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.