Capricorn Society Ltd v Lucisano [No 2]
[2017] WADC 89
•29 JUNE 2017
CAPRICORN SOCIETY LTD -v- LUCISANO [No 2] [2017] WADC 89
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 89 | |
| Case No: | CIV:3714/2010 | 15 NOVEMBER 2016 | |
| Coram: | PRINCIPAL REGISTRAR MELVILLE | 29/06/17 | |
| PERTH | |||
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | CAPRICORN SOCIETY LTD NANCY LUCISANO |
Catchwords: | Dismissal for want of prosecution Practice and procedure |
Legislation: | District Court Act of Western Australia Act 1969 s 87 District Court Rules 2005 r 29 Rules of the Supreme Court 1971 O 33 |
Case References: | Aon Risk Services Ltd v Australian National University [2009] HCA 27 Capricorn Society Pty Ltd v Lucisano [2016] WADC 107 Chen v AWAP SGT 26 Investment Ltd [No 2] [2016] WASC 8 Leighton v Garnham [No 4] [2016] WASC 134 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1 Sovereign Grange Pty Ltd v AV Truck Service Pty Ltd [No 2] [2016] WADC 73 The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 The Owners of SP13443 v The Owners of Eighth Avenue [2015] WADC 133 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
NANCY LUCISANO
Defendant
Catchwords:
Dismissal for want of prosecution - Practice and procedure
Legislation:
District Court Act of Western Australia Act 1969 s 87
District Court Rules 2005 r 29
Rules of the Supreme Court 1971 O 33
Result:
Application dismissed
Representation:
Counsel:
Plaintiff : Mr C Ko
Defendant : Mr R W Douglas & Mr B Clemens
Solicitors:
Plaintiff : Trinix Lawyers
Defendant : Clemens Haskin Legal
Case(s) referred to in judgment(s):
Aon Risk Services Ltd v Australian National University [2009] HCA 27
Capricorn Society Pty Ltd v Lucisano [2016] WADC 107
Chen v AWAP SGT 26 Investment Ltd [No 2] [2016] WASC 8
Leighton v Garnham [No 4] [2016] WASC 134
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1
Sovereign Grange Pty Ltd v AV Truck Service Pty Ltd [No 2] [2016] WADC 73
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93
The Owners of SP13443 v The Owners of Eighth Avenue [2015] WADC 133
1 PRINCIPAL REGISTRAR MELVILLE: This is a summons brought by the defendant for orders seeking the action be dismissed for want of prosecution. On the face of the summons, it is said the application is brought pursuant to the Rules of the Supreme Court 1971 (RSC)O 33 r 2(1)(b) and r (2), r 24 of the District Court Rules 2005 (DCR) and the incidental or implied powers of the District Court.
The law
2 It is convenient to first deal with the application insofar as it purports to be brought pursuant to O 33 r 2 to the RSC. The short answer to that proposition is that O 33 r 2 does not apply.
3 By s 87 of the District Court Act of Western Australia Act 1969,the practice and procedure of the District Court is governed by the RSConly to the extent provision is not made by the rules of the District Court. By DCRr 29 it is provided that O 33 of the RSC (other than r 9 and r 10) does not apply to a case in the District Court.
4 Accordingly, any application to dismiss for want of prosecution must rest on the court's inherent jurisdiction. The leading case addressing this issue is The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93. In that case, from [90] – [104] Steytler P & Owen JA said:
There is no dispute that the Court has, as part of its inherent jurisdiction, power to dismiss proceedings for want of prosecution. This is a function of the broader consideration that the Court must ensure that justice is done in any cause brought before it. But justice is not a fixed or immutable concept. It is, in fact, used in a number of different senses. One idea of justice is that like cases should be treated alike. In this sense it is uniform and constant. But in determining whether cases are alike there will be a need for flexibility and the application of varying or shifting criteria. In this latter aspect it is flexible, adaptable and amenable to change. It exists to be applied in the particular circumstances in which its dictates are called in aid.
'Justice' is also used to describe the system by which disputes between individuals are resolved per medium of the mechanisms of the State. The parties bring their problems forward and are allocated a share of a public resource. And it is a scarce, and ever shrinking, resource at that. So 'justice' has, relevantly, two further aspects to it. One is the private interests of the litigants themselves. The other is the public interest in the way in which disputes as to private interests are resolved.
All of these notions or senses of justice play a part at various stages of the litigious process. And all of them (the public and the private) have a role to play in shaping the relevant principles to be applied when one party wishes, summarily and without a full trial, to bring an action to an end.
