Choy v St Kilda Baths Pty Ltd

[2000] VSC 354

SUPREME COURT OF VICTORIA
COMMERCIAL LIST	Not Restricted

No. 7535 of 1998
F.4993

SIEW SEN CHOY AND ANOTHER	Plaintiffs
v.
ST. KILDA BATHS PTY. LTD. (ACN 080 357 286) AND OTHERS	Defendants

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 SEPTEMBER 2000
DATE OF JUDGMENT:	1 SEPTEMBER 2000
CASE MAY BE CITED AS:	CHOY & ANOR. v. ST. KILDA BATHS PTY. LTD. & ORS.
MEDIUM NEUTRAL CITATION:	[2000] VSC 354

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CATCHWORDS:      Judgement and Orders – Self-executing orders – Failure by second, third and fourth defendants to provide particulars of their amended defence as ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr. G. Beaumont QC with Mr. J. Styring	Mallesons Stephen Jaques
For the Second, Third and Fourth Defendants	Mr. S. Wilson QC	Rogers & Gaylard

HIS HONOUR:

1. On Friday 1 September 2000, I ordered that these proceedings be set down for trial on a date to be fixed and, on that date, proceed against the second, third and fourth defendants as if they were undefended by those defendants.  I further ordered that the second, third and fourth defendants pay the plaintiffs' costs of the hearing on 19 July 2000 and of 1 September 2000, and that there be judgment for the plaintiffs, with costs, on the counterclaim of the third defendant.  I now set out in greater detail than I did on 1 September my reasons for making these orders.

1. After a chequered history the details of which are not necessary to describe here, these proceedings were set down for trial on 26 April 2000.  On 7 April 2000 the parties came before Warren, J. for directions.  Her Honour was then sitting in the Commercial List.  An application was made by the second, third and fourth defendants for an order vacating the trial date.  The application was refused.  On 14 April, however, the Listing Master re-fixed the proceedings for trial on 1 May 2000.

1. The proceedings came before me on that day.  I then heard a further application by the second, third and fourth defendants for an order vacating the trial date.  The application was based upon the proposition that, counsel for those defendants having but recently been briefed, and they having come to the conclusion that substantial amendments to the defences were necessary, leave to amend should be granted;  and, if granted, an adjournment of the trial would be necessary to enable the plaintiffs to meet the amended pleading.  The application for leave to amend was opposed. 

1. I nevertheless granted the application.  That decision having been made, the plaintiffs did not oppose an order that the trial date be vacated;  indeed, the plaintiffs submitted that, once leave to amend had been granted, an adjournment was necessary.  The trial date was vacated accordingly.  At the same time, I made directions concerning the filing and service of any consequential amendments to the plaintiffs' reply and defence to counterclaim, and for further discovery.  I set Wednesday 19 July 2000 as the date for a further directions hearing.

1. That hearing took place on the appointed day.  It then appeared that the second, third and fourth defendants had been two weeks late in giving notice to the plaintiffs that further discovery was required.  In addition, those defendants had failed to make their own discovery by the appointed date, which was 28 June.  That failure had not been rectified by 19 July.

1. Nor had the second, third and fourth defendants supplied adequate particulars of their amended defence.  This was despite the receipt by them of the plaintiffs' request for further and better particulars dated 17 May 2000.  No adequate excuse was proffered for this failure.

1. In these circumstances, I ordered that, unless by 4.00 p.m. on 14 August 2000 the second, third and fourth defendants:

(a)provided to the plaintiffs such further and better particulars of their amended defence and counterclaim filed 10 May 2000 as are required by the Supreme Court Rules;  and

(b)served on the plaintiffs an affidavit of documents pursuant to rule 29.08 of the Supreme Court Rules in relation to certain identified documents or classes of documents –

the counterclaim of the third defendant be struck out with costs including reserved costs, and the plaintiffs' proceeding against the second, third and fourth defendants proceed as if it were undefended by those defendants.  I further ordered that the proceeding return to me for directions on 1 September 2000.

1. A set of further and better particulars was served by the second, third and fourth defendants just after 4.00 p.m. on 14 August 2000.  A further affidavit of documents was served at the same time.  The further and better particulars were, however, deficient.  Despite the request of 17 May 2000, no further particulars were given as sought in paragraphs 1(a)(i) and (ii), 5(a), 6, 9(c), 10(b) and (c), 12(a), (b) and (c), 14(a), 15(a) and (b), 16(a), (b) and (c), and 25.  In each case, the reason given was not that the provision of the particulars was not required by the Rules;  it was that the defendants were unable to provide the particulars until after inspection of the first defendant's documents.  Those documents are currently held by the former solicitors for the first defendant.

1. It follows that the second, third and fourth defendants failed to comply with my order of 19 July.

1. This failure is very significant.  As appears from the affidavit evidence placed before me on 1 September, only the most perfunctory approach was made before 14 August to the solicitors in whose custody the relevant documents now are.  In other words, the second, third and fourth defendants made no real attempt, before 14 August, to obtain the documents recourse to which was required before the relevant particulars could be provided.  Indeed, a further two weeks passed before the defendants re-commenced any relevant activity.  Moreover, no attempt whatsoever was made to put before me, before the expiration of the time allowed, any material suggesting that the second, third and fourth defendants were encountering difficulties in providing the admittedly proper particulars.  This was despite the fact that, on 19 July, I specifically directed the defendants' attention to the fact that the orders made on that day were self-executing and would take effect unless a successful application for an extension of time were initiated before the expiration of the time allowed. 

1. In these circumstances, it seems to me that the second, third and fourth defendants have forfeited any right they might otherwise have had to protection against the effect of the orders made on 19 July.  In my opinion, proper management of the processes of the Court will be impossible if, in circumstances such as presently obtain, otherwise self-executing orders are set aside.  The defendants have in my opinion been adequately accommodated in the past.  Any further concession would make a nonsense of the trial management process.

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