FEDERAL COURT OF AUSTRALIA

Spalla v St George Motor Finance Ltd (No 7) [2006] FCA 1671

PRACTICE AND PROCEDURE – adjournment – trial – late production of documents by third party under subpoena – late engagement of new representation by applicant – prejudice to respondents – adjournment refused  

ANTHONY PATRICK SPALLA, ANDREW DAVID BENTLEY STILL AND IRLMOND PTY LTD (RECEIVER & MANAGERS) (ACN 066 314 870) v ST GEORGE MOTOR FINANCE LTD (ACN 007 656 555), ST GEORGE WHOLESALE FINANCE PTY LTD (ACN 001 834 886), ANDREW WILLIAM BECK, ANDREW STEWART HOME, DELOITTE TOUCHE TOHMATSU LTD ACN 092 223 240, AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION, SIMON WALLACE SMITH AND ST GEORGE MOTOR WHOLESALE PTY LTD

VID3203 OF 2002

FRENCH  J

29 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The motion filed 24 November 2006 is dismissed.

2.                  The First and Second Applicants pay the costs of the motion. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

RULING ON APPLICATION TO VACATE TRIAL DATES

1                     The matter is not easy.   The trial of this action is set down for five days commencing 4 December 2006.  The application for the adjournment arises in part by reason of external difficulties related to the timing of the production of certain documents, said to be relevant to the application, pursuant to the issue of a subpoena directed to the applicant’s former solicitors.  It is, however, also undoubtedly the case that the recent engagement of new solicitors has had a role to play in generating those difficulties.

2                     These proceedings have been on foot for a very long time and the trial dates have been fixed since June of this year.  It was always going to be difficult because for a part of that time at least Mr Spalla was representing himself in Court and obviously taking a part of the burden of the preparation, if not the entire preparation, on his own shoulders.

3                     While I sympathise with the position in which he and his advisers find themselves, I am also of the view that whilst their position is, as stated in the affidavit evidence of the solicitor, Mr Still, difficult it is not impossible.  The prejudice to the individual respondents by the further deferral of this long awaited trial is apparent from the affidavits which they have filed and which refer to the strain and the ongoing difficulty it creates in their current employment.  Whilst it might be possible to schedule a date in February that is not a straightforward exercise having regard to my present commitments and I begin a six to eight week trial in the second week of March.

4                     In the circumstances, I regret that whilst it is an unsatisfactory balance of interests judgement from some points of view, I feel obliged to refuse the adjournment, that is to say, to refuse the motion to vacate the trial date.  The motion filed 24 November 2006 will be dismissed with costs.

Associate:

Dated:         4 December 2006