Supreme Court of WA|2008-06-04|Before: Johnson J

MARIOTTI -v- WANNEROO NORTH PTY LTD [2008] WASC 109 (4 June 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

Application to dismiss action - Unrepresented litigant - Failure to attend pre-trial directions hearings - Failure to comply with pre-trial directions - Failure to prepare for trial - Contumacious conduct - Abuse of process

1 JOHNSON J: There are two applications before the court. The first in time is the defendant's chamber summons for dismissal of the action (the defendant's application). The other application is the plaintiff's chamber summons to adjourn the defendant's application for dismissal and to adjourn the trial dates (the plaintiff's application).

2 The trial of this action was listed to commence on 21 April 2008. The plaintiff's former solicitors had on 4 April 2008 been granted leave to be removed from the record because they had been unable to obtain instructions from the plaintiff. Despite being reminded of the impending trial dates and being advised to obtain legal representation by both the solicitor for the defendant and by the court, the plaintiff failed to comply with orders for trial directions and failed to attend two directions hearing. The directions hearings had been listed for the specific purpose of having the plaintiff, or his legal representative attend, in order to ascertain whether the plaintiff was indeed represented and whether the action was being prepared for trial.

3 The hearing of the defendant's application was listed before me on 18 April 2008, the Friday before the trial was due to commence on Monday, 21 April 2008. At the hearing, counsel for the plaintiff advised the court that the plaintiff's application had not yet been filed but that filing would be attended to at the first opportunity. Counsel further advised that he had only been briefed that morning as the plaintiff had only engaged his solicitors the evening before. It was on that basis that the plaintiff sought to adjourn the application for dismissal of the action and, because of the proximity to trial and the lack of any trial preparation, also adjourn the trial dates.

4 The fact that the plaintiff's counsel had not been properly briefed was, in my view, entirely the result of the plaintiff's own actions. However, because it was apparent by that stage that the trial listed to commence on 21 April 2008 would not be going ahead on the first day and there was, therefore, no prejudice to the defendant in delaying the hearing of the applications until counsel for the appellant was properly briefed, both applications were adjourned to be heard on Monday, 21 April 2008.

5 An understanding of the history of the action is essential to the resolution of both applications. In recounting this history I will set out matters of fact which are agreed but also refer to the evidence in the various affidavits concerning matters in dispute. In addition to the affidavit evidence, the history of the action is sourced from transcripts of hearings, documents filed in the action and certain records on the court file.

6 On behalf of the plaintiff, no application was made to cross-examine the deponents of those affidavits relevant to the applications and no issue was taken with the veracity of the deponents. However, counsel for the defendant sought leave to cross-examine the plaintiff. The primary basis of the application to cross-examine and of the decision to grant the application was the fact that the information contained in the plaintiff's most recent affidavit was in direct conflict with information contained in the two earlier affidavits.

7 This action commenced in the District Court of Western Australia. A Notice of Default for Entry for Trial was issued by the District Court of Western Australia on 6 June 2006 because the plaintiff had failed to enter the matter for trial. The plaintiff did not proceed to enter the matter for trial and the case became inactive. It was the defendant who ultimately entered the matter for trial in the District Court of Western Australia on 17 November 2006. The action was remitted to the Supreme Court of Western Australia by consent on 3 August 2007.

8 On 26 September 2007 the matter was entered by consent into the Supreme Court of Western Australia's Commercial and Managed Cases list and on 12 December 2007 Newnes J made orders, including an order that the plaintiff file and serve the amended papers for the Judge by 1 February 2008. The amended papers were not filed on 1 February 2008 or at all.

9 At a directions hearing on 14 December 2007 the defendant sought and obtained an order that the action be adjourned to the next listing conference so that the action could be listed for trial. After a listing conference held on 11 February 2008, the action was listed for trial from 21 - 23 April 2008 to suit the availability of counsel for both parties.

10 By 21 February 2008 the parties had reached an in principle settlement agreement, subject to a deed of settlement being agreed. On 21 February 2008 a draft deed of settlement was sent to the plaintiff's solicitors by Ms Phatcha Tantiprasut, the solicitor from Fairweather Lemonis, solicitors for the defendant, who had supervised conduct of the matter. One of the conditions contained in the draft deed of settlement was that the plaintiff's wife sign the deed as the settlement related to a contract which included the wife as a party.

11 The following portion of the history of the action comes from the affidavit of Mr Hobday sworn 2 April 2008. Mr Hobday, a solicitor from Lewis Blythe & Hooper, the plaintiff's solicitors telephoned the plaintiff, who was overseas, and advised him of the offer. The plaintiff advised that the terms proposed by the defendant would not present any obstacle. Consequently, as at 21 February 2008, Mr Hobday made arrangements to cease all preparation for trial, including notifying a potential expert witness to cease reviewing various relevant matters for a report.

12 Upon the plaintiff's return, Mr Hobday met with the plaintiff who confirmed that the settlement conditions should not be an issue and said he would discuss the matter with his wife, from whom he was separated. Over the course of the weeks commencing 10 and 17 March 2008 Mr Hobday had a number of telephone conversations with the plaintiff who indicated that he had provided the documents to his wife, spoken to her and she had indicated some concerns about the deed but that he would go and see his wife over the weekend of 21 March, at which time matters would be resolved.

13 On 26 March, Mr Hobday attended a directions hearing before Justice Le Miere at which time he explained that the parties had effectively agreed a position but that the plaintiff's wife had not yet agreed to sign the deed. Mr Hobday sought a further week to resolve the matter. The defendant's solicitors considered such a delay to be too long in view of the proximity of the trial date and sought, and obtained, trial directions which included directions:

(a) to enable the trial bundle to be completed by 7 April 2008;

(b) for the plaintiff to file a chronology by 10 April 2008; and

These orders had not been complied with by the date the defendant's application was first listed, nor by the hearing of the application on 21 April 2008.

14 On 26 March, Mr Hobday was contacted by the plaintiff who indicated that he had spoken to his wife and that she had an adviser. The plaintiff told Mr Hobday that his wife had formed a different view as to the whole of the action. Mr Hobday sought instructions to either proceed with the settlement, or attempt to negotiate a settlement which did not include the signature of his wife, or to prepare the matter for trial.

15 The plaintiff told Mr Hobday he would not provide any such instructions. He said that he had been told by his wife and her advisers that the matter was not listed for trial and he did not believe it was. He declined to advise Mr Hobday of who the advisers were, he would not at that time provide Mr Hobday with any instructions, and he would get back to him in a couple of weeks.

16 Mr Hobday advised the plaintiff that this was not acceptable given the programme orders were made by the court and given Mr Hobday's obligations as an officer of the court. If the plaintiff failed to immediately provide instructions, Mr Hobday would be left with no option but to cease acting and be removed from the court record.

17 On 27 March, Mr Hobday arranged for a meeting to be held on 31 March with the plaintiff and with either his wife or his wife's advisers. On the same day Mr Hobday wrote a letter to the plaintiff, delivered by courier, in which he reminded the plaintiff of the trial dates and of the pre-trial directions, the first of which needed to be attended to by 31 March 2008. Mr Hobday referred to the meeting to be held on 31 March and stated that, unless relevant instructions were provided at that time, Mr Hobday would be unable to continue acting.

18 During that week Mr Hobday spoke with Ms Tantiprasut and suggested that both parties should hold off on any action until the meeting of 31 March.

19 Mr Hobday attended the meeting on 31 March and met with the person who was introduced as the plaintiff's wife's commercial adviser and who identified himself as James Tee. It appears from other affidavit evidence that Mr Tee is from an organisation called First International Merchant Bank North America Holding Ltd (First International). Mr Tee advised Mr Hobday that he understood from the plaintiff's wife's enquiry and legal advice that there was an alternative cause of action available which needed to be pursued. He said that in his view it would be contrary to the plaintiff's interests to enter into the settlement or proceed to trial without raising those issues and that the wife would not agree to enter into the settlement. Mr Tee also said that he was not authorised to disclose the name of the legal advisers at that time.

20 Mr Hobday requested and received instructions from the plaintiff to obtain preliminary advice from counsel. The advice was received from counsel on 1 April and relayed to the plaintiff who again declined to instruct Mr Hobday. Mr Hobday advised that, in those circumstances, he would have to cease to act and the plaintiff should instruct other solicitors. The plaintiff said that that was what he would do. The plaintiff told Mr Hobday that he would get back to him that afternoon or early the next day. He did not do so.

21 Mr Hobday spoke to the plaintiff on the morning of 2 April. The plaintiff advised that he would get back to Mr Hobday in the afternoon which he failed to do.

22 Mr Hobday then filed an application for leave for Lewis Blyth & Hooper to be removed from the record on the basis of the information to which I have just referred. That application was heard on 4 April 2008. There was no appearance at the hearing by, or on behalf of, the plaintiff. Based on the affidavit material, an order was granted that Lewis Blyth & Hooper, having ceased to act, be removed from the record. Mr Hobday advised the defendant's solicitors on the same day and provided the plaintiff's contact details so that they could contact him direct. The order was served upon the solicitors for the defendant and on the plaintiff.

23 Shortly after the hearing and the making of the order, the court was provided with an affidavit of the plaintiff dated 2 April 2008 which Mr Tee had sent by facsimile with a request it be given to my associate in court. Mr Tee advised that he had made several attempts to send the affidavit by facsimile and by the time it came through the court had already adjourned. Mr Tee made a request for my associate to contact him. Curiously, the affidavit was sworn on 2 April 2008, the same day that the plaintiff was served with his solicitors' application to remove themselves from the record. No explanation was provided as to why the affidavit had not been forwarded to the court at an earlier time.

24 The following information comes from the plaintiff's affidavit of 2 April 2008. The plaintiff is 81 years of age and migrated to Western Australia from Italy. The affidavit contains a section dealing with the background to the litigation in which the plaintiff speaks of his attachment to the land, the subject of the litigation, and the circumstances in which he came to enter into a contract to sell the defendant his land. The plaintiff said that he would never have sold his property if he were aware that he could not have kept his family home and the land immediately around it.

25 The plaintiff continuously retained Lewis Blythe & Hooper as his solicitors. He maintained he had always specifically instructed his solicitors to exhaust and pursue every legal avenue available to him to secure title to an acre of land around his house. On or about 14 April 2004 the plaintiff's solicitors obtained counsel's advice but never explained to him the full effect of that advice.

26 The plaintiff referred to the most recent offer of settlement which involved the payment of the settlement sum in satisfaction of his claim. The plaintiff had always explained to his solicitors, and particularly to Mr Hobday, that he would not be satisfied with a monetary payment as compensation. However, notwithstanding his dissatisfaction with the compensation offer, the plaintiff followed the advice of his solicitors and presented the draft deed to his wife for her execution. The plaintiff's wife was disappointed with the amount of the compensation. She declined to sign the deed and wanted to seek advice as to whether the compensation was commercially reasonable. The plaintiff had been continually engaged in negotiations with his wife concerning the proposed settlement but had not concluded them.

27 The plaintiff had been advised by Mr Hobday that his wife's signature was necessary to finalise the settlement and that without it, the litigation would proceed to trial. Mr Hobday continually contacted the plaintiff between 27 March and 1 April, effectively pressuring him to accept the settlement.

