Benson, D.M. & ors v Commonwealth Bank of Australia Commonwealth Bank of Australia v Benson, W

[1992] FCA 711

7       9z

JUDGMENT No. ..... ,,.,,..J ,...,

NOT SUITABLE FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

1

NEW SOUTH WALES DISTRICT REGISTRY ) NG 315 of 1989

1     NG 512 of 1992

GENERAL DIVISION 1

BETWEEN:  DONALD MAYNE BENSON, BETTY LYNETTE
BENSON, WILLIAM BENSON. ELIZABETB
SUSAN BENSON. DON BENSON PTY LIMIT=
and FLINVIL PTY LIMITED

Applicants

AND:  COMMONWEALTH BANK OF AUSTRALIA

Respondent

AND BETWEEN:  COMMONWEALTH BANK OF AUSTRALIA

Applicant

AND :  WILLIAM BENSON

First Respondent

ELIZABETH SUSAN BENSON

Second Respondent

WILLIAM BENSON and

ELIZABETH SUSAN BENSON

Gullotta's instructions to appear were withdrawn at or about

Cross Claimants

COMMONWEALTH BANK OF

Cross Respondent

CORAM: Burchett J.
PLACE: Sydney

DATE : 28 August 1992

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

I am asked to adjourn this matter on the basis that M r

9.30 this morning, and the instructions of his leader were finally confirmed as withdrawn shortly after the case was called on this morning. The instructing solicitor, Mr Monti, who still appears, has indicated that it is proposed to make an application, at some unspecified time in the future, on unspecified grounds to re-open the case in unspecified respects, and to seek to cross-examine further certain unspecified witnesses.

In the light of the vagueness of that suggestion, it does not seem to me that it warrants the deferral of the cross- examination, which was set down for today, in a case in which counsel then instructed to appear had agreed that everything else was concluded, and that there was no embarrassment in having the submissions heard, and in which they were heard from both sides, deferring only the cross-examination of one of a number of valuation witnesses. That cross-examination was deferred because he was overseas.

The sole ground on which the present application was ultimately pressed by Mr Monti was that he proposed to brief fresh counsel, and he would wish his fresh counsel to conduct the cross-examination. Mr Monti has been present during the hearing, as I understand it, throughout the hearing, and in many ways might be much better equipped by the knowledge gained thereby to conduct the cross-examination than a counsel coming fresh at this stage. But be that as it may, Mr Nicholas Q.C. opposes the application on the ground of the prejudice to his client, pointing out that I could not eliminate that prejudice, and probably not even ameliorate it, by any costs order, having regard firstly to the fact that it is a legal aid case in which there is a limit on recoverable costs in the event that his client succeeds; and secondly, that there is grave doubt in practical terms, on the face of the evidence adduced during the course of the case, that any such order would be able to be enforced without reducing the amount available to be obtained, in the event of his client's success, under the orders that would in any case be made.

In all the circumstances, and havlng regard not only to the prejudice to Mr Nicholas's client, but to the public interest in and public investment in litigation, and taking into account the relative importance or unimportance of this evidence in the total framework of the case, I think that it is not a case in which I should grant the application.

are a true copy of the Reasons for Judgment herein	I certify that this and the preceding two (2) pages
of his Honour Mr Justice Burchett.
Associate:  BC+ , -~,-g-, -[L -
Date: 28 ~ugust  1992