Fisher v Roads and Maritime Services New South Wales (No 2)

[2018] NSWSC 1702

Supreme Court

New South Wales

Medium Neutral Citation:	Fisher v Roads and Maritime Services New South Wales (No 2) [2018] NSWSC 1702
Hearing dates:	8 November 2018
Decision date:	08 November 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Dismiss the proceedings for want of due despatch pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 12.7.  (2) Order the plaintiff to pay the defendant's costs of the proceedings.
Catchwords:	PRACTICE AND PROCEDURE – whether adjournment of final hearing should be granted – adjournment refused – matter dismissed for want of due despatch
Legislation Cited:	Road Transport Act 2013 (NSW), s 33 Uniform Civil Procedure Rules 2005 (NSW) (UCPR), rr 12.7, 13.4, 42.1
Cases Cited:	Fisher v Roads and Maritime Services New South Wales [2018] NSWSC 139
Category:	Principal judgment
Parties:	Brian Stanley Fisher (Plaintiff) Roads and Maritime Services (Defendant)
Representation:	Counsel: Plaintiff via telephone conference BK Hearnden (Defendant)   Solicitors: Hunt & Hunt (Defendant)
File Number(s):	2018/15839

Judgment – EX TEMPORE

Introduction

1. By summons filed on 16 January 2018, Mr Fisher, the plaintiff, seeks orders concerning a suspension of his driver's licence by the Roads and Maritime Services (RMS), the defendant. He also challenges the decision by RMS to attribute demerit points from Queensland to his driving record. Mr Fisher had previously made an application for a stay of the suspension which was heard and determined by Johnson J on 15 February 2018 who refused to grant a stay: Fisher v Roads and Maritime Services New South Wales [2018] NSWSC 139.

2. Mr Fisher did not appear in person before me today as he was in Lismore and informed me that he did not have the wherewithal to travel to Sydney. I permitted him to “appear” by telephone in order that he could make oral submissions and respond to the defendant’s submissions. He applied for the hearing of the matter, which was listed for today, 8 November 2018, to be adjourned.

Procedural history of the matter

3. The matter was listed for directions on 22 March and then adjourned to 26 June 2018. On each of those occasions the plaintiff was directed to file and serve any evidence in support of his application, and the defendant to serve matters in response. On 26 June 2018, a direction was made which required the plaintiff to file and serve any evidence on which he intended to rely by 23 August 2018 and written submissions by 20 September 2018. Also on that day, Registrar Bradford listed the matter for a one-day hearing before the Court on 8 November 2018.

The plaintiff’s application for an adjournment

4. Recently Mr Fisher notified the defendant that he would seek an adjournment of the hearing date on 8 November 2018 as he had been unable to attend to the preparation of his evidence and submissions due to financial and personal problems. Mr Fisher explained that his financial difficulties had meant that he had been unable to issue a subpoena to the defendant to obtain records of communication between himself and the defendant, and he had been unable to obtain access to files which are apparently located in the archives at the Taree Local Court. Further, he indicated that he wished to amend the summons to add two further decisions to expand the ambit of the proceedings, and said that he wished to challenge a conviction entered by the Local Court of Taree in his absence.

5. Mr Hearnden, who appears on behalf of the defendant, submitted that largely on the same basis as was submitted to Johnson J on 15 February 2018, the plaintiff's claim was bound to fail. He submitted that it was not in the interests of justice for the defendant to have to incur costs in circumstances where the plaintiff was not ready to be heard on a matter which had no utility. Mr Hearnden referred to the statutory framework which makes it clear that the suspension operates by force of s 33 of the Road Transport Act2013 (NSW) and was not an administrative decision made by an officer of the defendant which might otherwise be amenable to judicial review.

Consideration

6. It seems to me that the issues that arise today are: whether I should adjourn the proceedings, as the plaintiff has sought; or whether I should dismiss the proceedings either for want of due despatch under Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 12.7 or pursuant to UCPR, r 13.4, namely that no cause of action is disclosed or the proceedings are otherwise frivolous or vexatious. The latter course would require me to determine the matter on the merits. Whilst Mr Hearnden has submitted that that would be feasible to determine the matter on the merits, having regard to the evidence tendered before Johnson J, it would appear to me that there would be some injustice in doing so as the plaintiff himself has not filed evidence and does not appear to me to be ready - if ever he will be - to argue the merits of the matter. In the interests of justice, it would appear to me to be more appropriate that the matter be dismissed for want of due despatch. Indeed, that is the course which Mr Hearnden proposed.

7. The plaintiff has, as the narrative set out above indicates, failed to comply with the Court's directions over a substantial period. Indeed, it does not appear that he has complied with any of the Court's directions since the commencement of the proceedings. It is not in the interests of justice that proceedings which are not being reasonably prosecuted by a plaintiff be allowed to languish in the Court's list. The effect of that occurring is that parties such as the defendant in the present case continue to incur costs, and plaintiffs in Mr Fisher’s position continue to incur a contingent liability for costs. This is not only to the detriment of both parties, but it is also to the detriment of the public in that it interferes with the efficient allocation of court resources and the administration of justice.

8. In these circumstances, I am satisfied that it is appropriate to order that the proceedings be dismissed for want of due despatch pursuant to UCPR, r 12.7.

Costs

9. Mr Hearnden has submitted that costs ought follow the event in accordance with the general rule under UCPR, r 42.1. He contended that Mr Fisher would have been liable for the costs in any event, had I acceded to his application for an adjournment. Mr Hearnden submitted that it would be unlikely that the costs flowing from dismissal of the proceedings would be significantly greater in any event than were I to have granted the plaintiff's application for an adjournment.

10. Mr Fisher resists an order for costs on the basis that he is presently impecunious and that it would cause him hardship were a costs order to be made against him in favour of the defendant. He informed me that, because his experience is that the defendant enforces costs orders, he would hope that an order would not be made against him.

11. The plaintiff's conduct in commencing the proceedings and failing to comply with any of the directions made by the Registrar has put him in the position of not being able to prosecute the proceedings today, notwithstanding that they have been listed for hearing. I am not persuaded that there is any proper reason to depart from the general rule in UCPR, r 42.1 that costs follow the event. Whether the costs order is enforced is, of course, a matter for the defendant.

Orders

12. For the reasons I have given above I make the following orders:

1. Dismiss the proceedings for want of due despatch pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 12.7.

2. Order the plaintiff to pay the defendant's costs of the proceedings.

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Decision last updated: 09 November 2018