SHOJAEI v DISNEY - [2014] SADC 109

District Court of South Australia
(Civil: Application)
SHOJAEI v DISNEY
[2014] SADC 109
Reasons of His Honour Judge Beazley (ex tempore)
16 June 2014
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS
LEAVE TO DISCONTINUE PROCEEDINGS
Claim by plaintiff against defendant for damages for alleged negligence in month of April 2005 - plaintiff asserts that he suffered a sudden shock on 30 April 2005 upon being informed of the death of his mother - he asserts that his mother's death caused by the alleged negligence of the defendant in circumstances giving rise to a breach of duty to him - the defendant denies all allegations of negligence - the plaintiff's proceedings delayed by various factors including the unavailability of an expert medical practitioner who had provided an expert medical report in 2009 - application made by defendant for order dismissing the proceedings declined by a Master - no appeal from that determination - proceedings listed for trial to commence on 16 June 2014 - plaintiff applies for order for adjournment of the trial to remedy evidentiary difficulties - plaintiff then applies for leave to discontinue the proceedings - whether there is a difference between a discontinuance and a dismissal of proceedings.
HELD: The plaintiff's application for the adjournment of the trial is refused.
The plaintiff's application for leave to discontinue the subject proceedings pursuant to Rule 6 DCR 107(3) and (4) is granted but subject to conditions pursuant to Rules 6 DCR 107 and 6 DCR 108.
District Court Act 1991 (SA) s 22; District Court Rules, 2006 6 DCR 3, 107, 108, 113 and 209, referred to.
Augustine v Western Australia [2013] FCA 338; Kennedy v Griffiths [2014] QSC 43; Covell Matthews v French Woolstone [1977] 2 All ER 591 and [1978 2 All ER 800; Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175; Re: Mempoll Pty Ltd, Anankin Pty Ltd and Gold Kings Pty Ltd [2013] NSWSC 301; Heartlink Ltd v Jones [2007] WASC 254; Nykredit Mortgage Bank v Edward Erdman Group (No2) [1997] 1 WLR 1627; CBFC Ltd v Charitopoulos [2009] SASC 30; Heimann v Commonwealth of Australia (1941) 58 WN (NSW) 2; SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283; Robertson v Purdey (1906) 2 Ch 615; Perdaman Chemicals & Fertilisers Pty Ltd v Griffin Coal Mining Co Pty Ltd (No 10) [2013] WASC 103, applied.

SHOJAEI v DISNEY
[2014] SADC 109
Ex Tempore Reasons
Introduction

The trial of the subject action was listed to commence today.
Prior to his opening address, the plaintiff’s counsel sought to bring on for hearing, an interlocutory application issued by him on 6 June 2014 in which he sought an adjournment of the trial. In support of that application the plaintiff relied upon affidavits sworn by his solicitor Ms Najjar.
Following the determination of that application the plaintiff sought leave to discontinue the subject proceedings pursuant to Rule 6 DCR 107 of the Rules of Court. These are my Reasons for the orders ultimately made in respect of the respective applications.
In order to understand the bases for the respective applications, it is necessary to briefly set out some of the background facts which are not in dispute. At the hearing the plaintiff was represented by Mr Kerin of counsel, and the defendant was represented by Mr Bonig, of counsel.
Background
The subject proceedings were instituted in the Magistrates Court on 30 April 2008. The plaintiff asserted that he had suffered a sudden shock on 30 April 2005 in consequence of being informed of the death of his mother from a heart attack. He continues to assert that his mother’s death was caused by the alleged negligence of the defendant in circumstances giving rise to a breach of a duty to him.
It is not in dispute that the defendant was a senior medical practitioner specialising in renal care, and was the treating nephrologist at the Queen Elizabeth Hospital. He denies the allegations of negligence.