The Case Management Era
The court has inherent power to prevent its processes from being abused and the corresponding power to protect their integrity once they are set in motion: CSR Ltd v Cigna Insurance Australia Ltd (1997) 189CLR 345 at 391. The court also has inherent power to dismiss actions for gross disregard of case management orders. The rules have always prescribed time frames within which particular steps are to be taken in proceedings. Their effect is that the legal advisers for the parties are responsible for bringing cases to a reasonably expeditious conclusion. Until recently, as a general rule delay in bringing proceedings to a conclusion was only considered by the court on an application to strikeout for want of prosecution. Today the position is different. The inherent jurisdiction to dismiss an action for want of prosecution is to be exercised having regard to the case flow management principles set out in the O 1 r 4A and r 4B and O 29 Rules of the Supreme Court 1971 (WA); Hughes v Gales (1995) 14 WAR 434 at 450 (FC).
The effect of O 1 r 4A is that the court takes its own positive steps to require parties to conduct litigation with proper expedition. Order 1 r 4B introduces management and supervision of litigation by the court to the extent that its resources permit in accordance with a system of positive case flow management. If a party fails to comply with case flow management orders, that party runs grave risks: Inform Formwork Pty Ltd v McInnes Concrete Service Pty Ltd, unreported; FCt SCt of WA; Library No 950611; 15 November 1995 per Ipp J at 9 - 11 (in the context of a summary judgment application).
On the other hand, the courts have acknowledged that case management is not an end in itself and that the ultimate aim of the court is the attainment of justice which no principle of case management can be allowed to supplant: Queensland v J L Holdings Pty Ltd (1997) 189 CLR146; Levi v Stirling Brass Founders Pty Ltd, unreported; FCt SCt of WA; Library No 970209; 9 May 1997.
In addition to the court's inherent power to dismiss a proceeding for want of prosecution O33 r 2 provides for dismissal in defined circumstances.
These principles of case management reflect the public aspect of the notion of justice as much as they do the private interests of the litigants. The longer a case is in the system the greater the chance that it will use more than its fair share of the scarce public resource.
The Identification of General Principles
The Full Court has applied the general principles applicable to dismissal of an action for want of prosecution enunciated by Lord Diplock in Birkett v James [1978] AC 297 at 318; [1977] 2 All ER 801 at 805, and it is for the defendant to show that these general principles apply: see Lewandowski v Lovell (1994) 11 WAR 124 at 128, 133, 134, 135, 158.
The general principles identified in those cases include consideration of these points:
(a) whether any default has been intentional and contumelious, for example, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or
(b) whether there has been inordinate and inexcusable delay on the part of the plaintiff or his or her lawyers, and, if so
(c) whether such delay:
(i) will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or
(ii) is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.
But as with so many areas in the law, it is one thing to identify general principles and another properly to apply them. It should always be borne in mind that the power to dismiss for want of prosecution calls for the exercise of discretion. It is a discretion that must be exercised judicially but is otherwise open. It exists to serve the ends of justice. Caution should therefore be employed so that these general principles are not elevated to the level of a 'test' or a 'rule'. They are more appropriately to be seen as guidelines indicating some of the matters to which the court should have regard in exercising the discretion. The court's discretion to dismiss an action for want of prosecution is not fettered by any absolute or inflexible rules. There are however five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:
• the length of the delay;
• the explanation for the delay;
• the hardship to the plaintiff if the action is dismissed and the cause of the action left statute-barred;
• the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
• the conduct of the defendant in the litigation.
Ulowski v Miller [1968] SASR 277 at 280 (FC); Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998.
Significantly however, the Court of Appeal in New South Wales has held that the principles enunciated in Birkett are not to be strictly applied as part of the law of that State: Micallef v ICI Australia Operations PtyLtd [2001] NSWCA 274 at [51]. This reflects a desire to emphasise the unfettered nature of the discretion. The position is similar in Queensland: see Cooper v Hopgood & Ganim [1999] 2 Qd R 113 at 119 - 120.
And it must always be remembered that in Ulowski, Bray CJ recognised (at 280) that dismissal for want of prosecution involved the exercise of a discretion and that the discretion ought not be fettered by any absolute or inflexible rules. His Honour went on to say, at 281:
I think the discretion should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above.
In our view it is inappropriate to take the considerations identified in Birkett or the five matters mentioned in Ulowski and use them as a checklist to be ticked off one after the other. They are all things to which the court should have regard and they will usually be persuasive. But the absence of one or more of them from the credit or debit side of the checklist process will not necessarily determine the result. It will always be necessary for the court to stand back and ask: what does justice, in all the notions or senses of it that are relevant, require in the circumstances of this case?
Some commentators have expressly or implicitly criticised this approach. In an article entitled Dismissal for Want of Prosecution, (1996) 70 LIJ No 10, p 57 Matthew Harvey identified the criteria of 'delay' and 'prejudice' and the principles that guide the courts as to what justice demands. In The End of an Era: Goodbye Birkett v James, (2001) 21(4) QldLawyer 107 Grant Riethmuller decried what he described as the move from the restrictive test formulated in Birkett v James to the more general focus on the 'justice of the case'. But in our view the correct approach does not mean an abandonment of the reasoning in Birkett. What it does is to avoid the tendency to treat the Birkett principles as if they were, in essence, Rules of Court and to cast attention on a discretionary power that ought not to be manacled by set rules.
