Odlum v Stephen Friend t/as Friend & Co Lawyers and anor

Ms Odlum's belated motion

1. The matter has a difficult procedural history, having finally been case managed by Bellew J, who made various orders about the preparation of the matter for hearing. They included orders as to evidence and the preparation of a court book, as well as orders that after July 2021 Ms Odlum could not rely on further evidence, without leave of the Court and that the parties were to file affidavits of readiness by 29 October.
2. Ms Odlum filed affidavits which both she and her mother had sworn, including an affidavit in reply to affidavits sworn by Mr Friend and Mr Paterson. The court book filed contained 11 volumes of documents. The defendants also filed affidavits of readiness, but in her 18 October 2021 affidavit Ms Odlum complained that she was not ready to proceed.
3. The reasons Ms Odlum there gave included complaints about the court book compiled by the defendants in compliance with Bellew J's various orders; reasons why she had not complied with various orders, which included that she no longer had pro bono legal assistance; that her former pro bono lawyers had not complied with her instructions; that she required pro bono assistance; that not all evidence she required had been included in the court book; that she had been the victim of psychological manipulation, the other party's lawyers taking advantage of her disability; that she required advice from experts/valuers, in order to quantify her loss; that she struggled to comply with timetables fixed; that her computer had been tampered with and hacked; that there had been no agreement about an order for hearing of witnesses; that she wished to lead further evidence; that she was dissatisfied with orders Bellew J had made; that she was also dissatisfied with responses to subpoenas; and that she needed more time to consider the court book and to provide an amended chronology of dates and times.
4. Ms Odlum also sought to have the Court provide her with a USB "known not to be infected".
5. Ms Odlum had raised similar concerns before Bellew J. On 15 October 2021, his Honour informed her that the hearing would proceed on the nominated date, on the electronic court book prepared by the defendants in accordance with his directions and that if she wished to raise at trial that it contained falsified evidence, that was a matter for her. She was then ordered to provide an address for service of a USB containing the court book, having advanced ongoing complaints about interference with her computer, which she complained had resulted in her being unable to properly access the electronic court book.
6. On 23 September, Bellew J reminded Ms Odlum that she had to make proper applications to the Court, for any order which she sought. His Honour then made final directions for preparation of the court book. She then again raised her concerns that documents had been deleted from her computer and that the defendants had been engaging in "espionage" and had inserted false evidence in the court book. That was denied.
7. His Honour then made further orders, warning Ms Odlum that if there were continuing defaults in her compliance with them, the Court could exercise its power to dismiss the proceedings. He also said that he did not propose to conduct a witch hunt into an unsubstantiated allegation of legal practitioners tampering with Ms Odlum's computer, when that had been denied.
8. Despite his Honour's orders, Ms Odlum did not provide a list of documents and copies of documents which she wished to have included in the court book by 30 September. Nor did she serve any objections to evidence, required to be served by 22 October. Nor did she apply for leave to serve any further evidence, nor provide an address for service. Even when that was pursued by telephone, so that a hard copy of the court book, which had not been ordered to be served, could be provided to her, given her ongoing complaints about accessing the electronic court book, she refused to provide an address at which it could be served upon her.
9. On the day before the hearing, in response to a communication received by my associate from Ms Odlum advising that she would be unable to appear at the hearing in person, that she would participate by telephone and that she was not ready to proceed with the hearing, she was informed that if she wished to pursue an adjournment application, it had to be made in the usual way, by motion supported by an affidavit.
10. On the morning of the hearing, Ms Odlum sent my associate a motion seeking the adjournment of the hearing and appointment of a barrister to legally represent her, as well as an affidavit and application for the postponement of the fee payable on filing a motion. Despite having been advised not to communicate with the Court without copying the other parties into her communications, Ms Odlum did not serve these documents on the other parties.
11. Despite this her motion was heard without objection at the commencement of the hearing. The orders which Ms Odlum sought were, however, opposed and finally refused.
12. These are the reasons for those conclusions.

Legal representation

1. The Court does not have power to appoint a barrister to represent Ms Odlum and thus she pressed her application on the basis of a further referral for pro bono legal assistance, under the Rules.
2. I was satisfied that no just basis was established for such a referral and that Ms Odlum had not satisfied the requirements of the Rules, which regulate such an application.
3. Ms Odlum had received pro bono assistance after she commenced the proceedings, following referrals by Hulme and Rothman JJ, with the result that she was at times represented. But her applications for a further referral failed, in circumstances where Bellew J concluded that she had not accepted legal advice which she had earlier been given: Odlum v Friend and Anor [2021] NSWSC 577 at [11] and [16].
4. Bellew J there noted the case which Ms Odlum advanced for a third referral, relying on her financial straits and unfamiliarity with the Court's processes. Her application was opposed, given its likely impact on the hearing date in November: at [21]. Bellew J also considered the requirements of r 7.36 of the Uniform Civil Procedure Rules 2005 (NSW), which necessitates special reasons being established for a further referral.
5. While accepting the difficulty of Ms Odlum's position, his Honour was not satisfied that such reasons had been established: at [28]. He also took the view that the Court had to ensure, as far as it could, that the hearing fixed proceeded on the scheduled date and as a result, retained the matter for case management.
6. On this further application it had to be taken into account that pro bono legal resources are scarce and that Ms Odlum's complaints about how her former representatives had not complied with her instructions, a complaint which she also advanced against the defendants in these proceedings, did not provide a basis for any confidence that a further referral was likely to result in such a retainer being accepted. Or if it was, Ms Odlum's continued legal representation at any adjourned hearing.
7. Ms Odlum's view was that it was not fair that she was unrepresented in the proceedings which she has brought, when the other parties were legally represented; that she did not consider herself to have the capacity to adequately represent herself; and that she had never envisaged that she might have to. This was, of itself, not a proper basis for any further referral, nor could it establish the necessary special reasons for such a referral.
8. Ms Odlum no doubt took a risk in bringing the proceedings in circumstances where she could not finance legal representation, but unfortunately, many litigants find themselves in that difficult position. Nothing which she advanced established that her circumstances had altered in any relevant way, since her last application for referral for pro bono assistance was refused.
9. Ms Odlum was aware from the directions hearings before Bellew J of what she had to do by way of preparation for the hearing. That required her to comply with the orders which bound her and if she wished to revisit those orders, or seek further orders, she had to make a timely application to move the Court, in the usual way, by motion supported by affidavit.
10. In the result, given her very late application for a further referral and the adjournment which it would necessitate, if granted, I was satisfied that this further application for referral again had to be refused.

Adjournment

1. I was also satisfied that justice could not permit Ms Odlum's belated adjournment application to be granted.
2. These proceedings concern events which occurred in 2011. The hearing was fixed in 2020, providing adequate time for the necessary preparation to be undertaken. Ms Odlum had the benefit of not being required to produce the court books, which ordinarily plaintiffs are required to produce and still she did not comply with orders directed at addressing the problems which she raised for Bellew J to deal with, about the contents of the court book.
3. Ms Odlum did not even comply with the order made to assist her, given her complaints about her computer problems, to provide an address at which a USB could be served, not even when the defendants sought to provide her with a physical copy of the court book.
4. Her suspicions about the defendant's legal representatives provided no just basis for her failure to comply with that order. Nor had she attempted to make other arrangements, so that she could obtain the court book she knew she required for the hearing. Even when, during the course of the hearing of her motion, the defendants offered to have the court book delivered to an address which she provided to the Court, with an adjournment until the following day, she refused to provide an address.
5. Ms Odlum had also not complied with other orders. Nor had she even made the application which she knew was necessary, for the leave which she required, if she wished to lead even further evidence.
6. Ms Odlum also complained about having been served with an email identifying what the defendants understood lay in issue between the parties. But that was a document I had required she be provided, assisting as it would both her and the Court to restrict what she had to address at the hearing, to what was truly in issue between the parties and had to be resolved by the Court. That had been complied with by the defendants, as the obligations imposed by s 56 of the Civil Procedure Act 2005 (NSW) required. By way of contrast, Ms Odlum did not attempt to comply with the obligations which that provision imposed on her.
7. Ms Odlum's affidavit referred to her health problems and various medical advice which she had sought. But her application was only supported by a medical certificate of 22 October from the Women's Health Centre Ltd, which indicated that she suffered from anxiety and depression and was involved in a stressful court case. So much could be accepted, but that did not explain Ms Odlum's ongoing failures to comply with the Court's orders, or her very belated adjournment application.
8. That application had to be determined in light of s 56 of the Civil Procedure Act, which specifies the overriding purpose of the Act and Uniform Civil Procedure Rules to be facilitating the just, quick and cheap resolution of the real issues in the proceedings: s 56(1). The Court is obliged to give effect to that purpose when exercising its powers and the parties are also under a duty to assist the Court in doing so: s 56(2) and (3).
9. Attention also had to be paid to the need to eliminate delay and the proportionality of costs: ss 59 and 60. As well as the obligation to act in accordance with what the dictates of justice require: s 58. That required attention to be paid to the objects of case management specified in s 57 to be the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.
10. Section 58(2) also required attention to be paid to matters such as the degree of difficulty or complexity to which the issues in the proceedings gave rise; the degree of expedition with which the parties had approached the proceedings, including the degree to which they have been timely in their interlocutory activities; the degree to which any lack of expedition had arisen from circumstances beyond the control of the parties; the degree to which the respective parties had fulfilled their duties; and the degree of injustice that would be suffered by the respective parties, as a consequence of any order made. These considerations did not support the grant of the adjournment application.
11. In the circumstances, while it was not disputed that the issues raised by Ms Odlum's application were complex and the fact that Ms Odlum was unrepresented was undoubtedly difficult for her, both matters which had to be taken into account, I was satisfied that they could not justly be determinative of the disputed adjournment application.
12. That Ms Odlum was suffering stress and anxiety as the result of the burdens which the litigation she was pursuing imposed on her was also understandable, but the interests of justice also necessitated consideration being given to the defendants' position, as the result of her conduct of the proceedings she initiated, but has not properly pursued. They concern events which occurred in 2011. Given her repeated failures to adhere to the Court's orders, importantly even as to the provision of an address at which the physical court book could be served upon her and that even though she had been warned that this could lead to the proceedings being dismissed, Ms Odlum still did not adhere to those orders, despite not seeking to challenge them.
13. Ms Odlum's failure either to make a timely adjournment application, or even to serve it as she knew she was obliged to do when it was belatedly made reinforced the conclusion that the adjournment which she sought could not justly be granted.
14. Given all that I have discussed, I also concluded that there was simply no basis on which there could be any confidence that even after any adjournment, that Ms Odlum would adhere to the Court's orders.
15. Accordingly, her motion had to be dismissed.
16. Despite these conclusions the hearing was adjourned after a short adjournment, during which Ms Odlum was invited to consider whether and how she wished to proceed to present her case. She had indicated that she did wish to proceed, but was so distressed on resumption by the refusal of her applications, that by consent the hearing was adjourned until the following day, when, I informed her, she would have to proceed, if she wished to press her case.

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