Perre v Risu Nominees Pty Ltd
[2006] FCA 1210
•30 AUGUST 2006
FEDERAL COURT OF AUSTRALIA
Perre v Risu Nominees Pty Ltd [2006] FCA 1210
FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, PASQUALE PERRE AND GRACE PERRE AND RANGARA PTY LTD, FRANCESCO PERRE AND MARIA PERRE v APAND PTY LTD
AND
RISU NOMINEES PTY LTD, RICHARD DUNSTONE TOWNSEND, JOHN ANDREW MORCOMBE, JOHN SHEAHAN AS TRUSTEE IN BANKRUPTCY FOR THE BANKRUPT ESTATE OF LEO JOHN REYNOLDS, TOWNSENDS BARRISTERS AND SOLICITORS PTY LTD, TOWNSEND AND REYNOLDS PTY LTD v FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, PASQUALE PERRE AND GRACE PERRE
SAD 28 OF 1994
MANSFIELD J
30 AUGUST 2006
ADELAIDE
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 28 OF 1994
BETWEEN:
FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE'S VINEYARDS PTY LTD, PASQUALE PERRE and GRACE PERRE
First to Eleventh ApplicantsRANGARA PTY LTD, FRANCESCO PERRE and MARIA PERRE
Twelfth to Fourteenth ApplicantsAND:
APAND PTY LTD
RespondentBETWEEN:
RISU NOMINEES PTY LTD, RICHARD DUNSTONE TOWNSEND, JOHN ANDREW MORCOMBE, JOHN SHEAHAN AS TRUSTEE IN BANKRUPTCY FOR THE BANKRUPT ESTATE OF LEO JOHN REYNOLDS, TOWNSENDS BARRISTERS AND SOLICITORS PTY LTD, TOWNSEND AND REYNOLDS PTY LTD
Cross-Respondents/ Cross-ClaimantsAND:
FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, PASQUALE PERRE and GRACE PERRE
First to Eleventh Cross-Respondents
JUDGE:
MANSFIELD J
DATE OF ORDER:
30 AUGUST 2006
WHERE MADE:
ADELAIDE
On the applicants’ notice of motion of 21 August 2006:
THE COURT ORDERS THAT:
1.The application for an adjournment is refused.
2.The costs of the motion are adjourned.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
SAD 28 OF 1994
BETWEEN:
FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRES' VINEYARDS PTY LTD, PASQUALE PERRE and GRACE PERRE
First to Eleventh ApplicantsRANGARA PTY LTD, FRANCESCO PERRE and MARIA PERRE
Twelfth to Fourteenth ApplicantsAND:
APAND PTY LTD
RespondentBETWEEN:
RISU NOMINEES PTY LTD, RICHARD DUNSTONE TOWNSEND, JOHN ANDREW MORCOMBE, JOHN SHEAHAN AS TRUSTEE IN BANKRUPTCY FOR THE BANKRUPT ESTATE OF LEO JOHN REYNOLDS, TOWNSENDS BARRISTERS AND SOLICITORS PTY LTD, TOWNSEND AND REYNOLDS PTY LTD
Cross-Respondents/Cross-ClaimantsAND
FRANK PERRE, CATERINA PERRE, PASQUALE PERRE, MARY PERRE, GUISEPPE DOMENICO PERRE, MARIA PERRE, JIM PERRE, FRANCES PERRE, WARRUGA FARMS PTY LTD, PERRE’S VINEYARDS PTY LTD, PASQUALE PERRE and GRACE PERRE
First to Eleventh Cross-Respondents
JUDGE:
MANSFIELD J
DATE:
30 AUGUST 2006
PLACE:
ADELAIDE
REASONS FOR DECISION
The ongoing dispute between the Perres and their former solicitors is listed for hearing today. The Perres now wish to adjourn it.
This matter has a long history. It commenced by application on 12 April 1994. A trial on liability only was conducted. The application was dismissed. Ultimately, in August 1999, the High Court restored the application and gave judgment in favour of the Perres for damages to be assessed. The matter was referred back to the learned trial judge for hearing of the damages issues. That trial commenced in June 2001. It progressed from time to time and, in November 2002, the trial judge made some comments about the process and the nature of the claims. In January 2003, the claim of the Perres against the respondent was settled.