5 At [95] reference is made to Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146; [1997] HCA 1. The High Court in Aon Risk Services Ltd v Australian National University [2009] HCA 27 has since made it clear that although it might be a truism that 'case management principles should not supplant the objective of doing justice between the parties according to law', what constituted a 'just resolution' should be understood in light of the purposes and objective stated in the case management rules. It is appropriate to weigh and balance the strain the litigation poses upon litigants and witnesses.
6 The impact of the High Court's decision in the Aon Risk Services case was addressed by Le Miere J in Leighton v Garnham [No 4] [2016] WASC 134 [64] who said:
Whilst parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of the dispute, where a party has had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party for the sake of doing justice to the opponent and to other litigants.
7 These principles were also applied by Acting Master Gething in Chen v AWAP SGT 26 Investment Ltd [No 2] [2016] WASC 8 [15] who observed that the onus is on the party seeking the court to exercise its discretion.
8 The effect of these decisions is that the onus is on the defendant to persuade the court that the justice of the case in all the notions or senses of it that are relevant including the use of the court's resources that are funded by the public and the needs of other litigants, requires dismissal of the action.
The chronology
9 It is useful at this point to consider the background to this action and its chronology. It started with the issue of a writ on 2 December 2010, some 6 ½ years prior to the application to strike out. To paraphrase the statement of the claim, the plaintiff brings this action against the defendant for breach of a written guarantee allegedly entered into between the plaintiff and the defendant to pay all amounts due and payable by a company known as Calf Rearing Services Pty Ltd of whom it was alleged the defendant was the sole director and sole secretary.
10 By her defence dated 24 February 2011, the defendant disputes there was a valid and binding contract of guarantee and alleges there was no consideration for the contract, that the purported guarantee was void or voidable because of the unconscionable conduct of the plaintiff's agent, that the purported contract was illegal because it involved the plaintiff engaging in prohibitive exclusive dealing known as third line forcing, and that any loss the plaintiff is alleged to have suffered should be reduced due to its own acts and omissions and/or failure to mitigate including, to summarise, alleged premature and inappropriate attempts to liquidate the company.
11 The action moved swiftly from that point and was entered for trial on 8 June 2011. The following chronology of material events is taken from the court record and the various affidavits file in the action but primarily those of the defendant's husband Mr Frank Lucisano dated 18 December 2013 and Mr Calvin Ko, the solicitor of for the plaintiff:
1. 2 December 2010: the writ issues.
2. 10 December 2010: the plaintiff initiated winding up proceedings in respect of Calf Rearing Services Pty Ltd.
3. 8 June 2011: the pre-trial conference was held. As no settlement was reached the action was set down for a call over and listing conference.
4. 10 August 2011: the defendant unsuccessfully applies to the Victorian Supreme Court for the removal of the plaintiff's caveat over her property. Costs are awarded against the defendant.
5. 22 August 2011: the call over and listing conference was held, this being a hearing at which a registrar of the court enquires into the readiness of the case to be allocated trial dates having regard to a range of considerations including the availability of counsel, the availability of witnesses, the number of days required, and any outstanding interlocutory matters requiring attention such as outstanding expert reports, inspection of documents or amendments to pleadings.
At that time, the principal registrar ordered as follows:
1. by 10 October 2011, the plaintiff file and serve a certificate in accordance with 2005 DCR 43(3a);
2. by 10 October 2011, the plaintiff file and serve an index of the reports of any expert witness that the plaintiff intends to tender as evidence at trial in accordance with 2005 DCR 45E;
3. by 24 October 2011, the defendant file and serve either:
(a) a certificate in accordance with 2005 DCR 43(3a);
(b) an application for leave to amend the defence;
4. the listing conference be adjourned to 31 October 2011 at 12.45 pm;
5. the first return date of the application referred to in paragraph 3(b) be returnable on 31 October 2011 at 12.45 pm;
6. by 24 October 2011, the defendant file and serve an index of the reports of any expert witness that the defendant intends to tender as evidence at trial in accordance with 2005 DCR rule 45E;
7. the costs of the listing conference be in the cause.
6. 10 October 2011: the plaintiff complied with orders 1 and 2.
7. 24 October 2011: the defendant had complied with orders 3(b) and 6. The summons seeking leave to amend the defence was supported by a minute of proposed amended defence containing significant amendments. It proposed that several of the previous averments be deleted. Further averments were introduced including that any liability under the purported contract the defendant had to the plaintiff did not exceed $20,000, that there was a variation to the terms of the trading limit extended to the company to which the defendant did not consent, that the purported contract was void or voidable due to the unconscionable conduct the plaintiff in circumstances where the defendant suffered from one or more special disadvantages (of which there are some 10 particulars) when she signed the guarantee.