28 The plaintiff understood that the Court has made various orders at a directions hearing on 26 March pertaining to the conduct of the litigation set for trial on 21 April. It is apparent then, that at least by 2 April 2008, the plaintiff was well aware that the matter was listed for trial and was aware of the trial date.

29 On 1 April 2008, the plaintiff was advised by his wife that she had obtained preliminary advice as to the reasonableness of the offer of compensation and the following predominantly body preliminary legal advice as to her rights arising as a party to the contract of sale. The plaintiff's wife informed him that she had received advice that:

(a) the contract of sale or parts thereof may be illegal and void; and

(b) that one of the possible consequences of an illegal contract or a partially illegal contract is that it might be set aside by the court; and

(c) that if the contract of sale is illegal and set aside, one possibility is that the land sold may be recovered upon the repayment of any purchase moneys received from the sale.

30 The plaintiff related this advice to Mr Hobday at the meeting on 1 April attended also by Mr Tee. The plaintiff described Mr Tee as being retained by his wife as her commercial adviser in respect of the proposed property settlement and other financial issues between them. Mr Tee advised Mr Hobday of the plaintiff's wife's concerns and that she wanted to carefully consider all her options in respect of any causes of action based on illegality. Without that advice, the plaintiff's wife could not be in a position to execute the deed.

31 Following the meeting, the plaintiff repeated his instructions to Mr Hobday that his preference was to pursue all legal avenues to secure and obtain title to his land and that it was and always had been his paramount instructions to secure title to his home. The plaintiff instructed Mr Hobday to explore all options to achieve that outcome and prepare for trial. Mr Hobday then asked for, and received, instructions to obtain a written opinion from Joshua Thompson, of counsel, as to whether the contract of sale or parts thereof could be illegal and the potential consequences of that illegality.

32 The plaintiff maintained that he has not received any written opinions from Mr Thompson but instead received a letter from Mr Hobday indicating that the contract of sale would not be set aside on the basis of any illegality. The plaintiff was surprised by 'the curious nature of this advice given what is at stake'. He thought it strange that he did not receive a written opinion given the contrary advice that his wife had received.

33 The plaintiff also addressed what he described as special circumstances justifying the retention of his solicitors. The plaintiff said that Mr Hobday had persistently been in contact with him over several days indicating to him that he had to execute the deed or he would refuse to continue acting for him. The plaintiff said Mr Hobday may have misunderstood his instructions because he had already instructed him to obtain a written opinion from counsel with a view to amending the pleadings. Mr Hobday was told by the plaintiff to continue preparing for trial until such time as the plaintiff was able to get his wife to execute the settlement agreement. The plaintiff told Mr Hobday to give him a few days so that he could conclude negotiations with his wife to execute the deed but Mr Hobday should in any event prepare for trial.

34 The plaintiff told Mr Hobday very clearly that his preference was always to explore all possibilities to secure the title to his land. The plaintiff could not understand why his solicitors did not comply with his instructions to pursue any issues of possible illegality, especially since they had obtained a written opinion from counsel as early as 2004.

35 Having been served with his solicitors' application to remove themselves from the record on the afternoon of 2 April he had not had an ample opportunity to consult new solicitors in relation to the application and would be prejudiced if the application was heard with such urgency that he had not been afforded with any real opportunity of consulting new lawyers.

36 The plaintiff's affidavit was sworn in support of an application to adjourn the application of the solicitors to remove themselves from the record. No formal application of that type was made and there was no appearance for the plaintiff at the hearing on 4 April.

37 According to an affidavit sworn by Ms Tantiprasut on 9 April, she spoke to the plaintiff by telephone on 4 April. In the course of the discussion she advised the plaintiff of the trial date and that she would contact the court to urgently re-list the matter for a hearing. The plaintiff said to Ms Tantiprasut that his solicitors were no longer acting for him, he knew the trial was starting in two weeks and he was planning to speak to his wife over the weekend about appointing new solicitors. Ms Tantiprsut told the plaintiff that it was very important that he engage new solicitors quickly because the trial was due to start in two weeks and that his new solicitors should contact her straight away.

38 The matter was re-listed for a directions hearing on 10 April. On 8 April Ms Tantiprasut sent a letter to the plaintiff confirming her conversation with him on 4 April by setting out its terms and Ms Tantipraut also advised the plaintiff in the letter that the matter had been listed for a directions hearing on 10 April 2008 at 10.00 am. The balance of the letter was in relation to the trial directions and the plaintiff's obligations with respect to the trial bundle and witness statements.

39 Ms Tantiprasut telephoned the plaintiff on a number of occasions on 8 April and 9 April and left messages on each occasion. On 9 April she received a telephone call from James Tee who identified himself as a director of First International. He advised that he was giving the defendant notice that First International was taking an assignment of the plaintiff's chose in action for valuable consideration and that First International had reached an agreement as to the assignment but the mechanics of the assignment had yet to be completed. He expected that the settlement of the assignment would occur between 14 - 20 April and he would provide formal notice of the assignment when it occurred. Mr Tee told Ms Tantiprasut he was meeting with the plaintiff that afternoon and had been given copies of her letter of 8 April. He further said that he did not think they would be able to engage new solicitors to attend the hearing on 10 April but he intended to attend and seek leave to appear amicus curiae. He also said that it appeared both parties were prejudiced by the contemplated settlement.

40 Ms Tantiprasut informed Mr Tee that the defendant was not prejudiced for the trial by the contemplated settlement having fallen over and that minor amendments to the trial directions would be sought at the hearing.

41 The plaintiff did not appear on 10 April either personally or by counsel. Counsel for the defendant agreed to the court's suggestion that it write to the plaintiff advising of the imminent need to obtain legal advice and/or representation. It was also necessary to hold a further directions hearing in order to establish whether the plaintiff had legal representation and to ensure that the matter was being progressed for trial. Counsel for the defendant expressed the view that since 4 April there had been no impediment to the plaintiff obtaining alternative representation and, on the basis that the defendant had not been advised of any application with respect to the trial dates, counsel sought and obtained orders varying the timetable for the trial directions.

42 The orders made at the hearing on 10 April required the plaintiff to serve the plaintiff's trial bundle by 14 April, to give notice as to the defendant's trial bundle by 14 April, file the plaintiff's trial bundle by 16 April and serve its witness statements by 14 April. The matter was otherwise adjourned to a further directions hearing on 15 April 2008.

43 On 10 April the court wrote to the plaintiff referring to the hearing on 10 April 2008 and enclosing a copy of the orders made. The letter also suggested that, due to the proximity of the trial, it was imperative that the plaintiff immediately obtain legal representation. The plaintiff was also advised that he was required to attend in court for a further pre-trial hearing on 15 April 2008 but that a solicitor could attend on his behalf.

44 In her affidavit of 14 April, Ms Tantiprasut stated that on 10 April she served on the plaintiff a copy of the defendant's trial bundle and that on 11 April she filed and served the Amended Papers for the Judge. On 16 April she filed the defendant's trial bundle. It is apparent that at this stage the defendant was preparing for trial.

45 On 10 April Ms Tantiprasut also sent a letter to the plaintiff by courier enclosing a copy of the orders made on 10 April. The plaintiff received the papers and signed for them. In the letter Ms Tantiprasut advised that the orders made on 10 April required him to take certain steps in preparation for trial. She also advised the plaintiff of the further directions hearing on 15 April 2008 and that he needed to attend on that date or engage solicitors to attend on his behalf.

46 Ms Tantiprasut telephoned the plaintiff on 10 and 14 April. At approximately 4.00 pm on 14 April the plaintiff returned her calls. Not being available to take the plaintiff's call, Ms Tantiprasut later contacted the plaintiff. She said she was calling because there was a further directions hearing on the following day as the plaintiff had not attended the previous hearing and no-one had attended on his behalf. She advised the plaintiff of the time of the hearing on the following day and also provided him with the address. Finally Ms Tantiprasut told the plaintiff that it was very important that he attend tomorrow's hearing because the trial was starting next week.

47 The plaintiff's response was to the effect that he would have to see about tomorrow and that he was supposed to go to Jurien Bay. The plaintiff also said that his wife had appointed new solicitors but, when asked, he said that he did not remember the name. Ms Tantiprasut said that it was very important that he attend the hearing or have his solicitors attend.

48 The plaintiff did not appear at the hearing on 15 April 2008, despite the number of occasions on which he was advised of the date and of the need for him to appear personally or by counsel. On that occasion I made the comment that it seemed that the plaintiff did not really appreciate the significance of the orders or the request by the court to attend. Counsel for the defendant put to the court the alternative proposition that the plaintiff was fully aware of what he was doing. Support for that conclusion was said to be found in the content of Ms Tantiprasut's affidavit which indicated, it was submitted, that the plaintiff was not only aware of the hearing but also of its importance and significance.

49 Counsel for the defendant also advised that there were outstanding trial directions in relation to the trial bundle and the plaintiff's witness statements and noted that the plaintiff had done nothing at all to progress the claim towards trial. Senior counsel foreshadowed an application to be made prior to the trial dates to dismiss the action.

50 The directions hearing was adjourned on the basis that an application to dismiss the action might be filed, and if it were, it would be heard on the Friday before trial, 18 April 2008. Otherwise the matter would be before the court for trial on 21 April 2008.

51 A chamber summons for dismissal of action was filed on 17 April 2008 and listed for hearing on 18 April 2008. The orders sought were that time for service be abridged, that the statement of claim be struck out, the action dismissed and judgment be entered for the defendant. A costs order was also sought. Four affidavits were filed in support of the application.

52 In her affidavit of 16 April 2008, Ms Tantiprasut stated that on 15 April she sent to the plaintiff a letter in which she confirmed the content of their conversation of the previous day. Ms Tantiprasut also referred to the plaintiff's failure to appear before the court on that morning. She advised the plaintiff that he was in default of the orders made on 10 April and the nature of the default was outlined in the letter. The plaintiff was further advised that, because of his failure to attend the hearings on 10 and 15 April, the defendant would be making an application to dismiss the plaintiff's claim. Ms Tantiprasut stated in the letter that the application would be filed and served on 16 April to be heard on 18 April 2008. Finally, Ms Tantiprasut urged the plaintiff to immediately seek independent legal advice.

53 Ms Tantiprasut also phoned the plaintiff on 15 April and reminded him that she had spoken to him the day before about the hearing on that morning and noted that no-one had attended the hearing on his behalf. Ms Tantiprasut read to the plaintiff the contents of a letter she had written to him. The plaintiff confirmed that he had spoken to her on the day before, that he told James Tee about the hearing and that he went to Jurien Bay. He also said that he was sorry but he 'didn't want to hear any of this' and hung up.

54 On 17 April Ms Tantiprasut sent to the plaintiff by courier a covering letter and a copy of the defendant's chamber summons and the supporting documentation. The documents were left at the plaintiff's address by the courier at 4.10 pm. In the affidavit of Hayley Marie Twigg sworn 18 April 2008, Ms Twigg, who was employed by the defendant's solicitors, said that on 17 April she received a telephone call from Mr Tee who asked to speak to Ms Tantiprasut, who was not available. Mr Tee said to Ms Twigg that the conversation was being recorded. Mr Tee then proceeded to dictate to her a message to Ms Tantiprasut. According to Ms Twigg, Mr Tee said this:

I received service of the chamber summons - no application for abridgment of time on face of chamber summons - memorandum misleading to extent that suggests both parties have agreed that application should be listed with liaisons.

