In the matter of Idylic Solutions Pty Ltd & ors - Australian Securities and Investments Commission v Hobbs

Applicant - David John Hobbs (First Defendant) (represented by Jacqueline Hobbs (Eighth Defendant)) File Number(s): 07/258119

Judgment 1HER HONOUR: This is an application by the first defendant (Mr David Hobbs), brought by Notice of Motion dated 19 June 2012 and filed by leave I granted on 20 June 2012, for an adjournment of the hearing of these proceedings until no earlier than 1 November 2012 "or later". The matter is presently listed for hearing to commence on 4 July 2012 (with an allocation of 6 weeks for the hearing). The application was signed on Mr Hobbs' behalf by his wife, Mrs Jacqueline Hobbs (who is herself a party to the proceedings, being the eighth defendant). Together with Geneva Financial Ltd, a related company, those three defendants are referred to, collectively, as the Hobbs interests. 2By way of background, this is the second time that such an application has been made. On 30 May 2012 I published reasons for my refusal on 28 May 2012 of adjournment applications then made by Mr and Mrs Hobbs. (On 28 May 2012 I did, however, reschedule the commencement date from 20 June 2012 to 4 July 2012.) My reasons for judgment on the earlier adjournment applications set out much of the relevant background to this application and I do not propose to repeat that now. 3Suffice it to say that while the earlier applications were based on a variety of grounds (the lateness of service of certain affidavits and the volume of documentary material that had been served by ASIC in preparation for the hearing); Mr Hobbs' medical conditions (multiple sclerosis and a depressive anxiety condition), the exacerbation of which was attributed by his general medical practitioner to the stress caused by the "influx of affidavits and extra information for him to process prior to the hearing"; and their lack of legal representation), the present application to vacate the hearing date is based broadly (if not wholly) on Mr Hobbs' current state of health. 4The present application can therefore be seen as a fresh application for the very relief that was refused on 28 May 2012. Counsel for ASIC, Mr Clarke, submits that it is necessary on such an application for the applicant point to some change of circumstances (or fresh evidence not reasonably available on the previous application) to warrant a re-consideration of the question whether the hearing date should be vacated. In that regard, he submits that the evidence now sought to be relied upon (in particular, the affidavit of Mr Hobbs' general practitioner, Dr Tim Ewer) was evidence that would have been available on the previous application but that had simply not been adduced in admissible form on that occasion. It is submitted that there is no truly new evidence or change of circumstances, nor any explanation as to why the evidence was not properly brought before the Court on the last occasion. 5(I note that there is, in any event, an objection to Dr Ewer's evidence on the present occasion as still not being in compliance with the provisions of the Uniform Civil Procedure Rules in relation to the admissibility of expert evidence. I consider that objection in due course.) 6As to the fact that this application in effect duplicates the application already considered and dismissed by me in May this year, I would infer that the reason that Dr Ewer's evidence was not then in the proper form (at that stage there being nothing more than a letter akin to a medical certificate being tendered from him) is that from at least around 3 May 2012 (if not earlier) the solicitors who had been engaged to represent the Hobbs' interests in these proceedings had ceased to provide assistance (though they did not formerly withdraw as solicitors on the record until leave was granted on 16 May 2012 for them to do so). On the present application, Mrs Hobbs has referred to her lack of familiarity with legal procedure and lack of legal assistance. 7Mr Clarke has submitted that if Dr Ewer's evidence is not admitted (as I have now concluded it should not be) then there is no new evidence to support the present application and to warrant a different decision. I accept that strictly speaking that is the case. However, in light of the fact that on the last adjournment application neither Mr nor Mrs Hobbs was able to be present and on this occasion Mrs Hobbs was present by video-link (with assistance from a barrister in New Zealand, Mr Warwick Heal) and had made available Dr Ewer for cross-examination, I have approached the application afresh. 8I appreciate that in so doing I may strictly be going beyond the admonition in Rajski v Scitec Corporation Pty Ltd (unreported, NSWCA, 16 June 1986) and National Australia Bank Ltd v Rusu [1999] NSWSC 539 that the procedural advice and assistance given to a self-represented litigant is not one that should deprive the other party of its entitlements (in circumstances where, in the ordinary course, the lack of new evidence would not warrant a re-consideration of the earlier decision). In Rajski, Samuels JA said: In my view, the advice and assistance which a litigant in person ought to receive from the Court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and the untutored. But the Court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. ... At all events the absence of legal representation on one side ought not to induce the Court to deprive the other side of one jot of its lawful entitlement. It may ad weight on the unrepresented party's side of the scale; it must not lighten the other. 9Nevertheless, as a matter of fairness, I have considered afresh the matters going to whether the case should be adjourned by reason of Mr Hobbs' medical condition (having regard, in particular, to the confirmation from Dr Ewer in his oral evidence as to the acute nature of the symptoms presently suffered by Mr Hobbs). 10I have referred above to the fact that the hearing of this application took place largely by video-link and that Mrs Hobbs attended in person to make that application, assisted by Mr Heal (who made it clear that he was not appearing for the Hobbs' interests in the matter and was only assisting Mrs Hobbs in the adjournment application). At the conclusion of the evidence given by Dr Ewer during the video-link hearing, Mr Heal suggested that Mrs Hobbs be given leave, which I granted, to serve written submissions in support of the adjournment application. Those written submissions were received in chambers yesterday in accordance with my directions. The parties were advised late yesterday of my decision on the application and that I would be publishing my written reasons today for that decision. These are those reasons. 11The present adjournment application (as indicated earlier) was largely based on Mr Hobbs' current medical condition. Although there is a submission made in Mrs Hobbs' affidavit of 19 June 2012 that a delay of four to six months is required because it would enable her husband either to find the money to hire lawyers (or to prepare adequately himself if needs be) and a similar submission made in the written submissions served yesterday, there remains no evidence before me as to the basis on which there might be any reasonable expectation that in 4-6 months Mr Hobbs might find the money to fund legal representation for the hearing. Mrs Hobbs' submission is that they have a profitable business that would enable them to do so. (If so, then there is no explanation as to why steps have not been taken before now for the funding to be provided, nor is it apparent why funding could not be provided on a staged basis to permit, for example, advice to be obtained as to the matters on which cross-examination was necessary of ASIC witnesses - that being one of the immediate tasks that will face the defendants on the commencement of the hearing.) 12The evidence filed in support of the present adjournment application was the affidavit sworn by Mrs Hobbs on 19 June 2012 (to which I have referred above) and an affidavit sworn by Dr Ewer, the general practitioner who has treated Mr Hobbs since 1999 and who deposes that he has regularly reviewed Mr Hobbs with regard to both the multiple sclerosis from which Mr Hobbs suffers and a condition described as "depression with anxiety". On the previous adjournment application I had drawn attention to the need for compliance with the Court Rules in relation to the filing of expert evidence. (Indeed, I had earlier, when the matter was before me on 17 April 2012, noted that if medical evidence were to be relied upon it would need to be adduced in proper form and the witnesses would need to be made available (if ASIC so required) for cross-examination.) The affidavit filed by Dr Ewer seems to have been an attempt to address that evidentiary issue. 13The evidence read by ASIC on this application was the evidence previously filed in relation to the earlier adjournment application (in particular, the affidavit sworn on 14 May 2012 by Ms Meredith Dodds, the solicitor at ASIC with the day-to-day conduct of the proceedings) together with an affidavit sworn 26 June 2012 by Ms Georgina Hayden, the solicitor on the record for ASIC in these proceedings. ASIC relied on Mr Clarke's previous written submissions in resisting the adjournment. Mr Clarke also made oral submissions as to the evidence of Dr Ewer to which I will shortly refer. Summary 14I have concluded, for the reasons set out below, and not without sympathy for the current plight of Mr and Mrs Hobbs, that unfortunate as Mr Hobbs' current medical condition is (and notwithstanding that it seems likely to preclude his physical attendance at the hearing and may also affect his ability from New Zealand to review the evidence and give instructions to enable the evidence relied upon by ASIC to be tested by cross-examination in these proceedings), it is not in the overall interests of justice that the hearing of the matter be adjourned. 15I set out below my reasons in more detail on the application before me. Admissibility of Dr Ewer's affidavit 16Objection was taken by ASIC to the admission into evidence of the affidavit sworn 19 June 2012 by Dr Ewer on the basis that it did not comply with Rule 31.23 of the Uniform Civil Procedure Rules. There was cross-examination of Dr Ewer on the voir dire as to whether or not, on a discretionary basis, I should permit the evidence to be read notwithstanding the lack of compliance with those rules. I note that there is no suggestion that Dr Ewer's evidence is relied upon or would be relevant other than as an expert witness. 17Rule 31.21 provides that, unless the Court otherwise orders, an expert witness's evidence in chief must be given by the tender of one or more expert's reports. Rule 31.22 requires the disclosure of any special payment arrangements under which payment of the expert's fees is deferred or contingent upon the outcome of the proceedings. There is no suggestion that there is any such arrangement that should here have been disclosed. (I note that Rule 31.19(3) also provides that, unless the court otherwise orders, expert evidence may not be adduced at trial unless directions have been sought in relation thereto and, if given, in accordance with those directions.) 18Relevantly, for present purposes, rule 31.23 provides that an expert witness must comply with the code of conduct set out in Schedule 7 to the Rules and that the party engaging or appointing an expert witness must provide the expert witness, as soon as practicable after his or her engagement or appointment, with a copy of the code of conduct. 19Rule 31.23(3) provides that: Unless the court otherwise orders, an expert's report may not be admitted in evidence unless the report contains an acknowledgment by the expert witness by whom it was prepared that he or she has read the code and agrees to be bound by it. 20Rule 31.23(4) provides that: Unless the court otherwise orders, oral evidence may not be received from an expert witness unless the court is satisfied that the expert witness has acknowledged, whether in an expert's report prepared in relation to the proveedings or otherwise in relation to the proceedings, that he or she has read the code of conduct and agrees to be bound by it. 21The introduction of the expert witness code of conduct followed consideration by the New South Wales Law Reform Commission and its report in 2005. It is noted in Ritchie's Commentary to Rule 31.23 that the provisions of that code of conduct have been strongly influenced by the common law principle that expert evidence should be, and be seen to be, the independent product of the expert uninfluenced by the exigencies of litigation (the authors citing the summary of the position under general law given in National Justice Compania Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68). 22The Expert Witness Code of Conduct contained in Schedule 7 of the Uniform Civil Procedure Rules imposes both general and specific duties on an expert witness. Relevantly, the general duty so imposed is as follows: 2 General Duty to the Court (1) An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert witness's area of expertise. (2) An expert witness's paramount duty is to the court and not to any party to the proceedings (including the person retaining the expert witness). (3) An expert witness is not an advocate for a party. 23Also of relevance is to note that the matters required to be included in an expert's report (pursuant to 5(1) of Schedule 7) include the following: (b) the facts, and assumptions of fact, on which the opinions in the report are based ... (c) the expert's reasons for each opinion expressed; (d) if applicable, that a particular issue falls outside the expert's field of expertise; (e) any literature or other materials utilised in support of the opinions; (f) any examinations, tests or other investigations on which the expert has relied, including details of the qualifications of the person who carried them out. 24Further, clauses 5(2) and (3) of Schedule 7 require the expert to make clear if there is any incompleteness in, or qualification of, the matters in the report or if any opinion therein is not a concluded opinion: (2) If an expert witness who prepares an expert's report believes that it may be incomplete or inaccurate without some qualification, the qualification must be stated in the report. (3) If an expert witness who prepares an expert's report considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed. 25On its face, the affidavit sworn on 19 June 2012 does not comply with the Rules for the admission into evidence of expert evidence. It contains no statement (as required) that Dr Ewer had read the Code of Conduct nor that he acknowledged and agreed to be bound by it. When ASIC objected to the affidavit on that basis, Mr Heal indicated that he had been able to procure a copy of the Code of Conduct and he informed me that Dr Ewer had read the Code of Conduct and would be able to make a statement on oath that he would comply with that Code. 26In due course (after cross-examination on the voir dire and after I had indicated that I would provisionally allow the admission into evidence of the affidavit and rule on it when making my final ruling on this application), I asked Dr Ewer (he then being under oath) a number of questions to ascertain when he had received and read the Expert Witness Code of Conduct. Dr Ewer confirmed that he had received it the day before (26 June 2011) and that he had not read it when he swore his affidavit in these proceedings. Therefore, there is no doubt that Dr Ewer was not aware (and had not been appraised) of the requirements imposed on an expert witness as at the time that he swore his affidavit on 19 June 2012. 27Having received the Code of Conduct only the day before the video-link hearing, Dr Ewer nevertheless told me that he understood what was written in the Expert Witness Code of Conduct and that he acknowledged that he agreed to be bound by it. 28Relevantly, when I asked Dr Ewer if, having regard to what he had read in the Code and his acknowledgment that he was bound by it, there were any changes that he would make (whether by way of addition, deletion or amendment) to the affidavit that he had sworn on 19 June 2012, Dr Ewer's initial response was that there were none of which he was aware. He qualified that by reference to the earlier cross-examination on the voir dire (accepting that he might have been required to include in his affidavit more information as to prior dealings with Mr Hobbs) and he added that he had forgotten to include in his qualifications that he was vocationally trained as a specialist physician (namely as a hospital specialist in general medicine) as well as a general practitioner. 29In this regard, even a cursory review of the affidavit sworn by Dr Ewer reveals that there is no reference to the facts (or assumptions of fact) on which to many of the conclusions stated or the opinions expressed in the affidavit are based nor are the reasons for a number of opinions clearly set out in the affidavit. There is, for example, nothing to indicate what knowledge Dr Ewer had (or what assumptions he had been asked to make) as to the investigations of ASIC to which he refers in paragraph [3] (and in respect of which he deposes that he has no pecuniary interest); or as to the basis on which he has concluded that this case is a "complex and onerous matter" (at [10]) or as top the opinion there expressed that Mr Hobbs would be able to prepare his case if given a "reasonable period" to do so. What became apparent in the course of both his oral evidence in chief and his cross-examination proper (after the affidavit had been provisionally read) was that Dr Ewer has expressed various views (such as to the relationship between the increasing depression noted at para [5] and the imminent Court appearance and the attribution of the exacerbation of this depression to "a very large influx of affidavits and extra information for him to process prior to the hearing") based on what Mr Hobbs has said to him or to other medical practitioners in his presence (rather than on any direct knowledge of what information was served, when it was served, what would be required in order to process that information, what knowledge Mr Hobbs already had as to the information contained in that material, or the issues in and potential seriousness of the outcomes of the litigation) and on his assessment of the difference in Mr Hobbs' mental state before and after the imprecise date ascribed to the influx of that information. None of that was made apparent in his affidavit. 30The effect of Rule 31.23 is that an expert witness's evidence (written or oral) is inadmissible in the absence of an acknowledgement of the Code of Conduct unless the Court otherwise orders. Mr Clarke concedes that the Court has a discretion to admit Dr Ewer's affidavit into evidence notwithstanding the lack of compliance with the Code but submits that in the circumstances I should not do so. 31In a number of cases the policy underlying the requirement for compliance with the Code and the Rules in this regard has been considered. It has been said that it is undesirable to exercise the discretion to make an order allowing the admission of such evidence where there has been non-compliance with the Code (Hodder Rook & Associates Pty Ltd v genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279). 32I was taken by Mr Clarke to what was said in United Rural Enterprises Pty Ltd v Lopmand Pty Ltd & Ors [2003] NSWSC 870, by Campbell J, as his Honour then was, in relation to the predecessor to the current Code of Conduct under the Supreme Court Rules. There, his Honour noted that the importance of the Code had been recognised in earlier decisions of this Court (referring in particular to Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 where Einstein J had refused to allow into evidence a report that did not refer to the code and where the expert (as is the case here) had not seen the Code of Conduct prior to the day he gave evidence). 33In Lopmand, his Honour at [15] referred to the policy underlying the then expert witness code, which is equally applicable to the current Code: The policy which underlies the existence of Pt36 r13C is one which I should take into account in deciding whether the affidavit should be rejected under s135. That policy recognises that an expert witness can form a view in circumstances where he or she does not realise that his role is one of the kind set out in the Code, and once that view has been formed will find it difficult to retreat from it. This can happen as a matter of ordinary human psychology, without any dishonesty on the part of the expert concerned. Therefore, one needs to be very much on guard as to whether there is any real possibility that this sort of process of opinion formation may have influenced the ultimate report which is presented to the Court, with the result that the Court cannot safely act on it. (my emphasis) 34There, his Honour noted that the report itself did not give him confidence that it "might not be misleading to the Court, or unfairly prejudicial to the party against whom it is tendered" as a consequence of the expert "having possibly not appreciated the full extent of his obligations as an expert throughout the whole time of preparation of the report". However, in the particular circumstances of that case (where there was a report from another witness on the same issue and it was possible from a comparison of those reports to identify the differences of opinion between them) his Honour concluded that, despite the fact that the expert had formed his opinions without having the relevant Schedule at the forefront of his mind, there was not a risk that (because the expert might be expressing an opinion to the Court which was infected by failure to understand his responsibilities as an expert) this would result in a real possibility that the Court might be misled or the opposite party unfairly prejudiced. Here, the situation is not one in which there is any other expert evidence by which the opinions expressed by Dr Ewer can be tested, nor is there material in the form of patient notes or the like from which his assessment of the comparative state of Mr Hobbs can be tested. 35In the Cassegrain case, Einstein J referred to an earlier judgment of Barrett J (as his Honour then was) dealing with the position where there had been unequivocal statements by the expert under oath acknowledging that he had read the then applicable code and agreed to be bound by it (Barak Pty Ltd v W T H Pty Ltd [2002] NSWSC 649). There, Barrett J (as his Honour then was) was satisfied that that position might be taken to relate back to the time when the expert prepared the report and that the intent of the rule of ensuring that only reports by experts who have proceeded in accordance with stated norms of conduct should be relied upon could be seen to have been satisfied . (I interpose that this is not the case here, where Dr Ewer admits that he had not read the Code when he prepared his affidavit.) 