8. 31 October 2011: the chamber summons seeking leave to amend the defence was adjourned to a special appointment, with orders made requiring the filing of submissions. It is at this point that the action lost its way. The defendant never took steps to obtain a hearing of the special appointment.
9. 11 April 2012: the Victorian Costs Court assesses costs.
10. 29 May 2012: the plaintiff causes a bankruptcy notice to issue against the defendant.
11. 29 June 2012: notices were filed at the court giving notice of a change of solicitor acting as agent for the defendant's solicitors Irwin Legal.
12. 18 September 2012: the defendant applied to the Federal Court to have the bankruptcy notice set aside, which application was unsuccessful and costs were ordered against the defendant.
13. 29 May 2013: the plaintiff caused a warrant of seizure and sale to be issued against the defendant's property which subsequently lapsed but was renewed.
14. 27 June 2013: the warrant was renewed with an auction of the defendant's property scheduled for 28 November 2013.
15. 3 July 2013: the case was placed on the inactive cases list on the basis no document had been filed in the proceedings for 12 months.
16. 11 December 2013: a notice was filed that the address for service for the defendant was Clemens Hoskin Legal.
17. 19 December 2013: the court ordered the case be removed from the inactive cases list following the hearing of a summons brought by the plaintiff for that purpose. The summons was supported by an affidavit. By DCR r 44F(3), the court is empowered to order a case be taken off the inactive cases list if satisfied the case will be conducted in a timely way or for any other good reason. The application was opposed by the defendant. An affidavit sworn by the defendant's husband dated 18 December 2013 was filed in which he deposed to other related proceedings that had taken place between the parties in the State of Victoria.
It is apparent the deputy registrar was of the view there was 'good reason' to remove it and did so on that basis rather than on the basis he was satisfied it would be in the future conducted in a timely way. He observed that quite a lot was happening in Victoria with regard to recovery of monies alleged by the plaintiff to be due to it by the defendant. He said:
Authority has been quoted to me indicating that the court needs to be satisfied that the action will be proceeded within a timely manner in the event it is taken from the inactive cases list I think there are broader issues which can be brought into play in considering an application of this kind … It wouldn't be appropriate to require the plaintiff to proceed expeditiously with this action and incur the costs which would accrue in doing so when there is effectively no point in that process.
He later said:
I am satisfied it is appropriate to remove the matter from the inactive list but I see no point in doing so other than to preserve the Victorian proceedings. This defendant will not be in a position to pay the costs which will be incurred in running this case to trial, nor, I suspect, the bulk of any judgment which may be obtained in these proceedings. Therefore I think the better decision is to remove the matter from the inactive list and fix a further date for a directions hearing at which the court can monitor the progress which has been undertaken in Victoria and assess whether or not there is in fact any point in this action proceeding further. I intend to fix that directions hearing, subject to the convenience of counsel, in May 2014.
18. 6 May 2014: the matter came back before the Deputy Registrar at which time no orders were made.
19. 6 May 2015: the case was again placed on the inactive cases list because no document had been filed in the preceding 12 months.
20. 21 October 2015: the plaintiff applied for an order the case be removed from the inactive cases list by summons returnable 2 November 2015. By this chamber summons the plaintiff also sought leave to discontinue the action with no order as to costs.
21. 2 November 2015: an order that the case be taken off the inactive cases list was made by consent. The application so far as the plaintiff sought leave to discontinue the action with no order as to costs was adjourned to 15 December 2015. I pause to observe at this point, again, that by DCR r 44F(3) the court's discretion to order a case be taken off the inactive cases list is enlivened where satisfied the case will be conducted in a timely way or there is some good reason. The defendant's consent to the case being removed from the inactive cases list would indicate the defendant was of the view that that one or the other, or both of the criteria set out in r 44F(3) was satisfied.
22. 15 December 2015: the chamber summons was adjourned to a special appointment on 10 February 2016.
23. 10 February 2016: in accordance with a minute of consent orders, the special appointment was adjourned to a date not before 24 February 2016. The covering letter enclosing the minute stated that the parties had come to an agreement to resolve the matter and were finalising it by a deed of settlement. The special appointment was relisted for 25 February 2016.
24. 24 February 2016: following a minute of consent orders signed by both parties, it was ordered the hearing listed for 25 February 2016 be adjourned to a hearing not before 10 March. The covering letter enclosing the minute of consent orders again advised the court the parties had come to an agreement to resolve the matter and were finalising a terms of a deed of settlement. The hearing was re-listed for 15 March 2016 in the general chambers list.
25. 15 March 2016: the application was re-listed for further hearing on 4 May 2016. On 3 May 2016 a minute of consent orders was sent to the court under cover of a letter from the solicitor for the defendant. In this letter the court was informed 'the parties wish to adjourn the matter in order to continue to negotiate the settlement and/or prepare for hearing'. The special appointment was adjourned to 21 June 2016.