55 In fact, the chamber summons does include a request for abridgment of time. I presume the memorandum being referred to is the memorandum of conferral under O 50 r 9(1) of the Supreme Court Rules 1971 (WA) which must be considered in the context of the content of the supporting affidavits which clearly set out the nature and extent of conferral.

56 A further affidavit filed in support of the application and sworn on 17 April 2008 is that of Brendan Michael Toohey, the defendant's Project Manager with responsibility for the defendant's development known as 'The Grove' which where the plaintiff's property was located. Mr Toohey deposes to a telephone discussion on 15 April with Mr Ray Falls, a land administration officer at the City of Wanneroo (the City). Mr Falls told him that James Tee had contacted him and arranged a meeting which was held on Friday, 11 April. The plaintiff attended the meeting with Mr Tee. During the meeting the plaintiff and Mr Tee asked Mr Falls a number of questions including whether the plaintiff's lot could be created as a separate lot and whether there was other land south of the plaintiff's lot which could be created for him. Mr Falls was also asked about the nature of the defendant's obligations to cede the plaintiff's land to the City and the extent of any compensation payable to the plaintiff for the ceding of the land to the City.

57 According to Mr Toohey, the delay in the action proceeding to a resolution has caused continued uncertainty. There are various parties, each of whom is a shareholder of the defendant, who are interested in the defendant company which was established as the vehicle by which the development was pursued. Because there is an outstanding claim against the defendant, the quantum of which is not fixed, the defendant is unable to finalise the share of the development which would be paid to each interested party and would then need to hold funds to cover additional legal expenses and a possible award of damages. Mr Toohey maintains that, without this claim, the defendant would proceed to complete the development and the company would then be wound up. Mr Toohey also states that the plaintiff claims damages at the current market value of the plaintiff's land. It is said that, based on the agreement of the parties' experts, the value of the plaintiff's land as at March 2004 was $500,000 and as at 1 June 2007, the value was $1 million. If the trial is further delayed, it is likely that the land values would have again moved. The defendant would need to obtain further expert valuation evidence.

58 On the morning of 18 April 2008, the court received a message from Mr Tee advising that he received the chamber summons on the previous afternoon and solicitors would be appearing that morning to oppose the application to dismiss the action.

59 At the hearing on 18 April 2008 the plaintiff was represented by counsel who advised that he was instructed to bring an application to adjourn the defendant's application and vacate the trial dates. In response to an inquiry from the court, counsel stated that his instructing solicitor had not been engaged until 7.00 pm on the previous day, 17 April, and that counsel had not been briefed until the morning of the hearing.

60 In support of the application the plaintiff filed an affidavit sworn 18 April in which he complained of deficiencies in the way in which the plaintiff's previous solicitors had handled his claim. The plaintiff's primary complaint was that his solicitors had not prosecuted his action diligently. The plaintiff also alleged that his solicitors did not fully explain to him the reasons they ceased acting for him, maintaining that he gave them instructions to prepare the matter for trial. He asserted that it was very difficult for him at his age to instruct new solicitors and he did not know where to go.

61 The plaintiff also deposed to the fact that, during the previous week or so, he had received a number of confusing telephone calls from a lady who described herself as 'Mintie' and he had been told that this person is likely to be Ms Tantiprasut. The plaintiff could not understand what she was saying because she was speaking very fast and used confusing words that he did not understand. English is not the plaintiff's first language and he suffers hearing loss so it was very difficult for him to understand someone on the telephone when they are speaking too fast. The way in which the plaintiff refers to Ms Tantiprasut gives what I consider to be an unjustified impression that he did not know who she was or what she was talking about. The plaintiff acknowledged that he received a number of letters that were delivered to his house every couple of days in the past week. He received a bundle of documents on 17 April, shortly before he was due to meet with his new solicitors.

62 The plaintiff maintained that he was not aware that there was a hearing to dismiss his action listed in court on 18 April and was very worried that he would not have a chance to properly argue his case because of the sudden change of solicitors. The plaintiff had been informed by his new solicitors that their preliminary view is that a great deal of preparation for the trial of the matter does not appear to have been done and that the plaintiff will be greatly prejudiced if he is to proceed to trial at this time.

63 It was apparent from discussions with the plaintiff's counsel at the hearing on 18 April that there was much relevant information of which he had not been made aware in the very short period between being briefed and appearing in court. Based on the material before me, my tentative view was that the plaintiff had been inexcusably dilatory in obtaining legal representation. On that basis, the fact that the plaintiff's counsel had not been adequately briefed appeared to be entirely a consequence of the plaintiff's own actions.

64 However, it was apparent that, because of what had happened in the preceding weeks, the trial could not proceed as listed. In those circumstances there was no prejudice to the defendant in delaying the hearing of the applications until counsel for the appellant was properly briefed. Both applications were adjourned for hearing on Monday, 21 April 2008.

a. Affidavit of the plaintiff sworn 19 April 2008**

65 In his affidavit sworn on 18 April, the plaintiff had effectively blamed his solicitors for the inability to proceed to trial and maintained that he was unaware that he was required to attend hearings because he was unable to understand his conversations with Ms Tantiprasut.

66 However, at the hearing on 21 April, the court was provided with a further affidavit of the plaintiff sworn 19 April in which he gave an entirely different account of events. The plaintiff stated that he was introduced to Mr Tee by a friend of long standing with whom the plaintiff had previously discussed his court action. The friend recommended Mr Tee to the plaintiff as a person who could assist him. The friend said that Mr Tee was a lawyer but may not have a licence.

67 In or about early March 2008 the plaintiff attended a meeting with Mr Tee. After reviewing all the papers, Mr Tee told him that he should not accept the offer made by the defendant. Mr Tee said the plaintiff was entitled to the return of the title to his land. Mr Tee also said that the sale contract was illegal. The plaintiff was impressed with the way that Mr Tee quickly grasped the issues and provided him with advice as to what he should do. In fact, in the early stages of litigation, the plaintiff had received advice from counsel to the effect that the contract was illegal.

68 Mr Tee said he would pay the plaintiff $750,000 in exchange for a share in any amount that the plaintiff received over and above $750,000 after Mr Tee was repaid his initial $750,000 or, alternatively, if the plaintiff had title to his land returned to him, a share in the land.

69 Mr Tee informed him that he would take over the conduct of the action on his behalf and he would contact Lewis Blyth & Hooper and instruct them on how the matter was to proceed from then on. Mr Tee also said that he would contact the defendant's lawyer regarding the next best step.

70 The plaintiff alleged that his affidavit of 2 April 2008 was prepared by Mr Tee on his behalf and is an example of a document that gave the plaintiff the impression that Mr Tee would undertake for him the necessary steps required by the court and that he was qualified to do so. That statement is somewhat curious because it is apparent from the plaintiff's affidavit of 19 April that the content of the affidavit of 2 April was mostly false. Mr Tee also drafted the affidavit of 18 April 2008 which was provided to the plaintiff's new solicitors, Vogt Graham Lawyers, on the morning of the hearing on 18 April 2008. The plaintiff relied on Mr Tee to take all necessary steps required by the court and to assist the plaintiff in the prosecution of his action against the defendant. During this time the plaintiff understood that Mr Tee was acting for him to achieve that purpose.

71 Although the plaintiff received a large number of documents every couple of days in the week prior to 18 April, he was unsure as to the nature of the documents as he became confused on every attempt to read them. The plaintiff provided the documents to Mr Tee to deal with them. The plaintiff also received telephone calls from Ms Tantiprasut which he found confusing. Although he listened to what she said to him, he did not really understand what was being said. The plaintiff's response to the calls was to simply request that the caller contact Mr Tee. Further, having been informed that Lewis Blyth & Hooper no longer wished to act for him, the plaintiff relied on Mr Tee to obtain a new solicitor for him.

72 As part of assisting the plaintiff in the legal action, on 11 April Mr Tee took him to the offices of the City to investigate if the plaintiff's land was zoned as public open space. The plaintiff attended a meeting with Mr Falls, the public open space scheme officer for the Land Administration Department of the City, and received certain information about the status of his land and the arrangement by which the defendant was required to cede that land.

73 The plaintiff was served with the defendant's application to dismiss the action on 17 April 2008 only a few hours before a meeting with Mr Vogt from Vogt Graham Lawyers arranged by Mr Tee.

74 The plaintiff indicated in his affidavit that he wished to pursue the proceedings as he has invested a significant amount of money in legal fees and other costs. Contrary to his allegations in his two previous affidavits, the plaintiff said that he was not aware of any difficulties or delays in the preparation of his claim caused by his previous solicitors. The plaintiff had been advised by Mr Hobday that he had a good cause of action against the defendant. The plaintiff had instructed Mr Vogt to take all steps necessary to have his case prepared for trial and to comply with all orders made by the court.

75 It can be seen that in his affidavit of 19 April the plaintiff placed almost all the blame for what had occurred on Mr Tee.

b. The affidavit of Ms Tantiprasut sworn 21 April 2008

76 Following receipt of the plaintiff's affidavit of 19 April, the defendant filed a further affidavit of Ms Tantiprasut sworn on 21 April 2008 in which she addressed some of the matters raised in the plaintiff's 19 April affidavit. Ms Tantiprasut stated that she had only spoken to the plaintiff on three occasions and, in these discussions, the plaintiff never asked her to call Mr Tee, otherwise she would have done so. The only time the plaintiff referred to Mr Tee was on 15 April when the plaintiff told her that he had told 'James' about the hearing that morning. At no time during her telephone discussions with the plaintiff did he refer to Mr Tee acting for him in any capacity.

i. Cross-examined by counsel for the defendant**

77 The plaintiff was cross-examined on his affidavits and on the circumstances which had resulted in him not complying with the trial directions and not attending the directions hearings. The plaintiff admitted to knowing that the trial was to commence on 21 April 2008 and said that he had put the date in his diary.

78 The plaintiff was questioned about his dealings with Mr Hobday following receipt of the deed. The plaintiff in his affidavits of 2 and 18 April had attempted to attribute to Mr Hobday some responsibility for the fact that, despite the pending settlement, the plaintiff's action had not been better prepared for trial.

79 The plaintiff was cross-examined about the meeting deposed to by Mr Hobday which took place on 31 March and which was attended by the plaintiff and Mr Tee. According to Mr Hobday, at that meeting the issue of illegality of the contract was raised and he requested, and received, instructions from the plaintiff to get preliminary advice from counsel. Mr Hobday said that, on receipt, he relayed the advice to the plaintiff who again declined to instruct Mr Hobday to take any further steps in the matter.

80 The plaintiff initially said that he could not remember the meeting of 31 March and he maintained that he could not remember Mr Hobday getting an opinion about the issue of illegality of the contract. However, shortly after, the plaintiff was asked about raising with Mr Hobday, at the meeting, the issue of illegality of the contract. The plaintiff stated that Mr Hobday said he would check with counsel and that he was later advised by Mr Hobday that counsel said it was alright to accept the offer. The plaintiff was asked about the instruction to Mr Hobday not to undertake any further work. The plaintiff initially denied this instruction. He then said it was because Mr Tee told him not to attend to anything. His next response was that Mr Hobday was not required to do anything because Mr Tee was attending to everything.

