Dankers v Volunteer Maritime Rescue NSW
[2023] ACTSC 395
•15 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Dankers v Volunteer Maritime Rescue NSW |
Citation: | [2023] ACTSC 395 |
Hearing Date: | 15 December 2023 |
Decision Date: | 15 December 2023 |
Before: | Curtin AJ |
Decision: | (1) The application in proceeding dated 9 October 2023 is dismissed. (2) The defendant is to pay the plaintiff’s costs of and incidental to the whole of the application on the indemnity basis. (3) Those costs are assessable and recoverable immediately. (4) The matter is to be listed in the first available registrar directions hearing list in 2024. (5) No less than 7 days before that date, both parties are to file and serve an affidavit of no more than 4 pages explaining why Order 2 made on 30 October 2023 was not complied with and showing cause why both parties should not be cited for contempt for failing to comply with that Order. (6) I direct the registrar on that directions date to consider whether the explanation by the parties is sufficient or whether they should be referred to a judge of this Court for further consideration of the non-compliance with that Order. |
Catchwords: | CIVIL LAW – PRACTICE AND PROCEDURE – Application to strike out defence – application for summary judgment – where defendant non-compliant with discovery obligations under the Court Procedure Rules 2006 (ACT) and pursuant to orders on multiple occasions – where no explanation provided by defendant for non-compliance – whether defendant’s defaults were so grave as to justify strike out or dismissal – plaintiff’s application dismissed – plaintiff awarded costs of application on indemnity basis PRACTICE AND PROCEDURE – CORRESPONDENCE BETWEEN SOLICITORS – Parties and legal practitioners subject to mandatory statutory obligation under s 5A of Court Procedures Act 2004 (ACT) to help the Court facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible – multiple failures to respond to opponent’s solicitor’s correspondence in a timely fashion or at all – prima facie breach of s 5A CIVIL PROCEDURE – NON-COMPLIANCE – Parties ordered to participate in an informal settlement conference – virtually no step taken to comply with Order – deliberate non-compliance with Order a possible contempt of Court – parties required to show cause why they should not be cited for contempt |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 5A |
Cases Cited: | Crawford v Australian Capital Territory [2015] ACTSC 282 |
Texts Cited: | LexisNexis, Halsbury’s Laws of Australia (online at 17 February 2023) 105 Contempt, ‘1 Introduction – Contempt’ |
Parties: | Andrew Dankers ( Plaintiff) Volunteer Maritime Rescue NSW (ACN 138 078 092) ( Defendant) |
Representation: | Counsel J Moffett ( Plaintiff) A Charchar ( Defendant) |
| Solicitors McInnes Wilson Lawyers ( Plaintiff) Makinson d'Apice Lawyers ( Defendant) | |
File Number: | SC 171 of 2023 |
CURTIN AJ:
EX TEMPORE (REVISED)
1․These proceedings concern damage to a vessel allegedly caused by the negligence of those operating the towing vessel operated by the defendant.
2․The physical cause of the damage to the plaintiff's vessel resulted from his vessel coming into contact with an underwater object which the plaintiff alleges the defendant knew or ought to have known of its existence at the time of the towing.
3․The proceedings were commenced by an originating claim and statement of claim filed on 15 December 2022. The defendant filed a defence denying any negligence.
4․One issue in the proceedings since they have been commenced has been the defendant's compliance with its obligations to give discovery. The short point is that the defendant was required (as set out below) to provide a list of documents and it did eventually do so, but later then it ought to have.
5․On 5 June 2023, the Court made orders by consent, including an order that any party wishing to seek discovery against another party should serve a request pursuant to r 607 of the Court Procedure Rules 2006 (ACT) (the Rules) on or before 26 June 2023.
6․The plaintiff served a request pursuant to that order on 30 June 2023.
7․By operation of the Rules, a list of documents was then to be provided within 28 days, being on or about 28 July 2023. No such list was provided by the defendant.
8․On 31 July 2023, the plaintiff's solicitors corresponded with the defendant's solicitors seeking that list of documents.
