Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2001] NSWSC 884

New South Wales Supreme Court

CITATION : Queanbeyan Leagues Club Ltd v Poldune Pty Ltd [2001] NSWSC 884 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3418/96 HEARING DATE(S) : 4 October 2001 JUDGMENT DATE : 4 October 2001

Queanbeyan Leagues Club Limited (P) GIO Australia Holdings Limited (D2) PARTIES : M J Armstrong (D14) GIO Personal Investment Services Limited (D15) Marshall Marks Kennedy (XD1) JUDGMENT OF : Hamilton J

A Radojev (P) COUNSEL : S Woodley, Solicitor (D2 & 15) and mentioning for (D14) M T McCulloch (XD1) Collaery & Colquhoun (P) SOLICITORS : Barker Gosling (D2 & 15) Tress Cocks & Maddox (D14) Phillips Fox (XD1) CATCHWORDS : PROCEDURE [105] - Supreme Court procedure - Practice under Supreme Court Rules - Directions - Party's unexplained absence from directions hearing shortly before long trial - Costs. DECISION : Defendants' costs of abortive directions hearing to be paid by plaintiff.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 4 OCTOBER 2001

3418/96 QUEANBEYAN LEAGUES CLUB LIMITED v POLDUNE PTY LIMITED & ORS

JUDGMENT

1 HIS HONOUR: This matter was before me on Tuesday, 2 October 2001 for what was to be the last of many directions hearings before the second trial in the matter which is to commence for four weeks on Monday next, 8 October 2001. Despite appearance by each of the defendants (in which expression I include the cross-defendant MMK), there was simply no appearance on the part of the plaintiff. This was disturbing because, without going into detail, actions and omissions over the past months have caused me to fear that proper attention has not been paid to the preparation of this complex and difficult case in the plaintiff's camp (not including the plaintiff's counsel). Because of that, when there was no attendance on this late and important occasion, I directed that the plaintiff's solicitor be personally present in Court today, with an affidavit by him explaining the absence of representation of the plaintiff and the absence of specification of the portions of previous transcript and exhibits to be used at the coming trial and showing cause why the solicitor or the plaintiff ought not be ordered to pay the defendant's costs of 2 and 4 October 2001. 2 Mr Radojev, of junior counsel for the plaintiff, had, before 2 October, informed my Associate that he might not be able to attend on that day but said that in view of the importance of the matter, his leader, Mr Donohoe QC, would be in attendance. Upon his becoming aware of the direction that I made on 2 October 2001, Mr Radojev very fairly and frankly conveyed immediately to my chambers an apology and the information that the fault on this occasion lay entirely with him and his failure to make appropriate communications with Mr Donohoe and his solicitors concerning the necessity of attendance in his absence. Upon receiving that information from Mr Radojev, I immediately withdrew the portion of the direction made that morning requiring the personal attendance of the solicitor and the affidavit explaining the absence of representation and of compliance with directions, whilst maintaining the necessity of showing cause today why the defendants ought not have in their favour an order for their costs of 2 and 4 October 2001. 3 Mr McCulloch, of junior counsel for the first cross defendant, today makes application for those costs on behalf of all the defendants. The application is made in general terms without any submission as to the person against whom the costs should be ordered. I accept from Mr Radojev, as do the defendants through Mr McCulloch and Mr Woodley for the GIO, Mr Radojev's explanation. The absence occurred by accident and accidents do happen. However, the defendants have incurred additional expense to an extent to which I shall advert below. The accident was not in their camp or contributed to by them and, in the circumstances, I am of the view that a costs order ought be made in their favour. Costs are not specifically applied for against the plaintiff's legal representatives and, in all the circumstances, I do not think I ought make an order against those representatives directly. In my view the appropriate order is that it is the plaintiff who ought be ordered to pay the costs vis-a-vis the defendants. Arrangements can no doubt be made within the plaintiff's camp as to the ultimate incidence of those costs. 4 As I understand the application it encompasses the costs both of Tuesday and today. However, other matters not previously attended to have been dealt with today, including arrangements as to the courtroom in which the trial will be conducted and an application made on the defendants' behalf for leave for special transcript arrangements for the case through the use of outside contractors. Advice should be conveyed to my staff today as to what is intended so that the Court Reporting Branch may be consulted as to its view on this application and may organise its resources accordingly. Those necessary matters having been attended to today, I do not regard the costs of today's directions hearing as thrown away through Tuesday's accident. In all of the above circumstances, the order that I make as to the costs of Tuesday is that the plaintiff pay the costs of the GIO, Mr Armstrong and MMK of the directions hearing on Tuesday, 2 October 2001.