Radin, Vladimirka v Commonwealth Bank of Australia Radin, Judith v Commonwealth Bank of Australia Radin, Michael v Commonwealth Bank of Australia

[1997] FCA 164

NOT FOR GENERAL DISTRIBUTION
                 NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )
GENERAL DIVISION                 )
  No NG 984 of 1995

BETWEEN:

VLADIMIRKA RADIN
  Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
  Respondent

No NG 985 of 1995
         BETWEEN:

JUDITH RADIN
  Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
  Respondent

No NG 437 of 1996
         BETWEEN:

MICHAEL RADIN
  Applicant

AND:

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:11 March 1997

REASONS FOR JUDGMENT
  (ex tempore)
INTRODUCTION
There are before the Court at present three proceedings.  The first is brought by Michael Radin against the Commonwealth
Bank of Australia ("the Bank").  That proceeding is now numbered NG 437 of 1996.  The second is brought by Vladimirka Radin against the Bank and is numbered NG 984 of 1995.  The third is brought by Judith Radin against the Bank and is numbered NG 985 of 1995.   Without intending any discourtesy, I will refer to the respective applicants as "Michael", "Vladimirka" and "Judith" in order to distinguish between them.  Vladimirka is Michael's mother and Judith is Michael's former wife.

The three proceedings arise out of mortgages given by the respective applicants to the Bank to secure financial accommodation which was provided by the Bank to Michael in connection with the practice which he formerly conducted as a solicitor of the Supreme Court of New South Wales.  At the end of 1992 a receiver was appointed to that practice and subsequently Michael was struck off the roll of solicitors.  Apparently, the clients of the practice were, to a substantial extent, persons who were injured and sought damages or compensation in respect of their injuries.  Apparently, in respect of various fees payable, such as court fees, expert witness fees and counsel's fees, the clients were funded by Michael.  Apparently, the financial accommodation provided by the Bank was made available, to a substantial extent, to enable Michael to fund his clients in the manner mentioned.  The mortgages were over numerous properties owned by some one or two of Michael, Vladimirka and Judith.

HISTORY OF THE PROCEEDINGS
The proceeding by Michael against the Bank was commenced in the Supreme Court of New South Wales as proceeding number 12233 of 1993 on 18 August 1993.  In that proceeding there was a cross-claim by the Bank against Michael, Vladimirka and Judith.  It is not necessary for me to describe in detail the bases of the relief sought at that time by Michael in respect of the mortgages which he, alone or with Vladimirka or Judith, had given to the Bank.  Perhaps it will suffice to say that until recent amendments there were claims based on negligent management of Michael's account with the Bank and "negligent lending" and misleading and deceptive conduct.  He sought damages and an injunction against enforcement of the mortgages.

The proceedings by Vladimirka and Judith were commenced in this Court on 28 December 1995.  On 27 May 1996, by order made in the Supreme Court, Michael's proceeding was transferred to this Court.  On 30 May 1996, Sheppard J ordered that the three proceedings be heard together; that the hearing of all three estimated for three weeks be provisionally fixed for hearing to commence on 3 March 1997; and that the applicants file and serve all statements of evidence by 11 July 1996.  There were other directions as well.

On 22 August 1996, Sheppard J made these orders:

"1.Proceedings NG 437 of 1996, G 984 of 1995 and NG 985 of 1995 be heard at the same time, and insofar as the same may be relevant, evidence in one be evidence in the others.

2.Proceedings NX 57 of 1994, G 695 of 1995 and NG 632 of 1996 be heard:

(a)At the same time; and

(b)After the conclusion of the hearing of the other three proceedings referred to herein (viz NG 437 of 1996, G984 of 1995 and G 985 of 1995).

and in so far as the same may be relevant:

(c)Evidence in one be evidence in the others:

(d)Evidence in the said other three proceedings referred to herein be evidence in each of these three proceedings."

It is not necessary for me to deal with the latter three proceedings which have been referred to by counsel collectively as "the bankruptcy proceedings".  It will be noted that the hearing of them is to follow the hearing of what I will refer to as "the three principal proceedings".

On 27 November 1996 the proceedings were before Burchett J.  The short minutes of orders record the following:

"20.Note hearing dates:

(a)3 March 1997 to 21 March 1997 in matters NG437 of 1996, G 984 of 1995 and G 985 of 1996;

(b)24 March 1997 to 4 April 1997 in matters NX 57 of 1994, G 695 of 1995 and G 632 of 1996; ..."

It will be recalled that earlier on 30 May 1996, Sheppard J had "provisionally fixed" the three principal proceedings for a hearing to commence on 3 March 1997, with an estimated hearing time of three weeks.  Burchett J's orders confirmed that which had previously been provisional.

