Coshott v Colbron

[2016] NSWDC 253

District Court

New South Wales

Medium Neutral Citation:	Coshott v Colbron [2016] NSWDC 253
Hearing dates:	10 October 2016
Date of orders:	10 October 2016
Decision date:	13 October 2016
Jurisdiction:	Civil
Before:	A/DCJ M. Sidis
Decision:	Plaintiff’s Notice of Motion dismissed
Catchwords:	Further Amend Summons; multiplicity of amendments; disapproval of delaying tactics, costs.
Legislation Cited:	S 56 Civil Procedure Act, 2005
Category:	Procedural and other rulings
Parties:	Ronald Coshott (Plaintiff) Warwick Colbron (Defendant)
Representation:	Counsel: D. Steirn (Plaintiff ) H. Jewell (Defendant)   Solicitors: Comino Prassas Solicitors (Plaintiff) Colbron & Associates (Defendant)
File Number(s):	2016/202361

Judgment

1. This matter came before the Court on 10 October 2016 on the motion of the plaintiff for leave to file a further amended summons. My summary of the history of this matter indicated that this was the seventh version of the summons proposed by the plaintiff to date.

2. Also before the Court on that date was the motion of the defendant seeking that the Court dismiss the plaintiff’s proceedings.

3. At the conclusion of the hearing the following orders were entered:

The plaintiff’s Notice of Motion filed 29/9/16 dismissed.

Defendant’s Notice of Motion filed 12/8/16 s/o to the date of the hearing of the Amended Summons on 28/10/16.

List for hearing on 28/10/16. Est. 1 day.

Matter will proceed for hearing on 28/10/16 on the pleading contained in the Amended Summons filed in Court on 12 August 2016.

Reserve Reasons and costs to 13/10/16 @ 9.30 am.

4. My reasons follow.

5. The plaintiff’s application was made in the context of a history of delay by the plaintiff in progressing to the hearing of his proceedings and of additional cost and inconvenience to the defendant. The conduct of the plaintiff to date demonstrated either a considerable degree of incompetence on his part or of those representing him or deliberate attempts to delay, inconvenience and increase costs.

6. Whatever the explanation, this Court is bound by s 56 of the Civil Procedure Act 2005. The Court has faced considerable difficulty in implementing the objective of this provision in this case.

7. A significant part of this difficulty centred around the multitude of attempts made by the plaintiff to plead the basis of his appeal against an assessment of the bills of costs rendered by the defendant for work done on the plaintiff’s instructions. The history was as follows:

1. 4 July 2016:   The summons (version 1) was initially filed.

2. 4 August 2016: The plaintiff was given leave to file an amended summons (version 2). The order made on the same date that the plaintiff file and serve evidence in support of the summons by 10 August 2016 was not complied with.

3. 12 August 2016: The plaintiff was given leave to file a further amended summons (version 3). The order made on the same date that the plaintiff file and serve evidence in support of the summons by 16 August 2016 was not complied with.

4. 18 August 2016: The plaintiff filed, without leave, a further amended summons (version 4).

5. 7 September 2016: The plaintiff filed, without leave, a further amended summons (version 5).

6. 12 September 2016: The plaintiff sought leave from His Honour Judge Dicker leave to file a further amended summons (version 6).

7. 29 September 2016: The plaintiff filed a Motion seeking leave to file a further amended summons (version 7).

8. In no version of the proposed amended summons was any effort made to indicate the nature of the changes made to the pleadings.

9. The only explanatory material before the Court was presented in the form of an email attached to the affidavit, dated 26 September 2016, of the plaintiff’s solicitor from the plaintiff’s former counsel, Mr Spadijer. In that email he claimed that he failed to understand the order that I made on 12 August 2016 and that he was under the misapprehension that the words I used were intended to convey that further amendments could be made to ensure that “all grounds were to be pleaded as this would be the plaintiff’s final chance.”

