Douglas & Anor v Madden & Ors

CATCHWORDS : PROCEDURE - judgments and orders - amending, varying and setting aside - notice of motion - application sought to vary self executing order - plaintiffs failure to comply with self executing order - short delay in filing evidence - no explanation given - orders sought refused - costs

Civil Procedure Act 2005 LEGISLATION CITED : Uniform Civil Procedure Rules Trade Practices Act 1974 (Cth)

Douglas & Anor v Madden & Ors [2009] NSWSC 47 FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others (1987-8) 165 CLR 268 CASES CITED : McWilliam and Ors v Watson and Ors [2000] NSWSC 761 Rayscan Management Pty Ltd & Ors v Siv Nandan Moodliar [2008] NSWSC 857 The State of Queensland & Anor v JL Holdings Pty Limited (1996) 189 CLR 146

Troy Douglas (formerly known as Douglas Pestano) - First Plaintiff Morgan Price Limited - Second Plaintiff PARTIES : Phillip MacDonald Madden & Julia Anne Madden t/as Maddens Commercial Lawyers and/or Maddens Business & Property Lawyers - First Defendant Maddens Lawyers Business & Property Pty Limited - Second Defendant Andrew Tennent Sutherland, John Richard Cox, Christopher Hugh McCaffery,Timothy John Eakin, Michael John Patrick White & Michael Leo Stafford t/as Eakin McCaffrey Cox - Third Defendant

COUNSEL : Mr L Gor - Plaintiffs Mr I Griscti - Defendants

Bryan Gorman & Co - Plaintiffs SOLICITORS : HWL Ebsworth Lawyers - First and Second Defendants Middletons - Third Defendant

• 15 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

020435/05 TROY DOUGLAS (FORMERLY KNOWN AS DOUGLAS PESTANO) & ANOR -V- PHILLIP MACDONALD MADDEN & JULIA ANNE MADDEN t/as MADDENS COMMERCIAL LAWYERS AND/OR MADDENS LAWYERS BUSINESS & PROPERTY LAWYERS & OTHERS

JUDGMENT 1 HER HONOUR: By motion of 3 March 2009, the plaintiffs seek orders varying a self executing order made on 13 February 2009, in terms that 'If the plaintiffs do not serve the outstanding expert's report and any supporting affidavits by 4 pm on 27 February 2009, the proceedings are dismissed', as well as costs of the motion. (See Douglas & Anor v Madden & Ors [2009] NSWSC 47). The variation sought was that the words '4 pm on 27 February 2009' be replaced with the words '12 noon on 2 March 2009'. 2 These orders were sought because the plaintiffs failed to comply with the self executing order. The result was that unless the order of variation sought is made, the proceedings stand dismissed. 3 It was not in issue that the plaintiffs served two affidavits before 5 pm on 13 February, four volumes of documents on the following Monday and that the plaintiffs' evidentiary case was concluded with the filing of those documents. It was also common ground that the Court had the discretion to make the order sought (see Parts 1.12 and 36.16 of the Uniform Civil Procedure Rules). The orders were opposed by the defendants as not being available to be made as a matter of justice between the parties. 4 If the only matter to be considered was this short delay in filing the outstanding evidence, an argument that it would be unjust to the plaintiffs to shut them out of the case they wish to pursue against the defendants, is one which could readily be advanced. That, however, is not the entirety of what here arises for consideration, as the plaintiffs' submissions properly accepted, it being accepted that their failure was serious and regrettable. 5 Wilson J observed in FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others (1987-8) 165 CLR 268 at 283-4, that the question of whether a discretion such as that here sought to be exercised, should be exercised in favour of an applicant for relief, must be approached in this way:

It is against this background that I turn to the construction of the rule upon which the respondents successfully relied before the Court of Appeal. Part 2, r. 3 of the Rules reads as follows: "(1) The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order. (2) The Court may extend time under subrule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires. ... "

