[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
ex tempore Judgment
LEEMING JA: By notice of motion filed 4 April 2016, Ms Leigh Johnson, who is a solicitor as well as the second respondent to a pending appeal, seeks to vacate the dates on which the appeal is listed to be heard, which are 24 and 25 May 2016.
The trial took place over four days in May 2015. Ms Johnson was represented by solicitor and junior and senior counsel, so far as is revealed by the judgment coversheet. Judgment was delivered on 31 August 2015: Ellimark Pty Ltd v Calvo [2015] NSWSC 1240. Orders were not made until 22 October 2015, on which occasion Ellimark filed an undertaking that it would not sell or encumber certain shares in the capital of Australian Institute of Music Ltd before the final determination of the appeal.
A notice of intention to appeal was filed (and, I infer in the absence of any evidence to the contrary, served) on or around 25 September 2015, and the notice of appeal was filed on 25 November 2015. The appeal was listed for directions in February 2016, when counsel who did not appear at the trial appeared for Ms Johnson, and obtained a direction that a cross-appeal be filed by 16 March 2016. The appeal was listed for further directions on that date, which is when the appeal was listed for hearing. I note that the appellant's written submissions had by then been filed, and that the respondents' written submissions are due to be filed later this week.
Ms Johnson says in a short affidavit which was read without objection on her application that she asked a clerk to appear for her on 16 March 2016, with instructions to have the matter adjourned for around six weeks so that she could obtain legal representation. She says that the clerk failed to carry out her explicit instructions.
In further support of her application, Ms Johnson says that "[d]ue to my lack of legal representation, I am clearly in no position to have an appeal hearing in a matter of weeks. I have also yet to file my notice of appeal and cannot do so until I obtain both legal representation and advice". She gave notice of her application to the other parties on 31 March 2016.
At the hearing, Ms Johnson tendered a letter from Insightful Mind Pty Ltd, which appears to be a company through which a psychologist, Mr Carl Nielson, conducts his practice. The letter stated that Ms Johnson initially saw him on "Thursday 31/03/2015" [sic]. It summarises a report of "uncontrollable worry, disturbed sleep, loss of appetite, loss of memory, agitation, decreased stress tolerance, crying bouts, loss of motivation and insomnia". It diagnosed "DSM - V Anxiety Disorder / Panic as well as Major Depressive Disorder". Although a full recovery was anticipated, so long as her condition was appropriately managed, it was recommended that she continue with weekly counselling, and be excused from any personal litigation matters, as well as undertake appropriate fitness and dietary programs.
I infer that the reference to 31 March 2015 in the letter is a typographical error, and that the first consultation was 31 March 2016. That was a Thursday (while 31 March 2015 was not) and is consistent with a recommendation that Ms Johnson continue with weekly counselling. Ultimately, however, nothing turns on this point.
There was no evidence for either respondent to the motion, nor any application for cross-examination. Ms Lockett, who appeared for Ms Calvo, did not oppose the application, on the basis that the delay would only be for one or two months. Mr Lawrance, who appeared for Ellimark, the successful plaintiff which had given the undertaking pending appeal, did oppose it.
It will be seen from the foregoing summary that there was very scant evidence in support of the application. There was no evidence explaining when or why Ms Johnson had ceased to enjoy legal representation. There was no explanation as to why Ms Johnson had failed to comply with the direction made by the Registrar in February concerning filing her appeal or cross-appeal. There was no evidence explaining why, even today, it would be impossible for Ms Johnson to obtain legal representation, and respond to the written submissions, in an appeal which is, after all, not set down for hearing until some six weeks' time.
Confronted with these difficulties, Ms Johnson sought to advance a number of matters from the Bar table by way of explanation. She said that she had thought that her former legal team were acting for her on the appeal, until she realised that they had done nothing. She also said that she had been trying to obtain representation, but that no one was available to appear for her in May, and that she was seeing counsel this afternoon who had indicated at least a possibility of appearing for her in July, although she wished not to mention his name. When I pointed to the fact that she was a solicitor, and must be taken to recognise the difference between submissions and evidence, she sought to give evidence of those matters. That was opposed by Mr Lawrance, and I ruled against her. There was no application for an adjournment of the application.
In reply, and for the first time, Ms Johnson said she had no money to pay for lawyers.
I do not think it is necessary for me to summarise the nature of the allegations made against Ms Johnson in the litigation. It is sufficient to state that I agree with her that it is highly desirable for her to obtain legal representation, given the nature and importance of the issues at stake.
I am conscious that Ms Johnson is a solicitor, who was represented throughout a substantial trial. The essential problem is that there is no explanation of why what must have been obvious to her for many months has only come to a head now.
It is not clear when Ms Johnson ceased receiving legal assistance from her former lawyers, or the reasons for that. However, it is clear from the record that Ms Johnson knew there was a prospect of an appeal from September 2015, and the actuality of an appeal since November 2015. Faced with those facts, it is also clear that she had herself formed the view that an appeal or cross-appeal should be filed, or had received advice to that effect (or both), and that fresh counsel should be retained in February 2016 to advise the Registrar and the parties of that fact. The bases on which the application has been advanced (by reference to Ms Johnson's evidence as opposed to her statements from the Bar table) are the failure of a clerk to follow her instructions on 16 March 2016, and the letter from Insightful Mind.
In March 2016, s 57 of the Civil Procedure Act 2005 (NSW) imposed a duty on the Registrar to manage the pending appeal with regard to (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, and (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. There was non-compliance by Ms Johnson with the directions she had sought and obtained in February. There was compliance by the appellant, whose submissions had been filed in accordance with the timetable. There was no good reason to accede to an application to adjourn the proceedings for a further six weeks, and the matters identified in s 57 pointed against that occurring.
The evidence does not establish precisely what occurred before the Registrar on 16 March 2016, and indeed whether the clerk indicated Ms Johnson's position, but I fail to see how an application to adjourn an appeal for six weeks, unsupported by evidence, made by a party already in breach and opposed by one of the other parties, could ever be likely to succeed. Accordingly, I reject the first basis of this application.
I do not think the letter from Mr Nielsen takes the matter any further. It says nothing about an inability to provide instructions to draft a notice of appeal and submissions in opposition to those of the appellant. Indeed, the recommendations of the psychologist are entirely consistent with Ms Johnson speedily retaining lawyers and placing her role in the pending appeal in their hands.
I would not accede to Ms Johnson's application on the further bases which were prominent when the matter was heard, namely her inability to obtain representation and her impecuniosity. There was no evidence of either matter. Nor was either matter flagged to the other parties in advance of the application being heard. Indeed, what was said about her impecuniosity was only said in reply.
There is one final matter. At one stage, once again in reply, Ms Johnson submitted that her failure to comply with the Court's directions and the ordinary incidents of supporting a motion with evidence amply supported her proposition that the appeal could not proceed in May. I disagree. I cannot accede to a position where a solicitor points to her own unexplained inability to advance an application in her own interests and thereby achieves a vacation of a hearing date.
I have concluded that there is no sound basis for granting the application. There is no substantial prejudice to which Ellimark points. Mr Lawrance (who had appeared at trial) very properly minimised the significance of his own inability to appear if the matter were adjourned to June or July. He also very properly advised that there was no evidence of any difficulty occasioned by the undertaking. But that is not to the point. Only if a proper basis is advanced should an appeal be vacated and the parties thereby put to further inevitable cost and delay. No such basis having been established, the application must be dismissed.
[Submissions concerning costs.]
Ms Johnson must pay Ellimark's costs. There should be no order of the costs of Ms Calvo, whose stance on the motion was neutral.
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Decision last updated: 11 April 2016