LEICESTER v WALTON

Court of Appeal (NSW)|1995-11-07|Before: Sheller JA, Priestley JA

LEICESTER v WALTON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and COLE JJA 7 November 1995, 22 November 1995

APPEAL against severity of orders of Medical Tribunal - Notice of motion for adjournment - solicitor ceasing to act Pt66 R7 Supreme Court Rules - notice of motion to adduce fresh evidence - costs

It would be grossly unfair for Dr Leicester personally to be required to pay those costs or for the respondent to pay its own costs. Although a fair solution would be for the Medical Defence Union to pay the costs, it is not a party to the proceedings and is therefore not amenable to such an order; Pt52A r4 of the Supreme Court Rules.

To determine whether the Court has jurisdiction to order Mr Pike to pay the costs, one must look to the statute, the rules of the Court and any other Act; Knight v FP Special Assets Ltd (1992) 174 CLR 178. Although Mr Pike failed to comply with the rules, his conduct did not amount to "serious neglect, serious incompetence or serious misconduct"; s76C Supreme Court Act 1970. Further, his inaction did not lead to the incurring of costs which would not have otherwise been incurred; R52A R43. Even if Mr Pike had complied with the Rules, it is difficult to see how an adjournment could have been avoided. There should be no order as to the costs of the application for an adjournment or as to the costs wasted by the adjournment.

(2) On 23 October 1995 Priestley JA stood over the respondent's application to adduce fresh evidence to the hearing of the appeal. This application should be refused. S90(1) of the Medical Practice Act 1992 enables a person to appeal to the Supreme Court against a decision of the Medical Tribunal. There is no reason why the Tribunal should not hear the complaint in the ordinary way. The hearing of this appeal should not be delayed to enable the hearing of the further complaint by the Tribunal.

Priestley, Sheller and Cole JJA This appeal by Dr Robert Barnaby Duncan Leicester against the severity of orders made by the Medical Tribunal on 17 May 1995 was listed and came on for hearing on 7 November 1995 when Dr Leicester through counsel, Mr GF Grinter, who appeared amicus curiae, applied by notice of motion for an adjournment. Dr Leicester's need for an adjournment was brought about by the late withdrawal of the services of his solicitor, Mr Edson Pike, and counsel, Mr Bozic, and his inability in the time available before the hearing to retain other representation.

The notice of motion, which was filed on 3 November 1995, originally came before Sheller JA on 6 November 1995 when it was stood over for hearing by the Full Court on 7 November. Sheller JA reserved the costs of the application before him for consideration by the Full Court.

"1. The respondent is suspended from practising medicine for a period of 6 months from 17 June 1995. Provided that if he satisfies the Medical Board that he has undergone adequate re-training in the recognition and treatment of the drug and alcohol problems the period of suspension may be reduced by the Board to a period of four months.

The respondent devise and undertake a suitable program of self education in the identification and management of the various forms of drug addiction. This program shall include the study of current works and should cover practices and procedures dealing with drug addiction with special concern to the involvement of medical practitioners. The program should include attending relevant conferences and educational programs when available and be submitted to the Registration Committee of the Medical Board in support of any application to reduce his suspension to a period of four months.

On resuming medical practice his practice be limited to working in a group practice of not less than two other medical practitioners or in a hospital, in either case subject to the approval of the Medical Board. Such condition on his right to practice is permanent subject only to review on application to the Medical Tribunal.

That he relinquish his authority to possess and supply Schedule 8 drugs and that he notify the Pharmaceutical Services Board that his right to practise is subject to withdrawal of his right to prescribe Schedule 8 drugs.

That he keep a daily register of his prescriptions of Schedule 4 drugs, in a form to be approved by the Medical Board.

That the respondent maintains proper medical records and accepts random inspections thereof by an officer appointed by the Medical Board.

That the respondent notify all future employers and/or associates of the conditions imposed upon his registration.

That the respondent pay the complainant's costs of these proceedings which are agreed in the sum of $4,776."

On 13 June 1995 an application by Dr Leicester for a stay of the operation of the orders of the Medical Tribunal came before Kirby P, who made the following orders:

"1. Stay the operation of the order of the Medical Tribunal herein, dated 17 May 1995, until the hearing of the appeal or until any further or other order of the Court or of a Judge of Appeal;

Order expedition of the hearing of the appeal (Category C) to the intent that the appeal will be heard within a period of four months;

Dispense with the Rules of Court relating to appeal books to the intent that the appellant will prepare a compilation of papers, with index, in lieu of appeal books;

Order that the stay provided in O.1 be upon the following conditions:

URJ LEICESTER v WALTON (Priestley, Sheller and Cole JJA) 3

Order that the costs of the proceedings before the Court today be costs in the appeal."

