The Family Company Pty Ltd v Crowley

[2007] QSC 85

SUPREME COURT OF QUEENSLAND

CITATION:

The Family Company Pty Ltd and Ors v Crowley and Ors  [2007] QSC 085

PARTIES:

THE FAMILY COMPANY PTY LTD
ACN 010 534 586
(First Plaintiff)
CORALODGE PTY LTD
ACN 056 548 406
(Second Plaintiff)
CONSISTA PTY LTD
ACN 068 751 093
(Third Plaintiff)
KENNETH WALTER BERNETT and LYNETT PATRICIA BERNETT
(Fourth Plaintiffs)
PETER UPTON and CAROLYN UPTON
(Fifth Plaintiffs)
JENNIFER SMITH
(Six Plaintiff)
v
PATRICK LAURENCE CROWLEY
(First Defendant)
JOHN WELLESLEY COWLEY
(Second Defendant)
JEFFREY DAVID DODDS
(Third Defendant)
VANYIELD PTY LTD
ACN 085 180 045
(Fourth Defendant)

FILE NO:

SC No 3710 of 2003

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

12 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

12 April 2007

JUDGE:

Fryberg J

ORDER:

Application dismissed

CATCHWORDS:

Procedure – Courts and judges generally – Courts – Adjournment – Discretion of court – Counsel available for limited period – Brief delivered on that basis – Underestimate by solicitor – Failure to obtain advice on evidence – Failure to seek replacement counsel promptly

Foreman v Lee & Transport Accident Commission
[2005] QSC 086

COUNSEL:

M Amerena for the Plantiffs
M Gynther for the Defendants

SOLICITORS:

Woods Prince Lawyers For the Plaintiffs
Tucker and Cowen Solicitors for the Defendants

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2007] QSC 085

FRYBERG J

No S3710 of 2003

THE FAMILY COMPANY PTY LTD
(ACN 010 534 586)

First Plaintiff

and

CORALODGE PTY LTD
(ACN 056 548 406)

and

CONSISTA PTY LTD
(ACN 068 751 093)

and

KENNETH WALTER BERNETT and
LYNETT PATRICIA BERNETT

and

PETER UPTON and CAROLYN UPTON

and

JENNIFER SMITH

and

PATRICK LAURENCE CROWLEY

and

JOHN WELLESLEY COWLEY

and

JEFFREY DAVID DODDS

and

VANYIELD PTY LTD
(ACN 085 180 945)

Second Plaintiff

Third Plaintiff

Fourth Plaintiffs

Fifth Plaintiffs

Sixth Plaintiff

First Defendant

Second Defendant

Third Defendant

Fourth Defendant

BRISBANE

..DATE 12/04/2007
RULING

HIS HONOUR:  I have before me an application to adjourn the

further trial of these proceedings from the close of business

tomorrow until I am next in civil sittings which will be in

June.

Today is the seventh day of the trial.  The ground of the

application is that after tomorrow, counsel for the defendant

will not be available to continue acting for the defendants.

That, of course, is a situation which is unconventional.

The ordinary rule is that if a case takes longer than

expected, counsel will remain in the case and will return any

other briefs which he has taken in the expectation that the

case will finish.  That rule has exceptions.

One, not relevant in the present circumstances, is where the

subsequent brief is for a defendant in a criminal trial.

Another, which applies in the present case, is when counsel

expressly accepts a brief on the basis that he will not be

available on or after a certain date.

In the present case Mr Gynther was retained for the defendants

on or about 5th February this year.  Mr Gynther when offered the brief informed the solicitors for the defendants that he was not available from next Monday, 16th April, as he had another commitment.  The brief was delivered on that basis.

The matter was set down to commence, and did commence, on 2nd

April.  The material before me does not indicate whether an

advice on evidence was obtained by either side or whether

counsels' opinion on trial length was obtained.  However, from

the material before me and from my observations of the state

of preparation of both sides, I have every confidence in the

conclusion that neither solicitor obtained an advice on

evidence prior to the action being set down for trial, and

neither obtained counsel's advice on the duration of the

hearing.  After some negotiation between solicitors it was

agreed that the trial would take five days and that was the

estimate which was given to the judge who set the matter down,

and to counsel.

