Ant Projects Pty Ltd v Morgan Brooks Direct Pty Ltd [2018] QDC 111

DISTRICT COURT OF QUEENSLAND CITATION: Ant Projects Pty Ltd v Morgan Brooks Direct Pty Ltd & Others [2018] QDC 111 PARTIES: ANT PROJECTS PTY LTD (Plaintiff) V MORGAN BROOKS DIRECT PTY LTD (First Defendant) AND RICHARD WILLIAM AULSEBROOK (Second Defendant) AND MORGAN ASHLEIGH BROOKS (Third Defendant) FILE NO/S: DC No 767 of 2017 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: Ex tempore reasons delivered on 4 June 2018 DELIVERED AT: Brisbane HEARING DATE: 4 June 2018 JUDGE: Porter QC DCJ ORDER: On the undertaking of the defendants not to seek to adjourn the trial for any reason relating to the health or availability of the third defendant to give evidence: 1. The trial of the proceedings be adjourned to 19, 20 and 21 September 2018; 2. If Mr Hulsebrook intends to seek leave to represent Ms Brooks at trial, and she will not be present at trial, that he cause, by 5 September 2018, an affidavit by Ms Brooks to be filed giving him authority to do so; 3. The plaintiff file a written opening by 5 September 2018; 4. The defendants file a written opening by 12 September 2018; -- 1 of 6 -- 2 5. Any application in this proceeding be referred to the Associate to Porter DCJ when filed; 6. The defendants play the plaintiff’s costs of this application for the adjournment and any costs thrown away by the adjournment of the trial, on a standard basis. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ADJOURNMENT – where the health of the third defendant is the basis for the adjournment application by the defendants – whether this is sufficient basis to justify adjournment of the trial. COUNSEL: S J Hogg for the plaintiff R W Aulsebrook, appearing in person and appearing by leave on behalf of the First and Third Defendant SOLICITORS: Anderssens Lawyers for the plaintiff Introduction [1] In these proceedings, the plaintiff seeks damages for breach of a lease of certain premises against the first defendant, a company, and seeks payment of those damages by the second and third defendants under a guarantee given of the first defendant’s obligations under the lease. The second defendant, Mr Hulsebrook, is married to the third defendant, Ms Morgan. [2] Mr Hulsebrook is the sole director of the first defendant. He requires leave to appear on this adjournment application for the company and also for the second defendant, his wife, Ms Morgan. There is no affidavit or other evidence from Ms Morgan granting Mr Hulsebrook authority to appear on this occasion, but Mr Hulsebrook has previously given leave to appear on behalf the other defendants on an adjournment application by Ryrie J, and I note that her knowledge and intention that he appear for her on this occasion can be inferred from exhibit 2, in any event. I, therefore, give him leave to appear on this application for the other two defendants. [3] This matter is listed for trial to commence next Monday, on 11 June 2018. Mr Hulsebrook applies to adjourn the trial for three months, or such other time as the Court would determine. That application, if it has been made in writing, has not made it to the file, but in any event, I accept the application being made orally by him today. That was the purpose of this hearing. [4] He also flagged an application for leave to amend his pleading and to seek the particulars. He didn’t seek to rely on that application in respect of his adjournment application or to have that relief resolved today, because it had only been raised this morning, and it was his express wish to continue with the adjournment application rather than have all the matters dealt with together at a later time this week. The sole basis for the adjournment is therefore Ms Morgan’s health. Background of the Matter [5] The claim was filed on 2 March 2017. The company filed the defence and counterclaim on 4 April 2017 and the plaintiff filed a reply and answer to the company’s defence on 18 April 2017. On 27 April 2017, Judge Reid made orders for -- 2 of 6 -- 3 substituted service on Mr Hulsebrook and Ms Brooks. On 12 June, Mr Hulsebrook filed the defence and counterclaim in substantially similar form to that filed by the company, and the plaintiff a reply in answer and, subsequently, an amended reply and answer. On 12 June 2017, Ms Morgan filed a conditional notice of intention to defend, and, on 23 June 2017, a defence and counterclaim. It is also in substantially similar form to the pleading filed by the company, as is the reply to Ms Morgan’s pleading filed by the plaintiff. [6] On 24 October 2017, Judge Andrews heard the plaintiff’s application to dispense with the request for trial date. One would observe that, at that time, the matter had proceeded rather promptly: the matter had only been underway for a little under eight months. [7] In general terms, the competing submissions were to this effect. The defendants claimed they had not delayed the proceedings and had proper objections to the plaintiff’s pleading and disclosure. The plaintiff contended that there were no such proper objections on disclosure and pleading issues, and the defendants were inappropriately delaying the proceedings. Judge Andrews made orders designed to resolve those issues by delivery of a 444 letter by the defendants and respondents by the plaintiffs, with a timetable for filing applications covering the period through to December 2017. [8] On 13 December 2017, the plaintiff again applied to dispense with the request for trial date. It appears that the steps contemplated by Judge Andrews’ orders had been taken but that the endpoint was the defendants indicated they would need to amend their pleadings and that the matter would not be ready for trial until January 2018. [9] On 18 December 2017, Mr Hulsebrook swore that instructions had been given to his erstwhile solicitors for the amendments to be done, but that they had not been done. At this time, the defendants commenced being self-represented. On 21 December 2017, Judge Smith ordered that the request for trial date be dispensed with and for the defendants to pay the plaintiff’s costs of that application. [10] On 2 February 2018, the matter was set down for trial for three days starting on 3 April 2018. Mr Hulsebrook appeared at the call over to resist it being set down, on account of Ms Morgan’s incapacity, but Judge McGill set the matter down and advised an application to adjourn if the defendants sought an adjournment. The defendants then applied to adjourn the trial. [11] The submissions in favour of that adjournment were that the third defendant was a material witness in the trial and that she was unable to give evidence due to mental incapacity, that is, mental health problems. I note the evidence in support of that application included a letter from a GP to the effect that Ms Morgan was suffering from extremely severe depression and agoraphobia and obsessive-compulsive tendencies and that those conditions were impacting on her decision making and on her ability to appoint and instructor solicitors. The GP also expressed the opinion she could be expected to improve as appropriate treatments were implemented, and it was hoped she would be ready to move forward within a period of two months, but that would require ongoing review. [12] On 3 April 2018, based on this material, her Honour Judge Ryrie adjourned the trial until 11, 12 and 13 June. I do not have her Honour’s reasons before me. The plaintiff subsequently had the costs assessed in respect of Judge Smith’s order for costs on the application to dispense with the request for trial date and sought judgment for the -- 3 of 6 -- 4 failure of the defendants to pay that sum. Rafter DCJ dismissed that application, which would seem to me to have been a rather optimistic one at the least. This application [13] Turning now to this application, Mr Hulsebrook now seeks to adjourn the case for a second time. Again, he relies upon his wife’s ill health, as happened on the last occasion. He gave on this occasion, however, a much more detailed account of the problems that are driving his wife’s mental illness and causing other physical problems for her. [14] In summary, the evidence, though perhaps not as direct as might be desired, satisfies me on balance, for the purpose of this application, that her ill health arises from a necrotic bacteria in her body which has attacked, amongst other things, her jaw. She had surgery in Thailand to address that in October 2015, when she had a bone graft and teeth implants. It appears that that work is affected by the infection and bone fragments coming from it. She is to be treated for that, amongst other things, on the third day of the trial. [15] She also has mental health issues which I accept are related to her infection but might not be solely caused by that. The fact that she has mental health issues was made out, currently, on the evidence before the court. On the 30 th of April 2018, her clinical psychologist Ms Falan, who had been seeing her for some time, wrote: Ms Brooks is experiencing systems of post-traumatic stress disorder, severe anxiety and agoraphobia, due to the functional impacts of which she is unable to attend the forthcoming trial scheduled for June. Ms Brooks’ psychological conditions require ongoing management and treatment with myself and her treating doctor. I can be contacted on – a certain number: …to discuss the above only with Ms Brooks’ written permission. [16] There is also evidence of mental health plans and attendances on that person. In addition, there was a letter from her GP, Dr Wellington, which post-dated Ms Falan’s report, to this effect: Ms Brooks attended today. She will require leave for the next two months to address two underlying medical conditions which require immediate management. She is receiving treatment from Ms Falan, who has also supplied her a certificate stating she is unable to attend the trial scheduled for June and outlining the reasons. Ms Morgan is, further, receiving dental treatment for dental impact infection. This cannot be laid without – delayed without detriment to Morgan’s health. If she is required to give phone evidence, it would be appreciated if notice could be given so she could insure that treatment is compromising her speech. [17] These reports leave something to be desired. It is a little unclear from them that she’s utterly unable to give evidence in a trial, though that is clearly the tenor of the reports. I also note they have been somewhat overtaken by the evidence of surgery in respect of the implants to occur on the 13th of June. [18] Mr Hulsebrook referred to the fact that both of these people are willing to give further evidence if I required it. It’s not my role to advise about what evidence is required to make good on an application for an adjournment. It was up to Mr Hulsebrook to put evidence that he wanted to rely on before the Court; however, in the circumstances, I -- 4 of 6 -- 5 am willing to accept that, at present, Ms Brooks would face great difficulty in being able properly to give evidence in the trial as presently listed. [19] That question is whether this is sufficient to justify adjournment of the trial. It is far from obvious that it would have, in the absence of the undertaking given by the defendants and referred to below. [20] Turning, first, to the importance of her evidence, if her evidence was not important or central to the case, there would have been little point in adjourning so she could give evidence. Mr Hulsebrook did not have any proof of the evidence his wife might give. He says her evidence would be relevant to pre-contractual negotiations. No such issues are raised on the pleadings that I could discern; however, there could be factual issues relating to particular issues on the pleading upon which her evidence might be relevant. I could not really conclude otherwise at this stage. [21] What is clear, however, is that Mr Hulsebrook is not in a position properly to articulate her importance because of, in my view, his lack of preparedness to run this trial. That is partly because he’s self-represented and partly, I infer, because he does not quite know how to go about running a trial. Nonetheless, I am willing to accept, at present that the argument that her evidence may be important some merit, though it’s hard to assess just how much. [22] Accepting that conclusion as being modestly in the applicant’s favour, I now turn to the another consideration: will the situation ever be better for Ms Brooks? The trial has been adjourned before, for the reason that is given now. The effect of any adjournment is that the plaintiff and the Court will be put in the remarkable and highly unacceptable position of having wasted two sets of trial dates for a three-day trial. This is a position to be deplored. Ms Brooks’ problems are not of the plaintiff’s making. Just because she cannot give evidence now, there is no point adjourning a trial if there is not a proper basis to be confident the situation will be better at the next date. [23] When confronted with this issue, Mr Hulsebrook could not point to any reason for confidence on that front; however, he offered to give undertakings that this would not come up again if the defendants have one more chance to put Mrs Brooks’ evidence before the Court at the trial. Ultimately, he offered this undertaking on behalf of all the defendants, that the defendants would undertake not to seek to adjourn the trial for any reason related to the health or availability of Ms Brooks to give evidence. This undertaking ensures, in my view, the plaintiffs will not be put in the same position next time in respect of this matter. [24] I am conscious that this has been adjourned for this reason before; however, the matter has only been ongoing for 15 months, and while any adjournment is to be deplored as a delay in justice and a waste of the resources of the Court and an imposition on the rights of other litigants who could have been taking advantage of these trial dates, it could not be said fairly, at this stage, that the proceedings have become protracted. Further, while adjournments are to be avoided because of impacts on other litigants and resources of the Court, that policy must not lead to an inflexible rule. Each case must be assessed on its own merits. [25] Bearing in mind the undertaking offered – and I should make clear, there would have been no adjournment without it – I am willing to adjourn the trial. Mr Hulsebrook offered the undertaking I am to incorporate in the orders in open court. Exhibit 2 -- 5 of 6 -- 6 indicates that he had been in contact with his wife and confirmed her instructions specifically in respect of it. [26] Therefore, on the undertaking of the defendants not to seek to adjourn the trial for any reason relating to the health or availability of the third defendant to give evidence, I order that: (1) The trial of the proceedings be adjourned to 19, 20 and 21 September 2018; (2) If Mr Hulsebrook intends to seek leave to represent Ms Brooks at trial, and she will not be present at trial, that he cause, by 5 September 2018, an affidavit by Ms Brooks to be filed giving him authority to do so; (3) The plaintiff file a written opening by 5 September 2018; (4) The defendants file a written opening by 12 September 2018; (5) Any application in this proceeding be referred to the Associate to Porter DCJ when filed; (6) The defendants play the plaintiff’s costs of this application for the adjournment and any costs thrown away by the adjournment of the trial, on a standard basis. [27] Finally, Mr Hulsebrook also sought leave to amend the defendants’ pleadings. In the general and unformed terms put, I refuse that leave. Any more specific application will have to be considered on its merits bearing in mind these reasons and the circumstances of this adjournment. In that regard, I note in particular the application was sought and granted only in respect of the hope of having Ms Brooks available to give evidence. No reliance was placed on the adjournment application on any suggestion of amendment as justifying the adjournment, nor should it be assumed that the fact of the adjournment is an invitation to, or justification for, a material change in the defendants’ case, though any such application will have to be considered on its merits if filed. -- 6 of 6 --