Reliance Financial Services v Griffiths & Anor

Delay and Default 5 On 4 July 2007 the plaintiff filed its Statement of Claim. It alleged that on 10 January 2003 the plaintiff advanced $200,000 to the first defendant; that in consideration for the advance, the first defendant agreed to repay the plaintiff the principal plus interest no later than two months after 10 January 2003; and that the interest payable was $10,000 per month. 6 On 23 November 2007 the plaintiff filed an amended statement of claim. It introduced some significant changes and other factual issues. It alleged, among other things:

(a) That the first defendant was in partnership with Tom Lesic in a business trading as Western Used Family Cars and that the first defendant and Mr Lesic requested a line of credit from the plaintiff in order to purchase motor vehicles as stock for the partnership business;

(b) That the first defendant guaranteed the repayment of any money advanced to Tom Lesic either in his personal capacity or as part of the $200,000 line of credit;

(c) That if certain advances to Tom Lesic were made without the authority of the first defendant, then those advances were ratified by him when he thanked the plaintiff for the advances and confirmed that the advances were for the partnership business.

2008 7 During 2008, the principal steps in the proceedings were as follows:

(a) On 22 January 2008, the first defendant filed a defence to the amended statement of claim denying the agreement and each of the essential allegations against him; (b) On 4 February 2008, the plaintiff was ordered to file and serve its evidence in support of its claim on or before 17 March 2008. It did not comply;

(c) On 22 April 2008, the plaintiff was placed into voluntary administration and on 26 June 2008 Mr Max Donnelly was appointed as its liquidator;

(d) On 12 June 2008, the first defendant's solicitors gave notice that they would seek to have the proceedings be dismissed;

(e) On 1 July 2008, the plaintiff sought and obtained an adjournment to 17 July 2008. On 10 July 2008, the first defendant's solicitors wrote again stating that they would seek to have the proceedings dismissed on 17 July. On 17 July 2008, the plaintiff sought and obtained a further adjournment until 7 August 2008;

(f) On 7 August 2008, the proceedings were again adjourned to 9 October 2008. On 9 October 2008, the proceedings were again adjourned to 18 November 2008;

(g) On 18 November 2008, Brereton J ordered that Reliance Financial Services NSW Pty Limited be substituted as plaintiff for Reliance Financial Services Pty Limited and that leave be granted to file a second amended statement of claim. He also ordered that the plaintiff serve the evidence on which it relied by 22 December 2008. It did not comply.

2009 8 During 2009, the principal steps in the proceedings were as follows:

(a) On 10 February 2009, the proceedings were listed for the purpose of the allocation of a hearing date. By that date, the plaintiff had not filed its second amended statement of claim. Nor had it filed the evidence on which it relied, despite having been ordered to do so on 4 February and 18 November 2008; (b) On 10 February 2009, an order was made that the plaintiff file and serve its second amended statement of claim and any evidence on which it relied by 10 March 2009. It did not comply;

(c) On 21 April 2009, the plaintiff served its second amended statement of claim but did not serve its evidence in support;

(d) The second amended statement of claim contained allegations, among others, that Reliance Financial Services Pty Limited (in liquidation) relevantly operated as a lender which advanced money to clients of Cassaniti & Associates, by drawing on funds in bank accounts of Cassaniti & Associates which were then credited back to Cassaniti & Associates' loan with Reliance by way of partial satisfaction of the indebtedness of Cassaniti & Associates to Reliance as trustee of a trust;

(e) On 28 May 2009, the plaintiff was again ordered to serve the affidavit evidence on which it relied. The time by which it was required to do so was 4 June 2009. It did not comply;

(f) On 16 June 2009, the first defendant's solicitors sought further and better particulars of the second amended statement of claim; (g) On 16 July 2009 the court ordered the plaintiff, among other things, to respond to the request for further and better particulars by 30 July 2009. The plaintiff was also ordered once again to serve any affidavit evidence on which it relied. The time by which it was now required to do so was 13 August 2009. It did not comply with either direction. 9 On 29 July 2009, the first defendant died and on 4 December 2009 his widow obtained probate of his estate. 10 On 9 December 2009 Mr Griffiths' widow caused a defence to the second amended statement of claim to be filed. It denied that Reliance Financial Services Pty Limited (in liquidation) ever lent money to Mr Griffiths; that Mr Griffiths was ever a client of Cassaniti & Associates; that Mr Griffiths ever entered into transactions with Reliance Financial Services Pty Limited (in liquidation) either as pleaded or at all; that Mr Griffiths had ever received any loans from Reliance Financial Services Pty Limited (in liquidation) or from the trust; and that Mr Griffiths was in partnership with Tom Lesic in a business trading as Western Used Family Cars.

