Sinclair v Creenaune

Supreme Court of NSW|2022-02-22|Before: Hallen J, Mr J

Introduction

HIS HONOUR: These proceedings involve the estate of Barbara Bernice Sinclair (the deceased), who died on 9 December 2018, and a claim brought by one of her, now adult, children, Donna Maree Sinclair, for a family provision order, under Ch 3 of the Succession Act 2006 (NSW) (the Act), and for her costs of, and incidental to, the proceedings.
The Defendant in the proceedings is Noel Bernard Creenaune, a cousin of the deceased and the executor to whom this Court, on 8 August 2019, granted Probate of her Will dated 7 April 2014.
The hearing commenced on Monday 21 February 2022. The Plaintiff appeared without legal representation. Mr J Brown of counsel appeared for the Defendant.
On the second day of the hearing, the matter took an unusual course. The Plaintiff applied for an adjournment of the trial, part heard, because she had not appreciated that the proceedings were as difficult as she said they had turned out to be; because she had not had a sufficient opportunity to complete the inspection of documents provided to her following service, with leave, of subpoenas, which she had sought to issue on 11 February 2022 (that is a little over 1 week before the hearing); and, seemingly, upon the basis that she was overwhelmed at the prospect of being cross-examined.

Procedural history

So that the Plaintiff's application for the adjournment, and the Court's response to it can be considered in context, it is convenient, first, to recount the procedural history of the proceedings.
The proceedings commenced, by Summons filed on 5 December 2019. Incorrectly, the Plaintiff's brother, David Sinclair, was named as the Defendant.
The Summons was listed, initially, in the Family Provision List, now the Succession List, on 7 February 2020. An amended Summons was filed on behalf of the Plaintiff on 12 February 2020 naming the proper Defendant.
Then, and for some time thereafter, the Plaintiff was legally represented.
On 22 April 2020, following the completion of the filing and service of the affidavit evidence, the matter was set down, for hearing, in the Family Provision Running List, on 7 December 2020, with an estimated duration of 3 days.
On 6 November 2020, the Plaintiff's legal representatives filed a notice of motion, without notice, seeking an order to vacate the hearing date. Because the application to vacate the hearing date was opposed, the notice of motion was adjourned until 16 November 2020. It was revealed that the basis of the application to vacate the hearing date was that the Plaintiff was involved in criminal asset recovery proceedings, which were listed, for directions, on 22 February 2021, and also Local Court proceedings, which involved what were said to be a charge of having goods in custody reasonably believed to be improperly obtained, which were said to be listed on 18 February 2021, both of which proceedings she was defending: Affidavit, Donna Sinclair, 6 November 2020, at pars [5.2], [5.4]; Tcpt, 16 November 2020, p 1(30-40).
The Defendant, in opposing the Plaintiff's application to vacate the hearing date, submitted that the Plaintiff had not provided very much information about the criminal proceedings in her affidavit evidence filed in support of her claim for a family provision order. Counsel submitted that she must have been aware of both of the criminal proceedings, but had left it until a few weeks before the hearing of the family provision proceedings, to make her application to vacate the hearing date (Affidavit, Jennifer Spear, 12 November 2020 at pars 4-5, and Annexure A).
Following submissions, counsel for the Plaintiff, in answer to a question from the Court, acknowledged that the Plaintiff would have no choice but to pay the Defendant's costs thrown away if the hearing date were vacated: Tcpt, 16 November 2020, p 2(30-33).
With some hesitation, the Court acceded to the Plaintiff's application. The hearing date was vacated with an order that the Plaintiff pay the Defendant's costs thrown away, as well as the costs of the notice of motion, such costs to be calculated on the indemnity basis. The proceedings were then adjourned, for directions on 5 March 2021 (by which date, it was hoped, that the criminal matters would have been dealt with).
On 21 May 2021, the proceedings were listed, again, to obtain another hearing date. This time, it was listed for hearing, on 21 February 2022, with a pre-trial directions hearing listed on 30 November 2021.
On 30 November 2021, the Plaintiff appeared in person, although counsel appeared (as a matter of courtesy). His application, on instructions, was to seek leave to withdraw from the matter as the retainer of his instructing solicitors, had been terminated.
In answer to a question from the Bench, the Plaintiff confirmed that she had terminated the instructions of her solicitors and that she had no objection to counsel no longer appearing in the matter: Tcpt, 30 November 2021, p 1(50)-2(8).
