Salvato v Commonwealth Bank of Australia [2013] NSWSC 1373

Supreme Court New South Wales

Medium Neutral Citation: Salvato v Commonwealth Bank of Australia [2013] NSWSC 1373 Hearing dates: 12/07/2013 Decision date: 12 July 2013 Jurisdiction: Common Law Before: Rothman J Decision: Adjournment refused Catchwords: PRACTICE AND PROCEDURE - change of counsel due to illness - adjournment sought - illness does not account for failure to adduce evidence - plaintiff had adequate opportunity to prepare and to present his case - time granted to file submissions in response Category: Interlocutory applications Parties: Mimmo Salvato (Plaintiff/Respondent) Commonwealth Bank of Australia (Defendant/Applicant) Representation: Counsel: A Busby (Plaintiff/Respondent) D A McLure (Defendant/Applicant) Solicitors: MacKellars Lawyers (Plaintiff/Respondent) Gadens Lawyers (Defendant/Applicant) File Number(s): 2013/117781 Publication restriction: None

EX TEMPORE Judgment 1HIS HONOUR: The Court is faced with an adjournment application by the plaintiff in these proceedings being an adjournment of a motion filed on 27 May 2013 and by direction of the registrar, over the objection of the plaintiff, listed for today before the Court. 2The applicant on the motion, being the defendant in the proceedings, is the Commonwealth Bank of Australia (hereinafter, "CBA"), moves for dismissal of the proceedings based upon a number of aspects. 3The first of them is the state of the pleading commencing the proceedings. The second is a deed of settlement in relation to this and other matters, and the third is estoppel, both issue estoppel and Anshun estoppel. 4The matters raised by the defendant on their face are substantial and at least, arguable. The plaintiff, having been given the notice, contacted my associate the day before yesterday, and the defendant yesterday, to the effect that counsel initially briefed in the matter had returned from overseas and was unwell and could not attend today and seeking, it seems, an adjournment. 5That adjournment has been sought today in Court. Mr Busby appears for the plaintiff, in a sense out of courtesy, and I am grateful for that courtesy, and nothing I am about to say is a criticism of Mr Busby, either professionally or otherwise. In effect, Mr Busby has not been briefed, even with a statement of claim in these proceedings, which is the subject of the strike out motion, nor, it seems until this morning, was he briefed with the evidence upon which the defendant relies. That, of course, is not his fault. It may well be the fault of the plaintiff. 6My initial reaction was to refuse an adjournment and that is a reaction which prevails. The duty of a court or tribunal that is required to act judicially is to give each party an adequate opportunity to prepare and to present the case that the party wishes. It is not the duty of the Court to ensure that a party uses that opportunity to its best advantage. 7The failure to grant an adjournment where it will deprive a party of an appropriate opportunity to prepare and to present its case can be the subject of a denial of procedural fairness. I take that into account in dealing with this adjournment application. I also take into account that approximately two months' notice of the motion has been provided to the plaintiff. 8Prior to the motion being filed, a letter had been sent detailing the issues that were raised in the motion. That letter was sent by CBA to the plaintiff. The plaintiff cannot say he has not had an opportunity to prepare for today's proceedings and to present what he wishes to present. The fact, if it be the fact, that Mr Salvato's barrister or legal representative was not available for today does not deal with the issue of evidence, if there were to be any evidence, upon which Mr Salvato would rely. It seems to me there has been more than an abundant opportunity to have filed any evidence on which the plaintiff relies, as a consequence of which I will not allow an adjournment for the purposes of delaying these proceedings or adding to the costs of CBA. 9I will allow the plaintiff an opportunity to provide a short written submission in answer to the submission prepared by CBA in relation to these matters and to do so by 4.00pm Friday, 19 July.