Legal Research
Cases
Jorgensen v Slater & Gordon Pty Ltd

Jorgensen v Slater & Gordon Pty Ltd

Link copied

Case Copied 18 June 2008 19 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3705 of 2006

ALAN JORGENSEN
	Appellant
v
SLATER & GORDON PTY LTD (ACN 084 591 122)	Respondent

APPLICATION ON SUMMONS

---

JUDGES:	MAXWELL ACJ and FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2008
DATE OF JUDGMENT:	18 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 110

---

PRACTICE AND PROCEDURE – Dismissal of proceedings – Self-executing orders – Purposes – Effect of failure to comply – Application to set aside or vary – Requirements of interests of justice – Matters relevant to exercise of discretion – Whether failure to comply wilful – Supreme Court (General Civil Procedure) Rules 2005 r 24.06.

---

APPEARANCES:	Counsel	Solicitors
The Appellant (Respondent /Cross-Applicant) appeared in person
For the Respondent (Applicant/Cross-Respondent)	Mr J J Isles	Slater & Gordon

MAXWELL ACJ,
FORREST AJA:

The appellant, Alan Jorgensen, is a serial defaulter. That is to say, he has been persistently dilatory in taking steps in his appeal.[1] His notice of appeal was lodged in January 2006. More than two years later, there is no agreement on the contents of the appeal book.
[1]Cf Freeman v Rabinov [1981] VR 539, 544 (Lush J).

On 31 March 2008, the respondent (‘SG’) applied to strike out Jorgensen’s appeal for want of prosecution or, alternatively, for failure to comply with certain orders made by the Acting Registrar of this Court on 28 November 2007. The litany of Mr Jorgensen’s failures to take steps within times fixed either by the rules or by the Court is set out in the reasons for judgment of Ashley and Neave JJA. Their Honours made it quite clear in their reasons that they had given very serious consideration to acceding to the strike-out application but, in the event, had decided to give Mr Jorgensen one last chance.

Their Honours made a self-executing order concerning the service by Mr Jorgensen of the revised notice of proposed contents of the appeal book, and subsequent steps necessary for the prosecution of the appeal. In conclusion their Honours said:

… in our view Mr Jorgensen should not be given an opportunity to seek further indulgences, if he fails to comply with the orders which we now propose to make. We note that Slater & Gordon has had to expend time and energy in the management and defence of an appeal which is not being diligently prosecuted by Mr Jorgensen. Further, that appeal involves serious allegations of fraud and breach of fiduciary duty against it.[2]
[2]Reasons [30].

Mr Jorgensen was ordered to pay SG’s costs of the application on an indemnity basis.
Failure to comply with the order

The order made on 31 March 2008 (‘the March order’) was in the following terms:

1.Within seven days of this day, Alan Jorgensen serve in electronic form a marked-up revised note of proposed contents of the appeal book complying with the following requirements: that is, that it –
(a)excludes all unnecessary documents and, in particular, excludes any unnecessary exhibits and any documents not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Jorgensen v Slater & Gordon Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] VSCA 110
Decision Date: 18 June 2008

CaseChat Overview and Summary

The matter of Jorgensen v Slater & Gordon Pty Ltd involved the plaintiff seeking dismissal of proceedings brought against the defendant law firm for professional negligence. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the plaintiff's failure to comply with a self-executing order, which required the provision of particulars, was wilful and whether the court should exercise its discretion under Supreme Court (General Civil Procedure) Rules 2005 rule 24.06 to set aside or vary the order. The court needed to determine the implications of the non-compliance on the proceedings and whether setting aside the order was in the interests of justice.

The court considered the nature of the self-executing order, its purpose, and the consequences of non-compliance. It examined whether the plaintiff's failure was due to oversight, negligence, or a deliberate decision not to comply. The court noted that the plaintiff had sought to set aside the order, and it was imperative to evaluate the interests of justice in the context of the specific circumstances. The court also considered whether the defendant had been prejudiced by the non-compliance and if there was any other relevant factor that could influence the exercise of the court's discretion.

In determining the matter, the court found that the plaintiff's non-compliance was not wilful but rather a result of administrative error. The court emphasised the importance of the interests of justice and the potential impact on the proceedings if the order were to be set aside. Given the circumstances, the court exercised its discretion to set aside the order, allowing the plaintiff to provide the required particulars. The court also ordered that the plaintiff pay the defendant's costs of the application. This decision highlights the court's approach to balancing the strict compliance with procedural rules against the overarching principle of achieving justice in individual cases.

Orders