It was set down to commence in the week before Easter; in

other words, a four day week.  It was therefore anticipated

that the fifth day would be Tuesday, 10th of April.

By the third day of the trial, Thursday, 4th April, it was

apparent that the estimate of five days was hopelessly wrong.

I questioned counsel about their estimates at that point, and

it appeared from what I was then told that the total duration

of the trial would be about 10 days.  That made no allowance

for contingencies.  If that estimate were correct it would

mean that the trial would finish on Tuesday, 17th April, two

days into the period for which Mr Gynther was not available.

This morning I am told that it may be that the trial will now

take up to 12 days. 

The evidence before me discloses that the matter has had a long history of delay.  The claim and statement of claim were filed on 24th April 2003.  At that time the dispute was still in formation in the sense that the land to be developed, which is the subject of the proceedings in one respect, was still jointly owned and the relief sought initially included the appointment of a receiver.

After a few months the position was simplified by the

defendants, or, more accurately, the corporate defendant

repurchasing the half interest in the land owned by Keymark

Investments Pty Ltd, the company, the corporate vehicle

created for the plaintiffs to invest in the project.

The first version of the defence was filed and served in June

2003 before the repurchase of that interest.  It seems that

after those pleadings the matter was referred to mediation.

That took place in March 2004 and was unsuccessful.  Nothing

happened until 30th June 2004 when an amended statement of

claim was filed, followed by an amended defence a month or so

later.

The amended statement of claim seems to have been prompted by

the issue of a case flow management notice by the Registrar.

Nothing seems to have happened after the delivery of the

amended defence, although it may be that disclosure took

place (it doesn't appear from the material when that occurred)

and in January 2005, a second case flow management notice was

issued.

Presumably on the application of the plaintiff, a Registrar

gave leave for the proceedings to continue in April 2005, and

in September 2005 the plaintiffs served a request for trial

date.  It does not appear from the material whether the

defendants signed that request or when it was filed.  I infer that it must have been filed at some time in 2005.  In January 2006 the plaintiffs, probably in breach of the Rules, served a further amended statement of claim and made an application for a trial date which had been given to be vacated.  They were given leave to deliver a further statement of claim, and the trial dates were vacated in February 2006.  In the same month, the further amended statement of claim was delivered.  In March the defendants requested particulars, which were supplied in July. 

It does not appear whether a further amended defence was

delivered during 2006, but on 1 November a further request

for trial date was sent by the plaintiffs to the defendants.

The defendants did not consider the matter ready for trial,

and the result was an application to the Court, heard on 4

December.  The judge who heard that application was told that

the parties estimated five days.  That is the figure ultimately agreed by the solicitors.  The matter was set down by the judge to commence on 2 April.  Whether any attempt was made to retain counsel until 5 February is not apparent, but in the absence of evidence I assume that no attempt was made.  On 5 February Mr Gynther was approached in the circumstances which I have already described.

It is apparent that the estimate of five days was hopelessly

inaccurate.  I say that not simply with the benefit of

hindsight, and in saying it I am endeavouring to make every

allowance for the difficulties which lawyers face in

estimating the duration of a trial.  This trial was always

going to involve expert evidence by at least three valuers.

It was always going to involve evidence by or on behalf of the

six plaintiffs.  It was probable that it would involve

evidence by two of the three noncorporate defendants,

and it must have been clear that it would involve evidence by

or on behalf of the corporate defendant and one of the other

defendants.  Even if one does not take into account the

possibility of accountancy evidence, additional valuation

evidence, and any other evidence that might arise, there is,

in my judgment, no realistic likelihood that in a case

involving misleading and deceptive conduct with an attempt to

sheet home liability to directors of the defendant company, a

multiplicity of independent plaintiffs, and a complex factual

situation, the estimate could have been achieved.

I attribute the inaccuracy to the failure to obtain an advice

on evidence before the matter was set down.  I speak from

experience.  I do not believe it is possible to estimate the

duration of one's own case, let alone of a trial, unless and

until one has analysed the case in the way in which an advice

on evidence requires.  There is no reason particularly why an

experienced solicitor could not write an advice on evidence

himself, but the economics of the exercise will often dictate

that it is more sensibly obtained from counsel, particularly

in a situation where it is likely that a matter will go to

trial and not settle at the last minute.  It makes more sense

to obtain that advice from trial counsel, since it is trial

counsel who will have the responsibility of running the trial.

