Land and Environment Court New South Wales Medium Neutral Citation: UTSG Pty Ltd v Sydney Metro (No 5) [2019] NSWLEC 107 Hearing dates: 25 and 26 July 2019 Date of orders: 26 July 2019 Decision date: 26 July 2019 Jurisdiction: Class 3 Before: Pepper J Decision: Hearing dates vacated. See orders at [81]. Catchwords: CIVIL PROCEDURE: adjournment – application to vacate hearing dates in part-heard proceedings due to illness of one of the directors of the applicant – lengthy history of delay by applicant – applicant a corporate litigant in person – adequacy of medical evidence – capacity of remaining director of company to continue to run the proceedings if other director incapacitated – application to vacate reluctantly granted – consequential orders made. Legislation Cited: Civil Procedure Act 2005, ss 55-60 and 66 Land and Environment Court Rules 2007, r 7.7 Cases Cited: Bobolas v Waverley Council (No 3) [2015] NSWLEC 100 Bobolas v Waverley Council [2016] NSWCA 139; (2016) 92 NSWLR 406 Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179 Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218 Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Magjarraj v Asteron Life Limited [2009] NSWSC 1433 Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 Palerang Council v Banfield [2012] NSWLEC 85 Taylor v Port Macquarie Hastings Council [2010] NSWLEC 153; 175 (2010) LGERA 189 UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49 UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 Wingecarribee Shire Council v O'Shanassy (No 4) [2014] NSWLEC 52 Woodhouse v Thalis [2018] NSWCA 97 Category: Procedural and other rulings Parties: UTSG Pty Ltd (Applicant) Sydney Metro (Respondent) Representation: Counsel: Dr M Baig (Applicant) Mr N Eastman (Respondent) Solicitors: Dr M Baig (Applicant) Ashurst (Respondent) File Number(s): 2017/249637 Publication restriction: Ex Tempore Judgment The Applicant Seeks to Vacate Hearing Dates of a Part-Heard Matter 1. The applicant, UTSG Pty Ltd ("UTSG"), sought by way of ex parte email communication from Ms Simran Singh (a director of USTG along with Dr Mirza Baig) to the Court on 18 July 2019 at 4.55 pm ("the email"), to vacate the imminent resumption of part-heard Class 3 compensation for compulsory acquisition proceedings. 2. The matter was heard for seven days in April 2019 and was fixed to be heard for a further five days commencing 29 July 2019. 3. The vacation application was initially opposed by the respondent, Sydney Metro, however, it later resiled from this position, submitting that it was not opposed to the application provided that two conditions were met: first, that the Court order UTSG to pay its costs thrown away occasioned by the vacation; and second, that further timetabling orders were made for the future conduct of the proceedings, other than to simply set the matter down for further hearing at some distant future time. These conditions are discussed further below. 4. The email stated as follows: I am self representing the applicant (UTSG Pty Ltd) case in this proceeding and due to medical condition, seeking the honourable courts consideration to vacate the future hearing date of 29 July 2019. My treating medical specialist letter is attached. Since the April 2019 court hearing, I have been diagnosed of medical condition and undergoing treatment as such it is not possible for me to attend the court hearing of 29 July 2019 to 02 August 2019. I do not know the timing of my recovery however anticipate it would be further 2-3months. If the honorable court may consider my circumstance and vacate the hearing to new future date please. I do not have legal background and/or understanding of court procedures - appreciate your consideration and direction to next steps. I await your response please as I do not wish to cause the respondent any inconvenience or unnecessary expenses. I have not copied the respondent due to confidential nature of medical condition in this email Much appreciated. Yours Sincerely Ms Singh 1. Attached to the email was a letter dated 17 July 2019 from her treating psychiatrist, Dr Atsumi Fukui. Dr Fukui's letter was addressed to the Land and Environment Court of NSW and stated as follows: Ms Singh has been suffering from a medical condition for which she consulted me for specialist assessment and treatment. She is currently significantly impaired and recommendation has been made for her to be admitted to hospital. She is medically unfit to represent herself in Court or to attend Court in person until she undergoes treatment and her condition stabilises. I request that consideration be given for postponement of the scheduled hearing in July. Should you require further information, I can be contacted through my office. 1. Notwithstanding its informal ex parte nature, the Court nevertheless decided to consider the email as an application by UTSG to vacate the 29 July to 2 August 2019 hearing dates. Given the urgency of the application and the fact that UTSG was not legally represented, the Court dispensed with the formal necessity to file a notice of motion. 2. The Court therefore responded to the email, copying in Sydney Metro but not attaching Dr Fukui's letter, stating that any vacation application had to be made in open court so that Sydney Metro was afforded an opportunity to respond to the application. 3. In the response, the Court stated that Ms Singh could, if she wanted to, participate in any application to vacate by telephone. That is, she was not obliged to physically attend the Court. 4. The application was set down for mention at 10.00 am on 22 July 2019. 5. On 22 July 2019 Dr Baig appeared on behalf of UTSG. The Court explained to Dr Baig that UTSG's application for vacation had to be supported by evidence and that in order for Dr Fukui's letter to be relied upon by UTSG, it had to be given to Sydney Metro as a matter of fairness. 6. Dr Baig stated that he had "no objection to the letter of 17 July 2019 to be shared with the respondent as a matter of fairness" (T2:47-48). The Court therefore provided a copy of Dr Fukui's letter to Sydney Metro. 7. The Court also indicated to Dr Baig that the onus was on UTSG to establish that there was sufficient ground for vacating the hearing dates and that the obligation was on UTSG, and not the Court, to put whatever evidence it sought to rely upon in support of the application before the Court. Specifically, the Court told Dr Baig that it was not the responsibility of the Court to obtain proof of Ms Singh's purported ill health. 8. At the mention, Dr Baig stated that he could not represent UTSG himself at the resumed hearing because he did not possess sufficient knowledge of UTSG's financial affairs. The Court informed Dr Baig on three separate occasions that it would not accept evidence from the bar table and that if he wished to rely on his insufficient knowledge of UTSG's financial affairs as evidence in support of the vacation application, he had to state this in affidavit form in order to provide Sydney Metro the opportunity to test him on it (T4:18-25, 4:41-47 and 5:00-06). 9. The Court subsequently set the vacation application down for hearing on 25 July 2019 and made the following orders: 1. UTSG was to file and serve all evidence upon which it seeks to rely and submissions (maximum five pages) by no later than 4.00 pm 23 July 2019; and 2. Sydney Metro was to file and serve any evidence in reply and submissions (maximum five pages) by 4.00 pm 24 July 2019. 1. As is all too familiar in these proceedings, UTSG did not comply with the orders. Rather, on 24 July 2019 at approximately 1.30 pm, Dr Baig filed an affidavit which stated the following: 1. I confirm that Dr Mirza S Baig is a Care-taker Director of the UTSG Pty Ltd, (the Applicant); 2. I was reappointed a Care-taker Director, following the Applicants Board of Director meeting and resolution of 11 April 2019. 3. I confirm that Ms Singh Director of UTSG Pty Ltd is currently under medical treatment and is currently hospitalised for ongoing treatment. 4. It is uncertain at this stage that how long she has to stay in hospital facility. 5. Ms Sing asked the treating Medical Specialist at the hospital on 23 July 2019 asking "when she can go home". The treating specialist response was "we do not know, but you cannot leave this facility" 6. Ms Singh asked the treating specialist in my presence yesterday, 23 April [sic] 2019 at around 3.00 pm. She said "she has to left over work and also attend to the court". The treating specialist advised that any work and especially the court-related work should be least of Ms Singh concern and she should focus on her health first. 7. Ms Singh said to the specialist "It is important that I go as she has to appear in court 29 July 2019 and she has worked hard and spent months to be in court on 29 July 2019." 8. The treating specialist explained Ms Singh medical condition in detail and reassured her. Subsequently, the specialist said that "he will instruct the social worker to draft a letter for court". 9. The was given to Ms Singh at 4.00 pm, 23 July 2019. The social worker also informed that he will directly send the letter to the LEC Court. The email of LEC Court is given to the social worker. I will attach the hospital letter Annexure "A". 10. Ms Singh current medical condition is being assessed before by private medical specialist. The letter by the private Medical Specialist dated 17 July 2019 is being addressed to the LEC Court Annexure "B". 11. Based on information in the Annexure "A" and Annexure "B". I request the honourable court to vacate the hearing for at least six month and that Ms Singh should provide the court clearance certificate from treating team/treating specialist, before she can start any-type of court work. 1. Attached to the affidavit was Dr Fukui's letter (Annexure "B") and a letter from a social worker named "Daniel", dated 23 July 2019 (Annexure "A"), which said the following: To The Presiding Magistrate, This letter is verify that Mrs ROSELYN SINGH (date of birth: 29 June 1967) has been an inpatient in the Northern Beaches Hospital since 22nd July 2019. As such, patient is not able to attend matters outside the Hospital. The current estimate time of discharge is unknown and at this point in time, Mrs. Singh is receiving ongoing medical review. Given Mrs. Singh's current circumstances, we the treating team, kindly request his matter be adjourned for an extended period of time. Should you need any further information please do not hesitate to contact us on 9105 5300 Kindest Regards, Daniel Social Worker – Mental Health Ward 3C Northern Beaches Hospital 1. At about 4 pm on 24 July 2019, my associate received a telephone call from a person named "Daniel". He claimed to be from Northern Beaches Hospital and was telephoning regarding his patient "Roselyn Singh". My associate advised "Daniel" that the matter was listed for hearing at 10 am on 25 July 2019, and that she could not comment further. 2. At 4.24 pm, my associate received an email from "Daniel Istanbouli" attaching a letter identical to that at Annexure "B" to Dr Baig's affidavit and that stated the following: I was given your details by Mrs Singh, I am unsure to what the reasons for this court matter is concerning, however, it is our duty of care as the treating team to ensure and advocate that patients are receiving a fair trial. Please see attached letter from Northern Beaches Hospital in regards to Mrs. Roselyn Singh. Kindest Regards, Daniel Istanbouli Social Worker Allied Health Department Northern Beaches Hospital Mental Health Services: Ward 3C (Mon to Fri) (8:30 – 16:30) 105 Frenchs Forrest Road, frenchs Forrest, New South Wales, 2086, AUSTRALIA PO Box 555, Frenchs Forrest, NSW, 1640, AUSTRALIA P: +61 2 9105 TBA | F: +61 2 9105 TBA E: daniel.istanbouli@healthscope.com.au w: www.healthscope.com.au 1. My associate's response to Mr Istanbouli's email was brief. It stated that: The Court is not permitted to receive communications from a party in this manner (that is, without copying the other side into the communication and made directly to the presiding Judge hearing the matter). Please note that your email and attachment, together with this response, has therefore been copied to the respondent, Sydney Metro. Please refrain from communicating directly with the Judge again. 1. Having regard to the terms of the letter from "Daniel" dated 23 July 2019 and the email above from "Mr Daniel Istanbouli", I infer that Mr Istanbouli is the author of the letter dated 23 July 2019. UTSG's Reasons for Seeking the Vacation of the Trial 1. UTSG's reasons for the application to vacate are two-fold: 1. Ms Singh's illness; and 2. that despite being a director of UTSG, Dr Baig does not possess adequate knowledge about the financial affairs of the company to represent it in the proceedings absent assistance from Ms Singh. History of the Class 3 Compulsory Acquisition Claim 1. The background facts to this vacation application of Class 3 compulsory acquisition proceedings are set out in UTSG Pty Ltd v Sydney Metro [2018] NSWLEC 128 (at [6]-[15]) and UTSG Pty Ltd v Sydney Metro (No 3) [2019] NSWLEC 49 (at [3]-[5]), and are relied upon without express repetition here. 2. The proceedings have been plagued by extensive delays almost entirely due to the default by UTSG in complying with various Court orders. As was noted by the Court in UTSG (at [34]): 34 As the above chronology demonstrates, the proceedings have involved a very lengthy interlocutory process, characterised by UTSG's continual default and non-compliance with court orders. 1. As a consequence of these delays, the hearing in this matter did not commence until 8 April 2019, notwithstanding that the Class 3 appeal was commenced on 16 August 2017. In the intervening period the matter has been the subject of numerous mentions and interlocutory applications, with each appearance resulting in increased costs to the parties and further delay in the resolution of the proceedings, a matter about which the Court has increasingly voiced its concern. 2. On the fourth day of the hearing, on 11 April 2019, Ms Singh indicated that she was experiencing difficulties representing UTSG on the basis that she was upset and "overwhelmed" (T249:40) and that this was affecting her health (T249). Up until this point she had been assisted in the preparation and running of the proceedings by her business and familial partner, Dr Baig. Dr Baig worked as a doctor at V Health Plus, the medical facility operated by UTSG at the premises the subject of the compulsory acquisition. Ms Singh requested that Dr Baig take over in the conduct of the proceedings as a representative for UTSG (T249:3-11): SINGH: And I would like to ask the Court to excuse me for a while until ‑ and I will hand over to Dr Baig. He is across the case a bit more, so we don't delay the process… 1. Ms Singh indicated that although she was the sole director, UTSG had a "board of directors" which Dr Baig was on (T250:48 – T251:7). 2. However, because Dr Baig was not in fact a director of UTSG he had no immediate standing to appear for it. Accordingly, Ms Singh applied to appoint Dr Baig as an agent for UTSG. This was opposed by Sydney Metro. 3. The Court, having considered the factors set out in r 7.7 of the Land and Environment Court Rules 2007, allowed Dr Baig to act as an agent to UTSG for the remainder of that day only. The Court noted that if this arrangement was to continue, a formal application that he be appointed as UTSG's agent would be required for him to carry on in that capacity (T255:34-37). 4. The following day, Ms Singh notified the Court that Dr Baig had been formally appointed as a director of UTSG. Dr Baig was, therefore, permitted to represent UTSG and he proceeded to do so for the remainder of the matter (three days out of seven ) until its adjournment part-heard on 16 April 2019. 5. From Dr Baig's conduct of the remainder of the hearing prior to its part-heard adjournment, it was clear that he understood the issues for determination in the proceedings, the nature of the evidence being dealt with and the financial affairs of UTSG, at least at a general level. For example, Dr Baig made submissions with respect to, and re-examined Ms Singh about, UTSG's financial affairs on the following occasions: Date Transcript Subject-matter 12 April 2019 T292:16-30 Dr Baig made submissions as to whether Mr David Mullins (UTSG's valuation expert) was under a professional duty to make sure that the financial accounts given by UTSG were correct. 12 April 2019 T292:44-T293:8 Dr Baig argued that Mr Mohamad Fahad's (UTSG's chartered accountant) evidence of how he had prepared UTSG's financial accounts should be admitted. 14 April 2019 T442:31-37; and Dr Baig made submissions on whether the financial accounts in a document prepared by Mr Luke Howman-Giles (Sydney Metro's expert accountant) were in breach of rr 31.17 and 31.18 of the Uniform Civil Procedure Rules 2005. T443:47-T444:4 T538:23-31; 14 April 2019 T540:49-50; In re-examining Ms Singh, Dr Baig asked about the profitability of UTSG and the software that it used to calculate its financial position and make business projections. T541:16-18; and T539:50-T540:3 14 April 2019 T542:36-T543:42 In re-examining Ms Singh, Dr Baig asked about the profitability of UTSG and whether a valuation report prepared by Mr Brett Goodyear (UTSG's forensic accountant) was still relevant. 14 April 2019 T546:35-44; and In re-examining Ms Singh, Dr Baig asked Ms Singh for details about the contract with UrbanCore and MedBuild to fit out UTSG's premises and about references to unpaid invoices. T547:21-34 1. When the matter adjourned part-heard, Dr Baig had not concluded Ms Singh's re-examination. Further, Sydney Metro had not cross-examined Mr David Mullins (UTSG's valuation expert), which it stated that it intended to do. Sydney Metro's expert witnesses had not been cross-examined and closing submissions had not been delivered by either party. In other words, a great deal of the hearing remained to be completed. 2. Relevantly for present purposes, Dr Baig stated at that time that he had assumed responsibility for Mr Mullins's evidence and that he intended to ask questions of Mr Mullins, presumably by way of evidence-in-chief (although this was not clear) (T438:21-23): BAIG: … In regards to Mr Mullins, if Mr Mullins ‑ Mr Mullins is the next witness and I would like to cross ‑ introduce Mr Mullins and the cross‑examine him first because it's the defendant expert witness. It will be five to ten minutes. It won't take longer than that and then he could continue, like, old‑fashioned way as he mentioned. 1. The reference to the "old-fashioned way" was a reference to non-concurrent expert evidence, rather than the usual way which expert evidence is dealt with in this Court, namely, concurrently. 2. It is against this background that UTSG's vacation application takes place. Legal Principles Applicable to the Vacation of Hearing Dates 1. The statutory scheme constituted by the Civil Procedure Act 2005 ("CPA") relevant to the vacation of hearing dates is contained in ss 56-60 and 66 of that Act. They include the following provisions relating expressly to delay: 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 1. The content of s 56 are well known and not recited here. 2. The provisions of s 57 are matters that predominately relate to the efficient management of the Court's business, namely: 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 1. The CPA expressly deals with adjournments in s 66, which grants the Court the power to vacate hearings: 66 Adjournment of proceedings (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. (2) If a judicial officer is not available at the time appointed for the hearing of any proceedings, a registrar may adjourn, to a later time on the same day or to a later specified day, any matters listed for hearing by the judicial officer at the appointed time. 1. But the discretion is not unfettered. An express mandatory consideration of the dictates of justice is referred to in s 58, which provides that: 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: … (ii) any order granting an adjournment or stay of proceedings,… (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. the court must seek to act in accordance with the dictates of justice. 1. In Wingecarribee Shire Council v O'Shanassy (No 4) [2014] NSWLEC 52, the Court said (at [6]): 6 The principles to apply to motions to vacate or adjourn hearings were pithily summarised by Ward JA in Kenoss Pty Ltd v Palerang Council [2013] NSWCA 174 (at [13], recently quoted by Sheahan J in Thaler v Cooma Monaro Shire council (No 2) [2014] NSWLEC 51 at [3]): 3 The power to adjourn proceedings or vacate hearings in s 66 of the Civil Procedure Act 2005 (NSW) confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the Civil Procedure Act and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court. Adequacy of Ms Singh's Medical Evidence 1. In relation to the application to vacate the hearing dates on grounds of Ms Singh's illness, the requirements for the content of any supporting medical evidence are somewhat well established (see, for example, Bobolas v Waverley Council [2016] NSWCA 139; (2016) 92 NSWLR 406 at [221]; Woodhouse v Thalis [2018] NSWCA 97 at [23]; Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 at [4]; Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22]-[23]; Lane Cove Council v Ross (No 13) [2013] NSWLEC 80 at [2]; Palerang Council v Banfield [2012] NSWLEC 85 at [10]-[12]; and Jeray v Blue Mountains City Council; Jeray v Blue Mountains City Council [2011] NSWLEC 218 at [4] and [9]-[10]). 