JOHNSON J: Referred to me today as the Common Law Duty Judge is an application in proceedings between the Plaintiffs, Richard Craig Sutherland and Quadratus Pty Limited (Subject to Deed of Company Arrangement) (ACN 072 537 912) and the Defendant GHR Accounting Pty Limited.
The application made today by the Defendant is that the proceedings be dismissed under Rule 12.7 Uniform Civil Procedure Rules 2005 ("UCPR") upon the basis that the Plaintiffs have not prosecuted the proceedings with due despatch.
Mr Simpkins of counsel appears for the Defendant. Mr Sutherland, the First Plaintiff, is unrepresented and seeks to appear in the interests of the Second Plaintiff as well.
In support of the application, the Defendant has read the affidavit of Laura Kate Reisz, affirmed 24 October 2019, and has provided a folder entitled "Defendant's Show Cause Hearing Bundle" which is MFI 2. In that folder are written submissions prepared by counsel for the Defendant, together with authorities and other pertinent documents.
Mr Sutherland has provided a two-page document (which is in the nature of a submission) which is MFI 1.
The evidence before the Court indicates the lengthy and protracted history of litigation commenced by Mr Sutherland against the Defendant. On 18 December 2015, Hall J dismissed the Plaintiff's claim against Macquarie Bank Limited, pursuant to Rule 13.4 UCPR, and the Plaintiff's Statement of Claim was also struck out with leave to replead the claim against the Defendant: Sutherland v GHR Accounting and Anor [2015] NSWSC 1946.
On 31 May 2016, the Defendant filed a Notice of Motion seeking an order dismissing the Plaintiff's Amended Statement of Claim under Rule 12.7 UCPR, or in the alternative, an order dismissing the proceedings pursuant to Rule 13.4 UCPR. That Notice of Motion came before Button J on 15 February 2017, and a further Notice of Motion came before Button J again on 7 April 2017. Button J's judgments with respect to aspects of these proceedings are contained in Sutherland v GHR Accounting [2017] NSWSC 100 and Sutherland v GHR Accounting (No 3) [2017] NSWSC 373.
Thereafter, a further Notice of Motion was filed by the Defendant, and other interlocutory steps were taken, with a number of adjournments being granted by the Court so that the Plaintiff, Mr Sutherland, could receive pro bono assistance to properly plead his case. In due course, the proceedings came before Harrison AsJ on 28 September 2018, and on 25 March 2019 her Honour gave judgment: Sutherland v GHR Accounting Group Pty Limited [2019] NSWSC 295.
Amongst the applications before her Honour at that time was an application by the Defendant under Rule 12.7 UCPR for dismissal of the proceedings for want of due despatch. Her Honour noted the protracted history of the litigation, with delay being largely due to Mr Sutherland's defective pleadings and his need to consult pro bono legal representation for assistance in drafting, together with lack of funds and health issues. However, her Honour declined to dismiss the proceedings for want of due despatch: Sutherland v GHR Accounting Group Pty Limited at [46]-[58].
Her Honour made various orders on that occasion which allowed a version of the Statement of Claim to go forward.
Since April 2019, orders were made on 15 May 2019 for the Defendant to make a request for further and better particulars, and for the Plaintiffs to respond to that request by 27 May 2019. The Plaintiffs have not provided a response to the request for further and better particulars. The matter came before the Court again on 17 June 2019, when an extension of time was granted for the Plaintiffs to provide particulars by 24 June 2019, and for discovery to be provided by 5 August 2019.
Thereafter, the Plaintiffs continued to fail to provide a response to the request for further and better particulars, and failed to provide discovery by 5 August 2019.
The matter came before the Registrar again on 12 August 2019, when a further extension of time was granted to the Plaintiffs for the purpose of giving a reply to the request for particulars and to provide discovery by 16 September 2019. There was a further failure to comply with those orders.