Mr Pike acted for Dr Leicester on the application for a stay heard by the President. In his reasons for judgment the President emphasised Dr Leicester's entitlement to appeal and the interests of both the medical practitioner and of the public to have the hearing expedited. The President in effect stayed the order of suspension and did not require Dr Leicester, pending the outcome of the appeaL to relinquish his private practice. Kirby P referred to one of the bases for opposing the grant of the stay, that is to say information conveyed to the Court (although not strictly proved) that since the proceedings, the subject of the appeal, a further complaint had been made of the kind which the Tribunal dealt with in the instant proceedings.

On 23 October 1995 Priestley JA stood over to the hearing of the appeal the respondent's application by notice of motion of 16 October 1995 to adduce fresh evidence at the hearing of the appeal. The further evidence related to another complaint about Dr Leicester's conduct. The respondent asked the Court to deal with that complaint, which has not been dealt with by the Tribunal, on the hearing of the appeal. Dr Leicester opposed the application and Mr Pike put on an affidavit dated 20 October 1995 in support of that opposition.

Dr Leicester, who lives in Gosford, supported his application for an adjournment by an affidavit of 6 November 1995 in which he says that he is a member of the New South Wales Medical Defence Union Limited, which trades as United Medical Defence. United Medical Defence represented him in the proceedings before the Medical Tribunal and he instructed it to lodge the appeal in about May 1995. He says that the United Medical Defence advised him that he had good grounds of appeal. After the orders Kirby P made, appeal papers were filed in Court which show that the solicitor for the appellant was Mr Pike, who is employed by the United Medical Defence to act for, and provide legal advice to, members of that organisation. Dr Leicester says that at about 9 am on Tuesday, 31 October 1995, a week before the date fixed for hearing of this appeal, Mr Pike contacted him by telephone at Gosford and said that United Medical Defence was considering withdrawing support. An appointment was made for Dr Leicester to see Mr Pike. Dr Leicester and his wife drove from Gosford to Crows Nest for an appointment with Mr Pike at about 11.15 am. At that meeting Mr Pike said that United Medical Defence could no longer act for Dr Leicester and that if he wished to proceed with the appeal he would have to get separate legal representation. On | November Dr Leicester, having spoken again to Mr Pike, sent a letter by facsimile to United Medical Defence indicating he did not wish to withdraw his appeal and expressing his disappointment at the decision to withdraw legal representation. He wrote:

"You have advised me today that 'depositions' regarding the appeal must be lodged today. As I am not a legal person, I do not understand what is meant or required by this 'deposition deadline' and will obviously need time to seek legal advice.

Is it possible to have the appeal date deferred so that I might be able to obtain legal assistance?

Could you please advise me regarding this distressing situation as soon as possible, as I really do not know where to tum to for help at this point and may have to present myself unrepresented.

I appreciate that, on Monday, you advised my wife and myself that 'the other side are 'very" vindictive', but surely in law, some sense of business and justice should prevail."

No doubt the reference to "depositions" was a reference to the President's order that written submissions be filed. Dr Leicester was active in his attempts to obtain legal representation. On 2 November he telephoned the Law Society and spoke to its Community Services Branch. The officer from that branch said she was unable to help. He attempted to speak to the President of United Medical Defence. He spoke to a Committee Member. He spoke to Mr Bozic of counsel who told him that he could not appear on his behalf as he was engaged in another case at Westmead Hospital. At about 4 pm on 2 November 1995 he spoke to Mr Grinter who appeared as amicus curiae before Sheller JA and on this application to the Full Court. On 3 November 1995 he received a facsimile transmission from United Medical Defence signed on behalf of Mr Pike advising that he was now unable to act for him in the proceedings and That he intended to file a notice of ceasing to act on that day. Dr Leicester says that he has complied with the orders made by Kirby P and in particular:

"(1) [I have aJ]ttended two medical conferences relating to drug abuse conducted by Professor Ian Webster at Terrigal and the Northside Clinic at Terrigal. Both conferences lasted three hours each.

(2) I have attended Dr John White of The Central Coast Alcohol and Drug Referral and Assessment Centre on about five occasions. I have been given literature by Dr White and have spoken to him about the methadone programme and also regarding drug addiction in general.

