Greenhalgh, Edward Rex & Anor v D'Emilio, Vincent & Anor [1997] FCA 1261

Greenhalgh, Edward Rex & Anor v D'Emilio, Vincent & Anor [1997] FCA 1261

The application to vacate the trial dates was dismissed because the respondents had previously indicated the matter was ready for trial, the asserted solicitor's lien could be addressed by subpoena, there was no real likelihood on the material that their financial position would be different in six months, the issues were essentially factual and long known, and the Court was not persuaded that the respondents could not adequately represent themselves or should be allowed to resile from the position taken when the matter was set down.

Jurisdiction
Australia
Judgment Date
11 November 1997
Procedural Posture
Civil Proceeding by Application and Statement of Claim / Respondents' Application to Vacate Trial Dates; Applicants' Notice of Motion for Interim Restraints
Outcome
The respondents' application to vacate the trial dates was dismissed; the trial was to proceed on 24 November 1997; interim restraints were ordered on the applicants' notice of motion.
Legal Topics
['vacating Trial Dates' 'adjournment' 'self Represented Litigants' 'interim Restraint on Dealing With Assets' 'costs Reserved']
['civil Procedure'] ['vacating Trial Dates' 'adjournment' 'self Represented Litigants' 'interim Restraint on Dealing With Assets' 'costs Reserved']

Case Brief

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Procedural Posture

Civil Proceeding by Application and Statement of Claim / Respondents' Application to Vacate Trial Dates; Applicants' Notice of Motion for Interim Restraints

Legal Issues

  1. 1 ['Whether the trial dates commencing 24 November 1997 should be vacated because the respondents wished to obtain legal representation but said they could not presently afford it.' "Whether a former solicitor's lien over documents required at trial justified vacating the trial dates." 'Whether the respondents should be restrained from dealing with specified assets until further order.']

Ratio Decidendi

The application to vacate the trial dates was dismissed because the respondents had previously indicated the matter was ready for trial, the asserted solicitor's lien could be addressed by subpoena, there was no real likelihood on the material that their financial position would be different in six months, the issues were essentially factual and long known, and the Court was not persuaded that the respondents could not adequately represent themselves or should be allowed to resile from the position taken when the matter was set down.

Court Disposition

The respondents' application to vacate the trial dates was dismissed; the trial was to proceed on 24 November 1997; interim restraints were ordered on the applicants' notice of motion.

Orders

  • ['The application is dismissed.' 'Costs of this application are reserved.' 'Until further order, the respondents and each of them whether by themselves, their servants, agents or otherwise howsoever be restrained from removing from the jurisdiction, disposing of, mortgaging, assigning, charging, in any way...