The plain meaning of these words is very wide. The Court may extend "any time" fixed by "any ... order" and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay LJ said in Carter v Stubbs ((1880) 6 QBD, at p 120) of the analogous English rule, it gives "very full discretionary power; indeed, I can hardly imagine a more extended discretion". It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance. 6 In McWilliam and Ors v Watson and Ors [2000] NSWSC 761, Adams J also had to consider an application to amend a self executing order dismissing proceedings, to overcome the plaintiff's failure to comply with the order. His Honour took the view that considerations of the importance of finality in litigation did not have much weight at that point of the proceedings, there having been no hearing on the merits of the plaintiff's claim. In that case, the explanation for the failure to comply with the self executing order was the plaintiff's impecuniosity, which proved to be an impediment in his ability to adhere to what the order had required of him. That provided a sufficient basis for a discretion to be exercised in the plaintiff's favour. 7 Nowadays, what is also required to be considered when a discretion such as this is sought to be exercised, is what is required under the Civil Procedure Act 2005. In the February judgment, I observed in relation to the defendants' application that the proceedings be dismissed, that:

6 Rule 12.7 permits the dismissal of proceedings which are not prosecuted with due despatch. The power is to be exercised in accordance with the provisions of s 56 and s 59 of the Civil Procedure Act 2005, which are concerned with, respectively, facilitating 'the just, quick and cheap resolution of the real issues in the proceedings' and eliminating delay. Fundamentally, the Court must always act in accordance with the dictates of justice in determining applications such as this (s 58). Attention must also be paid to the Court of Appeal's approach in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28] - [29].

7 It is well settled that multiple failures to comply with directions and orders can properly result in the exercise of the discretion to dismiss. (See Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274.) Nevertheless, the exercise of the discretion requires a balancing exercise, in which a range of relevant factors must be considered. 8 Similar considerations arise at this point, where orders under which the proceedings have been dismissed are effectively sought to be set aside. This was considered by Einstein J in Rayscan Management Pty Ltd & Ors v Siv Nandan Moodliar [2008] NSWSC 857, particularly at [18] to [22]: 18 With the passage of time judges continue to approach the due administration of justice conscious of the importance of weighing carefully the alternate claims put forward by those seeking the indulgence of the Court [as for example to make late amendments or to introduce late witness statements or indeed in this case to have an extension of time in a self-executing order made] and the claims of those resisting such orders [as for example on the grounds that they will suffer irremediable prejudice were the Court to grant such leave]. These are issues which can only be determined on a case-specific basis. In State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, Kirby J (at 170) observed that courts now take into account the strain which litigation may place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes. At the same time his Honour, with respect entirely correctly, observed that departures from a court-ordered timetable, whilst relevant to the court's power to sanction such departure, was not decisive. As his Honour put it "[s]much orders are the servants of justice" (at 170).

19 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 is a recent decision by the Court of Appeal of particular significance which emphasises what I have indicated in terms of the statutory underpinning of the overriding purpose duty. Relevantly Nicholas J at first instance had refused to grant leave to the applicant to replead and in doing so exercised the discretion solely on the basis that the limit to which leave should be given to replead "has been well and truly reached" by what was effectively the sixth pleading. The holding was that the trial judge was correct to do so. Further and in any event, no error had been identified which would justify this Court of Appeal interfering with the exercise of the discretion.

20 The Chief Justice [with whose reasons Basten and Campbell JJA agreed] put the matter as follows: [28] The respondent invoked the authority of State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 in support of its ability to amend, even for the fifth time. Case management practices in all Australian courts have changed significantly in the decade since that judgment. Although it remains binding authority with respect to the applicable common law principles, the circumstances of the case were significantly different from those in the present case and do not dictate its outcome. In any event, such principles can be, and have been, modified by statute both directly and via the statutory authority for Rules of Court.

[29] In this State J L Holdings must now be understood as operating subject to the statutory duty imposed upon the courts by s 56(2) of the Civil Procedure Act 2005 , which requires the Court in mandatory terms - "must seek" - to give effect to the overriding purpose - to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" - when exercising any power under the Act or Rules. That duty constitutes a significant qualification of the power to grant leave to amend a pleading under s 64 of the Civil Procedure Act (Cf: Michael Wilson and Partners Ltd v Nicholls [2008] NSWSC 501 at [3] - [8]). 21 The classical statement of the approach to be taken in the exercise of the discretions to permit pleading amendments [and I would add, like case management granting leave to depart from set directions] is found in the opinion of Bowen LJ in Cropper v Smith , in which his Lordship held that :

"it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights. Speaking for myself, and in conformity with what I have heard laid down by the other division of the Court of Appeal and by myself as a member of it, I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or of grace." [(1884) 26 Ch D 700 at 710-711]

