Francis v Bunnett
[2011] VSC 443
•9 September 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 5388 of 2006
| LOUISE FRANCIS | Plaintiff |
| v | |
| CHRISTOPHER LINDSAY BUNNETT | Defendant |
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JUDGE: | HARGRAVE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 July 2011 | |
DATE OF JUDGMENT: | 9 September 2011 | |
CASE MAY BE CITED AS: | Francis v Bunnett | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 443 | |
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PRACTICE AND PROCEDURE – Want of prosecution – Whether delay inordinate and inexcusable – Whether delay caused increased risk fair trial not possible – Whether inferred prejudice – Proceeding dismissed for want of prosecution.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Willis | Foster Nicholson Legal |
| For the Defendant | Mr D Christie | Lander & Rogers |
TABLE OF CONTENTS
Issues.................................................................................................................................................... 2
Is the delay inordinate?..................................................................................................................... 4
Is the delay inexcusable?.................................................................................................................. 6
First Trial Date: 15 September 2009.............................................................................................. 12
Second Trial Date: 23 March 2010................................................................................................. 12
Third Trial Date: 21 September 2010............................................................................................ 13
Fourth Trial Date: 4 May 2011........................................................................................................ 14
Is there a substantial risk that a fair trial is not possible and, if so, was that risk contributed to by the delay?........................................................................................................................................... 15
Has the delay caused serious prejudice to Mr Bunnett?.......................................................... 17
Does justice demand that the proceeding be dismissed?........................................................ 18
HIS HONOUR:
Issues
In March 1993, more than 18 years ago, Louise Francis was in a taxi after a day at the races. Police stopped the taxi and breath-tested the driver. Ms Francis’s journey was delayed. She spoke with a police officer. A dispute resulted. Ms Francis contends that she was assaulted by the police officer, handcuffed and ‘thrown into’ a police divisional van.
In May 1998, Ms Francis sued the police officer and the State of Victoria in the County Court, claiming damages for assault and breach of duty. Christopher Bunnett was Ms Francis’s solicitor in the County Court proceeding at relevant times.
The County Court proceeding was fixed for trial on 30 March 2000. There were settlement negotiations in the week before trial. Ms Francis alleges that Mr Bunnett’s retainer was terminated during the negotiations, but he nevertheless proceeded to agree a settlement on her behalf – without her authority and for a sum less than she was prepared to accept. She refused to sign documents recording the settlement.
In March 2004, the County Court determined that Ms Francis was bound by the settlement. Judgment was entered in her favour for the amount agreed by Mr Bunnett on her behalf - $108,000.
On 27 March 2006, Ms Francis commenced this proceeding against Mr Bunnett. She alleges that Mr Bunnett’s conduct in settling the County Court proceeding, without her instructions and at an under- value, caused her to lose the opportunity to run her case at trial and to recover damages significantly greater than $108,000. She claims damages totalling $1,895,000.
This proceeding was commenced on the day before expiry of a six year limitation period for civil claims of this kind.[1] Given her late start, Ms Francis had a duty to prosecute her claim in a prompt and efficient manner, more so than a plaintiff who sues early in the limitation period.[2] Mr Bunnett alleges that Ms Francis has breached that duty. After three abandoned trial dates, and with a fourth trial date unlikely to proceed, he applied to have the proceeding dismissed for want of prosecution.
[1]Limitation of Actions Act 1958 (Vic), s 5(1).
[2]Bishopsgate Insurance Ltd (In liq) v Deloitte Haskins & Sells [1999] 3 VR 863, [32].
The law governing the exercise of the Court’s power to dismiss a proceeding for want of prosecution was not in contest. The general principle was succinctly stated by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd,[3] in the following terms:
The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been an inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.[4]
[3][1989] AC 1197.
[4]Ibid 1203.
Although these general principles are routinely applied, they are not immutable or incapable of adaptation according to the circumstances of a particular case.[5] The factors stated by Lord Griffiths in the Chris Smaller case are not rigid rules. The guiding principle remains whether the justice of the case demands dismissal.[6]
[5]Bishopsgate Insurance Ltd (In liq) v Deloitte Haskins & Sells [1999] 3 VR 863, [28].
[6]Shepperdson v Lewis [1966] VR 418, 419; Masel & Ors v Transport Industries Insurance Co Ltd & Ors [1995] 2 VR 328, 332.
