Palta v Iceland Properties Pty Ltd & Ors

1. This proceeding was commenced in October 2020 and, more than five years later, it remains procedurally incomplete. It now comes before the Court at a Pre-Trial Directions Hearing (PTDH) in relation to what is the fourth trial date allocated to it. Within the July Reasons I set out in detail the complex and protracted history of the litigation. For present purposes it is sufficient to note the following matters in summary.
2. The defaults recorded in the July Reasons were numerous and serious. The defendants had failed, despite repeated orders, to file an amended defence and counterclaim. They had not served expert evidence on loss and damage by the timetable ordered, nor had they complied with earlier directions made in April 2024 and again in December 2024 requiring the delivery of those materials. Their discovery obligations likewise remained incomplete, and the application to amend their pleading was made at the very last moment without proper articulation of the case they intended to advance. As was stated in the defendant's letter to the plaintiff dated 16 September 2025, the defendants have not filed a responsive pleading to the plaintiff's amended statement of claim and are seeking a vacation of the trial date for a fourth time.
3. The plaintiff was not without fault. The Court observed that he had been dilatory in taking steps to enforce compliance with orders, and had failed to provide a complete status update when directed to do so in June 2025. Both parties contributed to delay by not completing mediation within the timeframe ordered and by providing late and inadequate responses to the Court's directions in June 2025.
4. The Court is concerned that the parties have been repeatedly reminded of their non-compliance with procedural orders and of the consequences of that conduct. As early as April 2024, Judge Burchell recorded that no steps had been taken to prepare the matter for trial, necessitating vacation of the trial date. On 6 December 2024, I again vacated the trial date, observing that the Court was not satisfied that reasonable steps had been taken to comply with earlier orders. On that occasion I made plain that no further adjournments of trial dates would be permitted absent exceptional circumstances.
5. By June 2025 the Court's concerns had escalated to the point where, in orders made on 23 June 2025, the parties were expressly warned that the Court would consider, of its own motion, whether the proceeding and counterclaims ought to be dismissed under the CPA for repeated failures to comply with orders and to progress the matter towards trial. Those orders required affidavit material and submissions directed to breaches of the overarching obligations, and placed the parties on clear notice that dismissal was under active consideration.
6. In light of this history, it is plain that the present difficulties are not isolated lapses but form part of a sustained pattern of non-compliance and delay by both sides. The proceeding has now reached its fourth listed trial date without the necessary steps having been taken to render it trial-ready, despite repeated judicial warnings, multiple adjournments, and ample opportunity for compliance. Against that backdrop, the Court must now turn to whether the only proportionate response is to exercise its power under the Civil Procedure Act 2010 (Vic) to dismiss the proceeding and counterclaims for repeated failures to have complied with court directions.

1. The overarching purpose of the CPA is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.[1] Section 49 relevantly provides that a court may give any direction it considers appropriate to further the overarching purpose in relation to the conduct of the hearing in a civil proceeding.
2. Under the Civil Procedure Act, the overarching obligations include the obligation to cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding.[2] Under s 10, the overarching obligations apply to any person who is a party to a civil proceeding.
3. Part 2.1, relevantly comprises the following sections regarding Overarching Obligations:

(1)A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers...

9 Court's powers to further the overarching purpose

(1)In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects -

(b)the public interest in the early settlement of disputes by agreement between parties;

(c)the efficient conduct of the business of the court;

(d)the efficient use of judicial and administrative resources;

(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for -

(i)the fair and just determination of the real issues in dispute; and

(f)the timely determination of the civil proceeding;

(g)dealing with a civil proceeding in a manner proportionate to -

(i)the complexity or importance of the issues in dispute; and

(2)For the purposes of subsection (1), the court may have regard to the following matters -

(a)the extent to which the parties have complied with any mandatory or voluntary pre-litigation processes;

(b)the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c)the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d)the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e)the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f)any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(a)limit any other power of a court to make orders or give directions; or

(b)preclude the court from considering any other matters when making any order or giving any direction.

1. Part 2.3 of the Civil Procedure Act sets out overarching obligations with which parties to civil proceedings must comply. Section 25 relevantly provides that:

For the purpose of ensuring the prompt conduct of a civil proceeding, a person to whom the overarching obligations apply must use reasonable endeavours in connection with the civil proceeding to -

1. Part 4.2 of the Civil Procedure Act confers case management powers on this Court, and s 51 provides a variety of sanctions which may be imposed for contraventions of case management orders of the Court. It relevantly provides that:

"51 Contravention of orders or directions under this Part

If a person to whom a direction has been given or to whom an order made under this Part applies contravenes the direction or order, the court may do any one or more of the following -

(ii) in relation to a particular cause of action; or

(iii) in relation to the whole or part of a particular claim;

(b) strike out or limit any claim made by a plaintiff;

(c) strike out or limit any defence or part of a defence filed by a defendant, and give judgment accordingly;

(d) strike out or amend any document filed by the person, either in whole or in part;

(e) disallow or reject any evidence that the person has adduced or seeks to adduce;

(f) direct the person to pay the whole or part of the costs of another party or person;

(g) make any other order or give any other direction that the court considers appropriate."

1. In Northern Health v Kuipers,[3] the Court of Appeal emphasised the importance of compliance with the provisions of the Civil Procedure concerning case management procedures (citations omitted):

[119] Parties to civil proceedings in the courts of this State must comply with the overarching obligations in the Act. Case management procedures that are adopted by courts seek to give effect to the overarching purpose in the Act in a manner that is fair to all parties while simultaneously advancing the administration of justice. The importance of compliance with case management procedures is reflected in the extensive sanctions that courts can impose under the Act in cases of non-compliance.

[120] Parties conducting proceedings in a managed list... must do all they can to comply with the court's timetabling orders. If they do not, they face the risk that orders will be made which may affect the manner in which, and the extent to which, they can conduct their case. For example, as appears from [26] above, under s 51 of the Act, the court may order that a party be precluded from relying on particular evidence. Parties should not seek to avoid compliance with an order by adopting an artificial interpretation of the order or by taking advantage of any ambiguity. Rather, they should endeavour to comply with the intended purpose of the order.

1. In Hodgson v Amcor Ltd,[4] Vickery J identified a non-exhaustive list of discretionary factors which the Court ought to consider in an application to dismiss a claim on the basis of non-compliance with case management and discovery orders. His Honour stated:

[98] In my opinion, it is not desirable to attempt to formulate an overriding formula pursuant to which the relevant discretions must be exercised. To do so would suffer the vice of fettering the considerations to be considered in an individual case and would tend to ignore the reality that an infinite number of different factual circumstances may call for the exercise of the discretion. The power of a court to control and supervise its process to prevent injustice by the use of strike out powers cannot be curbed within defined and closed categories. This is not to say that the exercise of the discretion is at large.

[99] All matters relevant to the exercise of the power should be weighed. In different cases, the factors may assume greater or lesser significance. Such factors may include the following considerations, which are examples derived from the case law examined:

a) the effect of the contravening conduct on the just resolution of the real issues in the proceeding in an efficient, timely and cost-effective manner;

b) the extent of any delay caused by the contravening conduct and the prejudice associated with it, and whether the delay was inordinate and inexcusable;

c) whether the history of non-compliance by a party is such as to indicate an unwillingness or inability to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period. In determining whether the defaulting party is either subjectively unwilling to cooperate or, for some reason, is unable to do so, the cumulative effect of the party's defaults may be taken into account;

d) whether the non compliance is continuing and is continuing to occasion unnecessary delay, expense or other prejudice to the other party (ie. a significant continuing default which continues to impose an unacceptable burden on another party;

e) the prejudice which might reasonably be assumed to follow for the other party arising from the contravening conduct, and that which is shown to have arisen;

f) the extent to which the achievement of efficiency in the conduct of proceedings by other parties in other cases before the Court have been compromised;

g) the veracity and reasonableness of any explanation given for the contravening conduct;

h) whether the default was intentional or the product of contumelious conduct;

1. whether any alternative remedy by way of a lesser, but equally efficient, sanction is available;

j) whether the contravening conduct has rendered it impossible to conduct a fair trial, or would make any judgment in favour of the offending party unsafe, or which would render any further proceedings unsatisfactory and prevent the Court from doing justice, or there is a real risk of any of these things happening; and

k) whether the object of the order which has been contravened is ultimately secured (eg. the late production of a document which has been withheld on discovery.

[100] Given the gravity and effect of a striking out order, it should only be made in a clear case where the exercise of the discretion properly calls for this to occur and when the sanction ordered is the least that is necessary to achieve the ends of appropriate case management. Further, as observed in Lenijamar the power conferred on the Court must be "administered sensibly and with an appreciation both of the fact that some delays are unavoidable, and unpredictable ... and of the likely serious consequences to [the party in default]".

1. Further, r 1.14 of the County Court Civil Procedure Rules 2018 provides that:

(1) In exercising any power under these Rules the Court -

(a) shall endeavour to ensure that all questions in the proceeding are effectively, completely, promptly and economically determined;

(b) may give any direction or impose any term or condition it thinks fit.

(2) The Court may exercise any power under these Rules of its own motion or on the application of a party or of any person who has a sufficient interest.

1. In Grimmett v Rivdale Pty Ltd (Trading as Angela Sdrinis Legal) [2025] VSC 122 at [35] and [39] of the Judicial Registrar's reasons which were wholly adopted by Tsalamandris J, the Court said:

Most importantly, trial dates are public resources. They represent a commitment by the Court that resources, including judicial and other staff time, will be available to facilitate the trial of a specific proceeding at a specific time. They are finite and in high demand, as the Court can only guarantee the availability of its resources for so many proceedings each week given the numbers of judges, court staff and other resources that are available.

A lost trial date is not an insignificant matter. The consequences it brings for other court users are not acceptable, and the impact on the proper running of the Court for the benefit of all Victorians is not trivial....