26. 21 June 2016: the special appointment proceeded and was concluded. However, this was not before the defendant by way of a chamber summons dated 17 June 2016 made this application returnable 21 June 2016. I refused to hear this application at that time given the lateness of the application, lack of notice and the lack of evidence.
27. 20 July 2016: the plaintiff's application for leave to discontinue with no order as to costs was refused.
Other evidence
12 I have referred to the affidavit sworn by Mr Frank Lucisano on 18 December 2013 setting out a history of proceedings in the Victorian Supreme Court between the parties culminating in bankruptcy proceedings being commenced in the Federal Court in 2012 and proceedings being undertaken against the defendant's property to enforce costs orders made against her in 2013. There was no appeal against the decision of Deputy Registrar Hewitt to remove the case from the inactive cases list on 19 December 2013.
13 A number of affidavits were filed in respect of the plaintiff's application to remove the case from the inactive cases list in 2015, which was in the end done by consent and for leave to discontinue with no order as to costs. Other than information to which successful objection had been for the reasons set out in Capricorn Society Pty Ltd v Lucisano [2016] WADC 107 published on 20 July 2016, reference is made to these affidavits insofar as they contained information relevant to the defendant's application to dismiss for want of prosecution.
14 At that time the most cogent evidence in the affidavits was that addressing the impecuniosity of the defendant and the futility of pursuing the proceedings, being the basis upon which the application to discontinue with no order to costs was brought. There is no argument that the defendant is in difficult economic straits. In fact it is submitted on her behalf that her financial difficulties have been brought about by this litigation.
15 In his affidavit of 21 October 2015, Mr Ko, solicitor for the plaintiff, provided evidence of surrounding proceedings and activity that had been undertaken since this case was first removed from the inactive cases list in December 2013. It shows that there had been discussions between the parties regarding settlement and an application filed by the defendant in January 2015 in the Supreme Court of Victoria seeking a removal of the caveat over the property. In March 2015 there was an application by the defendant in the Federal Court involving Westpac Banking Corporation and for an injunction restraining the plaintiff from taking any further steps in this action, which application was unsuccessful.
16 The evidence filed by the defendant was constituted by the affidavit of her husband dated 18 December 2013 (the substance of which I have summarised above).
17 There was also an affidavit of Mr Lucisano dated 30 October 2015 from which it is apparent that there were discussions in 2012 between the plaintiff and the defendant regarding resolution of this dispute and the bankruptcy proceedings, and steps taken by way of warrants of seizure and sale to support a bankruptcy notice in 2013 and 2014. The affidavit dated 21 June 2016 sworn by Mr Andrew Daniel Neagu in turn annexed affidavits of the plaintiff dated 20 June 2016 and 21 June 2016, and affidavits of her solicitor 20 June 2016 and 21 June 2016. The affidavit of the defendant of 20 June 2016 does little more than recite that she has relied on her husband Mr Frank Lucisano for support in doing what is necessary to defend these proceedings and in all things of a legal nature since their marriage in 1987, that he was admitted to hospital on April 2016 and that prior to him being admitted to hospital there were settlement negotiations being undertaken with the plaintiff with some terms of the settlement agreement that had not been finalised.
18 Like much of the so-called evidence found within the affidavits of others files in this action, the matters deposed to in the defendant's affidavit of 21 June 2016 can be characterised largely as argumentative, opinionated, speculative, and conclusionary and is really more in the nature of submissions than statements of fact. Of those matters that may constitute fact, I have regard in particular to pars 8 and 19. In par 8 the defendant says the action has caused her and her family a great deal of stress, anguish and insecurity not to mention an extensive amount of fees and expenses in fighting the action. At par 19 the defendant says she is informed by her solicitors and verily believes the delay in the action has caused or is likely to cause prejudice in that key witnesses such as Steven Knighton, the former sales agent of the plaintiff, who she says swore an affidavit that challenged the formation of the alleged guarantee may no longer be able to testify.
19 The affidavit of the defendant's solicitor dated 20 June 2016 is also argumentative and opinionated and adds nothing to the case.
20 The affidavit of the defendant's solicitor dated 21 June 2016 sworn in support of the application for dismissal for want of prosecution is once again largely hearsay and opinion and in the nature of submissions.
21 There is a third affidavit by the solicitor for the defendant dated 9 November 2016. In this affidavit he deposes as to the inability to contact Mr Knighton as a witness for the defendant. At par 17 of that affidavit he states that he started to make enquires of Mr Knighton's whereabouts and availability on 4 November 2016, states that he had previously dealt with him in obtaining the affidavit referred to by the defendant and states that he has not had contact with him since around August 2011. The attempt to contact Mr Knighton on the 4 November appears to have been by way of a phone call to one telephone number that was disconnected and a second telephone number that went to an answering machine.
