Murtough v Betham - [2008] NSWSC 943

CITATION: Murtough v Betham [2008] NSWSC 943

HEARING DATE(S): 3 April 2008

JURISDICTION: Common Law

JUDGMENT OF: Rothman J

EX TEMPORE JUDGMENT DATE: 3 April 2008

DECISION: 1. The application for adjournment and/or for telephone hearing is refused.
2. Pursuant to the orders issued on the previous date (i.e. 26 October 2007) and independently, all stays issued of the entry and execution of the default judgment be dissolved.
3. All notices of motion of the plaintiff, including the motion to set aside the default judgment, be dismissed.
4. The stay on the second defendant's judgment on the cross-claim be dissolved.
5. The plaintiff to pay the defendants' costs (including all reserved costs) of and incidental to the proceedings, including all notices of motion, as agreed or assessed.
6. The cross-claim be stood over to the Registrar's List on 5 May 2008.

CATCHWORDS: PRACTICE – motion to set aside default judgment – continuing delay in processing motion – balance of interests of plaintiff and defendants – exceptional circumstances – no further indulgence warranted – no duty on count to require a party to take advantage of prior indulgences – further adjournment refused – motion dismissed – stay on entry and execution of judgment dissolved.

LEGISLATION CITED: Civil Procedure Act 2005

CATEGORY: Procedural and other rulings

CASES CITED: Christopher George Murtough v Betham and Anor [2004] NSWSC 753
Maxwell v Keun [1928] 1 KB 841
Murtough v Betham (Supreme Court of New South Wales, Rothman J, 17 February 2006, unreported)
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841
Sullivan v Department of Transport (1978) 20 ALR 323

PARTIES: Christopher George Murtough (Plaintiff)
Adrian John Betham (First Defendant)
Gyanendra (John) Parshu Ram (Second Defendant)

FILE NUMBER(S): SC 20018/02

COUNSEL: No appearance (Plaintiff)
G L Turner (First Defendant)
P Wilson (Sol) (Second Defendant)

SOLICITORS: No appearance (Plaintiff)
CKB Partners (First Defendant)
Cheney & Wilson Solicitors (Second Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

11 SEPTEMBER 2008

20018/02 Christopher George Murtough v Adrian John Betham & Anor
REASONS FOR JUDGMENT

1 HIS HONOUR: On 3 April 2008, the Court, as presently constituted, dismissed the plaintiff’s motion to set aside default judgment of 5 February 2007. The Court dissolved all stays on the entry and execution of the default judgment, together with the stay on the second defendant’s judgment on the cross-claim.

2 Directions made on 26 October 2007 had specially fixed the plaintiff’s motion for hearing over two days commencing 3 April 2008. Those days were chosen to meet the convenience of the plaintiff (Mr Murtough). It is necessary to set out a selective history of the litigation and I attach to these reasons a chronology prepared on behalf of the first defendant (Mr Betham) upon which I will expand and some aspects of which I will correct.

History of Litigation

3 The plaintiff was a legal practitioner, formerly practising in both New South Wales and England. He is a resident of New South Wales. On 21 February 2002, the plaintiff issued proceedings in this Court against two defendants, one resident of the United Kingdom and one resident of New South Wales. It is alleged that the law of England and Wales is applicable to the proceedings.

4 After some early skirmishes, during which Mr Murtough obtained default judgment and all parties filed amended pleadings, the second defendant (Mr Ram) moved for summary dismissal of the proceedings. Mr Murtough, in the amended statement of claim, claims three causes of action: malicious falsehood; collateral abuse of process by the commencement of County Court proceedings in England; and a further count of collateral abuse of process by the making of a complaint about the alleged professional misconduct of Mr Murtough to the Office for the Supervision of Solicitors of the Law Society of England and Wales. At the hearing of that motion, Mr Ram conceded that the action on the third cause could not be the subject of summary dismissal.

5 On 18 August 2004, Buddin J dismissed Mr Ram’s motion for summary dismissal of the proceedings: see Christopher George Murtough v Betham and Anor [2004] NSWSC 753.

6 On 10 September 2004, the Court ordered Mr Murtough to give discovery by serving paginated bundles of certain documents by 8 October 2004. The Court also ordered service of expert reports by 5 November 2004 and Part 33 Particulars by 1 October 2004.

7 Mr Murtough did not comply with those orders. The matter of discovery (and other incidental orders) returned to this Court on 10 September 2004, 1 October 2004, 8 October 2004, 11 October 2004, 18 October 2004, 21 October 2004, 8 November 2004, 11 November 2004, 15 November 2004, 19 November 2004, 23 November 2004, 2 December 2004, 4 March 2005, 23 May 2005, 27 May 2005, 29 July 2005, 24 August 2005, 26 August 2005, 5 December 2005 and 9 December 2005. At the hearing dates on 2 December 2004, 27 May 2005 and 26 August 2005, the same or similar orders were made as were originally made on 10 September 2004, summarised at [6] above.

8 On 9 December 2005, Mr Ram was given leave to file and serve, by 9 December 2005, a notice of motion for default judgment. The notice was filed and referred to me for hearing on 14 December 2005.

9 On 14 December 2005, the then legal representative of Mr Murtough informed the Court of difficulties in obtaining instructions and proceeding with the work necessary to comply with the Court’s previous directions. On the application of Mr Murtough’s representative, the Court adjourned until 17 February 2006 the hearing of the motions for judgment for want of prosecution, notice of which had been given by both Mr Betham and Mr Ram on or about 8 and 9 December 2005.

10 On 14 December 2005, the Court also directed Mr Murtough to file and serve, by 30 January 2006, any affidavit or other evidence upon which he relied. These orders were made on the application of Mr Murtough.

11 On 17 February 2006, when the matter was heard, Mr Murtough’s legal representative once more sought an adjournment: see Murtough v Betham (Supreme Court of New South Wales, Rothman J, 17 February 2006, unreported). Mr Murtough had filed no material in relation to the motions by 30 January 2006 or at all. At the hearing, Mr Murtough’s representative relied on two medical opinions of which no notice had been given. The opinions referred to Mr Murtough’s cognitive impairment, his inability “to make important decisions” and his depression, and expressed the view that, at least since 1 October 1997, he had been under a “legal disability” and “was never medically fit to represent himself … without a guardian [or] tutor”: ibid, p 3.

12 The Court adjourned the motion, made orally on behalf of Mr Murtough, for the appointment of a tutor and ordered the filing and service of updated medical opinions. The Court stood the matter over for argument, if any, on the issue of the tutor and the appointment, by the Court if necessary, of an appropriate expert to give evidence on the issue.

13 Subsequently, the motion was adjourned on a number of occasions, each time on the application of Mr Murtough’s representative. The motions were listed before me to be heard on 26 April 2006. On that date, a further adjournment was granted on strict conditions, one of which related to the tutor proposed by Mr Murtough. Material before the Court established that the proposed tutor was a client (or former client) of Mr Murtough and had his own issues relating to capacity. Significant debate occurred on this issue. The Court adjourned the proceedings for some period in order to allow compliance by Mr Murtough with the Rules and in order to allow Mr Murtough to obtain material that would demonstrate the capacity of the proposed tutor, or, alternatively, to obtain the consent of another person to act in that capacity. On 26 April 2006, the proceedings were stood over until 10 July 2006.

14 On 10 July 2006, a different legal representative appeared for Mr Murtough and an application was reiterated for the appointment as tutor of the same person identified on the last occasion. The material required in support thereof had not been filed. The motion was adjourned until 14 August 2006. On that date, the defendants were permitted short service of subpoenas on the proposed tutor because the required documentation had still not been provided. The matter was stood over, once more, until 14 September 2006, at which time there was no appearance for Mr Murtough. As the matter had been listed for mention only (in order to obtain a date for hearing), it was fixed for hearing on 10 October 2006.

15 On 10 October 2006, Mr Murtough was once more represented. The proceedings were once more adjourned on the application of Mr Murtough. Liberty was given to file a notice of motion. There were further directions on 19 October 2006 and the matter was stood over to 6 November 2006. On 2 November 2006, at the request of Mr Murtough, the listing for 6 November was vacated and the matter listed for 17 November 2006.

16 On 17 November 2006, Mr Murtough once more appeared for himself. He submitted, contrary to earlier evidence, that he had the capacity to conduct the proceedings himself and sought an adjournment to deal with the defendants’ motions. The adjournment was granted and strict orders were issued requiring Mr Murtough to file and serve, by 29 January 2007, a written submission dealing with his capacity and with want of prosecution and requiring, by 14 December 2006, Mr Murtough to file any further affidavit or motion seeking to “regularise” the proceedings. Mr Murtough sought and obtained extensions of time from 14 December 2006 to 21 December 2006.

17 Mr Murtough filed no submission, notice of motion or affidavit as directed. The motions were called for hearing at 10.00am on 5 February 2007 (in accordance with the directions of 17 November 2006) and there was no appearance for, or by, Mr Murtough. The Court had been hearing other matters prior thereto. The Court adjourned these proceedings after a few minutes, for a short time, and reconvened at 10.20am. At that time, by default, the court issued orders to the effect of those then sought in the defendants’ motions.

18 At 10.30 am, on return to Chambers, the Associate first received emails from Mr Murtough sent to her between 9.00am and 10.00am, the last of which was sent at 9.53am. Those emails purported to contain a draft affidavit, a draft submission and a note that Mr Murtough will be attending court. At 10.40am, Mr Murtough arrived for the 10.00am hearing. The other parties were notified and the Court reconvened. The Court refused the application, made instanter, by Mr Murtough to set aside the default judgment and gave leave to file a notice of motion with affidavit by 20 February 2007. Other directions were made and entry and execution of the default judgment was stayed.

19 Notwithstanding non-compliance with the directions of 5 February 2007, the stay was continued on 26 March 2007. Self-executing orders were made by which the stay on entry and execution of judgment would lapse unless, by a certain time, Mr Murtough had complied with particular directions. The motion to set aside the default judgment was listed for hearing on 7 and 8 May 2007.

