CARSON v LEGAL SERVICES COMMISSIONER (NO 3) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER and STEIN JJA, and GILES AJA 16 December 1997 [1997] NSWCA 60 Sheller, Stein JJA and Giles AJA Summons By a summons filed on 28 November 1997, Nicholas Roderick Carson seeks leave to appeal from a decision of Barr J given on 24 November 1997 and asks that, if leave is granted, the appeal be heard instanter and allowed. Mr Carson is the claimant in a summons originally filed in this Court seeking relief against the Legal Services Commissioner. The summons was listed for hearing before this Court, as presently constituted, on 26 August 1997. On 29 August 1997 the Court remitted the proceedings to the Common Law Division for determination. On 15 September 1997 a directions hearing took place before Simpson J. Her Honour was not prepared to expedite the matter but listed it at the end of other matters expedited in the call-over to be held towards the end of the year. On 24 October 1997 a call-over took place before Barr J. His Honour fixed the matter for hearing on 2 February 1998. On 14 November 1997 the Commissioner's solicitors filed and served a notice of motion and an affidavit of Ian David Hill, a solicitor having the carriage of the matter for the Commissioner, to have the hearing date of 2 February 1998 vacated. On 24 November 1997 Barr J vacated the hearing date and set the matter down for hearing for 25 May 1998. Mr Carson seeks leave to appeal from that decision. Before Barr J no part of the affidavit of Mr Hill was objected to, nor was he cross examined. However, Mr Brereton, counsel for Mr Carson, called for the production of documents pursuant to a notice to produce addressed to the Commissioner and served the previous Friday. Mr Haylen QC, who appeared for the Commissioner, said the notice asked for memos of fees. While he wished to be heard on the relevance of the documents sought, he was prepared to provide a summary of time spent by counsel briefed by the Commissioner which was noted on a piece of paper handed to Mr Brereton at the bar table. Mr Brereton said the notice to produce went to paral! of Mr Hill's affidavit and the claim by the Commissioner that the briefing of new senior counsel to appear on 2 February 1998 would result in substantial fees already paid to senior counsel being thrown away. He said the notice sought documents which detailed not only time spent but also quantum of fees. He again called on the notice to produce. Barr J said: "What is produced is produced". Mr Brereton then tendered the document which had been handed to him and was headed "Summary of quantum of work done by counsel" in the matter. At the directions hearing before Simpson J, Mr Haylen appeared for the Commissioner. Mr Hill said that he had been informed and believed that Mr Haylen informed her Honour that the hearing of the case would take approximately fifteen days, and that the matter had been complicated by the departure from the case of his junior counsel, Mr Blackmore, who had been 2 UNREPORTED JUDGMENTS appointed Acting Deputy Director of Public Prosecutions and had been intimately involved in the detailed preparation of the case. Mr Haylen also informed her Honour that a lead time would be required because of this but that the Commissioner would not have difficulty if the matter were not listed for hearing before March/April 1988. When Simpson J asked Mr Brereton if there was any urgency concerning the hearing of the matter, Mr Brereton stated that the only urgency was that there were serious professional allegations hanging over Mr Carson's head. Mr Carson sought a special fixture for the matter but her Honour directed that the matter be listed at the end of other matters expedited in the long matters call up to be conducted later in the year. On 24 October 1997 Mr Marien, junior counsel briefed by the Commissioner, informed Barr J that Mr Haylen had been briefed for the Commissioner since the beginning of the case but was not available in February 1998 and that a hearing after February 1998 was therefore sought. Barr J invited no submission from Mr Marien as to what was involved in the preparation of the case for the Commissioner. Ms Chang, Mr Carson's solicitor, informed the Judge that he sought the first available hearing date. In fixing the proceedings to be heard on 2 February 1998, Barr J stated he would not list the matter to suit the convenience of senior counsel. Mr Hill's affidavit continued as follows: "8. These proceedings relate to a complaint by way of information made by [the Commissioner] under the Legal Profession Act 1987 against [Mr Carson]. The complaint arises from very complex litigation in this Court. [Mr Carson] will be cross-examined at considerable length at the hearing. The hearing of oral evidence could take some ten (10) days: see Decision of the Court of Appeal on 29 August 1997 at p3 and p9. Cross-examination of [Mr Carson] will involve a great volume of documentary material and will require lengthy preparation on the part of [the Commissioner]. 9. The information filed against [Mr Carson] concerns serious allegations against him and seeks a finding by the Second Defendant that [Mr Carson], a solicitor of this Court, is guilty of professional misconduct or alternatively unsatisfactory professional conduct. [The Commissioner] has filed the information against [Mr Carson] in accordance with a statutory duty and it is in the public interest that [the Commissioner] be afforded proper opportunity to be represented at the hearing of these proceedings. 