Jackson-Grose v Minter

[2001] NSWSC 920

CITATION:	Jackson-Grose & anor v Minter & ors [2001] NSWSC 920
FILE NUMBER(S):	SC 2501/01
HEARING DATE(S):	16 October 2001
JUDGMENT DATE:	16 October 2001
PARTIES :	David Jackson-Grose (First Plaintiff) Catherine Jackson-Grose (Second Plaintiff) Diana Louise Minter (First Defendant) John Nixon Wilson (aka Michael John Wilson) (Second Defendant) Kenneth Gregor Wilson (aka Keith Dennis Wilson) (Third Defendant) William Richard Tooth (Fourth Defendant) Colin Stuart Godfrey (Fifth Defendant) Ronald Arthur Tarbert (Sixth Defendant) Glenn Connelly (Seventh Defendant) Melina Connelly (Eighth Defendant) Forenda Pty Limited (Ninth Defendant) United Import Export Pty Limited (Tenth Defendant) Sharcode Pty Limited (Eleventh Defendant) Rellcress Pty Limited (Twelth Defendant) Taliblue Pty Limtied (Thirteenth Defendant) Romulus Holdings Pty Limtied (Foruteenth Defendant) Oceanmonth Pty Limited (Fifteenth Defendant) Pacific Trade Centre Pty Limited (Sixteenth Defendant) Pacific Property Nominees Pty Limited (Seventeenth Defendant) Lynette Helen Laue (Eighteenth Defendant) Stephen Catsicus (Nineteenth Defendant) Colin Stephen Baker (Twentieth Defendant) Francis Carmichael (Twenty-First Defendant) Amanda Fischer (Twenty-Second Defendant) Sopati Pty Limited (Twenty-Third Defendant) Virmay Holdings Pty Limited (Twenty-Fourth Defendant)
JUDGMENT OF:	Master McLaughlin

COUNSEL :	Skinner (First Defendant) Bolster (Fifth, Nineteenth and Twentieth Defendants)
SOLICITORS:	TRB Law, Business Lawyers (First Defendant) Garland Hawthorn Brahe Solicitors (Thirteenth, Sixteenth, Seventeenth and Twenty-First Defendants)
DECISION:	1. Order that the summons be dismissed.; 2. Order that the Plaintiffs pay the costs of the First Defendant of the notice of motion filed by the First Defendant on 10 October 2001 and that there be no other order in respect to the costs of that notice of motion.; 3. Order that the Plaintiffs pay the costs of the Defendants of the proceedings.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

MASTER McLAUGHLIN

Tuesday, 16 October 2001

2501/01 DAVID JACKSON-GROSE & ANOR -V- DIANA LOUISE MINTER & 23 ORS

JUDGMENT

1 MASTER: There is presently before the Court an application by the first defendant, Diane Louise Minter, made by way of notice of motion filed on 10 October 2001. By that notice of motion the first defendant seeks substantively an order that the summons be dismissed. That application is made pursuant to the provisions of Part 5 rule 12 of the Supreme Court Rules. That rule provides in subrule (1) thereof:

"Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, stay or dismiss the proceedings."

2 The substantive proceedings were instituted by a summons filed on 8 May 2001. The plaintiffs, who filed that summons in person, were David Jackson-Grose as first plaintiff and his wife Catherine Helene Jackson-Grose as second plaintiff. There are twenty six defendants named in that summons. By that summons the plaintiffs claim the following relief:

1. Orders that matters being heard in the District Court (1417/99 and 7100/99) be moved to the Supreme Court of New South Wales and heard with the matter herein.

2. Orders that the defendants pay to the plaintiffs and their companies all amounts owing.

3. Orders for compensation for damages.

4. Orders that the defendants pay the plaintiffs' costs.

5. Orders that the New South Wales Police fully investigate the matters raised herein.

6. That the person named John Nixon Wilson, aka Michael John Wilson, be placed on the PASSALERT List by the Australian Federal Police and that all airports and points of departure in Australia and the Australian Federal Police co-operate with this order.

3 That summons was returnable before the Registrar on 25 May 2001. On that date the first plaintiff appeared in person, representing himself and also his wife. It should here be noted that the first plaintiff has appeared in person at the hearing before me today, representing both himself and his wife.

4 On 25 May 2001 the Registrar adjourned the matter to 18 June 2001. On that latter date the Registrar by consent made orders in accordance with short minutes. Those orders included an order that the plaintiffs file and serve a statement of claim by 6 August 2001. The matter was stood over to that latter date.

5 On 6 August 2001 neither plaintiff appeared, either in person or by any form of legal representation. The Registrar made further directions, which included a direction that the plaintiffs file and serve a statement of claim by 17 August 2001, and also a direction that any application for any further adjournment be supported by original affidavit evidence. The Registrar stood the matter over to 20 August 2001.

6 On that date the matter again came before the Registrar. Again neither plaintiff was present and neither plaintiff was represented. However, a communication sent to the Court on behalf of the first plaintiff, by way of facsimile transmission, sought an adjournment on medical grounds. The Registrar adjourned the matter to 3 September 2001.

7 The Registrar also directed that the plaintiffs be advised that a proper address for the plaintiffs in accordance with the Supreme Court Rules was to be supplied by the plaintiffs on or before 27 August 2001. The Registrar stood the matter over to 3 September 2001.

8 On that latter date the first plaintiff appeared in person. He sought leave to file in Court a notice of motion which sought to join additional plaintiffs and additional defendants. The Registrar directed that any such notice of motion be filed in the Registry in accordance with the prescribed procedure. The Registrar stood the matter over to 17 September 2001 to allow the plaintiffs to file such notice of motion, and to allow the defendants to consider the proposed joinder of additional parties.

9 According to the affidavit of Timothy Vincent Martin sworn 10 October 2001, filed in support of the present notice of motion, the notice of motion which the plaintiffs sought to file on 3 September 2001 was apparently filed on 5 September 2001 but was never served upon the first defendant or her solicitor.

10 On 17 September 2001 the matter was again listed before the Registrar. On that occasion Mr Henry Kelly, solicitor, appeared for the plaintiffs. He informed the Registrar that the plaintiffs would not be pursuing the first prayer for relief in the summons, that prayer being for an order that certain proceedings in the District Court of New South Wales be removed into the Supreme Court and be heard together with the present proceedings.

11 Mr Kelly also informed the Registrar that a draft statement of claim, which apparently had been served upon the defendants on 3 September 2001, would require substantial amendment. Mr Kelly sought a further adjournment to enable him to obtain proper instructions. The Registrar thereupon adjourned the matter to 2 October 2001 and directed the plaintiffs to serve a draft statement of claim and to file a notice of address for service before that date.

12 No such draft statement of claim was served, and apparently no notice of address for service in accordance with the directions of the Registrar was served within the time stipulated.

13 On 2 October 2001 the matter was again listed before the Registrar. The first plaintiff again appeared in person and on behalf of the second plaintiff. He informed the Registrar that Mr Kelly was no longer representing the plaintiffs, and he sought a further adjournment. The Registrar declined to grant such an adjournment and dismissed the notice of motion which had been filed by the plaintiffs on 5 September 2001. The Registrar stood the matter over to today’s date, 16 October 2001.

14 There had in the meantime been filed on 2 October 2001 a notice of discontinuance, which was filed by the twenty-fifth defendant (described as the Police Commissioner) and the twenty-sixth defendant (the State of New South Wales) pursuant to leave in that regard granted by the Registrar on 3 September 2001.

15 I have already recorded that the proceedings as originally constituted named 26 defendants. In consequence of the filing of the notice of discontinuance to which I have just referred there remain now 24 defendants to the proceedings. A number of those defendants have been represented by Counsel or solicitor at today's hearing; a number of the defendants appeared in person. All the defendants who have been represented or who have appeared in person have supported the application by the first defendant for the dismissal of the proceedings.

16 The first plaintiff has opposed that dismissal. In the face of opposition by the first defendant and all other defendants, either represented or present in person, I granted leave to the first plaintiff to file in Court an affidavit sworn by himself, David Jackson-Grose this day, 16 October 2001.

17 It is apparent from that affidavit that the plaintiffs are desirous of filing a statement of claim, but that such a statement of claim is one which the plaintiffs consider should be filed in the Common Law Division of this Court and not in the Equity Division. Further, that the parties proposed to be named in that contemplated statement of claim to be filed in the Common Law Division differ markedly from the parties to the proceedings as presently constituted. The plaintiffs have in contemplation the removal of some of the present defendants and the addition of other defendants.

18 It is all very well for the first plaintiff to say that it has always been in contemplation that the plaintiffs would be filing a statement of claim. But the present proceedings were instituted by summons filed on 8 May 2001. The first of the prayers for relief in that summons seeks orders which no longer can have any practical affect, since the proceedings in the District Court of New South Wales were concluded in favour of the present first defendant on 7 May 2001, and were concluded against the present plaintiffs.

19 There is nothing left in those proceedings which could be the subject of an order for removal to the Supreme Court and for the hearing of the District Court proceedings with the present Supreme Court proceedings. The proceedings in the District Court were heard by his Honour Judge Coleman on the afternoon of 7 May 2001. He entered judgment for Diana Louise Minter in the sum of $290,840 and ordered Mr and Mrs Jackson-Grose to pay Mrs Minter's costs. He dismissed the action commenced by Mr and Mrs Jackson-Grose and ordered them to pay Mrs Minter's costs up to the date when the two sets of District Court proceedings were consolidated.

20 The relief sought in prayers 2 and 3 of the summons is in extremely general and unspecified terms. The orders sought are that the defendants pay to the plaintiffs and their companies "all amounts owing" and orders for "compensation for damages". Prayer 4 in the summons seeks an order that the defendants pay the costs of the plaintiffs. It is difficult to see how relief of the nature sought in prayer 5, "orders that the New South Wales Police fully investigate the matters raised herein" could ever be a proper order of the Court. But, in any event, the plaintiffs have discontinued the proceedings against the Police Commissioner and against the State of New South Wales, that discontinuance being consented to by those two defendants.

21 The final prayer for relief once again is one which it is difficult to see could ever be granted by a Court. But, in any event, the entity which is sought to be a participant in that relief has not been joined as a party to the proceedings, that entity being the Australian Federal Police.

22 It is quite apparent that the proceedings which were commenced by the plaintiffs by way of summons on 8 May 2001 has not been prosecuted and that the plaintiffs do not propose to prosecute those proceedings. What the plaintiffs have in contemplation doing, but which some five months later they have not yet done, is to pursue a completely different set of proceedings against different parties, and presumably seeking very different relief from that sought in the summons. The plaintiffs have had five months in which to prepare and to file a statement of claim. They have not done so. They have not complied with orders and directions of the court in that regard, some of which orders and directions have been made by consent of the plaintiffs.

23 In my conclusion the summons should be dismissed. That will not preclude the plaintiffs, if they so desire, from instituting fresh proceedings of the nature which in the affidavit of the first plaintiff they are said to contemplate.

24 I make the following orders:

(1). I order that the summons be dismissed.

(2). I order that the plaintiffs pay the costs of the first defendant of the notice of motion filed by the first defendant on 10 October 2001 and that there be no other order in respect to the costs of that notice of motion.

(3). I order that the plaintiffs pay the costs of the defendants of the proceedings.

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Last Modified: 05/19/2003