Greywolf Resources NL v Wilkinson

[2011] NSWSC 1604

Supreme Court

New South Wales

Medium Neutral Citation:

Greywolf Resources NL v Wilkinson [2011] NSWSC 1604

Hearing dates:

Thursday, 1 December 2011

Decision date:

01 December 2011

Before:

White J

Decision:

1. Pursuant to s 61 of the Civil Procedure Act 2005 I order that the summons be dismissed.

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

Catchwords:

PROCEDURE - proceedings dismissed for want of compliance with directions - Civil Procedure Act 2005, s 61

Legislation Cited:

Civil Procedure Act 2005

Category:

Principal judgment

Parties:

Greywolf Resources NL (Plaintiff)
Michael Wilkinson (Defendant)

Representation:

N Kelvin, solicitor (Plaintiff)
In person (Defendant)
Hancocks Solicitors (Plaintiff)
N/A (Defendant)

File Number(s):

2011/274081

Judgment

1. HIS HONOUR : These proceedings were commenced by summons filed on 24 August 2011. The plaintiff sought declarations that the defendant had disclosed confidential information about its business to various persons and sought an injunction to restrain the defendant from disclosing financial information about its business. The summons also sought interim orders.

1. The affidavits filed with the summons were affidavits of Daniel Flett and Geoffrey Skelton. Neither of those affidavits contains evidence of the defendant having disclosed confidential information. Rather, the affidavits complain that the defendant was engaged as a contractor to do work for the plaintiff. The plaintiff also complained that the defendant has been causing the plaintiff trouble because of a sour business venture. Much of the material in the supporting affidavit would be inadmissible. Leaving that aside, the complaint against the defendant appears to be that he has been sending emails and text messages that are insulting or troublesome.

1. The proceedings came before the Duty Judge on 24 August 2011 on the plaintiff's ex parte application and were stood over to 31 August 2011. On 31 August 2011 there was no appearance for the defendant. The matter was stood over until 7 September 2011 before the Duty Judge and the plaintiff was directed to notify the defendant of the adjourned hearing.

1. On 7 September 2011 orders were made by consent that the plaintiff file and serve an amended summons within 21 days. The matter was stood over to 5 October 2011.

1. The defendant appeared before the Registrar on 5 October 2011. There was no appearance for the plaintiff. The Registrar stood the proceedings over to 27 October 2011. On 6 October 2011 the plaintiff's solicitor was notified in writing by the Registrar that if there was no appearance for the plaintiff on the adjourned date, the matter might be dismissed.

1. There was an appearance by both parties on 27 October 2011. Mr Kelvin, solicitor, appeared for the plaintiff. The defendant appeared in person.

1. By this stage the plaintiff was more than four weeks in default of the previous direction that it file and serve an amended summons by 28 September 2011. On 27 October 2011 a different order was made. The plaintiff was ordered to serve its proposed statement of claim and affidavits by 17 November 2011. The matter was stood over to 1 December 2011. Those orders were not complied with.

1. Mr Kelvin has filed an affidavit of 30 November 2011 in which he notes that the plaintiff has not complied with the last orders. He deposes that:

" On 30 November 2011, I telephoned Mr. Nagle, counsel who has been involved in the matter. Mr Nagle said to me words to the effect: Nagle: 'I am halfway through working on pleadings, but I have been too unwell to complete them. I may have to go into hospital.' "

1. The plaintiff asked for a short indulgence. I was advised that the plaintiff now proposes to brief Mr Damien Allen of counsel. Contrary to the impression gained from reading Mr Kelvin's affidavit, it seems the Mr Nagle referred to is not a barrister, but an in-house counsel for the plaintiff.

1. The position is that the plaintiff seems to have commenced proceedings on 24 August 2011 with insufficient affidavits that provide no basis for the relief sought.

1. Successive orders have been made for the plaintiff to file and serve amended summons or statement of claim and further affidavits. It has not complied with the orders. The defendant has been put to repeated trouble of appearing. I do not think it appropriate that the matter simply be stood over and stood over again, whilst the plaintiff gets its house in order.

1. Dismissal of these proceedings for want of compliance with directions will not act as an estoppel barring the plaintiff from bringing whatever claim can properly be brought. But in my view, it would be an harassment for the defendant to be required to continue to appear in these proceedings.

1. Having regard to the affidavits that were filed and having regard to the repeated non-compliance with the Court's orders I think the appropriate course is that these proceedings be dismissed. I note that the plaintiff does not appear to have pressed at any time for the interlocutory relief foreshadowed in the summons. That is not surprising having regard to the affidavits filed in support of the summons.

1. Pursuant to s 61 of the Civil Procedure Act 2005 I order that the summons be dismissed.

1. I order that the plaintiff pay the defendant's costs of the proceedings.

1. I note that the dismissal of the proceedings does not follow a determination of the merits of the proceedings, if any. Pursuant to s 92 of the Civil Procedure Act the dismissal does not affect the right of the plaintiff to bring properly constituted proceedings some time in the future.

Decision last updated: 21 December 2011