36In Cassegrain, Einstein J said at [9]: To my mind, considerable significance attaches to enforcing strict compliance in the expert witness provisions now found in Pt36 r13C. Questions of the significance of the opinions of experts have been mooted over a very extended period of time and the schedule K and Pt36r13C(1) Expert Witness Code Of Conduct was promulgated with the clear intent that only reports by experts who have proceeded in accordance with the stated norms of conduct, should be relied upon and may be admitted into evidence. The significance of the Code Of Conduct emerges clearly from the whole of the Code as well as from the 'general duty to the court' section of schedule K as well as from the stipulations as to the form of expert's reports. 37Reference was made by Einstein J to the observations as to expert evidence by Heydon JA (as his Honour then was) in the Court of Appeal in Makita Australia Pty Ltd v Sproules (2001) 52 NSWLR 705 (at [79]). There, Heydon JA noted the list of duties and responsibilities of expert witnesses in civil cases that was set out by Cresswell J in The Ikarian Reefer as follows: 1 Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation  2 An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise An expert witness in the High Court should never assume the role of an advocate. 3 An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. 4 An expert witness should make it clear when a particular question or issue falls outside his expertise. 5 If an expert's opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report  6 If, after exchange of reports, an expert witness changes his view on a material matter having read the other side's expert's report or for any other reason, such change of view should be communicated (through legal representatives) to the other side without delay and when appropriate to the Court. 7 Where expert evidence refers to photographs, plans, calculations, analyses, measurements, survey reports or other similar documents, these must be provided to the opposite party at the same time as the exchange of reports. 38Heydon JA noted that, while some of those matters had an ethical dimension, taken together they pointed to the need for the trier of fact to be fully informed of the reasoning process deployed in arriving at the expert's opinions. His Honour noted that in Clough v Tameside & Glossop Health Authority [1998] 1 WLR 1478 at 1484; [1998] 2 All ER 971 at 977, Bracewell J said: It is only by proper and full disclosure to all parties, that an expert's opinion can be tested in court, in order to ascertain whether all appropriate information was supplied and how the expert dealt with it. It is not for one party to keep their cards face down on the table so that the other party does not know the full extent of information supplied. and that this implied that not only must the appropriate information be supplied but that the expert must reveal the whole of the manner in which it was dealt with in arriving at the formation of the expert's conclusions. 39In Langbourne v State Rail Authority [2003] NSWSC 537, Levine J exercised the discretion to admit expert evidence that had been prepared not in compliance with the Code but where his Honour was satisfied that the witness had sufficiently confirmed the report after being made aware off the contents of the code. There, however, the expert witness was aware of a cognate provision in his own State jurisdiction and gave evidence that he would have taken no different approach in reaching his conclusion had he, at the time, read the schedule. A factor in his Honour's exercise of discretion in favour of allowing the report to be adduced in evidence was that there was an issue as to whether the rule applied at all having regard to the question when the initial engagement letter was received by reference to the commencement of the rule. (Again, that circumstance does not apply here.) 40Mr Clarke noted that in Jermen v Shell Company of Australia Ltd and Anor [2003] NSWSC 1106, Shaw J suggested that the strict compliance approach indicated in Cassegrain was not to be preferred, referring to the background considerations that might illuminate the purpose and intention of the predecessor rule to the rule here under consideration. At [28]-[29], his Honour said: ... As I have said, Pt 36 commenced on 1 March 2000. At the Supreme Court Annual Conference in September 1999 Sperling J delivered a paper entitled, Expert Evidence: The Problem of Bias and Other Things. His Honour there recommended the promulgation of a Code of Conduct for expert witnesses. The paper suggested that in personal injury cases, and to a lesser extent in other matters, expert witnesses were partisan and the evidence often useless. In a paper delivered to the General Surgeons Scientific Meeting of September 2000 Abadee J (The Expert Witness in the New Millennium) referred to the existence of the Code and said, inter alia: ... adherence to the Code will contribute to the elimination of the hired gun expert and return the expert to the traditional role of being an objective witness furnishing independent opinion for the courts benefit ... the code too will serve a utilitarian purpose. It will help the expert to respond to or be relieved of attempted outside influence by those who engage him/her, and also better enable him/her to assert full independence and impartiality. The code (and new Rules) will assist in keeping experts within their true expertise, and compliance will also assist in ensuring that the courts obtain the best expert assistance. 41His Honour referred to the decisions in Cassegrain, Barak and Langbourne and suggested that the strict compliance approach of Einstein in Cassegrain was influenced by the commercial character of the case and the fact that his Honour was there faced with complex commercial litigation. (In the present case, the litigation is certainly of a complex commercial kind but the issue to which Dr Ewer's evidence relates is the question of Mr Hobbs' medical conditio,n so that if it were the case that a different approach might be warranted depending on the nature of the litigation before the Court, this expert evidence would not necessarily fall within the same category as that considered in Cassegrain.) However, as I read it, the import of his Honour's judgment is not to suggest that the decision in Cassegrain was incorrect but, rather, to emphasise that there remains a discretion to be exercised where the expert's report does not comply with the Rules (and hence that strict compliance might not always be necessary). 42The judicial discretion conferred by Rule 31.23 is one that is not at large. It must be exercised (to adopt the words used in a different context by Ipp JA in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104) "in the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context) and in accordance with principles developed by judicial decisions". The legislative context in which the discretion is to be exercised and the policy underlying the rule have been considered above. As to the statutory provisions applicable in this jurisdiction, those include ss 56, 57, 58 and 59 of the Civil Procedure Act, which (as his Honour noted in Buzzle) require a judge, exercising a discretion under the rules, to have regard to whether a party, seeking the exercise of the discretion in its favour, has diligently pursued the object of disposing of the proceedings in a timely way; used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination. 43Ultimately, the question here is whether (Dr Ewer's affidavit not having been prepared in compliance with the Code) there should nevertheless now be an exercise of discretion to admit that affidavit into evidence. The cross-examination of Dr Ewer on the voir dire went largely to any undisclosed earlier dealings he had had with Mr Hobbs as to an investment or potential investment with a company in the United States of America (Cadent) in the context of Dr Ewer's deposition in para [3] of his affidavit that he has no pecuniary interest in any of the schemes ASIC is investigating. (In passing, I note that this is a somewhat remarkable statement if, as I understood Dr Ewer's evidence to be, he does not know what schemes are in fact the subject of the present proceedings but to give him the benefit of the doubt it may perhaps be explicable if the intent of that paragraph is to be read as being that he has no pecuniary interest in any schemes with which Mr Hobbs was involved.) 44Dr Ewer admitted that when setting out what was in [3] of his affidavit he had not turned his mind to what financial dealings he had had with Mr Hobbs (T 6.7) and did not seem to appreciate that financial dealings with Mr Hobbs would or might have been relevant to whether he was considered to be an independent witness (see the exchange from T 6.13- T 6.30). He accepted that he had had an arrangement of some kind (or at least discussions with Mr Hobbs in relation to such an arrangement) in connection with Cadent though he was very vague as to the details because it was some 12 years or so ago (evidence that highlights the presumptive prejudice that has been recognised as accompanying delay in litigation Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552-553 and provides a cogent reason why it is not in the public interest further to delay this hearing). 45Dr Ewer accepted that the investment possibility involved investment in a fund associated with Mr Hobbs, but did not remember the name of the fund. He accepted that Mr Hobbs had introduced him to the possibility of investment in the fund. He did recall receiving (and he accepted that this was through Mr Hobbs but did not recall from which company or companies) some educational materials to qualify himself as a sophisticated investor. He was aware of the concept of an International Business Corporation (or IBC) and thought he had looked at doing that at one point but was not aware of what had happened in that regard. He was unable to recall to what certain communications that appeared to be addressed to him or that referred to a potential investment by him related (or indeed whether he had received those communications) but accepted that he had had some discussions at least with Mr Hobbs involving Cadent in the past but denied receipt of any funds from a Ms Reisinger in that regard. 46Mrs Hobbs maintains that the evidence as to the above matters demonstrates only a "very limited knowledge" of her husband's previous financial affairs and submits that the fact that Dr Ewer may have been assisted by her husband in purchasing a car (that being a reference to the suggestion by Dr Ewer that he may have had some involvement with Mr Hobbs in relation to finance to purchase a car, but which does not on its face accord with the content of documents to which Dr Ewer was taken during cross-examination on the voir dire), does not make Dr Ewer a biased or unacceptable witness. Mrs Hobbs further submits that it is clear that Dr Ewer has no current financial dealings with her husband or herself (which I accept was the tenor of Dr Ewer's evidence). 