Francis, N.I. v NSW Egg Producers Cooperative P/L

[1994] FCA 189

IF;? 1 99-

JUDGMENT NO. ........ 1w111m1. *.o**..****t

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 540 of 1992
GENERAL DIVISION	1

Between:

Applicant

And :	NSWEGGPRODUCERSCOOPERATIVE
PTY LIMITED & ORS

Respondent

REASONS FOR JUDGMENT

EINFELD J SYDNEY 13 APRIL 1994

These proceedings were commenced by the applicant and his then partner on 28 July 1992 as an urgent matter which was settled on the following day. An application and statement of claim was filed on 11 September 1992, two weeks after filing by 31 August was ordered. A particularised statement of damages with supporting documentation, also ordered to be filed by 31 August, was not filed at all. In fact several further orders to advance the preparation of the case in the usual way were also ignored with no real excuse or explanation being proffered. This complete inability even refusal to comply with the Court's rules and case preparation directions and other orders, and to present his case promptly and intelligibly, have marked the applicant's conduct of the proceedings from the outset. His response to the respondent's cross claim was so inadequate that the respondent filed a motion seeking summary judgment on the cross claim on 4

was granted leave to file an amended statement of claim and an May 1993. The result was that on 5 May the applicant sought and

amended defence to the cross claim. This was ordered to be done by 21 May 1993, but nothing in fact emerged until 26 August 1993.

On 4 August 1993 a motion, filed pursuant to leave granted on 21 July, for the dismissal of the applicant's claim for want of prosecution was returned. This motion was significantly influenced by the applicant's solicitor advising on 20 July that, for the second time, he had no instructions and was proposing to file a notice of ceasing to act. Although I said when leave for the motion was granted on 21 July, that it would be heard on 4 August, the motion was then adjourned by consent to 19 October 1993, along with the proceedings generally. The applicant was given fourteen days to file and serve his amended statement of claim, an amended defence to the cross claim and the particularised statement of damages. He was also ordered to pay the costs of the day taxable forthwith and payable immediately thereafter. The first two were filed and served eight further days later; the damages statement was not filed until 10 March 1994. Not a semblance of an explanation has been given for this

of them made by consent. The case now being presented by the contemptuous attitude to the Court's orders and directions, most applicant bears no resemblance to the original proceedings.

The respondent has reluctantly accepted that its motions cannot succeed because the applicant has more or less dealt with the matters they raise. He now seems to have whatever case he can bring in as good a condition for hearing as it is ever likely to be. Accordingly the motions must be dismissed. The respondent asked for its costs of the motions, and directions were made for written submissions. The respondent's submissions were filed on 16 February 1994 but the applicant has again defied the Court's order by not filing any submissions at all. The applicant's solicitor was unable to proffer any explanation for this failure and had the temerity to ask for an extension of time. This application was refused. On not one directions hearing has the applicant ever properly explained or apologised for his many failures to comply with Court orders.

The facts I have summarised leave no doubt that the respondent should have an order for its costs of both motions on an indemnity or solicitor and client basis. Whentaxed, these costs are to be paid forthwith. I order that the applicant and his solicitor each file, by not later than 4pm on Wednesday 4 May 1994, one or more affidavits to show why they should not be dealt with for contempt of the Court's orders and directions in this matter.