Icbudak v Icbudak

[2011] VCC 1359

IN THE COUNTY COURT OF VICTORIA	Revised
AT MELBOURNE CIVIL DIVISION COMMERCIAL LIST GENERAL DIVISION

Case No. CI-10-02243

MEHMET ICBUDAK	Plaintiff
v
NIYAZI ICBUDAK and ESMA ICBUDAK	Defendants

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JUDGE:	HIS HONOUR JUDGE ANDERSON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2011
DATE OF JUDGMENT:	10 October 2011 (revised on 12 October 2011)
CASE MAY BE CITED AS:	Icbudak v Icbudak & Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 1359

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Family dispute – Plaintiff self-represented – The
defendants, the plaintiff’s parents, represented by another son – Parties
require an interpreter – Relevant documents made available by parties’
former solicitors – Parties attended from interstate and overseas for trial –
Desirability of trial proceeding although circumstances not ideal.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Icbudak (in person)
For the Defendants	Mr N. Icbudak (by leave)
HIS HONOUR:

1. I am about to start the trial of this matter. I am doing so, not in ideal circumstances, but because I consider that it is the only way to do justice between the parties.

2. When the proceeding commenced, there were solicitors representing both the plaintiff and the defendants. Both sets of solicitors have now withdrawn. The plaintiff is representing himself and has the services of a professional Turkish interpreter. The defendants are presently represented by another son, Neset Icbudak. Their command of the English language is limited. I have, using the services of the plaintiff’s interpreter, satisfied myself that each of the defendants wish to have their son, Neset, represent them during the trial.

3. There was a problem with the availability of documents which would be necessary for the Court to decide the issues in dispute between the parties. The defendants’ former solicitors made available their file to the defendants, although they were owed fees for the work they had done. The plaintiff’s former solicitors have made available their file, including the plaintiff’s original documents and copies of the defendants’ discovered documents. They also have fees outstanding from the plaintiff and wish to protect their lien. They have, however, agreed to make the documents available to the Court to be used during the trial, subject to the supervision of the Court and the return of the documents to the solicitors at the conclusion of the trial.

4. The plaintiff presently lives in Queensland. He informed me that, if he were to pay the balance owing to his solicitors for fees, he would need to work for some months. Otherwise, it was his wish to have the court case proceed. The defendants live in Turkey and have returned to Australia for the trial and are presently living with their son, Neset. It is their wish that the trial proceed at this time. Although the plaintiff has indicated that he opposes his brother representing his parents at the trial, I consider that there is little option if the trial is to proceed. I am not confident that Mr Neset Icbudak fully understands his responsibilities as the representative of his parents and it is likely that he will be a witness at the trial. Nevertheless, I will grant him leave at this stage to represent his parents. If matters arise during the course of the trial which make it inappropriate for him to continue to represent his parents, then I will review the decision. Legal aid for civil cases of this nature is unfortunately virtually unobtainable.

5. The issues in the case involve the redevelopment of the defendants’ property at Coburg. The plaintiff claims that he spent money on his parents’ behalf for which he should be reimbursed. The defendants say that the plaintiff exceeded his authority and incurred liabilities they had not authorised. I consider that these issues are likely to be clarified by the parties giving evidence before me and by an examination of the relevant documents. The discovery process was conducted by the solicitors before they withdrew. It is likely, therefore, that the documents presently available to the Court comprise most, if not all, documents that would be likely to be available.

6. If the case were not to proceed, the plaintiff would not have the opportunity to recover money to which he says he is entitled. Until that issue has been resolved, the caveat his previous solicitors lodged over the title to his parent’s property is likely to remain and prevent his parents dealing with the property. There is also the sum of approximately $25,000 held by solicitors in a trust account, the disbursement of which will depend on the result of this case.

7. The Court attempted to manage the case through directions hearings and case conferences designed to ascertain the issues in dispute and the availability of documentation to clarify those matters. Those processes have not been entirely satisfactory and have seen both sets of solicitors withdraw and the matter proceed to a trial date on 3 October 2011. No judge was available on that day to take the trial and if the trial had been refixed in the normal course, it would not have been April 2012 that a new trial date could be given.

8. It was not considered that this would be in the interests of the parties and, accordingly, the proceeding has been set down for hearing before me for two days each week over the coming weeks, although I am sitting as the Commercial List Duty Judge and will have other responsibilities on most days.

9. It will be necessary to carefully explain to the parties the procedures I will follow so that they fully understand the position and, in particular, so that Mr Neset Icbudak can obtain appropriate instructions from his parents. I consider that if the trial in these circumstances becomes unmanageable, it is unlikely that a trial of the action would be possible in the future. It is for this reason that I have commenced the task.

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Certificate

I certify that the previous 3 pages are a true copy of the reasons for decision of His Honour

Judge Anderson delivered on 10 October 2011 (and revised on 12 October 2011).

Dated: 12 October 2011

Hannah Christensen

Associate to His Honour Judge Anderson