[2018] NSWSC 31
Isbester v Knox City Council (2015) 255 CLR 135
Source
Original judgment source is linked above.
Catchwords
[2018] NSWSC 31
Isbester v Knox City Council (2015) 255 CLR 135
Judgment (6 paragraphs)
[1]
JUDGMENT
The plaintiff seeks review of a decision of the Registrar made on 20 April 2023 to dismiss the proceedings for want of due dispatch in accordance with s 121(3) of the Supreme Court Act 1970 (NSW) and rr 49.19 and 49.20 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
The plaintiff appeared by audio visual link ("AVL") unrepresented on the hearing of the application, as he has throughout the proceedings, albeit he referred on a number of occasions during the presentation of this application to consulting a legal advisor. Ms Hamdan appeared on behalf of the defendants.
The plaintiff pursues a claim for professional negligence against his former solicitors, the defendants.
The defendants were retained by the plaintiff in March 2013 to advise on a business dispute between the plaintiff and another director and shareholder of a company (Mr and Ms Williams). The background to the dispute appears to be that Mr and Ms Williams were seeking to have the plaintiff removed as an executive director of a company which the plaintiff and Mr Williams had established in 2005 and appoint Ms Williams in his place.
The plaintiff retained the defendants to advise him on issues relating to the dispute. The dispute led to litigation and, ultimately, a decision adverse to the plaintiff (see In the Matter of Optimisation Australia Pty Limited (2018) 362 ALR 374; [2018] NSWSC 31).
On 27 March 2019, the plaintiff commenced these proceedings. He alleges that the defendants were negligent in the advice they provided in respect of the proceedings. He says that the defendants' negligence has caused him both economic loss and psychiatric injury. The nature of his claim is set out more fully in the judgment of Ierace J: Kearney v Amirbeaggi [2020] NSWSC 1035.
Kearney v Amirbeaggi [2023] NSWSC 1404 | Case summary | Zoe
Unfortunately, there has been significant delay in the conduct of the proceedings. The plaintiff filed an amended statement of claim on 17 April 2019. The defendants' response was to file a motion seeking to strike out the statement of claim. The hearing of that application took place between 19 and 21 August 2019. On 6 August 2020, the Court dismissed the defendants' motion: Kearney v Amirbeaggi [2020] NSWSC 1035.
The plaintiff then filed a further amended statement of claim on 13 October 2020. A defence was not filed until 11 March 2021.
Then, on 18 June 2021, the plaintiff filed a motion, styled as a motion for expedition. The proceedings came before me on 9 December 2021 in my role as list manager for long matters.
I listed the matter for hearing on 5 September 2022 and listed the plaintiff's application for an earlier hearing date on 15 February 2022.
On that day, the plaintiff's motion was heard by Beech-Jones CJ at CL (as his Honour then was). His Honour vacated the September hearing date, listed the matter for hearing on 1 August 2022 and reduced the estimate to seven days: Kearney v Amirbeaggi [2022] NSWSC 130.
The plaintiff responded by filing a notice of appeal and then an amended notice of appeal.
On 23 March 2022, Beech-Jones CJ at CL made guillotine orders for the service of the defendants' evidence, having regard to the defendants' failure to comply with earlier orders in respect of its evidence: Kearney v Amirbeaggi [2022] NSWSC 805. During 2022, the plaintiff continued to pursue proceedings in the Court of Appeal whilst the proceedings continued to be case managed by Beech-Jones CJ at CL.
The plaintiff made an application to vacate the hearing date (which had been expedited at his request). Beech-Jones CJ at CL dismissed that application: Kearney v Amirbeaggi [2022] NSWSC 805. The plaintiff pursued an appeal. On 20 July 2022, Brereton JA ordered a stay of the proceedings, having regard to the plaintiff's mental health: Kearney v Amirbeaggi [2022] NSWCA 130. The hearing date was vacated. The stay expired on 12 December 2022. The proceedings were then listed before the Registrar on 2 March 2023.
