The refusal of the application
17 Notwithstanding the considerable merit of the factual foundation upon which the adjournment application proceeded, the application is refused for a number of reasons.
18 First, and most fundamentally, it is considered that Mr Compton has already been given an adequate amount of time in which to prepare for the final hearing.
19 Although it may be accepted that after the decision in November 2015 refusing to "go behind" the Supreme Court judgment and prior to the decision of the Full Court in August 2016 there may have been a natural reluctance to commit further legal resources to the preparation of the evidence necessary to perhaps more fully expose the true state of indebtedness between Ramsay Health Care and MediChoice, there remains substantially unexplained why resources were in fact expended in about April 2016 to explore that very question. The fact is that Mr Graham Baker, a person experienced in forensic accounting, provided a Report dated 21 April 2016 setting forth his opinion as to the state of indebtedness. No reference was apparently made to the existence of that report when the matter was before the Full Court a couple of weeks later in May 2016, notwithstanding the fact that the Full Court was then told that there would be a need for "further evidence" if the Court was to "go behind" the Supreme Court judgment: [2016] FCAFC 106 at [13]. Nor was any reference to the existence of that Report disclosed on 10 or 23 May 2017, the latter date being the occasion on which the manner in which Mr Compton was seeking to advance his case was sought to be explored, albeit in a very preliminary manner.
20 But by April 2016 Mr Compton, in any event, had available to him:
the detailed affidavit of Ms Stevis affirmed on 4 September 2015; and
the report of Mr Baker dated 21 April 2016.
21 Preparation of the case that he sought to advance as to Ramsay Health Care in fact owing him money was well underway and being actively progressed even after the November 2015 judgment.
22 Whatever may have been the supervening events after November 2015 and the work carried out in securing the Baker Report, however, the time that has expired has been more than adequate for Mr Compton to obtain any such "further evidence" as he may have wished to rely upon.
23 The most recent affidavit of Ms Perry, being that sworn on 29 May 2017, sets forth the very considerable efforts undertaken to ready the case for hearing. But all such efforts were taken after 26 May 2017. Whether it be the responsibility of Mr Compton's former legal representatives or his current legal representatives, it remained unexplained why such steps were not taken prior to 26 May 2017. All that Ms Perry's affidavit demonstrates is that anything becomes urgent if left unaddressed for long enough.
24 The submission founded upon the extent of the preparation required in advance of the hearing on 1 June 2017 was nevertheless given considerable impetus when regard was had to the affidavit of Mr Fitzmaurice served by Ramsay Health Care upon the legal representatives of Mr Compton on 26 May 2017. For the first time, those representing Mr Compton were given a detailed account as to the challenge to be mounted to the evidence of Ms Stevis. Now being advised of the challenge to be mounted, Ms Perry maintains that it will be necessary for Ms Stevis to go back and access detailed financial records in order to properly respond to the details provided by Mr Fitzmaurice. It is regrettable that that detailed account was not provided much earlier. Notwithstanding the fact that further analysis will now have to be undertaken by Ms Stevis, and possibly Mr Baker, the reliance sought to be placed upon what was characterised as the belated notice of the grounds of challenge does not ultimately lead to an adjournment being granted because:
there was no necessity for those representing Ramsay Health Care to provide advance notice as to the grounds of challenge - that part of Mr Fitzmaurice's affidavit which gave strength to the adjournment application could all have been put without prior notice by way of cross-examination of Ms Stevis or put by way of submission rather than evidence;
it is far from certain that the detail to which Mr Fitzmaurice at times descends in his affidavit will prove of any immediate relevance to the final hearing - the understanding at this stage being that any challenge to the evidence of Ms Stevis may well be advanced more in terms of a challenge to the general approach taken by Ms Stevis rather than the detailed factual result thereafter emerging from the approach which it may be said was mistaken from the outset; and
if this understanding proves to be erroneous, then it may well be that the final hearing as to the competing claims as to indebtedness will conclude with an inability to find that the claims advanced by Ms Stevis and/or Mr Baker are so without substance that any state of satisfaction can be reached that MediChoice in fact owes Ramsay Health Care a sum greater than $5,000.
An attempt by Counsel on behalf of Ramsay Health Care to characterise the Fitzmaurice affidavit as truly an affidavit in reply and an affidavit served merely in accordance with the timetable set on 10 May 2017 fails (with respect) to properly take into account the desirability of that detailed account having been previously provided.
25 At no point of time has Ramsay Health Care ever presented anything other than an unqualified commitment to press ahead with its claims. The response of Mr Compton was a matter for him to address and to constantly reassess. His procrastination, or on another view of it his delay, in preparing his case at a far earlier point of time is a matter for which he now alone has to pay the price.
26 Second, the present mental incapacity of Mr Compton - and the very basis upon which an order was made on 26 May 2017 appointing his wife, Mrs Compton, as his litigation representative - assumes less relevance given the fact that at no point of time has it ever been contemplated that Mr Compton was to give evidence himself. Although it may possibly be inferred that Mr Compton has a greater familiarity with the affairs of MediChoice than his wife, no submission has been made that Mrs Compton lacks the necessary familiarity to give all such instructions as may be necessary for the conduct of the present proceeding. The reason to qualify the freedom with which an inference may otherwise have been drawn arises from the fact that Mr Compton has been unwell for some considerable period of time. However, it may equally be inferred that Mrs Compton has in the meantime been gaining greater familiarity with the issues than may otherwise have been the case. But the end result is that no submission has been advanced, placing reliance upon any lack of familiarity of Mrs Compton with the legal and factual issues, that she is unable to give fully informed instructions as to the future conduct of the present litigation. Although there is an accepted difficulty in communicating between the legal representatives in Australia and Mrs Compton in the United States, the length of time that has expired since 4 May 2017 and even after 26 May 2017 has permitted more than adequate time for meaningful communications. Counsel for Mr Compton quite properly accepted that any reliance upon difficulties of communication was minimal.
27 Third, although there is correspondence exposing the claims made by the former solicitor to retain materials pending the receipt of moneys in respect of outstanding fees, the inference being that in the absence of access to those materials further preparation could not proceed, there is an absence of explanation as to whether:
Ms Stevis; and/or
Mr Baker
retained copies of the materials upon which they had previously expressed their views. Indeed, Mr Baker's April 2016 report sets forth the extent of the apparently voluminous material he had available to him, including Ms Stevis' affidavit, "the detailed bank account information of Medichoice, the MYOB file of Medichoice, invoices relating to the transactions over the 3 year period of the contract between Medichoice and Ramsay and [Hall Chadwick's] own detailed analysis of financial transactions over the period of the Agreement between the parties". No inference can be drawn that at any point of time since November 2015 that those appearing for Mr Compton, including his current legal representatives, confronted any insurmountable difficulty occasioned by a lack of access to documents or financial records.
28 Counsel for Mr Compton further quite properly accepted that:
no reliance could be placed upon any difficult in securing funding;
and that:
any difficulty in securing access to documents was greatly removed when the solicitors for Ramsay Health Care made available extensive materials last Friday, 26 May 2017.
29 Fourth, there is in any event considered to be a more recent failure on the part of Mr Compton to promptly progress the present matter for hearing. But for the fact that Mr Baker provided his report in April 2016, some reservation may have been expressed at the prospect of incurring further legal fees after November 2015. However, it may have been expected that if "further evidence" was sought to be secured, steps to do so would have been put in train after the favourable decision of the Full Court in August 2016. Even if some further reservation may have been expressed at the prospect of incurring legal fees after August 2016 and prior to the orders made by the High Court on 4 May 2017, there has after that date been a failure to explain:
why the question of whether it was necessary to appoint a litigation representative was first raised with the Court on 10 May 2017, but no application made until 26 May 2017; and
why steps were not taken shortly after 4 May 2017 to approach Ms Stevis and/or Mr Baker to understand what further steps (if any) had to be pursued to ready for final hearing the competing claims as to whether it was Ramsay Health Care that was owed money or whether that company owed monies to MediChoice.
30 No affidavit, it may further be noted, has been filed by either Ms Stevis or Mr Baker as to the steps they consider necessary to prepare for the forthcoming hearing. Although it can readily be understood that such preparation may be extensive, there is not only the lack of explanation as to why such preparation was not started earlier, there is also a lack of explanation provided by either Ms Stevis or Mr Baker as to what steps they perceive now have to be taken. General statements made by the solicitor for Mr Compton, presumably on instructions, as to the need to properly consider (for example) the challenges mounted in the Fitzmaurice affidavit fall short, with respect, of an account from those who will have to undertake that task.
31 Assuming far less importance, but nevertheless a factor to be taken into account is the fact that even after Mr Compton secured the services of his current legal representative:
there has been a failure to promptly attend to those steps necessary to secure the effective hearing. Those appearing for Ramsay Health Care thus repeatedly emailed Mr Compton's current legal representative immediately upon receipt of Ms Perry's affidavit on 25 May 2017 requesting a copy of the Baker report which had not been served. But that request went unanswered until the following day.
It is, accordingly, not only Mr Compton who has been denied the benefit of the Fitzmaurice affidavit not being provided earlier; those appearing for Ramsay Health Care were only provided with the Baker Report at the very last minute.
32 Fifth, other than the Supreme Court judgment and the failure to pay monies owing pursuant to that judgment, there is no other evidence to suggest that Mr Compton has had at any point of time a lack of access to sufficient monies to fund properly prepared litigation. Indeed, in the absence of such evidence, the inference is to the contrary. He was represented before the Full Court of this Court and the High Court by both experienced and eminent Senior and Junior Counsel.
33 The conclusion that is ultimately reached is that Mr Compton has been given more than adequate time in which to prepare his case for final hearing. It is further concluded that he has been given more than an adequate opportunity and time in which to prepare the evidence necessary to found his adjournment application.
34 In reaching that conclusion, entirely placed to one side have been such matters as judicial management including:
the expedition granted by the High Court to the hearing of the appeal;
the steps taken by this Court in vacating a date for hearing in another proceeding to accommodate the convenience of at least some of Mr Compton's previous legal representatives, albeit not his former Senior Counsel who was due to return to Australia on 5 June 2017; and
the vacation of the first date set aside for the final hearing and the adjournment of the interlocutory application set down for hearing on 26 May 2017 to 30 May 2017 to permit further evidence to be obtained.
35 The final hearing will proceed on 1 June 2017 in anticipation of publishing reasons and making orders (if at all possible) on Friday 2 June 2017. If necessary, the hearing will thereafter continue - if necessary over the weekend - to ensure (if at all possible) that a decision can be reached and orders made prior to Monday 5 June 2017.
36 A belated offer on behalf of Mr Compton to agree to be bound by an independent arbitration of the competing amounts said to be owing was rejected.