Palermo v Palermo

[2013] WASC 412

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   PALERMO -v- PALERMO [2013] WASC 412

CORAM:   McKECHNIE J

HEARD:   13 NOVEMBER 2013

DELIVERED          :   14 NOVEMBER 2013

PUBLISHED           :  14 NOVEMBER 2013

FILE NO/S:   CIV 2544 of 2013

BETWEEN:   JOHN PALERMO

Plaintiff

AND

ANTHONY  PALERMO
Defendant

Catchwords:

Practice and procedure - Plaintiff terminally ill - Defendant unrepresented - Early trial date - Whether date should be vacated - No new principles

Legislation:

Nil

Result:

Trial dates not vacated

Category:    B

Representation:

Counsel:

Plaintiff:     Mr K L Christensen

Defendant:     In person

Solicitors:

Plaintiff:     Gadens Lawyers

Defendant:     In person

Case(s) referred to in judgment(s):

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175

McKECHNIE J: 

What the action is about

1. John and Anthony Palermo are brothers who have had a long involvement (to use a neutral term) in business together.  No more.

2. John is now dying of cancer and has been given only 6 months to live.  Anthony has recently suffered injuries in a car accident and by reason of the multiple actions he is defending, together with earlier ill health, does not have funds immediately available to engage lawyers.

3. On 23 April 2013, solicitors for Anthony wrote to the solicitors for John relevantly as follows:

   2.Partnership

   The relationship between John and Tony was, and remains, that of partners.

   We are instructed that the partnership relationship was formed in about 1975 on the foundation of their personal relationship as brothers, their mutual confidence and trust in each other and their mutual desire to conduct business together with a view to creating a wealth base for their respective families.

   This partnership between Tony and John exists outside and beyond the companies through which the Businesses were, and are, conducted.

4. That letter and a subsequent letter of 2 May 2013 was responded to by John's solicitors on 14 May 2013.

   It is correct for a time a partnership did exist between Mr John Palermo and Mr Anthony Palermo commencing from about 1972/73 through to about 1976 where in joint names they acquired various properties and developed the same.  For this purpose they maintained bank accounts at both the Commonwealth Bank and Town & Country Building Society.  These partnership enterprises entailed acquiring and developing properties in Scarborough, Tuart Hill, Joondanna and Yokine.

   However, upon the incorporation of Tomar Holdings Pty Ltd ('Tomar') in 1976, there existed no partnership going forward, unless (and I am awaiting instructions) those properties referred to above had not been sold and indeed they did not acquire any property from that date, either as partners or otherwise.

5. By Notice of Originating Motion dated 11 October 2013, John sought:

   1.A declaration that the Plaintiff and Defendant have not operated in partnership whether as described in the letter dated 23 April 2013 from Talbot & Oliver addressed to Gadens Lawyers otherwise save for certain acquisitions of properties undertaken in their own names up to and about 1976.

The earlier hearings

1. The matter came before the Master on 24 October 2013.  This was the day after Anthony's accident and he was not present.  Mr Christensen informed the Master of the severity of John's illness.  The Master adjourned the action to 31 October 2013 and provisionally set a trial date for four days commencing 9 December 2013.  Subsequently, having regard to the court's limited resources, the date was moved and the trial then set to commence 16 December 2013.

2. On 31 October 2013, Anthony again not being present, the Master made programming orders, including orders that the defendant to file and serve any affidavits in opposition to the application by 18 November 2013 and the plaintiff to file and serve any affidavits in reply by 2 December 2013.

The application to vacate the trial

1. Following correspondence received from Anthony, I listed the action for a directions hearing on 13 November 2013. 

2. At the directions hearing Mr B H Taylor sought leave to appear for Anthony but without undertaking that he would come onto the record.  I declined to grant leave.

3. Anthony then appeared in person and submitted that the trial dates be vacated and that other pre‑trial orders be made.  He adopted the comprehensive written submissions Mr Taylor had prepared and to which I have had close regard.

4. Anthony filed an affidavit in support of his application to vacate the trial dates and made further submissions.

5. Until the hearing Anthony had not received a copy of Dr Alex Powell's letter of 5 November 2013 giving an estimation of John's life expectancy and the nature of his illness.  As a result some of the matters raised in his affidavit are of less relevance, as Anthony acknowledged.

Disposition

1. Positive case management is designed to promote the just determination of litigation.  Anthony draws support from Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175.

2. The issue though is not about case management, but balancing the interests of both parties to achieve a just outcome.

3. In view of John's deteriorating condition, unless there is a prompt hearing, there may be no possibility of a just determination.  Anthony fairly acknowledged this in his comments when shown the medical certificate for the first time.

4. John's interests are not the only ones to be considered.  Anthony is unrepresented, with all the attendant disadvantages that ensue, even for an obviously articulate and intelligent business person.  I do not underestimate the difficulties he faces.

5. There are a number of matters which, in combination, lead me to the conclusion that a fair trial is possible, notwithstanding the short time for preparation.

   (a)There is a limited factual inquiry likely to be necessary to grant or refuse the declaration.  The voluminous material in support of the application shows that there has been a long and ongoing relationship (to use another neutral term) between John and Anthony, evidenced by, among other things, numerous property dealings in various trusts and entities.

6. The issue identified in the Talbot & Olivier letter of 23 April 2013 places the inquiry about whether a partnership does or does not exist to a period in and around 1975 and 1976.

7. Anthony has indicated that there may be hundreds of thousands of documents and possibly up to 30 to 50 witnesses who may be necessary to give evidence.  However, much of that proposed material would not appear to be relevant.  It would appear to be undisputed that the brothers worked closely together until recently and pursued their business interests through corporate entities.  Whether a partnership as recognised by law was created in or around 1976 is the issue.

   (b)Anthony's position can be substantially alleviated by giving him leave to rely in these proceedings on affidavits filed in other proceedings that have been brought against him.  Mr Christensen does not oppose this course.

   (c)I will extend the time within which Anthony may file any affidavit in opposition.

Conclusion

1. I do not pretend that the result is entirely satisfactory to either party, especially Anthony.  In the normal course, this would be an appropriate action to proceed by way of pleadings.

2. However, due to John's health, things are not normal.  Balancing various competing issues I conclude that there can be a just determination of the relatively confined issue raised by the declaration with a trial commencing on 16 December 2013.

Orders

1.The defendant's application to vacate the trial dates is dismissed.

2.The defendant have leave to rely upon any affidavit filed by him or on his behalf in the following actions:  CIV 1356 of 2013  and CIV 2110 of 2013.

3.The defendant file and serve any other affidavit in opposition to the application no later than 4.00 pm on Tuesday 10 December 2013.

4.The plaintiff file and serve any affidavit in reply by no later than 4.00 pm on Friday 13 December 2013.

5.Unless excused in writing by the other party all deponents to affidavits attend and be available for cross‑examination.

6.There be liberty to apply generally.

7.Costs of this application be reserved.