HAWKINS v JAMES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, MAHONEY and PRIESTLEY JJA 29 January 1990, 29 January 1990 [1990] NSWCA 91 PRACTICE AND PROCEDURE — appeal — interlocutory order — trial judge refuses adjournment — immediate application for stay of the hearing of a trial to permit a summons for leave to appeal to be brought the following day to the Court of Appeal — claim for damages for medical professional negligence — case set down in November 1989 for trial in the Supreme Court in January 1990 — late application on morning of trial for an adjournment on the basis of the absence from the jurisdiction of the plaintiff's key medical witnesses — report of evidence of one such witness is strongly supportive of the plaintiff — counsel advises that plaintiff will fail without such evidence — trial judge refuses adjournment — application to Court of Appeal for relief in support of proposed summons for leave to appeal — held: (Mahoney and Priestley JJA; Kirby P dissenting) The Court of Appeal should not disturb the exercise by the trial judge of his discretion to refuse an adjournment and should not provide interim relief to permit such a challenge to be brought on a summons for leave to appeal. COSTS — solicitors' mistakes — whether relevant to contested application for adjournment — proper order to be made — whether solicitors could be ordered to pay costs themselves — Riv-Oland Marble Co (Vic) Pty Ltd v Settef SPA (1989) 63 ALJR 519 referred to. Kirby P On the first day of the new Law Term for 1990, the Court was in the midst of hearing a summons for prerogative relief in respect of a criminal trial listed to commence in the District Court on the following day. That summons had itself been expedited for obvious reasons. The hearing of those proceedings was interrupted by an urgent application in the present case. Urgent application to review refusal of adjournment The Court was moved, orally, to provide immediate relief from an order given by Grove J in the Common Law Division of the Supreme Court earlier that day. The Court devoted some time to hearing the application. It was then, by majority, dismissed with the short statement that the majority of the Court was not of the view that the claimant had made out a case to warrant the disturbance by the Court of the Appeal of his Honour's exercise of discretion to refuse the adjournment. Because of the other urgent proceeding to which the Court then returned, it was not convenient to provide immediate reasons to explain the decision of the Court or to outline the difference of opinion which emerged amongst the judges. However, it is now appropriate to provide, in short outline, the reason why I would have provided some relief to the claimant in the circumstances and why I differed from the order pronounced for the Court having regard to the opinion of the majority. The claimant is Mrs Dianne Julie Hawkins. She sought to have reviewed an order by which Grove J refused an application made by counsel on her behalf for the adjournment of the trial of a proceeding brought by her against the opponents. 2 UNREPORTED JUDGMENTS In those proceedings she claims damages from them for medical professional negligence. It goes without saying that the Court of Appeal would rarely interfere in the exercise of such a discretion by a trial judge. I approached the foreshadowed challenge by the claimant with a full understanding of the many reasons for restraint, expressed by this and other appellate courts, to discourage the over-enthusiastic disturbance of such decisions. The prospect of their being readily challenged in the Court of Appeal is self-evidently unattractive. Nevertheless, the Court exists to provide relief where the law allows it and justice requires it. It is not perched, ready to swoop on the slightest suggestion of error. Nor is it chained, unable to intervene, where intervention is called for. Out of respect for the announced intention of the claimant to move the Court, Grove J adjourned the proceedings and delayed the commencement of the trial for a short time, as was entirely proper. The Court did not have before it process, in the sense of a summons or motion to identify precisely the relief sought. Nor did it have all of the evidence in an appropriate form, upon which the claimant based her application for relief. But it did have an affidavit of Mr Michael Magee, solicitor for the claimant. It also heard uncontested statements from the Bar table by counsel for the claimant and counsel appearing in the common interests of the opponents. There was every reason to act upon this material. Although it was imperfect and incomplete, it sketched the circumstances which had arisen before Grove J sufficiently to lead me to consider that some interim relief was required. The claimant acknowledged that the decision by his Honour refusing an adjournment was interlocutory in character. Accordingly, in order to secure substantive relief against the order challenged, the claimant required leave to appeal from this Court. See Supreme Court Act 1970, s101(1)(e). No summons for that purpose had been filed. No statement in support had been lodged as required by the Rules. Time simply did not allow these procedures to be followed. Procedural rules exist to assist the Court to do justice and not to impede the attainment of justice. That is why the Court allowed the matter to be orally argued, as it was. In the ultimate, the relief identified by the claimant was a short stay to prevent the commencement of the