Initially the plaintiff was a self-represented litigant. This led to various delays while the action remained in the Magistrates Court. The Statement of Claim was grossly deficient. Eventually the plaintiff engaged solicitors to appear for him. An amended Statement of Claim was filed. Those amended pleadings highlighted the complex issues in the subject action, and the evidentiary hurdles faced by the plaintiff.
In May and July 2009, the plaintiff obtained expert reports from a physician, ‘Dr K’ as to the issue of the alleged breach of duty of the defendant.
On 19 August 2010 the subject proceedings were transferred to this court.
I do not propose to detail the history of delays by the plaintiff. They are set out at length in various Reasons published by a Master of the Court including those on 1 April 2014. On that occasion the Master noted that there had been some 33 attendances, mostly resulting in indulgences being granted to the plaintiff.
On 6 August 2012 the plaintiff asserted that he was having difficulty in obtaining a report from the physician, ‘Dr K’, or indeed any other appropriate medical practitioner in response to a report which the defendant had obtained from Professor Faull.
Notwithstanding that difficulty, on 30 October 2012 the action was set down for trial to commence on 15 July 2013. The plaintiff’s initial solicitors ceased acting for him or about December 2012.
It is apparent that the subject proceedings were delayed by various factors including the plaintiff’s change of solicitors, the plaintiff’s mental health problems and the plaintiff’s inability to make contact with ‘Dr K’, the physician who had provided the expert advice upon which the proceedings were based.
None of the delays were caused by the defendant.
The failure or inability of the plaintiff to obtain an alternative expert report has been the basis of a series of adjournments as follows:
·On 6 August 2012 the settlement conference was adjourned to enable the plaintiff a further 6 weeks to obtain further or other expert evidence as to liability.
·On 17 September 2012 the Master noted that no further report had been obtained but extended the time for provision of report for a further period of 4 weeks.
·On 7 May 2013 the plaintiff’s present solicitors were retained to act for the plaintiff.
·On 18 June 2013 the Master vacated the trial listed for 15 July 2013 upon orders that the plaintiff pay the defendants costs including the costs thrown away as a result of vacating the trial date. At that time the Master extended the time for the plaintiff to provide expert reports for a further period of 4 months.
·On 18 November 2013 the Master noted that the plaintiff had now identified an expert to provide a report and granted a further extension of time of 3 months for that report to be served.
·The action was again listed for trial, on this occasion to commence on 16 June 2014.
·On 6 March 2014 the Master noted that the orders which he had made, notwithstanding the various extensions, had not been complied with by the plaintiff.
·The defendant issued an application to have the action dismissed.
I have already referred to the Reasons published in respect of the dismissal application. The Master declined the defendant’s application on 1 April 2014. He adjourned the matter for 5 weeks and noted that if the plaintiff were able to have a report served upon the defendant within 5 weeks he would give consideration to the question of that further extension of time.
In his Reasons for so refusing the defendant’s application to dismiss the claim, the Master accepted that the plaintiff had difficulties in managing the litigation because of his psychological condition. He concluded that that condition had somewhat restricted his solicitors in obtaining the report which had been previously ordered. He noted that the defendant ‘was a renal specialist in the Department of Health and so the defendant, through his insurer, has been very accommodating to a point, but frustrated by what has happened. The defendant gets to the point where now he demands that justice prevail while the plaintiff cries out for mercy and further time’.
He accepted that the plaintiff’s claim was not fanciful but that it was a difficult matter caused by the unavailability of the aforementioned physician, and his ongoing mental health issues. Ultimately the Master concluded that it was in all the parties’ interest not to dismiss the action but to ensure that the trial did proceed on 16 June 2014.
There was no appeal from nor application to review the decision of the Master, to refuse the defendant’s application to dismiss the action.
The subject applications
I turn now to the respective applications made by the plaintiff this morning.
·Application for adjournment
The plaintiff sought an adjournment of the trial to enable him to obtain an answering expert medical report and thereby remedy evidential difficulties which he faced.
