Carlene Randall v City of Canada Bay Council (No 2) [2014] NSWSC 964

Supreme Court New South Wales

Medium Neutral Citation: Carlene Randall v City of Canada Bay Council (No 2) [2014] NSWSC 964 Hearing dates: 18 July 2014 Decision date: 18 July 2014 Jurisdiction: Common Law Before: Kunc J Decision: Plaintiff's adjournment application refused Catchwords: PRACTICE AND PROCEDURE - Application for adjournment of hearing after solicitor's retainer peremptorily terminated Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Procedural and other rulings Parties: Carlene Randall (Plaintiff) City of Canada Bay Council (Defendant) Representation: Counsel: F. Agresta (by leave on behalf of the Plaintiff) P.T. Newton (Defendant)

Solicitors: Mills Oakley Lawyers (Defendant) File Number(s): 2013/5606 Publication restriction: No

EX TEMPORE Judgment 1HIS HONOUR: The hearing of these proceedings commenced before me on Monday, 5 May 2014. They continued the next day. By the conclusion of the second day all of the evidence which the parties apparently wished to rely on had been tendered. Mr Agresta, to whom I had given leave to appear on behalf of his wife Carlene Randall (the first plaintiff), had also apparently completed all of his submissions both written and oral that he wished to make in support of Ms Randall's case. 2At the conclusion of the second day of hearing when Mr Agresta had finished his submissions the following exchange took place (transcript p 113): HIS HONOUR: I want to make sure, Mr Agresta, that you have said to me everything you wished to say and you've drawn my attention to everything that you wished to draw my attention to. If you would like to take a moment to think about it? So what I propose to do, I can't imagine that Mr Newton is going to finish today. We are going to have to come back another day to finish this case and subject to anything that counsel have to say, I think Mr Newton, I am disposed to direct you to put in full written submissions in response. And I will give Mr Agresta a chance to put in full written submissions in reply. So no one can be in any doubt about what is being said. NEWTON: Yes, I agree with that approach to be the most just. HIS HONOUR: And then we may not need a whole day, if I have the benefit of full written submissions. Mr Agresta and Mr Newton, I can next take this matter on Friday, 18 July. AGRESTA: Yes, that's fine." 3I then made directions for the filing of full written submissions by the defendant and full written submissions in reply by Ms Randall and fixed the proceedings for further hearing before me on Friday, 18 July 2014. 4The defendant provided its full written submissions in accordance with the directions that I made. 5The receipt of the defendant's written submissions and further reflection by Mr Agresta then gave rise to an application by Ms Randall to reopen her case to file further evidence. The defendant agreed to the application to reopen in relation to the filing of some of the evidence which Ms Randall wished to adduce but objected to other parts of the new evidence (and, I infer, to Ms Randall being given leave to reopen to the extent of reading the evidence to which objection was taken). 6To deal with Ms Randall's application to reopen, the proceedings were listed before me on 19 June 2014 pursuant to liberty to apply. In the course of dealing with Ms Randall's application, Mr Agresta (who again, by leave, was appearing for Ms Randall) submitted that at least in relation to some of the evidence upon which he proposed to rely (if not in relation to all of it, the position is not entirely clear) Ms Randall would need to amend her amended statement of claim. Mr Agresta informed me that he had not had an opportunity in the time available to him to formulate the proposed further amended statement of claim. The defendant neither consented to nor opposed a series of orders I then made intended to give Ms Randall the opportunity to file a motion seeking leave to file a further amended statement of claim. I made orders intended to enable that motion, if filed, to be heard before me today. 7On 2 July 2014 the firm of Robert Balzola & Associates filed a notice of appointment of solicitor on behalf of Ms Randall. The principal of that firm, Mr Robert Balzola, had carriage of the matter on behalf of Ms Randall. In the lead up to today a number of documents were prepared by Mr Balzola including a further amended statement of claim and written submissions in an attempt to comply with the orders which I had made on 19 June 2014. Mr Balzola helpfully provided a court book containing the material upon which he intended to rely other than a number of further affidavits. I will mark the court book to which I have just referred as Exhibit 15P in the proceedings. 