Jones v University of Canberra (No 2)
[2016] ACTSC 99
•27 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jones v University of Canberra & Ors (No 2) |
Citation: | [2016] ACTSC 99 |
Hearing Dates: | 22 March, 29 March, 8 April, 15 April and 21 April 2016 |
DecisionDate: | 27 April 2016 |
Before: | Refshauge J |
Decision: | 1. That the plaintiff file a Statement of Claim by lodging the same through the registry directly to my chambers on or before 4.15 pm on Thursday 28 April 2016; 2. That the plaintiff pay the costs of the appearance today on a consenting basis. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Interlocutory application – failure to file Statement of Claim – non-compliance with direction of court – no request for extension of time – costs – consenting appearance |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 39(2)(a), 50, Pt 6.2 |
Cases Cited: | Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 Cropper v Smith (1884) 26 Ch D 700 |
Parties: | Michael Jones (Plaintiff) University of Canberra (First Defendant) University of Canberra Union Ltd (Second Defendant) Joe Roff (Third Defendant) Stephen Parker (Fourth Defendant) David Lamont (Fifth Defendant) Australian Capital Territory and Southern New South Wales Rugby Union Ltd (Sixth Defendant) |
Representation: | Counsel Mr W Sharwood and Mr T Lynch SC (Plaintiff) Mr S Whybrow (1st – 5th Respondent) Mr M Karam (6th Respondent) Mr S Meehan (6th Respondent) (29 March 2016) |
| Solicitors Chamberlains (Plaintiff) King & Wood Mallesons (1st – 5th Respondent) Dibbs Barker (6th Respondent) | |
File Number: | SC 108 of 2016 |
REFSHAUGE J:
On 22 March 2016, the plaintiff, Michael Jones, made an urgent ex-parte application for injunctive relief against six defendants.
As I noted in Jones v University of Canberra [2016] ACTSC 78 at [56]-[57], the plaintiff did not file an originating process but only an Application in Proceedings under Pt 6.2 of the Court Procedures Rules 2006 (ACT) and without any pleadings.
On that date, I made the orders sought and further procedural orders to ensure that the defendants were apprised of the proceedings in the usual way following ex-parte applications. I also directed that an Originating Application be filed on the next day and served, that was done.
As I explained in Jones v University of Canberra at [58], these proceedings are really proceedings of a kind that should be commenced by Originating Claim and I so ordered under r 39(2)(a) of the Court Procedures Rules that the proceedings continue as if commenced by Originating Claim.
On 29 March 2006, I heard an application for dissolution of the ex-parte orders I had made. I reserved my decision.
At the request of the first and fifth defendants, I re-listed the proceedings on 8 April 2016, as they wished to have a direction that Mr Jones file a Statement of Claim. That would, of course, be appropriate were the proceedings to have been commenced by Originating Claim. See r 50 of the Court Procedures Rules.
The proceedings also dealt with amendments to the orders I had originally made. That is of no relevance to the matter which I now have to decide.
I ordered that Mr Jones file and serve a Statement of Claim within 14 days, that is on or before 22 April 2014. No Statement of Claim has been filed and, at the request of the first to fifth and sixth defendants, I have re-listed the proceedings today to deal with that default.
There are, of course, limited sanctions that can be imposed for non-compliance with directions of the court: orders for costs, contempt of court proceedings and striking out the proceedings. Each has a place. Contempt can be problematic if deliberation cannot be proved and striking out is drastic and should be reserved for the most serious of defalcations.
Wilcox and Gummow JJ pointed out in Lenijamar Pty Ltd v AGC Advances Ltd (1990) 27 FCR 388 at 396 that “some delays are unavoidable, and unpredictable, even by the most conscientious parties and their lawyers” and the power to strike out a claim or enter judgement must be exercised sensibly and with an appropriate appreciation of these facts.
