STIVACTAS v MICHALETOS [NO 1] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KIRBY P, CLARKE JA and Cripps JA 13 July 1993 [1993] NSWCA 256 PRACTICE & PROCEDURE — Court of Appeal — appeal — adjournment of hearing — late application — long delay in appeal hearing — Greek-speaking appellant seeks barrister fluent in his language — barristers return briefs — suggested inference that barristers consider appeal without merit — appellant left without barrister — solicitor unable to present appeal — respondent aged 80 anxious about litigation — held: (Kirby P, Clarke JA concurring; Cripps JA dissenting): The hearing of the appeal should be adjourned upon terms requiring (a) payment of the costs of the day on an indemnity basis; and (b) expedited hearing and provision of written argument. Ketteman v Hansell Properties [1987] 1 AC 109 (HL); State Pollution Control Commission v Australian Iron and Steel Pty Limited [No 2] (1992) 75 LGRA 327; United Motors Retail Limited v AGC Limited (1991) 58 SASR 156 and Comino & Ors v Manettas & Ors, Court of Appeal, unreported, 5 March 1993; (1993) NSWJB 60 considered by Cripps JA. Kirby P. When this appeal was called on for hearing this morning a motion was argued for the adjournment of the hearing of the appeal. The appeal arises out of a judgment given by Waddell CJ in Eq on 10 July 1991 elaborated by certain further findings made later. Slow progress of an appeal to its hearing The litigation between the parties concerns an allegation by the respondent that certain property of hers was procured by the appellant as a result of undue influence. She claims that it was procured in circumstances requiring the transfer of the property back to her. Waddell CJ in Eq found in favour of the respondent. The appellant, within time, appealed. There then followed what appears to have been a very long and substantially unexplained delay in the listing of the appeal for hearing before this Court. Ultimately, in September 1992, the appeal index was settled. Steps were then taken for the preparation of the appeal books. These steps are the prerequisites to the hearing of the appeal before the Court. In May 1983 an application was made — although it should be said somewhat belatedly — by the respondent for the expedition of the hearing of the appeal. In fairness, I should mention that the respondent is a victim of diminished mental capacity. It was found by Waddell CJ in Eq that the respondent, although having lucid moments, is not able always fully to understand issues. Doubtless this desirability would have presented considerable difficulties in her giving instructions to her solicitors. As a result of the application for expedition, Handley JA, on 3 May 1993, ordered that the hearing of the appeal be expedited. He gave it a category C listing. It was then called over before the Registrar on 2 June 1993. However, there was no appearance on that day for the appellant. The respondent, who was represented, caused her solicitor to notify the appellant's solicitors that the Registrar had fixed the hearing of the appeal for this day. By an affidavit read 2 UNREPORTED JUDGMENTS before us this morning, it was proved that such notice was duly given. The solicitor for the appellant has apologised to the Court for his failure to attend at callover. It seems that he incorrectly entered the callover date in his diary. This was the beginning ofthe catalogue of difficulties in the preparation of the case for its hearing. The appellant seeks a barrister fluent in his own language On 21 June 1993, according to the affidavit of the solicitor for the appellant, he forwarded the brief to Mr C D Freeman, barrister, to appear for the appellant in the appeal. On 1 July 1993 Mr Freeman and the solicitor had a conference. The appellant also attended that conference. Following the conference the appellant, through his daughter, instructed the solicitor 'I want you to get me a Greek speaking barrister so I can talk to him direct'. Pursuant to the conference and these instructions communicated to him, Mr Freeman returned his brief. There was a suggestion that he intended to return his brief in any event. However that may be, he did so on the insistence of the appellant that he would prefer to have a Greek speaking barrister to represent him. On 2 July 1993 the appellant's solicitor spoke to Mr Kostopoulos, barrister. He examined the appeal book. On 5 July 1993 he informed the appellant that he would only accept the brief if Queen's Counsel were retained to lead him. On 8 July 1993 the solicitor had a conference with Mr Kostopoulos and with the appellant. He informed the appellant that Mr Finnane QC had agreed to examine the papers with a view to leading Mr Kostopoulos in the hearing of the appeal. It seems that the brief was then delivered to Mr Finnane. However, on9 July 1993, which is but Friday last, Mr Finnane telephoned the solicitor for the appellant. He advised him that he would not accept the brief and that he was returning it to him. The Court, with proper deference to the privilege of the appellant, enquired further into the circumstances of Mr Finnane's return of his brief. It seems that Mr Finnane consulted the Bar Council. He was advised that it would be proper for him, in the circumstances, to return the brief. There was a suggestion that Mr Finnane did not consider that there was an arguable point in the appeal. This possibility was not explored at any length. To do so would be to breach the wall of confidence of the appellant and his consultations with his solicitor and Mr Finnane. On 9 July 1993 Mr Kostopoulos informed the solicitor for the appellant the he too would be returning the brief having regard to the refusal of Mr Finnane to accept the brief. This apparently was done. Advice of these events was given to the solicitors for the respondent only yesterday. The solicitors then sent by facsimile a letter which has also been placed before this Court. This letter protested at the late application to adjourn the hearing. It indicated that that application would be opposed and that, before this Court, the respondent would seek an order that the appeal be struck out with