On 1 September 2015 I made orders pursuant to r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 ("the Rules") dismissing, in large part, the proceedings brought by the plaintiffs against the defendant. In respect of one remaining paragraph of the statement of claim I made an order pursuant to r 14.28(1)(b) of the Rules striking out that paragraph, but granted leave to the plaintiffs to file and serve an amended statement of claim (restricted to the cause of action pleaded in that paragraph) by 15 September 2015. I also made consequential orders requiring that each of the plaintiffs be notified of the orders that I had made. The reasons which led me to make those orders are more fully set out in my previous judgment: Sandra Lazarus, Michelle Lazarus and Jessica Lazarus v Director of the Independent Commission Against Corruption [2015] NSWSC 1265.
In accordance with my previous orders, the matter has come before me again today for further directions. The plaintiffs have been called outside the Court three times. They have not appeared. Mr Chrysostomou of counsel, who appears on behalf of the defendant, has tendered a letter of 1 September 2015 under the hand of his instructing solicitor, Karen Fox, addressed to the plaintiff Sandra Lazarus informing her of my previous orders. I am informed by Mr Chrysostomou, and I accept, that a letter in terms identical to that which he has handed to me this morning was also sent to each of the plaintiffs Michelle Lazarus and Jessica Lazarus. I also accept that the same correspondence was sent to the email address of the plaintiff Sandra Lazarus at 2.33pm on 1 September 2015, that being the afternoon of the day on which the orders were made.
Against the background which is more fully set out in my earlier judgment, having regard (in particular) to the failure of the plaintiffs to comply with the orders that I made on the previous occasion, and also having regard to their failure to appear before the Court today, Mr Chrysostomou has sought an order that the balance of the proceedings be dismissed. In advancing that application he has acknowledged that there is no motion formally before the Court seeking such an order. However, he pointed out that the provisions of s 86 of the Civil Procedure Act 2005 (NSW) ("the CPA") confer power on the Court to make an order of its own motion. Mr Chrysostomou has submitted that in light of the background to the matter I should exercise the power conferred by that section and dispense with the necessity to file a formal notice of motion.
Assuming that I was prepared to accede to that course, Mr Chrysostomou further submitted that the proceedings ought be dismissed pursuant to r. 12.7 of the Rules which confers power on the Court to dismiss proceedings for want of due despatch. Mr Chrysostomou submitted that the delay in the filing of an amended statement of claim in accordance with my previous order was such as to bring the circumstances of this case within the provisions of that rule. He submitted that it was necessary to view that delay in the context of the proceedings as a whole. He pointed out, in particular, that not only had the plaintiffs failed to appear before the Court today, they had failed to comply with the order that I had previously made requiring them to file an amended statement of claim. He also relied on the broader history of the proceedings thus far, and upon the previous failures on the part of the plaintiffs to comply with orders of this Court.
Section 86 of the CPA is in the following terms:
86 Orders
(cf Act No 52 1970, section 21; Act No 9 1973, section 6; SCR Part 1, rule 11A)
(1) The power of the court to make orders in relation to proceedings, whether under this or any other Act or otherwise, includes the power:
(a) to make orders by way of leave or direction, and
(b) to make all or any orders on terms.
(2) The power of the court to make orders on terms is taken to be a power to make orders on such terms and conditions as the court thinks fit.
(3) Subject to this Act and to rules of court, the court may make any order that it has power to make either of its own motion or on the application of a party or any other person entitled to make such an application.
(4) Nothing in this Act limits the operation of section 43 of the Interpretation Act 1987.
Section 86(3) confers a power on the Court to (inter alia) make an order of its own motion. In my view, in the circumstances of this case and in light of those aspects of its history to which I have referred, and for the reasons which follow, it is an appropriate exercise of the discretion conferred by s 86(3) that the orders sought be made in the absence of a notice of motion.
Rule 12.7 of the Rules which is in the following terms:
12.7 Dismissal of proceedings etc for want of due despatch
(cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4)
(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.
(2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.
Note : See rule 42.20 as to the effect of dismissal with respect to costs.
Delay is, in effect, the catalyst for the exercise of the power under r. 12.7. There is some English authority which supports the proposition that the power to dismiss proceedings under that rule should only be exercised where the relevant default has been intentional and contumelious, or alternatively where there has been inordinate and inexcusable delay: see for example Birkett v James [1978] AC 297 at 318. However, that approach has been rejected in this State, on the basis that it constitutes the placement of an undue restriction upon the power conferred by the rule: Stollznow v Calvert [1980] 2 NSWLR 749; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274.
In my view the failure on the part of the plaintiffs to comply with the Court's most recent orders has, given the history of the proceedings, resulted in delay which is sufficient to attract the operation of r. 12.7. It is important, in my view, to bear firmly in mind that for the further purposes of r. 12.7 of the delay should be assessed against the entirety of the circumstances of the proceedings. It would, in my view, be unduly restrictive to concentrate simply on the most recent period of delay in determining the present application. That period must be viewed against a background of what occurred before the Court on the last occasion, and what occurred prior to that. Viewed in that way, I am satisfied that the circumstances attract the application of r. 12.7.
In coming to that view I have had firmly in mind the stated overriding purpose in s 56 of the CPA. To allow these proceedings to continue would, in my view, be at odds with the facilitation of the just, quick and cheap resolution of the issues.
Accordingly, for those reasons I make the following orders:
1. The proceedings are dismissed.
2. The plaintiffs are to pay the defendant's costs of the proceedings as agreed or assessed.
3. Within 24 hours of receipt of a revised copy of my judgment, the solicitor for the defendant is to forward a copy of that judgment to each of the plaintiffs by prepaid post.
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Decision last updated: 23 September 2015
Parties
Applicant/Plaintiff:
Sandra Lazarus, Michelle Lazarus and Jessica Lazarus
Respondent/Defendant:
Director of the Independent Commission Against Corruption