Fleet v State of New South Wales

Civil Procedure Act 2005 LEGISLATION CITED : Uniform Civil Procedure Rules 2005 Supreme Court Rules 1970

Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Others [2005] NSWSC 926 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Others [2007] NSWSC 334 CASES CITED : Fleet v Royal Society for the Prevention of Cruelty to Animals [2007] NSWSC 1420 Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Others [2008] NSWCA 227 Hoser v Hartcher [1999] NSWSC 527 Fairey v Fairey (No. 2 ) [2000] NSWCA 173

PARTIES : Robert Fleet (Plaintiff) State of New South Wales (Defendant)

COUNSEL : No Appearance (Plaintiff) Mr GJ Bateman (Defendant)

SOLICITORS : No Appearance (Plaintiff) Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT 1 JOHNSON J: By Notice of Motion filed 18 December 2008, the Defendant, the State of New South Wales, seeks dismissal of proceedings commenced by the Plaintiff, Robert Fleet, pursuant to r.12.7 Uniform Civil Procedure Rules 2005 ("UCPR") upon the basis that the Plaintiff has not prosecuted the proceedings with due despatch. 2 The Notice of Motion has been referred by the Registrar to me as Duty Judge for hearing. The Plaintiff did not appear before the Registrar, nor has he appeared before me. I am satisfied, from evidence which has been tendered by the Defendant, that the Plaintiff has been given notice that this application was to be brought today. He has been served with the Notice of Motion and the two affidavits relied upon in support of the application. Affidavits of Karen Susan Burke affirmed 30 May 2008 and 30 January 2009 have been read by the Defendant on the application. 3 The proceedings have a long history. In 2003, the Plaintiff commenced proceedings by filing a Statement of Claim in this Court with a number of Defendants, including the Royal Society for the Prevention of Cruelty to Animals NSW ("RSPCA"), the State of New South Wales, a District Court Judge, and officers of the RSPCA. The claim arises from events that occurred as far back as August 1997. 4 The proceedings have been before a range of Judges, Associate Judges and Registrars in this Court since 2003. The first affidavit of Ms Burke (affirmed 30 May 2008) recites the history of the proceedings between 2003 and mid-2008. The Statement of Claim was struck out by Registrar Howe. On review, then Master Malpass dismissed an appeal from that decision and, in September 2005, I dismissed an appeal from the decision of Master Malpass except for one ancillary aspect: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Others [2005] NSWSC 926. At that time I made a referral for pro bono legal assistance under Pt 66A Supreme Court Rules 1970, a process which, it would seem from the Court file, did not end up having any practical effect. 5 Thereafter in 2006, James J gave judgment with respect to an aspect of the matter and ordered that the Plaintiff file an Amended Statement of Claim. An Amended Statement of Claim was filed by the Plaintiff on 28 February 2006. 6 On 2 May 2006, Notices of Motion were filed by a number of the Defendants seeking to strike out parts of the Amended Statement of Claim. Simpson J gave judgment on 16 April 2007 on those applications and granted relief, striking out parts of the claim: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Others [2007] NSWSC 334. Thereafter, the matter came before Harrison AsJ in December 2007 and her Honour made orders striking out parts of the Amended Statement of Claim: Fleet v Royal Society for the Prevention of Cruelty to Animals [2007] NSWSC 1420. 7 In due course, on 25 January 2008, Registrar Bradford made orders, including an order that the Plaintiff file and serve an Amended Statement of Claim reflecting the orders of Simpson J and Harrison AsJ by 1 February 2008 and that the Plaintiff respond to a request for particulars by 20 March 2008. The Plaintiff has not complied with either of those orders. To date, no Amended Statement of Claim has been filed and served reflecting the orders of Simpson J and Harrison AsJ; nor has the Plaintiff responded to the request for particulars. 8 An aspect of the litigation came before McCallum J on 13 June 2008. The argument concerned the particulars which had been ordered earlier. McCallum J directed the Plaintiff to furnish replies to the questions within four weeks of 13 June 2008. That order has not been complied with. I note that McCallum J said (page 2): "In those circumstances, I am not prepared to make order 2 sought by the fourth Defendant [the State of New South Wales] that the proceedings be peremptorily dismissed if the Plaintiff fails to comply with an order to provide a response to the letter. In my view the point has not been reached where that is the fair course."

