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Templar v Britton (No 2)

Templar v Britton (No 2)

Case [2014] NSWSC 587 7 May 2014

Limitation Periods

Stay of Proceedings

Costs

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Templar v Britton (No 2) [2014] NSWSC 587
Hearing dates: 6 May 2014
Decision date: 07 May 2014
Before: McCallum J
Decision:
Plaintiffs' claim against first and second defendants dismissed; parties to consult as to further directions to be made in proceedings against third defendant and as to costs.

Catchwords: PROCEDURE - application to have proceedings dismissed for breach of directions or for failure to prosecute claim with due despatch - where barrister accepting full responsibility for recent breaches against lengthy history of delay
Cases Cited: Bi v Mourad [2010] NSWCA 17 D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Hoser v Hartcher [1999] NSWSC 527 Templar v Britton [2013] NSWSC 1827
Category: Interlocutory applications
Parties: Stephen Templar (plaintiff) Audametrics Pty Ltd (second plaintiff) Paul Britton (first defendant) Bradley Laughlan (second defendant) State of New South Wales (third defendant)
Representation: Counsel: L Goodchild (plaintiffs) D R Sibtain (defendants)
Solicitors: City Attorneys (plaintiffs) Hicksons Lawyers (defendants)

File Number(s): 2012/393936
Publication restriction: None

Judgment

HER HONOUR: Before the Court is an application brought by the defendants to have these proceedings dismissed on the grounds of a series of failures to comply with directions of the Court and, alternatively, for failure to prosecute the proceedings with due despatch.

The determination of the application requires a detailed consideration of the course of the proceedings to date. The first plaintiff, Mr Stephen Templar, is an audiometrist and the sole director and controller of the second plaintiff, Audametrics Pty Ltd. In early 2012, Mr Templar was in contact with parents at Berkeley Vale Primary School canvassing the prospect of administering hearing tests to children at the school. The topic of those tests arose at a meeting of the Parents and Citizens Association of the school. Mr Templar's claim arises from remarks allegedly made at that meeting. Specifically, it is alleged that the principal of the school, Mr Paul Britton, who is the first defendant in the proceedings, spoke the following words:

A man, Stephen Templar, has approached the school about conducting hearing tests for kids.

I have discovered it is a scam.

There are no details on the brochures.

The company is Audametrics.

A separate claim is made in respect of an email allegedly sent by the second defendant, Mr Bradley Laughlan, who is a Student Support Coordinator. The third defendant to the proceeding is the State of New South Wales, which is alleged to be vicariously liable for the conduct of the first and second defendants as their employer. The terms of the email sent by Mr Laughlan were as follows:

I have been advised that a small number of schools on the Central Coast have been approached by Audametrics Pty Ltd to advertise Hearing and Vision tests to be conducted during school hours for a small fee.

Concerns have been raised by Central Coast Area Health Services regarding the accuracy, and validity of the results of this testing.

The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Templar v Britton (No 2)

Details

AGLC: Templar v Britton (No 2) [2014] NSWSC 587
Case: [2014] NSWSC 587
Decision Date: 07 May 2014

CaseChat Overview and Summary

The matter before the court was an application by the respondent to have the proceedings dismissed for the applicant's failure to prosecute the claim with due despatch. The applicant was represented by a barrister, Mr. Templar, who accepted full responsibility for the recent breaches of court orders, which occurred amidst a lengthy history of delay. The respondent, Mr. Britton, sought dismissal of the proceedings under rule 42 of the Federal Court Rules, arguing that the applicant had failed to comply with the court's directions.

The central legal issue for the court was whether the applicant's persistent failure to comply with court orders, despite being given numerous opportunities to rectify these breaches, warranted the dismissal of the proceedings. The court had to consider the history of delays and the consequences of dismissing the proceedings, which would result in the applicant losing all prospects of success in the matter.

The court found that the applicant's history of delay and non-compliance with court orders was egregious, and the recent breaches were a continuation of this pattern. The court determined that the applicant had failed to take the necessary steps to remedy the situation, despite being warned of the consequences of further non-compliance. The court concluded that the interests of justice required the dismissal of the proceedings, as the applicant's conduct had caused significant prejudice to the respondent and wasted court resources. The court further noted that the dismissal would not result in any significant injustice to the applicant, as they had been given ample opportunity to prosecute the claim with due despatch.

The court ordered that the proceedings be dismissed with costs. The respondent was awarded costs on the standard basis, while the applicant was ordered to pay the respondent's costs of the application for dismissal, on an indemnity basis. The court also made an order that the applicant's costs of the proceeding were to be paid within 14 days of the judgment.

Orders