Burrell, John Llewellyn v Connell, Ross Ian [1998] FCA 681

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 8246 of 1997

BETWEEN: JOHN LLEWELLYN BURRELL

Applicant

AND: ROSS IAN CONNELL

Respondent

JUDGE: sackville J.

DATE: 1 june, 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HIS HONOUR: At the commencement of today's hearing, Mr Connell, who appears for himself, sought and was granted leave to file a motion seeking to vacate today's date. In support of that motion, Mr Connell read his affidavit dated 1 June 1998. In the affidavit, Mr Connell states as follows: "2. On 9 April 1998 at about 9.00 am I received a telephone call from I believe to be a Solicitor from John Burrell's office. The person said, 'I am ringing about the Federal Court matter for Mr Burrell, am I speaking to Ross Connell.' I said, 'Yes'. The person said, 'the dates that were set are no longer suitable for us and we are putting up a Motion to vacate the Hearing date and have another set of dates. Would you object to this?' I said, 'No, as long as you advise me of the dates or you get the Court to.' The person said, 'We will advise you within the next week.' 3. I then travelled to my parents farm were I do not have a postage service. 4. On 28 May 1998 at about 11.00 am I telephoned the Federal Court Registry and said, 'when has my matter been adjourned to?' The person said, 'it is on 1 June 1998 at 10.15 am.'" Mr Connell was cross-examined by Mr De Buse, who appears for the applicant in these proceedings. In the course of cross-examination, Mr Connell said that he thought he recognised, in the conversation to which he deposed, the voice of Mr Prodromou, the legal clerk who has the conduct of this matter within the office of John Burrell Solicitors. Mr Connell said that it was on the basis of the voice that he recognised and perhaps also a name that had been used in the conversation, that he nominated Mr Prodromou as the other party to the conversation. It was pointed out to Mr Connell, in the course of cross-examination, that his affidavit suggests the relevant conversation took place on 9 April 1998 at about 9.00 am. In fact, as was common ground, a directions hearing took place on that date at about 9.46 am. Mr Connell attended that directions hearing. At that time, the matter was set down for hearing on 1 June 1998, and orders were made that Mr Connell file and serve any affidavits upon which he intended to rely by 1 May 1998. The orders provided that Mr Connell was not permitted to rely on any affidavits not served in accordance with that timetable, save with the leave of the Court. It is clear therefore that the conversation deposed to by Mr Connell could not have taken place at the time he suggested in his affidavit. His explanation in cross-examination was that 9 April 1998 was a mistake for 7 or 8 May 1998. Mr Connell said that he had a diary entry that recorded the telephone conversation. However, he claimed not to have consulted that diary entry at the time he prepared the affidavit. Nor did he bring the diary entry with him, claiming that it was irrelevant to his application for an adjournment. Following the conclusion of Mr Connell's evidence, Mr De Buse called Mr Prodromou. Mr Prodromou is the legal clerk who has been responsible for the handling of this matter within the office of John Burrell, Solicitors, since late last year. He gave evidence that he had never had a telephone conversation of any kind with Mr Connell. He also gave evidence that at no stage following the directions hearing at 9 April 1998 was it anticipated or planned that the hearing date of 1 June 1998 would be vacated. Finally, he gave evidence that there was no record in the file of any such telephone conversation having taken place and that, had it occurred, there would have been such a record. I accept the evidence of Mr Prodromou. He struck me as giving a straightforward, accurate account of events. In any event, the probabilities favour his account. There was no evidence that anyone took any steps, following the alleged conversation, to vacate the date of 9 April 1998 for the hearing of this matter. It hardly seems plausible that a conversation to the effect recounted by Mr Connell could have taken place, yet the applicant subsequently took no steps to implement the "agreement". Nor is it plausible that there would have been no record of the "agreement" on the file. It follows that I do not accept the evidence given by Mr Connell. Had he made a diary entry of the alleged conversation, one would have expected a reference to it in the affidavit. Mr Connell has been involved in a number of legal proceedings and I do not accept that he is unaware of the significance of the diary entry to his affidavit evidence. Since I do not accept Mr Connell's evidence, the basis for his application for an adjournment falls away. I should add that Mr Connell asserted that the only prejudice to his case was that he wanted to adduce evidence from a Mr McAlister, relating to the issues of service that are involved in the case. He claims that he managed to contact Mr McAlister yesterday, not having spoken to him for several months beforehand. It is only necessary to say that if Mr McAlister's evidence were regarded as important by Mr Connell, it is more than a little curious that no steps have been taken on his part by 1 May 1998, the date specified at the hearing of 9 April 1998, to obtain an extension of time or to refer to the possibility of Mr McAlister giving relevant evidence in the case. In any event, it is not necessary for me to say anything further on that point. I reject the application for an adjournment. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville