Supreme Court New South Wales Medium Neutral Citation: Uy v Ng [2021] NSWSC 429 Hearing dates: 26 April 2021 Date of orders: 26 April 2021 Decision date: 26 April 2021 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Application to vacate hearing refused with costs Catchwords: CIVIL PROCEDURE – application to vacate 3 day trial on medical grounds – principles at [17]-[21] – plaintiff in hospital – feeling sick, complaining of chest pains, elevated blood pressure – no report from GP or specialist that unable to attend Court – history of non-compliance with directions due to non-specific illness unsupported by medical evidence – application refused. Legislation Cited: Civil Procedure Act 2005 (NSW) ss 56, 57, 58, 66 Cases Cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716 Forster v Harvey [2006] NSWSC 1112 Hamod v New South Wales [2011] NSWCA 375 In the matter of Wise & Young Pty Ltd [2019] NSWSC 1092 Kerr v American Express Australia Ltd [2009] FCA 1219 Lennox v Amcor Ltd trading as Amcor Cartonboard (No 2) [2009] FCA 962 Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25 Singh v Deputy Commissioner of Taxation [2011] FCA 889 Thornberry v The Queen (1995) 69 ALJR 777 Von Reisner v Chepurin [2012] NSWCA 418 Category: Procedural rulings Parties: Ching Wah (Phillip) Uy (Plaintiff) Lib Heng (Kenny) Ng (First Defendant) Everest Private Pty Ltd (Second Defendant) Representation: Counsel: R A Parsons (Plaintiff) J J Hatton (Defendants) Solicitors: Kells The Lawyers (Plaintiff) Ashurst Australia (Defendants) File Number(s): 2019/377141 Ex Tempore Judgment 1. HER HONOUR: This is an application by the plaintiff, Ching Wah (Phillip) Uy, to vacate a three-day trial listed for hearing commencing today. The application was served on the defendants over the weekend and is opposed. Facts 1. These proceedings were commenced in December 2019. The proceedings were the subject of various delays by the plaintiff, the details of which it is not necessary to set out. In October 2020, time came for the plaintiff to file evidence in reply. The defendants' solicitors circulated proposed short minutes of order for the upcoming directions hearing, proposing a date for the plaintiff to do so. The day before the directions hearing, the plaintiff's solicitor advised that the plaintiff was not in a position to review the defendants' evidence and put on evidence in reply, stating: We are instructed that our client has recently been discharged from hospital due to a serious heart condition. … [W]e will provide you with the evidence from our client's doctor as soon as we receive the same. 1. The defendants' solicitor enquired when the plaintiff had been discharged from hospital, to which the plaintiff's solicitor replied: [W]e have previously misinterpreted our client's instructions regarding his health. While our client is suffering [from] a serious medical condition, we advise that he has not been admitted to hospital… Nevertheless, we confirm that due to our client's illness he is not in a position to provide us with instructions regarding his evidence in reply. 1. The defendants' solicitor sought information in respect of the plaintiff's medical condition: [C]an you please let us know the nature of your client's condition, when he became unable to provide instructions and when he resumed being able to provide instructions. … To the extent your client seeks any further extensions, our client will request evidence with a detailed explanation as to your client's medical condition and how, why and when that has impacted the preparation of reply evidence. There was no reply. 1. On 16 October 2020, Ball J ordered the plaintiff to serve his evidence in reply by 20 November 2020 and listed the matter for hearing today, that is, five months hence. His Honour further ordered that any request by the plaintiff to extend time to serve his evidence in reply be supported by affidavit. 2. On 18 November 2020, that is, two days before the plaintiff's reply evidence was due, the plaintiff's solicitor advised, Our client's ill health has prevented him from reviewing the defendants' evidence and providing us with instructions to prepare his evidence in reply … A further six weeks was sought. An affidavit from the plaintiff's solicitor was attached, which is not in evidence on this application but appears to have attached a medical certificate. 1. On 20 November 2020, the defendants' solicitor requested further information in respect of the plaintiff's medical condition, suggesting that the medical certificate "provides little detail". Further: i. It does not identify whether the plaintiff is in fact suffering from a medical condition. None is named in either your email or the affidavit. At its highest it talks about what the practitioner was told by the plaintiff that he felt. ii. It does not identify whether the alleged difficulties referred to were in fact persistent from 7 October 2020 when your client was served his evidence. iii. There is no mention of any other treating doctor or anything else to suggest a serious and persistent condition that would have completely incapacitated your client for the last 1.5 months and will continue to do so for the coming months. iv. At its highest the medical certificate merely refers to Mr Uy being "unfit for to attend legal office for up to 6 weeks". Among other things, it is not clear that your client is not undertaking any activities at all (including any business activities) and has been limited to bed rest since 7 October 2020. Further, there is no indication that your client is unable to communicate with you through email, phone or video conferencing facilities which, in any event, is the norm during this COVID-19 pandemic. 1. The matter was re-listed for further directions. On 27 November 2020, Hammerschlag J extended the time for the plaintiff to serve reply evidence until 29 January 2021 and also made a guillotine order such that evidence not so served may not be relied upon without leave. The reply evidence was duly served. 2. In April 2021, a statutory demand was issued by The Won Capital Pty Ltd against Gencorp Pty Ltd, a company owned by the plaintiff, in relation to a costs order made against Gencorp in separate proceedings. The statutory demand expired without payment. In addition, GR Capital Group Pty Ltd has served a bill of costs on the plaintiff, arising out of separate proceedings, in the amount of $255,000. The time for objection to the bill of costs has not yet expired. The defendants pointed to these matters as giving rise to a concern that any costs order made against the plaintiff as a consequence of vacating the hearing today may not be met. 3. Which brings us to more recent events. On Monday, 19 April 2021, the plaintiff went to see his general practitioner, Dr Verma. The plaintiff complained of angina pain and had elevated blood pressure. Dr Verma suggested that the plaintiff go to hospital, but the plaintiff refused. On Wednesday, 21 April 2021, the plaintiff saw Dr Verna again. The plaintiff had elevated blood pressure and Dr Verma called an ambulance to take him to Ryde Hospital. The plaintiff's solicitor was informed. 4. On 22 April 2021, the plaintiff's solicitor spoke to a doctor at Ryde Hospital, Dr Vichare, who said the plaintiff was being transferred to St George Private Hospital and would be under the care of a cardiologist, Dr Clement Wong. Dr Vichare was not sure whether the plaintiff would be able to attend Court and said this would be up to Dr Wong to carry out further tests and diagnose the plaintiff. Dr Vichare was unable to provide a written opinion on the plaintiff's condition but said this should come from Dr Wong after his tests. The plaintiff's solicitor advised the defendants' solicitor (and my Associate) that he would be seeking to vacate the hearing today. 5. On 23 April 2021, the plaintiff's solicitor asked Dr Wong to provide a medical opinion in writing to support this application. Dr Wong said he was not able to do so at this stage, "What I can say is that [the plaintiff] has an elevated heart rate and is complaining of chest pains. He has also developed diarrhea which suggest[s] some sort of infection." Dr Wong was asked whether the plaintiff would be fit for Court today and said, "I won't know until we do further tests, but he's not feeling well." Dr Wong's comments are hardly definitive. 6. On Saturday 24 April 2021, the defendants' solicitor advised that the application to vacate the hearing today was opposed; the evidence relied upon by the plaintiff was said to be insufficient. It was noted – and it is noteworthy – that "of the three medical professionals that Mr Uy says he has seen, none of them appear to be prepared to express the opinion that Mr Uy is unfit to attend the hearing". 7. Yesterday evening, the plaintiff's solicitor called his client in hospital, who said he was sick and not feeling very well. The plaintiff's solicitor asked whether the plaintiff was coming to Court tomorrow, and the plaintiff said no. The plaintiff gave instructions to pay the defendants' costs thrown away should I vacate the hearing. It appears that the plaintiff's solicitor may not have made plain the defendants' opposition to the application to vacate the hearing and thus the prospect that the application may fail. Nor did he ask the plaintiff when he might be getting out of hospital nor contact the hospital to find out when that might occur. 8. This morning, the plaintiff's solicitor asked Dr Verma whether he would provide something in writing as to the plaintiff's ability to attend Court. Dr Verma said, "The best person for that is the specialist at this stage, he will be assessing him. I sent him to hospital because of the angina. It's dangerous and needs to be looked at." I do not understand Dr Verma to be suggesting that he had diagnosed the plaintiff as suffering from angina. Rather, Dr Verma sent the plaintiff to hospital as he was not certain about the plaintiff's condition and was unable to diagnose him in the surgery. 9. The plaintiff's solicitors have made enquiries about obtaining a copy of the plaintiff's medical records but, it appears, have not sought the plaintiff's consent to be provided with such records. The discharge document that accompanied the plaintiff from Ryde Hospital to St George Private Hospital may have been useful. Principles 1. Drawing on my judgment in In the matter of Wise & Young Pty Ltd [2019] NSWSC 1092 at [17]-[19], section 66(1) of the Civil Procedure Act 2005 (NSW) provides that the court may adjourn proceedings. While this power is cast in broad terms, its exercise is governed by section 58 of the Act, which requires that, when deciding whether to grant an adjournment, "the court must seek to act in accordance with the dictates of justice," in respect of which the court must have regard to sections 56 and 57 of the Civil Procedure Act. The interaction of these provisions was considered extensively by Beazley JA (with whom Giles and Whealy JJA agreed) in Hamod v New South Wales [2011] NSWCA 375. In particular, her Honour considered, at [139] ff, that the exercise of section 66 is subject to the principles of case management set out by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. See likewise Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25 at [48]–[64]. 