Henkelman v Psychology Council of New South Wales [2018] NSWSC 800

Supreme Court New South Wales

Medium Neutral Citation: Henkelman v Psychology Council of New South Wales [2018] NSWSC 800 Hearing dates: 25 May 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Common Law Before: Campbell J Decision: I dismiss Mr Henkelman's motion of 21 May 2018 and confirm the hearing date of 31 May 2018. Catchwords: CIVIL PROCEDURE – application for an adjournment - inability to obtain legal representation - appeal proceedings fixed - New South Wales Civil and Administrative Tribunal appeal panel decision - conditions on professional registration - practising psychologists - injury said to incapacitate - financial difficulty - overriding need for efficiency - self-representation - no material change in circumstances - dismiss motion - hearing date confirmed Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Nil Texts Cited: Nil Category: Procedural and other rulings Parties: Steven Henkelman (Plaintiff) Psychology Council of New South Wales (Defendant) Representation: Counsel:

Solicitors: Plaintiff (via telephone link up from Sri Lanka) I Martin, solicitor (Defendant) File Number(s): 2017/372496

ex tempore Judgment (revised) 1. Mr Henkelman is the plaintiff in appeal proceedings which have been fixed for hearing in the Court before the Honourable Justice Schmidt on 31 May 2018. His appeal is from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT) dismissing his appeal from the decision at first instance by a member of that tribunal imposing conditions upon his professional registration as a practising psychologist. That decision was made in November 2016 and the decision of the Appeal Panel in 2017. 2. Mr Henkelman filed his summons purporting to institute an appeal in this Court on 8 December 2017. The appeal to the Supreme Court from a determination of NCAT, including from the Appeal Panel, is restricted to an appeal in point of law, a narrow gateway for any appellant to pass through. 3. The matter came before the Registrar for directions in February and was fixed for hearing on 31 May. Directions were also made for the filing of written submissions and submissions have been filed by each of the parties in compliance. On the face of the file it seems, procedurally anyway, the matter is ready to proceed to a hearing next week. 4. Mr Henkelman has, however, by motion filed on 21 May 2018, supported by affidavit, sought an adjournment of the hearing date. The relief he seeks is that the hearing date be vacated and that the matter be fixed for a directions hearing in six months' time in or about November of this year. He says that if this is unsatisfactory he might be able to be ready for a hearing in about March of 2019. 5. The grounds on which he applies for an adjournment are basically related to an inability to obtain legal representation. That has a number of aspects. After the conditions were imposed in November 2016 the Psychology Council, the relevant authority, has recorded his registration as having lapsed. He disputes that that should have occurred because he tells me today, as he has told others, that he did send his renewal by registered post as required. In any event the simple fact of the matter is that it has been treated as lapsed and he seems to have accepted that at least for some purposes because he subsequently applied for registration as a non-practising psychologist which was granted. 6. While his practising registration is not in force the conditions which were imposed by NCAT are not effective as Mr Martin, solicitor, who appears for the defendant in opposition to the application, submits. There have been a variety of factors which, as I understand what Mr Henkelman says, may have conspired against him. He is not practising not only because of the state of his registration but also because he has suffered an injury, substantially to his knee, which he says makes him totally incapacitated. He is on an income-support payment from an insurer which he says really is inadequate to maintain him because he was underinsured. 7. He says that the injury not only stops him working as a psychologist but importantly stops him taking up alternative suitable work which he had intended to pursue in Queensland. His financial circumstances are such that he has taken himself to reside in Sri Lanka for a period of at least 12 months because the cost of living is much cheaper there. 8. He has, from his affidavit, made attempts to secure counsel through some solicitors who are not purporting to act for him but have attempted to find counsel who would accept a brief on either a pro bono or a no win no fee basis to appear for the plaintiff. Their efforts have been unsuccessful and he has been unable to find anyone else because he is not in a financial position to pay counsel's fees. 9. A substantial difficulty facing the success of this application is that an application on very substantially similar grounds was made to Fagan J on 22 March of this year and his Honour refused the application. Although there is no bar to a litigant making a second or subsequent interlocutory application of the same type, as a matter of practice the Court would expect the demonstration of some substantial or at least material change in circumstances justifying the second application. This is because of the vexation that second and subsequent applications necessarily inflict upon the opposing party and also, in the 21st Century, to give effect to the efficiency provisions of the Civil Procedure Act 2005 (NSW). 10. I have not sought to make any assessment of Mr Henkelman's prospects of success on his appeal. It would be futile to do so in the time available to me sitting as the duty judge in the Common Law Division. Having said that, it is not obvious to me that his documentation clearly raises a question of law, although that is not to say that upon a full review of the material one would not emerge, and that is not an irrelevant consideration in determining whether an adjournment should be granted. 11. It seems to me that an orthopaedic injury to the knee is not a matter that would stop a person from preparing to represent themselves in litigation given that he has been off work for a long period of time. I must say, with respect, he must have had plenty of time to apply himself to the demands of his case. As a professional person he obviously has high intelligence and is familiar, no doubt, with the professional requirements and regulations governing practice as a psychologist. It would not be asking too much that he put himself in the position where he is ready to run his case. Indeed in the course of his submissions today, with respect to him, he has been very articulate and put his points succinctly and in an appropriate way, by and large. 12. I need to say as well that the circumstance that he is currently residing in Sri Lanka is not one which requires an adjournment of the case. He has, as he explained, taken himself to reside temporarily in Sri Lanka, no doubt from his own point of view for very good reasons. But he did so with the knowledge that he had this litigation on foot. The litigation is apparently important to him and it had already been fixed for hearing on 31 May 2018 before he left. I am not persuaded that his subjective difficulties are such that an adjournment should be granted. Not everyone who has a case, even a viable case they wish to propound, has the advantage of being able to afford counsel or a solicitor, and regrettably many people in our courts and tribunals are forced to represent themselves. It is not an unusual circumstance. Other than in the case of serious indictable offences in the criminal jurisdiction, want of counsel is not itself a ground for an adjournment. 13. Moreover, the length of the adjournment that Mr Henkelman has proposed is unacceptable and unsatisfactory. One needs to consider the position of the defendant. It will continue to have this case on its books and to have it vexing its limited resources for longer than it should if I were to grant an adjournment for directions only in November and a hearing date in nearly 12 months' time. Even were there grounds to justify the adjournment the adjournment proposed is too long in all the circumstances. 14. I observe as well that there has been no demonstration of any material change in circumstances since the matter was before Fagan J. 15. In all the circumstances for these reasons I dismiss Mr Henkelman's motion of 21 May 2018 and confirm the hearing date of 31 May 2018.