Kazas-Rogaris v Gaddam

ex tempore Judgment 1HAMILL J: The plaintiff seeks to appeal against a decision made by a magistrate on 26 March 2014 following a hearing which took place on 17 and 18 February 2014. 2The case was commenced by summons which was first returnable on 5 May 2014. At that stage the plaintiff was represented by a firm of solicitors. Later, an amended summons was filed which made some changes to the nature of the appeal and on 5 May 2014, 27 June 2014 and 25 July 2014 the matter came before the Registrar who made various orders and directions in relation to the management of the case. 3It is abundantly clear that the plaintiff and her former legal representatives failed to comply with most, if not all, of the orders made and, in particular, failed to file evidence in accordance with the orders made by the Registrar on 5 May and 27 June. 4As a consequence of that, when the matter was before the Registrar on 25 July he ordered that the plaintiff file and serve a detailed affidavit by 1 August setting out why she had failed to comply with the order and requiring her to indicate when she had sought a transcript of the proceedings in the Local Court and why the proceedings should not be dismissed as a result of what is described in the Uniform Civil Procedure Rules 2005 (NSW) 12.7 as a want of due despatch. 5The Registrar listed the matter today by referral to the Duty Judge and hence the matter comes before me. 6The defendant in this Court (who was the plaintiff in the Local Court) is, by the judgment in the Local Court, entitled to a sum, I am told, of around $25,000 based on an action in trespass wherein it was alleged and apparently proved in the magistrate's eyes, that she had chopped down some 13 trees on the defendant's property. There was also an order, I am told and accept, for indemnity costs. 7So that the delay in the proceedings prejudices effectively one person and that is the defendant. When I say "the defendant" I mean the defendant in this Court (who was the plaintiff in the Local Court). 8Mr Levet appears today on behalf of the plaintiff and he read without objection an affidavit of the plaintiff filed on 1 August 2014. He also read over objection taken by Mr Lee, who appears on behalf of the defendant, an affidavit of Maria Bechara, who is the solicitor now on the record. 9Basically because of the difficulties of time in conducting this list I do not propose to go into great detail all the material in these affidavits, but critically the evidence shows that the plaintiff has now retained new solicitors and counsel and those lawyers have provided her with advice leading to a document annexed to the affidavit, being a further amended summons, which sets out a number of grounds of appeal against the conduct of the proceedings in the Local Court. 10It is not possible for me, without access to the transcript of the proceedings, to come to any considered view as to the merit that those grounds will ultimately have, but I can come to the view that, on their face, they appear to be arguable grounds of appeal. They encompass, for example, the plaintiff in the Local Court (that is, the defendant in this Court) calling a witness in her case who was the second defendant in the Court below and in circumstances where (i) the plaintiff had drafted that person's affidavit and (ii) where that person apparently was not entirely familiar with the English language. The grounds also assert that the plaintiff in the Local Court was then permitted "to unilaterally discontinue against the second defendant". 11Those appear, at first blush, to raise arguable grounds of appeal. 12Mr Lee, who appears for the defendant in this Court, has argued strongly that the summons or proceedings should be dismissed for want of due despatch and he places reliance upon pt 12 r 7 of the Uniform Civil Procedure Rules and on the Civil Procedure Act 2005 (NSW) in particular, s 58. He relies on some case law, including Udowenko and Ors v Chief Executive Officer and Board of Directors of St George Bank - A Division of Westpac Banking Corporation and Ors (No. 2) [2011] NSWSC 1122 and the case of Szczygiel v Peeku Holdings [2006] NSWSC 73. 13There is significant force in Mr Lee's arguments. He submits that the affidavit filed by the plaintiff, whilst it was filed within the time frame directed by the Registrar, failed to comply strictly with the terms of the order made by the Registrar. For example, it is submitted that whereas the Registrar asked for a detailed affidavit, including when the transcript of the Local Court proceedings was ordered, all that the plaintiff says in her affidavit is that steps were taken to obtain the transcript "shortly after commencing these proceedings". He points to a number of other deficiencies in the affidavit of the plaintiff. I accept that those deficiencies do exist. 14Mr Lee also points to the amount in dispute being a relatively small amount and whilst it was not specifically submitted, it was implicit in what he submitted that the defendant suffers the prejudice of being unable to enforce the judgment that she legitimately obtained in the Local Court. 15The decision that I make must be based upon a balance of considerations which are, by their very nature, contradictory. Thus it is that I am required under s 56 of the Civil Procedure Act to seek to facilitate a quick resolution of the real issues in the proceedings but at the same time I must ensure that in doing so I also facilitate the just resolution of those issues. 16The order which Mr Lee seeks, which is to dismiss the proceedings, will mean that the real issues in the proceedings are in fact never litigated. Obviously, as Mr Lee says, I have the power to make such an order because both the Act and the rules provide that I can, and they do so in circumstances where there has been neglect on the part of the litigant in question in the failure to comply with directions. 17I accept that there has been some failure to comply with directions of the Registrar . I accept that to this point there has been delay on the part of the plaintiff and a failure to prosecute this appeal quickly. However, the case is not one that is particularly old and is not one where there has been an egregious failure to comply with the directions of the orders of the Registrar . 18The situation is now that competent legal practitioners have filed, as an annexure to the affidavit of Ms Bechara, the initiating process as further amended, and I am told by Mr Levet, who appears for the plaintiff, that "at a pinch" he will be in a position to file and serve the evidence upon which the proceedings will be determined within a week. Given that he tells me that the transcript is now to hand and given that the bulk of the material will be encompassed by that transcript and by an affidavit of a witness who apparently the magistrate refused to hear, I think that it would be possible for the plaintiff to comply with a strict timetable. 19I am persuaded that the plaintiff has shown cause why these proceedings should not be dismissed or struck out. 20I will make orders in the nature of case management to ensure the case now proceeds quickly. 21I make the following orders: (1)Leave is granted to the plaintiff to file in the registry a further amended summons in the same terms as that annexed to the affidavit of Maria Bechara by 15 August 2014. (2)The plaintiff is to file and serve its evidence, including the transcript of the proceedings before the Local Court which are the subject of the appeal, by 15 August 2014. (3)The defendant is to file and serve any evidence upon which it seeks to rely at the appeal by 28 August 2014. (4)I adjourn the matter to the Registrar on 29 August 2014 so that a hearing date may be obtained. (5)The plaintiff is to pay the defendant's costs of today as agreed or assessed.