R & R Industries (Australia) Pty Ltd v Marbletrend Pty Ltd

In the matter of R & R Industries (Australia) Pty Ltd v Marbletrend Pty Ltd, the Federal Court of Australia was tasked with determining whether to vacate the scheduled trial date due to the serious illness of the applicant's solicitor, who was a sole practitioner. The applicant's solicitor had been diagnosed with cancer and had undergone treatment. Following further health complications, the solicitor informed the court that he was unable to prepare for the trial, which was set to commence shortly. The respondent opposed the application, arguing that the applicant should not be allowed to delay the proceedings further and that it had diligently prepared for the trial.

The court considered the discretion it held under O 30 r 7 of the Federal Court Rules (Cth) in relation to the vacation of trial dates. The court acknowledged that while the applicant had not acted with the utmost foresight, the circumstances of the case warranted the vacation of the trial date to prevent significant prejudice to the applicant's ability to adequately present its case. The court also noted that the respondent had not identified any specific or particular prejudice beyond the delay and costs thrown away due to the vacation of the trial date.

The court ultimately decided to vacate the trial date and order a new trial date for early May 2011 or any suitable earlier date that became available. The court also directed the applicant's solicitor to make arrangements to ensure that a substitute solicitor would be available to complete the preparation for and attend and instruct in the trial if the existing solicitor was unable to do so. Additionally, the court ordered the applicant to pay the respondent's costs thrown away by reason of the vacation of the trial date, but declined to order indemnity costs, as the circumstances did not justify such an award.

The final orders of the court were as follows:

1. The solicitor for the applicant must make arrangements to ensure that, should he be unable to do so, a solicitor is available to complete the preparation for and attend and instruct in the trial of the proceeding on behalf of the applicant at a date to be fixed in 2011, and on or before 10 December 2010 file and serve a statement setting out those arrangements.
2. There be a directions hearing on 11 March 2011.
3. There be liberty to apply.
4. The applicant pay the respondent's costs thrown away by reason of the vacation of the trial date.