Hercules Mining Contractors Pty Ltd - v - Rocky Mining Pty Ltd

[2015] VCC 1046

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL LIST

Revised
Not Restricted

Case No. CI-14-02286

HERCULES MINING CONTRACTORS PTY LTD (ACN 109 459 118)	Plaintiff
V
ROCKY MINING PTY LTD (ACN 127 600 739) and another according to the Schedule	Defendants

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2015
DATE OF RULING:	27 July 2015
CASE MAY BE CITED AS:	Hercules Mining Contractors Pty Ltd – v – Rocky Mining Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2015] VCC 1046

REASONS FOR RULING

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Catchwords PRACTICE AND PROCEDURE – where plaintiff discontinued against third defendant – where first and second defendants have not appeared for trial – Rule 49.02 of the County Court Civil Procedure Rules (2008) – evidence that first and second defendants notified of trial – trial to proceed unopposed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr E. Batrouney	Christopher Bunnett Lawyers
For the Defendants	No appearance	-----------

HER HONOUR:

1. The matter has come on before me this morning for trial.  It was stood down for discussions between the third defendant and the plaintiff.  Subsequently, the matter was discontinued by consent against the third defendant, with no order as to costs.  The court was then left with the proceeding as against the first and the second defendants; neither of whom have appeared.

2. The second defendant was obliged to file and serve a defence on or before 19 December 2014 by reason of orders made on 4 December 2014.  No such defence has been filed.  Accordingly, in the absence of a defence, the plaintiff is entitled to judgment against the second defendant provided the quantum of its claim is substantiated.  

3. That leaves the issue of the first defendant.  The provision governing the court in these circumstances is rule 49.02 of the County Court Civil Procedure Rules (2008), which provides as follows:

   49.02 Absence of party

   1)    If, when the trial of a proceeding is called on, any party is absent, the Court may—

   a)    order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court directs;

   b)    proceed with the trial generally or so far as concerns any claim for relief in the proceeding; or

   c)    adjourn the trial.

   2)    The Court may set aside or vary any judgment, order or verdict obtained where a party is absent at the trial.

   3)    An application under paragraph (2) shall be made within 14 days after the trial.

4. The court therefore has to consider which of the options under order 49.02 should prevail and, in particular, whether or not the trial should proceed.

5. The solicitor for the first defendant sought and obtained leave to cease acting last Friday, 24 July 2015.  It is important in those circumstances to be satisfied that the first defendant is aware of the trial and/or has no interest in participating in a trial.

6. Counsel took me to orders of 4 December 2014 and 17 June 2015 wherein today’s trial date was confirmed. Mr De Wet, solicitor, appeared for the first defendant on each of those occasions and should be presumed to have advised his client of the date.

7. However, in order to confirm this, I had regard to the affidavit Mr De Wet filed last Friday, 24 July 2015.  I directed that it was appropriate for counsel for the plaintiff to rely on that affidavit. That affidavit annexes another affidavit (also sworn by Mr De Wet) dated 23 July 2015. This affidavit contains a statement in paragraph 7 about a conversation Mr De Wet had with Mr Lee Christiansen, a director for the first defendant.  An examination of the exhibit “DDW-4”, which is attached to that affidavit, confirms that in the conversation the solicitor was terminated, and that Rocky Mining Pty Ltd advised that it would not be taking part in the forthcoming trial. 

8. In the light of that position of the first defendant as attested to by the solicitor, the first defendant has evinced no interest in participating in a trial. There is therefore no utility in adjourning this matter for further hearing. Rather, it is appropriate that the matter proceed. 

9. Accordingly, I direct that the matter should proceed under rule 49.02(1)(b) against both the first defendant and the second defendant.  I will hear counsel this afternoon to substantiate its relief against those particular defendants.

SCHEDULE OF PARTIES
Hercules Mining Contractors Pty Ltd ACN 109 459 118	Plaintiff
Rocky Mining Pty Ltd ACN 127 600 739	First Defendant
Starlodge Pty Ltd ACN 077 776 071	Second Defendant
Robert McDonald	Third Defendant