EDELMAN J:
1 The first of these two concurrent proceedings was commenced on 28 May 2012. They involved claims against a corporation, Elliott Harvey Securities Ltd, and four of its directors. The proceedings have been beset by extraordinary delay. When the proceedings came into my docket on 30 April 2015, the parties undertook to move the matter to trial as soon as possible. However, confusion still ensued. At one point, prior to a mediation, concerns were raised by one respondent that the solicitors for the applicants were unaware that one or more of their clients had deceased. A number of the applicants have subsequently discontinued their actions. The primary respondent, Elliott Harvey Securities Ltd, also went into liquidation and, after a further delay (presumably to obtain instructions from all the applicants) the proceedings against it were discontinued. One of the directors also became bankrupt. After a delay, the proceedings against him were also discontinued. Then on 13 May 2016, four years after commencing these proceedings, the applicants' solicitors brought an application to inspect documents held by the liquidator of Elliott Harvey Securities Ltd. The application involved questions of legal professional privilege.
2 The extant proceedings are now against the three former directors of Elliott Harvey Securities Ltd, two of whom are unrepresented. One of the directors, Mr Birt, about whom these reasons are concerned, has apparently been issued with a bankruptcy notice.
3 The proceedings have been streamlined, extremely efficiently, by new counsel for the applicants (who was briefed in 2016). The total claim (excluding interest) of the nearly 30 applicants is for $3.28 million. The claims involve allegations of being "knowingly concerned in and assisting" various misleading or deceptive representations made by Elliott Harvey Securities Ltd, and allegations of being knowingly concerned in and assisting, or being an accessory to, breaches of trust and fiduciary obligation which were part of a dishonest and fraudulent design.
4 The proceedings were set down for trial on 20 May 2016. They were listed for a 10 day trial commencing 12 September 2016. However, on 24 May 2016, one of the three remaining respondents, Mr Birt, suffered a stroke. On 30 May 2016, the Director of Stroke and Neurology at his treating hospital provided a letter to the Court explaining that Mr Birt would not be able to attend legal proceedings for at least the next month. Mr Birt filed submissions, supported by a medical certificate, in which he described the threat that the trial presented to his health. His treating neurologist explained that his ability to argue or cross-examine witnesses is severely limited and that the stress of a trial may be further detrimental to his health. In a letter which Mr Birt sent to the Court on 16 June 2016, he described the two pages as having "taken almost 12 hours and over 3 days to write this to you and it has been used as part of therapy to assist in my recovery".
5 These matters were raised with all the parties at a directions hearing (other than Mr Birt who was, of course, absent). All options were explored with the parties for preservation of the trial dates. The position of the applicants was, and remains, that the trial should proceed on 12 September 2016 against all three respondents, but in the absence of Mr Birt. I raised with the applicants the prospect of the trial being relisted several months later between 5 and 16 December 2016. All parties, and counsel, are available on those dates (with the exception of Mr Birt whose health remains uncertain). But the applicants nevertheless oppose any adjournment of the trial.
6 On 15 July 2016, all parties (with the exception of Mr Birt, who did not appear) consented to this application being determined on the papers. This was an appropriate course, particularly in circumstances in which Mr Birt would have been unable to appear at the interlocutory hearing and make any oral submissions.
7 The applicants essentially make five points in opposition to any adjournment of the trial.
8 First, the applicants assert that they are people who have suffered significant financial loss and, in many cases, consequential hardship in their later years of life. Their submissions assert that an "adjournment of the trial offers [the applicants] more prejudice than most". It is very difficult to accept the submission by the applicants that their prejudice is greater than that of Mr Birt. Their prejudice arises from a three month adjournment of proceedings which their solicitors have not progressed to trial for four years. I accept that this is real prejudice. But the prejudice to Mr Birt, an unrepresented litigant, would be that a trial involving a substantial sum of money and allegations of dishonesty would proceed against him in his absence.
9 It is relevant that the four years of delay in these proceedings cannot be attributed to the respondents. The allegations of dishonesty which are now at the heart of the trial were only introduced after a directions hearing on 4 May 2015 after I raised concern about the plea of knowing assistance of a breach of trust. The following exchange took place with counsel for the applicants (who is not the currently instructed counsel):
HIS HONOUR: … one of my concerns is I don't even know if there is a dishonesty case. You said you were going to consider over the next period of time whether you were going to plead a dishonest and fraudulent scheme. Well, that completely affects the complexion of the trial if after three years all of a sudden there's going to be a new plea of dishonesty and fraud introduced.
