Craig v Johnson

Procedural History

1. Proceedings were commenced on 3 November 2016 and initial case management was conducted by the Registrar during 2017 and early 2018.
2. The matter was referred to me in May 2018 to deal with various notices of motion filed by the plaintiffs. One was seeking access to privileged documents produced on subpoena by the solicitor for some of the defendants in the Commercial Proceedings, (the "Silverbrook Parties"). That application was heard by me in June 2018 and dismissed: Loretta Craig & Ors v Anthony Johnson & Ors [2018] NSWSC 1539. An application for leave to appeal was filed in respect of that decision, but in May 2019 that application was withdrawn on the morning of the hearing, with indemnity costs.
3. The plaintiffs then, just a few weeks after withdrawing their appeal, filed another subpoena seeking in effect the same documents that had already been ruled by me to be privileged. The defendants filed a notice of motion to set aside that subpoena. The subpoena was set aside as an abuse of process with an order that the plaintiffs pay the defendants costs forthwith: Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 423. My decision to set aside the subpoena was also the subject of an application for leave to appeal. This was dismissed with costs payable forthwith on 5 November 2020: Craig v Johnson [2020] NSWCA 278.
4. In late 2017 the plaintiffs filed a notice of motion seeking "separate determination of liability and quantum". The order sought was amended on 24 May 2018 to more accurately describe the order sought as: "An order pursuant to UCPR r 28.2 that the assessment of the quantum of loss be undertaken separately from and after the hearing and determination of all other issues in the proceedings."
5. On 28 May 2018 after hearing some of the argument I took the view that in the absence of affidavits and/or statements of the evidence that was to be called at trial, it was not possible to make an informed decision about the appropriateness of granting the separate question application. The notice of motion was adjourned part heard with detailed orders regarding service of evidence. The plaintiffs were required to file and serve their lay witness statements on liability by 5 July 2018 and the notice of motion was stood over part heard to 6 September 2018.
6. The plaintiffs did not comply with that order and on 31 July 2018 application was made for extension of time to comply. I extended time to 10 September 2018 with an associated guillotine order and adjourned the hearing on the separate question to December 2018.
7. Amongst the material filed and served by the plaintiffs in that period was an affidavit sworn Frederick Dowart of 22 August 2018.
8. The plaintiffs' case was substantially repleaded in the Further Amended Statement of Claim filed in December 2018.
9. On 22 February 2019 I made directions vacating the order that the defendants file their evidence by 22 February 2019 because the plaintiffs' position with service of their evidence was still not complete. The defendants' evidence was served later in 2019 in compliance with my orders.
10. On 20 December 2019, I made case management orders that included that the plaintiffs were to file and serve lay witness statements in reply addressing issues of liability by 24 February 2020.
11. On 3 April 2020 the separate question hearing was resumed and judgment reserved. On 22 April 2020 the application was dismissed: Loretta Craig & Ors v Anthony Johnson & Ors [2020] NSWSC 430.
12. At the directions hearing before me on 13 May 2020 Mr Lalji of Shine Lawyers appeared for the plaintiffs, I made a series of final orders regarding the filing and service of evidence and fixing the date for hearing including:

• The plaintiffs are to complete service of their expert affidavit evidence as to liability and their lay and expert affidavit evidence as to damages by 30 October 2020. (Order 1)
• The plaintiffs cannot rely upon any evidence not served in accordance with Order 1, unless an order is made by the Court permitting reliance upon such late served evidence.
• The proceedings are listed for hearing on 21 June 2021 with an estimate of five weeks (25 working days).
• Liberty to apply on three days notice by email to my Associate.

1. In July 2020 Mr Lalji ceased to act for the plaintiffs.
2. On 27 October 2020 the plaintiffs filed a notice of motion seeking a variation of the May 2020 orders to allow service of evidence by the plaintiffs up to February 2021, to permit service of overseas subpoenas and to grant leave to issue subpoenas to Optus and Telstra.
3. Only the third proposed order was pressed and that was decided on the papers in February 2021: Craig v Johnson (No.4) [2021] NSWSC 81.
4. On 23 November 2020, because of the plaintiffs attempts to file various affidavits and other documents in breach of the timetable and without leave, I made the following order in Chambers: "No party in these proceedings shall file, or serve upon the other party, any evidence, notice to produce, or submissions, unless such procedural step has been expressly authorised by the Court in advance of the step being taken."
5. On 8 March 2021, in the context of hearing and determining an application for the plaintiffs to be permitted to issue subpoenas, (given they no longer had a solicitor acting, leave was required) I made the following order: "If the plaintiffs wish to make any application in respect of their evidentiary position, notice of it needs to be provided in writing to the defendants by 5:00pm on Tuesday, 16 March 2021, including an outline of the bases they say the Court should consider revisiting any of the orders made about service of evidence in May 2020, including the guillotine order in respect of the plaintiffs' evidence. A copy of that correspondence is to be provided by email to the Associate of Lonergan J".
6. No such approach or application was made. The liberty to apply order remained in place throughout 2020 and 2021 but was not utilised.
7. Between 8 March 2021 and 21 June 2021, counsel for the parties appeared before me on three occasions, 17 March 2021, 7 June 2021 and 15 June 2021 at directions hearings convened by the Court. Nothing was raised by counsel for the plaintiffs regarding any need for further affidavit evidence from Mr Dowart.