9․The matter returned to the Court on 21 August 2023 and orders were made by consent, including an order that the defendant was to disclose discoverable documents pursuant to r 607 of the Rules on or before 1 September 2023. The defendant did not comply with that order by the due date.
10․The matter returned to Court on 11 September 2023. There was an appearance by the plaintiff, but there was no appearance by the defendant.
11․On that date the matter was adjourned to 18 September 2023. By that date, the defendant had still not complied with previous orders in relation to discovery.
12․On 18 September 2023, the Court made consent orders, including an order that the defendant was to disclose discoverable documents pursuant to r 607 of the Rules on or before 29 September 2023. No list was provided in accordance with that order.
13․On 10 October 2023, the plaintiff's solicitors filed an application in proceedings seeking an order that the defence filed by the defendant should be struck out and judgment entered in favour of the plaintiff with damages to be assessed together with some consequential orders.
14․The grounds of the application, as stated in the application, were that the defendant had systematically and continuously failed to comply with orders of the Court to provide discovery.
15․On 16 October 2023, and after some representations were made to the effect that the defendant had difficulty finding an appropriate person to verify the list of documents, a direction was made that any application to be made in that regard was to be filed and served by 23 October 2023.
16․In the events which occurred, no such application was required. That was because on 20 October 2023, a list of documents was served together with an affidavit verifying the list of documents sworn or affirmed on 17 October 2023 and a solicitor's certificate of advice in relation to the list of documents certified by the defendant's solicitor on 20 October 2023. Relevantly, that list only appeared after, by my count, four orders of the Court.
17․Subsequent to that list of documents, the plaintiff's solicitors, on 25 October 2023, wrote to the defendant's solicitors asserting that the defendant had not provided the actual documents particularised in the list and addressed some other matters.
18․Documents were provided by the defendant on 3 November 2023, although some of those documents were redacted.
19․On 8 November 2023, the plaintiff's solicitors wrote to the defendant's solicitors requesting unredacted copies of the relevant documents and asked:
Could you please also confirm if the Defendant is in possession of the following, as per our original request for discovery:
1. A male and female crew from MRNSW PS31 (Defendant's vessel) took phone pictures on the inside of our client's vessel (while still on the water), and the outside of our client's vessel (when lifted on the slipway). Please provide copies of those pictures.
2. Please confirm if the Defendant's vessel, as at 9 February 2021, had a rearward facing pan-lilt camera, a rearward facing thermal camera and radar. If so, please confirm if they were in use at the time of incident and if you are able to provide any data.
3. Details of all charts and versions available to the Defendant on 9 February 2021 of the scene of the incident location (including copies of those charts at max zoom of the incident location).
4. All charted warnings in the vicinity of the incident location as at 9 February 2021.
5. Depth sensor calibration history, depth log and depth sensor manual used on the Defendant's vessel on 9 February 2021.
6. Details of any "forwards facing” or a “3D/scan type” depth sensor including the make/model and type of any other (traditional/basic) depth sensor fitted to the Defendant's vessel on 9 February 2021.
7. The water speed sensor log and GPS speed/location sensor log on the Defendant's vessel, as well as the calibration history for both on 9 February 2021.
8. The AIS version and log used on the Defendant's vessel on 9 February 2021, including the calibration and maintenance history from June 2020 to February 2021.
9. All meeting agendas, minutes and correspondence held by the Defendant concerning any meeting held with AMSA where the subject incident was discussed. We are instructed that our client was informed that the Defendant could not release their file until after these meetings.
10. Copies of the Defendant's procedures and/or training manuals regarding involvement of a rescue as at 9 February 2021.
11. Copies of all alerts and all reports lodged to the following by the Defendant concerning the incident: a. NSW Water Police b. NSW Maritime c. AMSA d. Any other entity
12. Copies of all documents provided to and received from AMSA concerning the subject incident. Please include all final and draft versions of any statements, reports, emails, letters, correspondence and any other documents in the Defendant's possession.
