On 5 March 2020 the plaintiff commenced proceedings against four defendants by way of summons. The summons seeks various declarations as well as momentary judgment for asserted damage to property and damages arising from and associated with the agreement to purchase the property known as 62 Kelly Street, Austral.
The proceedings are supported by an affidavit of Mr Di Liristi which, to be completely frank, is very difficult to follow and does not, on the face of it, appear to explain the bases for the relief claimed in the summons.
I understand from what Mr Di Liristi has told me today that he did not have assistance of legal advice in preparing the summons and affidavit.
The proceedings have come before me today as Duty Judge at the request of Registrar Jones. This was because various orders that were made by the Registrar as 28 April 2020 appear to be contested by Mr Di Liristi. He did not appear on 28 April 2020 but letters have been sent submitting that he is not able to comply with the timetable set down for this matter associated with the defendant's application for dismissal of his summons which is listed for hearing on 17 June 2020.
I need to go into the background to provide context. The proceedings were first returned before the Registrar on 17th March 2020, and at that point it seems from what I can glean from the file, that the first, third and fourth defendants' solicitor articulated an intention to act on its view that the proceedings were not properly brought in this jurisdiction and perhaps not properly brought at all.
There has never been any appearance for the second defendant, Mr Fowler. I accept what Mr Di Liristi has told me that there was personal service by him on Mr Fowler. Mr Di Liristi is to file an affidavit of service evidencing that occurred. I will make an order that that be done within 7 days so that the Court record is clear.
On 20 April 2020 the first, third and fourth defendants filed a notice of motion for dismissal of the proceedings. That was supported by an affidavit of Maroun Draybi.
Mr Di Liristi, who appears for himself today, and appeared for himself before the Registrar earlier today, contests that that notice of motion and affidavit was ever served upon him.
An affidavit of Christopher Habra, solicitor for the first, third and fourth defendants, sworn 14 May 2020, was tendered by Ms Avery-Williams of counsel. That affidavit has within it evidence that I accept, that the notice of motion and supporting affidavit material, together with the exhibit to the affidavit, was served by express post at 62 Kelly Street, Austral at 4:56pm on Tuesday 21 April 2020. That affidavit also evidences that the same material was served by email on 20 April 2020. Mr Di Liristi contests that the email address at which it was served was one to which he had access.
Also before me on the directions hearing are two affidavits of Mr Di Liristi dated 8 May 2020 and 15 May 2020.
I have also marked the photograph of a post box, apparently on a country property. I understand from Mr Di Liristi that it is asserted by him that this photograph shows the post box associated with the address he has given for service. He relies on that photograph as suggestive of the fact that I should have a doubt that the evidence regarding service is correct because a large bundle of material could not fit into the box and Australia Post would not have left the package lying near or under the post box.
There is no doubt in my mind at all that the plaintiff was well aware that the proceedings were listed before the Registrar on 28 April 2020 for a timetable for service of material in respect of the first, third and fourth defendants' notice of motion to be made.
There is various correspondence on the Court file directed to the Registrar by a person known as "Melissa" on behalf of Mr Di Liristi, arguing for various timetables in respect of the defendants' notice of motion.
Mr Di Liristi did not appear either by himself or via Melissa on 28 April 2020 and orders were made in his absence, setting out a reasonable timetable for the filing and service of evidence and submissions in respect of the defendants' notice of motion.
After this, there was further agitation on behalf of Mr Di Liristi by way of emails sent to the Registrar by Melissa, some of which were entirely inappropriate and almost none of which were copied to the solicitor for the defendants.
This series of events led to the Registrar listing the matter this morning with a view to trying to sort out what the difficulties were, and when it became evident that was not able to be done, the Registrar referred the matter to me.
I have carefully read the affidavits of Mr Di Liristi and the affidavit of Mr Habra, and listened at length to Mr Di Liristi's oral submissions as to why he says that his physical and other difficulties mean that he is not able to prepare, file and serve the necessary affidavit material in response to that relied on by the defendants.
As Mr Di Liristi points out, quite properly, the dismissal application would have the effect of him losing his case. He clearly appreciates the importance of being able to put on affidavit material so that the Court can hear why it should not, in his view, accede to the defendants' application.
