Strata Plan No 56115 v FTAC

[2001] NSWSC 460

CITATION:

Strata Plan No 56115 v FTAC & Anor [2001] NSWSC 460

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 11384/2000

HEARING DATE(S):

24 May 2001

JUDGMENT DATE:

7 June 2001

PARTIES :

The Owners - Strata Plan No 56115
(Plaintiff)

Fair Trading Administration Corporation
(First Defendant)

Fair Trading Tribunal
(Second Defendant)

JUDGMENT OF:

Master Harrison

LOWER COURT JURISDICTION :	Fair Trading Tribunal
LOWER COURT FILE NUMBER(S) :	BU 1999/3863
LOWER COURT JUDICIAL OFFICER :	Tribunal Member Forbes

COUNSEL :	Mr M D Young (Plaintiff) Ms E Olsson (First Defendant)
SOLICITORS:	Blessington Judd (Plaintiff) Ms B M Edwards FTAC (First Defendant)
CATCHWORDS:	Appeal decision of Fair Trading Tribunal
LEGISLATION CITED:	Fair Trading Act 1998 Building Services Corporation Act (NSW) 1973 Fair Trading Tribunal Act 1998
CASES CITED:	House v King (1936) 55 CLR 499 Birkett v James [1977] 2 All ER 801; AC 297 Witen v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491 McKenna v McKenna [1984] VR 665 Department of Trading v Chris Small Ltd (1989) AC 1197 Stollznow v Calvert [1980] 2 NSWLR 749 State of Queensland & Anor v J L Holdings Pty Limited (1996-97) 189 CLR 146 Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 Forbes v Davies [1994] Aust Torts Reports 81-279 Morrison v Judd )NSWCA, unreported 10 October 1995)
DECISION:	(1) The decision of Tribunal Member Forbes of 8 August 2000 is set aside; (2) I make orders in accordance with paragraphs (1) and (2) of the amended summons; (3) The first defendant is to pay the plaintiff's costs. Costs incurred in the Tribunal on 10 February 2000 and 8 May 2000 are remitted to the Tribunal for determination.

21

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

THURSDAY, 7 JUNE 2001

11384/2000 - THE OWNERS - STRATA PLAN NO 56115
v FAIR TRADING ADMINISTRATION
CORPORATION & ANOR
JUDGMENT (Appeal decision of Fair Trading Tribunal)

1   MASTER: By amended summons filed 23 February 2001 the plaintiff seeks firstly to appeal the decision of Tribunal member Mr S Forbes made on 8 August 2000; secondly, that the order made by the second defendant that the plaintiff’s action be dismissed for want of prosecution made on 8 May 2000 in proceedings No BU 1999/3863 be set aside; thirdly, an order that the plaintiff’s action be remitted to the second defendant together with the determination, for a determination (by itself, constituted by a member or members other than the member whose decision is the subject of the appeal) of whether the first defendant ought to have granted indemnity to the plaintiff pursuant to the first defendant’s comprehensive insurance scheme (the policy) because there were extenuating circumstances to support a request for an extension of time under the policy; or fourthly and alternatively, an order that if an extension of time be granted that quantum and liability be determined at the same time. The plaintiff relied on the affidavits of Juilette Elizabeth Nairn sworn 2 February 2001 and 23 May 2001 and Francesco Andreone sworn 2 February 2001 and 24 May 2000. The defendant relied on the affidavit of Bronwyn Edwards sworn 18 July 2000. The plaintiff is The Owners - Strata Plan No 56115. The first defendant is Fair Trading Administration Corporation (the Department) and the second defendant is Fair Trading Tribunal (the Tribunal). The second defendant has filed a submitting appearance.

