Supreme Court New South Wales Medium Neutral Citation: Uber BV v Howarth [2016] NSWSC 977 Hearing dates: 13 July 2016 Date of orders: 13 July 2106 Decision date: 13 July 2016 Jurisdiction: Equity Before: Kunc J Decision: Defendant to pay plaintiffs' costs of motion; proceedings referred for hearing date to be fixed Catchwords: PRACTICE – Cross-claim struck out – Defendant fails to propound proposed amended cross-claim after extended opportunities to do so – Plaintiffs entitled to have proceedings fixed for hearing Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Consequential orders (other than Costs) Parties: Uber BV (first plaintiff) Uber Australia Pty Limited (second plaintiff) Russell Howarth (Defendant) Representation: Counsel: B. McClintock SC (plaintiffs) Solicitors: Hanna Legal (plaintiffs) Russell Howarth (defendant – in person by phone) File Number(s): 2015/192725 Publication restriction: No EX TEMPORE Judgment 1. HIS HONOUR: These proceedings were commenced by the plaintiffs ("Uber") against the defendant ("Mr Howarth") by Statement of Claim filed on 27 July 2015. Mr Howarth filed a defence on 7 August 2015. When Mr Howarth filed his defence he also filed a cross-claim. 2. At the time there was some urgency perceived in relation to the proceedings, which were fixed for hearing before Sackar J. 3. When the proceedings came on for hearing before Sackar J, Senior Counsel for Uber drew to his Honour's attention what, for present purposes, I will describe as technical difficulties arising from the form of relief sought in Mr Howarth's cross-claim. The hearing before Sackar J was vacated so that Mr Howarth could have an opportunity to take steps to regularise the matters that had been drawn to attention. He did not do so. 4. This led to Uber filing a motion on 8 February to 2016 for Mr Howarth's cross-claim to be struck out. Some weeks ago that motion came on for hearing before me. 5. Putting the now somewhat extended interlocutory history before me in the shortest form possible, the Court has now acceded on more than one occasion to Mr Howarth's requests for more time in order to put on an amended cross-claim. On the last occasion he produced a document, although not in proper form, that he invited the Court to deal with as an amended cross-claim. In doing so he accepted that it was appropriate for his cross-claim to be struck out. That order was made. The short reasons for that order were that the original cross-claim was directed to a statutory regime that no longer applied and that there were serious difficulties with Mr Howarth's standing to bring the claim, not least because he is an undischarged bankrupt. 6. On the last occasion when Mr Howarth propounded what he invited the Court to treat as his amended cross-claim, further difficulties became apparent with that document. I was minded to give Mr Howarth one last chance to see if he could replead the document in a form that would survive challenge. Mr Howarth has not done so. Instead, several days ago, he contacted Uber's solicitors by email (copied to my Associate) to indicate that he wished the matter to go to mediation. My Associate responded that any such application would be considered when the matter came back before the Court today. 7. Quite apart from having foreshadowed the application for mediation, the correspondence that passed between the parties and my chambers concerning today's appearance put beyond doubt that Mr Howarth knew that the matter was back before the Court today. It was listed for 9.30am. 8. Mr Howarth had not appeared by 9.30am. I am informed that several unsuccessful attempts were made by Mr Jools, a person associated with Mr Howarth who has been attending these proceedings with him, to contact Mr Howarth. I waited until 10.00am, at which time Mr Howarth was called outside the Court. There was no appearance. 9. I am satisfied that Mr Howarth has been given every opportunity to reframe his proposed amended cross-claim. Having regard to s 56 of the Civil Procedure Act 2005 (NSW) (the "Act") and the ordinary requirements of natural justice, it is important that any party, and in particular an unrepresented party, should be given a fair opportunity to present whatever case that party wishes to make to the Court. However, those opportunities are not to be endless. The opposing party, which is Uber in this case, is also not to be deprived of its entitlement to a prompt hearing by reason of indulgences continually being extended to a litigant in Mr Howarth's position. 10. At this point of my delivery of these ex tempore reasons, Mr Howarth telephoned Mr Jools (who was sitting in Court) and we were able to continue the hearing with Mr Howarth participating via mobile telephone. Mr Howarth indicated that he was very unwell and that he thought that he would be going to hospital during the course of the day. The origins of his physical difficulties seem to be what he said was an assault which he suffered on Sunday night. He described his difficulties as "ongoing", the significance of which I did not quite understand. 11. However, Mr Howarth was given an opportunity to press his application for mediation. He indicated that he was prepared to reach a negotiated settlement of these proceedings and that, therefore, it was appropriate for the matter to be referred to mediation. 12. Mr McClintock of Senior Counsel, for Uber, opposed that course. He said that, as far as his client was concerned, two things had to happen. First, on the strength of correspondence which I was shown, his client had made it clear to Mr Howarth that the ball was in Mr Howarth's court to make an offer. That had not been done. Second, Mr McClintock submitted that his instructions were that in order for any offer to be considered by his clients, it had to include an agreement by Mr Howarth to cease to arrest or attempt to arrest Uber drivers again. 13. It is not for the Court to descend into the negotiations between the parties. The Court is confident that both parties, and in particular Uber, represented by solicitors and eminent senior counsel, understand their obligations under s 56 of the Act as to the just, quick and cheap resolution of the proceedings so that serious consideration must be given to any offer of settlement. I have no doubt that will occur should Mr Howarth make such an offer. 14. However, given the delays that have taken place since the hearing before Sackar J was vacated, delays not attributable in any adverse way to the conduct of any of the parties but rather to the working out of the processes of the Court in listing and hearing Uber's notice of motion, the Court is of the view that no further delay ought to be occasioned by the making of an order for mediation. Nor is there any utility in making such an order while also setting the matter down for hearing. This is clearly a case where, if the parties wish to negotiate, they are in a position to do so. It seems to me desirable that any negotiations, if there are to be any, should take place against the background of a hearing date having been fixed. 15. For these reasons the Court will dismiss Mr Howarth's application for the matter to be referred to mediation and accedes to Uber's application that the proceedings be referred to the Registrar for the fixing of a hearing date. 16. The final matter concerns the costs of Uber's notice of motion. 17. Mr McClintock sought his client's costs of that motion. The usual position is that costs follow the event and it is the case that Mr Howarth's cross-claim has been struck out. Furthermore, despite having been given more than one opportunity to do so, Mr Howarth has failed to propound a proposed amended cross-claim, whether or not in proper form, which on its face discloses an arguable cause of action. 18. I gave Mr Howarth the opportunity to be heard against the application for costs. Mr Howarth indicated that he did not feel well enough to respond. He said that he would, on the next occasion, respond to that application by informing the Court of the details of what he described as the predicament in which he now found himself. Those details, which I understood referred to his current indisposition, are entirely irrelevant to the question of whether or not Mr Howarth should pay Uber's costs of the notice of motion. There is no point in adjourning the matter again to enable Mr Howarth to address on the question of costs because I cannot imagine there is anything that he could say that would avoid costs following the event. That will be the order as to costs. 19. The Court's formal orders are: 1. The defendant pay the plaintiffs' costs of their notice of motion filed 8 February 2016. 2. The proceedings are stood over to the Registrar's list on Wednesday 20 July 2016 for the fixing of a hearing date. ********** 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: 14 July 2016