Boje v Chinese Community Social Services Centre Incorporated

[2017] VCC 249

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for publication

AT MELBOURNE

COMMERCIAL DIVISION
BUILDING CASES LIST

Case No. CI-15-04443

DANIEL BOJE and IOAN BOJE	Plaintiffs
v.
CHINESE COMMUNITY SOCIAL SERVICES CENTRE INCORPORATED	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2017
DATE OF JUDGMENT:	15 March 2017 (revised 17 March 2017)
CASE MAY BE CITED AS:	Boje & Anor v. Chinese Community Social Services Centre Incorporated
MEDIUM NEUTRAL CITATION:	[2017] VCC 249

REASONS FOR DECISION

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Catchwords:              Practice and procedure – Application by the plaintiffs to adjourn the trial – Refused by a Judicial Registrar – Application for a review of the decision of the Judicial Registrar and further application for an adjournment of the trial – Plaintiffs’ failure to provide an adequate explanation for the failure of their previous solicitors to prepare the case for trial or for the recent change of solicitors – Review dismissed – Adjournment refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. D. Hay of Counsel	Hall & Willcox
For the Defendant	Mr H. Foxcroft QC and Mr P. Marzella of Counsel	Jasper Lawyers

HIS HONOUR:

1This is a review of the decision of Judicial Registrar Burchell made on 1 March 2017, refusing an adjournment of the trial to commence on 20 March 2017. There is also, in the context of the review, an application to rely on further evidence in support of the application for the adjournment of the trial.

2I consider that the application to review the decision of the Judicial Registrar and the further application for adjournment should fail. The trial will proceed in Monday, 20 March 2017.

3The application for adjournment originally relied on three grounds:

a.that the defendant had denied the plaintiffs’ expert adequate access to inspect the facility;

b.that the defendant’s expert reports were delivered, not as ordered on 18 November 2016, but on 21 December 2016;

c.the plaintiff had changed solicitors in February 2017.

4In addition, it was submitted that the plaintiffs are unprepared to run the trial and would therefore suffer considerable prejudice if the trial were not adjourned.

5In relation to the first matter, in my view, the plaintiffs’ expert was not denied access to the facility. Mr Tiller inspected the facility on 22 April 2016. He then prepared a report. No further request was made to inspect until about 1 February 2017. An inspection was arranged on 7 February 2017 but was cancelled by the plaintiffs’ solicitors. Mr Tiller inspected the facility on 7 March 2017.

6In relation to the second matter, the defendant delivered three reports on 21 December 2016. However, a number of previous reports had been delivered in August 2015. Explanations were given by defendant’s senior counsel, Mr Foxcroft QC, as to why the later reports were not delivered until 21 December 2016. The principal report was by Mr Miller an architect. His report was not delivered until after the action in the proceeding against the architect had concluded.

7Two further reports of Mr Quick were prepared in late 2016. One of those reports arose as a result of an inspection of the roof by a contractor who was quoting for rectification work and which involved Mr Quick reviewing his earlier views. It was suggested that this might lead to an amendment to the counterclaim. No such application has presently been made.

8Otherwise, the earlier reports in 2015, dealt with the defects pleaded in the amended defence and counterclaim dated 2 November 2015. The defects in the pleading are the defects that were discussed in the earlier reports. The defendant’s case has not significantly changed since then.

9The plaintiffs’ previous solicitors, whilst complaining of the late delivery of the defendant’s reports on 21 December 2016, anticipated that the trial date would be maintained, including the filing a report by their expert Mr Tiller. No valid reason has been advanced as to how the late service of some of the defendant’s expert reports has affected the plaintiffs’ capacity to meet the trial date.

10The third matter raised by the plaintiffs was their recent change of solicitors. This was a matter that was not adequately addressed in the affidavit material. From the bar table, after seeking instructions at my suggestion this morning, plaintiffs’ counsel Mr Hay informed me that his client had become disillusioned with his previous solicitors. His instructions were that this disillusionment had commenced after the failed summary judgement application which was determined in April last year.

11Notwithstanding this, his previous solicitors continued acting on his behalf and to seek to arrange a further inspection by Mr Tiller in early February 2017. It appears that the affidavit material filed by the plaintiffs’ previous solicitors in support of the application to cease to act for the plaintiffs only referred to the fact that there had been outstanding requests for the payment of fees. This, according to Mr Hay, was a matter that had caused ongoing difficulties between the plaintiffs and their solicitors since September last year.

