Helmy v SBF Engineering Pty Ltd - [2001] WASC 241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HELMY & ANOR -v- SBF ENGINEERING PTY LTD & ANOR [2001] WASC 241

CORAM: MASTER SANDERSON

HEARD: 23 AUGUST 2001

DELIVERED : 7 SEPTEMBER 2001

FILE NO/S: CIV 1886 of 1994

BETWEEN: PATRICK DAOUD HELMY
First Plaintiff
MARY D ENTERPRISES SARL
Second Plaintiff
AND
SBF ENGINEERING PTY LTD
First Defendant
BUREAU VERITAS
Second Defendant

Catchwords:

Practice and procedure - Application to strike out for want of prosecution - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr C L Zelestis QC & Mr L S Panotidis
Second Plaintiff            :     Mr C L Zelestis QC & Mr L S Panotidis
First Defendant             :     Mr D M Stone
Second Defendant         :     Mr M James

Solicitors:

First Plaintiff                :     Cocks Macnish
Second Plaintiff            :     Cocks Macnish
First Defendant             :     Williams & Hughes
Second Defendant         :     Kott Gunning

Case(s) referred to in judgment(s):

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Birkett v James [1978] AC 297
Cummings v Davis [2000] QSC 158
Hughes v Gale (1995) 14 WAR 434
Jakovljevic v L & B Doslov [2000] WASCA 131
Lewandowski v Lovell (1994) 11 WAR 124

Case(s) also cited:

Bernard Putnin as Official Liquidator of Lombardo Ltd (In Liq) v Kane, unreported; SCt of WA; Library No 980454; 11 August 1998
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Carter v Standen, unreported; FCt SCt of WA; Library No 970271; 28 May 1997
Cooper v Hopgood & Gamin [1999] 2 QdR 113
Custom Credit Corporation Ltd (In Liq) v James, unreported; SCt of WA; Library No 980137; 31 March 1998
Dzienciol v Logie Brae Pty Ltd, unreported; SCt of WA; Library No 980078; 25 February 1998
Farr v The Shire of Manjimup, unreported; SCt of WA; Library No 930349; 15 June 1993
Ken Gray & Co (A Firm) v J & J Products (A Firm), unreported; SCt of WA; Library No 950106; 17 March 1995
J & J Products (A Firm) v Ken Gray & Co (A Firm), unreported; SCt of WA; Library No 960219; 24 April 1996
Latrobe Country Credit Co-operative Ltd v Smith [1999] 1 VR 440
Magenta Nominees Pty Ltd v Bonini [1999] WASC 88
National Mutual Life Association of Australasia Ltd v Reynolds [2000] FCA 267
Queensland v J L Holdings (1996) 141 ALR 353
Quinlan v Rothwell [2000] QCA 176
Rowley v Armstrong [2000] QSC 088
Shtun v Zalejska [1996] 1 WLR 1270
Stollznow v Calvert [1980] 2 NSWLR 749
Ulowski v Miller [1968] SASR 277
Ward v Interag Pty Ltd [1985] 2 Qd R 552
Wright v Ansett Transport Industries Ltd (1999) 1 Qd R 97

