, if the Plaintiff is successful, will result in a final order to the detriment of Mr Murtough affecting his continued possession of the property that he lives in and another property that he owns. 25 Although I have considerable doubts about the bone fides of the application of the appeal under s 56 in the light of the history of the matter, I also take into account the submission of Mr Murtough that he wishes to place before the Legal Aid Review Committee the 2 affidavits recently prepared on his behalf by himself and his wife. It may be that there is at least some material in those which could possibly result in the Committee coming to the view that legal aid should be granted. In that regard, in the light of Mr Murtough's ill-health, I consider it very important that every avenue should be pursued to see if some form of legal assistance can be obtained for Mr Murtough so that he is not placed in the position of having to defend the proceedings in his state of ill-health. 26 I do not consider that it would be fair to him to require him to defend the application tomorrow. 27 For those reasons, although reluctantly, I accede to Mr Murtough's application to vacate the hearing on 1 April 2010. **********

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