Neville v Hillier

Catchwords: CIVIL PROCEDURE – court administration – failure to comply with court orders – purposes of case management – consent orders made – costs orders made

Category: Procedural rulings

Parties: Emily Joyce Neville (Plaintiff)
Dr Terence Hillier (Defendant)

Representation: Counsel:
T Harris-Roxas (Plaintiff)
Solicitors:
Commins Hendriks Solicitors (Plaintiff)
HWL Ebsworth Lawyers (Defendant)

File Number(s): 2023/00231249

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

1. This matter comes before me again today for the purposes of case management. I previously directed that the solicitor for the plaintiff file an affidavit indicating why certain orders should not be made, including an order for costs as against the plaintiff and an order for costs as against the solicitors for the plaintiff, or alternatively the matter be struck out.

2. In accordance with my orders, I received an affidavit of Geoffrey John Potter dated 19 November 2025.

3. The matter came on today for a further argument as to what should happen with the matter, bearing in mind what I considered to be a quite substantial breach of earlier Court orders. I was informed by counsel for the plaintiff that the affidavit of Mr Potter had not been provided to the defendant because those representing the plaintiff believed that it contained confidential information personal to the legal representatives of the plaintiff.

4. Similarly, the proposed short minutes of order had not been provided, albeit, as it turned out, the proposed orders were substantially similar to those previously provided by the defendant.

5. When the matter was last before me on 13 November 2025, I delivered an ex tempore judgment, making various statements about what had happened in this matter. I have not published that judgment and do not intend to because it deals with matters personal to those representing the plaintiff.

6. During the course of the hearing today, I directed that the plaintiff, through Ms Harris‑Roxas, provide a copy of the affidavit of Mr Potter to the solicitors for the defendant.

7. Although it contains matters personal to the legal representatives of the plaintiff, they refer to these matters as an explanation for failure to comply with Court orders. It would be impossible for the defendant to respond to these matters without knowing what they are. In those circumstances, I directed that the affidavit be provided.

8. I only wish to say this at this time. This matter is one of a number of matters involving the same defendant being case managed in the Professional Negligence List. The purposes of case management and in particular, judicial case management, include:

9. Ensuring that only the real issues in dispute are pursued by the parties;

10. Ensuring that the parties serve all evidence on which they intend to rely within a reasonable period;

11. Ensuring that the parties have taken all steps to reasonably explore resolution of the matter as a whole or resolution of any of the issues;

12. Ensuring that all evidence has been exchanged well prior to any hearing date so that again, parties can properly prepare for the hearing and fully understand the cases they have to meet;

13. Ensuring that as far as possible, there are no last minute applications for amendment of pleadings, service of additional evidence or adjournment of hearing dates; and

14. Ensuring that hearing dates are allocated which will only utilise such court time as is necessary, having regard to the real issues in dispute.

15. It is not the practice in either the Professional Negligence List or the Long Matters List or any list which is judicially managed to simply permit parties to turn up in Court and hand up consent orders on a repeated basis. Further, it is not the practice in the Professional Negligence List or the Long Matters List or any other list to permit parties to send along someone who does not know anything about the matter and plead ignorance when asked questions about the status of the matter.

16. I am not suggesting that this latter problem arises in this matter because other than the last occasion when there was no appearance by the plaintiff due to technological difficulties, the plaintiff has been well represented by counsel and is well represented by counsel today.

17. However, the problem in this matter and a number of other matters involving the same defendant, is that those representing the plaintiff have not complied with Court orders as to service of evidence and have failed to do so on a number of occasions.

18. In my view, there needs to be some consequence for this.

19. It is the obligation of solicitors for the parties and if appropriate, counsel for the parties, to ensure that the Court orders are complied with. The Court recognises that in some circumstances, something will go wrong and that will not be possible, but it is difficult to justify a continued failure to comply with Court orders.

20. In this matter, the parties have reached agreement as to the orders which should be made going forward. The defendant seeks an order for costs in respect of each of the appearances on 11 July, 13 August, 5 September, 13 November and 24 November 2025. The plaintiff does not wish to be heard on that application.

21. In the circumstances, I order that:

22. The plaintiff pay the defendants costs of each of the directions hearing on 11 July 2025, 13 August 2025, 5 September 2025, 13 November 2025 and 24 November 2025.

23. The plaintiff is to file and serve her evidentiary statement by 27 November 2025.

24. The defendant is to indicate his position in writing as to the proposed Amended Statement of Claim by 5 December 2025.

25. If the defendant does not consent to the filing of the proposed Amended Statement of Claim, the defendant is to provide reasons.

26. If the defendant does not consent to the filing of the proposed Amended Statement of Claim, the plaintiff is to file a Notice of Motion and supporting affidavit seeking leave by 12 December 2025.

27. If the defendant consents to the filing of the proposed Amended Statement of Claim, the plaintiff is to file and serve the same by 12 December 2025.

28. The plaintiff is to file and serve any other lay statements by 12 December 2025.

29. The defendant is to file and serve his evidentiary statements by 13 February 2026.

30. Liberty to apply on 3 days’ notice.

31. The matter is listed for further directions on 1 May 2026.

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