13. AMSA officer Jim Parnell inspected the Defendant's vessel immediately after the incident in February 2021. Please provide all correspondence between the defendant and Mr Parnell, in addition to all correspondent [sic] between the Defendant and AMSA relating to our client, our client's vessel and the incident.
14. Information of the crew members involved in the incident on behalf of the Defendant, and details of their prior conduct on the day noting they had arrived from another rescue or training exercise.
15. A copy of the defendant's national law certificate of survey for the relevant vessel as at 9 February 2021.
20․There was no immediate response to that letter, and, on 24 November 2023, the plaintiff's solicitors wrote to the defendant's solicitors noting that they were yet to receive a response.
21․On 6 December 2023, plaintiff's solicitors wrote to the defendant's solicitors, again requesting an answer to the letter of 8 November 2023 and made a request for, amongst other things, further categories of documents.
22․I pause to observe that in my view it is contrary to the parties' and legal practitioners' obligations pursuant to s 5A of the Court Procedures Act 2004 (ACT) (the Act) for legitimate correspondence from one party to remain unanswered from the other party for such lengthy periods of time. There may, of course, be difficulties in answering particular requests if there are difficulties obtaining instructions or people are on leave or for a multitude of other legitimate reasons, but if so, there should be some professional response to legitimate requests made by opposing party's solicitors in order to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible.
23․Silence from one party in the face of legitimate requests should be discouraged.
24․In any event, on 13 December 2023, a copy of unredacted documents was served by the defendant and the defendant's solicitors said, amongst other things:
We have requested that our client provide any and all GPS and/or water speed log data, vessel maps/charts, and high frequency GPS logs and will provide a copy of same if located pursuant to our client's ongoing disclosure obligations.
25․The plaintiff took me to a number of authorities in which the Court has exercised its power under r 1404 of the Rules to dismiss proceedings. Each of those authorities dealt with a defaulting plaintiff. Nevertheless, defendants owe the same obligations as plaintiffs to comply with the Rules.
26․The plaintiff's counsel helpfully took me to Su v Kamal (No 2) [2022] ACTSC 239. In that case, McCallum CJ described the obligations of parties in the conduct of litigation and said the following:
[12] On two occasions after that when the proceedings came before the Court, the plaintiff failed to appear. That triggered an obligation on his part to show cause why the proceedings should not be dismissed, the Registrar having made a referral on that basis. The failure to appear was explained in an affidavit sworn by the solicitor and that explanation has previously been accepted by me as adequate. However, what happened in that intervening period, so it would seem, is that the solicitor lost sight of the need to respond to the substance of Mr Barry's letter of 27 April 2022.
[13] When the proceedings ultimately came before me for the show cause hearing, the plaintiff's solicitor appeared to be under the misapprehension that the only issue for which he had to answer was his failure to appear, whereas Mr Barry was pressing for dismissal of the proceedings on the basis of what he contended to be inadequate compliance with the discovery notice.
[14] That issue ultimately having been made clear to the plaintiff's solicitor, I heard an argument on 1 July 2022 as to the adequacy of the discovery. On 5 July 2022, I made the following orders, for the reasons published that day: see Su v Kamal [2022] ACTSC 161 at [28]:
(1)That the plaintiff give further discovery in accordance with the previous order to comply with the notice to produce discoverable documents within 14 days;
(2)Stand the proceedings over before McCallum CJ on 26 July 2022 at 9am.
(3)Order the plaintiff to pay the sixth defendant’s costs of the matters determined today which include the costs of Mr Barry’s appearances on 9, 23 and 27 May, 23 June and 1 and 5 July 2022.
…
[29] In my view, in circumstances where it is clear enough that further documents probably exist and the only reason those searches have not been undertaken is for want of the issue of a subpoena, it must be concluded that the plaintiff has not taken all reasonable steps to obtain the documents. Even if that is wrong, it is clear that his affidavits of discovery have been inadequate in not revealing anything of the trail I have just described.
