Kochergen, Jacob Jack & Anor v Bell, Geoffrey York & Ors Bell, Geoffrey York & Ors v Kochergen, Jacob Jack & Ors [1998] FCA 1203

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 87 of 1995

BETWEEN: jacob jack kochergen

and

joaquin investments pty ltd

(acn 008 165 197)

Applicants

AND: geoffrey york bell,

and: bruce raymond spangler,

and: cw pty ltd (acn 007 901 546),

nicholas john storer,

christopher martin garrett

and

bentleys services pty ltd (acn 007 534 643)

Respondents

geoffrey york bell,

bruce raymond spangler,

cw pty ltd (acn 007 901 546),

nicholas john storer,

christopher martin garrett,

bentleys services pty ltd (acn 007 534 643)

and

envirowaste enterprises pty ltd (acn 008 046 562)

cross claimants

jacob jack kochergen,

joaquin investments pty ltd (acn 008 165 197),

jackie billie kochergen

and

elaine ann kochergen

cross respondents

JUDGE: MANSFIELD J

DATE: 16 september 1998

PLACE: ADELAIDE

REASONS FOR DECISION HIS HONOUR: The first two respondents have applied by notice of motion to vacate the hearing dates fixed for the trial of this action. I propose to make that order. However, subject to one other matter which is pressing for hearing dates and which may be listed at these times, I will not list other matters in the period of time set aside for this action in the first two weeks of December for the time being. There is also the prospect of two weeks in the middle two weeks of November being available for the hearing of this matter. That will become clearer in the next several days. I do not make that order because of the insurance difficulties which have apparently arisen between certain of the respondents and their insurer. In my view, those potential difficulties have been on the table between those respondents and their insurer, at least in the sense of having been identified as a potential issue for some considerable time. I do not see any particular reason why the interests of justice dictate that this matter should be adjourned now, shortly before the trial, while those issues become more focused and pursued. Essentially, the reason I make the order is because, at a practical level, I do not think that it is fair in the interests of the administration of justice to force the respondents to trial notwithstanding the preparedness of the applicants to proceed to trial on the dates fixed. In the case of the first two respondents, whatever the circumstances causing their present plight, the fact is that they were told on 18 August 1998 by their then solicitors, who have been acting for them throughout, that they will no longer be able to act for them. They have promptly engaged other solicitors. So far as I can see, those solicitors have acted expeditiously and, from 8 September 1998 only, have had access to the extensive material previously available to the former solicitors of the first three respondents. The affidavit of Mr Cullimore of the new solicitors deposes to the fact that, notwithstanding their best efforts, they cannot get the matter ready for trial in the period between that date and the date fixed for the hearing. I do not accept necessarily that all of the steps to which he deposes in par 6 of his affidavit will require a prolonged period of time of preparation, nor indeed do I accept that all or most of the matters described more cursorily in par 17 of Mr Bell's affidavit sworn in support of the notice of motion require a prolonged period of time before the matter is ready for trial. However, I accept that those solicitors cannot fairly be expected to complete all the steps necessary to have the matter prepared for trial sufficiently for there to be a fair trial between the time when they were in a position to commence that preparation and the time fixed for the trial. I have considered the unfairness to the applicant by the order I propose. It is in a sense manifest but general. No specific prejudice which could not be accommodated by costs has been identified, apart from the general frustration and anxiety associated with the delay. I do not think that is of such a moment as to force the matter to trial. Counsel for the applicants has identified those elements of unfairness, and I have had regard to them. I have also had regard to the threatened application for security for costs proposed by the first three respondents against the applicants. Counsel for those respondents has indicated that her clients accept that when and if that application is pursued, it should be adjudicated upon as if it were made, (to use the vernacular) on the eve of trial; that is, as if it were made at a point of time shortly prior to the trial and in circumstances where, as I indicated to counsel, the Court would be unlikely to be able to find time to hear it until immediately before the trial. The timing of such an application is a relevant consideration to its being granted or not granted. The concession made by Ms Maharaj indicates that the applicants will not be disadvantaged by an adjournment in relation to the timing of any such application. I am also mindful that any work carried out by the applicants towards preparation for trial and which needs to be revisited, and costs incurred in that regard, will be capable of being met by an appropriate order for costs in the light of my order vacating the trial date. I will hear the parties as to costs shortly. There are some other matters to which I have had regard in making my decision. One such matter is that there are a number of other issues which need to be resolved before the trial. There are presently motions before the Court by the fourth, fifth and sixth respondents, now separately represented, to amend their defence and to make a cross-claim against the first and second respondents. In my view, those matters also need to be addressed before this trial proceeds. They are further practical considerations which I had regard to in deciding to vacate the trial dates. If any party wishes me to, I will formally publish reasons for the decision which will express those other matters. I will hear counsel as to costs. DISCUSSION RE COSTS On the notice of motion of the first and second respondents dated 7 September 1998, I make the following orders: 1. Trial date vacated. 2. First and second respondents pay to the applicants their costs of and incidental to the notice of motion to date, and their costs thrown away by reason of the vacation of the trial date. 3. Adjourn for further consideration par 2 of that notice of motion. I certify that this and the preceding three (3) pages are a true copy of the Reasons for Decision of the Honourable Justice Mansfield. Associate: Dated: 25 September 1998 Counsel for the Applicants: Mr C Brohier with him Mr J Lumsden Solicitors for the Applicants: Thomson Playford Counsel for the First, Second and Ms S Maharaj Third Respondents: with her Mr S Cullimore Solicitors for the First, Second and Lynch & Meyer Third Respondents: Counsel for the Fourth, Fifth and Mr S Lane Sixth Respondents: with him Mr R Bonig Solicitors for the Fourth, Fifth and Fountain & Bonig Sixth Respondents: Date of Hearing: 16 September 1998 Date of Decision: 16 September 1998