2010 11 From January to July 2010, the principal steps in the proceedings were as follows:

(a) On 25 March 2010, the court again ordered the plaintiff to serve any affidavit evidence upon which it relied. The time by which it was required to do so was 15 April 2010. Once again it did not comply;

(b) On 27 May 2010, the first defendant's solicitors filed the notice of motion that is currently before me, seeking an order that the proceedings be dismissed. On 7 June, the return date for that application, the plaintiff was again ordered to file its affidavit evidence. The time by which it was required to do so was 18 June 2010. It did not comply. This was the seventh court order for the filing of the plaintiff's evidence with which it did not comply;

(c) On 8 July 2010, being the day before the then adjourned date for the hearing of the dismissal application, the plaintiff finally served its affidavit evidence in support of its substantive claim. 12 By this stage, three years had elapsed since the commencement of the proceedings. The plaintiff's affidavits that were eventually served were few and insubstantial. No apparent or plausible reason for those affidavits being three years in gestation was revealed. 13 Significantly, one of those affidavits set out facts and circumstances on which the plaintiff appeared to rely for a cause of action that was neither pleaded nor alluded to in the statement of claim, the amended statement of claim or the second amended statement of claim. That cause of action related to an alleged loan made by the plaintiff to Griffiths on 9 March 2001 in the sum of $120,500.

July 2010 - Degeneration 14 Since July 2010 the proceedings have degenerated to a farcical level, largely concerning subpoenas and documents. I will briefly summarise what has occurred:

(a) On 31 July the defendant served notices to produce and subpoenas on the plaintiff which were stood over from time to time without the production of any documents by the plaintiff;

(b) On 24 August the plaintiff served on the first defendant a notice of motion to set aside the subpoenas. That notice of motion had been filed on 19 August without informing the first defendant, and was returnable on 25 August, namely, on the day after service;

(c) On 25 August directions were made for the filing by the plaintiff of evidence in support of its subpoena application. It did not comply;

(d) On 17 September directions were made requiring the plaintiff to file and serve evidence in support of its subpoena application. It did not comply;

(e) On 27 October the Registrar dismissed the plaintiff's subpoena application with costs;

(f) On the day before the dismissal of its subpoena application, the plaintiff appeared to retaliate by serving another notice of motion dated 22 October 2010. The substance of this application was that the first defendant had waived legal professional privilege because his counsel had stated in court that the defence to the second amended statement of claim "had been prepared on instructions obtained from Mr Griffiths before his death". This absurd application by the plaintiff remains extant;

(g) After the dismissal of the plaintiff's subpoena application, the first defendant sought the production of the documents which were the subject of his subpoenas;

(h) Because the plaintiff did not respond to the first defendant's letters requesting the production of documents; the proceedings were relisted on 10 November 2010. On that date the plaintiff did not appear;

(i) The Registrar directed that a notice be issued to the plaintiff, pursuant to Uniform Civil Procedure rule 13.5. That notice informed the plaintiff that "the proceedings may be dismissed if there was no attendance by or on behalf of the plaintiff at the adjourned date". The adjourned date was 22 November;

(j) On 22 November, at the adjourned hearing the plaintiff was represented by an uninformed and largely uninstructed agent. The Registrar expressed serious concerns about the plaintiff's conduct and made an indemnity costs order against it;

(k) On 24 November the first defendant's solicitors received a letter from Mr David Cassaniti, stating that he had "sacked Mr Kekatos", the plaintiff's solicitor;

(l) On 1 December Mr Kekatos, the solicitor apparently sacked by the plaintiff on 24 November, served a notice to produce on the first defendant. Apart from the fact that Mr Kekatos appeared to have been reinstated, or had reinstated himself, the remarkable feature of this notice to produce was that it duplicated the plaintiff's notice of motion dated 22 October;

(m) Although the plaintiff's subpoena application was unsuccessful and was dismissed with costs on 27 October, neither the plaintiff nor Mr Sam Cassaniti, nor Mr David Cassaniti, has produced any documents in answer to the subpoenas that were served on 31 July.

15 In addition to all of these matters, there has been a history of the plaintiff's solicitor simply failing respond to correspondence from the first defendant's solicitor. This has occurred throughout the proceedings, but even more so in recent months. Among others, letters from the first defendant's solicitor dated 27 October, 2010 3 November, 2010 8 November, 2010 and 3 December, 2010 appear to have been ignored. On some of those dates there were several letters to none of which there was a response.

The Act and the Rules 16 Section 56(1) of the Civil Procedure Act (CPA) provides that the overriding purpose of the CPA and the Rules of Court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 56(2) provides that the Court must seek to give effect to the overriding purpose when it exercises any power given to it by the Act or by the Rules of Court, and when it interprets any provision of the Act and the Rules. 17 Further, Section 56(3) provides that a party to civil proceedings is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to "comply with directions and orders of the Court". This is important. It means that, for example, once a plaintiff chooses to institute a proceeding in the court, it can no longer be guided solely by perceived strategic considerations relevant to its own position. It forfeits that commercial right and becomes part of a multilateral legal process which among other things, imposes a duty on each party to assist the court and further the overriding purpose. That duty will not necessarily always coincide with a party's perceived commercial interests. 18 Importantly, Section 59 provides that: In any proceedings, the practice and procedure of the Court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 19 Section 61 of the CPA provides that the Court may, by order, give such directions as it thinks fit for the speedy determination of the real issues between the parties to the proceedings. In particular, Section 61(3)(a) of the CPA provides that if a party to whom such a direction has been given fails to comply with the direction, the Court may, by order, dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim. 20 Finally, Rule 12.7(1) of the UCPR provides that: 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.

21 The principles that underpin these new statutory provisions were explained by the Court of Appeal in Bi v Mourad [2010] NSWCA 17. Young JA said at [31] that the regime in Sections 56-60 of the CPA "requires the court to turn away reluctant gladiators and to ensure that they either prosecute their claims in due time or get sent away from the court". He added at [33]: Primary judges must consider themselves free to exercise their discretion in this sort of case without the thought in the back of their mind that this Court will weakly say 'Oh, we had better let the claim be adjudicated and the other side can be satisfied by an order for costs'. This is not the clear policy of the legislator in the Civil Procedure Act. Non-Compliance with Orders 22 It is obvious that in any given case the exercise of discretion given to the Court by Section 61 (3) (a) and Rule 12.7(1) may be informed by a variety of factors. One factor is a history of non-compliance with court orders. This is particularly so where non-compliance indicates an unwillingness or inability to conclude the proceedings, or to ready them for hearing. In this case, among other things, the plaintiff has failed to comply with court orders requiring it to serve affidavit evidence by specified dates on seven separate occasions over three calendar years, namely by 17 March and 22 December 2008, 10 March, 28 May and 16 July 2009, and 25 March and 7 June 2010. There is no credible explanation and no adequate justification for these defaults and the delays that they have caused. By themselves, and without even turning to the other factors, they might well justify dismissal. But there are other factors.

Prejudice to Opposing Party 23 One other factor is the prejudice that has been suffered by the first defendant. Mr Griffiths has died. He did so before any affidavit evidence in the plaintiff's case was served. When that evidence was served almost a year after his death, it referred to facts and circumstances that were neither pleaded nor alluded to in the three versions of the plaintiff's pleading that was extant during his lifetime. I am quite satisfied that the nature of the issues in dispute makes this a case where the delay in prosecution and the death of Mr Griffiths will handicap the first defendant in the conduct of its defence. 24 The plaintiff contended there were reasons to suppose that Mrs Griffiths should be aware of facts germane to the existence and the terms of the loan agreements in dispute. It was therefore submitted that there was no real prejudice arising from the death of the first defendant. This is wholly speculative and unlikely. She is a bus driver. There was no evidence of her involvement in her husband's business activities. In particular, the likelihood of her having any relevant knowledge was contradicted by the oral evidence of her solicitor who gave evidence on their dismissal application. 25 Further, somewhat desperately, the plaintiff submitted that because the death of Mr Griffiths was preceded by illness, it was likely that a proof of evidence had been obtained from him and that therefore any prejudice was diminished because the proof (if it existed) could be received in evidence. This was merely guesswork heaped on speculation. The evidence does not permit me to reach any meaningful judgment on this contention. It hardly assists the plaintiff however given the sequence of events to which I referred in paragraph [13] above.

