Fuller v Branton Pty Ltd
[2000] WADC 250
•20 OCTOBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FULLER -v- BRANTON PTY LTD [2000] WADC 250
CORAM: COMMISSIONER GREAVES
HEARD: 11, 18 AUGUST, 11 SEPTEMBER 2000
DELIVERED : 20 OCTOBER 2000
FILE NO/S: CIV 1489 of 1995
BETWEEN: RONALD NORMAN FULLER
Plaintiff
AND
BRANTON PTY LTD (009 180 312)
Defendant
Catchwords:
Practice - Dismissed for want of prosecution - Inordinate and inexcusable delay by plaintiff's solicitors admitted - Evidence not sufficient to establish substantial prejudice to defendant - Application dismissed.
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
Plaintiff: Mr M Bennett, Mr D B Shaw
Defendant: Mr G Donaldson, Mr C Touyz
Solicitors:
Plaintiff: Bennett & Co
Defendant: Hammond King Touyz
Case(s) referred to in judgment(s):
Birkett v James (1978) AC 297
Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998
Spitfire Nominees Pty Ltd v Ducco (1998) 1 VR 242
Case(s) also cited:
Hamersley Iron Pty Ltd v MEWU, unreported; SCt of WA; Library No 970814; 24 April 1997
Hughes v Gales (1985) 14 WAR 434
Velcrete Pty Ltd v Melsom [2000] WASCA 109
COMMISSIONER GREAVES: The defendant seeks an order that the plaintiff's action against it be dismissed for want of prosecution. As the learned authors of the red book point out, it is desirable that reasons for judgment on an application to dismiss an action for want of prosecution should refer in an orderly and unmistakable form to the legal principles involved and recapitulate the steps in the legal process which have occurred: Spitfire Nominees Pty Ltd v Ducco (1998) 1 VR 242 at 247, 249.
It is, I think, in this case important to acknowledge that the plaintiff has conceded inordinate and inexcusable delay on the part of his solicitors. I was of course referred immediately to the judgment of Lord Diplock in Birkett v James (1978) AC 297 at 317. At p 318 his Lordship said:
"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, 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 inordinate and inexcusable delay on the part of a 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 plaintiff or between each other or between them and a third party."
At p 323, Lord Diplock continued:
"To justify a dismissal of an action for want of prosecution some prejudice to the defendant additional to that inevitably flowing from the plaintiff's tardiness in issuing his writ must be shown to have resulted from his subsequent delay (beyond the period allowed by rules of court) in proceeding promptly with the successive steps in the action. The additional prejudice need not be great compared with that which may have been already caused by the time elapsed before the writ was issued; but it must be more than minimal; and the delay in taking a step in the action if it is to qualify as inordinate as well as prejudicial must exceed the period allowed by the rules of court for taking that step."
In this case the cause of action accrued on 26 July 1993 when the plaintiff alleges the defendant wrongfully dismissed him as Chief Executive Officer of the defendant. The plaintiff issued his writ on 30 May 1995 and filed his reply on 12 December that year. A solicitor employed by the defendant, Alexandra Leigh Scott-Hill deposes to the circumstances upon which the defendant relies in this application in her affidavit sworn 12 May 2000 at par 7 et seq when she says:
"7.Since then the Plaintiff has filed nothing other than two Notices of Intention to Proceed on 28 April 1998 and 20 July 1999 respectively.
8.Despite the filing of the said Notices, I believe from my perusal of the pleadings in this action since my involvement in this matter, that the Plaintiff did not, and has not as at the date hereof, taken any steps.
9.From my review of the file and my conduct of this matter, I believe that the three principal witnesses relevant to the Defendant's case are:
(i)Darrel Jarvis, former Managing Director of Heytesbury;
(ii)Karl Paganin, former Senior Legal Counsel to Heytesbury; and
(iii)Peter Wood, former Financial Controller of Heytesbury.
10.None of these witnesses are currently employed by Heytesbury or Branton.
11.I am informed by our human resources department and verily believe it to be true that Mr Jarvis joined Heytesbury Beef Pty Ltd (also a subsidiary of Heytesbury) in 1989 and became Deputy Managing Director of Heytesbury in 1991 and the Managing Director of Heytesbury in 1992.
12.To the best of my knowledge and belief (based on conversations I had with Paganin during 1997 when I reported to Mr Paganin as Corporate Lawyer of Heytesbury), Mr Jarvis was involved in key events the subject of this litigation.
13.I am informed by our human resources department that Mr Jarvis ceased employment with Heytesbury on 20 March 1998.
14Further, based on Mr Jarvis' statements to me during a previous discussion I had with Mr Jarvis after his departure from Heytesbury on an unrelated legal matter in 1999, it is my view that Mr Jarvis is unlikely to volunteer his time in this matter to provide information and a statement to the defendant.
15.Mr Paganin has also left the employ of Heytesbury (on 28 January 2000) and has a number of consulting commitments which prejudice the Defendant's ability to obtain from Mr. Paganin, the assistance and details which would be necessary to progress its defence in this action.
16.Mr Peter Wood, who I believe was involved in discussions with the Plaintiff, in relation to the events in 1993 relevant to this action, left Heytesbury on 31 January 1997. I believe from my enquiries that Mr. Wood now has other employment commitments which prejudice the Defendant's ability to obtain from Mr. Wood, the assistance and details which would be necessary to progress its defence in this action.
17.To the best of my knowledge and belief and based on my review of the file, no other employee of Heytesbury or Branton can assist in providing first hand information about the events which are the subject of this action.
18.Branton has no current employees and, according to the records of its company secretary with whom I have made enquiries in this regard and verily believe the results of those enquiries to be correct, ceased its trading activities as an insurance broker after the sale of its business to Jardines on 13 August 1993.
19.Directors of Heytesbury and Branton who were directors at the time and continue to have a connection with the Heytesbury Group also had only limited involvement in the events the subject of this dispute (namely Mr Alec Mairs who was a director of Heytesbury and Mrs Janet Holmes à Court who was a director of both Heytesbury and Branton at material times, according to the companies' corporate records). No other directors from 1993 remain on the boards of Heytesbury and Branton.
20.In the circumstances, I verily believe that if the action is not struck out, the Defendant's defence will be severely prejudiced by the Plaintiff's inordinate delay and want of prosecution in this action."
It can be seen immediately why the plaintiff concedes in this application that there has been inordinate and inexcusable delay on the part of his solicitors in bringing the action to trial. The question in the present case is whether the defendant can establish that this delay has given rise to a substantial risk that a fair trial is not possible or is such as is likely to cause or to have cause serious prejudice to the defendant.
As Parker J observed in Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998, there may well be circumstances where delay of itself may lead to an inference of serious prejudice. Given the circumstances in this case deposed to by Ms Scott‑Hill in her affidavit, I do not consider that the Court should infer from the delay of four to five years that serious prejudice has been caused to the defendants or that there is a substantial risk that it is not possible to have a fair trial of the issues in the action. There is no evidence that the witnesses referred to by Ms Scott-Hill are not within the jurisdiction or that they are unwilling witnesses. Her evidence goes no further than to establish that in the case of each potential witness other commitments may make it inconvenient to provide and give evidence on behalf of the defendant.
I am conscious of what Lord Salmon said in Burkett v James at p 327 of the report:
"When cases (as they often do) depend predominantly on the recollection of witnesses delay can often be most prejudicial to defendants and to plaintiffs also. Witnesses' recollections grow dim with the passage of time and the evidence of honest men differs sharply on the relevant facts. In some cases it is sometimes impossible for justice to be done because of the extreme difficulty in deciding which version of the facts is to be preferred; but this is not such a case for its result must depend chiefly upon the view which the court takes of the integrity rather than the memory of the plaintiff and the defendant."
From my understanding of the issues in this action on the pleadings, much the same could be said about the determination of the issues between the parties in this case. Otherwise, the evidence of Ms Scott-Hill does not establish that substantial prejudice has been caused to the defendant.
Notwithstanding the inordinate and inexcusable delay on the part of the plaintiff's solicitors in this case, therefore, I am of the opinion that the defendant has failed to establish that there cannot be a fair trial of the issues between the parties or that substantial prejudice has been caused to the defendant. Accordingly, I am of the opinion that the application to dismiss the action for want of prosecution should be dismissed.
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