Although the evidence was substantially complete at that time, the plaintiff sought leave to adduce further lay and expert evidence. On 2 March 2023, the Registrar made orders directing the plaintiff to file and serve any motion and affidavit by 13 April 2023, with such motion being returnable on 20 April 2023. The Registrar also directed that the matter be stood over on 20 April 2023 for the plaintiff to show cause as to why the proceedings should not be dismissed.
Instead of filing a motion seeking leave to rely on further evidence, the plaintiff filed a motion seeking that the Chief Judge at Common Law recuse himself. The plaintiff also sought an extension of time from the defendants. Consent was not forthcoming. Having heard arguments from the parties, on 20 April 2023, the Registrar made orders:
1. that the proceedings be dismissed for want of due dispatch pursuant to r 12.7 of the UCPR; and
2. the plaintiff is to pay the defendants costs of the proceedings pursuant to r 42.20 of the UCPR.
The reasons for the Registrar's decision are set out in the Registrar's judgment.
During the hearing on 20 April 2023, the plaintiff sought an adjournment, as he wished to put on written submissions in relation to the show cause hearing. He indicated that, in particular, he wanted time to obtain a new psychiatrist and he had one in mind, although he had not yet briefed the psychiatrist.
The defendants relied on the affidavit of Timothy Price, the solicitor for the defendants, dated 19 April 2023, which merely set out the history of the matter.
The Registrar observed that the plaintiff had failed to file and serve the motion and affidavit in accordance with the Court's earlier orders of 2 March 2023. The Registrar was not satisfied that the plaintiff could obtain and serve the psychiatric evidence he sought in the timeframe suggested.
Noting:
1. that the plaintiff had not complied with her earlier orders in respect of the motion and affidavit;
2. the extended history of the matter;
3. the vacated hearing in 2022;
4. the application before the Court of Appeal; and
5. that the plaintiff was still not ready to proceed on 20 April 2023, the Registrar dismissed the proceedings in accordance with r 12.7 of the UCPR.
As noted on the transcript, the plaintiff's response was to indicate that there would be an appeal and an investigation by the corruption watchdog. The plaintiff then filed this application for review.
The parties relied on a four-volume court book on the hearing of the application. The plaintiff relied on his two affidavits sworn 14 July 2023 and 17 October 2023. The defendants again relied on an affidavit of Timothy Price sworn 11 August 2023.
Much of the material was not relevant to this application, except in the sense that it demonstrates the extensive case management history, adjournments, vacations and times that the parties have not complied with court orders. I received extensive written submissions from the parties.
It became apparent during the hearing of the application that the plaintiff perceived it was in his interests to pursue three main aims, being:
1. the cross-examination of Mr Price, the solicitor for the defendants;
2. my recusal on the basis of apprehended bias; and
3. an adjournment of the hearing so that he could file further evidence and submissions before a new Judge with whom the plaintiff was apparently satisfied, relating to a hearing back in 2021.
I rejected each of those requests or applications and said that I would give reasons during this judgment.
The problem which emerged during the hearing was that the plaintiff was not prepared to accept my ruling on his so-called right to cross-examine Mr Price and nor was he prepared to accept my ruling on his application for me to disqualify myself.
He said he would be "logging off" the AVL link when I did not accede to his requests, and it was only on my request that he remain on the AVL whilst I heard from the defendants which prevented the hearing from coming to an abrupt end.
Indeed, it is plain that the plaintiff conducted the hearing on the basis of mistrust and suspicion, at one point asking me to reveal my earlier involvement with the defendants, as if there was some relationship that I had with the defendants. The plaintiff was referring to my decision in Kossaifi v ACN 111 804 383 Pty Ltd [2020] NSWSC 853, another professional negligence case. After a lengthy hearing, I entered a judgment for the defendants, having regard to the facts and circumstances of that case.
The plaintiff's suspicion and oral application for me to disqualify myself also seems to be based on a misunderstanding of what happened in 2021 and, in particular, my referral of the matter to the Chief Judge at Common Law for further case management and determination of the plaintiff's application for expedition. The plaintiff appears to believe that this was some sort of attempt to disadvantage him or get the case away from another Judge (the plaintiff says that it should have been returned to his Honour).
Whilst I endeavoured to explain to the plaintiff that the purpose of the referral to the Chief Judge at Common Law was to determine if the matter could be expedited and facilitate proper case management, the plaintiff did not accept that. Further, having sought expedition (essentially on medical grounds), the plaintiff ultimately sought a vacation of the expedited hearing, also on medical grounds, which was refused by Beech-Jones CJ at CL. This appears to have led to the plaintiff's application for Beech-Jones CJ at CL to recuse himself (not that he was hearing the matter anymore).
The reality of the plaintiff's application is that because he was so insistent on achieving what he had set out to achieve, being the cross-examination of the solicitor for the defendants, my removal, and an adjournment to a later date to some other Judge, he refused to focus on the most important aspect of the application, being how and why the case could go forward in accordance with the cheap, just and quick resolution of the issues, proper case management and the dictates of justice: ss 56, 57 and 58 of the Civil Procedure Act 2005 (NSW) ("CPA").
Indeed, after I asked the plaintiff not to disconnect his link, I raised with Counsel for the defendants why the Registrar's orders should not be set aside and the matter be allocated a hearing date with the resolution of the proceedings early in 2024.
The plaintiff declined to meaningfully engage in that debate, continuing to raise his concern about being prevented from cross-examining Mr Price and my conduct, ultimately suggesting that both the Common Law Division and the Court of Appeal are under investigation, and that it will all be in the public domain in due course.
I will now deal with each of the three issues which arose on the hearing, including the substantive motion.
[2]
The application to cross-examine Mr Price
Mr Price filed an affidavit merely annexing correspondence and documents evidencing the background to the current application. As often happens in these types of motions, the solicitor thought it appropriate to prepare an affidavit annexing documents which could have been tendered as exhibits.
On the commencement of the hearing, the plaintiff requested that I deal with his requirement that Mr Price be cross-examined. I asked the plaintiff on a number of occasions to identify the reasons he wished to cross-examine Mr Price and the topics he wished to address. He declined to do so, other than pointing to his right to do so, and stated that he would be asking relevant questions. He said he had prepared some notes, but other than that, the cross-examination would be "freelancing".
Whilst the Court should do its best to assist an unrepresented person, I could think of no reason why it would be necessary for the plaintiff to cross-examine Mr Price. The documents spoke for themselves. Any opinion as to what had happened, why it happened and what should happen would not be relevant. Despite being afforded a number of opportunities to identify cross-examination topics, the plaintiff declined to do so.
As was observed by Leeming JA in Ren v Jiang [2014] NSWCA 1 at [11], cross-examination on an interlocutory application is not as of right but requires leave. Leave should be granted cautiously and somewhat sparingly: see Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321 at [18]. Indeed, it is common practice not to permit cross-examination at all in interlocutory matters: see Markisic v Commonwealth of Australia [2010] NSWCA 273 at [31] per Beazley JA and Young JA.
As:
1. Mr Price merely annexed documents to his affidavit;
2. the plaintiff declined to identify the topics on which he would cross-examine Mr Price or any questions he wished to ask (I had asked Mr Price to remain outside while I asked the plaintiff about this); and
3. I could think of no topic on which Mr Price could be cross-examined which would assist in the determination of the plaintiff's application,
I declined leave to cross-examine Mr Price.
[3]
The application to disqualify
During oral exchanges, the plaintiff asked me about my dealings with the defendants without revealing he was aware that I had entered judgment in the matter to which I have already referred. After some exchange, I responded that it was not appropriate that he be asking me trick questions as if to prove a point. He then said that I should recuse myself based on apprehended bias. After further exchanges, he said that he was making an oral application to that effect.
He then produced a medical report of Dr David Grace, psychiatrist, dated 25 October 2023. He emailed the report to my chambers during his oral submissions. The effect of the report is that Dr Grace suggests that the plaintiff has clear symptoms of psychiatric distress when speaking about his involvement with the Chief Judge at Common Law and me, and that further communication with me and his Honour would have a negative impact on his psychiatric wellbeing.
The plaintiff informed Dr Grace that it would be open to the Court to allocate an alternate Judge and this would help to minimise any further negative impacts to his mental health. I accept, as I did on the last occasion when the matter was before me, that the plaintiff has a significant mental health condition. I also accept, as was demonstrated during the hearing, that the plaintiff mistrusts me and the former Chief Judge at Common Law and may perceive that we are biased.
