HIS HONOUR: This is an application brought pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) by the applicant, that is, the defendant in the substantive proceedings in this Court, seeking dismissal of the amended summons brought by the respondent, that is the plaintiff in the substantive proceedings in this Court. For ease if reference, I will refer to the applicant/defendant as the applicant and the respondent/plaintiff as the respondent.
The summons is, in effect, in the nature of an appeal against a decision of the Local Court finding against the respondent given on 6 May 2022. The Local Court proceedings were brought by a company called GC Leasing Sydney Pty Ltd against the applicant. The applicant brought a cross-claim, which was ultimately successful, against the respondent.
Findings were made unfavourable to the respondent. The cross-claim was allowed in an amount of $58,477.30, with an order for interest.
In the proceedings before me, the applicant relied upon the affidavit of Ms Simta Gandhar of 20 July 2023. That affidavit essentially annexed the transcript of the reasons of the magistrate. By the time of that decision, the plaintiff's claim in the Local Court had essentially fallen away and her Honour was thus determining the cross-claim. The applicant also tendered a chronology which became Exhibit B on the application.
The respondent relied on his own affidavit dated 18 July 2023.
That the applicant has brought this application is unsurprising having regard to what can only be described as a sorry history with respect to the prosecution of the appeal. As I said, the decision of the Local Court was given on 6 May 2022.
The proceedings in this Court were not commenced until 3 August 2022, the Local Court having granted a series of extensions of time pursuant to UCPR, r 50.3(1)(b). The basis for those extensions was to permit the respondent to obtain the transcript of the Local Court proceedings.
Ghambir v Vision of IT Pty Ltd [2023] NSWSC 905 | Case summary | Zoe
The matter was before the Registrar of this Court on 16 August 2022. On that date, the respondent was granted leave to file an amended summons. That was done on 6 September 2022.
On 27 September 2022, there was a directions hearing. The matter was set down for hearing on 9 March 2023 with a timetable for preparation. On 11 October 2022, the respondent filed a further amended summons. The matter was back before the Registrar on 10 February 2023, for directions. At that time, the respondent had not filed or served the Appeal Book or any submissions. Consequently, the hearing date of 9 March 2023 was vacated and a new hearing date of 8 August 2023 was set. A new timetable was set, with the respondent to file and serve the Appeal Book by 7 April 2023 and submissions to be filed and served by 26 May 2023.
The matter was back before the Registrar on 13 April 2023, for directions. At that time, the respondent had not filed or served the Appeal Book or submissions. A new timetable was set extending the time for the respondent to file and serve the Appeal Book and submissions by 26 May 2023.
It is to be noted that a warning was given by the Registrar, pursuant to the Chief Justice's delegation, to the respondent of possible dismissal of the proceedings pursuant to UCPR, r 12.7.
The matter was again before the Registrar on 15 May 2023, for directions. At that time, the respondent had served the Appeal Book, however the matter was back before the Registrar on 22 June 2023, for directions, the respondent having failed to file and serve submissions. The respondent advised at that time that new counsel had been briefed. A new timetable was set, with the respondent to file and serve submissions by 3 July.
On 2 July 2023, one day before those submissions were due to be filed and served, the respondent's solicitors served a Notice of Intention of Ceasing to Act. On 11 July 2023, there was a further directions hearing. The respondent had not filed and served submissions. The respondent sought that the hearing date of 8 August 2023 be vacated to enable new legal representation to be obtained. The matter was referred to the duty judge for a show cause hearing pursuant to UCPR r 12.7, resulting in the matter coming before me this morning.
Subsequent to the appearance before the Registrar on 11 July 2023, a Notice of Change of Solicitor was filed with the Court on 19 July 2023, indicating that the respondent has engaged Mr Dhaliwal of Fifty Fifth Pty Ltd to act as his solicitor in the proceedings. Mr Langenheim of counsel has been briefed to appear on the application this morning by that firm.
