Tange v Ludescher

[2012] VCC 656

Revised  from reasons given ex tempore
IN THE COUNTY COURT OF VICTORIA	Not Restricted

AT MELBOURNE

CIVIL DIVISION

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-11-04048

CECILY CATHERINE TANGE	Plaintiff
v
CHRISTIAN WILLIAM LUDESCHER and GRAEME LESLIE WHITE (as administrators of the estate of ROSABEL MAY TANGE)	Defendants

---

JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2012
DATE OF RULING:	24 May 2012
CASE MAY BE CITED AS:	Tange v Ludescher
MEDIUM NEUTRAL CITATION:	[2012] VCC 656

REASONS FOR RULING

---

Practice and Procedure- non-appearance by unrepresented party- contact with Registry treated as application for adjournment- application refused

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No Appearance	No appearance
For the Defendants	Mr M. Heaton QC Mr I. Upjohn	Gadens Lawyers

HER HONOUR:

1       The trial of this proceeding has been listed today; including both a claim and a counterclaim arising out of the administration of the estate of Rosabel May Tange who died on 23 October, 2007.  The plaintiff is the daughter of the deceased.

2       I have been provided with a note from my Associate of a conversation between the plaintiff and a member of Civil Registry which reads:  

"Hi Lisa,  Ms Tange called up civil registry late on Tuesday, 22 May 2012 seeking an adjournment due to illness.  I advised her the adjournment process and gave her the directions' group email.  She was to contact the other parties' solicitors regarding this.  From my conversations with her, she indicated that she was going into hospital and her intentions were not to attend court on 24 May 2012." 

3       In the result, Mr Heaton QC, who appeared with Mr Upjohn for the defendants, has advised this court that no contact was made by Ms Tange, with the defendants’ solicitors.

4       There was also nothing received by the Directions Group or the Court to support the existence of any medical condition and/or that the plaintiff was in fact being admitted to hospital.  Rather, notwithstanding that the case was called in and outside court, the plaintiff has simply not attended today.

5       The Plaintiff is clearly aware that the trial has been listed for hearing today. However, I have, in all the circumstances, treated her conversation with Registry staff as an application for an adjournment.

6       In all the circumstances, I need to consider whether or not to proceed to hear this trial or to grant an adjournment on the basis of the material adduced before me. 

background

7       The defendants filed an affidavit of service of subpoena on the plaintiff by  Mr Southey, solicitor, of 22 May 2012.  After handing the subpoena to the plaintiff on 17 May, he states that she looked at the subpoena whereupon he said to her “It concerns the court case which starts on Thursday next week.”  She replied “You can tell them I’ll be dead by then. I’ve got cancer.”

8       If true, this is a very sad state of affairs.  However, although the evidence before the court suggests that the plaintiff has a history of bronchial/sinusitis, no medical material supports a diagnosis of cancer.

9       Mr Heaton also produced an affidavit of Christian William Ludescher, dated 25 May 2012 which documents  the long history of this proceeding.  Thus, the plaintiff made various claims against the Estate “in a piecemeal fashion” during 2008 and 2009 which could not be resolved between herself and her four other siblings and which thwarted the making of a final distribution under the Estate.

10       In 2009 the administrators sought orders to compel the plaintiff to commence proceedings within a specified time.  On 7 April 2010 Justice Bell ordered that the plaintiff make any claims against the administrators by 25 May 2010 failing which the administrators were at liberty to distribute the estate.  The plaintiff then issued a proceeding in the Supreme Court on 25 May 2010 (which was transferred to this Court on 1 August 2011).

11      The parties attended a mediation on 8 February 2011.  It was then agreed between the parties to adjourn the matter for further mediation on 1 March 2011; however this did not occur with the plaintiffs’ (then) solicitors advising, on a number of occasions during 2011, that the plaintiff was unwell, and thereby unable to attend to her affairs.    The medical reports they relied upon suggested that she was suffering from bronchitis and sinusitis type conditions.  However, there was evidence  that the plaintiff was able to attend a mediation in another proceeding on 25 August 2011 despite any medical condition.

12      On 22 November 2011 Judge Lewitan made orders by consent that a further mediation be completed by 12 March 2012, the proceeding be fixed for trial on 24 May 2012, and that any application to vacate the trial date is to be made at least 28 days prior to the trial date.

13      On 13 February 2012 the plaintiff’s solicitors, Lewenberg and Lewenberg, were given leave to cease to Act, and filed Notice giving the last known address of the plaintiff at unit 1, 3 Glover Court Toorak.  In seeking leave, Ms Atwood of Lewenberg’s swore an affidavit confirming that the plaintiff had been aware of the trial date of 24 May since that date was confirmed in the orders of Judge Lewitan in November 2011 (para 6 of Ms Atwood’s affidavit of 6 February).

14       The defendant’s solicitors thereafter wrote to the plaintiff (at Unit 1, 3 Glover Court) on 5 separate occasions, confirming that they wished the trial to proceed today.  They received no response from the plaintiff.

Resolution

15      Although the plaintiff’s health is of concern, there has been no medical material produced in support of this application.  The medical reports Mr Ludescher exhibits suggest that the plaintiff was suffering from bronchitis or sinusitis type conditions.  This, however, appears to have been the situation for some time.  In such circumstances,  it is not clear that an adjournment would serve any useful purpose and may even prejudice the plaintiff herself.

16      There are also a number of factors that weigh against the adjournment of this proceeding.

17      Firstly, I take into account the delay which is thwarting the administration of a family estate, in circumstances where the administrators were appointed over 4 years ago.

18      I also take into account the matters that I am directed to consider under the Civil Procedure Act 2010, and in particular the over-arching purpose of that Act, which is to facilitate the just, efficient timely and cost-effective resolution of the real issues in dispute.[1]  I am to give effect to this over-arching purpose pursuant to s.8 of that Act.   Finality has a particularly important role to play in a family dispute such as the present.

[1] See s.7 of the Act.

19      I also take into account the principles in Aon Risk Services Australia Ltd v Australian National University[2], in particular, that costs are not necessarily adequate compensation for the further delay of a proceeding. 

[2] (2009) 239 CLR 175, especially at 100-101

20      The delay is also clearly prejudicing family members.  The evidence contained in the affidavit of Mr Ludescher is that the inability of the administrators to make a final distribution of the estate, which results from this proceeding, is having a significant financial detriment on members of this family (para 28).

21      There is also evidence that the proceeding being delayed is having a severe effect on Ms Margaret Tange.  In this regard,  I have also taken into account the report of Dr Mestrovic, of 26 March 2012.

22      Taking into account all of these matters, in my view it is not appropriate to grant an adjournment of this trial which will proceed in the absence of the Plaintiff.