On 16 December 1996 the proceedings were before me.  I made it clear to the parties, all of whom were represented by legal practitioners on that date, that due to Full Court commitments in Melbourne during the week commencing 3 March 1997, that I would not be in a position to commence the hearing on 3 March.  I vacated the first week of the hearing dates and instead directed that the three principal proceedings be heard from 10 March 1997 to 2 April 1997 and that the other three proceedings be heard from 3 April 1997 to 17 April 1997.  Other directions were made.

The proceedings were again before me on 20 December 1996 when further directions were made.  Those directions related to such matters as particulars and inspection of documents.  Counsel appearing for Michael said that there was no further evidence to be filed. 

On 6 February 1997, Mr G J McVay of counsel appeared for Michael.  Mr McVay had been retained only as recently as 29 January and has appeared for Michael since that time.  I made a direction in Michael's matter that any motion to amend should be brought by notice of motion for leave to amend by Tuesday, 11 February 1997.   No doubt the proposal for an amendment arose from Mr McVay's having considered the matter. Also on 6 February 1997, Judith indicated  a wish to file further affidavits. 

Michael moved for leave to amend his statement of claim.  On  14 February, I allowed the application for leave to amend and directed that Michael file three affidavits (by himself and witnesses Griffin and Doyle) by 19 February and two affidavits (by witnesses Moody and McKay) by 28 February, and a supplementary list of documents by 21 February; that the Bank file its defence to the amended statement of claim by 24 February 1997, and that the proceeding stand over to 21 February.  Clearly, depending on the contents of the affidavits, the Bank might be placed in a difficult position in responding to them in time for the hearing on 10 March.  Other directions were made as well.  Also on 14 February I granted Judith leave to file in Court two substantial affidavits by her dated 12 and 13 February 1997, without prejudice to any difficulties which the Bank might have in meeting those affidavits.  I also granted leave to Judith to file and serve a notice of motion seeking leave to amend her statement of claim by Wednesday, 19 February returnable on Friday, 21 February.  Finally, in Vladimirka's proceeding, I granted leave to Vladimirka to file in Court a notice of motion dated 13 February seeking leave to amend her application and statement of claim and a supporting affidavit, and I directed that her notice of motion for leave to amend be returnable instanter and stood it over to Tuesday, 18 February.
On 21 February, in the matter of Michael, I granted leave to and directed him, to file and serve any notice of motion for vacation of the hearing dates and supporting affidavits by 12 noon on Monday, 24 February, the motion to be returnable on Wednesday, 26 February at 9.30 am.  In fact a notice of motion was filed on 25 February returnable on 26 February.  In the matter of Judith, I granted her leave to file in Court a notice of motion returnable instanter seeking leave to amend and stood that motion over to 26 February.  In the matter of Vladimirka, a direction was made for her to file and serve any further affidavit by 25 February.  Vladimirka's pending motion for leave to amend was stood over to 26 February.

On 26 February I dismissed Michael's application for a vacation of the hearing dates, granted leave to Vladimirka to amend her application and statement of claim and granted leave to Judith to amend her application and statement of claim.

Last week when I was sitting in Full Courts in Melbourne, Michael filed with leave a second application to vacate the hearing dates.  That motion was part-heard by video link last Thursday, 6 March.  The matter was estimated initially to take something of the order of an hour.  The hearing commenced at 2.15 pm and had not concluded by 4.45 pm.  A complaint relating to the Bank's discovery was raised by Michael (it has subsequently been abandoned) on which the Bank needed a little time to conduct some investigation and get instructions.  In addition, it was made clear on behalf of the Bank that its affidavits or draft affidavits arising out of the amendments and in response to the late evidence of the applicants were yet to be finalised and that the applicants would not have them before Friday at 5 pm.  For all of these reasons the hearing was adjourned part-heard until yesterday, 10 March at 10.15 am in Sydney.  This was, of course, the time at which the substantive hearing had been fixed to commence.  The hearing resumed yesterday and occupied the full day and has resumed again this morning for the conclusion of submissions.

RECENT AMENDMENTS TO MICHAEL'S STATEMENT OF CLAIM
I will say something now about the amended statement of claim of Michael which was filed on 19 February 1997.  Again I do not find it necessary to give a detailed account of the various bases on which he seeks relief.  The amendments comprise additional paras 33A to 87.  They plead a contract on the part of the Bank to make advances and not to demand repayment until conclusion of the litigation of the client in question, and of course, breach of that contract.  They plead representations by particular named Bank officers that the Bank would continue to  provide financial accommodation to Michael for the benefit of his clients, whereas, in truth, the Bank's Regional Office had instructed the local branch at Fairfield to cease doing so.  Michael relies on the statements made by various bank officers as constituting negligent misrepresentations and misleading and deceptive conduct.  He pleads fraud against the Bank and its officers.