2. While each case turns on its facts, the medical evidence should, at a minimum, answer the central question of why – and not just whether – the medical condition will prevent a litigant from participating in a court hearing either in person or by some other means (for example, by telephone). It is this nexus that is critical. 3. To be sufficient, the medical evidence should identify in broad terms the medical condition that the person is suffering from, the symptoms of that condition insofar as they are relevant to a litigant's participation in a court hearing, the severity of the condition, and its expected duration. The doctor providing the certificate must be clearly identified and the certificate must be signed and dated. 4. Absent this bare minimum the opposing party cannot, as a matter of fairness, test the cogency of the medical evidence and the Court does not have sufficient information before it to meaningfully exercise its discretion to grant the vacation sought. To the extent that the provision of an appropriately detailed medical certificate to the Court (and to the opposing party) results in a loss of privacy, this is the price that must be paid by a litigant in order for the Court to grant the indulgence of a vacation of hearing dates, a course that a Court does not undertake lightly having regard to the inevitable increased cost to the parties of the delay and the inefficient allocation of Court resources that results. 5. In Bobolas, the appellants appealed against a series of decisions and orders made against them by this Court. One of the appealed decisions is relevant to the present application, namely, a decision by Pain J in Bobolas v Waverley Council (No 3) [2015] NSWLEC 100 to refuse to set aside orders made against the appellants by Sheahan J. The appellants sought to rely on affidavit evidence that they had "defences to council claims, but [they] were too sick to attend the hearing to voice them in any way." Attached to the affidavit was a number of what purported to be medical certificates relating to each of the three appellants. Only three of the certificates were considered by the Court of Appeal to be relevant to the hearing before Sheahan J (at [210]). The first "certifie[d]" that the author of the certificate (whose name was redacted) had examined the first appellant and that, in the author's opinion "she was/is suffering from A MEDICAL CONDITION [and] she was/will be unfit for work up to and including 1.5.15." The remaining two certificates related to the second and third appellants and contained similar language, however, they specified the conditions suffered by the second and third appellants as "CONTUSED L FOOT/ANKLE" and "CELLULITIS FEET", respectively. Pain J rejected all of the medical certificates as having no probative value. 6. On appeal, McColl JA held that Pain J's rejection of the certificates was "unexceptionable". In doing so, she opined that (at [221]): 221 A medical certificate relied upon to demonstrate a litigant is unable to attend court must address the "critical question whether, and if so why, the medical condition would prevent the [litigant] from travelling to the Court and participating effectively in a court hearing." 1. McColl JA went on to conclude that the appellants' medical certificates failed to address the "critical question" (at [222]). 2. In Pachkovski, in dismissing an application to adjourn a hearing based on the illness of the three applicants, Hodgson JA stated that (at [4]): 4 Those medical certificates are not in a satisfactory form. They are not supported by any appropriately verified evidence from the doctor. They do not identify the symptoms or the degree of the alleged problem, so as to justify the assertion that the person would be unfit to attend court. They provide a wholly inadequate basis on which the court could be satisfied that there is a compelling reason why this matter, which has for some time been fixed for this date, should not proceed. 1. In this Court, medical evidence tendered in support of an application to vacate hearing dates in Ross (No 13) has been rejected because (at [2]): 2 …The medical certificate does not specify the condition said to render Mr Ross to be unfit to attend the remainder of today's hearing in these proceedings, nor does it specify the nature of the medication and its effects. In addition, no explanation is given in the certificate as to the nexus between the unspecified medical condition Mr Ross is suffering from and his asserted inability to continue representing himself in these proceedings. 1. The difficulties that arise when medical evidence is given in vague and broad terms were summarised in Magjarraj (at [22]): 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. 