Re Michael Patek v Lord Mayor, Councillors and Citizens of the City of Melbourne [1986] FCA 34 (20 February 1986)

FEDERAL COURT OF AUSTRALIA

Re: MICHAEL PATEK
And: LORD MAYOR, COUNCILLORS AND CITIZENS OF THE CITY OF MELBOURNE
No. VG148 of 1984
Judgment

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Jenkinson J.

CATCHWORDS

Judgment - setting aside - applicant failing to appear on trial - applicant's solicitor declining to act further - respondent's solicitor refusing to consent to adjournment - applicant allegedly suffering from stress - judgment pronounced for respondent - matters to be taken into account on motion to set aside judgment.

Trade Practices Act 1974 - ss. 52 and 53A

Grimshaw v. Dunbar (1953) 1 Q.B. 408 at 416

Evans v. Bartlam (1937) AC 473 at 480, 489

Rosing v. Ben Shemesh (1960) VR 173 at 176-177

HEARING

MELBOURNE
20:2:1986

DECISION

Motions to set aside judgments pronounced after trial of a proceeding and cross-claim.

2. The applicant failed to appear when the proceeding and cross-claim were called on for trial on 11 November 1985, on which day, after trial, judgment was pronounced for the respondent on the applicant's claims and judgment was pronounced that the respondent recover $33,867.67 on the cross-claim against the applicant. Notice of the motions to set aside those judgments was filed on 17 December 1985.

3. The respondent granted a lease of a shop in the City Square of Melbourne for 6 months expiring on 8 February 1984. The written lease was expressed to be to the applicant and Jeni Patek, but it was executed only by the applicant and the respondent. The applicant alleges that the grant of the lease was in performance of an agreement partly in writing (being the lease) partly oral and partly to be implied, and that the respondent failed in breach of terms of that agreement to undertake divers activities calculated to attract prospective customers to the vicinity of the leased shop. The applicant alleges in the alternative that his taking the demise was induced by misrepresentations of an officer of the respondent concerning conditions which did, or which would, prevail in the vicinity of the shop and concerning the activities which the respondent would undertake in that vicinity. The misrepresentations are alleged to have been made fraudulently and to have constituted breaches of s.52 and s.53A of the Trade Practices Act 1974. The relief claimed in this proceeding by the applicant includes "an order declaring" the lease "void ab initio", or alternatively an order reducing the rent and other monetary obligations imposed by provisions of the lease, as well as damages.

4. The cross-claim was for recovery of the rent of $6,000, of which less than $2,000 has been paid, possession of the shop, mesne profits and damages.

5. When the proceeding and cross-claim came on for trial before Pincus J. on 20 May 1985 the applicant sought an adjournment until a decision on his application for legal aid should be reached. The adjournment was granted upon the applicant's undertaking to the Court that he would give vacant posession of the shop to the respondent not later than 19 June 1985. The undertaking was honoured. On 6 September 1985 I fixed the trial for 11 November 1985 in the presence of the applicant and his counsel, making these observations:

".... What I propose is that I fix the

proceeding and cross-claim for hearing before
me on Monday, 11 November.

MR. NETTLE: If your Honour pleases.

HIS HONOUR: And that on the basis, Miss
Warren, that the proceeding will be heard
then, whatever the outcome or whatever has
happened in the meantime in relation to any
application for legal aid. If some
extraordinary circumstance which I cannot
foresee, and I gather you cannot foresee,
gives the applicant cause to think that he may
be able to persuade the court further to defer
the trial of the proceeding, it would be, in
my view at any rate, essential that any such
an application, designed to defer the hearing
beyond the 11th, should be made very promptly.
I mean, an attempt to have the matter further
adjourned when it is called on for hearing on
the 11th, I find the thought virtually
impossible to imagine the circumstances in
which that could succeed. I mean, if some
extraordinary thing does happen, it should be
made the subject of an application
immediately."

6. In early November 1985 the applicant learnt that his application for legal aid had been, after long consideration, granted, but he also learnt that the solicitors who had been acting for him declined to act further, and that other solicitors, whom he had hoped to engage, would not act for him. His request of the respondent's solicitors, Messieurs Mallesons, that they consent to an adjournment of the trial was refused on 7 November 1985. He deposed in an affidavit sworn in support of these motions that his doctor had within a week before 11 November 1985 advised him to "avoid all stressful situations if at all possible", and that he believed himself to be "suffering from stress". None of the legally qualified persons with whom he had been in communication shortly before 11 November 1985 had suggested that he should himself appear on that day in order to seek an adjournment, he swore. He feared that he would be ineffective before the Court and formed the view, as he deposed, "that no useful purpose could be served by me attending at Court without my case being prepared, without a file and without legal representation. I trusted and hoped that the matter would simply be adjourned in my absence, in line with the request I had sent to Mallesons". He did not think that a communication to the Court in writing would be effective, as he swore.

7. It is a question, as to which I have been able to form no confident conclusion, whether the applicant abstained from appearance before the Court on 11 November 1985, and from written communication to the Court, for reasons of the kind he gave, and while under the influence of the fears and the distress which he claimed were oppressing him, or whether he so abstained in effectuation of a plan to delay the final conclusion of the litigation in which he was engaged, and in which he had no hope of ultimate success, by suffering a judgment in his absence and by then instituting proceedings, of the kind now before me, to set the judgment aside. On balance I am persuaded to find that he did not abstain from appearance and from communication in the hope of achieving the delay of an expected ultimate defeat, but because he feared that he might do his case more harm by taking action than by taking no action on 11 November 1985. His decision was mistaken, but not one which was the product of bad faith, as I find.

8. In an affidavit filed in other proceedings, a copy of which the applicant has exhibited to his affidavit in support of the motions, he has verified in general terms the allegations upon which he relies in his proceeding and by way of defence to the cross-claim. Correspondence between the applicant and the officer of the respondent corporation to whom the misrepresentations and promises are imputed, upon which the applicant relies, was tendered in evidence. It is not easy to accommodate the applicant's case, as disclosed by his pleadings and his affidavit, to that correspondence. But the course of authority seems to be against allowing, on an application of this kind, much weight to what is necessarily an incomplete, impressionistic evaluation of the strength of the applicant's case and of his prospects of success at trial, if his application be granted: see Grimshaw v. Dunbar (1953) 1 QB 408 at 416; Evans v. Bartlam (1937) AC 473 at 480, 489; Rosing v. Ben Shemesh (1960) VR 173 at 176-177.

9. The respondent has once already incurred the costs of coming to trial. The evidence strongly suggests that the applicant will not be able to pay the costs of the respondent which will be rendered abortive if his motions be granted, unless he be successful in this litigation. To condition the grant of the orders now sought by the applicant upon payment by him of those costs would be to deny him relief.

10. The delay in instituting these motions was not unreasonable, unless it were a delay deliberately calculated to ensure that the motions would not be heard until February 1986. I have found that no such a calculated delay was made.

11. Upon a balance of the considerations for and against granting these motions I have concluded that I should order that the judgments pronounced and the order made by the Court on 11 November 1985 be set aside, that the costs of the respondent rendered abortive in consequence of the making of the aforesaid order and the costs of the respondent of the motions of which notice was filed on 17 December 1985 be paid by the applicant and that the proceeding and the cross-claim be placed in the list of cases for callover on 28 February 1986.