Halpern v BWA Group Services Pty Ltd
[2013] FCA 673
FEDERAL COURT OF AUSTRALIA
Halpern v BWA Group Services Pty Ltd [2013] FCA 673
Citation: Halpern v BWA Group Services Pty Ltd [2013] FCA 673 Parties: MIRIAM HALPERN v BWA GROUP SERVICES PTY LTD and JEREMY TOWNEND File number: SAD 129 of 2012 Judge: BESANKO J Date of judgment: 10 July 2013 Catchwords: PRACTICE AND PROCEDURE – application by applicant to adjourn the trial – where trial previously adjourned – where applicant seeks time to raise funds to pay for legal representation – whether there was good reason for the Court to exercise the discretion to adjourn the trial – whether the respondents would be prejudiced.
COSTS – application by respondents for the Court to fix a lump sum for costs pursuant to r 40.02 of the Federal Court Rules 2011 (Cth) – application for the costs previously ordered on 3 June 2013 to be payable immediately – whether the Court should depart from r 40.13 of the Federal Court Rules 2011 (Cth) that provides interlocutory costs are not payable until the proceeding is finalised.
Held: The applicant’s application to adjourn the trial be refused. The respondent’s application for costs fixed in a lump sum and to be payable immediately be refused.
Legislation: Federal Court of Australia Act 1976 (Cth) s 37M
Federal Court Rules 2011 (Cth) rr 40.02, 40.13Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Life Airbag Company of Australia Pty Limited and Ors v Life Airbag Company (New Zealand) Limited and Ors (unreported 22 May 1998, Federal Court of Australia, Branson J)
McKellar v Container Terminal Management Services Limited [1999] FCA 1639
Rafferty and Others v Time 2000 West Pty Ltd (ACN 127 893 270) and Others (No 3) (2009) 257 ALR 503Date of hearing: 3 July 2013 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 27 Counsel for the Applicant: Mr G Efron Solicitor for the Applicant: Efron & Associates Counsel for the Respondents: Ms R Doyle SC Solicitor for the Respondents: Herbert Smith Freehills
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 129 of 2012
BETWEEN: MIRIAM HALPERN
ApplicantAND: BWA GROUP SERVICES PTY LTD
First RespondentJEREMY TOWNEND
Second Respondent
JUDGE:
BESANKO J
DATE OF ORDER:
3 JULY 2013
WHERE MADE:
ADELAIDE
THE COURT ORDERED ON 3 JULY 2013 THAT:
1.The application to adjourn the trial be refused.
2.The application for the Court to fix a lump sum for costs pursuant to r 40.02 of the Federal Court Rules 2011 (Cth) be refused.
3.The application for the costs previously ordered on 3 June 2013 to be payable immediately be refused.
4.The costs of today be reserved.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 (Cth).
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 129 of 2012
BETWEEN: MIRIAM HALPERN
ApplicantAND: BWA GROUP SERVICES PTY LTD
First RespondentJEREMY TOWNEND
Second Respondent
JUDGE:
BESANKO J
DATE:
10 JULY 2013
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 3 July 2013 I heard two applications in this proceeding. First, I heard an application by the applicant for an adjournment of the trial which has been listed to commence on Monday 15 July 2013. I refused that application. Secondly, I heard an application by the respondents for certain costs awarded in their favour to be fixed in a lump sum and for an order that those costs be payable by the applicant immediately. I refused that application. These are my reasons for refusing the applications.
The Application for an Adjournment of the Trial
The trial of this proceeding is listed to commence on Monday 15 July 2013 at 10.15 am and continue on 16, 17, 22, 23, 24, 25 and 26 July 2013. The applicant made an oral application for an adjournment of the trial. Her application was supported by an affidavit she had sworn on 2 July 2013.
The respondents opposed the application for an adjournment of the trial and they relied on two previous affidavits sworn by the applicant, one on 31 May 2013 and the other on 1 July 2013. They also relied on an affidavit of Sara Charlotte Summerbell sworn on 31 May 2013. Ms Summberbell is a lawyer employed by the firm acting for the respondents. The respondents also relied on an affidavit of Alexandra Alison Malon sworn on 2 July 2013. Ms Malon is also a lawyer employed by the firm representing the respondents.
