McKechnie v Gameson [2000] NTSC 4

[2]

The history of the litigation to March 1999 is set out in the reasons of the Master attached to these reasons. Justice Thomas rejected an appeal against the Master's decision refusing to dismiss the proceedings from want of prosecution on 8 June 1999.

[3]

On 20 September 1999, the Master certified the proceedings were ready for trial. The solicitor for the applicant wrote to him on 24 September at his postal address advising him of that step. The solicitor gave advice regarding the matter generally, including as to evidence, and rendered an account for costs to date and sought $5,000 on account of future costs. He warned the applicant that failure to pay might lead to him having no option than to cease to act on his behalf. The correspondence also records that prior to 4 November 1999 the applicant spoke to the solicitor and was advised the matter that had been listed for hearing and of those dates. Copies of earlier correspondence which the applicant claimed not to have received were forwarded to him at his postal address.

[4]

By letter of 9 December the solicitor again advised that failure to pay the account and estimated future costs would lead to the solicitor's ceasing to act. He did so by notice filed in Court on 4 February 2000.

[5]

The applicant seeks to have the trial dates, which he says he first learned about on 24 January, vacated so that he can raise the required funds. He says that until he is able to pay the account, his solicitor will retain his papers which, he says, he requires for the trial. He also says that he needs to contact his former wife to find out what she can say and secure her attendance. She is said to be in Italy.

[6]

As to costs, there is nothing but the vaguest information available as to whether, and if so, when, the applicant will be in a position to pay the account rendered and the amount which is sought on account. As to the second defendant, the applicant has known for a long time that she may be required. All he could say is that she is in Italy. There is nothing to suggest that if the trial is delayed on that account, he will be able to locate her, and if so, whether she will be able to give any evidence.

[7]

The applicant says that if the trial is not adjourned he will act on his own behalf.

[8]

Notwithstanding the delays which are attributable to the plaintiff, it is clear that he made his intention to proceed known to the applicant at a time when the applicant had sufficient opportunity to prepare for the hearing including obtaining funds for that purpose. In my opinion the plaintiff should not be delayed in prosecuting his claim because of the applicant's financial difficulties, nor because the applicant has not been able to locate his former wife. There has been ample time to do that.

[9]

The application to vacate the trial is refused.

[10]

When the proceedings were instituted the amount claimed did not fall within the jurisdictional limit of the Local Court. The proceedings have continued in this Court. The plaintiff opposes the transfer to the Local Court and no good reason has been given as to why the transfer should be ordered at this late stage. The plaintiff may be at risk on the question of costs, but that is a matter for him and to be considered in due course. The application to transfer the proceedings to the Local Court is refused.

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