Uy v Ng

1. [1]

   HER HONOUR: This is an application by the plaintiff, Ching Wah (Phillip) Uy, to vacate a three-day trial listed for hearing commencing today. The application was served on the defendants over the weekend and is opposed.

Facts

1. [2]

   These proceedings were commenced in December 2019. The proceedings were the subject of various delays by the plaintiff, the details of which it is not necessary to set out. In October 2020, time came for the plaintiff to file evidence in reply. The defendants' solicitors circulated proposed short minutes of order for the upcoming directions hearing, proposing a date for the plaintiff to do so. The day before the directions hearing, the plaintiff's solicitor advised that the plaintiff was not in a position to review the defendants' evidence and put on evidence in reply, stating:

2. [3]

   The defendants' solicitor enquired when the plaintiff had been discharged from hospital, to which the plaintiff's solicitor replied:

3. [4]

   The defendants' solicitor sought information in respect of the plaintiff’s medical condition:

4. [5]

   On 16 October 2020, Ball J ordered the plaintiff to serve his evidence in reply by 20 November 2020 and listed the matter for hearing today, that is, five months hence. His Honour further ordered that any request by the plaintiff to extend time to serve his evidence in reply be supported by affidavit.

5. [6]

   On 18 November 2020, that is, two days before the plaintiff's reply evidence was due, the plaintiff's solicitor advised,

6. [7]

   On 20 November 2020, the defendants' solicitor requested further information in respect of the plaintiff's medical condition, suggesting that the medical certificate “provides little detail”. Further:

7. [8]

   The matter was re-listed for further directions. On 27 November 2020, Hammerschlag J extended the time for the plaintiff to serve reply evidence until 29 January 2021 and also made a guillotine order such that evidence not so served may not be relied upon without leave. The reply evidence was duly served.

8. [9]

   In April 2021, a statutory demand was issued by The Won Capital Pty Ltd against Gencorp Pty Ltd, a company owned by the plaintiff, in relation to a costs order made against Gencorp in separate proceedings. The statutory demand expired without payment. In addition, GR Capital Group Pty Ltd has served a bill of costs on the plaintiff, arising out of separate proceedings, in the amount of $255,000. The time for objection to the bill of costs has not yet expired. The defendants pointed to these matters as giving rise to a concern that any costs order made against the plaintiff as a consequence of vacating the hearing today may not be met.

9. [10]

   Which brings us to more recent events. On Monday, 19 April 2021, the plaintiff went to see his general practitioner, Dr Verma. The plaintiff complained of angina pain and had elevated blood pressure. Dr Verma suggested that the plaintiff go to hospital, but the plaintiff refused. On Wednesday, 21 April 2021, the plaintiff saw Dr Verna again. The plaintiff had elevated blood pressure and Dr Verma called an ambulance to take him to Ryde Hospital. The plaintiff's solicitor was informed.

10. [11]

    On 22 April 2021, the plaintiff’s solicitor spoke to a doctor at Ryde Hospital, Dr Vichare, who said the plaintiff was being transferred to St George Private Hospital and would be under the care of a cardiologist, Dr Clement Wong. Dr Vichare was not sure whether the plaintiff would be able to attend Court and said this would be up to Dr Wong to carry out further tests and diagnose the plaintiff. Dr Vichare was unable to provide a written opinion on the plaintiff’s condition but said this should come from Dr Wong after his tests. The plaintiff’s solicitor advised the defendants' solicitor (and my Associate) that he would be seeking to vacate the hearing today.

11. [12]

    On 23 April 2021, the plaintiff’s solicitor asked Dr Wong to provide a medical opinion in writing to support this application. Dr Wong said he was not able to do so at this stage, “What I can say is that [the plaintiff] has an elevated heart rate and is complaining of chest pains. He has also developed diarrhea which suggest[s] some sort of infection.” Dr Wong was asked whether the plaintiff would be fit for Court today and said, “I won’t know until we do further tests, but he’s not feeling well.” Dr Wong’s comments are hardly definitive.

12. [13]

    On Saturday 24 April 2021, the defendants’ solicitor advised that the application to vacate the hearing today was opposed; the evidence relied upon by the plaintiff was said to be insufficient. It was noted – and it is noteworthy – that “of the three medical professionals that Mr Uy says he has seen, none of them appear to be prepared to express the opinion that Mr Uy is unfit to attend the hearing”.

13. [14]

    Yesterday evening, the plaintiff’s solicitor called his client in hospital, who said he was sick and not feeling very well. The plaintiff’s solicitor asked whether the plaintiff was coming to Court tomorrow, and the plaintiff said no. The plaintiff gave instructions to pay the defendants’ costs thrown away should I vacate the hearing. It appears that the plaintiff’s solicitor may not have made plain the defendants’ opposition to the application to vacate the hearing and thus the prospect that the application may fail. Nor did he ask the plaintiff when he might be getting out of hospital nor contact the hospital to find out when that might occur.

14. [15]

    This morning, the plaintiff’s solicitor asked Dr Verma whether he would provide something in writing as to the plaintiff’s ability to attend Court. Dr Verma said, “The best person for that is the specialist at this stage, he will be assessing him. I sent him to hospital because of the angina. It’s dangerous and needs to be looked at.” I do not understand Dr Verma to be suggesting that he had diagnosed the plaintiff as suffering from angina. Rather, Dr Verma sent the plaintiff to hospital as he was not certain about the plaintiff’s condition and was unable to diagnose him in the surgery.

15. [16]

    The plaintiff’s solicitors have made enquiries about obtaining a copy of the plaintiff’s medical records but, it appears, have not sought the plaintiff’s consent to be provided with such records. The discharge document that accompanied the plaintiff from Ryde Hospital to St George Private Hospital may have been useful.

Principles

1. [17]

   Drawing on my judgment in In the matter of Wise & Young Pty Ltd [2019] NSWSC 1092 at [17]-[19], section 66(1) of the Civil Procedure Act 2005 (NSW) provides that the court may adjourn proceedings. While this power is cast in broad terms, its exercise is governed by section 58 of the Act, which requires that, when deciding whether to grant an adjournment, “the court must seek to act in accordance with the dictates of justice,” in respect of which the court must have regard to sections 56 and 57 of the Civil Procedure Act. The interaction of these provisions was considered extensively by Beazley JA (with whom Giles and Whealy JJA agreed) in Hamod v New South Wales [2011] NSWCA 375. In particular, her Honour considered, at [139] ff, that the exercise of section 66 is subject to the principles of case management set out by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27. See likewise Menzies v Paccar Financial Pty Ltd (No 4) [2014] NSWCA 210; (2014) 101 ACSR 25 at [48]–[64].

2. [18]

   In Thornberry v The Queen (1995) 69 ALJR 777, the High Court held per curiam (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) that the refusal of an adjournment which resulted in a party being unable to adequately present their case was a miscarriage of the Court’s discretion. There, the accused sought an adjournment from lunch time until the following morning to call two alibi witnesses critical to his defence. This decision has been followed in civil matters: Singh v Deputy Commissioner of Taxation [2011] FCA 889; Kerr v American Express Australia Ltd [2009] FCA 1219; Lennox v Amcor Ltd trading as Amcor Cartonboard (No 2) [2009] FCA 962; Cohen v McWilliam (1995) 38 NSWLR 478 (Court of Appeal) although, obviously enough, much turns on the facts of each case.

3. [19]

   Returning to the principles in Aon which are applied analogously to applications for adjournment, it is not only the interests of the party to the instant proceedings which ought to be considered; an adjournment necessitates a further appointment of a hearing date which will inevitably delay other parties from obtaining a hearing: Australia and New Zealand Banking Group Ltd v Mio Amico Pty Ltd [2013] NSWSC 716 at [58] per Davies J. Thus, the notion that adjournments can simply be met by an appropriate costs order is no longer an acceptable approach: ANZ v Mio Amico at [59], citing Aon at [99]-[101].

4. [20]

   What is required on an application such as this is medical evidence of sufficient specificity to enable the Court to be satisfied that the applicant is in fact unable to attend Court: ANZ v Mio Amico at [66]. As Young CJ in Eq noted in Forster v Harvey [2006] NSWSC 1112 at [8]:

5. [21]

   Barrett J made a same observation in Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22]:

Consideration

1. [22]

   The medical evidence relied upon in support of this application does not enable the Court to be satisfied that the applicant is in fact unable to attend the trial. Further, the evidence does not assist me either way as to whether the plaintiff’s health will be any better should I vacate the hearing today: Von Reisner v Chepurin [2012] NSWCA 418 per Ward JA at [4].

2. [23]

   Against this, two matters point in favour of an adjournment. First, the plaintiff’s case turns on evidence of two oral agreements. If the plaintiff does not give evidence in support of his case, his claim will fail. Second, it may not have been made clear to the plaintiff that his application for an adjournment today may be refused, notwithstanding his offer to pay any costs thrown away. In addition, although the plaintiff’s solicitors have worked hard in the time available to try and obtain medical evidence, it appears that some avenues may not have been exhausted, for example, requesting a copy of the discharge summary from Ryde Hospital or seeking the plaintiff’s consent to be provided with a copy of his medical records. Perhaps these matters should not be visited upon the plaintiff.

3. [24]

   Weighing those matters up, and also having regard to the plaintiff’s history of seeking to delay these proceedings by reason of non-specific medical conditions, I am not prepared to vacate the hearing of this matter today. However, I will permit the plaintiff an opportunity to attend to give evidence in support of his case either by video link from hospital or in person tomorrow, as I am told by the defendants’ counsel that it is likely that the case can be completed in the allocated hearing time if that course is followed and the other witness in the plaintiff’s case gives evidence today.

4. [25]

   For these reasons, I dismiss the notice of motion dated 23 April 2021. I order the plaintiff to pay the defendants’ costs of the notice of motion.