Featherstone v Hambleton [2015] QCA 26

[2015] QCA 26 COURT OF APPEAL GOTTERSON JA DOUGLAS J PETER LYONS J Appeal No 2436 of 2014 DC No 2516 of 2013 DARRELL MORGAN FEATHERSTONE Appellant v DAVID JAMES HAMBLETON Respondent BRISBANE FRIDAY, 27 FEBRUARY 2015 JUDGMENT GOTTERSON JA: The application for adjournment is made on the footing of a medical indisposition on the part of the appellant. It is an indisposition which appears to be of a similar kind to one that generated an adjournment, of the hearing of this appeal, in October 2014. That is giving the benefit of some doubt to the appellant. I say that because attached or within exhibit 1 is a medical certificate which appears to be dated the 26th of February 2015; however, it is quite illegible so far as the identity of the person with respect to whom it is given, the nature of the condition detected by the examining doctor and any opinion as the examining doctor may have as to the ability or otherwise of the appellant to attend Court today. -- 1 of 4 -- 2 That is not the end of the matter so far as adjournments are concerned. There are proceedings in the District Court of Queensland between the same parties. They were to come on for hearing on the 29th of January this year. The matter was listed for trial to begin on that date. On that occasion a person – who incidentally features in an application by the appellant to adduce further evidence which will be dealt with later – appeared at the District Court on behalf of the appellant stating that he had been taken ill that morning suffering anxiety. On the basis of that evidence an adjournment of the trial was granted. These events give rise to a reasonable suspicion or reasonable belief that there would be little utility in again adjourning this appeal, but, as I have said, it’s the second occasion on which an adjournment of the appeal has been sought by the appellant, and it also reflects a similar occurrence in the District Court proceedings. There are also considerations as to the prospects on appeal which might inform whether an adjournment is given or not. I would not at this point wish to make any observations about them other than to say that the appeal to a very considerable extent is based upon evidence which the appellant would seek to lead now, but was not led by him at the trial. For these reasons the Court will not entertain the application for the adjournment of the hearing for this appeal, and it will continue now to deal with the appeal. DOUGLAS J: I agree, and simply wish to add that in the letter sent by the appellant in the paragraph numbered 3 on the last page he said that if his submission seeking an adjournment should not be allowed, he submitted that the matter be heard in his absence on the evidence available to the Court and a decision handed down in the appropriate way. PETER LYONS J: I too agree that the application for the adjournment should be refused. GOTTERSON JA: The order of the Court is that the application for the adjournment is refused. I will now turn to the application to adduce further evidence and note that in support of it the appellant would rely upon his application filed on the 7th of October 2014 and his own affidavit. The appellant has filed an application by which he seeks to adduce further evidence in the form of an affidavit sworn by Mark Surmon on the 7th of October 2014. The -- 2 of 4 -- 3 application is supported by an affidavit sworn by the appellant on the 13th of October 2014. The application is opposed. Rule 766(1)(c) of the Uniform Civil Procedure Rules permits this Court on special grounds to receive further evidence as to questions of fact by affidavit or otherwise. Decisions of this Court, including that in Clarke v Japan Machines (Australia) Proprietary Limited established that in order for special grounds to exist the proposed evidence need be of a kind which would probably have an important impact on the result of the case and need be credible. Mr Surmon swore an affidavit in the proceedings at first instance. It was tendered in evidence. He was also called to give oral evidence in the appellant’s case. He’s a professional photographer and had dealings with the companies, Ashala Proprietary Limited and Ashala Model Agency Proprietary Limited. His evidence-in-chief and cross-examination concerned the nature and extent of his dealings with those companies and their personnel. Mr Surmon’s affidavit, the subject of this application, deals with a very different topic. It concerns his dealings before the trial, initially with a Mr Marshall, also a witness at the trial, and then with Mr Kipps and Mr Bentley of the respondent’s instructing solicitors. In summary, Mr Surmon now alleges that in a meeting at a hotel Mr Bentley urged him to fill out a document claiming that he was a creditor of Ashala Proprietary Limited. He declined to do so. He claims that later Mr Bentley threatened to sue him as a director, presumably of Ashala Proprietary Limited, if he declined to cooperate and that, even later, Mr Bentley contacted him to offer him $1000 to deliver any mail left at the former office of Ashala Proprietary Limited to the company’s liquidator. He also says that at Mr Bentley’s request he gave him a copy of a statement that he had already made at the appellant’s request. Mr Bentley then telephoned him and gave him direction as to how he should answer if questioned in the evidence about any involvement on his part in the preparation of the company’s financial statements. He also said that Mr Bentley told him that his $20,000 was not far away. That was the amount that Mr Surmon had earlier given Mr Bentley as an estimate of the value of unpaid work that he, Mr Surmon, had done for the companies. -- 3 of 4 -- 4 The credibility of the evidence that is sought to be adduced is dubious. It is telling that in his affidavit in support of the application – which presumably was made to explain why this evidence was not led at trial – the appellant swears that before the trial began he asked Mr Surmon whether he had had any communications with Mr Marshall, Mr Bentley or the liquidator. To use the appellant’s own words, Mr Surmon clearly and concisely told him that he had not; yet, what Mr Surmon now swears happened contradicts this. Further doubt as to the credibility of the evidence arises from the fact that it is entirely uncorroborated. As well, Mr Surmon offers no explanation for why he did not disclose these events earlier, particularly when he was asked by the appellant about contact with the individuals concerned. Turning to the other consideration, I have difficulty in seeing how the evidence sought to be adduced could in any way impact significantly upon the outcome of the case. The principal issue in the case was whether the appellant was a director of Ashala Proprietary Limited in the extended definitional sense at material times. The events of which Mr Surmon now speaks have no or insignificant relevance to that issue. Moreover, the learned primary judge had before him admissions made by the appellant at the liquidators’ examination as to his comprehensive involvement in the affairs of the company at the time. In short, the proposed evidence, if allowed, could not significantly impact upon the conclusions reached by his Honour or the judgment given. For these reasons I consider that this application must be refused. I would add that, although the allegations now made by Mr Surmon carry adverse imputations against Mr Kipps, Mr Bentley and perhaps by inference the respondent’s counsel, they do not have cogency or credibility such as could, in other circumstances, oblige those against whom they are made to withdraw as legal representatives; nor, in the case of Mr Copley, has the stage been reached that might engage rule 95(f) of The Bar Conduct Rules. DOUGLAS J: I agree. PETER LYONS J: I also agree. GOTTERSON JA: The application to adduce further evidence is refused. -- 4 of 4 --