Wayne Lawrence & Anor v Frances Gunner

EX TEMPORE Judgment 1HIS HONOUR: The Court has two notices of motion before it today. The first was filed by the defendant on 10 February 2014 seeking orders for review of a case management order made by Registrar Musgrave on 4 February 2014. The second motion is a motion filed on 17 February 2014 by the plaintiffs (who are self-represented) seeking a number of orders including for joinder of other parties to the proceedings, for the Court to refer the plaintiffs to pro bono assistance, for the defendant's legal fees in the proceedings to be capped and for asset preservation orders in relation to assets said to be in the control of one of the proposed defendants. 2The orders under review are: 1. Cross defendant to request particulars of Amended Cross Claim by 11/2/14 to be answered by 18/2/14. 2. Cross defence to be filed and served by 4/3/14. 3. Cross defendant to serve any further evidence on Amended Cross Claim by 25/3/14. 4. Any Notice of Motion amend (sic) Statement of Claim to be filed and served by 8/4/14 returnable on 15/4/14. 5. Stood over 15/4/14. The defendant seeks to set aside paras 2, 3, 4 and 5 of those orders. 3While there were a number of reasons advanced on behalf of the defendant as to why those orders should be set aside, and without any disrespect to the thoroughness of the submissions advanced by Mr Hourigan of Counsel on her behalf, the burden of the complaint was that the orders allowed too much time for the various steps to be taken, in particular for the filing of the notice of motion to amend the statement of claim. The dispute underlying these proceedings is a very unhappy family disagreement. Such disputes should obviously be resolved as quickly as possible and the defendant's concerns are entirely understandable. 4On the other hand, Mr Hourigan fairly indicated that the gist of the matters upon which he relies today were put to the Registrar, albeit in the necessarily constrained circumstances of what is almost inevitably a very long and busy list. In particular, Mr Hourigan is unable to point to any particularly serious prejudice - other than the concern about delay - which is occasioned to the defendant by the timetable that was ultimately ordered. He also conceded that his client's only recourse was to move for a review: there had been no change of circumstances since the orders had been made that would have warranted a straightforward relisting before the Registrar. 5The application before me today raises a fundamental matter of practice and procedure which, over and above its significance for the individual parties concerned, provides an opportunity for reflection about fundamental aspects of the Court's administration in the management of litigation. While every application must be considered on its merits and recognising that a review of a decision by a Registrar is not in the nature of an appeal, the Court of Appeal in Tomko v Palasty (No 2) [2007] NSWCA 369; (2008) 71 NSWLR 61 said (at [52]-[53] per Basten JA, Hodgson and Ipp JJA agreeing; see also Hodgson JA at [4]-[9]): 52 It follows that the proper approach to an application in relation to a decision of the Registrar is as follows: (1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19; (2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker; (3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review; (4) nevertheless, similar policy considerations may arise in relation to a review, including: (a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement; (b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and (c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review. 53 Although on review this Court should exercise afresh the power to extend time, it does not follow that the reasoning of the Registrar should be ignored, or that variations in the material presented to him and the evidence adduced in this Court are irrelevant. However because the matter now before this Court must be treated as an original application for an extension of time within which to appeal, arguably those matters should be entirely put to one side. As a result of the reluctance of Mr Palasty to embrace an application in this form, little attention was paid to these issues. The preferable course is to put them to one side and treat the matter as an application for leave to appeal out of time. 6The efficient and cost effective management of proceedings in the Court is premised upon case management being dealt with by a Registrar, except in certain specialist lists. That is both an attempt to achieve the most efficient distribution of work between the various levels of judicial officers in the Court and a recognition of the skill and experience of the Registrars in case managing matters. They have a demonstrated capacity to do so notwithstanding the often oppressive length of the list with which they have to deal and the consequential need for matters to be argued before them in a sometimes constrained fashion due to the time available. 7Timetabling decisions, which do not of themselves foreclose the substantive rights of parties, are the example par excellence of matters dealt with by Registrars where the Registrar's decision should be accorded considerable respect. It is impossible to lay down general rules. However, an application to review such a decision by a Registrar will generally face substantial difficulties by reason of the policy considerations identified by the Court of Appeal in Tomko. 