Deron v BHP Company Limited - [2002] NSWSC 1164

No judgment structure available for this case.

CITATION: DERON v BHP COMPANY LIMITED [2002] NSWSC 1164

FILE NUMBER(S): SC 12899/88

HEARING DATE(S): 16.11.01; 13.5.02;

JUDGMENT DATE: 5 December 2002

PARTIES :

Plaintiff: William John Deron
Defendant: The Broken Hill Proprietary Company Limited and 2 ORS

JUDGMENT OF: Hulme J at 1

COUNSEL : Plaintiff: Legal Aid Commission
Defendant: CM Simpson

SOLICITORS: Plaintiff: Legal Aid Commission
Defendant: Minter Ellison

DECISION: Notices of Motion of 6 and 4 July 2001 dismissed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

File No: 12899/88

HULME J

DERON v THE BHP COMPANY LIMITED AND OTHERS

Judgment

1 His Honour: There are before me Notices of Motion by the Second and Third Defendants seeking the dismissal of the proceedings pursuant to Part 33 Rule 6(2) which provides:-

2 The matter has an exceedingly long history. I was provided with a chronology and it was agreed that I could accept it as evidence of what it asserts. Nevertheless I have, so far as I have been able, had resort to original documents in the Court file. They suggest that, at times, the chronology is wrong.

3 The Plaintiff’s claim is that in June 1970 he was injured while working as an employee of the First Defendant (hereinafter referred to as “BHP”). He retained the Third Defendant to act for him in connection with the incident and, shortly afterwards, in about May 1972, instructed the Second Defendant instead. In 1981 the Plaintiff terminated the Second Defendant’s retainer and again instructed the Third Defendant. In 1983 the Third Defendant commenced proceedings on the Plaintiff’s behalf in the Workers Compensation Commission and in June 1987 the Commission made an award in favour of the Plaintiff against the First Defendant. Meanwhile, the Third Defendant had ceased to act for the Plaintiff and the Plaintiff had instructed a third firm of solicitors, Vandervords. According to an affidavit of the Third Defendant’s solicitor, Ms Hooke, the Third Defendant ceased to act for the Plaintiff on 12 November 1986.

4 On 10 June 1988, Vandervords issued on the Plaintiff’s behalf the Statement of Claim in these proceedings. BHP was sued on the basis that its negligence had led to the Plaintiff being injured in June 1970. The Second Defendant was sued on the basis that he had been retained in November 1972 to act for the Plaintiff, to commence proceedings and to advise him, but had negligently failed to do so. The Third Defendant was sued on the basis that he had been retained in about July 1981 for similar purposes and had also negligently failed to carry out its obligations about suing BHP and the Second Defendant.

5 In November and December 1988, Defences were filed on behalf of all Defendants. Unsurprisingly given the delay, all pleaded the Limitation Act. On 18 November 1988, the Plaintiff filed a Notice of Motion dated 17 November seeking that the time for commencement of proceedings against the First Defendant be extended. A similar order was sought in the case of the Second Defendant.

6 An Amended Statement of Claim may have been filed in November 1989. There is a copy on the Court file although not marked with a filing stamp. In April 1989 and December 1990 further or amended defences were filed by the Second and Third Defendants. Again the Limitation Act was relied on by both.

7 In 1988, 1989 and 1990, there were 5 Notices of Motion by one or other of the Second and Third Defendants seeking summary dismissal of the proceedings. Some or all of these applications were, in June 1991, refused by Allen J. On 24 February 1992, the Plaintiff filed an Amended Notice of Motion seeking, in paragraph 1, an order that, pursuant to s52 or s60G(2) of the Limitation Act, the time for commencement of proceedings against the First Defendant be extended. In paragraph 2, a similar order was sought in respect of proceedings against the Second Defendant. Immediately below its own description, the Amended Notice of Motion bears the notation “(Issued 17.11.1988)”. Neither the Notice of Motion of 17 November 1988 not that of 24 February 1992 sought an order against the Third Defendant.

8 Without attempting to be comprehensive, in substance Section 52 provides that where a person under a disability has a cause of action and a limitation period fixed by the act has commenced to run, the running of the limitation period is suspended for the duration of the disability. Section 60G applies only to causes of action that have accrued on or after 1 September 1990.

9 On 3 June 1994, Messrs Casulo and Kelso, who since December 1988 had been acting for the plaintiff wrote to Messrs Ebsworth & Ebsworth, the solicitors for the Second Defendant advising that “at the hearing of the Notice of Motion which was fixed for 24th and 27th June 1994 (but is now subject to change) that the Plaintiff will not pursue the relief against your client claimed in paragraph 2 of the Amended Notice of Motion” and that “So as to avoid further costs, we will consent at the hearing to paragraph 2 being struck out”.

10 That seems not to have occurred. On 11 August 1994, Master Malpass made certain costs orders and orders as set forth in some short minutes of order. It appears to me from a consideration of the Court file that the short minutes referred to are probably an unattached and undated handwritten copy which provides:-

11 On 6 February 1995, according to the Chronology:-

“Prothonotary Whelan orders Deron’s notice of motion for extension of limitation period as against Foggo and Foggo’s notice of motion seeking dismissal of Deron’s claim be stood over generally pending determination of BHP’s limitation defence.”