47Mr Clarke accepts that the mere fact that an expert may be demonstrated in some respects not to be independent of the party for whom evidence was being provided would go to weight rather than admissibility per se. He referred to Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485, where Campbell J (as his Honour then was) considered the question whether evidence was inadmissible through risk of bias. (His Honour noted that the failure of the report in that case to comply with the Expert Code of Conduct was not a ground for rejecting the report because the definition of expert witness did not encompass the situation where an officer of a party, not engaged for any particular purpose, had at a time before the court proceedings were contemplated expressed an expert opinion in a report and that report was later tendered in later proceedings.) 48As to the question of independence, Campbell J there endorsed the approach of Pagone J in Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 at [7] namely that the possibility of a witness having a bias in favour of a party (directly or indirectly) "is a matter to be taken into account by a court when deciding what weight to give to the expert evidence, but not a ground for rejecting evidence that may be of assistance to the Court in reaching the correct result" and that bias is a matter to be taken into account as a matter of weight in assessing the evidence, not as a matter of admissibility. 49Given that the application before me was being conducted via video-link at the expense of the applicant, I considered that the appropriate course was provisionally to admit the affidavit of Dr Ewer and rule later on its admissibility. 50I indicated (when provisionally allowing the affidavit into evidence) that I would nevertheless reject (even if the balance was admitted) two parts of the affidavit (as conclusions the basis for which was not set out in the affidavit). I gave leave for the basis on which those conclusions had been formed to be given orally in chief by Dr Ewer. Those statements were: [5] ...This [the increasing depression and overt anxiety] appears to be directly related to the stress of his imminenet court appearance in Australia which has been exacerbated by a very large influx of affidavits and extra information for him to process prior to the hearing. and [10] ...but in my opinion this [Mr Hobbs being able to conduct his own case in a complex and onerous matter such as Dr Ewer believes this one to be] is likely to be possible only if Mr Hobbs has a reasonable period of time to prepare himself for the case and to perceive that he is capable of defending himself in a reasonable way. That is not the case at present. 51When Dr Ewer was asked to explain the basis for the formation of those opinions, he gave the following evidence: as to [5] of his affidavit, from T 16.40: A. Thank you, your Honour. Can I preface by saying that I was asked to do a house visit on 18 June because of the severity of his symptoms at that time, and that when I arrived at the house, fortuitously, the medical - what's called the mobile community team also arrived at the same time. This is the psychiatric acute team. And so I talked with Mr Hobbs and examined him, but also I stayed throughout the discussion with the psychiatric team and heard his responses to them as well. And all in all, it would have gone on for nearly an hour. So it was quite an in-depth interview both by myself and by two members of the acute psychiatric team. And during that interview, time and time again Mr Hobbs came back to talk about his main concern and cause for his anxiety as relating to the - what he considered an immense amount of material that had recently been sent to him in order to prepare for the court case and he felt totally overwhelmed. And it would seem, from listening to his description and listening to the response to the questions from the acute psychiatric team, that this was the - almost the total part of his concern and appeared to be what was tipping him over into an acute anxiety depressive episode. as to the statement in [10], Dr Ewer said: A. My - I base that on the fact that he appeared to be coping quite well with the idea of a court appearance, bearing in mind that I've seen him quite a lot over the last few years and he has been faced with these possibilities at various times. When I saw him this year as he approached the court case, he seemed to be coping quite well until, as I mentioned just a moment ago, that he received what he considered as an overpowering amount of paperwork to do prior to it. 52Dr Ewer accepted that the basis for the statement that he made in [5] was what Mr Hobbs had said on the occasion to which he deposed above on 18 June 2012 and was on "questioning to try and understand the background of his sudden deterioration in the mental sense". As I understand it, what Dr Ewer relies upon is the fact that "time and time again" Mr Hobbs' response to questions as to his mental state was to advert to the amount of material that had recently been served by ASIC. 53Dr Ewer accepted that he had no direct knowledge of what the imminent court appearance in Australia was about or what material had been received by Mr Hobbs (and he also did not appear to have any direct knowledge of when it had been received). Therefore, what Dr Ewer seems to have been relying on was Mr Hobbs' own perception of events, namely the frequently raised concern as to the volume of the material that had been served on him. Dr Ewer says that he also relied on a comparison of Mr Hobbs' state at that time and his state at an earlier time (about which he did not depose in his affidavit): A. And that on a time scale it also concurred with the fact that he had been coping reasonably well until apparently he received so much information and paper that needed sorting through, that he felt that he couldn't cope and then went into a sort of spiral of symptoms. 54When asked to indicate the time at which it was said that Dr Ewer had stopped coping quite well, Dr Ewer said that this was roughly four to six weeks prior to the court case date (by which I understood him to mean around about 4-6 weeks prior to 20 June 2012). If so, then it might equally be inferred that the mental and physical decompensation to which Dr Ewer referred was linked more directly to the events of May 2012 when it became apparent that the evidence of Messrs Truong and Wood (and the s 50 summaries would be admitted into evidence) rather than simply the receipt of the documents themselves in April 2012, particularly since at the time the documents were served the Hobbs interests had legal representation. (At the time that I gave leave for the above evidence to be filed, there remained 6 weeks to the hearing date - a time that coincided, as I had noted, with the time that Mr Hobbs' former NZ lawyer, Mr Bellamy, said it would take if he had to hand over his intimate knowledge of the matter to new solicitors.) 55To the extent that the factual assumptions, and Dr Ewer's reasoning underlying the opinions he had expressed, were exposed only in oral evidence (which I gave leave to be adduced in chief or in cross-examination, after I had provisionally allowed the affidavit into evidence), this highlights the inadmissibility of the affidavit evidence. As noted above, it seems to me that the opinions that have been expressed by Dr Ewer as to the relationship between Mr Hobbs' relapse and the stress of the imminent court appearance (and the opinion that this was exacerbated by a very large influx of information to process prior to the hearing), were based (directly or indirectly) on the statements made by Mr Hobbs to Dr Ewer or other medical practitioners. (The import of Dr Ewer's observations (not set out in his affidavit or other evidence) as to the manner in which Mr Hobbs appeared to be coping with the stress of the forthcoming trial in the last 18 months or so compared with the manner in which he has reacted in the last 4-6 weeks surely also depends on what Mr Hobbs had told him then and at an earlier time as to the status of the proceedings - since if it were the case, for example, that Mr Hobbs did not perceive the need to be taking steps to prepare for his defence in the period prior to receipt of the material, the fact that he then appeared to be coping well with the forthcoming hearing might support the view that whenever Mr Hobbs commenced to focus on the matter he was likely to become stressed.) 56On the basis of his oral evidence, it is clear that Dr Ewer has no personal knowledge of when documentation was served on Mr Hobbs or what it comprised and no personal knowledge of what the issues are in the proceedings. (Moreover, he does not depose to any knowledge as to what steps Mr Hobbs may already have taken to prepare for the trial against which one might be in a position to assess what remains to be done for the trial and which might provide a basis for opinion as to the ability of Mr Hobbs in his present state to address those matters.) 57As to the opinion (that I rejected when provisionally reading the affidavit) that Mr Hobbs would need a reasonable time to prepare for the hearing, Dr Ewer made it clear that he was only in a position to speculate as to what that period would be and as to whether Mr Hobbs would ever be in a position to participate in the conduct of the hearing. 58I am of the view that this is not an appropriate case in which to exercise the discretion to admit an expert's affidavit evidence where that evidence has not been prepared in compliance with the Code of Conduct. I have reached that view because, even though Dr Ewer subsequently attested to having (after the preparation of his affidavit) read and understood the Code of Conduct and agreed to be bound by it, it seems clear that had he had a proper understanding of what was required for expert evidence of this kind his affidavit would have set out not the facts and/or assumptions on which his opinions were based and would have exposed the reasoning behind those opinions. The fact that Dr Ewer only saw the need to amend his affidavit possibly to refer to earlier financial dealings or discussions with Mr Hobbs (and to supplement his qualifications) suggests to me that he did not understand the basis on which an expert is expected to expose his or her reasoning in such an affidavit. (I say this without intending any criticism of Dr Ewer, who is not a lawyer, but it demonstrates the difficulty of placing reliance on some of the opinions contained in his affidavit - particularly as to the period of time that might be required by which there would be a sufficient improvement in Mr Hobbs' mental state and physical condition for him to conduct his own defence in these proceedings). 59The reason that I am not prepared to exercise a discretion to admit Dr Ewer's evidence is that I am not satisfied that it meets the requirements for expert evidence set out in Makita. There, Heydon JA emphasised at [85]; 743-744: In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialized knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v The Queen (at 428 [41]), on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise". 