…
32. It is now well understood that case management provisions of those kinds were intended to effect a wholesale change in the way in which litigation is to be conducted in Australia and the expectations of the court as to the cooperation of the parties in that undertaking. As long ago as 2010, the New South Wales Court of Appeal in Bi v Mourad [2010] NSWCA 17 explained why parties should expect that if they do not prosecute their claims with due expedition, or if they permit themselves repeatedly not to comply with orders of the court, proceedings may be dismissed. The proposition is perhaps best captured in the judgment of Young JA at [31] where his Honour said:
It must also be remembered these days that ss 56 to 60 of the Civil Procedure Act 2005 set up a regime that requires the courts to turn away reluctant gladiators and to ensure that they either prosecute their claims in due time or get sent away from the court.
27․The plaintiff also cited Crawford v Australian Capital Territory [2015] ACTSC 282 (Crawford). In that case, Mossop AsJ (as his Honour then was), after setting out the facts relating to non-compliance, said the following about the obligations of parties in the conduct of litigation:
[19] Rules 1404 and 1110 provide powers of the Court that are available to deal with noncompliance with directions. The matters to be taken into account on an application for an order under those rules are not constrained by the terms of those rules other than by r 1404(5) which requires that, in deciding whether to dismiss proceedings, the Court must have regard to the principle that the interests of justice are paramount. A useful discussion of the matters to be considered when deciding whether to exercise the power to strike out for want of prosecution, which includes failure to comply with a direction of the Court, is set out in Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 at [36]-[41]. For present purposes it is sufficient to note that regard needs to be had to the nature and circumstances of the delays in the proceedings, the explanation for those delays and the impact of those delays on the proceedings and the parties. Particular regard needs to be had to the approach to r 21 and case management decisions more generally articulated in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (‘Aon’) and the more recent decision in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303. The defendant unsurprisingly placed emphasis in particular upon the statements at paragraphs 94 and 95 of the decision in Aon.
…
[22] In my view, it is fundamentally important that case management directions of the Court are recognised as being orders of the Court rather than administrative suggestions that may be disobeyed if inconvenient. The manner in which the solicitors for the plaintiff have addressed the plaintiff’s non-compliance with orders of the Court appears to reflect an attitude that non-compliance with the directions made by the Court is an administrative matter from which a party will be excused, that in the event of noncompliance no explanation needs to be given on oath or affirmation of the reasons for the non-compliance and that non-compliance will have few if any consequences for the defaulting party. Acquiescence in such an approach by the Court fundamentally undermines the capacity of the Court to properly manage cases and puts those parties who do comply with the procedural directions of the Court at a disadvantage compared to those who do not. This is inconsistent with the purposes of the Rules set out in r 21.
(Emphasis added.)
28․Ultimately, his Honour declined to dismiss the proceedings in that case.
29․The plaintiff had, at least at the beginning of the application, sought to prove that, in fact, certain documents existed which fell within the category of documents requested be discovered but which had not been discovered. But the evidence to establish that factual matter was only served three minutes before the commencement of this application and because of the prejudice it caused, I rejected the tender for reasons outlined in my earlier judgment on that application.
30․The net result is that the factual basis left to the plaintiff on this application is a late compliance by the defendant with its discovery obligations rather than a complete non-compliance. When I say late compliance, I do not wish to understate the gravity that the Court approaches the defendant's conduct in not complying with four orders of the Court to provide discovery.
31․If there was some excuse for that non-compliance, the defendant has chosen not to provide that excuse or reasons to the Court today. In the absence of any evidence explaining the non-compliance with those various orders, the Court is left to assume that there was no legitimate reason for the failure to serve the list of documents at an earlier point in time. Nevertheless, in the exercise of my discretion, I do not consider those defaults, as grave as they may be, to be so grave as to justify striking out or dismissing the defendant's defence.
32․It is true that the plaintiff has been put to much trouble and expense to seek documents it is entitled to and the defendant has chosen not to lead any evidence explaining why those defaults occurred. Be that as it may, striking out the defence and entering judgment for the plaintiff is a severe penalty and would deprive the defendant of a trial of the proceedings on the merits.
33․Having said that, should there continue to be non-compliance by the defendant in the future, this Court, of course, could rely upon the defaults of the defendant that I have mentioned in this judgment in the event the plaintiff brings a further application to strike-out the defence. In other words, the defendant is on notice.
