Hydedale Pty Ltd v Robert Luxmore Pty Ltd

[2003] VSC 98

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PRACTICE COURT

No. 5765 of 2001

HYDEDALE PTY LTD AND ANOTHER	Plaintiffs
v
ROBERT LUXMORE PTY LTD AND OTHERS	Defendants

---

JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 MARCH 2003
DATE OF JUDGMENT:	20 MARCH 2003
MEDIUM NEUTRAL CITATION:	[2003] VSC 98

---

Appeal – Appeal from order of a Master that the proceeding be struck out – Failure by plaintiff to adhere to timetable to amend pleadings – Whether plaintiff’s claim one of substance – Leave to appeal granted – Appeal granted.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr P. Bick SC	Peter S. Lustig
For the Defendants	Mr S. Marantelli	Goldhirsch & Shnider

HIS HONOUR:

1. This is an application for leave to appeal against an order of Master Bruce’s made on 22 August 2002 and an appeal against an order made by the Master on 20 February 2003.  In the alternative, the plaintiffs, who seek the relief to which I have just referred, seek orders that, on the assumption that on 22 August 2002 Master Bruce struck out the proceeding, it be reinstated.  The plaintiffs further seek an order that they have leave to file and serve an amended statement of claim and, in the alternative, an order that all times made in previous orders be extended so as to ensure that this proceeding remains on foot and so as to enable the filing and service of the plaintiffs’ amended statement of claim.

1. The case is in many respects an unfortunate one.  In my opinion, the prosecution by the plaintiffs of their claim has been marked by a lack of diligence and care which is at the least highly regrettable.  For example, the plaintiffs sought and obtained the defendants’ consent to an interlocutory step being adjourned from a date earlier in 2002 to the month of August 2002.  Appropriate correspondence was forwarded to the Master, but no attempt was made to follow that correspondence by an enquiry of the Master’s office about the date in August to which these proceedings had been adjourned.  Again, although the plaintiffs were successful on an appeal from an order of the Master striking out part of their statement of claim, they then neglected to adhere to the time limited for the making of the amendments which they were permitted to make, to the extent that neither the court nor the defendants were informed of what progress, if any, was being made for a period of some five months.  Those examples are merely examples of a litany of instances which can, I think, fairly be characterised as careless or worse on the part of the plaintiffs and, or perhaps or, their legal practitioners.  To say that, however, is not to say that the plaintiffs should necessarily be prevented from continuing to prosecute their claim. 

1. It has been put to me in submissions made on behalf of the defendants that there is no material to substantiate the proposition that the claim is one of substance.  The answer to that seems to be, in part, that the file itself discloses, in so far as a file can, that the plaintiffs have a claim that can be properly characterised as of substance, and that in any event a mere affidavit stating some legal practitioner’s opinion of the substance of the claim cannot take the matter very much further.  While, therefore, a court should, I think, be very much influenced by a positive indication that a claim is without substance, the fact that there is no positive evidence indicating that the claim is of substance is not, it seems to me, a matter of particular significance.  For the reasons I have endeavoured to state, it is not easy to simply state, even in affidavit form, that a claim has substance, because, until the affidavit is tested, it remains no more than an untested assertion based upon untested facts.  There being nothing before me to indicate that the plaintiffs’ claim lacks substance, I am prepared to proceed on the basis that it ought not be regarded as so lacking.

1. Given that there is substance to the plaintiffs’ claim, it seems to me that this is not a case which warrants its dismissal without a hearing on the merits.  Despite the very regrettable progress of the matter so far, that progress could not, in my opinion, be classed in the category of cases warranting dismissal for want of prosecution, particularly given that the most egregious delay was one of some five or six months.  Otherwise, as far as I can ascertain with my limited knowledge of the conduct of the proceeding, it has moved forward with reasonable expedition, albeit that the proceeding itself was instituted at a point very close to the expiration of the limitation period. 

1. Given that justice requires that the plaintiffs not be shut out without a hearing, it now behoves me to consider the most appropriate means of ensuring that the proceeding is returned to a proper footing.  It seems to me that in this regard I ought to accede to the plaintiffs’ primary submission and allow the appeal in respect of the Master’s order of 20 February and give leave to appeal against the Master’s order of 22 August last year and allow that appeal.  In my respectful opinion, it was inappropriate for the Master to make on 22 August 2002 the orders which were then made.  It is not in contest but that the parties were unaware on 22 August of orders made by the Master without the parties being present on 13 June.  Given that the parties were not aware of the orders of 13 June, it was inevitable that they would not attend on 22 August, and in the circumstances, albeit that the Master was not fully aware of them, it seems to me that the making of a self-executing order was necessarily inappropriate.  I stress that no blame is to be attached to the Master for that.  In those circumstances I think it appropriate that I grant the plaintiffs leave to appeal out of time against the order of 22 August and also appropriate that, leave having been granted, I allow the appeal. 

1. The order of 20 February was made after the Master had heard the parties and after he had received what he thought, understandably in my view, was an inadequate explanation by the plaintiffs of their position.  First, the plaintiffs tendered no evidence before the Master on that day.  That failure seems to me to be extraordinary.  An attempt was made by the solicitor for the plaintiffs to explain it, but I am very surprised that experienced practitioners thought it appropriate to attend at a hearing, which was necessarily concerned with failures to take appropriate steps in the past, without proper evidence in explanation of those failures, if explanation could be given.  In the result, the Master was left to rely upon a letter from the plaintiffs’ solicitors to the defendants’ solicitors tendered by the defendants.  It is not surprising that he was very unimpressed by the plaintiffs’ approach to the matters which were then before the Master.  In those circumstances, it seems to me that the order of 20 February is entirely explicable, albeit that, for the reasons I have endeavoured to state, the basis of that order, that is, the self-executing order of 22 August, was not a basis upon which the Master could properly rely.  For that reason it seems to me appropriate to allow the appeal against the Master’s order of 20 February 2003.

1. The appeals having been allowed, the proceeding can now go forward.  The plaintiffs, as I have indicated, seek to amend their statement of claim.  They have, as an exhibit to an affidavit sworn by Peter Simon Lustig on 18 March 2003, a form of amended statement of claim upon which they seek to rely.  I propose to order that the plaintiffs file and serve by 4 p.m. tomorrow, Friday 21 March 2003, an amended statement of claim in the form of the relevant exhibit.

(Discussion ensued re costs.)

HIS HONOUR:  This is a somewhat unusual situation.  Although I have granted the relief which the plaintiffs have sought, I have done so not because the plaintiffs’ position is meritorious but because, in the broader interests of justice, it seems to me that the plaintiffs ought not now be shut out of their claim without a hearing.  The problems with which the court was confronted today were, it seems to me, of the plaintiffs’ making, and in those circumstances it seems to me that the plaintiffs should pay the costs of both today and the hearing before Master Bruce on 20 February.

---