Halville Pty Ltd v State Bank of New South Wales

[1992] FCA 172

/ 72

JUDGMENT No. ...... -.....2 ,,. Zz,,,

IN THE FEDERAL COURT OF AUSTRALIA )

) No. NG 1051 of 1988

NEW SOUTH WmES DISTRICT REGISTRY )

1

GENERAL DIVISION 1

BETWEEN:	HALVILLE PTY LIHITED AND ORS
Applicants
AND :	STATE BANK OF NEW SOUTH WALES
Respondent

. .

CORAEI:	WILCOX J
PLACE :	SYDNEY  -.
DATE:	13 =CH 1992

EXTEMF'ORE REASONS FOR JUDGMENT

PRINCIPnL

WILCOX J: This is an application to dismiss a matter for want of prosecution. The matter was commenced in 1988. At this moment it is little further advanced towards hearing than when the initiating process was filed. There was a period of delay that was not the fault of the applicants - or at least it was reasonable for them to take that delay - when there was an appeal to the High Court in Bourke v State Bank of New South Wales, raising the question whether the State Bank is bound by the Trade 1974. However, that case was disposed of in June 1990. Since that time, no progress has been made.

propose to set them out; they are summarised, up until 12 July

There have been numerous directions made by Judges

in respect of actions to be taken by the applicant. I do not

. .

2.

1991, in the affidavit of Irene Anne Rusak sworn that day.

The situation after that day is dealt with in an affidavit of

the same deponent dated 4 February 1992. That affidavit takes

the situation up to the time when the present Notice of Motion

was filed. It will be seen from a perusal of these affidavits

. S

that this is not the first motion to dismiss for want of
prosecution. In the past, the Court has yielded to pleas on
behalf of the applicants for a further chance to comply with

outstanding directions. A similar plea has been made today.

Two affidavits have been filed in answer to the

present Notice of Motion. I mention that a direction was

given that any affidavits in respect of this Notice of Motion
be filed not later than Friday, 28 February. These two
affidavits were not so filed. They were filed in Court this
morning. Objection was taken to that course on behalf of the
respondent, but I was told that the explanation for the non-
filing in accordance with my direction appeared from the

affidavits themselves. Accordingly, I permitted the

affidavits to be filed and read.

The affidavits reveal that the principal of the

applicant companies is one Car1 Douglas Spies. He is one of
the two deponents. In his affidavit Mr Spies deals with
family health problems. There is annexed to his affidavit a

report of Dr Richard Janus. From this report it appears that

M r Spiesf mother died last July after a long illness. I

interpolate that reference has been made on earlier occasions to Mrs Spiesf illness and death. Mr Oswald Spies, the father of the deponent, is aged 77 years and suffers from an angina

condition. He was last hospitalised in November 1990.
Undoubtedly, Mr Carl Spies has duties towards his father which
occupy his time and attention. But, at least since the death
of"Mrs Spies last July, it does not appear that Mr Spies'
duties towards his parents have so preoccupied him that he has

been unable to give any attention to this case.

So far as Mr Carl Spies himself is concerned, it

appears that he is now aged 47 years. He has multiple slow
growing bone cancers which are inoperable, according to Dr
Janus. These were first noted in 1977 and apparently have
spread to all limbs, as confirmed in September 1991. The bone
cancers cause considerable pain and cause Mr Spies to walk
with a limp, and at times to be unable to write. He is on

sedation to control the pain and is subject to medical care.

Undoubtedly, Mr Spies' health is a problem for him.	I am not
unsympathetic to that problem.	On the other hand, it does not
appear from Dr Janus' report that Mr Spies' health problems

make him unable to give instructions to his solicitors or to

consider the proper prosecution of this case.

The other matter that is mentioned in the affidavit

is what Mr Spies calls his poor financial position. Details
are not set out but the fact that there is a problem may be
evidenced by an exchange which occurred in relation to the
filing of Mr Spies' affidavit in Court. Counsel for the

respondent pointed out that the aff~davit was dated 3 March

and yet was only served on him yesterday afternoon. In
explanation, counsel for the applicants said that it was not
until yesterday that his instructing solicitor was instructed;

meaning thereby, put in funds.

The difficulty I have about acceding to a further

application for time on behalf of the applicants is that there

is no reason for confidence that anything in the future will be better than in the past. Mr Spies' state of health is an ongoing problem for him and, regrettably, it does not appear that his condition will become any less serious with the

passage of time. So far as his financial condition is

concerned, there is no reason to believe that his present

problem, whatever its extent - and I have no details about

that - is going to be mitigated with the passage of time. In

short, there is no reason for any confidence that this case
can or will be prosecuted in the future more efficiently than

in the past. As to the past, it is accepted by the

applicant's counsel that the situation is quite

unsatisfactory. He himself described it as "a sorry story".

I think that is rather an understatement.

I should mention that one of the features of the

case has been the frequent changes of solicitors for the
applicants. I will not set them out; but there have been a
number of different solicitors who have come onto the record
full of enthusiasm about getting on with the case and then
have disappeared. The applicant's current solicitor has only
just been instructed. His appearance was filed in Court.

Whilst I am always loathe to dismiss a matter for

want of prosecution I think that the time has come when that step has to be taken in this case. To do otherwise would be unfair to the respondent. There is simply no point in the

matter coming back to Court time after time and directions

being made which are then disregarded. In the end, the Court

has to be prepared to say to applicants that, if they will
not, or cannot, comply with the necessary pre-trial
procedures, the claim has to be dismissed. I dismiss the

Application.

[There was discussion about costs.]

I order that the applicants pay the respondent's

costs of the principal proceeding and the Notice of Motion.

I certify that this and the preceding four (4) pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate: f2&$J isod--- Dated: 13 arch 1992

APPEARANCES

Counsel for the Applicants:	D J Hammerschlag
Solicitors for the Applicants:	Milne Berry & Berger
Counsel for the Respondent:	D J Russell

Solicitors for the Respondent:	Abbott Tout Russell Kennedy
Date(s) of hearing:	13 March 1992