FAA Services Pty Ltd v. Proctor

[2007] QDC 273

[2007] QDC 273

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBERTSON

No 239 of 2006

FAA SERVICES PTY LTD ACN 006 908 176 FORMERLY TRADING AS FINANCIAL ADVISERS AUSTRALIA PTY LTD ACN 006 908 176	Plaintiff
and
NEVILLE ROBERT PROCTOR	Defendant

MAROOCHYDORE

..DATE 13/11/2007

ORDER

HIS HONOUR:  The trial of this claim was set to proceed in this Court for today and tomorrow.  It is necessary for me to set out a brief history of at least part of the litigation as recorded in the Court file in order to explain the orders that I intend to make.

On the 7th of June 2007, Mr Proctor's then solicitor, Mr Steven Middleton, applied for an order that his firm be removed as solicitors on the record.

Mr Proctor acknowledges that he was served with the application and supporting affidavit which reveals a failure to respond to his own solicitor and a failure to honour undertakings to Mr Middleton in relation to funds.   At all material times, Mr Proctor acknowledges that his home address is 48 Grebe Circuit, Mango Hill, Queensland 4509.

On the 9th of July 2007, Mr Brough, on behalf of the plaintiff, applied to the Court for an order that he be able to inspect certain numbered documents in the respondent's list of documents which had been provided, pursuant to the disclosure obligation, earlier in the year.  Mr Brough's affidavit in support of that application revealed that he had received the list from Mr Middleton on the 14th of March 2007, and his office had then made a number of requests to set a time to inspect which was finally set at 9 a.m. on the 21st of June 2007 at the offices of Mr Brough's firm.  On that day at approximately 8.15 a.m. a person from Mr Middleton's firm rang to say that the inspection appointment would have to be cancelled because Mr Proctor had not provided to his still then solicitors on the record, the majority of the documents that Mr Brough wished to inspect. 

Subsequently a rule 444 letter was sent and this was not complied with which led to Mr Brough's application.  That application and supporting material was deemed to be served because it was served on Mr Middleton's firm which was still Mr Proctor's solicitors on the record. 

On the 20th of July 2007, both applications were heard.  Mr Proctor, who had been served with Mr Middleton's application and who should have had a copy of Mr Brough's application from his solicitors, did not appear in person.  Orders were made that inspection take place no later than seven days after the hearing and Mr Middleton was given leave to withdraw as Mr Proctor's solicitor.

On the 9th of October Mr Brough filed an application in which he sought an order to dispense with Mr Proctor's signature on the request for trial date which, it is acknowledged, had been personally delivered to Mr Proctor by Mr Brough on the 9th of August 2007.  The application also sought an order that Mr Proctor provide copies of a large number of named documents, over 500, disclosed in Mr Proctor's list of documents.

Mr Proctor acknowledges that on the 9th of August 2007, in Mr Brough's office, he received the request for trial date and he also received a letter dated the 9th of August 2007, which is SB1 to Mr Brough's affidavit filed on the 9th of October 2007, which is a request for documents 16 to 518 inclusive and document number 543.  In a further affidavit filed on the 18th of October 2007 in support of that application, Mr Brough disclosed that Mr Proctor had telephoned him on the 6th of August 2007 regarding the inspection and an arrangement was made that they meet in Mr Brough's office on the 9th of August 2007, when Mr Proctor produced his documents for inspection.  Copies were not taken at the time, obviously because of the extensive nature of the documents required.  The letter to which I have earlier referred, dated the 9th of August 2007, was hand delivered to Mr Proctor by Mr Brough at that time.

Despite the earlier order, Mr Proctor had not provided copying devices, which is a reference to the requirements of rule 217, and that is why he was requested to provide copies of those documents in that letter.

On the 19th of October 2007 when the application came on for hearing Mr Proctor did not appear.  I was satisfied then and am still satisfied that he was properly served at his home address at 48 Grebe Circuit, Mango Hill 4509.  He confirms today that he received the notice of trial listing, forwarded to him by the Court on the 24th of October 2007 to that address, but now disputes, in an affidavit which he has filed by leave this afternoon, that he received copies of some of the documents referred to in Mr Brough's affidavit and he disputes receiving a copy of the Court order dated the 19th of October 2007. 

I do not intend to determine whether that is correct at this point in time, however, I am satisfied, in the absence of any sworn evidence, that he did have notice of the hearing on the 19th of October 2007 and chose, similar to decisions he had made earlier, not to appear. 

On the 19th of October 2007 Mr Brough submitted, and I accepted, that there was no inconsistency between dispensing with the party's signature on a request for trial date and a simultaneous application for an order that copies of documents be provided, which documents had been disclosed.  A request for trial date requires that parties certify that the proceedings in all respects are ready for trial.

On the 19th of October 2007, in the absence of Mr Proctor, I ordered that his signature on the request for trial date be dispensed with and that he provide copies of those documents within a specified time.  Mr Proctor did not provide copies of those documents and this prompted an application filed on the 8th of November 2007, returnable today, for an order for summary judgment pursuant to rule 225 (2)(b), alternatively rule 374(5)(a). 

Mr Proctor appeared in person this morning and gave me a signed application dated the 11th of November 2007, in which he requests an adjournment.  Despite the sworn affidavit of Mr Middleton to which I have earlier referred, detailing his firm's many difficulties in getting instructions from Mr Proctor, Mr Proctor now asserts that Mr Middleton is still prepared to act for him but cannot today because of other commitments.  Mr Proctor did not come to Court ready to proceed today despite the mandatory terms of the notice of trial listing which informs him that he must be in a position to proceed on the above dates and which further informs him, "If you are not legally represented you will need to conduct your own defence."  He made no contact with Mr Brough prior to today to inform him of his intention to apply for an adjournment of the trial.

Initially I refused the adjournment, however, Mr Beacham then raised with me an obvious difficulty confronting his client.  Because of the failure of Mr Proctor to provide the documents, his client ran the risk of proceeding to trial in a state of significant forensic disadvantage simply because of the non-compliance by Mr Proctor of his obligations under the rules.

I then directed Mr Proctor to bring the original documents to Court, by 2 p.m. today; he having informed me that his documents were at home, in a neat and accessible condition.
He has subsequently produced those documents. Mr Beacham informs me that a number of documents are missing, namely documents 16 to 20, 49, 63, 64, 100 to 102, 284, 439, 474 and 543.

Given the nature of the claim, and the defence, it is clearly most important that the plaintiff's legal representatives have access to those documents for the purposes of enabling them to run their case without the threat of ambush or a disadvantage, in a forensic sense.

In the circumstances, for the reasons that I have enunciated, I intend to grant the adjournment. Mr Proctor will be required to pay the costs thrown away by the adjournment, on an indemnity basis.

I will order in terms of the draft order which I have initialled, dated today's date, and lodged with the papers.

I will just leave that order in Court with my associate, so you can both check it, and make sure the drafts you have accord with the amendments I have made. I will direct that a transcript of today's proceedings and a transcript of my reasons for judgment be made available to both parties as soon as they are available.

MR BEACHAM: Thank you, your Honour. There was one matter which
- it's purely an administrative matter, really for my side's purposes. While Mr Proctor is here, we - I think your Honour referred to it in the judgment, we wanted to confirm that his address was still 48 Grebe Circuit.

HIS HONOUR: G-R-E-B-E Circuit, Mango Hill.

DEFENDANT: Mango Hill, 4509.

HIS HONOUR: Yes, that is still the case.

DEFENDANT: That's correct, your Honour.

MR BEACHAM: We don’t have a fax number for him, which is obviously more convenient.

HIS HONOUR: Have you got a fax number, Mr Proctor?

DEFENDANT: I certainly do, your Honour. I'll pass it over to the gentleman.

HIS HONOUR: Yes. Just place it on the record.

DEFENDANT: 07 349 18604.

HIS HONOUR: I should add, to my reasons, that in relation to the orders made in paragraphs 5 and 6, by reference to the estimates made by Mr Brough, as annexed to various affidavits that he has filed, including the affidavit which he has sworn today, and which has been filed by leave, I am satisfied that this is an appropriate case in which to fix costs, and without proceeding to the more traditional way of costs being taxed by a Registrar. I am satisfied that the costs claimed are realistic and reasonable and I am satisfied that by requiring the plaintiff, in the circumstances in which I have described, to proceed with a - the process mandated by paragraph 4, of the Practice Direction 3 of 2007, or to submit their bills in taxable form to a Registrar, would involve undue delay and expense, and for those reasons I am prepared to make the orders in five and six of the order that I have initialled and lodged with the papers.

MR BEACHAM: Thank you, your Honour.
HIS HONOUR: Thank you, gentlemen.

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