C & F Development Co Pty Ltd v North West Regional Health Authority

[1990] TASSC 143

Serial No B66/1990
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            C & F Development Co Pty Ltd v North West Regional Health Authority   [1990] TASSC 143; B66/1990

PARTIES:  C & F DEVELOPMENT COP PTY LTD
  v
  NORTH WEST REGIONAL HEALTH AUTHORITY

FILE NO/S:  69A/1990
DELIVERED ON:  17 October 1990
JUDGMENT OF:  Green CJ

Judgment Number:  B66/1990
Number of paragraphs:  5

Serial No B66/1990
List "B"
File No 69A/1990

C & F DEVELOPMENT CO PTY LTD
v NORTH WEST REGIONAL WATER AUTHORITY

REASONS FOR JUDGMENT  GREEN CJ

17 October 1990

1. By writ dated 1 August 1979 the plaintiff claimed $45,091.54 plus interest for professional services rendered and work done by the plaintiff for the defendant pursuant to an agreement. The agreement contained a clause which obliged the parties to refer any disputes under the agreement to arbitration. On 14 March 1980 pursuant to that clause the Master ordered that the proceedings in the action be stayed. An appeal against that decision was dismissed. On 25 May 1990 upon the plaintiff's application the Master ordered that that stay of proceedings be removed. This is an appeal against that decision.

1. The only evidence before me comprises the contents of an affidavit sworn by a director of the plaintiff Mr R M Foster and his cross examination upon that affidavit. That evidence provides a detailed history of the steps taken by the parties and their solicitors in relation to this action and in relation to another dispute which arose between them and which was eventually determined by arbitration in 1986. In summary it appears that from 1980 until 1983 the defendant made some attempts to advance the arbitration but that from then until 1988 neither party took any steps to that end. On 21 October 1988 the defendant informed the plaintiff by letter that it was of the view that the arbitration had "long since been abandoned" and that the plaintiff's claim was statute barred. On 4 October 1989 the solicitors for the plaintiff gave the defendant notice requiring it to concur in the appointment of an arbitrator. By letter dated 13 October 1989 the defendant by its solicitors denied that the dispute had ever been referred to arbitration and in the alternative expressed the view that if the dispute had been referred to arbitration that arbitration had been abandoned. The defendant's solicitors also said that if any application to remove the stay of proceedings were made it would be resisted and that an application for an order that the plaintiff's action be dismissed for want of prosecution would be made.

1. In exercising my discretion I am actuated in particular by the following considerations:

1One of the conditions which had to be satisfied before the 1980 order staying these proceedings could have been made was that the defendant was ready and willing to arbitrate. The defendant is not now and for some considerable time has not been ready and willing to arbitrate and thus the basis for the grant of the stay has disappeared. As the plaintiff is prima facie entitled to have his action heard the foregoing considerations persuade me that unless there are other good reasons to the contrary the plaintiff is entitled to have the stay removed.

2I do not accept the defendant's submission that the exercise of my discretion should involve substantially the same considerations as those which I would be required to take into account if this were an application to dismiss the action for want of prosecution. In the event of such an application being made the defendant would carry the burden of persuasion and I think that it would be unjust to virtually transfer to the plaintiff the burden of showing why the action should not be dismissed for want of prosecution when in fact the defendant has chosen not to make such an application. There may be cases in which a court might properly be persuaded that it should refuse to remove a stay of proceedings because it is satisfied that it would be futile to order that the stay be removed because it is inevitable that an application to dismiss the action for want of prosecution would be successful but I am certainly not satisfied that that is the situation in this case.

3To the extent that the delay in prosecuting the claim is relevant I take into account the following:

3.1The plaintiff was precluded by the 1980 order from prosecuting the action.

3.2Mr Foster explained that the initial delay in advancing the arbitration arose out of his belief that the solicitors for the parties had agreed that the determination of this claim should be postponed until the determination of the other dispute. It has not been shown that Mr Foster did not genuinely hold that belief.

3.3The defendant has not made any application to the court or taken any other steps with a view to advancing the arbitration.

3.4The defendant has not tendered any evidence.

3.5There is no basis upon which I could be satisfied that the delay has occasioned the defendant any specific prejudice.

4The granting of this application will not preclude the defendant from applying to have the action dismissed for want of prosecution.

1. I am satisfied that it was just in all the circumstances to order that the stay be removed.

1. The appeal is dismissed.