10. To my regret, it was apparent that neither party appreciated that the grants of leave made on 4 and 12 August 2016 were directed at the amended summonses handed to me on that date. On each occasion I endorsed those documents with the words “Filed with leave” and with the respective dates upon which the documents were filed in Court.

11. This clearly lead to a number of misapprehensions, including that suggested by His Honour Judge Dicker in his Reasons on 12 September 2016 that I specified no date for the filing of a summons for leave to amend. This, of course, was entirely unnecessary because leave had already been granted.

12. Against this background the plaintiff was in difficulty in persuading me that the leave sought in the current motion filed on 29 September 2016 should be granted. Among the difficulties he faced were:

1. Most obviously, this was the seventh attempt to plead the basis for and the grounds of his challenge to the assessment of the defendant’s costs. No explanation was provided for the need to make the constant alterations that were persistently being placed before and occupying the time of the Court and the defendant.

2. Almost as concerning was the plaintiff’s consistent breach of the orders of the Court, once more without explanation.

3. The amendments made, although not clearly identified as amendments in any version, appeared to take no account of the defendant’s concerns about the adequacy of the pleadings.

4. The excuse proffered that, regardless of whether version 3 was filed in Court or was to be filed at some later date, the plaintiff did not appreciate that further amendment would not be allowed could not be accepted. The transcript of proceedings on 12 August 2016 recorded that I said:

This is the last attempt at expressing his claim that will be allowed him so there will be no more indulgences in terms of amending the summons. (Transcript 9.42)

5. The final insult was the inclusion in version 7 of paragraphs seeking relief in relation to interlocutory orders that were entirely unrelated to the assessment of costs that were the subject of the appeal.

13. These factors all generated a lack of confidence in the plaintiff’s bona fides in bringing the proceedings and in his intention to comply with any orders made by this Court. The plaintiff’s conduct lead to the situation where the defendant was being showered with amended summonses with resultant expense and without any progress whatsoever towards any hearing or determination of the appeal.

14. Before the Court on 10 October 2016 was the defendant’s Motion seeking to have the plaintiff’s proceedings dismissed. The Court was urged on this occasion to grant the relief sought. I pointed out to the defendant’s counsel that the options available were:

1. Grant the plaintiff leave to file and proceed on version 7, subject to the deletion of paragraph 3 in respect of the relief sought and ground of appeal 8.

2. Maintain the orders made on 12 August 2016 and require the parties to proceed to hearing on that basis, noting that all evidence has now been filed and served.

3. Dismiss the proceedings and leave it open to the plaintiff to start afresh.

15. On examination of the pleadings contained version 3 and version 7 there appeared to be little alteration of substance in the relief sought and the grounds of appeal and little prejudice to either party in adopting the second of these options. This was particularly so when the appeal was ready for the hearing and the Court was able to give it an early hearing date on 28 October 2016.

16. I did appreciate the frustrations experienced by the defendant and I noted the considerable merit in his application to dismiss the proceedings. Whilst I am not in a position to impede the exercise of discretion of any judge of this Court, unless there were very substantial reasons put forward by the plaintiff, I would anticipate that any further demonstration of reluctance on his part to proceed to hearing would be met by serious consideration of the defendant’s application for orders dismissing the proceedings.

17. The defendant’s motion was therefore stood over to the hearing date on 28 October 2016.

18. The defendant applied for a lump sum costs order in relation to the costs ordered to be paid by His Honour Judge Dicker on 12 September 2016 and those of the proceedings before me on 10 October 2016.

19. I was prepared to order costs in a lump sum on 12 August 2016 because of the modest amount involved. The current application was for a sum that totalled in excess of $23,000 and, in all fairness and in the absence of some particularisation, I was not able to determine whether the amount claimed represented a reasonable assessment of the costs incurred.

20. In the circumstances, I order that the plaintiff to pay the defendant’s costs of the proceedings heard on 10 October 2016 as agreed or assessed.

21. I confirm the orders made on 10 October 2016, which I have already set out in paragraph [3] of these Reasons.

22. I expect the matter to proceed to hearing on 28 October 2016.

**********

Decision last updated: 18 October 2016