Abram v National Australia Bank

[2006] NSWSC 1409

CITATION:	ABRAM v. NATIONAL AUSTRALIA BANK [2006] NSWSC 1409
HEARING DATE(S):	19 July 2006
JUDGMENT DATE :	20 December 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Hall J at 1
DECISION:	(a) The plaintiff is to lodge with my associate and to serve a copy upon the defendant’s solicitors on or before 4.00 pm, Monday 29 January 2007 a document which identifies:- (i) The person or persons acting on behalf of the defendant who it is alleged acted without reasonable and probable cause in the first defendant’s institution or continuation of the contempt proceedings. (ii) The basis or grounds upon which it is alleged that such officers acted without reasonable or probable cause in the first defendant’s institution or continuation of the proceedings. (iii) The identity of the employee(s) or officer(s) of the first defendant who is said to have been actuated by an improper purpose. (iv) The basis or grounds upon which it is alleged that any employee or officer of the first defendant was actuated by improper purpose or acted with malice. (b) The plaintiff is to lodge, by 4.00 pm, Monday 29 January 2007, a list of documents relied upon as evidence in relation to any issue referred to in (ii) and (iv). (c) The plaintiff is to provide, by 4.00 pm, Monday 29 January 2007, to the defendant’s solicitors a bundle a documents which he proposes to rely upon in relation to the issues referred to in (ii) and (iv). (d) The plaintiff is to file and serve, by 4.00 pm, Monday 29 January 2007, all or any affidavits containing evidence which he would seek to rely upon in the proceedings. (e) I order that the plaintiff’s proceedings stand dismissed if the plaintiff fails to comply with the orders (a) to (d) above. (f) I grant leave to the parties for the proceedings to be re-listed on seven day’s notice. (g) I grant leave to the defendant to make application in respect of the costs previously reserved in respect of the adjournment of the proceedings on 27 February 2006, the costs of the plaintiff’s notice of motion filed on 7 March 2006, the costs of the proceedings of 3, 7 and 13 March 2006 and the costs of the defendant’s notice of motion for dismissal of the proceedings dated 30 June 2006.
CATCHWORDS:	PROCEDURE – miscellaneous procedural matters – malicious prosecution proceedings – plaintiff unrepresented – withdrawal of consent to trial without jury – plaintiff not tricked into giving his consent – no extraordinary circumstance warranting revocation of the consent order – motion for dismissal of proceedings for want of prosecution – proceedings not dismissed – self-executing orders made with consequence that non-compliance will render proceedings dismissed.
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Supreme Court Act 1970 (NSW) Courts Legislation Amendment (Civil Juries) Act 2001 (NSW)
CASES CITED:	Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1030 Walton v. Gardiner (1993) 177 CLR 378 at 409 Stollznow v. Calvert [1980] 2 NSWLR 749 Sophron v. The Nominal Defendant (1957) 96 CLR 469 Witten v. Lombard Australia Ltd (1968) 88 WN (Part 1) (NSW) 405 Akins v. Abigroup Limited (1998) 43 NSWLR 539 Malouf v. Malouf [2006] NSWCA 83 State Pollution Control Commission v. Australian Iron & Steel (1992) 29 NSWLR 487 Queensland v. J. L Holdings Pty. Limited (1996-1997) 189 CLR 146 Fairey v. Fairey (No. 2) [2000] NSWCA 173 Kane v. Wyllie [2006] NSWSC 710
PARTIES:	JOSEPH ABRAM v. NATIONAL AUSTRALIA BANK LIMITED
FILE NUMBER(S):	SC No. 20155 OF 2000
COUNSEL:	Plaintiff: In person Defendant: P.M. Wood/A.P. Coleman
SOLICITORS:	Plaintiff: N/A Defendant: Henry Davis York

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL, J.

WEDNESDAY 20 DECEMBER 2006

No. 20155 of 2000

JOSEPH ABRAM v. NATIONAL AUSTRALIA BANK LIMITED

JUDGMENT
(On application to dismiss the proceedings)

HALL, J:

History of the proceedings

1 The plaintiff in these proceedings, Mr. Abram, appears unrepresented. By statement of claim filed 1 May 2000, he commenced proceedings against the National Australia Bank Limited (“the Bank”) alleging malicious prosecution arising out of contempt proceedings instituted against him by the Bank. In November 1993, the Bank’s proceedings came before O’Keefe, J. who found Mr. Abram guilty of contempt, ordering him to serve 100 hours of community service. Mr. Abram completed those hours before his appeal to the Court of Appeal was upheld in May 1995. Mr. Abram’s malicious prosecution action is in part based upon the successful outcome of that appeal.

2 The considerable history of these proceedings appears from the two affidavits of Leonard Martin McCarthy, the first sworn 8 October 2002, the second sworn 30 June 2006.

PART A – APPLICATIONS FOR DISMISSAL AND OTHER MATTERS

The first motion to dismiss: The State of NSW (6 May 2000) and the Bank (13 September 2000)

3 Mr. Abram’s original statement of claim named the Bank as first defendant and the State of New South Wales as second defendant. On 6 May 2000 the State of New South Wales filed a notice of motion seeking orders that the statement of claim be dismissed or, in the alternative, struck out. On 13 September 2000 the Bank filed a notice of motion seeking orders that the statement of claim be dismissed or, in the alternative, struck out.

4 Master Malpass, now Associate Justice Malpass, ordered that the statement of claim be struck out and ordered Mr. Abram to serve a proposed amended statement of claim on each of the defendants by 9 April 2001.

5 On or about 9 April 2001, Mr. Abram served the proposed amended statement of claim on each of the defendants. On 28 May 2001, Registrar Howe delivered a written judgment dismissing Mr. Abram’s application for leave to amend and ordering that the proceedings remain struck out.

6 On 25 June 2001, Mr. Abram filed a notice of motion seeking review of the orders made by Registrar Howe other than those made in relation to his claim against the State of NSW. On 18 October 2001, Acting Justice Taylor made orders to the effect that the proceedings as between Mr. Abram and the State be dismissed, that the decision of Registrar Howe otherwise be set aside and that Mr. Abram file within 28 days an amended statement of claim in respect of his claim against the Bank.

