Green v Warren Graham & Murphy (a firm)
[1999] VSC 149
•11 May 1999
SUPREME COURT OF VICTORIA
PRACTICE COURT
Not Restricted
No. 1173 of 1994
ERIC GREEN Plaintiff v. WARREN GRAHAM & MURPHY Defendant
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JUDGE: BEACH, J. WHERE HELD: MELBOURNE DATE OF HEARING: 3 MAY 1999 DATE OF JUDGMENT: 11 MAY 1999 CASE MAY BE CITED AS: GREEN v. WARREN GRAHAM & MURPHY MEDIA NEUTRAL CITATION: [1999] VSC 149
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CATCHWORDS: Practice and Procedure - Proceeding dismissed by the operation of
Rule 34.05(1) - Application to reinstate - Application granted.
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr. D. Martin Riordan & Partners For the Defendant Mr. G. Fitzgerald Galbally & O'Bryan
HIS HONOUR:
On 1 July 1997 this proceeding was dismissed by virtue of the operation of Rule 34.05(1) of the Supreme Court Rules. I now have before me an application by the plaintiff pursuant to the provisions of Rule 34.05(2) that the proceeding be reinstated.
The application is opposed by the defendant on the ground that there has been such inordinate and inexcusable delay on the part of the plaintiff in pursuing his cause of action that had the defendant made an appropriate application to the Court before the proceeding stood dismissed, the proceeding would then have been dismissed for want of prosecution.
There can be no doubt but that the plaintiff has been guilty of inordinate and inexcusable delay in pursuing his cause of action.
The plaintiff's cause of action against the defendant, which is a firm of solicitors, arose between 22 June 1987 and 21 March 1989.
The plaintiff alleges that over that period of time the defendant acted negligently in advising him in relation to a claim for damages he had against the Transport Accident Commission. However, the plaintiff did not institute his present proceeding against the defendant until 16 December 1994, that is some five years and nine months later.
Pleadings closed on 3 March 1995 when the plaintiff filed and delivered a reply to the defendant's defence. The last step taken in the proceeding was the filing by the plaintiff of his answers to the defendant's interrogatories on 4 December 1995.
On 25 March 1997 there was a settlement conference between the parties but it failed to resolve the dispute.
By letter of 17 June 1997 the plaintiff sought the consent of the defendant to the transfer of the proceeding to the County Court. That consent was given by a letter of 21 July 1997.
However, no formal application was made to transfer the proceeding to the County Court until 21 January 1999. It was shortly following that date that the plaintiff's solicitors were informed that the proceeding had been dismissed.
And so, as I said at the outset, there has been inordinate and inexcusable delay on the part of the plaintiff in pursuing the proceeding, delay for which no acceptable explanation has been provided to the Court.
But has such delay given rise to a substantial risk that it is not possible now to have a fair trial of the issues in the action, or is such as is likely to have caused serious prejudice to the defendant (see Bishopsgate Insurance Australia Ltd. (In Liquidation) v. Deloitte Haskins & Sells unreported, 9 September 1994, in particular the joint judgment of Tadgell and Ormiston, JJ., as their Honours then were, at p.17).
In my opinion the answers to the questions posed are, no.
In its defence the defendant has admitted virtually all the facts relied upon by the plaintiff in support of his claim. In that situation the Court should have little difficulty in determining the issue of liability.
It was not suggested on behalf of the defendant that the delay will give rise to a substantial risk that it is not possible now to assess the plaintiff's damages in the event he succeeds in establishing liability on the part of the defendant. Indeed it would be difficult to see how the delay could.
As to prejudice, there is no evidence from the defendant to the effect that it has been prejudiced by the delay although in an appropriate case the Court would be entitled to infer, simply from the undisputed facts, that the defendant has been so prejudiced. (See Bishopsgate, at p.24).
But in my opinion this is not an appropriate case in which to draw such an inference.
The affidavit sworn by the plaintiff's solicitors in support of the plaintiff's application establishes that the member of the defendant firm who advised the plaintiff over the period of time in question is still alive and resides in Victoria. It is not suggested that the defendant's file in relation to the plaintiff has been lost or destroyed and the solicitor concerned will have the benefit of that file to assist his memory.
In the circumstances I consider that it is appropriate that the proceeding be reinstated and I so order.
As the plaintiff has sought and been granted an indulgence by the Court, I order that he pay the defendant's costs of the application.
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