Phornpisutikul v Mileto - [2006] NSWSC 57

CITATION: Phornpisutikul v Mileto [2006] NSWSC 57

HEARING DATE(S): 10 February 2006

JUDGMENT DATE :
10 February 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 02/10/2006

DECISION: Self-executing order that proceedings be dismissed unless plainitff has filed, by a particular date, all her evidence in chief, and a certificate from her solicitor that she has filed all her evidence in chief.

CATCHWORDS: PROCEDURE - Supreme Court procedure - power to dismiss proceedings if plaintiff does not prosecute proceedings with dispatch - power to dismiss proceedings if plaintiff fails to comply with directions - effect of introduction of Civil Procedure Act 2005 and Uniform Civil Procedure Rules 2005

LEGISLATION CITED: Civil Procedure Act 2005
Family Provision Act 1982
Uniform Civil Procedure Rules 2005

PARTIES: Nipa Phornpisutikul - Plaintiff
Tina Mileto - Defendant

FILE NUMBER(S): SC 3390/03

COUNSEL: G Lewis, solicitor - Plaintiff
V Culkoff - Defendant

SOLICITORS: Lewis Law Solicitors - Plaintiff
Russo and Partners - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

FRIDAY 10 FEBRUARY 2006

3390/03 NIPA PHORNPISUTIKUL v TINA MILETO

JUDGMENT – Ex Tempore (Revised 15 February 2006)

1 HIS HONOUR: This is a Notice of Motion which was filed by the defendant in the proceedings. It seeks orders under Part 12 Rule 12.7 of the Uniform Civil Procedure Rules 2005, or in the alternative under Part 12 Rule 12.8 of those Rules.

2 Rule 12.7 says, so far as relevant:

“(1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.”

3 Rule 12.8 is not relevant to this present situation, because it is concerned with the Court of its own motion dismissing proceedings. What is at present before me is a motion by one party for the proceedings to be dismissed, a situation to which Rule 12.7 applies.

4 The proceedings are proceedings under the Family Provision Act 1982. They were listed for hearing before McDougall J on 7 February 2005. That hearing was vacated, because the plaintiff had sworn affidavits, on Thursday 3 February 2005, which suggested, in terms which are probably inadmissible in at least some part, that there have been significant changes in her financial situation. The defendant was unable to deal with that late evidence, and in consequence applied for an adjournment, which was granted. The plaintiff was ordered to pay on an indemnity basis, the defendant's costs of vacating the hearing date. As well, his Honour directed the plaintiff to file any further affidavit evidence by 4 pm on 24 March 2005.

5 The plaintiff withdrew instructions of Mr Lewis, who had been appearing for her up to the time of the matter being listed before McDougall J, and instructed another firm. It is not possible for the Court to know what transpired between the plaintiff and that other firm. What is apparent from the record is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NSWSC 57
Decision Date: 10 February 2006

CaseChat Overview and Summary

The case of Phornpisutikul v Mileto involved a plaintiff, Phornpisutikul, who filed a claim against the defendant, Mileto, in the Supreme Court. The nature of the dispute centred around the plaintiff's failure to prosecute the proceedings with the necessary urgency and to comply with the court's directions. This case presented the court with an opportunity to examine the procedural powers available under the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005, specifically in relation to the dismissal of proceedings for lack of prosecution and non-compliance with court orders.

The primary legal issue before the court was whether the Supreme Court retained the inherent jurisdiction to dismiss proceedings under the common law, despite the introduction of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. The court had to determine whether these legislative instruments, which introduced a comprehensive statutory framework for civil procedure, had effectively displaced the court's common law powers to manage cases that were not being pursued diligently or in accordance with court directions. Additionally, the court needed to clarify the extent to which the new rules and legislation provided alternative mechanisms for addressing delays and non-compliance, and whether these were sufficient to replace the previous common law powers.

In delivering its judgment, the court acknowledged that the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 represented a significant shift towards a more codified approach to civil procedure. However, the court found that these legislative instruments did not entirely displace the court's inherent jurisdiction to dismiss proceedings where there was a clear failure to prosecute with dispatch or to comply with directions. The court held that while the new statutory framework provided specific procedures and remedies for managing unprosecuted or non-compliant cases, it did not preclude the court from exercising its inherent jurisdiction in exceptional circumstances. The court emphasised the importance of considering the principles of fairness and the efficient administration of justice when determining whether to invoke these powers.

The court ultimately concluded that the introduction of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 had not entirely superseded the common law powers of the court to dismiss proceedings for lack of prosecution or non-compliance. The final orders of the court reflected this finding, emphasising the continued relevance of the inherent jurisdiction in certain circumstances, while also recognising the importance of adhering to the statutory procedures where appropriate.

Orders