costs. In effect, that is what counsel for the respondent hassought today. She has pointed out that the respondent is a person of advanced years, being a woman of eighty years of age. She suffered a stroke at the age of seventy-three. It is not difficult to imagine the anxiety and concern which litigation of this kind would cause her. I can well understand that she would want to have the litigation out of the way. On the other hand, there does appear to have been some delay on her part in the interval between 1991 and 1992. The appeal could have been brought to a much quicker termination by an application to the Court that the appeal be URJ STIVACTAS v MICHALETOS [NO 1] (Kirby P) 3 expedited or, alternatively, dismissed for want of prosecution. For whatever reason that was not done. Instead, the delay was allowed to accumulate. It is also relevant to note that it had not proved possible, in the circumstances which I have outlined above, to obtain specific instructions from the respondent herself concerning the application for adjournment. Obtaining such instructions would require a degree of care, given the respondent's mental condition. The course which has been taken by the respondent's advisers, in response to the application for adjournment, is both understandable and reasonable. Difficulties facing the solicitor in receiving instructions and arguing the appeal The solicitor for the appellant has stated in his affidavit that the appellant is a man of Greek descent. He is himself a person of advanced years,although not as old as the respondent. It is stated that he has 'very little communication skills in the English language'. The solicitor deposes that he is 'unable to converse with him other than through his daughter'. He has explained the withdrawal of counsel. He has received instructions for the appellant in these terms: I won't put up my hands like a soldier. I have done nothing wrong. You will have to get another day so you can get someone to speak for me.' Looked at solely from the point of view of the appellant it is by no means clear that he is personally responsible for the delays which have attended the preparation for prosecution of the appeal. For all I know he may have thought such delays were simply the consequence of the appellate process, although they are not. He was doubtless informed of the return of the appeal as soon as the solicitor was notified of it. He promptly had consultation with his then counsel. He then requested the change of counsel. In my view his preference for a barrister who would be able to speak to him in his own language is understandable. Although many do not share this view, one has only to imagine oneself in a country in which the language is not one's first native language to realise how it would be desirable to have, in such a situation, a person fluent in the language in which the litigant is comfortable. I should say that the appellant gave his evidence at trial in the English language. However, I have no reason to doubt the submission of the appellant's solicitor as to hisdifficulties in communicating with the appellant in the English language. The appellant's solicitor was not cross examined on his affidavit. The principles to be applied in a case of this kind are stated in many authorities. See Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 (CA) 252, 256; GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 (CA) at 712; Adamopoulos v Olympic Airways SA (1991) 25 NSWLR 75 (CA) 77, 80; R v Greer (1992) 62 A Crim R 442 (NSWCCA) 448. Where a late application for an adjournment of legal proceedings is sought, and where that adjournment can be accommodated by an appropriate order for costs, expedition of the further hearing and otherwise, and where no irreparable prejudice is shown which would be occasioned by the adjournment, the court, in exercising its discretion, will normally grant the application. I do not overlook the point made by Clarke JA during argument. In times of great delay and greater attention to the efficiency of court procedures, it may become necessary in the future to reconsider the precise content of the principles governing adjournments. However, I do not believe that this is an appropriate case in which to do so. Certainly, we have not heard any extended argument on that point. Therefore, looking at the case again, bearing in mind the position of the appellant himself, considering the marginal disadvantage that would be occasioned by a further short delay andbearing in mind the possibility of 4 UNREPORTED JUDGMENTS affording protection to the respondent by an appropriate order for costs, it seems to me that the Court's discretion should be exercised to grant the adjournment sought. Otherwise the effect would be either of dismissal of the appeal without a full hearing on the merits, or forcing the hearing of the case on in the presence of the appellant, the appellant being represented by his solicitor only. The solicitor has canvassed very candidly before the Court the difficulty which he would feel in presenting the appeal and in perceiving the points in the appeal book which are truly arguable. He stated that the issue in the appeal was not in an area in which he felt entirely comfortable. He would therefore prefer the matter to be presented by counsel. Having regard to the difficulties which the appellant would seem to face in the appeal, that would be a prudent course. Conclusion: adjournment granted on strict terms. I do not believe that the appeal should be dismissed without a hearing on the merits. I do not believe that it should be forced on for an inadequate hearing of the appeal. That could amount to a charade. I do not consider that it is essential for the respondent, or for the administration of justice. A matter which weighs with me is the fact that since the hearing of the proceedings at first instance, the property which was the subject of the proceedings has been transferred back tothe respondent. It stands in her name, although with the appeal hanging over her. The result of the foregoing is that I would propose the following orders: 1. Grant the motion for adjournment of the hearing of the appeal. 