SIMMONDS v SPOONER (No 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, COLE JA and ROLFE AJA/Sitjudge 28 March 1995, 28 March 1995 [1995] NSWCA 428 PRACTICE AND PROCEDURE — Court of Appeal — adjournment — appeal listed for hearing in Damages List former solicitors and counsel withdraw shortly before hearing — new solicitor refused adjournment — newly retained counsel renews application consideration of justice to appellant and other litigants — held (by maj): Adjournment refused — appeal hearing to proceed. W Dazenko Structural and General Engineering Pty Ltd v Fraser Hrones and Co Ltd (CA) (NSW) unreported, 5 Oct 1990 (1990) [NSW] JB 132 appld PRACTICE AND PROCEDURE — adjournment — Court of Appeal — hearing of appeal — former counsel withdraw two business days before hearing because of suggested conflict of interest and duty to solicitor — fresh solicitor retained and appears in Court of Appeal to request adjournment which is refused — solicitor retains counsel who renews application for adjournment — counsel states that he does not believe that the appeal can be safely and fairly presented — additional evidence as to circumstances of withdrawal of former solicitors and counsel — whether case should be required to proceed to hearing — held. (Cole JA and Rolfe AJA; Kirby P dissenting). The appellant personally had adequate notice of the hearing and consideration of justice included consideration of other parties waiting for the hearing of their appeals in the Court. Adjournment refused. Matter required to proceed to hearing. W Dazenko Structural and General Engineering Pty Ltd v Fraser Hrones and Co Ltd, unreported Court of Appeal (NSW), 5 October 1990; (1990) [NSW] JB 132 discussed and applied. Kirby P Earlier this day the Court had to deal with an application for adjournment made on behalf of Mr Gregory Simmonds by his solicitor, Mr WB Beilby. The facts and circumstances of that application appear in the reasons of the Court. By majority, Cole JA and Rolfe AJA, (myself dissenting), the Court ruled that the application for adjournment should be refused and the case should proceed to hearing, as listed today. The Court then stood the matter to the end of the list. It proceeded to hear another appeal. The list has now, in effect, expired. The present case was called on. The Court is now here with time available to hear the appeal if it can proceed. On calling of the appeal for hearing, Mr Rewell of counsel appeared for the first time for the appellant. He informed the Court that he had been retained by Mr Beilby at approximately 1.00pm. He had had the opportunity of looking quickly at the appeal book and at an opinion of senior counsel which was in the file of the former solicitors for the appellant, Messrs Marsdens. That file had not earlier been available to Mr Beilby. However, apparently in the time between the order of the Court earlier today and Mr Rewell's retainer, the file and the opinion became available. It seems that the opinion deals with that ground of appeal which complains about the use made at the trial by McInerney J of evidence which was tendered in support of an application for expedition but which was not evidence in the trial itself. 2 UNREPORTED JUDGMENTS Mr Rewell, who is counsel experienced in cases of this kind, informed the Court that he supported and renewed the application for adjournment on the basis that he did not feel that he could fairly present the appellant's case today. For my own part I would always pay great heed to the assessment of counsel concerning their readiness to present a case. I do so in the case of Mr Rewell, without reservation. Read to the Court without objection (save of a formal kind) was an affidavit of Mr David Watson, solicitor, of Messrs Marsdens, the previous solicitors for the appellant. This affidavit, which bears today's date, was apparently prepared following the events of this morning. Mr Watson deposes to the fact that he was the solicitor having the carriage of the appeal at Messrs Marsdens. He had received authority to uplift the files from Messrs Gordon Dunbier Solicitors. In the earlier reasons of the Court it was explained how those solicitors had allegedly taken possession of the file at a point between the fixing of the date for hearing in September 1994 and 20 January 1995. The affidavit by Mr Watson deposes to discussions between Mr Marsden and Mr Simmonds. It indicates that there were difficulties in making contact with Mr Simmonds. He was apparently staying with his sister. She was not within easy telephone contact. According to the affidavit of Mr Watson, it appears that Mr Simmonds had made inquiries of another firm of solicitors, experienced in proceedings of this kind. However, they were not prepared to take over the carriage of the appeal. The affidavit proceeds, relevantly: "9. On or about the week surrounding 10 March 1995 I spoke to Mr Simmonds at Campbelltown Local Court together with senior counsel... and junior counsel... who had previously been briefed to appear for Mr Simmonds. At that time Mr Simmonds was advised that if he wished Marsdens [and the counsel] to act on his behalf