Campbell v McGregor [2013] NSWSC 397

Supreme Court New South Wales

Medium Neutral Citation: Campbell v McGregor [2013] NSWSC 397 Hearing dates: 22 April 2013 Decision date: 22 April 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Unless the plaintiff approaches within 7 days to have the matter restored to the list, the proceedings are dismissed, with an order for costs in favour of the defendant, as agreed or assessed. The plaintiff must also bear the costs of today, as agreed or assessed. Catchwords: PROCEDURE - application for dismissal of the proceedings for want of prosecution - orders made - costs - reasons for decision Legislation Cited: Civil Procedure Act 2005 Category: Procedural and other rulings Parties: Ryan Campbell (Plaintiff) Glen Andrew McGregor (Defendant) Representation: Counsel: Mr IW Raine (Defendant) Solicitors: Self-represented (Plaintiff) Penmans (Defendant) File Number(s): 2012/351727 Publication restriction: None Decision under appeal Jurisdiction: 9109 Date of Decision: 2012-09-07 00:00:00 Before: Chicken LCM File Number(s): 2010/275403

Judgment 1These proceedings were commenced out of time on 12 November 2012. By amended summons filed on 17 December 2012 the plaintiff sought leave to appeal a decision of the Local Court given on 7 September 2012 out of time; leave to appeal the whole of the decision; and leave to produce new evidence. 2Today I made orders that unless the plaintiff approaches within 7 days, to have the matter restored to the list, the proceedings are dismissed, with an order for costs in favour of the defendant, as agreed or assessed. I also ordered that the plaintiff must bear the costs of today, as agreed or assessed. 3These orders were made in circumstances where there was no appearance for the plaintiff when the proceedings were listed for hearing today and the defendant sought an order dismissing the proceedings. 4It was on 27 February 2013 that the matter was listed for hearing today by the Registrar. The plaintiff did not comply with various orders which had been made as to the filing of an outline of submissions and the further evidence, in respect of which the plaintiff sought leave. 5The application for dismissal of the proceedings for want of prosecution was made in circumstances where the defendant had been unable to make contact with the plaintiff in the days leading up to the hearing; there had been no contact by the plaintiff to explain the failure to comply with the Registrar's directions; and there was no appearance at the hearing for the plaintiff. 6The defendant had complied with the direction to file written submissions on 3 April 2013. The submissions disclosed a procedural history in which the plaintiff had amended the pleadings advanced in the Local Court, as well as those advanced in this Court. Not only had judgment been given in favour of the defendant by the Local Court in September 2012, there had been an earlier award in favour of the defendant made by an arbitrator, in April 2011. In this Court the plaintiff sought an opportunity to lead yet further evidence, in circumstances where the costs which the parties have incurred, must have well surpassed the amount in issue between them. 7It was in those circumstances that the plaintiff's failure to prosecute these proceedings and the defendant's application for dismissal of the proceedings had to be considered. 8I considered that the possibility of some misadventure had to be allowed for, but otherwise the overriding purpose specified by section 56 of the Civil Procedure Act 2005, the just, quick and cheap resolution of the real issues in the proceedings, and the obligation to eliminate delay, imposed by s 60, required that the orders sought by the defendant be made. The circumstances were such that it had to be accepted that the plaintiffs had not prosecuted the proceedings, with the result that as a matter of justice, they should be dismissed. 9I declined to order costs on an indemnity basis, no departure from the usual rule that costs be awarded as agreed or assessed, having been established and the plaintiff not being there to be heard as to any misconduct. In my view a failure to prosecute the proceedings could not, of itself, provide a departure from the usual costs order. 10It was for those reasons that the orders were made.