Elders Limited v Flinn & Anor

[2007] VSC 252

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7782 of 2002

ELDERS LIMITED (ACN 004 045 121)	Plaintiff
v
BERNARD ROBERT FLINN and MARY PATRICIA FLINN	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 23 May 2007
DATE OF RULING:	23 May 2007
CASE MAY BE CITED AS:	Elders v Flinn
MEDIUM NEUTRAL CITATION:	[2007] VSC 252

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PRACTICE AND PROCEDURE – Adjournment – Impecunious defendants – Adjournment to enable defendants to seek representation.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Hoyne	Corrs Chambers Westgarth
For the Defendants	Appeared on their own behalf

HER HONOUR:

1. Application for an adjournment of the trial has been made by the defendants, whose solicitor has been given leave to cease to act. 

1. The defendants submit that they should be given time to seek legal assistance in relation to the presentation of their case.  They base their application, at least in part, upon their impecuniosity.  Counsel for the plaintiff has submitted that there is no material to support the application. 

1. There is, however, material on the court file in which Mr Flinn deposed to his financial situation when seeking an order to pay outstanding costs by instalments. I refer to his affidavit sworn on 28 April 2006. In paragraph 5 of that affidavit Mr Flinn deposes that he and his wife are unable to afford the trial.  Mr Peters, the defendants' solicitor, has also deposed, in an affidavit sworn this day, that his clients have informed him that they are unable to meet his fees.  In those circumstances, I am satisfied that there is some material before the Court to support Mr Flinn's claim that the defendants have insufficient funds in hand to meet the costs of legal representation.

1. Mr Flinn also advised the Court that it was beyond him to represent the defendants at the trial.  This assertion is borne out to some extent by the contents of paragraph 11 of the affidavit sworn by Mr Flinn on 28 April 2006.  There, he deposed as to his limited education, to Year 9 level, and his lack of understanding of the meaning of the legal expressions "misleading and unconscionable" which appear in the defendants' defence and counterclaim. 

1. I have referred the defendants to the Self-represented Litigants’ Coordinator appointed by the Court.  I have advised Mr Flinn that the co-ordinator could refer him to a legal service which might be able to provide him with representation.  I have also informed him that such assistance is by no means guaranteed.  The difficulty confronting the Court is that the referral may not be able to be dealt with in any definite period of time which would enable the trial to be accommodated in the current sittings in Warrnambool.  At this point, I have been unable to contact the Listing Master to determine when the Court might be able to reschedule the trial in the event of an adjournment.

1. The plaintiff argues that there might be some threat to its security interest in certain cattle, under the stock mortgage which is the subject of the dispute between the parties.  Counsel for the plaintiff bases this fear upon some statements made by Mr Flinn that about 40 cattle are, in his view, subject to that mortgage. The stock mortgage, however, refers to in the order of 350 head.  Counsel further notes Mr Flinn's assertions to the Court that his son owns the balance of the cattle (over and above the 40 which he acknowledges are the subject of the mortgage).

1. The plaintiff argues that the mortgage covers more than those 40 cattle and points to undertakings relating to the disposal and transfer of more cattle given to the Court in May 2005.  Nevertheless, I note that the plaintiff has made no application for any injunctive relief against Mr Flinn's son, notwithstanding Mr Flinn's assertions.  In this regard I also note that there were orders made vacating the trial date by Master Kings on 5 May 2006. The master noted, in “Other Matters”, that the defendants would permit a representative of the plaintiff to inspect the livestock on 19 July 2006.

1. Those matters would tend to suggest that the plaintiff has been monitoring the situation with regard to the cattle. In any event, if I am wrong about that, they suggest that it could seek injunctive relief if it fears the destruction of its security before trial. 

1. Counsel for the plaintiff also points out the effect of the effluxion of time upon the herd.  However, the plaintiff’s proceeding was commenced some four and a half years ago on 17 October 2002, and, as far as I can gather from the documentation in the Court file, the state of the cattle does not seem to have been the predominant factor determinative of the interlocutory progress of this case.

1. That interlocutory history has included three previous vacations of the trial date.  The first appears to have involved the defendants' lack of funds for the preparation of the trial. Further I note that, the defendants have not yet met their obligations under the order for costs made against them on that occasion.  The second vacation of the trial date appears to have related to the defendants' application to have their defence and counterclaim amended.

1. On 5 May 2006, lack of funds once again resulted in the trial date being adjourned and the Listing Master made the stock inspection reference I have noted earlier.  The Master also indicated that the trial must proceed, despite the defendants' financial difficulties. 

1. The plaintiff further argues that the adjournment is likely to be futile because of the weakness of the defendants' case.  Counsel for the plaintiff sets out a number of arguments in his written submissions, which may or may not be persuasive either at trial or to those assessing the defendants' entitlement to legal assistance.  Suffice it to say that I am not satisfied that the defendants' case is so obviously groundless that I can agree that the application for assistance would be futile.

1. The authorities make it clear that the Court must ensure that there are no avoidable delays in litigation.  The delay involved in postponing a hearing date however is unavoidable if the court is satisfied that, in its absence, justice cannot otherwise be done.  This is a different question from that as to why the delay has arisen.  Taking all the submissions made in relation to this application into account, I am not persuaded that the plaintiff would suffer any prejudice by the delay which could not be compensated by an order for costs in its favour.

1. In my view, in all the circumstances, the interest of justice require that the defendants be allowed the opportunity to obtain legal assistance at this point, if  possible. I reach that conclusion notwithstanding the force of the plaintiff’s arguments and the fact that the defendants have delayed their application to this late stage resulting in the trial date being vacated for a fourth time.  Any delay should be as short as possible and the defendants should meet any costs thrown away by reason of the vacation of the trial date.