Lesvos v Penrith Whitewater Stadium

[2003] NSWSC 844

CITATION:	Lesvos & Anor v Penrith Whitewater Stadium & Anor [2003] NSWSC 844
HEARING DATE(S):	10 September 2003
JUDGMENT DATE:	12 September 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass
DECISION:	The Notice of Motion filed on 20 May 2003 is dismissed. The defendants are to pay the costs of the Notice of Motion. The Exhibits may be returned.
CATCHWORDS:	Review - belated application to strike out pleading - pleading over and joinder of issue - delay, explanation for delay and prejudice.
LEGISLATION CITED:	Trade Practices Act 1974 (Cth).
CASES CITED:	N/A
PARTIES :	Lesvos Pty Limited (First Plaintiff) Koffee Pty Limited (Second Plaintiff) v Penrith Whitewater Stadium Limited (First Defendant) Penrith City Council (Second Defendant)
FILE NUMBER(S):	SC 20147 of 2002
COUNSEL:	Mr D E Baran (Plaintiffs) Mr M S Jacobs QC/Mr P J Bambagiotti (Defendants)
SOLICITORS:	Andresakis & Associates (Plaintiffs) Gadens (Defendants)

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20147 of 2002
LOWER COURT JUDICIAL OFFICER :	Acting Registrar Whitehead

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Friday 12 September 2003

20147 of 2002 Lesvos Pty Limited & Anor v Penrith Whitewater Stadium Limited & Anor

JUDGMENT

1 MASTER: These proceedings were commenced by Ordinary Statement of Claim filed in the District Court on 8 September 2000. The process purports to propound causes of action founded on provisions of the Trade Practices Act 1974 (Cth) (the Act) and negligence.

2 On 13 November 2000, the defendants filed their respective Defences and an implied joinder of issue took place.

3 The matter was listed for directions. Directions were given on 27 February 2001.

4 On 28 May 2001, a Cross-Claim was filed by the first defendant.

5 On 21 September 2001, the matter appeared in the Commercial List for further directions. Directions were made (including directions to file and serve evidence). Further directions were given on 14 December 2001. The directions to file evidence were not complied with by the defendants.

6 In early March 2002, the defendants consented to the proceedings being removed into this Court. Orders were made on 25 March 2002.

7 By letter dated 25 June 2002, the defendants first raised the matter of pleading deficiencies in the Statement of Claim. It was contended that the Statement of Claim should be struck out on the basis that amongst other things it disclosed no reasonable cause of action and would only cause delay in these proceedings. This contention was rejected by a letter of the same date. This letter specifically raised the question of the belated nature of the proposed application.

8 On 8 July 2002, the defendants filed a Notice of Motion seeking summary disposition of the claim. It sought inter alia either summary dismissal or the striking out of the pleading.

9 For some time, the plaintiffs had sought an outline of submissions from the defendants. An outline was served on 20 February 2003. This was the first occasion on which the defendants identified their specific complaints concerning the pleading.

10 The Notice of Motion was heard by Acting Registrar Whitehead on 13 March 2003. His reserved decision was delivered on 24 April 2003.

11 The Registrar dismissed the Notice of Motion and ordered that the costs of the motion be reserved.

12 On 20 May 2003, the defendants filed a further Notice of Motion. It sought inter alia a review of the decision given by the Registrar. The decision was reviewed on 10 September 2003.

13 The nature of the review process is now well established. The applicant bears the onus of satisfying the court that the decision of the Registrar should be disturbed.

14 The first and second plaintiffs engage in the business of catering and operating kiosks/coffee lounges. They made a tender in respect of a café to be operated at Penrith Whitewater Stadium. The stadium is a whitewater canoe facility constructed for canoe and aquatic racing and other activities. The first defendant had the managerial care and control of the stadium as a sub-lessee from the second defendant (who was the owner). The present proceedings arise out of disputes had concerning the operation of facilities at the stadium.

15 Principally, the defendants’ application was directed to a striking out of the pleading. Whilst the summary dismissal aspect of the application was not abandoned, it was not pressed with any enthusiasm. I am not satisfied that it is a remedy that should be granted in this particular case.

16 The court has a discretionary power to grant summary relief. Well-established authority restricts the granting of such relief to what have been described as clear cases. The onus is borne by the applicant.

17 In the exercise of the discretion, the court has regard to the relevant circumstances of the particular case before it and the interests of justice.

18 The circumstances of this case are somewhat unusual. They throw up a difficult problem for the court. The content of the pleading alone is not a decisive consideration. Endeavours to excite the parties to reach agreement as to a practical resolution of the problems proved to be abortive. The parties decided to leave the application to the court for determination.