81 The plaintiff ultimately admitted that Mr Hobday asked for instructions to go ahead, that he had instructed Mr Hobday not to do anything further on the action, and that Mr Hobday had told him that he could not do that. The plaintiff also agreed that he understood what he was told by Mr Hobday. The plaintiff admitted that it was when he refused to give Mr Hobday instructions that Mr Hobday made the application to the court. The plaintiff's explanation for declining to properly instruct Mr Hobday was that Mr Tee had told him he would get the land. According to the plaintiff, Mr Tee told him the settlement was 'the wrong way': that his solicitors 'never did the right thing' and that he was entitled to have his land. The plaintiff also maintained that he was confused.

82 The plaintiff admitted to receiving the letter of 27 March from Mr Hobday reminding him that the matter was listed for trial commencing on 21 April 2008. He also admitted the letter advised him that the court had made certain directions in respect to preparation for trial, the first of which needed to be attended to by 31 March, and further advised him that, in the absence of appropriate instructions, Mr Hobday would be unable to continue acting. He said that he passed the letter on to Mr Tee. However, the plaintiff agreed that he understood the content of the letter and the obligations on him set out in it. The plaintiff's response was that he knew Mr Tee would attend to it.

83 The plaintiff also agreed that he knew the application for his solicitors to be removed from the record was before the court on 4 April. When asked about his failure to attend, the plaintiff said that he was brainwashed by Mr Tee and that he got confused. According to the plaintiff, Mr Tee said 'don't worry, don't even attend and I'll fix it up'. He also said his belief was that Mr Tee would assist him and he did whatever he was told by him.

84 Counsel for the defendant also questioned the plaintiff about the allegations against his solicitors in his affidavit of 18 April. The plaintiff's explanation for asserting that his solicitors might not have been acting in his best interests was that he thought he would get his land back. However, he also said that from the time he relied on Lewis Blythe & Hooper he was happy with them and that even at the end he was sorry that they ceased acting for him. However, he emphasised again that Mr Tee promised him his land. It is apparent from this statement that the only reason the plaintiff preferred to follow Mr Tee's advice rather than to properly instruct Mr Hobday was because Mr Tee told the plaintiff he could obtain the return of the plaintiff's land whereas Mr Hobday and his counsel, Mr Thompson, had told him that he should accept the settlement amount from the defendant. At a later point in the cross-examination, the plaintiff said that he did not want to have another solicitor and he liked Mr Hobday.

85 The plaintiff was evasive in responding to questions concerning his early affidavit evidence that Mr Tee was his wife's commercial adviser and that it was his wife who had a problem with the proposed settlement. Despite the fact that those statements were in complete conflict with the content of the plaintiff's later affidavit of 19 April, he resisted the proposition that they were untrue. The plaintiff attempted to justify the statements by explaining that his wife told him to look into 'the case' because he had always wanted his land. On that evidence, the plaintiff's wife's concern was only about the plaintiff's satisfaction with the terms of the settlement and not her own. Another explanation was that the plaintiff had problems with reading English. However, when requested to do so, the plaintiff was able to read the relevant paragraph, as requested, without any difficulty. Further, at no stage prior to that point had the plaintiff had the slightest problem reading English or in understanding spoken English. When this was pointed out to the plaintiff his response was to blame the untrue statement on the fact that he had been given a 'big heap of papers' and that he had not looked at them.

86 The plaintiff said in his affidavit of 19 April 2008 that he was told by Mr Loveland that Mr Tee was a lawyer but may not have a licence. Certainly the fact that, as the plaintiff stated, he would take papers concerning the action to Mr Tee's apartment would indicate that Mr Tee was not a practising solicitor. Later in his evidence the plaintiff acknowledged that Mr Tee was not a solicitor. Nevertheless, the plaintiff collected his papers from Mr Hobday and gave them to Mr Tee. He also gave Mr Tee a copy of the opinion of counsel provided to him by his solicitors in 2004. In the opinion, counsel considered the legality of the contract with the defendant.

87 In his affidavit of 19 April the plaintiff said that Mr Tee told him that the sale contract was illegal and he was entitled to the return of the title to his land. He also deposed to the terms of the arrangement between them. Not surprisingly, the plaintiff was questioned as to why he was prepared to enter into a deal with Mr Tee that they would split any amount above the $750,000 offered if his desire was for the return of his land. The plaintiff maintained that he would still get his land but was unable to provide any explanation for why, in view of the alleged strength of his attachment to his land, he would agree to sharing the land with Mr Tee or would agree to a proposal involving sharing any amount above the $750,000 referred to in the deed. This raises the question whether, despite the plaintiff's assertions of his connection to the land, the plaintiff's motivation was simply financial greed.

88 Support for the latter explanation can be found in the fact that, despite being told by Mr Falls from the City that his land was required to be ceded as public open space as a condition of the almost completed development and could not now be created as a separate lot or transferred to the plaintiff, the plaintiff persisted in following Mr Tee's advice. Further, the content of the discussions with Mr Falls were quite complex for a person who claimed he had a limited understanding of spoken English, and yet the plaintiff agreed that he had understood everything said. The plaintiff was also able to read, without difficulty, the paragraph of the affidavit about the meeting with Mr Falls. He then volunteered that Mr Tee wrote it.

89 The plaintiff admitted the conversation with Ms Tantiprasut on 4 April. The plaintiff said that, on receiving this call, he rang Mr Tee who told him not to worry, he would attend to everything. The plaintiff was questioned a number of times about his affidavit evidence that he told Ms Tantiprasut that Mr Tee was acting for him. He gave conflicting answers. On one occasion he denied that he had said that because 'he wasn't a solicitor'. On another occasion the plaintiff became evasive and said that he did not know what he was doing and had just relied on Mr Tee. However, he did, at least at one stage, agree that he never told Ms Tantiprasut that he had solicitors acting for him or that Mr Tee was acting for him. However, at an even later point in cross-examination, the plaintiff said, 'I said that at one stage. I think I did'. The plaintiff denied that he was lying when that accusation was put to him by counsel for the defendant. However, clearly not all of these conflicting explanations can be true.

90 Counsel for the defendant also questioned the plaintiff about the letter of Ms Tantiprasut of 8 April. The plaintiff agreed that he read the letter, passed it on to Mr Tee, and was aware from the letter that there was a directions hearing on 10 April. He said he was told by Mr Tee not to worry about it because 'it's going to be delayed and won't go ahead'. The plaintiff was questioned further on this explanation and stated that Mr Tee had advised him not to take any action and as a result the matter would not be able to proceed and would then come on for hearing later. It became clear from further responses that the purpose of the delay was to have the opportunity to amend the statement of claim to raise the illegality issue, with a view to claiming for the return of the land. This was the first reference to this reason for not attending the hearing. The plaintiff confirmed that he agreed to Mr Tee's plan to ensure that the trial would not proceed. The plaintiff also stated that Mr Tee told him he would 'fix things up'. The plaintiff added that he is a person who trusts everyone and he thought Mr Tee was genuine. The plaintiff said that he ignored all the correspondence because he believed in Mr Tee and because he was confused. It is apparent that there is a degree of conflict between a belief that Mr Tee would fix things up and acting on Mr Tee's advice to do nothing so that the trial would be delayed.

91 The plaintiff was questioned about the hearing on 10 April and the fact that no-one had appeared on his behalf. The plaintiff said Mr Tee told him he would attend to it. However, when asked if he spoke to Mr Tee about his failure to arrange anyone to attend on the plaintiff's behalf on 10 April, the plaintiff response was that Mr Tee had told him, 'We do nothing, don't worry. The inconsistency in the two explanations is obvious.

92 The plaintiff said that he remembered very well receiving the letter from Ms Tantiprasut of 10 April which he read. He explained that Mr Tee told him not to worry about it because, if he did not attend the hearing on 15 April, 'they can't do nothing' and the trial would not go ahead. He added that he believed Mr Tee.

93 The plaintiff also agreed that he received the letter from the court dated 10 April 2008 and said that he gave the letter to Mr Tee who said he would do everything. This response would indicate that the plaintiff did not attend the hearing or obtain legal representation because he thought Mr Tee would either appear on his behalf or engage a solicitor to do so. That explanation is at odds with acceptance of the plan to ensure the trial would not go ahead as listed. When questioned on this point, the plaintiff insisted Mr Tee had promised him he would attend to everything, notwithstanding that he knew Mr Tee was not a solicitor. He believed Mr Tee would look for a barrister or solicitor. The plaintiff agreed that he spoke to Ms Tantiprasut on 14 April and that, rather than going to the hearing on 10 April he had gone to Jurien Bay. He explained that he did so because Mr Tee told him not to worry.

94 In view of the plaintiff's evidence that he had understood the content of his conversations with Ms Tantiprasut, the plaintiff was questioned about his statement in his affidavit of 18 April that he could not understand what was said by Ms Tantiprasut because she used confusing words. The plaintiff said that Ms Tantiprasut talked so fast he could not pick up what she was saying and he became confused. Although consistent with his affidavit evidence, that statement was in direct conflict with the plaintiff's previous oral evidence that he had understood what was said to him by Ms Tantiprasut prior to 14 April.

95 In light of the plaintiff's response that he thought Mr Tee would engage a solicitor, he was asked whether, as a result of his conversation with Ms Tantiprasut on 14 April and his receipt of the court's letter of 10 April, he asked Mr Tee who his solicitors were. The plaintiff's response was that all the way through his dealing with Mr Tee, Mr Tee said he would do everything to find one and that he was looking. It is difficult to see how an assurance that he is doing everything to find the plaintiff another solicitor is at all consistent with a plan to delay the trial by failing to appear and by failing to comply with court orders. It is also unclear as to why the exercise of obtaining a solicitor was proving so difficult for Mr Tee. In my view, the plaintiff's response was an attempt to apportion blame for his situation to Mr Tee and the response was given without thought to whether it was consistent with other explanations provided by him.

96 In response to the proposition that, as the plaintiff had previously engaged solicitors, he could have carried out that exercise himself, the plaintiff said that he was 'not into that sort of thing'. I do not accept that the plaintiff was unable to engage alternative solicitors in a timely fashion, particularly because he had managed to engage his previous solicitor without assistance and without difficulty. In my view, the plaintiff had no intention of engaging solicitors because he was intent on acting on the plan devised by Mr Tee to delay the hearing of the action.

97 At various stages of his cross-examination the plaintiff stated Mr Tee told him to not turn up and the trial would not go ahead and also that Mr Tee said he would attend to everything. The plaintiff was questioned about the apparent conflict in these explanations. The plaintiff maintained that Mr Tee said 'both those things'. Clearly then, the statement that Mr Tee would take care of everything did not involve Mr Tee attending court hearings or moving the action forward in any way. In those circumstances, the plaintiff was being misleading in explaining any failure on his part to comply with orders or to attend a hearing as being a result of being told that Mr Tee would handle everything.

98 The plaintiff was questioned about his statement to Ms Tantiprasut during their conversation on 14 April that his wife had appointed new solicitors, a statement that was clearly false. The plaintiff stated that he did not remember saying that. He became evasive when pressed on this issue, denying that he had lied and then attempting to present himself as confused or as someone with limited understanding.

