Mr M Cobb-Clark (Plaintiff)
Mr AE MaroyaMs S Scott (Defendant)
Judgment (3 paragraphs)
[1]
Judgment
JOHNSON J: Listed before me today with a two-day estimate is the final hearing of proceedings between the Plaintiff, Apollo Kitchens (NSW) Pty Limited and the Defendant, Goway Travel Pty Limited.
The proceedings were commenced by Statement of Claim filed as long ago as 17 August 2018, in which the Plaintiff sought an order that the Defendant pay to the Plaintiff the sum of $698,842.25, together with interest and costs.
The Plaintiff's claim relates to the alleged provision by the Defendant to the Plaintiff of travel packages under a scheme described as the Staff Travel and/or Family and Friends Programme. The Statement of Claim alleges that, between September 2014 and July 2017, the Plaintiff purchased travel packages from the Defendant (which were not supplied) in the sum of $612,133.67, together with a claim of $86,708.58, for what was said to be overcharging by the Defendant of the Plaintiff's American Express card with respect to a number of items.
At the heart of the proceedings is the claim by the Plaintiff that money was paid to the Defendant for travel which was not provided, together with the additional American Express overcharging issue.
A person of note in the events giving rise to these proceedings is one Lisa Comito, who is said to have been an employee of the Defendant at all relevant times and appears to have been the contact between the Plaintiff and the Defendant. In saying that, there is a risk of oversimplification, but that is in broad terms what is said.
What the Defendant asserts in its Amended Defence (filed on 14 November 2019) is that it was Ms Comito who was dealing with the Plaintiff in this respect, effectively not as part of her employment with the Defendant or as an agent of the Defendant and that this was a type of frolic of her own so that the Defendant is not liable. Once again, I express the issues in an overly simplistic way. However, that appears to be a central issue in the proceedings.
The Court has been informed that there are other proceedings in the Equity Division in which the Defendant is seeking relief against Ms Comito with respect to her activities concerning travel when working with the Defendant.
The proceedings had moved along in a rather ponderous fashion until 25 October 2019 when they came before me as Duty Judge: Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited [2019] NSWSC 1913.
At that point, complaint was made by the Plaintiff concerning the delay in the proceedings. A Defence had been filed (on 1 November 2018) which contained some admissions together with a number of non-admissions and a general denial. In expressing concern about the progress (or lack of it) in the proceedings, I observed at [15] that the delay was troubling, "having clearly in mind the obligations of the court and the parties under s 56 of the Civil Procedure Act 2005".
Orders were made on 25 October 2019 whereby the Defendant was to file and serve an Amended Defence by 15 November 2019, the Defendant was to file and serve its evidence by 6 December 2019, the Plaintiff was to file and serve any further evidence by 31 January 2020, and the proceedings were to be listed for directions before the Common Law Registrar on 7 February 2020.
I indicated (at [20]) that if those steps were taken, "there ought be no good reason why a hearing date could not be allocated, with an accurate estimate being given for that purpose". I observed (at [21]) that the parties should expect that any Registrar or Judge who came to look at these proceedings thereafter would have squarely in mind the requirement of the parties to take all steps to "facilitate the just, quick and cheap resolution of the real issues in the proceedings".
It might be said that my effort at judicial encouragement fell on deaf ears because it appears from what happened subsequently that the orders made on that day received limited compliance.
The Plaintiff failed to comply with the order for service of evidence by 31 January 2020.
The matter did come before the Registrar on 7 February 2020, when the hearing of the matter was fixed for two days commencing today. Thus, there was to be a four-and-a-half month period from then until now.
The Registrar stood the matter over for directions on 1 May 2020 and made further orders on 7 February 2020 with the consent of the parties. The Defendant was to file and serve its evidence by 21 February 2020. On behalf of the Defendant, an affidavit was filed of James David Forno dated 21 February 2020. The Defendant had already filed an affidavit of Gregory John Atkins dated 5 December 2019.
The Plaintiff was to file and serve its evidence by 6 March 2020. The Plaintiff did not comply with that order.
The parties were to agree upon and exchange proposed categories for discovery by 3 April 2020. That order was not complied with. It is said for the Defendant that it was for the Plaintiff to take the first step in that respect, but it is the fact that this order of the Registrar was not satisfied.
The next and consequential order was that the parties were to exchange agreed categories for discovery by 24 April 2020. Once again, that order was not complied with.
