Frances Rita Maloof v Uncle's Joint Pty LimitedTiba Clementine Maloof v Uncle's Joint Pty Limited

[2014] NSWSC 1187

Supreme Court

New South Wales

Case Title:	Frances Rita Maloof v Uncle's Joint Pty LimitedTiba Clementine Maloof v Uncle's Joint Pty Limited
Medium Neutral Citation:	[2014] NSWSC 1187
Hearing Date(s):	22 August 2014
Decision Date:	22 August 2014
Jurisdiction:	Equity Division - Expedition List
Before:	Sackar J
Decision:	paragraphs 18 - 21
Legislation Cited:	Civil Procedure Act 2005
Cases Cited:	Smithson & Ors v National Australia Bank & Anor [2011] NSWSC 312
Texts Cited:	N/a
Category:	Procedural and other rulings
Parties:	Frances Rita Maloof, Tiba Clementine Maloof - plaintiffs Uncle's Joint Pty Limited - defendants
Representation
- Counsel:	Counsel: C Harris SC - plaintiffs P Braham SC - defendants
- Solicitors:	Solicitors: Knight Lawyers - plaintiffs Watson Mangioni Lawyers - defendants
File Number(s):	2013/360586, 2013/360672

JUDGMENT - EX TEMPORE

1. This is a notice of motion in which the defendants seek amongst other things that the hearing which is due to commence on Monday 25 August for a period of five days be vacated.

2. The reasons for the application are set out in the affidavit of Ms Anita Panikkar of 21 August 2014. It is asserted that materials have been served this week out of time and which includes a combination of affidavits from witnesses not previously notified, being two solicitors and a builder together with other new documentary materials including text messages.

3. The history of this matter discloses that both sides have from time to time been in default of timetables.

4. The matter was fixed for hearing for 25 August, on the 16 April 2014. The reason for expedition as I understand it (which may or may not still be the case) is to clarify who has control of various trusts because of its relevance to pending Family Provision Act proceedings.

5. Directions were made for the defendants to file their evidence by 30 May, but an extension to 4 July was sought and obtained. The defendants, however, did not comply with those directions and affidavits were filed between 17 and 21 July.

6. The plaintiffs were due to have filed their materials by 15 August. They did not do this. They say that such delay was caused by answering fresh factual allegations first raised by the defendants in July. The plaintiffs have served their materials in a piecemeal fashion during this last week. As at today for example one of the principal witnesses to be called by the plaintiffs, a Ms Frances Maloof, has still to swear her affidavit although an unsworn affidavit has been served.

7. On 25 July when I gave the direction for the filing of the plaintiff's materials by 15 August counsel for the plaintiffs made some reference to the potential unavailability of both senior and junior counsel for a short period, but nonetheless agreed to the timetable.

8. Sections 56, 57 and 58 of the Civil Procedure Act require both parties to cooperate with each other and the Court to ensure, amongst other things, that proceedings are cost effectively prepared. More importantly that they are to be prepared so that neither side could be seen as being disadvantaged by material which comes in late and which cannot arguably be met in time. It is fundamental that timetables must be kept especially where matters are expedited.

9. It may well have been the defendants in July belatedly raised new factual issues. The plaintiffs however made the forensic choice of setting out to answer those allegations it seems in some detail. Counsel for the plaintiffs sought to submit that a portion of what the defendants have filed is irrelevant. So be it. The plaintiffs in that event could have chosen to ignore those materials. Instead they chose to, in a tit for tat way perhaps put material before the Court in answer to the various factual assertions, hence causing a delay.

10. The Expedition List is conducted for the very purpose of providing hearings to those who urgently need them. The resources of the Court are both finite and valuable. As Pembroke J pointed out in the decision of Smithson & Ors v National Australia Bank & Anor [2011] NSWSC 312, the Court needs constantly to reassess and rebalance competing claims, particularly when one party or the other, or perhaps both, disadvantage the other by not abiding by timetables.

11. The late provision of materials, especially novel materials, has the obvious capacity to disrupt the orderly preparation for trial. If a party has reasonable grounds for believing a timetable cannot be maintained it should alert its opponent and the Court so as to enable the exploration of practical ways of maintaining the hearing date. That is so in any list but especially the Expedition List.

12. It was submitted by the plaintiffs that a mediation which was recently conducted distracted the parties and diverted resources. Whilst I accept that it may have diverted some resources, it was held at a time when the case should have been at a very advanced degree of readiness both legally and factually. Obviously it was not in such a state.

13. The belated deployment by the plaintiffs of two solicitor's affidavits sworn in 2011 in relation to other proceedings without any prior notice, was always going to cause a problem. The defendants are entitled to investigate that evidence and its impact on the trial. They are not I was told witnesses in the control of the plaintiffs which frankly only adds to the complexity of either party dealing with them. There was also an entirely new affidavit from a Mr Matar, a builder. Although his affidavit is short it raises new factual material which the defendants are likewise entitled to investigate. I make no comment on the other materials which at some level will require investigation.

14. In applications such as these the Court must, to a large extent, rely upon the evaluation of experienced senior counsel. For one party to say there is prejudice or likely to be prejudice and for the other party confidently to assert there is none will usually be resolved if there is some credible basis for finding it in favour of the party asserting the prejudice. The extent of the prejudice is not always easy to quantify but in the case of new and/or belated materials served a Court can usually be comfortably satisfied of its likely existence. I am certainly satisfied here the defendants have been or are likely to be prejudiced.

15. Litigants cannot be permitted to conduct proceedings by deliberately or otherwise exploiting an element of surprise. There is no suggestion here that the plaintiffs have deliberately sought to do anything other than advance their best case. The result however of their forensic choices has created tangible difficulties for the defendants which cannot be satisfactorily dealt with whilst maintaining the hearing dates.

16. Counsel for the plaintiffs indicated that he was prepared to entertain a re-ordering of witnesses. I do not consider that is practical given the fact that it may require the recalling of some of them and it may not be, in the end, advantageous to anyone, not the least of which the Court in trying to understand the factual issues and the extent to which they are relevantly in dispute.

17. However, there is a further factor that concerns me and militates heavily in my mind in favour of a vacation of the present hearing dates, and that is that the five days currently allotted may not be anywhere near enough time. Counsel for the plaintiffs has candidly accepted that five days is unlikely to be sufficient to complete anything other than perhaps a substantial portion of the evidence. For this matter to be part-heard means that I may have to adjourn it for a considerable period if other matters cannot be reallocated, leaving counsel's availability entirely to one side. It seems to me that no hearing, not the least of which those where expedition is deemed appropriate, should be processed piecemeal if that can be avoided.

18. In the circumstances I consider the hearing should be vacated, which is order 1 in the motion.

19. Order 2 proposes I fix another date. I do not propose to fix this matter for hearing at the moment for two reasons. First, I do not know how much of the Court's time needs to be allocated for the proper disposal of the various issues. Secondly the need for expedition may no longer exist or be justified.

20. As far as costs are concerned, as there have been faults on both sides, I do not propose to make an order for costs today. I will reserve all questions of costs.

21. I would direct that counsel provide a timetable for further directions. I will then give consideration at any future directions hearing to the fixing of fresh hearing dates. I should say however that I consider there is a very large question mark over whether this case truly requires expedition given its history, but I will leave that to be determined in due course.

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