Douglas v Mikhael

PAYNE JA: On 18 August 2023, Richmond J determined a case between Mr Douglas and the respondents: Douglas v Mikhael & Ors [2023] NSWSC 979. On 17 November 2023, Mr Douglas filed a notice of appeal. On 13 December 2023, the appeal was set down for a one day hearing on 2 April 2024.

The preparation for the appeal is substantially advanced:

Complaints were made by the respondents about the contents about the Black Book and proposed Blue Book. On 6 March 2024, Registrar Jones ordered:

On 15 March 2024, the appellant filed a notice of motion seeking the following orders:

The matter came before me for directions on the morning of 18 March 2024. Mr Douglas appeared for himself and Mr Munro appeared for the respondents. I explained to Mr Douglas, who was then unrepresented, that to facilitate the hearing of his appeal I would be prepared to make orders setting aside the Registrar’s orders about the contents of the Black and Blue Books and the award of costs made in relation to two directions hearings. I would also be prepared to make orders in substitution, effectively deferring questions about the admissibility of those documents and consequent costs orders to the hearing on 2 April before three judges of the Court. Mr Douglas resisted my taking that course for a variety of reasons and indicated that he was not able to make submissions about this motion until Mr Duc of counsel, who had been briefed to appear, was available.

I arranged for the matter to be stood down until 4:30 pm to allow for Mr Duc, who was not in Sydney, to appear via audio-visual link. I am grateful to Mr Duc and Mr Munro for their co-operation in facilitating such a speedy hearing. Mr Duc confirmed that he was briefed as counsel to appear for Mr Douglas on 2 April 2024 but had expressed to Mr Douglas significant reservations about the contents of the appeal books. To facilitate a determination of the real issues in dispute, and in circumstances where Mr Douglas had been self- represented at the time of the Registrar’s orders, I indicated that I was prepared to set aside the orders of the Registrar about removal of material from the Blue and Black Books together with the orders for costs of two directions hearings that had been made by the Registrar. Neither Mr Duc nor Mr Munro wished to be heard against the making of those orders.

I informed the parties that I would grant leave to file additional submissions (of no more than five pages) about the question of whether the material which was not before the primary judge should be received by the Court as further evidence pursuant to s 75A (7) and (8) of the Supreme Court Act 1970 (NSW) and, if so, what use the Court should make of that evidence.

On the motion, Mr Duc read the affidavit of Mr Douglas sworn 15 March 2024 but did not object to a limitation being imposed, namely that pursuant to s 136 of the Evidence Act 1995 (NSW) the contents of that affidavit be received by the Court on the motion (not the appeal proper) as submissions and statements of belief by Mr Douglas but not for the truth of any facts there stated. I made that limiting order.

Mr Duc submitted that I should adjourn the appeal for some months as Mr Douglas was under significant stress in preparing his appeal and, it was submitted, may be able to obtain further medical evidence in support of his adjournment application. Having considered all of the material advanced by the appellant on this topic, I refuse that adjournment application. Simply put, now that Mr Duc has indicated he is briefed and available to appear on 2 April 2024, subject to my making orders excusing the non-compliance with aspects of the rules in relation to the filing of the appeal books (which I propose to make), there is no reason to think that the matter cannot be heard and determined on 2 April 2024 affording fairness to each party. The stress to which Mr Douglas deposed will be significantly ameliorated by the availability of competent representation for him on 2 April. An adjournment at this late stage would adversely affect the interests of other litigants in the Court whose cases await hearing. Proceeding with a long set down appeal on the appointed day is in accordance with the overriding purpose of Part 6 of the Civil Procedure Act 2005 (NSW).

There remains the question of leave to issue subpoenas which Mr Douglas sought in his motion dated 15 March 2024. Mr Duc indicated that he was not in a position to address me on the afternoon of 18 March on this subject but would be in a position on 19 March to deal with the question. Accordingly, I stood over the hearing of proposed order 3 of the motion for hearing at 4pm on Tuesday 19 March 2024. If Mr Douglas is successful in this application, I will revisit the question of an adjournment.

Accordingly, the orders I make are as follows: