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

1. 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.

2. 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.

3. 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 something of a reversal of the usual order of things.

4. The plaintiff is responsible for four main defaults. These are cause for sufficient concern that the Court has flagged during argument that if further defaults occur on the plaintiff’s side that the Court will consider striking out of these proceedings under Civil Procedure Act 2005, s 61(3)(a).

5. The four identifiable defaults are as follows: (a) the plaintiff has not fully availed himself of the allocated return date for subpoenas on 6 December 2016, as the plaintiff still seeks the issue of subpoenas to the defendants – these were not filed, even though there was plenty of time available for their preparation; (b) the plaintiff has not filed his hearing evidence on 12 December in accordance with the Court's orders; (c) the amended statement of claim was not filed on 23 November in accordance with the Court's orders; and (d) in respect of the six subpoenas which were issued by the plaintiff to various third parties, and in respect of which, I understand, some documents have been produced, the plaintiff did not comply with Uniform Civil Procedure Rule (“UCPR”), that is, UCPR, r 33.5(2), a rule which requires that copies of the subpoenas issued should be "as soon as practicable after the subpoena has been served on the addressee, be served by the issuing party upon each other active party”. That clearly includes the defendants in this case and it has not been done.

6. The continuation of such defaults by the plaintiff is unacceptable. The Court can have, difficulties in managing litigation conducted by litigants in person, in part because of the requirement to explain the rules to them. Because of these defaults the Court has decided for now, to keep a close managerial eye on this litigation.

7. Mr Dibb, of counsel, who appears for the plaintiff, has read an affidavit of the plaintiff, Mr Ollis, which seeks to explain some of these defaults. Principal amongst his explanations for non-compliance is the statement in paragraph 4, "I am living in Queensland and do not have a solicitor". In the course of exchanges between the Court and Mr Dibb, he too explained the plaintiff’s defaults in the same way, by saying, from time to time, that “Mr Ollis did not have a solicitor."

8. That is not an adequate excuse. If the self-represented defendants in these proceedings are able to substantially comply with the Court's orders, as best they can, one would think that a plaintiff, assisted by a barrister acting on direct access, would be in a position to at least equal that standard. But that has not been the case here. And the plaintiff's defaults have already put the defendants to considerable inconvenience.

9. The Court has decided to give the plaintiff one last chance to attempt to put his house in order. But it will be one last chance. If it is not availed of then the plaintiff's proceedings are liable to be struck out on the next occasion, under Civil Procedure Act s 61(3)(a). The Court's power to issue such orders is well established: see for example Greywolf Resources NL v Wilkinson [2011] NSWSC 1604.

10. The orders should be strictly complied with, including by service upon the defendants within the time specified. These proceedings cannot be satisfactorily conducted, particularly as the defendants are appearing without legal representation, unless documents are delivered to them at their address for service within the times specified.

11. There are other issues in the background in these proceedings, which were touched upon in the first judgment. The first is the impact of the plaintiff's bankruptcy in the years indicated in the first judgment. The second is the existence of proceedings in the Family Court of Australia between the defendants' mother and the plaintiff, who were in a de facto relationship for many years. I flag those issues as ones that a future trial judge may have to look at. Neither the pleadings nor the evidence before me at present allows the Court sufficient clarity to understand whether these potential issues will have any impact on this litigation. But the Court will now take the precautionary course of notifying the plaintiff's former trustee in bankruptcy the existence of of these proceedings. A direction to that effect is included in the direction below.

Conclusion and Orders

12. Accordingly, the Court makes the following orders and directions:

1. Grant leave to the plaintiff to file in Court the Amended Statement of Claim, which is filed generally pursuant to the leave made by the Court on 16 November 2016 and now extended and which document is initialled by me, dated today and placed with the Court papers.

2. Amend the coversheet of the Amended Defence of Christopher Lye by crossing out where it says “Aaron Gregory Lye as filed for first defendant” and the Court will add “Christopher Lye, the Second Defendant”, which changes are initialled by me and dated today.

3. Order the first and second defendants each produce to the plaintiff at the plaintiff’s address for service by 4.00pm on 16 January 2017: (a) copies of all income tax returns for years ending 30 June 2005 to 30 June 2014; and (b) a copy of the trust deed for the Shield’s Family Trust, the trust referred to in the Amended Statement of Claim.

4. Appoint 31 January 2017 at 9.30am before Registrar as a further general return date of subpoenas in these proceedings.

5. Adjourn these proceedings before me for further mention at 9.30am, Friday 10 February 2017.

6. Direct that the plaintiff file and serve upon the defendants at their address for service by Friday, 3 February 2017 the entire plaintiff’s evidence in chief in these proceedings.

7. Direct that the plaintiff provide to the defendants’ address for service a copy of all subpoenas already issued by the plaintiff to third parties so the plaintiff complies with the Uniform Civil Procedure Rules, r 33.5(2).

13. Direct a copy of my two judgments be provided by my associate to the former trustee in Bankruptcy of the plaintiff, namely Mr Shon Gregory Condon of Condon Associates, level 6, Marsden St, Parramatta NSW 2150.

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Amendments

16 December 2016 - No changes

Decision last updated: 16 December 2016