99 The plaintiff admitted that he was aware that no-one appeared on his behalf at the hearing on 15 April. He provided the same explanation given with respect to his failure to appear on 10 April. The plaintiff was then asked whether he inquired of Mr Tee what had happened, conduct which one would expect of a litigant whose solicitor had failed to attend a hearing. The plaintiff explained that Mr Tee said that nothing was wrong and he was not to worry about it. This response gives the impression that the plaintiff had indeed asked Mr Tee why he had not appeared. However, the plaintiff then explained that Mr Tee said to him, 'if don't turn up the matter will be adjourned'. That explanation is consistent with the alternative explanation of causing the trial dates to be adjourned, in which case there would be no need to ask why Mr Tee failed to attend.

100 The plaintiff admitted that he received the letter written to him by Ms Tantiprasut on the day he failed to attend the 15 April hearing. The plaintiff admitted that he read the letter and understood and then gave it to Mr Tee. Despite the plaintiff's admission that he had read and understood the letter, when questioned about that portion of the letter which indicated that the defendant would bring an application to dismiss, the plaintiff said that he was confused because the letter addressed too many issues.

101 The plaintiff's attention was also drawn to the part of the letter of 15 April where Ms Tantiprasut urges the plaintiff to immediately obtain independent legal advice. The plaintiff's response was to reiterate that he relied on Mr Tee and he believed what he told him. He said that Mr Tee told him that if there was no attendance, things would stop and the trial would not go ahead and the defendant's solicitors could not do anything about it. The plaintiff was asked why he did not engage new solicitors as he had been advised to do. The plaintiff's response related only to engaging solicitors in relation to the application to dismiss.

102 It was put to the plaintiff that, between receipt of the letters of 10 April and Ms Tantiprasut's letter of 15 April, he knew that Mr Tee was deliberately not turning up. Despite the plaintiff's repeated accounts of Mr Tee's plan to take no action so the trial would not go ahead, the plaintiff denied that he knew the plaintiff was not turning up. However, he added that Mr Tee said it did not matter. I consider that the plaintiff was clearly being untruthful in denying that he knew that Mr Tee was deliberately not attending the listed hearings and was untruthful in his assertions that he believed Mr Tee would attend to matters on his behalf.

103 The plaintiff maintained that he became confused when he received the chamber summons and supporting documentation and gave the documents to Mr Tee straight away. The plaintiff volunteered that sometimes he did not even read the papers he received and simply took them to Mr Tee. Pressed on this point, the plaintiff then agreed that he did read them. Similarly, when referred to parts of his affidavits which were in conflict with his oral evidence, the plaintiff's response was that he did not read through the affidavits. Further responses were an attempt to impress as having a reduced capacity to understand relevant matters by maintaining that the information was not understood by him. The plaintiff also relied on the fact that his affidavits were drafted by Mr Tee and he did not read them. However, in one case in which he relied in explanation on Mr Tee's drafting, the document was the affidavit of 19 April which had not in fact been drafted by him.

104 Despite being taken to conflicts in his affidavit evidence, the plaintiff maintained that he told the truth all the time. As a consequence, the plaintiff was asked if the affidavit of 18 April 2008 was the truth. The plaintiff's response was evasive. The plaintiff was taken to that part of the affidavit of 18 April where he stated that he did not know there was a hearing listed in the court on 18 April. The plaintiff's response was to claim that he was at times confused. When asked why he would sign the affidavit if its contents were not true the plaintiff said that he signed many others with Mr Tee. In particular, the plaintiff attempted to distance himself from his affidavit of 2 April which contained numerous statements entirely inconsistent with the affidavit of 19 April. The plaintiff was evasive in his response to questions and claimed that he was unable to understand. He was particularly evasive when it was suggested that there was material in the affidavit which was untrue. Ultimately, the plaintiff attributed all responsibility for the affidavit of 2 April to Mr Tee.

105 It was suggested to the plaintiff that he had dishonestly not turned up and refused to attend court for the purpose of ensuring the trial did not proceed. The plaintiff admitted that he had deliberately done nothing so that the trial would not proceed and said that he now felt sorry. However, he maintained that he was confused by Mr Tee, on whom the plaintiff placed all blame for what occurred. The plaintiff stated that he now realised he was wrong because he had a good solicitor who he had refused to provide with instructions. However, he explained that he was attached to the land and that Mr Tee promised to get his land back.

106 The plaintiff managed to achieve his purpose of ensuring that the trial did not proceed. Indeed, the only reason that the plan which the plaintiff wholeheartedly embraced was not effective was apparently because Mr Tee had not given any consideration to the defendant bringing an application to dismiss on the basis there had been an abuse of process.

ii. Questioned by counsel for the plaintiff

107 When questioned by his own counsel, the plaintiff said that he had been retired from paid employment for more than 20 years and he spoke Italian, his native tongue, most of the time. He had not previously been involved in a superior court civil action. The plaintiff also maintained that he had told the truth and expressed his belief that he had been trapped by Mr Tee. On meeting with his new solicitor, Mr Vogt, the plaintiff told him that Mr Tee had 'got him into trouble' and that he was looking for someone to get him out.

108 The plaintiff was questioned by his counsel about the circumstances of signing his affidavits and whether he had read them before he signed them. In relation to the affidavit of 18 April 2008, the plaintiff said that he 'went through it' and he tried to do his best to understand it. When asked about the affidavit of 2 April, the plaintiff 's answers did not appear to relate to that affidavit and was more likely to be in relation to the affidavit of 19 April. The plaintiff was again taken to the affidavit of 18 April. Once again it appeared that the plaintiff was in fact referring to the affidavit of 19 April. From my observations, by this stage the plaintiff was tiring and was becoming a little confused. However, that was the first occasion I observed any actual confusion on the plaintiff's part as opposed to him asserting that he was confused.

109 The plaintiff said that at the beginning Mr Tee told him not to worry and that he would 'fix it up'. However, Mr Tee then stated to push him around and he became confused. The plaintiff did not elaborate on this proposition. The plaintiff was asked what it was he had agreed with Mr Tee to do. He said that Mr Tee said Mr Hobday's advice was wrong, that it was wrong to accept the offer of settlement and the plaintiff should not take it. Mr Tee also said that he would help the plaintiff to get his land back. Later, Mr Tee said to him that he was to leave it to him and he would see that everything was done. In relation to the court action, Mr Tee told the plaintiff he did not have to attend and then the hearing would not proceed and it would be adjourned. It would appear then that leaving things to Mr Tee to fix up did not include Mr Tee attending hearings or complying with orders binding the plaintiff. However, when questioned, the plaintiff said that Mr Tee told him that he would attend to it and that the plaintiff did not need to come. The plaintiff said that that was what he believed. After that, everything the plaintiff received from Ms Tantiprasut he gave to Mr Tee who told him not to worry about it and he would attend to it. However, the plaintiff again asserted that Mr Tee confused him and that he had always wanted his land. The plaintiff also maintained that Mr Tee told him he would get a solicitor and attend to things.

110 The plaintiff also asserted that he once said to Mr Tee that he should go to the court. However, Mr Tee's response was that the plaintiff should not go because he did not have to. Mr Tee then said that he would go. The plaintiff was not at this point asked about his reaction when he found out that Mr Tee did not go to court or to whether he asked Mr Tee about his failure to attend.

111 The plaintiff maintained that he did not, in fact, enter into any agreement with Mr Tee, written or verbal, and nor did he pay Mr Tee for anything that he did in relation to the action. However, it was apparent from his evidence that the plaintiff was not by that alleging that he didn't accept and act upon Mr Tee's advice. He said that he understood the arrangement to be that Mr Tee would get a share of the land if he got it back. He made no reference to the other part of the arrangement which was that he and Mr Tee would share in any amount greater than the amount of the offer in the deed. He was not asked and did not explain why he would be satisfied with having to share his land with another or how that arrangement would work in practice.

112 In relation to his future arrangements, the plaintiff was adamant that he did not want to see Mr Tee anymore and Mr Tee would not be involved in anything to do with the plaintiff in the future. The evidence was that the plaintiff had agreed to give Mr Vogt timely instructions and had entered into a retainer agreement with Mr Vogt whereby Mr Vogt had the power to cease to act if he was not provided with instructions.

113 I accept that the court has an inherent jurisdiction to prevent its processes from being abused and a corresponding power to protect the integrity of its processes once they are set in motion: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391.

114 It is relevant to the resolution of this application to recognise that the court operates under a system of positive case flow management for the purposes identified in Rules of the Supreme Court 1971 (WA) O 1 r 4B. The effect of the principles of case management is that the court is entitled to take its own positive steps to require parties to conduct litigation with proper expedition. If a party fails to comply with case flow management orders, that party runs grave risks: Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; [2005] 30 WAR 398 [94].

115 The commentary to Rules of the Supreme Court 1971 (WA) O 1 r 4B in Seaman's Civil Procedure provides that an order in the court's inherent jurisdiction dismissing proceedings may be appropriate in cases of contumacy or where a party has been persistently dilatory in taking steps in the action, or where it can be inferred that a party will not or is unlikely to take the necessary steps.

116 However, in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 154, the High Court observed that case flow management is not an end in itself but an important and useful aid to ensuring the prompt and efficient disposal of litigation and useful aid for ensuring the prompt and efficient disposal of litigation and it ought always to be borne in mind that the ultimate aim of the court is the attainment of justice. It was said that no principle of case management can be allowed to supplant that aim.

117 The reaction to the decision in State of Queensland v JL Holdings Pty Ltd was such as to motivate McLure J in Osgood v Wham [2007] WASCA 178 to make the following comment:

As I have noted elsewhere, there is a widely held view in this jurisdiction, based on the decision of the High Court in The State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, that the justice of the case will always, or practically always, permit a party to litigate an issue that is fairly arguable regardless of non-compliance with court procedures and orders. It has produced a culture in the legal profession in this State of non-compliance with court rules, practice directions and court orders, in particular, interlocutory orders. The view is misconceived: see Monteleone v The Owners of the Old Soap Factory [2007] WASCA 79. The Court has the duty and power to protect the integrity of its processes once they are set in motion. Case management is not an end in itself but it exists to further the interests of justice which are advanced by the timely and efficient disposition of proceedings [20].

118 In Hancock v Fieldhouse [97] Steytler P and Owen JA observed that the principles of case management reflect the public aspect of the notion of justice as much as they do the private interests of the litigants. Consequently, the longer a case is in the system the greater the chance that it will use more than its fair share of the scarce public resources. Their Honours further observed that the court will not countenance an approach that permits parties to set their own programme and flout the rules and established case management principles with impunity.

119 Counsel for the defendant relies on the decision of Wheeler J in Magenta Nominees Pty Ltd v Bonini [1999] WASC 88 [88] where her Honour identified the underlying factors, or the objectives, of positive case flow management. That case was one which had been case managed by a judge and in which many programming orders had been made. The parties had had the opportunity to be heard on the making of the programming orders and on most occasions orders had been proposed by one side and largely accepted by the other: [86]. Wheeler J observed:

A very important consideration, although not the only consideration, in a case such as the present, is the need to ensure that orders of the type made here are not habitually disregarded. There are a number of reasons why this is so, aside from the obvious need to maintain the authority of any orders of the court. The orders are made in order to advance the objectives set out in O1 r4A and r 4B of the Rules of the Supreme Court [87].

