Templar v Watt (No 2) [2015] NSWSC 997

Supreme Court New South Wales

Medium Neutral Citation: Templar v Watt (No 2) [2015] NSWSC 997 Hearing dates: 19 June 2015 Date of orders: 26 June 2015 Decision date: 26 June 2015 Jurisdiction: Common Law Before: McCallum J Decision: Application to have proceedings dismissed for want of due despatch dismissed Catchwords: PROCEDURE – application to have proceedings dismissed for want of due despatch – where plaintiffs well on notice of importance of preventing further delay due to previous application – where further delay due to failure of solicitor to attend to simple administrative steps – further delay not due to any fault of the plaintiffs personally Cases Cited: Nu-Tec v Australian Broadcasting Corporation [2009] NSWSC 78 Templar v Watt [2014] NSWSC 937 Category: Procedural and other rulings Parties: Stephen Templar (first plaintiff) Audametrics Pt Ltd (second plaintiff) Phillip Watt (first defendant) Central Coast Local Health District (second defendant) Representation: Counsel: MK Rollinson (Plaintiff) S T Chrysanthou (Defendants)

Solicitors: City Attorneys (plaintiffs) Crown Solicitor's Office (NSW) (defendants) File Number(s): 2013/150908 Publication restriction: None

Judgment – Ex Tempore 1. HER HONOUR: These proceedings have an unfortunate history, part of which is recorded in my earlier judgment in Templar v Watt [2014] NSWSC 937. In that judgment, as recorded at [40], I concluded (with some equivocation) that it would be too extreme a sanction at that point to dismiss proceedings for want of due despatch as sought by the defendants. The judgment gave the clearest warning to the plaintiffs as to the need for them to prosecute the action with due despatch from that point. 2. Frustratingly for the defendants, the proceedings have continued to suffer delay since the publication of that judgment. A further application to have the proceedings dismissed for want of due despatch was heard by me last week. 3. The submissions put on behalf of the defendants on that occasion were cogent and I was on the brink of dismissing the proceedings. I formed the view, however, that the critical aspect of the delay relied upon by the defendants appeared, from the limited and unsatisfactory material before me, to fall potentially at the feet of the plaintiffs' legal representatives rather than the plaintiffs individually. 4. In particular, the principal delay since the last judgment has been the failure of the plaintiffs' legal representatives to comply with orders made by me on 17 October 2014. On that date, I referred the proceedings for mediation and directed the parties to use their best endeavours to hold the mediation by the end of November. In case the mediation was unsuccessful, I also directed the parties to approach the list clerk within two days to obtain a hearing date. 5. A mediation was held at the end of November. The result was that the parties agreed to mediate further. From that time, notwithstanding the energetic and persistent attempts of Mr Cantrell (the solicitor for the defendants) to obtain a further date for mediation and dates for hearing, the result was nil. A chronology provided by Ms Chrysanthou in support of the application sets out the many steps taken by Mr Cantrell to attempt to obtain a new hearing date. 6. The concern I had, however, was two-fold. First, the omission, although ridiculous, was confined to the failure to obtain a further mediation date and a hearing date. Secondly, it seemed to me to be something over which the plaintiffs could have no control. As the first plaintiff had not at that point served any evidence himself in respect of the application, I afforded him an opportunity for that to occur. 7. The first plaintiff has today read an affidavit sworn by him on 23 June 2015. The content of that affidavit confirms my apprehension that the failure to obtain a hearing date was a matter, in effect, beyond his control and was as ridiculous as the correspondence suggested, amounting to a persistent failure of the solicitor, in the face of many reminders, to attend to the simple administrative task of liaising with Mr Cantrell and approaching the registry for a date. Mr Cantrell's frustrations are cogent and completely understandable, and the application to have the proceedings relisted for a further show cause hearing was plainly warranted. 8. In all the circumstances, however, I am concerned at the prospect of visiting the consequences of the recent delays upon the plaintiffs individually. The Court is obliged, in considering what order to make in response to such an application, to consider alternatives to the draconian sanction of dismissing the proceedings. The critical consideration in the present case seems to be the need to bring home to the representatives of the plaintiff the measure of their responsibility for attending to those administrative tasks. For those reasons, again with some equivocation, I have reached the conclusion that an order short of dismissing the proceedings should be made. 9. The orders I make today are: 1. That the expert report be served by close of business today. 2. That within seven days of today the plaintiffs' legal representatives in co-operation with Mr Cantrell approach the list clerk and obtain a date for further mediation and a date for hearing. 3. That in the event of any breach on the part of the plaintiffs of either order 1 or order 2, the proceedings be automatically dismissed. 4. I grant leave to the defendants within 14 days to move the court to vacate the mediation order if, upon consideration of the further material served, the view is formed that there would be no utility in further mediation. 1. Ms Chrysanthou has applied for an order that the costs of the present application be paid by the plaintiffs forthwith. There is undoubtedly force in the contention that the Court should make such an order. However, having regard to the principles I considered in Nu-Tec v Australian Broadcasting Corporation [2009] NSWSC 78, the order I propose to make at this point is that the costs of the application be reserved to be determined by me after the conclusion of the proceedings by agreement or determination of the Court.