34․In addition to the orders made ex tempore dealing with this application, I also made Orders 5 and 6 when I gave judgment. At the time I gave no reasons, although the reasons would have been obvious to the parties from the exchange I had with the parties’ representatives, and which is recorded in the transcript. I now add the following in relation to those Orders.
35․On 30 October 2023, the Court made an order that the parties were to participate in an informal settlement conference before the date this application was heard, being by 15 December 2023. I was told from the bar table that the plaintiff made one written request for such a conference, but there was no response to that request and no further requests were made by either party.
36․Parties and practitioners should bear in mind that deliberate non-compliance with Court orders may be a contempt. In LexisNexis, Halsbury’s Laws of Australia (online at 17 February 2023) 105 Contempt, ‘1 Introduction – Contempt’, the author states at [105-5]:
However, wilful or contumelious disobedience of a court order constitutes a criminal contempt (especially if an element of public defiance is involved), as it involves a public injury that requires the use of the court’s penal or disciplinary jurisdiction. ... Nevertheless, civil and criminal contempt share the same rationale, that is, the protection of the effective administration of justice.
(Citations omitted.)
37․As Mossop J pointed out in Crawford at [22], orders of the Court are not “administrative suggestions that may be disobeyed if inconvenient.”
38․Non-compliance with the Court’s orders increase delays, increases costs to clients, increases the draw on the Court’s resources, and creates inefficiencies. All courts have limited resources, but a small court like the ACT Supreme Court is perhaps more affected by inefficiencies created by non-compliance with Court orders than larger courts.
39․The Court seeks the co-operation of the legal profession practising in the ACT in order to maximise the efficiency of the Court system.
40․An efficient court system which progresses commenced claims to hearing quickly and efficiently benefits the legal profession’s clients in terms of costs and time. Quicker, cheaper justice is unarguably better than slower, more expensive justice.
41․In one sense, an inefficient court system makes no difference to judges and registrars. No matter how efficient or inefficient the system is, they will always have a full workload. But the court’s real customers are the parties to proceedings, and the court’s primary concern is to provide them with a system which justly resolves their disputes according to law quickly, inexpensively, and efficiently.
42․Hence, Parliament enacted s 5A of the Act, imposing a mandatory, statutory obligation on parties and practitioners to help the Court facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible.
43․There are many parties and legal practitioners who help the Court in that pursuit by, inter alia, complying with Court orders. They are welcome in the Court, and their efforts appreciated.
44․However, not all do so.
45․Of course, the Court understands that compliance with Court orders is not always easily achieved. Litigation is rarely easy, and many things may occur which present legitimate obstacles to practitioners and parties complying with Court orders. The Court knows and understands these things. All members of the Court were previously solicitors, or barristers, or both. The Court does not expect perfection in an imperfect world.
46․Nevertheless, wilful or contumelious disregard of Court orders is another thing entirely. There may be a reasonable explanation for the parties’ non-compliance with the order to conduct an informal settlement conference by the date specified, although none was proffered when I asked the parties why that order had not been complied with.
47․Perhaps the time has come for the Court to do more than simply admonish parties and legal practitioners when apparent wilful or contumelious non-compliance with Court orders occurs.
Orders
48․I make the following orders:
(1)The application in proceeding dated 9 October 2023 is dismissed.
(2)The defendant is to pay the plaintiff’s costs of and incidental to the whole of the application on the indemnity basis.
(3)Those costs are assessable and recoverable immediately.
(4)The matter is to be listed in the first available registrar directions hearing list in 2024.
(5)No less than 7 days before that date, both parties are to file and serve an affidavit of no more than 4 pages explaining why Order 2 made on 30 October 2023 was not complied with and showing cause why both parties should not be cited for contempt for failing to comply with that Order.
(6)I direct the registrar on that directions date to consider whether the explanation by the parties is sufficient or whether they should be referred to a judge of this Court for further consideration of the non-compliance with that Order.
| I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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