9 It was apparent at that time (13 June 2008), that an order of dismissal of the proceedings was being sought but, on that occasion, her Honour stayed the Court's hand in that respect, clearly giving the Plaintiff an opportunity (and, one would have thought, a final opportunity) to take a step in the proceeding in accordance with the order of the Court. He has not done so. 10 The affidavit of Ms Burke affirmed 30 January 2009 goes on to recite that the Plaintiff brought proceedings in the Court of Appeal which were dismissed by that Court on 24 September 2008: Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Others [2008] NSWCA 227. 11 On 3 October 2008, the matter was listed for a directions hearing and Registrar Bradford made yet another order that the Plaintiff file and serve an Amended Statement of Claim reflecting the orders of Simpson J and Harrison AsJ by 7 November 2008, and that he respond to the request for particulars by 21 November 2008. The Plaintiff has not complied with those orders. 12 The present application seeks dismissal of the proceedings under r.12.7 UCPR. Section 56 Civil Procedure Act 2005 places a statutory obligation on litigants to take steps to facilitate the just, quick and cheap resolution of the real issues in proceedings. That obligation binds the Plaintiff. The history which I have recited reveals that, for a lengthy period of time, the Plaintiff has simply failed, indeed refused, to comply with orders of the Court. He has been placed on notice that the Defendant would seek dismissal of the proceedings because of his failure to comply with orders of the Court. He has been extended opportunities on a number of occasions, with timetables being reset to permit further opportunities to comply with the orders of the Court. 13 Proceedings in this Court involve a wide range of litigants who are entitled to have the resources of the Court applied appropriately and fairly to determine their cases. There is not an endless supply of judicial resources available for litigation to proceed, in an open-ended fashion, despite the fact that a litigant does not comply with orders of the Court. 14 The present proceedings have been on foot for more than five years. The provisions of 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, 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 these matters are related to the function of the Court, and the obligation of litigants, to progress litigation. 15 In my view, the evidence before the Court clearly demonstrates a foundation for the order claimed in the Notice of Motion. The proceedings have been on foot for years, and orders of the Court have simply not been complied with for the last year. Courts should not stand by and permit endless opportunities to a litigant, where reasonable and fair opportunities have been provided in the past on a number of occasions. The time has come, in my view, for orders to be made in accordance with the Notice of Motion. I understand that this step is an exceptional one and it is a power not to be lightly exercised (Hoser v Hartcher [1999] NSWSC 527 at [19]-[30]; Fairey v Fairey (No. 2 ) [2000] NSWCA 173 at [52]). However, the circumstances of this case, in my view, provide a clear foundation for the exercise of the power. 16 I make the following orders:

(1) The proceedings are dismissed generally pursuant to r.12.7 Uniform Civil Procedure Rules 2005 .

(2) The Plaintiff is to pay the costs of the Notice of Motion. [Counsel for the Defendant sought an order that the Plaintiff

pay the costs of the proceedings] 17 I have dismissed the proceedings for want of prosecution and ordered the Plaintiff to pay the costs of the motion. The evidence before the Court reveals the lengthy history of the proceedings, and the action and inaction of the Plaintiff with respect to them. The Defendant has taken steps on a number of occasions, by application to the Court, to have the Plaintiff progress the litigation in a manner consistent with his obligation under statute: s.56 Civil Procedure Act 2005. 18 The Defendant seeks an order that the Plaintiff pay the Defendant's costs of the proceedings. In circumstances where the Court has made the order dismissing the proceedings generally, and given the history of this litigation, I am satisfied that it is fair and reasonable to make such an order. Accordingly, I order that the Plaintiff pay the Defendant's costs of the proceedings. **********

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.