Stagg R.C v National Australia Bank Ltd

[1995] FCA 724

FEDERAL COURT OF AUSTRALIA           )
NEW SOUTH WALES DISTRICT REGISTRY     ) NG 5 of 1995
GENERAL DIVISION  )

BETWEEN:

ROSEMARY CONSTANCE STAGG

First Applicant

MURRAY WAYNE STAGG
  Second Applicant

AND:

NATIONAL AUSTRALIA BANK LIMITED

Respondent

CORAM:    SACKVILLE J.
PLACE:    SYDNEY
DATE:     1 SEPTEMBER 1995

REASONS FOR JUDGMENT

In this matter, Ms Ball seeks an order for costs in favour of the respondent Bank.  She does so on the basis that there has been a failure to comply with the directions made by me on 26 May 1995.  In particular, the applicants were directed on that occasion to file and serve any defence to amended cross claim on or before 2 June 1995.  The defence to amended cross claim was in fact not filed until 24 July 1995.  The applicants also were directed to file and serve affidavits upon which they intended to rely on or before 23 June 1995.  That direction was not complied with and an affidavit of Mr Stagg, the second applicant, was not filed until 31 August 1995.

An affidavit sworn by Rosemary Constance Stagg, who is the first applicant, was filed in court only today by Mr Blackburn, who appears for the applicants.  No steps were taken by the applicants to relist this matter in order to explain any difficulty in complying with the timetable that had been set on the last occasion.  Short minutes of order have been today agreed upon for the further conduct of the case.  However, those short minutes do not bear upon the question of costs.

Ms Ball has referred to the correspondence which is annexed to her affidavit.  That correspondence indicates that the matter was first raised on 9 June 1995.  No reply was elicited from the applicants until 3 July 1995.  At that time an explanation was given that the second applicant, Mr Stagg, had had some problems with eye inflammation and infection over the previous fortnight which had delayed his preparation of the matter.

Evidence has been adduced on behalf of the applicants in the form of an affidavit by Mr Stagg.  That affidavit indicates that Mr Stagg, on 28 May 1995, suddenly lost the sight of his left eye while visiting Canberra.  The affidavit recounts the treatment that he has received in connection with this condition.  After that time Mr Blackburn has indicated that there was a very substantial body of documentation to which Mr Stagg's attention had to be directed.  It is substantially for that reason that there has been non-compliance with the timetable.

In my view, it is unsatisfactory that a party who is unable to comply with directions, particularly where the delay is substantial, makes no application to the Court to vary the timetable.  Ordinarily, I would order costs to be paid by the applicants by reason of the additional costs incurred in consequence of their delay.  However, in this case an explanation for that delay has been provided in the form of the affidavit from Mr Stagg.  That explanation indicates that there has been a significant impediment to the preparation of the affidavits and presumably to the preparation of the defence to cross-claim.  While I think it is unfortunate that no application was made to vary the direction of the Court in the circumstances, I shall not make an order against the applicants on this occasion.

I certify that this and the preceding 2 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:

Heard:1 September, 1995

Place:              Sydney

Decision:1 September, 1995

Appearances:Mr T.D. Blackburn, instructed by Turner Freeman, Solicitors, appeared for the applicant.

Ms Ball, of Dibbs Crowther Osborne, Solicitors, appeared for the respondent.