7 On 15 November 2001, Mr. Abram filed an amended statement of claim pursuant to the orders of Acting Justice Taylor. The proceedings have been continued on the basis of the amended statement of claim.

The second motion to dismiss (27 November 2001)

8 On 27 November 2001, the Bank filed a Notice of Motion seeking orders that the amended statement of claim be dismissed or, in the alternative, struck out. On 27 February 2002, that motion came before Master Harrison, now Associate Justice Harrison, who dismissed the Bank’s notice of motion in her judgment of 4 March 2002. Master Harrison found that Mr. Abram had outlined the evidence he wished to rely upon to establish the fourth element of the tort of malicious prosecution, namely that the prosecutor acted “without reasonable and probable cause,” and that on that basis the Bank was aware of the case it had to meet and would not be taken by surprise. Accordingly, her Honour ordered that the matter proceed to trial.

The Bank’s request for particulars (18 March 2002)

9 The history of correspondence in respect of the request for particulars between solicitors for the Bank and Mr. Abram appears from the affidavit of Leonard Martin McCarthy, solicitor, sworn 8 October 2002. Annexed to that affidavit is the correspondence that passed between Henry Davis York, solicitors for the Bank, and Mr. Abram in relation to the Bank’s request for particulars by letter dated 18 March 2002 (Annexure “LMM1” to the affidavit of Mr. McCarthy).

10 Mr. Abram disputed the Bank’s request for particulars by letter dated 18 April 2002 (Annexure “LMM2 to the affidavit of Mr. McCarthy). By letter dated 24 April 2002, the Bank’s solicitors indicated that their client pressed its request for particulars and that it would seek appropriate orders from the Court should the plaintiff continue to dispute his obligation to comply with the Bank’s request (Annexure “LMM3” to the affidavit of Mr. McCarthy). The solicitors for the Bank also indicated in that letter that it would file and serve its defence within seven days. By letter dated 10 May 2002, the Bank enclosed by way of service its defence (Annexure “LMM4” to the affidavit of Mr. McCarthy).

11 By short minutes of order entered by the Court at the status conference on 16 July 2002 Mr. Abram was required to file and serve further and better particulars by 6 August 2002. By email dated 6 August 2002, Mr. Abram requested of the Bank an extension of time to 13 August 2002 to provide the particulars (Annexure “LMM5” to the affidavit of Mr. McCarthy). By letter dated 20 August 2002, the Bank stated that the request for particulars was two weeks overdue and requested Mr. Abram to advise it as to when the particulars would be provided, indicating that should Mr. Abram fail to supply the particulars by 27 August 2002 it would seek appropriate orders from this Court (Annexure “LMM6” to the affidavit of Mr. McCarthy). By email dated 2 September 2002, Mr. Abram indicated that he would provide the particulars “over the weekend” (Annexure “LMM7” to the affidavit of Mr. McCarthy). By letter dated 5 September 2002, the Bank indicated that they would give Mr. Abram until 12 September 2002 to provide the promised particulars (Annexure “LMM9” to the affidavit of Mr. McCarthy).

12 By email dated 11 September 2002, Mr. Abram disputed the scope of the Bank’s request for particulars alleging that the request for particulars “in it’s [sic] present form goes way beyond a request for particulars” (Annexure “LMM10” to the affidavit of Mr. McCarthy). Mr. Abram indicated that he was not refusing to supply the particulars but that he was objecting to the request in its current form. By letter dated 27 September 2002, the Bank offered to “meet [Mr. Abram] half way” by insisting only on replies to specified numbered paragraphs of their request for particulars dated 18 March 2002 (Annexure “LMM 11” to the affidavit of Mr. McCarthy). The Bank indicated that seven days was a reasonable period to allow Mr. Abram to comply with the request.

The third motion to dismiss (9 October 2002)

13 On 9 October 2002, the Bank filed a notice of motion seeking orders that the amended statement of claim be dismissed or, in the alternative, stayed until the plaintiff provided further and better particulars. On 22 November 2002, orders were made to the effect that Mr. Abram provide the particulars by 29 November 2002.

Orders in relation to discovery and filing of affidavits (3 December 2002 – 9 September 2005)

14 On 3 December 2002, orders were made that the plaintiff provide an affidavit as to loss and damage claimed and to annex thereto all supporting documents on which he intended to rely by 31 January 2003.

15 At a final conference on 6 February 2003, orders were again made for Mr. Abram to file and serve his affidavit as to loss and damage, the time in which to do so being extended to 6 March 2003.

16 On 6 March 2003, Mr. Abram filed and served his affidavit as to loss and damage. That affidavit sets out in separate paragraphs the identified loss or damage and its dollar amount. There are no documents annexed to the affidavit in support of the claimed losses and damage and no documents in that nature have been filed separately with the Court, either in a tender bundle or otherwise.

17 On the 6 February 2003, the matter was made subject to Differential Case Management and directions were made providing a timetable for the filing of affidavits by Mr. Abram and for discovery by both parties.

18 In the period 6 March 2003 to 9 September 2005, this Court made various orders for discovery by both parties and for the inspection of discovered materials.

The plaintiff’s first motion for adjournment (28 April 2005)

19 On 2 December 2004, the matter was listed for hearing as a jury trial on 16 May 2005. By notice of motion filed 28 April 2005, Mr. Abram sought an adjournment of the proceedings on the grounds that the Bank had provided him with discovery of some 100 new documents on 22 April 2005.

20 On 28 April 2005, Justice Kirby granted the adjournment and vacated the hearing date. In his judgment, Justice Kirby referred to the fact that on 5 April 2005 it came to the notice of the Bank’s solicitors that there were other documents in the possession of the Bank’s former solicitors, Malleson Stephen Jaques, that had not been discovered. The result was that there were some 100 documents discovered that had not previously been provided. The plaintiff was informed of this on 11 April 2005, and was provided with the documents via courier on 22 April 2005. On the basis of the newly discovered documents, his Honour Justice Kirby granted the adjournment. Mr. Abram was granted leave to approach the Court within 28 days should he still hold the view that discovery was inadequate.