2   The grounds of appeal are set out in the amended summons and are extensive. They are that the Member erred in law in that he failed to take into account the following material considerations in determining that the plaintiff’s behaviour was intentional and contumelious and that it was appropriate to determine the proceedings for want of prosecution. The plaintiff alleges firstly, that it suffered prejudice because the proceedings were dismissed and as a consequence permanently deprived of a claim on its building insurance policy of $39,280; secondly, that such default in compliance with previous directions were not the fault of the plaintiff but of its lawyers; thirdly, that both counsel appearing before the Member said that they were ready to proceed with the hearing; fourthly, that it was conceded by the first defendant/insurer’s counsel that any prejudice to the first defendant could be met by an order for costs; fifthly, that the expert report on which the plaintiff relied had been (a) served on the first defendant as part of its original insurance claim; (b) filed with the second defendant and served on or about 13 August 1999, and (c) gave details of both individual defects and the individual costs and total cost of rectification being the quantum of the plaintiff’s claim; sixthly, that the sole ground for the first defendant’s refusal of the claim was that it was out of time and first defendant declined to exercise its direction to extend time; seventhly, that the proceedings were essentially an appeal from the administrative decision; eighthly, that the plaintiff had never purported to act for individual lot owners; ninthly, that the directions of the second defendant in relation to affidavits had been confusing and contradictory and had not been complied with by either party; tenthly, that there had been no order for the provision of particulars nor any application by the first defendant for such an order; eleventhly, that the request for particulars of 11 February 2000 was not, properly construed, a request for particulars; twelfthly, that the plaintiff had clearly never alleged that the defects in the building were major structural defects; thirteenthly, that the only records provided later than directed by the plaintiff were the notice/minutes of two of its meetings; fourteenthly, that after adjourning to permit the parties to have constructive discussion the Member had been informed by the first defendant’s counsel that on the issue of the claim being out of time, whilst it did not consent, the first defendant did not wish to be heard; and fifteenthly, that it was possible to have a fair hearing and if there was any prejudice to the first defendant it could be met by appropriate costs orders. The plaintiff submitted that the Member erred in law in taking into account irrelevant matters and considerations in dismissing the proceedings for want of prosecution.

3   At the outset it is helpful if some general observations of the function of the Tribunal are made. The Fair Trading Act 1998 established a Tribunal to adjudicate consumer and commercial disputes. The objects of the Act are set out in s 3. They are to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair, and to enable proceedings before the Tribunal to be determined in an informal, expeditious and inexpensive manner.

4   According to s 27 of that Act the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. The Tribunal may dismiss at any stage any proceedings before it for want of prosecution by the applicant or at the request of the applicant.”

5   An appeal to this court from the Referee’s decision is only in relation to a question of law, (s 61 Fair Trading Act 1998). A party to proceedings before the Tribunal may appeal to this court on a question of law which includes (but is not limited to) an order affirming or setting aside the decision of the Tribunal, and an order remitting the case to be heard an decided again by the Tribunal (either with or without the hearing of further evidence) in accordance with the directions of this court.

6   A short history of the proceedings in the Tribunal is as follows.

(1) On 24 July 1995 the construction of a 29 unit block at 503/511 King Street Newtown commenced. The owner builder was Holmstream Pty Limited. These building works were covered by BSC Comprehensive Insurance Scheme.

(2) Strata Plan No 56115 was registered on 4 December 1997. This had the effect of bringing the plaintiff into a legal existence.

(3) On 29 January 1998 the first meeting of the body corporate took place.

(4) On 6 August 1998 the body corporate first became aware that there were defects in the building.

(5) The body corporate sought and obtained a report dated 26 November 1998 by Rickard and Partners (the Rickard report). The report identified the building defects and quantified the rectification costs which totalled $39,200.

(6) On 29 March 1999 the plaintiff lodged an insurance claim under the comprehensive insurance scheme (which is a statutory insurance scheme created by the Building Services Corporation Act (NSW) 1973) with the first defendant. Attached to this claim was a copy of the Rickard report.

(7) Clause 7 of the policy sets out the limitations. The claim under the policy was under cl 5(1)(d) or (e) which refer to bad workmanship and the like. Clause 7 states:

“7(1) Subject to subclause (2), to qualify for the benefits under this Scheme, the beneficiaries must notify the Corporation in writing of the matters that could give rise to the losses referred to in clause 5 or 5A within the following times:
(a) …
(b) …
(c) for loss relating to heads of claim in clause 5(1)(d) or (e) other than those referred to in paragraph (b) within 6 months after the beneficiary first becomes aware of the defect, but not later than 3 years from:
(i) the commencement of insured building work which is not also insured owner-builder work;
(ii) the date of the owner-builder permit for insured owner-builder; or
…”
On 28 July 1999 the first defendant wrote to the plaintiff stating:
“Following consideration of this matter I regret to advise that your claim under cl 5(1)(d) had been declined”.

The reasons given were firstly, that the plaintiff did not notify the Department of Fair Trading of the defective/incomplete work within the three year time period, and secondly; no reasons were provided that would have allowed the Department of Fair Trading to extend the time period under cl 7(2) of the policy.


While a letter from Bryant Strata Management dated 21 May 1999 (Ex A) referring to the complaints which were complaints made to the previous agent, Kurts properties accompanied the application. Thus it is not clear when the beneficiary first became aware of the defects pursuant to cl 7(1)(c). There was scant evidence to say the least to establish the criteria referred to in cl 7.

(8) On 13 August 1999 the plaintiff’s strata managing agent filed an application with the Fair Trading Tribunal appealing the decision of the Department of Fair Trading dated 28 July 1999 (Ex A). Paragraphs 5 and 6 of the application relevantly state:

“5. Defective work was done at 503-511 King St Newtown. The owners corporation submitted an insurance claim for the value of rectification. This claim was refused. The grounds for refusal were wrong.
6. That the decision made by the Department of Fair Trading to refuse the owners corporation’s insurance claim be reversed. That the owners corporation be awarded the monetary amount claimed.”


Then in a box for amount claimed the figure $39,200 was inserted.

This led to ongoing confusion as to whether the plaintiff was seeking that the Tribunal determine the extension of time (the threshold issue) under the insurance policy or whether it was seeking both the threshold issue and quantum issues be determined. Both the Tribunal member and the defendant’s solicitor understood that both issues were to be determined. The plaintiffs’ solicitor thought that it was only the threshold issue to be determined but that idea was kept securely within the plaintiffs’ solicitor’s offices until 1 May 2000 - seven days before the second hearing when they notified the defendant’s solicitor on their undertaking.

(9) On 15 October 1999 a callover took place and directions were given that:

(i) The applicant to serve a copy of the contract, a chronology of events, reports to be relied upon, a list of issues, a list of documents and affidavits to be relied upon by 5.00 pm 15 November 1999.
(ii) The respondent to serve the same types of documents referred to above excluding a copy of the contract by 5.00 pm 15 December 1999.
An initial hearing was established to take three hours. A hearing was allocated for 10.00 am on 10 February 2000.

(10) The plaintiff did not comply with directions given above. The plaintiff’s failure to comply had the consequence that the defendant was also unable to comply with its obligations under the timetable. On 2 February 2000 the parties wrote to the second defendant requesting a by consent adjournment and submitted a draft amended timetable namely:

(i) The applicant to file and serve documents on or before 3 February 2000.
(ii) The respondent to file and serve document on or before 31 February 2000.


(11) On 7 February 2000 the Tribunal advised that the matter was to proceed despite the fact that both parties indicated that they were not ready to proceed.

(12) On 7 February 2000 the parties made a further application for postponement. The Tribunal Member refused the application and commented that despite the set timetable, neither party has apparently complied with any of the directions. Nor, apparently, had either party provided any explanation as to why the directions have not been fulfilled. Nor had either party sought any extension of time in respect of the directions. The parties were notified of this and that the Tribunal Member intended to use the time on 10 February 2000 to commence to hear evidence of the applicant; to consider written submissions from the parties as to why the directions made on 11 October 1999 have not been complied with; to consider any submissions in respect of costs; to discuss any possible settlement between the parties in the context of the whole dispute, or in respect of specific issues; to discuss issues further directions; and to carry out a case conference.

(13) On 10 February 2000 the solicitors for the parties appeared before the Tribunal Member and were each handed a copy of a draft practice note of 7 October 1999 which specified the date that service of documents was to be effected. The hearing of the matter was listed for two days commencing on 8 May 2000.

A copy of a transcript in the matter of the Owners of Strata Plan 4355 v FTAC before Senior Member Mr P H Maloney of 9 April 2001 was put in evidence in the proceedings before this court in relation to the efficacy of this draft practice note. At page 6 the following exchange took place:
“THE MEMBER: Mr Corsaro, you might tell me what draft practice direction you relied on.
MR CORSARO: I do not know what the status of this document actually is.
THE MEMBER: I suspect it may be member Forbes’ invention.”