22 The final affidavit is that of the defendant herself dated 15 November 2016, sworn on 16 November 2016. In that affidavit she says she only ever had contact with Stephen Knighton in around mid-2007, that she previously had no means of contacting him except through her solicitor and that she knows of no other means of contacting Mr Knighton.
The length of the delay and any explanation for it
23 It is first necessary to consider if there has been any delay and if so, then the nature and extent thereof. It is convenient to also consider the nature of any explanation for the delay at the same time. It was some five years from the time of the issue of the writ (2 December 2010) to the time the plaintiff brought its application for leave to discontinue with no order as to costs (21 October 2015) and a further eight months to the time the defendant brought her application to strike out for want of prosecution. In my view that 5 year 8 month period can be divided into sub periods as follows:
The period 2 December 2010 to 31 October 2011
24 Within this period of time the action proceeded with reasonable speed. Within some 11 months pleadings had been exchanged, discovery completed, orders made requiring the plaintiff to make available for inspection the original 'Application to Trade as an Authorized Purchaser' including the contract of guarantee executed by the defendant, a pre-trial conference had been held and the action listed for a call over and trial listing conference which took place on 22 August 2011, 26 September 2011 and 31 October 2011. It is apparent that at the listing conference of 22 August 2011 issues were raised regarding the forensic examination of a document which, having regard to the rest of the evidence, I infer was to be done by a handwriting expert. It is apparent that at the listing conference of 26 September the defendant was ordered to either file a certificate that the pleadings were in order or to bring an application to amend her defence. It is equally apparent that the defendant chose the latter and that at the listing conference of 31 October the listing conference was adjourned to the hearing of the defendant's application to amend. In my view little criticism can be made of the plaintiff in this period and if any criticism is to be made it should be of the defendant who sought to significantly amend her defence after the case had gone to a pre-trial conference.
The period 31 October 2011 to 19 December 2013
25 In this period nothing happened with regard to progressing the matter. The reasons for this were addressed by this court by Deputy Registrar Hewitt on 19 December 2013 when he ordered the removal of the case from the inactive cases list. The reason for doing so was that the parties had been involved in litigation in Victoria. In the circumstances the learned deputy registrar concluded there was 'good reason' for the delay.
26 This finding was not appealed by the defendant and accordingly the decision and the findings of fact necessary to support the decision are finally decided against the defendant. Accordingly, for my purposes I find the delay over this period cannot be held against the plaintiff.
The period 20 December 2013 to 6 May 2014
27 Over this period again nothing happened in progressing this case. However, it must be noted that the learned deputy registrar had found there was good reason for the case having become inactive when he removed it from the inactive cases list in 2013. The reason was due to the need preserve the Victorian proceedings. At that time he adjourned the action to a directions hearing on 6 May 2014 in order to monitor whether or not there was any point in the action proceeding. In light of that reasoning I do not consider the plaintiff can be criticized for not progressing this action. I should also be kept in mind that the listing conference remained adjourned to the hearing of the defendant's application to amend her defence. Whilst it is possible for a plaintiff to force the issue by applying to the court for a hearing, and whilst the plaintiff should be taken as being primarily responsible for progressing an action it has initiated in this court, the defendant is not devoid of all responsibility when it comes to the timely disposal of matters before the court. This is in my view even more so when a defendant has brought an application for orders and even more particularly when the application is for significant last minute amendments to a defence which has the effect of causing the action to be adjourned at a trial listing stage to accommodate that application.
The period 7 May 2014 to 21 October 2015
28 Again there was no progress made in the action in this period, with the case being placed on the inactive cases list on 6 May 2015 due to no document having being filed for the preceding 12 months. The plaintiff filed an application to remove the case from the list on 21 October supported by an affidavit of Mr Calvin Ko dated the same day. As observed above, the plaintiff also sought leave to discontinue on the basis there be no order as to costs.
29 The affidavit disclosed that legal proceedings between the parties had continued in Victorian Supreme Court relating to the lifting of a caveat over the defendant's property and an application by the defendant to the Federal Court of Australia in March 2015 seeking, among other things, an injunction restraining the plaintiff from taking any further steps in this action pending determination of the matters then before the Federal Court.
30 On the 21 October 2015 the defendant consented to the action being taken off the inactive cases list. In the circumstances I can infer that she took the view that on the explanation provided by the plaintiff in its affidavit in support of the application those circumstances constituted good reason. However, she opposed the application for the order for leave to discontinue with no order as to costs.
31 That issue was finally decided against the plaintiff in Capricorn Society Pty Ltd v Lucisano [2016] WADC 107 in which it was found the plaintiff had put the defendant to time and expense in defending the application and that the impecuniosity of the defendant was not a good reason for being permitted to discontinue with no order as to costs. Litigation always carries with it a risk that a judgement or costs will not be recovered and it must be assumed that a plaintiff goes into this with its eyes wide open. Further, the opportunity arose to settle the case at the pre-trial conference stage having regard to the risks of the litigation. Between the two parties they chose not to do so.
