Plaintiff v Defendant

1 This is an application for the adjournment of a personal injury jury trial due to the inability of the plaintiff's solicitors, The Firm Law Group, to retain counsel for the trial. The adjournment was sought on what should have been the second day of the trial.

2 Given the urgency of the matter, the following reasons were provided ex tempore, and in brief compass, explain why the adjournment was refused.

3 In this proceeding, the plaintiff seeks damages against four defendants for an injury that he suffered during the course of his employment on 8 March 2017.

5 The proceeding was initially fixed for trial on 17 March 2025.

6 On 31 January 2025, the plaintiff sought and obtained an adjournment of the trial, and the proceeding was refixed for 28 July 2025.

7 On 30 June 2025, the proceeding was adjourned again, so as to allow the plaintiff to join a fifth defendant to the proceeding.[1]

8 On 2 August 2025 the proceeding was refixed for 8 December 2025. By consent, the parties sought an adjournment of that trial date as it was agreed the trial may not conclude prior to Christmas. The matter was relisted for 9 February 2026, as a jury trial, on an estimate of 10-15 days. Due to the unavailability of a judge to hear the case on that day, the proceeding remained in the Court's 'rolling list', and the proceeding was not able to commence until 11 February 2026.

9 At the commencement of the trial, three of the four defendants were each represented by counsel.[2] The plaintiff's solicitor informed the Court that he had been unable to brief counsel to appear in the trial. Accordingly, the trial was unable to proceed on that day. I adjourned the proceeding to the following day, to enable the plaintiff's solicitor additional time to retain counsel to appear for the plaintiff at trial. In doing so, I reserved the defendants' costs thrown away by reason of the inability to commence the trial that day.

10 The plaintiff's solicitors subsequently filed a summons seeking an adjournment of the trial date. This summons was returnable before me, on what should have been the second day of the trial. In support of the summons, the plaintiff's solicitors filed an affidavit of Mr James Chrara, dated 11 February 2026.

11 This affidavit outlined matters pertaining to two distinct grounds for the adjournment of the trial:

(i) the plaintiff's solicitors had been unable to retain counsel for the trial; and

(ii) the plaintiff resided in an area which was presently subject to a grassfire in the Clarkfield/Wildwood area, and he was intending to return to his home, to be with his pet.

12 Fortunately, at the time I heard the adjournment application, the VicEmergency website, as at 9:54 am, stated the current advice level was 'stay informed', as the grass fire was now under control. Whilst I accept the plaintiff is presently sleep deprived from the understandable worry concerning this situation, the current advice is such that I am not satisfied this grass fire is a basis to adjourn the trial until next month, or beyond.

13 The plaintiff's solicitor relied upon detailed written submissions he provided to my chambers in support of the adjournment application. Those submissions outlined the relevant sections of the Civil Procedure Act 2010 (CPA), and in particular ss 7, 8, 9(1)(a), 9(1)(c), 9(1)(d), 9(1)(g), 9(1)(e), 9(1)f), 9(2)f, 9(2)(h) and 16-26, and several authorities in which these sections have been considered.[3] I was also referred to several decisions which outlined principles of natural justice and procedural fairness.[4]

14 The plaintiff's solicitor sought for the trial to be listed on 2 March 2026, or a date thereafter at the convenience of the Court.

15 The plaintiff's solicitor described his current predicament as exceptional. It was submitted the plaintiff would be denied a fair trial if he was not able to retain counsel. It was contended that the adjournment of the trial was to be preferred to the alternatives: a potential miscarriage of justice or protracted interlocutory appeal that would far outweigh any delay.

16 Counsel for the first defendant contested this being an exceptional circumstance - noting that briefs are often handed back last minute when counsel get 'jammed'. It was observed there are approximately 2,300 counsel in Victoria. The defendants each emphasised they were ready to proceed, and if the case was to be adjourned, they would seek costs thrown away by reason of the adjournment. Further, it was indicated to me that defendant counsel would have difficulty with a new trial date of 2 March 2026, and if it was to be relisted, there would be additional costs associated with needing to brief new counsel.

