Winn v Boss Lawyers Pty Ltd[2017] QCAT 356

REASONS FOR DECISION

1. [1]
   The applicant is a barrister in private practice.  She retained the respondent legal firm in 2016 to represent her in federal court litigation. The dispute that has arisen between them concerns the validity of a costs agreement for the litigation.  The applicant denies any liability for professional costs of $14,013.20 because she asserts the agreement is not fair and reasonable within s 328 Legal Profession Act 2007 (Qld) and wants to be reimbursed the $5,000.00 paid on account for failure of consideration.
2. [2]
   The resolution depends on credit based findings of fact about what the parties actually agreed and whether they each performed their side of the bargain.
3. [3]
   As the alleging party the applicant bears the onus of proof and a professional duty to cooperate with the tribunal to help it meet its stated objectives.

The context

4. [4]
   An oral hearing commenced on 29 March 2017.  It was adjourned partly heard while the respondent’s principal was still under cross-examination.  It was to resume on 3 May 2017.  On 27 April 2017 the applicant filed an application to stay the further hearing pending finalisation of a costs assessment application filed in Magistrates Court (inconsistently with the tribunal application to set the costs agreement aside).
5. [5]
   The applicant did not attend on 3 May 2017 without any warning or explanation and the matter was adjourned to 23 August 2017. The respondent applied for its costs thrown away.
6. [6]
   On 21 June 2017 the respondent filed a strike out application for litigation misconduct.  It was abandoned on 25 August 2017.
7. [7]
   The 23 August 2017 was fixed as the resolution date for all applications.
8. [8]
   On 21 July 2017 the hearing date was vacated and rescheduled for 30 August 2017.
9. [9]
   The parties were notified that the oral hearing of the application to set aside the costs agreement would resume part-heard at 2:00pm on 30 August 2017.
10. [10]
    Both parties were required to attend at that time in person and were advised that if either failed to do so the tribunal may proceed to make orders in their absence.
11. [11]
    They were also informed of the possibility of being represented by an agent or appearing by remote conferencing at the hearing by completing, filing and serving the standard forms at least five working days before the hearing recommenced.
12. [12]
    On 28 August 2017, two days before the scheduled hearing date, the applicant emailed the respondent (and copied in the QCAT registry) seeking adjournment for two weeks on the ground that she was unable to prepare or attend as, due to ongoing health issues, hospital appointments were scheduled for the 29 August 2017 and 4 September 2017.  An attached doctor’s certificate stated she was unfit to appear until 14 September 2017. Attached to the certificate was a set of instructions to patients from a skin cancer clinic about post biopsy care. A new hearing date of 15-17 September or 26 September 2017 was proposed.
13. [13]
    The respondent failed to respond to the email or consent to an adjournment.  The applicant informed the registry by email at 1:00pm on 28 August 2017 that the respondent was being unreasonable, but she did not propose appearing by agent or even by telephone.
14. [14]
    The tribunal convened at 2:00pm on 30 August 2017.  The respondent appeared in person and was represented.  True to her word the applicant did not attend.
15. [15]
    In the circumstances the applicant’s emails to the respondent were treated as an application to vacate or adjourn the hearing date.
16. [16]
    Mr Cohen for the respondent submitted that an adjournment should be refused, the application to set aside the cost agreement dismissed with costs, and the thrown away costs of the previous unexplained non-appearance on 3 May 2017 fixed at $1,947.49.

The applicable principles

17. [17]
    The decisions to adjourn or to proceed with a hearing in the absence of a party are both case management decisions.  The court is required to exercise a discretion consistently with the overriding objective of practical justice in light of the particular circumstances of the individual case.
18. [18]
    The tribunal’s adjournment power is conferred by s 57(1)(c) QCAT Act.  It is exercised mindful of the Act’s stated objects and the tribunal’s functions for facilitating the quick, cheap, fair and just^[1] resolution of disputes between predominately self-representing parties.
19. [19]
    In deciding adjournment applications regard is had not only to the interests of the rival litigants but also the effect on finite judicial and court resources; the integrity of the listing system and competing claims of other pending cases; the efficient management of a busy and congested tribunal; and the importance of certainty and finality to the due administration of civil justice.
20. [20]
    As the majority of the High Court in noted Scali v SPC Ltd^[2] “what might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources”.
21. [21]
    In addition, Gleeson CJ pointed out in State Pollution Control Commission v Australian Iron and Steel Pty Ltd^[3] that the days have long gone “when courts will automatically grant an adjournment of a case simply because both parties consent to that course, or when a decision to grant or refuse an adjournment sought by one party is made solely by reference to the question whether the other party can adequately be compensated in costs”.^[4]
22. [22]
    However, as always the ultimate aim of the tribunal is the attainment of practical justice.  Generally speaking, an adjournment will seldom be refused where the practical effect will be to terminate proceedings and extinguish a right of action.  The adjournment discretion will usually be exercised in favour of an application where delay will not unduly disadvantage or inconvenience the opponent and refusal will be substantially unjust to the applicant or risk procedural unfairness.^[5]
23. [23]
    When an adjournment is granted, the party whose conduct is responsible for the adjournment is usually ordered to pay the additional costs incurred by the other party as a result of the adjournment.
24. [24]
    The adjournment of proceedings should only be allowed to a “specified day”.  It would not ordinarily be proper to adjourn proceedings generally or indefinitely.^[6]

Some cases on point

25. [25]
    In Maryvell Investments Pty Ltd v Coadys & Anor^[7] medical reports indicated the defendant suffered from a serious illness. Hansen J held that the failure of a magistrate to give appropriate consideration to the application for an adjournment was properly described as denying procedural fairness.^[8]
26. [26]
    In Ellis v Marshall^[9] Campbell J refused a plaintiff’s application to vacate a hearing date, where after the date was fixed, but before being notified, she had booked an overseas holiday.
27. [27]
    In Jacobson v Briggs^[10] parties to a claim and counterclaim were notified of a magistrates court hearing well prior to the return date. The defendant told his lawyer that the hearing would have to be adjourned because he had important business overseas to attend to on that day. When the matter came on for hearing his counsel appeared and requested the matter be adjourned.  No explanation was given to the magistrate as to the nature of the overseas business or why it was so urgent that he be there.  No affidavit or any evidence in support of the application was filed. The application was opposed.  In refusing the application, the magistrate said that there was not sufficient detail as to why the party was absent.  The magistrate then heard the matter, made an order on the claim and dismissed counterclaim.
28. [28]
    In fact the appellant was not overseas but was simply interstate. In dismissing an appeal Beach J held it is entirely within the discretion of a magistrate whether or not to grant an application for an adjournment of current proceedings and that it was incumbent upon the person making an opposed application to place before the court appropriate material in support of the application.^[11]  Accordingly, it could not be said in the circumstances that by refusing his application the appellant was denied natural justice.
29. [29]
    The plaintiff in Decker v Hopcraft^[12] (a defamation action) applied for an adjournment on medical grounds the day before the scheduled hearing.  The adjournment was opposed.
30. [30]
    Medical certificates and supporting submissions were filed but the applicant did not appear personally because he said he was not well enough.  The matter was heard in his absence.
31. [31]
    Warby J observed that Neuberger J’s statement in Fox v Graham Group Ltd^[13] suggesting that a court faced with an application to adjourn on medical grounds made for the first time by a litigant in person should be hesitant to refuse the application is subject to a number of qualifications:

• First, the decision to adjourn is always the court’s to make; it cannot be forced upon it.  As Norris J observed in Levy v Ellis-Carr:^[14]

Registrars, masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently "medical" grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge.

• Secondly, the evidence supporting the application must be carefully scrutinised by the court. To quote Norris J in Levy v Ellis-Carr again:

… (the medical practitioner) should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process… . The court can then consider what weight to attach to that opinion… No judge is bound to accept expert evidence… ^[15]

• The third main qualification is the question of whether the litigant can or cannot participate in the hearing effectively. There is not always a straightforward yes or no answer. There may be reasonable accommodations that may enable a litigant in poor health to participate adequately in civil litigation.
• Fourthly, the question of whether effective participation is possible depends not only on the medical condition of the applicant but on the nature of the hearing, the issues, and what role the party is required to play. 
• The fifth point is that, sometimes, it may appear to the court at the outset that in truth the matter before it is one on which one or other side is bound to succeed. In Boyd & Hutchinson (A Firm) v Foenander^[16] the court proceeded with the hearing of an appeal on the basis that it would refuse an adjournment if it concluded, as it did, that the appeal had no real prospect of success.

32. [32]
    In applying these principles to the application to adjourn Warby J proceeded in accordance with the overriding objective of dealing with cases justly and inexpensively. A small claim should be managed efficiently and without avoidable delay.
33. [33]
    He found that the plaintiff was physically fit to attend and that there were reasons to be sceptical of contentions as to his cognitive difficulties. The medical evidence the plaintiff produced to substantiate his claims of cognitive impairment and ability to conduct the hearings was unimpressive. The GP's certificate used the words "cognitive impairment" but did not elaborate in any way.  While the certificate was designed to justify absence from work, what kind of work was not specified. It did not follow from the GP’s stated opinion that the plaintiff would be unable to cope with the hearing. Furthermore, the GP’s letter was two months’ old and the documentary evidence showed that the plaintiff was able during that period to compose lengthy and complex correspondence on legal matters.  His correspondence in relation to the action, including his present application and his most recent correspondence, suggested a lively intelligence operating effectively.
34. [34]
    His Honour accepted some cognitive impairment, but not to the extent that the impairment required an adjournment to deal justly with the matters raised. The evidence did not show the plaintiff would be so impaired that he could not conduct the hearing adequately. If it were necessary, reasonable accommodations for any problems he might have experienced could have been made.
35. [35]
    His Honour refused the adjournment and proceeded to determine the substantive applications because the plaintiff had voluntarily absented himself although he was fit enough to participate in the proceedings. Furthermore, the right orders to make were so clear that it was not unjust to proceed in his absence.
36. [36]
    Important factors in reaching a conclusion that one side is assured success on appeal are the nature of the applications that are before the Court; the fact that their merits have been debated in submissions or correspondence; whether the merits of those applications and the issues have been clearly identified; whether the parties' positions are sufficiently identified; and if the matter has an appropriate resolution which is so plain and obvious that it could not be said that the plaintiff suffers any relevant prejudice by reason of his ill-health.
37. [37]
    The court is, of course, more cautious in cases involving final determinations on the merits such as an order striking out a statement of case or part of it. Nonetheless, the factors identified above are relevant in both contexts.
38. [38]
    The issue in Thomson v Smith^[17] (an appeal from the dismissal of a 1990 personal injuries claim for nonappearance under UCPR 476(2)) was whether, despite a history of extreme delay and failure to comply with directions, it was procedurally unfair to dismiss a six week adjournment request on the morning of trial because the plaintiff claimed to be unfit to give instructions. In reality, neither party was really ready to proceed because even if the trial had proceeded as listed the defendant would have had to apply for leave to amend.
39. [39]
    On the first day of the trial the presiding judge found that the applicant was capable of, but strongly averse to, bringing the case to finality despite good prospects of success, and even if the adjournment was granted she would find some other pretext to delay indefinitely.
40. [40]
    The judge noted Mrs Thomson’s conduct in not preparing for trial, not arranging to be in Brisbane when the trial started, not retaining solicitors to prosecute the case to a hearing of the trial, and seeking (belatedly) a report to support an adjournment application. Further, she had supported her application by a false claim that the defendant had reneged on its agreement to initial consent to the adjournment, and was able to give adequate and timely instructions, in the opinion of the learned judge.
41. [41]
    The following day when the judge invited Mrs Thomson to begin the case, she responded she could not present it because she was not fit to do so.  The defendant then sought judgment.  Mrs Thomson asked for an adjournment.  Despite her claims to the contrary the judge held she was not in fact prosecuting her case and ordered that the claim be dismissed.
42. [42]
    The complaint on appeal was that the trial judge failed to have sufficient regard to medical evidence of partial temporary incapacity.
43. [43]
    The majority (McPherson and Muir JJA; Jerrard JA dissenting) dismissed the appeal.
44. [44]
    McPherson JA said:^[18]

There cannot be an effective appeal against the order refusing the plaintiff an adjournment of the trial of the action, because, even if it were to succeed, no order the Court could or can make on appeal in respect of it is capable of putting the clock back to 15 June 2005.  The judgment against her would remain unaffected by any such order.

45. [45]
    Muir JA chronicled the exceptional delays in the prosecution of the proceedings over more than a decade and applied the Sali v SPC Ltd principles concluding:^[19]

The appellant has not shown that the primary judge acted on any erroneous principle, made any mistake of fact or that the exercise of his discretion miscarried.  In particular, the evidence does not disclose that the primary judge failed to give due weight to the fact that the refusal of the adjournment would result in the loss of the appellant’s cause of action.