MASTER SANDERSON: This is the return of chamber summonses brought by the defendants seeking to strike out the plaintiffs' claim for want of prosecution. As is so often the case in applications of this nature, there is very little dispute about the facts and agreement about the applicable law. The question is whether, in all the circumstances, I should exercise the wide discretion available and strike out the plaintiffs' action.
A chronology dealing both with events leading to this claim and the way the claim has proceeded to date is to be found as annexure "D" to the affidavit of Lee Simon Panotidis sworn 27 July 2001. The contents of the chronology are not in dispute and it is appropriate it be incorporated in these reasons. It is annexed hereto and marked "A".
(The annexure itself provides a column entitled "Source" indicating where matters referred to under the heading "Event" could be confirmed either in the documents or in the pleadings. As there is no dispute between the parties as to the chronology, this part of the annexure has been omitted.)
This history presents a sorry tale of prevarication and delay. The matter has been progressed with no urgency at all. Furthermore, it is apparent that the action is still some way from trial. There is presently a dispute about the proposed further amended further amended statement of claim which will no doubt take some weeks to resolve. The defences may then have to be amended. Senior counsel for the plaintiffs acknowledged that discovery by the plaintiffs was incomplete. He suggested, perhaps optimistically, that issues as to discovery might be resolved by agreement. Even if that is the case, the number of documents involved and the fact that many, if not all of them are in the French language, means that inspection will be a tedious process. From this distance it is very difficult to tell when the action might be entered for hearing. However, I doubt, taking even the most positive view, that the action would be ready to be entered for hearing before the end of this calender year. As the second plaintiff took possession of the vessel in late December 1989, that will mean that 12 years have passed and the action is still six to nine months from being heard.
The defendants make two main complaints about the plaintiffs' conduct of the litigation. First, and most importantly, they say that they are prejudiced by the delay in bringing the action to trial. It was submitted that the court should infer that the substantial delay in bringing and prosecuting the action will give rise to prejudice which will substantially reduce the chances of a fair trial. In making this submission it is not suggested that the defendants are prejudiced in some particular way. There is no evidence that any important witnesses have died or disappeared, or that documents essential for the conduct of the case have been lost. Rather, it is said, that the flux of time in and of itself is sufficient to infer prejudice: see Cummings v Davis [2000] QSC 158 per Chesterman J at 4.
Secondly, it is said by the first defendant that the damages claim now raised by the plaintiff is substantially different and much increased from the claim originally made. A minute of proposed further amended further amended statement of claim appears as annexure "A" to the affidavit of Panotidis sworn 22 August 2001. The amount claimed in that minute is substantially greater than the amount claimed in the minute of further re‑amended statement of claim filed 27 August 1998. However, as the minute of proposed further amended further amended statement of claim was only produced in June 2001, it is as yet unclear whether the defendants will be in any way prejudiced by the flux of time from preparing an adequate defence to the damages claim. Nonetheless, it must be acknowledged that the nature of the damages claim has altered significantly and the amount claimed is greatly increased.
For the plaintiffs, the main prejudice they will suffer if the action is struck out is that their rights against the defendants will be lost. It is common ground that were the claim to be struck out it would be statute barred and no further proceedings could be issued.
The plaintiffs acknowledge there has been a substantial delay in progressing the matter and they offer three reasons for that delay. First, they point to the fact that the plaintiffs are resident in New Caledonia, the relevant documents are almost exclusively in French and there has been a difficulty in coordinating the plaintiffs to allow for proper instructions. Secondly, it is said that the solicitors acting for the plaintiffs have over the years undergone a series of personnel changes which has made continuity difficult and meant the action has languished. Thirdly, it is said that the defendants have themselves contributed to the delay by not dealing with the action as promptly as they should have. How far this latter consideration is relevant is open to question: see Jakovljevic v L & B Doslov [2000] WASCA 131.
There are two other matters which I should mention for the sake of completeness. First, a dispute arose during the course of submissions as to the extent to which testimony of witnesses and their recollection of events is important in the resolution of the dispute. For the plaintiffs it was said that the action was of relatively narrow compus and very little oral evidence would be necessary. Counsel for the defendants took entirely the opposite view. I am not in a position to resolve that question. Reading the pleadings does not necessarily indicate the extent and nature of the evidence which would be adduced by the parties. But it must be said that no matter how limited the evidence, some oral testimony from witnesses will be required. The lengthy delay in bringing the action to trial must necessarily affect the reliability of the individual's recollections. Against that, the plaintiffs made the point that the defendants' solicitors should have long since proofed all necessary witnesses. There was no suggestion from the defendants this had not been done. To some extent that fact would alleviate the problem of failing recollections of the witnesses concerned. Secondly, the parties were in dispute as to the strength or otherwise of the plaintiffs' case. Once again, this is not a matter which I can resolve and, in my view, nor should I seek to do so. What can be said is that having regard to the pleadings and all of the evidence filed to date, the merits are not overwhelmingly one way or the other. Beyond making that general comment, I do not see an assessment of the merits of the cases of the respective parties as a factor one way or the other in determination of this application.
The legal principles in relation to strike‑out applications are well understood. Their development can be traced through the cases of Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 to Birkett v James [1978] AC 297, to cases in this Court such as Hughes v Gale (1995) 14 WAR 434 and Lewandowski v Lovell (1994) 11 WAR 124. These cases make it plain that the principles are those set out by Lord Diplock in Birkett v James where his Lordship said (at 318):
"The power (to dismiss an action for want of prosecution) should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious eg disobedience to a pre‑emptory 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 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 plaintiff or between each other or between them and a third party."
It is the second of the two criteria identified by his Honour which is relevant to this application. While I am satisfied that the delay has been inordinate I am not satisfied that it has been inexcusable. This is complex litigation conducted by plaintiffs resident outside the jurisdiction. While the proceedings should undoubtedly have been progressed more expeditiously, in all the circumstances I am prepared to accept the excuses offered by the plaintiffs for the delay. Furthermore, I am not satisfied that in all the circumstances there is a substantial risk that it is not possible to have a fair trial of the issues. I acknowledge as counsel for the defendants submitted that the delay will inevitably have an effect upon the recollection of various witnesses. But I am not satisfied that the passing of time alone, unfortunate though it may be, is enough to satisfy the requirements as set out by his Lordship and confirmed in the various cases.
Having reached that conclusion, it is appropriate that I dismiss the application. However, I should not do so without making it plain that the plaintiffs must now progress this action with all dispatch. Further delay would be intolerable. I intend to set tight programming orders and I expect any timetable to be met. The plaintiffs are on notice that they indulge in further delay at their peril.
I will hear the parties as to the precise form of orders and as to costs.