26 There are other well known general considerations that are relevant to the exercise of discretion in this case. The time and facilities of the Court are publicly funded resources. Inefficiencies by a party in the use of those resources are not matters that can or should be ignored: Aon Risk Services v ANU (supra) at [5]. The competing claims by other litigants for that time and those facilities always form part of the context in which the discretion must be exercised. While court resources are finite, the number of litigants is ever increasing. The broader public interest in the efficient allocation of those resources among all suitors is a necessary consideration. Aon Risk Services v ANU (supra) at [26]. 27 The consequence of an approach that requires consideration of the broader context, was explained in Sali v SPC Ltd (1993) 67 ALJR 841 at 844 where Brennan, Deane and McHugh JJ stated: What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources.

Maintenance of Confidence in Judicial System 28 Another factor of the highest order is the need to maintain public confidence in the judicial system. Delay causes confidence in the administration of justice to erode. It reflects adversely on a sophisticated legal system such as ours. It diminishes the respect on which that system depends. Delay should be minimised, preferably expunged, and occasionally penalised. The mischief resulting from unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their immediate effect on the parties and the proceedings. The damaging effects can be systemic and insidious. That is why Allsop P said in Bi v Mourad (supra) at [47]: "Delay and case backlog are not merely factors affecting the costs of delivering justice; they corrode the ability of the courts to provide individual justice". 29 And it is for similar reasons that Gleeson CJ said in State Pollution Control Commission v The Australian Iron and Steel, (1992) 29 NSWLR 487 at 494: "The flow of cases through the courts of this State is now managed by the judiciary and not left to be determined by the parties and their lawyers." It is also no doubt why he approved the well-known statement of Lord Griffiths in Ketteman v Hansell Properties Limited [1987] AC 189 at 222, that:

There will be cases in which justice will be better served by allowing the consequences of the negligence of the lawyers to fall upon their own heads … "

Duties to the Court 30 A third general factor is the duty that the parties and their legal representatives owe to the court. Section 56(3) of the Civil Procedure Act provides that a party is subject to a statutory duty to assist the court to achieve the overriding purpose of just, quick and cheap resolution. I have referred to the width and significance of this duty in paragraph [17] above. And of course, legal representatives, particularly counsel, have a separate duty under the general law. I have explained elsewhere that counsel 's duty is additional to their duty to the party whom they represent. It may sometimes require them to restrain the mis-directed enthusiasms of their client. This duty is a legal duty, not merely a rule of practice or etiquette. See Thomas v SMP [2010] NSWSC 822 at [19] to [22]. Stress and Strain of Litigation 31 A fourth consideration is that justice cannot always be measured in money or by reference to the supposed strength of a claim or defence. The relevance of the strain and stress that delay in the resolution of litigation imposes, not only to personal litigants, but also to corporations, has now been recognised and accepted at the highest appellate levels in the United Kingdom and Australia. See Aon Risk Services v ANU (supra) at [100] and [101]; Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 155; Ketteman v Hansel Properties (supra) at 220. As the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said in Aon Risk Services v ANU (supra) at [101]: And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedure Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects would extend to other litigants who are also seeking a resolution in their proceedings.

Plaintiff's Submissions 32 The particular and general considerations to which I have referred in paragraphs [16] to [31] above all point inexorably to the conclusion that these proceedings should be dismissed. In its response, the plaintiff's primary submission was that this is a case which has been allowed to "trundle" along. It accepted that the delays were largely its fault. But it contended that the first defendant should also accept some responsibility. It suggested that Mr Cassaniti was so busy with other litigation that he had failed to give this proceeding sufficient attention. 33 This was a lame excuse. No proceeding should be allowed to "trundle along" - partly because of the effect, if nothing else, on other proceedings and other litigants. The submission became bizarre when, in attempting to justify the delays, the plaintiff relied on a stabbing incident involving an employee which Mr Cassaniti apparently witnessed in January 2010. It became surreal when I was pressed with evidence of Mr Cassaniti's psychotic state following the stabbing incident. It was said that I should infer that the plaintiff's solicitor had been handicapped in obtaining instructions because of Mr Cassaniti's unstable mental condition. But there were several affidavits by the solicitor, Mr Kekatos, and neither contained any statement which could be construed to support this contention. 34 I have not overlooked the fact that there was delay in 2008 caused by the administration and liquidation of Reliance Financial Services Pty Ltd and delay in 2009 while probate was obtained of the estate of Mr Griffiths. But they do not explain or justify the serial breaches of court orders and the plaintiff's general disregard for the underlying principles and duties set out in Sections 56-60 of the CPA.