Underlying those objectives are a number of factors. Those factors include a recognition of the prejudice to a fair trial which may ultimately be caused by delay, a recognition of the enormous stress and anxiety which is usually caused to litigants (particularly individual litigants, such as the Boninis), and a recognition of the fact that undue delay and inefficient use of the court's resources by some litigants has the potential to impair access to the court by others. Finally, in a case such as the present, it must be remembered that unnecessary expense is incurred whenever it is necessary to write letters or make applications to the court prompting a party to do that which it is already obliged, by the Rules or by an order, to do [88].

120 Wheeler J considered that the principles governing an application of the kind before her were to be found in J&J Products (a firm) v Ken Gray & Co (a firm), (Unreported; WASCA; Library No 960219; 24 April 1996), 89.

121 In J&J Products v Ken Gray & Co, Kennedy J (with whom Pidgeon J and Ipp J agreed) identified (at 25) the relevant principles when dealing with an application to strike out a defence for failure to comply with an order for discovery. In my view, the principles apply equally to an application to dismiss an action for failing to comply with court orders for the purpose of delaying the trial of an action. His Honour accepted that the power is discretionary and is to be exercised in such manner as seems to the court best calculated to do justice in the particular case: Treiguts v Tweedley [1959] VicRp 73; [1959] VR 544, 546. Kennedy J also accepted that an order for the dismissal of an action ought not to be made under this power unless the court is satisfied that the party concerned is endeavouring to avoid its obligations; in that case giving fair discovery, in this case attending the hearings, complying with the pre-trial orders and ensuring that the claim was ready for trial on the listed date. His Honour further accepted that the power will be exercised by the court only with some reluctance.

122 Nevertheless, it was said, orders of the court must be obeyed and a litigant who deliberately, and without proper excuse, disobeys an order is not allowed to proceed: Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196, 1202.

123 Kennedy J referred to the following quote from the decision of the Full Court of Victoria in Freeman v Rabinov [1981] VicRp 52; [1981] VR 539:

The making of such an order may be appropriate in the case of contumacy, but it may also be appropriate in a case in which a party has been persistently dilatory in taking steps in the action, or where it can be inferred, for instance from non-appearance on interlocutory proceedings, that the party will not or is unlikely to take the necessary steps (544).

124 Kennedy J considered (46) that the conduct in that case demonstrated, at best, a reckless disregard for the party's obligations in the conduct of the litigation and, at worst, a calculated attempt to avoid disclosure of document which night reveal the true facts and was satisfied that what had occurred could not be attributed to neglect or ignorance. His Honour also stated that the case was not one in which a springing order should first have been made to require the appellant to comply with its obligations as the time for granting such a concession had long since passed: see also Wheeler J in Magenta Nominees Pty Ltd v Bonini [93].

125 I found the plaintiff to be a most unsatisfactory witness. He was at times evasive, at other times he told deliberate lies and he often provided two or more completely conflicting explanations in relation to the same issue. He also had a tendency to complain of confusion when answering questions. The plaintiff's assertions of being confused mostly related to his understanding of events or of the questions being put to him. At times during his cross-examination the plaintiff complained of being confused when to answer accurately might show that he had been untruthful. The plaintiff maintained that his age and his condition meant that he became confused. However, there was no evidence given by the plaintiff, or adduced on his behalf, that he suffered from any condition which caused him to become confused.

126 I am not prepared to accept that the plaintiff was in any way confused about any of the matters where that explanation was raised. The plaintiff had no problem understanding any questions being put to him, or in reading aloud any parts of the affidavits, other than when he was being deliberately evasive.

127 Further support for the conclusion I have drawn can be found in the plaintiff's evidence concerning the meeting with Mr Falls. The plaintiff agreed that he had understood everything said at the meeting with Mr Falls, notwithstanding the complexity of some of the issues discussed. That admission would, of itself, remove any concern about whether an 81-year-old man whose first language was not English would have understood the documents provided to him and the verbal information provided to him concerning his obligations with respect to the conduct of his action.

128 The only occasion upon which I considered that the plaintiff was, in fact, confused, was late in the course of cross-examination when it appeared to me that he had tired somewhat.

129 It was also the case that, on occasions, when the plaintiff became aware that he had made an error and was attempting to limit the impact of it, he would become evasive in his responses. For example, the plaintiff became evasive when asked about the statements in his early affidavit evidence that it was his wife who had a problem with the proposed settlement and that Mr Tee was his wife's commercial adviser. The plaintiff clearly did not want to confront the complete inconsistency between those statements and the content of his affidavit of 19 April. Questions concerning the inconsistencies between the plaintiff's affidavits commonly received evasive responses. Despite these inconsistencies, the plaintiff continually maintained that he always told the truth. Even when the plaintiff gave inconsistent accounts in the course of his oral evidence, he still maintained that he did not lie. One clear example of this inconsistency is the plaintiff's responses to questions about his claim that he told Ms Tantiprasut that Mr Tee was acting for him.

130 One of the most significant conflicts in the plaintiff's evidence was that between the explanation that Mr Tee was supposed to take care of everything and the explanation of Mr Tee's advice to delay the hearing. Taken in context, it was implicit in the explanation that Mr Tee would take care of everything that Mr Tee would comply with all relevant obligations on behalf of the plaintiff who, therefore, was not required to take any action personally. However, if indeed Mr Tee was supposed to take care of everything, then it could reasonably be expected that the plaintiff would take some action whenever it was drawn to his attention that Mr Tee had not, in fact, taken care of any of the plaintiff's obligations. However, the plaintiff agreed that he took no action whatsoever.

131 Not only is the explanation that Mr Tee would take care of everything inconsistent with the plaintiff's conduct when Mr Tee failed in that obligation, it is also inconsistent with the explanation that there was a plan of inaction in order to achieve a delay of the hearing. If the agreed plan was to take no action, then the plaintiff could not have expected Mr Tee to do everything required. In the plaintiff's evidence there are a number of occasions on which he attempted to maintain both explanations, despite the obvious conflict. For example, despite acknowledging that he was acting on Mr Tee's advice not to comply with any obligations so that the trial would be delayed, the plaintiff maintained that he did not know that Mr Tee deliberately failed to attend the hearing on 15 April.

132 Consequently, I have drawn the conclusion that the plaintiff was still not being entirely honest when giving oral evidence. There were a number of occasions during the questioning of the plaintiff, referred to above, in which I consider the plaintiff provided dishonest responses to the questions put to him.

133 Counsel for the plaintiff relied on the fact that the plaintiff is an elderly man with language problems in asserting that the plaintiff's conduct was more consistent with someone with limited understanding than with someone motivated by greed or a disregard for the court's processes.

134 Counsel for the defendant submitted that the plaintiff was not Mr Amadio, a reference to one of the respondents in Commonwealth Bank of Australia Ltd v Amadio [1983] HCA 14; (1982) 151 CLR 447 where the respondents, Mr and Mrs Amadio, were considered to be under a disability by virtue of their advanced years, their limited grasp of English, their reliance on their son who was to benefit from the guarantee and supporting mortgage executed by them. By way of contrast, the plaintiff was intelligent and he understood what was going on. He had a sophisticated understanding of what he was told by Mr Falls and had the capacity to understand the material set out in his affidavits. It was further said that the plaintiff was only confused when he lied.

135 Insofar as I am obliged to take into account the plaintiff's intelligence and his understanding of the information available to him, I have formed the view from observing the plaintiff in cross-examination that he is of at least average intelligence and capable of reading and understanding some quite complex English language, both written and oral. In fact, the plaintiff was well able to appreciate the significance and consequences of the questions asked and the answers given. I might add that being 81 years old is not of itself evidence of diminishing intellectual capacity.

136 Having read all the affidavit material and heard the evidence of the plaintiff, I am satisfied that, by 21 February 2008, the parties had reached an in principle settlement agreement, subject to a deed of settlement being agreed. At some point soon after, the plaintiff became dissatisfied with the settlement. He made contact with Mr Tee, having been introduced by a friend. He was aware that Mr Tee was not a solicitor. The plaintiff provided Mr Tee with the materials in his possession concerning his claim, including the early advice of counsel referring to the issue of the illegality of the contract. Mr Tee advised the plaintiff that the settlement was inappropriate and that the plaintiff's solicitors had not handled his claim in a reasonable manner. He advised the plaintiff that the illegality issue should be pursued. Mr Tee also told the plaintiff that he could achieve the return of the plaintiff's land, or an increased amount of damages, in return for a share in the land or a proportion of any amount received above the amount offered in settlement. However, in order to achieve for the plaintiff the return of his land, or an increased settlement or an increased judgment sum, it would be necessary to ensure that the trial did not go ahead on the listed dates.

137 The plaintiff accepted and acted upon Mr Tee's advice. Whilst his initial motivation may have been the return of the land, following the meeting with Mr Falls on 11 April, the plaintiff was motivated by financial gain. I wholly reject any proposition that the plaintiff was confused by Mr Tee or was in some way misled by him. As I have noted above, the plaintiff's grasp of written and spoken English was more than adequate to understand Mr Tee's proposal. The plaintiff was well aware that Mr Tee was not a practising solicitor. He was also aware that Mr Tee's advice was in direct conflict with that of Mr Hobday and his counsel, both of whom were qualified practitioners. However, the plaintiff decided to accept and act upon Mr Tee's advice.

138 The trial was listed to commence on 21 April 2008, as the plaintiff well knew. The plan involved the plaintiff refusing to instruct his solicitor to prepare for trial, or at all, and failing to comply with any obligation in relation to preparing the matter for trial. Mr Tee and the plaintiff may not, at that early stage, have discussed the need for there to be no appearance on behalf of the plaintiff at any pre-trial hearing and no response to any correspondence. However, once Mr Hobday ceased to act and the matter was listed for a directions hearing on 10 April, such a step was a logical extension of the plan being implemented by the plaintiff and was indeed the approach adopted. The plaintiff's evidence that he was forced by Mr Tee to cause Mr Hobday to cease to act could only be a reference to the fact that, consistent with Mr Tee's plan of delaying the trial, it was necessary for the plaintiff not to be represented by counsel.

139 Consequently, the plaintiff's evidence that he gave Mr Hobday express instructions not to undertake any further work because Mr Tee was attending to it, is in clear conflict with the plaintiff's other explanation that no action should be taken so that the trial will be delayed. At no stage during his evidence would the plaintiff acknowledge the conflict.

140 Despite the advice from Mr Hobday that an order had been obtained removing him from the record, and despite being perfectly capable of instructing solicitors, the plaintiff did not instruct new solicitors because it was his intention to remain unrepresented, with a view to acting on Mr Tee's advice and causing the trial to be adjourned.

141 I am not prepared to accept the submission of counsel for the plaintiff that the plaintiff was unaware that the conduct proposed by Mr Tee was improper. The plaintiff may have been mistakenly of the view that there was nothing the defendant or the court could do about his conduct and he may not have been aware that his conduct might be regarded as an abuse of process. However, in my view, the plaintiff was aware of his obligations, was well aware that his actions were very wrong and would be seen that way by the defendant and by the court.