That was not an end of the matter. It was settled upon terms which involved the payment of a significant sum of money. The solicitors for the Perres, who had been acting up until late 2002, then sought recovery of their costs to the extent to which they had not already been paid. There was a dispute between the Perres and those solicitors as to whether those costs should be payable out of the proceeds of the settlement sum. As a result, those proceeds have been held in a joint account pending the outcome of the dispute between the applicants and their former solicitors.
As a result of directions given on 2 April 2003, that is a few months after the settlement, points of claim were filed on behalf of the former solicitors on 16 April 2003 in which those solicitors expressed their claims as being for their outstanding fees and disbursements from the settlement sum.
It was intended that the issues which that gave rise to as between the Perres and their former solicitors would be promptly dealt with. That did not happen. The history of the matter from that time forward is significant to the reasons for the ruling which I am about to give. The context, of course, is that it is now nearly three and a half years after those points of claim were filed, but that dispute has not been resolved, although it has been listed for hearing on a number of occasions. It was listed for hearing, in part, on 15 December 2003, but it did not then proceed. It was further listed for hearing on 22 April 2004, but again it did not proceed. Thereafter, since I have had the management of this matter, there have been a number of directions hearings in which the issues have sought to be identified, refined, and prepared for hearing. There have been a number of quite contentious interlocutory arguments.
Ultimately, on 14 March 2006, that is some five months ago, the ongoing disputes were listed to commence hearing this week. By notice of 25 July 2006 the Perre’s solicitors ceased to act for the Perres.
In the light of that notice, I called the matter on for further directions on 8 August 2006. I then indicated that, if there was any difficulty with the matter proceeding, any application for an adjournment should be brought very promptly and supported by appropriate affidavit evidence. It was to commence then on 28 August 2006 but, due to other events, was subsequently re-listed to commence on 29 August 2006. The present adjournment motion was filed on 21 August 2006. It sought a hybrid of orders, in essence to try and isolate those issues which alleged some form of negligence against the former solicitors in the conduct of the proceedings for the Perres, and therefore to establish a set-off or cross-claim against such fees as may be determined to be owing to the former solicitors. It identified one of the negligence issues, which is conveniently called ‘the Calderbank offer issue’ as being abandoned. It otherwise proposed that the trial date be vacated to the intent that all other issues than the negligence issues (with or without the Calderbank offer issue) be determined on written submissions to be exchanged between the parties.
In my view, that option is simply not a practicable one. It is not practicable because the exchange of proposed witness statements indicates that on a number of issues extending well beyond the so-called negligence issues, there are conflicts of fact. As I put to Mr Perre, who appeared for all the applicants on the motion, I could not proceed in that way without hearing evidence on the disputed facts in a way which was fair to both parties, so that I could only accede to the Perres’ proposal if they were prepared to accept that, where there are disputed facts, I should accept that version of the facts put forward on behalf of the former solicitors, otherwise the former solicitors would not have had a fair opportunity to present their case. The Perres did not and do not accept that position.
Counsel formerly acting for the Perres has been kind enough to provide them with some informal assistance and to appear in the role of amicus curiae on the motion. As a result of what he has said, together with what Mr Perre has said, I am satisfied that there is no benefit at all in isolating one or two small issues for the purpose of written submissions.
In reality, I must treat the application as an application for adjournment of the hearing listed since March 2006, for a period of some months with the further delay, expense, inconvenience and other consequences to the parties.
The evidence adduced in support of the adjournment application is quite short. It is contained in an affidavit of Mr Perre, sworn on 20 August 2006. It explains that the solicitors who were acting for the Perres up to 25 July 2006 ceased acting because particular solicitors handling the file are no longer employed by that firm of solicitors. It proposed the partial hearing of the matter by written submissions and the deferral of the negligence claim and the abandonment of the Calderbank offer issue as a means forward. It asserted that the Perres still have access to counsel and a solicitor who can assist in the written submission process. It also indicated a desire to avoid the ongoing costs of the dispute. As I have said, that option, in my view, is simply not a tenable one and the real option is either to adjourn the hearing to a date to be fixed or, as was suggested today, to a date to enable the Perres to put on more evidence to support their adjournment application.
There is nothing in that affidavit explaining particular hardship on the part of the Perres, although I accept, as Mr Perre has said, that he would have great difficulty in conducting the proceedings himself. Somewhat vehemently he said that if the adjournment is not granted, he will lose everything as will his family. I do not accept that.
