MURDOCH -v- CROSSBRED NOMINEES PTY LTD As Trustee For The Narrogin Machinery Centre Unit Trust & ANOR
[2008] WADC 35
•29 FEBRUARY 2008
MURDOCH -v- CROSSBRED NOMINEES PTY LTD As Trustee For The Narrogin Machinery Centre Unit Trust & ANOR [2008] WADC 35
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 35 | |
| Case No: | CIV:1783/2006 | 29 FEBRUARY 2008 | |
| Coram: | MARTINO DCJ | 28/02/08 | |
| PERTH | |||
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | IVAN KINGSLEY MURDOCH CROSSBRED NOMINEES PTY LTD As Trustee For The Narrogin Machinery Centre Unit Trust GEOFFREY CHARLES PERKINS |
Catchwords: | Procedure Application for adjournment of trial |
Legislation: | Nil |
Case References: | The State of Queensland v JL Holdings (1997) 189 CLR 146 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- 1st Plaintiff
AND
CROSSBRED NOMINEES PTY LTD As Trustee For The Narrogin Machinery Centre Unit Trust
1st Defendant
GEOFFREY CHARLES PERKINS
2nd Defendant
Catchwords:
Procedure - Application for adjournment of trial
Legislation:
Nil
(Page 2)
Result:
Application dismissed
Representation:
Counsel:
1st Plaintiff : Mr C P Stokes
1st Defendant : Mr A R Paternoster
2nd Defendant : Mr A R Paternoster
Solicitors:
1st Plaintiff : Christ Stokes & Associates
1st Defendant : Lane, Buck & Higgins, Narrogin
2nd Defendant : Lane, Buck & Higgins, Narrogin
Case(s) referred to in judgment(s):
The State of Queensland v JL Holdings (1997) 189 CLR 146
(Page 3)
1 MARTINO DCJ: These are extempore reasons on the application by the plaintiff for the adjournment of the trial. This action is a dispute over money arising out of a commercial transaction involving a piece of equipment.
2 On 29 October 2007 it was listed for trial for three days to commence next Tuesday 4 March 2008. By an application dated 25 February 2008 the plaintiff applies for an adjournment of the trial. In support of that application the plaintiff's solicitor Mr Stokes has sworn an affidavit dated 26 February 2008. In that affidavit Mr Stokes has deposed that when the trial dates were fixed he wrote to the plaintiff since then he has endeavoured to obtain instructions from the plaintiff but he has been unable to do so. It appears that the plaintiff is working on a remote mine site.
3 When the matter came before me on Wednesday 27 February 2008 I raised the concern that while I could well understand Mr Stokes' position it didn't seem to me that there were good reasons for the plaintiff having taken no action and I adjourned the application to this morning to give Mr Stokes the opportunity to obtain further evidence. This morning Mr Stokes has informed me that he was only shortly before this morning's hearing, which commenced at 9.15 am, given a mobile telephone number for the plaintiff but he has not yet been able to contact him. The submissions made by Mr Stokes in support of the application are that Mr Murdoch, the plaintiff, may have had very good reasons for not being ready for trial, that if the adjournment is not granted the plaintiff will not be in a position to present his case at trial, the sums involved in the dispute are substantial, that neither party has filed submissions or other papers for the trial, that there will be no prejudice to the defendant other than the delay of some two or three months, that if the adjournment is not granted and the plaintiff does not attend the defendant is at risk of an application under O 34 r 3 of the Rules of the Supreme Court to set aside judgment and that the plaintiff's claim has merit. The application for the adjournment is opposed by the defendants who submit that no good reasons have been put forward as to why an adjournment should be granted.
4 In considering this application I bear in mind the well known decision of The State of Queensland v JL Holdings (1997) 189 CLR 146 as to the importance of courts administering justice. Certain matters are clear it seems to me. First the sums are significant and I accept that the plaintiff has a triable claim. Secondly while it is true that neither party has filed submissions it seems to me that that is no fault of the defendants
(Page 4)
- because it appears that the usual orders were made for the plaintiff to file documents and the plaintiff has not done so, so the defendants do not seem to me to be in default at all.
5 While an application for an adjournment does involve considerations of the prejudice to each party and while the prejudice to the plaintiff will be substantial if no adjournment is granted it seems to me that there must be a reason for me to grant an adjournment and at this stage I am not satisfied on the evidence before me that there is any reason for me to grant the adjournment that the plaintiff requests. All I know is that while the plaintiff's solicitor has endeavoured to take instructions the plaintiff hasn't provided any. I have not been provided with any reason why he hasn't done so. While I can understand from the affidavit of Mr Stokes that there may be a delay in providing instructions because the plaintiff is in a remote area the length of the period namely from October to late February satisfies me that it was adequate for communications to take place even though the plaintiff is in a remote location. I bear in mind that there is a risk that the plaintiff may have a good reason for failing to give instructions and there is a risk that the application might be renewed before the trial Judge or that there might be an application under O 34 r 3 and I have raised that with the defendant but the position is that on the evidence before me there is no good reason why this application for an adjournment should be granted. For those reasons I refuse the application.
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