12If there are difficulties which have arisen as a result of the change of solicitors, that is a matter that has resulted from the plaintiffs’ own actions. The previous solicitors, Gadens, had represented the plaintiffs for approximately four years, including when the dispute arose between the parties and when the plaintiffs issued the proceeding.

13The primary matter I must consider relates to the competing submissions on the issue of prejudice. The defendant has outstanding costs orders in respect of which it has previously prepared a bill of costs, which it provided to the plaintiffs, seeking over $100,000. There are other outstanding costs orders, and it’s likely that the costs of the hearing before the Judicial Registrar and the hearing today will result in further orders.

14The plaintiffs apparently have judgments against them in proceedings brought against them by the Australian Taxation Office; Daniel Boje for $125,137.47 and Ioan Boje for $159,232.01. There was a belated offer by plaintiffs to pay the sum of $40,000 as the costs thrown away by reason of this application. That was the estimate of the costs made apparently before the Judicial Registrar on 1 March 2017. Mr Foxcroft indicated that substantial costs had been incurred since that time.

15The defendant conducts a care facility. There are a number of residents. There have, according to its experts, been significant defects existing in the building for more than two years. The defendant wishes to repair the facility and obviously has obligations to the residents to do so.

16The case has been set down for a 20 March 2017 trial since September 2016. The proceeding, however, started in 2015. It was commenced by the plaintiffs and the fixing of a trial date was delayed whilst the plaintiffs proceeded with a summary judgment application which ultimately failed.

17Mr Hay submitted on behalf of the plaintiffs that the time now available before Monday, 20 March 2017 is insufficient for the plaintiffs’ lawyers and experts to prepare the case. This is a submission that was first made in discussions between the solicitors in mid-February this year. It was the submission advanced before the Judicial Registrar on 1 March 2017. As time has gone by, the available period for preparation has become less and less.

18As I earlier mentioned, much of this is the responsibility of the plaintiffs and their solicitors as a result of the decisions made as to the conduct of the proceeding. Many of these matters, however, have not been explained or even referred to in the extensive affidavit material filed on the plaintiffs’ behalf. The defendant’s written submissions set out in detail the substantial matters that are not referred to in the affidavits filed both for the hearing before the Judicial Registrar and the hearing today. I accept the defendant’s submissions.

19I indicated when the hearing commenced that trial judges are obliged to consider adjournment applications at whatever stage they are made. I am certainly not encouraging the plaintiffs to make a further application, but if it were to be made, it would need to address the substantial gaps in the factual basis of the submissions that were advanced. These include the lack of explanation for the plaintiffs’ and their solicitors’ failure to explain the absence of adequate evaluation of the defects reports served by the defendant in August 2015 and the general lack of preparation following the unsuccessful mediation in mid-2016.

20In the circumstances, the present position the plaintiffs and their present lawyers find themselves in is largely unexplained and appears to have arisen as a consequence of their own actions or failure to take action. It would be unfair to the defendant to delay the trial, particularly as this would cause it further substantial costs which it ultimately may not recover.

21It is appropriate to record the matters that were discussed during the submissions of counsel as to the further conduct of the proceeding. The primary dispute between the parties arises in relation to the defendant’s counterclaim. In the circumstances that have arisen, it would be appropriate for the defendant to have the carriage of the hearing. To some extent this was also the approach adopted by the Judicial Registrar by requiring the defendant to prepare the court book.

22It is likely, therefore, that with the trial commencing with defendant’s counsel’s opening and a view, that the direct involvement by plaintiffs’ counsel will be delayed. There are some orders that have been made previously which can be modified if that is the desire of the parties, particularly the plaintiffs. For example, I will certainly entertain an application by the plaintiffs that they be relieved from their obligation to provide witness statements. However, it is probably appropriate that some adequate substitute be provided, for example a summary of the evidence for each witness, limited to half a page or a page.

23As for a filing of a list of issues by the parties, I do not consider that is necessary. The issues will, no doubt, be fully addressed when Mr Foxcroft opens on behalf of his client. I note too that Mr Foxcroft has indicated that his client is prepared to make available to the plaintiffs on a confidential basis the terms of settlement between his client and the third defendant to counterclaim, the architect.

24I will not make further orders concerning these matters at this stage. I will order that the review of the decision of the Judicial Registrar made 1 March 2017 be dismissed and that the further application for an adjournment of the trial to commence on 20 March 2017 be refused.

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Certificate

I certify that these 4 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 15 March 2017 and revised on 17 March 2017.

Dated: 17 March 2017.

Carla Cianfaglione

Associate to His Honour Judge Anderson