Aussie Vic Plant Hire Pty Ltd & Strangio v County Court of Victoria & Anor

[2007] VSC 532

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.  6701 of 2007

AUSSIE VIC PLANT HIRE PTY LTD (ACN 099 386 599)	First named Plaintiff
BRUNO STRANGIO	Second named Plaintiff
v
COUNTY COURT OF VICTORIA	First named Defendant
WESTPAC BANKING CORPORTATION (ABN 33 007 457 141)	Second named Defendant

No.  8784 of 2007

BRUNO STRANGIO	Plaintiff
v
COUNTY COURT OF VICTORIA	First named Defendant
WESTPAC BANKING CORPORTATION (ABN 33 007 457 141)	Second named Defendant

No.  8546 of 2007

AUSSIE VIC PLANT HIRE PTY LTD (ACN 099 386 599)	First named Plaintiff
BRUNO STRANGIO	Second named Plaintiff
v
COUNTY COURT OF VICTORIA	First named Defendant
WESTPAC BANKING CORPORTATION (ABN 33 007 457 141)	Second named Defendant
ALLFREIGHT FINANCE BROKERS PTY LTD (ABN 36 104 864 520)	Third named Defendant
GEOFF IRWIN	Fourth named Defendant

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2007
DATE OF RULING:	13 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSC 532	Revised 21 February 2008

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ADMINISTRATIVE LAW – Judicial Review – Ruling – Adjournment of trial – Costs awarded on solicitor and client basis

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr Strangio appeared for the plaintiffs
For the first named defendant	No appearance
For the second named defendant	C. Nichol	Gadens Lawyers
For the third named defendant in No 8546 of 2007	C. Harris	Moray & Agnew
For the fourth named defendant in No 8546 of 2007	P. Curtis

HER HONOUR:

1. Application has been made for an order that the defendants’ costs thrown away by reason of the adjournment of the trials be paid by the plaintiffs to be assessed on a solicitor and client basis.

1. On Thursday 6 December 2007, the trials were adjourned to a date to be agreed between the defendants after 11 February 2008.  15 February 2008 is now the agreed date for the resumption of the trials.

1. The estimated duration of the trials is one day.

1. The adjournment was necessary because Mr Strangio was to be unavailable to attend Court on Friday 7 December 2007 and because he had terminated the retainer of the plaintiffs’ solicitors, Starnet Legal, on the previous day.  He did not explain the reasons for the plaintiffs having dispensed with the services of the solicitors.  Mr Strangio did tell the Court that he wished to obtain different legal  representation.  He also sought time to brief new solicitors in relation to a number of what he described as interconnected pieces of litigation involving the plaintiffs and for them to obtain a copy of any reasons given by His Honour Judge Holt for one of the impugned decisions the subject of the applications for judicial review. 

1. Late in the afternoon of Wednesday 5 December, the plaintiffs had engaged the services of a solicitor, Mr Zervos, who was retained solely to apply for an adjournment of the trials on 6 December. The plaintiffs had not filed and did not seek to file a Notice of Change of Practitioner under r 20.01 of the Supreme Court (General Civil Procedure) Rules 2005. Nor had Starnet Legal sought the requisite leave to file a notice of ceasing to act under r 20.03.

1. Mr Zervos told the Court at the outset that the principal reason for the adjournment was that the plaintiffs sought time to procure a copy of reasons for the decision of His Honour Judge Holt.  He stated that he would withdraw as the plaintiffs’ solicitor after the adjournment application, because he had no instructions to appear at the trials if the application were to be rejected.

1. Eventually, after there had been an objection to Mr Zervos’s appearance in the application, when there were other solicitors on the court record, and after he had been referred to the provisions of r 20, Mr Zervos decided not to seek to represent the plaintiffs in any application.  He withdrew.

1. The plaintiffs’ solicitor, Mr Boden of Starnet Legal, was contacted and came to the Court at 2.15 pm to explain his non-appearance at the trials.  He told the Court that his retainer had been terminated and he was not aware that he was required to seek leave under r 20.03, when the plaintiffs were to be represented by other solicitors. Mr Boden applied for leave to file a notice of ceasing to act under r 20.03 (3)(b).  The defendants did not oppose the application.  Leave was granted upon Mr Boden’s undertaking to file the requisite notice by 4.00 pm on Friday 7 December.

1. Mr Strangio then sought an adjournment of the trials until after 6 February 2008 when he was due to appear before the High Court in relation to an appeal in an associated matter.  He submitted that he would breach an undertaking to the High Court if he utilised the first plaintiff’s assets in relation to the engagement of new solicitors in the proceedings before the Court.

1. The defendants resisted the adjournment application.  They pointed out that they had not had any notice of it before they arrived at the Court for the trials. 

1. They referred to the directions hearings before Master Kings at which the matter had been set down and no reference had been made to the plaintiffs’ alleged need for time to acquire a copy of the judge’s reasons for his interlocutory decision on 10 August 2007.  Counsel for the second defendant informed the Court that the Master had refused an adjournment application made on the different grounds that Mr Strangio was due to appear in the Magistrates’ Court on 7 December 2007.  She had done so, noting the estimate of one day’s duration for the trials.

1. It soon became apparent, however, that there was insufficient time for the trials to be completed in the short time remaining that afternoon and that they could not continue on the following day, in the absence of Mr Strangio.

1. Mr Strangio stated that any date after 11 February 2008 would be suitable for the plaintiffs. In the circumstances, the Court adjourned the trials to a date to be agreed by the defendants after that date. As I have said, the adjourned date is 15 February 2008.

1. The Court has a discretion to award costs on a solicitor and client basis in the exceptional case in which where the conduct of a party warrants such an order.  I consider this to be such a case. 

1. The plaintiffs terminated their solicitors’ retainer late in the afternoon  before trial and did not adduce evidence to justify their conduct.  They failed to give the requisite notice of a change of practitioner and did not attempt to retain another solicitor to do any more than seek an adjournment of the trials.   Their solicitor did not seek leave to cease to act.  The defendants were given no notice of the intended adjournment application and arrived at Court expecting the trials to proceed.  Mr Strangio was unavailable and the plaintiffs unrepresented and the trials could not go on in all the circumstances, even if the  adjournment application had failed. 

1. The plaintiffs’ conduct caused delay and inconvenience to the parties and to the Court, warranting an order on the basis sought.[1]  I will order them to pay the defendants’ costs thrown away by reason of the adjournment calculated as between  solicitor and client.

   [1]See: Regal Life Insurance Ltd v Pacific Financial Resources Pty Ltd and Ors (VSC Batt J No. 2145/92, 16 November 1994, unreported).

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