Based on these principles, Mr Bunnett applied to an associate justice to dismiss the proceeding for want of prosecution. The associate justice accepted Mr Bunnett’s contentions, and dismissed the proceeding. Ms Francis appeals that decision. Her appeal was heard as a re-hearing de novo.[7] Without opposition, Ms Francis relied upon evidence on appeal which was not before the associate justice.[8]
[7]Supreme Court (General Civil Procedure) Rules 2005, r 77.06(7).
[8]Ibid.
The following issues must be decided:
(1) Is the delay inordinate?
(2) Is the delay inexcusable?
(3) Is there a substantial risk that a fair trial is not possible and, if so, was that risk contributed to by the delay?
(4) Has the delay caused serious prejudice to Mr Bunnett?
(5) Does justice demand that the proceeding be dismissed?
Is the delay inordinate?
It was submitted on behalf of Ms Francis that the delay in prosecuting this proceeding was not inordinate. I do not accept that submission. In order to explain my reasons, it is necessary to describe the delay. In considering whether the delay has been inordinate, the fact that Ms Francis commenced this proceeding at the end of the applicable limitation period is relevant. She has a special duty to prosecute her case expeditiously. In that context, the following brief chronology is enough to establish inordinate delay:
(1) 27 March 2006 – proceeding commenced on the day before expiry of limitation period.
(2) March 2006 to December 2007. The proceeding was prosecuted with reasonable expedition. Pleadings were closed, further and better particulars given, discovery made and a mediation held. The delay during this period was caused by Mr Bunnett’s interlocutory applications to associate justices, each of which was the subject of appeal to a judge. Mr Bunnett was unsuccessful on both applications.
(3) December 2007 to March 2009. Ms Francis did nothing to advance the proceeding during this period, other than to tax her costs of Mr Bunnett’s unsuccessful interlocutory applications.
(4) 3 March 2009. Mr Bunnett brought the proceeding on for directions. The proceeding was fixed for trial on 15 September 2009.
(5) 28 August 2009. Ms Francis applied to vacate the first trial date. A second trial date, 23 March 2010 was fixed.
(6) 18 March 2010. Ms Francis applied to vacate the second trial date. A third trial date, 21 September 2010, was fixed.
(7) March to September 2010. There were a number of directions hearings during which Ms Francis did nothing to progress the proceeding to trial. In August 2010 Mr Bunnett applied to dismiss the proceeding for want of prosecution. That application was unsuccessful, but it served as a warning to Ms Francis that her delays were inordinate.
(8) 8 September 2010. Ms Francis applied to vacate the third trial date. The Court vacated it.
(9) 12 October 2010. The Court fixed a fourth trial date, 4 May 2011.
(10) October 2010 to March 2011. During this period, Ms Francis failed to comply with trial directions. There were a number of directions hearings as a consequence. Ms Francis was not ready to proceed to trial on 4 May 2011, the fourth trial date. If fixed, a fifth trial date would have been in or about November 2011, another six months’ delay. In these circumstances, Mr Bunnett applied to dismiss the proceeding for want of prosecution.
(11) 15 April 2011. The proceeding was dismissed for want of prosecution by an associate justice.
It was submitted on behalf of Ms Francis that there was no relevant delay attributable to her until December 2007, when the appeal from Mr Bunnett’s second interlocutory application was determined against him. I accept that submission. However, given her obligation to proceed with expedition, she was then required to be pro-active and apply for a trial date. Had she applied in December 2007, or at the beginning of 2008, the proceeding could have been fixed for trial by 1 September 2008 at the latest. As a result of her delay in seeking a trial date at this time, and subsequent delays following trial dates being fixed at the request of Mr Bunnett, the trial fixed for 4 May 2011 could not proceed. At the time of the application in April 2011 to dismiss the proceeding, the associate justice noted in her reasons that a further trial date could not have been fixed until November 2011 if that application was unsuccessful. Accordingly, the period of delay is at least three years: between 1 September 2008 and 1 November 2011. Further, Ms Francis failed to comply with trial directions during this period.
Given the late start to the proceeding, I have no hesitation in concluding that Ms Francis was guilty of inordinate delay in prosecuting her case. I turn to consider whether that inordinate delay was excusable.