As I indicated, tendered on behalf of the respondent, is the respondent's affidavit, and from that affidavit, it appears that the respondent had, at an early stage, instructed his then solicitors to obtain counsel in order to appeal against the decision in the Local Court. The respondent's solicitors recommended counsel to the respondent. The respondent met with that counsel and gave instructions that he should be briefed. The respondent, in his affidavit, skips over some of the history. He has not explained the delays leading to the vacating of the first hearing date of 9 March 2023. Nor does he adequately explain what appears to be a somewhat dilatory approach to the Court's orders in relation to the preparation of the matter in readiness for the hearing on 8 August 2023.
What he does say is that sometime around the end of June 2023, he was informed by a solicitor from the firm then acting for him that his counsel was no longer able to appear at the hearing on 8 August 2023, as he was not renewing his practising certificate. He states that he asked the solicitor to speak with counsel again because he wanted counsel to appear on the appeal. He had a further conversation with the solicitor and was told that despite that solicitor having spoken to counsel, counsel was not going to be available and the respondent then instructed his solicitors to find new counsel.
The respondent states that he was advised that appropriate counsel was identified and he gave instructions for that counsel to be briefed. The respondent indicates that he was informed, through his solicitors, that counsel would have the submissions filed by 3 July 2023, in accordance with the timetable that had been set. That did not occur.
On 29 July 2023, the respondent indicates that he was informed by his solicitors that counsel would not be able to act in the matter. No explanation is indicated in the respondent's affidavit as to any reason given to him as to counsel's inability to act. It would be appreciated that there are strict rules governing the conduct of counsel in such circumstances, and there must therefore have been some sound basis under the rules for then counsel to return the brief.
On 2 July 2023, the respondent received, by email, notice from his solicitors of their intention of ceasing to act. He states that from that time, he has been trying to find a firm to accept his case.
He states that, on 18 July 2023, Fifty Fifth Lawyers were engaged and agreed to act for him. It is unclear why it took from 2 July to 18 July 2023, for the respondent to find new lawyers. I do note, however, that as at 2 July 2023, having regard to the requirement to file and serve submissions by 3 July 2023, the respondent was in a difficult position.
The respondent states that the events leading to his failure to comply with various court orders and consequent unreadiness for any hearing on 8 August 2023 are not of his own making. He states that he has tried to have the matter concluded. He, in effect, seeks a further indulgence to enable his solicitors to brief counsel and prosecute his appeal.
Rule 12.7 of the UCPR provides as follows:
12.7 Dismissal of proceedings etc for want of due despatch
(cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4)
(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.
(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.
Note -
See rule 42.20 as to the effect of dismissal with respect to costs.
The relevant principles were helpfully set out in the written submissions provided by Mr Diggins who appears as counsel for the applicant. The power to dismiss an action or to strike out a defence for want of prosecution is not confined by rigid guidelines: see Stollznow v Calvert [1980] 2 NSWLR 749. As is so often the case, it depends upon all the circumstances. The essential criterion for the exercise of the power is whether or not in all the circumstances justice requires that the proceedings should be dismissed or the defence struck out. This commonly involves striking a balance between the interests of the competing parties: see Witten v Lombard Australia Ltd [1968] 2 NSWR 529.
In considering that balance, the more general considerations concerning the efficiency of the Court's proceedings are also relevant considerations: see Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274. This was a factor which Mr Diggins, on behalf of the applicant, sought to stress. He helpfully pointed to what was said in Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 [2015] NSWCA 334 by Macfarlan JA, with whom Leeming JA and Adamson J agreed (at [40]):
"The discretion to dismiss proceedings that UCPR r 12.7 confers if a plaintiff does not proceed with "due despatch" is broad and should not be confined by rigid formulae (Stollznow v Calvert [1980] 2 NSWLR 749 at 751 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [51] in relation to the comparable power under earlier rules to dismiss for want of prosecution). As Walsh JA said in Witten v Lombard Australia Ltd [1968] 2 NSWR 529; 88 WN (Pt 1) (NSW) 405:
"Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised" (at 412)."
Reference was also made to the decision of Bi v Mourad [2010] NSWCA 17, in which Young JA, with the agreement of Allsop P and Sackville AJA, said (at [31]-[34]):
"31 It must also be remembered these days that ss 56 to 60 of the Civil Procedure Act 2005 set up a regime that requires the courts to turn away reluctant gladiators and to ensure that they either prosecute their claims in due time or get sent away from the court.
32 The learned Judicial Registrar had this in mind, and recent decisions, including the decision of this court in Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 make it clear that that must be the approach adopted. In my view, the learned Judicial Registrar considered the factors and she made her discretionary decision, and I myself cannot see any error in that approach which would merit this Court interfering with it.
33 Primary judges must consider themselves free to exercise their discretions in this sort of case without the thought in the back of their mind that this court will weakly say, "Oh, we had better let the claim be adjudicated and the other side can be satisfied by an order for costs". This is not the clear policy of the legislator in the Civil Procedure Act.
34 The costs of this matter, and no doubt they are now substantial, are to be balanced against the fact that the claim is only $257,000. However, whilst all lawyers have a feeling in their minds that it is usually just that a matter should proceed to be determined on the merits, the law is, as made clear in the Civil Procedure Act, that if you do wish to bring a claim in the court, you must bring it and prosecute it with due diligence."
The respondent's explanation for the delay is not adequate. That, however, is not the test. What I would accept is that the respondent has, throughout the process, sought to engage lawyers. The circumstances in which counsel originally briefed to act was subsequently unable to act, I accept are unusual, in that counsel determined not to renew his practising certificate at a time such that his practising certificate lapsed between accepting the brief, presumably settling the summons and further amended summons, and the dates set for the filing of submissions and the hearing. Following that unfortunate circumstance, it is clear that steps were taken to brief new counsel. It appears that that counsel returned the brief, and whilst the circumstances in which the brief was returned are not known, again, I would accept that there is no fault on the part of the respondent.
In short, whilst perhaps more could have been done by the respondent, there have been events which have transpired which have interfered with his capacity to bring the matter to a state where it is ready for hearing.
I note that the appeal the respondent seeks to bring is one in which he is limited to an appeal on a question of law by right or an appeal on a question of mixed fact and law by leave. Whilst it is not appropriate for me to examine the merits of the particular case, the consequence of those limitations is that there will be cases where no arguable appeal is available. It may be that this is such a case. If that is the advice that the respondent receives, in the event that he is given another chance, it may be that the time will have come for him to accept that position and abandon his appeal. In balancing the various considerations, I am ultimately of the view that he ought to have the opportunity to either receive that advice or, if there is indeed merit in his appeal, the opportunity to pursue that appeal.
In coming to that view, I am mindful of the relatively small sum involved. I am also mindful of the fact that whilst the sum may be relatively small, it may be of importance to the respondent, not simply financially, but also potentially beyond simple dollars and cents.
The applicant sought, in the event that it was unsuccessful, that it should nonetheless receive the benefit of a costs order with respect to this hearing. That submission was made on the basis that any success by the respondent would, in effect, be the granting of an indulgence to the respondent: see Nardell Coal Corporation (in liq) v Hunter Valley Coal Processing [2003] NSWSC 642; (2003) 178 FLR 400 at [143]-[146].
The respondent did not seek to be heard against that proposition, and, in the circumstances, it appears to me that little could be said by the respondent in that regard. The necessary consequence of an order dismissing the application is an order vacating the hearing date. That is an acceptance of the obvious reality that the matter will not be ready for hearing on 8 August 2023.
The result is, as I have said, I am ultimately minded to give the respondent a further opportunity, but he must understand that having regard to the history, any further failure to comply with Court orders so as to enable this matter to be resolved are most unlikely to be favourably viewed with a consequent impact on any further application pursuant to UCPR, r 12.7.
I make the following orders:
1. Application pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 12.7 seeking dismissal of the respondent's further amended summons is dismissed.
2. The hearing set for 8 August 2023 is vacated.
3. The respondent is to pay the costs of and incidental to this application.
4. The matter be listed for directions before the Registrar on 4 August 2023.
[2]
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Decision last updated: 02 August 2023