Loremo Pty Limited v A1 Chemicals Pty Limited

[2015] NSWSC 599

Supreme Court

New South Wales

Medium Neutral Citation:	Loremo Pty Limited v A1 Chemicals Pty Limited [2015] NSWSC 599
Hearing dates:	19 May 2015
Date of orders:	19 May 2015
Decision date:	19 May 2015
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	The plaintiff's summons is dismissed; Costs are awarded in favour of the defendant, payable forthwith.
Catchwords:	CIVIL LAW – transfer of proceedings from District Court to Supreme Court – powers of either court to grant the relief sought – leave to amend Statement of Claim – extensive amendments – failure to comply with directions to file evidence – asserted lack of knowledge of purpose of the listing – costs
Legislation Cited:	Civil Procedure Act 2005 District Court Act 1973
Cases Cited:	Aon Risk Services Australia Limited v the Australian National University (2009) 239 CLR 175
Category:	Principal judgment
Parties:	Loremo Pty Limited (Plaintiff) A1 Chemicals Pty Limited (Defendant)
Representation:	Counsel: Mr Zmood with Mr Spadijer (Plaintiff) Mr DC Eardley (Defendant)
File Number(s):	2015/2311

ex tempore Judgment

1. 1    Referred from the Registrar this morning for determination is a Summons filed for the plaintiff in the matter before the court, that being Loremo Pty Limited v A1 Chemicals Pty Limited. The plaintiff seeks five orders by that summons filed on 27 March 2015. Those orders are:

1. an order pursuant to s 140 subs (1) of the Civil Procedure Act 2005 New South Wales, that the District Court proceedings of a particular number in the Downing Centre be transferred to this court;

2. an order that the pleadings which have been filed in the District Court proceedings be considered as the pleadings in the transferred Supreme Court proceedings;

3. directions for the future conduct of the matter, including leave to the plaintiff to file an Amended Statement of Claim in the form of the document annexed behind tab 7 of exhibit AI1 to the affidavit of Atanaan Ilango sworn - there is a typing error there but it should be - sworn on 27 March 2015, within 14 days;

4. costs of the application, being costs in the cause; and

5. such other orders as the court may make.

2. The defendant opposes the making of the orders sought by the plaintiff, and submits that the summons should be dismissed with costs ordered in its favour and payable forthwith.

3. The matter has some history, which it is pertinent to the determination of the matter to set out. The history is principally in the District Court, where proceedings were initially brought by the plaintiff on 15 October 2013.

4. In the District Court orders were made to facilitate the determination of the plaintiff's statement of claim, with timetables fixed for the plaintiff to file and serve the evidence on which each relied. The plaintiff failed to comply with the District Court's orders and did not serve its evidence on the defendants.

5. Despite the unreadiness those breaches would suggest, consent orders were made in the District Court on 20 February 2015 listing the matter for hearing in that court on 11 June 2015. That is only a couple of weeks away. Directions were made by the court requiring the plaintiff to serve evidence by 20 March 2015. That direction was not complied with by the plaintiff.

6. On 27 March 2015 the plaintiff filed the Summons which is now before this Court, seeking transfer of the proceedings from the District Court to the Supreme Court.

7. On 14 April 2015 the plaintiffs consented to orders requiring the defendant to file and serve evidence by 28 April 2015, with the plaintiffs to file and serve evidence in reply by 12 May 2015. A hearing was fixed for today, with the consent orders specifically noting that the parties would seek to have the matter referred to the duty judge. Those consent orders bear the signature of each of the counsel who appears today.

8. The day before the defendant was to file and serve its evidence in accordance with the orders, the plaintiff advised the defendant that it proposed to amend its Statement of Claim. The defendant took the view - many might regard it as wholly justified - that it could not comply with the orders requiring it to file and serve evidence when the case it was to meet was about to be changed.

9. The defendant wrote to the plaintiff on 28 April 2015, the day on which it had been directed to file and serve its evidence, to advise the plaintiff that it could not do so, having regard to the amendment to be made to the Statement of Claim. Despite that, the plaintiff asserts and seeks to take comfort in dilatoriness on the part of the defendant.

10. The proposed Amended Statement of Claim was provided to the defendant and has today been made available to the court in draft. The amendments are so substantial that it is difficult to regard them properly as amendments. The amendments include a request for additional relief, being permanent injunction preventing any breach of a deed by the first defendant, additional relief against defendants yet to be added - indeed, some additional four or perhaps five defendants.

11. Additional pleadings were added including a claim for Common Law estoppel, adding allegations as to a breach of a deed and adding allegations relating to receipt of confidential information which should not have been available to the defendant.

12. Why none of the proposed additional defendants or none of the pleadings to be added, or indeed none of the relief sought by the Amended Statement of Claim, had been determined by the plaintiff prior to this very late stage is nowhere explained. The dereliction in failing to identify these matters before late April 2015, relevant to an action commenced in the District Court in October 2013, is troubling.

13. The plaintiff explains that dereliction by blaming previous "instructors". A litigant is ordinarily bound by the actions of its representatives. It is not to the point, in my view, to change solicitors at a very late stage and then blame the former representatives for all that went before. Solicitors act on instructions. Those instructions came from the plaintiff.