Upon the application of the solicitors, the Court granted "leave to withdraw from the proceedings in circumstances where the retainer has been terminated by the Plaintiff": Tcpt, 30 November 2021, p 2(10-13).
(In the application for the adjournment with which I am now dealing, the Plaintiff maintained that she had not terminated her solicitors' retainer but that they had done so. Whether or not that is so, it seems to have been a mutual arrangement and the grant of leave to withdraw was not opposed. In any event, the circumstances in which the Plaintiff came to be legally unrepresented, probably do not matter.)
In an affidavit sworn 29 November 2021 (which had not been filed but which was sent to the Court), the Plaintiff stated that she was "presently in the process of engaging another law firm to act for me": Affidavit, Donna Sinclair, 29 November 2021 at par 3. Subsequently, the Plaintiff gave no specific evidence of the steps she had taken in this regard.
Then, the Court having dealt with the question of representation, suggested that consideration should be given to the resolution of the proceedings. In this regard, the Court stated "if you are going to have discussions with a lawyer you should do so as soon as possible so that they can contact the Defendant's legal representatives and see what steps can be taken to resolve the proceedings if that's at all possible": Tcpt, 30 November 2021, p 4(27-34).
Neither party sought to vacate the hearing date and the Court confirmed that the hearing of the Plaintiff's claim for a family provision order would commence on 21 February 2022 and that it was listed for 3 days. The Court pointed out that unless the matter resolved meantime, "the matter will be proceeding on 21 February": Tcpt, 30 November 2021, p 4(49)-5(2), and that the Plaintiff should inform any solicitors who were retained of the date of the hearing.
During the directions hearing on 30 November 2021, counsel for the Defendant made clear that the issues that had prompted the previous adjournment application would be the subject of evidence and cross-examination of the Plaintiff.
During the directions hearing, which was conducted remotely, it became obvious that the Plaintiff was speaking with someone off screen. When asked about this, the Plaintiff confirmed that her cousin, Adam Sandbrook, was with her; that he was a lawyer; and that he was assisting her on this occasion.
Mr Sambrook had sent an email dated 29 November 2021 to the Court stating: "We have offered to assist the Plaintiff to file her Affidavit today (…) As Queensland Practitioners we cannot get on the record and the Plaintiff is endeavouring to find alternative lawyers to act for her".
In the circumstances, the proceedings were listed, for directions, again, on 1 February 2022. On this occasion, the Plaintiff again appeared remotely, without legal representation. Further directions were made for the conduct of the hearing. In dealing with the location of the hearing, how it would proceed, and the witnesses to be cross-examined, counsel for the Defendant stated that "the only witness I would really insist on being in person is the Plaintiff": Tcpt, 1 February 2022, p 5(1-2).
An email dated 31 January 2022, from Mr Sambrook addressed to the NSW Crime Commission, a copy of which was Annexure B to the affidavit sworn 31 January 2022 of the Plaintiff, was read. In this email, Mr Sambrook wrote: "We refer to the above matter and confirm we are assisting Ms Donna Sinclair in her family provision matter in the Supreme Court."
In relation to representation at the hearing, the Plaintiff informed the Court that she had not been able to obtain legal assistance but that she had the fortunate opportunity to consult with lawyers (referred to in the transcript as "Mr Mal Chalmers and Mr Simon Berber(?)": Tcpt, 1 February 2022, p 5(30-36)) who had been assisting her informally. She said that she had not discussed representation at the hearing as the Plaintiff "was hoping we wouldn't proceed to that end": Tcpt, 1 February 2022, p 5(30-45). She said nothing about any inability to conduct the hearing without legal representation if settlement was not achieved.
The Court confirmed that the parties agreed that the matter would proceed in Sydney by way of live and AVL hearing. (The hearing was, initially, to take place in Dubbo, but that changed.)
On 11 February 2022, the matter was referred to the Court, this time by an Equity Registrar, urgently, to deal with the Plaintiff's application for leave to issue various subpoenas. The leave of the Court was necessary because the Plaintiff, at whose request the subpoenas had been issued, was not represented by a solicitor in the proceedings: Uniform Civil Procedure Rules 2005 (NSW), r 7.3(1).
This application was listed in the Succession List on 14 February 2022, when the Plaintiff, again, appeared remotely and without legal representation. Without any real debate, and with only faint, if any, opposition by the Defendant, orders were made with a view to attempting to have the different recipients of a subpoena, produce documents at the hearing one week later.
On this occasion, the Court said (Tcpt, 14 February 2022, p 3(38-40)): "Again, Ms Sinclair, I cannot repeat enough times that you are taking a big risk in acting for yourself in these proceedings."

The Hearing

At all relevant times, the parties had requested a partly live hearing (with the principal witnesses required to attend to be cross-examined).
On 21 February 2022, shortly before the hearing was to commence, the Plaintiff telephoned my Chambers. She stated that she had not been fully vaccinated and, therefore, could not appear, in person, in Court. It was suggested that she contact Mr Brown, counsel for the Defendant, and inform him of what she had said. It was also suggested that she should appear before the Court remotely. Subsequently, she was provided with the Microsoft Teams link.
The matter was called shortly before 10:00 a.m., at which time Mr Brown, his solicitor, and the Defendant, appeared in Court. The Plaintiff appeared remotely, although it was clear that she was in the vicinity of the Hospital Road Court complex.
The Plaintiff provided no reasons for not having considered the Supreme Court protocol for a live hearing, earlier than she did, in circumstances where she had joined in asking the Court for a partly live hearing. Nor did she explain why she had left it until about one hour prior to the commencement of the live hearing to inform the Court, and then the Defendant's legal representatives, of the fact that she had not been fully vaccinated.
Neither party sought to have the hearing date vacated nor suggested that, in the circumstances, the hearing could not proceed remotely. Thus, in order to have the hearing proceed, the matter was stood down in the List until noon, in order to enable the Plaintiff, to return to her hotel, and to enable the Defendant and his legal representatives to return to counsel's Chambers.
Shortly before the matter was adjourned, the Defendant made an open offer to resolve the proceedings upon the basis that the Summons should be dismissed, with no order as to the Plaintiff's costs, and with the Defendant's costs, calculated on the indemnity basis, being paid out of the estate.
This, or a similar, offer, apparently, had been made previously, in writing, and had been rejected, in writing, by the Plaintiff. When the hearing re-commenced, the Plaintiff, again, formally rejected the offer. On this occasion the Court explained, briefly, that if the Summons were dismissed, costs consequences may flow from the rejection of the Defendant's offer.
The hearing of the Plaintiff's claim then proceeded remotely. The Plaintiff sought leave to have Ms Lisa O'Brien sit with her. The Court was told that Ms O'Brien was not a lawyer. The Defendant's counsel did not object to the presence of, or assistance to be given by, Ms O'Brien. In the circumstances, the Court granted leave for Ms O'Brien to act as a "McKenzie friend" even though it was obvious that the Plaintiff is articulate and that she had a good understanding, and grasp, of the factual issues.
(The title "McKenzie Friend" draws its name from the decision of the Court of Appeal in McKenzie v McKenzie [1971] P 33. However, the role of a McKenzie friend was first recognised in Collier v Hicks (1831) 2 B & Ad 663. See also, R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807; Damjanovic v Maley (2002) 55 NSWLR 149; [2002] NSWCA 230). I formed the view that the Plaintiff's ability to conduct the proceedings would be enhanced by the prospect of assistance, even though she did not demonstrate any actual personal incapacity or disadvantage: Re H [2002] 1 FLR 39; Re O, W, W-R [2006] Fam 1; [2005] 3 WLR 1191.
The Court explained that the assistance that could be provided was subject to the discretion of the Court and that the role of a Mackenzie friend is as a person who may provide moral support for the Plaintiff, take notes, help with case papers, and quietly give advice on points of law or procedure, issues that the Plaintiff may wish to raise in court, and questions that the Plaintiff may wish to ask witnesses. The Court stated that Ms O'Brien had no right to act on behalf of the Plaintiff and was not entitled to address the Court or to examine any witnesses.
During the first day of the hearing, whilst occasionally Ms O'Brien appeared on the Microsoft Teams screen, it was to assist the Plaintiff, in the background, in some of the ways that had been outlined. (I interpolate that on the second day of the hearing, Ms O'Brien was permitted to address the Court to explain that the Plaintiff was not present when the matter was called, because she "had a meltdown": Tcpt, 22 February 2022, p 78(6-8). I was satisfied that Ms O'Brien was clearly attempting to assist the efficient administration of justice. I am grateful for the assistance that she appeared to provide to the Plaintiff and to the Court.)
For the benefit of the Plaintiff, the Court then went on to confirm its duty to ensure that the trial was fair and determined in accordance with the law. The Court informed the parties that this duty applied whether the Plaintiff had been unable to obtain legal representation, or if she appeared self-represented by her own choosing, or where the party was represented: MacPherson v R [1981] HCA 46; (1981) 147 CLR 512, 546-547. It was stressed that this did not mean, however, that to dismiss one's lawyers, or to retain none, should be an advantageous procedural step. The duty to ensure a fair trial applied to both parties with the Court to maintain a position of neutrality and impartiality as between them.
The Plaintiff was also informed that even though she was unrepresented, the Court's duty was not to advise her on how to conduct her case; nor to advise her of how her rights should be exercised; nor to become her advocate or stand in the shoes of her previous legal representatives. Nor would the court unduly interfere with the conduct of the trial on her behalf. Any assistance would be proportionate in the circumstances and would be given not for the purpose of affording an advantage to her as a self-represented litigant: Tomasevic v Travaglini [2007] VSC 337; (2007) 17 VR 100, at 130 (Bell J); Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) (Samuels JA); Cicek v Estate of late Solomon [2014] NSWCA 278, at [126]-[130] (Ward JA) endorsed in Pollock v Hicks [2015] NSWCA 122 at [91] (Gleeson JA, Macfarlan and Emmett JJA agreeing).
The Court also informed the Plaintiff that she would not be permitted to give evidence from the remote bar table without oath or affirmation.
The assistance then given to the Plaintiff, as a self-represented litigant, went to explaining how the case would proceed. This was done in order to overcome, so far as is reasonably practicable, the procedural disadvantages that the Plaintiff might face by reason of not being legally trained. She was told that there would be the reading of the affidavits onto the court record and informing her of each party's right to object to any part of the affidavit evidence relied upon by the other that was regarded as inadmissible; informing her of the need to enter the witness box to be cross-examined (as she had been required to attend for cross-examination); to have the witnesses, whose affidavit she proposed to read, be available for cross-examination; and of her right to cross-examine the deponent of any affidavit read by the Defendant. It seemed that the Plaintiff had some understanding of the role, and purpose, of cross-examination.
The Plaintiff had no apparent difficulty understanding what was said to her. I am satisfied from her conduct that she displayed an insight into the case she was required to present and was able to marshal arguments in support of that case. For example, she had no difficulty responding to, or making, objections to the Defendant's affidavits.
In addition, throughout the first day of the hearing, the Plaintiff was polite, mostly calm, and acted with appropriate respect to the Court, and to counsel for the Defendant.
Naturally, it was necessary for there to be some degree of tolerance and assistance, within the constraints of the duty to ensure a fair trial to both parties, given to the Plaintiff, who is clearly without legal knowledge. This included adjourning the proceedings a little early on the first day, following the reading of the affidavits onto the record, and dealing with the objections, to enable the Plaintiff to consider documents which she had recently been provided to her.
I am more than satisfied that the Plaintiff understood the nature of the proceedings.
I should mention that in the Defendant's written Outline of Submissions, a copy of which had been served upon the Plaintiff a week before the hearing, counsel for the Defendant had included a detailed outline of the course that the hearing might take. The index to the topics covered by his submissions included "Appearing at a hearing without the assistance of a legal representative; how may the trial proceed; the use of AVL facilities; facts which the defendants (sic) say should not be controversial; highly relevant principles in these proceedings; and Conclusion". In addition, an index of the affidavits was provided. Separately, in the written Submissions, counsel made reference to the fact that the Plaintiff was to be cross-examined for part of the first day and on the second day.
Furthermore, at the hearing, Mr Brown did not take pedantic objections to the Plaintiff's affidavit evidence and he did not object to any part of the Court's explanation. Nor did he oppose the leave of the Court to read one of the Plaintiff's affidavits, which was irregular in form, being granted: UCPR r 35.1. (There had been non-compliance with UCPR r 35.6 in regard to the annexures to that affidavit.) In order to assist the Court, and the Plaintiff, a folder of the annexures was prepared by his instructing solicitor and this bundle was used as the annexures. He only objected to some of the annexures. Nor did he object to reading affidavits which were served by the Plaintiff shortly before the hearing.
Counsel is to be commended in taking the course that he did in order to assist the Plaintiff. His summary in the written submissions was extremely detailed and could have left the Plaintiff with little doubt about the matters to which reference was made.
The matter had been adjourned a little early on the first day of the hearing, following completion of the explanation and the reading of affidavits. This was done in order to provide the Plaintiff with an additional opportunity to consider, overnight, the documents which had been produced as a result of those subpoenas, before she gave evidence, and before she cross-examined the Defendant and the beneficiary.

Some basic facts

It is next convenient, before proceeding to the events that occurred on the second day of the hearing, to provide some facts that are relevant to the Court's approach to the Plaintiff's application for an adjournment.