Is the delay inexcusable?
It was submitted on behalf of Ms Francis that the delay is excusable because she has at relevant times suffered from significant chronic and occasional medical disabilities; both physical and psychological. She contends that those disabilities have been the predominant cause of her inability to effectively prosecute her claim by instructing and retaining the services of solicitors and counsel. It is necessary to consider this submission in the context of evidence regarding two issues. First, evidence of the extraordinary number of solicitors who have acted for Ms Francis in this proceeding. Second, evidence of her disabilities.
I commence with the parade of solicitors. Since commencing this proceeding, Ms Francis has been represented by 11 firms of solicitors or sole practitioners. As appears below, Ms Francis’s inability or unwillingness to retain consistent legal representation is the principal reason why she has been unable to proceed to trial on any of the four dates fixed by the Court. The following solicitors have represented Ms Francis in this proceeding.
First, Frank Sanna (March 2006 to June 2009). With the assistance of Jeffrey Levine of counsel, Mr Sanna acted for Ms Francis from the commencement of the proceeding until June 2009. There is a dispute on the affidavit material as to the circumstances leading to Mr Sanna and Mr Levine ceasing to act. That dispute cannot be resolved on a conflict of affidavits. It is in any event unnecessary to resolve it. Mr Sanna was granted leave to cease acting on 5 June 2009. At that time, the first trial date was more than three months in the future. There was ample time for Ms Francis to engage new solicitors to represent her and prepare for trial. However, instead of acting promptly to retain new solicitors, Ms Francis represented herself until at least 31 July 2009, when she appeared in person before an associate justice at a directions hearing. Ms Francis was told by the associate justice that the trial date would not be adjourned in the absence of adequate material being placed before the Court. The directions hearing was adjourned until 14 August 2009 to enable Ms Francis to engage new solicitors.
Second, Hymans (August to December 2009). Ian Hone of this firm was approached by Ms Francis to act on her behalf shortly prior to the adjourned directions hearing on 14 August 2009. As he had just been retained, and needed time to consider the file before agreeing to accept instructions to act for Ms Francis at trial, the directions hearing was further adjourned until 28 August 2009. At the adjourned hearing, Mr Hone stated that Hymans would act for Ms Francis, but could only do so if the first trial date was vacated and a later trial date set. The associate justice acceded to the submissions, vacated the first trial date and re-fixed the trial for 23 March 2010 on an estimate of 10 days. Hymans then filed a notice that they were acting for Ms Francis in the proceeding. However, Ms Francis soon fell out with Hymans over complaints about the level of service provided and costs.
Without leave to do so, Hymans served a notice of solicitor ceasing to act on 3 December 2009. The firm was subsequently given leave to cease acting at a directions hearing on 10 February 2010, referred to below. There were some discussions between Ms Francis and Mr Hone, with a view to Mr Hone representing her personally. However, this did not eventuate.
Third, James Guy (February 2010). At the directions hearing on 10 February 2010, the proceeding was adjourned for further directions until 19 February 2010. On 19 February 2010, there was no appearance for Ms Francis. The matter was further adjourned until 26 February 2010. On that day, Mr Guy appeared for Ms Francis. He made an application to vacate the second trial date. The application was refused. Mr Guy never filed a formal notice that he had commenced acting for Ms Francis. He soon fell out with her over fees. There were also issues concerning the structure of his legal practice at the time.
As a result, Ms Francis was unrepresented between March and September 2010. During that time, at a directions hearing held on 18 March 2010, the Court vacated the second trial date (23 March 2010) and re-fixed the proceeding for 21 September 2010. At this time, the Court acted on assertions by Ms Francis that her inability to proceed with the trial on 23 March 2010 was due to her medical condition and inability to obtain legal representation. The Court ordered that she file an affidavit fully detailing the reasons why an adjournment had been sought, the steps taken and to be taken to obtain representation at, and in preparation for, the third trial date fixed for 21 September 2010.
The affidavit filed by Ms Francis did not deal with these issues satisfactorily. Ms Francis remained unrepresented, and did not appear at a directions hearing on 27 April 2010, when trial directions were made, including an order that she file and serve outlines of evidence by 13 August 2010. She did not comply with this order. She remained unrepresented. She did not appear at a directions hearing on 24 August 2010. On that day, orders were made for her to file a further affidavit including detailed evidence as to her alleged medical conditions and how those conditions had prevented her from preparing for trial; with such evidence to be supported by a report signed by a medical practitioner. The directions hearing was adjourned until 8 September 2010.
