Case: Maher v Commonwealth Bank of Australia [2004] FCA 248
Outcome: followed
I was referred by the respondent to the judgment of Finkelstein J in Maher v Commonwealth Bank of Australia [2004] FCA 248. The facts in that case bear a remarkable similarity to those in the present case. It was another case in which Mr Maher made an application to adjourn a trial saying that he was suffering from physical disabilities which prevented him from sitting or standing for any length of time and that he would be unable effectively to present his case without the assistance of counsel. His Honour had declined to grant the adjournment sought. These events occurred on 30 January 2004. 13 On 2 February 2004 Mr Maher sent a facsimile transmission to his Honour's associate asserting that he needed an indulgence to delay the matter and that he had notified the respondents by facsimile transmission. The case was called on as scheduled on 2 February 2004 and Mr Maher didn't appear. His Honour advised counsel that he would stand the matter down for a short time to determine whether Mr Maher was absent by reason of his attendance in another court. When the matter resumed his Honour was advised that Mr Maher was not to be found. At that stage Mr Maher's application was dismissed with costs. 14 Another aspect of the matter (a cross-claim) involving Mr Maher was due to be heard later that day and Mr Maher appeared. He advised Finkelstein J that he had just filed an appeal against his Honour's refusal to grant the earlier adjournment. He did not explain why he had not been in court at 11 am when the matter was called on and his Honour adjourned the hearing of the cross-claim until 4 February 2004. On that date his Honour, through his associate, received a communication from Mr Maher seeking an adjournment of that day's hearing on account of a medical problem and indicating that he would provide a medical certificate confirming this on the next day. A facsimile was sent on the same day to the registry which asked that his Honour be advised that Mr Maher would be unable to attend the hearing of the matter on account of his medical condition. 15 The case was called on as scheduled on that day and the matter proceeded in Mr Maher's absence and was adjourned part heard until the following day. On the following day there was another facsimile sent to his Honour's associate by Mr Maher again asserting an inability to attend court and seeking an indulgence for a further adjournment on account of a medical problem. There were two medical certificates attached which asserted that he was medically unfit to attend court on the previous day and there was also a certification of his unfitness to attend from the second day of the hearing, namely 5 February 2004. 16 When the matter came back on his Honour determined that the matter would proceed and it did. On the same day Mr Maher sent another facsimile letter to his Honour's associate indicating that he had been in touch with a solicitor. He sought an indulgence for a further adjournment so that he could obtain legal advice. His Honour delivered judgment in favour of the respondent. The following day Mr Maher moved to set aside the judgments and his Honour advised Mr Maher of the matters which it would be necessary for him to establish in order to have that occur. At the hearing of the application which took place later in February 2004 Mr Maher appeared and advised his Honour that he was not prepared to seek an affidavit from his medical practitioners deposing to his illness and sought only to rely on the certificates. Again that approach seems remarkably similar to the one adopted yesterday in argument before me. 17 Having regard to these matters his Honour said: "[17] With this history in mind, I am in no doubt that Mr Maher made a deliberate decision not to attend the hearing on Monday 2 February 2004 in the expectation that the case would not go on in his absence and that he would thereby obtain the adjournment he was refused on the preceding Friday. I am convinced that Mr Maher intended to take whatever steps were necessary to defer the hearing while he continued his attempts to obtain pro bono counsel. [18] Moreover, I simply do not accept Mr Maher's claim that he was physically unable to attend the hearing on 4 or 5 February 2004. The medical certificates are unconvincing. And, I suspect that Mr Maher did not obtain an affidavit from his doctor, or secure his attendance by subpoena, because the doctor's evidence would not have assisted his cause. [19] Mr Maher's cavalier attitude is inexcusable. There is no reason why a person who is hell-bent on delaying a proceeding in this way should be indulged. I suspect that if a new trial is ordered and Mr Maher still does not have counsel to assist him, he will renew his efforts to have the trial delayed. Tempted as I am to simply dismiss his motion out of hand, I accept that the more important consideration is to determine whether his own claim or his defence or the bank's claim has any merit. If either has merit then it is best left to go to trial. Mr Maher can be suitably punished by an appropriate order in relation to costs, although even that may not put an end to his humbug." 18 Those comments are apposite having regard to the facts of this case. I do not accept that the applicant was prevented by ill health from attending the court at 10.15 am on 3 April 2008. Despite the medical certification given the next day that he was unfit to work he advised that he could attend court at 2.15 pm on 3 April 2008. He had failed to give adequate instructions to solicitors even though he was well aware that Goldberg J had said on the previous Friday that the matter would proceed on 3 April 2008. This was another calculated attempt at delay. 19 What is to be done? Very reluctantly I have come to the view that the applicant should have the opportunity to present such arguments as he is able in support of his three notices of motion. He should not however be able to do so unless and until he has paid the respondent's costs which were thrown away by reason of the late application for an adjournment of the hearing on 28 March 2008 and his failure to appear on 3 April 2008. In this context I have regard to the matters referred to by Sundberg J in his reasons for ordering that security be provided for the respondent's costs of the appeal from the federal magistrate. (See at paragraphs 12 to 17 of Sundberg Js reasons.) 20 I have read Sundberg J's reasons. In my view the applicant's prospects of succeeding in obtaining any of the orders sought in his three notices of motion are slight. The respondent claims $13,111 by way of costs thrown away. This amount will, in all probability, tax out at a lesser sum. I therefore propose to order that the setting aside of my orders be made conditional on the applicant paying the respondent $8000 towards its costs. In the circumstances the orders which will be made are: 1 On condition that, by 4 pm on 20 May 2008, the applicant pays to the respondent $8,000 in respect of its costs thrown away by reason of the adjournment sought and granted on 28 March 2008 and by reason of the applicant's failure to appear on 3 April 2008, the orders made herein by Tracey J on 3 April 2008 be set aside. 2 The applicant's notice of motion dated 10 April 2008 otherwise be dismissed. 3 If, by operation of order, 1 the orders made on 3 April 2008 are set aside, the applicant pay the respondent its costs thrown away on the adjournment and incurred by reason of the applicant's failure to appear less any costs paid pursuant to order 1. 4 If, by operation of order 1, the orders made on 3 April 2008 are set aside, the hearing of the applicant's notices of motion dated 13, 14 and 19 March 2008 be fixed for 16 June 2008. 5 The applicant pay the respondent's taxed costs of the motion. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 2 May 2008 Counsel for the Applicant: Mr R Cook Solicitor for the Applicant Mr D Nelson Counsel for the Respondent: Mr R Shepherd Solicitor for the Respondent: A J Mullumby Date of Hearing: 23 April 2008 Date of Judgment: 23 April 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/584.html