22 Whilst this statement remains strictly accurate, I would venture to suggest that, with the advent of sections 56 to 60 of the CPA, the court is now required to consider the degree and type of injustice which each party may suffer as a result of the order sought, and to do so in the context of other factors, such as the elimination of delay and the desire to ensure that disproportionate costs are not incurred in the proceedings. 9 In Rayscan Management his Honour also concluded that an application such as this should succeed, even though there had been a history of failure to comply with the Court's orders. The particular orders which had finally been complied with, albeit after the time required, (as to the payment of money into Court), had been directed to righting the resultant imbalance between the parties to those proceedings. The overwhelming factor in that case warranting the making of the order sought, was found to be that to refuse the order would be to shut the defendant out of litigating a defence and cross claim, the balance between the parties in the proceedings having been righted by the late compliance with the order. 10 That situation is somewhat different to this one. Here, unless the order sought is made, the proceedings stand dismissed, that being the consequence of the orders made in February. The proceedings were brought in contract, tort, negligence and under the Trade Practices Act 1974 (Cth). It was argued to be a consideration in favour of granting the relief sought, that part of the plaintiffs' claim would be statute barred, if the relief were not granted. It was also argued to be relevant to consider that the defendants would then be entitled to seek its costs of the proceedings and that might impact on the plaintiffs' ability to begin further proceedings against the defendants, if they wished. If such proceedings were commenced, there would only be further delay in the parties' rights being determined. 11 These are all considerations to be weighed, undoubtedly I accept. Also to be considered, however, is that it was precisely these types of considerations which led to the self executing order being made in the February judgment. Then the defendants were seeking orders dismissing the proceedings for want of prosecution, in the face of the plaintiffs' repeated failure to comply with the Court's orders and directions, despite repeated warnings given by members of the Court as to the consequences of those failures. I observed in the February judgment that:

8 In this case the repeated explanation for the plaintiffs' failures to comply with the Court's orders has been various difficulties in getting an expert's report and the resulting need to put on further evidence from the plaintiffs, to provide a factual foundation for the report. The resulting prejudice to the defendants is patent, as the plaintiffs conceded. The claim is concerned with events which arose in 2002, as the result of the plaintiffs' dealings with the defendants, solicitors who advised in relation to a business, which commenced operations in 2003, which were suspended later that year as the result of steps taken by ASIC.

9 The proceedings have been on foot since 2005 and in 2009, the plaintiffs are still in breach of their obligations under the Court's orders, having still failed to put on their evidence, despite the repeated orders made. The plaintiffs have been on notice of the potential consequences of further delay since August 2008. Justice is not served if defaulting parties are simply given 'multiple repeated opportunities' to present their case. That would be to fail to do justice so far as the other parties to the proceedings are concerned and to ignore the consequences of such default for the administration of justice.