The plaintiff’s second motion for adjournment (27 February 2006)

21 On 9 September 2005, the matter was again set down for hearing as a jury trial on 27 February 2006. The matter came before me as trial judge on that date and on that occasion, on Mr. Abram’s application, I granted an adjournment on the basis that Mr. Abram who was self-represented was not ready to proceed and that he had not fully appreciated the obligation upon him to provide proper particulars in response to the Bank’s request of 18 March 2002. Mr. Abram acknowledged that his response of 29 November 2002 was inadequate.

22 After the morning tea adjournment on 27 February 2006, Mr. Abram indicated that he was not ready to proceed with the hearing. Mr. Abram stated (t.30.29-31):-

“Your Honour, I can tell you now I am not ready to proceed. I will be asking for an adjournment of some sort, I don’t know for how long, that is my only option.”

23 Shortly thereafter, Mr. Abram explained at length why he had not fully appreciated the obligation to provide the particulars as sought and why his response had been inadequate (t.29.50-58):-

“I would be making an application that the trial be adjourned so I can make enquiries as to how I go about and also how to obtain the particulars that are sought which I understand are required as Davies, J. said, particulars of relevant persons within the company so that the company can turn its defence to the state of mind of those persons. It is my understanding it is the bank that sued me and it was the bank, I was addressing its state of mind but I understand the difference now.”

PART B – CONSENT TO DISPENSING WITH A JURY

24 On that occasion, I canvassed with the parties the alternative course of having the case heard by a judge sitting without a jury, the principal benefit to the parties being that the matter would be reprogrammed for hearing earlier than would otherwise be the case. I indicated the benefit to the parties as follows (t.39.44-47):-

“If the parties do consent to a judge alone hearing, it would certainly make for a much more expeditious, streamlined hearing than a hearing involving a jury.”

25 I emphasised to the plaintiff that he need not commit himself to that course and that it was not my intention to put him on the spot (t.40.29-31). His response was as follows (t.40.33-38):-

“Without answering the question, my gut feeling is no problem. Right. Because I just don’t – you know, the judge is deciding or a jury, you know, either the evidence is there or it isn’t. I can’t see they are going to decide differently. It is just going to be less complicated, quicker.”

26 Later, I again put to the plaintiff directly the question of dispensing with the jury. The question and answer were as follows (t.44.47-50):-

“HIS HONOUR: Are you prepared for this case to go forward on the basis we were talking about, that is we dispense with the jury?
PLAINTIFF: In principle, yes.”

27 Mr. Wood of counsel for the Bank directed my attention to the fact that consent to proceed without the jury must be unconditional and that consent “in principle” was insufficient (t.45.25-29). The question of dispensing with the jury was then put to the plaintiff in terms that as a matter of law his consent to dispensing with the jury must be absolute (t.47.1-10):-

“HIS HONOUR: Mr. Abram, turning to you for the moment, firstly in terms of proceedings without the jury, do I understand you will agree to the terms that I have stated?
PLAINTIFF: Yes, I will.
His Honour: That is you unconditionally consent to dispensing with the jury and to have a judge alone trial?
PLAINTIFF: Yes, I do.”

28 Accordingly, the order for a trial without a jury pursuant to s.89(2)(b) of the Supreme Court Act 1970 (NSW) was recorded in the transcript of proceedings on 27 February 2006 as follows (t.49.5-7, 49.14-16):-

“HIS HONOUR: To make it abundantly clear then, the order I have made for those proceedings to be heard by a judge alone is made on the basis of s.89(2)(b).

….

HIS HONOUR: In this respect the order applies to the trial, all issues in the proceedings, that will include all issues of fact.”

29 In my judgment of 27 February 2006, I noted that the possibility of a judge alone trial had been canvassed with the parties and that they had agreed unconditionally to the matter being heard without a jury (paragraphs [7]-[9] of the judgment of 27 February 2006). The formal orders were as follows (paragraph [12]):-

“(a) I direct the parties to confer and produce a statement of agreed facts on or before the adjourned hearing date, 20 March 2006.

(b) The plaintiff is to file and serve any affidavit or affidavits that he proposes to rely upon at the hearing by 4.00 pm, Friday 10 March 2006.

(c) The defendant is to file and serve any affidavits it relies upon on or before 4.00 pm, Friday 17 March 2006.

(d) The plaintiff is to compile and serve a bundle of documents containing the documents which he proposes to tender on or before 4.00 pm, Friday 10 March 2006.

(e) The plaintiff is to provide full and proper particulars in relation to paragraph 10 of the amended statement of claim as sought in the letter from Henry Davis York dated 18 March 2002 and those particulars to be furnished on or before 4.00 pm Friday, 10 March 2006.

(f) The proceedings may be re-listed on 24 hours notice before me.

(g) The proceedings are stood over for hearing on 20, 21, 22, 23 and 27 and 28 March 2006.”

The plaintiff’s third motion for adjournment and application to withdraw consent to a jury trial (3, 7 and 10 March 2006)

30 On 3 March 2006, the parties came before me at the plaintiff’s request. On that occasion, he made an application to withdraw his consent for a trial without a jury (t.5.5-15 of 3 March 2006):-

“Your Honour, I make an application that orders be made that would have the effect of putting me back where I was when I walked into this court last Monday ready for a jury trial. And those orders should include any and all outstanding issues be raised, the issues be dealt with within a reasonable time frame and the case management supervision by the court when all the issues have been dealt with, a new jury trial date be set. I withdraw my previous agreement to agree the matter be heard by a single judge based on it was obtained unlawfully and in my opinion by coercion and trickery .” (Emphasis added.)

31 The matter was adjourned and the application for withdrawal of consent was set down before me on 7 March 2006. I made orders that the plaintiff serve on the Bank’s solicitors a notice of motion and supporting affidavit by 5.00 pm on Monday 6 March 2006 (t.9.4-13 of 3 March 2006).

32 On 7 March 2006, the plaintiff filed a notice of motion seeking orders that he be granted leave to withdraw his consent given on 27 February 2006 to the matter being heard by a judge sitting without a jury and that the trial date of 20 March 2006 be vacated.

33 Mr. Wood and Mr. Coleman both of counsel provided written submissions on behalf of the Bank on the question of Mr. Abram’s application to set aside the order dispensing with the jury. The issue of providing either a written response to counsels’ submissions or appearing on a later occasion to make oral submissions was canvassed with the plaintiff (t.7.40-8.1 of 7 March 2006). The motion was listed for hearing before me on Friday 10 March 2006.

34 The parties came before me on 10 March 2006 on the plaintiff’s application. The plaintiff made oral submissions that were partly in response to the written submissions provided on Tuesday 7 March 2006 by counsel for the Bank. He raised several points in opposition to the submission of the Bank that he had a change of mind in respect of his prior consent to a trial by judge alone. The plaintiff stated (t.1.30-35):-

“Your Honour, it was put by the defendant in their submissions that basically I’ve changed my mind. I don’t see it that way. I acted and agreed on a course of action on that Monday based on incorrect information raised by the defendant at the last minute with no opportunity for me to assess the true situation.”

35 The plaintiff then proceeded to identify the “incorrect information raised by the defendant” as (a) an assertion that the particulars had not been supplied, and (b) the identity of the relevant officer of the Bank responsible for instituting contempt proceedings against him (t.1.37-41). The plaintiff emphasised that there has a period of four years between Mr. Abram’s response to the request for particulars in November 2002 and the most recent adjournment of the trial date on 27 February 2006 and that on two prior occasions the Bank had indicated to judges of this Court that the matter was ready for trial. His complaint was expressed as follows (t.1.52-56):-

“I only requested an adjournment because of the issues that they raised. I see it that they have hijacked this trial on day one leading to all this drama and waste which is definitely not an advantage to me, the court, or anyone.”

36 In Mr. Abram’s submission, the particulars had in fact been supplied and there had been a period of two years since those particulars were supplied in November 2002 and the date on which the trial was set down, 27 February 2006, during which the Bank should have raised the issue that there was no officer of the Bank identified as being the officer responsible for instituting the contempt proceedings against him (t.1.37-46).

37 Mr. Wood of counsel made submissions by way of reply to the effect that the plaintiff was not ready to proceed with his case on 27 February 2006, and accordingly, that it was “inevitable” that he accept that he had to apply for an adjournment. Mr. Wood identified five matters which evidenced that the plaintiff was not ready to proceed:-

(a) No arrangements had been made to call two members of this Court the plaintiff said he had wanted as witnesses.

(b) Misconceived intention to rely on affidavits in a jury trial.

(c) Misconceived reliance on the Court of Appeal judgment.

(d) Unaware of the necessity to prove a corporate state of mind.

(e) Unaware of the significance for the purposes of the tort of the distinction between commencement of the proceedings and the subsequent continuation of the proceedings (t.4.1-25).

38 I asked the plaintiff to identify some fact or matter on which he relied as constituting an exceptional circumstance warranting revocation of the consent order. He responded as follows (t.8.37-41):-

“I can’t imagine anything more exceptional than turning up at Court, saying the matter is ready for trial, and coming out and saying it was fatally flawed, all the time we knew it. I can’t imagine anything more exceptional than that.”
The alternative basis to dispense with a jury trial

39 Section 89(2)(a) of the Supreme Court Act 1970 (NSW) provides as follows:-

“In any proceedings to which s.88 applies, the Court may order, despite that section, that all or any issues of fact be tried without a jury where:-
(a) any prolonged examination of documents or scientific or local investigation is required and cannot conveniently be made with a jury.”

40 Despite orders to do so, Mr. Abram has not filed any documents in the nature of a tender bundle or otherwise on which he wishes to rely. Similarly, no affidavits have been filed, save for Mr. Abram’s affidavit as to damage and loss filed and served 6 March 2003.

41 As no substantial documentary evidence has been filed, and there has been no indication that the documents in this matter are such as would require prolonged examination which could not conveniently be made with a jury, this alternative basis for making an order dispensing with a jury trial does not arise and need not be the subject of further consideration.

42 I reserved judgment on the application to revoke the consent order. Judgment was delivered on 13 March 2006.

43 In that judgment, I made findings to the effect that the plaintiff had unconditionally consented to dispensing with the jury and to have the matter heard by a judge alone (at [34]) and that, contrary to his assertion, that he had not, in fact, been “tricked into making his application for an adjournment and into giving his consent to the discharge of the jury” (at [44]). I made a finding that it was clear on 27 February 2006 that the plaintiff was not ready to proceed and that, had the trial commenced at that time, given the plaintiff’s state of preparation, “the likelihood of an application for discharge of the jury … [would] have been a high one” (at [44]).

44 I did not finally determine the application to revoke the consent order dispensing with the jury. I raised the question as to whether s.89(2)(a) provided another basis for an order dispensing with the jury, which provides that where “any prolonged examination of documents … is required and cannot conveniently be made with a jury” that all or any issues of fact may be tried without a jury (at [46]). Accordingly, I made orders for the plaintiff to file statements and documents to clarify what evidence he was seeking to rely upon in order that I might determine the documentary case on which he seeks to rely (at [48]).

45 I determined that it was at that stage premature to determine the application to withdraw the consent and that the application should be dealt with at the same time as any question which might arise pursuant to s.89(2)(a).

46 I made the following orders (at paragraph 50 of the judgment of 13 March 2006):-

“(a) That the hearing dates commencing 20 March 2006 be vacated.
(b) The plaintiff to provide a document which identifies:-
(i) The person or persons acting on behalf of the defendant who it is alleged acted without reasonable and probable cause in the first defendant’s institution or continuation of the contempt proceedings.
(ii) The basis or grounds upon which it is alleged that such officers acted without reasonable or probable cause in the first defendant’s institution or continuation of the proceedings.
(iii) The identity of the employee(s) or officer(s) of the first defendant who is said to have been actuated by an improper purpose.
(iv) The basis or grounds upon which it is alleged that any employee or officer of the first defendant was actuated by improper purpose or acted with malice.