Other Considerations 35 There are several further issues of law that I should mention that are relevant to the exercise of my discretion. First, it is not the law that in order to justify dismissal of proceedings the defaults and delays must be shown to be "intentional and contumelious". See Micallef v ICI Australia Operations Pty Ltd (2001) NSWCA 274 at [50] - [51]. But in any event, the plaintiff's conduct in this case has been at least contumelious - in the sense of insolent, dishonourable, flagrant or opprobrious.

36 Second, it is not sufficient that the plaintiff claims that it has now purged its derelictions of duty and has finally served the evidence on which it relies: Micallef v ICI Australia Operations Pty Ltd (supra) at [89]-[91]. I doubt the reliability of this claim in any event, given the past conduct of the plaintiff and its solicitors. 37 Nor does it matter that the effect of my order will be to terminate the plaintiff's case without it being heard on the merits. As Heydon JA (as he then was) said in Micallef v ICI Australia Operations (supra) at [85]-[86]: 85 The fact, considered by itself, that the order had the effect of terminating the plaintiff's whole case without its ever having been considered on the merits, is not necessarily unreasonable or unjust. Orders made under Part 18 rule 3(1) will often be made when the limitation period has expired. The rule contemplates that the result which has come to pass here will not infrequently come to pass. If the fact of terminating the whole case is to lead to the conclusion that the result was unjust or unreasonable, some additional ingredient must be found. 86 The additional ingredient cannot be found in the fact that on 25 February 1999 the plaintiff supplied the particulars. That circumstance did not alter the fact that she had, in breach of District Court orders, failed to do so for many months before that day. She had done so, it may be inferred, only because of the pressure brought to bear by the defendants' Notices of Motion and the court's indication that on 26 February 1999 she would have to show cause why an order under Part 18 rule 3(1) should not be made.

Rejection of Affidavits 38 Lastly, the plaintiff relied on three affidavits which it served only in the last few days. Those affidavits referred to conversations and annexed documents which provided some inferential and tangential support for the plaintiff's claim. Much of it related to the claim for $120,500, which, as I have observed, was not pleaded. However, to use a phrase of Sir Owen Dixon, this evidence amounted to little more than "inexact proofs, indefinite testimony or indirect inferences". It was not compelling. 39 Further, and in any event, the affidavits were served in breach of the directions made for filing affidavits in support of the substantive claim, and in breach of the directions for filing affidavits in relation to the dismissal application. It was therefore necessary for the plaintiff to seek leave pursuant to rule 10.2(2) in order to rely upon those affidavits. In the circumstances, I have concluded that I should not grant leave. There was no sufficient explanation for the failure to comply with the orders of the court and the probative quality of the evidence was far from convincing.

Conclusion 40 For those reasons I have concluded that it is an appropriate exercise of my discretion to dismiss these proceedings. Delay is not merely the enemy of justice, it is the antithesis of justice. Lord Denning once described it as the denial of justice: Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 245. The repeated non-compliance by the plaintiff is neither justifiable nor reasonably explicable. The delays and defaults have been prolonged, inordinate and inexcusable. They represent an undermining of the policy and principle that inform Sections 56-61 of the CPA. They exemplify conduct that has a tendency to diminish public respect in the system of administration of justice under which we operate. 41 Further, I am satisfied that the plaintiff's delay has resulted in prejudice to the conduct of the first defendant's case. And I am doubtful about the willingness of the plaintiff to proceed diligently to a hearing. I am certainly sceptical about the competence and ability of the plaintiff's solicitor to bring about a conclusion to the proceedings efficiently and expeditiously. 42 I accept, of course, that a balance must be struck between the plaintiff and the first defendant: see Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405 at 411-412, approved in Micaleff v ICI Australia (supra) at [51]. In this case the balance favours the first defendant. By its conduct of these proceedings to date the plaintiff has forfeited the right to any further indulgence. Its defaults have been too numerous, and the consequences too prejudicial, to justify the continuation of proceedings. The widowed executrix of Mr Griffiths should not have to endure any longer the uncertainty of the plaintiff's conduct of the proceedings. 43 I therefore order that the proceedings be dismissed with costs. oOo

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