FEDERAL COURT OF AUSTRALIA

Hong v Liew [2014] FCA 40

THE COURT ORDERS THAT:

Vacation of previous orders

1.    Orders 7 to 18 of the order made 27 March 2013, and the order made 19 July 2013, be vacated.

Mediation

2.    The matter be listed for mediation before a Registrar of this Court not before 15 April 2014, and not after 30 April 2014. The Registrar shall make any necessary directions in relation to the conduct of the mediation and the parties must comply. In the event the matter does not settle at mediation, the Registrar shall inform the Court as soon as possible.

Evidence

3.    On or before 30 May 2014 the Applicant file and serve:

(a)    a list of witnesses, other than expert witnesses, she proposes to call and a detailed outline of the evidence proposed to be led from each witness; and

(b)    a report of any witness from whom she proposes to lead evidence of expert opinion.

4.    On or before 30 June 2014 the Respondents file and serve:

(a)    a list of witnesses, other than expert witnesses, they propose to call and a detailed outline of the evidence proposed to be led from each witness; and

(b)    a report of any witness from whom they propose to lead evidence of expert opinion.

5.    On or before 31 July 2014 the expert witnesses for the parties confer in the presence of a Registrar of this Court in the absence of the parties and their representatives and produce for the Court a joint document setting out:

(a)    the matters on which they are agreed;

(b)    the matters on which they disagree; and

(c)    the reasons for the disagreement.

Joint List of Factual and Legal Issues

6.    By 22 August 2014 the Applicant to prepare and provide to the Respondents a list of the factual and legal issues in the matter. By 5 September 2014 the Respondents to add any further issues to this list. The Applicant to file a joint list of factual and legal issues immediately thereafter.

Agreed Template of Submissions

7.    By 12 September 2014 the Applicant to file a template for submissions that has been agreed with the Respondents, comprising a framework within which each party can set out its submissions on each of the factual and legal issues identified in the list.

8.    The template for submissions will substantially form the framework of any opening submissions to be made. The template will be added to and updated as evidence is heard, and likely varied as the positions taken by the parties change. In its updated and varied form it will substantially form the framework of any closing submissions.

9.    The Court will assume that it is only the factual and legal issues raised in the template of submissions that it is required to consider, and that the parties do not rely on any other matter.

Trial

10.    The trial date shall be fixed as soon as possible upon completion of the steps outlined in Orders 2 to 7. The date shall be set at a case management conference on 19 September 2014 before Justice Murphy.

11.    One week before the trial date then fixed the parties shall prepare an approximate timetable for the hearing, such timetable operate as a guide subject to change, and to include dates/times/cross-examination/openings etc in a table format.

12.    One week before the trial date then fixed the parties shall file:

(a)    a joint list of materials to be relied upon at trial;

(b)    a book of common documents; and

(c)    a joint book of authorities.

Self-executing order

13.    Should the Applicant fail to comply with Orders 2 to 7 the Application and Statement of Claim of the Applicant be struck out and there be judgment for the Respondents plus costs. The question as to whether these costs should be assessed on a party-party basis or a solicitor-client or indemnity basis to be determined at that time.

Other

14.    The parties have liberty to apply.

15.    The Applicant pay the Respondents’ costs of this case management conference forthwith, on an indemnity basis.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

introduction

1    The applicant has failed to comply with orders of the Court on numerous occasions. Her solicitor, Mr Peter Cooper a legal practitioner of Box Hill, Victoria, admits that the fault for these failures lies with him.

2    The matter comes before me in a case management conference because the applicant has again failed to comply with Court orders and now seeks, by consent, to adjourn the trial date fixed for 10 March 2014 on an estimate of five days.

3    In all the circumstances I have decided to allow the adjournment, but have imposed a self-executing order to dismiss the Application and Statement of Claim if she again fails to comply. I have decided that I will not refix the matter for hearing until I am satisfied that the applicant has complied with the revised pre-trial timetable.

Procedural history

4    The proceeding was commenced on 14 June 2012. On 18 March 2013 it became apparent to my chambers that the applicant had not complied with the orders relating to discovery made on 27 November 2012. My chambers wrote to the parties that same day requesting that the parties provide minutes of a proposed order to vacate the earlier order, and to provide an explanation for non-compliance.

5    Having heard the parties in a directions hearing on 27 March 2013 I made orders setting out a detailed pre-trial timetable and fixed the hearing for 10 March 2014 for five days. I ordered that the matter be referred to mediation on 27 August 2013.

6    On 15 July 2013 Moray & Agnew, solicitors for the fourth to sixth respondents, wrote to chambers seeking that the pre-trial timetable be extended and provided draft consent minutes. Mr Cooper admits that the need for this extension arose from his failure to comply with the orders. On 19 July 2013 I varied my earlier orders which meant that the expert witnesses’ conclave was moved to 18 October 2013 and the mediation was re-fixed to take place on 11 November 2013.

7    However, the parties did not file expert witness reports. Mr Cooper admits that it was the applicant’s obligations to file the first expert report, and that this did not occur because of his failure. Accordingly, on the day before the conclave was due to occur, the registry wrote to the parties advising that the conclave could not take place.

8    On or about 8 November 2013 the registry telephoned Mr Cooper to discuss the mediation listed for 11 November 2013. It appears that Mr Cooper was unaware of the scheduled mediation and he advised that his client was in rural China and could not attend, even by telephone. On that day the registry wrote to the parties stating that the mediation, fixed for three days hence, could not proceed because of the applicant’s unavailability. The registry advised that the next available date for the mediation was 18 December 2013 and the parties were to contact chambers should they wish to utilise that date. There was no response from the parties.

9    On 16 December 2013 Mr Cooper telephoned chambers and said that the parties were not ready for a mediation on 18 December 2013 because the applicant had been overseas, and also because he personally had been of ill health. Mr Cooper was informed by my chambers that the applicant was at risk of losing the trial date in March 2014 if a mediation was not held prior to trial. Mr Cooper advised chambers that the parties were going to mediation before a private mediator in January 2014. Subsequently Moray & Agnew informed chambers that there were had been no discussion regarding a mediation be held in January 2014. In any event, they advised that their clients would be unavailable in January. Mr Cooper admits that he was wrong in informing chambers that there was an agreement for a mediation to be held in January 2014.

10    On 19 December 2013 my chambers wrote to the parties listing a case management conference on 5 February 2014. The parties were advised that they were to provide to chambers an explanation for their non-compliance with orders, together with draft minutes of proposed orders. On 20 December 2013 Mr Cooper replied to chambers and the respondents stating that the non-compliance with orders was in large part due to internal issues in his office. He undertook to provide minutes of orders to the Court and the respondents by 24 January 2014.

11    Again, Mr Cooper failed to comply. Having not heard from Mr Cooper, on 31 January 2014 my chambers telephoned him and he stated that he would prepare the draft minutes over that weekend.

12    Subsequently chambers received draft proposed minutes of orders from Mr Cooper and different proposed minutes from Moray & Agnew. Mr Cooper then advised of his consent to the draft minutes proposed by the respondents. The respondents’ minutes provide for the adjournment of the trial date in March 2014 by consent, and set out a detailed interlocutory timetable for witness statements, expert witness reports, experts’ conclave and mediation. It proposes that a new date be fixed for hearing.

Consideration

13    In broad terms I have adopted the pre-trial timetable proposed by the respondents.

14    It is uncontentious that timeframes set by a court may sometimes be extended to enable a party to prepare its case fairly and fully. While this may well cause disruption, inconvenience and unfair prejudice to the other parties, on this occasion the respondents do not oppose the variations to the pre-trial timetable or the adjournment of the hearing date.

15    Case management considerations inform the exercise of my discretion in this matter. My power to manage litigation must be exercised consistently with my duty to do justice so that this dispute is disposed of in a way that is consistent with the overarching purpose in civil procedure and practice: see s 37M(1) of Federal Court of Australia Act 1976 (Cth).

16    However, the failure to comply with orders and the request for an adjournment of the hearing date is not simply a matter for the parties. The Court and the community share a legitimate interest in the effective resolution of disputes which may transcend the interests of the parties themselves where proceedings have been repeatedly and unnecessarily delayed: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 182 [5] per French CJ and at 217 [111]-[112] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

17    The applicant has a right to bring these proceedings but has a corresponding duty to prosecute them diligently. The applicant’s case has been conducted with consistent tardiness, to the detriment of the respondents, the Court and the community. In these circumstances it is somewhat surprising that the respondents have not made a complaint to the Court about this tardiness, consent to the adjournment sought, and do not seek costs.

18    However, that is not the end of the matter. Mr Cooper admits that his failures are at the root of various delays which have led to the abandonment of:

(a)    two dates set aside by registrars of the Court to conduct an experts’ conclave and a mediation. Both were required to be adjourned at late notice; and

(b)    a week set aside from 10 March 2014 for the hearing.

These dates were unavailable to other litigants who were thereby denied the opportunity of having their matters dealt with as expeditiously as they may have been.

19    While I will allow the adjournment of the hearing date I am not prepared to countenance the applicant, through Mr Cooper, again failing to comply with the orders of the Court. I will make a self-executing order dismissing the Application and Statement of Claim in the event of further non-compliance by the applicant and note that she is at risk of an order for indemnity costs in that event. I will not fix the applicant’s case for hearing again until I am satisfied that the applicant has complied with the revised pre-trial timetable. Accordingly, I will bring the matter back before me in a case management conference following completion of that timetable.

Associate:

Dated:    5 February 2014