Cirillo v Citicorp

CIRILLO v CITICORP
[2001] SASC 349
Full Court: Prior ACJ, Bleby and Gray JJ

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.
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.
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 During the course of discussion the trial Judge referred on two occasions to the fact that the retainer was withdrawn.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.
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.
Nevertheless, in those circumstances, I agree that the exercise of the discretion miscarried. I agree with the substance of the reasons given by Gray J. I merely add some further remarks of my own out of deference to some of the arguments that were put to us by Mr Wells QC for the respondent, and the cases on which he relied.
Mr Wells relied heavily on the fact that the only application before the trial Judge was for an adjournment of between 8 and 12 weeks. Nothing less would suffice for the appellant. He submitted that it was therefore not incumbent upon the trial Judge to even consider an adjournment of between 1 and 2 weeks.
One cannot predict what might have transpired if an adjournment of that order had been granted. The trial (which was anticipated to be a long one) may or may not have been able to go ahead. Much would have depended upon the appellant’s ability to obtain counsel and the advice that might then have been given, particularly in the light of the circumstances (of which the trial Judge was not aware, and of which we are not aware) of the termination of the instructions of the appellant’s former counsel. The trial, and indeed the whole litigation, may well have taken a very different course, but that could not be ascertained without the input of fresh and properly briefed counsel. It was equally clear that the appellant and his solicitor were quite unable to proceed without counsel, and certainly not at very short notice. It was not the sort of case where counsel could have readily been obtained at short notice, such as if the case were only going to last a day or two.
This is one of the factors which distinguishes the case from Squire v Rogers (1979) 39 FLR 106 on which Mr Wells QC relied. That was an appeal by the defendant, who was in dispute with his co‑lessee of a lease in perpetuity, against an order for sale of the lease and for an account by him of the profits received in respect of the land. On the date when the matter was listed for trial, counsel for the defendant informed the Court that he had been briefed only three minutes beforehand, the defendant’s previous advisers having informed the defendant one week before that they could no longer act because of the defendant’s failure to pay their professional fees. Counsel sought an adjournment for “as long as possible”. There was no suggestion that the professional fees were excessive or that the defendant was unable to pay them. The plaintiff was frail and had travelled from the US to give evidence at the trial. A lengthy adjournment would have required the plaintiff to return to the US and travel to Australia again to give evidence. An adjournment was granted until the following day (a Friday) when the evidence was heard and completed. On the following Monday, the defendant successfully applied to reopen his case, and the plaintiff led evidence in rebuttal. Addresses then ensued. One of the grounds of appeal sought a new trial because the trial Judge should have granted the adjournment requested. The ground of appeal failed. There had in fact been no miscarriage of justice. Deane J, who gave the leading judgment, noted (at 115):
“The defendant has not sought to place any fresh material before this Court in relation to the question of the adjournment of the proceedings. It has not been suggested that the defendant was, as a result of the refusal to grant a lengthy adjournment of the proceedings, precluded from calling any particular evidence which it was desired to call or that any particular evidence which would be of assistance to the defendant was not, in fact, called. The attack on any failure to grant an adjournment has not been made good.”
This case was very different. It was not a trial which could be prepared by counsel on a mere 24 hours’ notice. It was quite clear, when the adjournment was first refused, from what the appellant’s solicitor said, that evidence could not be called and the trial could not proceed if the adjournment were refused. The solicitor was not capable of presenting the case and neither was the appellant. The failure to adjourn resulted in a patent injustice in that, whatever its shortcomings may have been, the appellant was effectively precluded from presenting his case. There is nothing to suggest that any prejudice to the respondent could not be rectified by an appropriate costs order.
