Kamm v State of New South Wales

Kamm v State of New South Wales - [2017] NSWCA 14 - NSWCA 2017 case summary — Zoe

Judgment - ex tempore [Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

PAYNE JA: Before the Court today is an application for directions in a case brought by Mr Kamm against the State of New South Wales. At the outset of that hearing the State of NSW sought an order that the matter be dismissed for want of prosecution.
The matter has an unhappy history. On 8 January 2016, the primary judge, Harrison J, delivered his decision. On 1 February 2016, a notice of intention to appeal was filed by Mr Kamm. On 7 April 2016, a summons seeking leave to appeal was filed. On 8 April 2016, an amended draft document purporting to outline grounds of appeal was filed. On 11 April 2016, Mr Kamm filed a notice of motion in the Supreme Court Common Law Division seeking the issue of subpoenas for documents. That notice of motion was transferred to the Court of Appeal. On 19 May 2016, the Registrar of the Court of Appeal ordered that the matter be listed for directions to hear that notice of motion. On 20 June 2016, the notice of motion was dismissed.
On 18 July 2016, directions were made by the Registrar of this Court ordering that an updated summary of argument be filed by Mr Kamm on or before 12 September 2016. The updated summary was required because the existing summary of argument, drafted by Mr Kamm, did not on its face identify any arguable grounds of appeal. That updated summary of argument was not filed. The matter was again listed for directions on 19 September 2016.
On 19 September 2016, the Registrar again ordered the applicant to serve an updated summary of argument by the extended date of 16 October 2016. The matter was listed for directions on 29 November 2016. That updated summary of argument was not filed.
On 19 September 2016, the State was ordered to serve the tender bundle from the Court below on Mr Kamm by 26 September 2016. This order was complied with. I am satisfied that the Crown Solicitor has acted properly at all times in this litigation and that all proper requests for documents have been complied with. I note that Mr Waterstreet, who appears for Mr Kamm, accepted the same to be true at today's hearing.
As no updated summary of argument had been filed in a period of over four months and in defiance of two orders of the Registrar of the Court, the matter was listed before me on 28 November 2016, for Mr Kamm to show cause why his application for leave to appeal should not be dismissed for want of prosecution.
On that occasion there was a lengthy discussion of Mr Kamm's desire to obtain further documents by the possible issue of subpoenas. That discussion has been repeated today. Without going over that discussion in detail, on the explanation proffered to the Court by Mr Waterstreet about the purpose of such subpoenas, it does not appear to me as presently advised that there is any legitimate forensic purpose for subpoenas of the kind described by him in appeal proceedings in this Court. In any event, the desire to obtain additional documents provides no proper basis for not complying with orders of the Court.
As I pointed out on the last occasion, a legally represented party is not usually required to seek leave before issuing a subpoena. If, of course, any such subpoena were issued and objection were taken, the Court would need to determine whether there was any legitimate forensic purpose disclosed by the subpoena. I express no final views about this matter and no order will be made by me today and none was sought forbidding the issue of subpoenas.
If, however, any further documents are to be sought by Mr Kamm, before issuing a subpoena the Court would strongly encourage his representatives to first raise the matter clearly and unequivocally with the Crown Solicitor, who as I have said has acted responsibly and properly in relation to all document requests in the course of this matter.
On 28 November 2016, in addition to the possibility of seeking further documents, the principal ground advanced by Mr Kamm for his failure to comply with the orders of the Court was a lack of funding.
On that day, I made orders that Mr Kamm file and serve his further summary of argument by 31 January 2017 and also made an order that any expert evidence the applicant sought to tender on the appeal be filed and served by 31 January 2017. Those orders were not, either expressly or by implication, limited in operation to the case where further funding was obtained by Mr Kamm. I indicated that if those orders were not complied with I would entertain an application to dismiss the matter for want of prosecution on the next occasion.
Neither order was complied with.
Today, 3 February 2017, the day fixed by me for directions, a document described as an "outline of submissions on behalf of the applicant" has been filed in Court. It is clear, however, as Mr Waterstreet very candidly submits, that this document does not address the arguments sought to be advanced by Mr Kamm. It will be necessary for him to supplement that document in a very material way in order to produce an outline of submissions containing the grounds sought to be relied upon by Mr Kamm.
