Damiano v Dhaliwal
[2021] ACTMC 14
•26 October 2021
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Damiano v Dhaliwal |
Citation: | [2021] ACTMC 14 |
Hearing Date(s): | 26 October 2021 |
DecisionDate: | 26 October 2021 |
Before: | Magistrate Stewart |
Decision: | See [54] |
Catchwords: | CIVIL LAW – commercial lease dispute – no litigation guardian willing to be appointed – application to strike-out for want of prosecution |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1404 |
Cases Cited: | Commonwealth of Australia v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206; [2011] NSWSC 433 Cooper v Hopgood & Ganim [1999] 2 QdR 113 Tyler v Custom Credit Corporation & Ors [2000] QCA 178 Arcadia Holdings Pty Ltd & Anor v Brown & Ors [2002] WASC 44 |
Parties: | Marilena Damiano (Applicant) Manjit Dhaliwal (Respondent) |
Representation: | Counsel Self-represented (Applicant) Mr Donohue (Respondent) |
| Solicitors Self-represented (Applicant) Donohue & Co (Respondent) | |
File Number(s): | CL 24 of 2015 |
MAGISTRATE STEWART:
In this matter, earlier today an invitation was communicated to the Public Trustee and Guardian for them to appear at 12:00pm and then 2.15pm for the consideration of an appointment of the Public Trustee and Guardian as a litigation guardian for the applicant Ms Damiano.
The Public Trustee and Guardian has declined that invitation and it would appear that there is no Territory Government body willing to be approved as a litigation guardian in the Australian Capital Territory Magistrates Court.
On my reading of the ACT Civil and Administrative Tribunal Act 2008 (ACT), there is no clear path to referral for a litigant in a civil matter to the ACAT for a mental health assessment.
The issue was raised with the applicant, Ms Damiano, before 12:00pm today. She stated she was fit mentally to proceed, but unfit medically to proceed and was seeking a further adjournment of the matter to essentially muster more information to shorten the proceedings.
No doctor’s certificate has been received by the court with today’s date. There is a doctor’s certificate before the court which was attached to an application in proceeding filed by Ms Damiano. That doctor’s certificate is under the hand of Dr Tuan Tran and dated 24 September 2021. It states:
‘I certify that the above patient, whom I saw on 24 September 2021, is suffering from ongoing post-trauma stress disorder and she will be unfit for attending court from 24 September 2021 to 24 November 2021, inclusive.’
I have read that certificate and I reject it as evidence on which Ms Damiano could rely to adjourn the proceedings today. To my mind it is extraordinary that a general practitioner could project on 24 September 2021 that a litigant and an applicant would not possibly be able to be fit to attend court more than one month in the future, and I reject specifically that medical certificate as being evidence of an unfitness for Ms Damiano to proceed this afternoon.
In my view, given her attendance at court this morning in person, she is clearly able to attend in a physical and mental sense, but I find that she is unwilling to do so and she is unwilling to prosecute her claim and defend the respondent’s application this afternoon.
In those circumstances, I invited the solicitor for the respondent to make submissions pursuant to rule 1404 of the Court Procedures Rules 2006 (ACT). That is, on the basis of receiving notice of the hearing continuing this afternoon, the applicant in the proceedings Ms Damiano failed to attend the hearing and I invited the respondent’s solicitors to make submissions on dismissing her application, but not their cross-application.
(Submissions were made by Mr Donohue, but do not form part of this decision).
In this matter, counsel for the respondent Mr Donohue has provided and set out the appropriate test for an application to strike-out, which this essentially is. The test is conveniently encapsulated in rule 1404 of the Court Procedures Rules 2006 (ACT). The applicant has failed to comply with the very, very basic direction of attending for her hearing.
The determinative factors of exercising this type of power are set out in great detail in the decision of Ward J in Weston v Publishing and Broadcasting Ltd (2011) 83 ACSR 206; [2011] NSWSC 433 (‘Weston’) cited by Penfold J in the ACT Supreme Court decision of Commonwealth of Australia v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 at [36-39].
There is not a hard and fast rule but there should be consideration of many factors which I will go through. At [500] of Weston, Ward J said that the two tests of intentional contumelious default or inordinate and inexcusable delay giving rise to either substantial risk that a fair trial would not be possible or to a risk of serious prejudice to the defendant have both been rejected as unduly restrictive of the scope of the power.
This matter needs to be put into perspective. This is not a matter that has been listed once for hearing. Today is the fifth time it has been listed for hearing. On the first four occasions it was for a hearing on the merits of the application and cross application. On this occasion, it is an application to strike out the applicant’s case. These proceedings have been on foot since 2015, almost six years, which is an extraordinary and inordinate and inexcusable delay by any measure of proper case flow management.
Perhaps two years of that delay can be attributed to the respondent herself not taking steps to lift the temporary stay of proceedings imposed by Morrison M. However, neither did the applicant – that is, she did nothing about having her claim re-enlivened.
It has been all the respondent’s work to get the matter back before the court, and again there has been inexcusable delay in allowing the matter to proceed. At [501] of Weston it is stated that ‘the ultimate question…is whether, balancing the prejudice to the respective parties by making or not making an order dismissing the proceedings, justice demands that the action be dismissed.’
