Kochergen, Jacob Jack & Anor v Bell, Geoffrey York & Ors Bell, Geoffrey York & Ors v Kochergen, Jacob Jack & Ors [1998] FCA 1203

Kochergen, Jacob Jack & Anor v Bell, Geoffrey York & Ors Bell, Geoffrey York & Ors v Kochergen, Jacob Jack & Ors [1998] FCA 1203

The trial date was vacated because the first two respondents' new solicitors, having only obtained access to extensive material on 8 September 1998 after former solicitors ceased acting, could not fairly be expected to complete the steps necessary to prepare for a fair trial by the fixed hearing date. The applicants' prejudice was general and could be accommodated by costs, and other unresolved interlocutory matters also supported vacating the trial dates.

Jurisdiction
Australia
Judgment Date
16 September 1998
Procedural Posture
Notice of Motion to Vacate Hearing Dates Fixed for Trial / Pre Trial Interlocutory Application
Outcome
The first and second respondents' notice of motion was granted in part; the trial date was vacated and costs were ordered against the first and second respondents.
Legal Topics
['vacation of Trial Dates' 'adjournment' 'preparation for Trial' 'fair Trial' 'costs Thrown Away' 'security for Costs' 'amendment of Defence' 'cross Claim']
['civil Procedure'] ['vacation of Trial Dates' 'adjournment' 'preparation for Trial' 'fair Trial' 'costs Thrown Away' 'security for Costs' 'amendment of Defence' 'cross Claim']

Case Brief

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Procedural Posture

Notice of Motion to Vacate Hearing Dates Fixed for Trial / Pre Trial Interlocutory Application

Legal Issues

  1. 1 ['Whether the hearing dates fixed for the trial should be vacated shortly before trial.' 'Whether insurance difficulties between certain respondents and their insurer justified vacating the trial dates.' "Whether the first two respondents' change of solicitors and the new solicitors' inability to prepare in time made it unfair to proceed to trial." 'Whether prejudice to the applicants could be accommodated by costs.' 'Whether unresolved motions to amend defences and make a cross-claim supported vacating the trial dates.']

Ratio Decidendi

The trial date was vacated because the first two respondents' new solicitors, having only obtained access to extensive material on 8 September 1998 after former solicitors ceased acting, could not fairly be expected to complete the steps necessary to prepare for a fair trial by the fixed hearing date. The applicants' prejudice was general and could be accommodated by costs, and other unresolved interlocutory matters also supported vacating the trial dates.

Court Disposition

The first and second respondents' notice of motion was granted in part; the trial date was vacated and costs were ordered against the first and second respondents.

Orders

  • ['Trial date vacated.' 'First and second respondents pay to the applicants their costs of and incidental to the notice of motion to date, and their costs thrown away by reason of the vacation of the trial date.' 'Adjourn for further consideration par 2 of that notice of motion.']