60Then at [87]; 745, commenting on the expert whose report was there in issue: There is no doubt about Professor Morton's authority, experience, qualifications and skill. It is also the case that Professor Morton's report is quite lengthy and detailed. But, given that the court is not obliged to take the opinion of an expert as conclusive even though no other expert is called to contradict it, can it be said that Professor Morton's report goes beyond a series of oracular pronouncements? Does it usurp the function of the trier of fact? More vitally, did it furnish the trial judge with the necessary scientific criteria for testing the accuracy of its conclusions? Did it enable him to form his own independent judgment by applying the criteria furnished to the facts proved? Was it intelligible, convincing and tested? Did it go beyond a bare ipse dixit? Did it contain within itself materials which could have convinced the trial judge of its fundamental soundness? 61Having regard to Mrs Hobbs' written submissions, I wish to make it clear (if it is not already clear from the above) that I do not reject Dr Ewer's evidence on the basis of any finding of lack of independence or bias. Such a finding (had it been made) would be a matter going to the weight of that evidence. Rather, I consider that leave should not be given to admit Dr Ewer's affidavit into evidence because even though Dr Ewer, by the time he gave evidence had been provided with and had read and agreed to be bound by the Expert Witness Code of Conduct, his affidavit clearly was not prepared on the basis of any real understanding or appreciation of the contents of the code at the time (and even taken in conjunction with the oral evidence given before me it does not meet the requirements for expert evidence to be adduced in this Court). Were it to be admitted, I would be left with no real basis on which to form a conclusion as to the opinions expressed therein or conclusions stated therein and there would be unfair prejudice to ASIC in being required to test and/or meet that evidence. 62The generalised opinions and conclusions made in Dr Ewer's affidavit suffer, with respect, from flaws of the kind identified in Makita. In essence, it tells me little more than what Mr Hobbs' perception of events is and the effect (which I accept) that the stress felt by Mr Hobbs in light of those events has had on his current mental and physical state. 63That said, while not admitting the affidavit into evidence, I have taken into account on this application the oral evidence of Dr Ewer as to Mr Hobbs' state of health. That evidence reinforces my concern that (unfortunate as Mr Hobbs' current mental and physical condition is) it is unlikely that there will be any material change if the matter were to be adjourned for a further period of time. Therefore, while I do not accept that Dr Ewer has complied with the Expert Witness Code of Conduct and I do not admit his affidavit into evidence, ultimately that makes no difference to the conclusion I have reached on this application. 64In other words, even had I admitted Dr Ewer's affidavit into evidence, my conclusion as to the adjournment application would be the same. Even having regard to Dr Ewer's written and oral evidence, I remain of the view that there can be no confidence that Mr Hobbs will not be in a similarly stressed state and similarly unable to participate in or conduct his defence whether the hearing be now or in 4-6 months. I set out my reasons for that conclusion below. Evidence as to Mr Hobbs' present condition 65Dr Ewer gave evidence that he has treated Mr Hobbs for a number of years for multiple sclerosis. Dr Ewer accepted that multiple sclerosis is a progressive disease and that the particular type of that disease from which Mr Hobbs suffers is one with relapses and remissions. He accepted that, in terms of relapses and remissions, the disease is one where the physical effects of the disease have progressively become worse over time. Dr Ewer said that at the moment Mr Hobbs is undergoing an acute relapse and is likely to be having treatment in hospital for that relapse. He says that it often takes between 4 to 8 weeks to determine how well a patient will recover from the relapse symptoms (if at all). Dr Ewer's evidence is that no one will know whether Mr Hobbs will be in the same poor physical condition in the future until it is known how he responds to the current treatment. 66Dr Ewer confirmed that Mr Hobbs also has a pre-existing psychiatric condition (diagnosed as depression and anxiety) over and above the multiple sclerosis (though noting that multiple sclerosis can itself be accompanied by an "adjustment disorder", by which I understood him to be referring to a depressive condition). 67Dr Ewer confirmed that all of the symptoms of depression and anxiety are made worse by stress and tiredness. Dr Ewer indicated that Mr Hobbs' multiple sclerosis relapsed usually once every 12 to 18 months anyway but he accepted that this more frequently occurred when he was under stress. 68Relevantly, Mr Hobbs has suffered from this condition for some time and there is a history of his condition worsening at times when stressful events (such as his participation in official interviews or enquiries) have occurred. 69Exhibited to Ms Dodds' 14 May 2012 affidavit are various letters written by Dr Ewer or Dr King (Mr Hobbs' treating psychiatrist) at various times in which Mr Hobbs' condition has been explained as the basis on which he is unable to attend interviews or examinations relating to investigations into Mr Hobbs' affairs, including in 2009 when the New Zealand Securities Commission was seeking to conduct an examination of Mr Hobbs in relation to the matters now the subject of these proceedings. On those occasions, Mr Hobbs' inability to attend interviews or examinations was based on symptoms of the kind now suffered by him. (Dr Ewer emphasised during his oral evidence that the current symptoms are more acute, although as will be seen below the symptoms described in 2009 seem themselves to have been sufficiently serious to warrant hospitalisation). 70Dr Ewer had, as far back as February 2006, issued a letter (though he could not remember to whom) addressed to "IRD Christchurch" stating that Mr Hobbs had then had a "severe exascerbation [sic] of his multiple sclerosis and he is presently too unwell to be able to cope with a long interview or any prolonged stress". It was suggested that this related to a tax investigation (which the IRD address might support) but I cannot draw any conclusion as to this. 71More relevantly, it seems that in 2009 Mr Hobbs suffered acute symptoms at a time when he was required for examination in relation to the matters the subject of the present proceedings. 72Dr Ewer was taken to a letter dated 8 April 2009 written by him at a time in which he stated: This is to confirm that the above patient [Mr Hobbs] has been diagnosed with multiple sclerosis and depression (with anxiety). He has a variety of symptoms including loss of strength in his limbs, loss of some sensation, pain affecting various parts of his body, poor sleep, bladder and bowel dysfunction and decreased concentration and short-term memory. These symptoms tend to be made worse by stress and tiredness. Due to the effects on his cognition, he can have difficulty responding rapidly to questions and he may require more extra time to process information and formulate answers. (my emphasis) 73Dr Ewer accepted that this was a letter that he had written so that Mr Hobbs not be required to attend at the New Zealand Securities Commission examination. He accepted that at the time that he wrote the letter, Mr Hobbs' symptoms tended to be made worse by stress and tiredness. He agreed that this was still his view about Mr Hobbs' dual conditions of multiple sclerosis and depression with anxiety, though he considered that Mr Hobbs' condition at the moment is "beyond that", describing it as a "proper exacerbation of his condition". He accepted that at the moment it remains the case that the symptoms of Mr Hobbs' conditions of multiple sclerosis and anxiety are made worse by stress and tiredness (and that on that occasion the symptoms had been made worse by the stress of having to give evidence before the New Zealand Securities Commission examination - not unlike, I would interpose to suggest, the situation where Mr Hobbs is now faced with the commencement of the hearing of this case). 74Dr Ewer was shown a letter from Dr King of 11 June 2009 to the effect that as at that time Mr Hobbs remained unable to give such evidence. The letter noted that Mr Hobbs had been referred with depressive symptoms and suicidal ideation "in the context of multiple psychological stressors, the most notable of which was the ongoing investigation by the Securities Commission" and it was said that "Given that the Securities Commission hearing has been a significant precipitating factor in this episode, and remains a strong perpetuating factor, it is unlikely that his condition will completely resolve while this is ongoing" (a diagnosis with which, from his own observation of Mr Hobbs at that time, Dr Ewer agreed). 75Dr King in that letter noted that Mr Hobbs' admission to hospital "along with the associated removal of the main immediate stressor ie the required attendance at the hearing" had led to a brief improvement in Mr Hobbs' mood "and a reduction in his stated suicidal intent". (Dr Ewer agreed that his diagnosis was consistent with that expressed in Dr King's letter, namely that he would expect that there might be a brief improvement in Mr Hobbs' mood when one takes away all the stressors.) 76Dr King expressed the hope (perhaps not unlike the possibility of improvement to which Dr Ewer now raises) that with further antidepressant treatment Mr Hobbs would recover sufficiently to be fit to appear before the Commission but did not believe he was then currently fit to appear. (Dr Ewer confirmed that this was consistent with his own records that indicated that he had been admitted to a psychiatric hospital on 11 May 2009 and released on 14 May 2009.) 77By letter dated 27 August 2009, Dr King confirmed to the NZ Securities Commission that Mr Hobbs remained under her care and that, though there had been some improvement in his condition, he remained extremely anxious "with fluctuating periods of intensely low mood with active suicidal ideation". In that letter, Dr King stated: It is a difficult situation in that total resolution of his anxiety and hopelessness is unlikely whilst the ASIC investigation is ongoing, as this is in effect a prominent maintaining factor for his symptoms. I do believe however that with further treatment a lowering of his overall anxiety and an improvement in his mood and outlook can occur, such that he would potentially be better able to cope with an interview in the future. (my emphasis) 78Dr Ewer said that he agreed entirely with what Dr King had there said and that at the time Mr Hobbs was greatly affected by the process and it took "quite a while" to resolve. Dr Ewer accepted that it was the knowledge that the ASIC investigation was ongoing that was causing Mr Hobbs severe stress and leading to the said symptoms. He said that it was this to which Mr Hobbs "continually related" his state. 