Day v Day

[2000] NSWSC 278

CITATION:	Day v Day [2000] NSWSC 278
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 103660/96
HEARING DATE(S):	04/04/2000
JUDGMENT DATE:	4 April 2000
PARTIES :	Zilla Bessie Day (P) Christopher Norman Robert Day (D1) Helen Patricia Day (D2) Lucille Thredgold (D3)
JUDGMENT OF:	Young J

COUNSEL :	M Spartalis (P) A R Lakeman (D1 & 2) N L McCaffery (D3)
SOLICITORS:	Bede D Hickey (P) David Roe (D1 & 2) Crichton-Brownes (D3)
CATCHWORDS:	Procedure [110]- Trial- Case "virtually settled" days in advance- Duty to notify court. Procedure [551] Costs- Costs against solicitors and counsel where court time wasted
LEGISLATION CITED:	Supreme Court Act, s 76C
DECISION:

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

TUESDAY 4 APRIL 2000

103660/96 - ZILLA BESSIE DAY v CHRISTOPHER DAY & ORS

JUDGMENT (On application for adjournment)

1    HIS HONOUR: The proceedings today were set down for a four day hearing. There was a pre-trial directions hearing on 17 February 2000 when directions were made that bundles of documents be left with my Associate by 31 March 2000 for the hearing today.

2    The court listed the matter for a settlement conference on 15 March 2000 because there were great problems in getting everybody who might be involved in a possible settlement to the bargaining table. That direction did have some effect and the Registrar in Probate mediated discussions. At the end of his mediation session it appears that the parties got close to an agreement in principle. That was over a week ago. However, nothing was signed and no bundles of documents prepared. This morning all counsel appeared, three of whom say the matter is settled and the fourth says he cannot get instructions because counsel normally briefed has gone on holidays and the solicitor has had insufficient time to think about the matter.

3    As a result of all this, four days of the court’s time have been wasted in which other matters could be taken.

4 Especially since the Bar Rules were amended at the beginning of March, the court will almost as a matter of course, now make orders for costs against barristers who are involved in wasting the court's time. Unfortunately, there is no statutory duty yet in the solicitors' profession. However, the law still is as set out in the Supreme Court Rules, practice note 76C. The solicitor's duty to the court includes ensuring the proceedings are conducted efficiently and expeditiously. The conduct of solicitors which leads to costs being wasted or unnecessarily incurred or the court's time being wasted will almost as a matter of course result in compensatory orders against the solicitor responsible.

5 I would make an order under 76C of the Supreme Court Act in respect of the solicitor who has not had time to get ready for today were it not for the fact he does not appear to be on the record, and appears to be acting for an infant who is not even a party to the proceedings.

6    In case there is any misapprehension I should restate the guidelines known by all experienced counsel and what the court expects so far as the Equity (including Probate List) Division is concerned:-

1. If a case appears to be close to settlement one must not stop work on preparation. If a brief on hearing has been delivered, counsel is entitled to his or her fee. The court expects that the preparation work included in that fee will not cease even if there are high prospects of settlement.

2. It is reasonable not to incur further disbursements or photocopying charges if a case appears close to settlement. However once time becomes too short to prepare properly for the hearing, the Associate must be advised and, if required, the matter mentioned in court.

3. The Associate must be told as early as possible of all cases in the “virtually settled” category. The Associate will not inform the Judge of such information if requested not to do so.

4. Where no party wishes to proceed in view of advanced settlement discussions, the court must be informed at least three clear days in advance. (Three clear days is the minimum time to call on a matter from the Short Notice List).

7    I should note that I do not assume that any of the counsel appearing today were necessarily at fault.

8    I will accordingly reserve my final thoughts until the matter comes back before me on Friday, 7 April 2000, but I think I have made my general position clear.

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Last Modified: 09/25/2000