·Plaintiff’s submissions
In support of the application, the plaintiff tendered the affidavits of his solicitor Ms Najjar, and copies of emails evidencing her attempts to seek alternative expert reports. The plaintiff’s counsel, Mr Kerin submitted that the delays has been caused by a combination of many factors, principally the psychological problems suffered by the plaintiff; the ‘disappearance’ of the physician ‘Dr K’, and the inability of the plaintiff’s solicitors to obtain an alternative medical expert within the medical community of Australia.
He relied upon the findings of the Master in his Reasons published on 1 April 2014, as to the bona fides of the plaintiff’s claim and for the conclusion that many of the delays were not caused by him personally.
·Defendant’s submissions
The defendant’s counsel, Mr Bonig, explained that the defendant had retired from his practice in 2011 in consequence of his ill-health. He has had these allegations of negligence hanging over his head since 2005, and was entitled to have them disposed of as soon as possible. He referred to the Reasons of the Master in which it had been noted that but for the plaintiff’s delays, the proceedings ought to have been finalised in 2012.
He stressed the fact that the plaintiff has had over three years to either locate the original physician or engage an alternative expert. The plaintiff, he submitted, had ample opportunity to present his case if he so intended, and as at the date of trial there has been no expert identified nor anything put in place to determine whether an expert opinion will ever eventuate.
While he acknowledged that an order for the costs of the adjournment may compensate the defendant, he submitted that the subject case highlighted the need for finality in the litigation process. He reinforced that submission by pointing out that even if an expert could be located the subject proceedings would be not listed for trial for at least 12 to 18 months.
Mr Bonig submitted that the plaintiff could proceed to give his evidence at the trial and call such other witnesses as were available including expert evidence as to quantum. He submitted that upon completion of that evidence the defendant would not oppose, subject to the court’s convenience, that a further 3 months could be given to the plaintiff to obtain an expert report. Mr Bonig also submitted that there was another option available to the plaintiff namely that he might elect to seek leave to discontinue the action.[1]
[1] T. 16/6/14 p 10.
Discussion and conclusion
In my opinion to adjourn the trial now with the prospect that it would not be listed for at least 12 months depending upon the provision of another expert report would be contrary to the interests of justice and indeed would not even be in the best interests of the plaintiff.
The plaintiff’s delays are well documented. In his Reasons of 1 June 2014 the Master detailed the large number of indulgences given to the plaintiff to enable him to remedy his evidential difficulties. He correctly, with respect, declined to grant a further adjournment of the trial.
As at the date of trial some 9 years had passed since the subject events of 30 April 2005. Yet even as at today’s date the plaintiff had not identified any alternative expert, nor could he point to a day upon which the trial could proceed.
The Rules of Court have expressly provided for principles of caseflow management in 6 DCR 3; 10; 113; 116 and 209. While it is trite that caseflow management principles should not override the interests of justice, they are particularly significant in the subject case because of the gross delays. See Expense Reduction Analyst Group Pty Ltd v Armstrong Strategic Management and Marketing (2013) 88 ALJR 76, and Aon Risk Management v ANU (2009) 209 CLR 175.
As was made plain in Aon’s case, supra, this application for adjournment is not to be considered solely by reference to whether the prejudice to the defendant could be compensated by costs.
In my opinion it would unfairly prejudice the defendant if the application to adjourn is granted. This action has been hanging over the head of the defendant for some 6 years; and the event, the subject of the action occurred some 9 years ago. The trial had been previously adjourned for essentially the same reason.
Given that nothing has been arranged with respect to an additional expert report nor an alternative report, the proper exercise of the discretion is to refuse the application for an adjournment.
