Victor Warren Ollis v Aaron Gregory Lye (No. 2) - [2016] NSWSC 1786

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Victor Warren Ollis v Aaron Gregory Lye & Anor (No. 2) [2016] NSWSC 1786
Hearing dates: 15 December 2016
Date of orders: 15 December 2016
Decision date: 15 December 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Leave granted to file the out-of-time Amended Statement of Claim. Directions made for preparation of proceedings for trial. Court notes that proceedings may be struck out under Civil Procedure Act, s 61(3)(a) if there are further defaults by the plaintiff in Court-appointed timetables.

Catchwords: PRACTICE – plaintiff defaults on several orders in Court-appointed timetable for the preparation of proceedings for hearing – plaintiff represented by barrister acting on a direct access basis without a solicitor – defendants are litigants in person – whether lack of a solicitor is any excuse for the plaintiff’s default in the Court’s timetable - what directions should be given in the circumstances.
Legislation Cited: Civil Procedure Act 2005, s 61(3)(a)
Supreme Court Practice Note Equity 11
Uniform Civil Procedure Rules 2005, r 33.5(2)
Cases Cited: Greywolf Resources NL v Wilkinson [2011] NSWSC 1604
Victor Warren Ollis v Aaron Gregory Lye & Anor [2016] NSWSC 1616
Category: Principal judgment
Parties: Plaintiff: Victor Warren Ollis
First Defendant: Aaron Gregory Lye
Second Defendant: Christopher John Lye
Representation:
Counsel:

Plaintiff: C.J. Dibb
First Defendant: in person
Second Defendant: in person

Solicitor:
Plaintiff: n/a
Defendants: n/a

File Number(s): 2016/165228
Publication restriction: No

EX TEMPORE Judgment

This is the Court's second judgment in these proceedings. The Court's first judgment, given on 16 November 2016, dealt with a number of interlocutory issues: Victor Warren Ollis v Aaron Gregory Lye & Anor [2016] NSWSC 1616. The first judgment resulted in the striking out of the Statement of Claim, a grant of leave to file an Amended Statement of Claim by 23 November 2016, a direction for the defendants to file Defences by 30 November 2016, and a direction for the plaintiff to file all his evidence for the hearing by Monday 12 December 2016. The matter was then made returnable before the Court today at 9.30am, with the costs of the defendants' motion reserved.
The matter is one in which the defendants, the applicants on the motion, appear as litigants in person, and the plaintiff is represented by Mr Dibb of counsel on a direct access basis. This judgment should be read with the Court's first judgment in the proceedings. The Court will refer in this judgment to events, matters and things in the same way as the Court has done in the first judgment.
The proceedings today represented a sorry picture of non-compliance with Court's orders on the plaintiff's part. One of the surprising things about this non-compliance is that the plaintiff, who is legally represented by Mr Dibb, is in default of the Court's orders but the defendants, who are self-represented, appear to the Court to have attempted to comply with the Court's orders as diligently as possible, notwithstanding the plaintiff’s defaults. This is…

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.

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Details

Case: [2016] NSWSC 1786
Decision Date: 15 December 2016

CaseChat Overview and Summary

Victor Warren Ollis, the plaintiff, brought a claim against Aaron Gregory Lye, the defendant, in a dispute that reached the Court. The nature of the case involved several defaults by the plaintiff in adhering to several court-ordered timelines for preparing the case for hearing. Notably, the plaintiff was represented by a barrister acting under direct access without the involvement of a solicitor, while the defendants were unrepresented litigants. The court was tasked with determining whether the absence of a solicitor could be considered a valid reason for the plaintiff's failure to comply with the court's schedule and what directions should be issued given the unique circumstances of the case.

The legal issues before the court included whether the plaintiff's lack of a solicitor could excuse his defaults in meeting the court-imposed deadlines and what appropriate directions should be given in light of the plaintiff's representation and the defendants' self-representation. The court had to balance the procedural fairness owed to the parties against the need to manage the court's resources effectively and ensure that cases progressed in an orderly manner.

In its decision, the court found that the plaintiff's lack of a solicitor did not absolve him of his obligations to comply with the court's timetable. The court emphasised that direct access allowed for a flexible approach to legal representation, but it did not exempt litigants from their procedural responsibilities. The court also noted the importance of ensuring that both parties had an equal opportunity to present their cases. As a result, the court issued specific directions to both parties, aiming to facilitate a fair and efficient progression of the case towards a hearing. The court required the plaintiff to comply with the court's timetable and to provide a comprehensive update on the status of the case within a specified timeframe.

Orders