Ambrose v Poumako

REASONS FOR JUDGMENT 1 This matter first came on for directions on 15 December 2011. On that occasion orders were made for the exchange of affidavits for the evidence proposed to be relied upon at a future hearing, including a timetable for the respondents to file and serve their affidavits by 17 February 2012 and the applicant to file and serve any further materials by 22 December 2012. This meant that the respondents had six weeks after receipt of the applicant's final materials to respond and then they could prepare for the further directions listed for 2 March 2012. 2 The date 17 February 2012 passed and the respondents did not file and serve any affidavits. 3 At the further directions hearing on 2 March 2012, the respondents did not appear. I accept that the respondents did not appear due to an administrative error on the part of the solicitors for the respondents. 4 I made an order at that directions hearing fixing the date of hearing to commence on 2 April 2012. I directed that any application by the respondents for the leave to file and serve belatedly any affidavit material should be made promptly, and be supported by an affidavit to explain the delay and exhibiting the proposed affidavits. 5 That order was also not complied with. 6 On 16 March 2012 the respondents applied, inter alia, for an extension of time to file and serve further affidavit materials to 26 March 2012. I would have been inclined to accede to that order. However, that is academic. Counsel for the respondents today indicated that the respondents did not intend to adhere to the terms of their application. Counsel requested that the hearing date be vacated as, it appears by oral submissions, they are not in a position (as their notice of 16 March 2012 contemplated) to file any such material by 26 March 2012. 7 The grounds for the extension of time within the respondents' affidavit in support of the application suggest the inconvenience of counsel as one of the reasons why the hearing date should be vacated. Orally, the respondents seek the hearing date to be vacated, and a further 6-8 weeks to file their proposed evidence. 8 In relation to the extension of time, it was suggested that it was on 23 February 2012 that the respondents first met with the solicitors to discuss the preparation of the affidavit material. That shows a simple disregard for the first Orders on 15 December 2011. That disregard is simply not explained. The affidavit also states that the solicitors for the respondents received instructions from their clients in regards to documents for inspection on 14 March 2012, two days before making the current application. 9 No steps have been taken by the respondents to explain their failure to prepare this matter for hearing. The Orders of 15 December 2011 and 2 March 2012 simply seem to have been ignored by the respondents. Their inactivity is not explained by any evidence. 10 There is now a suggestion that more time is required to consider the material currently held by the applicant (said to be voluminous) and to assess the transcript of the bankruptcy examination as referred to in paragraph 9 of the respondents supporting affidavit. It is also suggested that the respondents were not aware of issues of credibility until 15 December 2011. All of these issues have been known by the respondents since that time. The first respondent has chosen not to inspect the documents of interest since that time. 11 In my view, despite the oversight by the respondents through their solicitors in not attending the directions hearing on 3 March 2012, the respondents conduct on the whole shows a disregard of the Orders of this Court. The respondents' have not acted vigorously in the preparation of this matter for hearing. I see no reason why on balance in the interests of justice the hearing date should be vacated simply because they have chosen not to do so. They have not explained that apparent inactivity by material which could be taken into account when determining where the interests of justice lie. The assertions by their counsel about the extent of preparation necessary are disputed by counsel for the applicant, with reasons given, so I do not take them into account. They were not made when the orders of 15 December 2011 were made; nor was there any request to file and serve further affidavit evidence to support that claim once it was apparent that it was disputed. 12 If the respondents seek to adduce evidence at the hearing, the respondents can seek leave to do. Any such request can then be dealt with. 13 Another ground for delay of the hearing (but not raised in oral submissions today) was the issue of the availability of counsel. Counsel appearing today is the nominated counsel mentioned in the affidavit. It is said in the affidavit that he is not available on 2 April 2012. Counsel has today indicated that he has not been directly involved in the preparation of this matter, and that he is not intimately associated with the matter at present, because the respondents have not chosen to prepare this matter in any substantive way. I consider that counsel is not so intimately involved in this matter, as to prejudice the respondents by having some other counsel appear. There is nothing to suggest other counsel cannot be retained. 14 The application for the vacation of the hearing date is refused. I will make an order to extend the time for filing further affidavits by the respondents to 26 March 2012 in the terms of paragraph 2 of the interim orders sought by the respondents. If the respondents wish to adduce evidence by affidavit provided later than that date, they will need to apply for leave to do so at the hearing. At that time I will address any questions of prejudice. 15 I also order that the respondents pay the applicant's cost of today's application. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.