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

[2001] SASC 98

CITICORP AUSTRALIA LTD & ORS V CIRILLO & ANOR

[2001] SASC 98

Civil (Ex Tempore)

1................ LANDER J....... The first defendant, who is dux litis in this action, has this morning applied for the adjournment of the matter for a period of 12 weeks. These proceedings were commenced by the plaintiff in 1985.  On 3 May 1985, Cox J granted an interlocutory injunction in favour of the plaintiff, restraining the first defendant from selling, assigning, letting, encumbering, using, damaging, disposing of, or dealing in any other matter, with Poclain HC300 Excavator Serial No.77. The price of the injunction was, as usual, an undertaking by the plaintiff as to damages. The injunction was continued by White J on 10 May 1985 until 24 May 1985, and further continued by his Honour on 24 May 1985, until the trial of the action or until further order.  On both occasions the plaintiff continued the undertaking as to damages.

1. On 7 October 1991, the first defendant applied to have this matter dismissed for want of prosecution. On 2 June 1992, the first defendant was bankrupted. On 4 February 1993, the plaintiffs discontinued the action. On 20 June 1995, the first defendant was discharged from bankruptcy. On 4 April 1997, Mr Cirillo applied for an inquiry as to damages in respect of the plaintiff’s undertaking, and on 12 June 1997, Acting Judge Boehm ordered that the issue as to whether the undertaking should be enforced, should be referred to trial, and he made certain orders in relation to the procedure to be adopted.

2. On 30 June 2000, Judge Burley ordered that the issues of the defendant’s standing and the question of ownership of the Poclain, be heard and determined together as preliminary points.  On 18 July 2000, he made certain orders to allow those preliminary issues to be determined discretely.

3. On 4 August 2000, Olsson J was told by both parties that no further interlocutory steps were required for the determination of the preliminary hearing of the matters identified by Judge Burley. However, on 31 October 2000, an application for further and better discovery was made by the first defendant, which I heard and determined on 24 November 2000.

4. Since that time at least, both parties have been agreed that the matter is ready for trial in respect of the preliminary issues. Both parties have known since late 2000 that this matter would be heard on this day, and both parties have been advised that more than two months would be put aside by the court, to allow the preliminary issues to be determined. In fact, nine weeks have been set aside for the hearing and determination of the matter.

5. Over the last few weeks, the identity of the trial judge has changed, as certain court commitments have altered, but the parties have been aware that the matter would start today, although they were not aware until last week that I would be the trial judge. The identity of the trial judge, of course, is immaterial. Last week I asked the parties to attend before me, so that I might advise them that I did not intend to hear any more than the preliminary issues which had been identified by Judge Burley, and in that regard, I intended the matter to proceed as the parties had expected it would, since June of last year. Counsel for the first defendant, Ms Maharaj, appeared on that occasion, as she had on a number of occasions before me, in relation to the management of the action.

6. When the matter was called on this morning, Mr Marrone, the first defendant’s solicitor, applied for the adjournment of the action for a period of 12 weeks. He told me that counsels’ retainer had been withdrawn this morning, and that in those circumstances, the first defendant was unrepresented by counsel. The first defendant had previously retained Ms Maharaj and Mr Brohier for the hearing to commence today. Mr Marrone told me he was unable to give me any further details as to his client’s position, and could not advise me why it was that counsel’s retainer had been withdrawn. In those circumstances, I did not press him to give an explanation.

7. An adjournment of 12 weeks would mean that the matter would have to be adjourned until next year.  I would not be available to hear the matter in 12 weeks time, nor would any other judge so far as I know. Indeed, the roster for this year has closed.

8. The plaintiff opposed the application for an adjournment advising me that it was ready to proceed this morning, and it had expected to proceed until Mr Wells QC, who appeared as senior counsel, had been advised of this application by Mr Marrone earlier this morning.

9. I am in the difficult position of not knowing why it is that the first defendant cannot proceed this morning. Mr Marrone 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 counsels’ 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.

10. 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 for 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.

11. The disruption that would be occasioned to the Court is obvious.

12. In all of the circumstances, the application for the adjournment has to be refused.

13. After I advised Mr Marrone that I could not allow the adjournment, he sought a short adjournment, which I granted him, to take instructions from his client.  On resumption after the 15 minute adjournment, he has now sought a further adjournment to take further instructions from his client, and I will grant him that time.

14. I will adjourn the matter until 12 o’clock, or soon thereafter, as he is ready to address me further.