Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Crossman v Macquarie Leasing Pty Ltd [2013] NSWCA 62 Hearing dates: 22 March 2013 Decision date: 22 March 2013 Before: McColl JA Decision: 1. Dismiss the notice of motion. 2. Appellant to pay the respondent's costs of the notice of motion. 3. Direct the appellant by 5pm today to forward to the respondent appropriately numbered for sequential inclusion in the Black Book the transcript of the hearing before the primary judge of 31 October 2011. 4. Direct the appellant by 5pm today to forward to the respondent's solicitors, if appropriate, an amended index to the Blue Book identifying those documents which ought properly be before the Court on the appeal having regard to the identity of the parties and the issues raised by the notice of appeal. 5. Note that the respondent may, if it wishes, make any amendments to its submissions by way of cross reference to either the Blue, Black or Red Book by handwritten annotation and may hand those to the Court on the date fixed for hearing of the appeal. 6. Direct that, if necessary, the respondent may hand up any supplementary chronology to the Court when the matter is called on for hearing on 26 March 2013. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - civil - notice of motion seeking dismissal of appeal pursuant to s 61 of the Civil Procedure Act 2005 - where appellant failed to comply with Court's directions and Part 51 of the Uniform Civil Procedure Rules - whether dictates of justice under ss 56 - 58 of Civil Procedure Act 2005 warrant dismissal of appeal Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules Cases Cited: Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 Category: Procedural and other rulings Parties: Barry Ian Crossman - Appellant Macquarie Leasing Pty Ltd - Respondent Representation: Counsel: J Loofs - Appellant E Glover - Respondent Solicitors: Mahony Law - Appellant Douros Jackson - Respondent File Number(s): 2012/72186 Publication restriction: No Decision under appeal Date of Decision: 2011-12-06 00:00:00 Before: Sorby DCJ File Number(s): DC 2010/115816 EX TEMPORE Judgment 1This is an application by notice of motion filed on 15 March 2013 for an order pursuant to s 61(3) of the Civil Procedure Act 2005 (the "Act") that the appeal be dismissed for failure to comply with the directions of the Court, for non compliance with Part 51 of the Uniform Civil Procedure Rules, and, in the alternative to the application pursuant to s 61(3), for a dismissal for want of prosecution. 2The appellant, Mr Crossman, was the defendant in proceedings in the District Court in which the respondent, Macquarie Leasing Pty Ltd, alleged that he had guaranteed a commercial hire purchase agreement with the company Graphfix Plus Trade Pty Ltd. The appellant defended the proceedings on the basis that he had not executed the guarantee, a defence which the primary judge dismissed in his judgment of 6 December 2011. 3On 22 December 2011 the appellant filed and served a notice of intention to appeal. The notice of appeal was filed on 5 March 2012. The matter was listed for directions on 9 May 2012 on which occasion the court ordered the appellant to file and serve his written submissions and appeal books by 4 July 2012. The appellant failed to comply with that order. On 6 August 2012 the respondent filed and served a notice of motion to strike out the appeal due to the appellant's failure to comply with the orders of 9 May 2012. 4On 7 August 2012 Mahony Taren Lawyers, who were then acting for the appellant, wrote to the respondent's solicitors referring to the notice of motion and advising that it had been necessary for the appellant to obtain funding by way of a second mortgage in order to be able to prosecute the appeal, that that funding had been recently obtained, that counsel had been put in funds and had been instructed to draft submissions in the matter. Counsel's advice was that those submissions were being prepared and should be completed by 10 August 2012. The letter also advised that the firm anticipated having the Red Book completed by 10 August 2012. 5On 8 August 2012 the Court ordered the appellant to file and serve his submissions and the Red Book by 10 August 2012. Both orders were complied with. On 13 August 2012 the respondent's notice of motion was dismissed with costs in its favour and the appeal was listed for hearing on 26 March 2013. 6On 13 August 2012 the Court forwarded to the respondent's and the appellant's solicitors a timetable for filing and serving the outstanding volumes of the appeal books, written submissions and chronologies. Relevantly that timetable required the appellant to file and serve his chronology and any amended submissions by 15 January 2013 and serve all required appeal books of whatever colour by the same date. The respondent was required to file and serve any alternative or supplementary chronology and any amended submissions by 29 January 2013. The appellant was required to file all required appeal books including the Orange Book, by 26 February 2013. 7On 29 August 2012 the Court ordered the respondent to file and serve its written submissions by 31 October 2012 and the appellant to file and serve submissions in reply by 30 November 2012. 8On 13 August 2012 Mr Mahony, who had had carriage of the matter on behalf of the appellant in his capacity as a principal of Mahony Taren Lawyers, ceased to perform that role, which was then assumed by a solicitor in the employ of that firm. 9On 23 August 2012 the respondent served a bankruptcy notice on the appellant seeking to enforce the judgment. On 16 October 2012 those proceedings were, by consent, stood over until after the determination of the appeal. 10On 19 October 2012 the respondent's solicitors wrote to the appellant's solicitors seeking copies of the transcript of the District Court proceedings. The appellant's solicitors responded advising that they did not hold a copy of the transcript and stating that if the respondent's solicitors intended to acquire a copy they would be happy to share the costs. That letter reveals an unfortunate absence of familiarity with the file by the solicitors then handling the matter. It is apparent from Mr Mahony's affidavit of 18 March 2013 that at the time of the District Court hearing the parties had agreed to share the costs of obtaining the District Court transcript. On or about 26 October 2011 which was five days prior to oral submissions being made to the primary judge, those solicitors wrote to the appellant's solicitors noting that the transcript had previously been provided to their office and attaching a tax invoice for their proportion of the cost of obtaining it, which was duly remitted on 31 October 2011. Another tax invoice apparently for the final day of the hearing of 31 October, on which oral submissions were made, was also apparently forwarded by the respondent's solicitors to the appellant's solicitors and was marked "paid". 11In September 2012 a manager was appointed to the firm Mahony Taren Lawyers. 12On 24 October 2012 the appellant's solicitors advised him by letter that they would not be able to undertake the work required to present his appeal, including briefing counsel, until his existing account was settled and funds for anticipated costs were received in time to retain counsel. 13On 13 November 2012 the respondents served their written submissions which, I note, contained copious references to the District Court transcript. 14On 22 February 2013 the respondent's solicitors wrote to the appellant's solicitors asking for a copy of the Black Book and the appellant's submissions in reply. The Black Book was filed on 11 March 2013 and served on the respondent on 14 March 2013. 15On 15 March 2013 when Mr Francis swore his affidavit in support of the notice of motion, the appellant had not served any reply submissions or the Blue or Orange Books and, as the affidavit noted, had been late in filing and serving the Black Book. 16Mr Mahony said in his affidavit of 18 March 2013 that, as at that date he had provided all necessary documents to Law In Order for preparation of the Blue and Orange Books. Both of those Books have now been filed and served although it appears that Ms Glover, who appears for the respondent, has not yet seen the Orange Book. 17Mr Mahony left the employ of Mahony Taren Lawyers on 22 February 2013. On 13 March 2013 he forwarded to the Court a notice of change of solicitor confirming that the appellant had appointed him to act on his behalf in the proceedings. 18Mr Mahony sought to explain the delay necessarily admitted in the appellant's failure to comply with the directions of the Court as being caused by a combination of factors, which he suggested were outside the appellant's control. These included the depletion of his funds to prosecute the appeal, which he submitted was caused by the cost of defending the respondent's attempts to enforce its judgment despite the filing of the appeal and the failure of the appellant's former solicitors to make it clear to him that they were no longer representing him and that he should seek other representation to ensure that the Court's directions were complied with. He said that he was prepared to prosecute the appeal without the appellant putting his firm into funds in advance. 19Mr Loofs, who appears for the appellant, submitted that the respondent had not been prejudiced by the failure to comply with the Court's directions. Ms Glover identified a number of factors as demonstrating why that proposition was erroneous. The first was inability to be able to use time apparently previously set aside for the preparation of the appeal; secondly, the necessity to prepare amended submissions cross referenced to the late served Blue and Orange Books. Insofar as the Blue Book is concerned, she also observed that to the extent that she had been able to examine its contents in the time afforded since its receipt it appeared to contain material which either was not in evidence before the primary judge or otiose because it related to proceedings against other defendants which are not the subject of appeal. 20In her written submissions Ms Glover submitted that the dictates of justice referred to in s 58 of the Act required the appeal to be dismissed because of the complete lack of expedition on the appellant's part in its prosecution. In addition to the matters to which I have already referred she noted that the Black Book was incomplete because it omitted the transcript of 31 October 2011. She also complained that no chronology had been filed and served. That chronology, I am informed by Mr Loofs, is set out in the Orange Book. 21Ms Glover also pointed out that despite the letter the appellant's solicitors forwarded to him on 24 October 2012 regarding the work required to be undertaken to prosecute the appeal, he took no steps and it was not apparent that he responded to that letter at all. Ms Glover further submitted that the appellant was in breach of his duty under s 56(3) of the Act and that there was no explanation for the delay which demonstrated that the appellant was under a misapprehension or made any mistake or error. Accordingly she contended the Court should infer that his conduct was deliberate and undertaken in full understanding of the requirements of the Court's rules, such that it would warrant dismissal of the appeal consistent with the overriding purpose reflected in s 56 of the Act and the underlying policy of s 61. 22Mr Loofs, in essence, submitted that the outstanding books have now been prepared and made available, that the appellant's difficulties stem from his impecuniosity and the unfortunate hiatus in legal representation brought about in part by, I infer, the difficulties in the firm of Mahony Taren Lawyers, which in due course led Mr Mahony to set up his own firm recently. 23The requirements brought about by s 56 to s 61 of the Act are well known. They were expressed in Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230 ("Hans Pet") (at [36]) and following. To quote Acting Chief Justice Allsop, as his Honour then was, those provisions brought about: "A new statutory balance among various factors in litigation including court and party efficiency and the delivery of individual justice. Delay and case backlog are not merely factors affecting the public cost of delivering justice, they corrode the ability of the courts to provide individual justice." 24However, it is relevant to bear in mind at all times that in deciding whether to make any order or directions for the management of proceedings, which in the present context includes, in my view, an order dismissing the proceedings pursuant to s 61(3), the Court is required to act in accordance with the dictates of justice, which include the requirement to have regard to the provisions of s 56 and s 57. 25Section 56 of course emphasises the duty of parties to civil proceedings to assist the Court to further the overriding purpose of the just, quick and cheap resolution of the real issues in dispute in the proceedings, while s 57 emphasises the necessity for courts to have regard among other factors to the objectives of the just determination of the proceedings, the efficient disposal of the business of the Court and the timely disposal of proceedings at a cost affordable to the respective parties. 26Section 58(2) entitles the Court, in determining the dictates of justice in a particular case, to have regard to the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, the degree to which any lack of expedition has arisen from circumstances beyond the control of the respective parties and the degree of injustice that would be suffered by the parties as a consequence of any order or direction. 27In Hans Pet, Acting Chief Justice Allsop pointed out (at [46]) that "the power to strike out pleadings for default ... is not intended to be used to punish the litigant. The proportional use of the powers in s 61 is brought about by giving the fundamental weight to the (sometimes competing) considerations" to which I have referred, bearing in mind the considerations in s 58(2)(b). 28There is no doubt that the appellant has failed to comply with the Court's directions as to the preparation of this appeal on a number of occasions. The first period of default is that up to 10 August 2012 when he failed to comply with the directions of 9 May 2012 concerning the service of written submissions and then again failed to comply with an order of 11 July 2012 to file written submissions by the commencement of August. It was then apparently necessary for the respondent to take out a motion to strike out the appeal to stir the appellant into action a week or so later, first advising as to what was suggested to be the reason for the delay, namely the necessity to raise funds, but secondly, explaining that the Court's orders would be shortly complied with. They were. The Red Book and written submissions were, as I have said, filed and served by 10 August. 29Thereafter, little or nothing appears to have happened on the appellant's side of the record until this year. In the meantime the respondent prepared its written submissions in November. Then it must be said, despite the fact that the next steps on the appellant's part were required to be undertaken by 15 January 2013, the respondent did not re-agitate the matter itself until 22 February 2013 when it wrote to the appellant seeking the Black Book. 30The reference to the period which passed, during which the respondent's solicitors did not communicate with the appellants, should not be taken as any criticism, merely as an observation that little or nothing appeared to happen on either side of the record during that period of four or so months. In the meantime it appears that there was an absence of communication between the appellant and his legal practitioners. It is not possible to draw any final conclusion as to whether that was due to some failure on the part of his solicitors to make it clear to him that they were no longer representing him in the appeal or due to his impecuniosity. 31I cannot, however, infer that it was due to a lack of concern that the appeal should be prosecuted. Once Mr Mahony was able to establish his own firm, matters appear to have proceeded apace. The Black Book was served on 13 March 2013 and while it appears it lacks a day's transcript, that is a matter which I would anticipate can be readily resolved. The Blue Book has been served and again, while it may contain otiose material, I have no doubt that that too is a matter which can be attended to reasonably expeditiously. Finally, I would note that the Orange Book has now been filed and served. 32The Court does not in any way condone delay. Nevertheless, as I have also said, the power of dismissal is not intended to be used to punish. Having regard to what I have said and the dictates of justice it is not, in my view, appropriate to dismiss the proceedings. 33However, I propose to make directions requiring the appellant by 5pm today to redress the matter concerning the missing transcript and to prepare an amended index to the Blue Book which identifies only the pages of that Book which were in evidence before the primary judge in relation to the case against the appellant. 34Insofar as Ms Glover complains of the necessity at this late stage to prepare the respondent's amended submissions, if it is of assistance the Court would, as is not infrequent in such matters, be prepared to receive a copy of the existing submissions with any annotations prepared or added in handwriting. 35The respondent has sought the costs of the notice of motion on an indemnity basis. Despite the periods of delay I have not concluded that that delay was brought about by deliberate conduct on the part of the appellant and it does not appear to me in the circumstances to be appropriate to order that he pay the costs on an indemnity basis. 36Accordingly, I make the following orders: 1. Dismiss the notice of motion. 2. Appellant to pay the respondent's costs of the notice of motion. 3. Direct the appellant by 5pm today to forward to the respondent appropriately numbered for sequential inclusion in the Black Book the transcript of the hearing before the primary judge of 31 October 2011. 4. Direct the appellant by 5pm today to forward to the respondent's solicitors, if appropriate, an amended index to the Blue Book identifying those documents which ought properly be before the Court on the appeal having regard to the identity of the parties and the issues raised by the notice of appeal. 5. Note that the respondent may, if it wishes, make any amendments to its submissions by way of cross reference to either the Blue, Black or Red Book by handwritten annotation and may hand those to the Court on the date fixed for hearing of the appeal. 6. Direct that, if necessary, the respondent may hand up any supplementary chronology to the Court when the matter is called on for hearing on 26 March 2013. ********** 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. Decision last updated: 28 March 2013