Millar v Livingstone

[1999] NSWSC 99

CITATION:	Millar v. Livingstone [1999] NSWSC 99
CURRENT JURISDICTION:	Equity Division
FILE NUMBER(S):	3906/98
HEARING DATE(S):	19/02/99
JUDGMENT DATE:	19 February 1999
PARTIES :	Ian Desmond Millar (P) Kenneth Livingstone (D)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Mr. W. Haffenden (P) Mr. Harrison (D)
SOLICITORS:	Leys Law Firm (P)
CATCHWORDS:
DECISION:

SUPREME COURT OF
NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Friday, 19 February 1999

3906 of 1998 IAN DESMOND MILLAR -v-
KENNETH LIVINGSTONE
ESTATE OF THE LATE JILL PAMELA WARD

1 MASTER: When this matter was called on before me this morning Mr Haffenden of Counsel announced his appearance for the plaintiff and Mr Harrison of Counsel announced his appearance for the defendant. Mr Haffenden outlined the factual situation concerning the procedural history of the matter. He adverted to the fact that no appearance had been filed on behalf of the defendant and that in consequence there had already been made an order for substituted service of process upon the defendant and that it would probably be necessary for substituted service again to be sought.
2 Mr Haffenden stated that so far as he was aware the defendant was involved in criminal proceedings.
3 Mr Harrison, in response to a query from me, informed me that he was instructed by Mr T Walker, solicitor, of Forestville and that Mr Harrison did not dispute any of the factual matters which Mr Haffenden had outlined.
4 It would appear from what I have been informed by Mr Harrison that his instructing solicitor, Mr Walker, had first been retained by the defendant in October of last year. No explanation has been offered as to why Mr Harrison's instructing solicitor has not filed an appearance on behalf of the defendant. I infer from what I have been informed that the failure of the solicitor to file an appearance on behalf of the defendant is as a result of a deliberate decision in that regard by either the defendant himself or his solicitor or by both of them.
5 The omission to file an appearance does, of course, have consequences concerning the procedural progress of the matter. Mr Harrison, on behalf of the defendant, sought an adjournment. Essentially, that adjournment was to enable the defendant to comply with directions for the filing of evidence. It would appear, however, that the basis of the adjournment, being the unawareness of the defendant and his solicitors of the precise details of those procedural directions, is due substantially, if not entirely, to the failure of the solicitor for the defendant to file an appearance.
6 In those circumstances I am not disposed to grant an adjournment.
7 I understand that Mr Harrison's instructions are of a limited nature, being only to seek an adjournment this morning. But, in any event, I consider that, unless an appearance is filed on behalf of the defendant or unless Mr Harrison has instructions to give to the Court an undertaking that such an appearance will be filed, it is inappropriate that I should allow him to conduct the proceedings on behalf of the defendant. Mr Harrison does not have any instructions concerning giving an undertaking to file an appearance on behalf of the defendant.
8 Accordingly, I do not consider it appropriate to allow him further to conduct the matter on behalf of the defendant. Mr Harrison has asked that I should allow him to be excused. I propose to do that. Thank you Mr Harrison.

I certify that this and the preceding
pages are a true copy of the reasons for
judgment of Master McLaughlin

Dated: Friday, 19 February 1999
Associate

Mark A. Provera

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