On 23 September 2019, the matter came before Registrar Bradford once again. The Registrar ordered that the Plaintiffs were to provide discovery, and to provide replies to the request for particulars by 21 October 2019. Registrar Bradford made a further order that the proceedings be stood over to 25 October 2019; and should the Plaintiffs not comply with the orders for discovery and for particulars, then the matter was to be referred on 25 October 2019 to the Duty Judge for the purpose of a show cause hearing with respect to the Plaintiffs' defaults, with the parties to be in a position to argue the show cause application.
It is pursuant to the order made on 23 September 2019, there being a continuing default on the part of the Plaintiffs with respect to discovery and particulars, that the Registrar referred the matter to me this morning.
The affidavit of Ms Reisz indicates that Mr Sutherland did, in fact, send an email on 21 October 2019. He noted that the documents and additional information were expected to be with Ms Reisz that day. Mr Sutherland continued:
"I am from a practical aspect of events 'under siege' and have found it difficult to comply with the timetable.
I will therefore require extra time to put the papers in order - as I am sure you will want the matter to be dealt with openly and fully.
I would seek your granting another calendar month to complete the provision of the requested documentation."
Ms Reisz responded by email dated 23 October 2019, indicating that there was no consent to a further extension, and that the application would be made as foreshadowed to the Duty Judge today.
On 23 October 2019, Mr Sutherland responded by email, in a manner which did not address the failures to comply with the requests for particulars and discovery. He stated, amongst other things, that he would "prosecute this matter vigorously", and then asserted a claim of "malfeasance and harm" that he had encountered, and suggested that "you agree to further time to provide the documents as opposing the extension may only (ultimately) delay the inevitable".
Today, there is no further evidence explaining Mr Sutherland's failure to comply with the orders of the Court. The submission of Mr Sutherland (in MFI 1) gives a type of history of the proceedings from his perspective. He does say, towards the end of the document:
"I would be more than happy to provide any documents which I have in my possession to both the Court and the defence team. However in order to do so I have to have the time available; I have to have the funds together to pay for the access and; I have to be able to go through the documented to put them together in an bundle [sic].
It seems to me that many of the documents that the defence team have requested are unnecessary, and the matter is complicated by the fact that I am currently under siege.
I wonder whether it would be better for the Court to move to summary judgment as I think that already sufficient evidence has been provided."
Today, Mr Sutherland has told the Court of difficulties he has had with being removed from his residential premises. He informs the Court that he is effectively homeless. He indicates that there are documents at a location he does not wish to disclose that bear upon the litigation. He has indicated that those matters in some way bear upon his failure to comply with the orders of the Court.
I note that Mr Sutherland, in his email to Ms Reisz of 21 October 2019, sought "another calendar month". This morning, Mr Sutherland has informed the Court that he does seek a further period of four weeks with respect to the orders of the Court presently breached.
Submissions to the Court this morning have also made clear that the nature of the obligations with respect to discovery and the response to the request for particulars involve the preparation of written responses in accordance with the UCPR, with appropriate responses being given in answer to the request for particulars, and an appropriate document being prepared concerning discovery.
If that had not been previously clear to Mr Sutherland, despite his involvement in this litigation for several years, it is clear now.
The starting point with respect to an application such as this is to recognise the obligations upon the parties and the Court under the Civil Procedure Act 2005 ("the Act"). Section 56 of the Act requires the parties to facilitate the just, quick and cheap resolution of the real issues in dispute, and requires the Court to take steps to achieve that overriding purpose. Other provisions in the Act bear upon the procedural approach to be taken, where there are, as in this case, clear and persistent failures to comply with orders of the Court.
Section 61 of the Act permits the Court to give such directions as it thinks fit for the speedy determination of the real issues in the proceedings. Section 61(3) provides expressly 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. Rule 12.7 of the UCPR provides expressly 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.
As I have already noted, Harrison AsJ declined to make an order under Rule 12.7 on 25 March 2019. Accordingly, the nature of the application and the powers available to the Court should be well known to Mr Sutherland against that background.
It is also clear that the power to order dismissal of proceedings for want of prosecution should not be lightly exercised. However, the Court should exercise that power if there is a proper basis for it, and will bear in mind the requirements on all litigants to comply with obligations under the Act and the UCPR.
