International Sports Marketing & anor v Oasis Development Corp Pty Ltd & ors

Industrial Relations Commission (NSW)|2006-06-06|Before: Marks J, Mr P, Kavanagh J

Industrial Relations Commission of New South Wales in Court Session

CITATION: International Sports Marketing & anor v Oasis Development Corp Pty Ltd & ors [2006] NSWIRComm 186

FIRST APPLICANT - International Sports Marketing Pty Ltd (ACN 082 926 770)

FIRST RESPONDENT - Oasis Development Corporation Pty Ltd (ACN 098 047 431)

PARTIES: SECOND RESPONDENT - Bulldogs Sport & Community Foudation Limited (ACN 093 742 119)

FOURTH RESPONDENT - Bulldogs Rugby League Club Limited (ACN 001 869 405)

FIFTH RESPONDENT - Bulldogs League Club Limited (ACN 000 191 248)

CATCHWORDS: STRIKE OUT PROCEEDINGS - failure to prosecute proceedings in timely manner - numerous circumstances in which applicants failed to comply with court orders - applicants proffered several explanation including ill health, possibility of ASIC proceedings, lack of availability of documents & concern about conflict of interest; principles relevant to the exercise of court's discretion. HELD; court must have regard to particular circumstances - reasons advanced by applicants inadequate - not satisfied that there is no or little prospect that applicants would take any further steps in preparation of their case - motion dismissed - proactive directions in place - costs reserved.

LEGISLATION CITED: Industrial Relations Act 1996 Civil Procedure Act 2005

CASES CITED: Hakim and Hakcom Investors Pty Ltd [2004] NSWIRComm 405 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

APPLICANTS: Mr A T Britt of counsel SOLICITOR: Mr P Gentle Jordan Djundja Lawyers LEGAL REPRESENTATIVES: RESPONDENTS: Mr M J Kimber SC of counsel SOLICITOR: Ms A Michler Clayton Utz Lawyers

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

International Sports Marketing Pty Ltd and anor v Oasis Development Corporation Pty Ltd and ors

