Kizmann v De Maine
[2022] ACTSC 167
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kizmann v De Maine |
Citation: | [2022] ACTSC 167 |
Hearing Date: | 7 July 2022 |
DecisionDate: | 8 July 2022 |
Before: | McCallum CJ |
Decision: | 1) The plaintiff is to file a list of documents, affidavit verifying and solicitor’s certificate (forms 2.3, 2.4 and 2.5 respectively) by Monday 11 July 2022; 2) The plaintiff is to file its affidavit evidence by 15 July 2022; 3) Leave is granted for the plaintiff’s affidavits to be witnessed via video-link or call; 4) The plaintiff is to pay the defendant’s costs thrown away of the appearances on 4 and 7 July as agreed or assessed; 5) The parties are to make any requests for interrogatories by 29 July 2022; 6) The parties are to file sworn answers to interrogatories by 26 August 2022; 7) The matter is adjourned for a listing hearing on Thursday 1 September 2022. |
Catchwords: | CIVIL PROCEDURE — COURT ADMINISTRATION — Case management — Non-appearance at directions hearing — Facilitation of just resolution of disputes according to law as quickly, inexpensively and efficiently as possible — Impact of COVID-19 on health of practitioners |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 1404 Court Procedures Act 2004 (ACT), s 5A |
Parties: | Ivan Gerard Kizmann ( Plaintiff) Gregory John De Maine ( First Defendant) Shostko Systems Pty Ltd (Second Defendant) |
Representation: | Counsel C Carnell ( Plaintiff) N Gabbedy ( Defendants) |
| Solicitors Tu’ulakitau McGuire ( Plaintiff) Gabbedy Milson Lee ( Defendants) | |
File Number: | SC 586 of 2019 |
McCALLUM CJ:
These proceedings were commenced by originating claim filed on 19 November 2019. The proceedings have suffered a series of unfortunate delays, the responsibility for which falls perhaps roughly in equal measure at the feet of the plaintiff and the defendants. Most recently, on 4 July 2022, the plaintiff failed to appear at a directions hearing listed before the Registrar. The Registrar accordingly listed the matter before me today and directed the plaintiff to file an affidavit of non-compliance by close of business yesterday.
The affidavit filed by Mr James McGuire (dated 1 June 2022 but presumably in fact sworn yesterday) sets out a careful and persuasive explanation both for the non-appearance and as to the state of his client’s disclosure.
Rule 1404 provides that if, after receiving notice of a directions or listing hearing in a proceeding, a party fails to attend the hearing, the Court may take certain steps, one of which is simply to give the further directions it considers appropriate.
The exercise of the Court’s discretion in the event of a failure to appear or other default must be exercised in accordance with the main purpose of the civil procedure provisions stated in s 5A of the Court Procedures Act 2004 (ACT), which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. That, of course, is the paradigm for a perfect legal system.
Mr McGuire’s affidavit deposes, amongst other things, to the impact on his health of the COVID-19 pandemic. Without resorting to detail, the pandemic has affected him in a number of ways. It has had an impact on him but also on other members of his family. The Court, whilst seeking to achieve the main purpose of the civil procedure provisions, must not overlook the expense at which the achievement of that object sometimes comes.
In particular, I accept that the legal profession has been under considerable pressure in this and other jurisdictions over the last two years and that the pandemic has taken a significant toll on the health of a number of practitioners and indeed on the progress of both civil and criminal litigation. It is appropriate for the Court to acknowledge those difficulties and not to force parties into such hardship in the stress to achieve the main purpose of the civil procedure provisions that their personal health suffers.
As to the state of the discovery, it is clear enough that Mr McGuire has faced many challenges largely deriving from the manner in which his client has produced documents, notwithstanding Mr McGuire’s careful and proper advice as to the way in which the documents might be provided to him in a way that would assist him to serve the main purpose of the civil procedure provisions.
In all the circumstances, I am satisfied that it is appropriate for the Court to confirm its complete acceptance of Mr McGuire’s explanation and simply to take such steps as it can to get the proceedings back on foot.
To that end, I make the following orders:
1) The plaintiff is to file a list of documents, affidavit verifying and solicitor’s certificate (forms 2.3, 2.4 and 2.5 respectively) by Monday 11 July 2022;
2) The plaintiff is to file its affidavit evidence by 15 July 2022;
3) Leave is granted for the plaintiff’s affidavits to be witnessed via video-link or call;
4) The plaintiff is to pay the defendant’s costs thrown away of appearances on 4 and 7 July as agreed or assessed;
5) The parties are to make any requests for interrogatories by 29 July 2022;
6) The parties are to file sworn answers to interrogatories by 26 August 2022;
7) The matter is adjourned for a listing hearing on Thursday 1 September 2022.
| I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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