Dresler v Mrish [2000] NSWSC 609

New South Wales Supreme Court

CITATION : Dresler v Mrish [2000] NSWSC 609 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3402/93 HEARING DATE(S) : 26 June 2000 JUDGMENT DATE : 26 June 2000

Mark Oliver Dresler (P) PARTIES : Donna Marie Mrish as Adminstratrix of Estate of Late George Mrish (1D) Lawhouse Pty Ltd (2D) Registrar General (3D) JUDGMENT OF : Hamilton J

J Van Aalst (P) COUNSEL : C J Stevens QC and P Newton (1D) No appearance (2 & 3D) Hardings (P) SOLICITORS : Philip J Beazley (1D) No representation (2 & 3D) 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 1970 Part 1 r 3, Part 52A rr 11 & 43 DECISION : Fixture vacated on terms.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J MONDAY, 26 JUNE 2000 3402/93 MARK OLIVER DRESLER v GEORGE MRISH & ORS HIS HONOUR: 1 This matter has not been able to proceed on the five days for which it was fixed (26 - 30 July 2000) by reason of lack of preparation in the first defendant's camp. That failure of preparation, it would seem, is essentially in the lap of Mr P J Beazley, the first defendant's solicitor. Mr Beazley has sworn an affidavit in which he frankly avows that and that is to his credit. He recites a number of circumstances which led to that situation, and they are not without substance. However, it is not the way to deal with that situation, simply to leave correspondence from the other side unanswered, and not to make the situation which is prevailing clear, until about a week before the hearing was to take place. There was a further delay in the hearing of the motion for vacation being heard which was not to Mr Beazley's account, but arose from personal circumstances of senior counsel for the first defendant, although senior counsel's absence would not have prevented the Court at least being informed a week ago that it was intended to make the present application. The evidence does not suggest that there is personal fault on the part of the impecunious first defendant in the present delay. 2 To Mr Beazley's credit are the fact that he has undertaken to help an impecunious litigant in difficult circumstances and, as I have already said, his frank avowal of his responsibility for the situation which has arisen. I also note that the situation was not brought to notice early by those in the plaintiff's camp. This is due, I am told and accept, to a view of the plaintiff's solicitor that, having written off to the defendant's solicitor in March, there was not much else he could do. That is no longer strictly correct. It is quite open to both parties, as provided for in minutes which I shall implement in a moment, to bring promptly to the Court's attention that a matter is going off the rails, and there ought be as wide notice as possible drawn to the circumstance that in the year 2000 even a non-defaulting party is not to be regarded as at liberty to stand by and simply let the matter run to day of trial. At least so far as this Judge is concerned, and I am quite sure other Judges of the Court, when a matter is going off the rails, it must be brought to the attention of the Court so that the situation may be reviewed, and, in default of that being done promptly by the defaulting party, the other party must do it. As well as being a matter of common sense, this duty is now imposed on both parties by Part 1 r 3(3) of the Supreme Court Rules 1970 ("the SCR"). However, there is no doubt that the primary and overwhelming responsibility for the situation lies upon the first defendant's solicitor. 3 I indicated this morning, over the protest of Mr Van Aalst, of counsel for the plaintiff, that I did propose to grant a vacation of the fixture and adjourn the proceedings to three days, being 7, 8 and 9 August which I have available. I indicated that I was minded to order Mr Beazley to indemnify the plaintiff against the costs thrown away and that I was minded to order that those costs be assessed and paid forthwith under theprovisions of Part 52A rr 11 and 43 of the SCR. I also asked counsel for the first defendant to ascertain, during an adjournment of two hours, that the matter could be made ready for trial by 7 August 2000, barring accidents, and that it was realistic to adjourn the trial to that day for hearing. Negotiation during that adjournment has produced the sensible course of agreement to the fixture of the hearing for the three days commencing 7 August 2000, to an assessment of the costs which ought be ordered, and to the manner in which they may be paid. 4 I shall by consent make the orders contained in the short minutes of order, but in saying that they are by consent, the history that I have recited ought be borne in mind. The agreement between the parties was come to on the basis that I indicated I should vacate the fixture and that I took the view that the first defendant's solicitor ought pay the costs thrown away. 5 I required the first defendant's solicitor to be called into the witness box before the orders were made to assure the Court both that he believed, after his discussion with counsel, that the case could be prepared for hearing by 7 August 2000, and that he would order the priorities of his life so as to apply himself appropriately to the preparation of the case by that time. I emphasise that the provision of the directions for the restoration of the matter before me should be utilised either by the defaulting party or the non-defaulting party if this program goes awry. I equally repeat the offer that I made earlier, that if the parties require any directions or judicial intervention of any other sort which would enable this matter, with its unhappy history, to be brought to hearing on 7 August 2000, they have but to approach my staff for the matter to be put in promptly for directions. 6 I should add that the minutes reveal that the honest estimate of the parties of the time for the hearing continues to be five days. I have allotted only three days because at the moment I have no further time available until the last week of term. I think the better course is simply to fix the matter for the three days, in the face of the estimation given by counsel, and to review the future course of the matter during that fixture.