Supreme Court New South Wales Medium Neutral Citation: Mahaffy v Darren E Eather t/as Bellevue Pastoral Company [2012] NSWSC 936 Hearing dates: 31/07/2012 Decision date: 31 July 2012 Jurisdiction: Common Law Before: Garling J Decision: 1. Order that the hearing date of 3/8/12 be vacated. 2. Order the plaintiff to pay costs of the defendant thrown away by vacation of the hearing date. 4. Order that the plaintiff's subpoena of 9/7/12 to the defendant be set aside. Catchwords: PRACTICE AND PROEDURE - vacation of hearing date - appeal from Local Court - plaintiff self-represented - application by plaintiff to vacate hearing date in circumstances where firstly documents have not been produced and secondly the plaintiff has had insufficient time to prepare due to his partner's acute illness - first ground fails, not an exceptional case in which it is necessary to receive additional evidence which was not before the Local Court, subpoena for documents set aside - second ground succeeds - interests of justice - hearing date vacated Category: Interlocutory applications Parties: Peter John Mahaffy (P) Darren E Eather t/as Bellevue Pastoral Company (D) Representation: Counsel: P Mahaffy (P) T Gordon (D) File Number(s): 2009/297280 EX TEMPORE JUDGMENT 1This is an application by Peter John Mahaffy, the plaintiff in proceedings commenced in 2009, for the vacation of a hearing date, presently fixed on 3 August 2012. 2The proceedings concern a decision made by the Local Court on 29 October 2009, in respect of a civil claim brought by Mr Mahaffy against Mr Darren Eather, who together with other partners traded as the Bellevue Pastoral Company. It seems that Connell LCM rejected the claim by Mr Mahaffy, which was in the nature of a claim for the non-payment of work done and services said to have been provided by Mr Mahaffy to the Bellevue Pastoral Company. 3Although the proceedings in the Court were commenced in 2009, they were not fixed for hearing until 23 April 2012. The basis of the application for an adjournment is principally two-fold. Applicant's submissions 4The first is that Mr Mahaffy submits that he has sought documents from the partners of the Bellevue Pastoral Company which relate, speaking generally, to the financial affairs of the company, in the financial years 2000 and 2010 and also to the contract documents for the purchase of a property, and that the documents have not been produced. He submits that because the documents have not been produced, he is not in a position to proceed with the hearing on 3 August 2012. 5The second reason which he relies upon, and to which I will need to return, is that he has had insufficient time to prepare for the hearing because of an illness, or more properly a series of illnesses, which his partner has suffered from and which have resulted of the need for him to devote his time for caring for his partner. Defendant's submissions 6The defendant opposes the adjournment and relies upon three reasons. Firstly, it relies upon the way in which proceedings have been conducted in the past. It submits that there is no certainty that even if the proceedings are adjourned they will be able to be heard at any later date and secondly, that there is prejudice to the defendants occasioned by the costs thrown away by the adjournment and/or the ongoing stress and anxiety associated with long delayed proceedings. 7Thirdly, the defendants respond to the plaintiff's submissions with respect to the subpoena by submitting that the documents which are sought are entirely irrelevant to any pleaded issue in this case, and that the subpoena ought to be set aside. 8It is convenient if I commence my consideration with the question of the subpoena and the documents which are sought. Documents sought by subpoena 9The proceedings in this Court are proceedings to set aside the Magistrate's decision. The grounds for that relief variously referred to specific errors of the Magistrate in procedure; specific errors in his reasoning where he failed to take account of evidence and errors of law which he has made in the course of his reasoning. 10Specifically the plaintiff complains that it was an error of the Magistrate to attribute to the defendants a degree of commercial naivety which they did not have. The plaintiff submits that he is entitled to obtain these documents to demonstrate the error in the Magistrate's findings. I can detect nothing in the summons seeking to appeal, or leave to appeal by way of a ground which would permit the tendering of evidence in this Court which was not before the Local Court. 11There may be some exceptional cases in which it is necessary for this Court to receive evidence that was not before the Local Court. I do not stay to state or describe those exceptional cases. This case is clearly not one of them. The summons does not make any suggestion that it is necessary for the purpose of determining the appeal for this Court to have additional information or evidence, nor so it seems to me that the contents of the document which are being sought by the subpoena have any relevance whatsoever to the relief which is sought in the summons. 