New South Wales Supreme Court CITATION : McWilliam & 2 Ors v Watson [2000] NSWSC 170 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 1536/92 HEARING DATE(S) : 25 February 2000 JUDGMENT DATE : 17 March 2000 Bruce McWilliam (First Plaintiff) Bruce Scott McWilliam (Second Plaintiff) Peter Bruce McWilliam (Third Plaintiff) PARTIES : Richard Anthony Watson (First Defendant) Phillip Gregory Davey (Second Defendant) Louis William Le Compte (Third Defendant) JUDGMENT OF : Master Harrison Mr P R Glissan (First & Second Plaintiffs) COUNSEL : Mr B Shields (Defendants) John Cunningham (Plaintiffs) SOLICITORS : Ebsworth & Ebsworth (Defendants) Morgan v 45 Flers Avenue Pty Limited (1987) 11 NSWLR 573 CASES CITED : FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) ALR 411 Cohen v McWilliam (1995-96) 38 NSWLR 476 State of Queensland v J L Holdings Pty Limited (1996) 141 ALR 353 DECISION : See para 12 6 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 17 MARCH 2000 15356/92 - BRUCE McWILLIAM & 2 ORS v RICHARD ANTHONY WATSON t/as WATSON DAVEY, SOLICITORS JUDGMENT (Vary orders) 1 MASTER: By notice of motion filed 31 August 1999 the second and third plaintiffs seek that the time of compliance with paragraph 3 of my orders dated 11 February 1998 be extended up to and including 16 October 1998; that the first plaintiff be removed as a party to these proceedings with effect as and from 27 June 1998 or alternatively such other order consequent upon the death of the first plaintiff on 27 June 1998. The second and third plaintiffs relied on the affidavit of the second plaintiff sworn 23 July 1999. The defendant relied on the affidavit of Jacqueline Louise Fredman affirmed 4 November 1999. The first plaintiff Bruce McWilliam died on 27 June 1998. The second plaintiff is Bruce Scott McWilliam and the third plaintiff is Peter Bruce McWilliam. The second plaintiff is the first plaintiff's son. 2 I refer to my reasons of 11 February 1998 particularly the portion where it was stated: "Although there certainly has been delay, mainly by the plaintiffs, I would classify it as just falling short of contumelious. I am not satisfied that the plaintiffs' delay is intentional or that they have no intention of carrying the case to trial. However, if the plaintiffs were to continue it with their tardy preparation, I may change my view. As previously stated, I cannot conclude that the plaintiffs have no cause of action and the statement of claim should be dismissed. Even though the statement of claim as currently pleaded is embarrassing and causes some prejudice to the defendant in that it does not know the substance of the case it has to meet, the proceedings should not be struck out. The statement of claim falls short of being considered an abuse of process of the court. It is my view that the plaintiffs should be given an opportunity to amend the statement of claim in order to plead properly the cause or causes of action in such a manner that the defendant can meet those claims." 3 In short I was giving the plaintiffs one last chance to comply with court directions. To this end I made self executing orders: "(1) … (2) The plaintiffs are to forward an amended statement of claim to the defendant's solicitor on or before the 6 March 1998. (3) The plaintiffs are to provide a reply to the defendant's request for particulars 21 days after receipt of the request. (4) If the plaintiffs fail to comply with either paragraphs (2) or (3) of these orders, the statement of claim is dismissed by virtue of this order. (5) …" 4 On 6 March, 1998 the plaintiffs filed an amended statement of claim in accordance with order 2. However the plaintiffs did not answer particulars in accordance with order 3. The particulars were requested on 18 May 1998. The plaintiffs were ordered to answer those particulars within 21 days from 18 May 1998, ie., 8 June 1998. They were not answered until 16 October 1998. The plaintiffs have delayed 4 months in answering the particulars in circumstances where a self executing order would and was made. The plaintiffs' reason for not complying with the order for particulars was that they were impecunious as they owed the sum of $1,200.00. In those circumstances the solicitor would not do any further work in this matter. 5 On 25 June 1998 a formal order that the statement of claim be dismissed was entered. On 21 July, 1998 the second plaintiff's brother wrote a cheque for this sum but the cheque was subsequently dishonoured. On 16 October 1998 the second plaintiff paid his solicitor a sum of $200 and on that day the outstanding particulars were answered. On 31 May 1999 the second plaintiff received a gift of the money from a friend and he used these funds to pay outstanding solicitors' and counsels' fees. However the notice of motion was not filed until 31 August 1999, a further delay of 10 months since the particulars were answered and some months after the plaintiffs were put in funds. 6 The defendants submitted firstly that there has to be finality in litigation and the plaintiffs should not be allowed to walk away from a very last chance; and secondly, that they are prejudiced because Mr Lanigan of counsel died in 1993. Mr Lanigan was retained to advise on evidence, redraft the statement of claim and to appear before Master McLaughlin on 8 February, 1990 when the Master ordered that the plaintiffs proceedings against Penthouse Publications and others be dismissed. Hence, the defendants submitted that if the proceedings go to trial they will be prejudiced by their inability to call Mr Lanigan as a material witness. It is difficult to ascertain the precise involvement of Mr Lanigan. Apparently he had some involvement in telephone conferences but it is not known if he drafted the statement of claim that met Master McLaughlin's disapproval. The solicitor acting for the defendants, gave evidence that she had not seen a proof of Mr Lanigan's evidence but she could not say with any certainty whether it existed. 7 The plaintiffs' counsel referred to Morgan v 45 Flers Avenue Pty Limited (1987) 11 NSWLR 573; FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) ALR 411; Cohen v McWilliam (1995-96) 38 NSWLR 476 and State of Queensland v J L Holdings Pty Limited (1996) 141 ALR 353. 8 It is common ground that I can make an order varying my previous order pursuant to Part 2 r 3 of the Supreme Court Rules (SCR). In Southern Cross Exploration the High Court in relation to Part 2 r 3 SCR stated: "The plain meaning of these words is very wide. The court may extend "any time" fixed by "any … order" and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. As Baggallay LJ said in Carter of the analogous English rule, it gives "very full discretionary power; indeed, I can hardly imagine a more extended discretion" (at 120). It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance." 9 Each case depends on its own facts. While the plaintiffs had periods of impecuniosity, the delay of 10 months in filing the notice of motion has not been adequately explained, when the plaintiffs would have appreciated that time was of the essence. I taken into account the previous delays as detailed in my earlier judgment. A self executing court order means what it say. It does not give an entitlement to a further extension unless there is a compelling explanation for the non-compliance. The amended statement of claim has refined the issues. It claims professional negligence by the solicitors in drafting an amended statement of claim that was dismissed by Master McLaughlin. The damages sought are payment of the amount of costs the plaintiffs paid the defendant subject to a set off and a claim for anxiety, distress and inconvenience. 10 I have also taken into account that it is a drastic step to deprive plaintiffs from having a trial on its merits, but since 1998 the defendants thought that the proceedings were at an end and to reactivate them some years later would affect their professional reputations. There must be finality to litigation. The events which the plaintiffs seek to litigate occurred in 1988, some 12 years ago. It is my view that justice is best served if the self-executing order is not varied and the plaintiffs' application is refused. One week after judgment was reserved the plaintiffs sought to re-open their case. There is apparently an explanation for the delay in filing the notice of motion. Even if there is a satisfactory explanation for that part of the delay I would not be minded to vary my previous orders. I decline to grant leave to re-open the case. 11 In relation to the order sought that the first plaintiff be removed I am reluctant to do so as there is no evidence as to the identity of the beneficiary or legal representative of the estate and whether they wish to pursue the proceedings. Secondly, the solicitor who appeared for the first plaintiff has not filed a notice of ceasing to act. In these circumstances, I decline to make such an order. The notice of motion is dismissed. Costs are discretionary. Costs should follow the event. The plaintiffs (with the exception of the first plaintiff) should pay the defendants' costs. 12 The orders I make are: (1) The notice of motion filed 31 August 1999 is dismissed. (2) The plaintiffs (with the exception of the first plaintiff) are to pay the defendants' costs. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.