Cameron v Franks (No 2)

These proceedings were commenced by the plaintiff, Brad Alan Cameron, against the defendant, his brother, Gregory Franks, by summons filed on 13 January 2022.

Mr Cameron sought orders in standard form for the appointment of trustees for sale of a property at Port Macquarie (the Property) pursuant to s 66G of the Conveyancing Act 1919 (NSW). Mr Cameron sought orders that the net proceeds of sale be divided equally between himself and Mr Franks. By amended summons filed on 29 April 2022, Mr Cameron corrected the proportion in which he sought the net proceeds of sale to be divided to be one third to himself and two thirds to Mr Franks. This reflected the fact that although this Court in Franks v Franks [2011] NSWSC 1261 had made a family provision order that the Property be held equally between the parties, on appeal in Franks v Franks [2013] NSWCA 60, the Court of Appeal varied the family provision orders such that Mr Cameron would be entitled to one third and Mr Franks two thirds of the Property. These orders were subject to a portable life interest in favour of the parties’ father who has now passed away.

Mr Franks filed a cross summons on 4 April 2022 that he evidently prepared himself. Later, on 28 July 2022, Mr Franks filed a further cross summons, this time prepared by a solicitor, Ms Joanne Kinslor. This cross summons sought the following relief:

In the balance of the cross summons, Mr Frank sought certain alternative relief to the effect that Mr Cameron only holds a share of the Property equal to $30,000 or, in the alternative, 30% of one third of the Property, and Mr Franks holds the remaining share.

The issues that arose on Mr Cameron’s amended summons are straightforward because, on the basis of Mr Cameron’s claim that the Property was co-owned by himself and Mr Franks, he was entitled to the relief that he sought almost as of right.

The issues that arose on Mr Franks’ cross summons must be gleaned from the affidavits served by Mr Franks. Mr Franks affirmed the following in his 28 July 2022 affidavit:

The substance of Mr Cameron’s response is found in his 26 August 2022 affidavit, in which he said:

It is not the purpose of these reasons to resolve this dispute or make any comment concerning the strength of the parties’ cases. I will note, however, that the alleged agreement that is Annexure GF6 to Mr Franks’ affidavit is a highly smudged photo copy which is mostly illegible. The transcription that was prepared by Mr Franks that is Annexure GF7 gives as Mr Cameron’s address the address stated in par 24 of Mr Cameron’s affidavit, and not the changed address that Mr Cameron said that he had at the time of the alleged agreement.

Both of the alleged witnesses to the agreement relied upon by Mr Franks had passed away by the time these proceedings came to hearing.

Mr Franks was able to file his second cross claim with the help of a solicitor because of an order made by this Court on 16 May 2022 pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 7.36(1) that Mr Franks be referred to the Registrar for referral to a barrister or solicitor on the Pro-Bono Panel for legal assistance in respect of these proceedings. Pursuant to that order, Mr Franks received the benefit of the services of Ms Kinslor and a barrister to represent him.

After a considerable number of interlocutory hearings, on 21 October 2022 Peden J set the matter down for hearing before me on 17 April 2022 with an estimate of two days.

On the application of Ms Kinslor, I heard an application on 31 March 2023 for an order giving Ms Kinslor leave to cease to act for Mr Franks in the proceedings. I gave an ex tempore judgment and made orders as sought by Ms Kinslor. As the judgment has not been formally published, I will set it out here in full:

As those short reasons say, Ms Kinslor had tendered evidence that satisfied me that Mr Franks had not properly engaged with his pro bono lawyers, had not provided them with the instructions that they sought, and had created the situation where both his barrister and his solicitor had been driven to seek the leave that they needed to be permitted to return their brief or file a notice of ceasing to act, as the case may be. Although I have not reviewed the evidence prepared in these proceedings on behalf of Mr Franks by his pro bono legal representatives, on the face of it they had assisted Mr Franks to achieve the position where he was able to defend Mr Cameron’s case and to prosecute his own cross claim against Mr Cameron. I infer that Mr Franks would have been represented by solicitor and counsel at the hearing if he had cooperated and provided proper instructions to his legal representatives.

