Powell v Hewitt - [2019] SADC 195

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
POWELL & ANOR v HEWITT & ORS
[2019] SADC 195
Reasons of His Honour Judge O'Sullivan
20 December 2019
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - ADJOURNMENT
There are two applications before the court.
The first application was filed by the defendant on 13 December 2019, and sought a number of orders including vacating the trial date of 23 March 2020, and vacating the pre-trial orders as to evidence and objections.
The second application was filed by the first, third party on 13 December 2019, and sought an order that the third-party action against him be stayed pursuant to s 20 of the Services and Execution of Process Act 1992 (Cth).
On the first application, held:
1. Application to adjourn the trial is dismissed.
2. The court will hear the parties as to varying the pre-trial orders relating to filing or adducing further evidence.
On the second application, held:
1. Application dismissed.
2. The court will hear the parties as to the conduct of the trial, taking into account the location of witnesses to be called by the first, third party.
Service and Execution of Process Act 1992 (Cth) s 20; District Court Civil Rules 2006 (SA), referred to.
Aon Risk Services Australia Ltd v Australian National University [2009] 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59; Commonwealth of Australia v Saadat & Ors [2019] SASCFC 124, considered.

POWELL & ANOR v HEWITT & ORS
[2019] SADC 195
Introduction

There are two applications before the court.
The first, filed 13 December 2019[1] by the defendant seeks a number of orders including vacating the trial date of 23 March 2020 and vacating the pre-trial orders as to evidence and objections. The plaintiff and the first third-party oppose the application to vacate the trial date. The second third-party, Mr Taylor takes no position and the third third-party, Mr Ceglinski does not oppose the adjournment.
[1] FDN 100.
The second application is by Mr Mews,[2] also filed 13 December 2019 in which he seeks an order that the third-party action against him be stayed pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth). The defendant opposes the application.
[2] FDN 105.
History
This matter was originally listed for trial to commence on Monday, 14 October 2019. On or about 22 August 2019 the plaintiff settled in principle with the then second, third and fourth defendants, a fact about which the defendant was initially informed on or about that date. The defendant was advised on 19 September 2019 that the settlement had been confirmed and the parties in question had executed Deeds of Settlement.
By application dated 3 October 2019, the defendant sought permission to join the former second, third and fourth defendants as third parties to the action and as a consequence also applied to vacate the trial on the basis that he would not have sufficient time to prepare properly for the third-party action, nor would the third parties have time to prepare properly.
I heard argument on that application on 8 October 2019 at which time Mr Ritter QC appeared for the defendant and Mr Roberts QC for the plaintiff. On that day I ruled that I would adjourn the trial but I did not publish reasons.
On 11 October 2019 the parties attended before the court at which time the matter was listed for trial on both the principal action between the plaintiff and the defendant and the third-party action on 23 March 2020. A number of orders to progress the matter to trial were made.
As to the orders made on 11 October 2019:
a)Order 4 required the defendant to file and serve a third-party action, accompanied by a statement of third-party claim, by 18 October 2019.
b)Order 5 required the third parties to file and serve defences to the third-party claim by 8 November 2019.
c)Order 9 required the defendant to file and serve his evidence-in-chief, confined to matters arising in respect of the third-party claim by 6 December 2019.
d)Order 10 gave permission to the third parties to file any lay evidence answering the plaintiff’s claim against the defendant with that evidence to be filed and served by 13 December 2019.
e)Order 11 required the third parties to file and serve their evidence-in-chief, confined to matters arising in respect of the third-party claim, by 31 January 2020.
Orders 9, 10 and 11 reflected the position put by the defendant’s counsel, Mr Ritter QC, that the purpose of the adjournment was to allow the third-party proceedings to proceed to trial in an orderly fashion and to be heard and determined at the same time as the principal action between the plaintiff and the defendants.
Further orders were made as to objections to evidence and outline of submissions. Those orders are not presently relevant to this matter.
Prior to dealing with the applications it is important to revisit the submissions of the defendant made before me in argument on 8 October 2019.
