Ramsay Health Care Australia Pty Limited v Compton Fellers Pty Limited Trading as Medichoice [2015] NSWSC 156

Supreme Court New South Wales

Medium Neutral Citation: Ramsay Health Care Australia Pty Limited v Compton Fellers Pty Limited Trading as Medichoice [2015] NSWSC 156 Hearing dates: 19 February 2015 Decision date: 19 February 2015 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Application refused Catchwords: PRACTICE and Procedure – Application for adjournment of hearing – no issue of principle Category: Procedural and other rulings Parties: Ramsay Health Care Australia Pty Limited - Plaintiff Compton Fellers Pty Limited trading as Medichoice - First Defendant Adrian Compton - Second Defendant Representation: Counsel: C.R.C. Newlinds SC with J. Hynes - Plaintiff J.G. Duncan – Second Defendant

Solicitors: Minter Ellison - Plaintiff Aleco Vrisakis - Second Defendant File Number(s): 2014/164906

JUDGMENT 1. In these proceedings the plaintiff sues the second defendant (Mr Compton) on a guarantee allegedly given by him securing the obligations of the first defendant company. The first defendant company does not appear and is apparently in liquidation. 2. The proceedings were initiated in June last year and were set down on 25 July 2014 to commence on 18 February 2015. Mr Compton filed and served his Commercial List Response on 24 July 2014, and after he was originally to serve his affidavit evidence in response by 7 November 2014. This date was extended and he served his affidavit evidence, consisting principally of his own affidavit sworn 24 November 2014, on that date. 3. On the morning of the first day of the proposed trial, Mr Compton moved to vacate it for an indefinite period, but in the first instance for at least 12 weeks. These are the reasons why I refused that application. 4. An application to vacate the hearing had earlier been made on Friday 13 February 2015, which I also refused. The evidence in support of the earlier application was inadequate and the possibility was left open for Mr Compton to improve it and re-agitate his application on the first day of hearing. 5. Both applications were founded on the existence of health difficulties presently being suffered by Mr Compton. 6. The evidence in the first application (also relied on in the second one) consisted of two affidavits of Mr Compton's solicitor, Mr Vrisakis, sworn 28 January 2015 and 11 February 2015 respectively. The evidence was objected to and admitted by me provisionally. I took it into account. The first affidavit annexed a medical certificate from a psychiatrist, Dr Hamilton, stating that Mr Compton suffers bipolar disorder. The doctor expressed the opinion that his mental health was such that while he understands the court proceedings and obligations when giving evidence his mental health is not stable enough to withstand the demands and stress involved. She recommended that a period of over 12 months would be necessary for his recovery to the point of him being able to give evidence. In the second affidavit, Mr Vrisakis recounted information conveyed by the doctor in line with the contents of the medical certificate, and recounted unsuccessful attempts on the part of Mr Vrisakis to speak to the doctor. Mr Compton was unable to produce her to give evidence either by telephone or by video. 7. I was not satisfied that the medical evidence sufficiently established Mr Compton's inability to testify, at least by affidavit as to his mental state. Additionally, his affidavit in the substantive proceedings relied upon his mental disorder and there was insufficient explanation for why the same condition now meant he could not give evidence.. 8. There was some evidence that Mr Compton may have disposed of an asset in questionable circumstances. 9. There was no evidence as to his financial circumstances and no undertaking was proffered not to dispose of these assets during the period of any adjournment. 10. Mr Vrisakis gave evidence that Mr Compton told him on the telephone on 13 January 2015 that he was not well enough to give evidence and would obtain a doctor's report. Mr Vrisakis gave evidence of having experienced "greater difficulties than previously" in obtaining from Mr Compton instructions he required, but did not detail the subject or extent of these difficulties. 11. On the second application, two further affidavits of 17 and 18 February 2015 respectively by Mr Vrisakis were read. 12. The first affidavit contained a second certificate dated 16 February 2015 from Dr Hamilton expressing the opinion that Mr Compton's health is not robust enough to withstand the pressures of giving evidence in a court of law. Her opinion did not extend to any inability on Mr Compton's part to give instructions. The doctor stated that she was not available to give evidence herself due to workload demands. Mr Vrisakis was unable to speak with Dr Hamilton. He expressed further concerns about Mr Compton's ability to furnish him with instructions, again without any detail. 13. The second affidavit recounted a text message received by Mr Vrisakis from Anna Stevis, a business associate of Mr Compton (and a deponent to an affidavit in the proceedings) transmitting a text message sent by Mr Compton's wife to Ms Stevis saying that Dr Hamilton had given Mr Compton a referral to a private hospital for a mild form of electro-shock therapy and that he would be unable to be in Sydney this week. 14. As will be apparent, the application to vacate the hearing date was based on two things. Mr Compton's inability to give oral testimony because of his mental state and Mr Vrisakis' stated inability to obtain necessary instructions. 15. As to the matter of difficulties in obtaining instructions, these were not detailed. Late in the hearing of the application, and in something of a shift of ground, counsel for Mr Compton suggested that matters for instruction related to the traversal of factual matters in the plaintiff evidence which had not been dealt with by any affidavit evidence by Mr Compton. The implication I derived was that the case was not ready to proceed because the evidence is incomplete. The matters of proposed additional traversal were not identified. The submission overlooked the fact that in compliance with consent directions, all Mr Compton's evidence is on and there is no further scope for additional affidavit evidence without leave for which a proper basis would need to be shown. The evidence did not extend to establishing an inability on behalf of Mr Compton to give relevant instructions especially when all the evidence is on, his defence is specifically pleaded, and there has never been any suggestion that the evidence put on by him is inadequate or insufficient in any way. 16. The evidence in its present state leaves me in some real doubt that Mr Compton could not give evidence even if it be by phone or video link. In view of Mr Compton's absence and the practical reality that he was unavailable, the plaintiff put that the Court could and should proceed on the footing that Mr Compton's affidavit be read but Mr Compton not required to be made available for cross-examination. 17. On the footing that Mr Compton's condition is indeed a barrier to him giving oral evidence, there is insufficient evidence of the prognosis for any recovery to satisfy me that the case could be heard in an acceptable time frame in the future if he is to be cross-examined. 18. In these circumstances, justice does not require that the hearing be vacated.