Fourth, Kliger Partners (September 2010). Kliger Partners were retained to act for Ms Francis in early September 2010. They instructed counsel to appear on 8 September 2010. Counsel applied for and was granted orders that the third trial date be vacated. A fourth trial date was not fixed at this time. On 23 September 2010 Kliger Partners filed a notice that they were acting for Ms Francis. However, they ceased acting within weeks.
Fifth, Nicole Spicer (October to December 2010). Ms Spicer filed a notice that she was acting for Ms Francis on 11 October 2010. At a directions hearing held the following day, 12 October 2010, the proceeding was fixed for trial for the fourth time, on 4 May 2011. Further directions were made for the service of outlines of evidence and expert reports, to be filed by Ms Francis by 4 March 2011.
Ms Francis fell out with Ms Spicer. Again, there is a conflict on the affidavits which cannot be resolved. On 15 December 2010, Ms Spicer was given leave to cease acting. Accordingly, Ms Francis was again unrepresented in circumstances where there was a pending trial date. Ms Francis did not file any outline of evidence or expert report by 4 March 2011, as required by the Court’s orders made five months before, on 12 October 2010. In these circumstances, Mr Bunnett issued a summons for directions seeking to bring Ms Francis’s defaults to the attention of the Court. The summons for directions was returnable on 21 March 2011.
Sixth, Peter Richards (March 2011). Mr Richards appeared for Ms Francis at the 21 March 2011 directions hearing. On that day, the associate justice ordered that Ms Francis swear an affidavit showing cause as to why the proceeding should not be dismissed for want of prosecution and/or failure to comply with the trial directions made on 12 October 2010. The directions hearing was adjourned for one week, until 28 March 2011. During the one week adjournment, Ms Francis fell out with Mr Richards who never filed a notice that he had commenced acting for her. Ms Francis was again unrepresented. She appeared on her own behalf on 28 March 2011. Further directions were made in connection with Mr Bunnett’s application to dismiss the proceeding for want of prosecution. The application was adjourned until 12 April 2011.
Seventh, Aitken Partners (April 2011). This firm agreed to represent Ms Francis at the hearing of the want of prosecution application. However, Ms Francis was not comfortable with the barrister briefed by the firm, because he was junior and had previously worked for the solicitors representing Mr Bunnett. She terminated the retainer.
Eighth, Lewis Holdway (April 2011). Chris Morey of this firm appeared for Ms Francis on 12 April 2011. He advanced detailed and apparently competent submissions. The associate justice reserved her decision. On 15 April 2011, Mr Morey appeared when the associate justice delivered reasons for her decision to dismiss the proceeding for want of prosecution. Lewis Holdway then ceased acting for Ms Francis.
Ninth, Shayne Daley & Associates (April and May 2011). This firm filed a notice that they had commenced acting for Ms Francis on 27 April 2011, and on that day filed a notice of appeal against the order dismissing the proceeding for want of prosecution. The appeal came on for hearing in the Practice Court on 11 May 2011. Counsel was briefed on behalf of Ms Francis. He applied for and was granted an adjournment to enable further material to be filed about Ms Francis’s medical conditions and their causative effect upon her inability to prosecute the proceeding. During the period of the adjournment, Ms Francis fell out with this firm also over a disagreement concerning fees.
Tenth, David Tonkin & Associates (May and June 2011). This firm instructed different counsel to appear at the adjourned hearing of the appeal and to seek a further adjournment. The adjournment was granted to enable affidavit material which had been filed late to be considered by Mr Bunnett. Further, leave was given to file two medical reports. During the period of this adjournment, Ms Francis fell out with this firm also. There is no evidence as to why.
Although Ms Francis does not contend she is impecunious, she approached a barrister under the Victorian Bar Duty Barristers’ Scheme to prepare written submissions on her behalf for the adjourned hearing of the appeal.
Eleventh, Foster Nicholson Legal. This firm currently represents Ms Francis, and has retained the same counsel who appeared on instructions from Shayne Daley & Associates on the initial return date of the appeal.