10. I am informed by Mr Haylen that he is not available to appear in these proceedings in 1998 until the beginning of March. I am further informed by Mr Haylen that proper preparation for the hearing of these proceedings by Senior Counsel not yet familiar with the case and without having the assistance of junior counsel involved in the case since its inception will require not less than 10 to 12 weeks preparation. In my opinion, should the matter proceed to hearing on 2 February 1998 without [the Commissioner] represented by Mr Haylen and in the circumstances where Mr Blackmore has recently departed the case then [the Commissioner] will be seriously prejudiced in the proper preparation and presentation of his case. Because of his prior commitments, Mr Marien was not able to commence detailed preparation of the case before early November 1997. 11. The briefing of new Senior Counsel to appear at the hearing on 2 February 1998 will result in substantial fees already paid to Senior Counsel being thrown away by [the Commissioner] and will involve the incurring of further substantial fees to brief new Senior Counsel to prepare for the hearing and will still not overcome the difficulties referred to in paral0 above. All funds available to [the WRRSON v LEGAL SERVICES COMMISSIONER (NO 3) (Sheller, Stein JJA and Gile8 AJA) Commissioner] for the payment of legal fees incurred by him are derived from public funds. [The Commissioner] has already had to bear the burden of considerable additional costs by having to brief new Senior Counsel in the proceedings in the Court of Appeal in August 1997." The transcript of the hearing before Barr J is not available. However, according to the notes of the hearing taken by Ms Chang, which were annexed to her affidavit on this application, Barr J, after hearing submissions, said he was inclined to move the date but he wished to make inquiries about Judges' availability. He adjourned for approximately twenty minutes. When his Honour returned to the bench he said: "It is appropriate for the reasons given and the submissions made by Mr Haylen supported by the Hill affidavit that justice required that the hearing date be vacated. The Court is in a position to offer another date to the parties which is 25 May 1998." Counsel responded by saying that the date proposed was convenient and his Honour then made his orders. Mr Brereton, in making his submissions in support of the application for leave to appeal, acknowledged that an appellate court ought to be very slow indeed to interfere with the discretion of a Judge in adjourning a trial; Maxwell v Keun [1928] 1 KB 645 at 653 per Atkin LJ. In Bloch v Bloch (1981) 180 CLR 390 at 395, Wilson J, with whose judgment three other members of the Court agreed, said that in Maxwell v Keun Atkin LJ stated the rule in terms which have won general acceptance. This rule acknowledged that if it appeared that the result of the order made was to defeat the rights of the parties altogether and to do what the appellate Court was satisfied would be an injustice to one or other of the parties, then the appellate Court had power to review such an order and it was its duty to do so. Mr Brereton submitted that Barr J had exercised his discretion arbitrarily, injudiciously and irrationally. In our opinion, this contention is without any substance. Mr Brereton submitted that the present was an exceptional case and said, amongst other things, that a hearing had already been appointed and vacated by reason of the remitter from the Court of Appeal to the Common Law Division, that an application to adjourn the hearing in the Court of Appeal "to suit the convenience of Mr Haylen" had been refused by Stein JA, that on 24 October 1997 the Court was aware of all the matters upon which the Commissioner subsequently relied to vacate the hearing date, that on 24 October a period of fourteen weeks remained for preparation before trial and that, according to material produced, Mr Haylen had spent only one day and fifty-five hours on the matter, much less than other counsel substantially briefed by the Commissioner in the matter, and that Barr J had stated that he would not list the matter to suit the convenience of senior counsel. The adjournment was said to do great injustice to Mr Carson. Mr Brereton referred to what was said to be a history of delay since Mr Rajski's complaint was made to the Commissioner on 5 July 1994. Mr Brereton questioned Mr Hill's statement that proper preparation for the hearing of the proceedings by senior counsel not yet familiar with the case and without having the assistance of junior counsel involved in the case since its inception would require not less than ten to twelve weeks preparation. He questioned Mr Hill's opinion that if the matter proceeded to hearing on 2 February 1998, the Commissioner would be seriously prejudiced in the proper preparation and presentation of the case. He questioned the claim that the briefing of new senior counsel to appear on 2 February 1998 would result in substantial fees already paid to senior counsel being thrown away by the Commissioner. Mr Brereton also relied upon Barr J's failure to require the Commissioner to produce documents in 4 UNREPORTED JUDGMENTS accordance with the notice to produce Pt36 rl6 of the Supreme Court Rules. However Mr Brereton acknowledged that when his Honour said "What is produced is produced" he took the view the decision was not one to cavil with. As we have said, Mr Brereton did not challenge Mr Hill's evidence when he had the opportunity to do so, and there is no reason at all why Barr J should not have acted upon it, as he said he did. To suggest that in doing so he was acting arbitrarily, injudiciously or irrationally is unfair to his Honour and wrong. It is unfortunate that no date earlier than 25 May 1998 could be found for the hearing. In our judgment of 29 August 1997 we recognised that the case was a serious and important one where any further delay was undesirable. But it must be realised that the Court has limited resources, that this is a case that is likely to go for some time and that there are many other litigants whose cases are urgent and have to be dealt with in an extremely busy list. In our opinion, no ground at all has been shown for disturbing the order that Barr J made and accordingly, the application for leave to appeal is dismissed with costs.