At the hearing on 17 April 2023, Mr Cameron was represented by counsel but there was no appearance for Mr Franks. The circumstances were that Mr Cameron and his wife had come down to Sydney to attend court at considerable cost and inconvenience to themselves. After hearing from Mr Cameron’s counsel, and having regard to the fact that Mr Cameron would be entitled to the orders that he sought in his amended summons, subject only to the effect of the cross summons, I made orders that included the following, by reasons for judgment published on 28 April 2023 as Cameron v Franks [2023] NSWSC 437:

It will be convenient to set out the part of my reasons for judgment that dealt with the significance of Mr Franks’ failure to appear at the hearing, as follows:

On 18 May 2023, Mr Franks filed a notice of motion and a supporting affidavit affirmed by himself which were obviously prepared by Mr Franks. The relief sought by Mr Franks in the notice of motion was:

I listed Mr Franks’ notice of motion to be heard on 9 June 2023. On that occasion, Mr Cameron was represented by counsel. Mr Franks represented himself and appeared by telephone at his request and for his convenience.

I record that notwithstanding the claims made and such medical evidence as there was concerning Mr Franks’ psychological disabilities, Mr Franks conducted his application in a coherent and lucid way that gave the Court no reason at all to understand that Mr Franks was suffering from some disability that made him any more vulnerable than any other lay party who was required to represent themselves in proceedings in this Court.

Mr Cameron resisted the application by Mr Franks that would have had the practical retrospective effect of avoiding the Court making an order dismissing Mr Franks’ cross claim on the basis of an absence of an appearance by Mr Franks on 17 April 2023. The making of the orders sought by Mr Franks would require the Court to find a date to relist the proceedings on the cross claim to be heard by me at some date in the future. Counsel for Mr Cameron submitted that the reasons given by Mr Franks for not appearing to prosecute his cross claim on 17 April 2023 were disingenuous and not credible on the evidence that was before the Court. Counsel pointed to the significant disabilities that Mr Cameron and his wife confronted, and submitted that it would be most unjust for the Court to allow Mr Franks’ application, which would commit Mr Cameron to a further long wait for justice, and would impose upon him a repetition of the significant burden that he had suffered in inconvenience, anxiety and costs in coming to Sydney on 17 April 2023 to seek justice from this Court.

It will be appropriate to set out the evidence in Mr Franks’ 18 May 2023 affidavit in full, as follows:

I will consider the annexures to Mr Franks’ affidavit when I deal with the issues to which the annexures are relevant.

Mr Franks began his affidavit by complaining that he did not receive sufficient notice that his legal representatives intended to cease acting for him shortly before the hearing that was fixed to take place on 17 April 2023. I was satisfied by the evidence tendered by Ms Kinslor on 31 March 2023 that Mr Franks’ former legal representatives communicated with Mr Franks by letter and email between 14 February 2023 and 21 March 2023 to the addresses given to them by Mr Franks, culminating in counsel notifying Mr Franks at his email address on 1 March 2023 that she had returned the pro bono brief and no longer acted for him. On 22 March 2023, Ms Kinslor notified Mr Franks by email that she had taken steps to obtain leave to file a notice of ceasing to act for him.

On 4 April 2023, Mr Cameron’s solicitors sent a letter to Mr Franks by email that enclosed a copy of the notice of ceasing to act filed by Ms Kinslor on 31 March 2023. The letter also contained a copy of the Real Property List Practice Note SC Eq 12 and explained the process by which the court book would be prepared, and sought Mr Franks’ cooperation.