(3) I have attended Gary Frost at the Drug Referral Agency at Gosford on two occasions. I have received literature from Mr Frost and I have spoken to him about drug addiction and his method of treatment of drug addicts. I have studied drug addiction extensively with the aid of books, cassette tapes, and medical journals.

(4) [have been examined by Dr Arndt, an executive committee member of the Central Coast Alcohol and Drug Referral and Assessment Centre. Annexed hereto and marked with the letter "'C" is a true copy of the letter dated 26 October 1995 from Dr DF Arndt.

(5) I have seen Dr Ian Chung of Darlinghurst and received counselling from him about the provisions of medication and the treatment of drug addicts."

He annexes a copy of the letter from Dr DF Arndt which is in the following terms:

"T have seen Dr Leicester on several occasions throughout 1995 at my surgery. During these meetings, we discussed issues pertaining to drug addicts, Schedule 8 drugs, abuse of prescription medications, strategies to decline requests for prescriptions on patient demand and ways of detecting dishonest drug seeking behaviour in dependent and addicted patients. I also advised Dr Leicester of all the options available locally for referral, counselling and treatment of drug dependent and addicted patients. As I have been an executive committee member off the Central Coast Alcohol and Drug Referral and Assessment Centre for the past 10 years, I am well aware of the options available and Dr Leicester is now fully informed of these.

During the course of the year I was impressed that Dr Leicester had been studying the subject of drug abuse and addiction and has now attained a more than adequate knowledge of all aspects of the subject."

URJ LEICESTER v WALTON (Priestley, Sheller and Cole JJA) 5

Dr Leicester says that he has not possessed, supplied or prescribed schedule 8 drugs and has complied with 0.4, O.5, 0.6 and O.7 of the Medical Tribunal made on 17 May 1995.

On 6 November 1995 Sheller JA, when standing the application over for hearing before the Court, ordered Mr Pike to file an affidavit explaining the circumstances under which he had purported to have ceased to act for Dr Leicester and the basis upon which he claimed to have complied with the Rules in that regard. In accordance with that order Mr Pie made and filed an affidavit on 7 November 1995. In that affidavit he deposes to the term of his employment by United Medical Defence that he may only provide legal services to members of the organisation if he has been instructed to do so by his employer. On 26 October 1995 he received advice from Mr Bozic in relation to the appeal which he conveyed to the President of United Medical Defence. He was then instructed that he was no longer authorised to continue to act for the appellant. He attempted to communicate by telephone with Dr Leicester and says that he finally spoke to him on 30 October 1995 and informed him of his instructions. He says that the meeting took place on 30 October 1995 when Mr Bozic's advice was discussed and he asked Dr Leicester to take steps to make immediate arrangements for a new solicitor to act for him. He received no further communication from Dr Leicester and on 1 November telephoned him asking him what he intended to do. He says he strongly recommended that Dr Leicester get a new solicitor as a matter of urgency. Mr Pike said to Dr Leicester: "There is obviously preparation to do for the appeal if you do Intend to proceed with it." On 1 November 1995, apparently for the first time, he advised the solicitors for the respondent that he no longer had instructions to undertake the carriage of the appeal. Thereafter he spoke to the solicitors for the Australian Medical Association, Tress Cocks and Maddocks, apparently in an attempt to assist Dr Leicester to obtain other representation. His affidavit continues:

"10. On Thursday, 2 November 1995, while attending proceedings in the Supreme Court of New South Wales in relation to another matter, I repeated the advice referred to in Para8 above to Mr David Swain, a solicitor in the employ of the Respondent to this appeal.

On Friday 3 November 1995 I first became aware that, in addition to advising the Appellant of my instructions in relation to conducting the appeal on his behalf, I was also required under the Rules of this Honourable Court to give him notice in writing of my intention to file a Notice of Ceasing to Act as Solicitor. Immediately on discovering this requirement, I caused to be sent a letter to the Appellant advising of my intention to file such a Notice. The appellant attended my office on Friday 3 November 1995 to collect a number of documents, and the letter to which I refer above accompanied those documents. I also caused to be sent by facsimile to the Appellant a copy of ie said letter. Attached hereto and marked 'A' is a copy of that letter.

On Monday 6 November 1995 a solicitor in my office attended on the Registry of the Court of Appeal to file a Notice of Ceasing to Act as Solicitor. I am told and verily believe that the Notice was not accepted for filing by the Registry as it was not accompanied by proof of when the Notice had been served on the Appellant. Annexed hereto and marked with the letter B' is a copy of that Notice.

