Yann - v - Yann

[2015] VCC 770

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION
GENERAL LIST

Revised
Not Restricted

Case No. CI-14-02169

ALEXANDROS YANN	Plaintiff
V
NICK YANN	Defendant

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JUDGE:	HER HONOUR JUDGE KENNEDY
WHERE HELD:	Melbourne
DATE OF HEARING:	3 June 2015
DATE OF JUDGMENT:	3 June 2015
CASE MAY BE CITED AS:	Yann – v – Yann
MEDIUM NEUTRAL CITATION:	[2015] VCC 770

REASONS FOR RULING
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Catchwords: PRACTICE AND PROCEDURE – absence of party at trial – rule 49.02 of the County Court Civil Procedure Rules 2008 – trial to proceed in absence of defendant

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R. Sadler	Paul Harding
For the Defendants	No appearance	----
For O’Keeffe Lawyers	Mr E. Batrouney	O’Keeffe Lawyers

HER HONOUR:

1. This matter was called on for trial before me today in circumstances wherein the defendant has not appeared.   

2. The background to this matter is that the solicitor for the defendant has also applied for leave to cease to act.  Having now heard that application, I propose to grant it with the result that the court must determine whether to proceed to hear the trial in the absence of the defendant.

3. The issue is to be determined according to rule 49.02 of the County Court Civil Procedure Rules 2008.  This provides that if, when the trial of a proceeding is called on, any party is absent, the Court may:

   (a) order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the court directs;

   (b) proceed with the trial generally or so far as concerns any claim for relief in the proceeding; or

   (c) adjourn the trial.

4. I have given consideration to whether or not I should proceed in the absence of the defendant.  Critical to that consideration is whether or not the defendant is aware that the trial is listed to commence today.

5. Mr O'Keefe, of O’Keefe lawyers, who sought leave to cease to act, gave sworn evidence before me as to the issue of whether the defendant was notified of the trial date. 

6. His evidence was that by correspondence of 13 March 2015 he notified the defendant of the trial date listed for today.  The matter was further discussed in a meeting between the two men on 25 March, wherein the defendant confirmed that he had received notification of the trial date.  By correspondence of 15 May, Mr O’Keefe also sent a further communication to the defendant referring to the fact that the trial was commencing on 3 June. 

7. Finally, Mr O’Keefe gave evidence of a conversation that took place on 1 June between the two men.  His evidence was that he asked the defendant if he would attend today and the defendant's response was words to the effect of, "No."  His further evidence was that he also sent a text message to the defendant yesterday, that is, 2 June, wherein he notified the defendant that he was required to be in Court today, and providing details of the relevant address. 

8. I am satisfied, on the basis of this material, that the defendant has received ample notice of the trial date. 

9. Given, in particular, the defendant’s response on 1 June as well as his failure to appear today, he has evinced no interest in defending the proceeding or otherwise taking part in a trial.

10. In determining what course I should take, I have also taken into account the extensive history of this matter, which involves a prolonged intransigent family dispute that warrants some finality.

11. I have also taken into account the fact that the plaintiff has travelled here from Greece and is due to return to Greece on 10 June 2015.

12. Taking all these matters into account, I am satisfied that it is appropriate to proceed with the trial (unopposed) in the absence of the defendant.