14. The timing of the filing of the summons is such as to lead to a strong suspicion that the present litigation is designed to do no more than delay the ultimate adjudication of these issues. Transferring a matter from the District Court to the Supreme Court would have the practical effect of vacating the hearing date the plaintiff agreed to in the District Court of 11 June 2015.

15. It would, in effect, give the plaintiff a very lengthy adjournment. A timetable would have to be set afresh in this court for the determination of the Statement of Claim. Indeed, bearing in mind the proposed amendments to the Statement of Claim a further timetable would have to be set; the date set by the Registrar previously has been rendered unachievable by virtue of the proposed amendments to the Statement of Claim. By these actions, the plaintiff could gain as much as a year or so before having to proceed to hearing.

16. Such a course not only involves delay but also substantial costs thrown away, certainly in relation to the District Court proceedings. Although the plaintiff could have been in no doubt as to the defendant’s opposition to the summons, there is even a dispute this morning as to the purpose of the referral to this court by the Registrar today.

17. Whilst the defendant contends the summons was to be determined today, the plaintiff submits it had no idea that would be the case. It submits it had no idea the matter would take such a course, and argues it is unprepared. Mr Zmood has made a statement from the Bar Table this afternoon, at a time when judgment was to be delivered, which I apprehend is for other proceedings. I listened to all of the matters which were stated but, notwithstanding that, I do not accept that the plaintiff could have been unaware of the purpose of referring the matter to this court this morning.

18. Since directions had been made for filing and service of evidence, the only thing that could have been determined is the summons. That is consistent with the consent orders from 14 April 2015 that bear counsel's signature, and with the notation made by the Registrar on the court's record of proceedings from the call-over this morning, transferring the matter before the duty judge to deal with a summons that was opposed with a two-hour estimate. I fail to see how giving directions could possibly occupy two hours of court time.

19. The defendant came ready to deal with the Summons, because that is what it thought was to occur this morning, and it relies upon the affidavit of 15 May 2015 of Christopher Morris. The plaintiff has confined itself to its statement from the Bar Table. It did not file or serve any evidence, and although given the opportunity today to call any evidence it wished, despite the lack of notice to the defendant, no evidence was called.

20. In dealing with the substantive issues raised by the Summons, the relevant issues, it seems to me, are the necessity of proceedings being brought into this court, and the capacity of the District Court to achieve a just outcome between the parties. The whole, viewed through the prism of the Civil Procedure Act, and particularly the requirement for just, cheap and quick resolution of claims pursuant to s 56, a requirement that binds not only the court but also the parties.

21. The plaintiff's Statement of Claim seeks relief which it contends is beyond the power of the District Court. It seeks declaratory relief, which it contends is beyond the power of the District Court. It seeks permanent injunctive relief in relation to which it makes the same contention. The plaintiff's position, as I understand it, is that only this Court can give the relief it seeks.

22. The defendant submits that the District Court does have the power to provide the relief the plaintiff seeks. The defendant refers to the powers of the District Court at s 134 of the District Court Act and submits that that court has all of the necessary powers to make orders for the relief the plaintiff requires, absent what it has described as “thin-air declarations.”

23. How to achieve justice between the parties is not a question confined only to the merits or otherwise of the argument as to the power of the District Court versus the power of the Supreme Court. The defendant referred the court to the authority of Aon Risk Services Australia Limited v the Australian National University (2009) 239 CLR 175. Paragraph 98 of that judgment is as follows:

“Of course, a just resolution of proceedings remains the paramount purpose of r 21, but what is a just resolution is to be understood in light of the purposes and objectives stated. Speed and efficiency in the sense of minimum delay and expense are seen as essential to a just resolution of proceedings. This should not detract from proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon repleading when delay and costs are taken into account.”

24. There is, of course, a need for the court and the parties to minimise costs associated with litigation, and to endeavour to achieve a just resolution of proceedings in a way that minimises the delay. The point being made in Aon Risk, as I understand it, is that in an age when the pressures on the court are many and heavy, the resolution of a dispute between parties is no longer to be the only consideration in achieving justice. The need to avoid disruption to a court's list and the consequent waste of public resources, and prejudice to other litigants waiting to gain access to the court, must be taken into account. There is no right to the outcome the plaintiff seeks, with all the attendant wasted costs to the defendant and the waste of the District Court's time, time which other litigants wait to access.

25. Having considered the merits of the asserted need to transfer the proceedings from the District Court to this Court, I am not convinced such a course is necessary to achieve a just outcome. I am persuaded that the District Court has adequate powers properly to resolve the plaintiff's claim and achieve justice between the parties.

26. Section 134 of the District Court Act gives that court wide powers to deal with an equitable claim. The plaintiff's asserted need for declaratory relief I regard as hollow and perhaps intended only to bring the proceedings into this Court. Whilst I cannot and do not make any positive finding in that regard, I can readily conclude that the transfer of the proceedings is contrary to what s 56 of the Civil Procedure Act requires of this court and of the parties.

Orders

27.  Accordingly, I make the following orders:

1. The plaintiff's Summons is dismissed;

2. Costs are awarded in favour of the defendant, payable forthwith.

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Decision last updated: 20 May 2015