Loumbos v Gray
[2020] NSWSC 101
•19 February 2020
Supreme Court
New South Wales
Medium Neutral Citation: Loumbos v Gray [2020] NSWSC 101 Hearing dates: 19 February 2020 Date of orders: 19 February 2020 Decision date: 19 February 2020 Jurisdiction: Common Law Before: Harrison J Decision: (1) The plaintiff is to serve any lay and expert evidence in chief by 6 March 2020.
(2) The defendants are to serve any evidence in chief by 10 April 2020.
(3) The matter is listed for further directions on 17 April 2020.
(4) The directions hearing listed for 20 March 2020 is vacated.
(5) Costs of today are reserved.
(6) Liberty to restore on 3 days’ notice.Catchwords: PRACTICE & PROCEDURE – application to vary timetable for the service of evidence – no issue of principle Category: Procedural and other rulings Parties: Valentine John Loumbos (Plaintiff)
John James Montgomery Gray (First Defendant)
Miles Robert Anderson (Second Defendant)
Richard Michael Burr (Third Defendant)
Steven Mark Cardell (Fourth Defendant)
Dale Francis Cliff (Fifth Defendant)
Timothy John Crumpton (Sixth Defendant)
Timothy David Ferrier (Seventh Defendant)
John Richard Paul Hunt (Eighth Defendant)
Peter Lorrimer Karcher (Ninth Defendant)
Paul Michael O’Dea (Tenth Defendant)
Bernard Francis Tan (Eleventh Defendant)
John Dominic Toigo (Twelfth Defendant)
Belinda Elizabeth Hapgood (nee Weir) (Thirteenth Defendant)
Shane Russell Williamson (Fourteenth Defendant)Representation: Counsel:
Solicitors:
D Moujalli (Plaintiff)
Australian Business Lawyers & Advisors (Plaintiff)
Gilchrist Connell Lawyers (Defendants)
File Number(s): 2017/208822 Publication restriction: Nil
Judgment
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HARRISON J: At the plaintiff’s request, this matter was listed to consider his application to vary a timetable for the service of evidence that I ordered on 12 November 2019. The application was supported by an extensive affidavit affirmed by Jack Shepherd on 18 February 2020.
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Mr Shepherd described the history of the proceedings and the circumstances in which he came to assume the conduct of the file from the plaintiff’s previous solicitors. That has occasioned some delays in the preparation of the case generally, including the preparation and service of lay and expert evidence upon which the plaintiff proposes to rely in particular.
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Mr Shepherd explains that he secured the file from the previous solicitors on 2 July 2019. It consisted of 20 archive boxes plus approximately 220MB of electronic records. Mr Shepherd does not say that he looked at this material at that time. Mr Shepherd was more concerned by the fact that the defendants had not filed their defence until 16 October 2019. He said this at paragraph 21 of his affidavit:
“21. By reason of the delay in receiving the defence, Mr Loumbos’ opportunity to prepare evidence by 26 September 2019 under the orders of 18 July 2019 had entirely closed. In order to propose a new timetable for service of evidence, I sought instructions from Mr Loumbos as to his availability to discuss his evidence.”
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Mr Shepherd goes on to say that Mr Loumbos was “unavailable from about 14 October 2019 to about 14 November 2019 as he was undergoing surgery”. Mr Moujalli, Mr Loumbos’ barrister, was then unavailable until 6 December 2019. It was in these circumstances that I made orders by consent that Mr Loumbos’ evidence in chief was to be served by 20 December 2019. Complicating all of this was the fact that Mr Loumbos’ former finance broker, Mr Paul Smith, was proving difficult to contact.
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Mr Shepherd appears to say that he first looked at the files from his predecessors beginning in “early January 2020”. That appears to be clear from the fact that Mr Shepherd says that “after reviewing those files, I noted that there were still many documents we required”. Mr Shepherd also does not say that he looked at the files on any earlier occasion.
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This matter is proceeding at a glacial pace. That is not the fault of the defendants, who are understandably keen to move things along. Mr Loumbos has proposed a variation to the timetable allowing his lay and expert evidence in chief to be served by 27 March 2020 and the defendants’ evidence in chief to be served by 24 April 2020. The defendants have responded with alternative dates, respectively 6 March 2020 and 10 April 2020.
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Having regard to the fact that Mr Shepherd has had the file since the middle of last year, it is not now unreasonable to expect that he can arrange for Mr Loumbos to complete his evidence in chief by 6 March 2020. That is particularly so having regard to Mr Moujalli’s indication that Mr Loumbos does not propose to rely upon any expert evidence on the issues of either liability or quantum.
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In these circumstances I consider that the following orders should be made:
The plaintiff is to serve any lay and expert evidence in chief by 6 March 2020.
The defendants are to serve any evidence in chief by 10 April 2020.
The matter is listed for further directions on 17 April 2020.
The directions hearing listed for 20 March 2020 is vacated.
Costs of today are reserved.
Liberty to restore on 3 days’ notice.
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Decision last updated: 19 February 2020
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