Wood v Boskovitz (No 2)
[2015] NSWSC 966
•16 July 2015
Supreme Court
New South Wales
Medium Neutral Citation: Wood v Boskovitz (No 2) [2015] NSWSC 966 Hearing dates: 16 July 2015 Decision date: 16 July 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The hearing date of today is vacated;
(2) The matter is stood over to receive a hearing date on 13 August 2015 at 9.00 am before the Registrar;
(3) Costs of today reserved.Catchwords: PRACTICE AND PROCEDURE – application for leave to appeal against interlocutory orders made by Magistrate in Local Court pursuant to Local Court Act 2007 (NSW) – plaintiff unfit to attend court due to ongoing medical condition on second occasion – whether hearing date should be vacated – what orders should be made to progress hearing Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), Pt 7 Cases Cited: Wood v Boskovitz [2015] NSWSC 29 Category: Procedural and other rulings Parties: Barry Wood (Plaintiff)
Gabor Boskovitz (Defendant)Representation: Counsel:
Solicitors:
No appearance (Plaintiff)
A M Gruzman (Defendant)
No appearance (Plaintiff)
Boskovitz & Associates (Defendant)
File Number(s): 2014/237755
EX TEMPORE Judgment
Background
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This application for leave to appeal against interlocutory orders made by a Magistrate in civil proceedings in the Local Court was listed for hearing today. No appearance was entered by the plaintiff. In the past, on some occasions at least, he has been unrepresented by a lawyer; on one occasion his brother was granted leave to appear for him. A motion was filed recently by the plaintiff seeking to have the hearing date vacated, on the asserted basis that the defendant had failed to comply with an order with regard to the filing of submissions.
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The defendant, a solicitor, was represented by counsel before me. Counsel expressed himself content for me to take into account generally documents that had been sent to my chambers suggesting that the plaintiff, an elderly man, is unwell, and was indeed hospitalised quite recently, without going through the formality of that material being tendered.
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The question becomes what should be done with the matter in the interests of justice to both parties. Counsel for the defendant did not submit that it should be forced on today, or struck out. He did submit that, in the light of the history of the matter, orders must be made to protect his client from further fruitless expense of time and money, a submission that I accept.
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The matter has a long and unfortunate history. In a nutshell, it is said that the plaintiff and his brother as trustees retained the defendant in proceedings in the Federal Court that were resolved as long ago as 1997. The proceedings were successful, and costs were ordered to be paid by the opponent. The claim in the Local Court against the solicitor was, in short, that the defendant had not sufficiently pursued those costs, to the financial disadvantage of the plaintiff.
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Eventually, the proceedings were discontinued in that Court. That event was preceded by two judgments of her Honour. It is from all of that that the plaintiff seeks leave to appeal.
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The defendant has consistently submitted that the claim, both at first instance and in this Court, is legally and factually misconceived.
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The matter was listed for hearing in this Court on 6 February 2015. On that occasion, the plaintiff was unwell, and Campbell J adjourned the matter for further hearing. Reference should be made to his Honour’s judgment on the file: Wood v Boskovitz [2015] NSWSC 29. Thereafter, the matter came before a Registrar on 5 May 2015, on which occasion the plaintiff was represented by counsel. It was on that occasion that the matter was set down for hearing today.
Submissions of defendant
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Counsel for the defendant submitted that it could be appropriate that the matter stand over for hearing tomorrow. I see the force in that submission, but there is not much evidence to suggest that the plaintiff would be available then. And, to my mind, standing the matter over for 24 hours ex parte, and then possibly striking it out tomorrow, could have the effect of exacerbating this dispute, rather than quelling it.
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Counsel also informed me that he has spoken to another member of the Bar, who it seems has had some involvement in the matter in the past. He has very kindly offered to assist the administration of justice by advising and, if necessary, appearing for the plaintiff pro bono. I respectfully commend that course to the plaintiff.
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Counsel for the defendant also submitted that I could make a formal order referring the plaintiff for pro bono assistance, pursuant to Pt 7 of the Uniform Civil Procedure Rules 2005 (NSW). But it can be seen that there are a number of factual preconditions to the making such an order. And, in any event, I would be very loath to make it ex parte, and without the consent of the unrepresented person who is the subject of it. Finally, it is to be hoped that the more informal offer of legal assistance will achieve the same result.
Determination
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I accept the submission of counsel for the defendant that the matter should stand over for a short period of no more than four weeks to the Registrar’s list, in order to set a third hearing date.
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At first I thought I should make some mandatory provision to avoid this situation - namely, the matter being listed for hearing in this Court, but being adjourned because of a medical condition of the plaintiff - arising yet again for a third time.
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But, on reflection, I do not consider that I should bind a subsequent Judge or Registrar, in light of all the circumstances that could change. I think it is enough for me to say that, before the matter is listed for hearing again, consideration should be given by the Registrar to insisting on receiving either an assurance that the plaintiff would be content for the proceedings to be heard in his absence, or, perhaps, some firm medical opinion that he will be well on the date of any further hearing. Of course, a copy of this judgment of mine will be on the file on the next occasion.
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Finally, counsel for the defendant submitted that no costs order should be made ex parte, a submission that I accept.
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I make the following orders:
The hearing date of today is vacated;
The matter is stood over to receive a hearing date on 13 August 2015 at 9.00 am before the Registrar;
Costs of today reserved.
[FURTHER SUBMISSIONS]
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Counsel for the defendant has also submitted that it would be appropriate, in the light of the absence of the plaintiff, that a transcript be taken out and provided by my Associate to both parties.
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Rather than making formal orders, I request that my Associate provide the transcript and judgment of today to both parties.
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Decision last updated: 14 August 2015
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