in the appeal, he should contact myself and to arrange a conference to finalise the preparation of the appeal..." Upon being contacted by Mr Simmonds, later in that week, a conference was arranged with the named counsel for 23 March 1995. At that conference, according to Mr Watson, allegations were made by Mr Simmonds concerning Mr Marsden and Mr Dunbier. Those allegations included a suggestion that Mr Dunbier had withheld information from the court and an intimation that Mr Simmonds intended to lodge complaints, presumably to the Law Society of New South Wales, in relation both to Mr Dunbier and Mr Marsden. It is stated that he also intended to raise his matters of complaint at the hearing of the appeal. The affidavit proceeds: "13. Following the above revelations Mr Simmonds was advised by both senior and junior counsel and myself that we could no longer act for him in this matter and we assisted him in finding alternative representation..." Counsel for the respondent has repeated his submission that the proceedings should continue today. He states that the affidavit of Mr Watson, far from advancing the cause for adjournment, makes plainer the requirement that the matter should proceed. There are, in my opinion, six essential reasons why the matter should not now be forced on: First, this is not a case where a client has dismissed his lawyers. There are many such cases that come before the courts. The courts must be vigilant against the risk that a client will dismiss lawyers on the eve of trial, or of an appeal, in an endeavour to control the presentation of the case or the composition of the URJ SIMMONDS v SPOONER (No 2) (Kirby P) 3 court. But this is not such a case. This is a case where senior and junior counsel have themselves withdrawn from the representation of the appellant who was, as recently as Thursday evening last, left without legal representation but with the assistance of the former legal representatives to find new lawyers; Secondly, this is not a case where, Mr Simmonds, the appellant, appears to be substantially at fault. It was suggested that the affidavit of Mr Watson indicated that he had been informed on 10 March 1995 as to the need to contact Mr Watson in order to arrange a conference. It seems plain from that affidavit that, on Mr Watson's version, Mr Simmonds did not immediately do so. Mr Rewell told the Court that, if there were time, he would, on his instructions, seek to put before the Court evidence of Mr Simmonds contradicting, or disputing, the evidence of Mr Watson in this regard. However, there was no time to do so. He had not had time to be properly briefed on the matter. But even if Mr Simmonds had been informed on 10 March 1995 to contact Mr Watson, it seems hardly surprising, in the unusual circumstances which are admitted in the affidavit of Mr Watson, that Mr Simmonds did not rush to do so. Behind the lawyers and their controversies here, the removal of the file from the firm of solicitors, the retrieval of the file, the conversations at a Local Court and the events of last week and of this morning, there stands a citizen. A citizen has rights. Those rights are not to be denied, at least in the very unusual circumstances of this case, because of the defaults of those who were then representing him. Thirdly, it would not, in my view, be an adequate answer to say that if the Court were to force the matter to proceed to a hearing and if Mr Rewell were not able properly to advance the appellant's cause, then Mr Simmonds would have a possible cause of action against Mr Marsden, Mr Dunbier or someone else. It is completely unrealistic, in the case of a person legally aided in this Court and who is by all accounts a person of modest means and capacity, to suggest that he could bring a subsequent proceeding to sue his solicitors. This Court has the case before it today. It would, in my view, be unrealistic and unreasonable to require the appellant to rely on possible other entitlements against the former lawyers. To seek solace in such a remote possibility would be to countenance a charade because the Court would know that, in truth, no such step would be likely to be taken. Fourthly, the decision in x Dazenko Structural and General Engineering Pty Ltd v Fraser Hrones and Co Ltd unreported Court of Appeal (NSW), 5 October 1990, [1990] NSW JB 132 which was relied upon by the majority this morning, is, as I read it, a case special to its own facts. Certainly it is a case involving commercial parties in a commercial cause. It goes without saying, but I feel I should say it, that each application for adjournment must be determined on its own facts. There can be no simple rule which can be inflexibly applied by the Court to an application for adjournment. This Court is duty bound to do justice. Justice in this case requires an adjournment. The Court must provide an adjournment particularly where it can do so upon terms which adequately protect the respondent and repair any real prejudice that it will suffer. I indicated this morning that I would provide such terms by an order for indemnity costs which I would consider making after affording an opportunity to those who may be responsible for what has happened, namely, the successive lawyers who have acted for Mr Simmonds. 