One matter which has featured in the argument is that it is pleaded that the Bank was aware that the giving of further mortgages would depend upon the cooperation of Judith, in view of the fact that certain properties were co-owned by Michael and her.  It is pleaded that the Bank was aware that property settlement proceedings were on foot between Michael and Judith in the Family Court of Australia.  It is pleaded that although the Bank was pressing Michael for further security, when Judith made inquiries of the Bank she was told, in effect, that there was no urgency for any further security to be provided, with the result that she became convinced that Michael was lying to her in order to gain an advantage in the property settlement proceedings.  Accordingly, she declined to cooperate with Michael with the result that the further mortgages were not provided and the Bank withdrew its support of Michael's legal practice.  It is pleaded that the Bank, through its staff, was fraudulent in this respect.

Another important part of the amendments is that it is pleaded that by virtue of the Bank's conduct, Michael was deprived of the opportunity to refinance his loan and lost profit making opportunities arising from the development potential of a number of properties.  In order to quantify that claim, obviously, it becomes necessary for Michael to demonstrate the development potential by way of evidence, in order to show that the lost opportunity was at least of some value.

THE FIRST APPLICATION TO VACATE
When the first application to vacate was before me, an affidavit of Miki Milicevic, sworn 11 February 1997 was relied upon.  She is Michael's solicitor in his proceeding.  She purchased Michael's practice for one dollar.

The following account is derived from her affidavit.  She briefed senior counsel in July 1996, informing him then that the matter was set down for 3 March 1997.  She had two conferences with him.  He had the brief for about three months and she did not receive any advice from him.  He held the brief until about October 1996.  She tried to contact him and caused her employed solicitor to do so on numerous occasions, stating that his advice was wanted urgently.

After about three months she asked for the brief to be returned.  There is in evidence a letter from senior counsel to Ms Milicevic, dated 4 July 1996, in relation to the brief, and a letter from her to him dated 1 August.  The latter reads, inter alia, as follows:

"As you are aware we are and have been under a strict timetable.  We have to date only been able to adhere to it by ourselves drafting and settling documents which you would agree is not satisfactory given the complexity of the matter.

Your commitments appear to be enormous and there seems to be insufficient time to devote to this matter and we are in a position where we need continuous advice and guidance.

In the interests of our client we feel that no further fees should be incurred.  As you properly pointed out our client's budget is limited and we ask you to bear this in mind when submitting your account for the reading.

Although this letter is less than clear, what seems to be indicated is that a request was being made that the brief be returned.  In any event, according to Ms Milicevic's affidavit, after the return of the brief she briefed other senior counsel in November 1996.  He informed her that the existing statement of claim would need to be amended but that this would be a matter for junior counsel.  She says that she made inquiries as to an available junior and briefed junior counsel on 20 December 1996. 

She says that the end of the Law Term came before she could confer with him although she did so on or about 21 January 1997.  She says that he contacted her about two weeks later and informed her that another matter in which he had been engaged for some time would proceed longer than expected and that he could not continue further with the brief.  She sent the papers to Michael's present counsel, Mr McVay, on 29 January 1997.

The affidavit is expressed in somewhat general terms.  Clearly some problems were experienced.  It is difficult to accept, however, that if Ms Milicevic and her client (who, according to the evidence, has been undertaking some, perhaps much, of the work of preparing the case for hearing) had applied themselves to the task, it would have been impossible for the question of the state of the pleadings and evidence to be addressed earlier than it has been.  Michael was represented by counsel on 30 May, 22 August, 27 November, 16 December and 20 December, before Mr McVay appeared for him for the first time on 6 February 1997.

Be this as it may, it seemed to me on the hearing of the first application to vacate, that the position was not shown to be one where the time set aside could not be usefully used.

AFFIDAVITS ON SECOND APPLICATION TO VACATE
Substantial further affidavit evidence was relied upon on the second application to vacate, heard last Thursday, 6 March and resumed yesterday and today.  I will refer to the additional affidavits that have been relied upon on the hearing of the current application.

First, there is an affidavit of Michael Radin, sworn 19 February 1997.  It is a lengthy affidavit of 83 paragraphs and deals with substantive issues.  The affidavit arises substantially out of the amendments.  It is an affidavit to which the Bank will have to reply. 

There is an affidavit of Ms Milicevic, dated 24 February 1997, referring to the claim for loss of the opportunity of making profits from potential developments.  She says that counsel advises that it will be necessary to obtain expert evidence from persons knowledgeable in the field of property development.

There is a further very substantial affidavit by Michael sworn 24 February 1997 addressing 12 properties and annexing previous valuations that were made of those properties.  These are properties which Michael owned or co-owned with Vladimirka or Judith.   The valuations were made by a firm called Alcorn Lupton Nicholson. 

