Chandler v Abruzzese; Woodbridge v Abruzzese; Felice v Abruzzese; Norris v Abruzzese; Belinfante v Abruzzese

[2019] NSWSC 1440

Supreme Court

New South Wales

Medium Neutral Citation:	Chandler v Abruzzese; Woodbridge v Abruzzese; Felice v Abruzzese; Norris v Abruzzese; Belinfante v Abruzzese [2019] NSWSC 1440
Hearing dates:	18 October 2019
Date of orders:	18 October 2019
Decision date:	18 October 2019
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1)   Order that on or before 25 October 2019 the plaintiffs are to file any further affidavits in support of the notice of motion filed 17 October 2019 together with an outline of submissions in support of the orders sought. (2)   The defendants, if so advised, are to file and serve any affidavits and submissions in opposition to the motion by 4 pm 8 November 2019. (3)   The plaintiffs are to file and serve any submissions in reply by 4pm on 22 November 2019. (4)   Fix the matter for argument before me on 29 November 2019 at 2pm. (5)   Direct that at the time any documents are filed and served a copy is to be sent to my chambers. (6)   Vacate the listing of the notice of motion filed 17 October 2019 of 24 October 2019. (7)   Adjourn the notice of motion for hearing to 29 November 2019 at 2pm. (8)   Order Mr John McManus, solicitor for the plaintiffs, to pay the defendants’ costs of and occasioned by the adjournment of the proceedings today on an indemnity basis forthwith. (9)   Grant the parties liberty to apply. (10)   Note that the proposed Statements of Claim are to be served in each matter by 25 October 2019.
Catchwords:	CIVIL PROCEDURE — Commencement of proceedings — Statement of claim — Form and content – Application seeking an adjournment of the argument on adequacy of proposed amended statement of claim
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Procedural and other rulings
Parties:	Ryan Chandler (P) Mark Woodbridge (P) James Felice (P) Benjamin Raymond Norris (P) David James Belinfante (P) Charles Abruzzese (D1) (all matters) Bronte Surf Club (D2) Surf Life Saving Australia (D3)
Representation:	Counsel: T Meakes (P) (all matters) C Carroll (D1) (all matters) D Villa (D2, D3)   Solicitors: Beston Macken McManis (P) (all matters) Holman Webb Lawyers (D1) BNLaw (D2, D3)
File Number(s):	2017/316134;2019/136983;2019/137105;2019/136908;2019/137073
Publication restriction:	Not Applicable

EX TEMPORE Judgment

Nature of Hearing

1. On 30 August 2019, the Court fixed for hearing today, 18 October 2019, a dispute between each of the plaintiffs, and the second and third defendants, about the adequacy of the existing Statement of Claim and the appropriateness of any proposed amended Statement of Claim.

2. In order to enable that dispute to be heard and determined, the Court made orders providing for: first, the return of Notices to Produce addressed to the defendants by 11 September 2019; secondly, for the filing of any Notice of Motion, accompanied by affidavits and submissions by the plaintiffs, on 3 October 2019; and then, finally, for the provision of responses by the defendants before the hearing date.

Compliance with Court Orders

3. The Court records indicate that documents were produced by the defendants on 11 September 2019, in accordance with the Court’s orders. I am informed today by junior counsel for the plaintiffs that the documents were first accessed by his instructing solicitors on or about 9 October 2019.

4. The Motion seeking orders for leave to amend the Statement of Claim was filed yesterday, 17 October 2019. It was accompanied by a document which, although described as an affidavit, provided no factual or other basis of a kind which would enable the Court to consider (much less conclude) that leave to file an amended pleading ought to be granted. No evidence of any value was filed in support of the Motion and no written submissions were filed as required by the Court’s order of 30 August 2019.

5. Notwithstanding that the Court on 30 August 2019, gave leave for the Notice of Motion to be made returnable at 2pm today, the Motion was made returnable on 24 October 2019 at 9am. The Court is not in a position to make a finding as to how or why that occurred.

Application

6. Today, counsel for the plaintiffs has made an oral application seeking an adjournment of the argument on resolution of the adequacy of the proposed pleadings. Counsel for the second and third defendants has pressed for the argument to take place today. Counsel for the first defendant has adopted a neutral position.

Submissions of the Parties

7. Counsel for the defendants identified two areas of prejudice to his clients if the argument does not take place today: the first is the fact that costs have been incurred to meet the argument; the second is that any adjournment will prolong the proceedings and would not lead to a speedy resolution of outstanding issues as s 56 of the Civil Procedure Act 2005 requires.

8. The solicitors for the plaintiffs have (through counsel for the plaintiffs) indicated that they will consent to an order that they pay the costs of and occasioned by the adjournment of the proceedings today on an indemnity basis, either as agreed or as assessed. Counsel for the plaintiffs submits that this would remove, relevantly, any prejudice by an adjournment.

Discernment

9. These proceedings are part of a management list being conducted by this Court. The purpose of the management list, which deals with the claims for damages for sexual assault against individuals and institutions, is to ensure that proceedings are heard promptly and with no delay other than that necessary to ensure a fair hearing. That is because there is abundant information available which suggests that people who have been the victims of sexual assault may suffer additional trauma and psychological damage by their engagement in prolonged litigation.

10. However, the Court’s capacity to deal promptly with these claims in the interests of minimising any future loss or damage is constrained by the behaviour of the lawyers for the parties to the proceedings and by the parties themselves.

11. Here, in circumstances where no explanation at all is placed before the Court on affidavit from the solicitor for the plaintiffs, the Court is confronted with counsel seeking an adjournment of an argument that has been fixed for nearly two months. The application for adjournment is on the basis that counsel is not ready to address the Court on the relevant issues and requires time to put together written submissions in support of the orders which are sought. No explanation is offered as to why that is so.

12. The only conclusion which the Court can come to in those circumstances is that the plaintiffs’ solicitor has simply failed to fulfil his duty to the Court of the kind outlined in s 56 of the Civil Procedure Act. If there was any explanation which indicated that he had not failed to do his duty, I would expect it to have been put before the Court - it was not.

13. In considering the application for an adjournment, the Court is obliged to act in the interests of justice for both the plaintiffs and the defendants.

14. The claim which the plaintiffs bring against the second and third defendants is one which is not without complication. As I understand the pleading in its current form, the first defendant is alleged to be the perpetrator of the assaults upon which the claims are made. He is said to have been a volunteer in a program being run by the second defendant, of a kind propounded by, or encouraged by, the third defendant, involving the engagement of children in surf lifesaving.

15. It is not immediately apparent to me from the current pleading, or even the proposed pleading, quite what links are to be made between the conduct of a volunteer and the legal liability of the second and third defendants, but it is nevertheless important, from the plaintiffs’ perspective, that they have the opportunity of articulating a case which may enable that question to be adequately litigated.

16. I am satisfied that the justice of the case requires the proceedings be adjourned, but the defendants, who are here ready to meet the argument, ought not be penalised in any way. Accordingly, the appropriate costs order is that to which the solicitors for the plaintiffs consent.

Form of Costs Order

17. The second and third defendants seek that the costs be made payable forthwith. In my view, this is entirely appropriate. Costs have been incurred. As the plaintiffs’ solicitors have caused those costs to be incurred, the defendants ought be reimbursed those costs forthwith.

18. I make the following orders:

1. Order that on or before 25 October 2019 the plaintiffs are to file any further affidavits in support of the notice of motion filed 17 October 2019 together with an outline of submissions in support of the orders sought.

2. The defendants, if so advised, are to file and serve any affidavits and submissions in opposition to the motion by 4 pm 8 November 2019.

3. The plaintiffs are to file and serve any submissions in reply by 4pm on 22 November 2019.

4. Fix the matter for argument before me on 29 November 2019 at 2pm.

5. Direct that at the time any documents are filed and served a copy is to be sent to my chambers.

6. Vacate the listing of the notice of motion filed 17 October 2019 of 24 October 2019.

7. Adjourn the notice of motion for hearing to 29 November 2019 at 2pm.

8. Order Mr John McManus, solicitor for the plaintiffs, to pay the defendants’ costs of and occasioned by the adjournment of the proceedings today on an indemnity basis forthwith.

9. Grant the parties liberty to apply.

10. I note that the proposed Statements of Claim are to be served in each matter by 25 October 2019.

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Decision last updated: 04 November 2019