Carolan v State of New South Wales and Anor

Application for Dismissal for Want of Prosecution 12I turn to the application to dismiss the proceedings for want of prosecution. 13Section 56 Civil Procedure Act 2005 imposes a statutory obligation on civil litigants to take steps to facilitate the just, quick and cheap resolution of the proceedings. That obligation binds the Plaintiff, as well as other parties to this litigation. 14The provisions contained in ss.56-61 Civil Procedure Act 2005 require the Court to have regard, amongst other things, to the timely disposal of proceedings and all other proceedings in the Court, at a cost affordable to the respective parties, and to the efficient use of available judicial and administrative resources and the efficient disposal of the business of the Court. The Court must have regard to the dictates of justice, but all of those matters are related to the function of the Court, and the obligation of litigants, to progress litigation: Fleet v State of New South Wales [2009] NSWSC 75 at [14]. 15The concept of proceedings being dismissed without a hearing is not a novel one. The provisions in ss.56-61 Civil Procedure Act 2005, in a context such as this, may lead to such an outcome. As Campbell J (as his Honour then was) said in Szczygiel v Peeku Holdings Pty Limited [2006] NSWSC 73 at [7]-[13], the complex of statutory provisions in ss.56-61 means that it is within the specific intent of the statutory framework, in which the Court conducts its business, that it can on occasions be prepared to dismiss proceedings, even though there has not been a hearing on the merits, in circumstances where there has been a failure to comply with directions. 16It has been said that an order dismissing proceedings for want of prosecution is an exceptional order, and it is a power not to be lightly exercised: Fairey v Fairey (No. 2) [2000] NSWCA 173 at [52]. 17At the same time, where a foundation is demonstrated for an exceptional order of this type, the Court should not hesitate to make that order. It remains, however, an exceptional order, and the Court ordinarily will allow a Plaintiff to proceed with a claim to a hearing on the merits. 18It is appropriate to turn to the history of this litigation. The proceedings are not yet a year old. That does not mean that they are in some way immune from dismissal for want of prosecution. An extended and protracted period of inaction (or non-compliance with orders) is not an essential prerequisite to the exercise of the power to dismiss for want of prosecution: Udowenko v St George Bank (A Division of Westpac Banking Corporation) (No. 2) [2011] NSWSC 1122 at [26]; Knorr v Commonwealth Scientific and Industrial Research Organisation and Others (No. 3) [2012] VSC 529 at [26]. 19From the outset of these proceedings in 2012, there have been failures on the part of the Plaintiff. There was a failure to serve the initial Summons within the time required by law. 20At a directions hearing on 7 December 2012, certain orders were made for the service of the Summons and affidavit in support, and there was a failure to comply with those orders of the Court. 21In due course, on 8 February 2013, a further order was made for service of the affidavit in support of the Summons, but service was not effected within the time ordered by the Court. 22A further order was made on 25 March 2013 for service by the Plaintiff of affidavit evidence, but that order was not complied with within the time set by the Court. 23Correspondence passed between the solicitors for the Plaintiff and the then Defendant as the year passed by. The State of New South Wales was the only Defendant in this period. In due course, at a further directions hearing on 10 May 2013, the Plaintiff was ordered to file and serve his evidence by a nominated date. He was ordered, as well, to pay the Defendant's costs of the day, given his non-compliance with the timetable. 24On 27 May 2013, an affidavit of the Plaintiff sworn 25 May 2013 was served on the Defendant (it is that affidavit to which I have made mention at [8]-[9] above). 25A directions hearing was listed for 13 June 2013, and there was no appearance by the Plaintiff. The question of costs of that day was reserved. 26In June 2013, the Plaintiff sought to move for summary judgment and, in due course, did not press that claim. It appears that Rothman J determined that the proceedings should advance on pleadings, and a direction was given for a Statement of Claim to be filed by the Plaintiff by 10 July 2013. That order was not complied with. 27In late July 2013, there was an email message from the solicitor for the Plaintiff indicating that the Plaintiff was ill. 28On 29 July 2013, the Plaintiff was ordered again to file and serve a Statement of Claim, and the Plaintiff was ordered again to pay the costs of the Defendant as a result of non-compliance. 29On 5 August 2013, a Statement of Claim was served by the Plaintiff upon the Defendant. 30On 26 August 2013, at a directions hearing, the Plaintiff was ordered to file and serve, by a nominated date, an Amended Statement of Claim joining the Commissioner of Police for New South Wales. That order was not complied with. 31Against this background, on 2 October 2013, the Defendants filed the Notice of Motion to which this judgment relates, and an affidavit in support. 32Following the filing and service of that Motion, an Amended Statement of Claim was filed on 8 October 2013. That pleading has a number of irregularities and deficiencies, which have been explored at the hearing of this Motion. 33Since that time, a number of affidavits have been filed, including two affidavits of Michael Croke, the solicitor for the Plaintiff, which were filed in Court today. Mr Croke gave evidence at the hearing, as indeed did the Plaintiff. 34The deficiencies in a number of the documents which have been filed have required the Defendants and the Court to consider the adequacy of those documents in the course of the hearing of this Notice of Motion. 35I accept the evidence of Mr Croke that personnel changes in his office during 2013 have contributed largely to what has happened, and what has not happened, in this litigation. There have been breakdowns in communications and poor attention to detail. Those matters serve to explain most of the defaults to which reference has been made. 36That said, the Plaintiff has served his affidavit of 25 May 2013 (which contains his primary case) upon the Defendant. In addition, the Court is aware that there is an affidavit of Detective Sergeant Grant Findley, sworn 11 June 2013, which annexes police interviews of persons, including Mr Hanson. Accordingly, there are materials relating to the events relevant to this application which are in the possession of the Plaintiff and the Defendants. 37Mr Jones, counsel for the Plaintiff, has indicated that the evidence for the Plaintiff is effectively that which has been served, subject to the prospect of some supplementary evidence from some of the other persons who have been mentioned. 38Insofar as the Defendants are apprehensive that the Plaintiff's chequered history in the conduct of this litigation may continue, the power exists for the Court to control the proceedings now and, if the occasion arises, at a later time. 39The sum of $702,000.00, of course, remains in the custody of the Defendants. 40The question of prejudice to the Defendants resulting from the history of this litigation may, in my view, be met effectively by orders to progress the litigation, a costs order with respect to today, and the expression of a clear understanding that any future default on the part of the Plaintiff would see a less sympathetic view adopted to the litigation. 41I am, however, not satisfied that the Court should take the exceptional step of dismissing the proceedings without a hearing on the merits, and I decline to take that course.

Further Orders and Costs 42Submissions have been made by Mr Thomson, for the Defendants, and by Mr Jones concerning what orders may be appropriate if the view was taken that the Motion should be dismissed. 43I propose to make orders which will progress the litigation, and will allow the Plaintiff to put into proper and compliant form the Amended Statement of Claim (which is presently defective), together with orders for the Plaintiff and the Defendants to file and serve any further evidence to be relied upon. Orders will be made which will require these steps to be taken by 3 December 2013. 44I will make an order listing the proceedings for directions before the Registrar at 9.00 am on Thursday 5 December 2013, on which occasion a hearing date, I trust, will be allocated with the parties having an ability by then to give a reliable estimate for a hearing. 45The question of costs of the Motion has been the subject of submissions. Although I will dismiss the Notice of Motion filed by the Defendants, I propose to order the Plaintiff to pay the Defendants' costs. It is, in my view, clear that the taking of the step of bringing this Motion provided a type of kickstart for the Plaintiff in this litigation. The hearing today, I trust, will have focused the minds of those involved. 46In these circumstances, the appropriate exercise of the costs discretion will see the Plaintiff being ordered to pay the costs of the Defendants. 47I raised with the legal representatives for the parties the form of order which ought be made. This has been a discrete step in the litigation. It is one, in my view, which should see a discrete costs order being made, which ought be quantified today and paid within a set period. 48In the absence of any specific order, an order for costs on an interlocutory basis will not be enforceable until the end of the proceedings. I propose to make an order under s.98(2) Civil Procedure Act 2005 and Rule 42.7 UCPR that will permit those costs to be payable now, and not be left until the proceedings are at an end. The justice of the case, it seems to me, calls for that approach. 49A further step which has been discussed with counsel, and which I propose to take, is to make a specified gross sum costs order under s.98(4)(c) Civil Procedure Act 2005 instead of assessed costs. That power is properly used in circumstances where there is a discrete hearing and costs order, and where it may be counterproductive for the parties to run up even more costs assessing the costs of a hearing such as this: Moloney v Collins [2011] NSWSC 628 at [81]. 50The parties have agreed that a sum of $6,000.00 represents a fair and appropriate quantum for such a gross costs order, with that sum to be paid within 28 days. Apart from anything else, it seems to me that an order of this type will further focus the minds of those on the Plaintiff's side on the need to progress this litigation in an orderly and timely fashion, in compliance with the obligation under the Civil Procedure Act 2005. 51I make the following orders: (a)The Notice of Motion filed 2 October 2013 seeking dismissal of the proceedings for want of prosecution is dismissed. (b)Pursuant to Rule 14.24 UCPR, the Plaintiff is granted leave to file a verified Further Amended Statement of Claim within fourteen days of today. (c)The Plaintiff is to file and serve any further evidence by 19 November 2013. (d)The Defendants are to file and serve any further evidence by 3 December 2013. (e)The Plaintiff is to pay the costs of the Defendants of this Notice of Motion by way of a gross sum costs order under s.98(4)(c) Civil Procedure Act 2005 in the sum of $6,000.00, that sum to be paid within 28 days of today. (f)I vacate the present listing of the proceedings before the Registrar this Friday, 1 November 2013. In its place, I list the proceedings for directions before the Registrar at 9.00 am on 5 December 2013, in particular for the purpose of the allocation of a hearing date.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2013