Sali v SPC Ltd (1993) 67 ALJR 841 involved an appeal before the Full Court of the Supreme Court of Victoria of which, so it was held, adequate notice had been given. The appellant’s counsel of first choice was not available, and it seems that some desultory attempts were made to find alternative counsel. The Court appeared to have been satisfied that a wide range of choice of senior counsel would have been available to argue the appeal, and an application for an adjournment of two weeks was refused. The Full Court said that it regarded the appellant’s application as a mere delaying tactic. In dismissing an appeal based on the refusal to grant the adjournment, Brennan, Deane and McHugh JJ said (at 843):
“In Maxwell v Keun [1928] 1 KB 645 at 650, 657, 658, English Court of Appeal held that, although an appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to any other party. That proposition has since become firmly established and has been applied by appellate courts on many occasions. Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action. However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become.
In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers this ‘may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing’. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.” (Footnotes omitted.)
Mr Wells QC relied on that passage, particularly the second paragraph. Given the circumstances of that case and the finding of the Full Court of the Supreme Court of Victoria, it is not surprising that the appeal to the High Court was dismissed. However, it could not be said, on the information then before the trial Judge in this case, that the appellant’s application constituted mere delaying tactics and that alternative counsel could have been found to conduct the trial at the time when it was due to commence. It was not apparent that the appellant was otherwise manufacturing a device to avoid the trial or to postpone an inevitable failure.
As Gray J has pointed out, Toohey and Gaudron JJ in Sali v SPC Ltd made similar remarks to those which I have quoted from the joint judgment of Brennan, Deane and McHugh JJ regarding the need to consider the claims of other litigants and the public interest in achieving the most efficient use of court resources. What I regard as significant, however, are the observations of Dawson, Gaudron and McHugh JJ in The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154 to which Gray J has also referred, namely that statements of that nature “are not to be taken as sanctioning any departure from the principles established in Cropper v Smith (1884) 26 Ch D 700 and accepted in Clough and Rogers v Frog (1974) 48 ALJR 481”. Their Honours continued:
“Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and usef
ul aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”
Kirby J (at 166) made similar observations on the passages relied on by Mr Wells QC in Sali. He concluded:
“Case management, and procedural directions, were means to the attainment of justice. They were not ends in themselves. Nor were they to be applied rigidly so as to forbid pleading amendments, adjournments or other indulgences where these were necessary for the attainment of justice.”
I agree that in this case the denial of an adjournment for a shorter period than that sought, followed inexorably by the dismissal of the appellant’s claim, in the circumstances as they then presented themselves to the trial Judge, constituted a miscarriage of justice which this Court should now rectify.
GRAY J A defendant Vincenzo Cirillo (“Mr Cirillo”) made application for an enquiry as to damages, with respect to an undertaking given by a plaintiff (“Citicorp”) to support an interlocutory injunction. A judge of this court dismissed the application. This is an appeal against that decision.
The Background
In 1976 Mr Cirillo purchased an excavator for $29,000. This machine was capable of excavating some 500 cubic metres of earth per hour.
In 1985 Citicorp commenced proceedings against Mr Cirillo. On 3 May 1985 an injunction was obtained restraining him from selling, assigning, letting, encumbering, using, damaging, disposing of, or dealing in any way with equipment. Citicorp gave the usual undertaking as to damages. On 7 October 1991 Mr Cirillo unsuccessfully applied to have the claim dismissed for want of prosecution. He claimed that Citicorp had taken no steps to prosecute the action. On 2 June 1992 Mr Cirillo was declared bankrupt. Citicorp discontinued its action on 4 February 1993. On 20 June 1995 Mr Cirillo was discharged from bankruptcy.
On 4 April 1997 Mr Cirillo applied for an enquiry as to damages. He claimed that as a result of the injunction, the excavator had been left idle and out in the open at premises at Wingfield. It was said that the excavator became rusty and was ruined. He claimed that this resulted in a substantial loss of income. On 12 June 1997 the matter was referred to trial. On 30 June 2000 the court ordered that Mr Cirillo’s standing and the question of the ownership of the excavator be heard and determined as preliminary points. The trial was listed to begin on 2 April 2001. Nine weeks were set aside for the hearing.
The Adjournment Application
At approximately 8.30 am on 2 April 2001 Mr Cirillo was without counsel. Mr Cirillo’s solicitor (“the solicitor”) appeared later that morning before the trial judge at 10.00 am and advised:
“I wish to apply for an adjournment of the preliminary hearing. The grounds are basically that we are currently without counsel, as from this morning. ...