20 On 7 May 2007, Mr Murtough sought and obtained a further adjournment. The matter was listed for 20 July 2007, a date set to meet the convenience of Mr Murtough.

21 On 18 July 2007, the Court, at the request of Mr Murtough, vacated the hearing date. At a telephone directions hearing on 13 August 2007, the matter was set down for 26 October 2007.

22 On 26 October 2007, there was no appearance for Mr Murtough. A solicitor, purporting to act as amicus, informed the Court of certain matters and the proceedings were adjourned until 3 April 2008 for hearing. 4 April 2008 was also reserved. The Court issued, inter alia, the following direction:

“2. If the Plaintiff on the date to which this matter is stood over is not represented by a legal practitioner, I will require evidence from him and evidence from an appropriately qualified medical practitioner that he is capable of conducting these proceedings.

3. If the Notices of Motion of the Plaintiff and the Defendants are not heard at the time for which they are set down due to default on the part of the Plaintiff, the Notice of Motion of the Plaintiff to set aside default judgment will, at the conclusion of that day, lapse, as will the stay of the judgment in the principal proceeding and the stay on the cross claim.”

23 No documentation was received from Mr Murtough between 26 October 2007 and 3 April 2008. On 3 April 2008, at 9.27am, the Associate received an email from Mr Murtough to the effect that he was in Orange, was unable to attend court due to illness, and he requested the Court to telephone him in order to hear his submissions. The email was read to the Court, and orders were made dismissing the notice of motion and dissolving all stays on the entry and execution of the judgment of 5 February 2007.

Principles

24 The exercise of the discretion of the Court is informed by the provisions of ss 56, 57, 58 and 59 of the Civil Procedure Act 2005. In exercising any discretion conferred on the Court, effect must be given to the purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. In giving effect to that purpose, the Court is required to manage proceedings so as to allow for their just determination, efficient disposal, efficient use of available resources, and timely disposal. The provisions of s 58(2) of the Civil Procedure Act expand on the relevant considerations in determining the “dictates of justice”, some mandatory and others not.

25 Further, the provisions of s 59 of the Act require the Court to implement a practice and procedure, the object of which is the elimination of any lapse of time between the commencement of the proceedings and their final determination beyond that which is reasonably required for the fair and just determination of the issues in dispute.

26 These objects, while codified in the Act, are not novel. While delay is not simply the passage of time, the passage of time beyond that which is reasonably required for the fair and just determination of the issues in dispute between the parties must, to the extent that justice can still be given effect, be avoided.

27 The balance, between giving to a party a further opportunity (by way of amendment, adjournment, or other indulgence) and the injustice to another party caused by any such delay, is often difficult. In the present proceedings, were it not for the evidence and other material relating to the physical and psychiatric disabilities purportedly suffered by Mr Murtough, the balance would be more than obvious. The Court has indulged Mr Murtough, for the foregoing reasons, in a manner that is extraordinary.

28 Dealing with an adjournment application, the High Court of Australia has, relying upon Maxwell v Keun [1928] 1 KB 841, reiterated that, while an appellate court would only exceptionally interfere with the discretion to refuse an adjournment, it will do so when the failure to adjourn results in a denial of justice and the adjournment would not otherwise result in any injustice to other parties. Thus, “an adjournment which, if refused, would result in a serious injustice to the applicant should only be refused if that is the only way that justice can be done to another party in the action.” (Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 at 843.)

29 Likewise, in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146, the High Court said:

Sali v SPC

30 This, however, is “an extreme circumstance”. Mr Murtough has been granted indulgence upon indulgence. One of the reasons that so many indulgences have been granted is the suspicion that these very proceedings may be a cause of some of the difficulties under which he suffers. The refusal to grant an indulgence, of the kind here sought, can constitute a failure to give a party the opportunity of adequately presenting his case. Every party, including Mr Murtough, is entitled to a proper opportunity to prepare and present his case. In that regard, the Court has a responsibility to ensure that a party is given every reasonable opportunity to prepare and present the case it brings to the Court. But there is no duty, nor could there ever be, to ensure that the party takes advantage of the opportunities given to him and to which he is entitled: Sullivan v Department of Transport (1978) 20 ALR 323 at 343, per Deane J.

31 The principles to be applied require the Court to balance the injustice of preventing Mr Murtough from pursuing his claim against the injustice to the defendants in the further delay. In the extraordinary circumstances now before the Court, that balance falls against Mr Murtough. In these particular circumstances, the matter having been specially fixed on a number of occasions, Mr Murtough was, he alleged, unable to attend Court because he was unwell and in Orange. The most likely scenario is that Mr Murtough was in Orange and unwell before 3 April 2008 and has, once more, failed to notify the Court or the parties of his indisposition. The lack of simple courtesy, if this be the case, is consistent with prior conduct.

32 If, on the other hand, Mr Murtough became unwell when he awoke on 3 April 2008, it necessarily follows, from the travelling time from Orange to Sydney, that he must have been aware of his indisposition well prior to the time he notified the Court, or, that he had no intention of attending Court.