I state that, at the time of advising the Appellant that I was unable to continue acting for him in the appeal, I was unaware of the requirements of Pt66 R7 of the Supreme Court Rules. However, I state that on obtaining instructions

that I was to cease to act in the appeal, I took immediate steps to inform the Appellant of this, informing him finally of my instructions in this regard on Monday 30 October 1995. I thereafter took steps to ensure that the Appellant obtained the services of another solicitor if he was to Pursue the Appeal."

"(1) Where a solicitor acts for a party to any proceedings and afterwards ceases to act, the solicitor may, subject to subr(2), file notice of the change and serve the notice on the parties.

(2) A solicitor shall not file or serve notice of a change under subr(1) without leave of the Court unless the solicitor has, not less than seven days before doing so, served on the former client notice of intention to file and serve the notice of change.

(3) A solicitor filing a notice of change under subr(1) shall, except where the notice is filed with the leave of the Court file and serve with the notice an affidavit showing service in compliance with subr(2).

(4) A solicitor may serve a notice under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor."

One purpose of this rule is to prevent solicitors, without the leave of the Court, ceasing to act for a client within less than seven days of notice in writing to the client. Thus situations such as that arising in the present case can be avoided or the consequences ameliorated. Furthermore the rule prevents the "employer" of a solicitor, such as United Medical Defence, requiring its employee to cease to act for a litigant without giving the appropriate notice or obtaining the Court's leave. Mr Pike, as a solicitor, should have been aware of this and advised both United Medical Defence and Dr Leicester accordingly. Having not applied for and obtained the leave of the Court to cease to act, he should, while he remained on the record, have taken steps to ensure that Dr Leicester complied with the Court's orders. While Mr Pike was still his solicitor, Dr Leicester failed to comply with the Court's order to file submissions.

Mr Pike's ignorance of the rules of Court placed him in a difficult position. He was employed by United Medical Defence and was the solicitor on the record for the appellant. He owed duties under his contract of employment and duties as a solicitor to Dr Leicester and to the Court. Quite wrongly he treated his obligation to his employer as overriding. For reasons not adequately explained counsel's advice which seems to have led to Mr Pike's ceasing to act was not received until 26 October 1995. Mr Pike must have been aware that on his application on behalf of his client the orders of the Tribunal had been stayed and the appeal expedited. He must have known that it was in the public interest that the appeal be heard on the date fixed and that his late withdrawal could substantially prejudice Dr Leicester's appeal. His conversation with Dr Leicester makes plain that he was aware that preparation was required and in particular there was a court order for the filing of written submissions which had to be complied with. Mr Pike made some attempt to contact Dr Leicester but not until five days after his employer told him that he was no longer authorised to act for Dr Leicester did he attempt to contact the respondent and not until ten days afterwards did he file a notice in the Court, that is to say one day before the appeal was listed for hearing. All this would suggest either ignorance of or casual indifference to propriety. The evidence points to the former. Mr Pike acknowledges that he failed to comply with the rules of which he says he was unaware. Mr Pike's could scarcely be described as a creditable performance in circumstances which, in the interests of

URJ LEICESTER v WALTON (Priestley, Sheller and Cole JJA) 7

the appellant, the respondent and the Court and in the general public interest, demanded a great deal more competence and diligence.

While Mr Pike's position which followed his employer's late decision to withdraw his authority to act might attract some sympathy, his employer's position attracts none. To make the decision it did when it did without at least ensuring that the matter was brought to the attention of the appellant, the respondent and the Court as a matter of urgency and without authorising its employed solicitor to assist in applying for an adjournment, if alternative representation could not be obtained, on its face appears reprehensible and poor service to a member, whose interests it was there, presumably, to protect.

The question remains what is to be done to overcome the problem the United Medical Defence created, without doing injustice to the parties. The predicament in which Dr Leicester finds himself was not of his doing but of the organisation of which he was a member. Not unnaturally the respondent opposed any adjournment. However counsel for the respondent fairly acknowledged that in the circumstances and on the basis of a continuance of the orders made by the President an adjournment of the appeal was appropriate if not inevitable. The Court made such an order on 7 November 1995. The respondent asked for its costs both of the application for adjournment before Sheller JA and of the day wasted as a result of the adjournment. In the circumstances it would appear to be grossly unfair if Dr Leicester personally was required to pay those costs. On the material before us he has done everything possible to obtain representation at the hearing of the appeal and to comply with the Court's orders. Subject to one matter to which I will return, it would be unfair for the respondent to have to pay its own costs. A fair solution would be that United Medical Defence pay these costs. However it is not a party to the proceedings and, as will appear, not amenable to such an order. The question is whether Mr Pike, as Dr Leicester's solicitor, should be ordered to pay them.