Complicating the proceedings to an extent is the fact that there are other proceedings before NCAT, and adding to the reasons why the defendants are keen to maintain the hearing date of 17 June 2020 set by the Registrar, is that NCAT has determined that it will not proceed with the matters filed before it until the Supreme Court proceedings have been dealt with. This is most unfortunate because there does seem to be a real and potentially serious obligation on the owners of the property in issue to attend to matters involving the clean-up of pollution. I can see how other difficulties will follow if the NCAT proceedings are further delayed.
Mr Di Liristi raised a number of matters to do with his mental and physical health. Frankly, the material provided in the affidavit of 8 May 2020 is quite inadequate to support the extensive problems he says that he suffers. The medical material really consists of bare statements by a general practitioner stating he is "unfit for work and study" for the long periods identified. I do not however have any basis to doubt that Mr Di Liristi suffers from a number of difficulties from a medical and psychological point of view. Certainly there is a CT scan of the lumbar spine dated 25 February 2020 which appears to evidence a reasonably serious back problem at the L3/4 level.
Having noted all of that, however, it is clear, as submitted by Ms Avery-Williams on behalf of the defendants, that despite all these difficulties, Mr Di Liristi has been able to commence these proceedings by summons as well as to appear on 17 March 2020, to appear at NCAT on 1 May 2020, to give various instructions to Melissa to send multiple emails to the registry, to offer to avail himself for discussion with court staff by telephone and to provide instructions and to prepare the detailed affidavits of 8 May 2020 and 15 May 2020.
Mr Di Liristi tells me today that he is of the view that he needs to call eight witnesses in respect of the application. It is not entirely clear whether he means to call them or just file affidavits by them. He has named those proposed witnesses on the Court record.
Mr Di Liristi indicated by what he has said today that he understands that it is being suggested by the defendants that this case should be dismissed because it is frivolous. He sees the need to show the Court that it is not frivolous and that he has a real basis for bringing the action that he does.
Mr Di Liristi also said that he believes an application to Legal Aid was made around about 8 May 2020. There is no evidence before me about that other than what Mr Di Liristi says in unsworn form on the telephone this afternoon.
Mr Di Liristi stated that he believes he needs a further long period to prepare. This delay would mean that his affidavit material would not be filed and served until after the date currently fixed for hearing of 17 June 2020. There appears to be some difficulties surrounding electricity supply at the property and other personal matters that Mr Di Liristi spoke about this afternoon but which were not the subject of affidavit evidence.
Another important matter, and perhaps the most important matter of substance, is that Mr Di Liristi says that documents he needs are contained on hard drives that are currently being fixed by a company in Sydney. The affidavit evidence confirms that those hard drives should be fixed by around 25 May 2020.
I am of the view that a short extension to the timetable laid down by the Registrar on 28 April 2020 would be appropriate. The Registrar had ordered on 28 April that Mr Di Liristi was to file and serve his affidavit evidence in response by tomorrow. Obviously that is not going to happen.
Ms Avery-Williams submitted that given the extensive amount of preparation and paperwork Mr Di Liristi has been able to prepare, for both these proceedings and those before NCAT, there is no reason why, from a physical and psychological point of view, Mr Di Liristi could not continue to pursue the preparation and filing of his evidence. He has demonstrated he can do so. I agree.
Although this places some pressure on the defendants in terms of provision of their evidence in response, I consider it reasonable to extend the time for Mr Di Liristi's compliance with the order made by the Registrar on 28 April 2020 to Wednesday 10 June 2020. I would then compress the time available to the defendants to file and serve their evidence in response to Friday 12 June 2020 at 5:00pm, and order that the parties exchange written submissions on 15 June 2020 and maintain the hearing date of 17 June.
Having considered the affidavit material and the oral submissions, I make the following alterations to the orders made by the Registrar on 28 April 2020:
1. The plaintiff is to file and serve his evidence in response to the evidence relied upon by the defendants in respect of their notice of motion filed 20 April 2020 by 5:00pm on 10 June 2020.
2. The defendants are to file and serve their evidence in response by 5:00pm on Friday 12 June 2020.
3. The parties are to exchange outline written submissions with each other and to file those submissions with the Court by 5:00pm on Monday 15 June 2020.
4. I confirm the hearing of the defendant's notice of motion at 10:00am Wednesday 17 June 2020 with a 3 hour estimate.
5. The defendant may effect service of any of its material by emailing same to the following email address Infoatmmracing@gmail.com and service at that email address will be taken to be compliance with any of the orders for service I have made.
6. The plaintiff is to file and serve an affidavit of service of his summons and affidavit in support on the second defendant, Michael Bernard Fowler, within seven days of today, so that would be by 5:00pm on Monday 25 May 2020.
I note that although Mr Di Liristi was today not assisted by legal representation, he was able to state his position in respect of the proceedings with great clarity. This showed a good perception and understanding of the arguments he needed to meet. It also showed some skill as an advocate for himself. I saw or heard no evidence of difficulty with dealing with the subject matter or inability to address the types of decisions and evidentiary matters he now needs to attend to.
[2]
Costs
Ms Avery-Williams sought an order that her client's costs of today's quite lengthy directions hearing this afternoon which has spanned from 2:30pm to just after 4:00pm, as well as the directions hearing before the Registrar this morning, be paid by the plaintiff.
As I stated at the outset, the directions hearing was listed by the Registrar because she was being, in effect, bombarded with correspondence, unrequested, and not copied to the solicitors for the defendant, by Melissa on behalf of Mr Di Liristi. I understand the Registrar felt the only way to deal with this constant surge of correspondence was to list the matter and air whatever the difficulties were in open court, in the presence of legal representatives for the defendants.
Mr Di Liristi submitted that he has, in effect, had partial success in his appearance today because the timetable laid down by the Court on 28 April 2020 has been extended.
I emphasise however, and as submitted by Ms Avery-Williams, the hearing date of 17 June 2020 has been maintained. On 28 April 2020 the plaintiff did not appear and thus orders were made in his absence. The series of correspondence forwarded to the Registrar, without authority and without appropriate regard to court process, led the Registrar to reach the view the only way to deal with the matter was to list it for directions. This position was forced by the plaintiff's conduct.
No accommodation was able to be reached between the parties this morning about an appropriate timetable. As pointed out by Ms Avery-Williams, the timetables argued for by Mr Di Liristi at various points since 28 April 2020 would all have resulted in the adjournment of the hearing fixed for 17 June 2020. Indeed, the last timetable pressed suggested that a hearing date for the defendant's notice of motion should not proceed until after 12 July 2020. This would have had the effect of forcing the adjournment of the NCAT proceedings listed on 8 July 2020 at 2:15pm. The relevance of that is that the judicial member of NCAT took the view that NCAT could not deal any further with the proceedings before it until these proceedings in the Supreme Court had been dealt with. Whilst I am surprised at that being the attitude taken, it is nevertheless the reality of the position between the parties.
Given those circumstances that I have just outlined, the necessity for the matter to come before me as Duty Judge at all today, and for the matter to be listed before the Registrar, are because the plaintiff failed to appear on 28 April 2020 and was not willing to comply with the court timetable. Instead he insisted that he could not be ready for the 17 June 2020 hearing date. What has been secured is that 17 June 2020 hearing date. Accordingly the plaintiff has not had success in the arguments that have been raised before the Court today.
Accordingly, I am of the view that the plaintiff should pay the first, third and fourth defendants' costs of the listing before the Registrar this morning and of the directions hearing before me as Duty Judge this afternoon.
[3]
Orders
I make the following orders:
1. The plaintiff is to file and serve his evidence in response to the evidence relied upon by the defendants in respect of their notice of motion filed 20 April 2020 by 5:00pm on Wednesday 10 June 2020.
2. The defendants are to file and serve their evidence in response by 5:00pm on Friday 22 June 2020.
3. The parties are to exchange an outline of written submissions with each other and to file those submissions with the Court by 5:00pm on Monday 15 June 2020.
4. I confirm the hearing date for the defendant's notice of motion at 10:00am on 17 June 2020 with an 3-hour estimate.
5. The defendant may effect service of any of its material by emailing same to the following email address: infoatmmracing@gmail.com and service at that email address will be taken to be compliance with any of the orders for service I have made.
6. The plaintiff is to file and serve an affidavit of service of his Summons and affidavit in support upon the second defendant, Mr Michael Bernard Fowler by Monday 25 May 2020.
7. The plaintiff is to pay the first, third and fourth defendants' costs of today.
[4]
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Decision last updated: 26 May 2020