79On 5 November 2009, Dr King wrote a further letter (having apparently been asked for an update on Mr Hobbs' condition. Dr King again referred to the psychosocial stressors related to the investigation and the extreme effects this was having on Mr Hobbs' family. Significantly, Dr King concluded as follows: Given this presentation [of extreme agitation], however, I have to say that I am now of the opinion that he is not fit be be interviewed and is unlikely ever to become so. I believe as does his GP [Dr Ewer accepts this is a reference to himself] and psychologist that if he has to attend a hearing, he would be at high risk of suicide before the scheduled time and date. (my emphasis) 80Dr Ewer, when asked whether he accepted that the same psychosocial stressors which were then relevant to Mr Hobbs are those which are applicable now (namely the pressure of what is now the ASIC court case but was then the ASIC investigation) as causing the symptoms that Dr Ewer has now diagnosed, responded that: A. I would make a certain clarification on that. I think at present when I've talked with him about the pressures that he feels that he is under, that he is actually looking forward to a resolution of a court case, and that was why I was inferring before that prior to the apparent arrival of a lot of extra material, he had been coping quite well with the idea of the court case. But I believe that suddenly being placed under a huge amount of extra pressure tipped him over. That's why my own appraisal, talking with him and listening to how he has coped over the last six to 18 months, makes me - gives me some hope that he is more able to cope with the pressure of a court case, providing he's ready for it. (my emphasis) 81Dr Ewer accepted that it would be relevant, in forming an opinion as to whether in future Mr Hobbs would be able to cope with the stress of a hearing, for Dr Ewer to know the seriousness of the case that is presently being made by ASIC, although he volunteered that he had also heard Mr Hobbs' ideas and that Mr Hobbs seemed to be of an opinion that "if he can present himself appropriately at the court with the right information, that he may actually do quite well in terms of the outcome of the court". 82Dr Ewer nevertheless accepted that for someone with Mr Hobbs' condition, having a pending case whereby very serious outcomes in terms of penalties and findings might be made against him if he were not to be successful in defending the case, would be very relevant to the stress he would be suffering in preparation for such a case (at least if that person considered that there might be a "bad outcome" but also even if there was simply the risk of a "bad outcome"). Dr Ewer thus appeared to accept that the risk of an adverse outcome would increase stress and increase both depression and anxiety. 83Dr Ewer confirmed that his understanding was that Mr Hobbs had received a great deal of evidence in the form of affidavits and documents said by ASIC to be relevant to the case and that this was the acute stressors in the last few weeks that seemed to have led to the acute depressive episode, which Dr Ewer noted "happens to be accompanied by a physical exacerbation of his [multiple sclerosis]". 84Dr Ewer agreed that going into a very large court case in which there were over 45 affidavits and some 10,000 documents that are said to be relevant to the proceedings, involving 14 different funds over almost an eight-year period, would place significant stress on someone suffering Mr Hobbs' conditions and appeared to accept that those stressors would be present at any time this hearing was heard (including a future hearing) but reiterated that he had been given the impression by Mr Hobbs up until "roughly two months or more ago" that Mr Hobbs was not "overly concerned" about the court case at that point. 85Although Dr Ewer accepted that he had agreed with Dr King's view in 2009 (that there was a high risk of suicide as a result of the severe stressors that were being placed upon him at the time and that this was relevant to the diagnosis of depression with anxiety); and accepted that Mr Hobbs would still be under great stress if those equivalent stressors were now to occur (ie if the hearing were to take place), he again emphasised that in his view "over the last few months up until four to six weeks ago", Mr Hobbs seemed to be coping "quite well" with the concept of a hearing (something about which Dr Ewer expressed some surprise by reference to how Mr Hobbs had reacted back in 2009). 86What Dr Ewer was not prepared fully to accept was that there would be a significant risk that if and when Mr Hobbs was faced in the future with the inevitability of having finally to attend a court hearing (and either give evidence if he chose to do so and to give instructions to lawyers if he briefed them, or to run the case on his own if he did not brief lawyers) he would be suffering the same stressors (and hence would again be liable to increased depression, anxiety and potential feelings of suicidal ideation). Dr Ewer said: A. Not quite again. I think he'll be suffering very similar stressors but that he appeared to be coping better with those over the last six or more months, which reflects that he has been in a healthier state during that time despite the forthcoming court appearance, until he talks about receiving so much information that he could no longer cope. ... 87Dr Ewer confirmed that he had no ability to say one way or another whether Mr Hobbs' health and his ability to deal with stress would improve in the next six months. I have to say that the suggestion (in light of the history of Mr Hobbs' reaction to stress and particularly the events in 2009) leads me to conclude that Dr Ewer's reluctance to accept that Mr Hobbs might never be able to cope with the stress of this case was simply an unwillingness to discount a theoretical possibility rather than any real confidence that such a possibility will eventuate. 88In that regard, insofar as Dr Ewer had expressed the opinion in his affidavit that Mr Hobbs had not yet reached the state where he could be considered to be permanently unable to conduct his own case and had gone on to express the opinion (an opinion that in his affidavit I rejected but which was the subject of leave) that it was likely to be possible only if he had a reasonable period of time to prepare himself, when questioned by me as to what period he had there contemplated or whether he was there referring to any particular period of time, Dr Ewer said: A. I don't know that time but my - I imagine - and this is without discussing it with him - that two things are likely to happen over the next few months. One is that his right arm paralysis may partially return over the next, as I say, four to eight weeks, so that he can then write and actually handle pieces of paper, because he's right-handed. And I think that - my understanding, from speaking with him and from listening to his responses to the others that were there at that interview on the 18th, was that if he wasn't under such an acute workload, which was greatly hampered by not being able to use his right arm, write or hold onto pieces of paper with it, that he would be able to work through this process within - I'm not sure. I'd imagine two or three months. That's a guess. (my emphasis) 89Without any criticism of Dr Ewer, it seems to me that his suggestion that, with a "reasonable" period of time, Mr Hobbs would be able to conduct or participate in the hearing is substantially based on what Mr Hobbs' perception might or might not be at the time (and that may be why Dr Ewer prefaced his answer by saying that he had not discussed the relevant time period with Mr Hobbs). 90Dr Ewer seems to have based both his opinion that it is the 'acute workload' (by inference a workload imposed by ASIC serving a large amount of documentary material on Mr Hobbs) that is causing the immediate pressure and inability to conduct the case and his opinion that in future Mr Hobbs may be in a position to do so on what Mr Hobbs has told him or others. Hence, it seems that it is Mr Hobbs' own perception as to whether he is able to run his case that has informed Dr Ewer's opinion as to the cause of the present and likelihood of future stress. Similarly, it seems to be Mr Hobbs' perception as to the case that affects how stressed Mr Hobbs is (and, hence, how adversely both his depressive condition and his multiple sclerosis are and may in the future be affected). 91Given the history of Mr Hobb's inability to attend interviews and investigations from 2006 (and particularly his reaction in 2009 to the Securities Commission examinations and the opinion then expressed by both Dr King and Dr Ewer) (and other evidence of requested adjournments in the course of these proceedings when steps were required to be taken, such as the filing of defences), I cannot have any confidence that after a four to six month adjournment Mr Hobbs will not be in the same or very similar position. 92In this regard, I also note that Mr Hobbs has had much of the material in relation to this hearing since late last year and has had the benefit of legal advice during at least some of that period, as well as the benefit of legal advice from Mr Bellamy up until more recently - since that was the basis on which the application for leave to subpoena Mr Bellamy was resisted. (There is also evidence on the current application that Mr Bellamy has recently been in communication with Mr Hobbs in circumstances where Mr Bellamy has sought the latter's consent to the filing of an affidavit in the proceedings - which indicates that Mr Hobbs may still be able in some fashion to focus in relation to the matter.) What Dr Ewer's evidence does not make clear (and what he may well not know) is what Mr Hobbs had in fact been doing in preparation of his defence at the time that Dr Ewer considered him to be coping quite well with the case. 93Therefore, even had Dr Ewer's evidence been admitted, it would not have changed my view as to the likelihood that Mr Hobbs' position will relevantly be no different whenever a hearing is imminent. Mrs Hobbs' submissions 94Mrs Hobbs' affidavit was read and there was no cross-examination of Mrs Hobbs. Where I considered that matters had been included in that affidavit that were matters of submission or assertion, I read them as such (including, for example, where she deposed to her husband's burning desire to clear his name and to her own belief as to the miscarriage of justice that will occur if the adjournment is not granted). I nevertheless accept that Mrs Hobbs has had the ability first-hand to observe her husband's deterioration in his physical abilities and to compare that with her observation of his health over the period of their marriage and that her concerns as to his well-being are genuinely held. 95After the conclusion of Dr Ewer's cross-examination, and the rulings on Mrs Hobbs' affidavit, the video-link hearing was concluded and I gave leave for Mrs Hobbs to serve any submissions as to the evidence that had emerged or otherwise in relation to the adjournment application. She has since done so and I have taken those submissions carefully into account. 96In essence, Mrs Hobbs refers to her lack of knowledge of procedural matters in this jurisdiction (and says that though she and her husband have had the assistance over the past few days by Mr Heal, he has little or no knowledge of procedural matters in the New South Wales courts and has been of limited assistance in procedural matters. Mr Heal himself indicated an unfamiliarity with the Expert Witness Code of Conduct although presumably he is familiar with the substantially equivalent Code of Conduct in Schedule 4 to the Judicature Act 1908 (NZ).) 