Hill v W and F Lechner Pty Ltd

[2006] NSWSC 440

CITATION:	Hill & Anor v W & F Lechner Pty Ltd [2006] NSWSC 440
HEARING DATE(S):	12/05/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	05/12/2006
DECISION:	Legal representatives of the defendant ordered to apply to the Registrar for registration of themselves and any person authorised by them as users of the ECM System in terms of the Uniform Civil Procedure Rules 2005, r 3.3 and to inform associate of the identity of such persons by a specified date. Defendant ordered to pay plaintiff's costs on an indemnity basis forthwith upon assessment or agreement.
CATCHWORDS:	PROCEDURE - Supreme Court procedure - ECM Courts - Failure of defendant's solicitor to respond to a direction in the ECM Court or to ensure that counsel were registered as users of the ECM System - Appropriate orders in open court
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 Civil Procedure Act 2005 Electronic Transactions Act 2000
PARTIES:	Barry Ronald Hill and Dorothy Lillian Hill - Plaintiffs W & F Lechner Pty Ltd - Defendant
FILE NUMBER(S):	SC 1681/05
COUNSEL:	Mr McDonlad (Solicitor) Mr P McEwen SC
SOLICITORS:	Philip Densham White Solicitor & Barrister Autore & Associates Solictors & Attorneys

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 12 MAY 2006

1681/05 BARRY RONALD HILL & ANOR v W & F LECHNER PTY LTD

EX TEMPORE JUDGMENT

1 It has been necessary to direct the parties to appear before me because of the failure of the solicitor for the defendant to cause counsel for the defendant to become registered as users of the ECM system under the Uniform Civil Procedure Rules 2005, r 3.3 and to notify my Associate so that they can become participants in the ECM court opened in this matter, and because the solicitor for the defendant, who is a participant in the ECM Court, has failed to respond to my direction.

2 Before the ECM Court was opened, and on numerous occasions thereafter, my Associate telephoned the solicitor for the defendant asking him to attend to these matters. She explained that as the system was new, I did not want to make formal orders in the first instance. The solicitor for the defendant informed my Associate that the matters would be attended to by Monday 8 May 2006. They were not.

3 After my Associate had made initial contact with the solicitors on both sides, I made the following orders on 12 April 2006:

“Pursuant to the Civil Procedure Act 2005, s 71(f) I direct that any future directions hearings and, unless otherwise ordered, any interlocutory applications in this matter be conducted in the absence of the public. In terms of the Electronic Transactions Act 2000, s 14I and the Uniform Civil Procedure Rules 2005, r 3.9, I direct that until further order such pre-trial directions and interlocutory applications be conducted by electronic communication sent and received by means of the ECM system. I vacate the directions hearing set down before me on Thursday 20 April 2006.”

4 I then opened the ECM Court and entered in it the following message:

“Explanation

In order that future directions and interlocutory applications in this matter that may appropriately be conducted in the absence of the public may be conducted by the ECM system, I have opened this ECM Court.

I refer the parties to my analysis of the power to open an ECM Court in Koompahtoo Local Aboriginal Land Council v KLALC Property & Investments Pty Ltd & anor (No 2) [2006] NSWSC 169.

The parties are advised that Practice Note SC Gen 12, that came into operation on 22 March 2006, applies to ECM court proceedings.

I append hereto orders made by me today. They have been forwarded to the Registry in order that Courtnet may be updated.”

5 On the same day I entered a further message about directions:

“Directions

I append a suggested set of directions. The parties should consider them and respond accepting them, or suggesting variations to them. Once agreement is reached or I have ruled on any disagreements, I will make orders in their terms which will be forwarded to the Registry and attached to this ecmCourt.

The parties are reminded that the proposed directions enable them to make any application in the ecmCourt that does not entail the taking of oral evidence. If I think the matter should be adjourned into open court, I will do so.”

6 The directions in the appended document were in the following terms:

“1. Direct the Plaintiffs to deliver to my Associate the originals of any affidavits to be filed and serve on the Defendant and deliver to my Associate a list of affidavits to be read by no later than 4.00 pm on Friday 26 May 2006.
2. Direct the Plaintiffs to serve on the Defendant and deliver to my Associate an outline of argument and list of authorities by no later than 4.00 pm on Friday 26 May 2006.

3. Direct the Defendant to deliver to my Associate the originals of any affidavits to be filed and serve on the Plaintiffs and deliver to my Associate a list of affidavits to be read by no later than 4.00 pm on Friday 2 June 2006.

4. Direct the Defendant to serve on the Plaintiffs and deliver to my Associate an outline of argument and list of authorities by no later than 4.00 pm on Friday 2 June 2006.

5. Direct the Plaintiffs to serve on the Defendant and deliver to my Associate any written reply by no later than 4.00 pm on Tuesday 6 June 2006.

6. Liberty to any Party to apply in the ECM court.”

7 On Friday 21 April 2006, the solicitor for the plaintiffs added the following message:

“Your Honour,

I appear for the Plaintiffs.

I agree with proposed orders 1, 2, 4, 5 and 6.

As to order 3, no Affidavits have been served by the Defendant/Cross-Claimant. Any such Affidavits were ordered to be served initially by 1 November 2005, and, most recently, by 31 March 2006.

Accordingly I submit that proposed order 3 is not necessary.”

8 On Monday 24 April 2006, I responded thus:

“What is the attitude of the defence to the directions including the amendment suggested by the plaintiff?”

9 I have not been favoured with a response.

10 As s 56(1) of the Civil Procedure Act 2005 states, the overriding purpose of the Act and the Uniform Civil Procedure Rules 2005 is to facilitate the just, quick and cheap resolution of the real issues in proceedings. The ECM Court facility for which provision is made in the Electronic Transactions Act 2000, s 14I and in the Uniform Civil Procedure Rules 2005, r 3.9 is one way of obtaining that objective. But it will not work if the legal representatives of the parties will not co-operate.

11 In view of the failure of the solicitor for the defendant to carry out my Associate’s requests I make these orders. I order the legal representatives of the defendant and any other legal representatives of the plaintiff to apply to the Registrar for registration of themselves and any person authorised by them as users of the ECM system in terms of the Uniform Civil Procedure Rules 2005, r 3.3 and inform my Associate of the names of the persons so registered by no later than 4.00 pm on Tuesday 16 May 2006.

12 Again, because the system is new, I do not propose to order the solicitor for the defendant to pay the costs of this unnecessary hearing personally under the Civil Procedure Act 2005, s 99. I order the defendant to pay the plaintiffs’ costs of today’s hearing on an indemnity basis forthwith upon assessment or agreement.

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