Supreme Court New South Wales

• Medium Neutral Citation: Rubio v Trenzado [2013] NSWSC 161
• Hearing dates: 15/02/2013
• Decision date: 15 February 2013
• Jurisdiction: Common Law
• Before: Garling J

Decision

(1) The amended notice of motion of the first defendant filed 15 February 2013 be dismissed.

(2) Order the plaintiff to pay the first defendant's costs of the motion on the ordinary basis.

(3) Stand over the application for costs to be payable forthwith.

(4) The notice of motion of the second defendant filed 17 December 2012 be dismissed

(5) Order the plaintiff to pay the second defendant's costs of the motion on the ordinary basis.

(6) Stand over the question as to whether those costs ought be payable forthwith.

(7) Order the plaintiff to serve on the defendants on or before 4pm, 8 March 2013 the interrogatories which he wishes them to answer.

(8) Order that the defendants notify the plaintiff whether they oppose answering any of the interrogatories by 4pm 22 March 2013. If the defendants do not oppose answering the plaintiff's interrogatories, I order that such answers be served by Friday 4pm, 19 April 2013.

(9) If the defendants do oppose answering interrogatories, I order that the plaintiff, should it wish to administer interrogatories, file and serve a notice of motion and all affidavits in support by 4pm, 5 April 2013.

(10) Order the defendants to file all evidence upon which they rely on or before 4pm 19 April 2013.

(11) Stand the proceedings over for further directions before me and the hearing of any motion to 9.30am on Friday 3 May 2013.

• Catchwords: SUMMARY DISMISSAL - hearing a motion for a summary judgment - consequence of a denial of a hearing on the merits before a Court - whether in interests of justice to dismiss proceedings. COSTS - application for indemnity costs on the grounds of serial non-compliance of Court orders - a successful contest of a motion for summary judgment is not unreasonable conduct such as to warrant indemnity costs.
• Legislation Cited: Civil Procedure Act 2005; Uniform Procedure Rules 2005
• Category: Procedural and other rulings
• Parties: F Rubio (P); W Trenzado (D1); Aquitaine Constructions Pty Ltd (D2)
• Representation: Counsel: H Marshall SC / Dr S thonrton (P); C McDonald (D1); N Polin (D2)
• File Number(s): 2011/00355463

ex tempore Judgment

1 This is an application by the first defendant by an amended notice of motion seeking orders for the dismissal of the proceedings brought by the plaintiff on one of two bases.

2 The first basis is pursuant to s 61(3)(a) of the Civil Procedure Act 2005. The first defendant seeks the dismissal of the proceedings as a result of the plaintiff's failure to comply with the orders of the Court. The second basis is reliance upon r 12.7 of the Uniform Civil Procedure Rules, which provides that proceedings may be dismissed for want of due despatch.

3 The second defendant also by notice of motion seeks similar orders, and in that motion relies on r 12.7 of the UCPR.

4 The plaintiff opposes the making of the orders.

Procedural History

5 Some history is necessary. The plaintiff claims that on 8 November 2008, he was seriously injured when he fell from an attic in the roof of the first defendant's house to the floor below, through a hole which had been cut into the floor of the attic by the second defendant. This, it was alleged, was pursuant to a contract or agreement between the first and second defendant.

6 As a consequence of that fall, the plaintiff claims he has sustained injuries that render him a C5/6 quadriplegic.

7 The proceedings were initially commenced in November 2011 at a time immediately proximate to the expiration of the three year limitation period. The matter first came before the Court on 13 February 2012 when the Registrar, by consent, made various orders. The second defendant had not been served at that point in time, and there was no appearance by it.

8 On 26 March 2012, when the matter was next before the Court, the Registrar was informed that the second defendant had been served but there was no appearance for the second defendant on that occasion. The matter was then stood over to 14 May 2012 before the list judge for further directions. It is apparent at the March directions hearing that the plaintiff had not complied with the earlier orders.

9 On 14 May 2012, I made an order that, in effect, provided for the determination of all issues relating to liability in advance of determination and quantification of damages. On that day, by consent, I made a series of orders which included permitting the plaintiff to amend the statement of claim and providing for amended pleadings to follow, and then for service of evidence.

10 An Amended Statement of Claim was filed within the time limited by the Court's order. The defences to the Amended Statement of Claim were also filed by the defendants broadly within the time fixed by the Court.

11 In May 2012, I ordered the plaintiff to serve an expert report on liability and an evidentiary statement by the end of July. That was not done.

12 On 3 August 2012, I ordered the plaintiff to serve all lay and expert evidence on liability by 7 September 2012. That was not done.

13 When the matter came before the Court on 7 December 2012, it was clear by that stage that the plaintiff had not complied, at least in substance, with the directions with respect to the filing of an evidentiary statement and any lay and/or expert evidence, upon which he proposed to rely in support of his claim.

14 However, the Court was informed on 7 December 2012 that an expert report had been served by the plaintiff but that "it is exceptionally brief".

15 For reasons which counsel was unable to explain to the Court on 7 December 2012, notwithstanding a failure to comply with the directions of the Court, the plaintiff had not restored the matter to the list in order to have further directions made. As well, counsel who appeared on 7 December 2012, informed the Court that he had only limited instructions and that so far as he could tell, in terms of attention to the matter in his solicitor's office, "the matter does appear to have fallen between the cracks". He told the Court he was not briefed in the matter and didn't have the day-to-day carriage of the matter. He was unable to provide any assistance of substance to the Court.

16 As a result, I gave a direction on 7 December 2012, for the plaintiff's solicitor to file an affidavit explaining what steps he had taken to comply with the Court's orders of August, what steps so far as he knew the plaintiff personally had taken to comply with those orders, and providing for an explanation for the lack of compliance with the orders. Two affidavits of Mr Mark Schreuder were filed both of which have been read in this afternoon's proceedings.

17 It is clear that the solicitor on the record for the plaintiff, Mr Mark Schreuder, has at all times had conduct of the matter in a supervisory capacity and has been present at most of the pivotal conferences in the matter.

18 It appears that his firm was first instructed on 17 January 2011. The affidavit then recounts a sorry history of conferences and attempts at having conferences. One conference has taken place. Other conferences were meant to have, but they did not take place for a considerable period of time. There seems, also, to have been some difficulty in obtaining the file from the previous solicitor.

19 On 11 January 2012, Mr Schreuder and his firm were informed by the plaintiff's daughter, that the plaintiff was to reside in Spain indefinitely so that he could undergo treatment at an appropriate rehabilitation facility. It appears that since February 2012, when the plaintiff left Australia he has lived continuously in a rehabilitation facility in Spain.

20 During the course of 2012, for reasons which are not justified by Mr Schreuder, and which could not on any reading of them be justified, matters that ought to have been attended to were not. In particular, in order to comply with the Court's orders of May and August to file an evidentiary statement, it was essential for detailed instructions to be taken from the plaintiff. After all, on 14 May 2012, I had ordered that the plaintiff serve an evidentiary statement by 27 July and then, on 3 August, I ordered that the evidentiary statement be served by 7 September.

21 Nothing at all was done before the end of July 2012 to arrange a conference with the plaintiff to take an evidentiary statement. Two conferences were arranged before the 7 September 2012 deadline, but both were cancelled. The reasons for their cancellation are not provided. It does appear that four conferences in which instructions were to be taken from the plaintiff were cancelled and with one exception, no reasons are provided.

22 In his affidavit of 7 February 2013, Mr Schreuder deposes to the fact that there are many obvious difficulties with conferring with the plaintiff in person whilst ever he resides in Spain, and that the undertaking of teleconferences is difficult due to the time difference between Australia and Spain, and because of the inadequacy of teleconference facilities at the nursing home in Spain where the plaintiff currently lives. So much can be readily accepted.

23 Mr Schreuder then asserts in his affidavit that his attempting to "assist the plaintiff in preparation of his evidentiary statements were being frustrated by the first and second defendants". He supports this assertion by reference to the fact, so he says, that documents were not produced in a timely fashion by each of the defendants. I am not persuaded that the production of documents by the first and second defendants had anything whatsoever to do with the failure to obtain an evidentiary statement from the plaintiff.

24 An evidentiary statement is a statement of the evidence the plaintiff can give. It is nowhere said by Mr Schreuder, nor does it appear to be so, that any documents in the possession of the first and second defendants had anything whatsoever to do with the plaintiff. It follows he could not give any evidence about them. It may be that the documents may have assisted the preparation of his case generally or may have assisted the proof of his case in due course. I simply do not accept the assertion by Mr Schreuder that the preparation of the evidentiary statement has been frustrated by the conduct of the defendants with respect to the notice to produce.

25 It appears from Mr Schreuder's second affidavit, that he largely seeks to place the blame on counsel whom he had retained for the failure to finalise the evidentiary statement so that it could be served. I have not heard from the particular counsel concerned and I am not in a position to determine whether that is so. Ultimately, it needs to be said that the conduct of litigation remains the responsibility of the solicitor on the record and if a barrister whom he has briefed does not attend to the requirements of the brief in a timely fashion, it is the solicitor's obligation to withdraw the brief and find someone else to do it, or alternatively, as a qualified practitioner acting for the plaintiff, to do the work himself or herself.

26 The conclusion is open that the attention to the obligations of the plaintiff as provided for by s 56 of the Civil Procedure Act has been wholly inadequate and, as well, the legal representatives of the plaintiff have not been diligent in and about supporting the plaintiff's obligation to comply with s 56.

Submissions on the Motion

27 The defendants submit that there are three principal reasons why the orders sought in the notice of motion ought to be given.

28 The first is that the Court ought to conclude that the plaintiff has not been involved in providing instructions in the preparation of his case or in the preparation of his case with the exception of one conference in 2011, and so the case is not really being prosecuted by him.

29 There is a real question on the evidentiary material before the Court as to precisely how much effort the plaintiff himself has put into the preparation of the proceedings. However, I have not the slightest doubt that either directly by himself or alternatively through his agent, his daughter who is a legal practitioner, that the plaintiff has provided instructions for these proceedings and is, although not directly involved in the prosecution of the proceedings, sufficiently involved in them. The fact that he has signed an evidentiary statement in February this year provides ample support for that proposition.

30 In any event, even if I was satisfied that the plaintiff had at no time provided instructions directly to the plaintiff's solicitors but all instructions had come from the plaintiff's daughter, I do not think that that would be a sufficient basis to make the orders sought.

31 The second submission is that there has been a serial failure to comply with the orders of the Court and a lengthy history of non-compliance. It is clear from the procedural history that I have recounted that this sorry saga abundantly satisfies me that there has been a serial failure to comply with the Court's orders by the plaintiff. But it must be said that, at least by now, the plaintiff has produced an expert report and has produced an evidentiary statement. A motion of this kind is not concerned, so it seems to me with the quality of those documents, because compliance with the Court's orders has now been evidenced.

32 The third submission which the first defendant makes, is that although there has been some rudimentary compliance, at long last, of the plaintiff's obligations, it is quite clear that the matter is a long way from taking a hearing date, as the plaintiff has intimated that he wishes to interrogate the first and second defendants. The first defendant notes that there are a good number of interlocutory steps to be taken before the matter can be ready for a hearing.

33 I accept that the case is not ready for a hearing. This is so because all the evidentiary steps have not been completed and, as well, the plaintiff's interlocutory steps have not been completed. Relevantly where there are two experts on a similar subject, joint conferences have not been held and the parties have not engaged in any reasonable attempt at a mediation.

34 The second defendant relies on the same grounds as the first defendant but, in addition, points to the fact that its involvement, even on the plaintiff's evidentiary statement is a very limited one and there is no reason rationally to explain why the plaintiff has taken so long to deal with evidence against the second defendant. Indeed, the second defendant submits that the evidence is frankly weak.

Discernment

35 The provisions upon which both defendants rely enable a Court to dismiss proceedings either because there has been a failure to comply with a Court's direction or order, or there has been a failure to prosecute the claim with due despatch. However, the Court is exercising a discretion where it is satisfied that either of or both of those bases have been established.

36 As I have made plain, I am abundantly satisfied that there has been a serial failure by the plaintiff to comply with the Court's orders, and that, as a direct consequence, although the proceedings were initially filed two years ago the matter has reached a stage where it is not even yet ready to take a hearing date.

37 The discretion which I am called upon to exercise is one which must have regard to the interests of justice but as the Civil Procedure Act makes plain, the Court when exercising a discretion of this kind is entitled to have regard to the effect of the conduct on parties in other cases in the Court, the effect it may have on judicial resources, and whether the exercise of the discretion is consistent with the furtherance of the overriding purpose of s 56 of the Civil Procedure Act, which is to facilitate the just, quick and cheap resolution of the real issues in the dispute.

38 In short, what the defendants seek by this motion which is brought, no doubt out of a sense of sheer frustration and helplessness with the continued failure of the plaintiff to do that which he is obliged to do, is to have the case dismissed without the plaintiff having a hearing, and put an end to their incurring of costs and expense.

39 As the authorities on summary dismissal of proceedings show, the circumstances in which a plaintiff ought to be denied a hearing on the merits before a Court are very limited indeed, and the Court when considering an application for summary dismissal is enjoined to exercise such power as it undoubtedly has, with caution and with care.

40 The circumstance in which this application is made and the orders which are sought are in my opinion, as a matter of legal principle, analogous to circumstances in which summary dismissal is sought.

41 It would not be right for the Court to dismiss a claim without a hearing as a punishment for a party which does not comply with their obligations. It would only be right to dismiss the claim if the interests of justice point to that being the appropriate conclusion. But the interests of justice ordinarily require the Courts hear and determine cases on their merits and not to dismiss proceedings without a hearing.

42 It is undoubtedly the case that the conduct of the plaintiff and his dilatoriness has caused excessive cost and expense and anxiety to both defendants. The Court has previously been told, and there does not seem to be any doubt about the fact, that the first defendant is uninsured. The extent of matters which are appropriate to take into account with respect to any delay created by litigation are always amplified when one is dealing with individual litigants rather than the large corporations although they are not necessarily absent when dealing with sophisticated and regular litigants.

43 I am obliged to weigh up the dilatoriness of the plaintiff, the lack of any real explanation for it, the cost and expense which that has caused on the one hand, with the plaintiff's ordinary right to have a claim, which is apparently arguable, heard and having regard to the serious injuries which he suffered, the importance of the claim to him.

44 Although I have just explicitly identified only a few matters, I have nevertheless carefully considered all of the arguments that have been put by the defendants and paid careful attention to all of the facts upon which they rely. I am not prepared to order the dismissal of the plaintiff's claim. There are difficulties with it in the sense of getting it ready for a hearing including taking instructions from the plaintiff who now lives, no doubt for good reasons, in another country, but those difficulties ought not prevent him from having his case heard and determined.

45 In coming to this conclusion, I am not expressing any view as to what the Court might do in the future if the history of serial non-compliance continues.

46 But I am not satisfied at the moment that it is in the interests of justice to hold the plaintiff out from a hearing. It is certainly in the interests of justice to make orders which have the effect of ensuring that steps are taken promptly to ensure that this matter is brought on for a hearing, and that the costs occasioned by the dilatoriness of the plaintiff are reimbursed to the parties who have suffered. But I am not persuaded, as I have said, that I should make the orders sought in the notice of motion, and accordingly, I propose to dismiss both notices of motion.

47 There is as an application for costs of the motion by the defendants. The fact that I have held that the motions did not succeed is not a barrier to the making of a costs order. Senior Counsel for the plaintiff did not submit that there was any such barrier. Since the evidentiary statement was only filed some three weeks or so after the motions were filed and just a few days before the hearing, the interests of justice require that the plaintiff pay the defendants costs of the motion.

48 Accordingly, I propose to order costs of the motion including today be paid by the plaintiff.

49 The second question is whether the costs should be paid on a party and party basis, usually called the ordinary basis or on an indemnity basis.

50 The authorities suggest that, costs can be ordered to be paid on an indemnity basis, where the conduct of the party responsible for paying the costs is plainly unreasonable.

51 I am well satisfied that the conduct of the plaintiff leading up to and including this motion, has been plainly unreasonable. However, I am not satisfied that the plaintiff's contest of the motion has been unreasonable. The plaintiff has succeeded in having the motion dismissed. Clearly the plaintiff's conduct in that respect is not of a kind which merits any criticism.

52 In those circumstances I am not prepared to order costs be paid on an indemnity basis.

53 The defendant seeks an order that the costs be paid to them forthwith. The first defendant points to the fact that she is uninsured and has had to go to a great deal of expense to prepare the motion and to instruct her lawyers to appear and prosecute it which was, she submits, an entirely reasonable thing to do.

54 There is some suggestion from the bar table that the plaintiff would have difficulty paying costs forthwith and that he may have to make an election between receiving treatment and paying costs. It is unsatisfactory that the disposition of such an important issue be left with statements from the bar table.

55 In the circumstances, it is appropriate to stand over the motion insofar as it seeks the costs be payable forthwith and I will give the defendants the opportunity of providing evidence as to what their costs are. I will give the plaintiff an opportunity for providing evidence as to whether or not they say costs can be met. If the defendants wish to maintain their application for costs to be payable forthwith it can be listed at a future time.

56 The formal orders I will make are:

(1) The amended notice of motion of the first defendant filed 15 February 2013 be dismissed.

(2) I order the plaintiff to pay the first defendant's costs of the motion on the ordinary basis.

(3) I stand over the application for costs to be payable forthwith.

(4) The notice of motion of the second defendant filed 17 December 2012 be dismissed

(5) I order the plaintiff to pay the second defendant's costs of the motion on the ordinary basis.

(6) I stand over the question as to whether those costs ought be payable forthwith.

(7) I order the plaintiff to serve on the defendants on or before 4pm, 8 March 2013 the interrogatories which he wishes them to answer.

(8) I order that the defendants notify the plaintiff whether they oppose answering any of the interrogatories by 4pm 22 March 2013. If the defendants do not oppose answering the plaintiff's interrogatories, I order that such answers be served by Friday 4pm, 19 April 2013.

(9) If the defendants do oppose answering interrogatories, I order that the plaintiff, should it wish to administer interrogatories, file and serve a notice of motion and all affidavits in support by 4pm, 5 April 2013.

(10) I order the defendants to file all evidence upon which they rely on or before 4pm 19 April 2013.

(11) I stand the proceedings over for further directions before me and the hearing of any motion to 9.30am on Friday 3 May 2013.

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Decision last updated: 06 March 2013