·Consequences of the refusal of the plaintiff’s application to adjourn the subject proceedings
The plaintiff sought and was granted time to consider his position in light of my decision to refuse his application for an adjournment of the trial. Among the alternatives for him to consider were whether he ought proceed with the trial at least to the stage of completing his evidence and such other evidence as was available. The defendant had indicated that he would accommodate such an approach. In the alternative the plaintiff could seek leave to tender the initial expert reports pursuant to s 34C of the Evidence Act. This approach would not however overcome the plaintiff’s need to remedy his evidentiary difficulties caused by the absence of a response to the defendant’s expert reports. Inevitably if the trial proceeded not only would the parties incur further costs, but the plaintiff’s claim would not be supported by appropriate expert evidence and would fail. The plaintiff, as a further alternative, could withdraw after the refusal of the application for an adjournment so as not to resist the defendant in obtaining a judgment in default of appearance at the trial. See CBFC Limited v Charitopoulos (2009) SASC 30.
No application was made before me by the defendant for the subject action to be dismissed pursuant to Rules 6 DCR 12 and 228.
·The plaintiff’s application for leave to discontinue the proceedings.
Ultimately the plaintiff elected to make an oral application that leave be given to him to discontinue the subject proceedings pursuant to Rule 6 DCR 107. That Rule relevantly provides as follows:
(3) If the court has ordered that the action proceed to trial, a plaintiff may only discontinue the action or a claim in the action with the court’s permission or the written consent of all other parties.
(4) Unless the parties agree or the court orders to the contrary, the party against whom the action, or a claim or defence in the action, is discontinued is entitled to costs arising from the action, or the claim or defence (as the case may require) up to the time of receiving notice of the discontinuance.
The plaintiff elected to make the application because, pursuant to Rule 6 DCR 108, a party who discontinues an action or a claim is, at least prima facie, not prevented from bringing a further action based upon the same or substantially the same claim. An exception to that Rule is if a court were to order that the discontinuance is to have the same effect as a final judgment against the party discontinuing.
·Submissions
The plaintiff’s counsel acknowledged that it was somewhat unusual for such an application to be made so late in the proceedings. The fact remains that such an application is countenanced in Rule 6 DCR 107(3). He conceded that the grant of leave might include conditions.
He submitted that it was clear from the Master’s Reasons of 1 June 2014 that this was an unusual case. The plaintiff had not deliberately breached the orders of the court, nor had he deliberately delayed the proceedings. He repeated his submissions with respect to the mental health problems faced by the plaintiff and that the difficulties are not entirely of his own making.
The defendant’s counsel, Mr Bonig, opposed leave being given to the plaintiff to discontinue – despite that the fact that it was one of the alternatives he had suggested was available to the plaintiff and to which he had referred in respect of the application for adjournment.
He submitted that such an outcome would not produce the finality which the defendant seeks in respect of this action. He submitted that upon discontinuance and in the absence of a condition that the discontinuance be treated as a final judgment, the plaintiff could institute fresh proceedings in the future. He implicitly accepted that other alternatives such as the plaintiff proceeding on a limited basis would leave the matter hanging over the defendant for some time, as would a judgment obtained by the defendant by default of the plaintiff’s attendance at the hearing.
He submitted that if the court were to grant the application for discontinuance then he would seek an order for the costs of action to date be paid by the plaintiff to the defendant as a condition of leave under Rule 6 DCR 107(4).
Discussion
It is plain that the legitimate concerns of the defendant, that he would face the risk of fresh proceedings can be, to a large extent, alleviated by the imposition of conditions being imposed upon the leave to discontinue. See Kennedy v Griffiths [2014] QSC 43.
I indicated to the plaintiff that if I did decide to grant leave to discontinue it would inevitably be subject to conditions that would protect the position of the defendant. I indicated to the plaintiff that these may include conditions that the plaintiff pay the costs of action to be taxed or agreed; that those costs be paid by the plaintiff to the defendant prior to any further proceedings being issued and; that in order to avoid the continuing delays, a time constraint be imposed so that fresh that the proceedings must be issued within a specified period of time. The failure to meet the conditions would lead to the consequence that the discontinuance of the subject proceedings would be treated as a final judgment.
