New South Wales Supreme Court CITATION : Duncan-Strelic & Ors v Tate & Ors [2010] NSWSC 444 HEARING DATE(S) : 6 May 2010 JUDGMENT DATE : 6 May 2010 JURISDICTION : Equity Division JUDGMENT OF : Palmer J EX TEMPORE JUDGMENT DATE : 6 May 2010 DECISION : Application granted. CATCHWORDS : PROCEDURE – Application seeking leave to rely upon lay evidence – whether Court will grant leave to rely upon further evidence despite earlier orders of the Court directing that no further evidence be filed on behalf of the Plaintiff – whether new material has emerged and whether the justice of the case supports the granting of leave to rely upon further evidence. CATEGORY : Procedural and other rulings Amanda Duncan-Strelic (First Plaintiff) David Strelic (Second Plaintiff) PARTIES : Dunlec Pty Ltd (Third Plaintiff) Thomas Richard Tate (First Defendant) Ruth Tate (Second Defendant) Wamego Pty Ltd (Third Defendant) FILE NUMBER(S) : SC 06/260312 COUNSEL : Ms A. Duncan-Strelec (in person) (First Plaintiff) A. Lo Surdo (First and Second Defendants) SOLICITORS : Hickey Lawyers (First & Second Defendants) 2006/260312 Duncan-Strelic & Ors v Tate & Ors JUDGMENT – Ex tempore 6 May , 2010 1 This is an application by the Plaintiffs for leave to rely upon further affidavits in the trial of this matter, which has been fixed for hearing to commence on 28 June 2010 for three days. The application is necessary because the Plaintiffs, who commenced these proceedings in 2006, were considerably in default in compliance with the Court's directions in the filing of affidavits. For example, an order was made on 15 November 2007 requiring the Plaintiffs to file and serve their evidence by 30 January 2008. That direction was not complied with. There were seven subsequent orders for the filing of affidavits, none of which were complied with. 2 The Defendants eventually applied to the Court to dismiss the proceedings for want of prosecution or failure to comply with the Court's directions. At the same time, the Plaintiffs sought leave to further file lay evidence and expert evidence by certain dates. Both applications came before White J on 30 October 2009. His Honour gave reasons for judgment on 20 November 2009. His Honour reviewed the extensive delays on the part of the Plaintiffs in filing their affidavits and the reasons given by their solicitor for the failure on the part of the Plaintiffs to comply with the Court's directions. His Honour was critical of those reasons for delay and did not regard them as justifying the grant of leave to the Plaintiffs to file any further evidence. 3 However, his Honour was not satisfied that the Defendants' application for dismissal of the proceedings should be granted. His Honour was of the view that, in all of the circumstances, justice would be done by compelling the Plaintiffs to go to trial with such evidence as they had already filed, and nothing further. 4 The application today is an interlocutory application, just as was the application before White J. It is open for me to give a different interlocutory ruling, having regard to the circumstances as they now present themselves. 5 A basis for varying the orders made by White J may be that fresh material has emerged which casts the matter now in a different light, or else some explanation has been given for delay which was not adequately put before his Honour. It is the latter circumstance upon which the Plaintiffs now rely. 6 Ms Duncan-Strelec appears on behalf of both herself and her husband to make this application. Ms Duncan-Strelec is not a lawyer. She has given evidence in an affidavit that she and her husband have been separated for some considerable time, although the separation is amicable, and they are working together co-operatively in prosecuting their claim against the Defendants in these proceedings. 7 Ms Duncan-Strelec deposes that, contrary to the suggestions made in the affidavit put before the Court by the Plaintiffs' solicitors in the application before White J, she was not advised that the Plaintiffs were in serious default of the Court's timetables and that there was a real risk that the Court would disallow further evidence. She says that, in short, she was not apprised of the seriousness of the situation by the time that the matter came before White J for hearing. 8 Mr Lo Surdo of Counsel, who appears for the Defendants, says that I should not accept this evidence and that I should, rather, accept the explanations given by the solicitor in her affidavits filed in the application before White J, and that I should have regard also to the fact that Mr Strelec has given an affidavit in that application to some extent confirming the evidence of the solicitor. Nevertheless, he has not sought to cross examine Ms Duncan-Strelec on her present affidavit, although he had the opportunity to do so. 9 I am of the view that there is a considerable basis to believe that Ms Duncan-Strelec has always been anxious to prosecute these proceedings with vigour. Having heard from her today, I am of the view that she demonstrates firm conviction in the justice of her cause. If it had been directly brought to her attention throughout 2008 and 2009 that the success of her proceedings was in jeopardy because of failure to comply with the Court's directions, I think it unlikely that she would have taken no action to ensure the proceedings were prosecuted diligently. 10 I think that some of the difficulty which has obviously been encountered by the Plaintiffs' solicitors in the preparation of evidence in accordance with the Court's directions has arisen from the fact that the Plaintiffs have been estranged. As I say, while there is apparently no hostility between them, nevertheless, they seem to have gone their separate ways in life, and it may well be the case that there has not been that degree of communication between the Plaintiffs, and between both Plaintiffs and their solicitors, that one would expect if the Plaintiffs had been in constant communication with each other or the solicitors had been in constant communication in an equal degree with both Plaintiffs. 11 In the result, it seems to me that I have to balance the interests of upholding the integrity of the Court's orders and directions, particularly as to compliance with timetables, with the requirements of justice to both the sides. That means that the Defendants have to have the earliest possible trial and should not be unduly prejudiced by having to meet evidence at a very late stage. It also means that the Plaintiffs should have a fair opportunity of presenting such case as they wish. 12 Balancing those competing interests is never an easy task. I bear very much in mind that the matter has been set down for hearing at the end of June, so that there is still some time for the Defendants to meet the evidence which the Plaintiffs now seek to lead. I think that the best way of accommodating the various competing interests is to ensure that the trial goes ahead and that it is manageable within the three days which have been allotted to it. 13 The evidence which the Plaintiffs now seek to lead is lay evidence, and it will go to the formation, and possibly the terms of the alleged joint venture agreement between the parties. The affidavits are already filed so that the Defendants are alerted to the nature of the evidence which is to be adduced from these witnesses, even if the affidavits are in themselves technically deficient in terms of compliance with the rules of evidence. 14 The fact that the affidavits may now be used does not, of course, affect in any way the rights of the Defendants to object to them at the trial, on the basis that they are inadmissible under the rules of evidence. If objection is successfully taken, the trial judge will deal with the consequences, particularly any application to adduce evidence orally. 15 I note in this regard that it appears that the Plaintiffs will be self represented at the hearing. No doubt it would be necessary for the trial judge to be somewhat flexible in the management of the trial and in the manner in which evidence is adduced, but I have no doubt that the trial judge will be firm in ensuring that, even though this additional evidence is to be allowed, it will not protract the length of the trial beyond the three days which have been allotted to it. 16 It is primarily for the purpose of ensuring that the Defendants do not suffer injustice, either by losing the trial date or by having to meet expert evidence at short notice, that I have determined that the better course is to split the issues of liability and quantum, so that if the Plaintiffs succeed in demonstrating a case for breach of contract, then the assessment of damages can be referred later. 17 I realise that this is, in most cases, an undesirable course, but I am persuaded that the interests of justice require that the Plaintiffs have an opportunity of presenting their case fully, and that means, at least at the first stage, presenting their case only on liability. 18 For those reasons, I will grant leave to the Plaintiffs rely upon the affidavits referred to in paragraph 1(a) to (f) of the Notice of Motion filed on 14 April 2010. 19 I direct that the issue of liability be determined separately from and prior to the issue as to quantum of damages, if any. 20 This application has been to obtain a further indulgence from the Court. The Defendant' costs of the application will be paid by the Plaintiffs. – oOo – 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.