32 In my view it follows that if the financial risks of pursuing a defendant do not justify a plaintiff being allowed to discontinue with no order as to costs, the fear of exposure to costs cannot justify refusing to progress litigation. In my view this is not a good explanation for not progressing the matter.
33 However, the court had earlier supported that approach taken by the plaintiff in deferring the prosecution of the claim pending the resolution of proceedings in Victoria. Under those circumstances it is understandable that the plaintiff may have felt the progression of this action was not as high a priority as it should have been. In the light of that background, and in the absence of any other aggravating features, given the courts view that there had been good reason for the delay in the period leading up to it decision on the 19 December 2013, and given little had changed in this subsequent period, I do not regard the explanation as being as unsatisfactory as I otherwise would have. I would consider it overly harsh, which is to say unjust, to dismiss the claim on that basis alone.
The period 22 October 2015 to date
34 This period has been consumed by dealing with the plaintiff's application to discontinue with no order as to costs and protracted negotiations between the parties that appear to have been as much in the defendant's interest as the plaintiff's, followed by the defendant's application to strike out the case for want of prosecution.
35 There are authorities to the effect that negotiations are not an acceptable reason for ignoring procedural requirements: The Owners of SP13443 v The Owners of Eighth Avenue [2015] WADC 133 [58]. A failure to prosecute an action in accordance with case management principles in preference to negotiating might be seen as a lack of interest or will to proceed: Sovereign Grange Pty Ltd v AV Truck Service Pty Ltd[No 2] [2016] WADC 73 [34] – [35]. However those cases were considering the operation of DCR r 44G in the context of the facts peculiar to them and in the context of the case management principles set out in DCR r 44F and r 44G, and whether there were 'exceptional' reasons causing the case to be procedurally dismissed for want of prosecution.
36 Although the court has a responsibility to enforce compliance with case management process and procedures which justify it taking a position that ignoring case management principles due to undertaking negotiations is unacceptable, this does not necessarily justify a party complicit in adjourning hearings on the basis that an agreement in principle has been reached to then complain about adjournments and the associated delay.
37 Further, in a strike out application brought by a defendant, case management principles are not the be-all and end-all. There are other relevant considerations in determining where 'the interest of justice' lies. I regard the attempts to effect settlement to keep costs to a minimum as a relevant and ameliorating consideration albeit not a completely satisfactory answer.
38 Some of the delay has been occasioned by the defendant herself. The act of bringing an application for leave to amend the defence effectively stalled the action. Although having brought the application, she did not proceed to list the application for a special appointment. Whilst it is still open for the plaintiff to take steps to force this issue to a head and get the matter to trial in my view the defendant cannot be said to be completely lacking in responsibility for the development of the this situation.
Hardship to the plaintiff
39 If the action is dismissed, the plaintiff will be required to pay the defendant's costs and the cause of action will be statute barred. Whilst this will cause the plaintiff some pain it will not be the end of the world for it. The financial statements of the plaintiff annexed to the affidavit of Mr Clemens dated 9 November 2016 show that for the financial year ending 30 June 2016 the plaintiff had cash of some $42,568,000, current assets in excess of current liabilities of approximately some $62,000,000 and total net assets of some $150,000,000.
40 I consider that the prejudice to the plaintiff to be comparatively minor given its economic situation. In so saying I am conscious of the fact that wealthy litigants are also entitled to justice, this being something that is difficult to measure and something on which it is difficult to put a price.
Prejudice to the defendant if the action is allowed to proceed
41 The defendant may have difficulties in locating a relevant witness. Much of the evidence of Mr Knighton implies that the contact alleged to have been entered into between the plaintiff and the defendant was never signed by the defendant and the signature is a forgery. The defendant, in her defence, denies that there was a valid and binding contract of guarantee. Whilst she does not clearly or unequivocally aver the purported the signature on the contract of guarantee is a forgery, the general denial of the allegation seems to be to be broad enough to enable evidence that the signature was forged to be adduced at trial. The plaintiff has gone to the length of obtaining an expert opinion and report addressing this issue and orders were made at the call over and listing conference on 26 September 2011 addressing the time by which the defendant was required to file and serve an index of any expert evidence she intended to tender at trial.
42 Mr Knighton's evidence as to the work practices of the plaintiff might be relevant to the determination of that issue and, if so, then if he is unable to be located, the plaintiff is prejudiced.
43 Further, it is now many years since the cause of action arose. Witnesses' memory fade with time and the mere passage of time is sufficient to cause some prejudice to the defendant and, for that matter, the plaintiff. It is now in excess of six years since the cause of action arose.
44 Nevertheless, should it be the case that Mr Knighton cannot be located it may not matter given his evidence has already been obtained by the plaintiff's solicitor on affidavit and it may prove to be admissible under s 79C of the Evidence Act1906.