There is an affidavit of Miki Milicevic, sworn 4 March 1997 in which she deposes to the resources available to her in her firm.  She states that she is the principal of the firm and has a Ms Stefanovic as her associate and one employed solicitor and one clerk.  Apparently, the associate works two to three days per week and does not conduct litigation.  The affidavit deals with the efforts which have been made by Ms Milicevic to prepare the case for hearing, particularly during and since the latter part of February 1997.  In relation to the question of expert evidence on the loss of development potential, she says that apart from contacting a Mr Meredith whose name was given to her by Michael as a source of names of potential witnesses, she has not had time to go further into that side of the matter.  As well, she refers to the necessity of her taking time to study ledger cards held by Jean Sayer, the receiver of Michael's practice.  She refers to the distance between the various development properties in question and offers her opinion that it would not be open to the one expert to give the expert evidence of development potential in view of the distances between the properties. 

Another matter to which she refers is the necessity to brief an expert to consider the allegations made against Michael by the Law Society.  She says that there were a number of allegations independent of the alleged trust account violations and that Michael would wish to establish that he may well not have been struck off as a solicitor merely because of those other allegations.  She says that she has not had time to obtain that expert evidence. 

Finally, she says that she needs to retain an expert to prove the value of the goodwill of Michael's practice with a view to demonstrating the loss on the sale of it (it will be recalled that she purchased it for one dollar).

A further affidavit by Michael sworn 6 March 1997 is relied upon.  It goes to an issue over discovery which, as I noted earlier, appears to have been relied upon only very late in the day.  A notice of motion by Michael was filed in Court yesterday seeking an order pursuant to O 15 r 8 that discovery of the regional office files referred to in a letter of L.E. Taylor, the Bank's internal solicitor, to Milicevic Solicitors dated 25 February 1996, be ordered.  It transpired in the course of the hearing that they had in fact been discovered.  Mr McVay has said that although that may be the case, he needs time to check whether copies have been provided by the Bank.  In any event, Michael's motion for discovery is to be stood over and Mr McVay has not relied upon a lack of discovery to support the motion for vacation of the hearing dates.  Therefore I do not need to address the discovery issue further today.  It was raised last Thursday and occupied some time in cross examination by video and some hearing time again yesterday.

The Bank also relied upon affidavit evidence last Thursday, in particular, an affidavit from Richard Campbell Beasley, a solicitor employed at Abbott Tout, who has partial conduct of the matter on behalf of the Bank under the supervision of Mr Breen, a partner in that firm.  He says in his affidavit that on 5 March (the day before the hearing) he telephoned Ross Auckett, a partner of the firm Alcorn, Corbett and Nicholson, consultant valuers and property counsellors, whose firm, it may be recalled, had provided the valuations annexed to Michael's affidavit to which I referred earlier.  He relays a conversation in which Mr Nicholson told him that he would be able to provide evidence of the development potential of the various properties within quite a short period.  In fact, a period of some 7 to 9 days was mentioned in the affidavit.  According to the affidavit, Mr Nicholson said that it did not matter that the properties were in different locations. 

This issue was taken up further in evidence yesterday.  It emerged that Mr Nicholson is absent from the country and is not himself in a position to undertake the work, although others in his firm could do so.  There was also a suggestion that whether the work could be done in such a short period of time as 7-9 days would depend upon the amount of the fee which Michael might be in a position to pay.

SERVICE OF THE BANK'S AFFIDAVITS AND DRAFT AFFIDAVITS
An important development since last Thursday was the service of affidavits and draft affidavits on behalf of the Bank.  There were seven of these.  Copies were served last Friday evening and on Saturday and Sunday.  They arose out of Michael's recent amendment of his statement of claim and recent service of further affidavits.  It is understandable, however, that Mr McVay and the legal representatives of Judith and Vladimirka, need some time to assess the impact of these affidavits and, perhaps, to reply to them. 

However, there are a number of points which should be made.  The first is that substantially, if not entirely, they arise out of the amendments which Michael was allowed to make and perhaps amendments which Judith and Vladimirka were allowed to make, in all cases but recently, to their respective pleadings.

A second matter is that although they appear at first glance to be bulky, this fact is attributable to the substantial number of annexures and those annexures are copies of documents of which the Bank gave discovery a very long time ago.  I hasten to say that I do not think that this is necessarily a complete answer, because until attention is directed to a particular discovered document, the other party cannot be expected to appreciate the full significance of it.

The third, and perhaps most important consideration, is that much of the body of the affidavits simply responds to the affidavit of Michael, and, perhaps, the affidavit of Judith, recently filed.  Particular illustrations from the affidavits are paragraphs in which the deponent simply refers to a paragraph of Michael's affidavit and says that he does not have a recollection of a conversation to the effect of that recounted by Michael or simply denies that words stated by Michael in his affidavit were uttered.

The point is that although the seven affidavits appear to be substantial, preparing to respond to them and, if necessary, filing an affidavit or affidavits in reply or, if it be appropriate, leading oral evidence in reply, will not present any particular obstacle to Michael, or, for that matter, Vladimirka or Judith or their respective legal representatives.

Although I think that the legal representatives of the various applicants should be given a little time to prepare to respond to these affidavits, it would be certainly ample, and perhaps excessive, for them to have until next Monday to do so. 

An attempt was made in cross-examination of Mr Beasley yesterday to show that the Bank or its solicitors or both had not acted with alacrity in obtaining these affidavits.  It is, of course, possible to trace day by day the period from the supply of Michael's affidavit on 20 February down to this last weekend, and to demonstrate that particular days or half days have passed here or there without action being taken.  Of course the exercise is rather unworldly, since it assumes in respect of each of the seven affidavits that the solicitor's only task was to take instructions for, prepare, have sworn, and serve that one affidavit.  I am not persuaded that the Bank and its solicitors have been sitting on their hands. In any event, as I said, I have no doubt that the matter can be easily met if the hearing is delayed until next Monday.

LACK OF EXPERT EVIDENCE
In his submissions Mr McVay has referred to the fact that there is a lack of expert evidence in his client's case at present.  This is true.  However, in my opinion the lack of expert evidence presents no problem once a practical view is taken of the case.  It was due to start yesterday, 10 March, and if the commencement were to be delayed until 10.15 next Monday, there would remain a fortnight to be used in the estimated time, subsequently referred to apparently as a fixed time (there may be some debate about this), for the hearing of the three principal proceedings.  It is unlikely, in the extreme, that any question of expert evidence will be reached until after that fortnight has passed.  I should note, in passing, that apparently Mr McVay is not available after the fortnight and it has been made clear that he is not briefed in the second tranche of three matters, "the bankruptcy proceedings."

It seems to me, although the matter could be looked at again, that while occupied with the running of the three principal  proceedings, Mr McVay and his instructing solicitor may not have enough time to pursue the question of expert witnesses.  But this affords no reason for not utilising the two week period on the logically antecedent matters.

There is one submission that was made by the Bank which does detract from Michael's submission that, through no fault of his own, he lacks expert witnesses on the issue of loss of potential for profit-making through property development.  Apparently the only attempt that has been made to date to get an expert in that area is the contact made with Mr Meredith.  No approach has been made to any of the professional associations such as the Real Estate Institute of New south Wales, the Australian Institute of Valuers and Land Economists (Inc), which may be thought relevant and which may have the names of people ready to provide relevant expert evidence expeditiously.

Another point that should be noted in this respect is that although Ms Milicevic has expressed the opinion that an expert would not be available in the time required, no evidence has been led from an expert, such as an officer from a professional organisation of the kind to which I have referred, as to the kind of evidence required, the availability of expertise, and the time necessary for provision of a report.  In summary, the evidence relied on by Michael in this respect is not persuasive.

AVAILABILITY OF COUNSEL FOR JUDITH RADIN
A further matter which arose only yesterday morning concerns the availability of counsel for Judith.  This proved to be an unfortunate matter in a number of respects. 

When Michael's notice of motion was filed last Thursday, 6 March, Judith and Vladimirka made it clear, through their solicitors, that they supported Michael's application for a vacation of the hearing dates, but that they did not themselves seek to move independently for such an order.  At the resumption of the hearing yesterday, 10 March, of Michael's motion, Mr Licardy, solicitor for Judith, sought and was granted leave to file in Court a notice of motion on behalf of Judith seeking an order that the hearing dates be vacated.   That motion was supported by an affidavit by himself sworn 10 March.  Paragraphs 7 and 8 of the affidavit are as follows:

"7.Further, I say that Mr Craig Leggat of Counsel has been briefed to appear on behalf of Mrs Judith Radin in these proceedings however has advised me that due to the brief he holds on behalf of the Department of Mines in respect of the Mount Gretley mine disaster that there would be some days on which he would be unable to appear on behalf of Mrs Judith Radin in these proceedings.

1. On Friday evening the 7th March 1997 and on Sunday evening the 9th March 1997 I had discussions with Mr Craig Leggat concerning his brief in this matter and was informed by him that the brief he holds in the Mount Gretley mines enquiry has now widened and will require his presence a great deal more during the term of the inquiry which is to run as I understand for a period of 4 months.  On that basis he advised me that he would now be only able to appear on Mrs Judith Radin's behalf on Fridays when the enquiry is not sitting and other odd days during the hearing of this matter together with the making of submissions at the close of this case.  Clearly I will need to now brief alternative Counsel to make it possible to appear on behalf of Mrs Judith Radin."

