Dankers v Volunteer Maritime Rescue NSW [2023] ACTSC 395
The Supreme Court of the Australian Capital Territory has dismissed an application from a plaintiff seeking a defence to be struck out and judgment entered for the plaintiff for ‘systematic’ and ‘continuous’ non-compliance with Court orders, while providing a scathing judgment on the non-compliance.
Background
The proceedings arise from alleged damage to a vessel caused by the negligence of a towing vessel operator. The plaintiff alleges that the defendant failed to prevent the plaintiff’s vessel from colliding with an underwater object during towing.
The plaintiff commenced proceedings on 15 December 2022. On 5 June 2023, the Court made orders for any party seeking to serve a request for discovery on or before 26 June 2023. The plaintiff issued a request for discovery on 30 June 2023.
By operation of rule 607 of the Court Procedure Rules 2006 (ACT) (the CPR) a list of discoverable documents is required to be provided within 28 days from the date of the request.
The matter was before the Court again on 21 August 2023. A further order was made extending the time for the defendant to file its list of discoverable documents by 1 September 2023.
The matter returned to Court a further two times in September 2023, with a further extension being granted to the defendant to file its list of discoverable documents by 29 September 2023. That order was not complied with.
On 10 October 2023, the plaintiff filed the application to strike out the defence and have judgment entered in his favour.
The defendant subsequently sent correspondence to the plaintiff advising that there had been difficulty identifying an appropriate person to verify the list of documents and a list of documents was served on 20 October 2023.
On 30 October 2023, the Court made an order that the parties were to participate in an Informal Settlement conference before the application was heard, being by 15 December 2023. The parties did not participate in an Informal Settlement Conference prior to the application being heard.
The plaintiff’s solicitors wrote to the defendant’s solicitors, on three further occasions throughout October to December, requesting production of the relevant documents and querying the existence of further documents in the plaintiff’s possession which had not been included in the previously served discovery list.
The defendant’s solicitors, on behalf of the defendant, produced further documents on 13 December 2023 and advised that they had requested the defendant provide any of the further documents requested in their possession.
The Application
The application was made pursuant to the Court’s broad discretion, under Rule 1404 of the CPR to, among other things, dismiss a proceeding for failure to comply with a direction of the Court.
Despite the plaintiff’s assertions that further documents, which had not been disclosed in the list of documents, were in the defendant’s possession, evidence of this assertion was only produced three minutes prior to the commencement of the application. The tender of that evidence was subsequently rejected, and the strike out application proceeded on the basis that the defendant had complied with its disclosure obligation, albeit significantly later than it was required to, rather than a complete non-compliance with the Court’s orders.
The defendant provided no excuse for the ‘late compliance’ on the application.
Judgment
In his judgment, Acting Justice Curtin considered that the Court is required to turn away ‘reluctant gladiators’ by virtue of the overarching principles of the Court’s procedure (section 5A of the Court Procedure Act 2004 (ACT)). His Honour made reference to the oft-cited decision of Associate Justice Mossop (as he was then) in Crawford v Australian Capital Territory [2015] ACTSC 282 at [22]:
‘In my view, it is fundamentally important that case management directions of the Court are recognised as being orders of the Court rather than administrative suggestions that may be disobeyed if inconvenient.
‘The manner in which the solicitors for the plaintiff have addressed the plaintiff’s non-compliance with orders of the Court appears to reflect an attitude that non-compliance with the directions made by the Court is an administrative matter from which a party will be excused, that in the event of non-compliance no explanation needs to be given on oath or affirmation of the reasons for the non-compliance and that non-compliance will have few if any consequences for the defaulting party.
‘Acquiescence in such an approach by the Court fundamentally undermines the capacity of the Court to properly manage cases and puts those parties who do comply with the procedural directions of the Court at a disadvantage compared to those who do not.’
Despite the late compliance, His Honour considered, at [32], that granting the strike out would be a severe penalty that would deprive the defendant of a trial on the merits.
While His Honour considered the conduct of the defendant to have been grave, he did not consider it so grave as to deny the defendant the opportunity to defend the matter on the merits and subsequently dismissed the application.
However, His Honour was not so kind when admonishing the late compliance with discovery and the parties’ non-compliance with the Informal Settlement Conference.
His Honour, at [36], reminded parties and practitioners that they ‘should bear in mind that deliberate non-compliance with Court orders may be a contempt’ and went on to surmise the Court’s views as to non-compliance at [38] – [47], stating:
Non-compliance with the Court’s orders increase delays, increases costs to clients, increases the draw on the Court’s resources, and creates inefficiencies. All courts have limited resources, but a small court like the ACT Supreme Court is perhaps more affected by inefficiencies created by non-compliance with Court orders than larger courts.
The Court seeks the co-operation of the legal profession practising in the ACT in order to maximise the efficiency of the Court system.
An efficient court system which progresses commenced claims to hearing quickly and efficiently benefits the legal profession’s clients in terms of costs and time. Quicker, cheaper justice is unarguably better than slower, more expensive justice.
In one sense, an inefficient court system makes no difference to judges and registrars. No matter how efficient or inefficient the system is, they will always have a full workload. But the court’s real customers are the parties to proceedings, and the court’s primary concern is to provide them with a system which justly resolves their disputes according to law quickly, inexpensively, and efficiently.
….
There are many parties and legal practitioners who help the Court in that pursuit by, inter alia, complying with Court orders. They are welcome in the Court, and their efforts appreciated.
However, not all do so.
Of course, the Court understands that compliance with Court orders is not always easily achieved. Litigation is rarely easy, and many things may occur which present legitimate obstacles to practitioners and parties complying with Court orders. The Court knows and understands these things. All members of the Court were previously solicitors, or barristers, or both. The Court does not expect perfection in an imperfect world.
Nevertheless, wilful or contumelious disregard of Court orders is another thing entirely. There may be a reasonable explanation for the parties’ non-compliance with the order to conduct an informal settlement conference by the date specified, although none was proffered when I asked the parties why that order had not been complied with.
Perhaps the time has come for the Court to do more than simply admonish parties and legal practitioners when apparent wilful or contumelious non-compliance with Court orders occurs.
His Honour subsequently made orders that: the defendant pays the plaintiff’s costs of and incidental to the whole of the application on an indemnity basis; those costs are assessable and recoverable immediately; and that both parties file and serve affidavits explaining the non-compliance with the order of the Informal Settlement Conference and showing cause as to why both parties should not be cited for contempt.
Implications
The ACT Courts, in recent years, are showing less tolerance to non-compliance of Court orders and directions by parties and their legal representatives.
The judgment underscores the imperative for parties to litigation to adhere to court orders promptly, and when unable to do so due to legitimate delays, keep the Court advised.
Acting Justice Curtin’s remarks serve as a stern warning about the potentially grave consequences for legal practitioners in failing to meet their obligations.
This Case Note was written by Principal Angel Li and Senior Associate Jesse Iliopoulos. Please contact Angel if you have any questions or require further information.
Meet our Team
View our Insights