trial instanter and to permit the filing of a summons returnable before the Court on the following morning. In support of that summons (or in opposition) the parties would then have the opportunity to place before the Court affidavit evidence in elaboration of, or opposition to, the grounds for relief. Put shortly, it was my opinion that the claimant should have had that interim relief. In general terms, I indicated that opinion during argument. A case of medical professional negligence The claimant's case arises out of a series of operations she had on her breasts at the Port Kembla District Hospital (the third opponent). The first two opponents, medical practitioners, were involved in the procedures and follow up treatment which she claims were negligently performed. The occasion for the dispute that brought the matter to the Court of Appeal was the unavailability to give evidence of two expert medical witnesses qualified by the solicitors for the claimant to give evidence in the case. Those experts were Dr Hughe Marsden and Dr Trevor Harris. As appears from the affidavit of Mr Magee, the hearing date for the trial of the action in the Supreme Court, before a judge and jury, was set down for 29 January 1990 for three days. The setting down occurred at a call-over in the Court on 22 November 1989. Mr Magee states that, before the call-over, enquiries had URJ HAWKINS v JAMES (Kirby P) 3 been made as to the availability of Doctors Marsden and Harris to give evidence at the hearing. It is left to inference that they were then reported as available to give evidence. Certainly the Court was not told otherwise. Mr Magee's affidavit records that, after obtaining the hearing date, "it was found that Dr Marsden and Dr Harris would not be available for the hearing on 29 January 1990. Towards the end of last week I caused enquiries to be made as to their availability and was informed that both doctors were out of the country". Counsel for the opponents declined the opportunity to cross-examine Mr Magee. Counsel for the claimant was informed of this predicament by his solicitors on 26 January 1990, a public holiday. Although he knew the name of counsel appearing for the opponents, he did not then inform him of his difficulty until the return date for the trial. It is left to inference that the case was not at first listed for hearing. Perhaps the claimant was hoping that the case would not be reached. But it was. It was called on before Grove J. When the matter was called the application for the adjournment was argued before his Honour and declined by him. Mr Magee's affidavit proceeds that counsel for the claimant had informed him that he believed that the plaintiff's case would fail without the evidence of Dr Marsden. Dr Marsden's report dated 12 November 1982 was placed before this Court, as apparently before Grove J. As appears from his qualifications, Dr Mardsen is an expert surgeon. It is sufficient to say that the report is highly critical of the way in which the bilateral reduction mammoplasty was performed upon the claimant. Dr Marsden is specifically critical of the failure to put the claimant "under the care of a competent psychologist before the first scalpel was drawn". He expresses the view that the interventions "were not based on a sound diagnostic principle, were not conducted with appropriate skill and in a word were not essential". Specifically, he expresses the view that "regrettably the course of events in this case reflects the extraordinary degree of amateurism which exists in 'pockets' in many provincial and even metropolitan hospitals". The effect of the operation is described as "cosmetically unsatisfactory". A second operation was described as "unwise", though not unreasonable. The failure of the hospital to isolate the claimant and to conduct pathological tests to identify any infecting organism and to provide appropriate antibiotic medication and skilled nursing procedures as a matter of immediate and vigorous concern is roundly condemned. The procedures adopted instead were described as "unsatisfactory" amounting to "a case for gross professional negligence in respect of the management of the case once infection became established". These opinions are expressed in strong terms. They are the more unusual because of the notorious difficulty of securing opinions within the medical profession (as others) by one practitioner critical of the professional performance of others. The opinions appear to be highly relevant to the plaintiff's allegations of professional negligence. At least, they provided a basis for the opinion given by counsel to the claimant which is recorded in the affidavit of Mr Magee. It can well be imagined that, if the claimant had no other equivalent opinions to support her case, she might well face difficulty in establishing negligence of the kind deposed to in Dr Marsden's report. The issue at first instance In these circumstances, the issue before Grove J required his Honour to balance the undoubted inconvenience of a very late, and lately notified, application for adjournment against the risk that a miscarriage of justice would 4 UNREPORTED JUDGMENTS occur if the claimant were forced to a hearing of her action in the absence of the evidence of some witnesses, notably that of Dr Marsden. I have every sympathy, given the state of the Court's lists, for Grove J's determination that the matter should proceed to trial as listed. I share what I can presume to be his Honour's sense of impatience with the representatives of the