While an order for costs can resolve some prejudice, it is no longer accepted that an order for costs is the panacea for all delay or non-compliance seen in bygone days by Bowen LJ in Cropper v Smith (1884) 26 Ch D 700 at 711. As noted by the plurality in Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175 at 213; [99], costs will not always undo the prejudice that a party suffers. In that case, the prejudice was somewhat more serious, for it was concerned with a very late amendment to the pleadings.
In this case, there is prejudice for the orders that I have made will, as I acknowledged in Jones v University of Canberra at [140], have a potentially challenging effect on the governance of the sixth defendant. For this reason alone, it is desirable that the proceedings be prosecuted with all due speed by all parties. In addition, of course, it is necessary that orders of the court, even directions on procedural matters, should be borne in mind and obeyed by all the parties.
In this case, it has been fruitful for the parties to resume proceedings before me because issues arose as to the non-publication orders that should be made for the protection of material that is subject already to non-publication orders. The Statement of Claim may well need to refer to statements that have been made by parties who are subject to those orders.
I indicated to the parties that my preference, in compliance with the obligation to undertake justice in an open manner, is that it would be preferable if the publication of the Statement of Claim itself were not subject to any restriction. It may be possible, if words themselves are not material facts, for the words, the inclusion of which is the Statement of Claim, might undermine the non-publication orders already, made to be set out in a Statement of Particulars to be filed separately, as the rules provide may be done in appropriate circumstances. The publication of the Statement of Particulars can then be restricted. In order to achieve that, it has been agreed that a process that I note below (at [21]) will be undertaken by the parties and their lawyers so as to deal with those issues and that the Statement of Claim will be filed by tomorrow.
The defendants have sought an order for costs, being the costs of the appearance today. It seems to me that costs is the only remedy that is appropriate in the circumstances. Nevertheless, the issues are complex and the hearing today has been able to resolve a process that may have been able to be resolved by the parties but was not before it came before me and was dealt with by me today.
I note that the terms of my earlier judgment has been suggested by the plaintiff to be a matter that needed to be taken into account in the drafting of the Statement of Claim. That may well be true; until I see the Statement of Claim it is not possible to test that precisely but it makes sense and would be ordinarily appropriate.
Nevertheless, the fact is that I gave due notice on 15 April 2016 of my intention to deliver judgment on the day on which I did so and the parties had the opportunity then to indicate and to take appropriate steps to ensure that the procedural matters that were required as a consequence of that may be taken into account. In order to assist this, I directed that a single order be made consequent upon my additional orders so that the single order contained all the then current orders in place so that the parties were more easily able to undertake the obligations that were imposed on them by the orders.
At the time, however, no request was made for an extension of time within which to file the Statement of Claim and, indeed, no application was made under the liberty to apply which I reserved to all parties to extend that order at any time.
As a result, it seems to me, in the circumstances, that the appearance today has been caused by a failure of Mr Jones to comply with the directions I made and, accordingly, an order for costs should be made.
In all the circumstances, however, it seems to me that the costs should be on the basis that there was a consenting appearance today and not on a contested basis.
Accordingly, I note that the following procedure has been agreed between the parties:
a) the draft Statement of Claim is intended to be received by the plaintiff’s lawyers this afternoon;
b) a copy will, upon receipt by them, be circulated to the other parties for consideration of any non-publication orders that are required to protect the non-publication orders already made;
c) the lawyers for the parties propose to confer later today or early tomorrow with a view to arriving at a settled position on any non-publication orders that need to be made in connection with the Statement of Claim and any statement of particulars that may accompany it.
d) in the event that consent is reached on that issue, the parties will forward a copy of the document or documents to be filed and sealed, together with such copies as are required to be stamped, directly to my chambers with an indication of any non-publication orders that they consider should be made.
No objection to the Statement of Claim, raised by any party other than to its filing without any appropriate non-publication orders, will prevent the above process.
Accordingly I will order:
1. That the plaintiff file a Statement of Claim by lodging the same through the registry directly to my chambers on or before 4.15 pm on Thursday 28 April 2016;
2. That the plaintiff pay the costs of the appearance today on a consenting basis.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 13 May 2016 |
0
3
1