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:

1. 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.

1. 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.

1. 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. 

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

1. 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.

1. 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.

1. All of the other parties to both this and the other claim have reached an accord which would enable the matter to be resolved subject to the resolution of the first plaintiff's claim and certain claims made by the plaintiff, particularly with respect to the validity of the will, in Croatia.

1. On 6 April 2016, Goldsmiths Lawyers, the solicitors for the executors, sent a letter to the first plaintiff's email address which stated as follows: 

We understand that you have contacted the legal representative that have been appointed on behalf of the executors in Croatia and have indicated to them that you do not intend to appear at the Supreme Court of Victoria for the trial.  This would be a further breach of your obligations as set out in the Civil Procedure Act.  These obligations should have been explained to you by your previous lawyers at the time you issued these proceedings.

Can you please confirm whether it is your intention to appear or alternatively, if you have arranged for a legal practitioner to appear on your behalf.  If you do intend for a legal practitioner to appear on your behalf, would you please provide to us the name and contact details of that person.

Further to our letter of 11 February 2016 we wish to put you on notice that you have caused the estate significant legal costs and that they will apply to the Judge that you pay those costs to be calculated on a solicitor own clients basis.

Would you please advise if you consent or oppose that order; if you oppose the order then you will be required to attend the Court or arrange representation, in order to put such arguments that you might think appropriate. 

We await your response to the above and confirmation that you will or will not attend or be represented at the hearing listed on Tuesday 12 April 2016.

1. By an email of 11 April 2016 under a heading ‘Affidavit of Mirko Baljak’ but not sworn, the first plaintiff replied as follows: 

With notice for hearing I asked for a visa at the Embassy Zagreb.  I was told to contact the London office.  After that, because of attacks on Paris and other towns, from London office told me that they will take a long time for visa and there is not enough time.  I sent the materials to a lawyer in Melbourne, who has cancelled the case. 

I

Because it is an ongoing court in Zagreb for a crime, I suggest temporarily delay proceedings in Melbourne and this pending a decision in Zagreb. 

II

If court disagrees with my suggestion in chapter I, then, I agree to court continue this hearing without my presence and take all the evidence and the elements into account.

1. I have been informed by counsel for the executors that legal costs to date are some $440,000 excluding executors' commission, accountants' fees and allowance for the legal fees in Croatia.  Although the estate discloses assets of $4,617,232, counsel for the executors informed me that, if the proposed settlement was to proceed, the residue would consist of an amount of approximately $130,000.

1. Order 49.02(1) of the Supreme Court (General Civil Procedure) Rules 2015: 

If, when the trial of a proceeding is called on, any party is absent, the Court may—

(a)order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court directs;

(b)proceed with the trial generally or so far as concerns any claim for relief in the proceeding; or

(c)adjourn the trial.

1. I propose to proceed with the trial of the first plaintiff’s claim for the following reasons:

(a)I have had the advantage of counsel for the executors explaining the basis upon which the first plaintiff, in the affidavits he has sworn in this proceeding, puts his claim as a nephew.  I form no final view as to the prospects, but it does appear that the claim is likely to face substantial obstacles. 

(b)I am concerned about the costs that are likely to be incurred if this claim is not brought to an end at the earliest opportunity.

(c)In my opinion, there is no adequate explanation as to why the first plaintiff has not long ago made arrangements to attend for the trial of the proceeding or given any indication that he is likely, at any time in the future, to prosecute this claim if given the opportunity to do so.

1. I will have the first plaintiff called for the second time today and then, if there is no appearance to prosecute the claim, I will dismiss the claim.

1. As to the claims by the second and third plaintiffs, the application by all of the parties present is for those claims to be adjourned to a date to be fixed for the purpose of allowing the completion of the proceedings in Croatia which must be completed before the proposed settlement can be finalised.

1. For that purpose, and bearing in mind the need to avoid any further costs in this proceeding, I am prepared to adjourn the claims of the second and third plaintiffs to a date to be fixed.

1. I will also adjourn Proceeding No. 2014 06899, being the claim by Amila Cimerman, on the same basis.

1. I will order that the first plaintiff’s claim is dismissed and the first plaintiff pay the costs of the first and second defendants to be taxed.

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