claimant that, at such a very late stage, they should be making such an application for adjournment. I am conscious of the fact that this is a very old case indeed, referring as it does to events which happened more than eight years ago and to other events which occurred much earlier. The Court was also informed of some difficulties faced by the opponents because of the delay and these can well be imagined. On the other hand, litigation is not a game. In particular it is not one in which parties are punished, unnecessarily, for the defaults and omissions of their legal representatives. Such defaults can frequently be cured, quite adequately, by cost orders. Such orders may include orders on an indemnity basis, to protect the interests of parties adversely affected by professional incompetence or mistakes by the representatives of their opponents. Where such orders can adequately protect a party or where, for example, such orders together with expedition of the new hearing date, can protect the party disappointed by an adjournment, that is the course that a court should follow. A court should not force a matter on to trial simply because the legal practitioners have seriously neglected their duties. At least, it should not do so where the risk is then run that the trial will then be conducted on an unfair basis. In my opinion it was at least highly likely, on the material presented to this Court, that a trial of the claimant's case absent the evidence of Dr Marsden, would be extremely unfair, perhaps resulting in a miscarriage of justice. It was for these reasons that I was inclined to provide the claimant at least with a short stay, until the following day, to allow the record to be put in order, a summons brought forward to consider the case and any evidence put in proper form so that it could be considered by the Court. That, as I have said, is what the claimant ultimately sought. I am conscious that even such a short disturbance of the discretion of a trial judge to refuse an adjournment should not lightly be made. I am also conscious that there was some risk that a short stay might result in the loss of the jury in waiting, although this was not at all clear. I am conscious further of the difficulty, which counsel for the claimant candidly acknowledged would be presented to him, by the possible unavailability of other witnesses, if the case were to commence later. Also to be borne in mind was the fact that, if the trial could be shown to have failed because of the absence of the evidence of Dr Marsden, the claimant might have available to her remedies against her solicitors because of professional negligence on their part. Reasons for providing interim relief As against these considerations, the reasons that led me to believe that short interim relief was appropriate were as follows. The opponents did not assert any special prejudice over and above the natural disappointment and inconvenience occasioned by an adjournment. They acknowledged that such prejudice as they suffered could be substantially covered by an indemnity order as to costs which the solicitors for the claimant could be expected themselves to pay. After hearing the solicitor, the court might even so order itself. Cf Riv-Oland Marble Co (Vic) Pty Ltd v Settef SPA (1989) 63 ALJR 519. Such an order would bring home to the persons really responsible for this debacle, the burden of the Court's displeasure. It would avoid affixing that burden to a person who, it may be URJ HAWKINS v JAMES (Kirby P) 5 presumed, is perfectly innocent of default, namely the claimant herself. The claimant has by all accounts (whether negligence can, or cannot, be established) undergone a burdensome series of operations and infections. To add to these the burden of court mishaps and a possible trial of her action on a false basis is, as it seems to me, arguably to extend torture to an exquisite degree. I would not be a party to such a procedure, if it could properly be avoided. In weighing the failure to provide notice to the opponents until the very morning of the trial, some regard may be had to the mitigating circumstances that the Law Vacation did not conclude until the morning the trial was listed. This does not excuse the solicitors' default nor the apparently late enquiry about the unavailability of the witnesses. But it is a circumstance to be borne in mind in considering the degree of culpability. The Court was informed by counsel for the opponents that he would not consent either to the tender of the medical report to be read before the jury nor to an order dispensing with the jury so that the trial could be part-heard before Grove J, sitting alone. If this course had been agreed to the evidence of the now absent witnesses might be taken upon their return to Sydney. The position adopted by the opponents is understandable and I do not criticise them for adopting it. However, effectively, it excludes the solutions which could otherwise provide a means for ensuring that the apparently relevant evidence of Dr Marsden was placed, during his absence from the State, before the tribunal deciding the case. Cf Evidence Act 1898 s14B. The admission of such evidence, over objections, in a trial by jury would have run the gauntlet of ss14B(6) and (7). So far as the possibility of a claim against the solicitors in the event that the claimant's action were to fail is concerned, I regarded that as an entirely unsatisfactory reason for withholding the intervention of this Court. The claimant's case might succeed; but