SIMMONDS v SPOONER [No. 1] SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL KirBy P, COLE JA and ROLFE AJA 28 March 1995 [1995] NSWCA 427 PRACTICE AND PROCEDURE — Court of Appeal — personal injuries action — primary judge (McInerney J) disbelieved the plaintiff — awards small judgment — plaintiff appeals — difficulties of overcoming opinion of primary judge — dispute arises with plaintiff's solicitors — employee of solicitors takes file — plaintiff returns to former solicitors — late conference with counsel — Senior and Junior Counsel withdraw from appeal having regard to complaints made — fresh solicitor claims he is unable to prepare for and fairly present appeal — respondent does not claim actual prejudice — case listed in Special Damages List of the Court of Appeal — no written submissions filed for appellant — on an application for adjournment of hearing of the appeal to permit proper preparation of the appeal — held. (Cole JA; Rolfe AJA agreeing; Kirby P dissenting): The adjournment should be refused and the matter ordered to proceed as listed. Differing observations by Kirby P and Cole JA on principles governing adjournment of the hearing of appeals fixed for hearing. Taylor v Taylor ((1979) 143 CLR 1; W Dazenko Structural & General Engineering Pty Ltd v Fraser Hrones & Co. Ltd, unreported, Court of Appeal (NSW), 5 October 1990; (1990) [NSW] JB 132; Apex Pallet Hire Pty Ltd v Brambles Holdings Ltd, Full Court, Victoria, 4 April 1988, unreported, considered. Kirby P. Before the Court is a contested application for an adjournment of an appeal which is listed for hearing this day. The appeal is the second in the list of three appeals fixed for hearing today, in a month which the Court has set aside for the disposal of damages cases. The list has been long heralded. Special procedures have been adopted for the list. Special directions have been given for the conduct of the appeals. The purpose of the list is to help the Court to clear a backlog of cases which hold up justice. It is not entirely trite to say again that justice delayed is justice denied. The Court must therefore consider the application against the background of the purposes of its special damages list. As other cases have indicated, the Court is most reluctant, cases having been assigned to the list and fixed for hearing, to provide an adjournment. Such an order disturbs the hearing of the present list. It necessarily causes inconvenience to others who are later displaced by a case which should have been concluded. Notwithstanding these considerations the application must be considered upon the basis of its own facts. Judges do not have the luxury of process workerscommitted to automatic unthinking repetitive administration. It is therefore necessary to say a little about the facts of this case. The appellant, Mr Gregory Simmonds, brought a claim for damages arising out of a motor vehicle accident which occurred to him in June 1984. That accident took a long time to come to trial. Ultimately, it was heard in the Supreme Court by McInerney J sitting alone on 22 August 1990. His Honour delivered judgment on 26 October 1990. It is therefore now more than 10 years since the accident. It nearly is five years since the trial and judgment. 2 UNREPORTED JUDGMENTS The judgment of McInerney J appears to indicate that Mr Simmonds may have substantial difficulties in succeeding in the appeal. The central question, as was said by counsel for the respondent on behalf of his client, was whether the appellant suffered a back injury in the subject motor accident. A difficulty has presented that none of the contemporaneous records, presented to the trial, appear to support the contention that the serious back injury, (which went on to a major laminectomy operation), was caused at the time of the accident. There are other contemporaneous records which, far from linking the back injury to the motor vehicle accident, appear to link it to supervening incidents such as one involving the lifting of weights. In that sense, the appeal presents familiar problems to the Court of an appellant, seeking to overcome a determination of a trial Judge, which was based, apparently, upon the footing that the Judge did not accept the testimony of the appellant. This problem is not uncommon. So far as the issues in the appeal involve a challenge to the Judge's conclusions on the evidence they would have been dealt with in the familiar way. The case was listed for hearing before this Court today at a call-over in September 1994. The solicitors on the records at that time were Messrs Marsdens,Solicitors of Sydney and Campbelltown. They remained on the record. However, as the Court has been informed from the Bar table today, a problem arose at a time which is not entirely clear but which appears to have been some time earlier this year. The problem allegedly occurred when a Mr Dunbier, previously an employee of Messrs Marsdens, left that firm, taking with him certain files and a number of clients including, so it was said, Mr Simmonds. Subsequently, on 4 March 1994, Mr Dunbier for the firm of which he is now associated, filed a notice of ceasing to act for