COUNSEL: I accept that, your Honour.
HIS HONOUR: These are matters which will, I think, drastically affect the case and the management of the case.
The recent application for discovery and inspection by the applicants also took many months to progress, and it was only formally brought when the new (and current) counsel was instructed. Even as late as 29 April 2016, the (then) legal representative for the applicants sought (but was refused) a two month adjournment of the proceedings simply to brief new counsel.
10 Secondly, the applicants submit that Mr Birt has never expressly asked for an adjournment of the trial and an application for an adjournment is not implicit in his submissions. I accept this submission. Some of Mr Birt's submissions may also be disrespectful or unnecessary. However, it is plain from Mr Birt's submissions and his medical certificate that he, and his doctors, do not presently see him as being fit to conduct his defence. The Court, particularly in the case of an unrepresented respondent who is medically incapacitated and absent, has a responsibility to ensure that the proceedings are conducted justly. Rule 1.32 of the Federal Court Rules 2011 (Cth) provides that the "Court may make any order that the Court considers appropriate in the interests of justice."
11 Thirdly, the applicants submit that the "Court is bound by section s 37M of the Federal Court of Australia Act 1976 (Cth) to facilitate the just disposition of disputes according to law as quickly, inexpensively and efficiently as possible". The applicants assert that this gives the applicants a "prima facie entitlement to disposition of their claims in the ordinary course of the business of the Court", relying upon (and selectively quoting from) an authority which is concerned with a stay of civil proceedings when criminal proceedings are pending: Apotex Pty Ltd v Les Laboratoires Servier (No 6) [2012] FCA 745 [9] (Bennett J). There is no doubt that considerations of speed, expense, and efficiency are extremely important in the resolution of disputes. But the resolution to which s 37M refers is a "just" disposition. I have referred already to matters relevant to the just determination of the listing of this trial including the delays which have been attributable to the applicants' solicitors and whether it is just that the trial should proceed as scheduled against a defendant whose medical condition prevents him from adequately defending himself in a trial involving a large claim and including allegations involving dishonesty.
12 Fourthly, the applicants submit that Mr Birt's medical condition may be permanent rather than temporary. That may turn out to be the case. If so, then a further assessment will need to take place by the Court concerning the manner in which any proceeding should continue against Mr Birt who is medically unable to defend himself. But I am not currently satisfied that his condition means that he will be permanently unable to defend himself. On 30 May 2016, his treating neurologist referred to him not being "expected to attend any further legal proceedings for at least the next month" saying that his fitness for further legal proceedings would be determined by ongoing neuropsychological assessments.
13 On 18 July 2016, his doctor wrote the following:
[Mr Birt] has suffered from a Ischaemic Stroke involving the territory of the Left Middle Cerebral Artery, the likely cause of the event is Hypertensive Microangiopathy.
This has left him with difficulty with word finding and cognitive and expressive dysfunction. These difficulties mean it is unlikely he would be able to participate in any meaningful way in discussion related to his Court Proceedings.
His ability to bring cogent argument and relevant interrogation of Witness' is severely limited and is most likely to remains [sic] so for the foreseeable future.
Further Hypertension related to Stressors involved in his Proceeding may [be] further detrimental to his health.
14 It is unnecessary to attempt to deconstruct what the "foreseeable future" means for Mr Birt's condition. Nor is it necessary to consider the extent to which the 30 May 2016 letter offers possible hope for recovery. It is enough to say that these issues can be revisited in a couple of months after Mr Birt has had time and space to convalesce.
15 Fifthly, the applicants submit that adjourning trial dates will waste the resources of the Court. That submission is incorrect. The manner in which I have listed matters in my docket has ensured that no other party could be prejudiced by the adjournment of this trial. All of the trial dates occupied by this matter in September, and more, can be filled by another trial in my docket and no other judge could be required to hear these proceedings.
16 Nor will the adjournment of this trial lead to wasted time for the parties. There is currently a resumed mediation on foot between the parties, and the applicants are still inspecting documents held by the liquidator of Elliott Harvey Securities Ltd with privilege issues still being resolved.
17 For these reasons the appropriate order is that order 4 of the orders of the Court dated 20 May 2016 be vacated and, in its place, it be ordered that these proceedings be listed for a trial of ten days commencing on 5 December 2016. Consequential directions will also be made.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edelman.