Case: Van Der Velde v Ng [2009] FCA 529
Outcome: cited
the matter came before the Court on the last occasion on 15 April 2009 an order was made unopposed that the Further Amended Statement of Claim delivered at that point of the proceeding be struck out. The Court further ordered, unopposed, that the applicants file and serve any notice of motion for leave to re-plead the causes of action, by 11 May 2009. A number of orders were also made in relation to the disposition of costs arising out of various earlier notices of motion filed and agitated by particular parties. I will not repeat the content of those orders in these reasons. The orders are set out together with the reasons in support of those orders in Van Der Velde v Ng [2009] FCA 529. That judgment was delivered ex tempore on 15 April 2009. In the course of those reasons I made these observations: In relation to the first matter concerning the general conduct of the proceedings, there is an area for some, I have to say, considerable degree of criticism. Without going to the total detailed chronology of the matter, it is fair to say that Dowsett J some considerable time ago, expressed very clear concerns about the formulation of the statement of claim as originally filed, in the sense that it contained very many allegations of mixed questions of fact and law and the pleading failed to set out in a coherent and clear sequence the precise formulation of the facts relied upon by the applicants, leading to the relief that ought to be ordered by the court arising out of those facts. That is to say, the causes of action, both statutory and otherwise, were not plainly and clearly formulated. It is not uncommon, of course, in litigation for pleadings to be amended and the court recognises that as instructions are more clearly formulated and fresh matters arise it may be necessary to make amendments to a pleading. However, in this particular case the difficulty seems to me to be that there was no real focus on the imperative of reducing the statement of claim to a concise and plainly coherent document in the way Dowsett J had described. I should add that orders were made on 19 December 2008 and on 16 February 2009 in relation to this very question of the need to amend the statement of claim and, of course, those orders provide for a timeframe within which those amendments were to be made. Those orders were made with the support of the applicants. Unfortunately, those orders were not satisfied and a document was ultimately filed which was an amended statement of claim followed by a further amended statement of claim. On one of the occasions when the matter was before the court previously, I think on 16 February 2009, I made some observations in reasonably precise terms, I thought, that the statement of claim lacked the rigour and discipline and coherence that is required of a pleading according to the rules of this Court and I suggested to the applicants' advisers that it would be useful to formulate the pleading in a way which addressed the chronology of events dispersed throughout the existing amended pleading and reduced the material facts to the truly material facts properly particularised in a sequence which makes it plain that those facts, if proved, would give rise to the relief sought. Against the background of the history of the failure to formulate a coherent pleading, the Court made the orders striking out the Further Amended Statement of Claim and imposing a discipline upon the applicants' legal adviser to file any notice of motion for leave to re-plead by 11 May 2009. The notice of motion for leave to re-plead was filed on 11 May 2009 but not served on the parties to the proceeding until 20 May 2009. The application for leave is not supported by any affidavit from the solicitor for the applicants annexing a proposed further amended statement of claim. I will not describe each new proposed pleading by iterations of the word "further" in each case. On the hearing of the motion, the applicants were represented by Mr Whitten of counsel. Mr Whitten sought and obtained leave to read and file an affidavit from the solicitor for the applicants, Mr Peter Vincent Mills, sworn 20 May 2009. In that affidavit, Mr Mills explains that he is a partner in the firm representing the applicants. He says that the reasons for the failure by the applicants to file and serve a proper application supported by an affidavit exhibiting a proposed draft further amended statement of claim is the burden of his work obligations rather than any default on the part of the applicant parties to the proceeding. He says that due to those obligations, he has not been able to attend to prosecuting the proceeding since 15 April 2009. That circumstance also explains the late service of the Notice of Motion by which leave is sought. Mr Mills says by his affidavit that he provides an undertaking to the Court and the parties that the proceeding will be prosecuted "as far as it is within my power to do so, with due diligence". Mr Mills says that he has engaged Mr Whitten and has briefed counsel with certain material. Counsel has been requested to draw an amended, that is, a new statement of claim as a matter of urgency. Mr Whitten advises the Court that he was retained yesterday and having regard to his Court commitments it will not be possible for him to turn his mind, consider the issues and formulate a proposed amended statement of claim, immediately. Not unreasonably in that sense, Mr Whitten seeks a period until 22 June 2009 as a date by which these things might be done. In real effect, the proceeding will start again from 22 June 2009.