Mr Simmonds. This is a curious document, because on the face of the record of the Supreme Court before us it does not appear that Messrs Marsdens were ever removed from the record or that Mr Dunbier and his firm ever formally became the solicitors on the record for Mr Simmonds. However that may be, the appeal hearing was looming. The date for the filing of the appellant's written submissions, required by the practice direction, was Monday, 20 March 1995. No written submissions had been prepared. Indeed, to this day no written submissions have been supplied to the Court by the appellant. Messrs Marsdens, as the Court was told, informed Mr Simmonds in late February that they were prepared to resume the de facto appearance for him in the appeal. Mr Simmonds then returned to Messrs Marsdens. He gave them instructions, although the exact date on which those instructions were actually renewed is not entirely clear. One thing which is clear is that an appointment was made by Messrs Marsdens with Senior Counsel who had appeared for Mr Simmonds at the trial. That appointment was conducted on Thursday last, 23 March 1995. Why it was not conducted earlier is also not clear. One would have thought that, with the advancing date of the appeal hearing, steps would have been taken urgently toensure that the appointment was made in good time to permit the preparation for the appeal and the lodgment for the written submissions which are an essential adjunct of the appeal hearing. The Court has been told today that at the conference with Senior Counsel last Thursday a dispute arose between Mr Simmonds and Senior Counsel who had appeared at the trial. The dispute apparently revolved around whether Senior Counsel, or other counsel appearing at the trial or the solicitors, had failed on URJ SIMMONDS v SPOONER [No. 1] (Kirby P) 3 behalf of Mr Simmonds to present essential evidence which would have bolstered his case before McInerney J. As a result of this dispute, as I would infer, counsel drew the conclusion that they could not properly act for Mr Simmonds. Counsel thereupon withdrew. Therefore, on Thursday night last, Mr Simmonds did not have counsel to appear for him in the appeal, only two business days away from hearing. As we have been told, Mr Simmonds then approached Mr Beilby who is a solicitor. The approach was made on Thursday night. Mr Beilby agreed to act for Mr Simmonds. It is he who has come to this Court today. It is he who has made the application for the adjournment which the Court is now considering. Both Mr Beilby and Mr Mater, counsel for the respondent, have agreed that, although formal evidence has not been placed before the Court, their statements to the Court from the Bar table can be treated as facts for the purpose of this application. I am content to do that. According to Mr Beilby he has not yet received Mr Simmonds" file from Messrs Marsdens. He only yesterday, and then but orally, received the consent of the Legal Aid Commission to act on behalf of Mr Simmonds, who is a legally aided person. He has not been able to take proper instructions. The appellant is apparently a person who is either unable to read and write or who has considerable difficulty in that respect. Mr Beilby indicated to the Court that he felt that it wouldbe necessary, in the proper preparation of this appeal, to go through the appeal book carefully with the appellant. He stated that it could not be left to the appellant to give written instructions. Mr Beilby has not had the time to pursue that course. Nor had he been able to retain counsel, although previous counsel had provided him with a copy of the appeal book which would be the essential documentation for the prosecution of the appeal. By reason of other already accepted commitments and the lack of proper instructions from Mr Simmonds, Mr Beilby told this Court that he had not been able to secure counsel and to brief counsel properly for the appeal in the limited time available to him. Hence his application for the adjournment of the hearing in the interests of justice. Obviously, the position which is reached is most unsatisfactory. I can understand the objections of the respondent to the adjournment of the hearing of the appeal. Mr Mater very properly prepared most detailed and helpful submissions which set out the case for the respondent. That case is, on its face, a strong one, so far as the merits appear. However I have not had the advantage of considering properly prepared submissions on behalf of the appellant. This is so for the reason which I have indicated. In a sense, the apparent weakness of the appellant's case, on the face of the record, requires the attention of skilled legal representation which, for whatever reason, is not now available to the appellant, to present his appeal. Mr Beilby is obviously an experienced and competent legal practitioner. When asked whether he could fairly present the case today he indicated to the Court that he did not believe that he could. I would feel most uncomfortable, in theabsence at least of any irreparable prejudice to the respondent, in those circumstances to require the matter to proceed to hearing this day. The respondent could not point to any particular prejudice that he would suffer if his costs of the hearing today were provided for. Of course, the respondent is prejudiced in one respect. His counsel is here. The respondent is ready to present the case. The case is much delayed. The case appears to have real difficulties 4 UNREPORTED JUDGMENTS from the point of view of the appellant. All of this I allow for. But no actual prejudice was suggested which an order for costs could not cure. It is erroneous, in my respectful view, to approach an application such as the present, in a case such as this, as one might a motion to adjourn a commercial cause fixed for trial or even an appeal involving commercial litigants. Cases such as Dazenko and Apex, to be referred to by Cole JA are, with all respect to those of a different opinion, inapplicable to a case involving a legally aided person in respect of a cause which is not a commercial investment but vital to his life and well-being. Upon this footing — both for the actuality and seemly appearance of justice — I would provide the adjournment sought, on terms. Counsel for the respondent asked for costs on an indemnity basis, notice having been given of that application earlier this morning. We were told that Mr Simmonds, being a legally aided person, might not be in a position to provide indemnity costs. I can understand that. The Court does not have full information available properly to consider an application for indemnity costs. In particular, we do not know whether any such order would properly be made, in the circumstances, against the appellant himself or against his successive and departed legal representatives. It would be open to the Court to make an order against those legal representatives. However, it would be necessary that they should be given notice so that their part in this sorry chronicle could be examined and they can be heard before any such order for indemnity costs was made against them. It was suggested that the matter should be required to proceed on Friday of this week. That is a day on which time has been set aside for an overflow of cases from the damages list. Although time would be available on Friday for the hearing of the appeal. Mr Beilby resisted the listing of the case on Friday. He did so upon the basis that, even to this time, he has not received a file from the former solicitors. He did not feel that it would be possible to get the case properly prepared by Friday next. On that basis, I would be disinclined to force a matter to a hearing on Friday. Once the case is to be adjourned I see no reason why it should be forced to such a very early hearing. If adjournment is required and proper to permit a thorough preparation of the appeal, there is no point fixing a date which could frustrate those purposes. The appeal should be heard as quickly as the Court list permits. But I do not see that the matter has to proceed on Friday, particularly if the solicitor for the appellant says that the very reason for which he applies for an adjournment today might not, or would not, be cured by Friday next. The orders which I would therefore propose are: 1. Adjourn the hearing of the appeal to a date to be fixed by the Registrar; 2. Adjourn to a date to be fixed by the Registrar, the consideration by the Court of whether or not an indemnity costs order should be made against Messrs Marsdens, Messrs Gorman Dunbier or counsel who formerly acted for the appellant, or any other person. Notice of that hearing to be given to such persons; and 3. Direct that the hearing in relation to the determination of the costs should be heard by the Court as presently constituted within a period of two weeks. It would be my present contemplation that an indemnity costs order might be made. The purpose of the hearing would be to hear the parties affected and, if it be determined that indemnity costs should be ordered, to appoint the person, or persons, who should bear the burden of that costs order. URJ SIMMONDS v SPOONER [No. 1] (Cole JA) 5 Cole JA. In this matter the only issue at present before the Court is whether the proceedings should be adjourned. The appellant was injured in a motor vehicle accident in June 1984. He commenced proceedings for damages in March 1986. The trial of those proceedings came on before a Judge of the Supreme Court, McInerney J, and his Honour delivered judgment on 26 October 1990. In that judgment his Honour indicated that the appellant had sought and obtained an expedited hearing of his case. In so doing, as his Honour indicated, he disadvantaged many other litigants who wished to have their cases heard by, as it were, jumping the queue. A notice of appeal from McInerney J's decision was filed in approximately November 1990. There has thus been four and a half years between the filing of that notice of appeal and the proceedings coming before the Court today. That is obviously an undesirable period of delay. It was because of circumstances such as this that this Court embarked upon a program to reduce the time which people had to wait before cases were heard, and it is not irrelevant to remark that there are