Hanna v Dib trading as Dib Lawyers

[2017] NSWSC 1612

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Hanna v Dib trading as Dib Lawyers [2017] NSWSC 1612

Hearing dates:

22 November 2017

Date of orders:

22 November 2017

Decision date:

22 November 2017

Jurisdiction:

Common Law

Before:

Schmidt J

Decision:

(1)   The proceedings are dismissed instanter.

 

(2)   The plaintiff to pay the defendant's costs of and incidental to the directions hearings on 4 October 2017 and today in addition to the costs ordered on 23 August 2017 as to the costs of the defendant's notice of motion filed on 22 June 2017.

 (3)   These orders be entered forthwith.

Catchwords:

PROCEDURE – order sought seeking proceedings be dismissed for want of due dispatch – orders made – costs

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

Peter Hanna (Plaintiff)
Ghassan Dib trading as Dib Lawyers
(ABN 18 124 024 076) (Defendant)

Representation:

Solicitors:
K&L Gates (Defendant)

File Number(s):

2017/161007

Publication restriction:

Nil

EX TEMPORE Judgment

1. HER HONOUR: These proceedings were commenced on 29 May 2017 by Mr Hanna, by way of statement of claim. In June the defendant, Mr Dib, by motion and supporting affidavit, sought orders that the proceedings be dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW).

2. Initially Mr Hanna was represented by a firm of solicitors, including in June when Registrar Bradford made various orders, including an order for service of an amended statement of claim. The matter then came before Button J on 23 August, when Mr Hanna was represented by Mr Kirby of counsel. On that occasion Mr Hanna had also not complied with the Registrar’s orders and a further indulgence was sought, in order to permit him to put his case on foot. That was opposed, but Button J made orders striking out the statement of claim which had been filed in May and giving Mr Hanna a further opportunity to provide the defendant with a draft amended statement of claim by 8 September. A regime was also implemented by those orders, to enable Mr Dib to notify Mr Hanna as to whether he consented to the filing of the amended statement of claim and, if he did not, permitting Mr Hanna to file and serve a notice of motion seeking leave to file the amended statement of claim.

3. The matter then came before Registrar Bradford in October 2017, again in circumstances where Mr Hanna had not complied with Button J’s orders. At that point Mr Dib sought a self-executing order that the proceedings be struck out, if the further timetable proposed, was not adhered to by Mr Hanna. Registrar Bradford did not make that order. Instead he imposed another timetable whereby Mr Hanna was given the opportunity to provide the draft amended statement of claim by 1 November. The other orders which were then made were:

“2.   The defendant is to notify the plaintiff as to whether he consents to the filing of the amended statement of claim by 8 November 2017.

3.   If the defendant consents to the draft pleading, the plaintiff is to file and serve the amended statement of claim by 15 November 2017.

4.   If the defendant does not consent to the draft pleading, the plaintiff is to file and serve a notice of motion seeking leave to file the drafted amended statement of claim by 15 November 2017.

6.    List the matter for directions on 22 November 2017.

7.    Liberty to apply on 3 days' notice.

Should plaintiff not comply with Orders 1 or 4, then on 22 November 2017 the matter is to be referred to the Duty Judge for Show Cause.

Stood over 22 November 2017.”

4. When the matter came before the Registrar today, the position was again that Mr Hanna had not complied with any of the orders which had been made on 4 October.

5. Contact then was made with Mr Kirby of counsel, who indicated that he had no further instructions to appear for Mr Hanna. On the file is a notice filed on 22 August by Mr Hanna’s former solicitors of ceasing to act. Mr Kirby also advised that he was not aware of any other solicitors having been instructed by Mr Hanna.

6. Mr Hanna has not today appeared, either before the Registrar or when the matter came into the list before me as duty judge, where Mr Hanna would have been given an opportunity to show cause why the proceedings should not be dismissed for want of due dispatch, under r 12.7 of the Uniform Civil Procedure Rules.

7. Mr Hanna not having availed himself of that opportunity, Mr Dib asks the Court now to make an order dismissing the proceedings.

8. Given the history of the matter which I have outlined, where since August Mr Hanna’s statement of claim having been struck out and he having not taken advantage of any of the opportunities he has been given, to put his proceedings on a proper footing, I am satisfied that the circumstances are such that an order should now be made dismissing the proceedings for want of due dispatch.

9. That accords with the requirements of s 56 of the Civil Procedure Act 2005 (NSW), which imposes obligations not only on the Court but also on the parties and their legal representatives in relation to the facilitation of the overriding purpose, namely the just, quick and cheap resolution of the real issues in proceedings which the parties bring before the Court.

10. In all of the circumstances I have discussed, I am satisfied that the dictates of justice demand that the order which Mr Dib now presses should be made: s 58(1). The usual order under the Rules is that costs follow the event. That would be an order for costs as agreed or assessed in favour of Mr Dib.

11. For these reasons I make orders in terms of the short minutes of order which I have marked MFI 1:

1. The proceedings are dismissed instanter.

2. The plaintiff to pay the defendant's costs of and incidental to the directions hearings on 4 October 2017 and today in addition to the costs ordered on 23 August 2017 as to the costs of the defendant's notice of motion filed on 22 June 2017.

3. These orders be entered forthwith.

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Amendments

24 November 2017 - typographical error

Decision last updated: 24 November 2017