I had a discretion whether or not to adjourn the trial but like all discretions, it had to be exercised judicially and having regard to relevant matters. The relevant matters on the application were the reason for the application, the prejudice to the applicant if an adjournment was not granted, the prejudice to the respondent if an adjournment was granted, and any relevant public interest considerations.
The important matters of context were as follows.
On 10 January 2013 I made the following orders:
1. The matter be set down for trial at 10.15am on Monday 3 June 2013 for 7 days.
2. The matter be listed for directions on Tuesday 19 March 2013 at 9.15am.
3. There be liberty to apply.
It will be seen from these orders that there was a period of approximately five months between the setting down of the matter and the date of the trial and that it was estimated that the trial would occupy a relatively substantial period (i.e., 7 days). When I fixed the directions hearing for 19 March 2013, I had in mind the need to ensure as far as possible on that date that the proceeding would be ready for trial on 3 June 2013. There were two directions hearings on 19 March 2013 and 28 March 2013 respectively. No substantive orders were made at either hearing.
During my absence on leave, another judge of the Court heard a number of applications on 15 April 2013. The orders the judge made on that date were as follows:
1.The applicant file and serve a Further Amended Statement of Claim by 15 April 2013 in the form attached to the affidavit of Linda Appelbee sworn 8 April 2012.
2. The respondents file and serve an Amended Defence by 13 May 2013.
3.The respondents have liberty to file and serve, by 13 May 2013, any affidavits from new witnesses, the calling of which is necessitated by the amendments in the Further Amended Statement of Claim.
4.The respondents have leave at the trial to adduce, by way of oral evidence, further evidence in chief from any witnesses in respect of whom the respondent has already filed and served affidavits, where such further oral evidence is necessitated by the amendments in the Further Amended Statement of Claim.
5.The applicant advise the respondents by 19 April 2013 which paragraphs or parts of the affidavit of the applicant sworn 5 November 2012 that the applicant no longer seeks to rely upon, as referred to in paragraphs 12.1 and 12.2 of the affidavit of Linda Appelbee sworn 8 April 2013.
6.The applicant file and serve by 19 April 2013 any supplementary affidavit on which she wishes to rely, and that any supplementary affidavit be restricted to the matters set out in paragraph 12.3 of the affidavit of Linda Appelbee sworn 8 April 2013.
7.The respondent file and serve any material in reply to the applicant's supplementary affidavit by 13 May 2013.
8. The applicant file and serve an affidavit of Dr Hsu-En Lee by 19 April 2013.
9.The respondents inform the applicant by 24 April 2013 whether the respondents require her to attend a medical assessment by a medical practitioner nominated by them.
10.If the respondents make the notification in Order 9, the applicant make herself available for such an assessment between 26 April 2013 and 10 May 2013.
11. The respondents file any expert evidence by 20 May 2013.
12. The respondents provide further discovery by 30 April 2013.
13.The applicant pay the respondents' costs consequent upon the amendment of the Amended Statement of Claim and the costs thrown away (which includes the costs of today's hearing).
These orders were substantial orders in the context of a trial listed to commence on 3 June 2013. Counsel for the respondents said, and I accept, that as a result of the orders the respondents were required to undertake a substantial amount of work to be ready for trial.
On 15 May 2013 Rossi Legal, who to that point had acted as the applicant’s legal representative, filed a Notice of Ceasing to Act. In that notice Rossi Legal gave details of the last known residential or business address of the applicant.
The proceeding was called on for trial on Monday 3 June 2013. The applicant appeared in person and told me that at that point she was not represented. She told me that she was “financially in distress”. She told me that she was raising funds for representation and that she required additional time to be able to do that. She applied for an adjournment of the trial. She also referred to a medical certificate from a psychiatrist, a Dr Lee, detailing her mental condition. The respondents opposed the application for an adjournment. After hearing argument, I decided to grant the application and I made the following orders:
1.The trial be adjourned to commence on Monday 15 July 2013 at 10.15am and continue on 16, 17, 22, 23, 24, 25 and 26 July 2013.
2. The applicant is to pay the respondents’ costs of and incidental to the adjournment.
3.The question of whether the costs be payable before the trial is adjourned for further consideration to Wednesday 26 June 2013 at 9.00 am (Adelaide time).
4.A directions hearing will be held on Wednesday 26 June 2013 at 9.00 am (Adelaide time).
5.Liberty to apply.
On or about 2 July 2013 the applicant then applied for an adjournment of the trial date fixed by the first order. The respondents had by that date already applied for an order that the costs referred to in the second order be fixed in a lump sum and an order that they be paid immediately.
I should mention one matter at this point. The respondents are represented by senior and junior counsel who practice primarily in Victoria. They appeared before me in Adelaide on 3 June 2013. In relation to the respondents’ application for the costs to be fixed in a lump sum, the applicant, who is now represented by Mr Graeme Efron of Efron & Associates of Lonsdale Street, Melbourne, said that the costs of counsel travelling from Melbourne to Adelaide should be excluded on the ground that there was no need for counsel to travel to Adelaide in circumstances where a self represented litigant was applying for an adjournment. I most firmly reject that proposition. Adjournments are granted in the exercise of the Court’s discretion and only for good reason. An applicant for an adjournment must make out a case for an adjournment and, in the usual case, the applicant must support his or her application by evidence. Adjournments are not granted because they fall into a particular class of case, nor, self-evidently, are they granted before the application for an adjournment is heard and determined by the Court.
The reason the applicant has again applied for an adjournment of the trial appears to be so that she can raise funds to pay solicitors and counsel. In her affidavit sworn on 2 July 2013 the applicant made the following statements:
16.On 3 June I again sought an adjournment which was granted until 15 July with an order that costs thrown away paid by the Applicant.
17.Since 3 June I approached HWL Ebsworth to be told after approximately 1 week that they were conflicted and were unable to act for me.
18.I scrambled around shopping for legal representation and arrived at Maurice Blackburn solicitors. After making an appointment and the taking (sic) all initial instructions, I was provided with a fee agreement and asked to pay $20,000 into their trust account. After paying some $20,000 into their trust account I was then told that Maurice Blackburn insisted on a further $30,000 or they would not act.
19.From in or about early May I applied for re-finance of my one property in South Yarra to fund his (sic) litigation and am still in the process of trying to finalise refinancing of my property. It has been difficult in part because I have lost my job with the Respondent and this has complicated any application for finance.
20.I then contacted Efron & Associates on 25 June and instructed them to appear on 26 June 2013 at the directions hearing.
21.I have not intentionally delayed these proceedings. In fact Doyle SC, Counsel for the Respondents in her submissions to this Honourable Court stated inter alia,
- that she “could not point to any failure to prosecute Application until mid May 2013”, and
- “in order to attend to those critical trial preparation steps and indeed right up until May appear those steps were being taken by other side of the bar table too”.
22.As a result of my then solicitors terminating their brief, I am now forced to find new solicitors and Counsel, place them in funds and require time to do so and for them to then prepare and ready themselves for trial of this matter.
23.It does not seem feasible for this to occur before 15 July 2013.
When the applicant applied for an adjournment of the trial date of 3 June 2013 she swore in her affidavit of 31 May 2013 that she would raise finance with finance brokers, Solomon Finance Pty Ltd, to engage lawyers. She annexed to her affidavit a letter from Solomon Finance Pty Ltd dated 6 May 2013. That letter was entitled “Indicative Offer” and it read as follows:
To Whom It May Concern,
Re: Ms Miriam Halpern & Mr Andrew J Kahn
This is to advise that Solomon Finance has arranged with one of our panel lenders to provide funds for property at South Yarra conditional to;
1)Valuation by a panel Valuer of the lenders choice.
2)Lenders full verification of the Application.
3)Obtaining full business and personal financials for the last two years.
