GEOFFREY WALTER EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL Kirpy P, PRIESTLEY JA and MEAGHER JA 14 April 1993 [1993] NSWCA 88 Kirby P. We have had a message that the matter was not ready to proceed. EDELSTEN: I have requested an adjournment for a number of reasons and filed an affidavit for the Court yesterday after giving notice by letter before the Easter break as to the reason why I required an adjournment. KIRBY P: What is the ground of the application? As I understand it, it is that you have no longer the services of a solicitor who previously appeared for you, and you have some medical difficulties? EDELSTEN: That is correct. KIRBY P Why have you terminated the services of your solicitor? EDELSTEN: I could no longer afford to pay their fees. Legal Aid has been refused. KIRBY P: When were you informed that your application for Legal Aid had been refused? EDELSTEN: I learnt about it approximately 10 days ago. I believe they refused the application about three weeks ago. KIRBY P: Have you appealed that decision? EDELSTEN: I asked my solicitor to do so but she told me that it was hopeless. KIRBY P: Do you intend to appeal the decision, or not? EDELSTEN: I do. KIRBY P: There have been medical reports put before us. Perhaps they could be identified. We have a report of Dr Brazier dated 29 January 1992, a report of Dr Fabinyi of 3 March 1992, a report of a scan of 4 February 1992, a report of Dr Rogers of 22 May 1992, another report of Dr Fabinyi dated 31 January 1992, a report of Dr Tatoulis dated 9 December 1992, and a report of Dr Mon dated 9 December 1992. What is the effect of those reports? As I understand it, there are two conditions which are relevant. One is that you underwent a heart bypass operation last year? EDELSTEN: I did, on 17 December. KIRBY P: And the second is, that the scan has revealed a tumour which needs attention? EDELSTEN: That is correct. KIRBY P: When do you say your solicitors indicated they would not be appearing for you? EDELSTEN: Ten days ago. KIRBY P: I think this is not the first time we have been faced with a last-minute application for an adjournment in this appeal? EDELSTEN: I believe that is correct. KIRBY P: Are you going to retain fresh solicitors, or appear for yourself? EDELSTEN: If I was granted an adjournment for 90 days I believe I would be in a position to retain counsel. 2 UNREPORTED JUDGMENTS KIRBY P: Are you practising at the moment? I think no relief has been sought from the order of the Tribunal? EDELSTEN: That is correct. I am living and working in Melbourne as a consultant for a group of medical centres there. KIRBY P: What does that involve you doing? EDELSTEN: Interviewing staff and discussing matters with doctors. KIRBY P: In terms of patients? EDELSTEN: I am not consulting patients. KIRBY P: Would it be your intention to continue with that regime until the Court heard the application? EDELSTEN: Yes your Honour. KIRBY P: You ask for an adjournment of 90 days? Priestley JA. Are you entitled to practise medicine in Victoria2EDELSTEN: No. SEXTON: The adjournment application is opposed. (Chronology covering previous six months annexed to affidavit of instructing solicitor handed up.) Your Honours will see in that chronology which runs from September the efforts that have been made to get this matter heard by my clients in that time. The President is familiar with it, in any case, from having sat in most of those proceedings. Today's proceedings are similar to those of 11 November and 17 December where late applications for an adjournment have been made on very much the same basis. My client's position is, that the costs it is incurring as a public body in efforts to have this appeal heard and those efforts being frustrated is something that ought to be taken into account by the Court. Meagher JA. Who are the respondents? SEXTON: The second and third, they were, in effect, the persons who brought the original complaints which were heard in 1987. MEAGHER JA: My second and third seem to be Dr Grant and Dr Mulhearn. SEXTON: They were members of the Tribunal. The Tribunal is now the first respondent and the persons who brought the complaints the second and third. Kirby P. The first respondent has appeared to submit to any order made. I understand your complaints. I feel something of the same sense of frustration. What is the Court to do here? It does not seem to be disputed that Dr Edelsten underwent a major operation last December. It does not appear to be disputable that he has been undergoing neuro radiological examination for suspected tumour. That would, itself, be distracting and he is not practising, in the sense of dealing with patients, so that delay, in that respect at least on the face of things, safeguards our major objective in proceedings of this kind, which is to protect the public. He says he has been refused legal aid. He is entitled to appeal and had he appealed he would have been entitled to a statutory hearing. He asks for an adjournment of 90 days. The principle, as I understand it, is if, by orders for costs or other orders, the Court can correct the injustice that is occasioned to one party by the adjournment and if, by adjourning the matter, the Court ensures the matter is dealt with