D B Mahaffy and Associates v Mahaffy

[2013] NSWSC 1863

Supreme Court

New South Wales

Medium Neutral Citation:

D B Mahaffy & Associates v Mahaffy [2013] NSWSC 1863

Hearing dates:

12 December 2013

Decision date:

12 December 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Matter fixed for hearing 7 April 2014.

2. Defendant to file and serve all submissions supporting Further Amended Charge by 3 March 2014

3. Plaintiffs' submissions to be filed and served by 28 March 2014.

4. Plaintiff not permitted to rely on further evidence without leave of trial judge.

5. Liberty to apply on 2 days' notice.

Catchwords:

PROCEDURE - proceedings for contempt - failure of respondent to comply with further orders - directions made

Category:

Interlocutory applications

Parties:

D B Mahaffy & Associates (Plaintiff)
Jeffrey Mahaffy (Defendant)

Representation:

Counsel:
No appearance (Plaintiff)
In person (Defendant)
Solicitors:
No appearance (Plaintiff)
In person (Defendant)

File Number(s):

2010/119143

Judgment

1. These are proceedings for contempt brought by the Defendant within proceedings commenced in the Court of Appeal by the Plaintiff, D B Mahaffy & Associates Pty Ltd and Another. The respondent to the contempt charge are the Plaintiffs in the proceedings.

1. It is not necessary to detail the full history of the matter. It is sufficient to note that the matter came before Garling J resulting in a reserved judgment of his Honour on 28 March 2013.

1. The contempt charges arise out of alleged failures on the part of the Plaintiffs to comply over a long period of time with various orders made by various Courts, including this Court. Garling J considered the particular charges that were contained in the Amended Statement of Charge that was before him and determined which of those charges should be dismissed.

1. He directed the Defendant to file and serve a Further Amended Statement of Charge by 24 April 2013. The Defendant complied by filing that Further Amended Statement of Charge on 23 April 2013. The Defendant was further directed to file and serve all affidavits upon which he relied by 12 July 2013 and that was complied with. He was directed to serve a list of documents and he did that.

1. The Plaintiff, David Mahaffy, was directed to file and serve affidavits and a list of documents on or before 11 October 2013. He did not comply with either order.

1. Order 10 made by Garling J directed that if either party did not comply with any of the orders made, whether because they were not able to or otherwise, that party was to restore the matter before the Registrar forthwith and provide an affidavit setting out fully the facts, matters and circumstances to explain the non-compliance. The Plaintiff, David Mahaffy, failed also to comply with that order.

1. The matter came before the Registrar again on 18 October when there was no appearance by the Plaintiff.

1. When the matter was again listed on 15 November 2013 a solicitor, Mr Watson, appeared for the Plaintiff. The Registrar directed that any solicitor appearing for David Mahaffy was to file a Notice of Appearance before any future appearance on the next occasion. No such Notice of Appearance has been filed.

1. David Mahaffy was also directed to file an affidavit in respect of his medical condition by 29 November. If he had not complied with that order the matter was to be referred to the Duty Judge when the matter came back again on 12 November. There was no compliance and the matter was referred to me.

1. An e-mail was forwarded on 9 December 2013 to the Registrar by David Mahaffy attaching an affidavit which purportedly complied with the Registrar's direction. No real explanation was provided in that affidavit about why the affidavit was not filed and served by 29 November as had been directed.

1. Given the time that the Plaintiff, David Mahaffy, has had to comply with the orders made by Garling J for the filing of evidence in the proceedings, and because of the inadequacy of the explanation provided for his failure to do so, in my opinion David Mahaffy should not be permitted to rely upon any evidence not already filed by him in relation to the hearing without the leave of the Trial Judge.

1. I have, however, made directions for the filing of submissions which includes submissions to be filed on behalf of David Mahaffy.

1. I note that the matter is fixed for hearing on 7 April 2014. Without seeking to bind the Trial Judge on that occasion or any Judge before whom the matter comes in the future, the material that has been provided to me tends to suggest unwarranted and unjustifiable delay on the part of the Plaintiffs in preparing this matter for hearing and complying with orders already made.

1. Garling J not only gave the Plaintiffs the opportunity to come back to Court if they could not comply with his orders but directed that they do so. There has been an entire failure in that regard which gives rise to the strong suspicion that the Plaintiffs are simply not giving the proper attention to this matter in the hope that it will be delayed or go away.

1. In my opinion the matter should proceed to a hearing on 7 April 2014.

1. I will grant liberty to the parties to apply on two days' notice to the Duty Judge.

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