not wholly because of the absence of the evidence of Dr Marsden. This, in turn, could present very real difficulties of proving the significance, if any, to what occurred at that trial of that evidence, or the lack of it. The prospect of involving the claimant unnecessarily in yet a further series of litigation was not attractive to me when there was another, simpler, remedy. Principles governing adjournments The Court was told that the jury in waiting would returned to court, at least, on the following day. I have no doubt that the Court might indicate to the Sheriff that this was its wish so that it could still have reserved the possibility of the commencement of the trial, whilst preserving to the Court the opportunity to consider the claim for leave to appeal on a proper footing. As it was, the application for interim relief was refused substantially, as it appears, out of deference to the exercise of discretion by the trial judge. I too defer to that exercise of discretion. But not where its exercise might have been affected by an error of principle or where it could result in a serious risk of injustice. The correct principle which Grove J had to apply was that an adjournment of a hearing should ordinarily be granted if to refuse it could occasion an injustice to the applicant and where any injustice occasioned by such an adjournment could satisfactorily be repaired by appropriate orders, eg as to costs. See Watson v Watson (1968) 70 SR (NSW) 203, 210; Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246, 252. Cf Sackville-West v Attorney General (1910) 128 LT Jo 265; Petrovic v Taara Formwork (Canberra) Pty Ltd (1982) 62 FLR 451 (FFC) and Halsbury's Laws of England 4th ed, vol 37 at 385. 6 UNREPORTED JUDGMENTS It appeared to me to be arguable, at least at the stage which argument had reached in this Court, that this principle had not been applied by his Honour in the circumstances of this case. It was to permit the exploration of that argument that I would have favoured providing a stay of the hearing of the claimant's action until the following day, returning then the foreshadowed summons of the claimant for leave to appeal from the refusal by Grove J of the application for adjournment. I would certainly have favoured an order that the claimant (meaning thereby her solicitors) should bear the costs incurred as a result of the necessity to approach the Court of Appeal in the circumstances. However, as this was a minority view, it did not become the order of the Court. That order was simply that the claim for the intervention of the Court be dismissed. Order and disposal of proceedings Necessarily, the disposal by the Court of the claim for immediate relief in support of an application for leave to appeal (which was therefore never heard) does not finally determine the rights of the parties in respect of the refused adjournment. That issue may, in due course, come on appeal to the Court of Appeal following a judgment in the claimant's action. As the Court did not hear full argument on the issues, the views which I have expressed in these reasons are provisional only. They are expressed only to the extent necessary to explain why I considered that the claimant had made out a case for short relief, precisely to allow the matter to be canvassed at greater length. Mahoney JA On 29 January 1990 Grove J refused the plalntiff's application to adjourn the jury trial of the plaintiff's claim which was listed to commence before him on that day. The application for adjournment had been made to his Honour not on a formal motion but upon the oral application of counsel. The grounds of the application were, this Court is informed, as stated by counsel from the Bar table. Following refusal of the application for adjournment, counsel for the plaintiff moved this Court. The application made was for leave to appeal against his Honour's order. The application to this Court was not made on formal motion: it was made by counsel for the plaintiff orally. No Statement of Facts was filed as required by the Rules of Court. A short affidavit was filed setting out some of the facts relied on: the bulk of the matters relied on were stated by counsel from the Bar table. No point was taken as to the informality of the application as made to this Court. Counsel for the plaintiff did not suggest that he proposed to file a formal motion or that the material for consideration be placed before the court in a more formal manner. Reference to the absence of a formal motion was made during the course of discussion between counsel and the bench and counsel for the plaintiff indicated that he would, if necessary, have a formal notice of motion prepared. Counsel for the defendants took no point as to the absence of a formal motion. It was not suggested that, for the purpose of dealing with the substance of the application, viz, whether leave to appeal should be granted, the court should require that a formal notice of motion be filed. To require that would, of course, have resulted in the determination of the application being delayed until the following day and, it may be, the consequent delay in the commencement of the trial. As I understand the course that was taken, this Court was content, as were counsel, that procedural formalities be put aside and that the substance of the matter be dealt with. URJ HAWKINS v JAMES (Mahoney JA) 7 The order made by this Court was that the application for leave to appeal be refused. This is, in my opinion, not a matter in which the general course of