Second Plaintiff : Mr S Owen-Conway QC & Mr T Galic

Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243

1 MASTER SANDERSON: By chamber summons filed 29 January 2009 the plaintiffs sought the following orders:

1. (a) This action be struck out as an abuse of process.

(b) The plaintiffs immediately pay the costs of the defendants of the action and this application including all reserved costs on an indemnity basis.

1. (a) Alternatively, within 7 days from the date of this order, the plaintiffs give security for the defendants' costs of the action in the sum of $366,577.00 by payment of that amount into court and in the meantime order further proceedings by stayed.

(b) The said sum of $366,577.00 once paid into court be invested.

(c) On the date on which this action is entered for trial, the defendants be at liberty to apply for further security for their costs.

(d) All further proceedings in this action be stayed until the security for costs has been provided by the plaintiffs.

(e) The plaintiffs immediately pay the defendants costs of this application including all reserve costs.

1. (a) Alternatively the statement of claim and the writ be struck out for the reasons expressed in the letter from the defendants' solicitors to the plaintiffs' solicitors dated 19 January 2009.

(b) The plaintiffs immediately pay the costs of the defendants of the action and this application including all reserved costs on an indemnity basis.

1. The defendants have liberty to apply about orders 1, 2 and 3 whichever is applicable.
2. Such further or alternate orders as the court deems appropriate.

2 The matter was first returned on 12 February 2009 in chambers. On that day, a minute of consent orders was lodged. The document was prepared by the plaintiffs' solicitors. The orders proposed and made were that:

1. The plaintiffs file and serve answering affidavits by 12 March 2009.
2. The defendants file and serve responding affidavits by 9 April 2009.
3. The defendants' application be adjourned to a special appointment.
4. Plaintiffs and defendants file and serve submissions and authorities by 16 April 2009.
5. Costs reserved.

3 I should emphasise that this order was made by consent. It might also be observed that the time limits proposed were generous. The defendants, at the time of filing the application, lodged an affidavit of Hayden Ross Robinson upon which they intended to rely. The defendants also lodged an O 59 r 9 Certificate. That certificate shows that Mr Robinson and the plaintiffs' solicitor Mr Tihomir Galic had discussed the application on 19 January 2009. Subsequent to that discussion, a letter was sent by the defendants' solicitor to the plaintiffs' solicitor which further detailed the defendants' position. That letter was dated 20 January 2009. A further discussion took place on 23 January 2009 but failed to resolve the matter. But it is clear that by the time this application was issued, the plaintiffs' solicitors were aware of the defendants' complaints and were put on notice that an application would be issued. Furthermore, by the time the programming orders were made, the plaintiffs' solicitor had been in possession of the application and the supporting affidavit for just over two weeks. It cannot possibly be said that the plaintiffs were rushed in their preparation for the hearing of the application.

4 The plaintiffs did not comply with the programming orders. On 28 April 2009, without leave, the plaintiffs filed an affidavit of Mr Galic sworn 24 April 2009. I was advised from the Bar table that they also filed or attempted to file on the same day an affidavit of Simon James Sydney Chesson sworn the same day. There is no record on the court file of that document being filed. The first time I saw the affidavit was when a copy was tendered by counsel for the plaintiffs at the hearing. At 12.30 pm on the day of the hearing, the plaintiffs' solicitors faxed through what was described as a supplementary affidavit of the plaintiffs' solicitor sworn 30 April 2009. The plaintiffs' outline of submissions was lodged at 4.00 pm on 29 April 2009.

5 When the application was called on for hearing, counsel for the plaintiffs sought leave to rely on the three late affidavits. It was counsel's submission that these affidavits, and in particular the affidavit of Mr Chesson, were necessary to allow the plaintiffs to properly put their case. Counsel for the defendants objected to the tendering of these affidavits in the strongest possible terms. He pointed to the flagrant breach by the plaintiffs of the programming orders. His submission was that the affidavits ought be rejected and the matter ought proceed on the basis of the evidence tendered by the defendants.

6 Before ruling on the admissibility of the affidavits, it was proper that I consider their contents. This meant reading the affidavit of Mr Chesson. That affidavit ran to 28 paragraphs and, with exhibits, the entire document ran to 162 pages. Given that considerable time was expended in arguing about the admissibility of the affidavits and that it would take some time to read Mr Chesson's affidavit, I had no option but to adjourn the matter pending a ruling on the admissibility issue.

7 It is appropriate that I make some comment about the contents of each of the affidavits. The affidavit of Mr Galic sworn 24 April 2009 deals with his efforts as the plaintiffs' solicitor to pay moneys into court as security for costs in a related action. It was part of the defendants' case that the failure to comply with orders made by the court in relation to the lodging of moneys as security for costs was a factor to be considered in a claim that this present action was an abuse of process. Whatever else may be said about the affidavit, it is clear that the events with which it is concerned were well and truly concluded by 12 March 2009. In other words, there is no reason at all why the affidavit could not have been filed in conformity with the programming orders.

8 The supplementary affidavit of Mr Galic deals with the reasons why Mr Chesson's affidavit was filed late. It does refer to his earlier affidavit but contains no explanation for the delay in filing that affidavit. Mr Galic's affidavit does explain why the plaintiffs' submissions were late. But it does not explain why counsel was not briefed well before 12 March 2009 and certainly prior to the due date for submissions.

9 That then leaves the affidavit of Mr Chesson. Without going to the affidavit in detail, it is directed at the efforts Mr Chesson had made on behalf of the plaintiffs to obtain certain financial information from the first and second defendants. As I understand the thrust of the affidavit and relying upon counsel for the plaintiffs' oral and written submissions, it seems that the affidavit is directed to discretionary considerations as to whether or not security ought be granted. In essence, the argument is that the defendants have been obstructive, the plaintiffs have a very strong case and therefore this is not an appropriate instance in which to order security for costs. I accept that the affidavit addresses these discretionary considerations squarely and the material it contains as relevant to the disposition of the application.

10 Two points can be made about the affidavit of Mr Chesson. First, it demonstrates that most, if not all, of Mr Chesson's efforts to obtain information and the alleged obstruction of the plaintiffs by the defendants occurred after 12 March 2009. In other words, Mr Chesson's affidavit could not have been filed by the due date because events had not then occurred which it is now said justify the refusal to make the order for security for costs.

11 Second, if Mr Chesson's affidavit is admitted into evidence, the defendants would have to have the opportunity to respond. It may be that the result would simply by a contest on the evidence. But that is beside the point. The defendants would at least have to be given the opportunity to consider the material in the affidavit and put Mr Chesson's evidence in issue. Counsel for the defendants advised from the Bar table - and I accept - that he had not been in a position to take instructions on Mr Chesson's affidavit, let alone prepare an affidavit in reply.

12 It is clear what should have happened in this case. The plaintiffs' solicitor should have realised sometime prior to 12 March 2009 that the plaintiffs were not in a position to comply with directions. He should have made an application for an extension of time for the filing of affidavits and have applied to adjourn the special appointment. There is no reason whatsoever why such an application could not have been made. There is no explanation as to why it was not made.

13 Programming orders are regularly made in master's chambers. The time frames proposed are generally agreed between the parties, but if no agreement is reached the practice is to err on the side of generosity. If a party then finds that for good and legitimate reasons the program cannot be complied with, any concerns they raise will be given careful consideration. But it is simply unreasonable for parties to expect that documents delivered a few days before the hearing, where there has been no compliance with programming orders, will be considered.

14 The conduct of the plaintiffs' solicitor in this matter (and I emphasise that this is not a reference to counsel who appeared at the hearing) was reprehensible. Sufficient attention has not been paid to the court's orders. They have been ignored. Now the plaintiffs seek an indulgence. In my view, to grant such an indulgence would be unfair to the defendants. The defendants are entitled to expect that programming orders will be complied with and that their application will be disposed of in a timely fashion. Through no fault of their own, the defendants have been thwarted in that ambition. They should not have to deal with this material which was filed well out of time.

15 In reaching this conclusion I have been mindful of the competing interests of the parties. I accept that as a general rule, a party to litigation has the right to put before the court all material which supports its position. Furthermore, I accept that case management is not an end in itself. But there are cases, and this is one of them, when the actions of a party are such that the interests of justice require orders being made which effectively shut out that party from producing evidence which in other circumstances would be admissible and which would support his case. The relevant principles were discussed by Steytler P in Mariotti v Wanneroo North Pty Ltd [2008] WASCA 243.

16 For these reasons I am not prepared to admit any of the three affidavits sought to be tendered on behalf of the plaintiffs into evidence. The matter will proceed on that basis.