97Mrs Hobbs has confirmed in her submissions that the adjournment application is based on the following matters: Dr Ewer's evidence as to her husband's condition; the difficulties occasioned for her in the conduct of these proceedings as a defendant in circumstances where she says that she has have very little knowledge of the circumstances that gave rise to these proceedings and is entirely reliant on her husband to put their position to the Court; the positive nature of the defence that she and her husband wish to put before the Court (and their belief that it will vindicate them); their financial position; and the unfairness to them if the hearing were to commence next week. Some or all of those matters were raised on the last occasion and most have been considered and dealt with in my earlier reasons (the content of the Hobbs' interests defence was not addressed in my earlier reasons as I had some concern that it would raise issues of unintended waiver of legal professional privilege). 98I accept, and have sympathy for, Mrs Hobbs' concern as to her husband's present state of health (particularly his apparently acute state of depression and his suicidal ideation). There seems to me no basis on which to doubt that her concern is genuinely held. I also accept that Mrs Hobbs was acting genuinely earlier this month in seeking assistance from the hospital's acute psychiatric team following her real concerns for the safety of her husband and I do not suggest that those concerns were an attempt to avoid a hearing date. 99The relevance of Mr Hobbs' condition, however, is that if there is no real likelihood that the position will be any different in 6 months time then there is little reason to delay the hearing. (Indeed, as Dr King observed in early correspondence in 2009, there might be a benefit to the matter being resolved and Mr Hobbs being in a position to move forward after the hearing). 100I accept that Mr Hobbs is currently physically suffering from the symptoms caused by his acute relapse of multiple sclerosis in the manner to which Mrs Hobbs has deposed and that this is likely severely to limit his ability physically to attend in Court. I also accept that this is likely to limit his ability to give instructions (particularly if he continues to be unable to use his right arm). As indicated above, I accept that Mrs Hobbs is in a position to give her (lay) observations of the effect of Mr Hobbs' medical condition on his mobility at present and to her perception that the deterioration in his right arm was sudden in onset. (Insofar as Mrs Hobbs has referred in her submissions to evidence that was deposed to by Ms Dodds as to comments from the receiver casting doubt in relation to Mr Hobbs' health, I have placed no weight on those in reaching my decision.) 101Mrs Hobbs has stressed that she and her husband believe that they have a positive defence and that they are determined to defend the ASIC case. The positive defence adverted to by Mrs Hobbs is as to the legal advice received at the time. (Reliance on such a defence would of course waive legal professional privilege in the advice but that is within Mr and Mrs Hobbs' power to waive.) However, the running of a defence of that kind is not precluded by the commencement of the hearing at this stage, nor is Mr Hobbs' present condition something that will preclude that defence being run at the conclusion of the ASIC case. As things stand, it is not likely that the ASIC case will close until sometime after 17 July 2012 (as one of its witnesses cannot be called until then). Mr and Mrs Hobbs have no obligation to serve any evidence in their defence until after the close of the ASIC case. If Mr Hobbs' condition improves over the next 4-6 weeks then he will have the opportunity to give evidence if he chooses. If his condition does not improve and he then seeks an adjournment for the purpose of giving evidence in his defence, then I will give consideration to that application in light of the evidence then before me. 102Insofar as Mrs Hobbs raises issues again as to the lateness of the service of the affidavits of Messrs Wood and Truong, this is a matter I have already dealt with in my earlier judgment. Nothing has changed since then. Mrs Hobbs' objection to the submissions made by ASIC in relation to the material the subject of those affidavits (insofar as it may not already have been dealt with) can be raised during the hearing. Similarly, insofar as Mrs Hobbs raises again the leave granted in relation to the Lisa Reisinger examination transcripts I have dealt with that issue in an earlier judgment and see no basis to revisit that. (I note that the admission of that evidence is expressly subject to the rights of the defendants to raise objections as to its weight and the like, in view of the fact that Ms Reisinger will not be available for cross-examination.) 103Mrs Hobbs takes issue with the submission by ASIC that the Hobbs interests have had years to prepare their defence. Mrs Hobbs submits that it is only "in the last year or so" that they have had a statement of claim on which they could work and in this context she has raised again the complaint as to the volume of material delivered "in the last few weeks and months". There is no dispute that this is a voluminous matter. (Indeed 5 boxes of documents comprising the Court Book, or part thereof, were delivered to my chambers this week.) However, for at least some part of the time Mr Hobbs has had the benefit of legal advice. If his position is that the schemes in question were schemes entered into on the basis of legal advice then there may not be a vast amount of factual dispute as to what actually occurred (as opposed to its effect). In any event, I have already considered and refused the adjournment application on the basis of the volume of material served on the defendants. 104Mrs Hobbs submits that it is the realisation by her husband over the last few weeks that his health has precluded him from undertaking the massive amount of work needed to prepare for the case that has sent him into a spiral of depression; that she and her husband have understood for several weeks now that it was too late to instruct new legal counsel even if they had the financial means to do so; and that the knowledge that their case (which she says they have been advised is a good one) will not be put to the Court is what she believes has caused her husband's depression. I accept that this is Mrs Hobbs' genuine belief (and, insofar as she is making submissions on her husband's behalf, that it is her understanding of his position). 105Nevertheless, as at April 2012, when Mr Southwick of Counsel appeared on the motions then before me, instructed by Prime Lawyers, the position put to me was that a handover of 6 weeks would be needed if Mr Bellamy were then unable to continue to act. Nothing has been said as to why Mr Bellamy is now unable to act or why he would not have been in a position to pass on his knowledge, if not to other lawyers, then to Mrs Hobbs (if her husband was not capable of focussing on the case) during the time from April to date or to others said now to be assisting Mr and Mrs Hobbs (including Mr Heal and an unidentified law student). 106Mrs Hobbs has submitted that if the adjournment is not granted then she and her husband will be unable to participate in any meaningful way and there will be a miscarriage of justice as they will have been unable to present their case. By this, she must mean that they will have been deprived of the ability to test ASIC's case by cross-examination, since there is nothing to stop Mr and Mrs Hobbs (at the conclusion of the ASIC case) presenting a defence of the kind Mrs Hobbs has indicated is the basis for their confidence as to a favourable outcome to the proceedings against them. 107Mrs Hobbs has expressed confidence that if there were to be an adjournment she and her husband could obtain the assistance of someone such as Mr Heal to assist in the conduct of matters such as cross-examination. There is no evidence of the finances that Mrs Hobbs says would be available to enable this, simply the assertion that they are presently involved in a profitable business that would in future have the ability to provide sufficient funds to acquire legal assistance. 108In the absence of any concrete proposals as to how the defence of the case would be funded if there were to be an adjournment it is difficult to place weight on the assertions that the position in that regard will be any different if there is an adjournment. Moreover the uncertainty as to the length of any adjournment being necessary for this purpose (it now being sought to 1 November 2012 or later, but on earlier occasions being described as an adjournment for 4-6 months or for several months or for 12 months) casts doubt on whether the matter would in any event be ready (from Mr Hobbs' perspective) by then. ASIC's submissions 109Mr Clarke noted in oral submissions (and this is the view I have reached above) that even if admitted, Dr Ewer's evidence in part supports the rejection of the adjournment application given that Mr Hobbs' multiple sclerosis is now very advanced and that this is a progressive disease (hence I can infer that it will continue to deteriorate, albeit with periods of remission from time to time) and that stress is a factor which exacerbates both Mr Hobbs' multiple sclerosis and his depressive condition. 110In ASIC's submission, if Mr Hobbs is left in the position where he will have to prepare for the case himself (and there is no evidence to suggest the likelihood that this will not be the case), then the effect of Dr Ewer's evidence is that it is likely that he will be under quite significant stress at that later time and in a similar position to that in which he now finds himself. 111It is submitted that the earlier medical certificates and letters are evidence that the pre-existing psychiatric condition from which Mr Hobbs suffers is one that is exacerbated by the physical conditions resulting from the progression of his multiple sclerosis and affected by the stress that will accompany these proceedings whenever they take place. 112Mr Clarke submits that if the position is just as bad now as it appeared from the certificates in 2009, then the suggestion by Dr Ewer to suggest that Mr Hobbs was coping quite well until service of the documentary material in April and might be able in the future to conduct his defence is difficult to accept. Mr Clarke notes that ultimately Dr Ewer accepted that he could not have any confidence that Mr Hobbs would be in a better position in the future. 113In fairness, Mr Clarke pointed to the fact that (as I have noted earlier) Dr Ewer did suggest that there might be some improvement from Mr Hobbs' present position, but he submits that this must be seen against a long history of significant stress leading to Mr Hobbs having significant problems in terms of depression and anxiety and which have led to Mr Hobbs not being able properly to attend hearings or examinations or give instructions or deal with matters. 