Les Sandy and Associates Pty Ltd v Johnson

[2011] VCC 1425

IN THE COUNTY COURT OF VICTORIA

Revised
(Not) Restricted

AT MELBOURNE
COMMERCIAL LIST

GENERAL DIVISION

Case No. CI-11-03125

LES SANDY AND ASSOCIATES PTY LTD	Plaintiff
v.
ANNE MY JOHNSON and ROSS BARCLAY JOHNSON	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2011
DATE OF JUDGMENT:	1 December 2011 (revised 2 December 2011)
CASE MAY BE CITED AS:	Les Sandy and Associates Pty Ltd v Johnson & Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 1425

REASONS FOR JUDGMENT

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Catchwords:  Practice and procedure – Application to vacate trial date – Defendants’ counsel to undergo surgical procedure – Defendants’ distress at needing to find new counsel close to trial – If trial vacated, it could not be refixed for many months – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. R. Grahame	Henderson & Ball
For the Defendants	Mr M. Pirrie	Stephen Peter Byrne Law
HIS HONOUR:

1.    The trial of the proceeding is fixed for hearing on 8 December 2011. The defendants seek to vacate the trial date. This has arisen because of the unfortunate health problems of their counsel.

2.    Enquiries have been made as to the availability of suitable alternative counsel. There are counsel of sufficient experience available to take over the brief. Defendants’ counsel, however, has been involved in the matter for some months and the defendants are distressed that if the trial were to proceed on 8 December 2011, they would not be represented by their counsel of choice. In the circumstances, they seek the adjournment of the trial to enable their counsel to have surgery and recover.

3.    The trial date was fixed on 4 October 2011 following the hearing of the plaintiff’s summary judgment application. The writ in this proceeding was issued on 29 June 2011. The summary judgment application was filed on 3 August 2011. The case was given a special fixture as it was considered that rather than taking further time to finally determine the summary judgment application, it was more appropriate to fix an early trial date consistent with sufficient time being allowed for completion of the interlocutory processes.

4.    The defendants have raised complaints about a possible conflict of interest involving the plaintiff’s solicitor, Mr Burgess, and issues relating to the scope of discovery the plaintiff should make. These matters were ventilated on 4 October 2011. In relation to the matter of

the possible conflict of interest the plaintiff’s solicitor may have, it was directed that any
application be made as soon as practicable. No application was made, although the
defendants continue to raise the issue in correspondence between solicitors.

5.    In relation to the adequacy of the plaintiff’s discovery, the defendant’s have essentially waited until the discovery process was completed before articulating their complaints. An alternative course might have been to specify documents they suggested should be discovered at an early stage, as was anticipated by the standard order requiring a party to discover documents reasonably requested by the other.

6.    Further, one would have expected the defendants to have protected their position, if they considered that there were likely to be documents available from other entities which may have some relevance to the dispute. I was informed that subpoenas directed to third parties

had only been issued in the last day or so.

7.    Although there was some discussion about the adequacy of the plaintiff’s discovery with defendants’ counsel, it is not readily apparent from his submissions or the documents I was shown that the plaintiff’s discovery is inadequate. However, as is often the case, until the Court is properly instructed about the factual matters in issue, it is not always easy to determine questions of relevance or whether there may be documents of a class which should otherwise be discovered in the proceeding.

8.    As I indicated during the course of discussion, it is often preferable for a plaintiff to provide discovery of documents which it may consider to be only marginally relevant in order to avoid the possible criticism that it is concealing documents which may be relevant or which may lead the other party on a train of inquiry which may result in relevant documents being uncovered. The plaintiff also runs the risk that if the Court is persuaded at the trial after hearing evidence, that the plaintiff has documents which should have properly been discovered during the interlocutory processes, then the trial may be disrupted or even aborted in order for the defendants to have an appropriate opportunity to consider those documents and to present their case.

9. Most private litigants find the cost of litigation unfortunately oppressive. This fact, insofar as it

Defendants’ counsel has informed me that his clients are under some financial pressure. adjourned, the case would ordinarily not be refixed until June 2012. It is usually possible to make an earlier special fixture. The position, however, is that in the first half of 2012, the number of judges nominated by the Chief Judge as judges to sit primarily hearing commercial matters is more limited than the usual four because of commitments by the nominated judges to sit at VCAT and on circuit hearings. The list of commercial cases is always significantly over listed to take account of cases that may settle or be vacated.

10. Although the defendants have suggested that they would be ready to proceed to trial with their preferred counsel by February 2012, the Court is not in a position to accommodate that request. This leaves the plaintiff in the position that it has for some time been anticipating a trial on 8 December and, if the defendants’ submissions were to be accepted, the plaintiff would have to wait until June 2012 before the matter could be litigated. Ordinarily, defended commercial proceedings in the Court are given a trial date within 5-6 months of it being apparent that the proceeding is to be defended. In the circumstances, this case is not out of the ordinary, although as I mentioned, it was fixed for a slightly earlier date than usual because of the desirability of the matters in issue being finally determined at trial rather than upon a summary judgment application.

11. In these applications where one party wishes a trial date to be vacated, particularly in circumstances where the reason is not a result of any fault on their part such as this case where it relates to a health issue, the Court will attempt to accommodate the party’s wishes. However, the result would be a delay in the trial being heard for a further period of six months. The application is opposed by the plaintiff. There are counsel, other than the defendants’ counsel of choice, who are appropriately qualified to take over the responsibility for the preparation and presentation of the defendants’ case. In the circumstances, in order to do justice between the parties, it seems appropriate for the Court to proceed with the trial.

12. The defendants’ application to vacate the trial date is dismissed.

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Certificate

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

Anderson delivered on 1 December 2011 and revised on 2 December 2011.

Dated: 2 December 2011

Hannah Christensen

Associate to His Honour Judge Anderson