Abigroup Contractors Pty Ltd v BPB Pty Ltd
[2001] VSC 485
•5 December 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
BUILDING CASES LIST
No. 7644 of 1998
| ABIGROUP CONTRACTORS PTY. LTD. | Plaintiff |
| v. | |
| BPB PTY. LTD. | Defendant |
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JUDGE: | HARPER, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 5 DECEMBER 2001 | |
DATE OF RULING: | 5 DECEMBER 2001 | |
CASE MAY BE CITED AS: | ABIGROUP CONTRACTORS PTY. LTD. v. BPB PTY. LTD. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 485 | |
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CATCHWORDS: Ruling – Whether trial should be adjourned given estimated duration of trial extended following amendment to pleadings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. B. Shnookal | Deacons |
| For the Defendant | Mr. P. Cawthorn | Minter Ellison |
HIS HONOUR:
This litigation was set down for hearing on Thursday, 29 November, and the hearing did commence on that day. We have since spent a large amount of time dealing with matters of pleading although some time has been taken up in an opening and in hearing part of the evidence of one of the principal witnesses for the plaintiff. There can therefore be no doubt that this matter could properly be described as part-heard.
It was originally set down for trial in May this year. Unfortunately a judge was not then available to hear it and the trial date was, for that reason, vacated. As I understand it, the court indicated at that time that the matter would be relisted with priority.
It was in those circumstances that the hearing commenced on Thursday 29 November before me. There are obvious reasons why it would be desirable for the case to proceed now to an uninterrupted conclusion. That indeed was the expectation when the hearing commenced. I have already indicated that the expectations have not been met. Doubtless, neither party anticipated when we assembled on Thursday 29 the degree of argument that would follow in relation to the pleadings. That argument has nevertheless been unavoidable; and the net result is that the position of each of the plaintiff and the defendant, on the crucial questions of the contract alleged by the plaintiff, and the extent to which the defendant alleges compliance, have now been clarified. That clarification while not only desirable but indeed essential has not only taken time in itself but resulted in an enlarged estimate of the total time which is now expected to be occupied with evidence.
The estimate of ten days with which the case began on Thursday 29 November has now expanded to something in the order of between 12 and 20 days. Given the difficulties which we have confronted already, my estimate is that the evidence together with closing addresses would occupy something in the region of 18 or 19 days, in any event a period of closer to 20 days than to 12.
It is now necessary to determine what should be done given that on that estimate it will not be possible to complete the trial before the end of the working year. My own position is that I anticipated that having dealt with the trial of this matter in about ten days I would then have something in the order of a week to complete judgments which should, if possible, be delivered before Christmas. Given my commitment to those reserved judgments and of course to the parties who are awaiting the relevant decisions, it would I think be unfair to them were I to commit myself to continue the hearing of this matter until Friday 21 December, the last sitting day.
My availability would I think be no greater than the previous Friday, Friday 14. I would need the additional time to complete the remaining reserved judgments. If the matter were to proceed now into further evidence we would be sufficiently committed to this trial as to preclude the departure from it of the judge and make most undesirable the departure from it of counsel. That being the case it is necessary to anticipate what might happen were the matter to be adjourned part heard at some time in the next ten days or so.
At present the court is unable to give a fixed recommencement date for this trial for 2002. Without a fixed date for recommencement counsel cannot plan so as to ensure their availability for the appointed date. It is equally impossible for me as the trial judge to guarantee my availability on particular dates which might suit the parties.
That opens the prospect of this matter not being given a fixed date until some time towards the end of next year or, on the worst possibility, 2003. It would be undesirable in the extreme for a case to be substantially part heard with such a long interval between the first period of trial and the last. It would also create difficulties in assessing the extent to which earlier evidence and earlier submissions would require revisiting. It would create difficulties for the judge in preparing a judgment and it may well create difficulties for witnesses.
In particular, the preparation of a judgment would face the very considerable hurdle that although transcript would be available that transcript would of necessity, given the nature of this case, make constant references to the documents. Unless one's memory were reasonably fresh when one read the transcript one would have to go from transcript to document and back to transcript in a process which would be very time consuming and which would not necessarily lead to an accurate recollection of the evidence and its implications.
I therefore think this is a case which would be particularly difficult to deal with on an adjourned date were it to be substantially part heard. On the other hand I am very cognisant of the points made to me this afternoon by Mr Shnookal. The plaintiff is ready to proceed and the plaintiff is anxious to proceed. There are very strong reasons why the court should do its utmost to accommodate the plaintiff's position. It is not the plaintiff's responsibility or fault that the matter has reached the stage it now has reached. The plaintiff's witnesses are ready and available and the plaintiff's case has been prepared accordingly.
The plaintiff's counsel is of course presently available, but his availability next year is for a period at least problematic; he is committed to another case which is due to be heard early next year and it would doubtless be of some inconvenience if not considerable inconvenience to those involved in that case were he to have to withdraw from that case in order to continue with this. The basis therefore upon which the plaintiff seeks an immediate resumption of the trial with an adjournment as late as possible this year, is as I say, very strong.
I have taken into account all the relevant considerations. I have analysed them as best I can and in doing so I have remained cognisant of the fact that no matter which decision is made inconvenience will be caused.
It seems to me however that the real danger is that the matter will be substantially part heard at the end of this year and then there will be real problems in re-fixing it at a convenient time in the future. There is a possibility that I will become free of what are presently my commitments for the beginning of 2002 and I will so become free some time in the near future. If so it may be possible to commence and complete this trial in the first part of next year, perhaps as early as February.
If the matter were substantially part heard there would however be great difficulties in taking advantage of any opening that might become available early next year. Fresh counsel may have to be engaged and that would be a matter of some concern. It would in short be much easier to take advantage of an opening next year were the matter not to be substantially heard this year. It would also be much more convenient to re-fix the matter for trial next year were it not substantially part heard.
For these reasons I reluctantly come to the conclusion that I ought not proceed now with the further hearing of this matter but I should adjourn it to a date to be fixed. I will do what I can to ensure that I remain the trial judge, if only because the position we have now reached is one best dealt with by the judge who has presided so far; any new judge would be at a disadvantage were he or she to take over the matter at this stage, and that disadvantage might flow to the parties themselves. I will therefore do what I can to ensure that I remain the trial judge, although I cannot give any guarantee to that effect.
For those reasons I am of the view that the matter must now be adjourned to a date to be fixed.
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