1 In these proceedings the applicants International Sports Marketing Pty Ltd and Achilles Constantinidis have sought certain relief against the respondents under s 106 of the Industrial Relations Act 1996. The proceedings were commenced by summons filed 27 June 2003. The respondents at that stage were Oasis Development Corporation Pty Ltd, Bulldogs Sport and Community Foundation Limited and Gary John McIntyre. The proceedings arose out of a claimed contractual relationship between the applicants, Oasis Development Corporation and the Bulldogs Sport and Community Foundation concerning a proposal for the development of certain property consisting of a sporting, residential and commercial complex with an area administered by Liverpool City Council, known as the Oasis Development. 2 As early as 14 November 2003, the then respondents sought orders that the proceedings be dismissed for want of prosecution by the applicants in a timely manner. At about that stage the applicants changed solicitors and certain steps were then taken by the applicants to prosecute the proceedings. On 2 April 2004 the proceedings had been amended so as to include two additional respondents, Bulldogs Rugby League Club Limited and Bulldogs League Club Limited. The proceedings were allocated to Kavanagh J who dealt with certain interlocutory matters and conducted a conciliation. Her Honour issued a certificate of unsuccessful conciliation on 25 November 2004. 3 Pursuant to directions made by Kavanagh J the applicants were required to file and serve any amended summons by 25 February 2005 and to file and serve all affidavit material to be relied on by 31 March 2005. This timetable was extended by consent on 4 March 2005. Any amended summons was to be filed by 31 March 2005 and all affidavits were to be filed by 2 May 2005. 4 On 22 April 2005 the timetable was further extended to allow for any amended summons to be filed by 29 July 2005 and all affidavits to be filed by 9 September that year. The applicants' solicitors had advised the respondents that Mr Constantinidis had been ill and as a result of his illness he had been unable to finalise instructions with respect to both the form of an amended summons and his affidavit. Advice was given at various stages concerning the applicant's illness. It was said to include vascular as well as orthopaedic conditions. 5 A further amended summons for relief was filed by the applicants on 1 August 2005. 6 By 2005, the proceedings had been placed in the Directions List administered by this Court and its predecessor and there were a number of hearings before me. 7 Towards the end of 2005 the applicants' solicitors in correspondence with the respondents' solicitors had indicated that ASIC had commenced investigations into the Oasis Development and that this had hindered the preparation of Mr Constantinidis' affidavit. It was said that he should refrain from swearing his affidavit until he was aware of the attitude to be taken by ASIC and in particular as to whether criminal proceedings were to be commenced against him by ASIC. 8 The applicants sought the consent of the respondents to stay the proceedings until the ASIC investigations were complete. This was rejected. On 22 November 2005, the applicants filed a Notice of Motion seeking a stay of the proceedings. The reasons in support of the stay as contained within the Notice of Motion included the following: (1) The applicants had lodged a complaint with the Office of the Legal Services Commissioner claiming that the respondents' solicitors had a conflict of interest and that the resolution of that complaint would take some time and the proceedings should not progress until the conflict of interest question had been determined. (2) Mr Constantinidis and others were currently under investigation by ASIC. (3) The applicants had not had access to documents "formerly held by Liverpool Council" because they were with someone else, presumably ASIC, and the applicants needed access to finalise affidavit material. The Notice of Motion was set down for hearing 10 February 2006. On that occasion Mr W. Terracini SC appeared for the applicants and Mr M. Kimber SC for the respondents. The Notice of Motion could not be heard that day because the applicants did not have available to them certain evidentiary material. After discussion with counsel it became clear that in order to advance the conflict of interest claim the applicants would need to file a Notice of Motion and affidavit in support so that all of the evidentiary material about that particular issue could be properly examined. The proceedings were adjourned to allow a Notice of Motion to be filed and to allow for other material to be filed and 26 May 2006 was set aside for the hearing of all interlocutory matters. I ordered that the applicants file affidavit material in support of the Notice of Motion within one month of that date. 9 The applicants having failed to file any motion within that date the proceedings again came on for directions before me on 23 March 2006. At that stage, counsel for the applicants was unable to proffer any explanation as to the reason for the delay. 10 On 24 March 2006 the respondents filed a Notice of Motion, which is the subject of this interlocutory judgement, seeking to have the proceedings dismissed for want of prosecution. This was based on the failure of the applicants to file any affidavit material in support of the Notice of Motion which was anticipated to have been lodged by the applicants, but was not yet filed and which, as I have said, had been set down for hearing on 26 May. 11 On 2 May 2006 an affidavit of Mr Constantinidis was filed going to the conflict of interest matter and the Notice of Motion to which that affidavit was in support was filed on 5 May 2006. The Notice of Motion asserted that the respondents' solicitors Clayton Utz had initially been instructed by the applicants to act for them in connection with the Oasis Development and that they had access to "sensitive business financial and legal records of the applicants" and should therefore be restrained from continuing to act for the respondents in these proceedings. 12 When both Notices of Motion came on for hearing on 26 May 2006, a sensible agreement was reached between counsel that notwithstanding the fact that Clayton Utz continued to act for the respondents, the respondents' Notice of Motion seeking to strike out the proceedings for want of prosecution should be heard and determined first. I proceed accordingly. 