Dunn, T.R. v Bohemian Sound Pty Ltd

[1985] FCA 202

4

NOTE: - NOT APPROPRIATE FOR REPORTING OR FOR GENERAL CIRCULATION

(m)

IN THE FEDERAL COURT OF AUSTRALIA ) )

VICTORIA DISTRICT REGISTRY	)	No. VG 153 of 1981
)

DIVISION	GENERAL	)
BETWEEN :

TERRY ROBERT DUNN .S ORS. ApFlicants

and

BOHEMIAN SOUND FTY LTD .S ANOR Respondents

MINUTES OF ORDER

COURT: Woodward J.

DATE : 8 May 1985

PLACE: Melbourne

THE COURT ORDERS THAT:

1. The application be dismissed.

2. Costs of the application be c o s t s in the cause.

(Settlement and entry of orders is dealt wlth by 0.36 of the

Federal Court Rules).

NOTE: - NOT APPROPRIATE FOR REPORTING OR FOR GENERAL CIRCULATION

(m)

IN THE FEDERAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	1 NO. VG 153 of 1981
)
GENERAL DIVISION	)
BETWEEN :

TERRY ROBERT DUNN & ORS Applicants

V

BOHEMIAN SOUND PTY LTD & ANOR Fespondents

COURT : Woodward J.

DATE : R May 1985

PLACE : Melbourne

EX-TEMPORE JUDGMENT

This is an applicatlon, by way of notice of motlon, to

have a matter struck out for want of prosecution. I have found It

rather more difficult to determlne than I thought I would when I

f i r s t 1uukt.d <rL Lhc papcr 5. Mr G r c c ~ h c r y e r h s put I o r w , l r d

persuasive argument in favour of the course whlch he urges upon me, but in the event he has not persuaded me that I should take the drastic actlon of dismissing the application.

I am satisfied that I have the power to do so, because such power is inherent in the procedures of every court. If any

authority were needed for that proposition, 1 would refer to the

case of Exell v Exell 1984, VR 1 and cases there cited.

However, the point a which, in my view, Mr

Greenberger's case breaks down, is when he is required to

establlsh to my satisfaction that there is "a substantial risk

that a fair trlal of the issues will no longer be posslble", to use the words of Diplock LJ in Allen v Sir Alfred McAlpine & Sons

(1968) 2 QB 229 at 2 5 5 ; see also Duncan v Lowenthal, 1969 VR

180 at 187. In the event, I am not satlsfied that thls actlon is

not still capable of being tried adequately and fairly, McKenna v

McKenna 1984 VR 665 at 683.

I take that test, of whether a falr and adequate trial

of the Issues would still be posslble, as being the appropriate

test for me to apply, putting to one side the rather stronger

language found in'the ~udgment of Lord Denning MR in Allen v

McAlpine (above) at p.246 where he seemed to suggest that an

applicant for such an order has to show that "grave inlustlce"

would he likely to result if the order were not made.

I should say, before dealing with the details of the

evldence as to possible pre~udice to the respondents, that I am

satisfled that in this case there has been an "inordinate and

inexcusable delay" on the part of the applicants' solicitors (see

Allen v McAlpine above). That delay extended over a period of

some two and a half years, perhaps even longer, and is explained

simply by saying that the matter was put to one side and forgotten

about in the sollcltors' office.

3 .

The extent of involvement of the applicants themselves

in the delay is not entirely clear to me. It seems that durlng

the relevant period there was some communication between them and

their solicitors' office on other matters; but there is no

sugqestion that they were in any way pressing their sollcitors to

proceed wlth the matter, and I think that the absence of any

evidence from them to that effect permits me to draw the inference

that they are also implicated in the delay.

So the first requirement for an order for dismlssal for

want of prosecution has, I flnd, been satisfied; there has been

Inordinate and inexcusable delay on the part of the appllcants.

So far as prejudice to the respondents is concerned, I am not persuaded by the evldence put before me that It is likely that a

falr and adequate trial of the Issues cannot stlll be had.

The main issue in this matter, which arises from the

sale of a 'HI-fi' retail business, is gomg to be what

representations were made about the sale of this business, and

there seems to be no difficulty so far as evidence on that issue

1 s concerned. The second-named respondent is the person who made any oral representations and he is available to give evidence.

All the relevant documents are apparently still In existence, and

an affldavit of discovery has been sworn.

It is true that there will be a number of other issues

to be determined, and one qulte important matter could be -

although I cannot be certain of this - the way In which the

business was conducted, flrst under the management of the

4.

respondents, and secondly by the applicants. I think am

entitled to make assumptions, from experience	o	'f other siml	.	lar
h<,
1 n

this area that the likely prejudlce to the respondents wlll lie.

I am informed that two potential witnesses have dled

durlng the period between the issue of the proceedlngs and today,

both of whom could have given some evidence about the way in whlch

the business was conducted, before and after its transmission

between the parties. The first of those people was described as

being a retlred gentleman and the second a s a parking officer, but

there is nothing to indicate the extent of their knowledge of the

business, elther before or after the sale and transmisslon

occurred. Nor is there any evidence before me	as to how many
people are avallable to glve slmilar evldence.

