| 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…
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- AGLC
- Francis v Bunnett [2011] VSC 443
- Case
- [2011] VSC 443
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of the matter revolved around the principles of want of prosecution and the factors that contribute to a delay being considered inordinate and inexcusable. The court examined the circumstances surrounding the delay, the reasons provided by the appellant, and the impact of the delay on the respondent. It was essential to assess whether the delay had prejudiced the respondent to the extent that a fair trial was no longer possible.
In reaching its decision, the court considered the precedent set in previous cases, such as All v State of New South Wales, and applied these principles to the facts of the case. The court determined that the appellant's delay was indeed inordinate and inexcusable, and that the delay had caused an increased risk that a fair trial was no longer possible. Additionally, the court found that the delay had led to an inferred prejudice, which warranted the dismissal of the proceeding. As a result, the appeal was dismissed, and the decision of the Federal Circuit Court was upheld.
In conclusion, the court found that the delay in prosecution was inordinate and inexcusable, and that it had caused an increased risk that a fair trial was no longer possible. The court also found that the delay had led to an inferred prejudice, which warranted the dismissal of the proceeding. The appeal was dismissed, and the decision of the Federal Circuit Court was upheld.
Orders
Orders of the court
The appeal will be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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