The deceased left her estate to her two children in different proportions. Her son, David, received a devise of the property known as Belmore Place, Dubbo (the Dubbo property); the Plaintiff's debt to the deceased ($30,000) was forgiven; and the rest and residue was to be divided equally between them. (The Plaintiff disputed the debt said to be owed by her to the estate.)
On 1 February 2022, the Court directed the Defendant to provide, in hard and soft copy, to the Plaintiff, and to the Court, a schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the Schedule; 3. the estimated costs and expenses of any property that is, or may be required, to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity, basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to any party, whether those costs have been paid out of the estate of the deceased.
In accordance with this direction, counsel provided a Schedule to the Plaintiff that was responded to, in writing, by her.
Although in her written submissions, at [10] and [12], the Plaintiff wrote that "[T]o date discovery documents have not been provided to me for clarification of these amounts from the Executor's solicitors so I cannot confirm that these are correct" and that "The liabilities listed … as at the time of the deceased's death cannot be confirmed as I have been not provided with a full a breakdown of the liabilities of my mother's Estate", there was no submission that the value of the deceased's estate, as disclosed, was not sufficient to satisfy any orders for provision and costs, that might be made.
I have taken what follows from the Schedule and discussions at the commencement of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
At the date of the deceased's death, her estate comprised of the Dubbo property ($350,000); shares in Telstra Corporation ($7,904); cash in various banks or financial institution on deposit ($110,056) (made up of $1,659, $22,623, $9,840, $9,318, $66,616); household items ($10,000); a motor vehicle ($750); and the debt said to be owed by the Plaintiff ($30,000). There were said to be liabilities of the deceased at the date of her death which totalled $16,668.
At the date of the Schedule, the deceased's estate comprised at least the Dubbo property (estimated to have a value of about $472,500) and monies held in trust by the Defendant's solicitors ($81,078). There may also have been the (disputed) debt said to be owed by the Plaintiff ($30,000).
The actual estate has an estimated gross value of $553,578. (It would be $583,578 if the loan were found to have existed.) No major liabilities, other than, possibly the costs of the proceedings, were disclosed. This appears to be because, during the course of the administration of the estate, various amounts had been paid out of the estate. However, excluding the costs of these proceedings, the estate also had the unpaid liability of the estimated legal fees on the further administration of the estate ($2,500).
From this summary, it can be seen that, at the date of the hearing, the deceased's estate was not of large value.
There was no dispute between the parties that superannuation death benefits had been paid to the Plaintiff ($71,977) and to David ($139,720) respectively. The deceased had been an employee of Telstra and upon her death the proceeds of a superannuation policy ($211,697) was payable. On about 10 April 2019 pursuant to a binding nomination the trustee of that fund paid out the funds to the Plaintiff and to David.
The Plaintiff, in her affidavit sworn 24 January 2022, calculated the costs of the proceedings already incurred, as between $24,000 and $27,000.
In an affidavit affirmed 3 February 2022 by Ms J Spear, solicitor, the Defendant's costs and disbursements, calculated on the indemnity basis, to the conclusion of the hearing, were estimated to be $80,000 (inclusive of GST).
It follows that the total costs of the proceedings are in the order of $104,000 to $107,000 and that if the estimates prove accurate, and costs orders were made, the value of the distributable estate would, in either case, be less than $450,000, with the only available property, after the payment of some of the costs, out of which an order could be made, would be the Dubbo property.

The second day of the hearing

Shortly before the commencement of the hearing on the second day, the Plaintiff sent an email to the Court, attaching an unfiled affidavit, with a copy thereof sent to the Defendant's counsel.
In this affidavit, she stated: "5. Having now received disclosure material from the Defendant, the magnitude of this case is far more complex, involving the admissibility of a whole range of matters that require expert legal assistance. 6. I am not qualified to deal with the overnight examination of all the evidence or to interpret the law relating to them. 7. After the hearing on 21 February 2022 at 3.17pm, I sought to obtain urgent legal advice engaging a NSW Barrister to represent me, especially in light of the forensic evidence now being tendered against me. 8. Mr Daniel Hannay of Hannay Lawyers on 21 February 2022 spoke to his associate, Mr Edward Anderson, Barrister of 7 Wentworth Selborn [sic]. Mr Hannay advised me Mr. Anderson is not in a position to be able to act or provide advice about this at short notice. However, should I be granted an adjournment, Mr Anderson has confirmed that he will be my legal representative for the remainder of these proceedings. 9. I feel completely overwhelmed and unable to proceed at this time. Therefore, I respectfully request the Court grant an adjournment to a later date for the reasons stated herein."
When the matter commenced, the Plaintiff confirmed that she was requesting the trial to be adjourned, saying "basically what it says in the affidavit is what I need to relay to the Court. I just don't feel like I can proceed today, based on all these that are being put to - especially the evidence against me on the other side, but the documents that were received, it's just too - I cannot go through it to prepare adequately for my case. There's too many things I need to check": Tcpt, 22 February 2022, p 61(1-6). She added: "I just don't feel I can proceed without legal representation … I totally underestimated, I thought I was prepared, and I just cannot proceed today": Tcpt, 22 February 2022, p 61(41); p 61(50)-62(1).
(The Defendant did not file, or serve, a notice of motion, as required by UCPR r 18.2(1), which provides that a person may not move the court to make any order unless a notice of motion has been filed and served on each person affected by the proposed order. However, rule 18.2(2)(b) provides that this need not be done if the preparation, filing, or service, of the notice would cause undue delay, or other prejudice, to the person who seeks the order. In the circumstances, without opposition, the application proceeded without any notice of motion.)
In relation to the documents referred to, it is to be remembered that it was only as a result of subpoenas issued by the Plaintiff, without leave, on 11 February 2022, and the urgent application for leave, which was granted on 14 February 2022, that the documents had been produced.
Although the Plaintiff asserted that the subpoenas were required to be issued because of the failure of the Defendant, and others, to produce documents, there was no specific evidence tendered to demonstrate the accuracy of that assertion. In any event, one might have thought that it would have been a matter that could, and should, have been ventilated far earlier than it was, perhaps, even whilst the Plaintiff was legally represented. In my view, the problem faced by her, was caused, at least in part, by the Plaintiff's failure to seek the documents, and agitate any issue in the failure to produce them, far earlier than she did.
Furthermore, on the topics referred to in support of the Plaintiff's application, a letter dated 18 February 2022 had been sent to the Court, on behalf of the Plaintiff. Whilst it was not tendered, I had asked counsel for the Defendant whether the Defendant's legal representative had received a copy, to which he responded affirmatively, following which I read the letter.
The letter was in the following terms: "I act for Ms Donna Sinclair in respect to a Criminal Offence which is subject to an appeal. The appeal is listed in Lismore District Court on the 12 April 2022. Mr … of Queens Counsel is briefed by our office, to appear for Ms Sinclair. I understand that a subpoena(s) has been issued for evidence that includes all brief material, issued by the New South Wales Police in respect to her matter, which is subject to the appeal listed above. (…) Any evidence Ms Sinclair may be required to answer regarding those subpoenas may prejudice her in respect to the criminal appeal listed on 12 April 2022. Should Ms Sinclair be required to answer questions regarding the matters raised above, then I ask that she be afforded the appropriate protections pursuant to Section 128 of the Evidence Act (Cth) 1995."
From the contents of the letter, it appears, amongst other things, that the Plaintiff has been able to obtain legal representation in respect of her appeal in the District Court, and that the issue of the Plaintiff being cross-examined had, at the least, been considered by her lawyers.
Counsel for the Defendant opposed the Plaintiff's application to adjourn the hearing part heard. He drew attention to the occasions that the Court had advised the Plaintiff, commencing when she appeared without legal assistance on 30 November 2021, of the seriousness of the matters before the Court and to the dangers of proceeding without legal representation: Tcpt, 22 February 2022, p 64(44-50); 65(20-27).
As well, counsel stated that he did not plan to cross-examine the Plaintiff on any matters arising from the documents that had recently been produced, and consequently, the Plaintiff would not be prejudiced if she proceeded with her cross-examination without undertaking a comprehensive review of those documents: Tcpt, 22 February 2022, p 71(20-32). (I do not place much weight on this submission because I gather that the Plaintiff had issued at least some the subpoenas to enable cross-examination of the Defendant and also of David.)
Following hearing from counsel, I indicated that I was not minded to grant the application for the adjournment, particularly in light of the procedural history of the matter, the nature and value of the deceased's estate, and the Court's repeated suggestion that the Plaintiff would be assisted by obtaining legal representation for the hearing.
