Phornpisutikul v Mileto

PARTIES : Nipa Phornpisutikul - Plaintiff Tina Mileto - Defendant

COUNSEL : G Lewis, solicitor - Plaintiff V Culkoff - Defendant

SOLICITORS : Lewis Law Solicitors - Plaintiff Russo and Partners - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

3390/03 NIPA PHORNPISUTIKUL v TINA MILETO JUDGMENT - Ex Tempore (Revised 15 February 2006) 1 HIS HONOUR: This is a Notice of Motion which was filed by the defendant in the proceedings. It seeks orders under Part 12 Rule 12.7 of the Uniform Civil Procedure Rules 2005, or in the alternative under Part 12 Rule 12.8 of those Rules. 2 Rule 12.7 says, so far as relevant: "(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit." 3 Rule 12.8 is not relevant to this present situation, because it is concerned with the Court of its own motion dismissing proceedings. What is at present before me is a motion by one party for the proceedings to be dismissed, a situation to which Rule 12.7 applies. 4 The proceedings are proceedings under the Family Provision Act 1982. They were listed for hearing before McDougall J on 7 February 2005. That hearing was vacated, because the plaintiff had sworn affidavits, on Thursday 3 February 2005, which suggested, in terms which are probably inadmissible in at least some part, that there have been significant changes in her financial situation. The defendant was unable to deal with that late evidence, and in consequence applied for an adjournment, which was granted. The plaintiff was ordered to pay on an indemnity basis, the defendant's costs of vacating the hearing date. As well, his Honour directed the plaintiff to file any further affidavit evidence by 4 pm on 24 March 2005. 5 The plaintiff withdrew instructions of Mr Lewis, who had been appearing for her up to the time of the matter being listed before McDougall J, and instructed another firm. It is not possible for the Court to know what transpired between the plaintiff and that other firm. What is apparent from the record is that the plaintiff has been in repeated breach of directions given by the Court. On 5 April 2005 consent orders were made requiring her to file further evidence by 6 May 2005. The matter was stood over on three separate occasions after that, still without the plaintiff having filed the evidence. On 25 October 2005 she was ordered to file affidavits by 10 November 2005. Again that was not done. The matter came before the Chief Judge on 22 November 2005 who directed that any evidence of the plaintiff not filed and served by 31 December 2005 is not to be relied on by the plaintiff. His Honour ordered the plaintiff to pay the defendant's costs of the day on an indemnity basis forthwith and stood the matters into an Associate Justice's callover on 1 February 2006. 6 On 1 February 2006 the Court was informed by the plaintiff that the matter was not ready. It appears that the Court at that stage did not go into the history of the matter. In consequence, the matter was simply ordered to be removed from the callover list, and listed before the Registrar on 6 February 2006. 7 On 6 February 2006 it came back before the registrar, where it was referred to me as Duty Judge. I then referred the matter to Young CJ in Eq. The plaintiff had a Notice of Motion, which sought an extension of time to file her affidavits. She was at that stage not represented by any lawyer. Young CJ in Eq refused that motion but, I gather, suggested the matter might be reconsidered if she could show she had a lawyer who was capable of advancing the matter. 8 Today the matter has come before me on the motion of the defendant which I have earlier mentioned. This time, the plaintiff is represented, once again, by Mr Lewis. He tells me that his instructions extend to conducting the trial, not merely to appearing today. He seeks a further, and final, indulgence, to enable himself and senior counsel who had previously appeared for the plaintiff to assess the prospects of the case and decide what evidence should be put on. 9 The substantive provisions of the Civil Procedure Act 2005 commenced on 15 August of 2005. That Act alters in significant ways the power of the Court to give directions concerning the conduct of proceedings, and in broad terms expects the Court to take a firmer hand in the preparation of matters than had previously been the case. Section 56 requires the overriding purpose of any decision made under the Act to be the just, quick and cheap resolution of the real issues in the proceedings. As well, though, section 57 allows the Court to have regard to not only the just determination of proceedings but also the efficient disposal of the business of the Court, the efficient use of judicial and administrative resources, timely disposal of the proceedings and all other proceedings in the Court at a cost affordable by the parties. Section 61(1) and (2) confers on the Court a wide power to give pre trial directions. Section 61(3) specifically provides that if a party to whom a direction has been given fails to comply with the direction the Court may, amongst other things, dismiss the proceedings. I would accept that the powers under section 61 should be exercised bearing in mind the principle that (to adopt the words used by section 62(4) in relation to directions as to the conduct of a hearing) each party is entitled to a fair hearing and must be given a reasonable opportunity to lead evidence, make submissions, present a case and, at a trial, to cross-examine witnesses. However, a reasonable opportunity does not mean multiple repeated opportunities. Litigants and the profession should not expect that failure to comply with pre trial directions will be accepted lightly by the Court. 10 There is some reluctance on the Court to dismiss a case when there has not been a hearing on merits. However, if a party, by repeated failures to comply with directions, demonstrates that she is not prepared to play her role in the expeditious advancing of the proceedings, it is that party's own conduct which has prevented a hearing taking place. The power to dismiss proceedings for failure to comply with directions is one which will be used in appropriate cases. 11 In the present case I have been influenced by the fact that the proceedings have been on foot for a considerable time, since 2003. While it is true that over a year has now passed since McDougall J gave the first direction for the plaintiff to file their affidavits, and she has not filed a single piece of paper which advances her case in chief, she has been, for part of that time, representing herself in court. As well, as earlier mentioned, the Civil Procedure Act 2005 came into effect only in the middle of August 2005. While the profession and litigants might be entitled to some time in which to become accustomed to the new regime, that time is running out. 12 I am also influenced in this case by the fact that the plaintiff is a Thai national, and much of the evidence which she would seek to obtain is in Thailand. It appears, from what she has put before the Chief Judge on 6 February 2006, that she is well advanced in the preparation of an affidavit. 13 Today, Mr Lewis sought approximately one month as a final opportunity for the plaintiff to put her evidence on. In all the circumstances, and only after considerable hesitation, I have decided to grant that application. 14 The order of the Court is: 15 On 17 March 2006 these proceedings will by force of this order be dismissed unless the plaintiff has by 5 pm 15 March 2006 filed in the Court and served on the solicitors for the defendant :

(a) all affidavits on which she seeks to rely as evidence-in-chief in the proceedings, together with

(b) a certificate in writing from the solicitor on the record that the plaintiff has filed all the evidence-in-chief on which she seeks to rely. 16 I order that after 15 March 2006 the plaintiff may not file any further evidence-in-chief in these proceedings without either the consent of the defendant or leave of a judge. 17 I note that it is the present expectation of the Court that it would only be in extremely unusual circumstances that leave to file any further affidavit after 15 March 2006 would be granted. 18 I order the plaintiff to pay the defendant's costs of the motion heard by Young CJ in Eq on 6 February 2006. 19 In the event that the proceedings are dismissed pursuant to the order I have earlier pronounced, I order the defendant to pay the costs of this motion now before me. 20 I reserve to the defendant liberty to apply concerning the costs of the proceedings in the event that the proceedings are dismissed by the self-executing order. 21 The order which Ms Culkoff seeks, in the event that the proceedings continue, is that costs should be costs in the cause. As that is the order which she seeks, and as the substantial cause of the matter being in Court at all today is the gross and repeated default of the defendant, I will make that order. I order that in the event that the proceedings continue, costs of the motion heard today will be costs in the cause. 22 In the event that the proceedings are not automatically dismissed, I direct the parties to contact my Associate to arrange a further directions hearing before me for the further conduct of the matter, with the parties contacting my Associate for that purpose by 5 pm 21 March. **********

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