ANNEXURE "A"

DATE	EVENT
March 1989	First Plaintiff and First Defendant enter into the Conditional Contract
23 March 1989	First and Second Defendants enter into the Classification Contract
1 June 1989	First Plaintiff and First Defendant enter into the Contract
June 1989	First Plaintiff and Second Defendant enter into the Inspection Contract
27 December 1989	Plaintiff took possession of the Vessel
1990 - 28 January 1993	Plaintiffs and Defendants attempt to resolve Vessel’s defects without resort to litigation
28 January 1993	Letter from Abrams (Plaintiffs’ solicitor) to First Defendant
29 July 1993	Letter from First Plaintiff to First Defendant requesting First Defendant’s proposal
Late 1993	Plaintiffs instruct Parker & Parker
22 October 1993	Plaintiffs instruct Cocks Macnish
9 September 1994	Writ of Summons issued
20 October 1994	Writ of Summons served on First and Second Defendants.
25 October 1994	Memorandum of Appearance filed by Defendants.
26 October 1994	Statement of Claim filed.
10 November 1994	First Defendant files Defence.
15 November 1994	First Defendant files Request for Further and Better Particulars of Statement of Claim.
15 November 1994	Plaintiffs file Request for Discovery of Documents and Notice to Produce to First Defendant.
8 December 1994	Plaintiff files Reply to First Defendant’s Defence
14 December 1994	First Defendant files Request for Further and Better Particulars of Reply.
16 December 1994	Second Defendant files Defence.
21 December 1994	Plaintiff files Request for Discovery of Documents and Notice to Produce to Second Defendant.
22 December 1994	Second Defendant files Request for Further and Better Particulars of Statement of Claim.
30 December 1994	First Defendant files Request for Further and Better Particulars of Defence of Second Defendant.
4 January 1995	Second Defendant files Request for Discovery of Documents and Notice to Produce to Plaintiffs.
13 January 1995	Master Adams orders Plaintiffs to provide particulars of Statement of Claim to First Defendant (Request 15 November 1994)
17 January 1995	Second Defendant files sworn List of Discovered Documents (Request 21 December 1994)
17 January 1995	Second Defendant files Answers to First Defendant’s Request for Further and Better Particulars of Defence (Request 30 December 1994)
February 1995	Second Defendant files Minute of Proposed Amended Defence
2 February 1995	Plaintiffs file Further and Better Particulars of Statement of Claim (Request 22 December 1994)
15 February 1995	Plaintiffs file Further and Better Particulars of Reply (Request 14 December 1994)
16 February 1995	Master Adams grants First Defendant springing orders in respect of Plaintiff’s failure to provide particulars of Statement of Claim and Reply
21 February 1995	Plaintiffs provide a copy of most of the Dummett Report to Kott Gunning and Williams & Hughes (on a without prejudice basis)
27 February 1995	Plaintiffs file sworn List of Discovered Documents (Request 4 January 1995)
27 February 1995	Plaintiffs file Further and Better Particulars of Statement of Claim (Request 15 December 1995)
13 March 1995	Plaintiffs file Request for Further and Better Particulars of Defence of Second Defendant.
21 March 1995	Second Defendant amends its Defence in terms of Minute of Proposed Amended Defence Current Defence: 21 March 1995
24 March 1995	Second Defendant files their Further and Better Particulars of Defence (Request 30 December 1994)
31 March 1995	First Defendant files sworn List of Discovered Documents (Request 15 November 1994)

