Morris v Hanley

[2003] NSWSC 1238

CITATION:	Morris v Hanley [2003] NSWSC 1238
HEARING DATE(S):	17 December 2003
JUDGMENT DATE:	17 December 2003
JURISDICTION:	Equity
JUDGMENT OF:	Hamilton J
DECISION:	Matter adjourned for non compliance with directions and directions given for further conduct.
CATCHWORDS:	PROCEDURE [105] - Supreme Court Procedure - Practice under Supreme Court Rules - Directions - Non compliance with directions - Inability to conduct case in orderly fashion.
PARTIES :	Janine Morris (P) Jack Norman Hanley (D1) Geoffrey Donald Reid (D2) Lynda Maree Cole (D3) Christine Valmae Hayward (D4) Anthony Bodycote (D5) Robyn Janelle Haydon (D6) Daphne Olive Boyd (D7) Beverley Joy Armfield (D8) Gayle Hanley (D9) Cecil Bellchambers (D10) Mariani Holdings Pty Limited (D11)
FILE NUMBER(S):	SC 2650/97
COUNSEL:	In person (P) P T Taylor (D1-11)
SOLICITORS:	In person (P) Parker & Kissane (D1-11)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 17 DECEMBER 2003

2650/97 JANINE MORRIS v JACK NORMAN HANLEY & ORS

JUDGMENT

1 HIS HONOUR: These proceedings came on before me this morning for further hearing of the costs application. As well as these being generally long running and complicated proceedings, the costs application itself has a long and complicated history. That history shortly is that the hearing of the costs application commenced before me on 28 April 2003 and continued before me on 5 June 2003. The evidence that was led on those occasions was as follows. Mrs Morris read into evidence at least parts of an affidavit of hers sworn 24 March 2003 and an affidavit of her husband Mr John Morris of 24 March 2003. The defendants read into evidence an affidavit of their solicitor Mr P F Walsh sworn 23 April 2003 and an affidavit of J D Reid sworn 26 May 2003. Mrs Morris handed up written submissions which were entitled "Plaintiff's Submissions" dated 28 March 2003 and were accompanied by a bundle of documents marked A1-1 to H17 inclusive. Those documents were tendered one by one from the commencement of the bundle as far as document D7. All the documents from A1-1 to D7 were rejected for reasons that I gave at the time. The only exception was document D2, the admissibility of which I reserved. The plaintiff has not yet tendered documents D8 to H17 inclusive. The rest of the two days was taken up in the cross examination of Mr Reid. It was important that that be completed on 5 June 2003 because Mr Reid had been brought from Queensland for cross examination. His oral evidence was taken and concluded on 5 June 2003.

2 From the written submission to which I have referred, although I did not at first perceive it, it became apparent that the plaintiff was seeking that an order for costs be made directly against legal representatives of the defendants as well as against the defendants themselves. This in each case was in addition to her resisting the general order for costs against her in favour of the defendants which was the result which would be prima facie expected from the general judgment in the defendants' favour in the proceedings. At that time the defendants' legal representatives had not in any way been joined as parties to the proceedings or the costs application, so that the application as against them could not be heard.

3 The plaintiff sought leave to file a notice of motion against those legal representatives to permit that argument to proceed. I suggested and the plaintiff acquiesced in a course whereby she should apply for leave to file and serve a motion in that regard returnable before me, but that I should refuse that leave if it appeared to me that the case sought to be made out for costs against the defendants’ legal representatives was hopeless. That application was heard before me on 12 June 2003 and on that day I refused to give leave for the motion to be made returnable before me, on the basis that on the material brought forward the application for costs against the legal representatives could not succeed: Morris v Hanley [2003] NSWSC 523.

4 On 5 June 2003, in view of the facts that the hearing had already taken up the best part of two days and that it was important that the application to file a motion for costs against the defendants’ legal representatives should be dealt with expeditiously on 12 June 2003, it became apparent that the costs application could not be concluded on the days reserved for it in June 2003. Unfortunately, this meant that the proceedings had to be stood over for a comparatively long period until today for further hearing because of my impending absence from the Court on leave. I did, however, on that day give directions, not only for the conduct of the application involving the legal practitioners, but also for the further conduct of the costs application generally. Those directions included the following:

“1 I note that the plaintiff informs the court that all arguments that will be put as to costs orders in relation to the defendants or legal practitioners fall within the five heads set out within paragraphs 44 to 48 of the plaintiff's outline of arguments dated 4 June 2002.

2 I direct that the plaintiff deliver to the defendants and to my Associate full particulars of all acts relied on as constituting the first four heads referred to on or before 31 July 2003.

……

6 The further hearing of all applications concerning costs is fixed for 17, 18 and 19 December 2003.”

5 On the matter coming before me this morning, I inquired whether the particulars had been given. I was told that they had not. The reason for this is that, in attending to preparation for the hearing of the motion concerning the legal practitioners on 12 June 2003 and the argument of that application on that day, the plaintiff had forgotten the terms of my direction 2 above. This has had the very unfortunate effect that upon returning to the matter this morning I found that it was in complete disorder and that the hearing of the costs application simply could not be conducted before me in an orderly manner in the three days that have now been reserved. I do not intend to embark upon the hearing of this application on a basis more disorderly than absolutely necessary. I cannot castigate the plaintiff too severely for her forgetfulness in this regard because, as a litigant in person since she ceased to be legally represented, she has tried hard to comply with the requirements of the Court as to the argument of these quite complex and difficult matters. Nonetheless, the necessity to adjourn the hearing from today by reason of the absence of particulars is quite unfortunate. It certainly is not the defendants’ fault. The question of any costs arising from the necessity of this adjournment is reserved and will be considered when the costs of the costs application are dealt with generally.

6 I feared upon the foregoing situation becoming apparent that it might be many months, in view of the commitments of myself and other Judges in this Division, before I could come back to the hearing of this costs application. That would be most unfortunate because the appeal from my substantive orders is apparently fixed for hearing in the Court of Appeal on 17 February 2004. I think it important for me to have dealt with the costs of the proceedings before that time, if that can possibly be done, even if it has to be quite shortly before the substantive matter comes before the Court of Appeal. I found that I could arrange to free up 5 and 6 February 2004 for the further hearing. Mrs Morris has asked me not to hold the further hearing on those days because of the work she and those assisting her must do in order to be ready in the Court of Appeal on 17 February 2004. However, in view of the importance of bringing the matter to finality and of the fact that it was her default that prevented the matters being dealt with today and on days immediately following, I have insisted that the hearing proceed to finality on those days and that any preparatory steps be taken before that time. By the directions that I shall make the preparatory steps will need to be completed by 15 January 2004 and that will leave a little over a month (excepting the appearance days of 5 and 6 February) for undisturbed preparation for the Court of Appeal.

7 I reiterate that the evidence tendered to date on the costs application is as set forth in [1] above. What remains is for any further evidence to be given and for there to be submissions and argument. The directions which I shall make require Mrs Morris to give particulars of the facts she relies on and the evidence by which they will be proved by 15 January 2004 and by that day to bring forward any further evidence she seeks to tender on the costs application. In view of the fact that there are now two somewhat overlapping sets of submissions I have also required that she indicate what written submissions she relies on, preferably by bringing forward a new set of submissions, but, if that is not possible in the time, by indicating clearly the portions of the existing written submissions on which she proposes to rely. On that basis, I shall make directions in accordance with the minute of directions that I have prepared. That will provide a useful summary for everyone of the state the matter is in.

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Last Modified: 02/19/2004