Ravesi v National Australia Bank Limited (No 2)

[2014] FCA 167

FEDERAL COURT OF AUSTRALIA

Ravesi v National Australia Bank Limited (No 2) [2014] FCA 167

Citation:	Ravesi v National Australia Bank Limited (No 2) [2014] FCA 167
Parties:	PAUL RAVESI v NATIONAL AUSTRALIA BANK LIMITED, PETER MOORE and MLC LIMITED
File number:	SAD 263 of 2012
Judge:	MANSFIELD J
Date of judgment:	7 March 2014
Date of hearing:	19 February 2014
Date of last submissions:	27 February 2014
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	9
Counsel for the Plaintiff:	The plaintiff appeared in person
Counsel for the Defendants:	S Cole
Solicitor for the Defendants:	Fisher Jeffries

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 263 of 2012

BETWEEN:

PAUL RAVESI
Plaintiff

AND:

NATIONAL AUSTRALIA BANK LIMITED
First Defendant

PETER MOORE
Second Defendant

MLC LIMITED
Third Defendant

JUDGE:	MANSFIELD J
DATE OF ORDER:	7 MARCH 2014
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The plaintiff pay to the defendants the costs thrown away by reason of the adjournment of the hearing on 29 July 2013, fixed at $6000.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 263 of 2012

BETWEEN:

PAUL RAVESI
Plaintiff

AND:

NATIONAL AUSTRALIA BANK LIMITED
First Defendant

PETER MOORE
Second Defendant

MLC LIMITED
Third Defendant

JUDGE:	MANSFIELD J
DATE:	7 MARCH 2014
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. I gave judgment in this matter on 19 February 2014 in favour of the plaintiff against the first and second defendants in the sum of $110,460.  The claim against the third defendant was dismissed.

2. As a result of the submissions as to costs made when judgment was delivered, I also made an order that, subject to the claim of the defendants for the costs thrown away by reason of the adjournment of the hearing on 29 July 2013, the first and second defendants pay to the plaintiff his costs of the application.  The costs of that adjournment were to be the subject of written submissions which have now been received and considered.

3. In my view, the defendants should recover the costs of that adjournment. On 3 April 2013, the matter was set down for hearing commencing on 29 July 2013.  The plaintiffs then solicitors filed a notice of ceasing to act of 24 June 2013, well before the hearing date.  The plaintiff thereafter acted for himself.  The plaintiff did not apply to have the hearing date vacated until the morning of the hearing.

4. It was appropriate in those circumstances for the defendants to continue to prepare for the hearing.  On the morning of the hearing, the plaintiff sought an adjournment firstly to amend his claim to claim consequential loss (a claim which did not succeed) and to prepare generally for the hearing.  I accept that he was under some difficulty in complying with the earlier directions about the preparation of witness statements, but he should have applied earlier than the morning of the hearing for that adjournment.  He has pointed out that he had not received certain material from the defendants prior to the hearing date, and that he had indicated on 22 July 2013 when inspecting some documents that he would be unable to proceed with the hearing on 29 July 2013.  He was told that any adjournment application would be opposed.  He did not take the matter further at that point, and the defendants were entitled to continue to prepare the matter for trial.  The proper course for the plaintiff was to apply at an earlier date for the hearing to be adjourned.

5. I also have taken into account that the plaintiff wanted to see originals of certain documents which he was pursuing up to the time of the hearing, and to see the proposed witness statements of the second defendant.  That was largely to follow the filing of his proposed evidence, so I do not think it is unfair to him to award the costs of the adjournment against him in those circumstances.

6. I have also taken into account relevant to the exercise of the discretion as to costs that the plaintiff was impeded in his trial preparation by reason of injuries sustained in an accident referred to in the reasons for judgment.

7. However, overall, the picture is clear.  He was not prepared for trial and could not proceed when the matter was listed for hearing.  If he could not have been ready for hearing after his solicitor ceased to act for him, he should have sought an adjournment of the hearing at an earlier date.  Had that occurred, the costs the defendants have thrown away by reason of the adjournment would not have been incurred.

8. In my view, it is appropriate to order that the plaintiff pay to the defendants their costs of that adjournment thrown away by reason of that adjournment.  They are said to be $6000, being the counsel fee for that date (which the plaintiff accepts is reasonable) and solicitor’s fees of the same amount.  The plaintiff says they are too much considering that he had indicated that he proposed to seek an adjournment of the hearing.  As that adjournment was opposed, the solicitors had to be in a position to proceed to hearing if the application for the approval of an adjournment was unsuccessful.  That necessarily involved work prior to the hearing.  In my view, the suggested sum of $3000 is not unreasonable.  There is considerable benefit in a where relatively small amounts are involved to fix costs rather than have them taxed.  I propose to adopt that course.  I propose to fix the costs in the sum of $6000.

9. Accordingly, I order that the plaintiff pay to the defendants the costs thrown away by reason of the adjournment of the hearing on 29 July 2013, fixed at $6000.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:       7 March 2014