Victor Warren Ollis v Aaron Gregory Lye (No. 3)

[2017] NSWSC 345

Supreme Court

New South Wales

Medium Neutral Citation:

Victor Warren Ollis v Aaron Gregory Lye & Anor (No. 3) [2017] NSWSC 345

Hearing dates:

3 April 2017

Date of orders:

03 April 2017

Decision date:

03 April 2017

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Proceedings dismissed under Civil Procedure Act 2005, s 61(3)(a).

Catchwords:

PRACTICE AND PROCEDURE GENERALLY – case management – multiple failures by a legally represented plaintiff to comply with Court’s orders – failure by plaintiff to file or serve evidence in proceedings in compliance with orders made – failure to comply with Uniform Civil Procedure Rules 2005, r 33.5(2) – warnings provided previously that if orders not complied with proceedings may be struck out - plaintiff’s counsel sought to file documents in Court - no explanation provided by plaintiff’s counsel for past non-compliance – further delays in proceedings likely – unrepresented defendants fully compliant with Court’s orders – proceedings dismissed pursuant to Civil Procedure Act 2005, s 61(3)(a).

Legislation Cited:

Civil Procedure Act 2005, s 61
Uniform Civil Procedure Rules 2015, r 33.5(2)

Cases Cited:

Victor Warren Ollis v Aaron Gregory Lye & Anor [2016] NSWSC 1616
Victor Warren Ollis v Aaron Gregory Lye & Anor (No. 2) [2016] NSWSC 1786

Category:

Procedural and other rulings

Parties:

Plaintiff: Victor Warren Ollis
First Defendant: Aaron Gregory Lye
Second Defendant: Christopher John Lye

Representation:

Counsel:

 

Plaintiff: C.J. Dibb

 

Solicitor:

  First Defendant: in person
Second Defendant: in person

File Number(s):

2016/165228

Publication restriction:

No

EX TEMPORE Judgment

1. This is the Court's third judgment in these proceedings. The Court's first and second judgments set out the full background to the proceedings, which does not need to be explained any further: Victor Warren Ollis v Aaron Gregory Lye & Anor [2016] NSWSC 1616; Victor Warren Ollis v Aaron Gregory Lye & Anor (No. 2) [2016] NSWSC 1786

2. The matter came before the Court on 10 February 2017. There was continuing non-compliance with the Court's orders on that date. In particular Orders 6 and 7 of the Court's orders made on 15 December 2015 had not been complied with. The plaintiff's entire evidence in chief in the proceedings had not been filed or served and the plaintiff had not provided to the defendants, at their address for service, a copy of all subpoenas issued by the plaintiff to third parties (in compliance with UCPR, r 33.5(2)).

3. The Court pointed out to Mr Dibb on 10 February that his client was being given a last opportunity to comply with the Court's orders and that the matter would therefore be adjourned to this morning at 9.30 to take advantage of that last opportunity. The Court made orders 5, 6, 7 and 8 on 10 February 2017 to ensure that the outstanding orders from 15 December would be complied with by today.

4. These orders were the following:

“(5)   Extend the time for the plaintiff to file and serve his entire evidence in chief to 4pm on 24 March 2017.

(6)   Adjourn the proceedings before me at 9.30am on Monday, 3 April 2017 for further directions.

(7)   In light of the plaintiff’s past failure to comply with Orders 6 and 7 of the Court’s orders of 15 December 2016 in the event that the plaintiff does not strictly comply with Order 5 above or Order 8 below, I grant liberty to the defendants to file in Court on 3 April 2017 or to move orally that day at 9.30am a motion to strike out these proceedings under the Civil Procedure Act, s 61(3).

(8)   Direct the plaintiff to provide by 4pm on 17 February 2017 to the defendant’s address for service a copy of the subpoenas for production to the plaintiff which he has issued to Garry Pilgrim, and D’Arcy Sloane Peacock in conformity with the Uniform Civil Procedure Rules 2005, r 33.5(2).”

5. When the matter was called this morning at 9.30, Mr Dibb was not here. Mr Dibb has been late for several of the Court's directions hearings. He was late again this morning. The Court was about to embark upon a judgment in his absence, when he arrived about 9.45.

6. The two matters that were outstanding on 15 December and 10 February, were not ultimately performed: in the one case on time, and in the other case at all.

7. First, the plaintiff's entire evidence was not served by 24 March 2017 in conformity with Order 5 of the 10 February 2017 orders. An affidavit and an unannexed “annexure”, were served by mail on the defendants by 27 March 2017 but not by the 24th. It has yet to be filed. Mr Dibb handed up a copy and sought the Court's leave to file it today, but he gave no explanation to the Court as to why it had not been filed by 24 March. No affidavit has been filed explaining why the documents were late. No affidavit has been filed asking for further indulgence because of particular special circumstances. No explanation has been given from the Bar table as to why the documents were not filed in Court by 24 March, as was ordered. The Court proposes to hand the documents back to Mr Dibb because these proceedings are going to be dismissed.

8. The defendants have persistently complained in this case, and with considerable justification, about the plaintiff’s non-compliance with the Court's orders and about the plaintiff’s failure to file documents electronically and communicate with them on time. This is particularly evident in the second instance of non-compliance: order 7 of the orders made on 15 December (order 5 of the 10 February orders) has still not been complied with, despite the fact an extension of time has been given.

9. The Court on 10 February explained in the clearest possible terms to Mr Dibb, which was evident from the terms of Order 7, that if Order 5 and Order 8 were not complied with, that the proceedings may be struck out.

10. The defendants tell the Court today that no subpoenas to Gary Pilgrim or D'Arcy Sloman Peacock have been provided to them in conforming with UCPR, r 33.5(2). When this was put to Mr Dibb, he seemed surprised. He has not come ready to prove that there has been compliance with the Court's order 5 made on 10 February. The Court would expect, in light of the orders made on the last occasion, that unless Mr Dibb had clear concessions from the other side that they had received these documents, that he would have come prepared today to prove compliance with that order, or to explain any non-compliance.

11. He is not in a position to do so. He says that he would need to get further instructions from his solicitor to establish what has happened. But in my view that is not good enough. That will simply result in further delay. Enough indulgences have been given to the plaintiff in this case and the less than competent performances that have been evident on the plaintiff's behalf in this matter will now have to come to an end.

12. Litigation such as this is not costless. As has been observed in my previous judgments, this is a remarkable case in many ways in which the unrepresented defendants have made every effort to obey the Court’s orders. They have complied with every one of the Court's directions and have attended on time to all of the Court’s hearings.

13. It is the legally represented plaintiff who has not complied with the Court's orders and who has been constantly late for the Court's hearings, thereby expressing a degree of insouciant contempt for the processes of the Court. In my view, this proceeding is likely to be conducted in perpetual default in the future if it is allowed to proceed. And the Court should hold the plaintiff to the final warning that was given on 10 February 2017. The proceedings should be dismissed on procedural grounds for the defaults which have occurred.

14. I will dismiss these proceedings under Civil Procedure Act 2005, s 61(3)(a).

15. Therefore the Court makes the following orders and directions:

1. Dismiss these proceedings under Civil Procedure Act, s 61(3).

2. Order the plaintiff to pay the defendants’ costs in these proceedings.

3. Should the plaintiff wish to commence proceedings overlapping with the subject matter of these proceedings then the plaintiff, as a condition of commencing those proceedings, should pay the defendants’ costs as agreed or assessed.

4. Direct the defendants to provide to the plaintiff’s address for service a memorandum of the costs and frees which they claim in any assessment of costs as per Order 3 above within 21 days of today, namely 24 April 2017.

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