12 Reference to a computer print out of a “Civil System File Enquiry” includes an entry “Order N/M FILED 15-8-94 SOG (7) but there does not seem to be any other support in the Court file for that entry in the chronology. There is on the file a Notice of Motion filed by the Second Defendant on 15 August 1994 seeking dismissal of the proceedings pursuant to Part 13 Rule 5, Part 15 Rule 26 and Part 33 Rule 6. The entry in the chronology for 11.8.95 also seems erroneous but I do not see that anything turns on any errors, if that is what they are, adverted to in these paragraphs. I mention the matters for completeness.

13 The issues raised by paragraph 1 of the First Defendant’s Second Amended Defence filed 30 November 1990 revolved around s63 of the Workers Compensation Act, BHP contending that the Plaintiff has received compensation and that the commencement of his proceedings against BHP was outside the 3 year limitation period allowed by that section. In November 1995, Sperling J decided the issue so raised against BHP. In 1998, the Court of Appeal reversed Sperling J and in March 1999 an application for leave to appeal to the High Court was dismissed. BHP would seem to have been out of the litigation from that time.

14 On 10 June 1999, Newman and Associates filed a Notice of Appointment as the Plaintiff’s solicitor.

15 On 16 June 1999, the Third Defendant filed a Notice of Motion seeking the separate determination of the issue of whether the proceedings against it were statute barred by reason of the Limitation Act.

16 On 7 July 1999, the Plaintiff filed in Court a Notice of Motion, returnable instanter, seeking orders that he have leave to file an amended Statement of Claim incorporating amendments which were annexed to the Notice of Motion and a Reply, a copy of which was also annexed. The proposed Reply said that it was in reply to the Amended Defence of the Second Defendant and asserted that the Plaintiff at all material times had been under a disability that had the effect of suspending the running of any limitation period. It made no mention of the Defence of the Third Defendant, nor did it provided details of the disability.

17 According to an endorsement on the file coversheet, on 23 August 1999, the matter came before Master Malpass. The notation indicates that there were appearances on behalf of the Plaintiff and Second and Third Defendants and continues “See orders Ref 8”.

18 I have been unable to find any Associate’s Record of Proceedings between those bearing reference numbers 7 (dated 5 August 1988) and 9 (dated 13 December 1999). There is, however, a sealed copy of an order apparently made on 23 August and entered on 14 September 1999 in terms:-

1. Pursuant to Part 31 Rule 2 of Supreme Court Rules, there be a separate determination of the issue of whether the proceedings against the Third Defendant is statute barred by reason of the operation of Section 14 of the Limitation Act 1969.

2. The Plaintiff pay the Third Defendant’s costs.

19 The chronology records that on 23 August 1999:-

20 The file coversheet shows the matter came before Acting Prothonotary Irwin on 13 September 1999 with appearances on behalf of the Plaintiff and both Defendants. The note records “decision reserved”. The chronology records that on that date:-

“Deron seeks leave to amend Statement of Claim and file reply. Judgment reserved on so much of the motion as related to application to amend the Statement of Claim. The balance of motion relating to reply stood over in the circumstance of there being no consent to it being filed and the Registrar not having power to grant leave.”

21 On 11 October 1999, the proceedings were transferred to the Professional Negligence List.

22 On 13 December 1999, when, according to the Associate’s Record of Proceedings, there were appearances for the Plaintiff and the Second and Third Defendants, Abadee J made orders that (For convenience, in this and some other paragraphs, I have numbered the orders made.):-

23 On 4 February 2000 the matter came before Kirby J. There were appearances for the Second and Third Defendants and, according to the Associate’s Record of Proceedings, his Honour made orders:-

24 According to the chronology the orders made were more extensive. It says the directions were:-

“Third Defendant to inform Plaintiff to comply within 14 days with orders made by Abadee J on 13 December 1999 and for the Plaintiff to respond to the Second Defendant’s request for particulars and the Third Defendant’s request set out in its letter of 11 October 1999 that he advises the evidence on which his client proposes to rely on the hearing of the limitation issue.” (sic)

25 According to the Affidavit of Ms Hooke of 25 August 2000, part of which was read, Minter Ellison wrote a letter advising the Plaintiff’s solicitor of these orders. The letter was in terms which substantially accord with the terms just quoted from the chronology.

26 On 21 February 2000 Registrar Irwin delivered judgment on the issue of whether the Plaintiff would be allowed to make amendments to the Statement of Claim. There were 2 substantive amendments sought. One was to sue the Third Defendant on the basis of the retainer said to have been given in September 1970. The second was to sue the Second Defendant for failing to advise the Plaintiff about his rights against the Third Defendant arising out of the retainer said to have been given in 1970. Leave was refused in respect of both aspects of the application. The Registrar’s Reasons also record that “An application to extend time for filing a reply was abandoned.”

27 On 5 April 2000 the matter again came before Abadee J, when it was envisaged that some efforts would be made in the immediate future to resolve it. Liberty was reserved to apply to Sperling J on 24 hours notice. Because the circumstances between 5 and 27 April do not seem to me to reflect on the outcome of the proceedings before me I need not further detail them. On that day the matter came before Newman J who knew one of the parties and disqualified himself. On 28 April when there were appearances on behalf of the Plaintiff and the Second and Third Defendants, the matter came before Barr J. In recorded Reasons, his Honour said that it was listed ostensibly for the separate determination of the questions whether the Second and Third Defendants could rely on the Limitation Act but the Plaintiff sought to bring on for hearing that part of his Notice of Motion filed on 7 July 1999 as sought leave to file a Reply. His Honour was informed that Registrar Irwin’s statement that the application to file a Reply was erroneous and, to the intent that the plaintiff might have the chance to litigate the issues so raised, Barr J made orders :-

1. The hearing set down for today is vacated.

2. Order the Plaintiff to file and serve no later than 26 May 2000 a draft reply by which he pleads disability for the purposes of s52 of the Limitation Act for the purposes of the defences raised under that Act by the Second and Third Defendants, together with all evidence on which he proposes to rely on the issues raised by the proposed reply.

3. Order that if the Plaintiff complies with order 2 his application for leave to file a reply be listed in the first available call-up after 1 July 2000.

4. Order that if the Plaintiff fails to comply with order 2 he be and is precluded from filing any reply in these proceedings. In that event the separate determination of the question whether the Plaintiff is statute barred against either of the Second and Third Defendants will be listed in the first available call-up after 26 May 2000.

5. The Plaintiff is to pay the costs of the Second and Third Defendants of this hearing on an indemnity basis.

28 In light of later events and submissions on the Defendants’ behalf, it should be recorded that in his Reasons Barr J said that the Plaintiff ought to serve on the Defendants “a reply in the draft which it is proposed to file, accompanied by all medical reports and statements upon which he would rely to prove the disability he wishes to plead”.

29 On 26 May 2000, purportedly in compliance with an order of Barr J on 28 April 2000, the Plaintiff filed a list of 24 medical reports indicating that he would seek to rely on them on the hearing of his Notice of Motion to file a Reply.

30 On 21 July 2000 the matter came before Kirby J. The Associate’s Record of Proceedings records that the Plaintiff was represented and the orders were:-

31 The chronology states that the second of these orders was:-

“the plaintiff to file and serve his reply by 28 July 2000 and provide particulars to the defendants by that date.”

32 On 25 July 2000 there was filed on behalf of the plaintiff a Notice of Motion, returnable for 25 August, seeking orders that the Plaintiff have leave to file a Reply in the form annexed. The draft annexed purported to be in reply to the Amended Defences of both the Second and Third Defendants and claimed that because of a disability, the running of any limitation period had been suspended. The document particularised the disability as:-

33 On 25 August, the matter came before Abadee J. The Associate’s Record of Proceedings records that the Plaintiff’s solicitor had ceased to act and a Mr Tzovaras appeared informally that day and that an adjournment was consented to. The orders made were:-

34 In fact it was not until 20 September 2000 that Mr Newman filed a Notice of Ceasing to Act. On 12 October Mr Tzovaras filed a Notice of Appointment of Solicitor dated 5 October 2000. On the Court file is an unsealed Notice of Ceasing to Act by Mr Tzovaras dated 20 October 2000.

35 On 3 October 2000, the matter came before Whealy J. Orders in accordance with Short Minutes of Order, agreed to by legal representatives for the Plaintiff and the Second and Third Defendants, were made. The Short Minutes read:-

36 In her Affidavit Ms Hooke says that the first mention of a tutor was its mention by Mr Tzovaras on 3rd October. (Ms Hooke says 31 October but that must be a mistake.) No Notice of Motion seeking the appointment of a tutor has ever been filed.

37 On 20 October 2000 the matter came before Bell J. Her Honour ordered:-

38 The chronology records that on that date Bell J requested that Mr Tzovaras assist Mr Derron to contact the New South Wales Bar Association pro bono scheme to obtain assistance in preparing an application for the appointment of a tutor.

39 On 15 December 2000 the matter came again before Bell J. The Plaintiff appeared in person, accompanied by his wife and legal representatives appeared for the Second and Third Defendants. Her Honour ordered:-

40 On 15 March 2001, the matter came before Studdert J. In a published judgment within the file, his Honour referred to the “very long and troubled history” of the matter, and that none of the directions of Bell J of 15 December had been complied with. His Honour recorded that the Plaintiff, on whose behalf Ms Fanning of counsel then appeared, had taken advantage of the Bar Association’s pro bono scheme and that the issues of the appointment of a tutor, the application to file a Reply and the proceedings against the Defendants were being considered and that more time for this to occur was sought. His Honour said that standing the proceedings over to 13 July would allow more than sufficient time for that consideration to occur. Saying that the matter would not be permitted to simply drag on indefinitely, his Honour ordered:-

41 On 4 and 6 July respectively the motions by the Third and Second Defendants to dismiss the proceedings for want of prosecution were filed. One may infer from the timing that this was because of a belief that there had been non-compliance with Studdert J’s second and third directions. For reasons which will appear, I regard that view as wrong or, at least, very doubtful but as the Defendants were entitled under Part 33 Rule 6 to file their applications without any permission by Studdert J, I do not think this matters.

42 On 13 July 2001 the matter was again before Studdert J. His Honour was then informed that the Plaintiff would not receive assistance from the pro bono scheme but had been informed of that only within the past day or so. Repeating that the matter could not be allowed to drag on, his Honour fixed the motion for hearing on 27 September and reserved the question of costs. The singular “motion” was used but one may infer that his Honour was referring to all of the motions then current. Remarks made by his Honour on 15 March 2001 support this construction.

43 On 27 September 2001 the matter came before me. The Plaintiff appeared as did Mr C M Simpson for the Second and Third Defendants. Also present was a Mr Carroll from the Legal Aid Office, amicus curiae. Mr Simpson sought to proceed on the motions to dismiss the proceedings for want of prosecution. Mr Carroll advised that the Plaintiff had, on the previous day, lodged an application for Legal Aid and an appeal against a decision made on 8 June 2000 to refuse him aid. I asked Mr Deron what he wished to do and whether he wanted the matter adjourned. His response was:-

“My father used to do everything for me. My father’s died. I’ve got no one to do anything for me, your honour. My mother won’t go nowhere near me. I have got AVO from my mother. None of my family will go nowhere near me. I don’t know what to do.”