1. This proceeding has now reached a point where the Court must weigh whether any lesser course than dismissal is available. Despite repeated indulgences and warnings, the plaintiff has failed to bring the matter into a state ready for trial. The defaults are not isolated or minor; they are systemic, cumulative and continuing.
2. The plaintiff has failed to comply with three critical pre-trial obligations: the filing of an expert report, the delivery of witness outlines, and the service of a proposed court book index. His solicitors have candidly acknowledged that they are without instructions, and on that basis have been unable even to confirm whether the trial can proceed.
3. They have deposed that their client is considering obtaining new legal representation. It is also apparent that this has not been done to date despite their current solicitors giving them adequate warning of the possible outcomes of further delay and non-compliance.
4. A party who invokes the jurisdiction of this Court bears a responsibility to prosecute the claim diligently. In the present case, the plaintiff has patently and spectacularly failed to do so.
5. The defendants, for their part, remain in default of filing a responsive pleading to the amended statement of claim served in February 2023. Their letter of 16 September 2025 concedes as much, and foreshadowed further amended pleadings, additional discovery, and a need to vacate the current trial date. That letter, while couched as a proposal for consent orders, is in substance an admission that the defendants are not ready to proceed and cannot fairly participate in the trial presently listed.
6. While that is so, Mr Twidale, Counsel now briefed for the remaining defendant and plaintiff by counterclaim has submitted that his client is content to conduct the proceeding on the basis of the currently filed Amended Defence and Counterclaim. He has indicated that his outlines of evidence have been filed (albeit late) and that his expert evidence has been filed. He has also indicated that a court book is all but ready to be filed and served.
7. Under those circumstances, I will hereafter distinguish between the state of readiness of the plaintiff's claim and that of the counterclaim.
8. The cumulative effect of the defaults by both parties is profound. This matter was commenced in October 2020, and five years later the Court is confronted with parties who have not finalised their pleadings, have not completely exchanged expert evidence, and have not prepared basic trial documentation. It cannot be said that the plaintiff's claim is close to readiness. The plaintiff now advances a position which, if accepted, would inevitably require a further adjournment of the trial date.
9. The Court has previously, in orders of 6 December 2024, made plain that no further adjournment of trial dates would be permitted absent exceptional circumstances. None have been demonstrated. Instead, what emerges is a culture of delay and disregard for directions, notwithstanding clear warnings in the orders of 23 June 2025 that dismissal of the proceeding and counterclaims was under active consideration.
10. In assessing the exercise of its powers under s 51 of the Civil Procedure Act, the Court must consider the interests of justice not only as between the parties, but also more broadly. Repeated non-compliance of this kind consumes scarce judicial resources, delays the resolution of other litigants' cases, and undermines public confidence in the administration of justice. The prejudice to each party in not having its case heard is outweighed by the prejudice to the proper administration of justice if such conduct is tolerated.
11. In considering whether dismissal is the appropriate sanction, I have had regard to the discretionary factors outlined in Hodgson v Amcor Ltd.[5] The effect of the contravening conduct has been to frustrate the just, efficient and cost-effective resolution of the real issues in dispute (factor (a)). The delay caused is both inordinate and inexcusable (factor (b)), extending over years and involving repeated failures to meet directions. The history of non-compliance across both parties points to an inability, and in some respects an unwillingness, to cooperate with the Court in readying the matter for trial (factor (c)). The defaults are continuing and give rise to further unnecessary delay and prejudice (factor (d)).
12. The prejudice reasonably to be assumed, and which in fact has arisen, is significant: each side has been denied the opportunity to properly prepare, while the Court has been prevented from using judicial resources efficiently (factor (e)). Other litigants in the managed list have been compromised by the repeated loss of trial dates (factor (f)). No satisfactory explanation has been given for the defaults (factor (g)), beyond the plaintiff's solicitors' admission that they are "without instructions", and the defendants' belated acknowledgment that further pleadings and discovery would have been required (until their submissions today that they no longer pursue that course). Although I do not find deliberate contumeliousness (factor (h)), the conduct has had the same effect. In respect of the plaintiff there is no lesser sanction available (factor (i)), because the central pre-trial steps have not been taken and cannot be taken without further significant delay. The cumulative defaults mean that a fair trial of the plaintiff's claim cannot now be conducted within any proportionate timeframe (factor (j)), and the objects of the earlier orders have not been secured (factor (k)).
13. On any view, the cumulative defaults by the plaintiff (and until today by the second defendant) have rendered it impossible to conduct a fair trial of the plaintiff's claim on 30 September 2025, or within any reasonable timeframe thereafter. The plaintiff is not in a position to prosecute his claim; on the other hand, by reason of his change of position today, the second defendant is now in a position to advance his counterclaim. In these circumstances, the Court is driven to the conclusion that dismissal of the plaintiff's claim is the only course consistent with the overarching purpose of the Civil Procedure Act.
14. I will therefore dismiss the plaintiff's claims. The trial of the counterclaim will proceed as fixed on 30 September 2025. The second defendant will be ordered to file further and better particulars of loss and damage claimed under his counterclaim that sets out under each claimed head of loss a dollar figure that conforms with his expert evidence.
15. I will hear the parties as to what costs order should be made.

Iceland Cold Storage Pty Ltd (ACN 601 489 927) atf the Iceland Cold Storage Trust

Iceland Cold Storage Pty Ltd (ACN 601 489 927) atf the Iceland Cold Storage Trust

Iceland Cold Storage Pty Ltd (ACN 601 489 927) atf the Iceland Cold Storage Trust

I certify that these 18 pages are a true copy of the ruling of His Honour Judge Wise delivered on 25 September 2025.

[1] Civil Procedure Act 2010 s 7.

[2] Civil Procedure Act 2010 s 20.

[3] [2015] VSCA 172.

[4] [2011] VSC 63.

[5] [2011] VSC 63.