(c) The plaintiff to lodge within 28 days a list of documents relied upon as evidence in relation to any issue referred to in (ii) and (iv).

(d) The plaintiff is to provide the first defendant’s solicitors with a bundle of documents which he proposes to rely upon in relation to the issues referred to in (ii) and (iv) above within 28 days.

(e) The plaintiff is to file and serve within 28 days all or any affidavits containing evidence which he could rely upon in the proceedings in the event that the proceedings are to be heard and determined by a judge alone.

(f) The first defendant is to file and serve an affidavit within seven days confirming that full and proper discovery of documents has been provided to the plaintiff.

(g) The proceedings stood over for further directions on 27 April 2006 at 9.15 am.

(h) The costs occasioned by the adjournment of the proceedings on 27 February are reserved.

(i) The costs of the plaintiff’s notice of motion filed 7 March 2006 and the costs of the proceedings on 3, 7 and 13 March 2006 are reserved.

(j) The directions made on 27 February 2006 are vacated.”

47 As recorded earlier, I had made findings in the judgment delivered on 13 March 2006 that the plaintiff had unconditionally consented to dispensing with the jury and to have the matter heard by judge alone and that he had not been tricked into making the application. I confirm that finding and am firmly of the view that the plaintiff had not acted on incorrect information as recorded in paragraph [35] of this judgment. I have taken into account the fact that the plaintiff was unrepresented and that he moved on 7 March 2006 on an application to withdraw the consent. Notwithstanding, I do not consider that the plaintiff has established any circumstance that would constitute either explanation or justification that would warrant leave being granted for the withdrawal of the consent given on 27 February 2006. As to the alternative basis for dispensing with a jury trial pursuant to s 89(2)(a) of the Supreme Court Act 1970 (NSW), as no substantial documentary evidence has been filed, the question whether it is appropriate to conduct the proceedings as a judge alone trial (see paragraph [54] below) does not arise.

48 I confirm, accordingly, that the plaintiff’s withdrawal of consent is, as previously stated, one that ought to be determined upon the basis as to whether or not, according to accepted principles, he has made out a basis for that withdrawal. Consistent with what I have previously stated in relation to this application, I do not consider that the plaintiff has made out the case for the withdrawal of consent in his application and I confirm that his application in that respect is refused.

49 There is one matter which is not determinative in relation to the application to withdraw consent to a non-jury trial but which I add merely by way of passing mention. I held a view in March 2006, and remain of the view, that it is very much in the interests of the plaintiff that the proceedings be heard by a judge alone for, as he is unrepresented and understandably does not have the legal experience or training, the conduct of a jury trial would be fraught with difficulties, as I have already indicated. There would, in my view, be considerable difficulties for the plaintiff in presenting his case, were the proceedings to be heard by a jury and to avoid the ever present risk of an application for a discharge of the jury.

50 In relation to the application to withdraw consent, based on the findings contained in the judgment dated 13 March 2006, I formally order that the plaintiff’s application to withdraw his consent to dispense with a jury is dismissed.

PART C – APPREHENDED BIAS CONTENTION

The plaintiff’s allegation of apprehended bias (27 April 2006)

51 On 27 April 2006, the matter was brought before me as list judge. On that occasion, the plaintiff complained that the Bank had failed to file and serve an affidavit in accordance with paragraph [50(f)] of my judgment dated 13 March 2006 on the due date but instead on 3 April 2006 filed the affidavit of Lynette Rieper sworn 22 March 2006.

52 In my judgment dated 27 April 2006, I found that, although there had been non-compliance with the order in paragraph [50(f)], such non-compliance had not materially dislocated the directions and nor had it deprived the plaintiff of the opportunity to undertake his obligations pursuant to the directions made on 13 March 2006. I found that the plaintiff had not filed any documents or affidavits in accordance with those directions.

53 The plaintiff stated that he had sought to have the matter re-listed before me and had contacted my Associate for that purpose. He made an application that I disqualify myself from hearing the matter on the grounds of apprehended bias. In my judgment dated 27 April 2006, I indicated that in terms of my role as case managing judge there was no basis whatsoever for the application that I disqualify myself and accordingly, I dismissed the application.

54 On that occasion I again made orders. The orders appear at paragraph 12 of the judgment of 27 April 2006 and were as follows:-

“(a) The plaintiff is to file any affidavit relied upon in the proceedings within 28 days, that is, by 4.00 pm on 25 May 2006.

(b) The plaintiff is to lodge a list of documents relied upon in the proceedings by the same time and date.

(c) The plaintiff is to file a document as described in paragraph [50(b)] of my judgment dated 13 March 2006 by the same date and time.

(d) The plaintiff is granted leave to make an application in respect of discovery given by the defendant within a period of 10 days from the date he files the affidavit or the last of the affidavits he relies on in compliance with the directions I have made.
(e) Any application by the plaintiff in respect of discovery will be re-listed before me on 9 June 2006 at 2.00 pm.”

55 Arrangements were made for re-listing the matter before me on 9 June 2006 to hear any application by the plaintiff in relation to discovery and to determine whether the directions made had been complied with. I directed that any notice of motion and supporting affidavit on which the plaintiff wished to rely on that occasion should be filed by 2 June 2006.

56 The matter did not come before me on 9 June 2006. The next occasion on which the matter was before me was the Bank’s motion of 30 June 2006 to dismiss the proceedings.

PART D – THE CURRENT APPLICATION TO DISMISS PROCEEDINGS

The Bank’s Application (30 June 2006)

57 On 30 June 2006, the Bank filed a notice of motion seeking, inter alia, orders pursuant to s.61(3)(a) Civil Procedure Act 2005(NSW) and Part 12 Rule 7 Uniform Civil Procedure Rules 2005 (NSW) that the proceedings against it be dismissed. In the alternative, the Bank sought orders that the Amended Statement of Claim be struck out or permanently stayed.

58 The Bank seeks such orders on the grounds that the plaintiff has failed to comply with directions of the Court specifically, my directions of 13 March 2006 (“the 13 March directions”) and my directions of 27 April 2006 (“the 27 April directions”).

59 The Bank tendered evidence of his non-compliance in the form of an affidavit of Mr. Leonard Martin McCarthy sworn 30 June 2006. In that affidavit, Mr. McCarthy deposes to the plaintiff’s non-compliance with the 13 March directions in paragraph 69 of his affidavit, and his non-compliance with the 27 April directions in paragraph 74 of his affidavit.

60 The plaintiff has in fact failed also to comply with my orders of 27 February 2006, those orders being in substantially the same terms as the orders of 13 March and 27 April.

Hearing of the Bank’s Motion (19 July 2006)

61 On 19 July 2006 the parties came before me in relation to the Bank’s notice of motion filed 30 June 2006 to dismiss the proceedings.

62 On that occasion, the plaintiff again renewed his objection to my hearing the motion on the basis of alleged bias and renewed his application for disqualification. On 19 July 2006, I gave judgment in relation to that application, again declining to disqualify myself.

63 At the conclusion of the judgment, the plaintiff sought to be excused. He indicated that he did not request a short break but that instead he no longer wished to participate. Having explained to him that he was free to leave but that such a course may be imprudent on the basis that the Bank would continue with its application in his absence and that he would not be present to respond, the plaintiff left the courtroom. The Bank continued with its application.

The Statutory Framework

(a) Section 61(3)(a) of the Civil Procedure Act 2005 (NSW)

64 Section 61(3)(a) of the Civil Procedure Act 2005 (NSW) (“the Act”) provides that if a party to whom a direction has been given fails to comply with such direction then the Court may dismiss the proceedings. The provision appears in Part 6 of the Act and Division 1 of that Part sets out the guiding principles for case management.

65 The exercise of power under s.61 is discretionary but that discretion must be exercised by reference to the relevant statutory framework under which the power is conferred and in accordance with accepted principles relevant to the exercise of the statutory discretion: Padfield v. Minister of Agriculture, Fisheries and Food [1968] AC 997 at 1030; Walton v. Gardiner (1993) 177 CLR 378 at 409. Regard must also be had to Part 6 of the Act, in particular to s.56(1) which provides:-

“The overriding purpose of this Act and of rules of the court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.”

66 This Court is charged “to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of the Court” or when it interprets either the Act or any rules of the Court (s.56(2)). Similarly, parties to proceedings have “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” (s.56(3)).

67 In order to further the overriding purpose referred to in s.56(1), proceedings are to be case managed having regard to four identified objects. Those objects are set out in s.57(1) as follows:-

“(a) the just determination of the proceedings,
(b) the efficient disposal of the business of the court,
(c) the efficient use of available judicial and administrative resources,
(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties.”

68 By way of emphasis of this last object – “the timely disposal of proceedings” – s.59 provides:-

“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.”

69 Where the Court has before it an application to dismiss (under s.58(1)(a)(iv) and s.61(3)(a)) or stay proceedings (under s.58(1)(a)(ii)), it must seek to act in accordance with the dictates of justice: s.58(1). In order to determine what are the dictates of justice in a particular case, regard must be had to s.56 and s.57 (s.58(2)(a)) and, where relevant, to the matters listed in s.58(2)(b).

(b) Part 12 Rule 7(1) of the Uniform Civil Procedure Rules 2005 (NSW)

70 Part 12 Rule 7(1) of the Uniform Civil Procedure Rules 2005 (“the UCPR”) relevantly provides:-

“If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other orders as the court thinks fit.”

71 The exercise of power under Part 12 Rule 7 is discretionary and, as is the case with s.61 of the Act, such discretion must be exercised within the legislative framework and in accordance with relevant principles.

Common law principles: available guidance from other similar cases

72 The leading case in New South Wales in relation to the exercise of the discretion to dismiss proceedings is Stollznow v. Calvert [1980] 2 NSWLR 749.

73 Where a Court is called upon to exercise a discretionary power it is appropriate for it to have regard to decided cases in relation to it and to the factors considered relevant to its exercise. However, in a particular case the exercise of the discretion will turn on its own facts: Stollznow (supra) at 752.

74 As a general rule, there are no fixed formulae that operate to limit judicial discretion in an application for dismissal of proceedings for want of prosecution. However it is essential that the judicial discretion be exercised so as to do that which is just between the parties: Sophron v. The Nominal Defendant (1957) 96 CLR 469 at 474-475, applied in Stollznow (supra) at 752.

75 The ultimate question for determination is whether, on striking a balance between the plaintiff and the defendant, justice demands that the action should be dismissed: Witten v. Lombard Australia Ltd (1968) 88 WN (Part 1) (NSW) 405 at 411, Stollznow (supra) at 751F.

76 The interest of a plaintiff is to have the pleaded claim tried before the Court. Indeed, that interest is shared by the defendant, in whose interest it is also to have a resolution of the claim. However, in cases of failure to prosecute by a plaintiff, there is also a risk of prejudice to the defendant in the preparation of their defence. This applies for example where specified particulars of the claim have been sought from the plaintiff but have not been supplied.

77 That said, where a defendant has been inactive in the preparation of the defence and/or has failed to raise with the plaintiff the issue of the plaintiff’s inactivity in preparing the matter for hearing, it cannot be said that that defendant has suffered prejudice of the kind identified above in [76].

78 The Bank has raised with the plaintiff via letter on several occasions his failure to comply with directions. On each occasion, the Bank has suggested that he comply with the directions within a specified period and has indicated the action the Bank would take should the directions remain outstanding. It cannot be said that the Bank has been an inactive defendant.

