Sanders-Pattinson v. Goldberg [2013] NSWSC 202

Judgment 1His Honour: Mr. Sanders-Pattinson sues Mr. Goldberg, a former solicitor, for professional negligence. Mr. Goldberg has been served with a Statement of Claim pursuant to an order for substituted service, but has taken no active part in the proceedings, at any time. 2Two interlocutory applications of some substance have been listed for hearing on 22nd March 2013. Pursuant to the Court's ordinary internal management arrangements, the hearing of these applications has been allocated to me. 3Mr. Sanders-Pattinson sues the defendant as an assignee of a former client. No defence has been filed on behalf of the defendant and no point has been taken with regard to the plaintiff's title to sue. 4It is sufficient to state for the present purposes that the case in negligence relates to the lapse of a caveat lodged protecting the interest of the assignor as an unregistered second mortgagee of certain property securing a loan from the assignor to the registered proprietors. 5The lapse of the caveat enabled the first and third mortgagees to reach an agreement with the registered proprietors for the sale of the property, from the proceeds of which the first mortgagees debt was satisfied and that of the third mortgagee partly satisfied. The third mortgagee, which was also unregistered, received the surplus after discharge of the first mortgagee's debt in priority to the assignor as unregistered second mortgagee. 6A judgment against the debtors in favour of the assignor has been but partially satisfied by one of them. 7The first motion in time is the application of Mr. Sanders-Pattinson for leave under s.6 (4) Law Reform (Miscellaneous Provisions Act) 1946 (NSW) to join LawCover Insurance Pty Ltd as a defendant. 8Mr. Sanders-Pattinson has served a subpoena on the Law Society of New South Wales for the production of documents. The second motion is the Law Society's application to set aside that subpoena. 9The Common Law Registrar fixed the matters for hearing during a telephone conference on 30th October 2012. The file records that Mr Sanders-Pattinson appeared by telephone. I infer the dates were fixed so far in advance because Mr. Sanders-Pattinson filed an affidavit sworn 2nd October 2012 informing the Court that he would be unavailable for some time due to undergoing bilateral full knee reconstructions. He then expected a pre-operation program to commence on 15th October 2012. By the time of the telephone conference he had had surgery, according to the evidence I refer to below. It is unclear whether he had been discharged from hospital. 10On 31st January 2013, Mr. Sanders-Pattinson filed a further affidavit made on 25th January 2013. This may have been in relation to a summons for leave to appeal in another factually related matter which I summarily dismissed on 31st May 2012. Buried in paragraph 5 of the new affidavit is what seems to be an application to vacate the hearing dates. No notice of motion seeking those orders has been filed. The solicitors acting for LawCover and the Law Society drew the application for adjournment to the Registrar's attention by email on 11th March 2013. 11By letter dated 14th March 2013, the solicitors have indicated their consent to the adjournment. They request that the matter be relisted for directions after 30th April 2013. 12I have read Mr. Sanders-Pattinson's affidavit to which is annexed a medical certificate of Associate Professor Brett G. Courtney, whom I understand to be an Orthopaedic Surgeon specialising in knee surgery. Assoc. Prof. Courtney by his certificate informs the Court that he has read Mr. Sanders-Pattinson's affidavit and vouches for the details. He certifies that Mr. Sanders-Pattinson will not be medically fit to attend Court until early April 2013. 13The responding solicitors have indicated their consent to the Court dealing with Mr. Sanders-Pattinson's application in Chambers without the attendance of any party. The Court has emailed Mr. Sanders-Pattinson at the email address he has provided for contact purposes inquiring whether he consents to the application being dealt with in chambers without the attendance of any party, but so far he has not replied. 14There is a small degree of ambiguity about Mr Sanders-Pattinson's position. The affidavit bears no matter number. The formal part states it is filed in relation to a Notice of Appeal. None has been filed but Mr Sanders-Pattinson has filed a Summons seeking leave to appeal from orders made by me on 31/5/2012 in Sanders-Pattinson v Brown [2012] NSWSC 443. The solicitors for the responding party are clearly of the view that Mr Sanders-Pattinson's incapacity affects him both in the Common Law Division and the Court of Appeal. This makes sense and as he has not responded I will proceed on this basis 15As it is Mr. Sanders-Pattinson's application and as I accept the evidence of Assoc. Prof. Courtney that he is currently unfit to attend Court, I consider it appropriate to decide the matter in chambers. 16It is an essential characteristic of a fair hearing that a party have sufficient prior notice of the hearing to enable him or her to attend and present his or her evidence and argument. As the application before me: (a)Is the plaintiff's application which has not been withdrawn; (b)Relates to a routine matter of practice and procedure relating to applications for interlocutory, not final, relief; (c)Is grounded on the medical incapacity to attend court of a litigant in person; and (d)Has the consent of the responding party, who also consents to it being dealt with in chambers without the need for either party to attend I consider it in the interests of the due administration of justice, and of the parties, that the matter be dealt with now, not least, to avoid wasted costs if the application is meritorious. 17From his affidavit, I find that Mr. Sanders-Pattinson was admitted to hospital on the 22nd of October 2012 to undergo bilateral knee replacement surgery. He was discharged at some time unknown, but was readmitted on the 25th of November 2012 for further surgery relating to a serious post-operative infection in his right knee. I infer that the surgery was not entirely successful because he commenced an outpatient course of treatment in relation to the infection on the 27th of December 2012. The infection has set back his expected rehabilitation from this major orthopaedic surgery and he is not in a fit state to appear and conduct the applications on his own behalf. He requests an adjournment until after the 30th of April 2013. Assoc. Prof. Courtney says he will be fit in early April 2013, but in my judgment if an adjournment is to be allowed, it is well to enable Mr. Sanders-Pattinson a little extra time to get things back on track after his recovery before requiring him to conduct his case in court. 18By s.66 Civil Procedure Act 2005 (NSW), the Court is empowered, by order, to adjourn to a specified day any proceedings before it, or any aspect of any such proceedings. In the exercise of all powers affecting practice and procedure the Court must give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the dispute or proceedings: s.56 CPA. 19The consent of the defendant is an important, but not necessarily decisive consideration, given the public interest, and the legitimate interest of other litigants, in the efficient dispatch of the Court's business. 20Mr. Sanders-Pattinson's application is not based merely upon questions of convenience, but rather upon his physical inability to attend on medical grounds, supported by his treating surgeon. Generally speaking, where a party is prevented from appearing at court to present his or her case, without personal fault, and in circumstances like the present, where medical incapacity has intervened, it is in the interests of justice that an adjournment be granted. In these circumstances the consent of the responding party was property extended, and, in my view, the Court should accede to the application. 21My orders are: (1)The hearing of the motions filed on 9th July 2012 and 10th September 2012, respectively, fixed for hearing on 22nd March 2013, is adjourned and the hearing date vacated. (2)The motions and the proceedings are stood over for directions before the Common Law Registrar on Friday, 3rd May 2013 at 9 a.m. (3)Reserve liberty to the parties to apply to the Registrar on three days prior written notice. (4)Direct the Common Law Registrar to advise the plaintiff and Mullane & Lindsay solicitors of these orders by mail and email so soon as this direction may be complied with in the efficient despatch of the Court's business.