2. Order expedition of the hearing of the appeal, so adjourned, category B, to the intent that the appeal will be heard on Tuesday, 27 July 1993. 3. Order the appellant to pay the respondent's costs of the day thrown away by reason of the adjournment, such costs to be paid on an indemnity basis. 4. Direct the appellant, before Friday, 23 July 1993 at 4 pm, to file and serve written submissions setting out the arguments which the appellant proposes to advance in the appeal. Clarke JA. I agree. Cripps JA. I disagree. In my opinion, this application should be dismissed. The respondent is now eighty. She alleged before Waddell J that, when she was seventy three and recovering from a stroke, the respondent, who she trusted, wrongly transferred two of her properties into his name for $1 each and took $26,000 from her bank account. Waddell J accepted her evidence and ordered her property be returned. The appellant was dissatisfied with the decision of Waddell J and appealed to this Court. Theappeal was expedited for the reason, I surmise, that the respondent is eighty and it was thought to be in her interests that the appeal be disposed of as soon as possible as it was her express wish in the earlier proceedings that the church receive her property when she died. It is obvious she is suffering great prejudice while this appeal is pending. There is a tendency amongst some lawyers to think that applications for adjournments should be dealt with on the basis that, provided only the moving party offers to pay the costs thrown away by the application being granted, there can be no prejudice to the other party or anyone else. That is a view which I reject. The legislation giving rights of appeal has been characterised, correctly in my view, as beneficial. But it is not beneficial in the sense that any litigant actually enjoys the experience. In my opinion, formed over the years as a URJ STIVACTAS v MICHALETOS [NO 1] (Cripps JA) 5 practising barrister and a judge, it is a very unusual person who actually enjoys the process of litigation. For most people litigation is a harrowing experience. The appeal system is beneficial in the sense that it allows a dissatisfied litigant to bring to the attention of the Court of Appeal a grievance he or she has concerning the proceedings appealed from. The appellant availed himself of his appeal rights. The case was expedited. He has given no explanation, or at least no satisfactory explanation, why the appeal should not proceed as listed. We were told byMr Hughes, solicitor, that the barristers who were retained said they will not appear for him. We were asked to infer, I think, that that is because the case is so hopeless they cannot, presumably, muster an argument in support of it. If that is correct, one wonders what is the point of the case being adjourned. If it is not correct and briefs were refused merely because the case was difficult, it does not speak well for the profession. However, there is no evidence about why briefs were returned. We should, therefore, not speculate about the matter. The evidence is that the case was listed for hearing today. Last week there was a flurry to brief counsel. The respondent, who speaks English and who was prepared to have a non-Greek-speaking barrister appear before Waddell J when he gave evidence, said he wanted a Greek-speaking barrister to appear for him on the appeal. Why that was necessary has not been explained. At all events, he got one but the barrister has returned the brief. If the whim of a litigant is an acceptable reason for an adjournment it will mean that people merely have to ask for an adjournment, offer to pay costs and the adjournment will be granted. I use the word 'whim' in this case because had the respondent said he wanted the appeal adjourned because he wanted a man to appear for him as opposed to a woman, his application would not have been countenanced. It has been repeatedly stated by members of this Court that it is the busiest court inAustralia. If that is so, it follows that adjournments at the last minute necessarily prejudice people waiting in the queue to be heard — as well, of course, as the opposing litigant. I do not agree with the observations that prima facie an offer to pay costs is a good ground for granting an adjournment. To assume that a costs order will remove prejudice is, in my opinion, to ignore reality. Times have changed since the 19th century when applications for adjournments were, apparently, granted subject to an order that costs be paid by the successful applicant. In recent years the House of Lords in the United Kingdom, the New South Wales Court of Criminal Appeal, the South Australian Full Court, and this Court have all acknowledged the injustice to litigants by adherence to doctrines developed during a more leisured age (Ketteman v Hansel Properties [1987] 1 AC 109, SPCC v Australian Iron and Steel Pty Limited (No 2) (1992) 75 LGRA 327, United Motors Retail Limited v AGC Limited (1991) 58 SASR 156 and Comino & Ors v Manettas & Ors, New South Wales Court of Appeal, 5 March 1993, unreported). As I have said, the respondent will suffer prejudice. She will even have to wait to be paid indemnity costs proposed to be ordered today. If the matter is heard on 27 July, it will, presumably, displace another matter that would have been heard on that date. I would dismiss the application with costs. 1. Grant the motion for adjournment of the hearing of the appeal; 2. Order expedition of the hearing of the appeal, so adjourned, category B, to the intent that the appeal will be heard on Tuesday, 27 July 1993; 6 UNREPORTED JUDGMENTS 3. Order the appellant to pay the respondent's costs of the day thrown away by reason of the adjournment, such costs to be paid on an indemnity basis; and 4. Direct the appellant, before Friday 23 July 1993 at 4 p.m. to file and 5 serve written submissions setting out the arguments which the appellant proposes to advance in the appeal. Counsel for the claimant: N Hughes (Solicitor) 10 Solicitors for the claimant: Maddocks Cohen and Maguire Counsel for the opponent: H Coonan Solicitors for the opponent: Connery and Partners