Millar v. Livingstone [1999] NSWSC 99
The adjournment was not granted because the defendant's asserted lack of awareness of the procedural directions was substantially, if not entirely, due to the failure of the defendant's solicitor to file an appearance, which appeared to be a deliberate decision; and counsel could not further conduct the matter...
Source-derived case information.
- Jurisdiction
- Australia
- Judgment Date
- 19 February 1999
- Procedural Posture
- Equity Division Proceedings / Adjournment Application After No Appearance Had Been Filed for the Defendant
- Outcome
- Adjournment not granted; Mr Harrison was excused from further conducting the matter for the defendant.
- Legal Topics
- ['appearance' 'adjournment' 'substituted Service' 'directions for Filing Evidence']
Source-derived case record
Summary, issues, holding and outcome
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Procedural Posture
Equity Division Proceedings / Adjournment Application After No Appearance Had Been Filed for the Defendant
Legal Issues
- 1 ['Whether an adjournment should be granted to the defendant to enable compliance with directions for filing evidence where no appearance had been filed on behalf of the defendant.' 'Whether counsel should be permitted to conduct proceedings for the defendant when no appearance had been filed and counsel had no instructions to undertake that an appearance would be filed.']
Ratio Decidendi
The adjournment was not granted because the defendant's asserted lack of awareness of the procedural directions was substantially, if not entirely, due to the failure of the defendant's solicitor to file an appearance, which appeared to be a deliberate decision; and counsel could not further conduct the matter without an appearance or instructions to undertake that an appearance would be filed.
Court Disposition
Adjournment not granted; Mr Harrison was excused from further conducting the matter for the defendant.
Orders
- ['Mr Harrison excused.']
Full Case Text
Judgment text and source record
12 paragraphs
New South Wales Supreme Court CITATION : Millar v. Livingstone [1999] NSWSC 99 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : 3906/98 HEARING DATE(S) : 19/02/99 JUDGMENT DATE : 19 February 1999
PARTIES : Ian Desmond Millar (P) Kenneth Livingstone (D) JUDGMENT OF : Master McLaughlin
COUNSEL : Mr. W. Haffenden (P) Mr. Harrison (D) SOLICITORS : Leys Law Firm (P) CATCHWORDS : DECISION :
SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
MASTER McLAUGHLIN
Friday, 19 February 1999
3906 of 1998 IAN DESMOND MILLAR -v- KENNETH LIVINGSTONE ESTATE OF THE LATE JILL PAMELA WARD
1 MASTER: When this matter was called on before me this morning Mr Haffenden of Counsel announced his appearance for the plaintiff and Mr Harrison of Counsel announced his appearance for the defendant. Mr Haffenden outlined the factual situation concerning the procedural history of the matter. He adverted to the fact that no appearance had been filed on behalf of the defendant and that in consequence there had already been made an order for substituted service of process upon the defendant and that it would probably be necessary for substituted service again to be sought. 2 Mr Haffenden stated that so far as he was aware the defendant was involved in criminal proceedings. 3 Mr Harrison, in response to a query from me, informed me that he was instructed by Mr T Walker, solicitor, of Forestville and that Mr Harrison did not dispute any of the factual matters which Mr Haffenden had outlined. 4 It would appear from what I have been informed by Mr Harrison that his instructing solicitor, Mr Walker, had first been retained by the defendant in October of last year. No explanation has been offered as to why Mr Harrison's instructing solicitor has not filed an appearance on behalf of the defendant. I infer from what I have been informed that the failure of the solicitor to file an appearance on behalf of the defendant is as a result of a deliberate decision in that regard by either the defendant himself or his solicitor or by both of them. 5 The omission to file an appearance does, of course, have consequences concerning the procedural progress of the matter. Mr Harrison, on behalf of the defendant, sought an adjournment. Essentially, that adjournment was to enable the defendant to comply with directions for the filing of evidence. It would appear, however, that the basis of the adjournment, being the unawareness of the defendant and his solicitors of the precise details of those procedural directions, is due substantially, if not entirely, to the failure of the solicitor for the defendant to file an appearance. 6 In those circumstances I am not disposed to grant an adjournment. 7 I understand that Mr Harrison's instructions are of a limited nature, being only to seek an adjournment this morning. But, in any event, I consider that, unless an appearance is filed on behalf of the defendant or unless Mr Harrison has instructions to give to the Court an undertaking that such an appearance will be filed, it is inappropriate that I should allow him to conduct the proceedings on behalf of the defendant. Mr Harrison does not have any instructions concerning giving an undertaking to file an appearance on behalf of the defendant. 8 Accordingly, I do not consider it appropriate to allow him further to conduct the matter on behalf of the defendant. Mr Harrison has asked that I should allow him to be excused. I propose to do that. Thank you Mr Harrison.
I certify that this and the preceding pages are a true copy of the reasons for judgment of Master McLaughlin
Dated: Friday, 19 February 1999 Associate Mark A. Provera
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