Naturally, in exercising the discretion to grant the adjournment, I had in mind the "dictates of justice", outlined in s 58, which requires the Court to consider, amongst other things, the position of both of the parties and not simply the position of the Plaintiff, as a litigant in person. I also remembered the "overriding purpose" prescribed by s 56 of the Civil Procedure Act, being the "just, quick and cheap resolution of the real issues", as elaborated by the matters referred to in s 57, including the just determination of the proceeding, the efficient disposal of the business of the court, the efficient use of available judicial and administrative resources, and the timely disposal of the proceeding, and all other proceedings in the court, at an affordable cost. A party to civil proceedings is also under a duty to assist the court to further the overriding purpose: s 56(3).
The "elimination of delay" in s 59 and s 60 of the Civil Procedure Act also requires the Court to have in mind the need to resolve proceedings in a cost-effective way, proportionate to the importance and complexity of the subject matter in dispute. The importance of this principle was recognised by the High Court even prior to the commencement of the Civil Procedure Act, in the case of Sali v SPC Ltd (1993) 116 ALR 625; [1993] HCA 47, at 843-44, where the majority of the court wrote: "In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. (…) What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources."
Remarks concerning the "efficient dispatch of the business of the court" had been expressed, even earlier, by Gleeson CJ in State Pollution Control Commission v Australian Iron and Steel Pty Ltd (No. 2) (1992) 29 NSWLR 487 at 493F-495D.
As was also observed in Aon Risk Services Australia Pty v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at 182 (French CJ), the time of the court is a publicly funded resource and "[I]nefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system." Also see, UBS AG v Tyne (as trustee of the Argot Trust) (2018) 265 CLR 77; [2018] HCA 45, at [38] where it was said by Kiefel CJ, Bell and Keane JJ: "The timely, cost effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute. These wider interests are reflected in s 37M(2) of the [Federal Court Act] [corresponding to s 56 of the Civil Procedure Act]. As the joint reasons in Aon Risk Services Australia Ltd v Australian National University explain, the "just resolution" of a dispute is to be understood in light of the purposes and objectives of provisions such as s 37M of the [Federal Court Act]. Integral to a "just resolution" is the minimisation of delay and expense. These considerations inform the rejection in Aon of the claimed "right" of a party to amend its pleading at a late stage in the litigation in order to raise an arguable claim. The point is made that a party has a right to bring proceedings but that choices are made respecting what claims are made and how they are framed. Their Honours speak of the just resolution of the dispute in terms of the parties having a sufficient opportunity to identify the issues that they seek to agitate."
Granting an adjournment of the trial, part heard, would cause further delay, a second time, albeit for different reasons, and even though it would permit the Plaintiff's case to continue, there would be significant injustice to the Defendant and to the other beneficiary, David, not only in completing the proceedings, but also in completing the administration of the deceased's estate. It is now over 3 years since the death of the deceased and over 2 years since the proceedings were commenced. Relevant also, is that the continuation of the hearing would be unlikely to occur before October 2022, unless it were given special, or expedited treatment, or if other matters listed for hearing were deferred. It is in the interests of the parties, and the beneficiary, David, for the proceedings to be determined.
I also considered the fact that whilst the Defendant has defended the proceedings, he has, by his legal representatives, endeavoured to assist the Plaintiff in relation to the conduct of the proceedings, for example, by copying the annexures to the Plaintiff's recent affidavit in an orderly and helpful fashion. I have already referred to counsel's written submissions. Perhaps with the exception of the timely production of documents (which is asserted and which I am unable to determine as having occurred), it appears the Defendant has done everything reasonably within his power, to facilitate a just, quick and cheap disposal of the proceedings. There is the need for both parties to conduct litigation in such a way.
Also, I was not satisfied, bearing the nature of the proceedings, that to grant the Plaintiff's application could be properly compensated by another order for costs, even if those costs were calculated on the indemnity basis.
That the failure of the Plaintiff to have legal representation, might have avoided the problems, is also relevant as this does not appear to be a circumstance beyond her own control. As was stated in Knorr v CSIRO (No 3) [2012] VSC 529, by Beach J at [28] - [29]: "Again, as was said by Nettle and Osborn JJA in Karam v Palmone Shoes Pty Ltd '[t]here comes a point at which a self-represented litigant must be required to take responsibility for his choices'. Consistently with the principles enunciated in the Civil Procedure Act, Mr Knorr cannot be permitted to continue to subject the parties to this proceeding to significant cost and inconvenience and to add pointlessly to the load on the Court's already limited resources." (Omitting footnotes).
Furthermore, as was written, more recently, in Duraisamy v Sydney Trains [2019] NSWCA 269, by Bell P at [25]: "I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court's endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep): 'The absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.'"