114Mr Clarke emphasised the submissions made on the last occasion as to the inference that could be drawn as to the reason that Mr Hobbs is not in receipt of legal assistance and submits that para [8] of Mrs Hobbs' affidavit supports the conclusion that Mr Hobbs has known of his difficulties and of the extent of the case being brought against him and that he had to prepare himself properly for this case. As to the cessation of Mr Hobbs' legal representation, as I have previously noted, an unconditional Notice of Appearance was filed in Court by solicitors acting on behalf of the Hobbs interests in April 2012. That appearance was not limited to argument on the applications then made by ASIC (for, inter alia, leave to rely upon the evidence the late service or volume of which is said to have caused Mr Hobbs' latest "spiral into depression"). The solicitor appearing at the time of the application for leave to withdraw from the proceedings confirmed that a fee disclosure had been made as required to be done under the applicable practice rules in this jurisdiction. The explanation by Mr Saad, the solicitor, for the sudden withdrawal thereafter was that there had not been compliance with the requirements for payment of fees. Mr Clarke submits that the timing permits an alternative inference, namely that Mr Hobbs took a different position as to costs when his resistance to the applications then before the Court was unsuccessful. It is not necessary for me to make any comment as to this, given the conclusion that I have reached in any event as to the adjournment application. I simply note that if Mr Hobbs had a basis on which to have considered he was in a position to enter into a retainer with Prime Lawyers at that stage (in what was indicated to me to be a not inconsiderable sum) then there is no explanation as to why that changed so suddenly at the time that the prospect of preparation in earnest for the commencement of the hearing was upon the defendants. (The explanation in the affidavits read on the earlier application that the Hobbs interests had budgeted for a hearing in 2013 is inconsistent with the notice they were given in late 2011 that a hearing date would be sought in mid 2012 or the fixing of such a date in February 2012.) 115As to the public interest in the administration of justice, Mr Clarke noted the interests of the public in having this proceeding determined in circumstances where serious orders are sought against someone who, on ASIC's case, had acted improperly in soliciting investors to invest in funds and the interests of the other defendants in having these matters finally determined. Conclusion 116I have concluded that the hearing of these proceedings should not be adjourned. I have reached that conclusion not without concern as to the very real prospect that a self-represented litigant suffering from a progressive and debilitating illness and also suffering from acute stress and suicidal ideation (as both Dr Ewer and Mrs Hobbs depose that Mr Hobbs is) is unlikely to be in a position to attend the hearing of proceedings in which very serious allegations are made against him. I accept that Mr Hobbs' ability to provide input to those who may be in a position to assist more directly in the conduct of his defence (at least his wife and possibly others, such as Mr Collard who has spoken for Mr Hobbs in the past, or his former solicitor in New Zealand, Mr Bellamy, or persons such as Mr Heal who has proffered assistance in the present instance) may also for practical purposes be affected (although it seems that Mr Hobbs is not wholly incapable of providing at least some instructions in relation to the matter, having regard to Ms Hayden's evidence as to communications in the last week between he and Mr Bellamy in relation to his consent to the filing of an affidavit by the latter). 117However, I have no confidence that the position will be any (or significantly) different whenever this matter comes on for trial. Indeed, at least one of the medical opinions earlier provided by Mr Hobbs' psychiatrist in the context of the then New Zealand Securities Commission examination into matters the subject of the present proceedings would support the conclusion that it is unlikely that Mr Hobbs will ever be in a position to attend such a hearing. 118While Dr Ewer's most recent opinion (unlike his view in 2009) is that Mr Hobbs was not yet at a stage where he could be considered permanently unable to conduct his own case and that there remains some prospect that Mr Hobbs could do so (if given an undefined time to prepare himself for the hearing and if Mr Hobbs then perceived himself as able to do so), it seems to me to be telling that Dr Ewer also expressed surprise at how well Mr Hobbs had been "coping" with the stress of the forthcoming hearing up until 4-6 weeks ago (as indicating that this would not have been his expectation of the way in which Mr Hobbs would deal with such stress). 119Dr Ewer confirmed in cross-examination that stress and tiredness would exacerbate both the physical symptoms of multiple sclerosis and the depression from which Mr Hobbs suffers and that Mr Hobbs was likely to find any hearing stressful. 120Dr Ewer was unable to confirm whether (or, if so, how long it would take for) the physical symptoms from which Mr Hobbs is presently suffering (loss of use of his right arm and a loss of feeling in his left arm, together with problems using his crutches) to abate or improve; nor could he express with confidence when Mr Hobbs might be in a position to participate in a hearing without suffering, as he presently is, from the stress of such a hearing. 121Balanced against the difficulties of Mr Hobbs' current medical state is the public interest in the expeditious conduct of proceedings (particularly those where, as here, serious allegations of conduct harmful to the public are in issue), that public interest being reflected in the statutory mandate for the just, quick and cheap resolution of the real issues in dispute in proceedings in this Court. Mr Clarke points not simply to the public interest in the efficient conduct of proceedings in this regard but also to the interests of the other defendants in the expeditious resolution of these proceedings. 122Had I been confident that Mr Hobbs' mental state and physical condition would improve within a short period of time so as to enable him more fully to participate in the hearing, I would have been prepared to grant a short adjournment for that purpose. However, I remain of the view that I expressed on the last occasion (and, indeed, the evidence of Dr Ewer has fortified that view) that it is unlikely that even if the case is now adjourned Mr Hobbs will be sufficiently better at a later stage to be able to participate in or conduct the defence of the proceedings. There is a history of Mr Hobbs being unable to participate in investigations or enquiries of a stressful nature due to his medical condition. Even where improvement has occurred, relapses have taken place when the resumption of the examination process has been foreshadowed (as in 2009). Stress seems to be a major factor in the exacerbation of Mr Hobbs' condition. I cannot accept that there will be any less stress on Mr Hobbs even if the matter is listed for hearing in another four to six months. Unfortunately for Mr Hobbs, and I say this with no disrespect, he is likely to be similarly incapacitated whenever the hearing takes place. 123I also note that it is not suggested that Mrs Hobbs is incapable of attendance at the hearing. While Mrs Hobbs has submitted that she is dependent on Mr Hobbs' familiarity with the matter for the conduct of their defence, it is by no means apparent that she would not be in a position at the very least to keep Mr Hobbs informed as to the course of the proceedings (such that he would be able in due course to make an informed decision as to whether to adduce any evidence in his defence). 124I have referred in my earlier reasons to the factors to be taken into account in relation to an adjournment application and to the cases that suggest that where an adjournment application is occasioned by matters such as delay in properly briefing counsel, the late withdrawal of legal representatives due to a fee dispute, inadequate preparation of proceedings for hearing, foreseeable difficulties in preparing for a hearing or obtaining or providing proper instructions, and the stated need to investigate the availability of additional evidence (where such investigations should have already taken place), an application for adjournment may be refused. 125I do not suggest that Mr Hobbs' state of health has been fabricated or that Mrs Hobbs' concerns as to his welfare are unfounded. Rather, I have concluded that the position is likely to be no different when any adjourned hearing date approaches and it seems to me that Dr Ewer's evidence largely supports that conclusion. 126I have noted earlier what was said Young CJ in Eq, as his Honour then was, in Forster v Harvey [2006] NSWSC 1112 as to the circumstances where an adjournment is sought on medical grounds. I remain of the view that the observations made by his Honour on that occasion are apposite on the facts of the present case. 127Accordingly, while I am troubled by the obvious concerns that are held for Mr Hobbs' safety and the impact that the hearing will have on his medical condition, I am not persuaded that in the interests of the proper administration of justice this hearing should be adjourned and I must therefore dismiss the application. Ongoing conduct of the hearing 128One procedural matter that I should have raised during the course of the video-link hearing is the fact that I have previously given directions in an attempt to facilitate proper notice being given to ASIC of any witnesses that the Hobbs' interests wish to be made available for cross-examination. Rule 35.2 of the Uniform Civil Procedure Rules requires reasonable notice to be given if witnesses are required for cross-examination. I understand from Mr Clarke that no such notice has been given in accordance with my directions. 129In circumstances where the hearing is to commence next Wednesday and ASIC will have to make arrangements in relation to the witnesses' availability if they are to be required for cross-examination, I will direct that unless notice in writing is given by the Hobbs interests to ASIC by 5pm today (Sydney time) that a particular witness is required for cross-examination (identifying each such witness by name) then leave will be required to be obtained if the Hobbs interests later wish to cross-examine such a witness. In relation to those witnesses from whom ASIC has served an Outline of Evidence, those witnesses will be called to give evidence in chief and hence available for cross-examination without the need for such leave. However, ASIC has adverted to the possibility that some of the witnesses who have previously refused to provide an affidavit may now do so. Therefore, for the purposes of the above direction, the Hobbs interests should give notification of all of the witnesses they seek to cross-examine irrespective of whether to date those witnesses have sworn or affirmed an affidavit. If there is doubt as to the effect of this direction, I suggest that Mrs Hobbs liaise with ASIC so that she understands what is required. Orders 130For the reasons set out above, I dismiss the application for adjournment of the hearing date. I confirm the commencement date of 4 July 2012 and that the matter is listed for 6 weeks. I direct that unless notice in writing is given by the Hobbs interests to ASIC by 5pm today (Sydney time) that a particular witness is required for cross-examination (identifying each such witness by name) then leave will be required to be obtained if the Hobbs interests later wish to cross-examine such a witness.