Mark THOMPSON v Walter DAL CIN & ANOR

The application was opposed. It was heard by Assistant Registrar Howe on 20 July 2006. The only material placed before the Registrar was a short affidavit containing four paragraphs sworn by Mr Pascale (the solicitor for the defendant) on 26 May 2006. Paragraph 4 thereof was in the following terms:- "I respectfully submit that given the many different events covered in the statement of claim in this claim, it would be more efficiently managed if each of the parties case was reduced to statements."

On 27 July 2006, the Registrar delivered reasons for decision. He dismissed the notice of motion. 5 On 14 August 2006, the defendants filed a further notice of motion. It sought relief pursuant to Rule 49.19. The grounds set forth therein are as follows:- "1. The discretion of Assistant Registrar Howe was miscarried. 2. The Assistant Registrar took into account irrelevant matters in the exercise of his discretion" This notice of motion was heard on 21 November 2006. 6 On the hearing of this application, the defendants tendered a further affidavit sworn by Mr Pascale (sworn on 14 August 2006). The plaintiff did not object to the reading of the affidavit. In a general sense, it sought to do two things. Firstly, it sought to put before the Court material that had not been made known to the Registrar (concerning, inter alia, discovery, exchange of experts reports and of offers of compromise). Secondly, it contained material, which may be classified as submissions, directed to demonstrating error on the part of the Registrar. If there had been objection taken, certain of this material would have been rejected. It had the potential to convert the application into a fresh hearing (as opposed to a review concerning the hearing that took place before the Registrar). 7 Initially, the defendants argued that Rule 49.19 provided a remedy similar to that conferred under the old regime (the Supreme Court Rules 1970 NSW). It is a view that I do not accept. It seems to me that such an approach ignores what is said in Rules 49.20 and 49.21. 8 In Hall & 1 Ors v Transport Infrastructure Development Corporation [2006] NSWSC 1076, I made the following observation:- "[7] The plaintiffs (by notice of motion filed 31 July 2006) now seek relief pursuant to Part 49 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules). Rule 49.19 provides for a "review". Other provisions contained in Part 49 throw up confusion as to the nature of the remedy intended to be provided by Rule 49.19 (Part 49 contains the words "review", "appeal" and "application"). The notice of motion for appeal must specify the grounds relied on in support of the application. Some reference was made to this confusion and the nature of the remedy in Thomas v State of New South Wales [2005] NSWSC 1061. The better view may be that the "review" is now of the nature of an appeal." 9 In my view, the defendants have an onus to demonstrate a ground of appeal that justifies the disturbing of the decision of the Registrar. It seems to me that the cases which dealt with the former remedy may now provide little assistance. 10 The Registrar's reasons for decision set out sufficient of the relevant factual material. There is no need to repeat that material in this judgment. 11 The only order sought by the defendants before the Registrar was a direction for the exchange of witness statements. Whilst the need for intensive case management directions was raised, no such directions were sought. Rather, this seems to have been raised as something to be pursued subsequent to an exchange of statements. 12 In respect of an exchange of statements, the Court is empowered with a discretion (Rule 31.4). In the exercise of that discretion, the Court will have regard to the relevant circumstances of the particular case that is before it. What has been said in other cases will provide guidance only (see Borowiak v Hobbs & 1 Ors [2006] NSWSC 1089). The applicant will bear the onus of satisfying the Court that an order should be made. 13 The rule may be distinguished from other Practice Notes that have application in relation to special lists (such as those in the Commercial List). It confers a general power. 14 There is authority that identifies two matters which are of significance in considering whether or not a direction should be given. Firstly, if there is a need to identify the real issues in dispute. Secondly, if statements would enable the parties to assess the relative strengths and weaknesses of their respective cases. The authority has been referred to by the Registrar and there seems to be no dispute concerning it. 15 In the exercise of the power, the Court must have regard to the provisions of Part 6 of the Civil Procedure Act 2005 NSW (which is headed "Case management and interlocutory matters"). Section 56 thereof expresses the overriding purpose of the Act (to facilitate the just, quick and cheap resolution of the real issues in the proceedings). 16 Before proceeding further, I should endeavour to clarify one matter. It is unclear as to whether or not that was done before the Registrar. The primary purpose had by the defendants in seeking the direction is not to bring about an exchange of statements which may be used for evidentiary purposes at a trial. At this stage, the direction is required for the purposes contemplated by authority. Whether or not they may be used for evidentiary purposes is a matter for future consideration. 17 In this particular case, the Statement of Claim is a very detailed document. The particulars that have been provided appear to have been regarded as adequate and the pleadings sufficiently identify the real issues. The parties have a familiarity with much of what has happened. I am not satisfied that an exchange of statements will do much to advance an assessment of the relative strengths and weaknesses of their respective cases by the parties. 18 The nature of the oral evidence that is likely to come from the plaintiff himself can significantly be gleaned from the contents of the Statement of Claim. The contents reveal also that a significant part of the case may be sought to be proved by documentary material (the written submissions of the defendants assert (at paragraph 22) "It must be obvious there will be many documents involved…"). There may be a need also to lead evidence from third parties (including Michael Davis, Brian McInally and the Council) and all or some of those parties may be reluctant to provide a statement. 19 The contents of the Statement of Claim would suggest that any statements required to be exchanged would be both detailed and lengthy. The preparation of them could be expected to involve considerable expense to the parties. If that be the case, it is an expense that may not be justifiable if the statements are not to be later used for evidentiary purposes. 20 Experience suggests that if lengthy and detailed statements are to be used for evidentiary purposes they can be counter-productive (inter alia, in giving rise to countless objections and the waste of Court time thereby caused). Oral evidence provides the Court with a better opportunity to assess credibility and reliability. There seems to be a consensus between the parties that these matters will be of crucial importance. 21 Upon having heard this application, I am not satisfied that the Registrar erred in not making an order as sought. I do not consider that any ground of appeal has been made out. Further, I am not satisfied that any basis has been shown for the disturbing of the decision of the Registrar. In my view, a re-exercise of the discretion would produce the same result. 22 Whilst the grounds of appeal failed to set forth any particulars which would have enabled an identification of the alleged errors, some matters were raised in the further affidavit sworn by Mr Pascale. These matters were elaborated in written and oral submissions relied on by counsel for the defendants. In the light of what has been earlier said, it is unnecessary to dwell on them. However, for completeness, I will mention certain of them. 23 One matter concerned the Registrar's reference to other proceedings between the parties in the Land and Environment Court of New South Wales. I see that matter as being of no significance. It seems to me that it was referred to as part of the history of the relationship of two neighbours. 24 Other submissions were made alleging error. These may be found, inter alia, in paragraphs 20-21 and 23-25 of the written submissions relied on by the defendants. In my view, none of these matters would justify the disturbing of the decision. The Registrar correctly identified the lack of evidence placed before him. This was a primary reason for the failure of the application. What was said by Mr Pascale in paragraph 4 of his first affidavit was a submission only. It had no evidentiary weight. Whether or not any further evidence could have been placed before the Registrar, the position remains that he was left to do his best on material which could be described as parsimonious. He was left to exercise an intuitive process and make a judgment having regard to that material. 25 Leaving aside any question that may be raised as to their relevance, I will also mention two other matters. In my view, he was entitled to take the approach that settlement seemed to be an unlikely outcome at the present early stage of case management. He did see the proceedings as an "exceptional case". It could be fairly described as not falling within a usual category. The defendants have argued that a direction of exchange of statements should follow from the finding of it being an "exceptional case". I do not accept that argument. 26 It may be that the pursuit of other avenues could be productive. In the course of oral argument, I raised the prospect of mediation. This was embraced by the defendants. I also raised the question of a severance of the issues of liability and quantum and/or the trial of separate issues. 27 Before concluding this judgment, perhaps I should also mention one further matter. The direction that is sought falls within the classification of questions of practice and procedure which largely are heard by Registrars. It is important that there be consistency in the decision making process on these questions. There is authority to support the view that the Court should exercise proper restraint in the substitution of its own view on them. 28 The notice of motion is dismissed. The defendants are to pay the costs of the notice of motion.