It will be noted that according to para 7, the arrangement prior to the conversations on Friday evening 7 March and Sunday evening 9 March between Mr Licardy and Mr Leggat, was that the load in terms of appearance work would be shared between solicitor and counsel.  The change which the affidavit represents occurred, and which no doubt prompted the filing of the notice of motion yesterday on behalf of Judith, is that as recently as Friday or Sunday last, Mr Leggat informed Mr Licardy for the first time that he would be available only on Fridays and to make submissions, and perhaps other odd days here or there.

Immediately following the resumption of the hearing after the luncheon adjournment yesterday, Mr Sackar QC for the Bank said that during the adjournment he had had a conversation with Mr Leggat who was, indeed, at the time in Newcastle in connection with the inquiry, in which Mr Leggat had said that the terms of his original retainer were not fully stated in para 7 of Mr
Licardy's affidavit.  Then Mr McVay said that during the luncheon adjournment he also had had a telephone conversation with Mr Leggat who had telephoned him.  Mr McVay said that there was a question as to whether the whole of Mr Licardy's affidavit had been read to Mr Leggat by Mr Sackar.

From the viewpoint of both Mr Sackar QC and Mr McVay the position was not entirely satisfactory having regard to the fact that the conversations with Mr Leggat had to be by telephone, necessarily, and Mr Leggat had apparently not had a copy of Mr Licardy's affidavit before him.  I indicated that if Mr Leggat, after considering a copy of Mr Licardy's affidavit and a copy of the transcript of the cross examination of Mr Licardy, wished to put on an affidavit to explain the position, there would be opportunity for that to happen this morning.  At Mr Sackar's invitation, Mr Licardy informs me this morning that he has spoken to Mr Leggat who, after reading a copy of the affidavit and a copy of the transcript, does not wish to put on an affidavit.

The position seems to be that it was always part of the retainer of Mr Leggat that Mr Licardy might, for example, have to begin this case on behalf of Judith rather than having Mr Leggat present to do so.  On Mr Licardy's affidavit there was always to be a sharing of the load.  I do not see it therefore as a ground to vacate the hearing date that Mr Licardy may be without Mr Leggat at the beginning of the hearing.  The most that can be said is that the amount of time during which Mr Leggat will be available is less than what Mr Licardy had envisaged.  No doubt I am intended to conclude from Mr Licardy's affidavit that over the weekend Judith has found herself faced with a situation very different from that which existed previously.  But the vagueness of the terms of Mr Leggat's original retainer as recounted in para 7 provide an inadequate basis on which I could so conclude.

It is put that it is desirable that Judith have other counsel briefed on her behalf.  This may well be so.  It is put that it may be difficult for other counsel to be fully familiar with her case by next Monday and this may also be true.  However, it is essential to understand that the early part of the hearing will be fully occupied with issues as between Michael and the Bank and that certainly the substance of Judith's case will not be reached until the second week, if at all during the two weeks commencing next Monday.

JOINDER OF MS McGUIRE
It was put for Judith in the course of the hearing that it had come to light that she may wish to join in her proceeding a Ms McGuire. 

I should say, because I think it not amiss to say it in order to convey the way in which the applications have been made, that this, like the position with Mr Leggat, is a matter which was not raised last Thursday when it was anticipated that Michael's application for vacation would be heard and resolved.  That is not to say, of course, that circumstances relevant or potentially relevant to an application to vacate may not come to notice until late.  Indeed, I envisaged last Thursday that this might prove to be the case in relation to the supply of the Bank's affidavits.  But it helps, I think, to understand the course of the present motions to appreciate that grounds or aspects of grounds have been raised and not pressed and new grounds have been raised from time to time.

Mr Licardy's submission in relation to Ms McGuire was not supported by any affidavit and I have not been taken to the letter or letters which apparently have inspired the notion that a claim by Judith against Ms McGuire might be brought.  Apparently, Ms McGuire is a solicitor.  Apparently, some correspondence exits.  Apparently, there is a possibility that if Judith is unsuccessful she may wish to make a claim of some undefined kind against Ms McGuire.

Taking up this idea, Mr McVay has now said that Michael might also wish to join Ms McGuire.  The basis for this submission has also not been spelled out. 

This morning, Mr Licardy elaborated on the submission relating to Ms McGuire by saying that overnight he had "dug up" an old bill of costs of 100 pages and needed time to examine a file.  The bill was not put into evidence.

It is put on behalf of the Bank against Mr Licardy's submission that the letters in question which have apparently prompted the idea of a claim against Ms McGuire were discovered by the Bank as long ago as last August (the Bank has identified what it understands to be the discovery numbers of the letters in question).  Further, the Bank has drawn attention to para 16 of Judith's affidavit sworn 11 July 1996 in which the following appears:

"I was strongly advised by Ms McGuire against consenting to the re-finance of the properties for the reason that I would lose any rights that I had against Michael Radin pursuant to the Contracts Review Act.

If the claim envisaged by Judith against Ms McGuire is that Ms McGuire was in breach of her professional duty to Judith by allowing Judith to participate in the mortgaging of the co-owned properties, that paragraph would seem, at least at first blush, to sound the death knell for any such claim.  Of course, I do not so decide - the nature of the claim contemplated against Ms McGuire has not even been formulated.  I am certain of one thing, however, and that is that on the basis of the existing evidence the suggestion that one or both of Michael and Judith may perhaps wish to join Ms McGuire on an unformulated claim as a party to their respective proceedings on the basis of a letter or letters which the Bank discovered last August should not lead to a vacation of the hearing dates.

ALLEGATIONS OF FRAUD AGAINST BANK OFFICERS
It is submitted by Mr Sackar QC that in the amended pleading allegations of fraud are made against officers of the Bank and that in these circumstances it is desirable, in fairness to them, that the hearing should proceed sooner rather than later.  Mr McVay correctly points out that the officers are not parties against whom relief is sought.  The fact that the allegations of fraud are made against the individuals in question is one factor to which regard must be had, although, of course, it is not determinative. 

STATE OF QUEENSLAND v J L HOLDINGS PTY LIMITED (1997) 141 ALR 353
Mr McVay has placed considerable emphasis on the High Court decision in State of Queensland v J L Holdings Pty Limited (1997) 141 ALR 353. That case, as is well known, emphasises that considerations of justice should not be allowed to be outweighed by such matters as case management and efficient use of court time. That was a case in which an amendment to a defence was not allowed at a stage when the case had not been fixed for hearing. Factually, it bears little resemblance to the present case. That is not to say, of course, that the general principle does not apply in the present case that the governing consideration is the need to do justice to both parties.

INTERMEDIATE POSITIONS
Yesterday I invited the parties to make submissions as to
intermediate positions as distinct from the two extremes for which they would respectively contend.  Clearly, the Bank's "extreme" (most favoured) position is that the hearing should commence now without further ado.  I should note, however, that in response to my raising the possibility of a delayed hearing until next Monday, Mr Sackar QC said that the Bank would not resist that course.  The "extreme" (most favoured) position supported on the other side is that there be a vacation of the hearing in its entirety.

I raised one or two possible intermediate positions and asked the parties to address submissions to them and to any other intermediate positions which might occur to them.  After an adjournment, Mr McVay and Mr Whitby, solicitor for Vladimirka, and Mr Licardy, solicitor for Judith, announced that they would not make any submission in favour of anything short of a vacation of the entire hearing.  Mr Sackar, as I have already indicated, said that he would accept a delayed start until next Monday.  I am not entirely clear that a delay until next Monday is not excessive, but I think that that some respite should be allowed and that the hearing should commence next Monday at 10.15. 

I raised the possibility that I might make findings of fact in relation to the pleaded representations without actually deciding the issue of liability or of quantum.  No party embraced that idea.  For example, the fact that Michael's credit will be challenged is relied on by Mr Sackar.  At an earlier point of time Michael moved for a severance of the issues of liability and quantum, although I understand his current position to be that he does not favour that course.  One thing is clear: the application to vacate is an all or nothing affair from his viewpoint. 

It must be emphasised that a great deal can be accommodated in the way in which a case is run, that is, accommodated in regard to difficulties which a party may encounter.  Mr Sackar QC has said, for example, that if it transpires that Michael is not able, after due effort, to get the expert evidence that he needs, he, Mr Sackar, would not insist that Michael's case be closed. 

I have no doubt that effective use can be made of the fortnight starting next Monday, without injustice to either party.  A great deal of that time will be occupied with the reading of the affidavits and the cross examination of, in particular, Michael and his witnesses.  The burden of that cross examination will fall on the Bank's legal representatives.  As well, it will be necessary that I be taken to documents in a bundle.  It is clear that the evidence of Judith and Vladimirka will not be reached until the second week if it is reached at all during the two weeks.

A SUBMISSION IN REPLY
In reply this morning, Mr McVay submitted that until an expert is retained on the striking off question, that is to say an expert who, it is hoped, will say that Michael would not have been struck off merely on account of the considerations other than the trust account matters, it is not known whether a factual substratum should be laid in the evidence of Michael himself.  Although I have not been taken to any evidence on the matter, the submission invites me to assume, as I do, that Michael was struck off because of trust account defaults which are said to have arisen from the Bank's conduct, and other conduct of Michael.  The submission is that until that expert's advice is available it is not known whether Michael may wish to supplement his primary evidence on the basis of which the expert would offer his opinion.

There are several reasons why this submission should not be allowed to prevail.  In the first place if a real difficulty should emerge in that regard I would entertain an application to reopen.  Secondly, the ground is entirely hypothetical, like that of the possible claim against Ms McGuire.  There has been no attempt to suggest, even in outline, the kind of evidence in question.  Thirdly, there has been a claim for damages for some time in the proceeding and the particular issue could have been addressed much earlier.  As long ago as 18 June 1993, Michael's statement of claim was filed in the Supreme Court.  It pleaded that his troubles with the Law Society were attributable to the Bank's conduct.  The following extracts illustrate:

"22.By reason of the negligence of the Defendant
the Plaintiff has suffered loss and damage:

Particulars of Damage

a....

b.By reason conduct referred to in 21(e) a reciever [sic] was appointed to the The [sic] Plaintiff's business by the Law Society of New South Wales and the Plaintiff has been prohibited from practicing [sic] as a solicitor and the Plaintiff is unable to continue to earn his livelihood as a solicitor.

c.By reason of the Plaintiff being prohibited from practicing [sic] as a solicitor the Plaintiff's reputation has been damaged.

d.By reason of the Plaintiff being prohibited from practicing [sic] as a solicitor the goodwill of the Plaintiff's business has been damaged and the value of the business has become thereby reduced."

There was a generally similar particularisation of loss and damage in sub-paras (b) to (e) of para 33 of that statement of claim.  It has clearly been necessary since Michael's proceeding was launched for him to prove a causal link between the Bank's conduct and his difficulties with the Law Society.

But I return to the first consideration.  If the presently hypothetical need to lead further evidence from Michael were to materialise, an application to re-open could be made.

PROPOSED RESULT
Having carefully considered all the evidence and submissions, I think that a just result is that the dates 10, 11, 12, 13 and 14 March for the substantive hearing be vacated and that the three principal proceedings be fixed for hearing to commence next Monday 17 March at 10.15 am.

COSTS
There is an issue as to costs.  As I understand it the parties are agreed that the costs thrown away by the vacation should be their respective costs of the proceedings and I will make that order.  There is, however, a difference as to the bearing of the costs of the two motions to vacate.  It is put for the Bank that the respective applicants should pay its costs, at least down to the time when the witness statements were served last Friday evening and over the weekend.  As I understand it, without conceding anything, the Bank would not oppose an order that the costs of yesterday and today be the parties' respective costs of the proceedings.  It is put for the applicants that the motions had to be brought in any event, that they had partial success, and that since the principal cause of the vacation of this week is the recent service of the Bank's affidavits, they should have their costs.

It is often unsatisfactory to leave it to a taxing officer to attribute particular items of work or time to particular causes.  I think that it is correct that on the issues debated prior to yesterday the Bank was successful.  In relation to the issues debated yesterday and this morning there has been partial success on the part of the applicants although it is true that there might be some argument about whether the grant of vacation of a full week is excessive.  In addition, there remains the question of whether it is just to attribute blame to the Bank for the recency of service of its affidavits, having regard to the fact that they respond to the amendments to the applicants' pleadings and affidavits. 

I think that the appropriate course is to make an order that the applicant, Michael Radin, pay one half of the Bank's costs of his motion and that Judith Radin pay one half of the Bank's costs of her motion.  I reach this result, because, taking a broad view of it, it seems to me that the Bank has had a greater degree of success and has succeeded in respect of most of the time occupied on the various issues.  The time occupied with the question of the Bank's recently served affidavits was not great.

CONCLUSION
The orders of the court will be as follows on the three motions before the Court:

1. VACATE the dates for the substantive hearings on 10, 11, 12, 13 and 14 March 1997 in proceedings NG 437/96, NG 984/95 and NG 985/95.

1. Otherwise

(a)DISMISS the motion for vacation of the hearing date brought by the applicant in matter no NG 437/96.

(b)DISMISS the motion for vacation of the hearing date brought by the applicant in matter no NG 985/95.

1. ORDER that the costs thrown away by the vacation should be their respective costs in the proceeding.

1. ORDER that the applicant in NG 437/96 pay half of the respondent's costs of his motion.

1. ORDER that the applicant in NG 985/95 pay half of the respondent's costs of her motion.

1. STAND OVER the motion of Michael Radin for discovery brought by notice of motion filed in Court on 10 March 1997 to Monday 17 March 1997 at 10.15 am.

I certify that this and the preceding 32 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren.

Associate:

Dated:13 March 1997

Heard:       6, 10, 11 March 1997

Place:       Sydney

Decision:     11 March 1997

Appearances:  Mr G J McVay of counsel instructed by Milicevic, solicitors, appeared for the applicant in matter No NG 437 of 1996 (Michael Radin).

Mr Whitby, solicitor, appeared for the applicant in matter No NG 984 of 1995 (Vladimirka Radin).

Mr Licardy, solicitor, appeared for the applicant in matter No NG 985 of 1995 (Judith Radin).

Mr J R Sackar QC with Mr R S Hollo of counsel instructed by Abbott Tout, solicitors, appeared for the respondent.