12Accordingly, I would not be prepared to regard the failure of the defendants to comply with the summons which was served upon them during the early part of July 2012 as being any reason why the hearing of this case should be vacated. In short, the subpoena seeks documents which are entirely irrelevant to the issues before this Court. Illness 13The second basis for the application for an adjournment is the issue which surrounds the illness of the plaintiff's partner. According to the evidence before this Court, the plaintiff's partner suffers from a rare and potentially fatal illness. It seems to have acute episodes from time to time. There was one such acute episode in October 2011. There was a second acute episode in May 2012 which required admission to both the Sydney Adventist Hospital and the Hornsby Hospital for a series of days in the middle of May. Following upon the plaintiff's partner's release from hospital in May, the plaintiff was required to care for her for several weeks. This interrupted his preparation for this hearing. 14In mid July 2012, the plaintiff's partner again had an onset of acute episode of her illness. Although initially it wasn't an acute episode which required close monitoring, by 18 July, she required to be admitted to hospital. It seems that she was admitted initially to the Hornsby Hospital and then after a short period of discharge over the weekend was readmitted to the Hills Private Hospital. 15The plaintiff's partner's acute illness continues and as a consequence, the plaintiff submits he is then unable to adequately prepare for the hearing on 3 August. 16The illness of the plaintiff's partner and the interruption which it has caused to the plaintiff's preparation are strong and powerful reasons why the hearing on 3 August ought to be vacated. The defendant's opposition 17As opposed to this strong ground, the defendants complain that having regard to the way in which the matter has been conducted in the past, the plaintiff has disqualified himself from such adjournment. I do not agree. I fail to see what specific relevance the past history of this case has, in the circumstance where an adjournment is sought for a specific reason which has not existed in the past. The defendants are right to point to the lengthy history that this case has taken but that of itself and without more does not disqualify the applicant for an adjournment where he has good reason for obtaining such adjournment. 18The second proposition which the defendant submits namely that this illness of the plaintiff's partner is an ongoing one and therefore is there is no certainty that when the matter is next fixed for hearing that the plaintiff will be in a position to proceed is a matter of speculative caution. It does not mean that this hearing ought not be adjourned. It is merely a matter expressed by way of concern for the future. 19The third matter upon which the defendant relies is that there will undoubtedly be costs thrown away if the adjournment is granted and the defendants will continue to be exposed to the stress in dealing with litigation. These are not matters to be ignored and I do not ignore them. Decision 20However taking them into account and determining what is in the interest of justice, I am satisfied that it is in the interests of justice that the hearing date of August be vacated. The plaintiff should pay the costs of the defendants thrown away by the vacation of the hearing date. 21I will list the matter for further directions before the Registrar at 9am on Tuesday, 14 August 2012 for the purpose of fixing a further hearing date. This disposes of the application for vacation of the hearing date. 22The defendants have moved by a notice of motion to set aside the subpoena which is filed on 9 July 2012. In the course of my judgment I've dealt with the terms of that subpoena and the fact that the documents covered by it have no relevance whatsoever to the issues in this Court. It follows that there is no legitimate forensic purpose to be gleaned from the issue of the subpoena and although the subpoena has been stood over until 7 August, I see no reason why I should not accede to the defendant's notice of motion to set aside and order that the subpoena filed on 9 July by the plaintiff addressed to defendant be set aside, so I will make that order as well. Orders 23I make the following orders: (1)I order that the hearing date of 3/8/12 be vacated. (2)I order the plaintiff to pay costs of the defendant thrown away by vacation of the hearing date. (3)I list matter for further directions before Registrar at 9am on 14/8/12 for purpose of fixing a further hearing date. (4)I order that the plaintiff's subpoena of 9/7/12 to the defendant be set aside. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2012