This extraordinary tale of changing legal representation mixed with periods of no representation, and combined with nothing being done by Ms Francis to prosecute her case over a lengthy period while successive trial dates passed, is prima facie inexcusable. This is especially so where Ms Francis does not contend that her inability to retain lawyers was caused by lack of money to pay for legal representation. So it falls on Ms Francis to establish that the delay was excusable.
A faint attempt was made to demonstrate that some of the solicitors were dismissed for good reason. There is no merit in a contention that this provides any excuse for the delay. Examples included contentions that fee disputes were justified, that it was reasonable for Ms Francis to at times seek out solicitors who would conduct her case on a no-win no-fee basis and that the solicitors she appointed were not up to the task for one reason or another. None of this provides an excuse. Each trial date was fixed well in advance of the date it was set. There was ample time for a person with ability to pay to secure competent legal representation and to proceed to trial.
As I have said, the principal excuse relied upon is medical disability, both physical and psychological. Ms Francis contends that those disabilities have been the predominant cause of her inability to effectively prosecute her claim by instructing and retaining the services of solicitors and counsel.
First Trial Date: 15 September 2009
Ms Francis contends that, following Mr Sanna ceasing to act for her in early June 2009, she was physically unable to engage and instruct new solicitors between June and August 2009 when the first trial date was vacated. The medical excuse given is significant physical injury arising from a dog attack on 2 June 2009, when Ms Francis was mauled by a dog on her hands and leg and suffered consequent blood poisoning. She underwent unspecified surgery on 4 June 2009. Ms Francis deposed she was then ‘out of action for any purpose until 16 June 2009 and remained weak and under medical care for a much longer time, through all of June and July 2009.’ Her general practitioner then signed a standard medical certificate for the period 27 July 2009 to 14 September 2009, stating on unspecified grounds that Ms Francis was unfit to continue ‘her usual occupation’. In fact, Ms Francis has not worked since the alleged assault in 1993.
I accept that the dog attack may have caused some excusable delay in engaging new solicitors, perhaps for the whole of June 2009, while Ms Francis recovered. However, by the end of June 2009, the first trial date was still 10 weeks in the future. There was ample time to instruct new solicitors and prepare for trial. The associate justice did not accede to the request to vacate the first trial date because of Ms Francis’s ill health. Instead the first trial date was vacated because new solicitors had been recently engaged and were unable to get ready in time for trial. I place no weight on the standard medical certificate put forward by the general practitioner. The failure of Ms Francis to proceed to trial on the first trial date was inexcusable on medical grounds.
The vacation of the first trial date and the fixing of a second trial date meant that the existing obligation upon Ms Francis to prosecute her case expeditiously, given the late start, was increased in scope and degree.
Second Trial Date: 23 March 2010
In order to justify her inability to maintain consistent legal representation and prepare for trial on the second trial date fixed for 23 March 2010, Ms Francis relies upon severe migraine headaches commencing in September 2009 together with a recurrence of severe anaemia and the commencement of psychotherapy in February 2010. These medical issues contributed to an associate justice’s decision to vacate the second trial date and fix a third trial date. However, even if it be accepted that medical issues provided an excuse for failure to proceed to trial on the second trial date, the vacation of that trial date served to increase the scope and degree of Ms Francis’s duty to proceed to trial with all reasonable expedition. The third trial date was fixed for a further six months in the future, providing more than ample time for this to occur.
Third Trial Date: 21 September 2010
Ms Francis relies upon a succession of medical problems, appointments and procedures which she contends prevented her from prosecuting her case to trial on the third trial date. Although I accept that the combination of these medical matters may have caused Ms Francis to become, as she has deposed, ‘terribly tired’ or left with ‘little energy or clear space in which to attend to the necessary steps [to instruct lawyers and proceed to trial] except under great stress and in crisis mode’, I do not accept that the medical problems provided an excuse for Ms Francis to abandon all responsibility for prosecuting her case to trial on the third trial date. Taken as a whole, the evidence does not justify a finding that she was unable to engage competent solicitors to represent her and progress her case to trial during this period. She was not employed. She therefore had time to instruct lawyers. Further, she had enough money to engage lawyers.