However, the plaintiff was unable to articulate precisely why that is, other than that the case management orders I made in 2021 should not have been made and that, because I referred the matter to the Chief Judge at Common Law, I was biased against him. As I explained to him, the orders I made were intended to enable what he wanted and assist his purposes: that is, a hearing date as soon as possible (the Chief Judge brought forward the hearing date that I set), case management by the Chief Judge and ensuring that all parties, including the defendants, complied with all case management orders so that the matter would be ready to proceed, the defendants having previously not complied with case management orders.
This is, in fact, what happened, except that the plaintiff then applied for a vacation of the earlier hearing date which had been ordered by the Chief Judge and his Honour refused that application.
In Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20, the High Court (Kiefel, Bell, Keane and Nettle JJ) observed at [20] that:
"The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is a largely factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made."
There is no basis for the plaintiff's application that I recuse myself. A fair-minded observer would not apprehend a lack of impartiality in my earlier orders or during the hearing. The fact that I have previously found in favour of the defendants in a different and unrelated matter does not lead to an apprehension of bias. The application was not raised until after I had ruled against the plaintiff on his request to cross-examine Mr Price. Further, the psychiatric report that he obtained was not provided to the Court or the solicitors for the defendants until after I had refused his request to cross-examine Mr Price. His application for recusal appears to be based in part on my rejection of his request to cross-examine the solicitor for the defendants.
[4]
The application for an adjournment
After I rejected the first two applications, the plaintiff said that he should be given more time to put on submissions in respect of his application for recusal and the orders he seeks, and that he should be permitted to present consent orders for the future conduct of the matter.
As I explained to him, the matter was listed for hearing that day and the parties had already presented extensive evidence and written submissions. Further, it was obvious from the position taken by the defendants that there would be no consent orders going forward. Of course, the key to the request for more evidence, further submissions and additional time was that the matter be referred to another Judge.
[5]
The application for review
The principles to be applied on this type of application have been set out in a number of earlier cases: see, for example, Mid North Coast Local Health District v Hickson [2019] NSWCA 165; Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 ("Tomko"); Noble Earth Technologies Pty Ltd v Hampic Pty Ltd t/as Cyndan Chemicals [2012] NSWSC 935 ("Noble Earth").
It is important to observe that this is not an appeal. The plaintiff may rely on new evidence and the Court is not restricted to considering the evidence before the Registrar (Tomko at [52]; Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [10]; Noble Earth at [39]).
The real question is whether there are grounds or reasons which would warrant a review of the orders that have already been made by the Registrar: Noble Earth at [39] per Hallen AsJ (as his Honour then was). The Court has a broad discretion to make orders as it sees fit on an application for review, but any orders must be made in accordance with ss 56, 57 and 58 of the CPA, to which I have already referred. Further, whilst the reasons of the Registrar are not determinative or binding on the Court, the Court should proceed cautiously in overturning a Registrar's decision: Noble Earth at [39(h)].
In this matter, the proceedings were dismissed for want of due dispatch but the effect of the order is not to prevent the plaintiff from commencing new proceedings should he wish to do so. However, the effect of the order is to terminate the current proceedings subject to any order made on this application.
It is also important to observe that, as a review does not involve a consideration of any error on the part of the Registrar, then any setting aside of the orders is not necessarily based on any finding of error. The Registrar plays a vital role in case management and making decisions and orders to ensure that the proceedings are conducted in accordance with the overriding purpose.
In this matter, despite being afforded an opportunity to file further documents, the plaintiff declined to do so in accordance with the earlier orders of the Registrar. The orders dismissing the proceedings followed his failure to comply with the Registrar's orders.
[6]
Determination
Unfortunately, the plaintiff seemed more intent on addressing the other issues he wished to pursue, being his right to cross-examine the solicitor for the defendants and his suggestion that I should recuse myself on the grounds of apprehended bias, than addressing matters relevant to the substantive application. Indeed, on my review of the judgment of Registrar Jones dismissing the proceedings (from which the plaintiff seeks review) the plaintiff adopted a somewhat similar approach on that application.