at present more than one thousand litigants waiting to have their cases heard before this Court of Appeal. As part of the reduction in delay program cases were called over between four and six months ago and hearing dates were given in advance so that everybody would be fully aware of all the steps that needed to be taken to make sure that their cases were ready for hearing on the day on which a hearing date was given. In this case the matter was called over in September 1994. That is six months ago and the case was listed specially for hearing today. Today an application has been made to adjourn the proceedings. Why should that application be granted?The basis upon which the application is made is, as I understood it, twofold, and I would pause to remark that we are indebted to Mr Beilby for his attentive and useful submissions on the part of the appellant. The reasons advanced are twofold: the first is that it is desired to consider whether or not evidence could now be obtained of what would be economic loss suffered by the appellant and to call or seek to call that evidence as fresh evidence in this appeal. The second is that it is sought to enquire into the circumstances in which the appellant went to a hospital and complained to hospital staff that he had injured his back whilst weightlifting. That also apparently is thought to be, or may be thought to be, fresh evidence which might permit this Court to admit it and consider it on the hearing of the appeal. There is great difficulty with those two bases of the first reason advanced for an adjournment. It must be clear, I would have thought, that evidence of the appellant's economic loss, that is, how much he was earning before the accident and how much he was earning or would be likely to earn after the accident, must have been available at the time of the trial and accordingly would not fall within the category of new evidence. Second, the question of the appellant's attendance at the hospital and his complaint in relation to damaging his back when weightlifting was a matter which was dealt with by the trial Judge in his judgment. I do not see any basis upon which that could be regarded as fresh evidence. Accordingly it seems to me that the prospect of new evidence being found, and the prospect of, if it were found, this Court being persuaded that it should be admitted on the hearing of this appeal, is remote in the extreme. That in itself in my view is not a sufficient basis for an application for an adjournment. If it were to be the basis for mounting an application for an adjournment then I would have expected that there would be placed before this Court on affidavit, 6 UNREPORTED JUDGMENTS even if it were hearsay evidence, first of all,details of the nature of the evidence which was sought to be led; second, the manner in which it might be contended that that was fresh evidence; and third, some endeavour to indicate to the Court the basis upon which it could be contended that the various tests which must be passed before any such evidence would be admitted by this Court could be satisfied. None of that has been done. The second basis of the application for the adjournment is really that Mr Beilby has not had an opportunity to consider either the fresh evidence matters to which I have referred, or otherwise to prepare for the hearing of this appeal. That circumstance has arisen as follows. It appears from the appeal book that a firm of solicitors called Marsdens have always acted for the appellant. Certainly they prepared the appeal book. Apparently at some point of time the file was taken by Messrs Gorman Dunbier and they purported to act, although so far as the record extends they did not file a commencement to act notice, and nor did Marsdens file a notice of ceasing to act. Whatever be the circumstances in that respect there was some debate about the matter because on 24 February 1995, that is one month ago, Messrs Marsdens apparently wrote to the appellant saying they would act in this matter. If they had not been previously acting then clearly they had a month in which to prepare this matter, they having prepared the appeal books. Subsequent to that on 3 March Messrs Gorman Dunbier by notice dated 2 March filed a notice of ceasing to act. It seems that the appellant, a solicitor from Marsdens and Senior and Junior Counsel conferred on Thursday last, 23 March. On that occasion apparently some dispute arose which resulted in counsel indicating that they could no longer appear in the matter, and Messrs Marsdens also indicated that they would no longer act. Itwas in those circumstances on 23 March that Mr Beilby was asked to take over the conduct of the matter and he did so. The appellant is legally aided. No steps were taken to obtain new counsel to prepare the matter for hearing today. It is not clear to me why that was not done. This appeal is, if I may so describe it, an ordinary damages appeal of no particular difficulty and there is no reason why it could not have been adequately prepared between last Thursday and today. There has been a complete disregard of directions given by the Court by the previous solicitors for