As was observed in Udowenko and Ors v Chief Executive Officer, Board of Directors at St George Bank (No. 2) [2011] NSWSC 1122 at [120]-[121], the power to order dismissal of proceedings for want of prosecution falls expressly within the provisions in ss.56-61 of the Act and that on occasions it is appropriate for a Court to dismiss proceedings even though there has not been a hearing on the merits, in circumstances where there has been a failure to comply with directions.
I note as well the judgment of Macfarlan JA in Ghosh v Ninensm Pty Limited (2015) 90 NSWLR 595; [2015] NSWCA 334 at [40], concerning the exercise of the power to dismiss proceedings for want of due despatch under Rule 12.7 UCPR. Whether the power is to be exercised will depend upon the circumstances of the particular case, and any explanation which has been offered for the failure to comply with the orders of the Court.
I note as well the observations of Simpson J (as her Honour then was) in Hoser v Hartcher [1999] NSWSC 527 at [25], where her Honour emphasised that the exercise of the power will depend upon the delay and the impact of delay upon the Defendant's capacity properly to defend the claim.
There are a range of factors which bear upon the exercise of the power, which is a power of last resort. But as the Act and UCPR and the authorities make clear, it is a power to be exercised if there is a proper foundation for it.
The history of this litigation is very lengthy. There have been hearings and rulings made by Judges and Harrison AsJ as I have outlined. Despite that protracted history, in which Mr Sutherland has been unrepresented, the point has only been reached this year that the pleadings have closed.
The next step which the Defendant has understandably taken is to seek a response to a request for further particulars and discovery. These are important procedural features of civil litigation in this Court, and litigants such as the Plaintiffs have an obligation to participate in the litigation by complying with orders of the Court.
The failure to comply with orders of this type means that this litigation has stalled; that Mr Sutherland is not taking steps at present to comply with orders of the Court. Although the orders in this respect have been made only since May 2019, there have been repeated extensions given to the Plaintiffs by the Court, with it clear what would follow if there was a failure to comply.
There was an express indication of that type when the matter was before Registrar Bradford on 23 September 2019. Against that background, there was continuing failure to comply with the orders of the Court.
Mr Sutherland was on actual notice of what application would follow if he failed to comply with the orders. He did fail to comply with the orders, and the emails which he sent to Ms Reisz on 21 and 23 October 2019 provide no adequate explanation as to why he had failed to comply with the orders.
The matters raised today by Mr Sutherland do not really advance the matter further. He has determined to bring this litigation. Other difficulties he may be experiencing with life right now are regrettable, but the Court cannot effectively extend on some type of open-ended basis his obligation to comply with orders of the Court. There is no evidence of the matters raised by Mr Sutherland, although he has told the Court from the bar table what his present difficulties are.
I have determined on this approach. Although there is limited scope for optimism as to what may happen on a future occasion, the Court will accede to Mr Sutherland's request for four more weeks.
To allow that to occur, the Court will stand this application over part heard before me until 9.00 am on Friday, 22 November 2019.
An extension of time will be granted until 1.00 pm on 21 November 2019 for Mr Sutherland to comply with the orders with respect to particulars and discovery. If Mr Sutherland complies with those orders, then the next listing before me may be a relatively brief one. If Mr Sutherland fails to comply with those orders, then the matters which I have raised in this judgment would indicate that he would have likely reached the end of the line, given the multiple indulgences extended to the Plaintiffs against the background of this litigation. I will, however, grant this opportunity to him.
In determining to give what is a lengthy judgment today, I have sought to spell out the matters in my mind so that the parties are aware of where this hearing is up to, and what lies ahead with respect to the next listing.
I stand the hearing over part heard before me until 9.00 am on Friday, 22 November 2019, and the parties should expect that the hearing will commence promptly at 9.00 am that day, in a courtroom in this building. I will consider what course to take in the light of any steps taken (or not taken) by Mr Sutherland in the meantime.
I direct the Plaintiffs to comply with the orders of the Court with respect to particulars and discovery by providing responses to the Defendant by 1.00 pm on Thursday, 21 November 2019.
The costs of today are reserved until the next occasion.
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Decision last updated: 27 November 2019