FEDERAL COURT OF AUSTRALIA Eggerth v Piccardi [2017] FCA 773 File number(s): NSD 437 of 2015 Judge(s): DERRINGTON J Date of judgment: 1 June 2017 Catchwords: PRACTICE AND PROCEDURE – Application to vacate trial dates – time needed by the applicant to reformulate claim Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Date of hearing: 1 June 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 3 Counsel for the Applicant: Mr D B O'Sullivan QC and Mr AC Stumer Solicitor for the Applicant: Trisley Lawyers Counsel for the First, Second, Third and Fourth Respondents: Mr Cooper QC and Mr A Christie Solicitor for the First, Second, Third and Fourth Respondents: Aitken Whyte Lawyers Pty Ltd ORDERS NSD 437 of 2015 BETWEEN: THEODOR EGGERTH Applicant AND: KURT PICCARDI First Respondent GERLINDE PICCARDI Second Respondent KURT ANTHONY PICCARDI (and another named in the Schedule) Third Respondent JUDGE: DERRINGTON J DATE OF ORDER: 1 JUNE 2017 THE COURT ORDERS THAT: 1. The time for service of the interlocutory application filed on 1 June 2017 be abridged to 1pm on 1 June 2017 and service prior to that time be deemed to be effective service. 2. The hearing set down for the week commencing 5 June 2017 be vacated. 3. The applicant pay: (a) the respondents' costs thrown away by reason of the vacation of the hearing; (b) the respondents' costs of and incidental to this interlocutory application 4. The applicant file and serve any amended originating application and further amended statement of claim by 30 June 2017. 5. The matter be listed for case management at 10:15am on 14 July 2017. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DERRINGTON J: 1 The application this afternoon is for an order that the trial set down for hearing next week, that is, commencing 5 June 2017, be vacated. It is most unfortunate that trial dates do have to be vacated on occasion and, as French CJ indicated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, at 190-192, it is best if no belief is engendered in the profession that adjournments of trials set down for hearing can be easily obtained. That is not the case today. For a number of reasons with which I am satisfied, it is appropriate to make the order sought. 2 Senior Counsel for the respondents, Mr Cooper QC, formally opposed the application but he did acknowledge that this may be a circumstance where the discretion might be properly exercised and I appreciate his candour in that respect. The circumstances are, briefly, that a late difficulty with Counsel briefed for the hearing has had the consequence that new Counsel for the applicants have been engaged and those new Counsel, on considering the matter, have reached some views about the adequacy of the claim and, indeed, the pleading. None of that comes as a particular surprise to myself. 3 The necessary sequelae is that time is needed to reformulate the claim and the pleading and, were the matter to proceed without that reformulation, it would seem to me that it would proceed on the basis of the real and substantial issues in dispute not being properly litigated. I also take into account that, as the learned senior counsel for the respondents, Mr Cooper QC, acknowledged, no real irreparable harm would be caused to the respondents by the adjournment. Again, I am appreciative for that very reasonable concession. Another significant factor is that the matter can be re-listed for hearing within a very short timeframe. In the circumstances, I consider it appropriate to make the order vacating the trial dates for next week. I am prepared to make the orders in the draft submitted by Mr O'Sullivan QC on behalf of the applicant as amended such that order 5 read "the matter be listed for mention at 10.15 on 14 July 2017". It is hoped that, once the matter comes back on, it can be speedily prepared for hearing or perhaps resolved in some other way. So I will make those orders. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate: Dated: 1 June 2017 SCHEDULE OF PARTIES NSD 437 of 2015 Respondents Fourth Respondent: EPI INTERNATIONAL PTY LTD