44 Other responses by Mr Deron during the course of the hearing were not greatly more pertinent. However Mr Deron did say that he had never received any notice that he had a right to appeal the refusal of Legal Aid to him. Mr Carroll said that when aid was refused, it was standard practice for people to be given notice of their right of appeal and that such a notice had also been given to Mr Deron’s solicitor at the time.

45 In the circumstances, I took the view that I should treat the Plaintiff as seeking an adjournment but hear the motions so far as possible. I then stood the matter over to the following day to consider overnight both the application for adjournment and/or the motions. On 28 September I expressed the view that the matter should be further adjourned and made orders:-

1. I stand the matter over to Friday 16.11.01.

2. I direct the Second and Third Defendants and the Legal Aid Commission to notify the Plaintiff of the adjourned date.

46 I did not provide reasons at the time so I should record that my decision to adjourn the proceedings was inspired by s57 of the Legal Aid Commission Act which provides:-

“Where it appears to a court or tribunal, on any information before it:-

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.

47 I was satisfied as paragraphs (a) and (b) envisage.

48 However, inspired by a desire to prevent the Defendants from losing such benefits as the commencement of the hearing of their motions would confer, and given the extent of the consideration I had given to the matter, I recorded also that I regarded myself as part-heard on the application of the Second and Third Defendants to have the proceedings dismissed for want to prosecution and failure on the part of the Plaintiff to comply with orders of the Court. Regrettably, such benefits have not eventuated.

49 On 16 November the matter was again adjourned. There is no transcript of proceedings on that day and it would seem that nothing of significance occurred.

50 On 13 May last the hearing of the motions resumed, Legal Aid having been granted. An affidavit of the Third Defendant’s solicitor, Ms Hooke, was read. In it Ms Hooke recounted much of the history of the proceedings but also deposed or drew attention to the following:-

Particulars of injuries

(ii) No more detailed particulars of the Plaintiff’s injuries or disabilities have been provided to either the Second or Third Defendants;

(iii) In Reasons given by Sperling J in the decision of November 1995, it was said:-

“It is common ground that the Plaintiff had given notice prior to the accident and that his resignation came into effect on 29 or 30 June 1970.”

(iv) The Third Defendant ceased to act for the Plaintiff on 12 November 1986.

(v) The Second Defendant had made a similar application to that of the Third Defendant filed on 15 June 1999. (I have been unable to find any such application in the Court file. It is not referred to in the Chronology and Master Malpass’ orders of 23 August 1999 argue against the Second Defendant having made such an application.)

(vi) There was no compliance by the Plaintiff with any of the directions made on 13 August 1999, 4 February, 5 April or 28 April 2000 in respect of his further conduct of the proceedings and no explanation given for the failure. The Plaintiff has not complied with the order of Kirby J made on 28 July 2000 to provide particulars.

(vii) No affidavit was filed in support of the Notice of Motion of 25 July 2000 seeking leave to file a Reply. No affidavit was filed in response to the order of Abadee J made on 25 August 2000.

(viii) On 21 September 2000 Messrs Minter Ellison wrote to Mr Tzovaras saying that they had been informed he would receive correspondence for the Plaintiff even though not formally acting and asking for confirmation. The letter also advised that the Plaintiff’s application to file a Reply, understood to be listed for 3 October would be opposed on the grounds of prejudice, that advice had been received from the plaintiff’s previous solicitor that a number of medical reports would be relied on in support of the application and that 16 doctors would be required for cross-examination. The 16 doctors are virtually all of those listed in the Plaintiff’s list filed on 26 May 2000. Minter Ellison received no reply.

(ix) On 26 September 2000 a letter enquiring what was happening was sent to the Plaintiff. Again there was no reply.

(x) No application was filed in response to the orders of Whealy J on 3 October 2000. The plaintiff did not comply with the orders of Bell J on 15 December 2000.

(xi) Since the matter was transferred to the Professional Negligence List, the matter has been before the Court on 11 occasions. Other than serving a Notice of Motion for leave to file a Reply the Plaintiff has failed to comply with any of the directions.

51 Ms Hooke addressed the issue of the appointment of a tutor. She said that no tutor had previously been appointed notwithstanding the Plaintiff had been represented in:-

52 Although there is no doubt that the Plaintiff has not complied with some of the orders or directions which have been made, I do not accept the accuracy of some of Ms Hooke’s statements to that effect. It does not seem to me that, in expressing the matter as she did, Ms Hooke always gave sufficient recognition to the fact that inaction following many Court directions does not amount to non-compliance. Thus an order to file any affidavits on which a party may wish to rely in support of an application does not required the filing on any affidavits if none are to be relied upon. In that situation it may be that in consequence the particular application is doomed to failure, or the inference should be drawn that it will not be pursued, but there has been no failure to comply with the order. On the issue of non-compliance, I prefer to rely on the history of proceedings I have set out above.

53 On the issue of prejudice, Ms Hooke said she was an experienced solicitor in Minter Ellison’s litigation department. She said that from her experience, the longer the period of time since a cause of action accrued, the greater the difficulty in obtaining and preparing evidence to be led in any hearing. I have no difficulty in accepting this proposition.

54 Ms Hooke also said that although the proposed Reply refers to an alleged period of disability from 1970 to 1988 and to prepare a response for the Third Defendant it will be necessary to review the alleged disability over that period, she still has no precise information as to the evidence the Plaintiff proposes to rely on in his application to file the reply. This statement does not seem to be correct. In light of the number of orders made for the supply of evidence to be relied on in support of the Plaintiff’s application to file a Reply, his supply of only a list of medical and like reports is a clear statement that that is all he relies on.

55 Ms Hooke said that from documents she had seen it appeared the Plaintiff was employed for some of the time during the 18 years and annexes letters from third parties indicating that the Plaintiff was employed with the Electric Lamp Manufacturers (Australia) Pty Ltd from 24 September to 2 October 1970, by HCB Electric Pty Ltd from 22 April 1974 to 12 March 1975 although for some weeks of the time the Plaintiff was on workers compensation or sick leave, and from the Lake Macquarie Shire Council indicating the Plaintiff was employed from 2 to 31 January 1973. It is worth recording that the letter from that organisation observed that the plaintiff was “slightly mentally handicapped”.

56 HCB Electric Pty Ltd said their wages book from 12 March 1975 had been misplaced and they could not say when the Plaintiff left their employment. Ms Hooke asserted that the Plaintiff had also been employed by Graincorp Limited but attempts to obtain further records of the Plaintiff’s employment have been unsuccessful.

57 Again, I have no difficulty in accepting this evidence. However its significance bears examination. When actions come on fairly close to the occurrence of a cause of action, a Court is required to make, on the basis of sometimes limited information, an assessment of a Plaintiff’s capacity to work in the future. In a case like this, there is likely to be more reliable information of what has actually occurred and of a Plaintiff’s capacity. The quantity of relevant evidence may be greater and the task of seeking such evidence is likely to be greater. Compared with a case brought early, in a case like this one a greater amount of evidence is likely to be unobtainable but there is also a reasonable prospect that more will remain. While I accept that the workload is greater and, to that extent a Defendant is prejudiced, I am not persuaded that in other respects a Defendant is prejudiced in this area of employment by the delay.

58 Ms Hooke also said that enquiries revealed that of the 17 doctors or medical or the like specialists listed in the Plaintiff’s Schedule of Expert Evidence filed on 26 May 2000, one who now resides in Queensland had said that he had no recollection of the Plaintiff, one had died and one was no longer listed in the Medical Directory of Australia. Ms Hooke also said that another doctor, Dr Barnard who had cared for the Plaintiff when admitted to hospital in June 1970, has died and a Mr Chambers, a neurological specialist who had been consulted by the plaintiff in 1970 has also.

59 Ms Hooke also recounted statements by others who had had some contact with the Plaintiff over the years but whose recollection seemed to have faded.

60 Again these matters must be seen in context. The passage of time would seem to have enabled the Plaintiff to see far more doctors than would probably have occurred if the case had been brought on for trial earlier. While some may be unavailable far, far more than are usually available remain. The evidence does not persuade me that any who have died or are unavailable were particularly significant. Given the number of patients who most doctors see, it is not uncommon for them to have little or no recollection of any particular patient even 5 or so years later unless there has been substantial contact.

61 I do accept that the delay is likely to make cross-examination of doctors who may have written reports favourable to the Plaintiff more difficult. However, even this must be seen in the context that often, judges are asked to act on the basis of conflicting reports without cross-examination. I deprecate that method of conducting cases, and there is nothing to indicate whether or not it was likely to be employed in this case, but unless the disadvantages of delay are seen in context, it is easy for them to be given undue weight.

62 To an appreciable degree, some of the considerations to which I have adverted when considering the employment information and doctors apply to other witnesses also. Those considerations would probably not operate as strongly in relation to an isolated event such as the circumstances of the Plaintiff’s accident but, possibly because there are contemporaneous records or statements of what occurred, the Defendants have not alleged any prejudice in that respect. I do not need to rely on this but the Reaasons for Judgment on BHP’s application certainly suggest that BHP’s record keeping may have been above average.

63 Also read was an affidavit by a Mr Alder, a solicitor in the employ of Messrs Ebsworth and Ebsworth, the solicitors for the Second Defendant. He deposes to being instructed by the Second Defendant that as at 25 May 1972 the latter was an articled clerk with Baker Love and Geddes, that Mr Geddes took the initial instructions from the Plaintiff on that date, that between May and November 1972 and to some extent later Mr Geddes worked on the matter, and that Mr Foggo’s involvement commenced in November 1972. Mr Geddes died on 24 October 1992. Mr Foggo has informed Mr Alder that his recollection of the matter is extremely poor and would have been better even 10 years ago. There was no evidence adduced to indicate to what extent file notes and other documents tending to support or destroy the Plaintiff’s claim may exist.

64 On behalf of the Plaintiff there was read an affidavit of the Plaintiff’s wife, a short affidavit of Mr Carroll annexing a letter to a Dr Murray and a medical report from Dr Murray. As in the case of the deponents on whom the Defendants relied, none of these persons were cross-examined. Mrs Deron said that the Plaintiff had great difficulty in reading and writing and in concentrating or attending to any task. He cannot understand a newspaper article and does not do household duties. She performs these and controls the household finances. She recounted attempts to obtain help from the New South Wales Law Society and the Bar Association and from legal firms that those organisations nominated. Some of these firms she said wanted money up front, some did not return calls, and some would not take the case on because they were clients of BHP. She said that the Plaintiff was granted Legal Aid on 29 October 2001.

65 I need not refer to the contents of Mr Carroll’s affidavit. Dr Murray said that since the Plaintiff came under his care in mid 1992, he had seen the plaintiff several hundred times. Dr Murray’s conclusion was that:-

“Mr Deron suffers an Organic Personality Syndrome and currently non-progressive Dementia both of which are probably attributable to a combination of the experience of cranial trauma and chronic alcoholism. He suffers Chronic Pain Syndrome. He suffers polysubstance abuse.”

The extent of contribution of pre-injury personality style to the clinical picture has been impossible to determine in the absence of partial corroboration.

The net result of these various disorders is that Mr Deron is significantly disabled.”

66 Dr Murray, in what appears to be a very thorough report, also recorded information he had received from at least 8 other doctors or institutions wherein the Plaintiff had been treated. It appears that the Plaintiff was admitted to Morisset Hospital in May 1980 for alcohol abuse. There he gave a history of constant headaches since his 1970 injury but the diagnosis included “normal IQ and no evidence of organic damage”. However many other diagnoses have included findings of organic brain damage. Dr Murray concluded with the remarks that:-

“In my view Mr Deron’s capacity to understand and remember varies significantly from time to time. He is largely illiterate, and poorly educated otherwise – in my view, this tendency towards persecutory interpretation often substantially proceeds from misunderstanding. In my experience with Mr Deron it is [possible, with careful explanation and repetition over several interviews (often three or more), particularly if his wife attends with him, to obtain an account, or decision, that Mr Deron does not later repudiate.”

67 I turn now to the conclusions that seem to me should be drawn from the above.

68 Although it was made clear that the Defendant’s primary case was based on the Plaintiff’s failure to proceed with due despatch, reliance was also placed on what were said to be defaults by the Plaintiff in complying with the orders made directed to facilitating or hastening the progress of the proceedings. At the cost of repetition, it is convenient to summarise the history of orders made in this regard and what ensued.

69 The issue of an extension of the limitation period was raised in the Plaintiff’s Notices of Motion in 1988 and 1992. In 1994 these were stood over generally. On 7 July 1999, the topic was raised again when the Plaintiff filed a Notice of Motion seeking to file a Reply in specific terms to, only, the Second Defendant’s Defence. The issue seems then to have been encompassed by the orders of Master Malpass on 23 August 1999, Abadee J in December 1999 and Kirby J in February 2000 for, absent the Reply and evidence in support, there was nothing to debate on the limitation issue. An alternate view, supported by the remarks and orders of Barr J on 28 April 2000 is that the matter of a Reply was somehow overlooked or the subject of some confusion.

70 On that day Barr J ordered the provision by 26 May of a draft Reply and evidence in support. On 26 May the Plaintiff filed a list of medical reports to be relied on though, it would seem, no draft Reply. No explanation for the failure to file the draft Reply appears. In terms, only a list of medical reports and not the reports themselves does not comply with the order for the provision of evidence although the significance of the difference would depend on whether the Defendants had copies of the reports. There was no evidence that the Defendants did not have the reports at relevant times and counsel appearing for the Defendants before me properly conceded that his solicitors did in fact have most. The orders made on 21 July, in their failure to refer to the provision of evidence or the reports would seem to suggest that the Defendants had the reports although the second order of Abadee J made on 25 August makes that inference somewhat harder to draw.

71 Weight must be afforded also to the terms of the fourth direction made by Barr J on 28 April although the orders of Kirby J on 21 May and Abadee J on 25 August somewhat ameliorate this.

72 I have not seen the reports but, given that at least some of them could be expected to contain a deal of history concerning the Plaintiff, that a hearing on whether time for filing a Reply should be extended is interlocutory and the terms of the Evidence Act, I do not see in the absence of any affidavit from the Plaintiff himself evidence of non-compliance with the Court’s order. It might also be remembered that Barr J, on 28 April 2000, in a passage I have quoted contemplated that medical reports might well form a major part of the Plaintiff’s evidence on the application.

73 A draft Reply was again ordered on 21 July 2000 and supplied within the week stipulated. On 25 August the application for leave to file the Reply was set down for hearing on 26 October but the hearing on that date was, on 3 October, vacated. Since then there have been orders on 25 December 2000, and 15 March 2001 for the filing of any other evidence in support of the application to file a Reply but none has been forthcoming. For reasons I have indicated, I do not regard this as a breach of the orders if no further evidence is to be relied upon. There is no clear evidence any is and, if produced at the last moment, there is a clear basis for the Court to preclude its use.

74 A second area of possible non-compliance with orders or directions arises from a number of orders dealing with the appointment of a tutor. Orders for the filing of a, or any, Notice of Motion in that regard were made on 3 and 20 October, 15 December 2000, and 15 March 2001. Again, given the nature of the topic, if there is no intention to make such an application, I do not regard failure to file such a Notice of Motion by a specified date as a breach of such an order. The evidence of Ms Hooke indicates that there was such an intention, at least in Mr Tzovaras on 3 October. The number of subsequent references to the topic suggests that that intention may have continued although they are also consistent with continued indecision on the issue. Given the evidence, including that of Ms Hooke, of the extent of litigation without a tutor, and the evidence of Dr Murray, one can understand the indecision. Although I regard the matter as very doubtful, in the end, I think there was some non-compliance with one or more orders dealing with the filing of a Notice of Motion for the appointment of a tutor.

75 The raising of the topic of a tutor’s appointment would seem to have been at least a cause of the aborting, on 3 October, of the hearing scheduled for 26 October 2000.

