Cirillo v Citicorp

[2001] SASC 349

CIRILLO v CITICORP
 [2001] SASC 349

Full Court:      Prior ACJ, Bleby and Gray JJ

1. PRIOR ACJ:        I agree with the orders proposed by Gray J for the reasons he has prepared.  I agree also with what Bleby J has added.

2. BLEBY J. Although I place a slightly different interpretation on the events of 2 April 2001, this does not affect my agreement with Gray J with the orders that he proposes or with his essential reasoning.  I will not repeat all that Gray J has set out as to what was said up to the time that the trial Judge gave his reasons for refusing the adjournment.

3. I find it unhelpful to construe the effect of what was said on the morning of 2 April 2001 by reference to whatever may later have been put to the trial Judge upon the appellant’s application for leave to appeal to this Court.  On the hearing of that application for leave to appeal, some further explanation as to what had happened was sought to be adduced by affidavit.  But what the solicitor said on 2 April, as recorded on the transcript, was the extent of the information before the trial Judge when he was asked to grant the adjournment.  All that the solicitor had referred to was “a mutual termination of retainer” or that “the retainer... has, in fact been terminated”.  He did not elaborate on who initiated the termination, or the reasons for or circumstances of the termination.  During the course of discussion the trial Judge referred on two occasions to the fact that the retainer was withdrawn.  That was not a phrase used by the solicitor, but the solicitor did not attempt to correct what the trial Judge had said.  The solicitor no doubt felt constrained by the terms of his then instructions to say no more than in fact he said.  The solicitor was an experienced solicitor, if not an experienced advocate.

4. In preparation for the case he had plainly relied heavily on counsel.  He was in no position to conduct the trial himself.  He did not profess to be an advocate and was concerned that his client’s case should be properly presented.  It is unlikely that the nature of his practice would have permitted the devotion required of counsel to a case of that intended duration.  He carefully avoided any reference to the circumstances of the termination.  His plea before the trial Judge was based solely on the fact that, in the circumstances which had arisen, his client would be seriously disadvantaged if forced to present his case.  It would have been helpful if the trial Judge had been told more of the circumstances.  It appears that the solicitor, not unreasonably, felt constrained not to breach his obligations of legal professional privilege.  It would have been preferable, notwithstanding the termination, that counsel, as a matter of courtesy to the Court, appear in order to explain their position, even if not to seek the adjournment.

5. Nevertheless, in those circumstances,…