Barclay v Management & Training Corporation Pty Limited

[2024] NSWDC 537

District Court

New South Wales

Medium Neutral Citation:

Barclay v Management & Training Corporation Pty Limited [2024] NSWDC 537

Hearing dates:

5 November 2024

Date of orders:

5 November 2024

Decision date:

05 November 2024

Jurisdiction:

Civil

Before:

Dicker SC

Decision:

(1) Pursuant to Part 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed;

(2) The plaintiff is to pay the defendants’ costs of the proceedings as agreed or assessed.

Catchwords:

PRACTICE AND PROCEDURE – dismissal of proceedings for not prosecuting proceedings with due despatch

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

GhambirvVision of IT Pty Ltd [2023] NSWSC 905

GhoshvNineMSN Pty Ltd [2015] NSWCA 334

StollznowvCalvert [1980] 2 NSWLR 749

UdowenkovChief Executive Officer and Board of Directors of StGeorge Bank (No 2) [2011] NSWSC 1122

Winau Australia Pty Ltd vLCC Property Developments Pty Ltd [2023] NSWSC 1355

Witten v Lombard Australia Ltd [1968] 88 WN (Part 1)(NSW) 405

Category:

Procedural rulings

Parties:

Shane Barclay (Plaintiff)
Management & Training Corporation Pty Limited (First Defendant)
Broadspectrum (Australia) Pty Ltd (Second Defendant)

Representation:

Mr J Cale (Solicitor)(First and Second Defendants)

Solicitors:
Ex parte
McCabes Lawyers (First and Second Defendants)

File Number(s):

2023/00463152

Publication restriction:

No

JUDGMENT – EX TEMPORE

1. The matter was listed before me today for the plaintiff to show cause as to why the proceedings commenced by him should not be dismissed under Part 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) due to his failure to prosecute the proceedings with due dispatch.

2. Although there is no Notice of Motion before the Court seeking those orders from the defendants, Mr Cale, who appears for the defendants, sought an order that the proceedings be dismissed under the show cause hearing. 

3. The Court may also make orders of its own motion in relation to certain matters: see s 86(3) of the Civil Procedure Act 2005 (NSW) (“the Act”). If a matter is dismissed, a plaintiff can, unless a court makes an order to the contrary, commence fresh proceedings: the Act, s 91.

4. Part 12.7 of the Uniform Civil Procedure Rules provides as follows:

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

(2)  If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.”

5. As was stated by the Court of Appeal in Stollznow vCalvert [1980] 2 NSWLR 749 at [7], each case involving an application for dismissal for want of due dispatch must be considered on its own facts. Since that time, ss 56 to 60 of the Act have been passed.

6. In Ghosh v NineMSN Pty Ltd [2015] NSWCA 334, Macfarlan JA (with whom Leeming JA and Adamson J agreed) set out the principles to be applied at paragraphs 40 to 44. His Honour also noted that the use of the word “may” in Part 12.7 confers a discretion in the strict sense upon a judge. At paragraph 40, Macfarlan JA stated that the discretion to dismiss proceedings under Part 12.7 is “broad and should not be confined by rigid formulae”. His Honour referred to Stollznow v Calvert at 751 with approval.

7. His Honour also referred to the comments of Walsh JA in Witten v Lombard Australia Ltd [1968] 88 WN (Part 1)(NSW) 405 where Walsh JA said at 412 that it was proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. All relevant factors should be taken into account. They are not confined, according to Macfarlan JA, to what is caused by a lack of activity, but also extends to a lack of “constructive activity”. Macfarlan JA referred in particular to the important principles in ss 56 to 60 of the Act, which were not, as I indicated, in force at the time of Stollznow v Calvert. 

8. In order to ensure that there have not been alterations in the approach since that time, I have considered recent judgments of the Supreme Court.

9. In Ghambir v Vision of IT Pty Ltd [2023] NSWSC 905, Danjhi J considered the matter in paragraphs 22 and following, again referring to Stollznow v Calvert.  His Honour emphasised that the discretion was not confined by rigid guidelines and depended upon all of the circumstances.  His Honour stated, in paragraph 23, that:

“The essential criterion for the exercise of the power is whether or not in all the circumstances justice requires that the proceedings should be dismissed or the defence struck out. That commonly involves striking a balance between the interests of the competing parties.”

10. In Winau Australia Pty Ltd v LCC Property Developments Pty Ltd [2023] NSWSC 1355, McGrath J in the Equity Division considered the principles at paragraphs 58 to 62 in some detail. His Honour referred to the comments of Johnson J in Udowenko v Chief Executive Officer and Board of Directors of St George Bank (No 2) [2011] NSWSC 1122 at [120] ‑ [121], where Johnson J emphasised the importance of ss 56 to 61 of the Civil Procedure Act, and noted that the Court conducts its business within that framework. His Honour held that it can, on occasions, be appropriate to dismiss the proceedings even though there has not been a hearing on the merits in circumstances where there has been a failure to comply with directions.

11. In paragraph 62, his Honour noted that relevant factors included the length of time the proceedings have been on foot, whether there has been a history of non‑compliance with court orders and whether an explanation has been given for the failure to prosecute the proceedings, and the nature of that explanation.  No explanation has been proffered here by the plaintiff.

12. The background to the matter is that the plaintiff commenced proceedings on 21 December 2023 seeking damages for personal injuries said to have occurred when he was a prisoner at the Parklea Correctional Centre.  It is submitted that he was not given appropriate medication and medical assistance whilst he was there, and that he fell from the top bunk of his prison bed while having a seizure, and thereby suffered injuries.

13. It is clear under the Civil Liability Act 2002 (NSW) that the plaintiff must establish a certain whole of personal impairment in order to proceed with his matter. The defendants filed a Notice of Motion on 7 March 2024 seeking orders dismissing the proceedings. In September 2024, the plaintiff’s solicitors ceased acting for him, as they had lost contact with the plaintiff. I made orders on 29 August 2024 vacating a hearing listed on 30 August 2024. I listed the matter for directions. There was no appearance by the plaintiff at the directions hearing on 21 October 2024.

14. On that day, I listed the matter for a show cause hearing today.  Mr Cale, the solicitor appearing today for the defendants, gave evidence that he had a conversation with the plaintiff where the plaintiff was made aware of the hearing today.  He has not appeared.

15. The factors I take into account are as follows:

1. The plaintiff has not appeared at a number of directions hearings;

2. The plaintiff did not appear today at a show cause hearing;

3. The plaintiff was aware on the evidence of Mr Cale of the show cause hearing today;

4. The plaintiff’s previous solicitor has lost contact with him;

5. The case, although it has not been determined on the merits, is not a straightforward one;

6. Although the case was only filed in 2023, there has been a marked degree of unexplained inactivity by the plaintiff.

16. I also note that no explanation has been provided by the plaintiff for the inactivity through any contact with the Court.  The plaintiff was called outside three times this morning and there was no appearance by or on his behalf.

17. In all those circumstances, in my view the plaintiff has not shown proper cause as to why the proceedings should not be dismissed for want of due despatch.

18. Accordingly, I make the following orders:

1. Pursuant to Part 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed;

2. The plaintiff is to pay the defendants’ costs of the proceedings as agreed or assessed.

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Decision last updated: 15 November 2024