Skrijel v Mengler
[2003] VSC 18
•7 February 2003
| 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 | Australian Government Solicitors |
For the Thirdnamed Defendant | Mr J. Santamaria QC | 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 reason that he would be unlikely to retain other counsel even if an adjournment were granted.
Additionally, it is said that because of the age of the litigation, and that the matters the subject of the litigation occurred some 17 years ago, any further delay should be regarded as intolerable.
In the course of his cross-examination the solicitor produced a letter from the plaintiff to him dated 6 February 2003 in which the plaintiff wrote as follows:
“I refer to our meeting last December at which you assured me that [my barrister]… would be devoting the whole of January to my proceeding, listed for hearing next Monday, 9 February 2003.
On the basis of that assurance I borrowed $30,000, using my home as collateral, and paid that sum to [the barrister] on 19 December 2002. He undertook in return to prepare my case for trial and confer frequently with Mr Berthelsen and myself during the preparation.
Notwithstanding numerous reminders from me, I had only one brief meeting with [the barrister] in January. At that meeting on 28 January, [the barrister] waved in front of me a document which he said was evidence of his performance of our contract. He did not confer with me in any sense of the word.
At our second meeting yesterday at approximately 2.50 pm, attended by [the barrister], yourself, Mr Berthelsen and myself, [the barrister] revealed an appalling ignorance of the basic facts of my case. For example, we wasted at least 20 minutes just trying to convince [the barrister] that:
(a)AFTER the jury had been discharged, I was locked in a cell at the rear of the court, and in brief conversation with my counsel, consented to the hearing of the summary offence, possession of a shortened firearm, in the County Court;
(b)I instructed my counsel to enter a ‘not guilty’ in respect of the summary offence;
(c)my counsel returned to the court where I heard him, through the cell door, enter a ‘guilty plea’. I personally was not asked by the court to plead;
(d)after my defence counsel entered the ‘guilty’ plea, no evidence in relation to the summary offence was put before the court.
Further, when [the barrister] was asked by Mr Berthelsen what facts he intended to put before the judge to support the malice element in the cause of action, malicious prosecution, against the first and third defendants, [the barrister] appeared to be clueless.
That was a clear indication to me that [the barrister] is totally unprepared to present my case on Monday, and that if I allowed him to continue to represent me, the judge hearing the preliminary arguments would probably find that I had no case against the first defendant.
The third problem I had with [the barrister] is that he seemed to find it inconceivable that Mr Berthelsen and I should direct his attention to relevant facts. For example, he was oblivious to the fact that the document ‘Comprehensive Summary of Evidence’ delivered to you two weeks ago, had already been delivered to him by you in December 2002, incorporated in document 18 of the Court Book (‘Submission No 19’).
In all the circumstances, I have no confidence that [the barrister] would give me competent and reliable representation at the trial listed for hearing next Monday. Would you please inform the court that as of today, [the barrister] will no longer be representing me, and that I seek an adjournment of the trial for two months in order to seek legal advice on my options and undertake the task that is clearly beyond [the barrister].
The reason I am seeking an adjournment of 2 months is that without the $30,000 given to [the barrister] I expect to have considerable difficulty in finding a barrister who will do a competent and honest job for the much smaller retainer that I can now offer. If another barrister is briefed, he will require time to prepare and confer. Further, I was given the list of documents on which the third defendant intends to rely at trial, only this last Tuesday.
A considerable number of the documents have never been discovered. Others are almost illegible. Many which we believe exist, have not been included in the list, or discovered. Many are not sufficiently identified. Many have serious implications for my proceeding and need to be studied carefully.
Please ask [the barrister] to return all my documents immediately.”
In answer to questioning the solicitor deposed that after he received that letter he conferred with the plaintiff and that the plaintiff then expressed the view that [the barrister] was somehow improperly involved with parties on the other side of the litigation, and thus was working against the interests of the plaintiff.
I take as the starting point in this application the principle that an adjournment should ordinarily be allowed if necessary in the interests of justice[1], but that there are exceptional cases where because of a party's own conduct, the fact that refusal of an adjournment may result in less than adequate time for him to prepare his case is not sufficient reason to allow the adjournment sought[2].
[1] Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 at 154
[2] Frawley v R (1993) 69 A.C.R.208; R v Osborne [2002] VSCA 156 at[14]
Having regard to the submissions made by Mr Tovey QC on behalf of the first defendant, which were supported by counsel on behalf of the other defendants; to the contents of the letter 6 February 2003 set above; and to the oral evidence given by the plaintiff’s solicitor in his cross-examination, I doubt that the plaintiff's reasons for so lately wishing to dismiss his counsel are a satisfactory basis upon which to grant the adjournment which is sought.
On the other hand, apart from a history of discontent with legal advisers, and the protracted history of this proceeding and those which preceded it, there is nothing that directly reflects upon the honesty of the plaintiff’s belief that counsel who was retained has not given sufficient time to the preparation of the case adequately to represent what the plaintiff conceives to be his interests. I am not in a position to say anything about the reasonableness of that belief.
Consequently, as at present advised, I am unable to conclude that the plaintiff does not honestly believe that it is necessary that there be an adjournment so that other counsel can be retained or, if other counsel are not to be retained, that such other preparations as are possible are made to represent the plaintiff at trial. I am not persuaded by the evidence which has been put before me that the application lacks bona fides or that the plaintiff’s own conduct has been shown otherwise to disentitle to him to the adjournment which is sought.
I am persuaded, however, that it would be unjust to the defendants and therefore unacceptable to allow the matter to be adjourned for any considerable period. For among other reasons, unless the matter comes on for trial within the next two weeks or so, the volume of business in the court is such that in all probability the matter will not again be listed for trial for many, many months.
In the course of cross-examination the solicitor for the plaintiff deposed that the matter has been so much prepared to this point that if the application for adjournment is granted he would be in a position within the space of approximately half a day to provide to the plaintiff, or to the plaintiff's new representative, copies of a complete opening, proofs and submissions. That being so, I think that if other counsel are now retained, they will be able adequately to prepare the case for trial within the space of the next fortnight; even though that may prove an extremely demanding task.
Because I am not satisfied that the plaintiff's application lacks bona fides, and because I can see that the interests of the defendants will not be unduly prejudiced if the matter is adjourned for a period of no more than two weeks, and because it appears to me that an adjournment of two weeks would be of real utility to the plaintiff, I am disposed to allow an adjournment for a fortnight.
Subject to anything further counsel may say I propose to order that the trial be adjourned to 24 February at 10.30, and that the plaintiff pay the costs thrown away by each of the defendants by reason of the adjournment.
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