7   This is a somewhat surprising comment and I say no more about it. At the directions before Tribunal Member Forbes the parties agreed to be bound by these directions and the time stipulations in the draft practice note are reasonable. I would have thought that for the Tribunal to have published time standards was beneficial for both the Tribunal and the parties appearing before it.

8   In the hearing of the proceedings before Tribunal Member Forbes on 8 May 2000 the following exchanges took place. At page 6 of the transcript the Tribunal Member asked the applicant’s counsel:

“THE MEMBER: …In terms of the query that I raised earlier, in respect of the applicant’s compliance with all directions made, Mr Roberts, I wonder if you could just clarify for my assistance, please whether or not it’s your view that the applicant has complied with all those directions?
MR ROBERTS: It is my view. I wasn’t at the case conference. The document I was given which is the Fair Trading Tribunal’s note of the directions made doesn’t have a date for the applicant’s date for documents to be filed and served. It just provides that the primary evidence of the parties’s (sic) experts be by affidavit and documents - that is all it says. So there has not been no non-compliance.
In any event, no application has been made by the respondent to vacate the hearing date or to adjourn or any other relief sought. We wrote to the respondent last week and said if you do propose to apply to adjourn or vacate the hearing as you have indicated do it now and we will get some instructions. We received nothing.
I don’t know if the respondent proposes to proceed with the application. If it does we will deal with that at the appropriate time.
In terms of complying with the directions, so far as I can see from the documents, we have complied and provided the documents to the other side.”

9   Mr Roberts was labouring under a misapprehension because he was referring to a later letter sent by the Tribunal not the directions previously given by the Tribunal Member. The plaintiff had notified the Tribunal Member and the appellant that it would be seeking to have the matter struck out for want of prosecution. Ms Olsson appeared for the first defendant. She submitted that plaintiff had not filed any affidavits or statements but that they had received the Rickard report. Relevantly and most importantly at transcript p 9.14 Ms Olsson stated:

“What I would be proposing is the Tribunal today deal with whether or not the failure to notify a claim within the time required under the scheme of the policy was beyond the control of the beneficiary. Then, if it was and there was a finding in the favour of the beneficiary, then it would go back to the department to assess whether or not there are defects encompassed within the policy in the usual course.”

10   Ms Olsson also stated that she was ready to run the matter as necessary but that her instructions were clear about pursuing the application for want of prosecution. Critically she conceded that in terms of prejudice, ultimately all inconvenience can be dealt with by appropriate costs orders but that the department had gone to a lot of time and expense (t 16.23-54). So, the plaintiff had indicated that it was in a position to proceed with the hearing. The defendant indicated that prepared to have the threshold matter determined and could meet the quantum issue if it arose. Hence both parties were willing to proceed to a hearing. Further, the defendant conceded that if an adjournment was granted, any prejudice it suffered could be cured by an order for costs.

11 On 8 May 2000 the Member ordered that the application be dismissed for want of prosecution pursuant to s 27(5)(g) of the Fair Trading Tribunal Act 1998. To overturn a discretionary judgment it is not enough that the judges composing the appellant court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allow extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellant court may exercise its own discretion in substitution for his if it has the materials for doing so - see House v King (1936) 55 CLR 499 at 505.

12   In his judgment the Member made the following findings:

“I have considered all the evidence, submissions made, and the relevant case law in the context of the express statutory object of the Tribunal.

