Supreme Court New South Wales Medium Neutral Citation: Kelly v Harbour Radio Pty Ltd (No 2) [2013] NSWSC 1807 Hearing dates: 2 December 2013 Decision date: 02 December 2013 Before: McCallum J Decision: Plaintiff accepted to have shown cause why proceedings should not be dismissed notwithstanding repeated failure to comply with orders for discovery; plaintiff ordered to pay defendant's costs Catchwords: PROCEDURE - plaintiff called upon to show cause why proceedings should not be dismissed for repeated failure to comply with orders for discovery - where most recent default explained by failure of solicitor accurately to diarise date for compliance Category: Interlocutory applications Parties: Andrew Kelly (plaintiff) Harbour Radio Pty Ltd (defendant) Representation: Counsel: S Chrysanthou (plaintiff) S Lawrence (defendant) Solicitors: Somerset Ryckmans (plaintiff) Baker & McKenzie (defendant) File Number(s): 2011/280768 Publication restriction: None Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation commenced by Mr Andrew Kelly against Harbour Radio Pty Ltd. The proceedings come before me today as a result of my having previously made an order to the effect that, if the plaintiff failed to give discovery by 25 October 2013 (a deadline reflecting an extension of time following argument), he would need to show cause why his action should not be dismissed. 2The circumstances in which an order in those terms was made are set out in the affidavit of Ryan James Grant affirmed 1 November 2013. It is not necessary to recite the detail of that affidavit at this stage except to note that it records circumstances which I thought plainly warranted the making of an order in the terms to which I have referred. I was satisfied when making that order that a failure to comply with the extended timetable would be capable of amounting to circumstances in which the Court would exercise its discretion pursuant to rule 12.7 of the UCPR to dismiss the proceedings for the plaintiff's failure to prosecute his action with due despatch. 3The plaintiff failed to give discovery by 25 October 2013. Discovery was given on 1 November 2013. 4Two issues need to be addressed in respect of that event. The first is that there is before me an affidavit sworn by the solicitor for the plaintiff, Ms Bosniak, in which she states that she had diarised 1 November 2013 as the due date for discovery. That is surprising since, to my recollection, although I have not confirmed this by reference to the transcript, the date of 25 October 2013 was fixed by me after hearing from both parties and over Ms Bosniak's objection. On the one hand, that indicates that she had sought further time than was allowed by the Court. On the other hand, it makes her mis-diarising the date difficult to understand. In any event, there is on oath an explanation for the delay as between 25 October 2013 and 1 November 2013. 5The second point to be addressed is an issue raised by the defendant as to whether on its face the discovery given that date is inadequate. In particular, it is noted that the list of documents includes no documents over which privilege is claimed by the plaintiff. Mr Lawrence submitted, with some force, that the appearance of the list of documents, taken together with the evidence of his instructing solicitor as to a conversation outside Court on 4 November 2013, provides a basis for inferring that Ms Bosniak has not in the course of preparing the list reviewed the file held in respect of proceedings before the Independent Commissioner Against Corruption involving the plaintiff. 6Ms Chrysanthou resists that inference and says that the list, itself, does contain some documents evidently drawn from the ICAC proceedings. I have concluded that is neither possible nor appropriate for me to determine that dispute in the hearing today, particularly since it is a matter raised only as recently as 28 November 2013 by the defendant and the plaintiff has not had a proper opportunity to respond and to be heard as to that issue. 7I should, however, say that it does concern me to know that Ms Chrysanthou herself has not been involved in the discovery process. The matters to which Mr Lawrence has drawn my attention do appear to raise some question as to the adequacy of the process. 8However, the principal reason the matter was listed before me today was in respect of the failure to serve a list of documents within the time allowed under the order previously made by me. Whilst, as I have indicated, I was obviously persuaded that it was appropriate that the plaintiff should show cause if he failed to comply with that order, there is an explanation which is adequate, albeit one that is not very satisfactory, but one which indicates to me that the consequences of the failure to comply with the order ought probably not be visited on the plaintiff. 9Counsel for the defendant has drawn my attention to a series of earlier defaults which, in combination with the appearance of inadequacy of the discovery now made, he submitted warrant the rather draconian course of dismissing the proceedings. 10On balance I am not persuaded that is so. I think in the circumstances it would be a remedy out of portion to the default that has been established thus far. 11However, the plaintiff must clearly be on notice that any further default will be met with a sterner response on the part of the Court. 12The submissions for the plaintiff suggest that the defendant has wasted costs and Court time in bringing this application. I disagree. I think the application was plainly brought forward appropriately. I propose to order the plaintiff to pay the defendant's costs of today. ********** 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: 05 December 2013