The plaintiff’s counsel sought a brief adjournment to consider his position and indicated that he would not oppose such conditions being made.
He acknowledged that the effect of a discontinuance, was to bring the subject proceedings to an end. He conceded that the plaintiff faced significant hurdles before he could institute a fresh set of proceedings irrespective of what conditions were imposed upon leave being granted to discontinue. Such hurdles included the obtaining of an expert report, and indeed an extension of time for such proceedings to be issued almost 10 years after the alleged act of negligence.
However the plaintiff had lived with the claim for some 9 years and had sought to retain a chance to issue fresh proceedings, even if the chance was limited.
Decision and orders

I considered whether it would be in the interests of the plaintiff to force him to proceed with the trial notwithstanding the likely result, so as to bring about finality to the litigation.
It is rare that the court would grant leave to discontinue at such a late stage in the proceedings, effectively to enable the plaintiff to remedy his evidentiary difficulties. The principles of law are set out at length in Augustine v Western Australia [2013] FCA 238. There has been some dispute as to the difference between discontinuing proceedings on the one hand, and dismissing them on the other. In Kennedy v Griffiths, supra, Boddice J, said at [34]:
[34] The importance of the difference between discontinuing and dismissing an application for contempt was discussed by McPherson J (as his Honour then was) in Re Sailport Pty Ltd:⁵
The importance of the difference between discontinuing and dismissing the application rests with their consequences. If the application is discontinued, its discontinuance will not have the effect of a judgment on the merits. If, however, it is dismissed it may very well have such an effect. I realise that in SCI Operations Pty Ltd v Trade Practices Commission(1984) 53 ALR 283 Mr Justice Shepherd inclined to the opposite view. However, I am, with respect, not altogether persuaded that that is so in Queensland. At the very least, it is a consideration to be borne in mind in deciding between the application for a grant of leave to discontinue, and the submission that the originating application ought to be dismissed.
Among the reasons for thinking that dismissal may give rise to estoppels is that the dismissal of a bill of complaint in equity formerly had such an effect. In the pre-Judicature era an application like this would have fallen within the court‘s equity jurisdiction. In that jurisdiction, the Defendant might apply to have a bill dismissed for want of prosecution, but such an order if made did not have the effect of a decree on the merits and was originally not a bar to the presentation of a further bill. See Daniell‘s Chancery Practice (5th ed, 1871) vol 1 at 569–570, 714, citing Brandlyn v Ord (1738) 1 Atk 51 ; 26 E R 359; Moss v Anglo Egyptian Navigation Company (1865) L R 1 Ch App 108, 115–116. Where the Plaintiff applied to dismiss his own bill, or it was dismissed upon his default when the matter was called upon in open court, the dismissal was said by Daniell (ibid, at 693) to be equivalent to a dismissal on the merits that might be pleaded in bar to another suit for the same matter.
The importance of ensuring orders not lead to injustice to a party was also recognised by this court in ABN Amro Morgans Ltd v Alders⁶ and Wickham v Bell Securities Pty Ltd.⁷
There is however a distinction between an application to adjourn proceedings, which remain current, and an application to discontinue proceedings which may allow fresh proceedings to issue.
In Covell Matthews and Partners v French Woolstone [1977] 1WLR 876, when stating a principle, which had been applied in most jurisdictions, the court said:
The Court will normally, at any rate, allow a plaintiff to discontinue if he wants to, provided no injustice will be caused to the defendant. It is not desirable that a plaintiff should be compelled to litigate against his will. The Court should therefore grant leave if it can, without injustice to the defendant, but in doing so should be careful to see that the defendant is not deprived of some advantage which he has already gained in the litigation and should be ready to grant an adequate protection to ensure that any advantage he has gained is preserved.
In Heartlink Limited v Jones (2007) WASC 254 Martin CJ considered the question as to whether there is a point of no return in litigation in consequence of which a person should not be able to exercise a right to discontinuance. His Honour was concerned about the need for finality in litigation.
