By a notice of motion filed 22 June 2021, the defendant seeks to dismiss proceedings brought by the plaintiff in the form of an appeal from a judgment of the Local Court.
CLC Deliveries Pty Ltd (the defendant in the present proceedings) commenced proceedings in the Local Court against Horizons (Asia) Pty Ltd (the plaintiff in the present proceedings) claiming unpaid fees under an agreement for the storage of Horizons' goods in CLC's warehouse. The matter was listed for hearing in the Local Court on 4 November 2020.
On 2 November 2020 Horizons filed a notice of motion seeking the vacation of the hearing date and leave to file an amended statement of cross claim. On 4 November 2020, Magistrate Van Zuylen dismissed Horizons' notice of motion, and conducted the final hearing of the proceedings.
In a judgment given on 16 December 2020, Magistrate Van Zuylen ordered Horizons to pay CLC the amount of $28,880 plus costs and interest.
On 12 January 2021, Horizons filed a summons in this Court commencing an application for leave to appeal against those orders. The summons read as follows:
DETAILS OF APPEAL
1. The plaintiff appeals the interlocutory decision of Magistrate B Van Zuylen made on 4 November 2020 on the notice of motion filed 2 November 2020 refusing the orders sought in the motion, in the alternative refusing the plaintiff's application to file an amended statement of cross-claim or adjourn the proceedings in the court below.
2. In the alternative, the plaintiff appeals the whole of the decision below.
INTERIM ORDERS SOUGHT
1. Leave granted under section 64 of the Civil Procedure Act 2005 (NSW) to rely on the Amended Summons setting out errors of law and mixed questions of law and fact after obtaining a transcript of the proceedings before the primary judge, including reasons for the decision.
FINAL ORDERS SOUGHT
1. Leave granted under section 40(2) of the Local Court Act 2007 (NSW) with respect to the Orders made by Magistrate B Van Zuylen made on 4 November 2020 with respect to the Appellant's Notice of Motion filed 2 November 2020 seeking leave to amend the Cross-Claim and adjourn the hearing.
Particulars
(a) The Plaintiff was not afforded procedural fairness.
(b) The primary judge failed to give reasons, or adequate reasons.
(c) Proper grounds setting out the House v King type error/s relied on will be provided after the Plaintiff has obtained the transcript which include the reasons.
2. In the alternative, leave granted under section 40(1) of the Local Court Act 2007 (NSW) to rely on grounds that raise mixed questions of law and fact in respect of the whole of the decision below.
Particulars
(a) Proper grounds setting out the errors of law relied on mixed question of law and fact will be provided after the Plaintiff has obtained the transcript which include the reasons.
3. Appeal allowed.
4. The Defendant pay the Plaintiff's costs of the proceedings below.
5. In the alternative to Order 3 above, remit the matter back to the Local Court of New South Wales reconstituted to be determined.
6. Costs.
7. Such further or other Order as the Court deems fit.
It is apparent that the plaintiff needs leave to appeal, first because an interlocutory decision is challenged (s 40(2)(a) of the Local Court Act 2007 (NSW)), and secondly, because the appeal relies on mixed questions of fact and law (s 40(1) of the Local Court Act). It is also apparent that, contrary to rule 50.4 of the Uniform Civil Procedure Rules 2005 (NSW), the summons did not contain a statement setting out the grounds relied on in support of the appeal.
The summons came before Registrar Jones on 22 February 2021. Horizons' solicitor, Ms Tatiana Stack, appeared for the plaintiff, and Ms Carroll appeared for the defendant. The Registrar enquired if Ms Stack had a transcript from the Local Court, and Ms Stack confirmed that she did. The Registrar enquired how the summons was to be amended, but Ms Stack simply said that since the transcript was available, the necessary amendment needed to be made.
The Registrar then made consent orders proposed on behalf of Horizons, which provided for it to file and serve an amended summons, all documents required by r 50.14 UCPR, and written submissions, on or before 2 April 2021. The defendant was to serve any written submissions on or before 21 May 2021. The proceedings were stood over for further directions on 31 May 2021.
On 31 May 2021, Ms Stack again appeared for the plaintiff and Mr D Birch of counsel appeared for the defendant. The Registrar observed that directions had not been complied with, including for the filing of an amended summons. Ms Stack replied:
It hasn't been done, Registrar. We have had a difficulty with instructions. The instructor has been unwell for a few weeks recently. …
She also said that the plaintiff should be in a position to file an amended summons within a week. She sought a two week period to file and serve all of the documents necessary, including the r 50.14 documents and the submissions.
The Registrar noted that no adequate explanation had been provided for the delay and that no affidavit explaining the delay in accordance with the Practice Note had been filed. Nevertheless, the Registrar extended the time for compliance to 15 June 2021 and stood the proceedings over for further directions to 30 June 2021.
On 22 June 2021, when there had not been compliance with the Registrar's directions, the defendant filed the present notice of motion seeking that the proceedings be dismissed pursuant to s 61(3)(a) of the Civil Procedure Act 2005 (NSW), alternatively, that the plaintiff provide security for costs in the sum of $25,000.
At the directions hearing on 30 June 2021, Ms Stack again appeared for the plaintiff and Mr Birch for the defendant. Ms Stack said there had been a delay on the plaintiff's side in respect of further progress in the matter, and that she had had difficulty obtaining instructions in relation to the defendant's motion.
Ms Stack purported to rely on a document entitled "affidavit" of a Ms N C Lee dated 29 June 2021, but the document was not sworn.
In the unsworn affidavit, Ms Lee claimed to be the authorised representative of the plaintiff, and said that she was the principal person in the plaintiff company with knowledge of the facts of the case. She said that from the first week of April 2021 to 22 June 2021, she had suffered from a series of serious infections. She said that, in spite of her condition, she had conferences with her solicitor, Ms Stack, and counsel who had been briefed to give instructions and receive advice in the matter. She said that she had not finished giving instructions or receiving advice in relation to the appeal or the defendant's motion. She said that she anticipated that within a further week she would have gained access to documents stored at the plaintiff's office, have had further conferences with her lawyers, and finalised the giving of instructions and receipt of advice.
The Registrar said she was prepared to allow one further extension but a guillotine order would be attached to it.
Accordingly, the Registrar extended the time for compliance by the plaintiff to 28 July 2021, and said that the plaintiff was not entitled to file an amended summons and the other documents if they were not filed and served by that date.
The proceedings came back before the Registrar on 4 August 2021. None of the documents directed to be filed and served by the plaintiff had been filed and served. Ms Stack who again appeared for the plaintiff, sought a further extension of time for compliance, partly in reliance on a further unsworn affidavit of Ms Lee, and partly on the basis that Ms Lee had had health issues and concerns about going out because of the Covid-19 pandemic.
In the unsworn affidavit dated 28 July 2021 Ms Lee said that the plaintiff's office was temporarily closed due to the lockdown order and she had been unable to access the plaintiff's file records or obtain instructions from the plaintiff in relation to the appeal and the defendant's motion. She said nothing about any poor health issues, nor about any fears of venturing out.
The Registrar refused to extend the time. Instead she made directions for the plaintiff to file and serve evidence in response to the notice of motion.
The matter came back before the Registrar on 30 August 2021 with appearances by Ms Stack and Mr Birch. The defendant's motion was fixed for hearing on 18 November 2021 and directions were made in relation to evidence in reply by the defendant and for both parties to file and serve written submissions.
On 28 September 2021 Ms Stack forwarded to the plaintiff, via two email addresses of the plaintiff, a Notice of Intention of Ceasing to Act. On 11 October 2021 Ms Stack sent to the plaintiff via the same email addresses a Notice of Ceasing to Act.
On 10 November 2021 a person from Horizons wrote a letter to the Registrar (the letter did not identify who wrote it) saying that the company did not have legal representation, and it sought an adjournment of the hearing of the motion. At my direction, my Associate emailed the plaintiff on 11 November 2021 saying that the motion would remain listed for hearing on 18 November 2021. The email also drew the plaintiff's attention to r 7.1 UCPR, which provides that a company may only commence and carry on proceedings by a solicitor.
My Associate received an email from Horizons dated 11 November 2021 which said, amongst other things, that prior to that day (11 November 2021) the company was not ever informed of a hearing of the notice of motion on 18 November 2021. The email also claimed that the company had not been served with a Notice of Ceasing to Act by Tatiana Stack although, as noted earlier, the Notice (and the prior Notice of Intention) had been sent to two email addresses of the plaintiff.
On 17 November 2021 the plaintiff, without a solicitor acting, filed a notice of motion seeking an adjournment of the hearing of the defendant's notice of motion. The plaintiff filed with the motion a further unsworn affidavit of Ms Lee.
The defendant's notice of motion came before me for hearing on 18 November 2021. Mr D Birch of counsel appeared for the defendant and there was no solicitor appearing for the plaintiff. Ms Lee claimed the right to appear on behalf of the plaintiff, saying that she was authorised by the plaintiff to do so. No authority had been provided to the Court, but even if it had been, leave was needed because of the provisions of r 7.1(3) UCPR.
Although I refused leave for Ms Lee to appear for the plaintiff, I permitted her to explain the basis of the plaintiff's application for an adjournment of the defendant's notice of motion. At the conclusion of her submissions, I said that I would not adjourn the hearing of the defendant's notice of motion, and that my reasons for doing so would be provided in the judgment dealing the defendant's notice of motion. These are my reasons for that decision.
First, no sworn evidence was provided to justify an adjournment. All that was available were unverified and untested statements from Ms Lee who had not even provided proof of any authorisation to speak on behalf of the plaintiff.
Secondly, the notice of motion had been fixed for hearing on 30 August 2021 at a time when the plaintiff had a solicitor acting for it.
Thirdly, to the extent that a reason for the adjournment was for the plaintiff to obtain further legal representation, the plaintiff had been aware since 28 September 2021 that its solicitor intended to cease to act for the plaintiff, and from 11 October 2021 that its solicitor had ceased to act for it. There was not even in the unsworn affidavit of Ms Lee of 17 November 2021 anything to show what efforts had been made by the plaintiff to obtain legal representation, nor why further legal representation had not been obtained. In addition, my Associate, at my direction, had informed the plaintiff on 11 November 2021 that it would be necessary for a solicitor to appear.
Fourthly, to the extent that the adjournment application was on the basis that the plaintiff was unaware of the hearing date, the plaintiff had a solicitor acting at and after the time the motion was fixed for hearing. Further, contrary to what appeared in the email from Horizons of 11 November 2021 (at [23] above), the plaintiff knew by no later than 21 October 2021 that the motion was to be heard on 18 November 2021, because on that day the solicitors for the defendant had emailed the plaintiff attaching an affidavit on which it was said, "the defendant will rely in the motion to be heard on 18 November 2021".
Not only was the assertion by the plaintiff of not being informed of the hearing date untrue (as was the assertion the plaintiff had not been served with a Notice of Ceasing to Act), but nowhere was is asserted that its solicitor who had acted until 11 October 2021 had not told it of the hearing date.
Finally, the delays on the plaintiff's part from at least February 2021 pointed strongly to the need to examine those delays at an appropriate time, and the most appropriate time to do so was on the date fixed for the hearing of the defendant's motion to dismiss the proceedings.
Having refused to adjourn the hearing of the defendant's notice of motion, I then proceeded to hear from Mr Birch in relation to that notice of motion. At the conclusion of Mr Birch's submissions, and although I had not given leave for Ms Lee to appear for the plaintiff, I permitted her to address the Court in relation to the defendant's notice of motion.
Section 61 of the Civil Procedure Act relevantly provides:
61 Directions as to practice and procedure generally (cf SCR Part 23, rule 4; Act No 9 1973, section 68A)
(1) The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings.
(2) In particular, the court may, by order, do any one or more of the following -
(a) it may direct any party to proceedings to take specified steps in relation to the proceedings,
(b) it may direct the parties to proceedings as to the time within which specified steps in the proceedings must be completed,
(c) it may give such other directions with respect to the conduct of proceedings as it considers appropriate.
(3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following -
(a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim,
…
(4) Subsection (3) does not limit any other power the court may have to take action of the kind referred to in that subsection or to take any other action that the court is empowered to take in relation to a failure to comply with a direction given by the court.
Rule 12.7 UCPR relevantly provides:
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.
...
The powers in s 61 (and for that matter also in r 12.7 UCPR) are to be exercised in accordance with the overriding purpose and objectives of case management in ss 56-60 of the Civil Procedure Act: Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 at [36]-[41]. In particular, s 61 is subject to the provisions of s 58 of the Civil Procedure Act. That section provides that in deciding to make any order or direction for the management of proceedings, the Court must act in accordance with the dictates of justice. The matters to which the Court may have regard are set out in sub-s (2)(b). Further, the Court must have regard to the provisions of s 56. In that regard, s 56(3) provides:
56 Overriding purpose (cf SCR Part 1, rule 3)
…
(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.
Four of the considerations listed in s 58(2)(b) are relevant to the present proceedings. They are:
(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),
The present proceedings are not complex proceedings. They involve an application for leave to appeal from a judgment of the Local Court involving a relatively small amount of money. Ordinarily, these type of proceedings involve one or no more than two directions hearings before they are fixed for hearing. All that is ordinarily required is the transcript from the Local Court and copies of any relevant exhibits that form part of the record of the Local Court. In that regard, the documents said to be needed by the plaintiff in the unsworn affidavit of 28 July 2021 were never identified in order to understand why they were apparently essential for compliance with the Registrar's orders.
The history related earlier in this judgment shows a significant failure on the part of the plaintiff to act expeditiously and in accordance with its obligations under s 56(3). In circumstances where the transcript from the Local Court was available prior to the first directions hearing before the Registrar, the failure on the part of the plaintiff to comply with the Registrar's directions on that occasion, let alone subsequent occasions, was unreasonable and, frankly, inexcusable.
No explanation has ever been provided, whether in the various unsworn affidavits, in a sworn affidavit of Jack Stacey, a paralegal in the office of Ms Stack, dated 3 August 2021, or in any submissions by the plaintiff's solicitor at any of the direction hearings subsequent to that of 22 February 2021, why at least an Amended Summons with grounds of appeal could not have been filed and served.
At no stage has any sworn evidence been provided explaining the delays. That is despite the fact that the affidavit of Mr Stacey recorded the terms of two conversations Mr Stacey had with Ms Lee on 29 June 2021 and 3 August 2021, where he explained to her that it was necessary for her to provide sworn affidavits.
However, even if regard is had to the various unsworn affidavits, there is no explanation why the Registrar's orders could not have been complied with between 22 February and "a few weeks" prior to the directions hearing on 31 May 2021, during which "few weeks" the "instructor" (presumably Ms Lee) was said to have been unwell. In any event, Ms Lee said that despite being unwell she had attended conferences with her solicitor and counsel.
Further, it is to be remembered that the proceedings are, as I have said, appeal proceedings where all that was required was the identification of alleged errors in the magistrate's judgment and orders. These were not proceedings where evidence gathering was involved.
Of some significance, is the fact that the unsworn affidavits, including the most recent one of 17 November 2021, offer no explanation for why the Registrar's orders of 4 February have not been complied with. That is a significant matter in the light of what was said by the High Court in Aon Risk Services Australia v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [102]-[103].
It is also not without some importance that during the whole of the time when the plaintiff failed to comply with the directions of the Registrar, the plaintiff was legally represented. There was no suggestion in any of the unsworn affidavits, particularly in the one dated 17 November 2021, that any fault for the delay and non-compliance lay with the plaintiff's lawyers.
The plaintiff has not approached these proceedings with any expedition at all. Even if some allowance can be made for the Covid-19 lockdown (and that occurred well after the initial time for compliance), the lack of expedition has not arisen from circumstances beyond the control of the plaintiff. For the defendant not to know the grounds of appeal 10 months after the summons was filed, when the transcript of the proceedings below has been available for almost nine months, is inexcusable.
In my opinion, the failures in this matter are so egregious that, when they are without any or any adequate explanation, the only appropriate order is for the proceedings to be dismissed. The order is justified under both s 61 of the Civil Procedure Act and r 12.7 UCPR. I note that s 86(3) of the Civil Procedure Act enables the Court to make any order it is empowered to make of its own motion. Although the defendant has not expressly relied on r 12.7, I consider that the Court should act on that rule, in addition to the defendant's reliance on s 61 of the Act.
Accordingly, I make the following orders:
Dismiss the plaintiff's notice of motion filed 17 November 2021.
Dismiss the proceedings pursuant to s 61 of the Civil Procedure Act 2005 (NSW) and r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW).
The plaintiff is to pay the defendant's costs of the proceedings including the costs of the plaintiff's notice of motion filed 17 November 2021 and the defendant's notice of motion filed 22 June 2021.
[2]
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Decision last updated: 22 November 2021