There was no dispute on that occasion that the defendant’s then solicitor Mr Dundo, had been told of a potential settlement as between the plaintiff and the second, third and fourth defendants on 19 August 2019. However it was not until Mr Dundo was provided with copies of the Deed of Settlement on 19 September 2019 that he became aware that the matter had actually settled as against the second, third and fourth defendants. The relevant Notices of Discontinuance were filed on or about 19 September 2019.[3]
[3] T13.11-23.
Mr Ritter QC submitted that the late settlement of the action by the plaintiff against the then second, third and fourth defendants created the issue that resulted in the application to join the former defendant as third parties and the consequent application to vacate the trial date.[4] He argued against separate trials[5] and it was submitted that the defendant was prejudiced in not having sufficient time to prepare for a trial against the third parties.[6]
[4]    T4.29-34.
[5]    T4.1-21.
[6]    T7.9-19.
On the question of whether the trial ought to proceed on 14 October 2019, Mr Ritter QC submitted that the third parties need to participate in any trial as the role that any one of the three third parties played in the alleged insolvent trading, whether they had a responsibility for that as opposed to the defendant and the question of equitable contribution as between directors were all issues that needed to be determined. As a result, the evidentiary overlap was such that there was a risk of differential findings should the matter not proceed as one trial but as two separate trials.
During argument, although there was no evidence of the fact, Mr Ritter QC accepted that once Mr Dundo became aware of the settlement in principle on 19 August 2019, it was reasonable to suppose that he would have told the defendant of that fact shortly after finding out that information. Nonetheless the defendant did not provide instructions to join the third parties until 19 September 2019.[7] Further, there was no application to join the third parties until 3 October 2019. That application was consequent upon an order of the court requiring the defendants to file an application if it intended to join the third parties. There was no explanation for the delay in applying to join the third parties between 19 September 2019 and 3 October 2019. In circumstances where the prospect of a settlement between the plaintiff and the then second, third and fourth defendants had been raised and Mr Dundo had received a copy of the Settlement Deeds on 19 September 2019, I considered that failure to explain the delay to be a significant, although by itself not a determinative factor.
[7] See also T11.16-23.
In support of the application filed 3 October 2019, the defendant swore an affidavit on 4 October 2019 (“Third Hewitt affidavit”)[8] in which he deposed that he would be prejudiced if he could not run the third-party action together with the trial and that the third parties may also be prejudiced if they cannot participate in the trial. He deposed that the solvency of the company of which the plaintiff are liquidators is in issue and the relevant defences that are available to him and the third parties are issues to be determined.[9]
[8] FDN 85.
[9] Third affidavit [13].
The defendant continued that a conflict had arisen with his current solicitors and that he had been attempting to engage another firm of solicitors in South Australia to act in this matter. As I understand it, the conflict arose because when the matter first commenced, Mr Dundo’s firm acted for both the defendant and the now third parties, although by the time the matter settled against the second, third and fourth defendants those parties were represented by different solicitors.
The defendant deposed that he had approached four law firms, two of which had declined to act due to conflicts. He concluded that whoever he engaged it would not be possible for them to become fully briefed to undertake the trial if it commenced on 14 October 2019.[10] He finished by deposing that “I believe a short adjournment of the trial or trial continuing but only dealing with the statute of limitations issue would not prejudice the plaintiffs.”[11]
[10] Third Hewitt affidavit [14].
[11] Third Hewitt affidavit [15].
It was clear at this argument that the defendant’s position was that it was necessary for the third parties to participate in the trial between the plaintiff and the defendant and that it would be unfair to both the defendant and the third parties to be ready to proceed in one week’s time. The defendant submitted that as a consequence, the matter should be adjourned for a short period to allow the third-party proceedings to be served and the matter to proceed as one trial.[12] Those factors were a significant consideration in my decision to adjourn the trial.
[12] T19.18-26.
It is against that background that I now consider the two applications.