8Without wishing to identify all of the circumstances which may justify an application for review, an application of this kind would need to demonstrate some real irrationality in the Registrar's orders or serious prejudice occasioned by the orders which was known to a party and raised at the time as a possible consequence of the orders that the Registrar was going to make. 9I emphasise that this is not intended, by any means, to be an exhaustive list. Rather, the efficient running of the Court means that particularly in relation to applications to review timetabling decisions, the need to maintain the integrity of the role of the registrars and their function in the Court will be given significant weight as a factor against upholding any such review. By all accounts registrars perform their case management role to a very high standard under pressured circumstances, 10This is also another way of saying that the Court does not want to see a practice arising of applications regularly being made challenging timetabling decisions. That would undermine the efficient conduct of the Court's business. In saying that, I am not intending to suggest that the particular decision that was made in this case to lodge the application for review was made inappropriately or for an improper purpose. 11For these reasons, I propose to dismiss the defendant's motion. Mr Hourigan submits that, in particular, because of the further directions that I propose to make in this matter, the appropriate outcome as to costs is for the costs of the motion to be the parties' costs in the cause. Mr Lawrence (appearing for himself and his wife) opposes that course. 12It seems to me that in this case justice will be achieved by the order for which Mr Hourigan contends. While I will dismiss the defendant's application for review, the day has not been wasted because it has brought forward the concession by the plaintiffs, not previously made and now able to be the subject of a direction, in relation to when the plaintiffs' amended statement of claim will at least be propounded in draft form. While not the result which the defendants may have had in mind, this will nevertheless potentially allow the progress of the matter to be accelerated while not interfering with the orders made by the Registrar. I would not have interfered with those orders in any event. 13That brings me to the plaintiffs' motion. Particularly as I will make a direction in relation to the service of a proposed amended statement of claim by the plaintiffs, most of the matters raised in the plaintiffs' motion are rendered premature. They could not be decided until the scope of the case sought to be made by the plaintiffs is set in stone. Furthermore, the matters which the plaintiffs have included in their notice of motion could not possibly otherwise have been listed in this list because their ventilation would, on any view, require at least half a day, if not a day. 14Nevertheless, I accept that the matters sought to be raised may need to be dealt with at a later stage of the proceedings. Some of the matters, including the motion for leave to amend, will necessarily fall to be part and parcel of an application by the plaintiffs to file their amended statement of claim (in the absence of the defendant's consent). While I will dismiss the plaintiff's motion today with no order as to costs, I will do so on the express basis that they will be entitled in due course to file such further motion as they may think appropriate including matters that are dealt with in their motion today. Should they file such further motion, and on the assumption that it contains or includes the substantive matters which I have listed in paragraph [1] above, I would say for the benefit of any Registrar coming to deal with the fixing of that motion that it would necessarily have to be specially fixed before a judge. 15The plaintiffs have indicated that they can provide a draft amended statement of claim to the defendant within three weeks. If that occurs, it seems to me that time can then be taken to ascertain whether the defendant would object to the amendments and, if so, on what grounds. I would expect her to communicate her grounds of objection in a timely fashion to the plaintiffs. If matters in relation to the amended statement of claim are able to be accelerated ahead of the timetable ordered by the Registrar, then I will grant any of the parties leave to re-list the matter before the Registrar so that a timetable in relation to those issues can be ordered. 16The orders of the Court are: (1)The defendant's notice of motion filed on 10 February 2014 is dismissed. (2)The costs of the defendant's motion are to be the parties' costs in the cause. (3)The plaintiffs' notice of motion filed on 17 February 2014 is dismissed but without prejudice to seek orders to similar effect later in the course of these proceedings. (4)Direct the plaintiffs to serve their proposed amended statement of claim on the defendant on or before 14 March 2014. (5)Grant leave to any party to re-list the proceedings before the Registrar in relation to further directions for the conduct of the proceedings after the draft amended statement of claim has been provided. 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: 25 February 2014