On 1 May 2020, the proceedings came before the Registrar once again. An order was made that the Plaintiff was to file and serve evidence in reply and to request categories of discovery of the Defendant by 12 May 2020. The matter was stood over for directions on 15 May 2020. The Plaintiff failed to comply with the order for service of evidence and categories of discovery.
The matter came before the Registrar again on 15 May 2020. Orders were made that the Plaintiff file and serve evidence in reply by 20 May 2020 with a guillotine order being made whereby the Plaintiff would not be entitled to rely on any evidence in reply served after that date. The proceedings were stood over to 29 May 2020. It appears that the Plaintiff once again failed to comply with that order.
The matter came before the Registrar again on 29 May 2020. Directions were given for the filing of written submissions in advance of the final hearing with a direction being given, as well, for the parties to agree on a joint Court Book by 24 June 2020.
On 16 June 2020, the Plaintiff filed a Notice of Motion seeking leave to rely upon an affidavit of Peter Bader affirmed 3 June 2020, which had been served on the Defendant on 5 June 2020, with an order for discovery also being sought by the Plaintiff.
On 23 June 2020 (that is one week ago), the matter came before the Registrar. The Registrar was informed that orders could be made by consent between the parties, whereby the Defendant was to provide the Plaintiff with discovery of certain documents within specified categories by 4.00 pm on Friday, 26 June 2020 (that is, on the second last working day before the commencement of the hearing). The Registrar noted, as well, that the Plaintiff was granted leave to rely upon the affidavit of Peter Bader dated 3 June 2020 at the final hearing of the proceedings.
Before today, counsel had provided written outlines in-chief for the Plaintiff and for the Defendant and an outline in reply for the Plaintiff addressing the issues raised in the proceedings. In addition, a Court Book has been assembled and provided to the Court. The matter had been allocated to me for hearing (coincidentally given my earlier passing involvement with the matter on 25 October 2019). I had, to an extent, familiarised myself with the contents of the Court Book as well as undertaking a preliminary examination of two schedules of objections to affidavits which the Court received from counsel in advance of the hearing.
When the hearing commenced this morning, the Court was informed for the first time by counsel for the Plaintiff that application was being made to vacate the hearing. A Notice of Motion was filed in Court which sought that order, together with an application for leave to file and serve an Amended Statement of Claim and other consequential orders.
The Court has heard submissions on behalf of the Plaintiff and the Defendant with respect to this application. The Court was informed that the Defendant had provided a further affidavit of Mr Forno dated 29 June 2020, together with some 500 pages of documents, with that material being served on the Plaintiff late yesterday afternoon.
The Court was informed that discovery was provided by the Defendant last Friday afternoon in accordance with the Registrar's order made on 23 June 2020.
The Court was informed, as well, that the Plaintiff sought to rely upon additional evidence at the hearing.
An affidavit of Venothan Panicker affirmed 30 June 2020 was relied upon in support of the Notice of Motion for the Plaintiff. The affidavit indicated that Mr Talintyre, the lead counsel for the Plaintiff, was briefed last Tuesday, 23 June 2020. Advice had been given by him that the Plaintiff should seek an amendment to the Statement of Claim to add a claim based on money had and received, in addition to the Plaintiff's claim in contract. Further advice was given by counsel as to various changes in the way in which the Plaintiff would seek to put its case.
There is, in addition, what has been described as the Plaintiff's further tender bundle. Mr Panicker stated that the further tender bundle contains documents provided by Ms Comito to Mr Bader on 27 June 2020 together with documents from discovery provided by the Defendant on 26 June 2020. The documents provided by Ms Comito were sought from her following receipt of the Defendant's discovery on 26 June 2020.
No explanation has been provided as to why any communication between Mr Bader, who is a director of the Plaintiff, and Ms Comito only took place in the shadow of the hearing. It was apparent from the material exchanged between the parties that neither party (it would seem) was intending to call Ms Comito as a witness. But it might be thought that there would have been communications with Ms Comito, or at least attempted communications with Ms Comito, who may or may not have chosen to speak to the parties before 27 June 2020.
The position then is this. The Plaintiff's claim listed for hearing today will involve an examination of evidence to be adduced at the final hearing of what passed between the Plaintiff and the Defendant (and Ms Comito for that matter) concerning these so-called travel packages, what payments were made and to whom and for what, and where the money went and whether it is with Ms Comito or the Defendant.
The question which arises is whether the case is able to be determined on its merits without there being an appropriate gathering of material, in a coherent fashion, by the parties to permit the Court to determine the issues raised in the proceedings.
It would be apparent from what I have said so far that the encouragement offered by me on 25 October 2019 does not seem to have had much effect on the Plaintiff's side.
At the same time, on the Defendant's side, the provision of a large volume of documentation yesterday afternoon, in circumstances where the documents would need to be deployed in some meaningful way at the hearing, was itself a troubling development. It has been said for the Defendant that this step was not caught by an existing Court order but was action taken before the hearing. The problem is that all of this has impacted upon the capacity of the Court to undertake a hearing of this matter which, if it commenced today, would have to be completed in two days.
One wonders, quite frankly, whether the apparent settlement of the discovery issue last week was ever going to see anything other than an application to vacate this hearing.
It is difficult to understand how it was that the Court only learned of the application to vacate when I came on the Bench this morning, but that is the situation which has presented itself to the Court.
Section 56 Civil Procedure Act 2005 provides that the overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings. The Court is to give effect to that overriding purpose in exercising any powers under the Act with respect to civil proceedings. The parties to civil proceedings are under a duty to assist the Court to further that overriding purpose and, to that end, to participate in the processes of the Court and comply with directions and orders of the Court: s.56(3).
In deciding whether to vacate the hearing (an application for adjournment), the Court is required by s.58 Civil Procedure Act 2005 to act in accordance with the dictates of justice. For the purpose of determining what are the dictates of justice in a particular case the Court must have regard to ss.56 and 57 which provides for the objects of case management.
Considering the factors identified in s.58(2) of the Act, there are difficulties with the degree of expedition with which the parties have approached the proceedings in the ways to which I have mentioned. The question whether any lack of expedition was beyond the control of the respective parties it seems to me is something of an open question. There is a reasonable argument that the application of due diligence and compliance with Court orders would have seen the current state of affairs being avoided. However, that has not occurred and the present application has been made.
The Court is to consider the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. It is submitted for the Plaintiff by Mr Talintyre, who has come into this matter recently, that the hearing is not able to proceed to a determination on the merits if it goes ahead today without amendment to the pleadings and that it would be contrary to the dictates of justice if the Defendant was able to utilise documents furnished for the first time yesterday.
The Defendant submits that the matter was otherwise listed for hearing. The Defendant has emphasised repeatedly the delay and defaults of the Plaintiff in coming to this point. However, it seems to me that the Defendant's position is complicated by the substantial volume of documentation provided by it only yesterday.
In the end, I am satisfied that the appropriate course is not to attempt to force this matter on today. This matter is in a state of litigious semi-chaos. Which party has caused that state of affairs is a matter to be investigated further by me in the context of costs. I will consider the use of cost orders, including special cost orders, depending upon the material put before me and the parties will have an opportunity to be heard on that issue.
However, it would be contrary to the dictates of justice to force this case on in its current state.
I will not place the matter back before the Registrar. The matter will be before me on the next occasion.
In circumstances where I am prepared to vacate the hearing, I will ask counsel for the Defendant shortly whether they wish to say anything further in opposition to the application by the Plaintiff to amend the Statement of Claim, and concerning the other orders which are sought.
The appropriate course is to bring this matter back before me in the not too distant future. There will be a timetable imposed today, and if there is not strict compliance, I will give consideration to special cost orders, including orders against legal practitioners.
The best course at this stage is for me to leave the Bench for a period to allow the parties, who have so far demonstrated a limited capacity to agree on anything, to have an opportunity to agree upon a schedule that would bring this matter back before me in a period that would be no further than four-to-six weeks away, with all additional steps that need to be taken to be included in a timetable, including the provision of written submissions as to costs arising from the vacation of the hearing.
[2]
proposed orders to progress the litigation]
Counsel have had an opportunity to consider what orders are appropriate to progress the litigation in light of the decision of the Court to vacate today's hearing.
A detailed timetable has been agreed which will allow the various outstanding aspects to be attended to by both the Plaintiff and the Defendant. The orders to be made will also see listed for hearing before me on 12 August 2020 the question of costs arising from the vacation of the hearing, together with the possible transfer of the proceedings to the District Court of New South Wales.
Accordingly, I make Orders 1 through to 14 in accordance with the form of order which I have signed and dated today. Order 13 fixes for hearing before me at 10.00 am on 12 August 2020 the costs issue concerning the vacated hearing (Orders 6 and 8) and any Notice of Motion concerning the transfer of the proceedings to the District Court (Order 7).
[3]
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Decision last updated: 06 July 2020