79 Orders, which include “directions” (Akins v. Abigroup Limited (1998) 43 NSWLR 539 at 552), of the Court are mandatory: Malouf v. Malouf [2006] NSWCA 83. Failure to comply with directions or orders is the necessary precondition for the exercise of judicial discretion to dismiss proceedings: Part 12 Rule 7.

80 The Court has inherent power to control and supervise the conduct of proceedings so as to prevent unfairness (State Pollution Control Commission v. Australian Iron & Steel (1992) 29 NSWLR 487 at 493C. A court on an application to dismiss proceedings upon the basis of persistent failure by the opposing party to comply with directions may take into account the requirement of the efficient dispatch of the business of the court (SPCC v. Australian Iron & Steel (supra) at 493F). Indeed, such considerations are in keeping with the principles of modern case management (SPCC v. Australian Iron & Steel (supra) at 493F). Courts are directed to consider the efficient disposal of court business (s.57(1)(b)) and the efficient use of court resources (s.57(1)(c)) in furthering the overriding purpose of case management, as defined in s.56(1) of the Act.

81 Case management principles, however, must not be allowed to supplant the aim to ensure fairness (Queensland v. J. L Holdings Pty. Limited (1996-1997) 189 CLR 146 at 154) and the ultimate aim of the Court must always be to do justice between the parties. The purpose of the power to dismiss proceedings summarily is to ensure fairness as between litigants and to preserve the integrity of the judicial system: Fairey v. Fairey (No. 2) [2000] NSWCA 173 at [52]. However, while the integrity of the judicial system promotes the expedient determination of cases and the interest of litigants generally in the Court, the rights of individual litigants to justice in their own cases cannot be supplanted: Fairey (supra) at [52].

The availability of a self-executing order

82 There is no particular provision of either the Civil Procedure Act or the Rules that provides for the making of a self-executing order. However, a self-executing order may be made by framing an order as to future conduct so that the consequence of non-compliance is that the proceedings stand dismissed.

83 In Kane v. Wyllie [2006] NSWSC 710, Gzell, J. made, in effect, a self-executing order. In that case, his Honour found that on balance, justice demanded that the plaintiffs should not have their proceedings dismissed but, in light of the plaintiffs’ history of default, made an order that the plaintiffs’ proceedings stand dismissed should they fail to comply with orders earlier made.

Consideration

84 As the history of these proceedings indicate, they have been on foot for over six years.

85 The following factors are relevant to the question whether, on striking a balance between the plaintiff and the defendant, justice demands that the action should be dismissed:-

(a) the overall history of the proceedings;

(b) the nature of the issues raised in the proceedings;

(c) the recent interlocutory history (non-compliance with orders made since 27 February 2006);

(d) that the plaintiff is unrepresented;

(e) that the plaintiff has not put on any evidence (other than an affidavit as to loss or damage), nor sought to do so;

(f) that the plaintiff has offered no explanation as to his non-compliance with orders made since 27 February 2006.

(a) History of the proceedings

86 The considerable history of these proceedings is summarised above and need not be repeated here. Several points arise, however, from that history and are as follows:-

(a) The proceedings have been listed for hearing on three occasions: 16 May 2005, 27 February 2006 and 20 March 2006.

(b) The proceedings have been adjourned on three occasions: 28 April 2005, 27 February 2006 and13 March 2006.

87 It may be accepted that the plaintiff was not responsible for the adjournment on 28 April 2005.

(b) Nature of the issues raised in the proceedings

88 These proceedings allege malicious prosecution on the part of the Bank and such allegations are of the most serious nature.

89 It is important for such proceedings to be heard and disposed of efficiently and for delay to be avoided.

(c) Recent interlocutory history: non-compliance with orders made since 27 February 2006

90 At paragraph 74 of his affidavit of 30 June 2006, Mr. McCarthy deposes to the fact that no document in the nature of either an affidavit the plaintiff intends to rely upon or a document in accordance with paragraph 50(b) of my judgment of 13 March 2006 has been served on Henry Davis York, solicitors for the Bank, by the required dates or at all.

91 At paragraph 70, Mr. McCarthy says that a letter was sent to the plaintiff on or about 19 April 2006 via email. That letter is annexed to the affidavit of Mr. McCarthy (Tab 12). It indicated clearly to the plaintiff that in the view of the Bank the 13 March directions had not been complied with and that the Bank wished to be advised when they could expect to receive the material the subject of the 13 March directions.

92 At paragraph 71, Mr. McCarthy states that he received no response to his letter of 19 April 2006 but that on 26 April 2006 Mr. McCarthy states that he sent another letter to the plaintiff via email. Mr. McCarthy states that he received a response and a copy of it is annexed to the affidavit of Mr. McCarthy (Tab 13). That response was in the form of an email in which he indicated that he was not satisfied that the defendant had complied with its obligations for discovery and that he wanted the matter re-listed.

93 At paragraph 74, Mr. McCarthy deposes to the fact that no document in the nature of either an affidavit, which the plaintiff intended to rely upon, or a document in accordance with paragraph [50(b)] of my judgment of 27 April 2006 had been served on Henry Davis York by the required dates. At paragraph 75, Mr. McCarthy says that a letter was sent to the plaintiff on or about 29 May 2006 via email. That letter is annexed to the affidavit of Mr. McCarthy (Tab 14). That letter indicated clearly to the plaintiff that in the view of the Bank the 27 April directions had not been complied with and that this was the second occasion on which he had failed to comply with directions. The Bank indicated in that letter that unless they received a “satisfactory response by close of business 30 May 2006” the Bank would file a motion to dismiss the proceedings.

94 The orders made on 27 February 2006 were replaced by orders made on 13 March 2006, but an examination of the orders made on 27 February 2006 reveal that the plaintiff has been in default of orders to file and serve affidavits and a bundle of documents on which he intended to rely since 10 March 2006.

(d) That the plaintiff appears unrepresented

95 The plaintiff has appeared unrepresented in these proceedings and has himself prosecuted his malicious prosecution suit since first filing proceedings on 1 May 2000.