the appellant in relation to the steps necessary to comply with the directions of the Court for the hearing today. I do not regard the circumstances outlined as being any basis for an adjournment. This Court considered the question of whether failure by solicitors to adequately prepare a case constituted grounds for an adjournment in W Dazenko Structural & Engineering Pty Limited v Fraser Hrones & Company Limited'. In that decision Handley JA with whom Meagher JA agreed said: It is always unfortunate when proceedings are disposed of at trial without the case of one side or another being properly prepared and presented. However this is not a case on the evidence of accident or surprise preventing a party from appearing and presenting his case at the trial. Compare Taylor v Taylor (1979) 143 CLR 1. This is a case where, on the admittedly incomplete evidence, the appellant's problems are entirely of its own making or else are due to default or neglect on the part of its solicitors. Unfortunately the evidence does not exclude the conclusion that the problems are due to the appellant's own failures to properly instruct its solicitors. The trial judge URJ SIMMONDS v SPOONER [No. 1] (Rolfe AJA) 7 and indeed this Court may have taken a different view if the appellant itself was blameless and the fault lay entirely with either or both of its Melbourne and Sydney solicitors. However as McGarvie J said in Apex Pallet Hire Pty Limited v Brambles Holdings Limited (Full Court of Supreme Court of Victoria 4 April 1988 unreported): "... the right of a party to litigation is the right to have a reasonable opportunity to present its case or its defence. It is not accurate to regard the law as being that, if one party through neglect, is in a position where it is not able properly to present its case, it is automatically entitled to an adjournment." This case, of course, is an appeal. The appellant has already had a hearing before a primary Judge of this Court and in the major respect was unsuccessful. The issue at trial was whether or not the motor vehicle accident caused the appellant to have a serious back injury. The trial Judge found that it did not. Questions of economic loss or the extent of weight which the appellant lifted preliminary to suffering a back injury of which he made complaint at a hospital could not, I should have thought, materially affect the questions which this Court would have to consider on an appeal. In my view no ground has been advanced why this matter should not proceed today. The appellant has known for six months that the matter was listed for hearing today. If in truth he is disadvantaged by any failure or neglect on the part of his former legal advisers, then his remedies lie against them. It is not accurate, in my view, to suggest that simply because particular prejudice cannot be pointed to by a respondent to an appeal or indeed a respondent to an application for adjournment, or because an order for costs might be made which might constitute some solace for the inconvenience caused by any adjournment, that that is a sufficient basis for granting an adjournment. If this Court is to operate efficiently in my view parties must be fully aware that when a matter is fixed for hearing it will be heard on that date and they should conduct their affairs accordingly. I would propose that the application for adjournment be refused and the matter proceed today. Rolfe AJA. I adopt the statements of facts and circumstances stated by the President and Cole JA. Essentially for the reasons Cole JA has given I consider the application for an adjournment should be refused. I would only add for myself that on the question of the alleged further evidence about past economic loss and future loss of earning capacity, the learned trial Judge dealt with these matters fully at pp 266, 268 and 277 to 278 of the judgment. In so dealing with the matters his Honour made it clear there was no evidence available to support the allegations in relation to past economic loss and future loss of earning capacity upon which the appellant was relying. It therefore seems to me it would be futile to grant an adjournment to allow that matter to be further explored, particularly as a period of some four and a half years has gone by since the hearing. In any event I doubt whether the evidence could in any way be categorised as fresh evidence. So far as the question of the lifting of weights is concerned I respectfully adopt what has been said by Cole JA and in relation to the general discretionary matters I also adopt his Honour's reasons. I would propose that the application for an adjournment be refused. 8 UNREPORTED JUDGMENTS Kirby P. The application for adjournment is, by majority, refused. The matter will proceed today. The matter will be assigned to the bottom of the list, to be taken later in the day. 5 1. Motion for adjournment refused; and 2. Matter ordered to stand to the bottom of the Court's list to proceed on the day listed. Counsel for the claimant: W.B. Beilby (solr) Solicitors for the claimant: Beilby Polden and Costello Counsel for the opponent: H.J. Mater Solicitors for the opponent: Roslyn O'Reilly