Kane v Wyllie

[2006] NSWSC 710

CITATION:	Kane v Wyllie [2006] NSWSC 710
HEARING DATE(S):	11/07/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	07/11/2006
DECISION:	Plaintiffs ordered to serve further amended statement of claim and file application for leave by the following day. Proceedings to stand dismissed if failure to comply with either order. Plaintiffs to pay defendant's costs of the motion.
CATCHWORDS:	PROCEDURE - Summary termination - Failure to comply with orders of Registrar to serve proposed further amended statement of claim on four occasions - Sole practitioner who suffered heart attack and later underwent triple bypass operation during the relevant period - Whether the proceedings should be dismissed - Document ready for service within short space of time
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CASES CITED:	Fairey v Fairey (No 2) [2000] NSWCA 173 Witten v Lombard Australia Ltd [1968] 2 NSWR 529 Stollznow v Calvert [1980] 2 NSWLR 749 Micallef v ICI Operations Pty Ltd & Anor [2001] NSWCA 274
PARTIES:	Peter Nicholas Kane - 1st Plaintiff Coastal Air Services (Aust) Pty Ltd - 2nd Plaintiff William Anthony Wyllie - 1st Defendant Sydney Harbour Seaplanes Pty Ltd - 2nd Defendant Vengreen Pty Ltd - 3rd Plaintiff
FILE NUMBER(S):	SC 2567/04
COUNSEL:	Mr A Jungwirth - Plaintiffs Mr J Lazarus - Defendants
SOLICITORS:	John Capsanis & Co Solicitors & Barristers - Plaintiffs C G Gillis & Co, Lawyers - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

TUESDAY 11 JULY 2006

2567/04 PETER NICHOLAS KANE & ANOR v WILLIAM ANTHONY WYLLIE & ORS

EX TEMPORE JUDGMENT

1 On 24 March 2006 the Registrar made orders, including one that the plaintiffs serve all other parties with a draft of their intended further amended statement of claim for which leave would be sought within 21 days. The plaintiffs failed to comply with that order.

2 On 28 April 2006 the Registrar made orders, including one that the first and second plaintiffs serve the first and third defendants with a draft of their intended further amended statement of claim for which leave would be sought on or before 19 May 2006. The plaintiffs failed to comply with that order.

3 On 26 May 2006 the Registrar ordered the plaintiffs to serve the defendants with a draft of their proposed further amended statement of claim for which leave would be sought by 5.00pm on Friday, 9 June 2006. The plaintiffs failed to comply with that order.

4 On 16 June 2006 the Registrar ordered the plaintiffs to serve the defendants with a draft of their proposed further amended statement of claim for which leave would be sought by 5.00pm on Friday, 30 June 2006. The plaintiffs failed to comply with that order.

5 The solicitor for the plaintiffs is a sole practitioner. He has sworn an affidavit in which he says that on 11 April 2006 he suffered an acute heart attack that resulted in his admission to Royal North Shore Hospital for an emergency stent procedure to a blocked artery. Upon his discharge, as he recalls it a couple of days later, he was required to undertake acute home care for two weeks and essentially not to work.

6 Upon returning to work, his capacity was reduced by reason of feelings of weakness, actual symptoms which he associated with the stent, and generally his medical advice to take it easy.

7 As a result of the stent procedure, he was diagnosed with an additional two to three blocked arteries blocked to about 82% which necessitated a double or triple by-pass operation to be carried out no later than in two months time.

8 On 11 June 2006, he was admitted to Royal North Shore Hospital and later transferred to the Royal North Shore Hospital Private from where he was discharged on 14 June 2006 following tests.

9 On 18 June 2006, he was admitted to Royal North Shore Hospital Private for a triple by-pass and was discharged on 26 June 2006. He is currently recovering and attending to his practice on a reduced basis.

10 By reason of those circumstances he was not, at all material times, available to discuss the present position of the plaintiffs and to assist and instruct counsel with reference to the preparation of the draft further amended statement of claim.

11 Mr Jungwirth, who appears for the plaintiffs, says that a document in proper form as a further amended statement of claim can be served within a short space of time and an application for leave to file the document can also be made in a short space of time.

12 The Civil Procedure Act 2005, s 61(3) allows the court to dismiss proceedings if the party to whom a direction has been given fails to comply with that direction. The Uniform Civil Procedure Rules 2005, r 12.7(1) provides that if a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

13 The power to dismiss proceedings has been described by Mason P in Fairey v Fairey (No 2) [2000] NSWCA 173 at [52] as serving the dual purpose of ensuring fairness to litigants and ensuring the integrity of the judicial system.

14 In dealing with the defendants’ motion that the proceedings be dismissed, the Court must strike a balance between the plaintiffs and the defendants and decide whether or not, on balance, justice demands that an action should be dismissed: Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534; Stollznow v Calvert [1980] 2 NSWLR 749 at 751; Micallef v ICI Operations Pty Ltd & Anor [2001] NSWCA 274 at [51].

15 In light of the medical condition of the solicitor for the plaintiffs during the relevant period in which the failure to comply with the orders of the Registrar arose, it is my view that on balance justice demands that the plaintiffs should not have their proceedings dismissed.

16 I order that the plaintiffs serve a further amended statement of claim in proper form by no later than 4pm on Wednesday, 12 July 2006. I order the plaintiffs to make application for leave to file that document by no later than 4pm on Wednesday, 12 July 2006. I order that the plaintiffs’ proceedings stand dismissed if the plaintiffs fail to comply with either of those orders. I order the plaintiffs to pay the defendants’ costs of the motion.

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