At [502] of Weston the considerations in deciding whether justice demands that an action be dismissed are identified and these are cited at [39] of Penfold J’s decision.
The first consideration is ‘the discretion should be exercised only in a clear case where it is manifestly warranted’. I will return to this, because that is the final issue.
The second consideration is 'any explanation offered by the plaintiff for the delay in proceeding must be considered.' Ms Damiano has offered several explanations, but in my view all of them fall short when you look at the extraordinary history of this matter. The delays have been set out in Mr Donohue's submissions and supplemented by oral submissions today, but first of all the first hearing was vacated because the applicant was unprepared and unrepresented. The second was adjourned because Ms Damiano simply didn’t turn up on the first two days, but it was adjourned out of fairness on the third day. The third hearing was adjourned due to very late briefing of counsel. The fourth was adjourned because a stay of proceedings was agreed by counsel Mr Thomas, that was very much in favour of Ms Damiano.
Despite the costs orders remaining in place irrespective of the stay, those costs remain unpaid which of course is a highly relevant factor in the application before me now.
The third consideration is 'Personal blamelessness on the part of a plaintiff'. In my view there is a high level of personal blame on the part of the plaintiff. It is clear in my view that she is avoiding the continuation of the litigation, and a decision. Mr Donohue puts forward his view that inevitably she knows she is going to lose, but regardless it is clear, in my view, that she is using all manner of illnesses and complaints to avoid the final resolution of the matter.
The fourth consideration is 'a defendant takes no steps to secure progress, or to activate an apparently inactive plaintiff, or who stands by in the hope that time will ensure the quiet death of the will strengthen the case for striking out runs the risk that that very behaviour will operate to their disadvantage.' Here we don’t have such a respondent. The respondent has turned up on four previous occasions ready to proceed and proceed not only in defending the application but with a counterclaim and is also the party responsible for re-enlivening the proceeds post-stay imposed by Morrison M to keep the matter moving. It is the plaintiff who has remained inert by not allowing the previous hearings to commence for various reasons and by not re-enlivening her own action.
The fifth consideration is ‘delay between the date the cause of action arose and the commencement of proceedings’. There was no delay here, or such a short delay that this is not a relevant consideration.
The sixth consideration is prejudice. It is not prejudice that makes it impossible for the respondent to proceed, but it is a significant prejudice in terms of the gradual accumulation of costs in the respondent not being able to respond to the claim, and prosecute her counterclaim, most of which have not been paid by Ms Damiano. There is the prejudice of delay in terms of recollection. Even though in some sense that is cured by the use of affidavit evidence, it is clear that a delay of nearly six years puts a witness at a great disadvantage compared to the original hearing date, if that had been reached, which was 22 and 23 November 2016, nearly five calendar years ago.
There is also the prejudice of the inability of the respondent to earn income from the fit out to the restaurant, and the inability to work in that sense using those tools. One other factor that’s also relevant to her claim is that she's been deprived of access to her own business records, which seems fairly extraordinary given the passage of time.
Of course this prejudice has to be balanced against prejudice to a plaintiff who will be deprived of a potentially otherwise valid claim, the seventh consideration from Weston. I have heard the submissions of Mr Donohue. The applicant has not remained at court to oppose those submissions, and I accept them as being correct in the circumstances. That is, there is no longer a valid claim on behalf of the applicant.
The eighth consideration is ‘what the defendant has done by way of preparation for a trial’. In this matter, in my view, it is a looming factor. Four preparations for hearing have been thrown away. Three applications preparation have had to be undertaken by the respondent. It is an inordinate amount of preparation and legal costs.
The ninth consideration is the plaintiff's prospects of success. I have dealt with this above. They are to be negligible because the submissions of Mr Donohue have not been opposed.
I should say and make this very clear that there is not a single element of my decision today that is designed to punish the plaintiff in any way or to exclude her because she may appear to have some unworthy characteristics.
Some of the things that the applicant Ms Damiano said this morning about the respondent and other members of the Indian community were unwarranted, hurtful and even potentially racially based. But I am not responding to those in the sense of wanting to exclude her because of those perhaps unworthy characteristics. The issue here is justice and the fact of this matter not proceeding being entirely unfair to the respondent in the circumstances of such lengthy litigation.
Mr Donohue’s submissions also put the Queensland authority of Cooper v Hopgood & Ganim [1999] 2 QdR 113 in which the Court of Appeal of the Supreme Court of Queensland considered some factors in deciding whether to dismiss an action for want of prosecution (at 119-121). I now turn to those factors.
First, how long ago the events in the statement of claim occurred and what delay there was before the litigation was commenced. This is not relevant because litigation was commenced quite swiftly. The fact is it was not prosecuted by the applicant, Ms Damiano.
Second, how long ago the litigation was commenced. This matter commenced on 27 November 2015, four years and 11 months ago.
Third, what prospects the plaintiff has of success. I categorise those as quite limited, as discussed above.