The defendant’s application filed 13 December 2019
The defendant seeks a number of orders which, if granted:
a)Extend the time set by order 4 in the orders dated 11 October 2019 whereby the time for service of the third-party claims is extended to 2 December 2019 from 18 October 2019;
b)Vacate the trial listed for 23 March 2020; and
c)Vacate Orders 5-21 of the Orders made 11 October 2019. As I have observed, those orders are the pre-trial Orders for the filing of evidence in relation to the third-party claim as well as objections to evidence by all parties and opening submissions.
Documents relied upon
The defendant reads:
a)The affidavit of Nicola Iannetta sworn 11 December 2019 in relation to service of the third-party proceedings on Mr Mews (“service affidavit”);
b)Paragraphs 1, 2 and 14 of the third Hewitt affidavit; and
c)The affidavits of Andrew Malcolm Rupert Hewitt sworn 12 December 2019 and filed 17 December 2019 (“Fourth Hewitt affidavit”).[13]
[13] FDN 109.
The plaintiff reads
a)The sixth and seventh affidavits of Steven Michael Hagivassilis sworn 13 December 2019 and 17 December 2019, respectively; and
b)Paragraphs 13 and 14 of the Third Hewitt affidavit.
Principles
The defendant refers to the well-known decision of Aon Risk Services Australia Ltd v Australian National University[14] as well as the decisions in Channel Seven Adelaide Pty Ltd v Manock[15] and Commonwealth of Australia v Saadat & Ors.[16]
[14] [2009] 239 CLR 175.
[15] [2010] SASCFC 59.
[16] [2019] SASCFC 124.
Although dealing with an application to amend a claim, Aon Risk Services Australia Ltd v Australian National University[17] sets out the principles to be applied and factors to be considered in circumstances in which an application is made which may or will delay the hearing of a trial.
[17] [2009] 239 CLR 175.
In Channel Seven Adelaide Pty Ltd v Manock[18] the Full Court of the Supreme Court considered Aon in the context of an application to amend a defence and identified a number of factors which are to be taken into account in determining whether a late application for permission to amend should be granted.
[18] [2010] SASCFC 59.
Insofar as relevant to this matter those factors include:[19]
a)Whether there has been an undue delay in making the application;
b)Whether there will be inefficiency occasioned by the need to revisit interlocutory processes;
c)Whether there is any satisfactory reason for the delay in applying;
d)The likelihood of strain and uncertainty being imposed on the litigants;
e)Whether any further delay would undermine confidence in the administration of justice.
f)Any other prejudice likely to be suffered by the other party.
g)The additional cost likely to be incurred.
[19] Channel Seven Adelaide Pty Ltd v Manock [46].
Gray J although dissenting, also considered the factors in Aon and insofar as relevant to this matter summarised them in these terms:[20]
a)The effect on other litigants;
b)The just resolution of proceedings;
c)The strain of litigation in general to litigants;
d)The point the litigation has reached.
[20] Channel Seven Adelaide Pty Ltd v Manock [119].
Defendant’s fourth affidavit
In the fourth Hewitt affidavit[21] the defendant deposes that he was informed by Mr Dundo on or about 24 September 2019 that Mr Dundo had a potential conflict in continuing to act for the defendant, that it would be necessary to apply to join the former defendants as third parties and if that was successful then Mr Dundo would be unable to continue acting.[22]
[21] FDN 109.
[22] Hewitt affidavit [6].
He continued that he gave instructions to retain Mr Ritter QC and was told by Mr Dundo that if the third parties were joined, Mr Ritter QC could continue to act.[23]
[23] Hewitt affidavit [11], [12].
At no time prior to 11 October 2019 had Mr Ritter QC informed him of
a)The proposed orders to be sought in the nature of an alternative timetable (by which he refers to the orders made on 11 October 2019).
b)The potential date or dates at which a new trial might be listed.
c)The possibility that Mr Ritter QC might be unavailable during the dates of the relisted trial.
He deposes that he was not aware the court was going to make the orders made on 11 October 2019 and he first saw them shortly after they were made.[24]
[24] Hewitt affidavit [10].
On 6 December 2019 Mr Ritter QC told Mr Disciscio of Piper Alderman who now act for the defendant, that he was unavailable for the trial on 23 March 2020. As a result the defendant has now retained a new senior counsel for the trial.[25]
[25] Hewitt affidavit [11], [12].
He did not file and serve the third-party action and statement of third-party claim by 18 October 2019 because there was a difficulty in filing the documents and on 24 October 2019 Mr Mews objected to either Mr Ryder or his firm, O’Loughlins Lawyers, acting for the defendant.[26]
[26] Hewitt affidavit [13-18].
The defendant’s domestic partner was diagnosed with lung tumours in early October 2019 and underwent surgery on 21 November 2019. He is her sole support and his partner’s recovery will impact on his ability to focus on these proceedings and provide instructions to his solicitors. He anticipates that his partner’s recovery will take a month or two.[27]
[27] Hewitt affidavit [25].
From early October 2019 the defendant contacted various firms of solicitors about potentially acting for him in the proceedings. Each of those firms are based in Adelaide but he was unable to engage them on the basis of alleged conflicts. He deposes that took some two to three weeks.
Between 17 October 2019 and 25 October 2019 he had discussions with Piper Alderman in Melbourne and on 24 October 2019 instructed Mr Lhuede of Piper Alderman, Melbourne to act for him. He first met Mr Lhuede in Melbourne on 7 November 2019.[28]
[28] Hewitt affidavit [26-30].
During the period between 25 October 2019 to 19 November 2019 his former solicitors made arrangements to transfer his file and documents to Piper Alderman but that further documents are still outstanding.[29]
[29] Hewitt affidavit [31-33].
On 11 November 2019 Mr Lhuede sent an email to the District Court Registry, the solicitors of the plaintiffs and the third parties concerning a number of matters.[30]
[30] Hewitt affidavit [33-35].
I note that in that email Mr Lhuede foreshadows an application for an extension of time within which to file and serve the third-party proceedings. No explanation was provided as to why it took until 13 December 2019 to file that application.
Insofar as the third-party action is concerned, the defendant instructed Piper Alderman to amend the third-party action and statement of third-party claim to reflect recalculated amounts to the contributions that he sought from the third parties.[31]
[31] Hewitt affidavit [37].
The amendment to the statement of third-party claim was limited to the amounts claimed. No application to amend the statement of third-party claim was filed prior to it being served.
The defendant identifies various email correspondence before deposing, without waiving privilege, that he has been advised that additional lay and expert evidence will be required if he is to properly conduct his case and that he has engaged the services of Mr Timothy Clifton of Clifton Hall to prepare an expert report on insolvency. He says he is informed by his solicitors that it is unlikely that the trial date of 23 March 2020 allows sufficient time for the primary action and third-party action to be adequately prepared for trial.[32]
[32] Hewitt affidavit [51], [52], [53].
Defendants’ submissions
Ms Walker of counsel, who appeared for the defendant, identified the orders sought as falling into three categories:
a)An extension of time to file and serve the third-party action and statement of third-party claim nunc pro tunc to 2 December 2019;
b)A variation to the timetable up to trial limited only to the steps consequent to the third-party statement of claim and vacation of the trial date;
c)“Other evidence”.
Extension of time to file and serve the third-party action and statement of third-party claim.
Ms Walker outlined the history as deposed to by the defendant in his third and fourth affidavits and submits that the defendant has not been tardy but has taken steps to retain alternative solicitors. She points to the fact that the third-party claim needed amendments and that there was difficulty in serving Mr Mews.
On 16 October 2019, the plaintiff filed a third statement of claim which had been amended to reflect the settlement of the plaintiff’s claim against the former defendants, now third parties.
Both Mr Taylor and Mr Ceglinski were served on or about 15 November 2019, the date the third-party proceedings were filed.