At least as presently advised, that document does not identify with any clarity arguable grounds of appeal. The real case will only emerge when further submissions are prepared. In this unsatisfactory state of affairs, I raised with the parties the possibility of my making a self-executing order having the effect that the proceedings will be dismissed for want of prosecution if, after a final opportunity to prepare the matter for hearing is given, there remains non-compliance with the Court's orders.
I was assured by Mr Waterstreet and by evidence given orally by his instructing solicitor, Mr Omar Juweinat, that the funding difficulties faced by Mr Kamm had been resolved, subject only to executing appropriate documentation (which I was assured would be executed later on 3 February 2017). I was informed from the Bar table that all steps necessary to prepare the matter for hearing on Mr Kamm's side of the record would be completed by 31 March 2017.
Having regard to these developments, Mr Thomson, who appeared on behalf of the State of New South Wales, accepted that the matter should not be dismissed today for want of prosecution but that this is an appropriate case for self-executing orders of the kind made by Leeming JA in Neale v Commonwealth Bank of Australia [2014] NSWCA 443.
I have decided that orders of the kind made by Leeming JA in Neale v Commonwealth Bank of Australia should be made in this case for the following reasons.
First, there has, on any view, been serious and sustained non-compliance by Mr Kamm and his representatives with the Court's procedural directions. Whilst there are a number of partial explanations for this, the critical matter at least so far as today is concerned appears to be the question of funding which is a matter I have been assured will be remedied within 24 hours. In the ordinary course, an appellant's funding difficulties would provide no adequate explanation for a repeated failure to comply with important procedural directions. But for the assurances I received today, I would have been inclined to strike the matter out for want of prosecution, given the repeated failures over seven months to comply with the Court's clear directions. For the avoidance of doubt, the orders I propose to make are not, either expressly or by implication, intended to be read as applying only if further funding is obtained by Mr Kamm.
Secondly, I take into account that Mr Thomson has very properly accepted that the State suffers no particular prejudice by the delay until 31 March 2017. There is, however, a prejudice which all litigants suffer (including the State of New South Wales), by having matters not proceed to determination in a timely way. Other matters which are ready to be heard will be delayed by the way in which this case has been conducted by Mr Kamm.
Thirdly, I take into account the fact that had there been compliance with timetabling orders, then in all likelihood this case would have been heard and determined in 2016. Regrettably that did not happen. The Court raised with the parties the setting of a hearing date for this matter and I was informed from the Bar table that at least Mr James QC and Mr Waterstreet are available in the second complete of week of April and on 8 ‑ 11 May 2017.
Fourthly, I take into account the remarks of McColl JA in Hobbs v Australian Securities and Investment Commission [2013] NSWCA 205, where her Honour observed that the applicant in that case should be given one last opportunity to put his house in order to address the issues raised by her Honour. While the circumstances of delay and non-compliance in the present case are much more extreme than in Hobbs, I am prepared to provide Mr Kamm with one last chance to properly prosecute his appeal by identifying arguable grounds of appeal in the submissions that he actually seeks to rely upon, filing any further evidence from a Dr Roberts he apparently seeks to rely upon (together with any additional documents) and filing the White Books necessary to conduct the application. In relation to this attempt to rely on additional evidence which was not before the primary judge, I have pointed out to Mr Watersteet that he faces considerable hurdles, which he assures me he has considered. In making the orders below I do not intend to express any view about the ultimate fate of any attempt by Mr Kamm to rely on fresh evidence on the appeal.
Fifthly, it is not my function to express a view about the merits of the appeal at this stage. I have not been asked to do so and I do not do so. I have approached the matter on the assumption, favourable to Mr Kamm, that there is at least an argument to be made on appeal, although that argument has not been identified in the submissions filed with the Court to date.
Sixthly, prejudice will be suffered by Mr Kamm if he were denied the right of appeal on the merits in this case by an order that the proceedings be dismissed today.
Accordingly, I have decided that Mr Kamm should be given, using McColl JA's language in Hobbs, "one last chance to put his house in order". That will involve permitting Mr Kamm one final opportunity to file all of the material he seeks to rely upon including any proposed additional outline of submissions, any proposed fresh evidence on the appeal and the White Books containing all the material necessary to conduct the appeal.

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