33 The Court has now given Mr Murtough more than enough opportunity for him to prepare and present whatever case he wishes. The delays that he has occasioned by his inability or unwillingness to take advantage of those opportunities has created an injustice and prejudice for the defendants, which injustice and prejudice is incapable of being overcome. Certainly, an order for costs cannot sufficiently address these issues.

34 For the above reasons, I refused the implicit application (by email) for an adjournment, refused the application for a telephone hearing (for which resources not presently available would have been required) and made the orders of 3 April 2008.

MURTOUGH

-v-

BETHAM & ANOR

FIRST DEFENDANT’S CHRONOLOGY RE HEARING ON 3 & 4 APRIL 2008

Date

Event

Source

10 September 2004 The Court orders Plaintiff to serve paginated bundles on discovery on or by 8 October 2004. Plaintiff to complete service of expert reports by 5 November 2004 and Plaintiff to file and serve Statement of Particulars pursuant to Part 33 Rule 8A together with available supporting documentation on or before 1 October 2004. See Court record

2004-2005 Further orders made for Plaintiff to give discovery, etc. See Court record

14 December 2005 First return of First Defendant’s Notice of Motion to strike out for want of prosecution. Proceedings adjourned because of “significant psychiatric issues that required attention in order for Mr Byrnes to deal with the Notices of Motion that were before the Court”. An order was made that any matter upon which the Plaintiff sought to rely on the Notice of Motion ought be filed and served by 30 January 2006. Pages 1 and 2 Judgment 17 February 2006.

30 January 2006 Date for service of evidence – application by Plaintiff passes – no application or evidence to support an application served by Murtough.

17 February 2006 Application for an adjournment (conducted by Mr Byrnes)(lack of capacity issue) Transcript 17 February 2006

30 March 2006 Proceedings before Court. Mr Byrnes appeared for Murtough. Proceedings adjourned to 26 April 2006. Plaintiff directed to notify each other party and the Court of a proposed tutor. Application for appointment of a tutor for the Plaintiff together with the First Defendant’s Notice of Motion filed 5 February 2005 stood over to 26 April 2006.

26 April 2006 Proceedings before the Court. Mr Byrnes appeared for Murtough. Proceedings further adjourned to enable compliance with the Rules with regard to appointment of tutors and for further evidence to be adduced to show that Dr O’Sullivan had legal capacity to act as a tutor or alternatively another person to act as tutor. The Court commented in a judgment delivered that date in the context of an application to appoint Dr O’Sullivan as tutor “As a result of directions and orders earlier made, there is agreement and if there was not agreement, there would be an order of the Court – that a tutor be appointed in relation to the Plaintiff. The issue that has been agitated today, the identity of the tutor. The Plaintiff has proposed that Dr O’Sullivan – being Dr Brendan O’Sullivan – be appointed as the Tutor; that application is opposed…I am not yet convinced, given the material that is before me, that Dr O’Sullivan is a person not under a legal incapacity, and I have no doubt that there is a residual discretion reposed in the Court as to the appointment of a tutor. In those circumstances, what I intend to do is allow an adjournment for two purposes: Firstly, for compliance with the Rules to occur; and secondly, for material to be adduced that would show a legal capacity to act as tutor; or alternatively, another person to act as the tutor. I intend that to be a substantial adjournment to allow compliance with those terms.”

10 July 2006 Proceedings before the Court. Mr Parsons appeared for Murtough. Application to appoint Dr O’Sullivan as tutor filed in Court. Proceedings adjourned to 14 August 2006.

14 September 2006 Proceedings before the Court. No appearance for Murtough. Proceedings stood over to 10 October 2006.

10 October 2006 Proceedings before the Court. Mr M Byrnes appeared for the Plaintiff. Leave given to any party to file a Notice of Motion by 23 October 2006. Proceedings stood over to 6 November 2006.

17 November 2006
Proceedings before the Court. Mr Murtough appeared in person. Proceedings stood over for hearing on 5 February 2007. The Court further ordered:-
1. The Plaintiff to file and serve by 4.00 p.m. on 14 December 2006 all evidence upon which he seeks to rely in answer to the Notice of Motion of the Defendants.
2. By 29 January 2007 the Plaintiff is to file and serve a written submission dealing with both capacity and want of prosecution in these proceedings.

15 December 2006 Proceedings before the Court. The Court ordered, inter alia, the direction previously made in relation to the filing of an affidavit in relation to the Notice of Motion be extended until the close of business on 21 December 2006.

22 December 2006 Proceedings before the Court. The Plaintiff undertook to the Court to swear, file and serve by 8 January 2007 his affidavit which had been due to be filed by 14 December 2006 which had been extended by consent to 21 December 2006. Transcript 22 December 2006 TP 10.40-10.57
So far as the First Defendant is aware this affidavit has never been filed

29 January 2007 Due date for Plaintiff’s submissions required by Order made 17 November 2006.

5 February 2007 Proceedings before Court for hearing of First and Second Defendants’ Notices of Motion to strike out for, inter alia, want of prosecution of the proceedings on the part of Murtough.

9.05 a.m. - Email Murtough to Court and, inter alia, to the First Defendant’s solicitors enclosing a draft affidavit.
9.14 a.m. – Email Murtough to the Court and, inter alia, to the First Defendant’s solicitors and stated “My wife and I are coming to Court….”.

9.53 a.m. – He emailed draft submissions to the Court and, inter alia, the First Defendant’s solicitors and stated “The Plaintiff regrets to advise that he may be running a few minutes late for Court…”.

10.00 a.m. or thereabouts - the matter was called on for hearing. There was no appearance for the Plaintiff (see transcript 5 February 2007 at page 1). The Court made the following orders:-

“By default, the Court orders that the proceedings be dismissed. I direct the First Defendant to file a minute of the order for settlement. The Plaintiff should pay the costs of and incidental to the proceedings as agreed or assessed.”

Transcript of 5 February 2007 pages 2 and 3

About 10.40 a.m. - the Plaintiff appeared in person. During the course of that debate he claimed he was on the Sydney Harbour Bridge at the time when he phoned the Court Registry and he had had computer problems. He claimed that his delay was unintentional and was slight.
Transcript of 5 February 2007 page 4.

He claimed he did not intend to be late. Transcript of 5 February 2007 page 7.

The Court ultimately ordered, inter alia:-

“1 Plaintiff to file and serve any Notice of Motion seeking to set aside orders made entering default judgment by close of business Tuesday, 20 February 2007;

2 Plaintiff to file and serve all affidavits upon which he may seek to rely in relation to that Notice of Motion by close of business 9 March 2007;”

Transcript of 5 February 2007 page 20.

Murtough was ordered to pay the Defendants’ costs of the day as agreed or assessed

Murtough raised an issue obtaining Legal Aid through the Bar Association pro bono scheme. His Honour indicated that any such application should be referred to him.
The proceedings were listed for hearing on 26 March 2007. Transcript of 5 February 2007 pages 21-22.

26 March 2007 The proceedings were before the Court. Murtough appeared in person. Notice of Motion required to be filed by the Order made 5 February 2007 had not been complied with. Murtough sought to adjourn the proceedings. Basis of application was that he was unwell due to the chaos in his life. The First Defendant sought that the stay against entry of the default judgment be lifted. Transcript 26 March 2007 pages 1, 4 and 8.

Leave to file in Court the Notice of Motion required by the Order of 5 February 2007 was refused.
Murtough made an oral application to extend the timetable of 5 February 2007. Transcript 26 March 2007 Page 10.

The Court ordered, inter alia:-
1. Default judgment made 5 February 2007 be stayed until further order;
2. That the stay lapse at 4.00 p.m. on 2 April 2007 unless by that time the Notice of Motion referred to and all affidavits upon which the Plaintiff relied in support thereof had been filed and served in accordance with the Rules;
3. The Notice of Motion referred to was a Motion confined to the setting aside of the default judgment;
4. The Defendants shall file and serve all affidavits upon which they seek to rely in the Notice of Motion referred to by 16 April 2007;
5. The Notice of Motion was listed for hearing on 7 and 8 May 2007;
6. If the Notice of Motion referred to resulted in the setting aside of the default judgment of 5 February 2007, then the Notice of Motion of the First and Second Defendants seeking to strike out the proceedings shall proceed forthwith;
7. The Notice of Motion was listed for hearing on 7 and 8 May 2007;
8. If the Notice of Motion referred to resulted in the setting aside of the default judgment of 5 February 2007, then the Notice of Motion of the First and Second Defendants seeking to strike out the proceedings shall proceed forthwith;
9. Any affidavit of the Defendants upon which they would seek to rely in any strike out motion shall be filed and served on or before 16 April 2007 together with a list of affidavits already filed upon which they seek to rely;
10. Any affidavits of the Plaintiff upon which he would seek to rely in relation to the Defendants’ strike out motion be filed and served in accordance with the Rules on or before 30 April 2007;
11. The Defendants shall file and serve any and all affidavits in reply to the motion setting aside the default judgment by 23 April 2007;
12. As a matter of abundant caution the stay of the orders made on 5 February 2007 shall lapse immediately upon the Plaintiff failing to comply with Order 1 herein;
13. No evidence may be adduced at the hearing of the motion except by leave of the Court and is contained in an affidavit;
14. The Plaintiff shall pay the costs of the proceedings on 5 February and 26 March 2007 on an indemnity basis such costs to be payable forthwith.

2 April 2007 Notice of Motion filed by Murtough seeking to reverse the orders made 5 February 2007.

25 April 2007 Email from Murtough to, inter alia, the First Defendant’s solicitor and to the Supreme Court to the effect, inter alia, “As an officer of the Court it is a matter of grave concern to me that I do not under any circumstances warrant to the Court that I have complied with discovery if I in fact have not. I can inform the legal representatives of each of the Defendants that I am confident that at the very least 90-95% of any relevant documents which are properly and reasonably discoverable have already been disclosed in the paginated bundle of documents thus far provided”.

