| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : EVERTOP INVESTMENTS PTY LTD -v- CROFT [2012] WADC 98 CORAM : DEPUTY REGISTRAR HEWITT HEARD : 20 JUNE 2012 DELIVERED : 5 JULY 2012 FILE NO/S : CIV 2735 of 2004 BETWEEN : EVERTOP INVESTMENTS PTY LTD Plaintiff
AND
RODNEY KIM CROFT
First Defendant
JANICE ANNE CROFT
Second Defendant
Catchwords: Practice and procedure - Application to dismiss for want of prosecution - Principles discussed Legislation: Nil
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Result: Application dismissed Representation: Counsel:
Plaintiff : Mr A Metaxas
First Defendant : In Person
Second Defendant : In Person
Solicitors:
Plaintiff : Metaxas & Hager
First Defendant : Not applicable
Second Defendant : Not applicable
Case(s) referred to in judgment(s):
Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93
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1 DEPUTY REGISTRAR HEWITT: By chamber summons filed on the 2 April 2012 the defendant has applied to the court for orders dismissing this action for want of prosecution. The action commenced by writ which was filed on the 2 December 2004. It is in essence a claim for goods sold and delivered. By a chamber summons dated the 24 December 2004 the plaintiff applied for a summary judgment. Affidavits were filed supporting and opposing that application but it has never been resolved. At the present time there is no defence on the court file there being of course no requirement to file such defence until the summary judgment application is disposed of. By any standards the rate of progress in this action has been extremely slow.
2 In part the explanation for that state of affairs arises through other proceedings commenced by the defendant against the plaintiff and others in the Federal court of Australia. Both proceedings arise out of a relationship of franchisor and franchisee under which certain funds were received by the franchisor which were intended to be applied for the advancement of the entire franchise business and which by the allegation of the defendants in their federal court proceedings were misappropriated and used for purposes other than that for which they were paid. 3 The progress of those actions in the Federal court appears to have been little better than the action in the District Court and those actions as with this action have likewise never been determined. In part the delay in this case appears to have arisen because the parties have agreed through a number of consents to adjourn these proceedings presumably to await out the outcome of the federal court proceedings. By my calculations there have been in excess of ten consent orders under the terms of which the plaintiff and the defendant agreed to adjournments of the proceedings in this court. There was also a complication which occurred when Mr Croft was declared bankrupt whilst he appealed against that sequestration order with ultimate success. The last of the occasions when the matter was adjourned seems to have been on the 29 April 2010 when by letter from the plaintiffs to the court, the court was advised that Mr Crofts appeal against the sequestration made against him had been heard but judgment was yet to be delivered. At an appearance on the 2 August 2010 a representative of the plaintiff attended but there is no indication that the defendants attended and the court was advised that the sequestration order had been set aside. There was also mention within the notes made by the registrar that day that the plaintiff intended to discontinue the present proceedings and proceed with them by way of a counter claim in the Federal court proceedings. That did not ever happen and it is not now possible for it to happen because the counter (Page 4)
claim, were it to be commenced in the Federal court, would face a limitation defence. On the 22 December 2011, the plaintiff, prompted by a notice advising that the matter had been placed on the inactive list, applied to reverse that situation which occurred on the hearing of the application on the 30 January 2012. There is a controversy as to whether or not that chamber summons was ever successfully served, it being forwarded by registered post and there being produced no evidence that the letter was collected. Notwithstanding that matter the court on the 30 January 2012 ordered a directions hearing to take place on the 12 March and that did in fact take place and the first named defendant attended in person. At that time the court ordered the plaintiff to enter the matter for trial within 21 days. 4 It appears that counsel representing the plaintiff was under the impression that a defence had been filed. A more thorough examination of the file revealed that not to have been the case. Whatever difficulties that may have caused, the situation was superseded by the plaintiff filing the present application on the 2 April. 5 There are a number of authorities that bear upon the principles to be applied on an application of this kind. In my view the cases are adequately summarised in the defendants outline of submissions and the matters to be considered are: (1) the length of the delay; (2) the explanation for the delay; (3) the hardship to the plaintiff if the action was dismissed; (4) the prejudice to the defendant if the action is allowed to proceed not withstanding the delay; and (5) the conduct of the defendant in the litigation. 6 Support for that summary of the relevant principals is to be found in Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93. In addition to those principles there are further matters to be considered, one of which is whether the delay has been intentional or contumelious. On the latter point I observe on my perusal of the file that all adjournments appear to have been consensual and the defendant did not at any time, save for the filing of the present application, agitate to progress matters. It appears to have been the view of the parties that their interests would be best served by allowing the proceedings in the (Page 5)
Federal Court to run their course. There was at one stage a proposition that the cause of action embodied in this action might become a counter claim in that court but for reasons which are not entirely clear to me that did not happen and would not be possible to happen at the present time save by the clumsy expedient of transfer to the Supreme court and then to the Federal court. It is doubtful in my view whether that could be achieved without the co-operation of the defendants to this action and it is fairly clear that co-operation will not be forth coming. 7 There is effectively no explanation as to the delay from about August 2010 until the application brought by the plaintiff's on 22 December 2011. I think at a reasonable inference from the facts which are presented before me that there was a general acquiescence between the parties that it was appropriate for this matter not to proceed. Certainly the defendants gave no indication that they were not content with that state of affairs and had up until the date I have mentioned to positively co-operated in achieving that outcome. The next issue to consider is the hardship to the plaintiff in the event that the action is dismissed. That prejudice is clear. The action will be statute barred and cannot be resurrected in this or any other jurisdiction. 8 The prejudice to the defendants if the action is allowed to proceed is said to be the emotional stress caused by having this action hanging over their heads for such a long period of time. Undoubtedly it is undesirable for a litigant to have to wait as long as this for an action to be resolved. Nonetheless a very substantial portion of the total delay was with the acquiescence of the defendants. Additionally they are still embroiled and will remain embroiled in Federal court proceedings against the same parties which in my view would suggest that the stress of litigation will not be relieved by dismissing this action because there are others ongoing between the defendants and this plaintiff. 9 The ultimate aim of the court is to obtain justice. I see no basis upon which I could conclude that the delay which has occurred in this action places the prospect of a fair trial out of reach. There is no suggestion that evidence is lost, eroded or otherwise become unavailable. The claim is a simple one for the costs of goods sold and delivered. The issues are whether the goods were sold and the defendant took possession of them and what was the proper price for those goods. In the circumstances it appears to me that in the interest of justice would be best served were I to refuse the present application and make a series of orders which were designed to ensure that the lengthy delays of the past were not repeated in the future and thereby achieve a speedy resolution of the matter form this (Page 6)
point onwards. For those reasons it is my decision to dismiss the application and to make orders of the kind I have described.
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