Case: Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416
Outcome: referred to
When the trial began on Monday, 14 March 2006, junior counsel for Mr Spalla announced an appearance with senior counsel, stating that senior counsel was unwell. I subsequently refused an application for an adjournment. In my judgment of 18 April 2006 (see Spalla v St George Wholesale Finance Pty Ltd [2006] FCA 416 at [11] ) which rejected Mr Spalla's bias application, I said: "Mr Spalla first raised the issue of my decision to continue with the hearing despite the illness of his senior counsel. As the respondents noted, this was a qualified decision. After a colloquy with the applicant's junior counsel (who has apparently over ten year's experience at the bar) I ruled that the hearing should continue in order that the applicant might present his evidence in chief notwithstanding the absence of senior counsel. The applicant's counsel apparently conceded that he could cope with the presentation of evidence in chief although not cross-examination. I ruled that I would adjourn the hearing, if needs be, to allow the applicant the benefit of senior counsel in the cross-examination of the respondents' witnesses. A date was nominated, which was available to the Court, and, on the information before me at that time, gave the applicant a sufficient opportunity to order his affairs. The respondents opposed any adjournment. My decision favoured neither party. It was a straightforward example of case management, which took account of the interests of all parties, as well as broader interests in the timely progression of cases in order that other litigants might also be heard. Decisions such as these are routine and are not proper bases for disqualifying the trial judge." As I said on this earlier occasion, the Court owed a duty to both Mr Spalla and the respondents to ensure that the trial was conducted fairly and in as timely a fashion as possible. Although he did not have the benefit of senior counsel as he may have wished, during the first four days of the hearing Mr Spalla had the benefit of experienced junior counsel and a solicitor. 29 In the first four days of the hearing, much time was lost in dealing with Mr Spalla's suggestion that he might call another senior counsel (who had been involved at the time of the settlement) to give evidence. Mr Spalla made this suggestion after the hearing began and despite specific orders requiring witnesses to be named well prior to trial. The transcript of the hearing between 14 and 17 March 2006 bears out Mr Rambaldi's submission that Mr Spalla kept changing his mind as to whether he would or would not call Mr Hayes QC as a witness: see, for example, the transcript at pages 34-38, 41, 165-171, 175, 186, 192-194. Further time was lost because Mr Spalla had given insufficient consideration to the status of communications otherwise subject to legal professional privilege in the event Mr Hayes gave evidence or Mr Spalla tendered his written opinions. The transcript of the hearing bears out Mr Rambaldi's submission that Mr Spalla gave no adequate consideration to the obvious problems of legal professional privilege and waiver, which would attend any attempt to call his former senior counsel or to tender his various opinions: see, for example, the transcript at pages 30-31, 34-35, 41-42, 102-112, 140, 142, 160, 166, 170-171, 176-191, 194-195. 30 Notwithstanding that I said I would not require junior counsel to conduct any cross-examination of the respondents' witnesses, the conduct of the hearing over these four days strongly indicated that Mr Spalla was seeking to delay the hearing as much as he possibly could. Ultimately he secured an adjournment for some five and a half weeks when he terminated the retainers of his legal representatives. Junior counsel stated that that he had "instructions to withdraw" from the trial at 3:23 pm on Thursday, 16 March 2006. He appeared in court on the morning of Friday, 17 March 2006 and confirmed that his retainer had been terminated. Also on the Friday morning, at 11:22 am, the solicitor who had been acting for Mr Spalla announced that his retainer had been withdrawn. The solicitor subsequently filed an affidavit sworn 20 March 2006, which confirmed that Mr Spalla had instructed him to terminate junior counsel's retainer at about 3:20 pm on 16 March 2006. He deposed that his own retainer was also terminated that day and that he received confirmation of this on the morning of 17 March 2006. The solicitor's affidavit makes it clear that it was Mr Spalla's decision to terminate the retainers of his solicitor and counsel. Thereafter, as I have said, Mr Spalla represented himself at the trial.