Drabsch v SGI & Ors [2000] NSWSC 489

New South Wales Supreme Court

CITATION : Drabsch v SGI & Ors [2000] NSWSC 489 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3008/93 HEARING DATE(S) : 29 May 2000 JUDGMENT DATE : 29 May 2000

Neil Gregory Drabsch (P) Switzerland General Insurance Co Ltd (D1) PARTIES : Andrew Chua (D2) Peter Edward Lepparde (D3) Alan Robert Whitehead (D4) JUDGMENT OF : Hamilton J

COUNSEL : C E Moore (P) B J Gross QC (D2, 3 & 4) SOLICITORS : Brock Partners (P) Clayton Utz (D2, 3 & 4) CATCHWORDS : PROCEDURE [81] - Supreme Court procedure - Practice under Supreme Court Rules - Preliminary rules and generally - Overriding purpose of Rules - Parties' duty to assist the Court to give effect to overriding purpose. LEGISLATION CITED : Supreme Court Rules Part 1 r 3 DECISION : Adjournment granted.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

MONDAY, 29 MAY 2000

3008/93 NEIL GREGORY DRABSCH v SWITZERLAND GENERAL INSURANCE CO LTD & 3 ORS

JUDGMENT - Re adjournment application by defendants (see p 4026 of transcript)

HIS HONOUR:

1 These are the only remaining proceedings out of a concatenation of proceedings which were heard by me for some 70 days last year before the bulk of the dispute among various of the parties was settled. Even in relation to this remaining set of proceedings the conflict between the plaintiff, Neil Gregory Drabsch, and the first defendant, the Switzerland General Insurance Company Limited ("SGI"), was settled. As a result of the settlement, in these proceedings all claims by Mr Drabsch against SGI were dismissed to the intent that they should not be brought again. However, Mr Drabsch continues to maintain his claim in relation to a superannuation fund against the second, third and fourth defendants who were, at the material time, the trustees of that fund and who will hereafter be referred to collectively simply as "the defendants". 2 Until this morning, as far as the Court was concerned, all the evidence had been taken upon that claim, and the matter was listed for today and tomorrow for final submissions. Mr Christopher Moore, who appeared throughout the lengthy trial as junior counsel for Mr Drabsch, again appears for him this morning. The defendants have had a change of counsel, and are now represented by Mr Gross of Queen's Counsel. Application is made this morning by Mr Gross for an adjournment of the proceedings on three grounds. 3 The first relates to the fact that his clients were informed for the first time last week by the plaintiff of a payment made to the plaintiff in 1995, being indirectly proceeds of the superannuation fund, it having been previously asserted that Mr Drabsch had received no payment at all from the fund. The lateness in that matter was in the plaintiff's camp, but the matter was a comparatively trifling one, and I am not convinced that a general adjournment, or any adjournment, of the continuing trial would have been necessary by reason of that matter alone. 4 Much weightier are the second and third grounds given for adjournment. The second is that, after a long process of settlement, an affidavit is now brought forward by Mr David Orford of Financial Synergy Pty Limited, Actuaries, concerning the calculation of the plaintiff's superannuation entitlement. That company was engaged in the process of calculation, which occurred on Mr Drabsch's dismissal by SGI, and which was the subject of controversy and earlier evidence in these proceedings. The third matter is that it is revealed that, at least as to costs, the second, third and fourth defendants were indemnified by the first defendant up to last year, but that that indemnification as to costs has ceased or is at least in the gravest doubt. And certainly from correspondence which has passsed, it is not plain that the first defendant or anyone else will indemnify the defendants against any order for the payment of moneys to the plaintiff which may eventuate from these proceedings. I shall not go into the details, but these are matters of seriousness. They have been brought forward by the defendants very late. An even more unfortunate aspect is that, some little time ago, the defendants informed the plaintiff that they would apply for an adjournment of this fixture, but upon the suggestion being made that they ought apply for one straight away, they announced that they would not perservere with that application but continue with the hearing today, and only changed their minds again late last week. 5 On the one hand I am reminded again of Mr Drabsch's position as a personal litigant who has been involved in massive litigation against persons and companies far richer than he. On the other hand, it must be borne in mind that this litigation now continues against three individuals who, it appears, are called upon to bear the costs out of their own pockets and who may, if unsuccessful, be ordered to pay large sums of money to Mr Drabsch out of their own resources. 6 The evidence by Mr Orford brought forward, although late, seems to me to go to the heart of the questions to be answered in these proceedings. Furthermore, the defendants now propose to cross claim against the first defendant and the Swiss reinsurance company associated with SGI. Many of the same questions as arise in the present trial will clearly arise upon the trial of those cross claims. If a trial of those cross claims proceeds before another Judge, or even, indeed before the same Judge, there are two undesirable consequences. One is that the same issues will be tried over again, wasting Court time and resources. The other is that the other Judge, or even the same Judge upon a differing body of evidence, may come to a differing factual conclusion as to the same subject matter, which would be a most unfortunate result. Despite what has been urged upon me by Mr Moore as to the defendants' lack of diligence in pursuing the second and third matters, and, worse still, their unfortunate change of heart over whether or not to proceed today, which prevented the earlier cancellation of this fixture with a consequent saving of costs, I have come to the conclusion that in the exercise of my discretion I ought allow the application for adjournment from today. 7 I have already warned senior counsel for the defendants that the burden of costs thrown away is likely to fall upon his clients if their application be granted. The consequence of the application being granted will be that they will be ordered to pay the costs of the application and the costs thrown away. I shall order that those costs be paid on an indemnity basis in all the circumstances, particularly bearing in mind the increase of costs thrown away caused by their late change of course. 8 I shall fix further days later in the year for the continuation of the trial. I shall expect the defendants to conduct themselves from here on with a high degree of diligence in relation to preparation to ensure that the trial can proceed on the days that I fix. Dilligence will be necessary, particularly bearing in mind that the complication of service overseas of their cross claim may be required. I remind particularly them, but also the plaintiff, of the recent promulgation in Part 1 r 3 of the Supreme Court Rules of the obligation of parties to assist the Court to facilitate the just, quick and cheap resolution of the real issues in proceedings. The parties must in furtherance of that obligation give the highest priority to all actions necessary to ensure that the trial is ready to continue on the days fixed; further adjournment is most unlikely. 9 I think the best course to follow in the first instance is to stand the matter over for an early directions hearing at which the defendants should bring in their cross claim in a form in which they can file it in Court on that day and should seek on that day any necessary directions or orders concerning its service. I also grant leave to all parties to make subpoenas returnable before me on that day to assist in the elucidation of any matters necessary for the forwarding of the proceedings. 10 The orders of the Court will therefore be: 1 I grant the defendants' application for adjournment of the trial. 2 I fix Monday, 30 October to Friday, 3 November 2000 inclusive for the continuation of the trial. 3 I order the defendants to pay the plaintiff's costs of the application for the adjournment and thrown away by the adjournment on the indemnity basis. 4 I fix 14 June 2000 at 9.30am before me for further directions and I grant leave to all parties to make subpoenas to produce returnable on that day before me.