As for Mr Franks’ claimed difficulty in obtaining his file from Ms Kinslor, Mr Franks has only made bare assertions on that issue and not explained the steps that he has taken to obtain his file. On 11 April 2023, Mr Cameron’s solicitors advised Mr Franks at his preferred email address that they had been informed by his former lawyers that his original documents were delivered to him via registered post at the Port Macquarie post office on 4 April 2023, with a tracking number that was stated in the email. Mr Cameron’s solicitors by the same email gave Mr Franks a link to the draft court book and index. By a further email dated 12 April 2023, Mr Cameron’s solicitors noted that Mr Franks either had collected or had delivered to him his previous solicitor’s file, as the tracking on the Australia Post website said that delivery was complete.

In a response made on 13 April 2023, Mr Franks informed Mr Cameron’s solicitors that the file of his previous solicitor was not included in the envelope received by Mr Franks. Mr Cameron’s solicitors in turn responded on 14 April 2023 that they were “informed by your former lawyers that your original documents, including the documents we have sought under the notice to produce, were delivered to you under” the tracking number stated in the earlier email.

On 13 and 14 April 2023, Mr Cameron’s solicitors sent emails to Mr Franks that contained a link to the electronic court book in the first case and an electronic PDF of the court book in the second case. The court book that was delivered to the Court on behalf of Mr Cameron was properly prepared, containing the pleadings, including Mr Franks’ unfiled notice of motion seeking an order for the vacation of the hearing, as well as all of the affidavits that had been filed, with proper cross references from annexures to the relevant court book pages. The court book contained all of the documents that were necessary for the conduct of the hearing. Mr Cameron’s solicitors recommended that Mr Franks bring a printed version of the court book to the Court for the purposes of the hearing.

On 6 April 2023, my Associate sent a standard form email to the parties, which explained that the Court’s current practice was that the hearing would proceed by way of a live hearing, but advised that, if there was any difficulty with any self-represented party attending in person, the Court would hear matters using a virtual court room either by audio-visual link or telephone, provided an application was made as early as possible and contained a clear statement of the basis for the application. It is clear from par 7 of Mr Franks’ affidavit in which he referred to the earlier application by Mr Cameron to participate in the hearing by audio-visual means that Mr Franks was well aware that if he had any difficulty in travelling from Port Macquarie to Sydney to appear at a hearing in person, it was open to him to make an application to appear by audio-visual means or telephone by making an application to my Associate.

On the morning of 28 April 2023, before I delivered the reserved judgment that was delivered on that day, Mr Franks sent an email to my Associate in which he advised that his internet service in Port Macquarie was currently unreliable for an audio-visual appearance, and sought advice as to whether there was a telephone number that was available to permit him to attend the delivery of judgment remotely by telephone. My Associate responded by giving Mr Franks the relevant telephone number and instructions by email. Mr Franks ultimately took advantage of this facility by appearing at the hearing on 9 June 2023 by telephone.

Mr Franks was entitled to make his own decision as to whether he preferred to participate in the hearing in person or remotely by audio-visual or telephonic means. He apparently chose the former as he purchased a plane ticket to fly from Port Macquarie to Sydney on the morning of the hearing. I have only mentioned the communications that advised Mr Franks of the alternative possibility that he could participate in the hearing remotely, because they establish that Mr Franks had the means to communicate with the Court if the need arose, and that it was possible for him to ask to be allowed to participate remotely if that was more convenient to him.

Mr Franks accepted in cross-examination that the flight on which he had booked a ticket was due to leave the airport at Port Macquarie at 7:10 AM on the morning of the hearing. It is at best rash that Mr Franks put himself in the position where his ability to appear at a hearing in the Supreme Court in Sydney at 10 AM required that he fly from Port Macquarie leaving at 7:10 AM.

However, Mr Franks has claimed that he was unable to appear in court because of a medical incident that led to him calling an ambulance on the morning of 17 April 2023, which led to him being conveyed to Port Macquarie Base Hospital for observation and tests with the result that he was not discharged until 12:07 PM on that day.