13 In support of the respondents' Notice of Motion a number of affidavits were tendered by solicitors from Clayton Utz. These traversed the history of the proceedings, some of which I have earlier set out in abbreviated form. There is also annexed to the affidavit material a great deal of correspondence between the applicants' solicitors and Clayton Utz. 14 With respect to some of the matters which had been formerly raised by the applicants to explain their delay, Ms Anna Michler, a solicitor employed by Clayton Utz, said that on about 16 July 2004, the applicants had filed and served a notice to produce certain documents on Liverpool City Council requesting production of documents relating to the Oasis Project and that the applicants' solicitor had advised Kavanagh J on 3 November 2004 that those documents had been produced to him informally. Copies of those documents had in turn been given by the applicants' solicitors to Clayton Utz. Furthermore, Ms Michler deposed that the respondents had incurred legal costs of approximately $435,000 in connection with the proceedings since they were instituted. 15 Ms Louise Cox, also a solicitor employed by Clayton Utz, deposed that the Bulldogs Rugby League Club and Bulldogs League Club had both produced documentation to ASIC during 2005 and that nothing had been heard from that organisation since December that year nor was she aware of any proceedings instituted by ASIC arising out of the Oasis Project. 16 The applicants relied on affidavits sworn by their solicitor Mr James Jordan and by Mr Constantinidis. Mr Constantinidis was cross-examined on his affidavit. 17 Mr Jordan deposed that he had lodged a complaint with the Legal Services Commissioner in November 2005 and had been advised that it "may take many months to resolve." He also deposed to certain instructions given to him by Mr Constantinidis about the ASIC investigations. 18 In his affidavit, Mr Constantinidis swore that he was served with two notices to produce documents by ASIC in about April 2005 and that he had attended on certain ASIC investigators between May 2005 and 16 May 2006. He said that on 18 August 2005 ASIC gave him three volumes of documents to peruse and between 9 March 2006 and 16 May 2006 he had been provided with two draft statements by an ASIC investigator. 19 Mr Constantinidis also referred to documents from Liverpool City Council, which he said, had been "seized" by ASIC and to which he needed access in order to complete his affidavit for the purpose of these proceedings. 20 Mr Constantinidis referred to his state of health, which he said had deteriorated significantly from late 2004. He said that in late 2005 he spent two nights at RPA Hospital due to his inability to breathe properly and referred to his obesity, internal bleeding in his stomach wall, hypertension, non-insulin dependent diabetes, chronic airways disease and osteoarthritis involving his spine and both knees. He said he was to undergo urgent cardiac investigations on 25 May 2006. His ill health, he said, had deprived him of the ability to participate in the ASIC investigation in a timely fashion and hampered his ability to prepare his affidavits in these proceedings including meeting with solicitors when required. 21 Mr Constantinidis also deposed to the fact that he had first raised concerns about Clayton Utz acting for the respondents in late 2004. 22 A medical report of Dr C. Eliades dated 24 May 2006 was annexed to the affidavit of Mr Constantinidis. This expresses the opinion that his health "is poor and he requires urgent attention to same." There is no indication whether, and to what extent, the various conditions from which Mr Constantinidis is said to suffer impact upon his ability to properly instruct his solicitors in the preparation of these proceedings for trial. 23 In cross-examination Mr Constantinidis conceded that his health problems did not preclude him from swearing his affidavit on 25 May 2006 nor did they motivate him to seek to delay the proceedings. However, he said that the stress associated with the ASIC investigation had impacted on his desire to proceed without access to ASIC records. He said that he did not wish to have a summons issued compelling ASIC to produce its records to the court because of concerns that this might cause ASIC to think less favourably of him and may initiate a prosecution. 24 When asked for an explanation as to why he had not filed affidavit material in support of the substantive proceedings and in support of interlocutory proceedings within the time fixed by the Court, Mr Constantinidis responded that he had told his solicitors that he would be unable to comply and that he had expected his solicitors to advise the Court. 25 Whilst seeking to explain the reason for the failure of the applicants to prosecute the proceedings in a timely manner and, in particular, the failure to comply with court directions, Mr Constantinidis continued to refer back to the fact of the ASIC investigations, his state of health and, from time to time, blamed his legal representatives especially his solicitors. 26 In submissions Mr Kimber SC, counsel for the respondents, referred to the numerous circumstances in which the applicants had failed to comply with court directions and submitted that the Court would not be satisfied with the evasiveness of the evidence of Mr Constantinidis and the explanations tendered by him. In this regard, there was evidence, as referred to, that documents had in fact been produced by Liverpool City Council. Furthermore, there was no reason why any documentation held by ASIC could not be made amenable to production to the Court by issue of a summons to produce. In this regard the applicants had not sought to invoke this process and no explanation was given other than the fear of Mr Constantinidis that he might suffer prosecution if he were to issue such a summons. 27 In submissions in reply, Mr A. Britt of counsel, who appeared for the applicants, conceded that they were in breach of orders of the Court but sought to explain them by reference to the inability of the applicants to obtain access to ASIC documents and the ill health of Mr Constantinidis. He said there was no specific evidence of any particular prejudice suffered by the respondents by reason of the applicants' failure to prosecute the proceedings in a timely fashion and the respondents had not demonstrated a clear case that the Court should exercise discretion in dismissing the proceedings for want of prosecution, particularly as they would then be time-barred by reason of s 108B of the Industrial Relations Act, 1996. 28 The principles which are relevant to the exercise of discretion in strike out proceedings of these kind have recently and conveniently been summarised by Staff J in this Court in Hakim and Hakcom Investors Pty Ltd [2004] NSWIRComm 405. At paragraph [24] His Honour said:

[24] In the Supreme Court, the most recent consideration of the authorities dealing with a strike out application is Raymond Hoser v Christoper Hartcher [1999] NSWSC 527 where Simpson J at [20] - [30] set out the principles relevant to the exercise of discretion to strike out for want of prosecution. The principles may be summarised as follows: 1. The ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited , unreported, 19 November 1995, per Sperling J.

The discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of discretion: Stollznow v Calvert .

Any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J.

Personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73.

A defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, par 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestly JA.

Delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor; Calvert v Stollznow, per Cross J; Burke v TCN. Simpson J observed that in her view, this circumstance must be treated with some caution, noting that the weight that can be accorded to that delay is limited.

The onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise.

Prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay.

What the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action.

The plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred), it is less likely that justice will be done by striking the action out: Razvan, per Kirby P.

The exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.

29 It is also appropriate that I refer in some little detail to the decision of the New South Wales Court of Appeal in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 and in particular the judgement of Heydon JA (as His Honour then was). 30 The facts in Micallef are in marked contrast to those which apply to these proceedings. In Micallef, the plaintiff had sustained personal injuries and commenced proceedings in the Supreme Court in 1989. The plaintiff had consistently failed to furnish particulars requested by the defendants and had failed to comply with a number of court orders concerning the preparation of the proceedings for hearing. The plaintiff amended her claim in August 1995. The proceedings were not ready for hearing as at February 1997. In May 1997, one of the defendants' solicitors threatened a Notice of Motion to strike the proceedings out for want of prosecution. This did not produce any significant or relevant activity on the part of the plaintiff or her solicitors. The proceedings were transferred to the District Court in December 1997. Orders were made by the Registrar in March 1998 requiring certain particulars and other matters to be attended to by the plaintiffs, which were not complied with. A "show cause" hearing was held on 8 October 1998 in which the plaintiff was required to show cause why the proceedings should not be struck out for want of prosecution. At that stage the plaintiff had not updated particulars since August 1995. The matter was not struck out but was fixed for arbitration in February 1999. However, the arbitration was aborted because the plaintiff had not updated her particulars. Orders were made for particulars to be furnished. They were eventually provided but outside the time fixed by the Court. A further "show cause" hearing was held in February 1999 and the proceedings were dismissed for want of prosecution in a judgement delivered in March 1999. The defendants had claimed they had been prejudiced by the extreme delay in litigating the matter, particularly as the proceedings involved a trial by jury. Sheller JA and Studdert AJA agreed in the reasoning of Heydon JA. 31 His Honour, having canvassed the factual background, determined by reference to the relevant authorities that there had been no error in the application of relevant legal principles dealing with the exercise of discretion to strike out proceedings for want of prosecution. I shall not traverse His Honour's judgement in detail because those principles are, as I have said, succinctly summarised by Staff J in Hakim, to which I have previously referred. I should emphasise, however, that in reviewing the exercise of discretion by the Judge of the District Court, Heydon JA emphasised the fact that the plaintiff had not attempted to explain by way of sworn evidence any of the three instances of non-compliance with court orders and had given no explanation for two of those instances. His Honour said

"[54] But matters had reached a stage where a much more detailed explanation was called for, and where it was necessary that it be given on affidavit testable by cross-examination. A satisfactory explanation on affidavit might negate an inference that the plaintiff's defaults were not intentional or contumelious. But the absence of any explanation permits that inference to be drawn." 32 For completeness, I note that His Honour determined, consistent with earlier Court of Appeal authority, that there is, in New South Wales, no principle that any default has to be intentional and contumelious. His Honour also observed that;