46. [46]
    In Jeray v Blue Mountains City Council^[20] the applicant in a Land and Environment Court proceeding sought to postpone a 10 day trial for three months because of an undisclosed medical condition, giving two weeks’ notice in a letter sent to the registry the day before a final directions hearing.
47. [47]
    He did not attend the directions hearing.  The trial judge treated the letter to the registry as an application to vacate the hearing date, stood the matter over for a week and directed affidavits to be filed, including from the doctor issuing the medical certificate, before the trial date.
48. [48]
    The applicant did not comply with the directions or attend the pre-trial hearing. The adjournment was opposed and refused because:^[21]

The evidence in support of the application is inadequate.  Even assuming [that] the untested opinion of a medical practitioner in a two line medical certificate might, in other circumstances, provide sufficient evidence to justify the vacation of a hearing … (it) does not in this case. As to medical report of this type more generally:  see Magjarraj v Asteron Life Limited [2009] NSWSC 1433 at [22].  Firstly, the factual foundation of the opinion (the medical condition) is not revealed in the certificate …

Secondly, it is obvious that the certificate has not been written with any particular care about what is said.  The certificate says (the applicant) “will be unfit” for a period which, in part, precedes the date on the letter was written.

…

I would have thought a medical practitioner would understand that it is no light matter for a court not to proceed to hear a case on dates fixed … (and to) apply some thought to the way in which a certificate directed to that objective might be expressed.

49. [49]
    The judge directed that a copy of the order and reasons for dismissing the adjournment application be provided and warned that if the applicant or someone representing him and ready to proceed did not appear there was a possibility that the proceeding would be dismissed with costs.
50. [50]
    He ordered any application for dismissal together with affidavits in support to be filed and served.
51. [51]
    The applicant complained that since the initial orders were unfair so were the pre-trial orders and both were invalid, but his application for leave to appeal was dismissed because:^[22]

There was no denial of procedural fairness.  (He) was given notice of the hearing.  He was provided with the notices of motion and evidence that would be relied on should he not attend.  He had previously been given an indication of what he had to do to vacate the hearing dates if he wanted to apply to do so.  The matter was one requiring expedition … ample time was given for (him) to attend to and deal with the matters in a manner that the time permitted.  (He) failed to attend hearings, of all of which he had notice.

52. [52]
    Allsop P agreed with the primary judge that:^[23]

… he is not prepared to take such steps as are necessary, including attending a hearing scheduled as a final hearing, which might determine the issues he seeks to raise in each proceeding.

53. [53]
    Furthermore, it was held that the orders gave the applicant:^[24]

… notice of: (a) what might occur; (b) what had to be done to participate; (c) what the consequences would be if he did not attend and participate; and (d) what steps he could take to remedy his position if he did not participate and the orders were made.  (The rules) enabled (him) to move to set aside the orders made in his absence.  He did not take that opportunity.  He did, however, take the opportunity within that time to file (an) appeal.

54. [54]
    In Cook v ASP Ship Management Pty Ltd^[25] the applicant appealed on a question of law from a decision of the Administrative Appeals Tribunal to refuse an application for an adjournment in breach of its obligation to give all parties a reasonable opportunity to be heard.
55. [55]
    The applicant sent a fax a fortnight prior to the hearing date saying that it was impractical to appear at the tribunal hearing without his wife, who was unwell.
56. [56]
    A telephone directions hearing was fixed but the applicant did not participate despite his prior agreement.  The original three trial dates were confirmed in his absence.
57. [57]
    A week before the first day of trial he sent another fax saying his wife was unfit to attend, and therefore, neither could he.
58. [58]
    The tribunal listed an urgent telephone directions hearing the following morning but that did not suit him.  The information he provided by fax about his wife’s incapacity was held to be insufficient and the trial dates were again confirmed.
59. [59]
    The application to adjourn was refused on the same grounds.
60. [60]
    When the matter came before the tribunal it proceeded in the applicant’s absence, on the basis of the material before it.
61. [61]
    The appeal was dismissed because the applicant refused to provide additional supporting material or attend phone directions to do so.  The tribunal was not obliged to accept his assertions about his own disabilities or his wife’s infirmity, nor accept that her unavailability was a reason on its own to adjourn.
62. [62]
    Whether in a particular case a failure to adjourn amounts to a denial of natural justice is a fact sensitive question to be decided in all the circumstances.
63. [63]
    The extent of participation in proceedings required by natural justice depends on the statutory context, the procedures adopted and the consequences of non-participation.
64. [64]
    Natural justice requires providing a party reasonable opportunity to present his or her case, not that the party must be heard orally or allowed to cross-examine to the point of exhaustion.
65. [65]
    If a party can show that, through no fault of his or her own, he or she was denied the chance to squarely put and support his or her case and suffered a practical injustice because of it, the order can, prima facie at least, be set aside and the case reopened.
66. [66]
    In Re: Potter; ex parte Coppin,^[26] Beech J held at [40] to [41] that where:

