Hearn v O*Rourke

[2007] FCA 930

FEDERAL COURT OF AUSTRALIA

Hearn v O’Rourke [2007] FCA 930

PRACTICE AND PROCEDURE – application to vacate trial dates due to the illness of the solicitor for the applicants

TACCARA JAYNE HEARN AND KELLIE ANNE ALLARDICE v DENNIS O'ROURKE AND CAMERAWORK PTY LTD
QUD90 OF 2002

GREENWOOD J
15 JUNE 2007
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD90 OF 2002

BETWEEN:	TACCARA JAYNE  HEARN AND KELLIE ANNE ALLARDICE Applicant
AND:	DENNIS O'ROURKE AND CAMERAWORK PTY LTD Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	15 JUNE 2007
WHERE MADE:	BRISBANE

THE COURT DIRECTS THAT:

1.The dates for the trial of the action commencing on 25 June 2007 are vacated.

2.The costs of the application together with all costs thrown away by reason of the adjournment of the trial are reserved.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QUD90 OF 2002

BETWEEN:	TACCARA JAYNE  HEARN AND KELLIE ANNE ALLARDICE Applicant
AND:	DENNIS O'ROURKE AND CAMERAWORK PTY LTD Respondent

JUDGE:	GREENWOOD J
DATE:	15 JUNE 2007
PLACE:	BRISBANE

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter the applicants in the proceeding seek an order vacating the trial of the action.  The proceeding has been set down for trial for seven days commencing on Monday, 25 June 2007.  On Wednesday, 13 June 2007, the solicitor for the applicants Mr Black of the firm Drakopoulos Black suffered a cardiac event, underwent an operation and had a stent inserted in his coronary artery.  For these reasons, the applicants’ solicitor has not been able to undertake inspection of the respondents’ disclosed documents.  The applicants are represented by Mr Anderson of counsel.  However, Mr Anderson is not led at the trial by senior counsel.  Mr Black is the only solicitor within the firm with any relevant knowledge of the issues in the proceeding.  Accordingly, the applicants seek an order that the dates allocated for trial be vacated.

2. The respondents are represented by Mr Flanagan SC.  Having regard to the circumstances, Mr Flanagan SC does not oppose the proposed order.

3. This is the second occasion on which dates for trial have been vacated.  On the first occasion trial dates were vacated on the footing that substantial amendments were to be made to the proceeding.  The parties jointly sought an adjournment of the trial.  The present dates for trial commencing on 25 June 2007 were allocated with a view to ensuring that the matter would be able to proceed and be completed without any risk of any further adjournment. 

4. The Court however is sympathetic to the circumstances confronting both Mr Black and the applicants by reason of Mr Black’s cardiac event.  The Court will identify a further seven days for allocation to this matter to enable the trial to proceed at the earliest opportunity.  In the interim, I am advised that discussions are taking place between the parties in any event and further amendments are proposed to the pleadings. 

5. Accordingly I propose to make a direction vacating the dates for trial.  I propose to reserve the costs of today including costs thrown away by reason of the vacating of the trial dates.  My Associate will contact the parties to discuss possible new dates for trial.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:       15 June 2007

Counsel for the Applicant:	Mr Anderson
Solicitor for the Applicant:	Drakopoulos Black
Counsel for the Respondent:	Mr P J Flanagan SC
Solicitor for the Respondent:	Pamela Coward & Associates
Date of Hearing:	15 June 2007
Date of Judgment:	15 June 2007