not giving reasons for such a refusal should be departed from. But, if reasons are to be provided, it is the reasons for the refusal of the application for leave to appeal which are in question. The case was, in my opinion, not one appropriate for leave to appeal. There was no issue of principle involved: counsel did not suggest that there was. The law was not in question. No authorities were referred to by counsel, nor did they need to be. His Honour's decision had involved merely the application of accepted principles to the facts of the case before him. The decision against which leave to appeal was sought was preeminently one with which, on established principles, an appellate court is slow to interfere. It was an interlocutory decision on a procedural question of a discretionary nature. The facts placed before the trial judge and on which he exercised his discretion had, as I have said, been placed before him only in an informal manner. Counsel for the plaintiff - there is no criticism in this - followed a similar course before this Court. It was not suggested that another course should be followed. The result was that there was no record of the facts by reference to which this Court should judge whether there had been an error of principle or otherwise by the trial judge. The merits of the matter were not clear. It is sufficient to refer only to two matters: delay and cost. The application for adjournment was made on the day the trial was to commence, namely, 29 January 1990. The defendants were then ready to proceed. It would appear that no notice had been given to the defendants prior to 29 January 1990 that the plaintiff would seek an adjournment of the trial. Counsel for the defendants informed the court that the reason advanced by the plaintiff for the adjournment, namely, that a particular doctor or doctors would not be available to give evidence at the time, had become known to the defendants' advisors as early as mid-December. No reason was advanced why application for adjournment was not made before 29 January 1990. The case, involving allegations of professional negligence, was, it was said, apt to last for approximately one week. In a case which had been pending, as this had, for a number of years and in which, as the defendants informed the court, witnesses for the defendants had already died, lt was relevant to the exercise of the judge's discretion that the application for adjournment was made only on the day the case was listed to commence. The court asked counsel how long the trial would be delayed if the adjournment had been granted. Counsel were not able to assist the court: apparently no inquiries had been made in that regard. It was suggested, in general terms, that a delay of four or five months might be expected. In discussion with the bench, it was indicated that if the adjournment was to be granted the court would or might require that the defendants' costs occasioned by the adjournment, assessed on a proper basis, be paid by the plaintiff. I agree that prima facie this would be a term of any adjournment. However, as counsel for the plaintiff fairly indicated, the plaintiff was not in a position to undertake to pay such costs. It was, in discussion with the bench, suggested that the plaintiff's solicitors had been in default and that the defendants' prejudice in costs could in this regard be safeguarded by an order that the plaintiffs solicitors pay the defendants' costs. As at present advised, it would not, in my opinion, be appropriate that such an order be made. The court has not examined the question 8 UNREPORTED JUDGMENTS whether the plaintiff's solicitors were in default in relation to the matter. The solicitors have not been invited to place before the court evidence as to what happened. Justice would require that, before they be condemned in costs, they have the opportunity to deal with the matter. Therefore, on the information before the court, the defendants' costs as occasioned by the adjournment cannot be safeguarded. A refusal of adjournment will, at least ordinarily, cause some prejudice to the plaintiff. This does not require that an adjournment be given. The problem of the trial judge is to determine where, given such prejudice, the balance of justice lies. And it does not assist the determination of that problem to reiterate that such prejudice will or may occur. The trial judge will, special cases apart, be best able to judge whether an application for adjournment should be granted and whether, if initially refused, the facts emerging at the trial indicate that subsequently a different or other appropriate order should be made. And, in the end, if the trial judge is found to have erred, to the extent that the proceeding has miscarried or it otherwise is appropriate, the plaintiff may seek a review of the position, including if necessary a new trial, before this Court. It is, in my opinion, for reasons of this kind that this Court will seldom see justice as requiring an interference with a trial by this Court before the facts and the consequences of them are known properly and fully. I would see the court's order as made for the reasons to which I have referred. Priestley JA An application was made to this court on Monday 29 January 1990 for leave to appeal against the refusal earlier that day by Grove J to grant an adjournment of a trial in which a jury was about to be empanelled. The court by majority decided to dismiss the application for leave. Such cases are usually disposed of without written reasons later being given. I think that would have been the preferable course here, but from deference to the President I will state my reasons for joining with Mahoney JA in deciding to dismiss the application, but will do so in the fewest words I can manage. The hearing date, 29 January 1990, for the plaintiff's case was fixed on 22 November 1989. The plaintiff's legal advisers were agreeable to the date fixed. Three days were set aside for the hearing. The plaintiff's solicitors became aware in mid December 1989 that two doctors the plaintiff intended to call as witnesses would be overseas on the hearing dates. The solicitors did not then tell their counsel, their opponents or the court of this. Plaintiff's counsel became aware of the position on Friday 26 January 1990. He did not then tell either his opponent or the court. The matter was in the list on 29 January 1990 and in accord with practice first came before the Deputy Registrar. The plaintiffs representatives did not say the two witnesses were not available. Towards noon, the matter was called on before Grove J for hearing. Plaintiff's counsel then applied for an adjournment on the ground that two doctors were overseas. He said the evidence of one of them, Dr Marsden, was essential to the plaintiff's case, and that he was briefed with a 1982 report from him. The application was opposed. From what this court was later told of what took place before Grove J, I was not able to ascertain whether anything more was put before him than the bare details I have set out. Plaintiff's counsel told us that Grove J, after argument said that in the circumstances there was not sufficient reason to warrant an adjournment. URJ HAWKINS v JAMES (Priestley JA) 9 We were also told that the plaintiff began her proceedings in 1983, on the ground of professional negligence, against two medical practitioners and a hospital. The negligence was alleged to have taken place in 1979. These matters would have been known to Grove J from the papers before him. Plaintiffs counsel said the trial judge had made a serious error, in the exercise of his discretion, in refusing the adjournment, because he did not give full consideration to the prejudice that flowed to the plaintiff by refusing the adjournment. This really amounted to no more than a submission that the judge was wrong, as obviously he was aware of what counsel said, and it is impossible that he did not consider it. Non consideration can not be inferred from non acceptance. I did not think any case was shown that Grove J erred in law or in exercise of discretion. He knew that the plaintiff's representatives had sat by since mid-December, withholding notice of any intention to apply for an adjournment if the case came on for hearing on the date fixed. From this it was obviously open to him to wonder whether Dr Marsden was as important to the plaintiff's case as was being claimed. It was also open to him to wonder whether the aim of the plaintiff, or her representatives, had been to obtain a settlement of the case before hearing. These were legitimate surmises for the judge to have in mind as possibilities, whether or not either of them was right. It seemed to me quite sensible for the trial judge to do what he did. Amongst other considerations, as the case went on he would get a better idea of the importance of Dr Marsden's evidence for the plaintiff's case. The course taken by the judge was not the only one open to him. He might also have granted the adjournment, although probably on onerous terms; however, the plaintiff's submission to this court went further and insisted that the trial judge had been bound to grant the adjournment. I did not agree. In my opinion, it was open and proper for the trial judge to go on with the trial and see what happened. It was open to plaintiffs counsel, as matters unfolded and became clearer to the trial judge, to renew his application for an adjournment, even if this meant applying for discharge of the jury. Many things might happen between the empanelling of the jury and their verdict. The judge might admit the witness's statement pursuant to s14B of the Evidence Act. Another witness might give the necessary evidence. An adjournment might, at some later stage, be granted. For this court to have granted leave to appeal, or taken any lesser step resulting in an adjournment de facto because the application for leave remained on foot, would, in my opinion, have been premature. Had the trial gone to judgment and this court later been of the view that Dr Marsden was of such importance to the plaintiff's case that it was unjust for the proceedings to have been completed without his evidence, then the plaintiff would in the ordinary course have been entitled to a new trial. The Court of Appeal does not, during a trial, perch upon the trial judge's shoulder in regard to every ruling he makes. Exceptional cases apart, this court's appellate powers are not to be invoked, and will not be exercised, regarding the conduct of a trial, until the trial is over. So far as I was able to gather from the material before this court, there was nothing in Grove J's refusal of the adjournment to bring his decision into the exceptional class. In my opinion the application for leave was bound to be dismissed, with costs. Claimant's application for relief dismissed with costs. Counsel for the Appellant: B S Robison 10 UNREPORTED JUDGMENTS Solicitors for the Appellant: Maurice May and Co Counsel for the Respondent: J Poulos Solicitors for the Respondent: Blake Dawson Waldron