He said at [45] that:
It is clear that the Court has power to impose conditions, or to require an undertaking, as a term of the grant of leave to discontinue – Robertson v Purdey (1906) 2 Ch 615; Heimann v The Commonwealth (1941) 58 WN (NSW) 2 and SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 at 353. The conditions upon which leave can be granted might include an undertaking not to commence or assert particular causes of action in subsequent proceedings.
In Re: Menpoll Pty Ltd; Anakin Pty Ltd; and Gold Kings Pty Ltd (2013) NSWSC 301, Brereton J, considered the question of leave to discontinue contempt proceedings to enable the plaintiff to remedy evidential difficulties. His Honour said:
It is a general principle that, although there may be exceptions, rarely will it be appropriate to grant leave to discontinue once the proceedings have proceeded to a contested hearing: see Stahlschmidt v Walford [1879] 4 QB 217; Re Alpha Company [1903] 1 Ch 203; Stevens v Theatres Ltd [1903] 1 Ch 860. This because once the parties have defined their positions, prepared their cases and proceeded to a hearing it is ordinarily regarded as unfair to deprive a party who has obtained a forensic advantage of that advantage. For example, even where leave to discontinue is granted, where a defendant has gained some advantaged leave to discontinue is usually granted on terms that preserve the advantage: see Covell Matthews v French Woolstone [1977] 2 All ER 591 at 594 affirmed [1978] 2 All ER 800; Young Austin & Young Ltd v British Medical Association [1977] 2 All ER 884; SCI Operations Pty Ltd v Trade Practises Commission (1984) 2 FCR 113; Rydges Hotel Ltd v Charles of the Ritz Ltd (No 8) (1987) 12 IPR 75.
His Honour concluded in that case that having regard to the quasi – criminal nature of contempt proceedings, it would not be appropriate to grant leave to discontinue. The plaintiff then tendered no evidence and the claim was dismissed.
I repeat that the discretion to permit leave to discontinue involves some different factors than the application to adjourn. To force the plaintiff to litigate in circumstances where it may destroy any possibility of fresh proceedings would be undesirable. If I did not give leave to discontinue the plaintiff would be compelled to litigate the subject action.
It would indeed, in my opinion, be undesirable for both parties to compel the plaintiff to litigate the action when he is not in a position to remedy his evidentiary difficulties in consequence of the ‘disappearance’ of his expert witness.
I must however weigh in the balance the prejudice to the defendant, and, in particular, his very proper concerns that there be some finality in his litigation.
An important factor to consider is whether the plaintiff’s claim was bona fide, or whether it was entirely unmeritorious. See Kennedy v Griffiths, supra. I respectfully agree with the Master that the claim was not without any merit, when issued, and that its ultimate chances were dependent upon answering expert reports.
I am also conscious of the plaintiff’s submission that the difficulties in which he finds himself have not been entirely of his own making. It has been beyond his power to obtain the expert evidence required from the physician who had proffered his expert report. There have been difficulties in him obtaining a report from any other relevant medical practitioner in Australia.
In so far as I decide to grant leave I must do so upon terms which protect the position of the defendant. It is not an easy question to resolve particularly because of the gross delays and the hurdles still to be faced by the plaintiff.
I have, of course, weighed up the alternatives which were suggested both by the plaintiff and the defendant, at one stage, including that the plaintiff complete his evidence; and such other evidence as is presently available. That alternative in my opinion would have undesirable consequences for both parties. Not only would the litigation remain hanging over the defendant but each party would incur significant costs without certainty of completion.
I make it abundantly clear that other alternatives which were put forward by the plaintiff and the defendant would leave the action hanging over the defendant. It is patently clear that the plaintiff faces considerable difficulties in being able to issue fresh proceedings. In addition to any conditions imposed upon the grant of leave to discontinue, any application for an extension of time upon the issue of fresh proceedings will in itself face the hurdle that the event the subject of those proceedings had occurred in 2005.
In my opinion the most appropriate way to achieve such a result short of dismissing the plaintiff’s claim is to grant leave to the plaintiff to discontinue the proceedings pursuant to Rule 6 DCR 107 but upon stringent conditions. The imposition of such conditions would avoid the parties continuing to incur costs, and ensure that the defendant’s position is properly protected as best it can be.
Conclusion
I will grant the plaintiff leave to discontinue the subject proceedings pursuant to Rules 6 DCR 107 and 108 upon conditions.
Before detailing those conditions I order that the plaintiff must pay to the defendant the costs of action on a party/party basis to be taxed or agreed.
Notwithstanding the defendants submissions it is not appropriate to impose a condition which would immediately prevent the plaintiff from commencing subsequent proceedings for the same subject matter. I repeat that I decline to make such a condition because it could not be said, when the proceedings were issued that the claim had no merit nor that it would inevitably fail. I have no doubt as to the bona fides of the plaintiff. However in light of the gross delays and the difficulties facing the plaintiff I will impose conditions which, while preserving his position for a short time, may ultimately have the same effect.
Rule 6 DCR 108 envisages a condition to the effect that if the costs, so ordered, are not paid by the plaintiff then the court may, upon an application, by the defendant, grant a stay of the fresh proceedings. Such a condition would leave the subsequent proceedings, albeit stayed until payment, hanging over the defendant. In my opinion this is not a satisfactory condition in the circumstances of this case. It is appropriate that a condition be fashioned which would prevent those proceedings being issued unless the costs were paid.
If proceedings were issued notwithstanding the terms of my orders they would stand to be dismissed upon the application of the defendant rather than merely be stayed.
Accordingly, the conditions for the grant of leave to discontinue the subject proceedings, which I impose pursuant to Rules 6 DCR 107 and 108 are:
1That the plaintiff must pay to the defendant the costs ordered herein prior to issuing any proceedings against the defendant based upon the same or substantially the same subject matter, as the within proceedings.
2That if the plaintiff does wish to initiate such further proceedings then those proceedings must be issued on or before 2 February 2015.
I make it clear that the intent of these conditions for the grant of leave to discontinue is that prior to the plaintiff being permitted to issue such subsequent proceedings pursuant to Rule 6 DCR 108, the plaintiff must pay to the defendant the costs of the action in the within proceedings, and that in the event that no fresh proceedings are issued prior to 2 February 2015, the discontinuance of the subject action will have the same effect as a final judgment against the plaintiff.
Notwithstanding that the subject action has now come to an end, I will give the parties leave to apply on short notice to the other party. I do so because the efficacy of these orders depends upon the parties acting expeditiously. The defendant must not delay the agreement for or the taxation of costs. The plaintiff will need to be in a position to decide whether to issue fresh proceedings well before 2 February 2015.
Final Orders
1The application by the plaintiff for the adjournment of the trial of the subject proceedings is dismissed, with the plaintiff to pay to the defendant his costs of and incidental to the application on a party/party basis to be taxed or agreed.
2The application by the plaintiff for leave to discontinue the subject proceedings is granted upon the following terms and conditions:
2.1 That the plaintiff pay to the defendant his costs of the action including the application for leave to discontinue on a party/party basis to be taxed or agreed.
2.2 That the grant of leave to discontinue the subject proceedings be subject to the following conditions:
2.2.1That pursuant to Rule 6 DCR 108, before the plaintiff be permitted to issue any subsequent proceedings against the defendant arising out of the same or substantially the same subject matter, he must pay to the defendant the costs as ordered in paragraphs 1 and 2.1 hereof.
2.2.2That pursuant to Rule 6 DCR 108 any such subsequent proceedings must be issued on or before 2 February 2015, failing which the subject discontinuance will be taken to have the same effect as a final judgment against the plaintiff.
3I give liberty to the parties to apply on short notice as to the form and effect of these orders.