76 A third area which raises the issue of non-compliance with orders is the topic of particulars. The Plaintiff was ordered to supply them on 13 December 1999, 4 February 2000, and 21 July 2000. None of these orders has been complied with.

77 The ground urged most strongly on the Defendants’ behalf was the Plaintiff’s delay and there can be no doubt that the Plaintiff’s side of the record has been guilty of substantial delay in the prosecution of his claim against the Second and Third Defendants. In the words of Part 33 Rule 6, the Plaintiff “has not prosecuted the proceedings with due despatch.” Even if one puts to one side the delay between 1970 and 1988 upon the ground that one or other or both of the Defendants were or may have been largely responsible for it and the period from August 1994 to March 1999 when the proceedings against the Second and Third Defendants were in practical terms suspended, there remain the 18 months from November 1986, when the Third Defendant ceased to act, to June 1988 when the Statement of Claim was filed, the 6 year period from June 1988 to August 1994 when there was little progress (though a deal of sparring) and the period since March 1999. And the periods 1970-1988 and 1994-1999 cannot be wholly put aside. Even on the assumption, which I think should be made, that the Plaintiff’s side of the record was not responsible for the delay in the progress of the litigation against the Second and Third Defendants during these periods, their passing is still calculated to create or contribute to the difficulty of conducting or continuing that litigation now. The delay for which the Plaintiff’s side of the record is responsible and that for which it is not, each tend to compound the effect of the other.

78 In the course of the proceedings attention was concentrated on the length of the 32 year period since 1970 and events since March 1999 and, given the history, it seems to me that, insofar as any default or failure to proceed with due dispatch by the Plaintiff is concerned, it is this latter period which dominates. There is no explanation why, when the Plaintiff’s application to file a Reply out of time was filed in July 1999, then or shortly afterwards it was not accompanied by the evidence proposed to be relied on in support and there was fault on the Plaintiff’s side of the record in that omission. However in that no directions for the filing of such evidence seem to have been made prior to, at the earliest, Abadee J’s orders of 13 December 1999, one might infer the Second Defendant – the only one against whom the Plaintiff sought that time be extended - did not press the issue.

79 It is not obvious why part only of the Plaintiff’s claim for relief made in the Notice of Motion of 7 July 1999 was sent for determination in September. The preponderance of evidence in the form of the inherent probabilities, the entry of 13 September 1999 and what occurred after the registrar’s decision was made leads to the view that his statement that the “application to extend time for filing a reply was abandoned” was incorrect. Nor is it apparent whose “fault” the fact that this reference was limited may have been.

80 It seems probable that the absence of evidence in support of the Reply part of its Notice of Motion of 7 July 1999 and perhaps a failure to pursue the application with due despatch, is likely to have caused some delay in the period prior to proceedings coming before Abadee J in December 1999 but, given the reference off of the amendment part of that Notice of Motion, and the passage of time before the registrar’s decision was made, and the placing of the proceedings in the Professional Negligence List – an event calculated to stall proceedings for at least a short time, it is difficult to quantify how much delay due to the Plaintiff, and prior to the matter coming before Abadee J, there would have been.

81 I am not disposed to impose any separate blame on the Plaintiff for the delay between then and 28 April 2000, although one must recognise the possibility that had the evidence been filed when it should have been, the chances of the matter been determined prior to April would have been greater. But there is nothing positive to suggest that the passage of time between December 1999 and April 2000 was due to action or inaction on the Plaintiff’s side of the record as opposed to delays within the Court structure. On the other hand during this period the Plaintiff did not provide the evidence needed for the extension of time that he sought and this and the order for costs made on 28 April provide persuasive evidence that the adjournment which occurred on that day was the fault of the Plaintiff’s side. This conclusion does not require resolution of the question whether the Court records or the solicitor’s account of the orders made on 4 February 2000 are correct. The Plaintiff should have provided the evidence without any order being made. At least the six months delay from 28 April until the 26 October 2000 was the consequence. Given the list of medical reports filed on 26 May and the Notice of Motion filed on 25 July, I do not regard any other event prior to 3 October 2000 as exacerbating this delay.

82 On 3 October 2000 the issue of the appointment of a tutor appeared. That and difficulty in obtaining legal representation effectively occupied the next 9 or 12 months until the matter came before Studdert J on 13 July 2001 and me on 27 September 2001. The Plaintiff’s pursuit of legal representation (and the terms of the Legal Aid Commission Act) then delayed things until November 2001, or May 2002. Of course since before November 2001 the Defendants’ application to dismiss for want of prosecution has also been on foot.

83 In summary, it seems to me that the Plaintiff’s failure, since March 1999, to proceed with due despatch has been as follows. By not having evidence to support his application for an extension to file a Reply ready, he probably caused some unquantifiable delay prior to 28 April 2000 and certainly caused 6 months delay from that date. The question of the appointment of a tutor and the search for legal representation were the significant causes of the delay from October 2000 to at least November 2001. It is a matter of speculation whether, had the earlier delay not occurred, the tutor question and the search for legal representation would not have arisen at some time. The delays were not caused by or contributed to by the Plaintiff’s failure to comply with orders for the supply of particulars. To some degree some of the delays have been associated with the failure to comply with orders relating to the appointment of a tutor. In light of my analysis, I am not persuaded that failure to comply with orders for the provision of evidence or the supply of a draft Reply has caused any delay.

