Paskin v City and Industrial Demolitions

Plaintiff - Charles Paskin PARTIES : First Defendant - City and Industrial Demolitions (NSW) Pty Ltd Second Defendant - The Council of Barker College Third Defendant - Gledhill Constructions Pty Ltd

Plaintiff - Mr G Healey, solicitor COUNSEL : First Defendant - Mr J Sewell, counsel Second and Third Defendants - Mr N Gordan, solicitor

Plaintiff - GH Healey & Co SOLICITORS : First Defendant - Rankin Nathan Lawyers Second and Third Defendants - Curwood & Partners

• 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

21096/03 PASKIN v CITY AND INDUSTRIAL DEMOLITIONS (NSW) PTY LTD AND ORS

JUDGMENT 1 HER HONOUR: By motion of 7 September 2009, the first defendant sought orders dismissing the proceedings for want of prosecution under Rule 12.7 of the Uniform Civil Procedure Rules 2005. The application was supported by the other defendants, but opposed by the plaintiff. 2 There was no issue between the parties as to the Court's jurisdiction to make the orders sought, or the unsatisfactory history of the proceedings. While the application for the plaintiff was that instead of the proceedings being dismissed, that they should be given a hearing date in February next year, it was apparent that the matter was not ready for hearing. Mr Healey, the plaintiff's solicitor, finally confirmed that none of the consent orders made by the Court in May 2009, had been complied with by the plaintiff. 3 That situation had to be considered against the undisputed background, that the claim concerned injuries suffered in an accident which had occurred in July 2000. Proceedings were commenced in August 2001 and related proceedings in 2003. After the plaintiff's ongoing inaction in the proceedings and repeated failure to comply with Court directions and orders, in 2006 the first defendant made the first of a number of applications to have the proceedings dismissed for want of prosecution. 4 On 13 November 2006, Barr J refused to dismiss the proceedings, taking into account the very serious injury sustained by the plaintiff, as well as psychiatric evidence of profound psychological effect on the plaintiff, and the adoption of a peripatetic lifestyle, which had resulted in his solicitor losing contact with him for a period. His Honour took the view that the position of the case was quite unsatisfactory, but while the motion had to be refused, the bringing of the motion had not been unreasonable. The plaintiff was accordingly ordered to pay the costs of the motion. 5 Still the Court's orders and directions were not all adhered to by the plaintiff. On 6 March 2007, James J dealt with a second dismissal application, which was also refused. His Honour recounted the plaintiff's repeated failures and accepted that prejudice had resulted for the defendants, but concluded that they were not such as to prevent a fair trial. The case had not been abandoned and so his Honour made further orders as to its preparation. Still, the Court's orders were not all complied with by the plaintiff. 6 On 19 June 2008, Price J dealt with another dismissal motion which was also refused, his Honour then describing the position as very unsatisfactory, resulting in various prejudice to the defendants. His Honour balanced that consideration with the serious injury suffered by the plaintiff and the fact that the statutory limitation period had then expired, with the result that a dismissal of the proceedings would thus have grave consequences for the plaintiff. His Honour took the view that this situation outweighed the powerful consideration of non compliance, but warned that the lack of due despatch of the proceedings could not be allowed to continue. His Honour ordered the plaintiff to pay costs on an indemnity basis, while dismissing the motion, but observed that:

I wish to make it abundantly clear to the plaintiff that failure to comply with the directions I now make without exceptional reason will result in dismissal of the proceedings, notwithstanding the expiration of the limitation period. 7 Still, the plaintiff did not comply with all of the Court's orders and directions. A further dismissal motion was filed, but when that application came before Adams J in December 2008, consent orders were made giving the plaintiff yet another opportunity to put on his case. Those orders were also not all complied with and in May 2009, a further agreement was reflected in yet further consent orders which were then made. 8 At the hearing, Mr Healey conceded that those orders have not been complied with. The affidavits which he swore in support of his application that the matter not be dismissed, but instead be given a hearing date, showed that again, contact with Mr Paskin had been lost for a time. The result was that in reality, no steps had been taken to do what was necessary to comply with the consent orders agreed in May. 9 It was in those circumstances, that orders dismissing the proceedings were again pressed by the defendants, notwithstanding the drastic consequences which that will have for the plaintiff. In light of this history orders dismissing the proceedings was an obvious way in which the repeated, ongoing, increasing and acknowledged prejudice to the defendants could be remedied by the Court. 10 But for one matter, that is the course which I would have concluded that justice required to be adopted. The matter which weighed against dismissal was that Mr Paskin was involved in a car accident in 2007 in which he sustained brain injuries. That explains, no doubt, the course which the proceedings have taken since 2007 and the plaintiff's solicitor having again lost contact with the plaintiff. Contact has now been re-established and it seemed to me, in that circumstance, that the plaintiff should be given one final opportunity to put his case on a proper footing. 11 In coming to that conclusion, I observe that no matter how sympathetic one might be for Mr Paskin's difficulties, given his very unfortunate situation, and the challenges which they undoubtedly present his legal advisers, there comes a point where indulgences granted to accommodate his problems result in injustice to the defendants, which cannot be remedied by costs orders. That point has well and truly been reached. The defendants are plainly not the author of Mr Paskin's current problems, or his ongoing failure to prosecute his case, or to comply with the Court's orders. As the High Court recently discussed in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951, costs orders cannot always outweigh the consequences of ongoing delay, such as is present in this case. 12 The Civil Procedure Act 2005 emphasises the obligations which the parties have to assist the Court in achieving the objects of the Act, specified in s 56 to be the 'just, quick and cheap resolution of the real issues in the proceedings'. Mr Paskin's ongoing failure to adhere to his obligations in these proceedings may no longer be accommodated. 13 I have thus concluded that while Mr Paskin should be given a final opportunity to put his case on a footing where a hearing date may be given, if he fails to comply with the orders which I now make, his proceedings will stand dismissed. Those orders reflect what was agreed by the parties in May 2009 and what the Registrar then also directed be done. Neither Mr Paskin, nor his lawyers should proceed in the expectation that they will be relieved of the consequences of any further failure to prosecute his case, in accordance with this order. 14 It was common ground that if such a course were pursued, a final period of four months should be given and that in the meantime, the first defendant will enquire as to whether copies of Mr Paskin's 2000 and 2001 group certificates are still held. If they are, copies of these certificates are to be provided within 28 days.

Orders 15 For these reasons, I order that the plaintiff pay the defendants' costs of the motion on an indemnity basis. I also make the following self executing order:

The proceedings will stand dismissed at 4pm on Monday, 25 January 2010, if, on or before that time, the plaintiff has not served all of the following documents upon the defendants:

a. Particulars in respect of each employment in which the plaintiff has been engaged in each of the financial years commencing 1 July 1994, 1995, 1996, 1997, 1998, 2000 and 2008; a. The name and address of the employer,

e. The gross and net (after-tax) income earned from such employment.

b. The Peel and Rockingham Kwinana Hospital notes and the Royal Perth Hospital notes and discharge summary relating to the plaintiff's treatment/admission as a result of injuries sustained on or about 27 February 2007.

c. All further economic loss reports and financial material.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.