The fact that an associate justice vacated the third trial date for a combination of reasons, including lack of competent legal advice and assertions of medical incapacity to proceed, does not alter that conclusion. In any event, even if a sufficient excuse could be shown for the inability to proceed to trial on the third trial date, the fact that the date was vacated served to increase even further the obligation upon Ms Francis to pursue her case with efficiency and expedition.
Fourth Trial Date: 4 May 2011
As to the inability to proceed to trial on the fourth trial date, Ms Francis relies upon the same medical problems and also on two medical reports which were produced shortly prior to the commencement of the hearing of the appeal. The first medical report is from Dr Stephen Ting, a sessional haematology consultant at the Peter MacCallum Cancer Centre. It was no part of Ms Francis’s case that she has any form of cancer. Dr Ting’s report lends support to Ms Francis’s evidence that she has suffered from ‘longstanding iron deficiency anaemia’ which has required treatment. He states that, after Ms Francis felt unwell following a particular form of iron infusion, she requested to revert to a previous form of infusion which was better tolerated. Dr Ting’s report confirms only that Ms Francis suffers from anaemia and is receiving treatment. It does not support a contention that this medical issue has prevented her from prosecuting this proceeding.
The second medical report relied upon is a psychiatric one, provided by Dr Michael Epstein. He first reviewed Ms Francis, for medical-legal purposes only, on 20 May 2011; after the proceeding had been dismissed for want of prosecution and an appeal commenced. Accepting Ms Francis’s account of events, Dr Epstein expressed the opinion that Ms Francis suffers from ‘a Post Traumatic Stress Disorder characterised by recurrent intrusive thoughts about the assault, distress with reminders of it, increased concerns with regard to her own safety, hypervigilance, emotional withdrawal and a sense of bleakness.’ Dr Epstein also accepted that Ms Francis has significant physical health problems which leave her constantly fatigued and opined that the combination of her physical problems, cognitive problems and difficulties with her legal claim have led to the development of a Chronic Adjustment Disorder with depressed mood. The combination of these problems has, in Dr Epstein’s opinion, significantly contributed to Ms Francis’s ‘general dysfunction’. In that context, Dr Epstein stated that ‘it is no surprise that [Ms Francis] has had difficulty pursuing her case despite her best endeavours to do so.’ The italicised words demonstrate the degree to which Dr Epstein’s opinions depend upon the reliability of information given to him by Ms Francis. For the reasons given above, Ms Francis has not used her ‘best endeavours’ to prosecute this case.
Taking the evidence as a whole, I do not accept that the medical conditions referred to in Dr Epstein’s opinion provide a reasonable excuse for the lamentable failure of Ms Francis to prosecute this case with reasonable expedition in the circumstances. Ms Francis is in no different position than many litigants who suffer from a range of physical and psychiatric problems. With the assistance of lawyers, such litigants routinely prosecute cases with reasonable expedition in the courts. The large volume of serious injury applications in the County Court is an example.
For the above reasons, the delay is inexcusable. I turn to consider the effects of the delay.
Is there a substantial risk that a fair trial is not possible and, if so, was that risk contributed to by the delay?
At the time this proceeding was commenced, there was already a substantial risk that a fair trial would not be possible. The liability aspects of the proceeding concern evidence of telephone conversations between Ms Francis and Mr Bunnett six years before the proceeding was commenced. No doubt memories of those conversations would have faded over that time, particularly for Mr Bunnett who was engaged in routine conversations in the course of a legal practice. Further, if liability could be established, the assessment of damages would depend upon assessment of the value of the lost opportunity to conduct a trial of Ms Francis’s assault claim in the County Court proceeding. The assessment would involve a hypothetical trial of events which took place 13 years before the commencement of this proceeding. Liability was not admitted in the County Court proceeding. For these reasons, although Ms Francis had a legal right to commence this proceeding when she did, she bore a heavy onus to prosecute the proceeding ‘with greater speed’ than litigants who commence their proceedings earlier in the limitation period.[9]
[9]Bishopsgate Insurance Ltd (In liq) v Deloitte Haskins & Sells [1999] 3 VR 863, [32].
The fact that there was already a substantial risk that a fair trial would not be possible does not prevent Mr Bunnett from contending that the risk has increased, or that there will be further prejudice to him, arising from inordinate and inexcusable delay after commencement of the proceeding. It is enough if a defendant in the position of Mr Bunnett can demonstrate further unfairness, or additional prejudice to that already suffered at the time the proceeding was commenced, arising from inordinate and inexcusable delay. The additional risk or prejudice ‘need not be great compared with that which may have already [been] caused by the time elapsed before the writ was issued: but it must be more than minimal’.[10]
[10]Birkett v James [1978] AC 297, 323 per Lord Diplock.