7 May 2007 Murtough’s Notice of Motion to set aside default judgment which had been filed listed for hearing on this date. Murtough appeared in person. He sought adjournment of the proceedings. Proceedings adjourned to 31 May 2007. Costs reserved.

31 May 2007 Proceedings before the Court. Murtough appeared in person. Murtough made an application to further adjourn because he had Legal Aid application pending before the Legal Aid Review Committee. The proceedings were adjourned to 20 July 2007 for mention.

18 July 2007 The Court vacated the date of 20 July 2007 and re-listed the matter for mention on 26 July 2007 at 9.00 a.m.

19 July 2007 The Court communicated with the parties to the effect that it wished to know whether or not there was any point in having the hearing on 20 July 2007.

1 August 2007 The Court notified the parties that the matter was to be fixed for directions by telephone on 13 August 2007.

13 August 2007 Telephone directions took place with the parties. Mr Stern, solicitor, appeared on behalf of Mr Murtough. Orders were made setting the matter down for hearing on 26 October 2007 with a direction that any further evidence be served by 12 October 2007.

26 October 2007
Proceedings before the Court. Mr Stern appeared as amicus. There was no appearance of or for the Plaintiff. The proceedings were adjourned to 10.00 a.m. on 3 April 2008 for hearing of Murtough’s Notice of Motion to set aside the default judgment and 4 April 2008 was also reserved.
The Court also ordered “If the Plaintiff on the date to which this matter is stood over is not represented by a legal practitioner, His Honour will require evidence from him and evidence from an appropriately qualified medical practitioner that he is capable of conducting these proceedings. If the Notices of Motion of the Plaintiff and the Defendant are not heard at the time they are set down due to default on the part of the Plaintiff, the Notice of Motion of the Plaintiff to set aside default judgment will, at the conclusion of that day, lapse, as will the stay of the judgment in the principal proceedings and the stay on the Cross-Claim…”. Costs were also reserved.

**********

CITATION:	Murtough v Betham [2008] NSWSC 943
HEARING DATE(S):	3 April 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Rothman J
EX TEMPORE JUDGMENT DATE:	3 April 2008
DECISION:	1. The application for adjournment and/or for telephone hearing is refused. 2. Pursuant to the orders issued on the previous date (i.e. 26 October 2007) and independently, all stays issued of the entry and execution of the default judgment be dissolved. 3. All notices of motion of the plaintiff, including the motion to set aside the default judgment, be dismissed. 4. The stay on the second defendant's judgment on the cross-claim be dissolved. 5. The plaintiff to pay the defendants' costs (including all reserved costs) of and incidental to the proceedings, including all notices of motion, as agreed or assessed. 6. The cross-claim be stood over to the Registrar's List on 5 May 2008.
CATCHWORDS:	PRACTICE – motion to set aside default judgment – continuing delay in processing motion – balance of interests of plaintiff and defendants – exceptional circumstances – no further indulgence warranted – no duty on count to require a party to take advantage of prior indulgences – further adjournment refused – motion dismissed – stay on entry and execution of judgment dissolved.
LEGISLATION CITED:	Civil Procedure Act 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Christopher George Murtough v Betham and Anor [2004] NSWSC 753 Maxwell v Keun [1928] 1 KB 841 Murtough v Betham (Supreme Court of New South Wales, Rothman J, 17 February 2006, unreported) Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625; (1993) 67 ALJR 841 Sullivan v Department of Transport (1978) 20 ALR 323
PARTIES:	Christopher George Murtough (Plaintiff) Adrian John Betham (First Defendant) Gyanendra (John) Parshu Ram (Second Defendant)
FILE NUMBER(S):	SC 20018/02
COUNSEL:	No appearance (Plaintiff) G L Turner (First Defendant) P Wilson (Sol) (Second Defendant)
SOLICITORS:	No appearance (Plaintiff) CKB Partners (First Defendant) Cheney & Wilson Solicitors (Second Defendant)

Date	Event	Source
10 September 2004	The Court orders Plaintiff to serve paginated bundles on discovery on or by 8 October 2004. Plaintiff to complete service of expert reports by 5 November 2004 and Plaintiff to file and serve Statement of Particulars pursuant to Part 33 Rule 8A together with available supporting documentation on or before 1 October 2004.	See Court record
2004-2005	Further orders made for Plaintiff to give discovery, etc.	See Court record
14 December 2005	First return of First Defendant’s Notice of Motion to strike out for want of prosecution. Proceedings adjourned because of “significant psychiatric issues that required attention in order for Mr Byrnes to deal with the Notices of Motion that were before the Court”. An order was made that any matter upon which the Plaintiff sought to rely on the Notice of Motion ought be filed and served by 30 January 2006.	Pages 1 and 2 Judgment 17 February 2006.
30 January 2006	Date for service of evidence – application by Plaintiff passes – no application or evidence to support an application served by Murtough.
17 February 2006	Application for an adjournment (conducted by Mr Byrnes)(lack of capacity issue)	Transcript 17 February 2006
30 March 2006	Proceedings before Court. Mr Byrnes appeared for Murtough. Proceedings adjourned to 26 April 2006. Plaintiff directed to notify each other party and the Court of a proposed tutor. Application for appointment of a tutor for the Plaintiff together with the First Defendant’s Notice of Motion filed 5 February 2005 stood over to 26 April 2006.
26 April 2006	Proceedings before the Court. Mr Byrnes appeared for Murtough. Proceedings further adjourned to enable compliance with the Rules with regard to appointment of tutors and for further evidence to be adduced to show that Dr O’Sullivan had legal capacity to act as a tutor or alternatively another person to act as tutor. The Court commented in a judgment delivered that date in the context of an application to appoint Dr O’Sullivan as tutor “As a result of directions and orders earlier made, there is agreement and if there was not agreement, there would be an order of the Court – that a tutor be appointed in relation to the Plaintiff. The issue that has been agitated today, the identity of the tutor. The Plaintiff has proposed that Dr O’Sullivan – being Dr Brendan O’Sullivan – be appointed as the Tutor; that application is opposed…I am not yet convinced, given the material that is before me, that Dr O’Sullivan is a person not under a legal incapacity, and I have no doubt that there is a residual discretion reposed in the Court as to the appointment of a tutor. In those circumstances, what I intend to do is allow an adjournment for two purposes: Firstly, for compliance with the Rules to occur; and secondly, for material to be adduced that would show a legal capacity to act as tutor; or alternatively, another person to act as the tutor. I intend that to be a substantial adjournment to allow compliance with those terms.”
10 July 2006	Proceedings before the Court. Mr Parsons appeared for Murtough. Application to appoint Dr O’Sullivan as tutor filed in Court. Proceedings adjourned to 14 August 2006.
14 September 2006	Proceedings before the Court. No appearance for Murtough. Proceedings stood over to 10 October 2006.
10 October 2006	Proceedings before the Court. Mr M Byrnes appeared for the Plaintiff. Leave given to any party to file a Notice of Motion by 23 October 2006. Proceedings stood over to 6 November 2006.
17 November 2006	Proceedings before the Court. Mr Murtough appeared in person. Proceedings stood over for hearing on 5 February 2007. The Court further ordered:- 1. The Plaintiff to file and serve by 4.00 p.m. on 14 December 2006 all evidence upon which he seeks to rely in answer to the Notice of Motion of the Defendants. 2. By 29 January 2007 the Plaintiff is to file and serve a written submission dealing with both capacity and want of prosecution in these proceedings.
15 December 2006	Proceedings before the Court. The Court ordered, inter alia, the direction previously made in relation to the filing of an affidavit in relation to the Notice of Motion be extended until the close of business on 21 December 2006.
22 December 2006	Proceedings before the Court. The Plaintiff undertook to the Court to swear, file and serve by 8 January 2007 his affidavit which had been due to be filed by 14 December 2006 which had been extended by consent to 21 December 2006.	Transcript 22 December 2006 TP 10.40-10.57 So far as the First Defendant is aware this affidavit has never been filed
29 January 2007	Due date for Plaintiff’s submissions required by Order made 17 November 2006.
5 February 2007	Proceedings before Court for hearing of First and Second Defendants’ Notices of Motion to strike out for, inter alia, want of prosecution of the proceedings on the part of Murtough.
9.05 a.m. - Email Murtough to Court and, inter alia, to the First Defendant’s solicitors enclosing a draft affidavit. 9.14 a.m. – Email Murtough to the Court and, inter alia, to the First Defendant’s solicitors and stated “My wife and I are coming to Court….”.
9.53 a.m. – He emailed draft submissions to the Court and, inter alia, the First Defendant’s solicitors and stated “The Plaintiff regrets to advise that he may be running a few minutes late for Court…”.
10.00 a.m. or thereabouts - the matter was called on for hearing. There was no appearance for the Plaintiff (see transcript 5 February 2007 at page 1). The Court made the following orders:- “By default, the Court orders that the proceedings be dismissed. I direct the First Defendant to file a minute of the order for settlement. The Plaintiff should pay the costs of and incidental to the proceedings as agreed or assessed.”	Transcript of 5 February 2007 pages 2 and 3
About 10.40 a.m. - the Plaintiff appeared in person. During the course of that debate he claimed he was on the Sydney Harbour Bridge at the time when he phoned the Court Registry and he had had computer problems. He claimed that his delay was unintentional and was slight.	Transcript of 5 February 2007 page 4.
He claimed he did not intend to be late.	Transcript of 5 February 2007 page 7.