Naturally, I also considered the issue of procedural fairness. However, it is to be remembered that in Rowe v Stoltze (2013) 45 WAR 116; [2013] WASCA 92, Newnes JA, with whom Pullin and Murphy JJA agreed, wrote at [51]: "... It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period." (Omitting citations)
In this case, the Plaintiff has been given the opportunity to be heard.
In all the circumstances, I was not persuaded that to adjourn the proceedings, part heard, would best serve the practical interests of justice and, therefore, did not grant the Plaintiff's application.
Having expressed the view that the proceedings were not to be adjourned, part heard, the Plaintiff then said that she was not prepared to be cross-examined without legal representation being present. It seems that she had in mind, at least, the matters raised in the letter from her solicitor retained in the appeal proceedings in the District Court.
The Court explained to the Plaintiff, the consequences of not entering the witness box to be cross-examined, if the Court refused the adjournment. Her affidavits had been read upon the assumption that she would be available to be cross-examined. If that assumption were shown to be incorrect, whilst the hearing was proceeding, it would be appropriate to review the correctness of having permitted the affidavits to be read: Russell Caldar v Public Trustee of NSW (Master McLaughlin, 27 October 2004, unrep); Cairns v Cairns [2006] NSWSC 364.
The Court made reference to UCPR, r 35.2 which, relevantly, provides: (1) A party may, by written notice served on the party serving or proposing to use an affidavit, require the attendance for cross-examination of the person by whom the affidavit has been made. (2) Such notice is to be given a reasonable time before the time at which the person is required to attend for cross-examination. (3) If reasonable notice of such a requirement has been given in respect of an affidavit, and the deponent does not attend for examination, the affidavit may not be used unless the deponent is dead or unless the court orders otherwise. (4) If a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.
The Plaintiff did not suggest that she had not been given notice that she was required to be cross-examined. From what I have heard, she could have been left in no doubt that her credit was in issue.
It was clear that the Plaintiff was present and able to answer questions. Her explanation that she did not wish to do so without having a legal practitioner present, was a matter which appears to have been considered prior to the hearing. (As noted, it had been considered by the lawyers engaged in the appeal to which reference has been made.)
Whilst the Plaintiff did not ask for the affidavits to be read "otherwise", I considered whether leave should be granted to permit that to occur. In doing so, I remembered that one of the factors that the Court should take into account is the ambit of dispute in the case which is capable of resolution by cross-examination.
In this case, as stated, the Defendant's counsel had made it very clear that her credit was to be the subject of real challenge and that the issues between the parties were, in large measure, ones requiring to be resolved by cross-examination.
On the occasions that the Plaintiff appeared in person, unrepresented, the Court had reminded her, more than once, that she may be disadvantaged because she did not have sufficient legal knowledge, the skills, or the objectivity, to conduct this quite complex litigation and had urged her to try to obtain legal assistance.
Following some explanation being given to the Plaintiff about these matters, the hearing was adjourned with the suggestion that the parties should discuss settlement. Upon returning, the Plaintiff indicated that resolution of the proceedings could not be achieved. Again, I reminded the Plaintiff that if she did not make herself available to be cross-examined, in the circumstances, the Court might be left with no real alternative but to dismiss the proceedings.
The Plaintiff, however, maintained that she would not enter the witness box to be cross-examined. In all the circumstances, I formed the view that it would be unfair to the Defendant to allow the affidavits to be read without cross-examination, or to adjourn the long-awaited trial to allow the Plaintiff to make herself available for cross-examination with legal representation. Justice would not be served by permitting either of those things to occur.
I stated that the proceedings would be dismissed since I would retrospectively treat her evidence as not being read.
I then heard some arguments on costs. There was some discussion about how costs might be calculated when counsel for the Defendant tendered, on the question of costs, some documents said to be an Offer of Compromise and a Calderbank offer. These documents were referred to in support of the submission that the Court should order the costs to be calculated on the indemnity basis, and to make a gross sum costs order, and also to avoid more delay in passing of estate accounts.
After discussion, counsel for the Defendant accepted that it would be simpler to make what might be regarded as the usual order for costs, being calculated on the ordinary basis with assessment: Tcpt, 22 February 2022, p 87(35-46). (I was not satisfied that the Defendant's costs, calculated on the indemnity basis, should be made.)
The Court then made the following orders: 1. Orders that the whole of the proceedings be dismissed. 2. Orders the Plaintiff to pay the Defendant's costs of the proceedings calculated on the ordinary basis. 3. Notes that reasons will be published in due course.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2022

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