It is plain from the decision of the Registrar that the proceedings were dismissed because the plaintiff had failed to file an affidavit in accordance with the earlier direction of the Registrar and appeared to be unable to give any real indication as to when he might be ready to proceed - that is, to take a hearing date or serve the further evidence on which he seeks to rely.
The plaintiff has not demonstrated error in the approach of the Registrar. The Registrar provided the plaintiff with ample warning and directed that he serve an affidavit showing cause. As I said, regard must be had to ss 56, 57 and 58 of the CPA and, in particular, the importance of parties complying with case management orders. The Registrar was obviously not satisfied on the material before her that the plaintiff would be pursuing the matter with appropriate diligence.
Having said that, in support of his current application, the plaintiff has filed extensive material. Whilst much of it may be repetitive and is not necessarily relevant to the determination of the application, it is plain on my review of all of the material that not all of the delay of the prosecution of this matter can be sheeted home to the plaintiff. This is apparent from my earlier description of the procedural history of the matter: see [6]-[20].
Although it is now four and a half years since these proceedings were commenced, on my analysis of the conduct of the proceedings over the past four and a half years (at least until June 2022), it could not be said that the primary cause of the delay was the plaintiff. Certainly, the plaintiff has filed a number of versions of the statement of claim, but it was not until two years after the filing of the original statement of claim that the defendants filed its defence.
The delay in 2022 was caused by the plaintiff's applications. It was not until December 2022 that the appeal proceedings were dismissed (by consent) whilst, in the meantime, these proceedings were not progressing. In my view, the causes of the significant delay are multi-factorial and cannot all or even primarily be sheeted home to the plaintiff.
The other matter of significance on this review application is that the plaintiff suffers from mental health difficulties. I accepted that when I first fixed the matter for hearing. The Chief Judge at Common Law accepted that. The plaintiff has served evidence to the effect that the conduct of the litigation is exacerbating his mental health.
I confess to being uncertain as to why the plaintiff's mental health is only exacerbated when he is forced to attend hearings before certain judges but that is the effect of the most recent psychiatric report.
I have due regard to the decision of the Registrar to dismiss the proceedings for want of due dispatch based on the evidence before the Registrar. However, I have been presented with quite substantially more extensive material which allows me to determine that the significant delay in the matter - that is, between the commencement of the proceedings in 2019 and the determination of the plaintiff's application for an earlier hearing date in February 2022 by Beech-Jones CJ at CL - could not be considered primarily the fault of the plaintiff. A different view might be taken about the delay between June 2022 and April 2023, but that delay must be considered in the context of the plaintiff's mental health and the decision of Brereton JA to stay the proceedings until the determination of the appeal proceedings.
The defendants have already unsuccessfully sought to dismiss the proceedings and Ierace J rejected that application. Any order I make must be within the dictates of justice - that is, justice to both parties. The orders made by the Registrar would not prevent the plaintiff from commencing new proceedings but there may be a limitation issue raised by the defendants.
The plaintiff has provided an explanation for the extensive delay in the finalisation of these proceedings. He is at fault for some of the delay but not the entire delay. Further the delay in obtaining any up-to-date psychiatric evidence is, in part, caused by the fact that his doctor (Dr Brown) is unwilling to provide any further reports.
In my view, the dictates of justice require that the decision of the Registrar to dismiss the proceedings for want of due dispatch be set aside. Further, the dictates of justice require that the plaintiff be given a further opportunity to progress his case to a timely conclusion.
Although I would normally case manage this matter from this point onwards, the plaintiff has provided a report from 25 October 2023 suggesting that his continued involvement with me would exacerbate his psychological condition. In those circumstances, I will not manage the matter myself but will refer it to Weinstein J for further management, which will involve the allocation of a hearing date as soon as possible and a strict timetable for the finalisation of any outstanding evidence.
In the circumstances, I make the following orders:
1. The decision of the Registrar dated 20 April 2023 is set aside.
2. The proceedings are listed for further case management before Weinstein J on 23 November 2023.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 November 2023