Mr Franks annexed the Ambulance Electronic Medical Record to his affidavit. That record showed that Mr Franks called the Ambulance Service at 7:11 AM and that the ambulance reached his home and the paramedics interviewed him at 7:20 AM. The notes made by the paramedics included that Mr Franks “noticed chest heaviness after waking this morn approx 6:40 AM”, and that he had experienced “chest pain”. The paramedics recorded “[patient] states stress ++ lately”.

Mr Franks also annexed the Hospital’s Discharge Referral Note. The record included: “Gregory presents with chest pain (2/10) and chest tightness. His ECG is negative for any acute ishemic [sic] changes/cardiac pathology. His serial troponin all negative. He was clinically stable and pain-free at the time of discharge…” The record stated that Mr Franks had given a history including:

The Discharge Referral Note included a medical certificate signed by a medical intern stating that Mr Franks was unfit for: “Usual activities”.

Mr Franks was cross-examined on the basis that, if he woke up at 6:30-6:40 AM, he could not seriously have expected to catch an aeroplane leaving Port Macquarie airport at 7:10 AM. Mr Franks responded by denying that he woke up at that time, and said instead that he woke up at about 5:30 AM and went back to bed dressed in the tracksuit in which he intended to fly to Sydney. Mr Franks repeatedly denied that the paramedics and the medical intern had correctly recorded what he told them in relation to the time that he woke up in the morning. Mr Franks sought to explain their errors by saying that the information that he provided mostly concerned his medical history, and the paramedics and the medical intern did not take notes and must have recorded the time of his waking up later, so that they made errors.

Mr Franks said in cross-examination that he did not experience chest pains at 5:30 AM when he woke up and that he only did so at about 6:30 AM. He sought to explain the fact that he did not call the Ambulance Service until 7:11 AM by saying that he carried out some exercises that he expected would relieve his chest pain, but the exercises were unsuccessful.

It will be recalled that order 7 that the Court made on 28 April 2023 was as follows:

I included the requirement that the evidence to be filed by Mr Franks “shall include the evidence of a medical practitioner who examined the defendant in hospital on 17 April 2023”, because it was obvious that Mr Franks may have relied upon a sham medical event as a pretext for avoiding the proceedings being heard on that date, so that it would be necessary for the Court to have considered medical evidence by a doctor who treated Mr Franks at the Hospital in order for the Court to be in a position to make a sound judgment about whether or not Mr Franks’ failure to appear in court was the result of extenuating circumstances for which he was not responsible.

Although Mr Franks annexed diagnostic and treatment records to his affidavit, he did not provide evidence from a doctor who examined him, and did not explain why he had not done so. I consider this to be a serious omission, as the symptoms recorded by the paramedics and the medical intern, being limited to chest pain and chest tightness, and stress and anxiety due to the imminence of the hearing, would not usually be considered sufficient to justify a party in not appearing in court. Mr Franks’ decision to leave it to the morning of the hearing to fly to Sydney from Port Macquarie plainly exacerbated the difficulty. The absence of direct medical evidence on this issue is problematic, because the Court has no scientific means of deciding whether symptoms that would be experienced by many litigants in person, and indeed many practitioners, were in fact of a seriousness that justified hospital intervention. As it has happened, the sequelae to the event are not consistent with Mr Franks having any serious cardiac pathology.

I do not consider the fact that the paramedics decided that it was warranted that Mr Franks be conveyed to the Hospital for observation and testing is of great significance. Mr Franks waited until 7:11 AM to call the Ambulance Service, which was one minute after his flight was due to leave Port Macquarie airport. As a practical matter, Mr Franks decided for himself that his physical symptoms justified him in not travelling to Sydney to appear at the hearing.

Mr Franks annexed to his affidavit additional medical evidence that did not deal directly with the events of the morning of 17 April 2023. Mr Franks relied upon a psychological assessment dated 13 February 2023 that was prepared in support of his application for the Disability Support Pension, in which a clinical psychologist diagnosed Mr Franks as having Post Traumatic Stress Disorder (PTSD) and Major Depressive Disorder.

