Lorenzato, A.A. v N. Lorenzato & Anor

Plaintiff's application to vacate hearing date 1These proceedings are listed for five days commencing on 11 July 2011. 2The plaintiff, Angele Assad Lorenzato (who I will refer to, without any disrespect, as Angele) seeks orders, inter alia, that the first defendant, Nadia Lorenzato (who I will refer to, also without any disrespect, as Nadia) specifically perform the provisions of a Deed of Settlement and Release dated 28 March 2008 (which I will refer to as the March Deed) and orders concerning several properties. The plaintiff also seeks a declaration that the second defendant (who I will refer to, also without disrespect, as Elio) had the mental capacity to enter into the March Deed. Nadia, by cross claim, seeks declarations that Elio did not have the mental capacity to enter into the March Deed and orders that the March Deed be set aside on various grounds. 3Angele relies on her affidavit sworn 20 August 2010. Nadia relies on her affidavit sworn 3 November 2010, the affidavit of Nabil Minaway sworn 19 November 2010 and a report of Dr Dowla dated 30 October 2010. Elio appears in the proceedings by the NSW Trustee & Guardian which has advised the parties that it will tender and rely on no medical evidence in the proceedings. 4Angele moved by a motion to seek to vacate the hearing date of the proceedings. Angele, by her counsel, advised that that order was sought in order to allow her an opportunity to seek to lead expert evidence from two medical practitioners who had previously examined Elio and counsel and solicitor who had previously represented Elio. It appears from a letter written by one of those medical practitioners which was in evidence on the motion that such evidence may be of significance in respect of the issue of capacity which is raised in the proceedings. 5The application to vacate the hearing date was strongly opposed by Nadia and the NSW Trustee & Guardian also pointed to the importance of bringing the matter to finality. 6Angele's application was supported by an affidavit by her solicitor in the proceedings sworn 7 July 2011. The solicitor was not cross examined. Angele confirmed, by her counsel, that she would take no Browne v Dunn point as to that matter. Counsel for Angele also confirmed that the solicitor did not require submissions which were to be put by Nadia first to be put to her in cross examination as a matter of fairness to her. It must nonetheless be borne in mind that the solicitor has not had an opportunity to respond directly to the matters that were put in Nadia's submissions. 7The solicitor's evidence in her affidavit sworn 7 July 2011 was, in substance, that: (a) the NSW Trustee & Guardian, at one point, objected to her directly contacting the former solicitor for Elio; (b) the solicitor assumed that that objection extended to Elio's former counsel and doctors; (c) the solicitor assumed, from the defence filed by Elio in the proceedings, that Elio's mental capacity was admitted; (d) the solicitor assumed that the NSW Trustee & Guardian would arrange for Elio's former doctors to be available for cross examination and would arrange for the evidence of Elio's former solicitor and counsel to be put to the Court; and (e) her instructions from her client to retain counsel were not complete until 1 July 2011. 8Mr S. Ahmed, who appears for Nadia, points, in his very able submissions, to several difficulties with the assumptions made by the solicitor. First, there is no property in a witness and there was no prohibition on the solicitor contacting the doctors and former legal representatives of Elio at an earlier point. (I note that it must be recognised, in fairness to the solicitor, that the issue of legal professional privilege and doctor/patient confidentiality would have raised complexities which may or may not have been able to be resolved with the cooperation of the NSW Trustee & Guardian, which has not yet been sought.) Second, there is difficulty with the solicitor's assumption that the NSW Trustee & Guardian would call evidence from Elio's former doctors and legal representatives, at least after 31 January 2011 when such evidence was required to have been filed and had not been filed. There is also a difficulty with the solicitor's assumption that Elio's mental capacity was admitted, since Nadia's cross claim sought a declaration that he lacked capacity. Mr Zucker, who appeared for the NSW Trustee & Guardian, also pointed out that there was no evidence of any request to it as to waiver of legal professional privilege or release of Elio's doctors from obligations of confidentiality. 9On the other hand, and in fairness to the solicitor, her position would have been made more difficult by the fact that, on her evidence, her instructions to retain counsel were not complete until last Friday, 1 July, a little more than a week before the hearing commenced. 10Mr Ahmed draws my attention to the High Court's decision in AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, where the High Court, in the context of an amendment application, emphasised the effect of delay upon the opposing party and the fact that a costs order should not be treated as an automatic solution to problems created by failures to conform with the objectives of case management. That decision also drew attention to the fact that justice cannot always be measured in money and a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, and recognises that such strain is of greater significance for personal litigants than for business corporations or commercial persons. 