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These proceedings were commenced by summons on 4 February 2022 seeking, amongst other things, orders pursuant to s 69 of the Supreme Court Act 1970 (NSW). They have an extensive history.
When the proceedings came before the Registrar on 1 March 2022, a number of orders were made, including an order that the plaintiffs file and serve an amended summons by the close of business on 8 February 2022.
The proceedings then came before the Registrar on 24 March 2022. On that occasion, a further order was made requiring the plaintiffs to file and serve any amended summons by 28 March 2022.
The proceedings came before the Registrar again on 27 April 2022, at which time an order was made requiring that the plaintiffs file and serve any amended summons by 6 May 2022. The Registrar further ordered that in the event that no amended summons was filed by that date, the plaintiffs would be required to file and serve a notice of motion seeking leave to do so.
The proceedings then came before the Registrar on 13 May 2022. On that occasion the Registrar ordered that the plaintiffs file and serve any notice of motion seeking leave to file an amended summons by 20 May 2022.
The proceedings then came before the Registrar on 27 May 2022. It was ordered that the plaintiffs file and serve any evidence or written submissions in support of the notice of motion seeking leave to file an amended summons (which was eventually filed on 24 May 2022) by 10 June 2022. The Registrar also specially fixed the notice of motion filed on 24 May 2022 for hearing before the Court on 6 July 2022.
On 21 June 2022, bearing in mind the orders that had previously been made, the matter came before the Registrar again. On that occasion noting that the plaintiffs had not complied with the orders made on 27 May 2022, the Registrar ordered (inter alia):
3. Time for compliance with order 1 made on 27 May 2022 is extended to 4pm on 22 June 2022.
4. If there is no compliance with order 3 above, the Motion is immediately dismissed and the Hearing vacated, with an order that the plaintiffs pay the costs of the respondents to the Motion forthwith.
5. If there is compliance with order 3 above, the respondents are to file and serve their submissions by 1 July 2022.
At about 3.30pm yesterday afternoon, in my capacity as Duty Judge, I was notified by the Registrar that the plaintiffs wished to put the matter back before the Court. That, of course, occurred a short time before the time nominated in order 3 of the Registrar's orders of 21 June 2022. When the matter came before me, no notice of motion had been filed. It became apparent, however, that the plaintiffs were about to default under the Registrar's orders, and that a further extension of time in which to file and serve evidence was sought. In those circumstances, and given that the matter could not be completed yesterday, I varied the Registrar's orders of 27 May 2022 so that the time for compliance with order 1 was extended until further order of the Court. In an attempt to bring some regularity to the proceedings, I also made orders, amongst other things, requiring a notice of motion to be filed by the plaintiffs setting out precisely what orders were sought.
A motion was then filed by the plaintiffs seeking orders these terms:
1. The time for filing further evidence and submissions in support of the plaintiff's notice of motion to seek the Court's leave to file an amended summons be extended to 6:00pm on Monday, 27 June 2022.
2. The Court affirm that the orders of Registrar Jones made on 21 June 2022 were made in jurisdictional error or error of law and set them aside.
3. The Court order that the defendants bear the plaintiffs' costs associated with the injunctive relief application on an indemnity basis.
4. Any other orders that the Court deems appropriate.
The terms of paragraph 2 of that notice of motion were far from clear. When I sought to ascertain precisely what was sought, the solicitor for the first plaintiff indicated to me that he no longer pressed an order in those terms. The second plaintiff, who appeared on his own behalf, indicated that he did press order 2, and said that what was sought was something akin to declaratory relief. At that point, the solicitor for the first plaintiff abandoned his original position and indicated that he wished to press order 2.
The second plaintiff filed written submissions which he read onto the record and which were adopted by the solicitor for the first plaintiff. The essence of the proposition advanced by the second plaintiff was that in making the orders of 21 June 2022, the Registrar had fallen into jurisdictional error by failing to have proper regard to the provisions of ss 56 to 61 of the Civil Procedure Act 2005 (NSW) (the CPA). I do not propose to repeat the discursive submissions which were advanced by the second plaintiff in support of his position. Some of them were entirely irrelevant to any issues I am required to determine.
Counsel for the first and second defendants (and the proposed tenth and fourteenth defendants) accepted that it was open to the Court to make order 1. That was also the position adopted by counsel for the third defendant. Counsel for the eighth and ninth defendants opposed that order. All counsel opposed the orders sought in paragraphs 2 and 3 of the motion.
In my view, there is not a scintilla of evidence to support the proposition that the Registrar erred in making the orders on 21 June 2022. On the contrary, and given the history of these proceedings as I have outlined them, it is plain that in making those orders the Registrar had in mind the entirely unsatisfactory manner in which the proceedings had been conducted by the first and second plaintiffs up until that time, and the need to have regard to the provisions of ss 56 to 61 of the CPA. It is equally plain, in light of the history of the proceedings, that the Registrar had in mind the necessity to properly manage the proceedings so that the hearing date would be preserved. That was an entirely proper approach to take.
Whilst I have considerable misgivings about the bona fides of both the first and second plaintiffs, I propose to allow them further time in which to file any necessary material. I will to do so in terms which mirror those which were adopted by the Registrar on 21 June 2022.
As far as costs are concerned, the simple fact is that the plaintiffs have sought an indulgence from the Court. In those circumstances, the proper exercise of the Court's discretion is that the plaintiffs pay the costs of the defendants as agreed or assessed.
Accordingly, I make these orders:
1. Order 3 made by the Registrar on 21 June 2022 is further varied by requiring the plaintiffs to file and serve all remaining evidence and written submissions by 5pm on 27 June 2022.
2. If there is compliance by the plaintiffs with order 1, the defendants/respondents are to file and serve all evidence and written submissions by 4pm on 4 July 2022.
3. If there is no compliance by the plaintiffs with order 1, the notice of motion of 24 May 2022 shall be dismissed, the hearing date shall be vacated, and an order made that the plaintiffs pay the costs of the defendants of that motion forthwith.
4. In the event that the motion proceeds to hearing on 6 July 2022, the parties are to prepare a joint court book containing all evidentiary and related material two copies of which are to be delivered to the chambers of the judge who is to hear the matter no later than 12 noon on 5 July 2022.
5. The plaintiffs are to pay the costs of the defendants/respondents today's notice of motion, together with the costs of the proceedings before me on 22 June 2022, on the usual basis such costs to be payable forthwith.
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Decision last updated: 22 July 2022