27 The genesis of the Uniform Act and Rules is the Woolf reforms in England. A most convenient history relating to the introduction of those reforms is to be found in Idoport Pty Limited & Anor v National Australia Bank & Ors (2000) 49 NSWLR 51 at 55. The Court of Appeal in England in Price v Price (trading as Poppyland Headware) [2003] 3 All ER 911, was considering a case in which there had been an application for the extension of time for service of the claim. Although the situation in England is different because the Court has to give consideration to the implication of Articles of the European Convention on Human Rights, set out in the Human Rights Act 1998, the approach adopted by the Court is helpful. Delivering the judgment of the Court (Brooke, Sedley and Hale LLJ) Brooke LJ referred to the judgment of Lord Woolf in Biguzzi v Rank Leisure PLC [1999] 4 All ER 934 and suggested that his Lordship had made it clear that the new rules had issued in a new regime and that it was no longer useful to look back at decisions prior to the introduction because that was a different regime. Brooke LJ said at page 920-921:
We no longer have to succumb feebly to the argument that a defendant was already so prejudiced that any further prejudice caused by a further long delay could not be regarded as significant. On an occasion like this, we have to look objectively at the extent to which the defendant would be prejudiced if the case was allowed to continue, whether on the enlarged basis for which the claimant is now contending or at all, and then consider whether and the extent to which the claimant's cumulative defaults have caused that prejudice. Our final duty is to decide whether it would be a disproportionate response to stop the case now by reducing the expense of time outright or whether it may be possible to fashion a more proportionate response.
28 Mr Taylor SC presses for a lesser approach. He submitted that to stop the case would be out of all proportion in the circumstances that I have outlined. In Biguzzi Lord Woolf dealt with alternatives at 940:
There are alternative powers which the courts have which they can exercise to make it clear that the courts will not tolerate delays other than striking out cases. In a great many situations those other powers will be the appropriate ones to adopt because they produce a more just result. In considering whether a result is just, the courts are not confined to considering the relevant position of the parties. They have to take into account the effect of what has happened on the administration of justice generally. That involves taking into account the fact of the courts ability to hear other cases if such defaults are allowed to occur. It will also involve taking into account the need for the courts to show by their conduct that they will not tolerate the parties not complying with dates for the reasons I have indicated.
His Lordship went on to refer to the ability of the Court to make an indemnity order for costs as "an important power".
29 Section 58 applies to this application and imposes an obligation on the Court to have regard to certain matters in deciding the dictates of justice in a particular case. The first requirement is to have regard to the provisions of s 56 and s 57. In that regard there is little doubt that the overriding purpose of the just, quick and cheap resolution of the real issues in this litigation has been compromised. Had the plaintiff complied with the Court orders this case more probably than not, would probably have been heard and determined before now.
30 Section 57 requires consideration of a number of features of the objects of case management. As to the efficient disposal of the business of the Court; I am not persuaded that the outcome of this application will have an adverse impact on the efficiency of the list whether or not the defendants are successful. Certainly, if the case were to be struck out, there would be one less case in the list. As to the efficient use of available judicial and administrative resources; one could argue that the judicial resource that is being utilised today could well be doing something else of a more substantial nature but on the other hand the parties to litigation in the Commercial List are entitled to have judicial resources available to hear an application of this importance.
31 The fourth object, the timely disposal of proceedings and all other proceedings in the Court at a cost affordable by the respective parties is an object of rather larger proportion. What is affordable to one party may not be affordable to another. If a party is, in fact, an individual with not a great deal of money and is required to return to the court armed with legal representatives time and time again, it can hardly be said that the efficiencies of case management and the timely disposal of proceedings are being met.
32 There is no evidence before me today about the capacity of each of the parties and their ability to "afford" the proceedings in their present very unsatisfactory state. The effect of that objective, however, is that case management is to ensure parties are able to have their proceedings heard efficiently and relatively inexpensively. Sometimes case management can increase the cost to the parties and one has to be diligent in each case to work out just how much management by the Court should occur in each case. That is why the Practice Note provides the alternative for parties to have consensual orders made in Chambers.
33 The Act also requires consideration of a series of matters that I regard as relevant (s 58(2)(b)). The first is the degree of difficulty or complexity to which the issues in the proceedings give rise. This case does not seem to me to raise a high degree of difficulty or complexity. It is a case in which the plaintiff claims the defendants sold them a business and, effectively, continued to operate the very same business that they sold to the plaintiffs by reason of the conduct alleged. It may provide difficulties in the gathering of evidence, as these cases do, in that such conduct is usually covert and the plaintiff has to be diligent to utilise the Rules to obtain evidence proving the allegations of such conduct.
34 The second matter is the degree of expedition with which the respective parties have approached the proceedings. I have already dealt with the plaintiffs conduct, however I should say that conduct of the defendants and the defendants' solicitors in this case is in some respects exemplary. They could have objected to some of the Notices to Produce being served because they related to a non-entity. They did not do so. They pointed out the defects and still complied with the requests from the plaintiffs. Thus the defendants have presented through their lawyers as wanting to get on with this litigation. On the evidence before me, it seems that they have been waiting patiently and professionally for the plaintiffs to effectively get their cases in order so they would know the cases that they have to meet.
35 The next matter is the degree to which any lack of expedition was beyond the control of any party. Mr Fraser has set out the matters that he has attended to since he was instructed in July 2005. There is always the prospect that when parties change solicitors there will be a time during which the new solicitors have to become acquainted with the case so that they can properly assist their new client. It seems to me that Mr Fraser's position when he took over the case was a difficult one, the pleadings needed amendment and attention had to be given to the documents that had been produced on subpoena. It is apparent that at least one important document was lost between the first set of solicitors and the second and this had to be obtained through other means.
36 Mr Fraser was faced with the task of preparing all relevant evidence in what might be seen to be a very short timeframe; it was but six weeks to the time of trial when he was instructed. It is all very well for courts to be critical of solicitors but in the circumstances, when one views the history of this case objectively, it is clear, notwithstanding what I have said about the degree of difficulty or complexity, that Mr Fraser had a very large task on his hands when he took over this litigation. It also appears that the plaintiff, through Mr Fraser, moved very promptly to try and use the alternative mechanism for dispute resolution, mediation, that is endorsed by this Court.
37 The reference to circumstances beyond the control of the respective parties does not seem to me to have any relevance to my consideration here. I have already dealt with the next item in s 58(2), that is the degree to which the respective parties have fulfilled their duties under s 56(3). That is the duty to assist the Court to further the overriding purpose. I am satisfied that the defendants have discharged that duty. I am not satisfied in the circumstances that the plaintiff has been in a position to do so.
38 Another relevant matter that I should give consideration to is the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. These are causes of action brought by these plaintiffs that would not be out of time if I strike this matter out or dismiss it today. The plaintiffs may be able to commence proceedings at a later time when they are committed to their duty under s 56 (3). One has to weigh that matter up with the obvious cost that would be further incurred.
39 What is the injustice to the defendants if I let the case go forward whilst a party has failed to comply its duty under s 56(3)? Mr Taylor SC submitted that there is no evidence filed by the defendants of real prejudice. Mr Morgan in his affidavit claims that the fourth, fifth and sixth defendants have been "put to unnecessary expense" by the persistent breaches of the timetable by the plaintiff. Mr Gray claims that the first, second, third, seventh, eighth and ninth defendants have been "put to unnecessary expense" due to the persistent breaches of the timetable. Mr Taylor is correct. The only prejudice that has been identified is the unnecessary expense and on each of the occasions that has been the subject of a costs order of the Court in favour of the defendants. There is no suggestion in this case that prospective witnesses may not be available or that parties might not have access to information or documentation for the purposes of defending the claim.
40 Finally, I should consider the effect generally on the administration of justice. There is no doubt that the Commercial List is a busy list. There is no doubt that when parties find themselves unable to meet the rigours of the fast track, the way in which the administration of justice is best served is by the parties consensually adjusting the timetable. However parties must expect the Court to act when they breach Court orders and when they do so in the way that these plaintiffs have, the parties can expect that the Court might invoke the most serious of the Court's powers which can deny the party access to the Court.