Whichever way it is done, it is imperative that it be done

before the matter is set down for trial.  I have, in reasons

for judgment in Foreman v Lee [2005] QSC 086, referred to this fact at some length. Solicitors who omit this step expose their clients to possible disadvantage and themselves to the risk of adverse orders for costs.

There is nothing improper about a solicitor briefing counsel

on the basis that counsel will not be available on or after a

certain time.  Nor is there anything improper in counsel

accepting a brief on that basis.  However, it must be clear to

all involved that a solicitor who briefs on that basis takes a

chance.  Common experience is that trials do not always take

the estimated time.  Sometimes they take less; sometimes they

take more.  Estimating the duration of a trial is not a

science.  There is room for reasonable differences of opinion. 

Perhaps the art is, in that respect, similar to the art of

valuation.

When a solicitor delivers a brief, he knows that fact.  When

he briefs on the basis that counsel will not be available

after a certain date, he takes on the risk that if the trial

runs past that date, ordinarily, at least, it will be his

problem.  Frequently when a solicitor wishes to do that he

will brief two counsel on the basis that one or other of them

will be available to continue for the whole period.  That was

not done in this case. 

The position has now been reached that the solicitors for the

defendants have formed the view that their clients will suffer

prejudice in the conduct of the proceedings if they are unable

to continue with Mr Gynther as their counsel.  The prejudice

consists of additional expense in getting second counsel

familiar with the matter and reading all of the relevant

documents.  It will also be a disadvantage in that new counsel

will not have been present during the hearing and therefore

will not have observed the demeanour of most of the

plaintiffs' witnesses and will not have absorbed the flavour

of the hearing.  A further reason for their concern is the

limited time which any new counsel will have to prepare for

the remainder of the hearing: the balance of today and then

tomorrow (Friday) and the two days of the weekend, and that is

magnified in the solicitor's mind by reason of the fact that

one of the important issues is reliance, an issue on which the

credibility of the various plaintiffs is an important factor.

That concern is understandable.  It has apparently been

aggravated by attempts made since yesterday afternoon to

obtain further counsel.  Mr Cowen, the solicitor, has

telephoned 14 barristers who are not available to prepare or

conduct the matter.  He is aware of other counsel who are not

available and has so far not been able to find any counsel who

is available.  However I have no doubt that counsel could be

found.  It may be that counsel will not be someone with whom

the solicitors are used to working, and since teamwork is always an important aspect of the conduct of a case, that is a disadvantage.  It may be that by reason of the amount of work, the available time, and other matters, that it would be necessary to brief two counsel and divide the case up.  Those matters too would be disadvantageous to the defendants.  The defendants therefore seek the adjournment and offer to pay the costs thrown away by it.

I have some sympathy for the defendants' position, but it

seems to me that their embarrassment and disadvantage is not a

sufficient reason to depart from the ordinary practice of the

Court in continuing a case to its conclusion wherever

possible.  There are major advantages in not hearing cases in

staggered brackets, particularly when months separate the

hearings.  They are sufficiently obvious that I need not

elaborate upon them.  The inconvenience of such a procedure

would be visited upon the other side and, to a degree, upon

the Court.  Sometimes the Court will make an exception and

will adjourn the case.  Where counsel is briefed for a

defendant in a criminal trial is an example.  But it is

exceptional.

In the present case, where, as I infer, no advice on evidence

was obtained from counsel, where counsel was not consulted

before the matter was set down - at least not consulted in

relation to the trial - where counsel for the trial was not

briefed until some two months after the action was set down -

making due allowance, of course, for the fact that Christmas

was included in those two months - where it was apparent over

a week ago that the trial would run into the period during

which Mr Gynther was unavailable and no steps were taken to

brief counsel then, and where, most importantly of all, the

brief was delivered on the basis that Mr Gynther would be

unavailable after tomorrow so that the chance was consciously taken without any insurance in the form of second counsel or other contingency plan; in those circumstances it seems to me that there is not sufficient reason to depart from the ordinary rule that applies in this Court.  The rule is designed for the proper conduct of litigation and the convenience of parties.  The disadvantage which the defendants suffer is, in my judgment, to a large extent the result of their own management of the case.

In the circumstances, the application is dismissed.