"Subject to this Act and the rules and subject to any other Act -

(b) the Court shall have full power to determine by whom and to what extent costs are to be paid; and

(c) the Court may order costs to be assessed on the basis set out in Division 6 of Pt11 of the Legal Profession Act 1987 or on an indemnity basis."

The Court's power to award costs is now statutory and it is to the statute, to the rules of the Court and to any other Act, that one must look to find the extent of the Court's jurisdiction; Knight v FP Special Assets Ltd (1992) 174 CLR 178. The Court has no inherent jurisdiction in respect of costs beyond this. It is important to note, as Mason CJ and Deane J remarked of s58 of the Queensland Supreme Court Act 1867 in Knight v FP Special Assets Ltd at 183, that the area of operation of s76 necessarily depends upon the scope, as it exists from time to time, of other legislative provisions dealing with the award of costs.

Unrestricted by the terms of any rules, this section would enable the Court to order the United Medical Defence or Mr Pike to pay the respondent's costs. But, the rules of Court dealing with the award of costs in cases governed by s76, have the effect of reducing the scope of the power conferred by that section.

"(1) The Court may, at any stage of any proceedings, make one or more of the following orders in respect of a solicitor whose serious neglect, serious incompetence or serious misconduct delays, or contributes to delaying, those proceedings:

(a) disallow the whole or any part of the costs between the solicitor and his or her client;

(b) direct the solicitor to repay to his or her client the whole or any part of the costs which the client has been ordered to pay to any other party;

(c) direct the solicitor to indemnify any party other than his or her client against the whole or any part of the costs payable by the party indemnified.

(2) The Court may refer the matter to a costs assessor under the Legal Profession Act 1987 for inquiry and report before making such an order.

(3) The Court may order that notice of such an order against a solicitor is to be given to the solicitor's client in a specified manner.

(4) A solicitor is not entitled to demand, recover or accept from his or her client any part of the amount for which the solicitor is directed by the Court to indemnify a party pursuant to such an order.

(5) Nothing in this section limits the generality of s76 or any other provisions of this Act."

We do not regard Mr Pike's conduct as amounting to "serious neglect, serious incompetence or serious misconduct."

Pt52A r4 of the Supreme Court Rules provides, so far as presently material, as follows:

"(1) The powers and discretions of the Court under s76 of the Act (which relates to costs generally) shall be exercised subject to and in accordance with this Part.

(2) Subject to subr(5), the Court shall not, in the exercise of its powers and discretions under s76 of the Act, make any order for costs against a person who is not a party.

(3) Subject to subr(4), a person shall not be made a party for the purpose of making an application for costs against the person.

(a) where the person is otherwise a proper party; or

(b) to a claim for relief against a person under s78 of the Act.

(5) Subr(2) shall not limit the power of the Court to make any order -

(i) is bound by an order made, or judgment given, by the Court in proceedings or is bound by an undertaking given to the Court in proceedings; and

(ii) fails to comply with the order or the judgment or breaches the undertaking, of the whole or any part of the costs of a party to the proceedings occasioned by the failure or the breach;

(6) Save as mentioned in subr(1) to subr(5), this part has effect subject to the Act and to the rules and subject to any other Act."

Subr(2) operates to prohibit the making of any order for costs against United Medical Defence. Subr(5) does not apply.

URJ LEICESTER v WALTON (Priestley, Sheller and Cole JJA) 9

"(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard -

(a) disallow the costs as between the solicitor and the solicitor's client;

(b) direct the solicitor to repay to the client costs which the client has been ordered to pay to any other party; and

(2) Without limiting the generality of subr(1), a solicitor is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor -

(a) to attend in person or by a proper representative;

(b) to file any document which ought to have been filed;

(d) to be prepared with any proper evidence or account; or

(3) The Court may, before making an order under subr(1), refer the matter to a registrar for enquiry and report.

(4) The Court may order that notice of any proceedings or order against a solicitor under this rule shall be given to the solicitor's client in such manner as may be specified in the order under this subrule.

(5) This rule is in addition to an is intended to operate independently of the provisions of s76C of the Act and does not apply in circumstances where s76C of the Act applies."