… natural justice does not, even arguably, require that, if an applicant for an order setting aside an eviction order with notice of the hearing is, without explanation, absent at the time appointed for the hearing, the application be adjourned to give the applicant a further opportunity to appear on the application. The potential prejudice to the absent applicant, and potential consequential injustice from proceeding in the applicant's absence, are limited, (by the fact) that any extenuating circumstances that might explain the absence of the applicant can be considered in determining whether to set aside the order … (if) in all the circumstances, it is just to do so.

Moreover, the statutory requirement for expeditious resolution of all applications militates against a conclusion that natural justice required the court to adjourn the application in (the applicant’s) unexplained absence.

67. [67]
    Vos J in Governor and Company of the Bank of Ireland v Jaffery^[27]  made two pertinent points about what amounts to proper medical evidence in referring to a short GP's letter confirming that the defendant had been signed off work for three weeks.  First, he said this, at [19]: "it is important to note that a person's inability to work at a particular job is not necessarily an indication of his inability to attend court to deal with legal proceedings. It may be but it may also not be." At [58] Vos J then indicated that he took into account the contents of the defendant's litigation correspondence with the claimants over a lengthy period.

The medical certificates

68. [68]
    Dr Brant Bosch is the applicant’s GP at Strathpine. On 24 May 2017 he certified that she “will be unable to complete her court documents” (until 31 July 2017) because of medical condition requiring surgery and extended treatment for the next six weeks.
69. [69]
    On 21 July 2017 a medical imaging appointment was set for 29 August 2017 – the day before the resumed hearing.
70. [70]
    Dr Bosch wrote out another medical certificate on 8 August 2017 in much the same terms as the earlier one stating that she was unable to complete court documents and attend court hearings before 14 September 2017.

Analysis and conclusions

71. [71]
    The applicant did not turn up for a hearing set for 3 May 2017 and has not since explained her inability attend the resumption of the hearing that was partly heard on 29 March 2017.  Two days before the postponed hearing resumed she advised that a hospital appointment had been booked for the day before the hearing date and produced an elliptical GP’s certificate dated 8 August 2017 (a fortnight after the 30 August date was fixed) to the effect that she would be unfit for court until 14 September 2017 (14 days after the 30 August 2017).
72. [72]
    Neither the specific reason for the applicant’s unfitness nor her symptoms or prescribed treatment were referred to. The only available inference is that her medical condition involved undergoing a biopsy for skin cancer.
73. [73]
    For a practising barrister the applicant has acted shamefully, disrespectfully and discourteously in conducting litigation in the tribunal.
74. [74]
    She has shown little or no regard for the need for tribunal proceedings to go ahead on time and avoid preventable delay.
75. [75]
    She did not notify the other side or the tribunal that she needed to apply for a short adjournment as early as possible so another case could be put on standby.
76. [76]
    Nor did she support her application with proper information or inscrutable expert opinion.
77. [77]
    She is very egocentric and preoccupied with her own needs and perceived interests.
78. [78]
    However, I am reluctant to dismiss her claim out of hand without giving her one more chance to appear and present her case as best she can including in particular finalising credit based cross-examination likely to have an important influence on my decision about the merits of the dramatically conflicting contentions of the parties.
79. [79]
    The tribunal will not tolerate any more laxity or tardiness.  Last minute unsubstantiated attempts to vacate or put off another hearing date will not be well received and risks dismissal with costs.
80. [80]
    As for the last two wasted days – one unexplained and the other needlessly late and peremptory – I am satisfied that the overall interests of justice call out for an order in the respondent’s favour fixed in both cases at $1947.49 (total $3894.98) to be paid by 4:00pm on 8 November 2017.
81. [81]
    Accordingly, the resumed hearing (partly heard on 29 March 2017) will be held in Brisbane at 10:30am on 15 November 2017.