A general practitioner at the Sydney based practice where Mr Franks “is a regular and long term patient” recorded in a certificate dated 4 April 2023 that Mr Franks had been diagnosed with PTSD and stated: “I would recommend that for medical reasons, he should defer his court hearing date”.

In a report addressed to me by name dated 13 April 2023, Mr Franks’ treating general practitioner, located at the same Sydney practice, explained Mr Franks’ medical condition and gave the following opinion:

A further report dated 14 April 2023 by a treating psychologist from an online psychology practice included the following:

While I have had regard to these opinions, I must balance them against my own experience that Mr Franks was able to prepare and file cogent evidence and conduct the hearing on 9 June 2023 in what appeared to be a competent and satisfactory manner, in which he had no difficulty at all in explaining his position.

I should record that I have not given any effect to the suggestion that Mr Cameron may have been responsible for Mr Franks’ psychological condition.

The difficulty faced by the Court in deciding this issue has been exacerbated by the following exchange between the Court and Mr Franks on 9 June 2023, at T 3.20:

Since I made the order on 31 March 2023 granting Ms Kinslor leave to file a notice of ceasing to act for Mr Franks, in circumstances where the Registrar had earlier given Mr Franks’ counsel leave to return her pro bono brief, Mr Franks’ case in all of his communications has been that the hearing fixed for 17 April 2023 should be vacated, so that Mr Franks could recover his file from his previous solicitor, and so that he could obtain new legal representation because his psychological condition, and in particular his PTSD, had the effect that he could not competently conduct a hearing as a litigant in person. Yet, when I put the issue to Mr Franks on 9 June 2023, having formed the impression that he was not as incompetent as he claimed, he readily agreed to conduct the hearing himself, if he could not find new legal representation, provided that he could obtain his file. That proviso was problematic, as Mr Franks had been provided with a properly prepared court book, and, on balance, the evidence suggested that Mr Franks had been given the file by his previous solicitor, and, if the file was in fact incomplete, Mr Franks had not acted positively to obtain the balance of the file.

There is no prospect of Mr Franks’ cross claim being listed to be heard by me this year, and, for reasons that need not be explained, that means that I would not be the judge who heard the cross claim. If it was listed before some other judge, realistically, the cross claim could not be heard by the Court until some presently unknown time in 2024.

In the meantime, the Court must properly weigh the interests of Mr Cameron, who is also unemployed, and who is recovering from a catastrophic car accident that happened on 9 April 2022, in which his wife also suffered serious injury. Since the death of the parties’ father on 8 April 2020, Mr Cameron has been prima facie entitled to one third of the beneficial ownership of the Property. As mentioned at [42] of my reasons for judgment published on 28 April 2022 that is set out above, it appears that Mr Cameron may owe legal fees to his solicitors in the family provision application which are a charge on his interest in the Property.

When the hearing commenced on 17 April 2023 and there was no appearance by Mr Franks the rule that governed the procedure to be followed by the Court was UCPR r 29.7, which relevantly provides:

Mr Cameron was the plaintiff in the proceedings and an appearance was made on his behalf. Because Mr Cameron’s claim was for the appointment of trustees for sale under s 66G of the Conveyancing Act, the only impediment to the orders he sought being made by the Court was the possibility that Mr Franks would succeed on his cross claim. Consequently, I made the notation in par 2 of the orders that are set out above at [14]. The real significance of Mr Franks’ failure to appear was that he did not prosecute his cross claim. For practical purposes, Mr Franks was in the position of the plaintiff in r 29.7(4). Because of the last minute uncertainty introduced by Mr Franks’ indirect message to the Court on the morning of the hearing, I did not feel comfortable in applying r 29.7(4) on a final basis. Accordingly, I only made the notation in par 3 of the orders that Mr Cameron was in principle entitled to an order that Mr Franks’ cross claim be dismissed.

