The Family Company Pty Ltd v Crowley
[2007] QSC 85
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- Unreported Judgment
- The Family Company Pty Ltd v Crowley[2007] QSC 85
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The Family Company Pty Ltd v Crowley[2007] QSC 85
Reported at [2007] 2 Qd R 133
The Family Company Pty Ltd v Crowley[2007] QSC 85
Reported at [2007] 2 Qd R 133
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 |
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
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) | Second Plaintiff |
and |
|
CONSISTA PTY LTD (ACN 068 751 093) | Third Plaintiff |
and |
|
KENNETH WALTER BERNETT and LYNETT PATRICIA BERNETT | Fourth Plaintiff |
and |
|
PETER UPTON and CAROLYN UPTON | Fifth Plaintiff |
and |
|
JENNIFER SMITH | Sixth Plaintiff |
and |
|
PATRICK LAURENCE CROWLEY | First Defendant |
and |
|
JOHN WELLESLEY COWLEY | Second Defendant |
and |
|
JEFFREY DAVID DODDS | Third Defendant |
and |
|
VANYIELD PTY LTD (ACN 085 180 945) | 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.