| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : BORG -v- DUREN [2002] WADC 120 CORAM : MULLER DCJ HEARD : 28 MAY 2002 DELIVERED : Delivered Extemporaneously on 28 MAY 2002 typed from tape and edited by Trial Judge FILE NO/S : CIV 2652 of 2000 BETWEEN : JENNIFER ALISON BORG Plaintiff
AND
PETER VAN DUREN
Defendant
Catchwords: Application to adjourn trial - Medical practitioner's insurer placed in provisional liquidation - Provisional liquidator declined liability for claim - Legal representation in question - Adjournment allowed
Legislation: Nil
Result: Application for adjournment allowed
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Representation:
Counsel:
Plaintiff : Mr T Hammond
Defendant : Ms M D Smith
Solicitors:
Plaintiff : Slater & Gordon
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 MULLER DCJ: In this matter the defendant has applied for the trial dates to be vacated. The defendant, who is a medical practitioner, was insured by the United Medical Protection Ltd which has gone into provisional liquidation. On 16 May 2002 he was advised by letter that the provisional liquidator did not accept personal liability for any successful judgment or claim made against the defendant. He was also advised that the provisional liquidator would accept personal liability for legal fees and disbursements only incurred after 3 May 2002.
2 Advice was given to him that the provisional liquidator would consider the merits of his claim, together with the merits of many other claims that had to be taken into account, and a decision would eventually be made as to whether or not the insurer or the provisional liquidator would continue to act for him during the course of the trial. It is in these circumstances that an application to vacate the dates has been brought. 3 As Ms Smith has pointed out, the defendant finds himself in an unenviable position; not only has his financial lifeline, so to speak, been withdrawn only weeks before the trial is due to commence but, as I see it, he is also faced with the prospect of having to arrange and, if necessary, change his legal representation. The first of the points is obvious and needs no further comment from me. The second may need some elaboration. 4 It is clear that the firm of solicitors acting for the insurance company are now acting on the instructions of the provisional liquidator. Primarily instructions are taken from him, although in taking those instructions, the lawyers will continue to act for the defendant to the limited extent that those instructions permit them to do so. 5 As things stand, those instructions do not include an instruction to represent the defendant at trial. That being the case, the defendant may well find himself unrepresented at trial if the provisional liquidator does not instruct the lawyers concerned to defend the action on its merits. I cannot allow that situation to occur. 6 I sympathise with the plaintiff, whom no doubt is anxious to have this matter disposed of. This is a sensitive claim and a large number of days have been set aside for its trial. In ordinary circumstances I would have required a great deal of convincing before I would allow either party to adjourn the trial and vacate the trial dates. These are exceptional circumstances and exceptional circumstances, in my view, warrant exceptional intervention if necessary. That intervention is necessary in
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this case for the reasons I have explained. The application will be allowed and the trial dates will be vacated. I will adjourn the matter to another status conference for trial dates to be fixed and hopefully in that time the question of finance and legal representation can be resolved. |