As far as I can discern, the applicant was asking the Court to adjourn the trial due to commence on 15 July 2013 so that she could raise funds and then secure legal representation for the trial. The prejudice to the applicant if an adjournment was not granted was said to be that she would be left without legal representation at the trial. The difficulty for the applicant was that her evidence was too general and did not clearly establish either that she would be unrepresented if the trial proceeded on 15 July 2013 or that, even if that be wrong, there was a fairly good prospect that she would be represented at the trial if an adjournment was granted.
I noted that Efron & Associates now represented the applicant. I knew nothing of the terms upon which they represented the applicant or whether counsel had been approached.
The other side of the coin was perhaps more significant. Even if I should have assumed that the applicant would be unrepresented should the trial proceed on 15 July 2013, there was simply no sufficient evidence to enable me to conclude that she would be represented if I fixed a new trial date. I could not find, on the evidence put before me, that she would be represented at trial should I have granted an adjournment of 30 days as was suggested by Mr Efron. In fact, on the evidence I could not find that she would be represented should I have granted an adjournment for a more substantial period of time.
In terms of prejudice to the respondents should an adjournment have been granted, it seemed to me that the prejudice included the fact that this would be the second adjournment of the trial. Although it could be on terms as to costs, there must be doubt on the evidence before the Court as to whether the respondents could recover costs from the applicant without considerable difficulty. Furthermore, there was the stress on litigants and witnesses of a delayed hearing. That was a matter to be taken into account: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 192 ([30] per French CJ) and at 214 ([100] per Gummow, Hayne, Crennan, Kiefel and Bell JJ).
These matters relevant to prejudice to the respondents were to be considered in a context in which I think a fairly substantial adjournment would have been the result of acceding to the applicant’s application. Counsel for the respondents referred to the availability of counsel and of various witnesses the respondents intend to call. I placed some weight on those matters although they were not decisive. Nevertheless, I considered if I were to accede to the application, a reasonably substantial adjournment would be the result of trying to secure dates for a seven day trial.
Finally, there was the public interest to be considered. That was a matter referred to by Chief Justice French (at [30]) in Aon Risk Services Australia Limited v Australian National University. I would include under this head a consideration of the provisions of s 37M of the Federal Court of Australia Act 1976 (Cth). This section did not mean that adjournments are not granted, however, it reinforced the notion that they are not granted other than for good reason.
It was for these reasons that I refused the applicant’s application for an adjournment of the trial.
Costs Fixed in a Lump Sum and Payable Immediately
The applicant is required to pay the respondents’ costs of and incidental to the adjournment of the trial which had been fixed to commence on 3 June 2013. The respondents asked me to fix a lump sum for costs under r 40.02 of the Federal Court Rules 2011 (Cth) and advanced evidence in support of the lump sum that they sought. They asked me to make an order that those costs be paid by a certain date. Failing payment, they indicated that they would seek an order for the dismissal of the proceeding.
Under r 40.13, the prima facie rule is that a party who has an order for costs in his or her favour in relation to an interlocutory application must not tax those costs until the proceeding in which the order is made is finished.
I did not think that this was an appropriate case in which to depart from the prima facie rule. I had regard to the authorities to which counsel for the respondents referred: Life Airbag Company of Australia Pty Limited and Ors v Life Airbag Company (New Zealand) Limited and Ors (unreported 22 May 1998, Federal Court of Australia, Branson J); McKellar v Container Terminal Management Services Limited [1999] FCA 1639; and Rafferty and Others v Time 2000 West Pty Ltd (ACN 127 893 270) and Others (No 3) (2009) 257 ALR 503. I did not think that the circumstances of this case warranted such an order particularly as the trial date is due to commence on 15 July 2013.
In view of the conclusion that I would not order that the costs be payable immediately, the reason for fixing a lump sum for costs fell away. I would have been reluctant to do that in any event. It seemed to me having regard to the evidence that the expertise of a taxing officer would be of assistance in determining the proper amount for costs.
It was for these reasons that I refused to fix a lump sum for the respondents’ costs and to order that those costs be payable immediately.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate:
Dated: 10 July 2013
1
4
0