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
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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 | |
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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.
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| 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…
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- Case
- [2008] VSCA 110
- Decision Date
CaseChat Overview and Summary
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.
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