Citation: Abram v National Australia Bank [2006] NSWSC 1409
Court: Supreme Court of New South Wales, Common Law Division
Date: 20 December 2006
Judge(s): Hall J
Background
An unrepresented plaintiff commenced proceedings in May 2000 alleging malicious prosecution against a major bank. The claim arose from contempt proceedings the bank had brought against him in 1993, resulting in a finding of guilt and a 100-hour community service order. That finding was overturned on appeal in 1995, and the plaintiff's malicious prosecution action was founded in part on the success of that appeal.
The proceedings had a prolonged and troubled history spanning more than six years, during which multiple notices of motion were filed, directions were repeatedly made and not complied with, and the matter failed to progress to trial. By mid-2006, the bank moved to have the proceedings dismissed for want of prosecution.
The court was also asked to rule on whether a consent order for trial without jury, which the plaintiff said he had been tricked into making, should be revoked.
Legal Issues
- Whether the bank's notice of motion to dismiss the proceedings for want of prosecution should be granted
- Whether the consent order for trial without jury should be revoked on the basis that the plaintiff was tricked into giving his consent
- Whether, if the proceedings were not dismissed outright, self-executing orders were appropriate to compel compliance with outstanding case management directions
Decision
Hall J declined to dismiss the proceedings outright, despite the plaintiff's long history of failing to comply with directions. The court accepted that the proceedings had not advanced as they should have but considered it appropriate to give the plaintiff a final opportunity to comply with case management obligations before imposing a dismissal consequence.
On the consent order for trial without jury, the court found that the plaintiff had not been tricked into giving his consent. The court concluded there were no extraordinary circumstances warranting revocation of that order.
Given the plaintiff's persistent non-compliance with court directions and his failure to provide any verified explanation for that non-compliance, the court determined that self-executing orders were the appropriate mechanism. Those orders required the plaintiff to identify, by 29 January 2007, the bank's officers alleged to have acted without reasonable and probable cause and with malice, to produce a list of supporting documents, to provide a document bundle, and to file all affidavits he intended to rely upon. Failure to comply with any of those requirements would result in the proceedings standing dismissed automatically.
Orders Made
- The plaintiff was required, by 4:00 pm on 29 January 2007, to lodge and serve a document identifying the bank's officers alleged to have acted without reasonable and probable cause and those alleged to have acted with malice or improper purpose, together with the grounds for those allegations.
- The plaintiff was required, by the same date, to lodge a list of documents relied upon in support of the relevant allegations.
- The plaintiff was required to provide a bundle of those documents to the bank's solicitors by the same deadline.
- The plaintiff was required to file and serve all affidavits he intended to rely upon in the proceedings by the same deadline.
- The proceedings were ordered to stand dismissed automatically upon any failure by the plaintiff to comply with the above orders.
- Leave was granted to the parties to relist the proceedings on seven days' notice.
- Leave was granted to the bank to make costs applications in respect of several earlier procedural events, including the adjournment of 27 February 2006, the plaintiff's notice of motion of 7 March 2006, the proceedings of 3, 7 and 13 March 2006, and the bank's dismissal motion of 30 June 2006.
Key Takeaways
- A court may decline to dismiss proceedings for want of prosecution while still imposing self-executing orders that will result in automatic dismissal upon non-compliance, preserving the plaintiff's right to be heard while enforcing case management discipline.
- Where a plaintiff consents to trial without jury, revocation of that consent order requires demonstration of extraordinary circumstances. An assertion of having been tricked, without sufficient basis, does not meet that threshold.
- Persistent failure to comply with directions, compounded by an absence of any verified explanation, weighs heavily against a plaintiff seeking to resist adverse case management orders.
- The tort of malicious prosecution requires the plaintiff to identify the specific persons alleged to have acted without reasonable and probable cause and with malice. The Supreme Court treated particulars addressing those elements as a baseline requirement before the matter could proceed to trial.
- Self-executing dismissal orders represent a recognised case management tool in NSW courts where a party has repeatedly failed to comply with directions and a final opportunity for compliance is being extended.
Legislation and Cases Referenced
Legislation:
- Civil Procedure Act 2005 (NSW)
- Uniform Civil Procedure Rules 2005 (NSW)
- Supreme Court Act 1970 (NSW)
- Courts Legislation Amendment (Civil Juries) Act 2001 (NSW)
Cases:
- Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
- Walton v Gardiner (1993) 177 CLR 378
- Stollznow v Calvert [1980] 2 NSWLR 749
- Sophron v The Nominal Defendant (1957) 96 CLR 469
- Witten v Lombard Australia Ltd (1968) 88 WN (Part 1) (NSW) 405
- Akins v Abigroup Limited (1998) 43 NSWLR 539
- Malouf v Malouf [2006] NSWCA 83
- State Pollution Control Commission v Australian Iron & Steel (1992) 29 NSWLR 487
- Queensland v J L Holdings Pty Ltd (1996-1997) 189 CLR 146
- Fairey v Fairey (No 2) [2000] NSWCA 173
- Kane v Wyllie [2006] NSWSC 710