2. In Thornberry v The Queen (1995) 69 ALJR 777, the High Court held per curiam (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) that the refusal of an adjournment which resulted in a party being unable to adequately present their case was a miscarriage of the Court's discretion. There, the accused sought an adjournment from lunch time until the following morning to call two alibi witnesses critical to his defence. This decision has been followed in civil matters: Singh v Deputy Commissioner of Taxation [2011] FCA 889; Kerr v American Express Australia Ltd [2009] FCA 1219; Lennox v Amcor Ltd trading as Amcor Cartonboard (No 2) [2009] FCA 962; Cohen v McWilliam (1995) 38 NSWLR 478 (Court of Appeal) although, obviously enough, much turns on the facts of each case. 3. Returning to the principles in Aon which are applied analogously to applications for adjournment, it is not only the interests of the party to the instant proceedings which ought to be considered; an adjournment necessitates a further appointment of a hearing date which will inevitably delay other parties from obtaining a hearing: Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716 at [58] per Davies J. Thus, the notion that adjournments can simply be met by an appropriate costs order is no longer an acceptable approach: ANZ v Mio Amico at [59], citing Aon at [99]-[101]. 4. What is required on an application such as this is medical evidence of sufficient specificity to enable the Court to be satisfied that the applicant is in fact unable to attend Court: ANZ v Mio Amico at [66]. As Young CJ in Eq noted in Forster v Harvey [2006] NSWSC 1112 at [8]: However, there are two situations where the court [will proceed with the hearing in the absence of a party]. The first is the situation where a party is so ill that it is unlikely even if the case is adjourned that he or she will be in any better position on the next occasion. The second is where there have previously been delays due to alleged illness of a party, the court makes it quite clear that if there is to be an application for an adjournment that must be by motion supported by affidavit …. One of the reasons for making that order is that unfortunately medical certificates appear to be very easily obtained. A party whose case is delayed by a medical certificate from the other side should have the opportunity of cross-examining the doctor concerned to ensure that the other party is as sick as she says she is. It is quite useless in that situation for the person who is not going to attend to write a letter to the court enclosing a common form medical certificate containing a very vague assertion as to the disability and not turn up herself and/or make the doctor available for cross-examination. 1. Barrett J made a same observation in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22]: All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything. Consideration 1. The medical evidence relied upon in support of this application does not enable the Court to be satisfied that the applicant is in fact unable to attend the trial. Further, the evidence does not assist me either way as to whether the plaintiff's health will be any better should I vacate the hearing today: Von Reisner v Chepurin [2012] NSWCA 418 per Ward JA at [4]. 2. Against this, two matters point in favour of an adjournment. First, the plaintiff's case turns on evidence of two oral agreements. If the plaintiff does not give evidence in support of his case, his claim will fail. Second, it may not have been made clear to the plaintiff that his application for an adjournment today may be refused, notwithstanding his offer to pay any costs thrown away. In addition, although the plaintiff's solicitors have worked hard in the time available to try and obtain medical evidence, it appears that some avenues may not have been exhausted, for example, requesting a copy of the discharge summary from Ryde Hospital or seeking the plaintiff's consent to be provided with a copy of his medical records. Perhaps these matters should not be visited upon the plaintiff. 3. Weighing those matters up, and also having regard to the plaintiff's history of seeking to delay these proceedings by reason of non-specific medical conditions, I am not prepared to vacate the hearing of this matter today. However, I will permit the plaintiff an opportunity to attend to give evidence in support of his case either by video link from hospital or in person tomorrow, as I am told by the defendants' counsel that it is likely that the case can be completed in the allocated hearing time if that course is followed and the other witness in the plaintiff's case gives evidence today. 4. For these reasons, I dismiss the notice of motion dated 23 April 2021. I order the plaintiff to pay the defendants' costs of the notice of motion. ********** 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: 29 April 2021