on its eventual merits, the Court ought to grant the adjournment unless you can show granting it prejudices you in a way that is irremediable. \GEDFFREY WALTER EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES (Priestley JA) SEXTON: Apart from the question of costs which are. being incurred on a regular basis and to no effect at all by this body that has other things on which the money could well be spent -Meagher JA Didn't you say the second and third respondents were your clients? SEXTON: My client is the Department of Health, the body that brought the original complaints against Mr Edelsten. Mr Messiter and Mr Richmond were the secretaries of the Department that brought the complaints. MEAGHER JA: I understand that. SEXTON: There is an important question there. It is also true these complaints were heard in 1987. Some of the events involved came from an earlier period and, in particular, some of the matters referred to in Dr Edelsten's affidavit refer to matters in 1983 and 1984, where he wants to adduce fresh evidence. It obviously becomes more and more difficult to test any of those matters as time goes on. The grounds were supplied to us, effectively, yesterday so it is impossible for us, as usual, to be able to test them in any way. Priestley JA. There are two differences at least. One is, since the last occasion the appellant has had a bypass operation, and also that he has lost his legal representation, the second having happened recently? SEXTON: On the last two occasions the legal representation had effectively been lost. There was an appearance but counsel was unable to be briefed. Kirby P. Today he appeared at the table on his own. The consequence of refusing the application is we force the matter on in a case of this man who has no legal representation, who has been denied legal aid, who would have an entitlement by the statute to appeal. SEXTON: There is an appeal, perhaps, available in Victoria. KIRBY P: I assumed this was an application in New South Wales for legal aid? EDELSTEN: That is correct. KIRBY P: It would be under our Legal Aid Commission Act. Section 54 says if you appeal the Court must virtually grant the adjournment to allow the appeal process to go ahead. I think any adjournment that was granted would have to be granted on condition that your costs of today were paid, because you only got notice of this — as the Court did — yesterday. We could fashion orders which would provide that the matter not be re-listed until after your costs of today have been paid, and there is an affidavit which indicates the matter is in a state of readiness to proceed to hearing. It has to be understood by Dr Edelsten that the consequence of this form of procedure is that people who could have had their appeals heard today are not having their appeals heard today. Meagher JA. Looking at the evidence you put before us this morning and the other evidence, one gets the impression Dr Edelsten does not wish the appeal to come on. Is there any advantage to him in the appeal not coming on? SEXTON: The situation is, if it does not come on the matter is, in a sense, never determined and Dr Edelsten is able to say — although he was deregistered in New South Wales in effect the final issue has never been determined-because he still has the appeal on penalty outstanding. In our submission this appeal is an abuse of process. It repeats, in the main, grounds disposed of when the appeal was heard on its merits and went against Dr Edelsten. Priestley JA. Which appeal are we referring to? 4 UNREPORTED JUDGMENTS SEXTON: The complaints were heard by the Medical Tribunal. Findings were made adverse to Dr Edelsten. He appealed against those findings on the question of liability under s 32U of the Medical Practitioners Act. That was determined by this Court against Dr Edelsten. He then brought an appeal on the question of penalty against the orders made by the Medical Tribunal. Almost all of the appeal grounds are replicated. They go to the question of merits and liability, and not to the question of penalty. There are a couple of additional grounds which go to the bias of a medical tribunal or the judge presiding. By and large we would say the whole appeal is an abuse of process. PRIESTLEY JA: The affidavit that has been filed which you referred to as presumably seeking to get the Court's leave to present fresh evidence shows the skeleton of something useful for the appellant if the fresh evidence were allowed. Is it an abuse of process to seek to call fresh evidence in the appeal which is outstanding? It may be that the application to call fresh evidence would be refused. It may follow from that that there would be nothing in the appeal. That does not mean this appeal is an abuse of process. SEXTON: There may be an argument under the Act that fresh evidence should be brought in this Court or in the Tribunal. We would say in the Tribunal. Yesterday was the first inkling we had of the content of the fresh evidence and your Honour refers to it as annexed to the affidavit. It does not go to any of the complaints, in our submission. That particular material goes to the question of whether — and this was a matter tried in the criminal courts — Dr Edelsten gave a false or misleading medical certificate to Mr Flannery to enable him to obtain an adjournment for his murder trial. One of the complaints dealt with the question of whether Dr Edelsten had discussions with Mr Flannery concerning action that might be taken by Mr Flannery to deal with a patient that was thought to be harassing Dr Edelsten. PRIESTLEY JA: I am not familiar with what the complaints were before the Medical Tribunal. Are you saying the material that was put forward as material that would be the subject of an application to call fresh evidence is not relevant to anything before the Medical Tribunal. SEXTON: We would say that. I have only seen the material this morning but the material concerning Mr Flannery — there is medical certificates — appears to go to the question of the medical certificate and whether it was properly given. Meagher JA. There has been a finding on the merits and an appeal against that finding has been dismissed. The only thing that leaves outstanding is penalty. I do not see how the fresh evidence goes to the question of penalty in any event. SEXTON: We do not either. Kirby P. That is a matter I think we would have to have argument on. We have had a case recently where the Court allowed fresh evidence on the contingency that it would want to fashion its own order, as it was entitled to under the Act, and for that purpose the Court allowed the fresh evidence. SEXTON: This evidence would clearly go to the question of the merits and that would require a re-opening of the complaint which, in our submission, would be something for the Medical Tribunal to undertake. KIRBY P: I understand your complaints and I sympathise, but we have here a two day appeal with a person who is appearing in person but has undergone serious heart surgery and who has a brain tumour which may, or may not, be benign, who says he cannot present the case himself and who asks for an adjournment. \GAEDFFREY WALTER EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES (Kirby P) I sympathise with your complaint. The matter has been in the list three times and I have already said by listing the matter today we have kept out people who may have had their appeals heard today. Looking at the practicalities, I do not see how we can press on with the matter today. What I had in mind proposing was, that we stand the matter over for three months to be listed for mention and by that day we would require (a) that your costs of today have been paid; (b) an affidavit setting out the preparedness of the case for listing for hearing; (c) in the event that either (a) or (b) are not fulfilled, that the matter be in the list that day for peremptory dismissal. SEXTON: It is not, in our submission, a two-day appeal. It is probably a two hour appeal. One has only to compare the Notices of Appeal. KIRBY P: We do not have to determine that now. SEXTON: On the health question, we do not have any recent reports or evidence. We simply do not know. We do not have any current information on Dr Edelsten's health. So far as your Honour's proposal is concerned, if your Honour is going to make an order about the costs of the day, we would ask that the costs of the last two days be included. KIRBY P: So far as any suggestion that this is an abuse of process is concerned, they can be the subject of separate motions. Priestley JA. The decision of this Court on the appeal on the merits was the decision, was it, of Mr Justices Hope, Samuels and Clarke, delivered in 1988? SEXTON: Yes. PRIESTLEY JA: I see the first particular concerns a conversation with 'a criminal' who, I suppose, is Flannery? SEXTON: Yes. PRIESTLEY JA: From a quick glance, that was the only particular involving Flannery at all? SEXTON: Yes, and I think there were eight complaints in all. PRIESTLEY JA: And all were found proved? SEXTON: Yes. PRIESTLEY JA: And none of them were interfered with on appeal? SEXTON: No. In effect de-registration would have followed on a number of those complaints being made individually and separately from the first one, three others. PRIESTLEY JA: Some of the evidence that is said to be fresh evidence goes to the question whether Dr Edelsten, in fact, sought to intimidate a former patient. The complaint was that he had a conversation with Flannery with a view to obtaining his assistance to intimidate a former patient. The evidence, as I skim through it, would support, if accepted, the view that, in fact, there was no attempt to obtain Flannery's assistance as a stand-over man, even although the conversation would support that view? SEXTON: That is Dr Edelsten? PRIESTLEY JA: The conversation with Flannery. Some of the evidence is at least marginally relevant to that first complaint, it seems to me. It does not say anything about whether the Court would allow it to be used, or how strong it is. SEXTON: Other complaints were made out and brought about the same penalty. Kirby P. I indicated some orders which were possibly appropriate but we have not formulated any final view. Would you be prepared to submit to the orders that I have indicated-that the matter would be stood over for three months, in that time 6 UNREPORTED JUDGMENTS you would be required to file an affidavit and to pay the costs ofthe other party, otherwise on the return of the matter it will be peremptorily dismissed. Would it be your intention to secure counsel to assist in the presentation of the appeal? EDELSTEN: It is my intention. I cannot say to the Court I am overly optimistic of my ability. I think I should be able to have at least a solicitor present. KIRBY P: Did you try to get counsel in the last 10 days? EDELSTEN: I did not have the funds necessary. KIRBY P: We consider this application very marginal. This is the third or fourth time the matter has been before the Court. You have heard what has been said about the merits of the application, both from the point of view of the Court and the respondents, and we want to consider the matter and we will come back at 2.15. You should not assume the Court is going to adjourn the matter. Between now and 2.15 you should get whatever papers you have together and consider your position. EDELSTEN: I do feel that s 32U(3)(b) that says, 'This Court can make such ... public welfare,' allows a broader appeal than Mr Sexton would have indicated. Meagher JA. It does not allow us to review the merits, does it? EDELSTEN: I think it does. It is going to be impossible for the Court to exercise that power without looking at the conduct which gave rise to the complaints, and the decision. MEAGHER JA: To do that don't we read the Tribunal's findings and this Court's judgment on appeal? EDELSTEN: I think it goes further than. The Act could have been so written as to dispense with those words, 'taking into account the merits ... and the public welfare,' if it only wanted the Court to look at the findings and place itself in the position of the Tribunal. I think it does give a scope for a wider appeal. Kirby P. That is your first point. This matter was argued in detail before the Court in a separate case so we are not unaware of the issue. EDELSTEN: The new evidence I wish to adduce I believe goes to more than a marginal effect in that the first complaint, and the one that had the largest penalty, was with respect to character and the material goes to show that the Tribunal was wrong in their conclusion and so that complaint could not be maintained if this material was before this Court. KIRBY P: We will consider your application for adjournment and we will determine whether the matter is to adjourn or proceed at 2.15 pm. SEXTON: In relation to the fresh evidence, we would want a requirement if there is going to be any material relating to that application, that it be supplied to us well in advance of the proposed hearing date. Secondly, in relation to the costs of today, I am told that they would be taxed within the period of 90 days, so they would need to be a fixed sum, which I cannot suggest at the moment. KIRBY P: You are saying if the Court is minded to grant an adjournment, which you oppose, it should impose requirements (a) that there be an affidavit as to the readiness of the matter to proceed on the return of the matter; (b) that the costs of today in an amount to be assessed as reasonable should have been paid by that time; (c) any affidavit setting out the fresh evidence proposed to be relied on should be filed by that time. Priestley JA. If the case proceeds this afternoon, what would be your attitude to the fresh evidence at two stages? First of all, I suppose you oppose it being received? If it is received, what would you then be seeking to do? \GEDFFREY WALTER EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES (kirby P) SEXTON: I would need to look at it more closely. Although my inclination is to say to your Honour we will be able to make submissions on it. The witnesses are not here who have made the statements. We consider most of the material as simply not relevant to that first complaint. EDELSTEN: I do have another medical report that I was only able to get a copy of overnight. Kirby P. Show it to Mr Sexton. (Abovementioned medical report handed up.) KIRBY P: We will adjourn both the appeal and this motion until 2.15 pm when we will determine the motion and if the motion is dismissed, we will proceed to hear the appeal. UPON RESUMPTION KIRBY P: I understand since the matter was before the court this morning there has been a development. Is that correct? EDELSTEN: Yes, I have lodged an appeal against the Legal Aid Commission's refusal to grant legal aid. KIRBY P: That, I think, invokes the provision of the Legal Aid Commission Act. SEXTON: We do not know anything about the application, that there was an application, that it has been refused, or why? Meagher JA. Or whether there has been an appeal? SEXTON: Yes. Kirby P. Section 57 provides (read). Doctor Edelsten, as Mr Justice Meagher has pointed out, your statement from the bar table that you have appealed is not itself evidence of that fact. Do you have any affidavit which establishes the original determination and the fact that you have appealed, or will you give that evidence on oath or by affirmation? Meagher JA. Have you a copy of the appeal? EDELSTEN: My former solicitor has that. I had my secretary in Melbourne prepare such a document. We faxed it after ringing the Legal Aid Commission, and sent it to them by facsimile during the adjournment. Kirby P. You do not have a copy of the document with you? EDELSTEN: I do not. KIRBY P: Do you want that to be proved, Mr Sexton or do you accept what Dr Edelsten has said can be acted upon by the court. Keep in mind please it is not only that a party has appealed, but a party intends to appeal. It seems if it is his intention to appeal that will be sufficient to activate the Section. SEXTON: Without knowing what the decision that has been appealed from entails it is difficult, from our point of view, to make any judgment about it. KIRBY P: Do you have the original refusal of legal aid? EDELSTEN: I do not. My former solicitor has it. She read it over the phone to me during the adjournment. KIRBY P: Mr Sexton for the respondents has inferred you will have to prove this in the normal way. I think you had better go into the witness box and say what you have said to us on oath. GEOFFREY WALTER EDELSTEN UNREPORTED JUDGMENTS Sworn and examined KIRBY P: Q. What is your full name? OPropr © O>O> OC>O> O> > 0 POP OPOY >OP OPO Geoffrey Walter Edelsten. What is your address at the moment? Corner of Dalton Road and Guila Crescent, Epping. You are the appellant before the Court of Appeal from a decision of the Medical Tribunal and you are the claimant in this motion for an adjournment of the proceedings? Yes your Honour. I think you told us from the bar table earlier that you had solicitors who were retained for you in the appeal? That is correct. What is their name? Schenker and Associates. You told us earlier that firm terminated their representation of you? Is that correct? That is correct. When did that occur? In the first week of April. And you told us also that an application had been made by those solicitors on your behalf for legal aid for the purpose of prosecuting he appeal? That is correct. When were you informed of the results of that application? Approximately 2 and a half to three weeks ago. Were you told — first of all, who told you what had happened, and in what terms? Mrs Schenker. She is a solicitor with the firm Schenker and Associates? She is. She is the principal of the firm. She said the Legal Aid Commission had denied the application for legal aid. What did she then say in relation to her firm appearing for you in the proceedings? She sent a facsimile to me in Melbourne saying that unless satisfactory arrangements for the payment of her fees and counsel's fees could be arranged, she would no longer represent me. When did you receive that facsimile? At the beginning of last week. That is to say, today is the 14th April, it would have been about the 5th or 6th April? That is correct. What did you do then? I rang her and tried to make satisfactory arrangements but that failed. I then asked her for copies of all documents that had been used up until now. I only received them this morning on the steps of the court. I think you asked for an adjournment of the proceedings this morning when the matter was called on by the court? That is correct, though I did send a letter to the Registrar of the Court last Thursday with a copy to the respondents foreshadowing this application. \GAEDFFREY WALTER EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES (Kirb9 P) Q. > © PO> © © POPOP POP OPOPY > QO FA > OF 0 During the course of proceedings this morning when your application was being heard mention was made of the entitlements to appeal to the Legal Aid Review Committee? That is correct. Were you, before that, aware of the fact that you had a right to appeal? No. Since the matter was before the court this morning you have taken steps? I have. What steps have you taken? I rang my former solicitor and asked her who I appeal to, and she gave me the instructions. I rang, then, my secretary in Melbourne and dictated a letter along the lines suggested by my former solicitor. That was sent off by facsimile at approximately midday. How do you know it was sent? It was sent by my secretary. She confirmed it by telephone when she had done so. Will you tell us the substance of the letter you dictated to the secretary to send? I referred to their letter of approximately middle of March — I do recall the exact date now — but they had declined legal aid, that I appealed that decision and that it was a matter I thought I would have some prospects of success in if they did represent me. If you are granted legal aid on the appeal what will you do if your appeal against the refusal of legal aid succeeds and you are granted legal aid? I will cooperate with them in prosecuting this appeal. And if your appeal is refused, what will you do? If the adjournment is granted I will use my best endeavours to obtain resources to instruct solicitors and counsel to prosecute the appeal also. You realise this is the third time an application has come before the court asking for the delay of the proceedings? I do. I am embarrassed about it. I acknowledge the inconvenience it causes all parties but, in the circumstances, it is of great importance to me and I wish this opportunity to do it correctly. This morning you told the court that you were not practising in the sense of dealing with patients in any way but you have some connection with a medical practice in Melbourne? That is correct. What is the nature of that connection? I am consultant to the Management. Do you have any dealings with patients? In respect to paramedical matters. I advise on weight control, and perform certain procedures in relation to spirometry, EG's and taking blood. Has that been the subject of any legal advice you have received in regard to the order of the tribunal? It is. Is it your intention to prosecute the appeal whether or not the application for legal aid succeeds? It is. UNREPORTED JUDGMENTS > © > © POPOPOPOS OPOPOPOPOY OPOrF OPO ODPOPOY 0 Do you believe you could prosecute the appeal today satisfactorily without legal assistance? No I do not. CROSS-EXAMINATION: SEXTON: Q. When was the application for legal aid made? I do not recall the exact date. I believe it was in January. In January? I think so. I think it was determined in mid-March? That is correct. And you were informed in mid-March, were you? I was informed. I think I was informed closer to the end of March. By Mrs Schenker? Mrs Schenker, yes. Had you asked her to inform you when the application was decided by the Legal Aid Commission? No, not formally, but I expected her to do so. You think towards the end of March she informed you of the decision? Yes. Did she tell you what the basis of the decision was? No. Do you know what it was? No. Did you ask her what it was? I do not recall at the moment. I think she said somethingabout the funding to the Legal Aid Commission had been reduced by the State Government and they were not taking on as many cases as they had previously. What is the ground of appeal against the Legal Aid Commission's decision? That it is an appropriate case for them to support, that I do not have the resources to represent myself, and that I have significant prospects of success. You have made that appeal without knowing what the basis for their original decision was? I believe it was purely financial. 'You have not seen a copy? It was read over the phone. I do not recall the exact details. 'You cannot recall anything about it? Only that I thought it was in relation to their financial status. Did Mrs Schenker raise with you at that time, towards the end of March, the question of an appeal? Against the Legal Aid Commission?. Yes? I do not recall. Did you not tell his Honour, the President, this morning that you discussed the question of appeal with her at that stage? I do not recall saying that. This morning? Yes, I do not recall saying that. Mrs Schenker said it was hopeless? \GAEDFFREY WALTER EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES (kirby P) PO POPOPY PF 0 POPOPO POPOY DF OPO DPHPOPO F 0 I'm sorry, I do not recall saying that. You have no recollection of saying that this morning in this court? No. You do not recall Mrs Schenker saying the appeal was hopeless? I did think she said it was not likely to be successful because of the reduced funding, but I do not think in those terms, that it was hopeless. But she did raise the question of an appeal? I do not think it was in the formal terms of an appeal. I just said — is there anything we can do? I think she said — It is unlikely because they do not have the funds any more. At that stage you knew there was some prospect of an appeal being available? I do not think I could put it in as high terms, that I knew there was an appeal. 'You did know because you talked about that subject? It was just whether there was anything that could be done. And she thought there was not? I think that would be fair. 'You accepted that at that time? Yes I did. The first time you decided to pursue the appeal was this morning, wasn't it? Yes. When it was raised by the President? That is correct. You said on Sth or 6th April, at the start of last week, you were told that Mrs Schenker would no longer represent you? Yes. Did you anticipate that that would always happen if there was no legal aid funding available? No. You did not? No. 'You thought she would represent you without being paid? She was a solicitor representing me on a large number of matters and I thought arrangements could be made satisfactory to her. 'You mean she would be paid? Yes. But she declined to represent you in this matter? That is correct. Was that because she was not going to be paid? I could not reach satisfactory arrangements to have it paid prior to today's date. At that stage, at the beginning of last week, it was clear you would not be represented today? I think it was clearer closer towards the end of the week because we had a number of discussions to see if there could be other arrangements made, but they failed. Q. You did not raise with her again the question of an appeal to the Legal Aid Commission? No I did not 12 UNREPORTED JUDGMENTS WITNESS RETIRED KIRBY P: What do you say, Mr Sexton? SEXTON: I am still unaware of the basis of the decision and the competency of the appeal. KIRBY P: 'Competent' does not mean that it is likely to succeed. It means competent in the jurisdiction of the Legal Aid Commission. If, as appears, it is competent in that sense then itwould seem it passes the first steps. He is a party to the proceedings before this Court. He has appealed, or intends to; the appeal is competent. We then have to ask — is the appeal or intention bona fide and not frivolous or vexatious? When I ask myself that I see, at the end of the table, yourself and, at the other end of the table, Dr Edelsten. He is not a person versed in the law. The matter is important to him. He does not feel he can prosecute the appeal unrepresented. He has this further right to exhaust his entitlement to secure Legal Aid which would not only be of help to him but would be of help to the court and maybe yourself, to have the matter properly ventilated. The final question is — are there any circumstances which prevent the court from doing so? This is the third time there has been an application for adjournment. At least on this occasion it does seem that the notice that he was refused legal aid was at the end of March. The solicitors only told him on about Sth or 6th April that they would not appeal for him, and he informed the court last Thursday, 8th April, he was going to make this application. In the face of section 57 I do not see what the court can do, except to adjourn the matter. SEXTON: It is clear from the evidence that Dr Edelsten gave he was aware of the availability of an appeal well prior to this hearing. It has been done in the course of this morning in a way that makes it impossible for the court, or our side, to know what is involved in the decision of the Legal Aid Commission. The history of these proceedings has been neither the court or our side has ever been able to test any of the material put forward. The position from Dr Edelsten's side has always been, unless the adjournment is granted it will not be possible for a step to be pursued that has been taken so late prior to the hearing that it has not been determined in time, and that is what has happened again. Secondly, so far as the proof of this matter is concerned, we do not know the nature of the decision, the nature of the appeal, whether the Legal Aid Commission will entertain it. We simply do not know and we have not been able to investigate that today. KIRBY P: The section says we may adjourn it to such date on such terms and conditions as it thinks fit. It would seem appropriate to contemplate the three orders we were discussing today and I would think that would be within the section. Do you have any submissions on that. The orders proposed are: An order for the costs of this day; an affidavit of readiness to be required; fresh evidence to be put on affidavit? SEXTON: We have prepared some short minutes which I hand up. KIRBY P: Perhaps you could have a look at that document, Dr Edelsten? (shown). Paragraph 5 has the disadvantage of being a self-seeking order. What I had in mind when I said 'Peremptory dismissal' is that would be what the court would do on return. SEXTON: It was assumed that would be an order made by the court at that time. Priestley JA. You could say 'The second and third respondents have leave to apply at the mention ... immediate dismissal'. \GAEDFFREY WALTER EDELSTEN v MEDICAL TRIBUNAL OF NEW SOUTH WALES (Kirlb3 P) Kirby P. Are you content with that alteration to paragraph 5? SEXTON: I suppose we would like this court to say that is what, in effect, should happen if any of those steps are not made. KIRBY P: We will say — second and third respondents will have leave to apply, there and then, for dismissal of the appeal for want of prosecution. That, I think, will signal what we have in mind. Of course that would have to be subject to the conclusion of the Legal Aid Review Committee's work but, by arrangement between the court and the Chairman of the Legal Aid Commission we now have a system whereby we can signify to the Commission our request that they give expedition to this matter. Meagher JA. I could not see anything improper in your client writing to the Legal Aid Commission urging a speedy decision. Kirby P. I think perhaps it is best you do not interfere. I know the Legal Aid Commission considers itself as being in a privileged relationship with litigants. We within the court can look after the expedition. It is a matter for you. I would have thought that is a preferable procedure, rather than you coming between Dr Edelsten and the Commission. Priestley JA. I could not see any harm in writing to the Commission saying — We would be obliged if you could tell us, so far as you are free to do so, what the position was. Kirby P. They are the terms and conditions that have been proposed. The only change is paragraph 5 which would read 'Should the appellant fail to comply ... the second and third respondents will have leave, upon the return on 14th July 1993 of the proceedings, to apply there and then for dismissal of the appeal for want of prosecution'. Are you content with those orders? EDELSTEN: Paragraph 4 — I am not sure how that is arrived at? KIRBY P: That is their estimate of the costs incurred for today. Perhaps a breakdown could be shown to Dr Edelsten (shown.) By the standards of costs that we see from time to time it does not look excessive. EDELSTEN: I am satisfied with that. KIRBY P: You are agreeable to those various conditions? EDELSTEN: I am. KIRBY P: As the terms and conditions on which, as we see fit, the proceedings should be adjourned today. EDELSTEN: Yes your Honour. (For judgment see separate transcript). Orders accordingly. Appellant appeared in person Mr M G Sexton for the 2nd and 3rd respondents