There are three motions in this matter in the possessions list listed for hearing before me today. Two of the motions are propounded by the defendant. The first seeks a transfer of these proceedings to the Federal Court of Australia; and the second, summary dismissal of the proceedings.
The defendant's motion, in accordance with the practice in the possessions list, is to strike out the defendant's defence.
The motions have some history in the court which I will refer to in a moment.
When the matter was called for hearing today, Mr Mark Pytellek sought leave to appear on behalf of the defendant who is not legally represented. Mr Pytellek is the recipient of a power of attorney in relation to the defendant's affairs which I have seen in the court file. That capacity does not give him a right of audience but he sought leave to appear and I propose to grant him that leave.
The basis on which he sought leave to appear is that Mr Hammer is in the United States of America; more specifically in the State of Hawaii. From material filed, which I have read in preparation for today's hearing, I understand that he may be there because his Australian visa has expired and it is necessary for him to leave the country to reapply for entry after a period of time. I am not fully cognisant of the requirements of the migration laws in that regard.
Notwithstanding his absence from Australia, and his residence for the time being in Hawaii, Mr Hammer has filed a number of affidavits electronically and very detailed written submissions in support of his, and in opposition to the plaintiff's, applications.
Mr Pytellek also indicated that Mr Hammer had sought legal representation for today's hearing. I was informed by him, and also by Mr Gor of counsel who appears for the plaintiff, that Mr Peter King of counsel came into the court just before I came on the bench and informed Mr Pytellek and Mr Gor that he was not available to appear today because he had a prior, competing professional commitment. However, he did not leave any information with Mr Pytellek or Mr Gor as to when he might be in a position to appear.
In support of the application for an adjournment I have read Mr Hammer's affidavit of 30 June 2015 and, over the objection of the plaintiff, I granted Mr Pytellek leave to file in court, and read, Mr Hammer's affidavit of 15 July 2015 transmitted to him electronically this morning.
From those affidavits I gather that Mr Hammer sought to retain the services of Mr King on 21 May 2015; that is two days before the matter was listed for hearing before her Honour Schmidt J. It seems that Mr King was happy to accept the brief but required, quite properly, the intervention of an instructing solicitor.
Mr Hammer apparently then retained a Mr Peter McKell at some time I am unsure of. He says that he at all times complied with all requests for instructions, and other requirements made of him, by his lawyers but that, through no fault of his own, Mr McKell ceased to act. From his affidavit of 30 June, I gather that he then accepted that he would be self-represented at today's hearing.
He had sought an extension of time to comply with the directions made by Schmidt J on 23 May, which, although not formally granted, by acquiescence he has filed, in accordance with the extension he sought, further affidavits, a further proposed amended defence, and detailed written submissions addressing the issues raised by today's various motions.
However, in his affidavit of 15 July 2015, he requests an adjournment until October or November to give him the time to have Mr King, and he also says Mr McKell, properly prepare the case.
I expressed in the course of the discussion with Mr Pytellek that I would simply not be prepared to grant such a long adjournment to deal with these interlocutory issues.
I should record that Mr Hammer was happy for his motions to be determined today but the adjournment was sought in relation to the motions to strike out his defence filed by the plaintiff as long ago as 14 May 2015.
Mr McKell's notice of ceasing to act was filed on 1 July 2015. These proceedings were commenced in 2014 in respect of an alleged default on a mortgage. Although it is not an absolute rule, normally these matters are dealt with in this court in the possessions list with a degree of expedition bearing in mind the presumptive right of a mortgagee to its security.
As I said, the matters were listed before Schmidt J on 23 May 2015 and were only adjourned at that time because Mr Hammer raised a constitutional point in relation to this court's power to exercise federal jurisdiction. And her Honour felt compelled, understandably, by the provisions of 78B Judiciary Act 1903 (Cth) to adjourn the proceedings until the required notice had been given to the Attorneys' General of the Commonwealth, and the States and Territories.
That notice has been given and I apprehend that there is evidence, and Mr Gor has said this from the bar table without objection, that all of the various Attorneys' have responded in terms that they do not wish to intervene in these proceedings at this stage.
I have no information before me as to when Mr King is available or what he would say about his state of preparedness to deal with the issues raised by the motions.
In Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716 at [62] Davies J pointed out that an adjournment will not normally be granted simply because there has been a late withdrawal of legal representatives. It matters not what the reason was except in the case of supervening personal illness or injury. A fortiori, the unavailability of legal representatives, again except in exceptional circumstances, will not justify an adjournment.
I have also taken into account, as I raised with Mr Pytellek, that given an aspect of this case is the recovery of a large debt and currently Mr Hammer is outside the jurisdiction, I am not satisfied that an order for costs would cure the prejudice the bank would undoubtedly suffer if I was to adjourn this matter today because I am not satisfied, and Mr Pytellek has not been able to disabuse me of this concern, that Mr Hammer is in a position to pay the costs that would be thrown away.
In circumstances where the costs of the bank in enforcing its mortgage are piling up on the defendant's putative indebtedness, it seems likely that the additional accretion of costs and interest will further erode any equity the defendant has in the property, and, on the other hand, reduce the efficacy of it as a security capable of covering the total amount of the defendant's indebtedness to the bank.
For these reasons, I refuse the defendant's application for an adjournment of these proceedings.
(After the short morning adjournment, Mr Pytellek made some further submissions and his Honour gave the following additional reasons).
I had, before the short adjournment, refused an application for an adjournment of the hearing of these matters. I took the morning adjournment early to allow Mr Pytellek to confirm with the defendant that the latter would prefer the former to continue in the matter if I granted leave, rather than rely simply on the written submissions, which are quite extensive.
Mr Pytellek has been unable to contact Mr Hammer directly, although I understand it is only about mid-afternoon, probably yesterday, in the State of Hawaii. In any event, he has pointed out to me, in relation to my reasons that, first, the circumstances are more extraordinary than I thought; that Mr Hammer does have equity so my concern over that might be misplaced; and he wished to emphasise that the defendant does not consent to the proceedings being conducted without him having the benefit of legal counsel.
For the reasons I have already given, I do not regard these circumstances as extraordinary. I do not think there is anything about these circumstances that engage the exceptions I have referred to in passing to the rule that the court will not grant adjournments because of late withdrawal, or unavailability, of legal counsel. The type of exceptions I had in mind were really matters of accident or illness that prevented counsel from appearing.
The fact that there may yet be equity in the property does not displace the consideration that its value is being eroded by the continuation of these proceedings involving the piling up of default interest and the bank's legal costs. That works to the disadvantage of both the bank and the defendant.
I record, as I have done, that Mr Hammer does not consent to me dealing with the matter whilst he is not represented by counsel, but that of itself is not a reason for me to decline to hear the case. The jurisdiction of this court, indeed the jurisdiction of the ordinary courts of justice in this country, does not depend upon acquiescence or consent of the parties to the exercise of its powers.
I see no reason to change the order I made already, refusing the adjournment application.
[3]
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: 17 July 2015