Magjarraj v Asteron Life Limited [2009] NSWSC 1433

New South Wales Supreme Court

CITATION : Magjarraj v Asteron Life Limited [2009] NSWSC 1433

HEARING DATE(S) : 14/12/09, 15/12/09

JUDGMENT DATE : 15 December 2009

JURISDICTION : Equity Division

JUDGMENT OF : Barrett J

DECISION : Proceedings dismissed with costs.

CATCHWORDS : PROCEDURE - application by defendant for dismissal of proceedings when plaintiff absent on second day of trial - cross-examination of plaintiff incomplete at end of first day - letter from plaintiff addressed to judge faxed overnight to judge's chambers - solicitor and counsel for plaintiff without instructions and unable to contact plaintiff - solicitor granted leave to file notice of ceasing to act - no valid rationale or explanation for plaintiff's absence - proceedings dismissed

LEGISLATION CITED : Uniform Civil Procedure Rules 2005, rules 7.29(2), 12.7(1), 29.7(1), 29.7(4)

CATEGORY : Principal judgment

PARTIES : Alija Magjarraj - Plaintiff Asteron Life Limited - Defendant

FILE NUMBER(S) : SC 3230/09

COUNSEL : Plaintiff unrepresented Mr R A Cavanagh - Defendant

SOLICITORS : Plaintiff unrepresented Lander & Rogers Lawyers - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BARRETT J