84 One other matter which must in my view be recognised is that, in respect of the 7 months from November 2001 to May 2002 and some of the periods before, a major contributing factor lies in the Court system whereby judges’ times are allocated for months in advance and if matters cannot be dealt with on an appointed day, they are then adjourned to an unallocated date generally a lengthy period ahead. It might, of course, be said that as that is part of the system, litigants whose default results in loss of an opportunity for any hearing, must be regarded as responsible for all the consequences but although there is some weight in this, it seems to me that it is limited.

85 The Plaintiff has called no evidence specifically directed to the reasons for any of the defaults or delays which have occurred but explanations for most delays, other than the failure to provide evidence prior to April 2000 are apparent. One matter relevant in the determination of applications such as I am dealing with is whether a party himself or his legal advisers are responsible for delay or default so I should record my view that it is most probably Mr Tzovaras rather than the Plaintiff himself who conceived and pursued the idea of the appointment of a tutor. There is no evidence which argues for the conclusion that one person rather than another was responsible for the failure to provide evidence prior to April 2000. The Plaintiff’s economic circumstances as suggested by his occupation, his personal circumstances as described by his wife and Dr Murray, and problems in his case, provide a ready explanation for difficulties in obtaining legal representation.

86 The principles which apply in applications such as this were considered at length by Simpson J in Hoser v Hartcher [1999] NSWSC 527. Included in what her Honour said was the following:-

“It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive:

Stollznow v Calvert

Razvan v Berechet

Vilo v John Fairfax and Sons Ltd

Razvan

Stollznow v Calvert

Burke v TCN Channel Nine Pty Ltd

(4) personal blamelessness on the part of a plaintiff(as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow , p73. ….

Calvert v Stollznow

Burke v TCN

(7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;

Burke

McBride v ABC

Razvan

The State of Queensland v J L Holdings Pty Ltd

87 With this statement I agree. To it I would add two further references I included in a decision of Clarke v Garling [2002] NSWSC 968 where I said:-

Cropper v Smith

Queensland v JL Holdings Pty Ltd

88 To the extent to which they depend on evidence, I have made reference to most of the matters mentioned by Simpson J as are significant here. However I should say something about the Plaintiff’s prospects of success. The only aspect of it canvassed during the course of the argument before me was the issue of the Limitation Act. It was submitted on behalf of the Defendants that the Plaintiff had no prospect of success. However that seems to me very much to depend on whether the Plaintiff is permitted to file a Reply and whether the limitation period should be extended. Given the principles about allowing the real issues between parties to be litigated, I would certainly not regard the application to file a Reply out of time as hopeless. Given I have not seen the medical reports, nor could I take that view about the Plaintiff’s prospects of having the limitation period extended.

89 I should also refer to the fact that the Defendants placed reliance on the terms of Part 1 Rule 3 of the Rules. So far as relevant, this provides:-

(1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings.

(2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule.

90 It may well be that this rule tilts the balance more in favour of applicants under Part 33 Rule 6 than it was under the decisions quoted by Simpson J and myself but, given that the rule gives “just” as much emphasis as “quick”, the change is limited.

91 During the preparation of these Reasons my mind has vacillated as to what should be the outcome of the Defendants’ applications. There is certainly a strong temptation to say that, if directions of the Court are to have any effect at all, the proceedings should be dismissed. In practical terms in this case they have largely been a waste of time. And it is clear that the Plaintiff has made default in complying with orders and directions and has not prosecuted the proceedings with due despatch.

92 Against this is the fact that it is impossible to blame the Plaintiff personally for some, and perhaps, much of the delay. Furthermore, I am not persuaded that the delay has imposed much by way of prejudice on the Defendants. Given the extent of the detriment – the complete loss of rights, which, though not yet established, may be valuable - to the Plaintiff if the orders are made, I am not persuaded that the proceedings should be dismissed.

93 I am a little comforted in that decision, though I do not rely on it, by the fact that the Plaintiff has now been granted legal aid and there should be no cause for further delay. One cannot but be conscious of the fact that litigation, where a Plaintiff’s chances are doubtful and his legal advisers may not be paid, tends not to be conducted as efficiently as in other circumstances.

94 The Notices of Motion of the Second and Third Defendants respectively dated 6 and 4 July 2001 are dismissed. Given the circumstances there is something to be said for the view that each party should pay its own costs but I will afford the paries an opportunity of debating that if they wish. Clearly the Plaintiff’s motion to file his Reply out of time should be brought on as soon as possible and it may be appropriate to make directions in that regard.

Last Modified: 01/06/2003

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Citations

Deron v BHP Company Limited [2002] NSWSC 1164

Cases Citing This Decision

0

Cases Cited

4

Statutory Material Cited

0

Hoser v Hartcher [1999] NSWSC 527

Clarke v Garling and Genev and 1 Or [2002] NSWSC 968

Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274

CITATION:	DERON v BHP COMPANY LIMITED [2002] NSWSC 1164
FILE NUMBER(S):	SC 12899/88
HEARING DATE(S):	16.11.01; 13.5.02;
JUDGMENT DATE:	5 December 2002
PARTIES :	Plaintiff: William John Deron Defendant: The Broken Hill Proprietary Company Limited and 2 ORS
JUDGMENT OF:	Hulme J at 1

COUNSEL :	Plaintiff: Legal Aid Commission Defendant: CM Simpson
SOLICITORS:	Plaintiff: Legal Aid Commission Defendant: Minter Ellison
DECISION:	Notices of Motion of 6 and 4 July 2001 dismissed.