A consideration of the affidavits read by the defendant reveals that Ms Iannetta attempted to serve the third-party proceedings on Mr Mews. She attended an address in Halls Head, Western Australia during the period 22 November 2019 – 27 November 2019 to serve him, without success. In any event, on 2 December 2019 Mr Mews was served at another address.
Contrary to order 4 made 11 October 2019, the defendant failed to file its third-party action accompanied by a statement of third-party claim by 18 October 2019. That date was a date proposed by the defendant at the directions hearing on 11 October 2019 on the basis the third-party statement of claim had been prepared. Instead, it was filed on 15 November 2019.

There was no application to extend the time in which to file the third-party statement of claim to 2 December 2019 although there is an application to extend the time within which to serve it. I note that in the affidavit of Kym David Ryder sworn 3 October 2019 and filed by the defendant’s solicitors’ Adelaide agents in relation to the defendant’s application to vacate the 14 October 2019 trial date, Mr Ryder exhibits the proposed statement of third-party claim. Apart from differences in the amounts claimed from the third parties, the two documents are identical.
Mr Roberts QC who appeared for the plaintiff submitted that the plaintiff’s attitude to the application would depend on whether or not I was prepared to adjourn the trial. If, as a result of the extension of time, I was prepared to adjourn the trial he objected to the extension of time being granted.
As I have indicated, Mr Mews did not object to the extension of time, Mr Ceglinski objected on the basis of the time available to prepare for the trial although he did not provide any substantive reasoning behind that objection and Mr Carragher, who acts for Mr Taylor, was excused from attending on the argument, took no position.
In the circumstances, I consider it appropriate to extend the time within which the third-party action accompanied by the statement of third-party claim is to be filed and served to 2 December 2019. In making that order however, I note that the court expects its orders to be complied with. I understand and accept the reasons for the initial delay in filing the third-party statement of claim. However, there was no explanation as to why the defendant’s solicitors, despite being aware at the latest by 11 November 2019 that the defendant was in default of the order to file and serve the statement of third-party claim, took another month to issue an application seeking an extension of time to comply with the order. I understand that on occasion, and notwithstanding the best of intentions, it is not possible to comply with the court’s Orders. Nevertheless, under those circumstances the court expects an application to be brought as soon as possible to address the non-compliance.
Revisiting the timetable prior to trial and an adjournment of the trial.
Ms Walker’s submission on this topic were limited to the steps concerning the third-party statement of claim.
The defendant proposes an amended timetable for the third-party statement of claim and in particular between orders 6 -17 proposes a series of steps which culminate in the filing of a joint tender book for the third-party claim by 8 June 2020. Those orders are necessarily consequent upon an order that the trial date of 23 March 2020 be vacated.
I note that proposed order 9 provides for the defendant to file and serve any further affidavits comprising the evidence-in-chief of any lay witness on which he relies by 2 March 2020.
The proposed order 10 provides for the plaintiffs and the third parties to file further affidavits comprising the evidence-in-chief of any lay witness on which they rely by 23 March 2020 and the proposed Order 11 requires the defendant to file and serve any expert evidence as he may be advised by 30 March 2020. Proposed Orders 12 and 13 providing for the third-party and the plaintiff to file and serve any expert evidence by 20 April and 11 May 2020 respectively.
I consider this part of the defendant’s application below.
Other Evidence
The third category of orders sought were what were described by the defendants as “other evidence” which relates to the evidence as between defendant and plaintiff. In reality, although directed at the third-party procedure, Ms Walker’s submissions concerning the third-party evidence also applies in general terms to the evidence as between plaintiff and defendant.
“Special circumstances”
Mr Roberts QC who appeared for the plaintiff opposed these two parts of the application and submitted that the matter had been set for trial. Consequently, in the absence of a certificate of readiness (which is the case here because the matter has been judge managed) then the court will only permit an application of the type put forward by the defendant if satisfied that “special circumstances” exist such as to justify the grant of permission.[33]
[33] DCR 131(6).
He referred to the decision of White J in De Poi & Ors v De Poi & Ors (No 2) where his Honour considered an application by the plaintiffs or an order striking out the list of documents filed by the defendants which in substance required the defendants to engage in a wholesale review of their disclosure. The application had been brought on 18 November 2010 in circumstances where the parties had been working towards a trial in February 2011. His Honour expressed the view that the lateness of the application had not been satisfactorily explained.
His Honour referred to Supreme Court Rule 131 which is in identical terms to District Court Rule (DCR) rule 131, observing that since the matter had been set down by a judge, rule 131(5) did not require the plaintiff to seek permission.
Given that the matter has been judge managed, I consider that the provisions of rule 131(6) apply notwithstanding that there was no formal order dispensing with the filing of a certificate of readiness for trial. Accordingly, the court will only permit the application if satisfied that there are special circumstances to justify the grant of permission to bring the application. Mr Roberts QC submitted that there were no special circumstances.
I note that it has been held that the words “special circumstances” should be given their ordinary meaning and no exhaustive definition is possible.[34]
[34] Saywell v Yiu (1976) 14 SASR 56.
Ms Walker in reply, submitted that the special circumstances in this matter are the late change in the status of the parties as well as the advice received from the defendant’s new solicitors as to the requirements to proceed to trial on all matters. “Special Circumstances” can include matters arising out of the referral for trial. I accept that the applicant did not know, and could not have known, at the time of the referral for trial, that the plaintiff would settle with the second, third and fourth defendants.[35] However, the evidence concerning the advice is from the defendant’s solicitors is unsatisfactory and is vague.
[35] Morrison v Hanby Pty Ltd (2000) 208 LSJS 379 (Lander J).
In my view, although barely adequate, there are special circumstances in this matter that warrant the granting of permission to bring the application and I do so.
Next, Mr Roberts QC submits that the third party-claim that was filed was different from the third-party claim from which leave was granted. That is so but I do not consider the point to be determinative.
Finally, Mr Roberts QC submits that the defendant was ready for trial in March 2020 having been continually represented in this matter and indeed had at the argument on 8 October 2018 Mr Ritter QC had proposed that if possible, the trial could proceed in November 2019. I consider that submission to be of considerable weight.
Consideration
I take into account the submissions of counsel, Mr Mews and Mr Ceglinski.
I have already considered the application for an extension of time to file and serve the third-party action.
The District Court Civil Rules 2006 (DCR) provide at DCR 3 that the objects of the Rules are:
3—Objects
The objects of these Rules are—
(a) to establish orderly procedures for the just resolution of civil disputes; and
(b) to facilitate and encourage the resolution of civil disputes by agreement between the parties; and
(c) to avoid all unnecessary delay in the resolution of civil disputes; and
(d) to promote efficiency in dispute resolution so far as that object is consistent with the paramount claims of justice; and
(e) to minimise the cost of civil litigation to the litigants and to the State.
Timetable
As to the provision of lay evidence, I note that on 28 May 2019, I ordered the defendants each file and serve evidence-in-chief of lay witnesses by 16 August 2019. On 27 August 2019, the time within the defendants were to file and serve their evidence-in-chief of lay witnesses was extended to 20 September 2019. On 27 September 2019, the defendant filed his second affidavit, sworn 20 September 2019 as his evidence-in-chief.[36]
[36] FDN 84.
Apart from filing his own affidavit, the defendant also filed an affidavit of David Jackson sworn 9 April 2019 and of Jonathan Warrand sworn on 26 February 2019. The affidavits upon which the defendant intended to rely on evidence-in-chief were served on the plaintiff on 20 September 2019.[37]
[37] Sixth Hagivassilis affidavit Exhibit SMH-17.
Insofar as to expert evidence is concerned, Master Rice of this court extended the time within which the defendant and Mr Mews were to provide their own personal expert reports to 12 December 2018. The Master noted that no independent expert report was to be obtained by any of the then defendants.