The Court ultimately ordered, inter alia:- “1 Plaintiff to file and serve any Notice of Motion seeking to set aside orders made entering default judgment by close of business Tuesday, 20 February 2007; 2 Plaintiff to file and serve all affidavits upon which he may seek to rely in relation to that Notice of Motion by close of business 9 March 2007;”	Transcript of 5 February 2007 page 20.
Murtough was ordered to pay the Defendants’ costs of the day as agreed or assessed
Murtough raised an issue obtaining Legal Aid through the Bar Association pro bono scheme. His Honour indicated that any such application should be referred to him. The proceedings were listed for hearing on 26 March 2007.	Transcript of 5 February 2007 pages 21-22.
26 March 2007	The proceedings were before the Court. Murtough appeared in person. Notice of Motion required to be filed by the Order made 5 February 2007 had not been complied with. Murtough sought to adjourn the proceedings. Basis of application was that he was unwell due to the chaos in his life. The First Defendant sought that the stay against entry of the default judgment be lifted.	Transcript 26 March 2007 pages 1, 4 and 8.
Leave to file in Court the Notice of Motion required by the Order of 5 February 2007 was refused. Murtough made an oral application to extend the timetable of 5 February 2007.	Transcript 26 March 2007 Page 10.
The Court ordered, inter alia:- 1. Default judgment made 5 February 2007 be stayed until further order; 2. That the stay lapse at 4.00 p.m. on 2 April 2007 unless by that time the Notice of Motion referred to and all affidavits upon which the Plaintiff relied in support thereof had been filed and served in accordance with the Rules; 3. The Notice of Motion referred to was a Motion confined to the setting aside of the default judgment; 4. The Defendants shall file and serve all affidavits upon which they seek to rely in the Notice of Motion referred to by 16 April 2007; 5. The Notice of Motion was listed for hearing on 7 and 8 May 2007; 6. If the Notice of Motion referred to resulted in the setting aside of the default judgment of 5 February 2007, then the Notice of Motion of the First and Second Defendants seeking to strike out the proceedings shall proceed forthwith; 7. The Notice of Motion was listed for hearing on 7 and 8 May 2007; 8. If the Notice of Motion referred to resulted in the setting aside of the default judgment of 5 February 2007, then the Notice of Motion of the First and Second Defendants seeking to strike out the proceedings shall proceed forthwith; 9. Any affidavit of the Defendants upon which they would seek to rely in any strike out motion shall be filed and served on or before 16 April 2007 together with a list of affidavits already filed upon which they seek to rely; 10. Any affidavits of the Plaintiff upon which he would seek to rely in relation to the Defendants’ strike out motion be filed and served in accordance with the Rules on or before 30 April 2007; 11. The Defendants shall file and serve any and all affidavits in reply to the motion setting aside the default judgment by 23 April 2007; 12. As a matter of abundant caution the stay of the orders made on 5 February 2007 shall lapse immediately upon the Plaintiff failing to comply with Order 1 herein; 13. No evidence may be adduced at the hearing of the motion except by leave of the Court and is contained in an affidavit; 14. The Plaintiff shall pay the costs of the proceedings on 5 February and 26 March 2007 on an indemnity basis such costs to be payable forthwith.
2 April 2007	Notice of Motion filed by Murtough seeking to reverse the orders made 5 February 2007.
25 April 2007	Email from Murtough to, inter alia, the First Defendant’s solicitor and to the Supreme Court to the effect, inter alia, “As an officer of the Court it is a matter of grave concern to me that I do not under any circumstances warrant to the Court that I have complied with discovery if I in fact have not. I can inform the legal representatives of each of the Defendants that I am confident that at the very least 90-95% of any relevant documents which are properly and reasonably discoverable have already been disclosed in the paginated bundle of documents thus far provided”.
7 May 2007	Murtough’s Notice of Motion to set aside default judgment which had been filed listed for hearing on this date. Murtough appeared in person. He sought adjournment of the proceedings. Proceedings adjourned to 31 May 2007. Costs reserved.
31 May 2007	Proceedings before the Court. Murtough appeared in person. Murtough made an application to further adjourn because he had Legal Aid application pending before the Legal Aid Review Committee. The proceedings were adjourned to 20 July 2007 for mention.
18 July 2007	The Court vacated the date of 20 July 2007 and re-listed the matter for mention on 26 July 2007 at 9.00 a.m.
19 July 2007	The Court communicated with the parties to the effect that it wished to know whether or not there was any point in having the hearing on 20 July 2007.
1 August 2007	The Court notified the parties that the matter was to be fixed for directions by telephone on 13 August 2007.
13 August 2007	Telephone directions took place with the parties. Mr Stern, solicitor, appeared on behalf of Mr Murtough. Orders were made setting the matter down for hearing on 26 October 2007 with a direction that any further evidence be served by 12 October 2007.
26 October 2007	Proceedings before the Court. Mr Stern appeared as amicus. There was no appearance of or for the Plaintiff. The proceedings were adjourned to 10.00 a.m. on 3 April 2008 for hearing of Murtough’s Notice of Motion to set aside the default judgment and 4 April 2008 was also reserved. The Court also ordered “If the Plaintiff on the date to which this matter is stood over is not represented by a legal practitioner, His Honour will require evidence from him and evidence from an appropriately qualified medical practitioner that he is capable of conducting these proceedings. If the Notices of Motion of the Plaintiff and the Defendant are not heard at the time they are set down due to default on the part of the Plaintiff, the Notice of Motion of the Plaintiff to set aside default judgment will, at the conclusion of that day, lapse, as will the stay of the judgment in the principal proceedings and the stay on the Cross-Claim…”. Costs were also reserved.