Balzola v Passas & Anor [2018] NSWSC 1948

Balzola v Passas & Anor [2018] NSWSC 1948

The adjournment was required because counsel for the defendants had an obvious conflict of interest and could appear for neither defendant, and it would be impossible for new counsel to take over the matter at no notice. The conflict and need for adjournment arose from late and unsatisfactory preparation, including the late emergence of numerous lay witnesses, so justice required that the defendants pay the plaintiff's costs thrown away by reason of the adjournment. However, payment forthwith was refused because it might stultify the defendants' ability to defend the proceeding. The history and late preparation justified the extraordinary direction that the defendants serve their witness...

Jurisdiction
Australia
Judgment Date
10 December 2018
Procedural Posture
Defamation Action Involving Slander / Procedural Ruling on Adjournment of Hearing Due to Conflict of Interest and Related Directions and Costs
Outcome
Hearing adjourned; directions made; defendants ordered to pay the plaintiff's costs thrown away by reason of the adjournment, but not forthwith.
Legal Topics
['slander' 'adjournment of Hearing' 'conflict of Interest of Counsel' 'competing Interests of Defendants' 'witness Statements' 'costs Thrown Away']
['defamation' 'civil Procedure' 'costs'] ['slander' 'adjournment of Hearing' 'conflict of Interest of Counsel' 'competing Interests of Defendants' 'witness Statements' 'costs Thrown Away']

Case Brief

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Procedural Posture

Defamation Action Involving Slander / Procedural Ruling on Adjournment of Hearing Due to Conflict of Interest and Related Directions and Costs

Legal Issues

  1. 1 ['Whether the hearing should be adjourned because counsel for the defendants had a conflict of interest arising from competing interests of the two defendants.' "Whether the defendants should pay the plaintiff's costs thrown away by reason of the adjournment." 'Whether those costs should be payable forthwith.' 'Whether directions should require the defendants to serve their witness statements before the plaintiff.']

Ratio Decidendi

The adjournment was required because counsel for the defendants had an obvious conflict of interest and could appear for neither defendant, and it would be impossible for new counsel to take over the matter at no notice. The conflict and need for adjournment arose from late and unsatisfactory preparation, including the late emergence of numerous lay witnesses, so justice required that the defendants pay the plaintiff's costs thrown away by reason of the adjournment. However, payment forthwith was refused because it might stultify the defendants' ability to defend the proceeding. The history and late preparation justified the extraordinary direction that the defendants serve their witness...

Court Disposition

Hearing adjourned; directions made; defendants ordered to pay the plaintiff's costs thrown away by reason of the adjournment, but not forthwith.

Orders

  • ['Adjourn the hearing of the action on the ground of conflict of interest on the part of counsel for the defendants.' 'List the matter before the Common Law case management Registrar at 9:00am on 11 December 2018 to fix a fresh hearing date with an estimate of one week.' "The defendants are to serve witness...