Farrell v Super Retail Group Limited

1. The applicant's application for an adjournment of the hearing be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Delivered ex tempore, revised from the transcript)

LEE J: 1 On the morning of the third day of this hearing, the applicant, Ms Farrell, has made an application for an adjournment. 2 The application arises in an unusual way. 3 Yesterday, on 11 December 2024, an unredacted version of an email sent by Ms Jenee Smith, a solicitor of Harmers, to Mr Michael Harmer and Ms Emma Pritchard (among others) at 6:13pm on 6 May 2024 was marked as MFI-6 in the trial of Ms Farrell's specific performance suit (and the same document was received into evidence today on the adjournment application (Ex A1)). 4 The email contains a file note prepared by Ms Smith, which records a conference call between various solicitors and senior and junior counsel acting for Ms Farrell and Ms Berczelly. 5 Exhibit A1 was originally discovered in redacted form because there was a claim for legal professional privilege over parts of the document. During the trial, it was recognised on behalf of those acting for Ms Farrell that there had been a loss of privilege in respect of some of the redactions, and the view then taken was that it would be appropriate, in all the circumstances, for there to be an express waiver of all claims for legal professional privilege in the document (or more relevantly, because we are dealing with the adduction of evidence, all claims of client legal privilege within the meaning of Pt 3.10, Div 1 of the Evidence Act 1995 (Cth)). 6 Exhibit A1 reveals several representations made by both senior and junior counsel for Ms Farrell. Relevantly for the purposes of this application, the respondents intend to refer in closing submissions to representations made by senior counsel for Ms Farrell for the purposes of assessing aspects of Mr Harmer's oral evidence; specifically his assertion that he had received instructions to accept what he regarded as a "final offer" from those acting on behalf of Super Retail Group Limited (SRG) on 5 May 2024 to settle the substantive dispute, which offer was purportedly capable of acceptance during the time of the meeting recorded in Ex A1. 7 Ordinarily, of course, the kind of subjective musings recorded in Ex A1 would not be relevant to the construction of any agreement. With that said, we are dealing here with the issue of whether an agreement was formed in the first place which, on Ms Farrell's case, occurred immediately after the meeting the subject of Ms Smith's file note. It is regarded by senior counsel for SRG as an "important" record of communications relevant to the specific performance suit. 8 When this matter was raised, senior counsel for Ms Farrell, Mr Prince SC (who also acts for the sixth respondent, Ms Berczelly), considered his position. After considering the matter closely, and after receiving appropriate advice, Mr Prince has determined that it is inappropriate that he continue to act for Ms Farrell in relation to the specific performance suit. This is the genesis of the adjournment application, because having felt it was necessary to withdraw, Mr Prince is naturally concerned to avoid any prejudice being occasioned to Ms Farrell and Ms Berczelly and wishes the trial to be adjourned for an unspecified period so that alternative senior counsel can be retained. 9 I am acutely conscious of Mr Prince's position and accept unquestionably that he has conscientiously formed the view, in accordance with his ethical obligations, that he should adopt this course. When this issue first arose, I indicated to Mr Prince that insofar as the administration of justice is concerned, I did not foresee any difficulty with him continuing to act, but leaving any relevant aspect of the final submissions to be made by one of his two junior counsel briefed in the matter (who were also involved in the preparation of comprehensive and helpful written submissions prior to the commencement of the trial). With that said, I would not impose my view as to this matter on senior counsel who obviously must take the course consistent with his properly formed conscience. 10 The difficulties in acceding to the adjournment application, in my view, are as follows. 11 First, the balance of the trial is now relatively limited in scope. Counsel for the SRG parties and the fourth respondent have indicated that they do not propose to call any witnesses, and that the entirety of their case will be limited to the tender of documents, which have already been marked for identification. Accordingly, it is unnecessary for one of the two juniors acting for Ms Farrell to face the unenviable position of having to cross-examine a witness at short notice in circumstances where they were not expecting to have to undertake such a task. 12 Junior counsel are not the stage-equivalent of walking shadows. Mr Moorhouse and Ms Wong, the juniors acting for Ms Farrell, have been involved in the entirety of this matter: they have prepared extensive written submissions; have familiarity with the issues; and have had the benefit of seeing the evidence unfold over the past two days. There is no reason why it would not be possible for junior counsel to step into the breach, even if their leader has determined that he can no longer act. 13 Secondly, this is hard-fought litigation. It would be highly regrettable from the perspective of all parties if there was an adjournment, remembering that if Ms Farrell is successful on the specific performance suit, the entire controversy will be quelled, or alternatively, if Ms Farrell is unsuccessful, then the substantive dispute will be set down for hearing as soon as reasonably practicable. In this regard, I should note that none of the difficulties that have arisen here would prevent Mr Prince from appearing at the hearing of the substantive dispute. 14 Thirdly, and relatedly, apart from the desirability of both parties having certainty as soon as possible, the realities of my diary are such that I am currently unable to list a new matter next year without, in effect, displacing other commitments. I am confident that I would be able to hear the substantive case if it was necessary to do so in 2025, but that would necessarily involve either the settlement of a case or moving around other proceedings in my docket, which do not have a similar degree of urgency. If it was necessary to defer the resolution of the specific performance case until well into next year, then there is a not insubstantial prospect that any underlying substantive dispute could not be resolved until well into 2026 (given I have already listed one lengthy matter in the beginning of that year). Delay of this type would cause substantial prejudice to the respondents and likely result in increased costs. 15 Fourthly, I am prepared to make whatever allowances are fair and practicable to reflect the fact that senior counsel for Ms Farrell has withdrawn from the specific performance suit, conscious of the fact that junior counsel for Ms Farrell, as noted above, have familiarity with the matter and at least one of the juniors, Mr Moorhouse, has considerable seniority as a practitioner. Although I am alive to the difficulties that arise by reason of this late development, and although I am highly sympathetic to the position in which Mr Prince finds himself, it would not be fair to defer the resolution of the specific performance suit in the light of the stage that the hearing has reached and the consequences that would flow from granting an adjournment. 16 Fifthly, without assigning blame, I am far from satisfied that this is a "bolt from the blue". Given the centrality of the communications between the lawyers in this case and the communication of the purported acceptance of the "final offer" (referred to above (at [6])) to the specific performance suit, it was not farfetched to think that issues relating to loss of client legal privilege may well arise in some form, particularly when SRG had asserted it was inappropriate for the former solicitors to act because, among other things, their advice would be the subject of close scrutiny: see Farrell v Super Retail Group Limited (Cross-claim) [2024] FCA 1189. 17 Having regard to my statutory obligation to facilitate the overarching purpose in Pt VB of the Federal Court of Australia Act 1976 (Cth), this is a case in which the appropriate exercise of the discretion strongly, indeed overwhelmingly, favours refusing the adjournment application. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Lee.