Peter James Spencer v Wayne Dennis Bamber & Ors

Judgment 1Application is made before me by the plaintiff ("Mr Spencer") to vacate a hearing date in this matter which is listed for two days commencing today. That listing has been in place since June 2011. That application was initially made before the duty judge, Gzell J, on 18 October 2011 and his Honour stood that matter over for determination before me today, in circumstances that the evidence before him was insufficient to allow the matter to be determined before him. The parties have agreed that the affidavits which were read before Gzell J should be taken as read before me and the witnesses who gave such evidence were not required for cross-examination. A further affidavit was read before me this morning to which I will refer below, and was supplemented by oral evidence. 2Various grounds were put before Justice Gzell and before me in support of the application to vacate the hearing date. The first was that counsel who was appearing pro bono for Mr Spencer in the matter was presently overseas in a commercial case and that counsel who appears today, also pro bono, was only available today and not for the continuance of the hearing tomorrow. While counsel who provide pro bono services provide a substantial benefit to the community, fairness to the defendants in matters before the Court and the public interest in the efficient administration of justice requires difficulties as to their availability to be treated in the same manner as difficulties with the availability of counsel who are paid for their work, and I would not regard the unavailability of particular counsel as providing a basis to vacate the hearing date of a matter that had been listed for several months. 3The second basis on which the application to vacate the hearing date is put relates to Mr Spencer's present medical condition. In this regard, Mr Spencer relies on two affidavits of the solicitor handling the matter for him, Mr Kramer, dated 18 October 2011 and a third affidavit dated 19 October 2011 which was read before me this morning and supplemented by oral evidence. Mr Kramer's affidavits indicate that Mr Spencer has suffered a heart attack or a series of heart attacks over the weekend and was admitted to hospital. Mr Kramer's third affidavit annexed a letter provided by Dr Manish Patel dated 18 October 2011 which was not admitted into evidence since it did not provide any reasoning to indicate the basis on which Dr Patel had expressed the conclusions contained in it or to allow those conclusions to be tested. Nonetheless, there is evidence that Mr Spencer's condition over the weekend was sufficiently serious to require his transfer from Hawkesbury Hospital to Nepean Hospital. There is no evidence before me as to whether Mr Spencer still in hospital or as to the present constraints on his activities arising from the heart attack(s). 4Mr Kramer also gave evidence that Mr Spencer has not been able to meet with Mr Kramer and counsel this week because of his medical condition but no explanation has been provided as to why such conferences had not occurred at any prior date. Again, I would have regarded that matter as sufficient to warrant vacating the hearing date. 5The defendants rely on the affidavit of Carolyn Hagedoorn sworn 14 October 2011 and the affidavit of Deneva Bamber sworn 17 October 2011. It appears that Ms Hagedoorn, who is a witness in the matter and is also the solicitor instructing counsel for the defendants, is herself to have surgery on 21 November 2011 which would require a week in hospital, a further two to three weeks to recuperate and that her voice will be affected for several weeks thereafter and that she cannot defer the surgery to the New Year. However, Ms Hagedoorn, through counsel who appears for the defendants, has indicated she should be able to defer her surgery to permit an early hearing date if the matter must be vacated today. 6The defendants also rely on the affidavit of Mrs Bamber sworn 17 October 2011. That affidavit discloses that this matter has a long history and that Mr and Mrs Bamber are suffering extraordinary hardship (and I do not use that phrase lightly) arising from their loan made to Mr Spencer in 2003, the fact that loan has not been repaid, the subsequent events and the subsequent proceedings. 7The application to vacate the hearing date today needs to be determined by reference to sections 56-59 of the Civil Procedure Act 2005 (NSW). The Court must, by s 56, have regard to the overriding purpose, being the just, quick and cheap resolution of the real issues in the proceedings. Section 57 deals with the process of case management and requires the practice and procedure of the Court to be regulated to ensure the attainment of the objects specified in the section, including the just determination of the proceedings, the efficient disposal of the Court's business, the efficient use of available judicial and administrative resources, and the timely disposal of the proceedings and all other proceedings in the Court at an affordable cost. Section 58 requires the Court, in dealing with amendments, to seek to act in accordance with the dictates of justice. 8There is no doubt in my mind that this matter is urgent, that it requires an early hearing date and that the defendants will suffer hardship as a result of my vacating the hearing date today. Having said that, it seems to me that there are significant practical problems with proceeding to a hearing today. There is an issue as to whether Mr Spencer's affidavits could be read, where he is not available for cross-examination and, if those affidavits cannot be read, he would be shut out of the opportunity to have his case determined on the merits. 9The defendants have also tendered, without objection, correspondence between Mr Spencer and his former solicitor produced on subpoena which raises the possibility that Mr Spencer had in fact been provided, by his former solicitor, with a copy of the Notice of Intention to Foreclose which had been served on that solicitor and had received that notice prior to the plaintiff's application to the Registrar-General for foreclosure made on 22 June 2010 and the order for foreclosure made by the Registrar-General on 16 July 2010. If that matter is established at a final hearing it may (and I express no final view as to this matter) have a significant impact on the outcome of the final hearing. In particular, the questions which arise in respect of substituted service in the proceedings may be displaced by evidence of actual service upon the plaintiff of the Notice of Intention to Foreclose, albeit that such service had occurred in an informal manner and through Mr Spencer's former solicitor sending the notice to him. Further, the fact (if it be the fact) of actual service of the Notice of Intention to Foreclose on Mr Spencer may be a matter that is significant to the exercise of the Court's discretion whether to interfere with the orders for substituted service of the effect of the Notice of Intention to Foreclose if there were any non-disclosure of matters in the ex parte application which led to the making of those orders. 10However, the potential significance of this evidence increases rather than decreases the practical difficulty of proceeding with the hearing today. Mr Spencer would not have had an opportunity to respond to this evidence, in circumstances that he is not present in Court and the evidence of his heart attack(s), although incomplete, provides an explanation for his absence. The defendants would also not have an opportunity to put this evidence to Mr Spencer in cross-examination and seek his response to it and that matter may in turn constrain the defendants' ability to rely on that evidence in final submissions. 11In these circumstances it seems to me that it is practically impossible to proceed to a hearing before me today, and the defendants ultimately accepted that position in the course of submissions before me. The possibility was raised in submissions of proceeding so far as possible and deferring the cross-examination of Mr Spencer to a future date but there would be no saving of time in that course, where the matter would then be part heard before me and could not be completed until a further hearing date was available for the matter to be relisted before me, presently not until March 2012. 12In these circumstances, it seems to me that the preferable course, which was ultimately not opposed by the defendants or by Mr Spencer (albeit in circumstances that counsel did not have Mr Spencer's instructions), is to vacate the hearing before me today but to refer the matter to tomorrow's Expedition List. It will, of course, be a matter for the Expedition Judge to assess the urgency of the matter. To the extent that they may assist, I have expressed my views above as to the significant prejudice which has been and is being suffered by the defendants by reason of these proceedings and the inability to proceed to a hearing today. 13I have heard counsel as to the costs of today. Ms Sinclair for the plaintiff submits there should be no order as to costs of today. Mr Waugh has supported a course which I raised in the course of argument, to reserve the costs of today for consideration by the trial judge. I consider that order is appropriate in the circumstances, since the trial judge will then be better informed both as to the nature of Mr Spencer's medical condition, which has led to today's application, and the ultimate merits of the proceedings. 14I therefore order: