Greenwood, A v ANZ Banking Group Ltd

[1994] FCA 512

512 %-

JUDGMENT NO< .....I-II_-__I -

Between r -

Applicant

And: -

First respondent

03 AU6 1994 - Second respondent

-

A. pointed out yesterday, the only thing left in this case is the

dispute between the first and second respondents who have outlrtanding croes-claim6 against each other. The first respondent made an open offer yesterday to diepoee of its cross- claim by having it dismissed with no order as to costs provided it was accepted by today. Today the second respondent, who has been repreeenting himself, appears by a solicitor for the first time. Understandably the solicitor has informed the Court that he haa very little knowledge of the subject matter and seeks an adjournment of a week to consider the advice which he could give to his client.

developments that Mr Greenwood has chosen to get professional advice in a case where as I pointed out to him yesterday

It seem to me a sensible and beneficial response to yesterday's

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professional legal advice was really essential so that he could undermtand his position in the litigation. Undoubtedly the circumstances of yelrterday in which the principal proceedings

were disposed of by settlement was of late origin. Whereas

lauyarlr are accustomed to developments of this kihd and can adjumt themelves accordingly, it is not nearly so easy for a permon appearing without legal representation to do fm.,

, ,

It seemed to me reasonable that Mr Greenwood should take stock of the situation which was now confronting him. He did so by presenting yesterday to the Court an mended cross-claim against the bank. I have not yet considered his application for leave to file thin cross-claim but accepting for a moment that leave

war granted and that no aspect of it was barred by time or

anythlng else from being advanced, I yesterday attempted to examinm with him the possibilities of such a claim succeeding. It would undoubtedly be helpful to Mr Case as his representative to have the tranlrcript of that exchange available and I will order that a copy of the transcript of the discussion between Mr

Qman*ood and me yesterday should be produced urgently and made	available without fee.
The question arises therefore as to whether the application for adjournment should be granted. It is put on behalf of the bank that the matter is clear and that anyone looking at the amended cross-claim whether in the form in which it was presented yesterday or in a previous emanation was hopeless. It is perfectly obvious why the bank would advocate that it is hopeless. I think that it is not unreasonable for Mr Cass to form his own opinion about its chances of success so that he can advi~e Mr Greenwood directly and I do not think that someone coming into the case in the last few hours could conceivably understand sufficient about the case to be able to give proper advice. There is no point in him giving cureory advice because
l& Greenwood would have reasonable suspicions that the advice was
not properly based. In fact no serious lawyer would undertake the responsibility of giving advice in a matter of this complexity at very short notice and under pressure of time.
The risk is that if the adjournment is granted the open offer of the bank will expire and will not be renewed. That I think is a matter which Wr Cass and the solicitor for the bank should be able to discuss in the event that Mr Greenwood decides that he would prefer to withdraw his cross-claim. In the circumstances I do not think that I should allow that matter to influence me unduly. It is not imaginable that in the presence of a withdrawal by Mr Greenwood of his claim against the bank that the bank would contemplate for a minute pursuing its cross-claim against him. But that is a matter for negotiation and discussion
between the parties.
It is also argued that the bank will incur substantial further costs if the matter is adjourned beyond today. For my part I cannot see that it will incur any costs at all. The case was prepared ready to proceed yesterday on all mattera including Mr Greenwood's cross-claim. No additional preparation will be necessary between now and a week hence or thereabouts. If the bank is confident that Mr Greenwood's cross-claim is hopeless, then there will be nothing to prepare for. Perhaps a small anmunt for a couple of phone calls may be incurred, but if the consequence is to save the bank's shareholders from a lengthy and comtly piece of litigation, it will be a small price to pay.
The Court must keep in mind its duty to hold the balance evenly between the parties. Mr Greenwood has been representing himself in a difficult piece of litigation which had not only commercial but emotional and domestic overtones of a very deep and considerable kind. There is no reason to rush a hearing to comnence today or tomorrow when there is a real possibility that the came will be able to be resolved amicably. In any event, the came received a much earlier hearing than would ordinarily have come about becaume I took the initiative myself to list it for hearing rather than pursue a whole series of time-consuming interlocutory proceedings. In the ordinary course, if the case had gone to the long matters callover list, it would not have been
have been preparing all that length of time. In the limted before about September next year and the parties would
circummtances an extra week to enable rational thought and discussion to take place will be time well spent.
In the event that for some reason or other there is some litigation under this rubric I will try to find an early date for the hearing. I do hope that commonsense will prevail and that the parties will be able to resolve the outstanding disputes. They cry out to be resolved by agreement and not by confrontation.
The matter will be listed for mention or directions at 9.30 am on Tuesday 28 June. I should say, by the way, that no further adjournments, except in the most extraordinary circumstances, will be c~ltemplated. Costs of today will be reserved.

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I certify that th~s	and the e06(.
preceding pages Reasons for

Justice Einfeid