"[56] The delays by the plaintiff, in the District Court alone, can fairly be described as inordinate and inexcusable. If the plaintiff was personally responsible, she showed a complete lack of regard for her own interests, the rights and legitimate expectations of the defendants and the interests of the court. If the plaintiff's legal advisers were responsible, they showed a complete lack of regard for the position of the plaintiff, the defendants and the court, and their behaviour was unethical. The delay was inordinate and inexcusable unless it were explained, and neither the plaintiff nor her legal advisers ever did this either to Garling DCJ or to this Court. Rather, the initial posture of the plaintiff before this Court was that nothing wrong had been done." 33 Heydon JA observed that although the defendants had not produced specific evidence of particular prejudice being occasioned by the inordinate delay, there was prejudice created by "a risk of increasing impairment of memories and an increased risk of witnesses ceasing to be available", that the defendants "had to remain active in litigation that was apparently never being brought to finality", that costs were being incurred with a corresponding futility in the defendants being able to recover them from the plaintiff, and the prospect of further aborted hearings by reason of the refusal of the plaintiff or her solicitors to have the proceedings prepared for hearing. 34 For completeness, I note that the Court of Appeal upheld the judgement of Garling DCJ in striking out the proceedings for want of prosecution. 35 As the authorities make clear, each set of circumstances pertaining to proceedings whose existence are attacked in terms of want of prosecution must be regarded by reference to their own particular circumstances. Here, it is clear that the applicants have continually been in breach of orders of this Court. Furthermore, neither Mr Constantinidis nor, apparently, his solicitors appear to have expressed any particular concern about the breach of orders of the Court and the consequences of such a breach. Mr Constantinidis was cross-examined about this matter and, in summary, his attitude seems to be one of getting the proceedings ready as and when he can without any necessary reference to any particular timetable. Whatever may be thought of the attitude of Mr Constantinidis to court orders and the necessity to comply with them, I will not take this into account in determining this interlocutory application. What is relevant, in my opinion, is the reasons proffered by the applicants for their failure to put on any affidavit material in support of their claims and in support of their interlocutory application for an inordinate period of time and what steps have been taken by the applicants to put on that evidence. A supplementary and consequential matter is the nature and extent to which those reasons can properly be tested. 36 The applicants advanced four reasons to explain their inability to put on their evidence. The first was that they do not have access to ASIC documents and, as I understand it, documents from Liverpool City Council, which are required to complete their evidence in the proceedings. I am not satisfied that the applicants have done everything which should reasonably be required of them to obtain the documents from ASIC. I do not accept the explanation of Mr Constantinidis that he was concerned that if the documents were made the subject of a summons to produce that ASIC might use this as a reason to institute a criminal prosecution against him. This ascribes to ASIC motives and an attitude about which there would need to be some evidence before it could be accepted. At the very least, the applicants would need to produce to the Court evidence in admissible form capable of being tested by the respondents about each and every step taken to gain access to the documents and the reasons why such access is not available. Furthermore, the applicants should, in my opinion, demonstrate that they have taken all reasonable steps to gain access to the documents and that any such access has been utilised with all due expedition. 37 With respect to the documents from Liverpool City Council, the evidence is to the effect that the applicants have had access to these documents as referred to in affidavits tendered on behalf of the respondents. 38 The second reason concerns the assistance given by Mr Constantinidis to ASIC in their investigations of the first and third respondents since 26 April 2005. Again, this evidence is of a most nebulous and unhelpful kind. There is no evidence concerning the amount of time involved in this work nor is there any evidence as to how these activities have precluded Mr Constantinidis in assisting the applicants' solicitors in preparing the necessary affidavit evidence. Such evidence should be provided in a form and containing details which may be tested by the respondents in cross-examination. In any event, it is my understanding of the evidence of Mr Constantinidis that his involvement with the investigations being conducted by ASIC is now complete and this should no longer impact upon the preparation of the applicants' affidavit evidence. 39 The third reason given was the poor health of Mr Constantinidis. Again, the assertions which have been made are of a most general kind and are unhelpful in assessing whether and to what extent the various ailments and complaints from which Mr Constantinidis claims to suffer impacted upon his ability to assist in the preparation of the affidavit evidence. There is no evidence as to Mr Constantinidis' other activities and whether he engages in any occupation. Again, if the applicants are to persist in using this reason as an excuse for non-compliance much more detailed evidence, capable of being tested, will need to be adduced. 40 The final reason is the concern expressed by the applicants about the conflict of interest created by the retention of Clayton Utz by the respondents. That concern is to be tested shortly in interlocutory proceedings set down for hearing on 21 June next. In any event, there is simply no evidence that the applicant has pursued this matter with any diligence whatsoever. Although the matter was first raised in correspondence between the applicants' solicitors and Clayton Utz some little time ago, it was never pursued with any diligence and first came before this Court in an unsatisfactory manner in February 2006. Despite orders being made formalising the allegation of conflict of interest as an issue in the proceedings, the applicants failed to comply with them in a timely manner. There is no evidence that this issue has impacted in any way upon the ability of the applicants to prepare the proceedings for trial. 41 I regard the outcome of these proceedings as finely balanced, particularly as the applicants have failed, in my opinion, to furnish such evidence to the Court as may assist in understanding and appreciating the reasons advanced by the applicants by way of explanation for the delay and their impact upon the ability of the applicants to prepare their affidavit material. Furthermore, it is relevant, in my opinion, to take into account those steps which are available to the applicants to prepare their affidavits and the intentions of the applicants in this regard.

42 In Micallef, Heydon JA felt comfortable in observing that no matter what leniency may have been granted to the plaintiff, there was no or little prospect that the plaintiff would take any further steps in preparation of her case. Despite the shortcomings in the applicants' compliance with court orders and directions and the inadequate explanation for the delay in the preparation of these proceedings, I am not satisfied that a stage has yet been reached where it may confidently be said that there was no or little prospect that the applicants would take any further steps in the preparation of their case. 43 A determination to strike out these proceedings is a serious matter, which would deprive the applicants of the opportunity of prosecuting their claims. Although it may now be presumed that there is a substantial public interest in the quick and cheap resolution of civil proceedings, this must be undertaken in a just manner. There are a number of measures available to courts to promote the efficient disposal of proceedings and the sanction to strike out should be reserved for a deserving case. 44 As will have been gathered from the recitation of the history of this matter and the comments I have made concerning the inactivity of Mr Constantinidis and his attitude to the proceedings, I am persuaded that there has not been sufficient effort and commitment by the applicants to prosecuting them appropriately. However, these deficiencies do not in the aggregate warrant them being struck out at this stage. On this basis, I would propose to dismiss the Motion accordingly. I propose to reserve the costs of these strike out proceedings. The parties should have an opportunity at an appropriate stage to make submissions with respect to costs and, in any event, the costs of these proceedings may become relevant at some future time. 45 It is now well established that courts are obliged to act vigorously and proactively in the case management of proceedings. Observations to this effect in well-known authorities have now been adopted by the legislature in Part 6 of the Civil Procedure Act 2005. I intend, given the history of these proceedings, to act accordingly. 46 The applicants are directed to file and serve within 28 days of this date a proposed timetable outlining the date upon which they expect that their affidavit material will be filed. If it is necessary for the applicants to take any intervening step in the proceedings such as the issue of notices to produce or summonses for the production of documents in order to complete their affidavit material, each of those steps must be listed together with a date upon which it is expected that they will be taken. 47 The respondents' solicitors are directed to advise my associate within seven days of service of the proposed timetable whether they have any objection to it, in which case the proceedings will be listed for directions. 48 If the timetable is acceptable to the Court and the respondents' solicitors have not objected thereto within seven days, the applicants will be bound to adhere to it subject to the liberty to apply which continues generally with respect to these proceedings. 49 If the applicants or their solicitor become aware of any circumstances which will or may cause a failure to comply with the timetable, the applicants' solicitor, Mr James Jordan, is required personally to exercise the liberty to apply and will be expected to provide the Court with an appropriate explanation when the matter is listed for directions, if necessary verified by the affidavit of Mr Constantinidis. Any such affidavit will need to avoid the deficiencies I have referred to in pars [36], [38] and [39] above. 50 Less there be any doubt in the minds of the applicants or their solicitor from the tenor of these directions, they should assume that the Court will intend keeping a close watch on the course of the proceedings as part of the case management function. 51 Once the stage has been reached when the filing of the applicants' evidence may be presumed to be under control, the proceedings will be listed for further directions to ensure that the steps provided for in Practice Direction 14 are adhered to. 52 The respondents' strike out motion is dismissed. Costs are reserved. I grant liberty to apply with respect to costs and with respect to the proceedings generally. 53 The Court will hear the applicants' conflict of interest motion at 10am on 21 June 2006.

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Judgment (30 paragraphs)

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Cases Cited (5)

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