The matter was, in essence, prepared for trial whilst the parties, and in particular the Perres, have been represented by solicitors. That preparation has been ongoing so that witness statements and relevant documents have been identified and can be adduced in evidence. There has been extensive exchange of pleadings which identify issues. There has been some expert advice prepared on behalf of the Perres in the form of a witness statement addressing a number of issues. Whether or not it is admissible as evidence is a matter to be determined but it could, no doubt, be received as submissions to the extent to which it is not admissible as evidence. There is also a very lengthy document prepared and described as ‘Submissions of the Perres Pursuant to Paragraph 4 of the Order made on 4 May 2004’, dealing with the taxation of cost issues at some length. It is a document of 30 pages.
I do not accept that simply by refusing the adjournment, the Perres would lose everything. It may be difficult for Mr Perre to advance his case as well as a lawyer may do so. However, in the course of the hearing, he will be given the opportunity to identify the evidence that he relies upon, to test the evidence relied upon on behalf of the former solicitors (and if they seek to adduce evidence, the barrister interveners, who have been given leave to intervene) and as I have indicated, to make submissions, but in the context of the documents which have already been extensively prepared on his behalf.
In my view, the proposed adjournment also is not shown to be likely to achieve any useful purpose. The fact is that the Perres now have no legal representation. They have had since 25 July 2006 to procure legal representation. At the directions hearing on 8 August, they had a solicitor in Court observing, as I was told, to determine whether that solicitor would appear on their behalf. They have not adduced any evidence to prove what steps they have taken to procure legal representation or, more importantly, to indicate that there is any real prospect of procuring legal representation in the immediate future, other than some help with written submissions on what would be quite limited issues. Mr Perre said that, with a little more time, they could prove that such legal representation was available. In those circumstances, in my view, it is surprising that the notice of motion itself was not supported by such evidence. There was no evidence, including from any solicitors, that solicitors were prepared to act but would require a certain finite time to be in a position to effectively conduct the proceedings on behalf of the Perres. I do not propose to adjourn the matter to allow them to adduce evidence which might very readily have been adduced today. I see no reason why a further three or four further days (Mr Perre’s fallback position) will enable the Perres to do what they could have done in the last 4 weeks or so.
There is obviously an important public interest in bringing this matter to finality. It has a lengthy history. It is ready for trial. There are considerable disadvantages to the Perres’ former solicitors in the further delay. There has been evidence given to explain the extent to which the delay in securing their entitlement to costs (if they are entitled to further costs), and having those costs paid out of the settlement sum (if they are entitled to have costs paid out of the settlement sum), has caused both financial hardship, loss of reputation and other consequences. I will not refer to that evidence in detail but I have taken it into account.
In my view, in the circumstances, there is insufficient reason shown to have the matter adjourned either to give the Perres the opportunity to adduce evidence which ought to have been adduced today, if it was available on the motion, or to adjourn the matter to a date to be fixed. There are, on the other hand, quite strong considerations as to why the matter now listed for trial should proceed to trial. As I have said, I have no confidence that any short adjournment would lead to the Perres being represented in a way that they are presently not represented.
I accordingly refuse the application for an adjournment. I am mindful of Mr Perre's present position. Rightly or wrongly, he appears to have assumed, despite what I said on 8 August 2006, that he would successfully procure an adjournment of the hearing today. In fact, he did not intend to attend Court yesterday morning but contacted the Registry to indicate that he wished to attend by telephone. I indicated that I would not permit that to occur because of the complexity of the issues which may have arisen, and which in fact have arisen on the adjournment application.
It is also apparent from what he has said to me that, again contrary to what I indicated on 8 August 2006, he has not prepared for the hearing. It is a matter for the Perres as to whether they wish to be represented at the hearing to produce any evidence at all and, if so, in what manner they wish to be represented. What I propose to do is to adjourn the matter until tomorrow morning so that it may commence. I will then only hear evidence for a short period tomorrow morning simply to have the Perres identify the extent to which they wish to adduce evidence and to resolve any disputes as to the admissibility of the proposed evidence which they wish to adduce. Mr Perre, or whoever then appears for the applicants, may also make some general opening remarks if they wish to do so.
I will adjourn the question of costs of the motion until tomorrow morning.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate:
Dated: 11 September 2006
Counsel for the Applicants: F Perre appeared in person for the Applicants Counsel for the Solicitor Intervenors: R Whitington QC with J White and A Dal Cin Solicitor for the Solicitor Intervenors: Thomson Playford Counsel for the Barrister Intervenors: J Wilkinson Solicitor for the Barrister Intervenors: Cowell Clarke Date of Hearing: 30 August 2006 Date of Judgment: 30 August 2006
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