45 Further, the defendant herself is able to give evidence as to the authenticity of the documentation and the circumstances in which it was created in the absence of Mr Knighton. This offsets the prejudice his absence would otherwise create.
46 However, the evidence that Mr Knighton cannot be located is scant. It is constituted by two phone calls which have proven to be unsuccessful. There is no evidence of any search of the electoral roles, telephone books or other attempts to locate him.
47 The whereabouts of Mt Knighton has been touched upon by Ms Andrea Marie Symons, a solicitor employed by the plaintiff's solicitors, in her affidavit sworn 14 November 2016. At par 6 she says she is in possession of what she believes to be Mr Knighton's current address. However, she does not condescend to tell the court why she is of this belief, or to giving the court or the defendant those contact details. I find this evidence useless.
48 The prejudice to the defendant in this regard is somewhat speculative. I am not persuaded that Mr Knighton cannot be found by the defendant with a bit of effort. In the event he cannot be found it seems to me his affidavit will be admissible and in the event it is not there is still the defendant's own evidence on this issue.
49 The defendant gives evidence that these proceedings have been stressful for both her and her family. I am sure they have. The litigation between the parties has been fought on several fronts and has been hard fought. This is a relevant consideration to take into account.
Conduct of defendant
50 No real criticism can be made of the defendant except for her failure to list her application to amend her defence for the special appointment. In criticism is minor, particularly having regard also to the reasons deputy registrar gave for removing the case from the inactive cases list, namely to preserve the Victorian proceedings and to later see if the case remained worth pursuing.
Conclusion
51 I have considered the matters referred to above as relevant considerations that bear on the ultimate question, is it in the interests of justice to strike out the action after all this time?
52 There has been delay by the plaintiff, some of it occasioned by good reason so found by this court and which findings have not been the subject of challenge. Some of the delay the defendant bears some responsibility for, namely the failure to bring her application to amend her defence to a conclusion, either by abandoning it or having listed for hearing although this is a minor contribution. It is also relevant that the defendant consented to the case being removed from the inactive cases list on 2 November 2015 rather than contesting the application on the basis the court could not be satisfied that case would be progressed in a timely way in the future or that there was no good reason for the case to have fallen onto the inactive cases list. Some of the delay has been due to settlement discussions taking place between the parties with hearings being adjourned on advice the parties' solicitors, including from the defendant's solicitor, that a settlement had at least in principle been reached. These discussions appear to have been as much in the interest of the defendant as the plaintiff and it is difficult to see how the defendant can now fairly complain about that delay. However, the plaintiff carries the principal burden of moving the matter along and although its failure to do so calls for some criticism, in the circumstances of this cases its failure warrants some indulgence.
53 The plaintiff will be prejudiced if the action is struck out. The defendant will be prejudiced if it is allowed to continue mainly as a result of attempting to defend an action having found herself in impecunious circumstances and as a result of additional stress to which she has been subject. In so saying I am mindful that she would have been exposed to a degree of stress in any event, even if there had not been any delay. The additional stress occasioned by any delay is not susceptible to measurement.
54 This dispute as far as the plaintiff is concerned has now devolved to one about costs. If it discontinues the plaintiff is liable for the defendant's costs. In my opinion this is a legitimate consideration and concern for the plaintiff. On the other hand, if it continues it will incur further costs and clearly is concerned about recovering them from an impecunious defendant. It is on the horns of a dilemma. It has to make a decision. It has made a decision. The decision is it wants to proceed.
55 Whilst the defendant makes the point that the plaintiff did not want to proceed, a state of mind manifested by its application for leave to discontinue with no order as to costs, that only tells half of the story. The truth of the matter more fully is that the plaintiff does want to proceed if the alternative is that it will be liable to pay the defendant's costs in circumstances where it believes the defendant has a legal liability to it a resulting in an entitlement to an award of damages and costs. Save for issues relating to case management and issuing proceedings for an improper purpose the dismissal of a meritorious case with an adverse costs order can be seen as an unjust outcome. Again save for failure to comply with case management considerations and issuing proceedings for an improper purpose, if a litigant wishes to spend money seeking justice it is entitled to do it.
56 Some of the affidavit material filed by the defendant speculates as to the motives of the plaintiff in this litigation, seemingly inviting the court to come to the conclusion that the proceedings and the way in which they have been conducted is the result of an oppressive use of the court process by a wealthy litigant against an impecunious litigant and that the plaintiff no longer wishes to proceed for fear that its work practices will be seen in a shabby light.
57 But, on the material before this court, speculation is all it is.
58 In my view on the evidence before me and for the reasons expressed above there is little risk that it is not possible to have a fair trial or that to proceed will subject the defendant to any severe prejudice. The defendant has failed to persuade me that the interests of justice lie with the action being struck out.
0
13
3