Plaintiff/Respondent v Defendant/Applicant

Supreme Court of Victoria|2008-02-05|Before: BYRNE J

1 Before the court is an application by the defendant, David Burmingham, a self-represented defendant, to vacate the trial date which has been fixed for trial this day, 5 February. This is in fact the third trial date that this proceeding has been given.

2 The claim is a claim brought by the plaintiff, a firm of solicitors, seeking its fees. The defendant resists this claim relying on the terms of the fees agreement between the solicitor and himself, and arguing in various ways that its entitlement under that agreement has not occurred. Mr Burmingham also raises a number of complaints about the conduct of the solicitor in its professional work which was in relation to his claim against an insurance company for its failure to honour the terms of the policy. The defence of Mr Burmingham, which is dated 21 November 2005, runs to 94 pages. So there are a number of matters raised which require consideration at trial.

3 The present trial date was fixed in May of last year, so that the parties have had some eight months' notice that this was to be the trial date.

4 The history of this proceeding is worth recording. The relationship of solicitor/client between the parties was terminated in May or June of 2003 before the litigation against the insurance company was completed. In December or so of 2003, as Mr Burmingham told me, he achieved settlement when unrepresented, that is, a settlement with the insurance company under which he received an all-in sum of $1 million. Following the break-up of the relationship between the parties, the solicitor delivered its bill in taxable form in June 2003 for a sum of a little less than $138,000. Following the settlement with AXA, the solicitor rendered a second bill dated 18 December 2003 for a 25 per cent uplift of its fees under the terms of the fees agreement. It also seeks interest. The precise sums are of no immediate consequence, but it is a claim for something of the order of less than $200,000. What happened, it seems, was that following settlement a sum of $200,000 was put aside to cover the possibility that the solicitor might obtain an order for payment of that amount, or it might agree with the client for payment of that sum.

5 The present writ was issued on 22 December 2004. The milestones that have then followed may be briefly summarised: On 25 May 2005 a conditional appearance was entered. On 8 July 2005 the statement of claim was very substantially amended, and that represents the current statement of claim. The defence, as I have mentioned, is dated 21 November 2005, and the trial date was fixed to commence on 25 September 2006. This trial date was vacated following a non-compliance by the solicitor with the directions which the Listing Master had given for the purposes of the trial, and a fresh trial was subsequently fixed for 24 May 2007.

6 What has happened since at least the first trial date, and possibly the second, has been that the solicitor, in response to the Master's direction that they file a list of the documents which it intends to tender in evidence, included the whole of the litigation file relating to the action against the insurance company. I have been told variously that this is 12 volumes or 14 volumes. In any event, there are a substantial number of pages involved.

7 The solicitor's file documents were first disclosed in the list of February 2007, so the defendant has had the list for some 12 months. Inspection of the documents themselves has been rather more difficult. This has been a function principally, it would seem, of the number of the documents and the fact that the defendant lives in Queensland and the plaintiff's documents are in Melbourne. In any event, the documents were finally made available some time in June of 2007, and by that stage the trial date of May 2007 had been vacated. Following May 2007, a reply was delivered on 9 August 2007 and, as I have mentioned, this, the third trial date, is 5 February 2008.

8 On various occasions since May of 2007, Mr Burmingham has sought to extend the times fixed by the Master or to vacate the trial date on the basis principally of the difficulties of his reviewing the documents which have been ultimately made available. It is fair to say that the number of documents which were made available are apparently substantial. Although I have not seen the files myself, and some of them are in a form which might be difficult for a layman to understand as they are essentially solicitors' documentation, very often in shorthand, and perhaps in some cases in writing that is difficult to follow. Mr Burmingham, although he is a qualified accountant, I understand, is not a solicitor, and by reason of his disabilities, both physical and it would seem psychological, has had considerable difficulty in reviewing the documents. He says that he has even now not completed his review of the documents.

9 The matter has been the subject of on-going communication with the court with applications relating to the form of the documents for inspection, vacation of the trial date, and other matters, on numerous occasions since May 2007, culminating in Mr Burmingham's approach to the Listing Master in December of 2008 relating to his readiness for trial.

10 Now, Mr Burmingham says that he is not ready for trial and, further, that he may not be ready for trial for some considerable time. He gives some eight reasons why he is not ready for trial, and it is sufficient that I list them now. First, he said, for reasons which I have briefly outlined, he has been unable to review the files and so he is not able to know what they contain and what their relevance might be to his claims against the solicitor. Second, he says that he has sought, as yet without success, to obtain legal representation, although he still entertains the hope that he will be able to overcome these difficulties. Third, he says that he is required to provide a list of documents which he intends to tender, and he has been unable to prepare that list and that will take a little time, possibly even after he has completed his review of the file. Fourth, a number of the documents which have been made available to him to be tendered are said to be relevant to his credit. This he finds a little difficult to understand and he says that he needs to explore what the significance of this is so that he can meet the challenge to his credit. Fifth, he spoke about the prospect that his defence, which is now two years and three or four months old, might need to be reviewed and amended, and with the possibility that a counterclaim might be brought against the solicitors. Sixth, he said that he wishes to obtain and review documents from non-parties. He gave as an example the file of the solicitors for the insurance company which might disclose further matters which he would raise or which he would develop in his defence. Seventh, he says that he has to decide what witnesses he wishes to call at trial, and this also depends upon the completion of these earlier activities. And finally, and this underlies a good deal of what he has said, is that he suffers from medical problems which are documented in the reports attached to his affidavit of 4 February. Notably, and perhaps most recently, is the report of Dr Gary Martin from Arundel in Queensland.

11 Now, I will not go through Dr Martin's report, which is dated 16 December 2007, and which is the latest of a series of reports by that doctor and others, showing that Mr Burmingham is suffering from a number of physical and other matters, which have made it difficult for him to concentrate and difficult for him to review anything more than a trifling number of documents per day, and even on that basis with intervals for rest.

12 During the course of the hearing Mr Burmingham expanded on these matters at some considerable length, and I heard the difficulties with which he is contending. I have suggested to him that he consult with the court's litigants in-person coordinator, and further that whatever he does he needs urgent assistance both of a legal and possibly of a non-legal kind to enable him to digest the documents which he is confronting.

13 It has been apparent from what he has said that he has an imperfect understanding of the relevance of the material that he is looking at, and I fear that any time at all that is given to him is not going to cure that disability. The consequence of all this is, and it is not seriously contested by the plaintiff, that it would be appropriate that the trial date be vacated, and I will do so.

14 The next question is to what date the trial should be referred. I have indicated that I am available during the week beginning 3 March to deal with this matter, a date which counsel for the solicitor has embraced. Mr Burmingham for his part said that that date, which is four weeks away, is an inadequate time for him to do all the many things which remain to be done to get ready for trial, and that he thinks that six months would be more reasonable, and even then he could not guarantee that the very considerable work ahead of him will be completed.

15 He mentioned to me that on the previous occasions when the trial date was vacated, a generous deferred date was given. The first of these orders was certainly due to the default of the solicitor. As to the second, it may be a little less certain whose fault it might be, if anyone's fault it is. In each case the adjournment was for six months or more. He said that what is sauce for that goose should be sauce for him as the gander. That, however, overlooks one aspect: trial dates were settled on those occasions because of the commitments of the court. It is not, therefore, simply a question of picking any date, but the next date on which a case of this kind can be heard given the other work which the court has to deal with. So it is not a question of saying tit for tat, it is a question of what is reasonable. I bear in mind that this case has already had over three years of its progress, and that there have already been three trial dates fixed. Insofar as the main problem seems to be the digestion of the documents produced from the solicitor's file, it is correct to say that Mr Burmingham has had that file identified 12 months ago, and certainly has had something in the order of six months to read its contents.

16 Even making allowances for his infirmities, it seems to me that to say that it requires 12 months, that is, six months which have elapsed, plus a further six months, to digest documents, even 5,000 or whatever the number of documents which are contained in 14 lever arch folders, is quite ridiculous. The court cannot simply sit around and wait the convenience of the parties, recognising of course that our fundamental objective is to achieve a just and fair result between the parties. The parties themselves must accept responsibility for bringing the litigation promptly to trial.

17 In all the circumstances, it seems to me that including the time which has elapsed, and what has and has not been achieved within that time, that I should adjourn the trial date to the March date that I have mentioned, and I will do so. I will therefore vacate the present trial date and refix the case for trial before me on 3 March 2008.

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties