(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court."
32 The issue distils to what is just in all of the circumstances. That requires in this case that a balance be struck between the competing interests of the plaintiff and the first defendant. The issue also needs now to be considered in the light of the recent decision of the High Court in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. At [137] Heydon J commented as follows:
"Commercial life depends on the timely and just payment of money. Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important that both the claimants and those resisting claims are able to order their affairs. How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce."
33 The commercial transaction that gave rise to these proceedings is now rather old. There is, for example, no party teetering precariously on the brink of financial collapse or mercantile oblivion if the proceedings are not brought to a conclusion very soon. On the other hand, the issues are clear and well defined, even if considerable controversy may attend the production of a final answer. For example, it seems tolerably clear that the Owners Corporation had significant concerns about the standard of workmanship that was involved in the building that it acquired. Even though minds may differ about the concerns that have been raised, the theoretical issues in the case are not particularly novel or complicated. If Mr Touma wished to contend that the building was constructed without defects, or without defects for which he was responsible or liable, these proceedings provide a perfect venue or vehicle in the context of which his contentions can be considered.
34 However, it is not appropriate to approach a dispute about who is or may be at fault for the alleged defects by attempting, or by remaining content, to frustrate the plaintiff's efforts to have the issues identified, isolated and finally determined. The plaintiff has made it clear in the course of these proceedings, as a stranger to the building contract between the Owners Corporation and Mr Touma, that it is dependent upon the production of a large amount of documents by the defendants, including Mr Touma, in order to attempt to understand and to make good its claim that the works for which it indemnified the Owners Corporation were defective and worthy of compensation. Mr Touma has managed so far, by a process of almost studied nonchalance, to avoid engaging in the litigious process in a proper way. He cannot be permitted to do so without some consequence. From the plaintiff's point of view that consequence should be the striking out of his defence. What follows thereafter remains to be seen. In my opinion, there are good grounds, in the interests of justice, for the granting of the relief that the plaintiff seeks.
35 This is a proper case where Mr Touma's defence should be struck out. He has not attended to his side of the litigation in a timely way and has disregarded his obligation to conform to directions that have been made. He cannot continue to change solicitors, or to seek adjournments on spurious grounds, in the hope that the inconvenience and disruption to his defence of the proceedings that is claimed to follow as a result becomes instead the problem of a plaintiff that is otherwise faultless and largely unarmed with any power to control what occurs.
Orders
36 I order that Mr Touma's defence filed on 29 January 2009 be struck out with costs. I will hear the parties on what further or other orders are required for the continuing conduct of the proceedings.