Templar v Watt (No 2) - [2015] NSWSC 997

Supreme Court

New South Wales

Medium Neutral Citation: Templar v Watt (No 2) [2015] NSWSC 997
Hearing dates: 19 June 2015
Date of orders: 26 June 2015
Decision date: 26 June 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Application to have proceedings dismissed for want of due despatch dismissed

Catchwords: PROCEDURE – application to have proceedings dismissed for want of due despatch – where plaintiffs well on notice of importance of preventing further delay due to previous application – where further delay due to failure of solicitor to attend to simple administrative steps – further delay not due to any fault of the plaintiffs personally
Cases Cited: Nu-Tec v Australian Broadcasting Corporation [2009] NSWSC 78
Templar v Watt [2014] NSWSC 937
Category: Procedural and other rulings
Parties: Stephen Templar (first plaintiff)
Audametrics Pt Ltd (second plaintiff)
Phillip Watt (first defendant)
Central Coast Local Health District (second defendant)
Representation:
Counsel:
MK Rollinson (Plaintiff)
S T Chrysanthou (Defendants)
Solicitors:
City Attorneys (plaintiffs)
Crown Solicitor’s Office (NSW) (defendants)

File Number(s): 2013/150908
Publication restriction: None

Judgment – Ex Tempore

HER HONOUR: These proceedings have an unfortunate history, part of which is recorded in my earlier judgment in Templar v Watt [2014] NSWSC 937. In that judgment, as recorded at [40], I concluded (with some equivocation) that it would be too extreme a sanction at that point to dismiss proceedings for want of due despatch as sought by the defendants. The judgment gave the clearest warning to the plaintiffs as to the need for them to prosecute the action with due despatch from that point.
Frustratingly for the defendants, the proceedings have continued to suffer delay since the publication of that judgment. A further application to have the proceedings dismissed for want of due despatch was heard by me last week.
The submissions put on behalf of the defendants on that occasion were cogent and I was on the brink of dismissing the proceedings. I formed the view, however, that the critical aspect of the delay relied upon by the defendants appeared, from the limited and unsatisfactory material before me, to fall potentially at the feet of the plaintiffs' legal representatives rather than the plaintiffs individually.
In particular, the principal delay since the last judgment has been the failure of the plaintiffs' legal representatives to comply with orders made by me on 17 October 2014. On that date, I referred the proceedings for mediation and directed the parties to use their best endeavours to hold the mediation by the end of November. In case the mediation was unsuccessful, I also directed the parties to approach the list clerk within two days to obtain a hearing date.
A mediation was held at the end of November. The result was that the parties agreed to mediate further. From that time, notwithstanding the energetic and persistent attempts of Mr Cantrell (the solicitor for the defendants) to obtain a further date for mediation and dates for hearing, the result was nil. A chronology provided by Ms Chrysanthou…

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 Watt (No 2)

Details

AGLC: Templar v Watt (No 2) [2015] NSWSC 997
Case: [2015] NSWSC 997
Decision Date: 26 June 2015

CaseChat Overview and Summary

The case of Templar v Watt (No 2) involves proceedings where the plaintiffs sought to have the case dismissed for the defendant's want of due despatch. The plaintiffs had previously been warned about the importance of avoiding further delays due to an earlier application. This time, the delay was attributed to the defendant's solicitor's failure to complete basic administrative tasks. The plaintiffs did not personally contribute to the delay.

The court was tasked with determining whether the plaintiffs' application to dismiss the proceedings should succeed. The central issue was whether the defendant's delay, resulting from the solicitor's administrative oversight, warranted the dismissal of the case. The court also had to consider whether the plaintiffs had been at fault in any way that could negate their entitlement to a dismissal.

The court held that the plaintiffs' application should be dismissed. The delay was not due to any personal fault on the part of the plaintiffs, but rather the administrative oversight of the defendant's solicitor. The court found that the plaintiffs had been sufficiently diligent and had warned the defendant about the consequences of further delays. The court held that the defendant's failure to take responsibility for the administrative tasks did not justify the dismissal of the proceedings. The court emphasised that the plaintiffs were not to blame for the situation.

No further orders were made by the court beyond dismissing the plaintiffs' application. The case was to proceed as originally scheduled, with the court's decision highlighting the importance of both parties taking responsibility for the progress of their cases.

Orders