The question now before the Court is whether the Court should take the unusual step of ordering that the hearing retrospectively be adjourned. That would be justifiable if the evidence now before the Court establishes to an adequate degree of confidence that Mr Franks would have appeared to contest the proceedings on 17 April 2023 were it not for his having suffered a medical episode that reasonably deprived him of the ability to attend court.

This raises a difficult forensic issue because it is a matter that must be dealt with in a relatively summary way. The Court conducted a hearing on 9 June 2023, at which counsel for Mr Cameron cross-examined Mr Franks, but otherwise the evidence was confined to written materials. It has been difficult in those circumstances for the Court to make positive findings concerning the conduct of Mr Franks and the real reasons for his non-appearance on 17 April 2023.

As I have indicated above, that is why I specified in order 7 made on 28 April 2023 that Mr Franks provide evidence from a medical practitioner who examined him in hospital on 17 April 2023 to substantiate Mr Franks’ claim that he was unable to attend court due to attending hospital for a heart condition. Mr Franks has ignored that requirement. Consequently, the documentary evidence that has been provided concerning Mr Franks’ capacity to travel to Sydney and appear in court on 17 April 2023 is remote. I have considered that evidence carefully, and I am not satisfied that Mr Franks suffered a cardiac episode on the morning of the hearing that prevented him from travelling to Sydney. I accept that Mr Franks may have been suffering stress and anxiety as a result of the imminent hearing and that he may have experienced feelings of pressure in his chest. However, the evidence does not justify a finding that the effects were other than discomfiting and transitory.

The significance of Mr Franks’ claim that he was medically incapable of travelling to Sydney must be judged in the light of surrounding circumstances.

The Court is not in a position to assess objectively the reasonableness of Mr Franks’ plan to be able to catch a plane scheduled to leave Port Macquarie Airport at 7:10 AM in the morning on the basis that it will land at Kingsford Smith Airport in time to allow Mr Franks to travel from the airport to the court in the centre of the city. It is not unreasonable for the Court to consider that plan to be improbable of success and, in any event, it involved an unjustifiable degree of risk.

I am not satisfied with Mr Franks’ explanation of why the records made by the paramedics and the medical intern that he told them that he awoke at 6:30 AM were incorrect. The Court would ordinarily expect that these professional people would be trained to record such details accurately. Whatever Mr Franks’ plan may have been as to how he could have travelled to the airport in time to board the plane, and whether or not his understanding expressed in his evidence that he could board the plane at the last minute notwithstanding the advertised boarding schedule was sound, I am satisfied that the arrangements that Mr Franks made to ensure that he was able to appear were irresponsible having regard to his obligations to the Court.

The fact that, on his own admission, Mr Franks called the Ambulance Service one minute after his flight was due to leave demonstrates at the least an exceedingly casual approach to Mr Franks’ civic obligation to appear to prosecute his cross claim, if he wanted to avail himself of the opportunity to do so.

Substantial doubt must be cast upon the genuineness of Mr Franks’ claim that it was his intention to prosecute his cross claim rather than avoid an early judicial determination of the proceedings by the circumstances in which Mr Franks forfeited the opportunity afforded to him by the pro-bono scheme to be represented by counsel and solicitor at the hearing.

Finally, having heard Mr Franks, I am satisfied that he was as capable of conducting his case in person as would be the majority of people who were placed by circumstances in that uncomfortable position. I do not ignore the fact that Mr Franks consistently foreshadowed the need to adjourn the hearing indefinitely in order to obtain alternative legal representation and to recover from his medical disabilities, only to readily say to the Court that he was prepared to conduct his case in person.

I therefore conclude that the reasons subsequently given by Mr Franks for not appearing to prosecute his cross claim on 17 April 2023 do not demonstrate extenuating circumstances that are sufficient to justify the Court in retrospectively adjourning the hearing, without making the orders referred to in pars 2 and 3 made on that date.

Accordingly, the orders of the Court are: