New South Wales Supreme Court CITATION : Grizonic v Suttor [2008] NSWSC 912 HEARING DATE(S) : 2 May 2008 JURISDICTION : Equity Division Expedition List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 2 May 2008 DECISION : Final hearing of proceeding adjourned to 3 and 4 July 2008. CATCHWORDS : PROCEDURE – application by plaintiff to adjourn final hearing on day appointed for hearing – where plaintiff is unrepresented – where plaintiff claims to be in the process of sourcing legal representation – where proceeding has had protracted history. CATEGORY : Procedural and other rulings 6141/03 Claudio Grizonic (plaintiff) Suzanne Ranken Suttor (first defendant) Find a Flat Pty Ltd (second defendant) 2475/05 Claudio Grizonic (plaintiff) Geoffrey McDonald (first defendant) PARTIES : Paul Leroy (second defendant) Suzanne Suttor (third defendant) 1960/08 Claudio Grizonic (plaintiff) Suzanne Ranken Suttor (first defendant) Rodney Ranken Suttor (second defendant) Find a Flat Pty Ltd (third defendant) FILE NUMBER(S) : SC 6141/03; 2475/05; 1960/08 COUNSEL : Mr C Grizonic (in person) (plaintiff) Mr A Jungwirth (D1,2 in 6141/03), (D3 in 2475/05), (D1, 2, 3 in 1960/08) SOLICITORS : Mr Mark Gallego (D1,2 in 6141/03), (D3 in 2475/05), (D1, 2, 3 in 1960/08) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST BRERETON J Friday 2 May 2008 6141/03 Claudio Grizonic v Suzanne Ranken Suttor & 1 Or 2475/05 Claudio Grizonic v Geoffrey McDonald & 2 Ors 20002/05 Claudio Grizonic v Suzanne Ranken Suttor & 1 Or JUDGMENT (ex tempore) 1 HIS HONOUR: Mrs Wade – who, by leave, has been assisting Mr Grizonic as his McKenzie friend – contacted my Associate by email on 28 April 2008 and advised that she was unable to represent, or present Mr Grizonic's case, today. She claimed to have discovered "crucial evidence that should be relied on with regard to all points to be determined" today. She said that she was "legally out of her depth" – a not inaccurate observation – and that she was seeking an adjournment to enable Mr Grizonic to be legally represented. She envisaged being able to fund the law firm Horton Rhodes, with whom she and Mr Grizonic have discussed the matter, and who have apparently indicated that they would be happy to represent him as soon as placed in funds, and sought an adjournment for 8 to 10 weeks for that purpose. 2 At my direction, my Associate then informed both parties that I would only be prepared to consider an adjournment on the grounds foreshadowed if there were written or oral evidence from a lawyer indicating that he or she would be prepared to act, and if that preparedness was conditional on being put in funds, evidence from whomever was to provide the funds as to how and when they would be provided. 3 On 30 April 2008, Ms Wade forwarded by facsimile a letter to my Associate, asserting that she was negotiating to sell part of a plantation in New Guinea to Harmony Gold; that she anticipated that contracts would be exchanged within the next 10 days, with settlement within four weeks; and that should contracts not be exchanged within 10 days, she had instructed real estate agents to sell the three blocks by tender closing 21 days from the offer of the tender. She said that she intended to place Horton Rhodes in funds to the extent of $30,000 or more from the proceeds of that sale. She enclosed a copy of a letter dated 20 April 2008 to Harmony Gold – together with, so far as I can tell, two agricultural lease titles in respect of land in New Guinea, none of which makes it apparent that Ms Wade has any interest or rights in respect of that land. 4 On 1 May 2008, my Associate received a telephone call from Simon Horton, Solicitor of Horton Rhodes, who apparently indicated that he would be prepared to act initially in the matter if $30,000 were paid into his trust account, but that as the matter appeared to be very complex further funds may be required, though $30,000 would be sufficient for his initial involvement. That telephone call is hardly the written or oral evidence that my earlier communication had contemplated. 5 I am very sceptical as to whether an adjournment would result in Mr Grizonic being represented in eight weeks time. Certainly, the material so far put before me does not go very far to providing confidence that that will happen. 6 Also before me, however, is a report of Dr Henson, Psychiatrist, who has seen Mr Grizonic in connection with proceedings heard late last year and determined early this year in the Common Law Division. He has proffered the opinion that Mr Grizonic was severely affected by a depressive illness, and that his performance as a witness during the recent hearing was seriously impaired as a result. 7 I am concerned, as a matter of fairness, that Mr Grizonic probably thought, until very recently, that he was going to be represented or assisted today by Ms Wade, at least to the extent that she could do so, and is now left without any assistance in circumstances, where his ability to represent his own interests may be compromised. 8 To say that this is frustrating, in circumstances where every conceivable step has been taken to this point to make sure that the matter is ready for hearing today – to identify discrete specific issues in order to enable Mr Grizonic and his advisors to focus on them rather than having to address all at once the entire body of material in the case, to confirm that all the evidence is complete, and on the Court's part to digest the material and be prepared for a hearing today – is to put the position only mildly. This is not the first time that a hearing in this matter has been vacated at relatively short notice. Indeed, 12 months ago now, the matter was listed to be heard before another Judge, and was vacated when material was provided very late on Ms Suttor's side of the record. 9 However, on balance I think the interests of justice are better served by affording Mr Grizonic a last opportunity to obtain legal representation, or at least better prepare himself to represent himself. 10 I adjourn the proceeding for hearing on 3 July 2008, to continue if necessary on 4 July 2008. The matter will not be the only matter listed on 4 July, but it will be listed at 10:00am so that we can work out how much time we have that day. 11 I order that the plaintiff Mr Grizonic pay the defendant Ms Suttor's costs occasioned and thrown away by the adjournment. 12 The matter will be listed before me for directions on Friday 20 June 2008 at 9.30am. 13 On those July dates, the matter will just have to go ahead. This case has to be finished. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.