Skrijel v Mengler - [2003] VSC 18

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5446 of 1993

MEHMED SKRIJEL	Plaintiff
v
JOHN CARL MENGLER	Firstnamed Defendant
COMMONWEALTH OF AUSTRALIA	Secondnamed Defendant
GARY WESTON COOK	Thirdnamed Defendant
STATE OF VICTORIA	Fourthnamed Defendant

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JUDGE:	NETTLE J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2003
DATE OF RULING:	7 February 2003
CASE MAY BE CITED AS:	Skrijel v Mengler and ors
MEDIUM NEUTRAL CITATION:	[2003] VSC 18

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Basil Nurendini
For the Firstnamed Defendant	Mr M. Tovey QC with Mr P. Marzella	Hardham Dalton & Sunberg
For the Secondnamed Defendant	Mr B. Walters SC with Mr K. Mueller	Australian Government Solicitors
For the Thirdnamed Defendant	Mr J. Santamaria QC with Mr M. Gindberg	Victorian Government Solicitors
For the Fourthnamed Defendant	Mr R. Gipp	Ebsworth & Ebsworth

HIS HONOUR:

The writ in this action was filed in 1993, and the history of the litigation has been long and chequered. For some time now the proceeding has been fixed for trial to begin next Monday, 10 February 2003, but yesterday notice was given by the solicitor for the plaintiff of intention to apply today for an adjournment of the trial for a period of some two months. Today a summons has been filed in order to formalise the application.

The solicitor for the plaintiff has sworn an affidavit in support of the application in which he deposes that, although he briefed [a barrister] of counsel last year, and that [the barrister] has devoted the month of January to preparation for the trial, the plaintiff has just this week given instructions in writing that the plaintiff does not want [the barrister] any longer retained on behalf of the plaintiff. Moreover, the solicitor says, the reasons given by the plaintiff are such that the solicitor would be embarrassed in continuing to act as solicitor.

The application for adjournment is opposed by all defendants, and the plaintiff’s solicitor has been cross-examined on his affidavit by senior counsel for the first defendant. I have also had the benefit of detailed submissions as to why an adjournment ought not be allowed, or if one is to be allowed, why it should be for no more than a very brief period. In short, the submissions are that it is highly probable if not certain that the application for adjournment has not been made in good faith, but rather as a further instance of conduct, of a sort previously engaged in by the plaintiff in this litigation and in other related litigation, whereby for no good reason and at the last minute the plaintiff withdraws instructions given to his legal advisers, ostensibly on the basis that he considers them to be acting against his interests or otherwise in some sort of conspiracy to do him harm.

It is also submitted on behalf of the defendants that the evidence shows, or at least makes highly probable that the plaintiff is indigent, and for that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] VSC 18
Decision Date: 7 February 2003

CaseChat Overview and Summary

In Skrijel v Mengler, the plaintiff sought an adjournment of the trial date to allow for the replacement of his legal counsel. The defendants opposed the adjournment on the grounds that the application was made in bad faith and that the plaintiff was unlikely to retain alternative counsel. The court examined the evidence and submissions to determine whether the adjournment was warranted. The plaintiff's letter to his solicitor outlined dissatisfaction with the preparedness of his counsel and concerns about the retainer paid. The court considered the principle that an adjournment should be granted in the interests of justice, but recognised that there are exceptional cases where a party's own conduct may preclude an adjournment. The court concluded that while the plaintiff's reasons for dismissing his counsel were not satisfactory, the application was not made in bad faith and that the plaintiff's belief in the necessity for an adjournment was honest. However, the court also recognised the prejudice that would be caused to the defendants by a lengthy adjournment. The court ordered an adjournment of two weeks, finding that this period would be sufficient for the plaintiff to retain alternative counsel and prepare for trial.

The court's decision highlights the importance of the principle that an adjournment should be granted in the interests of justice, but also recognises that there are exceptional cases where a party's own conduct may preclude an adjournment. In this case, the court found that the plaintiff's reasons for dismissing his counsel were not satisfactory, but that the application was not made in bad faith and that the plaintiff's belief in the necessity for an adjournment was honest. The court also recognised the prejudice that would be caused to the defendants by a lengthy adjournment. The court's decision demonstrates the need for a balanced approach when considering applications for adjournment, taking into account both the interests of the party seeking the adjournment and the potential prejudice to the opposing party.

Orders