TUESDAY, 15 DECEMBER 2009

3230/09 ALIJA MAGJARRAJ v ASTERON LIFE LIMITED JUDGMENT 1 At the conclusion of the first day of this trial yesterday, the plaintiff was under cross-examination. He went into the witness box and was sworn at 11.40am. The cross-examination was incomplete when the court adjourned at 4.00pm. 2 The plaintiff has not attended court today. 3 The defendant makes an application for an order dismissing the proceedings. 4 When the court was reconvened at 10 o'clock this morning, the plaintiff was not present. His counsel said that his instructing solicitors had received by fax overnight two documents which were handed up. They appear to have been faxed just after 8 o'clock last night. Counsel said that neither he nor his solicitors had any instructions from the plaintiff as to his whereabouts or his intentions regarding attendance to progress his case; and this was so despite attempts to contact the plaintiff. 5 The two documents handed up were a certificate signed by Dr Sabrina Dulic of Liverpool Health Care Medical Centre, 2/236 Macquarie Street, Liverpool and a copy of a prescription issued to the plaintiff by Dr Dulic for the medication Amoxil. Both bear yesterday's date, 14 December 2009. 6 Dr Dulic's certificate is in these terms: "This is to certify that Alija Magjarraj is receiving medical treatment for a medical condition and is unfit for court hearing commencing from the period Monday 14 December 2009 to Friday 18 December 2009 inclusive." 7 The certificate then says it was completed on 14 December 2009 and appears to be signed by Dr Dulic. 8 Because of the plaintiff's non-attendance at 10.00am today, I stood the matter down until 2.00pm so that the legal representatives could attempt to obtain instructions. Upon returning to chambers, my Associate found a fax apparently sent last night to a machine on another floor of this building. The fax contained the two documents to which I have referred plus a letter addressed to me. On my instruction, my Associate immediately faxed a copy of these documents to counsel on both sides. 9 The letter to which I have referred is from the plaintiff. He begins by saying that he is "not well to attend the court regarding this matter" and drawing attention to the copy medical certificate. Thereafter, however, the letter goes on to explain the plaintiff's dissatisfaction with his lawyers and to say that he needs another legal representative and also that he needs to bring an independent legal team in to help the present lawyers. He also refers to a need to bring a witness from Western Australia and to obtain evidence from a mediator; also that he needs to attend to other evidentiary matters. 10 There are then references to rocks being thrown at windows, speeding fines and other extraneous matters culminating in a request for an adjournment and the observation that he asked his lawyers to seek an adjournment but they had refused to so. 11 There is, of course, no adjournment application before the court. The plaintiff's faxed letter cannot be accepted as amounting to any such application. 12 Upon resumption at 2.00pm today, the plaintiff's lawyers had still not been able to contact him. The solicitor on the record for the plaintiff sought leave under rule 7.29(2) of the Uniform Civil Procedure Rules 2005 to file a notice of ceasing to act. The solicitor did so on the basis of the clear expression by the plaintiff of lack of confidence in his lawyers and his apparent desire no longer to retain them. I granted that application. In saying that, I do not for one moment suggest that anything that has transpired in court would warrant any adverse reflection on the solicitors and counsel who have represented the plaintiff. 13 After the notice of ceasing to act had been filed by the solicitor for the plaintiff, counsel for the plaintiff indicated that he was without instructions and he would be taking no further part. It was at that point that counsel for the defendant made the application for an order dismissing the proceedings. 14 Counsel for the defendant referred to rule 12.7(1) of the Uniform Civil Procedure Rules 2005: "If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit." 15 Also of relevance is rule 29.7(4) and the provision which introduces it, being rule 29.7(1) in these terms: "This rule applies when a trial is called on." 16 Rule 29.7(4) then provides: "If, in relation to any proceedings, the defendant appears, but the plaintiff does not appear, the court may dismiss the proceedings." 17 This trial was called on at 10am today and again at 2pm today. The plaintiff was not present in person at either time. The solicitor and counsel instructed by him were present at 10am but had no instructions as to his position. The legal representatives were given leave to cease to act upon application made at 2pm. Thereafter, the plaintiff was not present or represented. He therefore did nothing towards prosecuting the proceedings in which he seeks relief from the court. 18 The question is whether, in these circumstances, the court should exercise the discretion that it undoubtedly has – both under the rules I have mentioned and more widely by reference to the inherent jurisdiction to control proceedings – to order that these proceedings be dismissed. 19 As far as the plaintiff's health is concerned, it is relevant to note that he was in court all day yesterday and sat in the witness box for most of the day. He did not complain of being ill or suggest any health problem that would preclude his attendance today; nor did he give any such information to his lawyers after court yesterday, according to the information that has been conveyed by counsel. 20 The document signed by Dr Dulic provides no evidence that the plaintiff is incapacitated or unfit to attend. It says that the plaintiff is receiving medical treatment for a "medical condition". What else he might need medical treatment for is left to the reader's imagination, as is the precise "medical condition" from which he is supposed to be suffering. People with "medical conditions" attend court every day. 21 The plaintiff says in his own letter that he has "an infection". That, too, says nothing about his capacity or incapacity to attend – or perhaps more accurately shows that he has not suffered a heart attack or a fractured skull or some other sudden event that has laid him low. An infection, of its nature, does not generally incapacitate before 8pm a person who appeared quite healthy when sitting in court up to 4pm. 22 All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything. 23 Doctors probably do not realise that they are engaging in an exercise in futility when they issue such certificates and expect courts to treat them as evidence if, indeed, that is what the doctors do expect. These are matters about which professional organisations within the medical profession really ought to consider informing their members. 24 As for the question of the plaintiff being afforded an opportunity better to prepare his case, the position is clear. On 12 August 2009 the Registrar set the proceedings down for hearing for three days commencing on 14 December 2009. On 11 November 2009 I made pre-trial directions by consent. It was noted on that occasion that neither side would wish to put on further evidence. A return date for subpoenas was fixed. 25 When the proceedings came on for trial yesterday, counsel for the plaintiff sought an adjournment on the basis that certain documents produced by third parties on subpoena and of which the plaintiff's legal representative had only been aware for a few days had generated an expectation that the plaintiff would be cross-examined on matters about which he might need to consider adducing further evidence. 26 The defendant opposed the grant of an adjournment. I refused the adjournment application, noting that there may be further adjournment applications at a later stage and that these would be dealt with as and when they were made. This was to cover the possibility that something might come out on which the plaintiff ought properly be given an opportunity to seek to adduce further evidence. However, no such application was made in the course of yesterday's cross-examination or when the court adjourned with the plaintiff's cross-examination only partly completed. 27 The plaintiff is therefore mistaken if he thinks that his legal representatives did not apply for an adjournment. There was an application, it was dealt with on its merits and it was dismissed. 28 With things in the state I have described, there is no rational explanation for the absence of the plaintiff. There is no evidence that he is incapacitated by some medical condition or illness from attending. 29 The fax to my Associate was sent after 9.00 o'clock last night. The plaintiff was well enough at that time to be sending faxes. Nothing is established about the state of his health to suggest he is in any condition different from that which appeared to the court at 4.00pm yesterday. 30 The expressed desire for an adjournment has been dealt with already by the application made by his counsel at the beginning of the trial and determined on its merits. The solicitors – or now former solicitors – for the plaintiff have been unable to contact him. He was extensively cross-examined yesterday about points of contact for him – phone number, home address and post office box number. He gave a mobile phone number and a post office box address (different, I might say, from the one he had used in some documents in evidence). At one point in his cross-examination he said that he lived at a particular address at Liverpool. When it was put to him later that he did not live at that address, he first declined to answer "for security reasons" and, when directed to answer, said "I don't know". This was in the course of a period of cross-examination of three hours and twenty minutes (or 200 minutes) in which the plaintiff answered "I can't remember" (or equivalent) no less than 260 times. 31 In these circumstances, I do not think that there is any point in anyone trying to contact the plaintiff further. He has said in his letter, in effect, that he will not be coming back except when he is ready to do so and on his own terms as set out in the letter, including the adjournment that was sought and refused yesterday. 32 There being no valid rationale or explanation for the plaintiff's absence, the appropriate course is to make the order the defendant seeks. 33 I therefore order that the proceedings be dismissed.