41 If the Court orders had been complied with the case would have been heard within nine months of the filing of the process. That would have been exemplary. Is it a proportionate response to deny access in this case? I think not. A proportionate response can be effected by providing what Mr Taylor SC referred to as one last chance, however, with some serious costs consequences.
42 Mr Stanton submitted that "enough is enough". That is an approach adopted by Brooke LJ in Price v Price in which his Lordship said at 921:
In my judgment this is a case in which this Court has to say 'enough is enough', and like the judge (though for different reasons) to refuse the extension of time sought, unless it were possible to impose conditions on any order for an extension.
In this case it is possible, and it seems to me that the dictates of justice in this case require that I refuse the application by the defendants and that the application for the extension made by the plaintiffs should be granted with very stringent conditions.
43 During the course of submissions this morning, I indicated to Mr Taylor that I was concerned about the identity of the person against whom costs orders should be made. One of the reasons for that observation is that on 25 November 2005 the Court was advised that the evidence of the lay witnesses would be on by 16 December 2005. Indeed, the letter of 8 February 2006 from the plaintiffs' solicitors to the defendants' solicitors advised that the lay evidence could be on by Friday 10 February 2006. Today, with his usual candour, Mr Taylor SC informed the Court that he had been instructed to ask for an additional two weeks but advised that four weeks was a more realistic time frame.
44 The Court was advised on 25 November 2005 that expert evidence could be filed and served by 3 February 2006. The letter of 8 February 2006, to which I have already referred, suggests that the filing of such evidence has to await other matters. Mr Taylor SC submitted that there would need to be an extension to 3 weeks after documents are produced pursuant to a Notice to Produce. Mr Fraser 's affidavit evidence is that he has prepared a draft letter to the expert accountant which is approximately 11 pages in length. I have not been informed who the expert is. I have not been informed whether the expert is available within four weeks or five weeks time. It is obvious that experts are busy people, and to suggest that an expert can simply drop whatever he or she is doing to then provide a report within 21 working days or less, in what might be complicated circumstances, does not provide me with a great deal of confidence in relation to the estimates of time provided.
45 This case has been plagued by under-estimates and, perhaps, unrealistic estimates. The Court must be assisted by the profession making sure that the estimates are realistic. The duty of the client and the duty of the barrister and/or solicitor pursuant to s 56 requires a proper estimate to be made having regard to all the circumstances. That means that counsel have to be briefed within appropriate timeframes. In this case it would appear that it was only last week that the plaintiff gave consideration to briefing counsel to settle the affidavits that should have been filed long ago.
46 I refuse the fourth, fifth and sixth defendants' application to dismiss the proceedings. I grant leave to the plaintiffs to provide a timetable within which their evidence can be prepared. I intend to set this matter down for hearing at the next directions hearing when the timetable is the subject of final orders. I direct that the plaintiffs provide to the defendants a timetable for future preparation of this case by 5 pm on Wednesday, 15 February 2006. I list this matter for directions in the Commercial List on Friday 17 February 2006. Should the parties agree to the timetable produced by the plaintiffs they are at liberty to have those orders made in Chambers pursuant to the Practice Note.
47 One of the reasons that I did not dismiss the application was the availability of what Lord Woolf referred to as the "important power" to order indemnity costs. It seems to me that is an important factor in this case in the plaintiffs' favour in resisting the orders in the Motion.
48 I am satisfied that the plaintiffs conduct in this case has caused the defendants to incur the costs of 10 February 2005 without any proper basis. Accordingly, I order that the plaintiffs pay the defendants costs of the appearance on Friday 10 February 2006 on an indemnity basis. That brings me to the costs of today. Mr Taylor submitted that had the defendants agreed to an extension of time on Friday then the costs of today could have been avoided. Of course, that misses the point in respect of the true position today. I do not know and Mr Taylor does not yet know the true position in respect of the plaintiffs ability to serve evidence pursuant to the Practice Note within two weeks, four weeks or perhaps longer. The parties have had to debate this matter today in circumstances where a plaintiff has not properly instructed counsel in respect of the preparation for trial when the plaintiff agreed by court order or direction to file its evidence well before today. This seems to me to be an exquisite example of a case in which indemnity costs should be ordered.