All I can say, at this stage, is that certain advices were given and then there was a mutual termination of retainer. … I am certainly not skilled enough to do the work of counsel in this matter. … All I can do is just beseech this court for that adjournment for the sole purpose of enabling me to find alternative counsel. … [the counsel] were both booked. … but the retainer of both counsel has, in fact been terminated.”
When the trial judge asked for an explanation as to why the retainer was withdrawn, the solicitor replied:
“… I am not in a position to be able to disclose to this court the reasons for that, other than to simply say that, at the end of the day, it was a mutual termination. … to go any further would then involve me breaching legal privilege which I am not instructed to do.”
Counsel for Citicorp opposed the application for an adjournment of 12 weeks.
On the application for leave to appeal it was submitted that the solicitor for Mr Cirillo “got himself in a bit of a twixt’”. The following interchange occurred:
“Counsel: ... [The retainer] was never withdrawn. Their services were withdrawn; not their retainer was withdrawn. Their services and labour were withdrawn. They got paid in any event.
The Trial Judge: “I don’t think I misunderstood that. I think I assumed, as [the solicitor] told me, advice had been given and not been accepted, and counsel then said ‘we won’t appear.’
Counsel: Yes but he actually goes on to say ... ‘mutual termination’. I think he got that all wrong and he’s corrected that in this affidavit because no-one mutually terminated. Mr Cirillo did not accept them withdrawing from the matter he wanted to proceed.
The Trial Judge: They are two different things. He might have wanted to proceed, but he may not have wanted to proceed with them.”
It appears that the solicitor lacked the experience necessary to accurately describe Mr Cirillo’s position on the morning of 2 April 2001. At times reference was made to the withdrawal of counsel’s retainer. It was also said that “the retainer of both counsel has, in fact been terminated”, and that there had been a “mutual termination of the retainer.” The solicitor was either unaware of the precise meaning of these phrases or misunderstood their meaning as it related to Mr Cirillo.
The trial judge expressed concern about the orderly disposition of the court’s business and protecting the interests of Citicorp which was ready to proceed. He said:
“If you are asking [for a twelve week adjournment] the matter is postponed indefinitely because the roster has been set for the year, this case cannot be heard some other time this year. It is heard now or not.”
And then continued:
“I have to do what is just. Justice has to be delivered to both parties… The plaintiff has got itself ready to fight the case today. It would be a severe financial hardship for the plaintiff to be sent away. The plaintiffs are also entitled to have the matter brought to an end. It has been going on for 15 years…
I understand your reluctance [to act as counsel] but there may be no choice. Other than that, I suppose your client would have to present his own case.”
The Trial Judge’s Reasons
The trial judge intimated that he would have to refuse the application. However, he allowed a 20 minute adjournment to enable the solicitor to obtain instructions. Upon resuming, the solicitor sought a further adjournment until 12.00 pm so that he could obtain further instructions and discuss with Mr Cirillo the future direction of the case.
Prior to this adjournment being granted, the trial judge delivered ex tempore reasons for his refusal of the application. Those reasons included:
“I am in the difficult position of not knowing why it is that the first defendant cannot proceed this morning. [The solicitor] rather suggested that his client would throw himself on the mercy of the court. The difficulty the court has in extending any mercy in circumstances such as this, is that it does not know why it should. The court has no information as to why the plaintiff cannot proceed, except for the bare information that counsel’s retainer has been withdrawn. Whilst, of course, the first defendant is entitled to justice, so also is the plaintiff. The plaintiff is ready for the hearing today, and the adjournment of this matter would put the plaintiff to very great expense.
The matter is a very old one. It involves the determination of facts in relation to circumstances more than 15 years old. There is no reason given why counsel’s retainer has been withdrawn. I am not in a position to know whether Mr Cirillo, if I allowed the adjournment, could pay the plaintiff’s costs. All I know is that he had previously been bankrupt, but is now discharged.
