Rahme v Satouris

The relevant procedural history

1. The background to this motion is that there were a very significant number of defaults by the plaintiffs in complying with the directions of this Court. On 3 August 2016, ten months after the commencement of the proceedings, the plaintiffs were ordered to serve all affidavits on which they relied by 19 October 2016. The plaintiffs filed a further amended statement of claim on 18 September 2016. On that day orders were made extending the time for the plaintiffs to serve their affidavits until 10 November 2016. The plaintiffs breached that order. No attempt was made by them to relist the proceedings either when it became apparent that the order could not be complied with or after the date for compliance had passed. The proceedings were again listed for directions on 31 January 2017. On that day, by consent, the Court extended the time for the plaintiffs to serve their affidavits until 28 February 2017. The court also ordered that if there was any further non-compliance by the plaintiffs an affidavit would be required. The plaintiffs did not comply with the order that they serve their affidavits by 28 February 2017. They did not relist the proceedings either when it became apparent that they could not comply with the order or after the date for compliance had passed. No affidavit explaining their failure to comply was prepared. The matter came back before the court again for directions on 26 April 2017. By consent the court ordered the plaintiffs to serve all of their affidavit evidence by 31 May 2017. The plaintiffs did not comply with that order. Again, they did not relist the proceedings either when they must have realised that the order could not be complied with or after the date for compliance had passed. The solicitors for the third defendant had the matter relisted.
2. The matter came back before the court on 14 June 2017. Orders were made by consent which included the following: "1. The plaintiffs are to serve all affidavit evidence upon which they intend to rely by 30 June 2017. 2. Any evidence not served by the plaintiffs by 4pm on 30 June 2017 may not be relied upon except by leave of the court. 3. Any application by the plaintiffs for leave to adduce further evidence shall be supported by an affidavit setting out (a) the reasons for the delay and (b) an explanation of why the proposed further evidence was not available on or before 30 June 2017. 4. If the plaintiffs fail to serve evidence by 4pm on 30 June 2017, the plaintiffs' claim will be struck out instanter for want of prosecution.
3. The plaintiffs' efforts to comply with the orders set out above appear from the affidavit of Jason Polese of 9 August 2017 that was read in support of the notice of motion. He deposed that on 29 June 2017 draft affidavits of each of the plaintiffs were prepared by Mr Kekatos and Ms Chand, the solicitors for the plaintiffs. On 30 June 2017, at around 11am, a conference was held with the plaintiffs in the offices of Kekatos Lawyers to finalise the draft affidavits. At approximately midday on 30 June 2017, the draft affidavits were sent to counsel to be settled. By 2pm on 30 June 2017 counsel had settled the affidavits. The plaintiffs' solicitors attempted to serve the affidavits on the defendants by email at 4.02pm on 30 June 2017. Apparently, there was a technical glitch with the plaintiff's solicitors' computers.
4. This history demonstrates the dangers of leaving matters to five minutes to midnight, so to speak, to comply with court orders and in particular orders of the gravity of those made by consent on 14 June 2017. As was perhaps inevitable, there was a breach and, as I have said, the first tranche of evidence was not served until 4.02pm. At 4pm the consent orders took effect and the proceedings stood dismissed.

The plaintiffs' notice of motion filed on 9 August 2017

1. Ultimately, when the plaintiffs realised that the defendants regarded the proceedings as having been automatically dismissed, the plaintiffs filed a notice of motion on 9 August 2017 to have the proceedings reinstated. Although Mr Polese deposed as to what occurred on the eve of the date for compliance and on the actual day (as referred to above) he provided no explanation as to why the matters were left so late. It is therefore not possible to discern whether it was the plaintiffs' fault, or their solicitors', or both.
2. Notwithstanding the lack of explanation, the third defendant has proposed orders which would have the effect of regularising the proceedings and ensuring that the dismissal which was effected at 4pm on 30 June 2017 as a consequence of the plaintiffs' ultimate default was reversed.

The form of relief

1. Because of the approach taken by the third defendant it is not necessary for me to decide whether I would have granted the plaintiff such an indulgence. I do not regard the plaintiffs as having provided any real explanation for their non-compliance with the orders made by the Court on 14 June 2017. Nonetheless, I am satisfied that it is appropriate on the basis of the proposal made by the third defendant to reinstate the proceedings.
2. The orders sought by the plaintiffs in their notice of motion are inapposite. The powers of this Court under UCPR rr 36.15 and 3616 are reserved for situations other than those which arise in the present case. The form of order proposed by the third defendant is consistent with the approach to the operation of this Court's power to extend time sanctioned by the High Court in FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 286 (Wilson J, Brennan, Deane and Dawson JJ agreeing) and at 290-291 (Gaudron J); [1988] HCA 13. The power to make the necessary order to reinstate the proceedings derives from UCPR r 1.12, which empowers the court to extend any time fixed by an order of the court, even if an application for extension is made after the time expires.

Costs

1. There is an issue about costs of the motion. Mr Polese, who appeared on behalf of the plaintiff, contended that, having regard to the position ultimately taken by the third defendants and the plaintiffs' efforts to resolve the notice of motion, it was appropriate that the costs of the notice of motion be costs in the cause. Mr Lloyd submitted that it was appropriate that the plaintiffs should pay the costs of the notice of motion, since it was their default which required the notice of motion and that the orders regularising the proceedings could not be made by consent without persuading this Court that it was appropriate that the orders be made. Further, he pointed to the submissions made by each party which reflect that some substantial costs would have been incurred by the defendants in analysing the procedural history and making submissions.
2. I am persuaded by Mr Lloyd that it is appropriate that the plaintiffs be required to pay the third defendants' costs of the notice of motion. It was the final of a series of defaults which required the filing of the notice of motion. It was the plaintiffs who sought the Court's indulgence. The approach taken by the third defendant was sensible and appropriate and minimised the court time required to resolve the issues to which the motion gave rise.
3. There are other matters which have been the subject of debate between Bar and Bench today which are recorded in the transcript which relate to the wording of particular orders. I do not consider it to be necessary for my reasons to traverse each of those differences, since their resolution will be apparent from the orders which I will make.

Orders

1. For these reasons I make the following orders:
2. Further extend the time for compliance with order 1 made on 14 June 2017 until the date and time that the plaintiffs' evidence served by email on 30 June 2017 was properly served.
3. Confirm that, by reason of the extension in order 1 above, the current pleading is the further amended statement of claim filed 8 September 2016.
4. Note that the plaintiffs confirm that they do not propose to amend their pleading.
5. Grant leave to the plaintiffs to rely upon the evidence served by email on 30 June 2017 on condition that the plaintiffs not be permitted to rely upon any further evidence-in-chief except in exceptional circumstances and with the leave of the court or with the consent of the defendants.
6. I note that Mr Polese, who appeared on behalf of the plaintiffs, confirmed that the plaintiffs' evidence-in-chief was served by 30 June 2017 and that the plaintiffs do not propose to rely on any further evidence-in-chief.
7. Order the plaintiffs to pay the costs of the directions hearing on 31 January 2017, 26 April 2017 and 14 June 2017 as well as the costs of the notice of motion filed by the plaintiffs on 9 August 2017.
8. Direct the second and third defendants to serve their evidence by 11 November 2017.
9. Direct the plaintiffs to serve their evidence in reply by 1 December 2017.
10. List the matter for directions before me at 9.15am on 12 December 2017. 10 Grant liberty to the parties to apply to restore the matter to my list on three days' notice

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. Decision last updated: 12 September 2017