11Mr Ahmed also emphasised several areas of prejudice to Nadia if the hearing was vacated, including stress arising from the personal character of the proceedings and the risk that Elio, who is 80 years old and in poor health, would pass before the proceedings are resolved. 12As I noted above, the NSW Trustee & Guardian also pointed to the interest in an early resolution of the matter. 13In this situation, I must exercise my discretion in difficult circumstances, and with reference to the overriding purpose in the Civil Procedure Act 2005 (NSW) s 56 of facilitating the just, quick and cheap resolution of the real issues in dispute in these proceedings. Any decision in a matter of this kind will depend entirely on its own facts and on a weighing of the detriments which may be attached to the alternative courses of action. 14I accept that the situation which now arises is not of Nadia's making, that there is a real interest in the early resolution of this matter, and that Nadia will suffer additional stress, as indeed will Angele, from a delay in the resolution of the matter. I also accept that it is plainly not in the public interest that matters be vacated shortly before the hearing date if counsel is only then briefed in the matter and identifies deficiencies in one party's evidence. I give significant weight to those matters. However, I need also give substantial weight to the interests of justice, which, in my view, would not be served if this matter was decided without access to potentially significant evidence, however that situation arose. 15I also take into account the fact that the detriment to Nadia arising from vacating the hearing date can be mitigated in two respects: first, by making orders to protect her and the NSW Trustee & Guardian in respect of the costs thrown away and, second, by case managing this matter, with a view to listing it for a hearing later this year if it is possible to do so. 16In these circumstances I will order that the hearing of this matter presently set to commence on 11 July 2011 be vacated. 17Mr Ahmed submitted that, if I reached that result, I should order that the plaintiff pay the defendants' costs thrown away by vacating the hearing, and of and incidental to this application on an indemnity basis payable forthwith, as agreed or assessed. 18I consider that I should make an order for costs thrown away and the costs of and incidental to this application to be paid by Angele on an ordinary basis, because that order is necessary to mitigate the detriment which Nadia and the NSW Trustee & Guardian would otherwise suffer by reason of the vacation of the hearing date. I do not make that order on an indemnity basis in the circumstances. The question of who should ultimately bear those costs as between Angele and her solicitor is not before me and could not properly be determined without evidence which is also not before me, possibly including evidence which would currently be subject to legal professional privilege and evidence as to how the result arose that counsel was not briefed until about a week before the hearing. 19As I noted above, Mr Ahmed sought an order that costs be payable forthwith. I will not make that order without allowing the parties a further opportunity to make submissions as to the authorities dealing with the circumstances in which such an order should be made. I can deal with an application for such an order at the next directions hearing in the matter, which will be listed before me, if that order is pressed. 20Mr Ahmed also sought orders that, if costs were not agreed and were to be assessed, that be done by a nominated costs assessor and the assessed costs be paid by 29 July; and if the assessed costs were not paid by that date, the defendants be entitled to apply for orders dismissing the statement of claim and giving a verdict for the defendants on the amended cross claim. I do not propose to make those orders, although I note that the defendants are free to bring an application for an order for costs as a specified gross sum under s 98 of the Civil Procedure Act , if so advised. 21I propose to list the matter for directions on a date in the second half of next week, with a view to fixing a timetable to bring the matter to a point that it will be ready for hearing late this year. 22I should also indicate to the parties that, subject to any further submissions which they may wish to make, I would be disposed to make an order under s 26 of the Civil Procedure Act that a mediation be undertaken by a mediator either agreed by the parties or appointed by the Court and this matter will need to be addressed at the next directions hearing in the matter. 23For these reasons, I order: (1) The hearing of these proceedings fixed before me for five days commencing on 11 July 2011 be vacated. (2) The plaintiff pay the defendants' costs thrown away by vacating the hearing and of and incidental to this application, as agreed or as assessed. (3) I vacate the subpoena which has been issued to Mr Ziade, requiring him to give evidence in these proceedings on Wednesday of next week.