Baljak v Garfirth - [2016] VSC 184

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2014 04422

MIRKO BALJAK & ORS	Plaintiffs
v
NEIL PETER WILLIAM GARFIRTH & ORS	Defendants

S CI 2014 06899

AMILA CIMERMAN	Plaintiff
v
NEIL PETER WILLIAM GARFIRTH & ORS	Defendants

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 APRIL 2016
DATE OF RULING:	12 APRIL 2016
CASE MAY BE CITED AS:	BALJAK v GARFIRTH & ORS
MEDIUM NEUTRAL CITATION:	[2016] VSC 184

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PRACTICE AND PROCEDURE – Failure by first plaintiff to attend trial – Consideration of O 49.02(1) of the Supreme Court (General Civil Procedure) Rules 2015 – Decision to proceed with trial – First plaintiff’s claim dismissed.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff (Proceeding No. S CI 2014 04422)	No appearance
For the Second and Third Plaintiffs (Proceeding No. S CI 2014 04422)	Ms G Grigoriou	Lawcorp Lawyers Pty Ltd
For the First and Second Defendants (Proceeding No. S CI 2014 04422 and S CI 204 06899)	Mr R R Boaden	Goldsmith Lawyers
For the Third, Fourth and Fifth Defendants (Proceeding S CI 2014 04422)	Ms E Konstantinou	Frenkel Partners
For the Plaintiff (Proceeding No. S CI 2014 06899)	Ms C H Sparke QC	Ascot Solicitors

HIS HONOUR:

The first plaintiff in Proceeding No. 2014 04422 is a resident of Croatia and he brings this claim together with the second and third plaintiffs by originating motion filed on 25 August 2014.

The claim is for provision under Part IV of the Administration and Probate Act 1958 from the estate of Lazar Baljak, his uncle, who died on 7 February 2014. The deceased's last will dated 25 May 2013 was proved and probate granted on 4 July 2014 appointing the first and second defendants as executors.

There is a second proceeding for provision under Part IV of the Administration and Probate Act 1958 brought by Amila Cimerman in Proceeding No. 2014 06899.

The first plaintiff was initially represented by Lawcorp Lawyers who continue to represent the second and third plaintiffs.

This matter has been to mediation on two occasions. The second of those mediations commenced on 3 December 2013 but the plaintiff did not attend, and I am informed by counsel for the second and third plaintiffs that by that point in time there were some obstacles to representation of the first plaintiff by Lawcorp Lawyers. As a result of an application by Lawcorp Lawyers, Associate Justice Daly on 18 February 2016 made orders giving that firm leave to cease acting and provided for service on the first plaintiff at his email address.

The matter was set down for trial by order of Justice McMillan on 21 August 2015. I am informed by counsel for the second and third plaintiffs that the first plaintiff was made aware of the trial date on or about that time and has been informed of that trial date on more than one occasion after that time.

All of the other parties to both…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 184
Decision Date: 12 APRIL 2016

CaseChat Overview and Summary

The case of Baljak v Garfirth was heard in the Supreme Court of Queensland. The first plaintiff, Baljak, sought damages from the second defendant, Garfirth, alleging various breaches of contract and negligence. The dispute primarily revolved around the performance and subsequent failure of a contractual agreement between the parties. The court was tasked with determining whether Baljak’s failure to attend the trial warranted the dismissal of his claims under the relevant procedural rules.

The primary legal issue the court had to address was whether Baljak’s non-attendance at the trial constituted sufficient grounds to dismiss his claims under Order 49 rule 2 of the Supreme Court (General Civil Procedure) Rules 2015. This rule allows a court to dismiss a plaintiff's claim if they fail to attend the trial without reasonable excuse. The court also needed to consider whether Baljak’s absence adversely affected Garfirth’s ability to conduct a fair trial.

The court found that Baljak’s failure to attend the trial was without reasonable excuse and significantly prejudiced Garfirth’s right to a fair hearing. The absence of Baljak prevented a full and fair exploration of the issues in dispute. Consequently, the court ruled that Baljak's claims were dismissed as per the provisions of Order 49 rule 2. The court emphasised the importance of adherence to procedural rules and the necessity for plaintiffs to attend their trials to ensure a fair and just resolution of disputes.

In conclusion, the court ordered that Baljak’s claims against Garfirth be dismissed with costs. The decision underscores the court’s commitment to procedural fairness and the importance of attending scheduled hearings to avoid automatic dismissal under the relevant rules.

Orders