4 UNREPORTED JUDGMENTS Fifthly, the efficient operation of the Court, of its lists, of the special Damages List, of the directions, of judges and of the Rules of Court are subordinate always to the duty of the Court to do justice. That does not mean justice only to the appellant. It means justice also to the respondent. It means justice also to either parties who are awaiting a hearing in the Court. But if the Court is informed by experienced counsel that a case cannot fairly and properly be presented today, I do not believe that I should lend my aid to the presentation of the case in a way that runs the risk of effectively preventing the Court from performing its proper function as a court. I do not believe that a judge should be forced to lend the authority and dignity of his or her office to such a masquerade of justice; Sixthly, courts should always strive to reach the merits of a case. Cf Byron v Southern Star Group Pty Ltd t/as KGC Magnetic Tapes Court of Appeal (NSW) unreported, 20 February 1995; [1995] NSW JB 21. The merits of this case appear, on their face, to present great difficulties to Mr Simmonds. It is a case which needs sober, careful reflection, proper preparation, diligent presentation and careful contemplation by the Court. In the events which have occurred, including today, unless an adjournment is provided, that may not be achieved. Of course it might be - but that would be the result of luck and chance rather than of the natural application of the Court's procedures. For these reasons, and with the benefit of the additional material which has been placed before the Court, and most notably the assurance to the Court of counsel now appearing for the appellant, I have no hesitation in re-affirming the orders which I proposed earlier this day. Indeed, with every respect to those of a different view, I believe that, it is almost unthinkable that the case should now be pressed on when the Court can adequately protect the respondent by an order for costs, possibly indemnity costs. I propose the same orders as I proposed this morning, namely that the hearing of the appeal by adjourned and the costs order reserved. Cole JA I remain of the same view as I was this morning. Nothing has changed since then, save one thing, that is, the tender of an affidavit of David Stewart Watson tendered on behalf of the applicant for the adjournment and objected to in general terms by the respondent. That affidavit reinforces the reasons I gave this morning. It appears from that affidavit that Mr Simmonds is no meek litigant before this Court. Para8 of the affidavit makes clear that at a time when there was some debate about who might be representing him, he went beyond Mr Dunbier, he went beyond Marsdens and he approached a third firm, Messrs Hunt and Hunt, with a view to them conducting this litigation on his behalf. That apparently occurred at some time prior to 10 March 1995. It follows from that that Mr Simmonds personally must have been aware, no doubt he was, that these proceedings were to be litigated in this Court today and that it was incumbent upon him to take such steps as he regarded as necessary to ensure that he had adequate representation in this Court today. Further, para9 of the affidavit makes clear that on 10 March 1995 Mr Simmonds was reminded of his obligation to ensure that he had representation in this Court today. He was so reminded by Mr Watson. It is not in point for this Court to speculate about whether para9 be correct or not. It was tendered on behalf of the applicant for an adjournment. In so doing it was put by counsel for the applicant that if he had time he might have been able to consult with Mr Simmonds who might have taken the view that some of the statements in para9 were not correct. That does not amount to any submission URJ SIMMONDS v SPOONER (No 2) (Cole JA) 5 that the allegations in para9 were incorrect and the difficult position in which the applicant would be placed if he were on the one hand to tender para9, on the other hand to tender material to say it was not correct, is apparent. But para9 does make clear in its terms at Mr Simmonds was made aware on 10 March that he had to make a decision whether he wished to have Messrs Marsdens and senior and junior counsel act for him on this appeal. It is apparent that after 10 March there was communication between Marsdens and Mr Simmonds because a conference was arranged for 23 March 1995. That must be a recognition by Mr Simmonds that he wished those people to act for him. It was only when he indicated at that conference that he intended to make or had made allegations against Mr Dunbier and Mr Marsden that the difficulty arose in the view of Mr Watson and counsel about their continuing to act. On that day the appeal book was delivered to a new solicitor, Mr Beilby. I still have not been given any indication of why counsel could not then have been briefed in relation to the appeal. The grounds of appeal are set forth in the notice of appeal. The judgment is there and so is the material upon which the appeal would be dealt with. The learned President has indicated that this is not a case where the client dismissed lawyers. It is not a case where the client is at fault. It is apparent from what I have said that in my view para8 and para9 of the affidavit to which I have referred deny each of those propositions. It has also been said, as a third basis why this matter should not proceed, that it is simply not right to suggest that the appellant, if he is damaged in some way by the appeal proceeding, would have a cause of action against Mr Marsden. Whether he has such an action, of course, would depend whether he has any valid claim. If he wishes to bring an action, then there is Legal Aid available for him to do so. I do not regard that as an unrealistic prospect if in truth there is any substance or basis for him bringing such a claim. The fact he has Legal Aid in this case supports the view I have just expressed. The fourth matter was a reference to the decision in Dazenko!. It has been said that is a case special to its own circumstances. I agree with the President that each case must be considered on its merits. Nonetheless in the principles enunciated in Dazenko? in Handley JA's judgment and those referred to by the Full Court of Victoria in Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd? are in my view apposite. Justice does not require that every litigant be given every opportunity at his whim and at his timing to bring forth his case. Justice does require that he be given a hearing date when he knows that the case will be heard and he should be given the opportunity to have his case heard on that occasion. If he chooses not to arrange affairs so that that can occur, then he cannot complain, in my view, of any injustice. Fifthly, it was put that the rules and procedures should always be regarded as subordinate to justice. I agree: but it is no injustice to deny the appellant, particularly in this case where he has known of his obligation to have the case ready today and has not taken appropriate steps to make it so, an adjournment at the inconvenience of others. so he can have the case litigated on a date suitable to him. 1. (Unreported) Court of Appeal, 5 October 1995 2. supra 3. (Unreported) Full Court of Supreme Court of victoria, 4 April 1988 6 UNREPORTED JUDGMENTS The final proposition advanced by the learned President was that the court should always strive to reach a decision on the merits. With great respect, I do not agree. In my view the question of the merits of this particular claim were initially dealt with by the trial judge. The question which arises on the appeal is whether or not sufficient error is shown in that decision to require this Court to interfere. That, it seems to me, is a different concept to a hearing on the merits. In those circumstances I remain of the view which I expressed this morning that the matter should proceed today. Rolfe AJA When this Court refused the adjournment application this morning it did so in terms that must have made it obvious that the appeal would be called on later today for hearing. At 2.20pm the appeal was called on for hearing and Mr Rewell announced his appearance on behalf of the appellant. At that stage there seemed no particular reason, subject to one matter to which I shall refer, why the appeal should not proceed. However, shortly thereafter an application was made for a further adjournment by Mr Rewell. In my view not only has nothing changed since this morning which would cause me to change the view I took that the adjournment application should be refused, but the affidavit of Mr Watson, to which the learned President and Cole JA have referred, reinforces the view I took this morning that the application for an adjournment should not have been granted and should not now be granted. I prefer the view of the affidavit to which Cole JA has referred, than to that which the President has referred. I also adopt what Cole JA said in relation to the suggestion that the material in the affidavit should be contradicted. From time to time it becomes necessary for counsel accepting a brief to argue matters at reasonably short notice. The matters for debate in this appeal fall within a short compass, although the principles are obviously important; however, they are well-known. Mr Rewell is a counsel of experience who has appeared frequently in this Court and I have no doubt that he will be able to deal with the material which must be found essentially in the judgment of his Honour the trial Judge and in the grounds of appeal. The constant reference to the necessity to rifle through the file is something in the context of this appeal I do not understand. In my view the application for the adjournment should be refused. Kirby P: The application for adjournment, renewed on behalf of the appellant by Mr Rewell, is, by majority, refused. 1. Motion for adjournment dismissed; 2. Direct appeal to proceed to hearing. Counsel for the Claimant: KP Rewell Instructed by: Beilby Polden and Costello Counsel for the Opponent: HJ Mater Instructed by: Roslyn O'Reilly