Federal Court Denies Last-Minute Trial Adjournment

OUTCOME: Dismissed

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 201 of 1987

BETWEEN: [NAME] and [NAME]

Applicants

AND: [NAME] and [NAME]

RespondentS

[APPELLANT] OF ORDER: 11 NOVEMBER 1997

[APPELLANT]

THE COURT ORDERS THAT:

1. The application is dismissed.

2. Costs of this application are reserved. On the notice of motion filed by leave by the applicants in court on 11 November 1997 THE COURT ORDERS THAT:

1. Until further order, the respondents and each of them whether by themselves, their servants, agents or otherwise howsoever be restrained from removing from the jurisdiction, disposing of, mortgaging, assigning, charging, in any way diminishing the value of or otherwise dealing with any of the following :- (a) real property being Lot 3 on RP 724177 County of Herbert Parish of Conway, Title Reference 20804166; (b) a Mercedes Benz car registration number 706-CWW; (c) a Toyota Prado car registration number 993-DTR; (d) the vessel "Aquascope"; (e) the vessel "Dream Merchant"; (f) the vessel "[NAME]"; (g) the vessel "Apollo"; (h) any interest whether legal or equitable in the business "Leisure Sailing Whitsunday" or a business formerly known as "Leisure Sailing Whitsunday"; (i) any interest whether legal or equitable in the business "Apollo Charters" or a business formerly known as "Apollo Charters"; (j) any interest whether legal or equitable in the company "[COMPANY]"; (k) the present net proceeds in the direct or indirect possession, power or control of either or both of them resulting from any dealing in respect of any of the abovementioned assets;

2. Costs of the notice of motion be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QG 201 of 1987

BETWEEN: [NAME] and [NAME]

ApplicantS

AND: [NAME] and [NAME]

RespondentS

JUDGE: COOPER J

DATE: 11 NOVEMBER 1997

PLACE: [APPELLANT] FOR

JUDGMENT (ex tempore) This is an application by the respondents to vacate the trial dates which were set in September 1997, for a trial commencing 24 November 1997. The original proceedings were brought by application and accompanying statement of claim, both filed in this court on 4 November 1987. A defence was filed in January 1988. The matter then seems to have languished until some action was taken in 1991. By 1995 the respondents had changed solicitors and new solicitors were engaged in October 1995. In June 1996, a notice of termination of retainer was filed indicating that the respondents intended to act in person in relation to the matter thereafter. On 17 May 1996, Spender J made orders which would have led to a trial of this action if mediation failed. A mediation was held before a Registrar of this Court on 10 June 1997. At that time, the respondents were acting on their own behalf, having on 15 May 1997 and 5 June 1997 filed notices to that effect. The mediation process was unsuccessful and the matter was brought to my attention in early September 1997. On 2 September 1997 a member of my staff contacted the respondents by telephone and was advised that the matter was ready for trial and that any time during the week commencing 24 November 1997 would be a suitable time for trial. Mr [NAME] advised that all affidavit material had been filed. This information was then confirmed to the respondents by facsimile of the same date. Mr [NAME] agrees that the above conversation did in fact occur. The first suggestion that the matter would not proceed to trial on the dates set was an approach made to the Court by Mr [NAME] on or about 28 October 1997 when Mr [NAME] advised a court officer that the respondents wished to engage legal representation which they could not afford at that time, and because they were then waiting for some documentation from the applicants. They were advised that a formal application would have to be made to the Court, supported by affidavit material. The affidavit in support puts the request for an adjournment on the basis that there has been a change of heart, and the respondents now wish to be legally represented on the trial of the action, but that they are not in a financial position to engage or pay for legal representation. Mr [COUNSEL] also advises that a former solicitor is holding a lien over certain documents required at trial. In my view, that circumstance would not prevent the documents, if they are required, being produced upon trial by the issue of an appropriate subpoena to the solicitors. The respondents say that in six months time they hope to be in a position to engage legal representation and litigate the matter, having, by that time, earned sufficient funds to pay an estimated $30,000 for the cost of trial. The applicants have filed material which shows that there remains in the name of the respondents substantial property including vessels and real estate which prima facie ought to be available for the purpose of either obtaining credit or funds to conduct the litigation. Material has been filed by the respondents indicating that the property has been sold and that, it is asserted, there has been a default on the part of a solicitor which has led to the transfers not being registered. Be that as it may, there is on the material $300,000 not accounted for, other than Mr [NAME] asserting that the money has been paid to a third party to pay out a loan. If one accepts at face value what the respondents say, that is that they have no funds, then there is no real likelihood on the material that the position will be any different in six months time, nor is there any real prospect that the issues will change. The issues essentially are factual issues; there are no major questions of law involved. The issues in dispute have been known to the respondents for a considerable period of time, and they have previously been prepared to conduct their own litigation. I am not persuaded that they are unable to adequately represent their own interests, nor is there is any point in adjourning the matter over for a period of six months at this stage, simply weeks before trial. Whether or not the assets are truly available to the respondents is a matter which I do not take into account in coming to this view. I am simply not satisfied that the respondents ought to be allowed now to resile from the position they took at the time when they were approached as to the setting down of the matter.

Accordingly, the application is dismissed, and the trial will proceed on 24 November 1997 Costs of this application are reserved.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate: Dated: 11 November 1997

Counsel for the Applicant: [redacted] Solicitor for the Applicant: [redacted]

Respondent in person (by telephone): Mr [APPELLANT] of Hearing: 11 November 1997 Date of Judgment: 11 November 1997