The Owners - Units Plan 239 v Australian Capital Territory (No 2)
[2016] ACTSC 308
•14 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | The Owners – Units Plan 239 v Australian Capital Territory (No 2) |
Citation: | [2016] ACTSC 308 |
Hearing Date: | 14 October 2016 |
DecisionDate: | 14 October 2016 |
Before: | Mossop AsJ |
Decision: | See [21] |
Catchwords: | PRACTICE AND PROCEDURE – Plaintiffs failed to comply with court orders – Affidavit of solicitor for the plaintiffs inadequate – Failed to provide full disclosure of facts giving rise to non-compliance – Standard of professional conduct required of solicitors – Failed to provide adequate explanation – Timetable varied – Indemnity costs order made |
Legislation Cited: | Court Procedures Act2004 (ACT), s 5A |
Cases Cited: | Kaye v Woods (No 2) [2016] ACTSC 87; (2016) 309 FLR 200 |
Parties: | The Owners – Units Plan 239 (First Plaintiff) Kay Pether and Neil Pether (Second Plaintiff) Frank J Jakubowski and Anne Juliet Whyte (Third Plaintiff) Vincent Woolcock and Niki Savva (Fourth Plaintiff) Stephen James Larkham and Jacqueline Larkham (Fifth Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel H A Chong (Plaintiffs) R Bayliss (Defendant) |
| Solicitors McCulloch Buggy (Plaintiffs) Australian Capital Territory Government Solicitor (Defendant) | |
File Number: | SC 876 of 2011 |
Mossop AsJ:
On 17 June 2016 the Court made various orders relating to the preparation of these proceedings for trial. Relevantly for present purposes those included orders 4 and 5 and 14. Those orders provided:
4. The plaintiffs have leave to serve evidence in reply to the Statement of Neil Kevin Cooper dated 18 April 2016 by 30 August 2016.
5. The plaintiffs are to, no later than 30 September 2016:
a) prepare a final plaintiff’s tender bundle containing all witness statements and expert evidence upon which the plaintiffs intend to rely and any documents intended to be relied upon. That part of the tender bundle comprised of documents other than witness statements or expert evidence is to be indexed, paginated and in chronological order;
b) serve on the defendant three hard copies of the tender bundle and an electronic copy of the tender bundle in an electronic format agreed between the parties;
c) serve on the defendant a Scott Schedule and all receipts for each plaintiff with respect to the loss and damage claimed by that plaintiff.
...
14. Paragraphs 17-22 and 26-48 of Practice Direction No 2 of 2014 apply to these proceedings
The provisions of Practice Direction No 2 of 2014, which were applied by order 14, included paragraphs 26-32 which dealt with non-compliance with directions. They provided, relevantly:
26. Directions made by the Court must be strictly complied with
27. A failure by one party to comply with the Court's directions will not be considered an adequate excuse for any failure to comply by another party.
28. In the event of a party being unable to comply with directions of the Court the party should, prior to defaulting but in any event as soon as possible, consult with the other parties in order to determine whether appropriate adjustments may be made to the timetable by consent. In determining whether to consent to a variation of directions parties must bear in mind their obligations under s 5A of the Court Procedures Act 2004.
[28(a) and 28(b) outlined the mechanism by which variation of orders made are to be sought.
29. In the event that a party has failed to take a step required by any direction in the time required and has not made an application for amendment of the directions within seven days after the time specified for the taking of the step, the other party must arrange to have the matter listed. This may be done by sending an email to the Registrar ([email protected]) or to the associate of the docket judge and copying in each other party to the proceeding. The email should state that it is sent pursuant to this paragraph and include the name of the case, the file number, the date on which 8 the direction was made and the terms of the direction which has not been complied with.
30. Where the proceedings are listed pursuant to the procedure in paragraph 29 the party in default must file and serve an affidavit not later than one (clear) day prior to the date the matter is listed providing full disclosure of the facts relating to its noncompliance with the orders of the Court. Cross-examination on the affidavit will only be permitted by leave of the Court.
The plaintiffs have not complied with order 5 made on 17 June 2016. The defendant requested pursuant to paragraph 29 of the Practice Direction that the matter be relisted. That request specifically noted the requirement in paragraph 30 of the Practice Direction that the plaintiffs’ solicitor file an affidavit explaining the non-compliance.
