FEDERAL COURT OF AUSTRALIA

Young v Hughes Trueman Pty Ltd (No 2) [2017] FCA 87

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application dated 27 January 2017 brought by Ms Young to adjourn the hearing of the stay application be dismissed with costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Revised from transcript

BROMWICH J:

1    This is an application by way of an interlocutory application for the adjournment of the hearing of a stay application by way of a prior interlocutory application. Both the adjournment application and the stay application to which it relates are brought in relation to a special costs application dated and filed 21 November 2016.

2    The special costs application is brought by the successful respondents in resisting an application before me for an extension of time to file a notice of appeal from a decision of the Federal Circuit Court of Australia dismissing an application to set aside a bankruptcy notice: Young v Hughes Trueman Pty Ltd [2016] FCA 1176. The respondents’ special costs application is also brought against the two solicitors involved in the matter acting for Ms Young, Mr Newell and Mr Muriniti, and also against Mr Muriniti’s law firm (collectively the Solicitors). The special costs application is listed for hearing on 27April 2017 before me. The present adjournment application is brought only by Ms Young.

3    The substance of Ms Young’s adjournment application is that Mr Newell is unwell by reason of needing cataract surgery and that he is therefore unable to appear for her on the stay application listed for hearing today. His circumstances are detailed in an affidavit of Mr Muriniti, who is the principal of the firm of solicitors that employs Mr Newell. That affidavit sworn 27 January 2017 details, by way of hearsay evidence, problems with Mr Newell’s eyesight which first emerged in mid-to late 2015 but got seriously worse by the later part of 2016 going into early 2017.

4    By October 2016, Mr Newell had difficulty reading and using his computer and was only able to do legal work with great difficulty. By December 2016, Mr Newell was unable to see cars when he was crossing the street or ascertain the colour of traffic lights. As all this was happening, Mr Newell was involved in various court actions brought by Ms Young by way of challenge to adverse outcomes in prior litigation.

5    In particular, and as relevant to this adjournment application and the related stay application, on 9 December 2016 an application was filed in the High Court on behalf of Ms Young for an order to show cause in relation to both the decision of the Federal Circuit Court and my decision, referred to above. That is, Ms Young has taken the unusual step of seeking constitutional writs in respect of those decisions rather than proceeding by way of an application for special leave to appeal.

6    Ms Young’s show cause application was raised at a 6 December 2016 case management hearing for the special costs application. As well as listing the special costs application for hearing on 27 April 2017, the orders made provision for filing and serving any interlocutory application seeking a stay of the special costs application hearing and listed that stay application for hearing at 2.15 pm today, Thursday, 9 February 2017. Accordingly, by 6 December 2016, Mr Newell’s eyesight problems were well-known, albeit that it appears that they worsened further after that time. Also well-known was the pending stay application. Despite that, no mention was made of any of these problems at the case management hearing on 6 December 2016.

7    There is no evidence before the Court that any regard was had to a potential clash between Mr Newell’s need for eye surgery and the hearing of the stay application. However, I was informed from the bar table that had been considered and that it had originally been thought, as the evidence does suggest, that the original timing for the surgery was for Mr Newell’s right eye to receive cataract surgery on 19 January 2017 and his left eye to receive that surgery on 2 February 2017. Apparently it was hoped that he would be sufficiently recovered by today, seven days later, to be able to appear for Ms Young on the hearing of the stay application or at least on the hearing of the adjournment of that stay application.

8    There is no evidence that the Court date was brought to the attention of the treating medical practitioners. There is no evidence that any steps were taken to find alternative representation for Ms Young at the hearing of the stay application, including by way of the Bar Association pro bono scheme. It was said from the bar table and by reference to evidence given at the hearing of the proceedings before me last year that Ms Young is in a financially difficult situation with her only asset being her house. However, it remains the case that no steps were taken, including by reference to the pro bono scheme. By contrast, counsel for the respondents, who was also their counsel at the hearing before me on 21 July 2016, became unavailable for the hearing of the stay application and alternative counsel were organised. Overall, there's no evidence to suggest that some arrangement could not have been made for Ms Young in relation to the stay application if it was truly needed.

9    In terms of the written submissions that were ordered to be filed and served for the hearing of the stay application as part of the orders made on 13 December 2016, Ms Young relies upon the submissions made by counsel for Mr Newell, Mr Muriniti and Mr Muriniti’s law firm, that is, the Solicitors. It is not apparent to me, despite what has been said at the bar table, what additional value or input Mr Newell could have contributed to the stay application, although doubtless as the person who, I am told from the bar table, drafted the show cause application, he could have given some extra dimension to that. The written submissions made on behalf of the Solicitors do assert the strength to some extent, at least, of the show cause application in the High Court. Mr Muriniti has acted for Ms Young since 2008 and has a detailed knowledge of the proceedings giving rise to the special costs application and he is here today representing Ms Young. As I have already said, even if there was some disadvantage in having Mr Muriniti appear and Mr Newell not appear, very limited explanation has been given as to why alternative representation was not organised, it seems principally by reference to financial reasons.

10    A further consideration is that the Solicitors have counsel briefed to appear for them on the stay application as well as an instructing solicitor and have presumably incurred costs in preparing for the stay application and, more importantly, being here for it to be heard. No proposal has been made as to how those costs thrown away are supposed to be met, nor the costs of the respondents.

11    In all the circumstances the case for an adjournment of the hearing of the stay application has not been made out. The adjournment application brought by Ms Young is therefore dismissed with costs. The hearing of the stay application brought by Ms Young and by the Solicitors, as I have already defined them, will now proceed.

Associate:

Dated:    24 February 2017