CITATION: Elias Wakim v Joseph Chaghouri [2010] NSWLC 19

JURISDICTION: Civil

PARTIES: Plaintiff- Elias Wakim
Defendant- Joseph Chaghouri

FILE NUMBER: 11037/09

PLACE OF HEARING: Downing Centre Local Court

DATE OF DECISION: 04/19/2010

MAGISTRATE: Assessor Olischlager

CATCHWORDS: Procedure, Compliance with Case Management Orders

LEGISLATION CITED: Civil Procedure Act 2005

CASES CITED: Oliveri Legal Pty Ltd v Lohning International Pty Ltd [2004] NSWSC 987

TEXTS CITED:

REPRESENTATION: Mr Shahrouk

Ms Matyear

ORDERS: Leave granted for statement served and filed outside time to be admitted as evidence.

A preliminary issue has been raised in these proceedings as to whether the statement of Elias Wakim should be admitted in evidence on behalf of the plaintiff as it was filed and served by the plaintiff outside the standard case management order that requires parties to file and serve documents which it intends to rely on at the hearing no later than fourteen days prior to the hearing. In this instance, the matter was before the registrar on a pre-trial review in December 2009, and directions were made for the filing and exchange of statements on 5 April 2009, being fourteen days prior to today’s hearing.

It is conceded by the plaintiff that the statement of Mr Wakim was filed and served on or about 8 April 2010, which is some three days after the time-frame required by the case management orders. The defendant submits that the statements should not be admitted in evidence and relies on the decision of the Supreme Court in Oliveri Legal Pty Limited v Learning International Pty Limited [2004] NSWSC 987. In that case, the Supreme Court held that the decision of a Local Court to exclude statements not served and filed in accordance with case management directions did not constitute a denial of natural justice.

While Oliveri’s case is often cited in this court where there has been non-compliance with case management orders, it must be remembered that the decision does not provide authority to the effect that this court should exclude statements not filed and served in accordance with case management orders. Rather, it is a decision that provides authority that if this court exercises its discretion to exclude such statements from evidence, that will not, of itself, constitute a denial of natural justice. In Oliveri’s case, a party had served documents one day later than the time required for service of the case management orders and the magistrate refused to allow the documents to be admitted in evidence by reason of that non-compliance with case management orders.

It was relevant to the magistrate determining the issue at first instance that the non-compliance was by a legal practitioner who had knowledge of the requirements of the court and the possible consequences of non-compliance and that there was no legitimate excuse provided for that non-compliance in that instance. While those factors are relevant factors as to how the court should exercise its discretion, this court is mindful that Oliveri’scase was decided prior to the introduction of the Civil Procedure Act 2005. In exercising its discretion, this Court must now have regard to its over-riding purpose which is stated clearly in s 56 of the Civil Procedure Act 2005 to achieve the just, quick and cheap resolution of the issues in dispute.

This requires a court to balance the need to do justice between the parties with the need to ensure that proceedings can be dealt with expediently. Doing justice between the parties means that the court must have regard to the desire to finally determine the issues in dispute between the parties by conducting a hearing on the merits of the case as against the need for parties to have matters determined expeditiously and at cost that is proportional to the matters in dispute.

In exercising its discretion, the court has regard to a number of factors including what prejudice may be caused by the non-compliance with case management orders. The court will expect that there may be a potential for prejudice caused if a party serves documents late, in the reduced period of time available to the opposing party to be able to seek instructions and prepare submissions for today’s trial. The court is also mindful of the disadvantage that will be suffered by the non-complying party if evidence is excluded on the basis of non-compliance. In essence, the plaintiff will have no evidence to lead in today’s hearing.

Other factors which this court has regard to is the degree to which there is non-compliance with the case management order as well as the reasons provided to the court for that non-compliance. In this instance the court notes that the non-compliance with the case management order was by three days. The court considers that to be comparatively minor in terms of the degree of non-compliance. The plaintiff has provided reasons for non-compliance being difficulties due to public holidays over the Easter period which was the time at which statements were to be exchanged. Whilst the court does view non-compliance with case management orders as a serious issue, it must balance these factors when exercising its discretion.

Furthermore, the court has to have regard to the issue of whatever prejudice is raised in these proceedings by the degree of non-compliance. It has not been shown in the defendant’s submissions that a three-day delay resulted in substantial prejudice to the defendant in its ability to prepare for today’s hearing. The court notes that the plaintiff only seeks to rely on the one statement by Elias Wakim, which is three pages in length. That seems to be the entirety of the plaintiff’s evidence. This is not a case that involved voluminous evidence upon which the defendant may have required some significant period to prepare submissions.

In the circumstances of this case, the court considers that non-compliance by three days is a substantial delay. The court accepts the reasons that have been provided by the plaintiff for the non-compliance. It is of the view that there is no real prejudice caused by the failure to comply with the case management orders. Having regard to its over-riding objective to achieve the just, quick and cheap resolution of the issues in dispute, the court is of the view that it should grant leave for the plaintiff to file the statement outside of the time-frame in the case management order, and will allow the statement of Elias Wakim to be admitted as evidence in today’s hearing.