142 That conclusion is evidenced by the fact that, from the start, Mr Hobday told the plaintiff that it was not acceptable to take no action where programming orders had been made by the court. Further, the plaintiff repeatedly lied in order to hide or obscure the fact that his conduct was deliberate, that Mr Tee was acting for him and that it was all part of a course of conduct designed to ensure that the trial would not proceed on the trial date. At no stage did the plaintiff advise anyone that he had no intention of complying with any orders, preparing for trial or attending any hearing. On most occasions, the plaintiff behaved as if someone should have been handling his case and carrying out his obligations.

143 When Mr Hobday obtained an order from the court to be removed from the record, he caused the order to be served on the plaintiff. Mr Hobday also wrote to the plaintiff and made him aware of the trial date and his outstanding obligations to the court. This correspondence was ignored by the plaintiff as was the information provided by Ms Tantiprasut. It is apparent from her affidavit, the contents of which I wholly accept, that Ms Tantiprasut went well beyond her obligations as a solicitor for the defendant and as an officer of the court in advising the plaintiff of the trial date and of his obligations. She also went to considerable lengths to advise the plaintiff of the date of each directions hearing. Ms Tantiprasut repeatedly suggested to the plaintiff that he should attend the hearings, comply with the court orders and obtain legal advice or legal representation. Ms Tantiprasut is to be commended for her efforts, notwithstanding that everything she said fell on deaf ears. I have no doubt that the plaintiff read and understood the content of every letter sent to him by Ms Tantiprasut and everything said to him by her in their various telephone conversations. However, in accordance with Mr Tee's advice, the plaintiff chose not to act on the information or the suggestions contained in the letters or in the conversations. Neither do I have any doubt that the plaintiff read and understood the letter from the court concerning the hearing on 15 April. The plaintiff did not respond to any of the letters written to him although he did on occasions telephone Ms Tantiprasut. He chose to ignore all attempts to encourage him to attend the directions hearings and ignored the advice to obtain independent legal advice. When questioned, the plaintiff told the obvious lie that Mr Tee was handling everything for him, when he provided any explanation at all. When the seriousness of his conduct was drawn to his attention, the plaintiff falsely claimed that he could not understand Ms Tantiprasut properly.

144 The plaintiff was not content simply to fail to appear or to fail to comply with pre-trial orders. The plaintiff swore affidavits which were provided to the court to explain his position. In his affidavit of 2 April the plaintiff set out in detail his attachment to his land. Much of the balance of the affidavit contained unjustified allegations against the plaintiff's solicitors of ineptitude, coercion and a deliberate failure to follow instructions. I consider that the purpose of the affidavit was to attempt to establish that the plaintiff's case had not been properly handled and hence, through no fault of the plaintiff, was not in a state where the trial could proceed. However, in his affidavit, the plaintiff admitted that he was aware of the trial date and of the orders made at the directions hearing on 26 March.

145 The plaintiff also deposed to the fact that it was his wife who had obtained advice as to the reasonableness of the offer of compensation and the further preliminary legal advice as to her rights arising as a party to the contract of sale. This part of the affidavit was clearly false. Further, many of the accusations made against Mr Hobday and his handling of the plaintiff's claim were also false. In my view, the contents of the affidavit were self-serving and part of the plan which was to culminate in the trial not going ahead on the listed dates without the plaintiff being held responsible.

146 The plaintiff's affidavit of 18 April included similar criticisms of his solicitors and the way in which the plaintiff's claim had been handled. In particular, the plaintiff stated that his solicitors did not fully explain the reasons they ceased acting for him. He maintained that he had given them instructions to prepare the matter for trial. That statement is completely inconsistent with the affidavit evidence of Mr Hobday, which I accept, and is false. I have no doubt the purpose of the allegation was to indicate that the plaintiff did not contribute to his lack of representation and that the reason the matter was not ready for trial was the fault of the solicitors, thereby concealing the true reason.

147 In his affidavit of 19 April the plaintiff placed the blame for everything that had occurred on Mr Tee and the fact that Mr Tee was supposed to be handling everything on behalf of the plaintiff and assisting the plaintiff in pursuing the action against the defendant. The plaintiff explained away any knowledge of what was happening by stating that he gave copies of all correspondence to Mr Tee to deal with them. It was not until the plaintiff's oral evidence on 21 April that the true reason for what had occurred came to light; the advice of Mr Tee, adopted by the plaintiff, to take no action so as to ensure the delay of the trial. Even then, the plaintiff was unable to give a completely truthful account. He maintained the position that Mr Tee was supposed to do everything on his behalf.

148 Mr Tee was also blamed for the content of the affidavits. It was certainly the case that all but the affidavit of 19 April were drafted by Mr Tee. However, it was the plaintiff who swore the affidavits and had the obligation to ensure the contents were true. Not only did the plaintiff execute affidavits containing inaccurate or deliberately false information, but when he had the opportunity in his oral evidence, the plaintiff failed to acknowledge the untrue statements and attempted to justify his actions. At almost every point, and in order to pursue the plan devised by Mr Tee, the plaintiff has lied and failed to accept any personal responsibility.

149 The plaintiff deliberately failed to appear at the directions hearings, despite being well aware he was required to attend. By failing to appear he deprived the court of the ability to determine what was the correct position and to make appropriate orders. No doubt, this was the purpose of the exercise. Neither did the plaintiff make any attempt to comply with the outstanding trial directions. Clearly, the plaintiff had no intention of doing anything which might increase the chances of the trial proceeding on the allotted dates. In fact, despite the fact that Ms Tantiprasut foreshadowed the defendant's intention to bring an application to dismiss the plaintiff's action, it was not until the application was filed and served on the plaintiff that the plaintiff engaged counsel and appeared before the court.

150 It is also the case that, in his evidence, the plaintiff repeatedly indicated that he did not want anything further to do with Mr Tee. Yet, up until the evening before the hearing of the application to dismiss, the plaintiff was still taking advice from Mr Tee. It was Mr Tee who arranged for the plaintiff to meet with Mr Vogt from Vogt Graham Lawyers. Despite the fact that the plaintiff's affidavit of 18 April states on its face that it was prepared by Vogt Graham Lawyers, the plaintiff conceded that it was drafted by Mr Tee. It is apparent to me that it was not until the plaintiff was advised by his new solicitors of the potential consequences of his actions that he distanced himself from Mr Tee.

151 On behalf of the plaintiff it was submitted that the plaintiff's preparation for trial was destabilised by four factors:

(1) The ceasing of preparation for trial as a result of the plaintiff advising his solicitor that he would accept the offer and sign the Deed.

(2) The fact that Mr Tee advised at a late stage that the settlement offered was unreasonable without opening new negotiations with the defendant.

(3) The intermeddling in the proceedings by Mr Tee by offering to take over the conduct of the proceedings on behalf of the plaintiff where the acceptance of that offer was not unreasonable given Mr Tee displayed a significant understanding of legal issues.

(4) The fact that Mr Tee has failed to conduct the proceedings in a manner which can be described as acceptable when it was the plaintiff's understanding that Mr Tee would be responding to papers served by the defendant and would be attending court hearings

152 With respect to the first factor, it is submitted on behalf of the plaintiff that the action was progressing to trial reasonably normally for a matter of this type, until 21 February when the plaintiff advised his solicitors that an offer of settlement made by the defendant would be accepted. At that point the plaintiff's solicitors ceased all preparations for trial. It was submitted that it would have been better practice for the plaintiff's solicitor to have advised the plaintiff that the preparations for trial should continue until such time as the settlement had been concluded. I do not accept that proposition. Mr Hobday had been told by the plaintiff that he would accept the offer and that there would be no difficulty with obtaining the wife's agreement to the deed. Mr Hobday was aware that the wife had had no involvement in the action and had shown little interest. He had no reason to believe that acceptance of the offer was anything more than a formality, in which case incurring additional costs to prepare a trial which was so close to settlement would be difficult to justify. In any event, at that point in time, provided there was a reasonably prompt response from the plaintiff, there was sufficient time to prepare the matter for trial by 21 April. In my view, the fact that the trial did not proceed on the allotted dates was not in any way attributable to the fact that the plaintiff's solicitor decided to cease preparation for trial at the time that he did.

153 Counsel also referred to the fact that, notwithstanding the plaintiff's intention to accept the offer of settlement and the fact that preparation for trial had ceased, the plaintiff's solicitors agreed on 26 March to the making of trial directions. Counsel submitted that it might have been better practice for Mr Hobday to have negotiated for the preparations for trial to be put on hold given that at the time it appeared that settlement had been reached, although he conceded that counsel may have tried to do so. In fact, as I have noted above, Mr Hobday did advise the court of the pending settlement and sought an adjournment of the directions hearing without further trial directions being made. However, the defendant pressed for orders which the judge considered it appropriate to make. Again, in my view, no responsibility can be apportioned to the plaintiff's solicitor, Mr Hobday. In fact, I consider that there is no substance to any submission which seeks to attribute any part of the consequences of the plaintiff's conduct to Mr Hobday.

154 With respect to the second factor, on the plaintiff's own evidence it is clear that neither he nor Mr Tee had any intention of opening negotiations because the purpose of the exercise was to avoid the trial dates. There would be no purpose to opening negotiations, because unless the trial dates were vacated and the plaintiff had the opportunity to amend its pleadings, there was no bargaining tool available which would be likely to result in an increase in the defendant's offer.

155 The third factor was the primary submission made on behalf of the plaintiff. It was that, from 26 March onwards, the plaintiff fell prey to an 'inter-meddler', Mr Tee, who interfered in the proceedings and destabilised the plaintiff's relationship with his solicitors. An example of the extent of Mr Tee's interference was said to be Mr Tee's advice, initially believed by the plaintiff, that the matter had not been entered for trial when it had been. However, when one considers the plaintiff's evidence that Mr Tee's advice was to do nothing and not attend court so that the trial would be adjourned, it is apparent that at a fairly early point the plaintiff was made aware that the matter had in fact been listed for trial. It was also the case that the inaccurate information that the matter was not listed for trial came from the court.

156 Counsel further submitted that, given that Mr Tee displayed a significant understanding of legal issues, the acceptance of Mr Tee's advice was understandable. This proposition needs to be considered in the context of the plaintiff being aware that Mr Hobday was a qualified practising solicitor who had obtained the advice of counsel, and the plaintiff's knowledge that Mr Tee was unlicensed. Counsel for the defendant correctly pointed out that the plaintiff sought out Mr Tee and when the advice of Mr Tee, who was not a licensed solicitor as the plaintiff knew, conflicted with the advice of the plaintiff's solicitor and counsel, the plaintiff gave Mr Tee the benefit of the doubt and followed his advice.

157 I consider that the resolution of the defendant's application involves not only considering whether the plaintiff's acceptance of Mr Tee's advice was understandable but also whether to act on that advice was right or proper. Mr Tee's manner may well have inspired confidence such that the plaintiff would accept his advice rather than that of his solicitor. However, it was not long before the plaintiff was receiving communications from Mr Hobday, Ms Tantiprasut, and from the court, which would indicate that there were expectations of the plaintiff as a litigant, and requirements of him on the part of the court, that were inconsistent with the advice given by Mr Tee. In my view, being influenced by Mr Tee's manner does not explain why the plaintiff persisted with his conduct which was so clearly at odds with the view of an admitted practitioner and the court itself.