Fourth, whether or not there has been disobedience of Court orders or directions. There have been multiple occasions of disobedience of court orders, refusal to comply with listings; and in particular today, the hearing of this application, the applicant in the overall proceedings, Ms Damiano, made it clear that she was in advance not willing to comply with the listing of the court. Despite that she appeared this morning, in my view, in an appropriate standard of health and mental health to conduct the proceedings but abandoned them before 12 o'clock.
The fifth consideration is whether the litigation has been characterised by periods of delay. This litigation has been categorised by exceptional and unusual periods of delay in this court; that is, the Magistrates jurisdiction.
The sixth consideration is whether the delay is attributable to the plaintiff, the defendant, or both. In my view the majority of the delay is attributable to the plaintiff. Certainly, the respondent laid mute, if I can use that term, for some time post the imposition of the stay, but it is the plaintiff who has not sought to enliven her application since. She has not furthered the prosecution of her application by taking part in a hearing today.
The seventh consideration is whether the impecuniosity of the plaintiff has been responsible for the pace of litigation. Going on the history of this matter, it has not. Various solicitors have been instructed and then not engaged, as have been counsel. There is no reason, given her intellect and ability to communicate with the court both on nearly a whole day for the application that her Honour Chief Magistrate Walker recuse herself and this morning on my assessment of her that she is not capable of conducting these proceedings herself, so her impecuniosity is not a factor in my view which would have any great influence.
The eighth consideration is whether litigation between the parties would be concluded by the striking out of the plaintiff’s claim. More than half the litigation would be complete if the application is struck out.
The ninth consideration is how far the litigation has progressed. In my view it has progressed minimally and the only reason that the litigation has progressed is because of the respondent’s pursuit of an answer and a response to the claim of the application.
The tenth consideration is whether the delay has been caused by the plaintiff’s lawyers being dilatory. The answer is no.
The eleventh consideration is whether there is a satisfactory explanation for the delays. In my view, there might have been one explanation which was satisfactory, that is the initial unpreparedness. It was generous of the respondent to allow the adjournment on the first hearing date.
The twelfth and final consideration is whether or not the delay has resulted in prejudice to the defendant, leading to an inability to ensure a fair trial. I do not think that I could make a ruling that went as high as that. There is significant prejudice, which I have set out before, the gradual accumulation of costs orders which have not been paid by the applicant, the effluxion of time so that one can expect as a matter of common sense and life experience her ability as a witness to accurately remember detail has been diminished because of the passage of nearly six years.
There are other relevant factors in this matter that were set out by Mr Donohue at the commencement of his submissions. This includes the continuing allegations that have been levied by the applicant against the respondent, including today an allegation that somehow she was involved in a home invasion that the applicant says she suffered in recent weeks, simply because she says the appearance of two of the criminal offenders were Indian men. I fail to see how that has any relevance to the matters before me, but it was an indication to me very clearly of the vindictiveness that the applicant was willing to display in open court on very clearly no factual or common-sense basis.
Mr Donohue’s submissions referred to a further case of Tyler v Custom Credit Corporation & Ors [2000] QCA 178. The court stated at [5] that the applicant of a strikeout application must ‘show that there is good reason for excepting the particular proceedings from the general prohibition’. That is, that hearings should be heard rather than struck out summarily. It was further stated that ‘The court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay.’
In my view the court must come overwhelmingly to a conclusion that if there is a further adjournment, which would no doubt be until next year, that would involve injustice and unfairness to the respondent.
A further authority has been very fairly provided by Mr Donohue being Arcadia Holdings Pty Ltd & Anor v Brown & Ors [2002] WASC 44. The five paramount matters to be considered are the length of the delay, the explanation, the hardship to the plaintiff if the action is dismissed, the prejudice to the defendant if the action is allowed to proceed, and the conduct of the defendant in the litigation.
The length of delay is too long. That is, five years and six months plus since the proceedings were initiated.
The explanation for the delays is unsatisfactory in my view, as is the explanation for not appearing to oppose this application today by the applicant.
The hardship to the plaintiff. There will be hardship because her action is dismissed; but in my view it had limited prospects of success by this stage in any event.
The prejudice to the respondent if the action is allowed to proceed would, in my view, be redoubled every time this matter has been allowed to be deferred.
Finally the conduct of the respondent in this litigation in my view has been of the highest standard. I do not think she can be criticised for not taking action immediately after the stay was imposed at all.
I turn now to the final exercise of my discretion and go back to [501] of Weston ‘balancing the prejudice to the respective parties by making or not making an order dismissing the proceedings, justice demands that the action be dismissed.’
In my view, overall and without any interest in punishing Ms Damiano or making any judgments on her character, in my view overwhelmingly her conduct has contributed to the elongation of these proceedings and ultimately today an unwillingness to take part in them.
For those reasons, justice demands that her action be dismissed. So all applications of the first applicant Ms Damiano are dismissed pursuant to rule 1404 of the Court Procedures Rules 2006 (ACT).
My order as to costs will be that the applicant is to pay the respondent’s costs on a party/party basis from 5 January 2017 at the rate prescribed by the Court Procedures Rules 2006 (ACT).
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Stewart Associate: Maddison Higgs Date: 29 October 2021 |
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