The Court should not make an order for costs against Mr Pike for the purpose of punishing him or to demonstrate its disfavour of the way he or his employer has acted in this matter. The grounds for making an order against him must be that his action or inaction led to the incurring of costs which would not otherwise have been incurred or the wasting of costs which would not otherwise have been wasted. Mr Pike, so far as appears, was entitled to advise his client that he would no longer act for him. Had Mr Pike complied with Pt66 17 and, after due notice, filed a notice of ceasing to act, it is difficult to see how an adjournment of the appeal could have been avoided. It is unlikely that in the few extra days Dr Leicester would have been able to obtain other representation. He would have been compelled to make the application for adjournment that he did and the application would have been successful with the consequence of wasted costs that follows. Earlier notice to the Court may have resulted in the Court's being able to hear another matter on the day vacated. We do not think in this case that costs could be said to have been insured improperly or without reasonable cause or wasted as the result of any misconduct or default of Mr Pike.

In our opinion the facts do not warrant an order that Mr Pike indemnify any of the parties for the costs of the application before Sheller JA or the costs thrown away as a result of the adjournment of the appeal. The Court has no power to make any order against United Medical Defence.

Mr Grinter informed the Court that in relation to the position of costs in respect of Dr Leicester, Dr Leicester would not be obliged to pay Mr Grinter anything. It appears that Dr Leicester has suffered no additional liability for costs unless he

is ordered to pay the respondent's costs. Mr Grinter's assistance in this matter should not pass unremarked. The Court is grateful to him.

Before deciding what costs orders should be made, we turn to deal with the respondent's application to adduce fresh evidence. The Medical Tribunal is constituted to hear complaints. S90(1) of the Medical Practice Act 1992 enables a person, about whom a complaint is referred to the TribunaL to appeal to the Supreme Court against a decision of the Tribunal with respect to a point of law or the exercise of any power by the Tribunal under Division 4 (Disciplinary Powers of Committees and Tribunal) of Pt4. We would not want to be thought to accept that this Court, hearing an appeal from the Tribunal pursuant to s90(1), can at the same time hear and decide a fresh complaint against a practitioner, which the Tribunal has not dealt with, particularly if the practitioner opposes that course. In the circumstances of this case we see no reason, in any event, why the Tribunal should not hear the complaint in the ordinary way. We do not think that the hearing of this appeal should be delayed to enable the hearing of the further complaint to take place before the Tribunal. If the appeal has not been disposed of before the Tribunal hears the further complaint, no doubt the Tribunal hearing will proceed on the basis that its decision of 17 May 1995 stands undisturbed. On the other hand it may decide to stand its decision over until the appeal is disposed of. These are matters for the Tribunal. In our opinion the respondent's application should be refused and it should pay the appellant's costs of the application.

We come back to consider what costs orders should be made. The respondent has no doubt incurred costs as the result of the application for the adjournment and the loss of the hearing date thrown away. In the course of argument the respondent acknowledged the difficulties its application to adduce fresh evidence raised. The application was made so that this Court, in determining this appeal, would be apprised of the other complaint and could decide it. If the other complaint was made out, it would be a matter the Court could take into account in considering the severity of the orders the Medical Tribunal had made. Consistent with this view would be the view that if the complaint could not be decided by this Court but should go to the Tribunal, the hearing of the appeal should await the decision of the Tribunal. We do not consider that the hearing of the appeal should await the outcome of any further Tribunal hearing. Nor did the respondent press us to adopt this course. It opposed any adjournment while at the same time recognising the realities of the situation which had developed with Dr Leicester's loss of representation. However the application to adduce fresh evidence added a complication to the appeal in terms of its preparation by the appellant, a complication which, in our opinion, should not have been caused. Accordingly, in the exceptional circumstances of this case, we do not consider it appropriate to order Dr Leicester to pay the respondent's costs. In our opinion there should be no order as to the costs of the application for an adjournment or as to the costs wasted by the adjournment.

The orders of the Court made on 7 November 1995 and today, are:

Respondent's notice of motion of 16 October 1995 dismissed with costs;

Appeal referred back to the Registrar to fix a further date for hearing by this Court;

No order as to the costs of the application for adjournment and wasted by vacation of the hearing date for the appeal.

Respondent's notice of motion of 16 October 1995 dismissed with costs;

URJ LEICESTER v WALTON (Priestley, Sheller and Cole JJA) 11

Hearing of the appeal adjourned; Appeal referred back to the Registrar to fix a further date for hearing by this Court;

No order as to the costs of the application for adjournment and wasted 5 by vacation of the hearing date for the appeal.

Appellant: GF Grinter (Amicus curiae) 10 Respondent: LA Levy

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