The disruption that would be occasioned to the Court is obvious.
In all the circumstances, the application for the adjournment has to be refused. ”
Upon resumption at 12.00 pm a further adjournment was granted until 2.15 pm to enable Mr Cirillo to meet possible alternative counsel at 1.00 pm. At 2.15 pm the solicitor advised the court:
“I have been specifically instructed by [Mr Cirillo], to again ask for an adjournment for 12 weeks for the reasons that I don’t have counsel, and I can’t present it, nor can my client, without that, I can’t present the case, and he can’t so I again implore this court, if it would reconsider itself, and grant an adjournment of 12 weeks, if not 12 weeks, 8 weeks.”
The trial judge responded:
“... It wouldn’t adjourn for 12 weeks, it would adjourn until January of next year. You can’t list a case like this on short notice, as you would understand.”
His Honour again refused the application. The solicitor then advised the court:
“In view of that, I am just not in a position to proceed any further with this matter, and I have got no submissions to make to this court.”

Counsel for Citicorp applied to have the application dismissed on the basis that there was no prosecution of the application.
The trial judge said:
“I will make it clear at this stage. I will give your client [Mr Cirillo] one last chance if he wishes to present his case now.”
The solicitor responded:
“All I can say, I don’t have the expertise to put this case, and he has even substantially less. I am just not in a position to do so.”
The trial judge again asked:
“Is there any way to remedy the situation?”
The solicitor replied:
“The only way in which it can be remedied, that is by simply having the adjournment. I simply need counsel, and then virtually provide them with all the briefs, papers, books and so on. He or she would have to read it all, and then give my client advice as to whether we continue with the hearing or whatever it may be. But if I do anything less than that, I would be rather neglecting my professional duty, and I am not going to try to hoodwink your Honour and say, I can do it in a week or two weeks. Knowing the history of this mater, knowing what is involved, it will take some time.”
The Trial Judge asked:
“Is there no way of presenting his case at the moment?”
The solicitor replied:
“There’s a lot of technical aspects, from what I can gather. We did have two counsel, one prepared part of the opening, the other prepared certain aspects of the case, so it was a combined effort with me preparing all the documentation and having a clerk helping me and so on. I guess I would be like a chook without a head on, for want of a better analogy.”
The trial judge said:
“If you don’t do something like that, I will dismiss his case…”
and then added:
“Isn’t a badly presented case better than none?”
The solicitor replied:
“Sometimes I believe a badly presented case could be worse than none. There are so many issues. This is why the matter has gone on for 15 years. This is why over the past five, six years, all these issues have been hotly contested.”
The Application To Dismiss The Claim
The trial judge gave an ex tempore ruling on Citicorp’s application to have Mr Cirillo’s application for an enquiry as to damages dismissed. He said:
“This matter has been set for hearing for some time. This morning I refused an application for an adjournment by the first defendant, for reasons which I gave at that time. I granted the first defendant two short adjournments, the first for 15 minutes so that instructions could be taken in relation to my refusal to grant of adjournment and the second for a period between 12 o’clock and 2.15, so that counsel could be consulted about my refusal to grant an adjournment.
The matter resumed at 2.15 pm. The first defendant renewed his application for an adjournment upon the same grounds as the application this morning, and I dismissed the application for the same reasons I gave this morning. After refusing the adjournment, I asked the solicitor for the plaintiff, to present the plaintiff’s case. He said that he could not and would not and he adduced no evidence in support of the plaintiff’s case.
[Counsel for Citicorp] has now made an application under rule 2.09 of the Supreme Court Rules for an order striking out the application for an inquiry as to damages in respect of the plaintiff’s undertaking. The first defendant has refused my offer of a further short adjournment to take instructions from his client. I inquired again whether the first defendant would present his evidence, so that the matter could proceed, but was advised that no evidence would be presented in support of the first defendant’s application for an inquiry as to damages. It seems to me that unless I accede to [Counsel’s] application, then the matter would have to be adjourned, which of course would be a perverse result, because I have refused such an application. In my opinion it would be appropriate, in the circumstances, where the matter has been called on and no evidence has been led, or will be led in support of the application, that the application should be dismissed.