1. Finally, the Court of Appeal in Woodhouse considered an adjournment application arising from a factual matrix not dissimilar to the present case. There, an application was made by the applicant (a litigant in person) by way of an email to the Registrar attaching letters from the applicant's treating doctor and a clinical psychologist. In holding not to grant the adjournment the Court determined that (at [23]): 23 The Court was not satisfied that the medical and other material provided by Mr Woodhouse to the Registrar justified an adjournment for reason of any medical condition from which he may suffer. The note from his treating doctor indicates that it would be "ideal" if the hearing of the case were delayed so as to avoid "stressors". The psychologist's letter suggests without further elaboration that any attendance by Mr Woodhouse in court would be "ineffective". Neither, in the Court's opinion, showed that Mr Woodhouse's condition in any practical sense would prevent him from attending before the Court to support his current application or that his doing so would exacerbate that condition or otherwise put his health at risk. 1. Having regard to the principles and cases discussed above, in my view, the medical specialist's letter from Dr Fukui failed to answer the critical question and was inadequate. Were this the only evidence upon which UTSG relied, its application to vacate the hearing dates would have failed. 2. With respect to Mr Istanbouli's letter dated 23 July 2019, it is noted that he is not a medical expert but a social worker, and therefore, alone, this evidence would also be insufficient to warrant vacation of the hearing dates. 3. However, Dr Fukui's letter, together with the letter from Mr Istanbouli and the contents of Dr Baig's affidavit (which was not challenged by Sydney Metro), permit the Court to comfortably find that Ms Singh has been hospitalised for a mental illness and that she will therefore not be fit to appear or participate in any resumption of the hearing next week. 4. But, this is not the end of the matter given that Dr Baig continues to be a director of UTSG and is arguably able to represent UTSG at the continuation of the hearing, as he did for three days prior to the matter adjourning part-heard. Capacity of Dr Baig to Represent UTSG in the Absence of Ms Singh 1. Despite describing himself as a "Care-taker Director" of UTSG in his affidavit, Dr Baig confirmed on 22 July (T1.41) and 25 July 2019 (T5.37) that he remains a director of UTSG. 2. Given that Dr Baig had been representing UTSG for three out of the seven days when the proceedings were previous before the Court, this gave rise to the question of whether he was capable of continuing to represent UTSG in the absence of Ms Singh. 3. That is, for example, while the re-examination of Ms Singh was plainly not able to be concluded, was it possible to interpose Mr Mullins and/or to proceed to the cross-examination by Dr Baig of Sydney Metro's valuation and accounting experts? Although the matter was unlikely to conclude next week, the evidence could at least be progressed in order to advance the completion of the proceedings. 4. Sydney Metro was silent on this issue, other than to say that it was ready to proceed with the expert accounting and valuation evidence. 5. Dr Baig submitted that notwithstanding that he had conducted the last three days of the hearing for UTSG, he could not proceed next week without the assistance of Ms Singh because he was not sufficiently familiar with the financial affairs of UTSG. When asked where in his affidavit he had stated this, Dr Baig referred to paragraph 11 (quoted above). However, paragraph 11 does not disclose this evidence. In fact, despite the Court repeatedly warning Dr Baig on 22 July 2019 that if he wanted to make such a claim it had to be contained in an affidavit, Dr Baig sought to give evidence of this nature from the bar table. The Court therefore did not place any weight on it. 6. Absent any cogent evidence to the contrary, in my opinion, given the conduct of and participation in the proceeding by Dr Baig on 12, 13 and 14 April 2019, on behalf of UTSG, I find that Dr Baig would be capable of representing UTSG at the resumed hearing next week, including carrying out the cross-examination of Sydney Metro's expert witnesses. 7. While Ms Singh would not be present in the court room, there is nothing in the evidence before the Court that indicates that she would not be able to give Dr Baig instructions during the course of the resumed hearing. Dr Baig would also have recourse to the expertise of Mr Mullins to assist him in his questioning of Sydney Metro's experts. Furthermore, given the lateness with which Ms Singh's health issues have arisen (Dr Fukui's letter is dated 17 July 2019), it may be presumed, absent any evidence to the contrary, that UTSG's preparations for the resumption of the hearing were well advanced. It should also be recalled that Dr Baig was already prepared to deal with Mr Mullins's evidence when the matter was last before the Court (see the transcript quoted above). Finally, as Dr Baig referred to during the application to vacate, his re-examination of Ms Singh when the matter was last before the Court required him to clarify and correct allegations put to her in cross-examination that she had, amongst other things, lied and had engaged in fraudulent and dishonest behaviour with respect to the preparation and presentation of UTSG's financial records (about which no findings have yet been made by the Court). This necessitated a sufficiently detailed understanding of the financial affairs and underlying documentation of UTSG. Nothing has changed in the intervening period. 8. But for one important consideration, notwithstanding my findings with respect to Ms Singh's ill health, for the reasons above I would have refused the application to vacate the hearing on the basis that Dr Baig was capable of representing the company upon the resumption of the hearing. The Hearing Dates Must Be Vacated 1. I remain, however, concerned that Ms Singh's re-examination has not concluded. While counsel for Sydney Metro contended that the conclusion of her re-examination could have no bearing on the future conduct of the proceedings, I disagree. 2. It is possible that evidence may be elicited from Ms Singh during re-examination by Dr Baig that does, in some way, impact upon Mr Mullins's evidence and the preparation of that witness and the cross-examination of Sydney Metro's witnesses. While it is presently unnecessary (if not inappropriate at this stage of the proceedings) to detail the link between the allegation of impropriety made against Ms Singh by Sydney Metro and the material relied upon by Mr Mullins to give his expert opinion (see UTSG (No 3)), the link exists (T33:44-48). 3. On this basis, on balance, I consider that a potential forensic disadvantage could result to UTSG if the hearing was to resume and the expert evidence proceeded with – especially that of Mr Mullins (there was no suggestion by Sydney Metro that its experts should be interposed before Mr Mullins) – prior to the conclusion of Ms Singh's evidence. While this remains a possibility, as a matter of fairness to UTSG, the hearing of this proceeding cannot resume until Ms Singh has completed the re-examination. 4. Accordingly, when regard is had to the provision of the CPA referred to above, including the dictates of justice and the matters set out in s 58(2) of the Act, UTSG's application to vacate must be reluctantly upheld notwithstanding the further delay and attendant costs that will be incurred in doing so. While the vacation will result in neither the quick nor cheap resolution of the real issues for determination in the proceedings, in all the circumstances, it will result in their just determination (s 56 of the CPA). 5. In arriving at this conclusion, the Court has taken into account the proposed orders furnished by Sydney Metro (see below) to govern the future (that is, quick) conduct of the proceedings. Costs 1. Initially Sydney Metro made their absence of opposition conditional upon a costs order being made in their favour (as explained above). The submission was curious given the manner in which this Court deals with costs in Class 3 compulsory acquisition proceedings where costs do not follow the event in the strict sense because of the nature of the proceedings (that is, an appeal by an owner whose property has been compulsorily acquired by the State) (see Taylor v Port Macquarie Hastings Council [2010] NSWLEC 153; (2010) 175 LGERA 189 at [17]-[19] and Dillon v Gosford City Council [2011] NSWCA 328; (2011) 184 LGERA 179 at [60]-[65]). 2. In my view, despite protestations to the contrary, the making of such a costs order would be punish UTSG and not merely to compensate Sydney Metro (Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534). UTSG's application to vacate has arisen through no fault of its own, were it otherwise, it may be presumed that Sydney Metro would have opposed the application. In these circumstances, it would have been preferable to ask that the question of costs be reserved or that the foregone costs be costs in the cause. 3. However, I do not need to determine the issue because, properly in my opinion, Sydney Metro withdrew the request. Length of the Vacation and Future Conduct of the Proceedings 1. Dr Baig sought an order that the proceedings be stood over for at least six months and that they not be resumed until Ms Singh furnished a certificate from a treating specialist that she was fit to participate in the proceedings. 2. Unsurprisingly Sydney Metro objected to this proposed course. Indeed, the second condition it attached to its neutral position with respect to the vacation application was that the Court make suitable timetabling orders for the further conduct of the proceedings that avoided the matter laying dormant for the remainder of the year, and moreover that allowed the Court to have a degree of oversight in determining when the hearing of the matter could resume and be finalised. 3. Notwithstanding that this was one of its conditions, and a matter that it submitted was relevant to the exercise of the Court's discretion to refuse or grant the vacation, Sydney Metro did not immediately provide a draft of these orders for the Court's contemplation. 4. Two sets of orders were proposed by Sydney Metro: the first set contemplated resumption of the hearing next week with the cross-examination of Mr Mullins taking place by Dr Baig. For the reasons expressed above, these orders may be ignored. 