Upon the admissions made by the Applicant’s solicitor Mr. Andreone, at the first hearing on 10/2/00, it [is] apparent that the directions made on 15/10/99 had been entirely disregarded by the Applicant.
Although there had been at that point in time, an apparent disregard by the Applicant of all the directions made, it was considered both fair and equitable that, although compliance with case management protocols are important, that:
“case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing time, that the ultimate aim of the court is the attainment of justice and no principle case management can be allowed to supplant that aim.” - J L Holdings, per Dawson, Gaudron, McHugh JJ at 154”
Consequently, in the interest of the parties and their right to be able to seek resolution of their dispute by this Tribunal, it was considered only fair that the Applicant, should be given another opportunity to demonstrate, by its changed performance, that it was actually, and actively, interested in prosecuting its Application. In that vein, the first hearing, on 10/2/00, was run, not as a hearing of the anticipated evidence to prove the Application, but as a second case conference - a case conference with more precise time frames and invoking the specific requirements of the ‘2nd Timetable’ of the ‘Practice Note’ .
There is no need in my view to go over again the details of the particular directions then made, or the subsequent lack of any timely or meaningful response by the Applicant. What is relevant is that as of 1/5/00, when the Respondent gave notice of its intention to seek dismissal, the Applicant had not complied with any of the directions made, either on 15/10/99 or 10/2/00. Nor had the Applicant, by 1/5/00, responded to any of the letters written to it by the Respondent.
Moreover, the Applicant’s counsel was not able to offer any explanation as to why the Applicant had not complied with the directions, or responded to the Respondent’s letters.
The delay caused by the Applicant and the complete failure by it to comply with all directions between the first directions hearing on 15/10/99 and the first hearing on 10/2/00 was unacceptable. However, the compounded effect of the serial lack of compliance by the Applicant in the time between the first hearing on 10/2/00 and the date of the notice by the applicant on 1/5/00 was, in my view, inordinate and inexcusable and no credible excuse for it was offered by the Applicant.
On the evidence before me, I am also of the view that as at 1/5/00, the fact is that the Applicant’s unacceptable behaviour was intentional and contumelious. The Applicant had exhibited chronic disobedience or contumacy in regard to the orders made by the Tribunal, in respect of directions made at the Callover on 15/10/99 and the hearing on 10/2/00.
I am not persuaded that the Applicant’s performance indicates that it has genuinely wanted this Application to go to hearing within a reasonable period.
On the facts before me, I find that the submissions put by the Applicant’s counsel that the matter was understood by him to be supposed to proceed at the hearing only upon the consideration of a threshold issue, which did not involve issues of defective/incomplete work, or any other issues, to be a view which is both plainly wrong in fact and which was most probably held as a result of inaccurate, or negligent, instructions received from the Applicant’s solicitor.
Likewise, I understand the Applicant’s counsel’s erroneous submission that the Applicant has actually complied with all directions made to date, and that there were never any dates by which documents had to be filed, to be a view which is both plainly wrong in fact and which was most probably held as a result of inaccurate, or negligent, instructions received from the Applicant’s solicitor.
On the facts as I find them to be I am of the view that, in all the circumstances, any prejudice suffered by the Respondent by allowing this matter to proceed further could not be adequately compensated by costs.
For the reserved reasons now stated, this application was dismissed for want of prosecution on 8/5/00 and orders made accordingly.
To the extent that costs can compensate the Respondent for the inconvenience it has suffered, I order the Applicant to pay the Respondent its costs up until and including the hearing held on 8/5/99.”

13   The Tribunal Member in his detailed judgment referred to the correct legal authorities. The decision to dismiss an action for want of prosecution is always discretionary and is not fettered by any absolute or inflexible rules. However, it is a very serious step to deprive a party of a hearing on its merits. The power of the courts to dismiss an action for default or want of prosecution should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible due to serious prejudice to the defendants: Birkett v James [1977] 2 All ER 801; AC 297 at 318. In each case, a balance must be struck between the plaintiff and the defendant and the court must decide whether or not, in all the circumstances, justice requires that the proceedings should be dismissed: Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491; McKenna v McKenna [1984] VR 665; and Department of Trading v Chris Smaller Ltd (1989) AC 1197.

14   In Stollznow v Calvert [1980] 2 NSWLR 749 Moffitt P held that the discretion to dismiss proceedings for want of prosecution is to be exercised for each case upon its own facts by deciding whether, on striking a balance between the plaintiff and the defendant, justice demands that the action should be dismissed. The judgment makes it clear that the discretion is not confined and that authority does not and cannot establish the weight to be given to particular classes of facts or circumstances.

15   The Tribunal Member referred to some passages from the High Court decision of State of Queensland & Anor v J L Holdings Pty Limited (1996-97) 189 CLR 146 where the trial judge refused to allow a defence to be amended. The Tribunal Member referred to Kirby J’s statement at 161:

“times had changed …
… Their Honours invoked the statement of Lord Griffith’s in Ketteman v Hansel Properties [1987] AC 189 to the effect that the “great increase in litigation” and the need for “legal business” to be conducted efficiently now required consideration to be given to “the interests of the whole community” with less indulgence towards “the negligent conduct of litigation as was perhaps possible in a more leisured age’.”

and at 171:

“Courts are entitled to react unfavourably to repeated default on behalf of a litigant whose conduct has the effect of frustrating a proper timetable fixed for the trial. Justice will not necessarily require that a party should have multiple opportunities to plead and present its case. A court must accord justice to the particular litigant. But it must also maintain its responsible use of scarce public resources and consider, in a general way, the impact which its orders have on other litigants and on the public generally.”

