The following are short reasons for granting the cross-claimant's application to adjourn the hearing of his claim for professional negligence against the cross-defendant, the firm of solicitors which represented him in a property settlement with his former wife.
[2]
The relevant provisions and principles of law
Adjournments are not granted lightly in the District Court, particularly where the hearing forms part of a country circuit, where other litigants, as well as court resources, are particularly likely to be adversely impacted by adjournment applications brought at the last minute. The relevant principles for the adjournment of trials are set out in ss 56 - 62 Civil Procedure Act 2005 (NSW).
Section 58 Civil Procedure Act 2005 (NSW) provides:
"58 Court to follow dictates of justice
(1) In deciding:
(a) whether to make any order or direction for the management of proceedings, including:
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court:
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant:
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56(3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case."
Warwick Hill Pty Ltd trading as Warwick Hill Lawyer v Lovell [2019] NSWDC 248 | Case summary | Zoe
These principles underlie all civil case management in New South Wales and are intended to be applied in a consistent fashion. However, when applying these principles, it is helpful to look back at the history of case management in order to determine how these rules came about and how they should be applied.
For most of the twentieth century, no matter how bad the delay, courts were reluctant to strike out claims for want of prosecution. In Allen v Sir Alfred McAlpine [1968] 1 All E R 543, Diplock LJ (at 556) spoke of the need to "temper logic with humanity". Many litigants were seen as inexperienced and "helpless before the mysterious arcana of the law" (Diplock LJ at 556). As a basis for case management of delay, views of this kind now appear outdated.
As a result of views of this kind, as well as judicial reluctance to interfere in the adversary process, delay in many courts was endemic. As to the District Court, the NSW Parliament Briefing Paper by Honor Figgis, "Dealing with Court Delay in New South Wales" (Briefing Paper No. 31/96, Parliamentary Library, Parliament of New South Wales, 1996) 12 noted a seminar paper by Judge Garling (the List Judge for many years) acknowledging delays of 10 - 15 years were not unknown (see His Honour Judge A Garling, Litigation Reform: The New South Wales Experience, Paper presented at the New South Wales Legal Convention Forum on Reinventing the Courts, 1 November 1996). Although pre-internet, Ms Figgis's report to the NSW Parliament listed a number of causes which are still problems today: opaque and unhelpful pleadings, absence of uniform court rules and practices, prolix discovery, adjournments, inadequate computer facilities, what Ms Figgis called the "reluctance or lack of power of judges" to take a more active role in pre-trial proceedings, and the inherent weaknesses of the adversarial system. These delays were continuing despite the decline in numbers of civil and criminal trials (see Appendix B to the NSW Parliament Briefing Paper; this is sometimes referred to as "the vanishing trial syndrome").
The resultant public concern about delay led to case management procedures being put forward, in a very generalised way, as a means of "moving away" from the traditional adversarial control of the proceedings - in other words, taking control of the litigation out of the hands of the lawyers and giving the court greater supervisory powers.
Unfortunately, most of these early attempts at case management were simply a series of timetables, of an increasingly short nature when there was delay, to meet a predetermined deadline. This system was asserted by some academics to be a failure because "many of the goals of case management overlap with the traditional goals of pleadings, so the courts have in a sense created redundant regimes on parallel tracks" (Thornburg and Cameron, "Defining Civil Disputes: Lessons from Two Jurisdictions", (2011) Melbourne University Law Review 208 at 210). Unfortunately, the timetable method is still the principal case management today, as is reliance on the trial as the ultimate arbiter (the "docket system") with the result that cases can run for decades (for a recent example, see Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (Permanent Stay) [2019] FCA 802).
However, changes in legal practice, particularly in the area of commercial disputes, led to an increasingly accepted view that case management can be better managed by using from methods other than fast timetables. The parallel development of computer technology in courts and specialist lists play an important role, but the principal change has been the increasing role of mediation. As a result, case management is now moving away from stopwatches and pleadings arguments, and complaints from a party that the case must be ready because there have been timetables put in place need to be seen in this light. That is particularly relevant in these proceedings because what becomes clear, from an examination of the procedural history, is that despite compliance with many timetables, the proceedings are not really ready for hearing at all.
This is not a criticism of what has occurred in previous mentions and status conferences. Successful case management remains a very imprecise topic. In 2012, the Honourable Wayne Martin AC ("Managing Change in the Justice System", 18th AIJA Oration, 14 September 2012 at p. 48) identified the essence of modern case management as focus upon early issue identification, and the reduction of expense and delay by removing procedures which are "disproportionate" to a just outcome. However, his Honour went on to point out that:
"…there is one issue that is common to both cost and delay, and that is the almost total lack of any empirical data available within Australia for the purpose of ascertaining whether the forms of intensive case management which have been adopted in various courts over the last 15 years or so have in fact succeeded in reducing cost, or delay, or both, or neither. Courts and litigants are investing substantial resources into intensive case management. It is most unsatisfactory to be left to anecdotal experience and intuition in order to assess whether these investments are paying dividends."
I have set out this short history of case management principles in order to demonstrate that running a case should not be restricted to the meeting of timetables. It is necessary to take a holistic view of the issues for determination, the position of the parties and the conduct of the litigation to date. Compliance with timetables is only a part of the "just, quick and cheap" principle enunciated in s 56.
[3]
A short history of these proceedings
The settlement of the cross-claimant's matrimonial dispute occurred on 24 July 2013. Three years later, his former solicitors (originally the plaintiff, but now the cross-defendant) commenced proceedings in Maitland Local Court for the recovery of their fees of $42,706.99. Mr Lovell, the defendant in those proceedings, filed a defence he drafted himself, which essentially claimed that his proceedings had been conducted negligently by his former solicitors and sought to defend and cross-claim accordingly. As a very substantial sum (currently $574,156.05) for losses occasioned by his former solicitor's negligence was pleaded, the proceedings were transferred to Newcastle District Court on 31 January 2017, where they were the subject of case management timetables.
It became clear very early in the litigation that the plaintiff's claim for legal costs could not proceed because the costs had not been assessed, and the plaintiff's claim for $42,706.99 was discontinued on 23 February 2017 (although the discontinuance does not appear to have included any costs orders being either considered or determined).
There were then a further 14 timetables before the proceedings were set down for hearing in these sittings. In the course of complying with these timetables, Mr Lovell retained experts on professional negligence, economic loss and health injury issues, all of which were served. He also amended the cross-claim, although not with much success, in that Mr Lloyd submits (and I agree) that it is a discursive and at times impenetrable document. Nevertheless, it does manage to paint a picture of unreadiness at a final hearing, pressure to settle, instructions not followed and assets not properly itemised. As Mr Lloyd points out, Mr Lovell's difficulty in relating these claims to acts of professional negligence may, however, result in the court drawing the conclusions referred to by Mr Alexander in the conclusions to his expert report filed on 22 January 2019. However, that is an issue for determination at the hearing.
Although Mr Lovell has on occasions failed to comply with timetables, he has prepared these proceedings for hearing and there should be no difficulty in that hearing proceeding in these sittings. The reason for the cross-claimant's application to vacate is not unreadiness but a series of tragic events in his personal life involving all the members of his immediate family. I will not set out the details, other than to say that Mr Lloyd, who formally opposed the application for adjournment on his client's behalf, very properly acknowledged the difficulties that the cross-claimant has.
However, the real problem is that these proceedings are not ready due to the many areas of uncertainty in the pleadings and the evidence. Mr Lloyd drew my attention to some of these, advising that the result could well be a hearing going beyond the 4-day time period allotted, a significant difficulty in country circuits. Those difficulties, in my view, are just as important as the issues raised by Mr Lovell.
As the judge case-managing these sittings, I am aware of the difficulties that will be created by the adjournment of these proceedings. It has required consideration of a variety of solutions, ranging from transfer to Sydney, readjustment of trials in another sittings in Newcastle and three dates for case management in these sittings. These steps all come at a cost in terms of court resources as well as inconvenience for parties in other litigation in the very busy civil list in the Newcastle registry.
There are compelling reasons for revisiting the case management of these proceedings. First, the parties have never been to mediation and one of the benefits of the adjournment of these proceedings is that a mediation in Newcastle can be arranged. The success of the District Court's free mediation system is widely recognised in the profession and is one of the key factors in this Court's successful case management of proceedings. Second, it gives Mr Lovell an opportunity to revisit his pleadings and to try to identify not only what the negligent acts were but also the quantum of loss, as well as to reconsider some of his expert evidence. Third, given the possibility that the plaintiff/cross-defendant may still seek assessment of costs for the purpose of seeking to recover legal fees, Mr Lovell (who raised this issue in court) can seek to be reassured that this litigation will finally put an end to his travails with his former solicitors if this is included in the mediation.
Part of the case management difficulty has been that Mr Lovell has represented himself, although from time to time he has sought advice from a solicitor who briefly acted for him at one time. Case management of litigation involving litigants in person is an issue of increasing significance for this court in the future and there are no easy solutions available. All that the Court can do is to endeavour to deal with this on a case by case basis, as I have sought to do in the present circumstances.
However, this Court's resources are stretched to the limit when applications of this kind are brought. The principal purpose of providing these reasons for making my orders is to warn Mr Lovell that this is an opportunity that will not come his way again. Now that he has a mediation date and a special fixture for hearing, only exceptional circumstances would permit any further adjournment of the hearing date. In addition, given the very late notice he gave for his application, he should be on notice that any obligation for him to pay the costs thrown away by reason of vacating the hearing date is not a topic he should disregard.
[4]
Orders
1. On the application of the cross-claimant, by reason of his own and his principal witnesses' serious health problems, the cross-claimant's application for the adjournment of these proceedings is granted.
2. Cross-claimant to file and serve an Amended Cross-Claim by 13 June 2019.
3. The cross-claimant to serve further expert evidence on the cross-claim by 27 June 2019.
4. The cross-claimant by 6 June 2019 at 4:00pm is to serve a document of no greater than 3 pages in length which: (a) sets out a brief statement of each complaint he makes against the cross-defendant; and (b) sets out the loss he alleges he suffers as a result of each complaint and the link between the complaint and the loss.
5. Proceedings are not to be adjourned again unless there are exceptional circumstances.
6. Pursuant to s 26 Civil Procedure Act 2005 (NSW), direct the parties to attend for mediation on Tuesday 2 July 2019 before an Assistant Registrar of this court in Newcastle.
7. Proceedings fixed for hearing in the Newcastle sittings commencing Monday 21 October 2019.
8. Proceedings listed for directions on 11 June 2019 before Gibson DCJ.
9. Costs reserved.
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Decision last updated: 12 June 2019
Parties
Applicant/Plaintiff:
Warwick Hill Pty Ltd trading as Warwick Hill Lawyer