5. The second set were prepared in anticipation of the hearing dates being vacated. They were in the following terms: 1. The hearing dates of 29 July 2019 to 2 August 2019 are vacated. 2. By 5pm on Tuesday, 30 July 2019, the Applicant is to file and serve an affidavit from Ms Singh's treating medical specialist/s providing an opinion on: (a) when it expected that Ms Singh will be discharged from hospital; (b) whether Ms Singh is presently able to provide instructions to UTSG's representative in the proceedings, if not, the reasons and when it is expected that Ms Singh is able to provide such instructions; (c) whether Ms Singh is presently able to provide instructions to UTSG's representative in the proceedings remotely (eg by telephone or video link) and, if not, the reasons and when it is expected that Ms Singh is able to provide such instructions; and (d) whether Ms Singh is able to appear as a witness in Court in the proceedings to complete the re-examination by Dr Baig and, if not, the reasons and when Ms Singh is likely to be capable of doing so. 3. Any persons providing an affidavit for the purposes of Order 0 above, where such evidence is relied on by the Applicant, will be required to attend Court for the purposes of cross examination on Thursday, 1 August 2019. 4. The Respondent is to provide evidence by 5pm on Tuesday, 30 July 2019 about the availability of the same solicitors and Counsel in respect of the proceedings. 5. The matter be relisted to deal with the evidence provided pursuant to Orders 0 and 4 and further case management on Thursday, 1 August 2019. 1. Subject to some amendment, these orders provide a path forward for the completion of this matter. They afford the Court some comfort that the matter will not languish in abeyance for the next six (or more) months in circumstances where Ms Singh has earlier returned to good health. Absent expert medical evidence concerning the nature and extent of Ms Singh's condition, the Court cannot case manage the matter to ensure its timely finalisation. 2. In my view, the making of such orders is more likely to facilitate the just, quick and cheap determination of the matter pursuant to s 56 of the CPA than those proposed by Dr Baig, or even by simply standing the proceedings over for some lengthy period of fixed time. 3. The proposed orders include the hearing of Sydney Metro's foreshadowed application to have the expert evidence dealt with in a manner other than the usual method of concurrent evidence. No part of Ms Singh's evidence is relevant to the hearing of this procedural application. Furthermore, Dr Baig has continually demonstrated in Court that he is more than capable of dealing with such an application. He has a sound command of the Class 3 Compulsory Acquisition Practice Note and the rules of procedure relating to the provision of expert evidence (including the expert code of conduct). He understands the difference between concurrent evidence and the "old-fashioned way" of such evidence being given. 4. It should be noted that if these orders are not complied with, then the matter will be relisted for further case management at the first available opportunity and, if appropriate, the matter may be listed for resumption of the hearing at the first available opportunity at the convenience of Sydney Metro. Orders 1. The orders of the Court are therefore as follows: 1. the hearing dates of 29 July to 2 August 2019 are vacated; 2. by 5 pm 30 July 2019, the applicant is to file and serve evidence from Ms Singh's treating medical specialist/s (not a social worker) providing an opinion on: 1. when it is expected that Ms Singh will be discharged from hospital; 2. whether Ms Singh is presently able to provide instructions in the proceedings, if not, the reasons why not and when it is expected that Ms Singh will be able to provide such instructions; 3. whether Ms Singh is presently able to provide instructions in the proceedings remotely (for example, by telephone or video link) and, if not, the reasons why not and when it is expected that Ms Singh will be able to provide such instructions; and 4. whether Ms Singh is able to appear as a witness in the proceedings to complete her re-examination by Dr Baig and, if not, the reasons why not and when Ms Singh is likely to be capable of doing so. 1. any persons providing evidence for the purposes of order (2) above is required to attend Court for the purposes of cross-examination on 1 August 2019 at 10.00am; 2. the respondent is to email the Court and UTSG by 5 pm on 30 July 2019, the availability of its legal representatives and witnesses in respect of the continuation of the hearing and any further dates required for case management; 3. any application by the respondent to deal with the expert evidence of the parties other than by way of concurrent evidence is to be heard on 1 August 2019 at 10 am; and 4. the matter is to be relisted to deal with the evidence provided pursuant to orders (2) and (4) and the further case management of the proceedings on 1 August 2019 at 10 am. ********** Amendments 30 July 2019 - typographical error in catchwords 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: 30 July 2019