Federal Court of Australia

Nitin Pandey Pty Ltd v Curtin Chambers Pty Ltd, in the matter of Curtin Chambers Pty Ltd [2023] FCA 883

ORDERS

THE COURT ORDERS THAT:

1.    Order 3 made on 23 March 2023 (as varied by Order 1 made on 16 June 2023) be vacated.

2.    The plaintiffs’ application for an adjournment otherwise be dismissed.

3.    The plaintiffs pay the second to fifth defendants’ costs of the application for an adjournment.

THE COURT NOTES THAT:

1.    In accordance with Order 2 made on 16 June 2023, the proceeding is listed for a case management hearing at 9:30am on 3 August 2023.

2.    In accordance with Order 1 made on 23 March 2023 and Order 1 made on 9 May 2023, the proceeding will resume on 7 August 2023 with an estimate of five (5) days.

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

REASONS FOR JUDGMENT

GOODMAN J

A.    Introduction

1    On 28 July 2023, I heard an application by the plaintiffs to adjourn: (1) the mediation between the parties scheduled for 1 August 2023; and (2) the hearing dates scheduled for 7 to 11 August 2023. For the purposes of that application, I gave leave to the second plaintiff (Dr Pandey) to represent the first plaintiff, Nitin Pandey Pty Ltd (NPPL). At the conclusion of that hearing, I made an order vacating the previous orders requiring the parties to participate in a mediation, but otherwise dismissed the adjournment application. These are my reasons for doing so.

B.    Background

2    The first defendant (Company) is a corporate vehicle by which Dr Pandey and NPPL on the one hand, and Drs Pradeep Pathmaperuma and Tiffany Tam and their companies on the other, conduct a dentistry practice in Curtin in the Australian Capital Territory. I will refer to Drs Pathmaperuma and Tam and their companies as the active defendants.

3    The plaintiffs commenced this proceeding on an urgent basis on 18 November 2020. On 24 November 2020, Jagot J made orders restraining: Dr Pathmaperuma and his company from taking any further steps pursuant to a notice of dispute and notice of termination; and the plaintiffs and the active defendants from conducting the affairs of the Company other than in the usual course of business and – excluding any employment contract to fill any vacancy or vacancy which arises in the normal course of business – from: (1) entering into any material contract, commitment or liability (including any lease arrangement) if the obligations of any party to the agreement extended more than one month after the agreement; or (2) rendering the Company liable actually or contingently for an amount in excess of $10,000.

4    Her Honour also ordered the parties to engage in a mediation before a Registrar of the Court. That mediation was conducted on 23 February 2021 and did not produce a resolution. An informal settlement conference held on 2 December 2021 was similarly unsuccessful.

5    On 16 March 2022, I made an order by consent, the effect of which was to vary the orders made by Jagot J on 24 November 2020 so that the Company could enter into a lease.

6    In May 2022, I set the proceeding down for hearing to commence on 20 March 2023, with an estimate of five days.

7    On 24 February 2023 and 3 March 2023, the parties engaged in a further, unsuccessful, mediation.

8    On 20 March 2023, the hearing commenced. Dr Pandey was called. He was cross-examined over the course of 20, 21, 22 and 23 March 2023. At the conclusion of Dr Pandey’s cross-examination on 23 March 2023, Senior Counsel for the plaintiffs sought an adjournment of the hearing on the bases that: the plaintiffs wished to have the opportunity to consider whether to adduce evidence from Ms Melanie Thompson, the manager of Dr Pandey’s dental practice (to whom frequent reference had been made during Dr Pandey’s cross-examination); the hearing would most likely not be completed within the remaining one and one-half days allocated for the hearing and the plaintiffs wished to explore settlement of the proceeding. The active defendants opposed the application. After hearing argument, I made orders for the proceeding to be adjourned for further hearing on 7 to 11 August 2023; for the filing of any proposed affidavit evidence of Ms Thompson; and for the parties to engage in a mediation conducted by a private mediator with such mediation to occur in Canberra by 15 June 2023. I also ordered that the costs of the mediator were to be borne by the plaintiffs.

9    No further mediation has occurred. A mediation was scheduled to occur on 7 June 2023, however the mediator became incapacitated shortly before that day and it became necessary to re-schedule the mediation. It appears from the correspondence before the Court on this application that the parties agreed upon a further date of 1 August 2023 and upon a mediator, however when that mediator sought confirmation from the plaintiffs’ solicitors that the mediation was to go ahead on that day and did not receive such confirmation he withdrew (on 21 July 2023) his offer to act as mediator. Thus, at the time of the adjournment application on 28 July 2023, there was no mediator engaged to conduct the mediation.

10    At a point which is not able to be identified with precision, disagreement arose between the plaintiffs and their solicitors. Dr Pandey annexed to his affidavit in support of the present application some email correspondence. That correspondence, on its face, is incomplete. On the basis of the correspondence that is annexed to Dr Pandey’s affidavit and evidence given by Dr Pandey in the body of that affidavit, the following picture emerges:

(1)    there were discussions between Dr Pandey and his solicitors from July 2022 concerning evidence that Dr Pandey wished to include in his affidavit evidence. That evidence was not included in the affidavit evidence of Dr Pandey that was read at the hearing in March 2023, apparently on the basis that it would be reserved for use in the cross-examination of Drs Pathmaperuma and Tam. Dr Pandey wishes to include that evidence in a further affidavit;

(2)    the costs rendered by the plaintiffs’ solicitors exceeded the cost estimates that they provided, which required Dr Pandey to locate additional money quickly;

(3)    there is a dispute between Dr Pandey and the plaintiffs’ solicitors concerning payment of the plaintiffs’ costs. In this regard, the correspondence discloses negotiations between them concerning costs including that:

(a)    on 23 June 2023 the plaintiffs’ solicitors provided an estimate of costs;

(b)    on 18 July 2023, the plaintiffs’ solicitors wrote to Ms Thompson in the following terms:

Thank you for your email and your proposal.

We appreciate the steps that have already been taken, and that you are continuing to take, to arrange prompt payment of our outstanding costs, as well as future anticipated costs. Thank you for that.

Could you please advise how much finance Nitin has applied for, noting that on the last occasion the finance that he obtained did not cover our outstanding invoices?

We have spoken with our finance team and expeditated (sic) your proposal. Provided that sufficient finance has been applied for, the firm is willing to continue acting and defer payment of future invoices until around 11 September 2023, provided that Nitin agrees to:

1.    continue paying $5,000 per week in satisfaction of our outstanding invoices;

2.    sign a formal acknowledgement of debt in respect of our outstanding invoices;

3.    provide a charge over his personal and real property as security for our costs; and

4.    immediately pay the balance of our outstanding costs upon receipt of finance on or around 11 September 2023

We are waiting to hear if Dom and Michael are also willing to continue acting on this basis.

Could you please let us know if this arrangement is agreed, so that we can start preparing the appropriate documentation?

(c)    on 19 July 2023, Ms Thompson wrote to the plaintiffs’ solicitors:

Nitin has requested I follow up on his outstanding affidavit and seek further information before finalising the payment agreement you provided yesterday.

Nitin's affidavit

Can you please advise when we can commence work with you on Nitin's affidavit?

We first started discussing this when Nitin did the reply affidavit with Annabelle last July, which was a year ago. As explained in more recent emails and conversations this affidavit is very important to Nitin and will put into evidence a number of issues not in evidence at present.

Likelihood of trial being completed at hearing commencing 7th August

…

(d)    on the same day, the plaintiffs’ solicitors responded:

Thank you for your email.

Unfortunately we are unable to spend any further time providing advice until we have an arrangement for payment of our outstanding and future legal fees.

Our most recent estimate of costs was issued on 23 June 2023. It is attached again for ease of reference.

(emphasis in original);

(e)    on 21 July 2023, Dr Pandey wrote to the plaintiffs’ solicitors:

I would like to express my sincere thanks to you for providing me with the information on your required payment of fees and your patience in the past few days while I undertook a review of my financial position.

I have received advice from my financial planner/broker and my accountant. A number of issues have had to be taken into consideration in accessing my financial capacity to commit to your requests.

1. I was not expecting that the March trial would be adjourned and that further mediation and 5 days possibility. We did not discuss this possible eventuality and therefore my original financial commitment to this … centred around paying the costs for a 5 day trial which would be completed in March.

2. The additional cost of further mediation and a 5 day trial could not be fully assessed given we needed quick decisions at the trial in March on these matters.

3. My expectation is that a third week of trial may be required given that I expect the 5 day trial D August will not be sufficient time to finalise presentation of evidence and cross examination.

4. I believe it is also financially responsible for me to consider now, my capacity to pay costs if awarded against me at the completion of court proceedings.

Given my assessment of all of these matters I cannot accept the terms under which you require me to facilitate a payment plan including the necessity to take caveats or similar titles over my property and personal assets.

Could you kindly advise me what this means for our relationship moving forward?

As detailed clearly in your previous emails I assume that you will no longer be willing to provide me representation.

If this is the case, and I am to be unrepresented, then could you kindly advise what are the next steps given the mediation and trial are close.

(emphasis added)

(f)    on 24 July 2023 at 2:20pm, the plaintiffs’ solicitors wrote to Dr Pandey:

We refer to our email below.

Could you please advise by 4.00pm today if you will be terminating our retainer?

If we do not hear from you by 4.00pm today, we will regrettably have no other option but to terminate the retainer ourselves.

(I note that: (1) it is not clear from the evidence what the “email below” is; (2) bold emphasis is in the original).

11    On 25 July 2023, the plaintiffs filed a Notice of Termination of Lawyer’s Retainer, pursuant to r 4.04(2) of the Federal Court Rules 2011 (Cth).

C.    The application for an adjournment

12    On 24 July 2023 at 8:02pm, Dr Pandey wrote to the Canberra Registry of the Court in the following terms (as written):

Good evening Registrar,

My name is Dr Nitin Pandey.  I am the Plaintiff in matter ACD53/2020. 

As of Saturday 22nd July 2023 I am without legal representation as I have had cause to cancel my lawyer's retainer with law firm Thomson Geer.

Conversations today with the representatives at the Federal court desk indicate the requirement is to first provide this email seeking an adjournment of both the mediation set down for 1st August 2023 and the Trial which is to re-commence on 7th August 2023.

I have copied the other parties to this email as suggested.

Could you please advise me of any formal documents that I am required to submit to formally request the adjournment with the court. 

13    This email was copied to the solicitors for the active defendants.

14    On the morning of 25 July 2023, my Associate indicated to the parties that I would hear the adjournment application at the first opportunity convenient to the parties. As noted above, that hearing occurred on 28 July 2023. At that hearing, Dr Pandey relied upon an affidavit that he affirmed on 27 July 2023 and the active defendants relied upon affidavits of their respective solicitors made on the same day.

15    In addition to the evidence described at [10] above, Dr Pandey’s affidavit included evidence that:

(1)    he was reluctant to provide “caveats” over his personal and real property assets for future legal costs, particularly as “they refused to provide an estimate of what those future costs may be unless I signed the agreement permitting these caveats”;

(2)    the plaintiffs’ solicitors threatened not to represent the plaintiffs until Dr Pandey signed an “agreement for future legal costs” in circumstances where he had not been provided with information as to what those potential future costs could be;

(3)    he had been requested to place $220,000 into the trust account of the plaintiffs’ solicitors before 7 August 2023 with only 14 days’ notice in circumstances where he had not been required to do so prior to the March 2023 hearing;

(4)    on 21 July 2023, he was provided with a “pre-populated” notice of termination prepared by the plaintiffs’ solicitors;

(5)    he is heavily reliant upon legal advice and sought an adjournment so as to allow him to be fairly represented and to make further attempts to negotiate a settlement;

(6)    he suffers from severe hypertension and the “sudden prospect” of having to represent himself in this proceeding is physically and mentally debilitating for him; and

(7)    he was sincerely apologetic for the inconvenience and destruction caused by his application.

D.     Consideration

The mediation

16    The active defendants provided no substantive resistance to the application to vacate the mediation. In circumstances where, for the reasons discussed at [9] above, there is no mediator engaged to conduct the mediation and the resumption of the hearing is imminent, I acceded to the application to vacate the order requiring the parties to engage in a further mediation.

The hearing dates

17    The active defendants resisted the application to vacate the further hearing dates set down for 7 to 11 August 2023.

18    Section 37M of the Federal Court of Australia Act 1976 (Cth) requires the Court, when exercising its discretion in deciding whether or not to grant an adjournment, to do so in a manner which best promotes the over-arching purpose of facilitating the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. As I noted in Ghougassian v The Trustee of the Property of Ghougassian, in the matter of Ghougassian (a bankrupt) [2023] FCA 503, the Full Court of this Court in Dahdah v Platinum Distributors Australia Pty Ltd [2023] FCAFC 65 at [166] (Rangiah, Goodman and McElwaine JJ) explained that:

(1)    the over-arching purpose includes as objectives: the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; the efficient disposal of the Court’s overall caseload; the disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute;

(2)    no litigant has an entitlement to an adjournment for the obvious reason that the business of the Court must be managed with the objective of efficient organisation in the interests of all litigants that come before the Court: see Alhalek v Quintiliani trading as Kells Lawyers [2021] FCAFC 139 at [26] (Katzmann, Derrington and Anastassiou JJ);

(3)    when matters are set down for hearing on a particular day there is an expectation that they will be heard on the day on which they are set down: see Gabrielle v Abood (No 2) [2023] NSWCA 28, Bell CJ (Kirk and Adamson JJA agreeing) at [6]; and

(4)    adjournment applications are typically only granted where there are cogent reasons for doing so.

19    In Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75, the Full Court of this Court (Collier, Griffiths and Mortimer JJ (as her Honour then was)) said at [42] to [46]:

42    In considering an application for an adjournment, issues particular to the parties and the circumstances of the case must be considered. The Court must also determine how the grant or refusal of an adjournment will promote the overarching purpose of the civil practice and procedure provisions governing the exercise of its jurisdiction, here its appellate jurisdiction, including the objectives in s 37M(2) of the FCA Act, to which we have referred earlier in these reasons in summary form.

43    These objectives set out in statutory form some of the considerations earlier expressed as conditioning a discretion to adjourn a hearing. In Sali v SPC Ltd (1993) 116 ALR 625 at 629, Brennan, Deane and McHugh JJ said the Court is entitled to be conscious of the “effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties”.

44    In Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27, the plurality of the High Court recognised four matters which should, in the circumstances of that particular case, have been taken into account by the Court when exercising its discretion whether to grant an adjournment so as to allow substantial amendments to be made to the statement of claim. Those factors were: the explanation for the adjournment sought (at [108]), the parties’ choices to date in the litigation (and the consequences of those choices) (at [112]), the detriment to other parties, and the detriment to other litigants in the Court (at [114]).

45    In Aon at [5], French CJ referred to the broader considerations at work in considering an adjournment application:

In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system.

46    The plurality in Aon expressed a similar opinion at [93]:

[T]he rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost-effective resolution of a dispute has an effect upon the court and upon other litigants.

20    The starting point in my consideration was the explanation provided by the plaintiffs for seeking the adjournment and the potential prejudice to the plaintiffs if an adjournment were not to be granted. Given the overlap between these factors, I considered them together.

21    Dr Pandey’s evidence and submissions put forward, in essence, the following reasons for an adjournment:

(1)    he had to terminate the retainer of the plaintiffs’ solicitors in circumstances where they required payment of fees at short notice; they declined to provide him with an estimate of future costs and they threatened not to represent him if he did not agree with their requirements;

(1)    he wished to have the opportunity to obtain new legal representation in circumstances where he is not equipped to present the plaintiffs’ case because he lacks legal qualifications and experience and because he suffers from severe hypertension;

(2)    since July 2022 he has been requesting the plaintiffs’ legal representatives to place before the Court particular evidence which he suggested may have a “huge bearing” on the outcome of the proceeding and they have not done so; and

(3)    his objective is to settle the case as soon as possible.

22    The contemporaneous written evidence before me on this application did not support the contentions set out in [21(1)] above. Rather, the evidence suggested that the solicitors for the plaintiffs: (1) provided a costs estimate on 23 June 2023; (2) when requested, on 19 July 2023, to provide a cost estimate indicated that they had done so on 23 June 2023; and (3) on 18 July 2023 put the following proposal:

Provided that sufficient finance has been applied for, the firm is willing to continue acting and defer payment of future invoices until around 11 September 2023, provided that Nitin agrees to:

1.    continue paying $5,000 per week in satisfaction of our outstanding invoices;

2.    sign a formal acknowledgement of debt in respect of our outstanding invoices;

3.    provide a charge over his personal and real property as security for our costs; and

4.    immediately pay the balance of our outstanding costs upon receipt of finance on or around 11 September 2023

23    The nub of the dispute between the plaintiffs and their solicitors appears to be the refusal of the plaintiffs to provide security for the payment of the plaintiffs’ solicitors’ fees. Whilst Dr Pandey contended that the plaintiffs could not have been expected to provide such security in circumstances where the solicitors for the plaintiffs required payment at short notice and had declined to provide him with an estimate of costs, the evidence did not establish that either of those circumstances had occurred. Rather, the decision to terminate the retainer appeared to have been made by Dr Pandey because he and NPPL were not prepared either to provide funds in advance or to agree to terms deferring payment which required a form of security. It was clear from the evidence before the Court that it was Dr Pandey and not the solicitors for the plaintiffs who acted to terminate the retainer. To the extent that the solicitors for the plaintiffs indicated that they required some form of security (whether it be by way of payment into a trust account, or security over assets) for payment of their fees in order for them to continue to act, particularly in circumstances where an estimate of costs had been provided on 23 June 2023, I did not regard such indications as unreasonable.

24    I accepted that a likely consequence of the refusal of the application is that Dr Pandey, who lacks legal qualifications and experience, will need to conduct the remainder of the hearing on his own behalf (and to the extent that leave is granted, on behalf of NPPL) or to find new legal representatives prepared to take on the plaintiffs’ case at very short notice, and that as a result, the plaintiffs would be prejudiced. However, such prejudice would be a direct result of Dr Pandey’s choice to terminate the retainer of the plaintiffs’ former solicitors. Further, as Hallen J noted in Videnovic v Todorovic [2023] NSWSC 242 at [73], a self-represented litigant cannot be allowed to stand behind the shield of his or her own lack of knowledge, particularly when the consequence is prejudice to the other parties to the proceeding and to the Court’s limited resources. The prejudice to the active defendants and other litigants, are considered at [30] and [31] below.

25    As noted above, Dr Pandey claimed to suffer from severe hypertension. However, as the active defendants submitted, the evidence in support of this claim was inadequate, not rising above the level of bare assertion. The desirability of verified evidence from a medical professional as to the condition of a person claiming to be ill and how that condition affects them in their preparation for a hearing has previously been noted by the Full Court of this Court in Luck at [48] to [50] and Kennedy v Secretary, Department of Industry (No 3) [2016] FCAFC 149 at [34(3)] (Flick, Jagot and Bromwich JJ).

26    Dr Pandey also relied upon his desire to adduce further evidence from himself as a reason for an adjournment. This desire did not provide a sound basis for an adjournment, particularly in circumstances where: (1) Dr Pandey had discussed the inclusion of such evidence with his legal representatives since July 2022; (2) Dr Pandey gave evidence at the hearing in March 2023 and was cross-examined at length by counsel for the active defendants; (3) it may readily be inferred that a forensic decision had been made by the plaintiffs’ legal representatives by the time of the March 2023 hearing not to adduce the further evidence from Dr Pandey; (4) for the further evidence now to be introduced would require the service of a further affidavit from Dr Pandey and an application to recall him to the witness box, which application will likely be met by submissions that the active defendants would be prejudiced by the (very) late service of such evidence and by the active defendants having already made forensic choices concerning the cross-examination of Dr Pandey on the basis that his prior affidavit evidence comprised the universe of his affidavit evidence; and (5) Dr Pandey had not identified, even generally, the nature of the evidence that he wished to adduce or why it may have a “huge bearing” on the outcome of the proceeding.

27    Dr Pandey also relied upon his desire to resolve the proceeding. Such a desire is to be encouraged, however, it did not provide a basis for an adjournment of the resumption of the hearing. I considered that there had been ample opportunity during the course of this proceeding for a resolution to have been reached and that opportunity remained open despite the refusal of the application for an adjournment.

28    Thus, in summary, I was not persuaded that any of the reasons provided by Dr Pandey in support of his application, or that the likely consequences if an adjournment was not granted, were of sufficient moment to justify an adjournment of the hearing.

29    This was particularly so, when the interests of the active defendants and other litigants were taken into account.

30    In this regard, I took into account that: (1) the proceeding has been on foot, and the restraints the subject of the orders made by Justice Jagot in place, since late 2020; (2) the dispute concerns claims of oppression in an ongoing business; and (3) if an adjournment had been granted, the first dates available to the Court to continue the hearing would not have been until April 2024. In the circumstances, the active defendants were entitled to expect that the hearing continue and conclude within the further time allotted (7 to 11 August 2023). The prejudice to the active defendants if the completion of the proceeding had been deferred (again) was obvious.

31    Finally, but not insignificantly, I also considered the prejudicial consequences for the Court and for other litigants: see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; (2013) 250 CLR 303 at 321 [51] (French CJ, Kiefel, Bell, Gageler and Keane JJ); Alhalek at [26]; Gabrielle at [6]). In particular, the prejudice to other litigants awaiting hearing dates, which prejudice would have flowed from the vacation of the hearing dates and the allocation of fresh dates.

32    For the above reasons, I refused the plaintiffs’ application to vacate the hearing dates but acceded to their application to vacate the mediation.

Associate:

Dated:    1 August 2023

SCHEDULE OF PARTIES