158 Counsel submitted that the plaintiff's conduct was more consistent with someone with limited understanding than with someone motivated by greed or a disregard for the court's processes. I have already addressed that submission.

159 It was also said on the plaintiff's behalf that the level of control held by Mr Tee of the plaintiff is best judged by the fact that the plaintiff, notwithstanding what he was told by Mr Falls, still believed he could get his land back. It is certainly the case that the plaintiff maintained that the return of his land was the motivation for acting upon Mr Tee's advice and that he maintained it was still his motivation after the meeting with Mr Falls. However, it does not follow that it was, in fact, his motivation. When one considers the nature of the arrangement with Mr Tee which was for Mr Tee to obtain a share of land, if regained, or a share of any amount in excess of the settlement sum, it could also be said that the plaintiff was simply motivated by greed.

160 As to the final factor, it was indeed one of the plaintiff's explanations that Mr Tee advised him he would take over the conduct of the proceedings for the plaintiff. However, that evidence has to be considered in light of the plaintiff's other evidence that another aspect of the arrangement with Mr Tee was that no action would be taken and no appearance would be made in order to delay the hearing. As I have noted, the understanding that Mr Tee would take care of everything implies that Mr Tee would fulfil the plaintiff's obligations. However, it is apparent from the other part of the arrangement that, in order to achieve the agreed purpose of adjourning the trial dates, there would be no compliance with the plaintiff's obligations. I have already noted that the plaintiff took absolutely no action on the occasions on which Mr Tee failed to appear and failed to comply with the pre-trial orders, despite having on each occasion been made aware of these omissions by Ms Tantiprasut. Further, as Mr Tee is not an admitted practitioner, at the very least the plaintiff would have been concerned whether Mr Tee was entitled to appear before the court and carry out these activities. Not only could he not carry them out but it is highly unlikely that he would have offered to do so because it would very swiftly become known to the plaintiff that Mr Tee had not complied with his part of the arrangement.

161 However, in my view, the decisive factor, as I have noted above, is that an understanding that Mr Tee would carry out the plaintiff's obligations is entirely inconsistent with the plaintiff's own evidence of the arrangement with Mr Tee. Having considered this issue, I am not persuaded that the advice given by Mr Tee and accepted by the plaintiff ever involved Mr Tee carrying out the plaintiff's obligations with respect to the plaintiff's action.

162 I accept the submission of counsel for the defendant that the plaintiff was involved in a deliberate and calculated plan to abort the trial. Further, it was the plaintiff who carried out each step of the plan, knowing that he was in breach of his obligations, but blaming others for what had occurred. The evidence to which I have referred in detail leads inexorably to that conclusion. It is also the case that the plan achieved its purpose because, in the circumstances created by the plaintiff, it was not possible for the trial to proceed on the listed dates. As counsel for the defendant observed, the plaintiff carried out a successful plan to abort the trial of an action which had been on foot for four years so that a cause of action could be added which was entirely spurious and of which the plaintiff and his legal representatives had been aware from the outset. Counsel's advice had been available since 2004 but neither the cause of action referred to in the advice nor a claim for recovery of the land were included in the statement of claim.

163 The plaintiff deliberately, repeatedly and improperly disregarded the orders of the court and his obligation as a litigant to achieve a personal benefit. Further, he has repeatedly lied in order to attribute blame to others but, most importantly, to relieve himself of any responsibility. It was a calculated plan to ensure that a defendant who had pushed the action to trial could not finalise the action and, in my view, can properly be described as contumacious, a degree of conduct considered sufficient to justify an order in the court's inherent jurisdiction dismissing proceedings: Seaman's Civil Procedure commentary of Supreme Court Rules 1971 (WA) O 1 r 4B.

164 I have considered the prejudice to the defendant occasioned by the plaintiff's conduct. The defendant has incurred additional expense in dealing with the plaintiff's repeated failures to comply with court orders including the cost of numerous letters to, and telephone conversations with, the plaintiff. Four additional appearances were also required of the defendant's legal representatives. The trial dates have been lost and the resolution of the claim delayed in circumstances where, since entering the matter for trial in November 2006, it was the defendant who progressed the matter through to trial. Clearly, it was considered to be in the defendant's interests for the trial to be held as early as possible, something which has now been denied to the defendant as a result of the plaintiff's conduct.

165 Further, according to Mr Toohey, the defendant's project manager, the delay in the action proceeding to a resolution has caused continued uncertainty for the finalisation of the defendant's project which was nearly completed. The extent of the consequences of the delay are set out in full above but can be summarised in terms of the delay in the sale of the defendant company due to the fact that the quantum of the outstanding claim is not fixed. If the claim were finalised, the defendant would proceed to complete the development and the company would then be wound up. The other consequence is the ever increasing market value of the plaintiff's land which is the basis for quantifying the damages claimed.

166 The disparity in the prejudice to the parties was raised by counsel for the plaintiff. On behalf of the plaintiff it was said that the defendant is a property developer who has completed a successful development. The only steps left for the developer to complete are to pay out to the investors the profit earned from the development, to finalise the litigation and then to be wound up. The defendant agreed to cede the land the subject of the proceedings to the City in order to obtain a material advantage, the extinguishment of the debt to the City for infrastructure contributions. There is no evidence that the fund to be paid out to the investors is not being held in an interest bearing account. It is also assumed that the fund held is the balance of the profit from the development. Therefore, it is said, the only prejudice to the defendant if the action is not dismissed is that there will be some delay in the defendant paying out the profit earned from the property development to investors and the defendant will incur further costs of expert witnesses.

167 Counsel for the plaintiff further submits that the defendant stands to gain a substantial windfall if the proceedings are dismissed. The defendant will have used the giving up of the plaintiff's land to extinguish its debt to the City but will not have to compensate the plaintiff for the land, whereas, if the action is dismissed, the plaintiff's claim for damages of $1 million will be extinguished. The plaintiff will also lose all of the costs and expenses incurred in prosecuting the proceedings and may be ordered to pay the defendant's taxed costs which are likely to be substantial. It was said that this would be a crushing result. It was further said that any suggestion that the plaintiff might have a cause of action against another person has to be considered in light of the statute of limitations.

168 On behalf of the defendant it was also submitted that the disadvantage suffered by the plaintiff in not being entitled to pursue his claim needs to be viewed in terms of the obvious avenues available to him elsewhere for recovering the amount of loss. If the plaintiff was misled by his solicitors as to the outcome of his claim then he has a cause of action against them. If there was no negligence involved in the advice received from his solicitors then the plaintiff also has a cause of action against Mr Tee. It was said that the court ought not assume that any judgment could not be satisfied as there are a number of economic torts available to the plaintiff and actions in equity such as unconscionable conduct. It is further said, however, that as the plaintiff was aware of the consequences of involving himself in Mr Tee's plan if the plan were discovered, then he only has himself to blame.

169 Plaintiff's counsel submitted that the trial of the action could take place without a significant delay because of the state of the lists. In other words, counsel was submitting that no real harm has been done. That view disregards the harm to the court process arising from the plaintiff's action. The response of counsel for the defendant was that it is not relevant to the exercise of the power to dismiss that the civil list is in good order. The statement that the trial can be held without undue delay and without prejudice to the defendant assumes that the defendant's witness and counsel of choice are also available at short notice. Further, it should not be overlooked that the plaintiff's conduct resulted in the defendant being denied a trial on 21 April 2008. The case the defendant faces should the action continue may be wholly different in nature both as to the cause of action and the remedy sought. That is a significant detriment to the defendant. It is also a significant benefit to the plaintiff.

170 I share the defendant's view that it should not be taken into account when considering the impact of the plaintiff's conduct that a retrial could be held relatively quickly because of the state of the lists. As counsel for the defendant observes, it is often not whether a trial date is available which determines the timeliness of a trial, it is whether the trial date is suitable in terms of the availability of counsel and of witnesses for both parties.

171 Counsel for the defendant also made the submission that, in relation to the issue of where the relative prejudice lies, because this is an application to dismiss rather than an application to adjourn, the court does not reach the point of considering the comparative prejudice suffered by the parties. If an adjournment application had been brought on 4 April or 10 April, the issue of respective prejudices would have been central to the determination of that application.

172 I do not entirely accept that the issue of prejudice does not arise in a case of this type. Of the two authorities to which I have been referred, Magenta Nominees Pty Ltd v Bonini and J&J Products v Gray the courts took a different approach. In Magenta Nominees Pty Ltd v Bonini, Wheeler J observed that resolution of the application which sought an order for judgment involved a matter of balancing the hardship to the Magenta parties of the orders sought on the one hand, against, on the other hand, the hardship to Bonini and others in being required to continue with litigation in circumstances where the other parties persistently disregard their obligations, and the need to ensure that the court's orders in respect of the conduct of litigation are respected [90].

173 It can be seen from this observation that, whilst it is appropriate to conduct a balancing exercise, that exercise is not a matter of simply balancing the respective prejudices to the parties. The concern to protect the court's processes weighs in on the side of the party whose conduct is not in question. However, in J&J Products v Gray, no reference was made to conducting a balancing exercise and nor was such an exercise carried out. Kennedy J simply referred to the governing principles set out above and applied them to the facts of the case. It appears to me that it was the gravity of the conduct on which the application was based which was the determining factor.

174 However, on either approach it seems to me that, in the circumstances of this case, the significant factor is the seriousness of the non-compliance with court orders and the litigant's obligations.

175 Counsel for the defendant also submitted that the plaintiff's conduct was far more serious than the conduct the court dealt with in Magenta Nominees. In my view, the plaintiff's conduct is certainly worse than the conduct referred to in the cases to which I have referred. Further, it is not simply a matter of breaching principles of case management. As McLure J observed in Osgood v Wham, the court has the duty and power to protect the integrity of its processes once they are set in motion [20].

176 I am also firmly in support of the statements made by Steytler P and Owen JA in Hancock v Fieldhouse [97] that the court will not countenance an approach that permits parties to set their own programme and flout the Rules and established case management principles with impunity. Further, I would adopt the statement of Wheeler J in Magenta Nominees [87] - [88] that a very important consideration is the need to ensure that interlocutory orders are not habitually disregarded because of the obvious need to maintain the authority of any orders of the court.

177 Counsel for the defendant rightly observed that this was as flagrant an abuse as one could imagine. However, counsel for the plaintiff submitted that an action will only be dismissed for failure to comply with court orders, where the offending party has breached orders deliberately and without any cause and where the competing prejudices between the parties weighs in favour of dismissal, the remedy of dismissal only being granted reluctantly. I note the comment I have already made that the balancing exercise required to resolve applications to dismiss includes in the balance the effect of breaching court orders and the court's concern to protect its own processes.

MARIOTTI -v- WANNEROO NORTH PTY LTD [2008] WASC 109 (4 June 2008)

At a glance

Court

Decision date

Before

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Judgment (213 paragraphs)

MARIOTTI -v- WANNEROO NORTH PTY LTD [2008] WASC 109 (4 June 2008)

MARIOTTI -v- WANNEROO NORTH PTY LTD [2008] WASC 109 (4 June 2008)

Legislation Cited (1)

Cases Cited (3)