Paskin v City and Industrial Demolitions (NSW) Pty Ltd and Ors [2009] NSWSC 1027

New South Wales Supreme Court

CITATION : Paskin v City and Industrial Demolitions (NSW) Pty Ltd and Ors [2009] NSWSC 1027

HEARING DATE(S) : 25 September 2009

JUDGMENT DATE : 30 September 2009

JUDGMENT OF : Schmidt J

CATCHWORDS : PROCEDURE - courts and judges generally - judges - dismissal of proceedings for want of prosecution - self executing order made dismissing the proceedings if orders of Court not complied with by specified date - costs on indemnity basis

LEGISLATION CITED : Civil Procedure Act 2005 Uniform Civil Procedure Rules

CATEGORY : Procedural and other rulings

CASES CITED : Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 83 ALJR 951

Plaintiff - Charles Paskin PARTIES : First Defendant - City and Industrial Demolitions (NSW) Pty Ltd Second Defendant - The Council of Barker College Third Defendant - Gledhill Constructions Pty Ltd

FILE NUMBER(S) : SC 20196/03

Plaintiff - Mr G Healey, solicitor COUNSEL : First Defendant - Mr J Sewell, counsel Second and Third Defendants - Mr N Gordan, solicitor

Plaintiff - GH Healey & Co SOLICITORS : First Defendant - Rankin Nathan Lawyers Second and Third Defendants - Curwood & Partners

- 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SCHMIDT J

Wednesday, 30 September 2009

21096/03 PASKIN v CITY AND INDUSTRIAL DEMOLITIONS (NSW) PTY LTD AND ORS

JUDGMENT 1 HER HONOUR: By motion of 7 September 2009, the first defendant sought orders dismissing the proceedings for want of prosecution under Rule 12.7 of the Uniform Civil Procedure Rules 2005. The application was supported by the other defendants, but opposed by the plaintiff. 2 There was no issue between the parties as to the Court's jurisdiction to make the orders sought, or the unsatisfactory history of the proceedings. While the application for the plaintiff was that instead of the proceedings being dismissed, that they should be given a hearing date in February next year, it was apparent that the matter was not ready for hearing. Mr Healey, the plaintiff's solicitor, finally confirmed that none of the consent orders made by the Court in May 2009, had been complied with by the plaintiff. 3 That situation had to be considered against the undisputed background, that the claim concerned injuries suffered in an accident which had occurred in July 2000. Proceedings were commenced in August 2001 and related proceedings in 2003. After the plaintiff's ongoing inaction in the proceedings and repeated failure to comply with Court directions and orders, in 2006 the first defendant made the first of a number of applications to have the proceedings dismissed for want of prosecution. 4 On 13 November 2006, Barr J refused to dismiss the proceedings, taking into account the very serious injury sustained by the plaintiff, as well as psychiatric evidence of profound psychological effect on the plaintiff, and the adoption of a peripatetic lifestyle, which had resulted in his solicitor losing contact with him for a period. His Honour took the view that the position of the case was quite unsatisfactory, but while the motion had to be refused, the bringing of the motion had not been unreasonable. The plaintiff was accordingly ordered to pay the costs of the motion. 5 Still the Court's orders and directions were not all adhered to by the plaintiff. On 6 March 2007, James J dealt with a second dismissal application, which was also refused. His Honour recounted the plaintiff's repeated failures and accepted that prejudice had resulted for the defendants, but concluded that they were not such as to prevent a fair trial. The case had not been abandoned and so his Honour made further orders as to its preparation. Still, the Court's orders were not all complied with by the plaintiff. 6 On 19 June 2008, Price J dealt with another dismissal motion which was also refused, his Honour then describing the position as very unsatisfactory, resulting in various prejudice to the defendants. His Honour balanced that consideration with the serious injury suffered by the plaintiff and the fact that the statutory limitation period had then expired, with the result that a dismissal of the proceedings would thus have grave consequences for the plaintiff. His Honour took the view that this situation outweighed the powerful consideration of non compliance, but warned that the lack of due despatch of the proceedings could not be allowed to continue. His Honour ordered the plaintiff to pay costs on an indemnity basis, while dismissing the motion, but observed that: