Citicorp Australia Ltd & Ors v Cirillo & Anor No. Scciv-85-1481

CITICORP AUSTRALIA LTD AND OTHERS V CIRILLO & ANOTHER
[2001] SASC 142

LANDER J. This is an application for leave to appeal to the Full Court pursuant to r 94.01(b)(i).
Rule 94.01 provides:
“(1)Where pursuant to Section 50(3) of the Supreme Court Act or otherwise application for leave to appeal to the Full Court may be made either to a Judge or to the Full Court, the application for such leave is to be made in the following manner:
(a)initially to the Judge whose decision is complained of, at the time judgment is delivered or the order is made; or
(b)where application is not made at that time it shall be made either:
(i)by application, either ex parte or upon notice as the Judge may direct, to the Judge appealed from; or
(ii)to the Full Court,
and in either case within fourteen days from the date of delivery of the judgment or the making of the order or within such further time as the Judge or the Full Court may allow.
(2)Ex parte application where refused may be renewed to the Full Court. Where an ex parte application has been refused by a Judge the application may be renewed ex parte by way of appeal to the Full Court subject to (1) above and Rules 94.02 and 94.03 below.”
The appellant seeks the following order:
“That the appellant be granted leave to appeal to the Full Court of the Supreme Court of South Australia against the Judgment and Orders made by the Honourable Justice Lander on 2 April 2001.”
The orders made on 2 April 2001 were:
“1.First defendant’s application for an adjournment for 12 weeks is refused.
2.First defendant’s application for an inquiry as to damages in respect of the plaintiff’s undertaking is dismissed.
3. The first defendant to pay the plaintiff’s costs of action.
4.Reserve to the plaintiffs the right to apply for those costs to be fixed on an indemnity basis.”
I delivered separate reasons for the making of the orders in para 1 and para 2 of those orders.
This application has been made ex parte. The first defendant has suggested I decide the matter without requiring him to serve or give any notice to the plaintiff. Because of the decision which I am about to give I accept that submission.
As to the first order I will assume that it is an order from which an appeal can be brought with leave although I think there is some doubt about that: Legal Practitioners Complaints Committee v A Practitioner (1982) 46 SASR 126 per King CJ at 127 but see Remm Construction (SA) Pty Ltd v Allco Newsteel Pty Ltd and Others (1992) 57 SASR 180.
However, in my opinion, leave should not be granted.
The first defendant’s application for an adjournment was refused in circumstances where the first defendant had withdrawn his retainer to both counsel. I was not advised of the reasons for the withdrawal of the retainer. However, I assumed, at the time, because I was not advised otherwise, that the first defendant was ready to proceed: that sufficient funds were available to retain both solicitor and counsel: and that there was no other impediment to the matter proceeding.
Those assumptions have been confirmed on this application today. The first defendant was in a position to proceed but for the late withdrawal of counsel.
In any event all I was told on the application for an adjournment was that counsel had withdrawn and that the first defendant sought an adjournment for 12 weeks to engage other counsel. The matter could not be adjourned for 12 weeks. If it was to be adjourned it had to be adjourned into sometime next year. The plaintiff was ready to proceed. The first defendant was represented by a solicitor. All parties were well aware that the matter had been listed for some time.
It is said that the application for leave to appeal raises, for consideration, a procedural issue; namely “whether a litigant whose counsels (sic) withdraw on the morning of trial should be granted an adjournment to enable that litigant to retain another counsel.” In my opinion this application does not raise any matter of importance. Whilst, of course, the refusal of the application of an adjournment was important to the first defendant it does not raise any matter of importance generally.
The affidavits which have been filed in support of this application suggest that the first defendant was advised by counsel at the very last moment that he should not proceed with the matter and that if he did counsel would not present the case for him. I am not sure why that advice was given or indeed why it was given so late if in fact it had not been given before.
The Full Court will not be in a position to explore the relationship between counsel and the first defendant and the circumstances in which the retainer was withdrawn. Those issues will not be ventilated in the Full Court and the Full Court will be no better advised than I was at the time when I refused the application. In those circumstances the refusal to adjourn the proceedings does not raise any question of general importance.
In due course the first defendant’s claim was dismissed because his solicitor refused to present any evidence in support of the claim. It must have been apparent to the first defendant and his solicitor, immediately before the order was made dismissing the first defendant’s application, that their refusal to present evidence in support of the application would inevitably lead to the dismissal of the first defendant’s claim.
Insofar as leave is required to appeal from my decision refusing the adjournment, leave is refused.
My order dismissing the first defendant’s claim for an inquiry as to damages in respect of the plaintiff’s undertaking the action between the parties on the injunction is, in my opinion, a final order. It finally disposes of whatever rights the first defendant may have: Licul v Carney (1976) 8 ALR 437. The dismissal came about because of the failure of the first defendant to prosecute his action when called upon so to do: r 2.09.
In Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246 Mason J said:
“The issue then is whether the refusal of the appellant’s application finally disposed of the action.”
The dismissal of the first defendant’s claim for an inquiry would prevent a second application of the same kind. In my opinion the order made finally dismissed the action, as it is understood. In those circumstances it is a final order: Carr v Finance Corporation of Australia Ltd (No. 1) (1981) 147 CLR 246 per Gibbs CJ at 248; Port Melbourne Authority v Anshun Pty Ltd (No. 1) (1980) 147 CLR 35.
The dismissal of a matter for want of prosecution may be compared with an order refusing to dismiss for want of prosecution. In the latter case the applicant can always renew the application. In that sense it does not finally dispose of the action between the parties: Hall v Nominal Defendant (1966) 117 CLR 423 at 440. In the former it does. The party, whose action has been dismissed, cannot proceed with that action. Moreover, if that party was to commence a fresh action seeking the same relief on the same facts inevitably the party would be met with an application to dismiss the second action as an abuse of process: r 3.04(c).
In this case, the second defendant would not be able to bring a separate action for damages against the plaintiff in respect of the undertaking given by the plaintiff at the time of the grant of the injunction. My order finally disposes of his rights as against the plaintiff.
The first defendant does not need leave to appeal from that order. The first defendant has a right of appeal pursuant to s 50 of the Supreme Court Act and r 95. I therefore refuse leave to appeal in respect of the second order.
If I am wrong about that, and the first defendant does need leave to appeal from my order dismissing his action for an inquiry as to damages in respect to the plaintiff’s undertaking, in my opinion, leave should not be granted.
I dismissed the second defendant’s action because the second defendant refused, through his solicitor, to present his case when called upon so to do. The refusal to present his case arose in circumstances which I addressed on his application for an adjournment. In my opinion, the first defendant was not entitled to an adjournment for the reasons I have already given, and as he then was not prepared to present his case, inevitably, the matter had to be dismissed.
It follows, if I am wrong and leave is required from my order dismissing his action for an inquiry as to damages, leave should be refused.
Leave to appeal is refused.

[2001] SASC 142

30 April 2001