Project 28 v Barr (No 3)

[2007] NSWSC 826

CITATION:	Project 28 v Barr (No 3) [2007] NSWSC 826
HEARING DATE(S):	25/07/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	25 July 2007
DECISION:	No orders made.
CATCHWORDS:	PROCEDURE - Costs - Consent orders to be delivered to chambers - Orders not delivered - Whether legal representatives should be called upon to show cause why they should not pay costs personally under the Civil Procedure Act 2005, s 99
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CASES CITED:	Environment Protection Authority v Caltex Refining Co Pty Ltd (1992-1993) 178 CLR 477
PARTIES:	Project 28 - Plaintiff Timothy James Barr - First Defendant Barr Project Management Pty Ltd - Second Defendant Richtech Pty Ltd - Third Defendant
FILE NUMBER(S):	SC 6413/04
COUNSEL:	Mr R Dubler SC - Plaintiff Mr J West QC - Third Defendant
SOLICITORS:	Cerekers Lawyers - Plaintiff Mr Tzovaras - Tzovaras Legal Pty Ltd - First and Second Defendants Creswicks Lawyers - David Beattie Pty Ltd Solicitors (Agents) - Third Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 25 JULY 2007

6413/04 PROJECT 28 PTY LTD v TIMOTHY JAMES BARR & ORS (NO 3)

EX TEMPORE JUDGMENT

1 On 4 July 2007, I said that, in my view, McLaughlin AsJ erred in making the order he did. The order circumvented the decision of the High Court in Environment Protection Authority v Caltex Refining Co Pty Ltd (1992-1993) 178 CLR 477 and was wrong in principle. I said the appropriate order was for the delivery by Richtech Pty Ltd of witness statements by a specified date except in the case of any witness who claimed privilege against self-incrimination. In that case, a witness statement should only be provided to Project 28 Pty Ltd at the close of its case against Richtech if Richtech proposed that such a witness would give evidence on its behalf.

2 I said I would hear the parties on the appropriate terms of such orders and I would hear the parties on costs. I directed the parties to bring in short minutes of order reflecting my reasons and stood the matter over.

3 On 17 July 2007, the parties were agreed on most orders except costs. I gave an ex tempore judgment and indicated that if the parties agreed on orders as a result of that judgment, I would make them in chambers. Mr Dubler SC who appeared for Project 28, said his client would accept any reasonable times nominated by Richtech for the steps to be taken.

4 Despite three telephone calls from my Associate to counsel for Project 28 and one telephone call to the chambers of counsel for Richtech, consent orders had not been delivered to my chambers by Monday, 23 July 2007 when I instructed my Associate to tell counsel I wished to see them in Court. The consent orders arrived in my chambers thereafter.

5 When I granted the indulgence of no further appearances by counsel in Court, it was inherent in my order that the consent orders would be delivered within a reasonable time. I expected them to be delivered that day in view of the limited issues that had not been decided and Mr Dubler's statement. That it has been necessary to direct counsel to appear before me today in order to perfect the orders in this matter runs counter to the Civil Procedure Act 2005, s 56(1) that the overriding purpose of that Act and the Uniform Civil Procedure Rules 2005 is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

6 Is there any reason why I should not call upon the legal advisers responsible for the delay in the delivery of the consent orders to my chambers to show cause pursuant to the Civil Procedure Act 2005, s 99 why they should not pay the costs of this unnecessary delay personally?

7 In light of what has now fallen from the lips of counsel for Project 28 and counsel for Richtech, I am satisfied that it is inappropriate to call upon the representatives of any party to show cause in terms of s 99 of the Civil Procedure Act 2005. It might have been prudent for counsel when contacted by my Associate to have indicated there were problems associated with obtaining the agreement of all parties due to specific events, particularly in light of Mr Dubler's statement on the last occasion that Project 28 would accept any reasonable dates that were proffered by Richtech. But, in the circumstances, I am satisfied that the delay has been caused by unavoidable communication difficulties between the various parties.

8 I make no order as to the costs of today's proceedings.

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