Noye v Robbins - [2005] WASC 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NOYE & ANOR -v- ROBBINS [2005] WASC 284

CORAM: EM HEENAN J

HEARD: 7 NOVEMBER 2005

DELIVERED : 7 NOVEMBER 2005

FILE NO/S: CIV 2231 of 1999

BETWEEN: JEFFREY HOWARD NOYE
LINDSAY GORDON RODDAN
Plaintiffs
AND
STEPHEN JOHN ROBBINS
Defendant

FILE NO/S :CIV 2490 of 2000

BETWEEN :JEFFREY HOWARD NOYE
LINDSAY GORDON RODDAN
Plaintiffs
AND
LYNETTE BERYL CRIMMINS
Defendant

Catchwords:

Practice and procedure - Directions - Case management

Legislation:

Nil

Result:

Directions given

Category: B

Representation:

CIV 2231 of 1999

Counsel:

First-named Plaintiff     :     No appearance
Second-named Plaintiff :     In person
Defendant:     Mr M T KcKenna

Solicitors:

First-named Plaintiff     :     No appearance
Second-named Plaintiff :     In person
Defendant:     Hunt & Humphry

CIV 2490 of 2000

Counsel:

First-named Plaintiff     :     No appearance
Second-named Plaintiff :     In person
Defendant:     Mr J D Allanson

Solicitors:

First-named Plaintiff     :     No appearance
Second-named Plaintiff :     In person
Defendant:     Lewis Blyth & Hooper

Case(s) referred to in judgment(s):

Noye & Anor v Robbins [2005] WASC 137

Case(s) also cited:

Nil

EM HEENAN J: I am sitting in Chambers to deal with applications in the two actions: Noye and Roddan v Robbins CIV 2231 of 1999 and Noye and Roddan v Crimmins 2490 of 2000. The reason for this hearing is to resolve matters which arose from the order which I made on 29 July last at the adjournment, part heard, of other causes of action brought by Mr Noye against Mr Robbins and Ms Crimmins and which are to resume hearing in mid‑December.
The background of these two actions is set out in the judgment of Noye & Anor v Robbins [2005] WASC 137 which I gave at the beginning of that trial leading to orders that the claims by the plaintiffs in both actions should be severed and that separate claims by Mr Roddan in his actions should be brought with new sets of pleadings and a series of associated directions.
In particular, the orders which I made on 29 July included the following: a direction that in the two claims currently brought by Mr Roddan any application for leave to amend the writ of summons and the application for leave to amend the statement of claim be listed for hearing before me on a date to be fixed and that draft of any defences also be made available at that hearing; secondly, any variations to the current minutes and proposed amended writs of summons and statements of claim be filed and served 14 days before that hearing and that each defendant bring to that hearing a draft defence of the proposed amended writs of summons and statements of claim.
There were certain other incidental orders and directions and amendments which I made on that occasion including an order that all costs in relation to the hearing be reserved. What has happened in compliance with those orders is that minutes of proposed amended substituted statements of claim and minutes of amended writs by Mr Roddan in both actions; that is, the Robbins' action and the Crimmins' action, were filed on or about 12 July 2005.
Some communications then followed between Mr Roddan and the solicitors for both of the defendants indicating that those pleadings or minutes were in a sense provisional as they were referred to as holding documents. Quite why they were provisional does not matter greatly because my orders contemplated that they would be the substantive pleadings which were to be considered on this application for leave to amend. But in any event, as after quite some time went by without any new minutes of amended statements of claim or writs being filed, the defendants filed submissions in opposition to the applications for leave to amend and introduce new statements of claim; and also, at least in the case of the Robbins claim, a detailed draft of defence to the July minutes was prepared. The same course was eventually followed by the solicitors for Mrs Crimmins but not until much later, no doubt, in the expectation that a final version of the minutes of proposed writ of summons and statement of claim might eventuate. We are assembled today to deal with those applications for leave to amend the writ of summons and the statement of claim ostensibly by reference to the July minutes.
However, via facsimile transmission to the Court and to the solicitors for Mr Robbins and Mrs Crimmins only this morning, a further minute of proposed substituted statement of claim in the Robbins action (CIV 2231 of 1999) and a further minute of a proposed substituted writ of summons in that action was dispatched. There is no affidavit to explain this or the delay involved but Mr Roddan, appearing in person, has informed me that he experienced very considerable difficulties in drafting a statement of claim or a minute himself which might survive the scrutiny to which it was going to be subject. He has only recently engaged solicitors and counsel who, under considerable pressure of time, have come up with this latest proposed amendment to the Robbins' writ of summons and statement of claim.
In the process, this latest version has addressed, perhaps adequately, perhaps not, a number of the objections which were made in writing by the solicitors for Mr Robbins to the earlier July versions. Mr Roddan has also informed me that he hopes to be able to produce an amended version of a proposed substituted statement of claim and an amended version of a proposed amended writ of summons in the Crimmins action, prepared and settled by counsel, very soon - but that has not yet materialised.
Mr Roddan contends that it is more consistent with his interests and the efficient disposition of the proceedings by the Court to have a professionally prepared pleading or minute of proposed pleading than to grapple with the makeshift pleadings which he has been compelled to attempt himself and that because of this new development he does not wish to persist with the minutes that were prepared and lodged in the Robbins action or in the Crimmins action in July. He seeks, in these circumstances, an adjournment of the present hearing on terms, or subject to directions which would enable at some suitable time in the future, the 7 November 2005 minutes in the Robbins action to be considered and be the subject of a formal application for leave to amend and for a similar minute of proposed amended statement of claim and writ of summons in the Crimmins action, with which the Court has not yet been favoured, to be dealt with correspondingly.
Mr Roddan admits that a great delay has been occasioned and that he has had since July to comply with the orders which I made on the 29th of that month and that this is yet another example of non-compliance with Court orders and long delay in the proceedings which he has brought. That is unquestionably so, notwithstanding that, in one sense, there has been compliance with those orders by the filing of the July minutes. The problem is that Mr Roddan is not satisfied with the July minutes and that is presumably a reaction to the criticism which has been made of them in the written submissions.
On the other side of the record, counsel for Mr Robbins and counsel for Mrs Crimmins point to a long history of non‑compliance with orders and submit that the point has been reached where Mr Roddan's applications for further time or relief, or excuse from the consequence of non-compliance with orders has reached the point that substantial injustice to their clients is being caused, that the situation is tantamount to an abuse of the process of the Court and that the application should be dealt with on its merits, be dismissed, and the actions concluded. There is much to be said in support of the defendants' position in this regard but I do not consider that it would be profitable to go through the individual defaults or to prepare a detailed catalogue of non-compliance. I accept that the delays are gross and that they have been numerous.
Having said all that, I am still disposed to the view that a litigant such as Mr Roddan should be entitled to have his claim, or proposed claim scrutinised with regard to its potential merits rather than be dismissed permanently for non-compliance with procedural orders. Therefore, I am disposed to exercise any discretions which I have in favour of ascertaining whether or not a tenable cause of action can be advanced.
That does not mean that Mr Roddan can expect to have his allegations go to trial without scrutiny but rather that a realistic scrutiny of them should take place before there is any summary disposal of the proceedings. I will therefore make orders and give directions designed to achieve that purpose and it seems to me that this should be achieved in the following way.
I will order that the present application be adjourned to a date to be fixed. I will also order that any further proposed minutes of amended statements of claim or amended writs which Mr Roddan seeks to rely upon in either the Robbins' action or the Crimmins action should be filed and served within 14 days of today.
In the event that such amended minutes of statements of claim and writs of summons are filed, then each defendant should within a further 21 days file any written submission in opposition to leave being granted to amend as sought, addressing in particular any fact or matter which would render the proposed causes of action unarguable or constitute a substantial defence to them; and, at the same time, file and serve draft defences to the new proposed minutes of statement of claim in each action. Both matters should then be listed before me for a directions hearing at a date to be set in December.
At that directions hearing I will then determine whether or not there should be a special appointment to hear the application for leave to amend as sought which would, in effect, be the exercise which it was intended should have been undertaken today. If so a date for that can be set and it may even be possible to deal with that before the end of December. Any draft defences or any written submissions which may be filed by the solicitors for Mr Robbins or Mrs Crimmins in opposition to the applications for leave to amend, any substantial defences, such as the expiration of any relevant period of limitation, the loss of any right of action by the plaintiff due to bankruptcy or other circumstances which may destroy or transfer the ownership of the right of action should be specifically pleaded.
In the case of bankruptcy as raised in argument today, there should be affidavit evidence in support of the allegation so that on the application for leave to amend, if it were to appear, for example, that a cause of action had vested in a trustee or receiver in bankruptcy and not been reassigned to the plaintiff, proof of that fact would be treated as a basis for disallowing an amendment or striking out the action or part of the action for that reason. That is by way of example as well as a direction in relation to a specific matter that has been raised today.
That brings me to the terms upon which this order for an adjournment and the other directions which I have made must be accompanied. There is no escaping the fact that the reason why the substance of the scrutiny, which it was intended to take place today, has not occurred, is because of the change in direction by Mr Roddan resulting from his substitution, for the July minutes, of the 7 November minutes in the Robbins' proceedings and the forecasted minutes in the Crimmins' proceedings. He will have to pay the costs associated with those developments.
The various costs orders which I make are firstly that, by consent, Mr Roddan do pay $2000 to Mr Robbins for the costs of the special appointment for today. He shall also pay the costs of the adjournment of his trial in accordance with the order which I made on 1 June 2005. I note that those costs have been taxed and I direct that the amount allowed on taxation shall be paid forthwith upon the completion that taxation.
Mr McKenna has sought an order that a further sum of $350 be paid by Mr Roddan in relation to the application for immediate payment of those costs today. I do not consider that I should make such an order on this occasion without having some better appreciation of the actual extra work associated with that. But I will, however, direct that the costs of that application shall be part of the costs of the action to be paid in any event by Mr Roddan to Mr Robbins or to his solicitors.
In relation to Mrs Crimmins's action no application has been made for an order for costs in any specific amount nor has there been agreement upon any figure. I will order than Mr Roddan shall pay Mrs Crimmins the costs of the adjournment of this application to be taxed, that the taxation may proceed immediately and, upon its completion, that the amount allowed on taxation shall be payable forthwith.
I have already indicated that Mr Roddan shall be obliged to file and serve formally his proposed minutes of substituted statement of claim and writ of summons in the Robbins' action and also in the Crimmins action within 14 days of today. The solicitors for both those defendants shall file draft defences and written submissions in objection to the applications for leave to amend within 21 days.
In relation to the timing of the directions hearing, I direct that that shall occur on a date to be fixed and the date can be set in liaison with the registry and my associate after the written submissions have been filed. The same can be done in relation to any special appointment to deal with the matters of substance. In the written submissions which were filed by Mr McKenna on the basis that it was the July minutes that were to be addressed, counsel drew attention to the fact that, notwithstanding the order which I made on 1 June 2005, severing the proceedings brought by Mr Roddan on the one hand, and by Mr Noye on the other, both claims still remained with the one action number and that this is potentially confusing.
I agree that that is potentially confusing and that henceforward there should be separate action numbers for the Roddan proceedings as distinct from the Noye proceedings so that there will need to be two new action numbers. What form those new action numbers are to take can be fixed by the registry, it is really an administrative matter which may depend upon statistical and computer programs which are used by the registry. But I order that there should be new numbers and that the solicitors for any of the parties should be at liberty to take that up with the registry and regularise that so that we are eventually in the position where there will be four actions with four separate action numbers.