Malouf v Prince [2008] NSWCA 153

New South Wales Court of Appeal

CITATION: Malouf v Prince [2008] NSWCA 153 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 13 June 2008 JUDGMENT OF: Beazley JA at 1

EX TEMPORE JUDGMENT DATE: 13 June 2008

DECISION: See para [26]

PARTIES: John Malouf (Appellant) Stephen Thomas Prince (Respondent)

FILE NUMBER(S): CA 40178/08

COUNSEL: A Dawson (Appellant) R Weaver (Respondent)

SOLICITORS: Attwood Marshall Lawyers (Qld) (Appellant)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 24/2007

LOWER COURT JUDICIAL OFFICER: McLoughlin DCJ

LOWER COURT DATE OF DECISION: 13 June 2008

- 8 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40178/08

BEAZLEY JA

Ex tempore 13 June 2008 John Malouf v Stephen Thomas Prince Judgment 1 HER HONOUR: The District Court of New South Wales presently has sittings at Lismore which commenced on 10 June 2008 and are to run for the balance of that week, which is the week which finishes today, 13 June 2008, together with the week that commences on 16 June 2008 for the ensuing five days. 2 The present matter was listed in those sittings. The plaintiff applied for an adjournment of those proceedings which was refused by the trial judge, his Honour Judge McLoughlin, and his Honour made orders which included that the matter be set down for hearing on Monday 16 June 2008. His Honour also ordered mediation and further ordered that the plaintiff pay the defendant's costs of 10 and 12 June 2008 on an indemnity basis. His Honour further directed the solicitor for the plaintiff to show cause as to why he should not indemnify the plaintiff for those costs. The reference to the dates of 10 and 12 June was a reference to the dates upon which the adjournment application proceeded before his Honour. 3 The District Court proceedings are defamation proceedings brought by the plaintiff who is an ear, nose and throat specialist against the defendant who is also an ear, nose and throat specialist. The adjournment was applied for in circumstances which were set out in a number of affidavits of Gavin John Mills, the plaintiff's solicitor, together with an affidavit of the plaintiff. That material, together with an affidavit of Penelope Anne Newbold, the defendant's solicitor, upon which the defendant had relied for the purposes of the adjournment application together with other correspondence, have been collected together in an affidavit of Gavin John Mills sworn 13 June 2008, which has been filed in Court today in the application before me. 4 The application before me is a Notice of Motion filed today, in which the plaintiff moves the Court for an order that the proceedings below be stayed pending the resolution of the plaintiff's application for leave to appeal and/or appeal from the orders made by McLoughlin DCJ. The matter has come before me urgently and I have heard argument in the course of the whole of this afternoon, the matter having commenced at 2.15 pm. I am now in the process of giving judgment in the matter, shortly after 6 pm. For that reason, I do not propose to set out in any detail the factual matters contained in the affidavit of Mr Mills, save to record the following salient facts. 5 Mr Mills states that he was not aware that the matter was listed for hearing in the Lismore sittings. He had given evidence before the trial judge that it was his understanding that the matter had been listed in those sittings for callover. Accordingly, he had taken no steps to prepare the matter. The plaintiff, Dr Malouf, gave evidence on affidavit before his Honour that he is the only practising ear, nose and throat surgeon at the Tweed Heads District Hospital, but that because he was not aware that the matter was on for trial, he had made no alternative arrangements for his patients and the patients of that hospital to be attended to during the period of the trial. In particular, Dr Malouf gave evidence that he was involved in the care of a critically ill patient, who was in intensive care at the Tweed Heads District Hospital and who required constant monitoring for a ruptured carotid artery. He said he was attempting to make alternative arrangements for the care of that patient, but as I understand the evidence he had not been able to do so up to the time of swearing his affidavit. 6 The other matter which was central to Mr Mills' position as to why he had not understood that the matter was for trial, was that he had understood from a status conference held on 9 April 2008 at Tweed Heads that the matter had been transferred to Lismore for trial but it was listed for callover, and that he had not received any notice for listing. Ms Newbold, the defendant's solicitor, gave evidence before the trial judge that whilst she had received correspondence from Mr Mills immediately after the status hearing, which included a statement that the matter "will be listed for callover at the civil sittings commencing 10 June 2008" subsequent to that letter, she had received a notice of listing stating that the matter was listed at 10am on 10 June 2008 for hearing. She therefore proceeded to prepare the matter for trial. 7 Because of the urgency with which this matter has been brought on for hearing, the parties were not able to obtain a copy of his Honour's judgment in the matter. However, Ms Newbold, in an affidavit sworn 13 June 2008, has set out the reasons of the trial judge so far as she remembered and recorded them in notes that she made whilst in attendance when judgment was being delivered. The following important matters emerge from his Honour's judgment. The first is that his Honour made a finding that Mr Mills was aware at the time of the status conference that the matter was being transferred to Lismore for trial. Secondly, his Honour had accepted Ms Newbold's evidence over the evidence of Mr Mills on any question of disputed fact. Thirdly, his Honour had made findings of fact that Mr Mills was dilatory and negligent in failing to take any steps to prepare for the hearing of the trial during the two weeks commencing 10 June 2008. Next, his Honour referred to a number of authorities relevant to the basis upon which he should exercise his discretion. Those authorities were Haset Sali v SPC Limited [1993] HCA 47; (1993) 116 ALR 625; State of Queensland v JL Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146; and Menzies v CRCI Pty Limited [2007] NSWCA 118, as well as to the provisions of the Civil Procedure Act 2005 and in particular ss 56, 57, 58 and 66. His Honour made a finding, apparently, that subject to the transfer of the care of the critically ill patient to which I have referred, the plaintiff would otherwise be available to give evidence. 8 His Honour then made two findings in respect of the defendant's position. First, that he had to rearrange his practice to make himself available for the two weeks of sittings and for the preparation of the matter, and that he had cancelled operating lists and postponed surgery and approximately 200 patient consultations. His Honour observed that the postponement of those matters meant that the public hospital medical staff were also affected and the day to day processes of the hospital were disrupted. Secondly, his Honour accepted that the defendant had lost income in excess of $30,000. His Honour appears to have made a finding that this financial loss could not be covered by costs. His Honour apparently recorded that this figure was conceded by the plaintiff's counsel. I will return to this shortly. 9 His Honour, according to Ms Newbold at para 11 of her affidavit, found that: "… if the Defendant's prejudice was only in the form of costs he would have no hesitation in granting the adjournment however the Judge found that the Defendant has suffered loss which cannot be recouped, both in terms of financial and emotional loss." 10 The matter proceeded with some difficulty before me during the course of the afternoon, having regard to the inability to have access to the judgment, to a transcript and to the entirety of the evidence presented in the Court. 11 However, two particular matters emerged from the material that was before me. First, Mr Mills was cross-examined and it was undoubtedly as a result of that cross-examination that his Honour made his credit finding. Secondly, very late in the hearing before me, the Court was informed that one aspect of that cross-examination related to a communication that Mr Mills had made to a barrister which made it apparent that Mr Mills was aware that the matter was in fact listed for hearing in these sittings. 12 Upon further inquiry, it appears that the communication was an email from Mr Mills to Mr Dawson, the plaintiff's present counsel and who appeared in the matter before me today. That email was read onto the Court record as follows: "Dear Sandy,