10 Given what was advanced today by the parties it seems to me that the just course as between these parties is to give the plaintiffs one final opportunity to put on the evidence. I propose to make a self executing order on the basis that unless the plaintiffs have served all of their outstanding evidence by 4pm on 27 February 2009, the proceedings are dismissed. That date is 14 days from today, a date suggested by the defendants as reasonable, if such an approach were to be adopted. The plaintiffs did not seek to argue against such a timeframe, arguing rather that to be shut out completely, given how close they were to putting on the outstanding evidence, would not achieve justice. In putting that submission, this necessarily accepted the consequence of any further failure to file the outstanding evidence. 12 Whether the discretion sought should now be exercised in favour of the plaintiffs must plainly be considered in light of any explanation advanced for the plaintiffs' further failure to comply with the order made in February. It was then abundantly clear and accepted by the plaintiffs that this was their final opportunity to resist the dismissal of the proceedings then being urged upon the Court by the defendants. 13 What reasons were advanced for the plaintiffs' failure to comply with the terms of the self executing order? While affidavit evidence was put on by the plaintiffs' solicitor, there was, in fact, no explanation given as to why the order had not been complied with. The time afforded the plaintiffs to put on their outstanding evidence was generous in the circumstances explained in February, on any view. On earlier occasions difficulties with experts, briefing counsel and latterly, the consequences of the bush fires in Victoria were relied on. 14 All that was advanced on this occasion was that it was not until 3.40 pm on 27 February that the affidavit sworn by Mr Michael Hill was taken to the Registry to be filed. The original of the affidavit was with Mr Hill in Melbourne. The Registry was busy and it was not until 4.15 pm that the affidavit affirmed on Friday, 27 February by the plaintiff, Mr Troy Douglas, was filed and at 4.20 pm an undertaking was given to the Duty Registrar that the original of Mr Hill's affidavit would be filed by 6 March. 15 It was then that a sealed copy of Mr Douglas' affidavit and a copy of Mr Hill's report, being an exhibit to his affidavit, were served on the defendants' solicitor at about 4.45pm. The four volumes of documents annexed to the affidavits were not served, because they had not been copied. That was done on Monday, 2 March and those documents were then served after 11 am. 16 Why it came to be that the order was not complied with, was not explained at all. 17 For the plaintiffs it was accepted that the proceedings had been dismissed, as a consequence of their failure to comply with the self executing order. It was argued, nevertheless, that in considering the plaintiffs' application, the Court would consider that on the one hand, to refuse to make the order would be to 'snuff out' the plaintiffs' case, even though the defendants had not suffered any additional prejudice by the plaintiffs' short delay in complying with the order. They had already been sanctioned for their delay by the costs order made against them in the February judgment. Their claim was patently not a frivolous one. In those circumstances justice demanded that the extension sought would be granted. For the defendants it was argued that justice demanded that the extension be refused, because nothing had been advanced to explain why the Court's order had not been complied with. While the default was a short one, it was one which had occurred at a time when the defendants' application for dismissal had earlier been refused on the basis that the plaintiffs would be given one further, final chance to put on their evidence. To grant the order now sought in the absence of any explanation at all from the plaintiffs as to why that order had not been complied with, could not do justice, so far as the defendants were concerned. 18 The question which thus falls to the Court to answer is whether justice would be done between these parties, if the order now sought by the plaintiffs were made, in the face of this history? 19 The question, it appears to me must be approached having in mind the onus which fell on the plaintiffs to establish a proper basis for the relief sought. A foundation for the exercise of the discretion could have rested, as it has in other cases, on the plaintiffs' explanation of the difficulties which led them to the position where they were unable to comply with the order which gave them a final opportunity to put on their evidence. In this case, that was a considerable latitude, as was accepted by the plaintiffs at the hearing in February. 20 The plaintiffs gave no explanation at all for the failure to comply with the order which provided them with that final opportunity to pursue their claims. The consequences for the plaintiffs of any further failure to comply with the order was well apparent in February, when the self executing order was made. That was what they were sheltered from in February by the order then made, notwithstanding that they had been repeatedly warned as to the consequences of their failure to comply with the Court's orders. Nothing has changed in that respect and still the self executing order was not complied with. Before February the plaintiffs had been given multiple, repeated opportunities to advance their case and still, without explanation, they have failed to take advantage of the final opportunity they were then given to avoid the dismissal of the proceedings. 21 In the circumstances, given that there is no explanation at all of this further failure to comply with the Court's order, I am unable to see how the interests of justice dictate that the plaintiffs be given yet even another opportunity to advance their case. How could that reflect a proper balance between the parties at this stage of these proceedings, which concern complaints about matters which occurred in 2002 and 2003? I do not see that making the order would accord with the requirements of sections 56, 57 or 58 of the Civil Procedure Act 2005. It must be recollected that even in The State of Queensland & Anor v JL Holdings Pty Limited (1996) 189 CLR 146, it was observed by Kirby J at pp 169 - 172, that:

5. Amongst considerations which may tend to favour the extension of an indulgence to a party applying for it are the following: that this is the only way in which the true issues and the real merits, factual and legal, can be litigated and artificiality avoided [ The Commonwealth v Verwayen (1990) 170 CLR 394 at 456; Ramton v Cassin (1995) 38 NSWLR 88 at 91-92; special leave to appeal to the High Court of Australia refused 15 April 1996.]; that the oversight which occurred is adequately explained [ Tony Sadler Pty Ltd v McLeod Nominees Pty Ltd (1994) 13 WAR 323 at 338, per Scott J, dissenting.] as, for example, that it arose out of sudden and unexpected events [ Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 143.]; that the proposed amendment is of considerable importance to the rights of a party, particularly where it provides a complete answer to a claim [ United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156 at 163, per Bollen J.]; that any fault is that of the party's legal representatives [ Clough and Rogers v Frog (1974) 48 ALJR 481 at 482; 4 ALR 615 at 618.]; that the oversight was wholly accidental [ United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156 at 162.]; that it was simply the product of unavoidable human error [B yron v Southern Star Group Pty Ltd (1995) 123 FLR 352 at 353; 13 ACLC 301 at 302.] or, possibly, the outcome of the application to the case of fresh legal minds who perceived an important new point [ Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 390-391.]; that cost orders or the imposition of other conditions could adequately rebalance the competing claims to justice [ Black v City of South Melbourne (1964) 38 ALJR 309 at 310; cf Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; The Commonwealth v Verwayen (1990) 170 CLR 394 at 464. Note the significance, in some litigation, of the limitations or requirements imposed by public legal aid: Howarth v Adey [1996] 2 VR 535, per Brooking JA.]; and that the hearing date is sufficiently in the future to permit a party to meet the amendment, taking into account any consequences for the gathering of fresh evidence, the conduct of discovery or like pre-trial procedures and the loss of assigned hearing dates [cf Brooks v Wyatt (1994) 99 NTR 12; Howell v Haines [1997] Aust Torts Reports 63,751.]. Departures from a court ordered timetable, whilst relevant, are not decisive [ Cohen v McWilliam (1995) 38 NSWLR 476 at 478, per Priestley JA.]. Such orders are the servants of justice. They are designed to enhance its achievement in a way that an inflexible application of rigid rules could prevent [ National Australia Bank Ltd v Nobile (1988) 100 ALR 227 at 235-236.] . Efficiency in the despatch of court lists can sometimes be purchased at too high a price, as the biographer of Lord Brougham vividly demonstrated [Atlay, The Victorian Chancellors (1906) vol 1, pp 318-319.].

6. Considerations which tend to argue against the grant of an indulgence include many which are the counterparts of the foregoing. Thus, the failure of a party to offer anything by way of explanation for a late application has been held relevant [ Amatek v Botman (1995) 13 ACLC 1729 at 1732.]. So has the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions [ Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 141-142.]. Courts now take into account the strain which litigation may place upon those involved [ Ketteman v Hansel Properties Ltd [1987] AC 189 at 220.] and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes [ Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 392.]. In my view this is not a consideration limited to litigation by natural persons or involving private citizens. Because justice cannot be measured solely in monetary terms, costs orders are not necessarily an adequate balm to the other party [ Ketteman v Hansel Properties Ltd [1987] AC 189 at 220; The Commonwealth v Verwayen (1990) 170 CLR 394 at 464, per Toohey J.]. Thus, the proximity of the hearing is clearly a most important consideration [ Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at 142-143; Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 393.]. An opposing party is entitled to have taken into account the consequences of an indulgence, especially where it would cause disarray at the last minute to its preparation of the trial [ Bomanite Pty Ltd v Slatex Corp Aust Pty Ltd (1991) 32 FCR 379 at 393.]. Similarly, the length of time that the proceedings have been pending before the application is made will often be a relevant consideration. The longer the time, the more reasonable it may be to expect that the parties, or their lawyers, should have earlier appreciated, and raised, the point in issue [ Clough and Rogers v Frog (1974) 48 ALJR 481; 4 ALR 615; Cohen v McWilliam (1995) 38 NSWLR 476 at 502.]. If a consequence of the indulgence is truly a necessity to postpone a trial date, this will be a most important consideration [ United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156 at 161-162.]. Its importance increases with the congestion of court lists and the difficulty, particularly in the case of a lengthy trial, of securing early replacement dates. The extent to which a new issue would give rise to a substantial and new case in reply is also relevant. So may be the nature of the litigation and whether it has been assigned to a special list designed to cater for the peculiarities and special needs of commercial cases, long trials and the like [ GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 at 711; Cohen v McWilliam (1995) 38 NSWLR 476 at 497-498, per Cole JA; FAI General Insurance Co Ltd v Burns (unreported; Court of Appeal (NSW); 15 August 1996); Howarth v Adey [1996] 2 VR 535, per Brooking JA.]. Writers on effective case management repeatedly stress the importance of adhering to a "firm, credible ... trial date" as an important element in securing the serious attention to a dispute which may help to promote its resolution [Schwarzer, "Case Management in the Federal Courts", Civil Justice Quarterly, vol 15 (1996) 141, at p 144.]. They call attention to the risks of "litigation abuse" by which some litigants seek, at all costs, to avoid firm hearing times [Schwarzer, "Case Management in the Federal Courts", Civil Justice Quarterly, vol 15 (1996) 141, at pp 141-142.]. Courts are entitled to react unfavourably to repeated default on the part of a litigant whose conduct has the effect of frustrating a proper timetable fixed for the trial. Justice will not necessarily require that a party should have multiple opportunities to plead and present its case [cf Cohen v McWilliam (1995) 38 NSWLR 476 at 502, per Cole JA.]. A court must accord justice to the particular litigant. But it must also maintain its responsible use of scarce public resources [ Dawson v Deputy Commissioner of Taxation (1984) 71 FLR 364 at 366; United Motors Retail Ltd v Australian Guarantee Corporation Ltd (1991) 58 SASR 156 at 161; State Pollution Control Commission v Australian Iron & Steel Pty Ltd (1992) 29 NSWLR 487 at 493; Holcombe v Coulton (1988) 17 NSWLR 71 at 77.] and consider, in a general way, the impact which its orders have on other litigants and on the public generally [ Sali v SPC Ltd (1993) 67 ALJR 841 at 849; 116 ALR 625 at 636.].

7. Whilst taking all of the considerations relevant to the circumstances of the case into account, the judge must always be careful to retain that flexibility which is the hallmark of justice. New considerations for the exercise of judicial discretion in such cases have been identified in recent years. But the abiding judicial duty remains the same. A judge who ignores the modern imperatives of the efficient conduct of litigation may unconsciously work an injustice on one of the parties, or litigants generally, and on the public. But a judge who applies case management rules too rigidly may ignore the fallible world in which legal disputes arise and in which they must be resolved.

22 It appears to me that this is one of those situations which his Honour had in mind in what he observed at [7]. The balancing of the type of factors which his Honour discussed in [5] and [6], in the light of the requirements of the Civil Procedure Act, led to the self executing orders made in February. The failure to comply with the self executing order then made resulted in the dismissal of the proceedings. There being no explanation given as to why it was that the plaintiffs did not comply with that order, the balance has now tilted towards the defendants. 23 While the delay in compliance with the order was short, a matter undoubtedly to be considered in determining whether the discretion should be exercised, it must also be considered that there was no suggestion by the plaintiffs that they had experienced any unanticipated difficulty in doing what the order required. On this occasion there was no suggestion that the time given was inadequate, or that anyone, the plaintiffs, the expert, or the plaintiffs' legal advisers, had made any mistake, even though the order did not require the filing of the outstanding evidence and indeed, the Rules expressly provided that evidence was not to be filed (see Rule 35.9). Still, even if the affidavits had been served on 27 February, rather than being filed, still the order would not have been complied with, given what was not served until the following Monday. 24 It seems to me that a party who does not comply with a self executing order such as here in question and who advances no explanation for the failure to comply with the order, but simply relies on an argument that to extend the time for compliance would have no adverse consequences for the other party, faces a difficulty, given the requirements of the Civil Procedure Act. That is but one matter which must be weighed in the balance. 25 In the present circumstances, given the plaintiffs' history in the proceedings, to grant the plaintiffs yet another opportunity to advance their claims, despite the dismissal of the proceedings, would appear to be contrary to the overriding purpose of the Civil Procedure Act and the Rules, particularly having in mind what is contemplated by s 56(3) of the Act, namely that:

(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 26 There can be no question that the plaintiffs repeatedly failed to adhere to that duty. No explanation for the plaintiffs' most recent failure was advanced. In my view, in the absence of any such explanation, no basis for the exercise of the discretion sought was established. It would work an injustice to the defendants to now make the orders sought by the plaintiffs. It is not the refusal of the relief sought which 'snuffs out' the plaintiffs opportunity to advance their claims in these proceedings. That is rather the consequence of their failure to take advantage of the opportunity to advance their claims, which the self executing order gave them in February. I am satisfied that they have not established any basis upon which orders sheltering them from the consequences of that failure could now justly be granted them.

Orders 27 For those reasons, the orders sought in the plaintiffs' motion are refused and the plaintiffs are ordered to pay the defendants' costs of the motion, as agreed or assessed.

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.