Principles

1. Obviously I must, in deciding whether to allow the plaintiffs to rely upon the very late further evidence of Mr Dowart, determine that application bearing in mind s 56 of the Civil Procedure Act 2005 (NSW): 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. (3A) (Repealed) (4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3) - (a) any solicitor or barrister representing the party in the proceedings, (b) any person with a relevant interest in the proceedings commenced by the party. (5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
2. Section 57 of the Civil Procedure Act is also a relevant consideration, particularly given the extensive management this case has had between 2017 and June 2021. 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects - (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1).
3. It is now four and a half years after the proceedings were commenced which concern legal advice given in 2013, over seven years ago.
4. I must of course always follow the dictates of justice: 58 Court to follow dictates of justice (1) In deciding - (a) whether to make any order or direction for the management of proceedings, including - (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court - (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant - (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
5. Section 59 of the Civil Procedure Act is also pertinent: 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial.
6. On the question of whether the Court should grant an adjournment to allow the new material to be addressed, reliance was placed by counsel for the plaintiffs, Mr Archibald, upon the decision of the High Court in Sali v SPC Ltd 116 ALR 625; 67 ALJR 841; [1993] HCA 47 ("Sali") and Frugtniet v State Bank of New South Wales [1999] NSWCA 458 ("Frugtniet").
7. In Sali, the majority comprising Brennan, Deane and McHugh JJ said: "… [A]lthough an appellate Court will be slow to interfere with the discretion of a trial judge to refuse an adjournment, it will do so if the refusal will result in a denial of justice to the applicant and the adjournment will not result in any injustice to the other party…" (at p 843) and "… Moreover, the judgment of Atkin LJ in Maxwell has also been taken to establish a further proposition: an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action. However, both propositions were formulated when court lists were not as congested as they are today and the concept of case management had not developed into the sophisticated art that it has now become. In determining whether to grant an adjournment, the judge of a busy court is entitled to consider the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties. As Deane J pointed out in Squire v Rogers this: "may require knowledge of the working of the listing system of the particular court or judge and the importance in the proper working of that system of adherence to dates fixed for hearing". What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources." (at pp 843-844) (footnotes omitted).
8. I note also the relevant observations of Toohey and Gaudron JJ at pp 848-849: "…In Carryer v Kelly Asprey JA said of a refusal to grant an adjournment of a civil action until later in the day, because of the unavailability of counsel: "An adjournment which, if refused, would result in a serious injustice to the party applying for it should only be refused if that is the only way that justice can be done to the other party." While not referring expressly to Carryer v Kelly, Kirby P said much the same in Sydney City Council v Ke-Su Investments Pty Ltd. Although in dissent as to the outcome in the case before the Court of Appeal, the President said of an application for an adjournment: "If not granted, although appeal courts will rarely intervene to review the refusal of an adjournment, they will do so if the discretion had not been exercised judicially or where its exercise was based upon the wrong principle or resulted in gross injustice." The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard. Because these considerations are singularly within the knowledge of the court to which an application for an adjournment is made, there is an added reason why this Court should not interfere with a decision made on such an application." (footnotes omitted)
9. The decision of the New South Wales Court of Appeal in Frugtniet is an application of those principles in a case where the applicants for the adjournment had sought a number of earlier adjournments and the trial judge had taken the view that the matter should proceed and no further adjournment permitted. The majority, Handley JA with whom Mason P agreed, decided the trial judge was correct: "[32] In my judgment this was an extraordinary case. The criminal trial pending in Victoria against Mrs Frugtniet, expected to last 3 months and about to start, was the basis of a successful application for an adjournment to Hulme J on 27 January, the unsuccessful applications to Dunford J on 29 May and to the list Judge on 21 June, the successful application to Hunter J on 22 August, and then the unsuccessful application to him on 27 November. The appellants having cried wolf so often cannot complain that Hunter J refused to accept the reasons they advanced on 27 November for a further adjournment based on this pending criminal trial. Justice is not something that exists only for defendants or debtors. Justice is something which must be provided to all parties in legal proceedings and by 27 November the right of the Bank to have its case heard at long last fully justified Hunter J in taking the course that he did."
10. Beazley JA, (as she then was), in dissent but broadly agreeing as to principles said this at [85] - [89]: "[85] Firstly, the refusal of an adjournment is discretionary and the principles governing the review of discretionary judgments applies to appellate review of a refusal to grant an adjournment: see House v The King (1936) 55 CLR 499; Thornberry v R at 777. An appellate court will be slow to interfere with the discretion of a trial judge to refuse an adjournment: Sali v SPC Ltd at 628. It will generally only do so when: "the exercise … of discretion has miscarried in the sense that that it had been affected by wrongful application of principle or misunderstanding or erroneous assessment of the factual material … This general rule is subject to any power of the particular appellate court to receive new evidence on the hearing of an appeal… and the benefit of hindsight in a case where it can be seen that serious injustice has resulted or will, in fact, result from the exercise of the discretion" Squire v Rogers (1979) 27 ALR 330 per Deane J at 337. [86] Secondly, it is only in extraordinary cases that the interests of justice will be served by the refusal of an adjournment in a case where to hear the proceedings is likely to terminate the proceedings: Sali v SPC Ltd & Anor; Scott v Handley, at para 29. [87] An appellate court will interfere where the refusal of the adjournment will result in a denial of natural justice to the party seeking the adjournment and the other party will not suffer any injustice: Maxwell v Kuen [1928] 1 KB 645 at 657, 658; Sali v SPC Ltd at 628. [88] Thirdly, the discretion of the trial judge has to be exercised having regard to all the circumstances of the case: Scott v Handley at para 33; Squire v Rogers per Deane J at 337. [89] Fourthly, a trial judge's conclusion that an adjournment application is merely a delaying tactic is a relevant consideration in determining to refuse an adjournment: Sali v SPC Ltd & Anor."

Submissions

1. Mr Archibald argued that the material was not new to the defendants, it having been appended to the affidavit of Mrs Craig served in August 2018. The affidavit annexed material comprising business records already disclosed to the defendants so there was no prejudice.
2. Second, the plaintiffs were self-represented from July 2020 and still made conscientious efforts to obtain the relevant evidence and some latitude, he implied, should be extended.
3. Third, until the Court determined the separate question issue in April 2020, the plaintiffs were entitled to refrain from spending money on obtaining evidence on the question of assessment of damages which may not have been necessary to obtain, emphasising that the plaintiffs, as pensioners did not have the necessary financial resources to pursue that kind of material or to retain an expert.
4. Fourth, the material sought to be tendered is "the most cogent evidence of the book value of the Memjet companies as at the date of the offer" and if it is not allowed to be admitted into evidence, the plaintiffs will have "virtually no evidence" to present to the court regarding quantum or assessment of damages.
5. Fifth, any prejudice to the defendants could be addressed by an adjournment to allow the defendants time to address the material and the Court should grant an adjournment so that can occur. This is the type of extraordinary case where the Court ought to consider that the interests of justice will not be served if it refuses an adjournment.
6. In response, Mr Lloyd SC pointed out that first, it was not correct to assert that if Mr Dowart's affidavit is excluded, the plaintiffs do not have evidence to lead on the question of assessment of damages. The plaintiffs' Summary of Heads of Damage document sets out multiple different methods of calculation of loss, at least three of which did not rely on any of the material from the June 2021 Dowart affidavit.
7. Second, the Court has made guillotine orders on two occasions requiring evidence of this type be served by the plaintiffs. The first was made on 24 May 2018, requiring evidence be served by 31 July (extended on 31 July 2018 to September 2018) requiring the plaintiffs to file and serve "all lay witness statements upon which they intend to rely addressing the issues on liability" and providing that if evidence is not served in accordance with that order, leave to rely upon it will be required and will only be granted if exceptional circumstances are demonstrated. Mr Dowart's June 2021 evidence goes to the liability of the defendants and so should have been served in 2018.
8. Even if it was correct to argue that Mr Dowart's evidence is limited to "damages assessment" only, there was a further guillotine order made on 13 May 2020 which applied clearly to liability evidence and to both lay and expert affidavit evidence as to damages, and required that material to be served by 30 October 2020.
9. The June 2021 affidavit of Mr Dowart seeks to establish the provenance of documents exhibited to Mrs Craig's 2018 affidavit that was the subject of valid objection by the defendants, and also purports to give new evidence about matters only partly referred to in Mr Dowart's 2018 affidavit.
10. The plaintiffs need to establish exceptional circumstances warranting a grant of leave in order to be allowed to rely on the affidavit. The matters raised in oral and written submissions do not establish exceptional circumstances.
11. As a matter of principle the court should bear in mind what the High Court said in Aon Risk Services Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [94] in the context of late amendment to pleadings that a matter to bear in mind was whether a party has "had a sufficient opportunity to plead his or her case". Applying that principle to the circumstances here, the question is whether the plaintiffs have had sufficient opportunity to prepare and file and serve their evidence. Clearly, they have.
12. Third, and importantly, the material in the late affidavit is likely to cause prejudice to the defendants particularly in regard to the matters raised in paragraphs 4(e), 6, 9, 13 and 14 all of which introduce matters the defendants have had no opportunity to investigate, as well as the new material set out in paragraph 15.
13. Further prejudice arises from the very late basis upon which the material seeks to establish the provenance of documents, which although circulated in the proceedings, were not the subject of proof and therefore not on the footing of evidence that was admissible in the proceedings.
14. In all the circumstances the Court should not permit reliance upon this new material at this very late stage. The defendants would be seriously prejudiced by any adjournment of the proceedings, given they have been on foot for four and a half years and involve allegations of negligence against a firm of solicitors where the defendants have prepared for and are ready for a trial that was set down over 12 months ago.

Consideration

1. As I have noted, Part 6 of the Civil Procedure Act requires me to make orders to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56. The dictates of justice must also be considered and s 58(2) of the Civil Procedure Act sets out the relevant considerations. This is not a particularly difficult or complicated case. Although there is some complexity associated with the necessary preparation of evidence to support the counterfactuals the plaintiffs needs to prove to show they have lost a chance of some value, this has been an obvious requirement from the beginning. Also obvious is that any affidavit evidence must be in admissible form. It is no answer to say that some of the material was known to the defendants from prior litigation or from earlier deployment of the material in this case when it was put to the defendants in a form that was inadmissible.
2. The purview of Mr Dowart's potential evidence was obvious in 2018. If an appropriate way to place the Memjet companies' American tax and financial information before the Court was via Mr Dowart, that should have been done in 2018, although I draw no conclusion that that would necessarily have been an appropriate way for that material to have been proved.
3. The plaintiffs have not prosecuted these proceedings with expedition. Their conduct has caused many delays. The opportunity to obtain the material has been long. There have been multiple further opportunities to raise any issue about the completeness or otherwise of the evidence at the many directions hearings, or to avail themselves of the liberty to apply order that remained in place for the last 18 months in circumstances where there has been judicial case management since early 2018.
4. Mr Archibald suggests that injustice has been caused to the plaintiffs because the material is necessary to advance the damages case. In my view, and based on my understanding of the evidence thus far, the plaintiffs' case on damages can and does rely upon other methods of calculation set out in the Further Amended Statement of Claim, as articulated in the opening submissions and as set out in the Schedule of Loss and Damage provided to the Court on 29 June 2021. Those other methods do not rely upon the material appended to Mr Dowart's affidavit. In no way does a refusal to allow the June 2021 affidavit of Mr Dowart mean that the plaintiffs cannot proceed with their case. Even if it did, the plaintiffs have had four and a half years to obtain, collate, file and serve the relevant evidence. I do not consider a refusal to allow reliance upon this further affidavit, this late, to be unjust.
5. On the other hand, to allow the late service would cause significant injustice to the defendants. They have waited some years for the plaintiffs to at last complete service of their evidence so that they could file and serve their own evidence in response. It would be unfair to now have to re-prepare the case based on this last-minute material. To adjourn the proceedings to allow time for that to be done simply visits an injustice on top of that unfairness.
6. These five weeks were set aside for the trial in March 2020 after many hours of judicial case management. It concerns allegations of negligence and misrepresentation made against a firm of solicitors where the partners have been separately named and the proceedings have been before the Court for over four and a half years.
7. The defendants' legal representatives have cooperated with the Court processes. There has been timely compliance with orders on all occasions. They have assisted with the provision of evidentiary bundles and Court books in an orderly and helpful fashion, including when, on occasion, it became evident that the plaintiffs were not in a position to prepare such material. They have provided helpful submissions at all stages. They have supplied helpful pre-trial documents such as schedules of objections and a well-indexed and chronologically presented tender bundle of some 13 volumes as well as a detailed trial plan. They have behaved as model litigants.
8. Whilst there is no doubt that the defendants had at their disposal more litigation support resources than the plaintiffs, and at times the plaintiffs were without a solicitor to assist, it is still the case that the defendants did everything within their power, to my observation, to facilitate a just, quick and cheap disposal of the proceedings. The plaintiffs did not.
9. It would in my view be unfair to the defendants to allow late service of material and then add to that the prejudice by adjourning the long-awaited trial, in all likelihood for at least another 12 months. Justice would not be served by permitting that to occur.
10. Nor would justice be served by wasting the five-week hearing date set aside on the basis that the trial can simply be adjourned to occupy another five weeks of Court time next year. This would be a waste of Court resources now, and then impinge on the available Court resources for other litigants next year. The dictates of justice tell strongly against admission into evidence of the 28 June 2021 affidavit of Mr Dowart and the plaintiffs are not permitted to rely upon it.

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