17 Mr Chrara's affidavit named eight barristers who had declined to accept the brief.

18 Yesterday, Mr Haddad of counsel, who is one of the barristers who had returned the brief in this matter, stated from the bar table:

The only counsel, as I understand it, who is able to take the matter on or has agreed to take it on on a no-win no-fee basis are Mr Ingram and I but we don't have the capacity to do it, which is why there is no counsel.

19 Before providing reasons for my determination of this adjournment application, at the outset, I observe that until a trial is concluded, a trial judge should not be appraised of arrangements as to the payment of counsel's fees, and who has refused to accept the brief.

20 In considering this application, I am required to give effect to the overarching purpose of the CPA: 'to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.'[5] In doing so, I have had particular regard to the efficient conduct of the business of the court,[6] and the efficient use of judicial and administrative resources.[7] I have also had regard to there being approximately 3,000 proceedings in this Court's four personal injury lists,[8] with those cases requiring trial allocations.

21 My determination of this application involves a balancing exercise between case management considerations, and the dictates of a fair trial.

22 A solicitor on the record, has a duty to both the Court and their client to ensure the case is ready for trial on the allocated commencement day. This includes ensuring counsel is briefed. If counsel previously retained is unable to appear at the trial and returns the brief, the solicitor is expected to brief alternative counsel. Such long standing expectations are uncontroversial, and consistent with a solicitor's overarching obligations under the CPA.

23 Having been a solicitor with over 20 years' experience, I appreciate the difficult situation the plaintiff's solicitor is currently in. It is not exceptional. It happened to me many times, and I have no doubt, still happens to solicitors on a frequent basis. Litigation and trial estimates are difficult to predict. Sometimes counsel who have been involved in a proceeding prior to issue, are detained in another trial, and need to return the brief. However, any sympathy I may have for the plaintiff's solicitor's present predicament, is not a basis to adjourn this trial until a later date when counsel willing to act in the matter are available to appear. It may be the plaintiff's solicitor needs to contemplate alternative terms upon which he is to brief counsel, or he may need to discuss with the plaintiff the viability of running the plaintiff's claim to trial, noting its estimate of 10-15 days. These are not matters which the Court should be involved in.

24 An entitlement to a fair trial does not mean getting a trial date which suits specific counsel. If the Court was to grant the adjournment on the basis sought, it could inadvertently have flow on effects in other proceedings, as it may invite further adjournment applications when counsel are not available on a given trial date. This would also undermine some of the objects of the CPA, including the efficient conduct of the business of the Court, the efficient use of judicial and administrative resources, and the timely determination of civil proceedings.

25 For those reasons, I will refuse the adjournment, save that I will not require the trial to commence until the morning of 16 February 2026. That will give 3 and a half days for new counsel to be retained, with sufficient time to prepare for what I accept will be a complex trial. That also provides some short reprieve for the plaintiff who can now return to his home and be reunited with his dog.

26 I will reserve the defendant's costs of 11, 12 and 13 February 2026.

[1] On 14 November 2025, the proceeding against the fifth defendant was dismissed.

[2] The third defendant is not represented.

[3] Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Eaton v ISS Catering Services Pty Ltd [2013] VSCA 361; (2013) 42 VR 635.

[4] Mercieca v SPI Electricity Pty Ltd (No 3) [2012] VSC 6; Austin v Dwyer [2023] VSCA 227; Austin v Dwyer [2018] VSC 770; MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512, 523; Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; Werden v Legal Services Board [2012] VSCA 278; (2012) 36 VR 637, [53]; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; Dawn v Carlisle Homes Pty Ltd [2025] VSCA 58.

[5] Civil Procedure Act 2010 (Vic) s 7.

[6] Ibid s 9(1)(c).

[7] Ibid s 9(1)(d).

[8] Personal Injuries List, Institutional Liability List, Dust Disease List, and the Circuit List.