Reliance Financial Services v Criniti

[2006] NSWSC 715

CITATION:	Reliance Financial Services v Criniti & Ors [2006] NSWSC 715
HEARING DATE(S):	14/07/06
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	07/14/2006
DECISION:	Plaintiff ordered to serve additional affidavits by 31 July 2006 and to pay the plaintiff's costs. Matter stood over to Registrar.
CATCHWORDS:	PROCEDURE - Summary Termination - Failure to comply with orders of Registrar to serve additional evidence on three occasions - New solicitors who repeatedly sought file from former solicitors to no avail - Former director of plaintiff incarcerated and diagnosed with cancerous growth moved from one correctional facility to others because of medical condition and other court commitments making it difficult to take instructions - Whether the proceedings should be dismissed
LEGISLATION CITED:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
CASES CITED:	Fairey v Fairey (No 2) [2000] NSWCA 173 Witten v Lombard Australia Ltd [1968] 2 NSWR 529 Stollznow v Calvert [1980] 2 NSWLR 749 Micallef v ICI Operations Pty Ltd and Anor [2001] NSWCA 274
PARTIES:	Reliance Financial Services Pty Ltd - Plaintiff Francesco Criniti - 1st Defendant Caterina Criniti - 2nd Defendant Josephine Romano - 3rd Defendant
FILE NUMBER(S):	SC 1832/05
COUNSEL:	Mr A Iuliano - Defendant
SOLICITORS:	Mr T Hall (HAL Lawyers)- Plaintiff Agostino & Co Solicitors & Attorneys - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

FRIDAY 14 JULY 2006

1832/05 RELIANCE FINANCIAL SERVICES PTY LTD v FRANCESCO CRINITI & ORS

EX TEMPORE JUDGMENT

1 The matter before the Court has been referred by the Registrar at the instigation of the defendants. They seek an order under section 61(3) of the Civil Procedure Act 2005 for the summary dismissal of the plaintiff's proceedings. That provision allows the Court to dismiss proceedings if a party to whom a direction has been given fails to comply with that direction. The Uniform Civil Procedure Rules 2005 r 12.7(1) provides that if a plaintiff does not prosecute proceedings with due despatch, the Court may order that the proceedings be dismissed or make such other order as the Court thinks fit.

2 There have been three occasions when the Registrar has ordered the plaintiff to serve further evidence upon which it desires to rely. On each occasion there has been a failure to comply. The last direction was given by the Registrar on 24 May 2006 requiring the plaintiff to put on its additional evidence by 23 June 2006.

3 The matter has been in the hands of new solicitors since June 2006. The solicitors had, prior to 23 June 2006, attempted to obtain the file on the matter from the plaintiff's former solicitors. They e-mailed the solicitors, having spoken with them on 23 June 2006. A facsimile was sent on 27 June 2006. On 7 July 2006, a further facsimile was sent requesting a further response as to the transfer of the file. On 13 July 2006, a further facsimile requesting release of the file was sent. On 13 July 2006, a facsimile was received from the former solicitors containing a draft deed to facilitate the transfer of the file. That facsimile was received at 4.38 pm.

4 It is apparent from that material that the new solicitors have made appropriate attempts to obtain the file.

5 In addition, a former director of the plaintiff is incarcerated. Not only that, he has now been diagnosed with a cancerous tumour on the back of his skull and he has been moved to MPU Area 4 at Long Bay Correctional Facility and hospital unit at that facility to undergo MRI scans. As a result of his medical condition and other court commitments, he is a prisoner in segregation, and has been transferred in the last three weeks between the John Moroney Correctional Facility at Windsor, the MRRC Facility at Silverwater, and the MPU at Long Bay.

6 Having regard to the position of the former director, it has been difficult to obtain instructions from him.

7 The power to dismiss proceedings has been described by Mason P in Fairey v Fairey (No 2) [2000] NSWCA 173 at [52] as serving the dual purpose of ensuring fairness to litigants and ensuring the integrity of the judicial system.

8 In dealing with the defendants’ application that the proceedings be dismissed, the Court must strike a balance between the plaintiff and the defendants and decide whether or not, on balance, justice demands that an action be dismissed: Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534; Stollznow v Calvert [1980] 2 NSWLR 749 at 751; Micallef v ICI Operations Pty Ltd and Anor [2001] NSWCA 274 at [51].

9 In light of the inability to obtain the file from the former solicitors and in light of the difficulties associated with taking instructions from the former director of the plaintiff, I am of the view that on balance justice demands that the plaintiff should not have its proceedings dismissed.

10 I order the plaintiff to serve affidavits on which it relies by 31 July 2006. I order the plaintiff to pay the defendants’ costs of today’s hearing. I stand the matter over before the Registrar at 9.30 am on Thursday 3 August 2006.

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