I therefore make an order dismissing the first defendant’s application for an inquiry as to damages in respect to the plaintiff’s undertaking.”
The Appeal
Mr Cirillo complained that the trial judge erred in:
-not taking account of, or giving sufficient weight to, all of the           circumstances of his inability to proceed with the hearing on 2 April 2001
-    dismissing the application for an enquiry as to damages and failing to adjourn the matter for a reasonable period to allow him to engage new counsel.
-    not finding that in the interests of justice, he should have been granted a reasonable period of time to engage new counsel
It was also said that the trial judge erred in giving insufficient weight to the fact that Mr Cirillo:
-    was advised one and a half hours before the hearing that counsel would not appear on his behalf, and
-    his solicitor were not ready, competent or capable of presenting the long and complex case.
It was said that the withdrawal of counsel was not the fault of Mr Cirillo.
Case Management
The role of judges in securing the timely and efficient management of cases was discussed by the High Court in State of QLD v JL Holdings.[1]
[1] (1997) 189 CLR 146
In JL Holdings[2], the trial judge refused to grant an application for leave to amend because of concern that the application would lead to the loss of the trial date. Her Honour said:
“I have, in the context of this case, where there is only a period of about six months from the time that leave was sought to the commencement of the hearing, taken the view that the most relevant consideration is whether the amendments would jeopardise those hearing dates. If that were the case, I would be inclined to disallow the amendments. Such an approach takes account that the loss of the hearing at that time could be said to amount to severe prejudice to the applicant, particularly since the matter, I would think, would be unlikely to be relisted until the following year. It also takes account of a shift in attitude and that in these times a party’s ‘right’ to present their case or their defence is viewed as subject to some limitation.”
[2] (1997) 189 CLR 146 at 152
The Full Federal Court, by a majority, dismissed an appeal. During the appeal to the Full Federal Court in J L Holdings reference was made to the remarks of Bowen LJ in Cropper v Smith[3] at (710):
“Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do no exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace.”[4]
[3] (1884) 26 Ch D 700 at (710)
4 These remarks were adopted in Clough and Rogers v Frog (1974) 48 ALJR 481
The majority of the Full Federal Court dismissed these remarks saying:
“times have changed since 1884, and even since 1974.”[5]
[5] (1997) 189 CLR 146 at 153
In allowing a further appeal to the High Court in JL Holdings[6], Dawson, Gaudron and McHugh JJ referred to a passage from the judgment of Toohey and Gaudron JJ in Sali v SPCLtd[7] at (849):
“The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard.”
[6] (1997) 189 CLR 146
[7] (1993) 67 ALJR 841
Their Honours then said at (154-155):
“It may be said at once that in the passage which we have cited from Sali v SPCLtd [being the passage quoted above] Toohey and Gaudron JJ are not to be taken as sanctioning any departure from the principles established in Cropper v Smith and accepted in Clough and Rogers v Frog. Sali v SPC Ltd was a case concerning the refusal of an adjournment in relation to which the proper principles of case management may have a particular relevance. However, nothing in that case suggests that those principles might be employed, except perhaps in extreme circumstances, to shut a party out from litigating an issue which is fairly arguable. Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
…
In our view, the matters referred to by the primary judge were insufficient to justify her Honour’s refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion.”
Significant parallels can be drawn between J L Holdings and the present case. In both cases it was feared that if the application was granted, delays would lead to a loss of the allocated trial date.
The Issues on Appeal
At no time either before the trial judge or on appeal was it suggested by counsel for Citicorp that Mr Cirillo’s claim was hopeless, bound to fail or without prospects. It was also not suggested that blame should be attributed to him personally for the inability to proceed with the preliminary points. Mr Cirillo appeared willing to prosecute his claim. However he found himself without representation on the morning of trial and was understandably unable to proceed.