Mr Hagivassilis deposes in paragraph 9 of his sixth affidavit that an insolvency report comprising some 214 pages was served on the plaintiffs by the defendant on 12 December 2018. In the defendant’s second defence filed 15 March 2019,[38] the defendant refers to and relies upon his insolvency report.
[38] FDN 63.
It is against that background that the orders made 11 October 2019 were crafted and why it is that those orders dealing with evidence are restricted to the claim between the defendant and the third-party.
I turn to the criteria identified by the plurality in Channel Seven Adelaide Pty Ltd v Manock.
Undue delay making the application
There is no explanation as to why it took the defendant’s solicitor from 7 November 2019 to 13 December 2019 to file the application. Whilst unsatisfactory, in the circumstances of this matter by itself that fact is not sufficient to refuse all, or some of the orders sought in the application.
Whether there will be inefficiency occasioned by the need to revisit interlocutory processes
There is a clear inefficiency in the need to revisit pre-trial orders leading up to trial in particular, the filing of further evidence including expert evidence proposed by the defendant. Whereas there will necessarily be an inefficiency, nonetheless I am not satisfied that it will be such as to warrant refusing all or some of the orders sought on the application. In my view any inefficiency, although undesirable, can nonetheless be accommodated within the time available before the trial commences.
Whether there is any satisfactory reason for the delay in applying
The defendant has clearly had some difficulties in retaining solicitors. Nevertheless, he has been represented by solicitors throughout the entirety of this matter. In the circumstances I am satisfied, with some reluctance, that there is a reason for the delay in applying although I repeat my observations made in relation to the issue of delay concerning the lack of an explanation as to why it took the defendant’s solicitors over a month to file the application.
The likelihood of strain and uncertainty being imposed on the litigants
With the exception of Mr Mews, there is no evidence as to the effect on other litigants, although Mr Mews and Mr Ceglinski both of whom are unrepresented, clearly voiced their frustration during the argument.
The third parties were all defendants and it does not take a great deal to conclude that the ongoing stress of litigation on these individuals would have some impact.
Insofar as Mr Mews is concerned, he has brought a separate application seeking to have the third-party proceedings against him stayed. I deal with that application below but it is apparent that he has some medical issues which should be born in mind quite apart from the fact that he informed me during the hearing of this matter that he was 75 years old. Although Mr Mews’ age is not determinative, in the circumstances of this case, it is a factor to be taken into account.
On the issue of the strain of litigants, in Aon, the majority observed[39]
The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd (198), that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted (199). In Bomanite Pty Ltd v Slatex Corporation Aust Pty Ltd (200), French J said of Bowen LJ’s statements in Cropper v Smith:
“… That may well have been so at one time, but it is no longer true today … Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary.”
[39] Aon Risk Services Australia Ltd v Australian National University [100].
I consider this factor to be of some weight in this matter.
Just resolution of the proceedings
The defendant has had an opportunity not just to file its pleadings but has filed its evidence-in-chief including an expert report. On the defendant’s application to adjourn the trial on 14 October 2019, Mr Ritter QC stressed the third-party proceedings. There was no suggestion of further evidence nor was there any suggestion of an expert report as to solvency being required on the part of the defendant in the proceedings between the plaintiff and the defendant.
The defendant has been given the opportunity to put on evidence, both lay and expert. The trial is three months away although I take into account there is the Christmas period during that time. I am not satisfied that an adjournment of the trial is necessary to achieve a just resolution of the proceedings.
Any other prejudice likely to be suffered by the other party
In Aon the court observed that the point at which the litigation has reached relative to a trial is important. In this matter the application to vacate the trial is to allow the defendant to put further evidence, both lay and expert in addition to that which he has already had the opportunity to do albeit in the capacity as a defendant defending the plaintiff’s claim. The defendant’s proposed orders comprise a wholesale revision of the pre-trial interlocutory orders. The matter has not only been listed for trial but has been adjourned once[40] although as I have noted that was in the context of an application to join the third parties.
[40] Aon Risk Services Australia Ltd v Australian National University [102].