8The further amended statement of claim which Mr Balzola, I infer, had instructions to propound involved significant amendments to the pleadings. The submissions which Mr Balzola prepared in support of the matters which he wished to argue before me today included what I can only interpret as a concession that the proceedings, in their current form, were not properly constituted. In particular, Mr Balzola accepted, including in the course of argument before me today, that at least in relation to the amended statement of claim Ms Randall did not have standing to seek the relief sought in that document. Mr Balzola did, however, also submit that insofar as the proposed further amended statement of claim was concerned, it was intended that document would include an allegation of fraud and that, in a way I do not entirely understand, that cause of action might properly be brought by Ms Randall as well as the currently deregistered Phoenix Enterprises Pty Limited. 9When he appeared before me today on behalf of Ms Randall, I granted leave to Mr Balzola to file on behalf of his client a notice of motion which sought these orders: 1. Order granting leave to file a notice of motion seeking leave to amend first plaintiff's statement of claim. 2. Pursuant to section 66 of the Civil Procedure Act NSW 2005, this matter be adjourned to a specified day as agreed by this Court. 10Mr Balzola sought an adjournment on the bases that he had only recently come into the matter and that he had instructions to obtain counsel's advice as to the final form of any further amended statement of claim. Without seeking to rehearse in further detail the exchanges that took place with Mr Balzola, the position was reached where I had put to him that, given the concessions apparently made in his submissions, either Ms Randall should discontinue her current proceedings or the appropriate course would be for the proceedings to be dismissed with costs. That would leave Ms Randall and Mr Agresta with the opportunity to obtain counsel's advice as to what could then occur, it being apparently contemplated that an application would be made in the Corporations List for Phoenix Commercial Enterprises Pty Limited to be restored to the register for the purposes of prosecuting whatever causes of action it might have along the lines of those which Ms Randall has sought to prosecute in these proceedings. Mr Newton of Counsel, appearing for the defendant, at that point urged that I should dismiss the proceedings with costs. 11The proceedings then took a rather remarkable turn. I had afforded the parties a short adjournment so that they could respectively consider the best way forward in the light of the alternatives that were then being debated. At the conclusion of the adjournment Mr Balzola informed me that his retainer had been terminated by Ms Randall. That was done by a letter of 18 July 2014 (today) signed by Ms Randall and addressed (albeit slightly incorrectly) to Mr Balzola. I marked that exhibit 1D on the applications before me this morning but I will re-mark it Exhibit 16P in the main proceedings. The extraordinary thing about Exhibit 16P is that it was obviously typed and prepared before the proceedings this morning and was being held by Mr Agresta in his possession, presumably to be deployed if and when he thought fit to terminate Mr Balzola's retainer. 12With the termination of Mr Balzola's retainer, Mr Agresta again sought to appear for Ms Randall by leave. Without formally ruling on that application I permitted him to continue to address the Court on behalf of Ms Randall. Mr Agresta then applied for a further adjournment to enable an amended pleading to be prepared. It is that application for an adjournment with which I am now dealing. 13In response to that application, the defendant invited me, in the first instance, to dismiss the amended statement of claim with costs. As matters developed, that application became an application for the proceedings to continue in the way originally intended, namely that submissions should be concluded and that I should, in the ordinary course, deliver judgment which, Mr Newton submitted, would inevitably be a judgment for the dismissal of proceedings, not least because Ms Randall lacked standing to bring the proceedings. I clarified with Mr Newton that his application was not, as it were, for me to dispose of the proceedings summarily today, but rather that they should continue in the way which I have just described. 14I decline Mr Agresta's application on behalf of Ms Randall for the proceedings to be adjourned to enable her to bring in a further form of amended pleading. I do so for these reasons. 15The overriding purpose which must govern the Court's exercise of its discretion in the conduct of proceedings is set out in Section 56 of the Civil Procedure Act 2005 (NSW), namely for the just, quick and cheap resolution of the real issues in proceedings brought before the Court. 16In approaching Ms Randall's application, I am acutely conscious that the preparation and conduct of these proceedings has largely been undertaken by Mr Agresta on her behalf and that neither he nor Ms Randall is a legally qualified person. 17However, the fact that a person is not legally qualified does not mean that the usual rules in relation to the conduct of proceedings before this Court do not apply to them. Rather, those rules need to be applied with, in appropriate cases, some degree of latitude and forbearance given that a person is not legally represented. 18But it is not just the circumstances of the unrepresented party that need to be taken into account. Justice must be done as between both parties to the proceedings. A party which is represented before the Court in litigation where the other side is unrepresented is equally entitled to the proper application of the Court's discretion to ensure that justice is done in relation to the represented party as much as it is done to the unrepresented party. 19Having said that, I am satisfied that every appropriate opportunity to reframe Ms Randall's case has been afforded to her, having regard to the history which I recited at the outset of these reasons. 20It was, to be frank, from the Court's point of view an encouraging and positive development that Ms Randall apparently found herself able to obtain legal representation. I had on previous occasions expressed every encouragement to her, through Mr Agresta, that she should obtain legal representation if at all possible. A great deal of work in a relatively short period of time was apparently undertaken in Ms Randall's interests by Mr Balzola. 21The position had been reached where, from the legal point of view, the proceedings were going to be able to be dealt with one way or the other. Having been given what I regard to have been a proper opportunity to prepare an amended pleading, the proper application of the discretionary principles relating to case management, having regard to the provisions of s 56 and to ensure that justice is done to both parties, require that Ms Randall not be given any further opportunity to amend her pleadings, not least because of the very late stage in the course of the hearing (final addresses) in which that application has arisen. 22There is another reason why I am not disposed to grant the adjournment. I find the circumstances in which Mr Balzola's retainer was terminated to be extraordinary. I put squarely to Mr Agresta that the Court was left with the overwhelming impression that he had come to Court today armed with the means to terminate Mr Balzola's retainer if he (Mr Agresta) perceived it to be tactically advantageous to Ms Randall's case for that to occur. 23Mr Agresta did not accept that. He informed me that there had been, as far as he was concerned, a number of issues between him, Ms Randall and Mr Balzola, where Mr Balzola had declined, for various reasons including lack of time, to take points or include matters which Mr Agresta and Ms Randall apparently wished him to include in the material he was preparing for today. Mr Agresta told me that it was really for that reason that he had been armed by Ms Randall with the means to terminate peremptorily Mr Balzola's retainer. 24For the purposes of this application I do not need to resolve why it was exactly that Mr Agresta was armed in the way he was by Ms Randall. Whatever the reason, the fact is that Mr Agresta came to Court today prepared, if he saw it as being necessary for whatever reason, to terminate Mr Balzola's retainer. 25If done, that was inevitably going to be disruptive to the orderly conclusion of these proceedings. That is what has occurred. The means by which Mr Agresta was armed in advance to terminate Mr Balzola's retainer and the fact that he (Mr Agresta) did do so, are further matters I take into account in the exercise of my discretion that no further indulgence should be extended to Ms Randall. 26It follows that I accept Mr Newton's ultimate submission that the hearing, part heard, should continue and, if possible, conclude as I had originally intended. That would involve dealing with Ms Randall's application to reopen her case and, if time permits, for Mr Newton to address me in support of the written submissions which he had prepared in accordance with the directions I made on 6 May 2014 at the conclusion of the second day of the hearing. 27I dismiss the notice of motion filed by Mr Balzola on behalf of Ms Randall in court today. I also dismiss Ms Randall's application, brought orally on her behalf by Mr Agresta, for the hearing of the proceedings to be adjourned.