16   The Tribunal Member also referred to the majority view (Dawson, Gaudron and McHugh JJ at p 152) where it was stated:

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of the court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

17   When referring to the authorities on the topic of strike out for want of prosecution, the Tribunal Member correctly stated that there is a division between those cases where the delay may be properly described as ‘prolonged, inordinate or inexcusable’ compared to those cases where the plaintiff is ‘intentionally and contumeliously’ in default.

18   The delay in the case before the Tribunal Member can rightly be sheeted home to the plaintiff’s solicitors but not the plaintiff per se. The plaintiff was badly served by their solicitors. The Tribunal Member did not take this into account. In Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 at para 147, Foster AJA (with whom Heydon JA agreed on this issue) stated that this was a case where during the periods of delay the plaintiff was relying upon his solicitors who clearly let him down. The plaintiff was blameless. Foster AJA referred to a observation of the trial judge namely that “For the reasons stated in Forbes v Davies [1994] Aust Torts Reports 81-279 at 61404-61405, if the plaintiff has a relevant action against his instructing solicitors in regard to this matter, in my view the weight that should be attached to it should be minimal and the matter ought proceed in accordance with the normal way such matters are considered and assessed”.

19   This approach has similarly expressed by Kirby P (as he then was) in Morrison v Judd (NSWCA, unreported 10 October 1995) which relates to an application for an extension of time to serve a statement of claim. In Manning Foster AJA then stated:

“In the case cited in this passage reference is made to decided cases in which it has been held that an applicant for extension of a limitation period should not be “bound” by negligent delays on the part of the solicitor. In my view, there can be no hard and fast rule that a solicitor’s mistakes will necessarily act as a bar to his client obtaining an extension of time, particularly where the court hearing the relevant application has been provided with a discretion as wide as that accorded by s 52(4) of the Act. Salido does not establish such a rule. Moreover, it by no means follows that an action brought by the respondent against his solicitors would necessarily succeed or be productive of an award of damages of the size that might be obtained in the claim against the Nominal Defendant, should it succeed.”

20   While it is true that times have changed and that justice will not require that a party should have multiple opportunities to plead and present its case, it must be borne in mind that case management is not an end in itself and even in changing times the ultimate aim of the court is the attainment of justice.

21   The Tribunal has an obligation to act efficiently, effectively and expeditiously but it has to ensure that its decisions are fair. It is my view that although the plaintiff’s solicitor had been remiss and tardy in complying with court directions and preparing the matter for trial, once the parties indicated they were in a position to proceed and the defendant indicate, that if adjourned any prejudice it suffered could be cured by costs, the Tribunal Member should not have proceeded with the serious step of striking out the plaintiff’s case for want of prosecution thus denying it a trial on its merits. Further, the Tribunal Member did not turn his mind to the fact that it was the plaintiff’s solicitor not the plaintiff who was to blame for the lack of preparation and compliance with directions. Nor did he address the most important issue of whether the defendant now found itself in a position of being unable to obtain a fair trial. It is my view that the Tribunal Member was in error in exercising his discretion. He did not take into consideration at least this material consideration outlined above. The decision of the Tribunal Member dated 8 August 2000 should be set aside.

22   I make orders in accordance with paragraphs (1) and (2) of the amended summons. Costs are discretionary. Costs should follow the event. The defendant is to pay the plaintiff’s costs. However, the issue of costs of 10 February 2000 and 8 May 2000 before the Tribunal are remitted to the Tribunal for determination.

23   The orders I make are:

(1) The decision of Tribunal Member Forbes of 8 August 2000 is set aside.

(2) I make orders in accordance with paragraphs (1) and (2) of the amended summons.

(3) The first defendant is to pay the plaintiff’s costs. Costs incurred in the Tribunal on 10 February 2000 and 8 May 2000 are remitted to the Tribunal for determination.
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Last Modified: 06/07/2001