In this case, it may be thought that the delay at commencement of the proceeding was already so great that there was no realistic expectation that the memories of witnesses, which had faded already, would fade even further. In that regard, submissions focussed upon the demonstrated period of inordinate and inexcusable delay from 1 September 2008 to the date of a likely trial in about November 2011 (at the time of the hearing before the associate justice) or February 2012 (at the time of the hearing of the appeal). The period of relevant further delay is at least three years.
In my opinion, a further delay of that length will likely cause more than a minimal increase in the risk that a fair trial will not be possible. Although Mr Bunnett has file notes to assist him, and both he and Ms Francis swore affidavits as to relevant telephone conversations in 2004, the fact remains that the critical conversations in March 2000 are disputed. A further delay of three years in giving evidence about conversations which took place so long ago is likely to lead to memories fading even further. Although this may not be so for Ms Francis, for whom these conversations have been a large focus of her life since they occurred, Mr Bunnett has continued to conduct a legal practice and deal with many clients in a variety of circumstances since May 2000. The fact that he has some file notes and swore an affidavit about the conversations in 2004 will assist him, but these matters are not a complete answer to the contention that there is an increased risk that a fair trial will not be possible after a further three years’ delay. In addition, a delay of a further three years in reaching trial on the damages aspects of the claim would in my view result in an increased risk of an unfair trial on those issues.
In considering whether a three year delay is likely to have increased the risk that a fair trial will not be possible, the following statement by McHugh J in Brisbane South Regional Health Authority v Taylor[11] is apposite:
For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates.’ Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed.[12]
[11](1996) 186 CLR 541.
[12]Ibid 551 (emphasis added).
I conclude that Ms Francis’s inordinate and inexcusable delay has caused a more than minimal increase to the risk that a fair trial of this proceeding will no longer be possible. That is enough to dispose of the appeal, by justifying its dismissal. However, as the matter was fully argued, I will proceed to consider whether there is an additional reason why the appeal should be dismissed, because the delay has caused or is likely to cause serious prejudice to Mr Bunnett.
Has the delay caused serious prejudice to Mr Bunnett?
The parties accepted that prejudice need not be directly proved. Prejudice may be inferred from all the circumstances of the case.[13]
[13]Bishopsgate Insurance Ltd (In liq) v Deloitte Haskins & Sells [1999] 3 VR 863, [33].
Material prejudice for this purpose includes a person being subjected to allegations and possible unfavourable findings about his or her professional reputation.[14] It is prejudice of this kind which Mr Bunnett relies upon. He contends that serious allegations of professional negligence, if not impropriety, are alleged against him and have been unreasonably maintained for an inordinate and inexcusable period. I accept that prejudice of this kind can be inferred in this case. The question is whether the prejudice is properly described as ‘serious prejudice’.
[14]Ibid [43], [60].
It was submitted on behalf of Ms Francis that it is not serious prejudice. Counsel referred to the lack of any evidence that any clients have shunned Mr Bunnett, or that his reputation has been sullied by comment about the allegations in this case. He submitted that this proceeding is not like the Bishopsgate case, where the allegations of professional negligence were made against auditors in relation to the collapse of a large public company and had been widely reported in the media; as this is essentially a private case which has attracted no publicity.
There is force in these submissions. In the absence of specific evidence as to some prejudice of this kind, I am not satisfied that the prejudice is sufficiently serious to justify dismissal of the proceeding on that ground alone. However, the prejudice to Mr Bunnett is not insignificant, and should be given some weight in the overall assessment of the justice of the case.
Does justice demand that the proceeding be dismissed?
In my opinion, the justice of the case demands dismissing the proceeding for want of prosecution. The combination of:
(1) the proceeding being commenced at the very end of the applicable limitation period;
(2) inordinate and inexcusable delay for approximately three years;
(3) consequent increased risk that a fair trial will not be possible; and
(4) some inferred prejudice to Mr Bunnett from being exposed to this claim,
requires that result.
The appeal will be dismissed.
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