Nevertheless, the ongoing delay to hearing this matter can only prejudice the parties. I note the events in question occurred in 2012 at the latest, although I accept the proceedings were not commenced until 2017. I consider this factor to be of significant weight.
Whether any further delay would undermine confidence in the administration of justice[41]
[41] Ibid [30], [35].
In Aon, French CJ observed on the issue of undermining confidence in the administration of justice as follows:
In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place. Aon had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice.
This factor is of substantial weight.
Conclusion
As I have already observed, the orders the defendant proposes apart from adjourning the trial, contemplate a complete recasting of the pre-trial orders with the filing of further evidence extending out to a date past July 2020.
In my view the following matters are important in the exercise of the Court’s discretion in this matter:
a)This matter has already been listed for trial;
b)The plaintiff and defendant have filed their evidence;
c)The defendant’s application to adjourn the trial on the prior occasion was directed at managing the third-party proceedings;
d)The lack of any satisfactory explanation as to the need for further evidence other than the mere reference to legal advice particularly in circumstances where the defendant has previously been represented; and
e)The very high prospect that the granting of an adjournment of the trial on 23 March 2020 is such as to undermine confidence in the administration of civil justice.
These matters lead me to the conclusion that in the exercise of my discretion the application to adjourn the trial should be refused and I do so.
I am however prepared to vary the pre-trial orders to provide reasonable accommodation to the defendant and other parties in relation to the filing of evidence. I will hear the parties further on that issue.
Mr Mews’ application
Mr Mews applies under s 20 of the Service and Execution of Process Act 1992 (Cth) that the third-party action against him be stayed. He filed an affidavit in support sworn 13 December 2019.[42]
[42] FDN 106.
Mr Mews deposes that he intends to call three witnesses all of whom reside in Perth, Western Australia including Mr David Jackson, a witness to be called by the defendant.[43] He also deposes that the cost of the trial will be considerable and that he is to undergo delicate eye surgery in 2020 following which he will be prohibited from flying.[44] Although Mr Mews deposes that he will be prohibited from flying for three months following his eye surgery, he does not provide a medical certificate. Nevertheless for the purposes of this application I accept that he will be prohibited from flying following the eye surgery. Mr Mews exhibits to his affidavit a letter from a cardiologist which simply records that he has been diagnosed with a need for a cardiac pacemaker.
[43] Mews affidavit [5-7].
[44] Mews affidavit [18], [21].
Section 20 of the Service and Execution of Process Act (“the Act”) provides in s 20(3) that a court may order proceedings be stayed if it is satisfied that the court of another state that has jurisdiction to determine all the matters in issue between the parties is the appropriate court to determine those matters. In determining that question, the matters set out in s 20(4) of the Act are to be taken into account.
Consideration
In taking into account the matters in s 20(4) of the Act, I do not consider that the proceedings should be stayed. Instead, I will make such orders as are appropriate to accommodate Mr Mews difficulties.
Accordingly, I dismiss Mr Mews application.
Conclusion
I order as follows:
1On the defendant’s application filed 13 December 2019:
1.1            Pursuant to DCR 131(6) I grant permission to the defendant to              bring his application filed 13 December 2019;
1.2            I extend the time by which the defendant is to file and serve the            third-party action with attached statement of third-party claim                  nunc pro tunc to 2 December 2019;
1.3            Leave to the defendant to amend his statement of third-party                 claim in the form served on the third parties;
1.4            I dismiss the orders sought – paragraphs 4, and 6-26 of the   defendant’s application;
1.5            As to the order sought in paragraphs 5 which is to vacate orders           5-21 inclusive of the orders made 11 October 2019, I will hear              the parties as to alternative dates and orders;
2    On the application made by Mr Mews filed 13 December 2019
2.1          I dismiss the application
2.2.         I will hear the parties on potential arrangements to accommodate                   the difficulties advised by Mr Mews in his affidavit sworn   13 December 2019.
3    I reserve the question of costs;
4    Liberty to apply.