Mark Henry Skinner v Redmond Family Holdings Pty Limited (No 2)

[2017] NSWCA 271

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mark Henry Skinner v Redmond Family Holdings Pty Limited (No 2) [2017] NSWCA 271
Hearing dates:	18 October 2017
Decision date:	18 October 2017
Before:	Payne JA
Decision:
Catchwords:	CIVIL PROCEDURE – case management hearing
Category:	Principal judgment
Parties:	Mark Henry Skinner (First Appellant) Patrick Charles Oliver Stone (Second Appellant) Redmond Family Holdings Pty Limited (Respondent)
Representation:	Counsel: M Foley (Appellants) J Pearson (Respondent)   Solicitors: Foleys Lawyers (Appellants) LAS – Lawyers and Consultants (Respondent)
File Number(s):	2017/16215
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Corporations List Citation: [2016] NSWSC 796 Date of Decision: 16 June 2016 Before: Black J File Number(s): 2012/13331

EX TEMPORE Judgment

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. HIS HONOUR: On 11 September 2017 this case came before me for a case management conference. On that occasion I made the following orders:

1. Direct that the appellants file and serve the Black Book by 4pm, 16 September 2017; 

2. Direct that the appellants file and serve the Blue Books by 4pm, 2 October 2017; 

3. Direct that the respondent file and serve its written submissions by 4pm, 2 October 2017;

4. Direct that the appellants file and serve any written submissions in reply by 4pm, 23 October 2017;

5. Direct that the appellants file and serve the Orange Book by 4pm, 23 October 2017;

6. The matter be listed for hearing of the appeal for no more than one day on 24 November 2017;

7. That the matter be listed before me for directions at 9.30am, 25 October 2017.

2. On 11 October 2017, it became apparent by reference to the Court's electronic management system that orders 2 and 3 I had made on 11 September 2017 had not been complied with. An email was sent from my chambers to the parties directing them to file and serve an affidavit by 5pm on 13 October 2017 explaining the reasons for the default and identifying when the default would be remedied.

3. Two affidavits were filed. The first, sworn by Mr Foley on 13 October 2017 on behalf of the appellants, said relevantly that the blue books the subject of order 2, had not been filed because apparently there was difficulty at that time obtaining access to the Court file both to obtain certain of the exhibits before Black J, and also by reason of the appellants’ desire to obtain access to material on subpoena.

4. As I made clear on the last occasion, the fact that subpoenas have been issued by the appellants does not provide any reason to disrupt the orderly preparation of the blue books or the hearing of this matter. As I have again made clear to the parties today, if relevant documents are produced after the blue books have been prepared in accordance with my orders, I will deal with any application at that time for a supplementary blue book to be filed.

5. So far as the respondent is concerned, an affidavit of Mr Bowe was sworn on 12 October 2017, which stated that the respondents had not filed their written submissions by reason of delay in the filing of the black book and default in the filing of the blue books by the appellants. I was informed in the affidavit that the written submissions would be filed by Friday, 13 October 2017, although that has not yet occurred. I made clear to Mr Pearson, appearing for the respondent today, that I regarded his solicitor’s explanation for non-compliance with the Court’s order as unsatisfactory. On Mr Bowe's behalf he apologised for noncompliance with the order to file written submissions. I accept that apology.

6. I was informed from the bar table that counsel briefed in the matter can prepare written submissions on behalf of the respondent by 23 October 2017. I am prepared to allow until 4pm on 23 October 2017 for the filing of the respondent's written submissions. I want to make it pellucidly clear that this order must be complied with.

7. In relation to the further conduct of the matter, Mr Foley in his affidavit indicated that he had filed a notice of intention of ceasing to act dated 13 October 2017 and, as presently advised, he regards it as unlikely that he will be retained to assist the appellants at the hearing of the appeal. In those circumstances, he applied for an adjournment of the matter to allow the appellants to continue to pursue various subpoenas for documents the subject of my earlier extempore judgment delivered on 11 September 2017.

8. The respondent opposed the vacation of the date. I have formed the view that the hearing date should not be vacated, essentially for the reason that the public interest in the efficient dispatch of cases by the Court of Appeal would not be served by an adjournment of this case to pursue documents by subpoena.

9. It is, however, apparent that steps will need to be taken to ensure the orderly preparation of the blue and orange books. In that regard I propose to direct that the respondent take principal carriage of the preparation of the blue and orange books to ensure that the matter is reading for hearing on 24 November 2017. It will be open to the respondent to make an application to the Court which hears the matter for a special costs order for the preparation of those books.

10. Given the history of this matter, I propose making orders to ensure that the Court is in a position closely to supervise the preparation of the necessary blue and orange books.

Orders

11. I make the following orders:

Respondent’s written submissions

(1)   Amend order 3 of the orders made on 11 September 2017 to provide that the respondent file and serve its written submissions by 4pm on 23 October 2017;

Blue books

(2)   Vacate order 2 of the orders made on 11 September 2017;

(3)   Direct that the appellants provide a draft index of the blue books to respondents by 4pm on 20 October 2017, with an electronic copy to be provided to my Associate;

(4)   Direct that the respondent provide a complete index of all documents proposed to be included in the blue books to the appellants by 4pm on 27 October 2017, with an electronic copy to be provided to my Associate;

(5)   Direct that the appellants provide any response to the draft index to the blue books to the respondent by 4pm on 1 November 2017, with an electronic copy to be provided to my Associate;

(6)   List the matter for directions at 9.30am on 3 November 2017 to resolve any dispute between the parties about the content of the blue books;

(7)   Direct the respondent file and serve the blue books in accordance with the index as settled by the Court by 4pm on 10 November 2017;

Orange book

(8)   Amend order 4 of the orders made on 11 September 2017 to provide that the appellants are to file and serve any submissions in reply by 4pm on 3 November 2017;

(9)   Direct that the respondent is to file and serve the orange book on behalf of the parties by 4pm on 10 November 2017;

Compliance with Court orders

(10)   If any party becomes aware of a failure to comply with the orders of the Court, grant liberty to apply on 48 hours’ notice to the Chambers of Payne JA.

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Decision last updated: 20 October 2017