19 The defendants have made lengthy submissions (both in writing and orally) for the purpose of demonstrating the incompetence of the pleading. It is unnecessary to reproduce all of what has been said. Some of the submissions made may indeed be regarded as harsh.

20 By way of example, I shall refer to only a few of them:-

“2.4 The Plaintiffs’ Ordinary Statement of Claim is a very confused document, and incoherent in part. It pays scant regard to established legal principles, and can best be described a ‘stream of consciousness’ not cognisable in law.
2.5 The fundamental complaints are that the Statement of Claim contains so much confused and irrelevant material as to make, it impossible to distil the case that the Defendants, or either of them, have to meet.”

21 In addition, material pleaded as part of the cause of action founded in negligence has been categorised as “a complete nonsense”.

22 This is not a case which requires the court to embark on a detailed analysis of the various allegations made in the pleading. It suffices to say that there are pleading deficiencies. It is necessary only to refer briefly to but a few of them. The pleading does contain an abundance of material that may be described as extraneous. There is a lack of nexus between allegations. Some of the allegations may give rise to comprehension problems. However, I do not see these matters as giving rise to real problems at trial. Strictly speaking, it may be said that the claim founded on the provisions of the Act, does not contain all of the elements necessary to found such a statutory count. However, it seems that the defendants may not be in any real doubt as to the thrust of the intended claim. As presently pleaded, the cause of action founded in negligence would appear to have limited prospects of success. However, the court is reluctant to grant summary relief in respect to negligence claims.

23 Counsel for the plaintiffs was asked whether or not his clients desired to file an amended pleading. The stance taken by his clients was that they did not, at this stage, want to make any amendment. However, amendment in the future was seen as a probability.

24 It may be a case in which the interests of the plaintiffs would be best served by the filing of an Amended Statement of Claim. It may be that any hearing of the proceedings would be better assisted if the expression of the pleading process was somewhat improved. However, these matters must be seen in context.

25 A complexity of considerations arise when regard is had to what has happened following the filing of the pleading and the delay that preceded this belated application.

26 The defendants filed their Defences as long ago as November 2000. The Defences are of considerable length and provide a detailed response (by way of admissions and traverse) to the allegations of the plaintiffs. They do not raise any question of failure to disclose a reasonable cause of action. At that stage, the defendants did not appear to have any difficulty in appreciating the case that they were being called upon to meet and in pleading to it. If there had been any such difficulties, it could be expected that the present application would have been brought in about November 2000. Instead of taking that course, they chose to plead over any problems and there was a joinder of issue.

27 No question as to the adequacy of the pleading was raised until 25 June 2002. By then, considerable time had passed, there had been directions hearings (which inter alia required the parties to look to matters of evidence), particulars had been requested and furnished and the proceedings had been removed into this Court.

28 Until then, the plaintiffs were entitled to proceed on the basis that their pleading was not going to be attacked and that they could expend costs in the conduct of the proceedings as framed in the Ordinary Statement of Claim.

29 At all material times, the defendants have acted on legal advice. A conscious decision was made to file Defences and to plead over any deficiencies. In my view, these are matters of significant weight.

30 In the exercise of a discretionary power, other matters such as delay, explanation for delay and prejudice are usually of relevance. In the present circumstances, they are not only relevant but are also matters of significant weight.

31 Although the original Notice of Motion was filed in July 2002, it did not come on for hearing before the Registrar until 13 March 2003. The application for review did not come on for hearing until 10 September 2003.

32 Whilst there was an abundance of material placed before the court, none of it seeks to address the question of explanation for the filing of the Defences and the ensuing delay. Some submissions were made from the Bar Table. I do not regard them as providing a satisfactory explanation.

33 The proceedings have now been on foot for about three years. If the application is granted, the plaintiffs will see the prosecution of their case considerably delayed. Perhaps, it may not now come on for hearing until well into the future. During the time that has elapsed, the plaintiffs may well have thrown away costs in the prosecution of a case based on the present pleadings.

34 The deciding of this application has only been reached after considerable reflection. I did not find it an easy decision to reach. Ultimately, I came to the view that, in the light of all the relevant circumstances, the defendants have failed to discharge the onus of demonstrating an entitlement to the relief sought. It seems to me that the interests of justice are best served if the application is refused.

35 The Notice of Motion filed on 20 May 2003 is dismissed. The defendants are to pay the costs of the Notice of Motion. The Exhibits may be returned.

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Last Modified: 09/15/2003