Peter James Spencer v Australian Capital Territory [2011] NSWSC 1206

Supreme Court New South Wales

Medium Neutral Citation: Peter James Spencer v Australian Capital Territory [2011] NSWSC 1206 Hearing dates: Tuesday, 27 September 2011 Decision date: 27 September 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Application adjourned Catchwords: PRACTICE AND PROCEDURE - Defendant applies for dismissal of proceedings for want of prosecution - plaintiff said to have failed to file further evidence in accordance with direction of Court - motion has effect of inhibiting ability of plaintiff to file such evidence - inappropriate to dismiss proceedings - application adjourned and plaintiff given extension of time to file evidence. Legislation Cited: Uniform Civil Procedure Rules (2005), r 12.7 Category: Procedural and other rulings Parties: Peter James Spencer (plaintiff) Australian Capital Territory (defendant) Representation: Counsel: Mr P King (plaintiff) Ms E Glover (defendant) Solicitors: McKell's Solicitors (plaintiff) Crown Solicitors (defendant) File Number(s): 2006/260393

Judgment (ex tempore) 1HIS HONOUR: By notice of motion filed on 22 July 2011, the defendant Australian Capital Territory ('the Territory') seeks an order pursuant to Uniform Civil Procedure Rules (2005), r 12.7, that the proceedings be dismissed for want of due prosecution on the part of the plaintiff Peter James Spencer. This is at least the Territory's third attempt to bring these proceedings to a summary termination, two previous attempts having failed. 2The present default of the plaintiff arises from a set of directions made on 19 August 2009 by the Registrar, which made provision in respect of particulars, discovery and evidence. Both parties agreed to extend time in which discovery was to be given, and the defendant served its verified list of documents on 6 October 2010. The plaintiff, by letter of 15 October 2010, asked for arrangements to be made for inspection in Sydney, and on 16 December 2010 served an affidavit. Some three months later, on 17 March 2011, the defendant asked whether that affidavit constituted the entirety of the plaintiff's evidence in chief, to which a response was forthcoming on 23 March that the plaintiff would be filing additional material, including an expert's report as to damages. In the light of that information, on 18 April the Court, by consent, ordered that the plaintiff serve any affidavit evidence and any expert evidence by 30 June 2011, and adjourned the proceedings to 4 July 2011. 3Meanwhile, on 10 December 2010, the plaintiff and his solicitor had inspected documents in Sydney. However, there was difficulty in accessing the documents on a USB disk, and arrangements were made for it to be transferred to a CD format. On 28 March 2011, the plaintiff's solicitor was invited to attend to complete discovery with the hard copy documents and the CD. This was followed up with a further invitation on 14 April. The plaintiff attended and inspected documents on 21 April, and indicated a wish to do so again "in around three weeks." The defendant's solicitor's response was "I have no difficulty providing it is after 16 May 2011". 4On 4 July, the defendant's solicitor encountered the plaintiff in Phillip Street, when the plaintiff mentioned that he would like to continue discovery and could set aside a whole week to do so. The plaintiff attended for that purpose on 25 July, and inspected documents during that week. The process of inspection has now been completed. 5It was at a time when arrangements had been made for the plaintiff to attend for further discovery of the documents that, on 22 July, the present notice of motion was filed. It has been said on behalf of the plaintiff that there are questions as to certain claims for privilege and the adequacy of discovery. No motion has been filed to prosecute any such complaint, notwithstanding that there has been ample time to do so. These matters, however, do not loom large in my consideration. 6The effecting of filing the motion was to divert the plaintiff's endeavours from putting on his evidence in the substantive proceedings, to requiring him to contest the interlocutory application for summary dismissal instead. The plaintiff has indicated to the Court today that his further evidence can be filed within 28 days of today. 7Insofar as there is a default at present, it is a default in respect of a direction that the plaintiff's further evidence be served by 30 June. Although there have at times been delay, not always by the plaintiff, in the progressing of the matter towards a final hearing, the situation certainly had not been reached by 22 July 2011 that dismissal of the proceedings for want of prosecution was warranted. At that very time, arrangements had been made for the plaintiff to complete inspection of documents, with a view thereafter to completing the plaintiff's evidence. It could not begin to be inferred that the plaintiff had abandoned the prosecution of the proceedings. 8In my judgment, the situation has not been reached in which it is appropriate to dismiss the proceedings for want of prosecution. The course I propose to adopt, rather than dismissing the motion at this stage, is to adjourn it until after the 28 days indicated by the plaintiff, as the time within which his further evidence will be filed has expired. 9I extend time for the plaintiff to serve his further affidavit evidence, including expert reports, to 25 October 2011. 10I adjourn the proceedings to Tuesday 1 November 2011 at 9.30am before me, at which time I will deal with the costs of the motion.