Official Trustee in Bankruptcy v Turner, Kenneth Edwin

[1998] FCA 737

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7008 of 1996

BETWEEN:	OFFICIAL TRUSTEE IN BANKRUPTCY APPLICANT
AND:	KENNETH EDWIN TURNER RESPONDENT

JUDGES:	SACKVILLE J
DATE:	17 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:   An application has been made by the respondent in this matter, Mr Kenneth Turner, to vacate the hearing date which has been set down for Monday, 22 June 1998.  The matter was listed by me yesterday.  I took that course because the solicitors acting for the respondent had filed a notice of ceasing to act.  That notice, although dated 22 May 1998, was not filed until 5 June 1998.

It is commonly the case that where a solicitor ceases to act shortly before a scheduled hearing, the party for whom the solicitor previously acted seeks an adjournment in order to obtain fresh legal representation.  Whenever this occurs it causes difficulties for the Court because of the risk that valuable hearing time will be wasted.  It may also, of course, cause not only inconvenience but prejudice to another party to the proceedings.

When the matter was listed yesterday and called, Mr Turner did not appear.  Mr Turner has appeared today when the matter was relisted.  He has explained that he was late for yesterday's hearing and that is why there was no appearance.  When he appeared today, Mr Turner indicated that he did indeed wish the hearing date to be vacated.  He has said from the bar table without objection from Mr Johnson, who appears for the applicant, that he has sought legal aid following the action of his previous solicitors in ceasing to act on his behalf.  There is documentary evidence to support Mr Turner's statement that he has sought legal aid. Inevitably, any application for legal aid will take some time to determine.

Mr Johnson has pointed out that the trustee would experience considerable inconvenience.  This matter has been ongoing since 1996 and there have been other proceedings in the Family Court relating to the land, the subject matter of the proceedings, although those proceedings did not involve the particular parties to the present dispute.  The case is ready for hearing as far as the applicant is concerned.  For example, a Judge's bundle has been prepared, as have submissions in support of the applicant's case.

Mr Johnson, however, very fairly conceded that the applicant would suffer no irremediable prejudice if the hearing date were vacated.  In those circumstances, although with very great reluctance, I am prepared to make an order vacating the hearing date so as to give the respondent, Mr Kenneth Turner, the opportunity to obtain legal representation to pursue this case. That seems to me the appropriate course as a matter of fairness to Mr Turner, even though the application comes at a very late stage.

The next question is that of costs.  Mr Johnson has sought an order that the first respondent, Mr Kenneth Turner, be ordered to pay the costs of the applicant thrown away by reason of the vacating of the hearing date on an indemnity basis and that the applicant have leave to proceed to taxation of the costs forthwith. 

Mr Turner has indicated that there were some difficulties between himself and his solicitors.  However, the fact of the matter is that the applicant is ready to proceed with the case on Monday.  The application for adjournment is one that is made by the first respondent.  It has not been suggested, and I cannot see how it could be suggested, that the applicant has been in any way responsible for the application for adjournment. The application arises entirely because of the circumstances in which the first respondent finds himself.

These are circumstances for which the applicant is in no way responsible.  I am not in a position to make any judgment about  what has transpired between the first respondent and the solicitors previously representing him.

In the circumstances, I think that the fair course is that the applicant should not be subjected to any financial detriment by reason of the date being vacated at such a late stage.  It seems to me appropriate that the applicant should have an order for costs on an indemnity basis.  Moreover, I think that, having regard to the lateness of the application to vacate the hearing date and the fact that it may now be some time before the proceedings are finally resolved, the applicant should have leave to proceed to taxation of the costs forthwith.

Accordingly, I propose to make the costs order sought by Mr Johnson on behalf of the applicant.  I therefore order that the first respondent pay the costs of the applicant thrown away by reason of the vacating of the hearing date on an indemnity basis.  The applicant will have leave to proceed to taxation of the costs forthwith.  I note that the costs thrown away should include the costs of yesterday, that is, 16 June 1998, and the costs of today, 17 June 1998.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville

Associate:

Dated:            17 June 1998

Counsel for the Applicant:	Self represented
Counsel for the Respondent:	Mr J Johnson
Solicitor for the Respondent:	Sally Nash & Co
Date of Hearing:	17 June 1998
Date of Judgment:	17 June 1998