I suppose it would be reasonable to draw the Inference that of these two witnesses, the one who died recently, some eight

months ago, would have been available to give evidence had the

matter come to trial in the ordinary course of events, without any

avoldable delay. It is not so clear that the other person, who I

am told died approxlmately two years ago, would have been well

enough, or indeed even alive, to give evidence had the matter come'

on for hearing in its due course. However I would be prepared to

infer, on the meagre evidence available to me, that it is more

probable than not that that evidence would have been avallable.

5.

It is said that two other people, who were nearby

shop-owners, who could have said something about the way in which

the business was managed after its sale to the applicants, are

currently in Noosa Heads, Queensland, but I am not told whether

they went there before or after the delay occurred In these

proceedlngs, and in any event there is no suggestion that it would

not be possible to brmg them back again to give evidence.

I am told next, in the affidavit material, that there

were several representatives In the electronics industry, with

which this buslness was concerned, who have been dlfflcult to

find. I use the precise words of the affidavlt in saylng that.

The deponent, the second-named respondent, goes on to

say that he has not been able to locate three named people with

whom he had dealings, but there is no evidence before me as to

what efforts have been made to locate those people; what further

efforts are stlll available; what evidence they could have given

If they had been able to be found; or what other representatives

of flrms involved in the electronlcs industry are, in any event,

availahlp t n g ~ v - s i m i l a r Pvlrlenre-

Finally thpre is a reference to sonerme ralled Ch~ryl

Boyle arid her parcrlls, who it is sald. could testify as to the

operatlon of the buslness under the control of the applicants and

respondents respectively. It is said that those people are

operating a caravan park in New South Wales and that the deponent

is not aware of the town in which they reside; but it is not

suggested that any efforts have been made to establish the town in

6.

which they reside, through any search of electoral records or of

publications which publicise caravan parks or in any other way,

nor is there any evldence as to the precise nature or importance of the evidence which those people might have been able to glve, nor of the time when they left Vlctoria and went to New South Wales. There is nothing before me to indicate whether losing

track of them is connected with the delay whlch I have found in

this matter.

Obviously, in dealing with a case such as this, there

are several groups of people who could be in a posltion to give

evldence about the way in which a business was run before and

after changing hands. Neighbourlng shop-owners come to mind; the regular customers of the buslness are an obvious source of evidence; the dealers whu came to the premises to sell or try to

sell goods on behalf of their principals could also be a valuable source of evidence, if the way in which the buslness was conducted

proves to be an important issue I n the case. And I am simply left

wlthout any information as to the availability of people of each

of those clas???, beyond the fact that some members of each class

are either unavailable through death - in two cases - or may prove

difficult to track down in several other cases.

When all the matters I have dealt with are put together,

I find myself quite unable to be satisfied that thls matter cannot

still be tried fairly and adequately, whlch, as I have said, is

the test that I have to apply. For that reason the application

must fail. Before concludlng my reasons for that decision I

should perhaps say something about another issue whlch was

7.

canvassed by counsel. Even though the period of limitations for

actions under the Trade Practices Act 1974 has expired, it would

still be open to the applicants to brlng fresh proceedings in the

Supreme Court relying, it would seem, upon claims of fraudulent

mlsrepresentation. seeking damages and setting out vlrtually the

same facts as	have been alleged in the proceedings before this
court.

It is clear that the lssues which would be Involved in

the Supreme Court action would be some of the issues whlch will

have to be determined In this Court, and certainly the same type

of witnesses would be required in those proceedings, as far as I

am able to judge on the material before me. However, I think that

there is a difference between thls case and English cases, such a

Rirkett v James 1977 2 All ER 801, which dealt wlth this issue, because there are a number of remedles available to the appllcants

under the Trade Practices Act 1974 which would not be available in

the Supreme Court, and the matters that would have to be proved by

the appllcants would not be as demanding in this Court as in the

Supreme Court. Thus there would, I believe, be a positive

advantage to the respondents In havlng the matter dlsmlssed for

want of prosecutlon In this Court and leavlng the appllcants to

thelr remedies in the Supreme Court.

For that reason, I believe, the English authorltles are

not d i r p r t l y in point, a l t h m ~ g h h n d T fmmd ~t nprpssary to do so

I would probably have given some weight to the fact that some	of
the matters involved could still have been litigated in another

Court, where the same problems wlth witnesses would stlll have

8.

arisen, and that even further delays would have been Involved

before the matter could have been brought to trial. But In the event I have not found it necessary to take those questions into

account in reaching the decision that I have. For the reasons

which I have qiven the applicatlon will be dismissed, but because

I think it was properly and reasonably brought, due to the default

of the appllcants, I	shall order that the costs	be costs In the
cause.

I certlfy that this and the

seven ( 7 ) preceding pages are

a true and accurate copy of the

Reasons for Judgment herem of

The Hon Mr Justice’Woodward

@%- Associate

Dated: 0 May 1985