96 The restraints on judicial intervention in proceedings stem from the adversary tradition and are not necessarily qualified merely because a litigant is self-represented: Malouf v. Malouf (supra) at [94]. In Malouf, the trial judge explained the role of procedures such as cross-examination of witnesses and gave the self-represented litigant ample opportunity to present his case in accordance with the rules of evidence and the dictates of fairness to the other side (at [100]).

97 In this case, I have endeavoured to explain to the plaintiff the procedural requirements for bringing his case on from a case management perspective and the necessary steps in order to comply with those requirements.

(e) The plaintiff has not put on any evidence, nor has he sought to do so

98 Despite orders to do so, the plaintiff has not put on any evidence in relation to his proceedings against the Bank, save for one affidavit as to loss and damage filed and served on 6 March 2003.

99 He has not put on any affidavits on which he seeks to rely, nor has he produced a tender bundle of documents either to the Court or to the solicitors for the Bank.

(f) That the plaintiff has offered no explanation as to his non-compliance with orders made since 27 February 2006

100 The plaintiff has resisted compliance with my orders to file affidavits and to provide the necessary particulars on the basis that he has been tricked out of a jury trial by the Bank. The plaintiff moved the Court for orders that his consent to a jury trial be withdrawn.

101 The plaintiff’s grievance is that he had come to Court on 27 February 2006 prepared for a trial before a jury, having proceeded on the basis that the matter was ready to be heard. He complains that the Bank had, on several prior occasions, indicated to other members of this Court, in particular, to Associate Justice Harrison, that they were ready to proceed. On 27 February 2006, counsel for the Bank indicated that the matter was not ready to proceed on the basis that the plaintiff’s cause of action had not been properly pleaded, specifically, that the relevant officers of the Bank responsible for instituting and commencing the contempt proceedings against him had not been identified.

102 The plaintiff responded by pointing to the fact that he had provided the required particulars in November 2002 and that he had heard no more from the Bank in relation thereto concerning the preparation of the matter for hearing. He has also referred to what he asserts has been inadequate discovery on the part of the Bank and identifies the time spent in relation to discovery as being the operative cause of any delay in having the matters heard (see t.3.52-54, 19 July 2006).

103 As to the question, for the purposes of the Bank’s motion for dismissal, whether the plaintiff has offered any explanation as to his non-compliance with orders and directions, the Bank has submitted that he has not offered any explanation (t.6.45-53, 8.39-44, 19 July 2006). On 19 July 2006, the plaintiff was not present to respond to the Bank’s submissions that the circumstances favoured the making of an order for dismissal, having chosen to absent himself from the courtroom (see above at [65]).

104 The plaintiff has not proffered anything by way of an explanation for his continued delay in complying with orders made since 27 February 2006 other than to point to his frustration with what he has perceived as inadequate discovery and that he has no means of identifying the responsible officers.

105 In relation thereto, the Bank has filed the affidavit of Ms. Lynette Rieper sworn 22 March 2006 deposing to the fact that the Bank has provided full and complete discovery. Further, the plaintiff has been offered an informal means of ascertaining, if possible, the identity of the officers responsible for instituting and continuing proceedings against him (t.41.56-57, 27 February 2006). There is no evidence that he has taken up the Bank’s offer, although he did indicate that he would send an email to the Bank (t.41.1-2, 27 February 2006).

106 Given the history of the proceedings and the recent interlocutory history, the present state of affairs cannot be permitted to continue.

107 It is permissible for the Court to make orders in the nature of self-executing orders and I propose that the plaintiff be given a final chance to comply with the orders made on 27 February and 13 March, the consequence of any further failure to comply being that the proceedings are dismissed.

108 In respect of the Bank’s application to dismiss the proceedings, I am of the view:-

(a) That the Bank has made out grounds for an order dismissing the proceedings by reason of the continual failure or refusal by the plaintiff to abide by the directions of this Court compounded by his failure to provide any verified basis for his persistent failure or refusal to comply with directions given.

(b) That in the circumstances, the plaintiff be given a final opportunity of complying with the directions given by way of case management.

(c) In the event that the plaintiff has not complied with the directions, that there be a self-executing order that the proceedings be dismissed.

109 Accordingly, I consider the appropriate orders to be as follows:-

(a) The plaintiff is to lodge with my associate and to serve a copy upon the defendant’s solicitors on or before 4.00 pm, Monday 29 January 2007 a document which identifies:-

(i) The person or persons acting on behalf of the defendant who it is alleged acted without reasonable and probable cause in the first defendant’s institution or continuation of the contempt proceedings.
(ii) The basis or grounds upon which it is alleged that such officers acted without reasonable or probable cause in the first defendant’s institution or continuation of the proceedings.
(iii) The identity of the employee(s) or officer(s) of the first defendant who is said to have been actuated by an improper purpose.
(iv) The basis or grounds upon which it is alleged that any employee or officer of the first defendant was actuated by improper purpose or acted with malice.


(b) The plaintiff is to lodge, by 4.00 pm, Monday 29 January 2007, a list of documents relied upon as evidence in relation to any issue referred to in (ii) and (iv).

(c) The plaintiff is to provide, by 4.00 pm, Monday 29 January 2007, to the defendant’s solicitors a bundle a documents which he proposes to rely upon in relation to the issues referred to in (ii) and (iv).

(d) The plaintiff is to file and serve, by 4.00 pm, Monday 29 January 2007, all or any affidavits containing evidence which he would seek to rely upon in the proceedings.

(e) I order that the plaintiff’s proceedings stand dismissed if the plaintiff fails to comply with the orders (a) to (d) above.

(f) I grant leave to the parties for the proceedings to be re-listed on seven day’s notice.

(g) I grant leave to the defendant to make application in respect of the costs previously reserved in respect of the adjournment of the proceedings on 27 February 2006, the costs of the plaintiff’s notice of motion filed on 7 March 2006, the costs of the proceedings of 3, 7 and 13 March 2006 and the costs of the defendant’s notice of motion for dismissal of the proceedings dated 30 June 2006.

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