The affidavit that was filed by the plaintiffs was an affidavit of Duncan Francis Stewart, a solicitor with the plaintiffs’ solicitors.
The affidavit provides as follows:
1. I am the solicitor retained by the plaintiffs and I have had the day-to-day carriage, conduct and control of this matter since April 2016.
2. This matter was listed for Directions on 17 June 2016.
3. On that occasion various Directions were made including that the plaintiffs were to provide a tender bundle, serve three copies of it on the defendant along with a Scott Schedule.
4. Since July of this year, the parties had been negotiating on an overall settlement of the proceedings.
5. Although I did not have the day to day conduct of the matter prior to April 2016, I understand that the defendant has been in breach of several Orders to serve its evidence.
6. I am told that the last of the Orders requiring serving of the defendant’s evidence was that it be served by December 2015.
7. Notwithstanding the defendant has served further evidence in April and July of this year.
8. Despite inquiries of the defendant since that time, the defendant has not ruled out serving further evidence.
9. The plaintiff seeks Orders of the Court that the defendant either confirm it will not be serving any further evidence or else serve any further evidence by 28 October 2016.
10. On the afternoon of Tuesday 12 October 2016 the defendant raised the issue of our being in default of the Orders of the Court of 17 June 2016 and advised it would arrange to have the matter listed before the court.
11. I was notified that this matter was listed Friday, 14 October 2016, by way of email late on Tuesday, 11 October 2016. I am unable to attend court in Canberra on Friday due to a prior commitment.
12. Earlier today I had a conference with Counsel retained in the matter before preparing this Affidavit.
13. I have also sought the defendant’s consent to variation of the orders of 17 June 2016 but have not yet received a response.
14. Noting that the matter is not listed for hearing until March 2017, and negotiations continue, in an effort to minimise cost I respectfully request that this honourable court allow an extension of the Timetable in which to serve its tender bundle and Scott Schedule until 25 November 2016 and an extension for the defendant to serve its tender bundle and response to Scott Schedule by 16 December 2016.
In my opinion this affidavit clearly does not comply with the obligation upon the plaintiffs to file an affidavit of their solicitor to provide “full disclosure of the facts relating to its non-compliance with the orders of the Court”.
The affidavit does not properly disclose why it was that the plaintiffs have not complied with the Court’s orders. It does not, for example, say that it was a deliberate decision upon the part of the plaintiffs to not comply with the orders pending settlement discussions or until some particular date. It does not identify any mechanical or other difficulty that the plaintiffs have or would have had in complying with the orders. Rather the affidavit provides a variety of partially disclosed facts which are in some imprecise manner designed to explain or excuse the plaintiffs’ non-compliance.
So far as the affidavit refers to the settlement of proceedings that involves only a vague assertion of settlement negotiations without articulating any explicit link to the non-compliance by the plaintiffs with the Court’s order. Had the existence of settlement negotiations provided a proper basis for non-compliance with the orders of the Court then it would have been appropriate for the solicitors for the plaintiffs to request, prior to non-compliance, an adjustment to the timetable to accommodate whatever settlement negotiations were occurring. That does not appear to have been the approach adopted.
Insofar as paragraphs 6 through to 9 of the affidavit refer in vague terms to some non-compliance by the defendant, the terms of the affidavit insinuate, but do not articulate, the causal relevance of that alleged non-compliance. There are three points to be made about these parts of the affidavit.
First, paragraph 27 of the Practice Direction makes it clear that any failure by another party to comply with directions does not excuse non-compliance by the other. Therefore, the assertions could not provide any excuse to the plaintiffs’ non-compliance.
Second, if there was some difficulty arising out of some alleged non-compliance by the defendant with the orders of the Court, then that was a matter which should have been raised between the parties and, if no appropriate outcome achieved, it should have been raised by the plaintiffs and dealt with by the Court. That could have been done either pursuant to the liberty to apply granted on 17 June 2016 or by way of application in proceeding. This was not done.
Third, and most significantly, these paragraphs appear to me to clearly fall below the standard of disclosure required by the Practice Direction (and, indeed, the standard of frankness required by any solicitor swearing an affidavit in this Court). Unless corrected the affidavit might lead the Court with the impression that there was non-compliance by the defendant which would provide some excuse for the conduct of the plaintiffs. In response to the material in the affidavit counsel for the defendant tendered the transcript of proceedings on 17 June 2016 at which he had specifically explained that the defendant would be providing an additional statement so as to explain business records that the defendant had not been required to serve in order that those business records be more readily intelligible. He did so for the express purpose of ensuring that the plaintiffs and the Court were on notice of that and in order to identify that it was not a matter of significance in terms of the timetable that was set by the Court on that date.
He next tendered a letter from Mr Stuart dated 2 September 2016 asserting, in general terms, that:
Our difficulty is that you continue to serve further evidence. In the circumstances we cannot prepare evidence in response until we have your confirmation that you will not be serving any further evidence.
Could you please confirm that no further evidence will be served by yourselves, and also agree to amend the Court Timetable to allow for further time to respond to same.
This was responded to by a further letter from the defendant’s solicitor dated 5 September 2016, which was tendered by the defendant. The letter identified the statements being that of Stephen Busfeld served 1 September 2016 and Stephen Ryan served 22 August 2016. Those were the statements which annexed and explained the business records of the defendant. The letter made specific reference to what had occurred at the directions hearing in which it was explained that the additional statements were served in order to avoid confusion as to the meaning of the annexed business records. The plaintiffs were invited to obtain a copy of the transcript of the proceedings on 17 June 2016.
Without these three additional exhibits tendered by the defendant, the Court might have been left with the impression that the service of further evidence after 11 July 2016 was of significance and somehow made it inappropriate to insist on compliance with the orders made on 17 June 2016. In the light of the additional evidence which was not disclosed in Mr Stuart’s affidavit, it is clear that the service of the statements of Mr Busfeld and Mr Ryan referred to in the letter of 5 September 2016 provide no basis upon which it would be appropriate to excuse the plaintiff’s non-compliance with the orders of the Court.
The standard of professional conduct required of solicitors in swearing affidavits such as the affidavit sworn by Mr Stuart is articulated in Kaye v Woods (No 2) [2016] ACTSC 87; (2016) 309 FLR 200 at [110]-[119]. The duty upon the plaintiffs’ solicitor is reinforced by the terms of paragraph 30 of the Practice Direction. If it was necessary, the obligation on parties and their representatives is further reinforced by s 5A of the Court Procedures Act2004 (ACT).
For the reasons I have given the approach taken by the plaintiffs and their solicitor appears to me to be inconsistent with those obligations.
The plaintiffs sought that the timetable be adjusted so as to permit them until 25 November 2016 to comply with order 5. The defendant accepted that the timetable for the hearing would remain practicable if the plaintiffs complied with order 5 by 31 October 2016 so long as the defendant was permitted until 16 January 2017 to comply with order 6.
The plaintiffs have manifestly failed to demonstrate an appropriate excuse or explanation for their non-compliance with the Court’s orders. Having regard to the approach taken by the defendant, I consider it appropriate to permit the plaintiffs until 31 October 2016 to comply with order 5 made on 17 June 2016. That will necessitate an adjustment to order 6 permitting the defendant until 16 January 2017 to comply with the requirements of that order. I will also make an additional order permitting an additional period in which the plaintiffs may comply with order 4 made on 17 June 2016. Having regard to the approach taken by the plaintiffs to compliance with the Court’s orders I consider it appropriate to make it clear that the plaintiffs will be confined in the case that they may run at trial if they fail to comply with the orders of the Court as amended.
In relation to costs, having regard to my findings above I consider it appropriate that the plaintiffs pay the defendant’s costs arising out of the non-compliance with the Court’s orders including the costs of the hearing today on an indemnity basis.
Orders
The orders of the Court are:
1. The orders of the Court made on 17 June 2016 are amended by:
i. deleting 30 August 2016 from order 4 and inserting 31 October 2016;
ii. deleting 30 September 2016 from order 5 and inserting 31 October 2016; and
iii. deleting 30 November 2016 from order 6 and inserting 16 January 2017.
2. The plaintiffs may not rely upon any item not identified in a Scott Schedule served in accordance with order 5 made on 17 June 2016 as amended by these orders or any receipt not served in accordance with those orders.
3. The plaintiffs are to pay the defendant’s costs arising from their non-compliance with the orders made on 17 June 2016 including the costs of today on an indemnity basis.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 17 October 2016 |
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