At no time was it suggested that Citicorp would suffer irreparable prejudice if an adjournment was granted. The factual issues to be decided were of many years standing. It was unlikely that delay, even for some months, would have impacted adversely upon witnesses’ recollection in any material way. The costs thrown away could have been the subject of an appropriate order. The solicitor accepted this possibility. He said:
“If your Honour is mindful of granting this morning’s application I do acknowledge that there would be some substantial costs thrown away as a consequence thereof.”
If necessary costs could have been ordered on an indemnity basis. Security could have been ordered.
Although the trial judge expressed concern about the difficulty in re-listing the matter, it would have been appropriate to grant a short adjournment. An adjournment of approximately one week would have enabled the solicitor to brief alternative counsel or at least obtain a considered estimate of how long the new counsel would need before being ready to proceed. The court would then have been properly informed as to whether part of or most of the time allocated for the trial could still be used.
It must be acknowledged that the solicitor did not ask for a short adjournment. He originally asked for a 12 week adjournment and then reduced the period sought to eight weeks. On appeal it was accepted, that in hindsight, the solicitor should have requested a shorter period to satisfy the trial judge that an “intermediate position” was possible. However, the trial judge could equally have adopted such a course. The solicitor said that the matter was beyond his experience. He also demonstrated this before the trial judge.
The trial judge was placed in an invidious position. Counsel had been retained by Mr Cirillo for many years. Counsel briefed to appear at trial had also been briefed for many months. Both counsel briefed for Mr Cirillo appeared before the trial judge in late March 2000 at the final pre-trial management hearing. No perceived difficulty was adverted to at that time.
Neither counsel briefed for Mr Cirillo appeared before the trial judge on the morning of the trial. Rather, it was left to an inexperienced solicitor to inform the court about the end result of a problem that had apparently arisen. This state of affairs should not have occurred. As officers of the court, counsel should have attended court, and insofar as they were able, assisted to clarify the position. For counsel to have so acted would have accorded with long established practice. As officers of the court, counsel also had an obligation to assist the court in dealing with circumstances that could lead to unfairness or injustice. Had counsel attended at court that morning, the trial judge may well have been better informed.
The courts must give due weight to the need for efficiency. Against that must be balanced the need to ensure that Mr Cirillo was not prejudiced by finding himself unrepresented by counsel on the morning of trial.
I consider that the matters referred to by the trial judge were insufficient to justify refusing the application for an adjournment. In my view an intermediate option of an adjournment for one week would have enabled new counsel to be briefed and an informed estimate to be made of whether part of the time set aside could still be used. No irreparable prejudice to Citicorp would have been occasioned. However, even if it transpired that the trial would be delayed for some months, it is my view that an adjournment should still have been granted.
Accepting that in all cases, justice is the paramount consideration, an adjournment should have been granted to avoid the dismissal of Mr Cirillo’s claim without a hearing. This is particularly so, given that the difficulty which confronted him arose on the first morning of trial, less than two hours before the hearing was to begin.
The trial judge’s decision not to grant the adjournment was in the circumstances, contrary to the interests of justice. Accordingly his discretion miscarried.
In the light of this conclusion it is unnecessary to consider Mr Cirillo’s application to adduce fresh evidence in support of the appeal.
This appeal must be allowed. I order that:
1.The orders made on 2 April 2001 dismissing Mr Cirillo’s application for an enquiry as to damages and as to costs be set aside.
2.That Mr Cirillo’s application be referred to the judge designated under Rule 2A of the Supreme Court Rules for further pre-trial supervision of the application.
3.The parties be heard as to the costs of the hearing before the trial judge and the hearing before this court.
LIST OF AUTHORITIES LISTED AS THEY ARE CITED IN THE JUDGMENT
1(1997) 189 CLR 146
2 (1997) 189 CLR 146 at 152
3 (1884) 26 Ch D 700 at (710)
4 These remarks were adopted in Clough and Rogers v Frog (1974) 48 ALJR 481
5 (1997) 189 CLR 146 at 153
6 (1997) 189 CLR 146
7 (1993) 67 ALJR 841

[2001] SASC 349

9 November 2001