13 April 1995	Master Bredmeyer dismisses Plaintiffs application for order compelling First Defendant to provide sworn discovery, with costs
April 1995	First Defendant files sworn Supplementary List of Discovered Documents
11 May 1995	Plaintiffs’ provide a copy of the supplementary Dummett report dated April 1994 to Kott Gunning and Williams & Hughes (on a without prejudice basis)
25 July 1995	Second Defendant files Order 19 Rule 8 Notice of Contribution against First Defendant
6 October 1995	Plaintiffs file Minute of Amended Further and Better Particulars of Statement of Claim (Request 15 November 1994)
17 October 1995	Master Chapman grants Plaintiffs Leave to Amend Statement of Claim in terms of Minute Amended Statement of Claim dated 6 October 1995 Current Statement of Claim: 6 October 1995
23 October 1995	Second Defendant files Re-Amended Defence
21 December 1996	Master Bredmeyer grants Plaintiffs leave to amend Statement of Claim in terms of Minute of Further Amended Statement of Claim dated 14 December 1995. Current Statement of Claim: 14 December 1995
11 January 1996	First Defendant files Chamber Summons to Strike Out Statement of Claim
7 June 1996	Judge Heenan dismissed First Defendant’s application to strike out Statement of Claim (Summons 11 January 1996)
21 June 1996	First Defendant files Amended Defence Current Defence: 21 June 1996
2 August 1996	Plaintiffs file Reply to First Defendant’s Re-Amended Defence Current Reply: 2 August 1996
2 August 1996	Plaintiffs filed Request for Further and Better Particulars of Re-Amended Defence of First Defendant.
12 August 1996	First Defendant files Re-Amended Defence Current Defence: 12 August 1996
30 August 2001	Acting Master Johnston orders that First Defendant provide further and better particulars of Re-Amended Defence within 14 days
13 September 1996	First Defendant files inadequate particulars of Re-Amended Defence (Request 2 August 1996)

27 September 1996	Case Management Registrar extends entry for trial milestone to 27 November 1996
28 November 1996	Master Ng orders that First Defendant provide proper further and better particulars of the Re-amended Defence (Request 2 August 1996)
19 December 1996	First Defendant files Ex parte Motion for Leave to Appeal from Orders of Master Ng.
23 January 1997	Registrar Dixon extends entry for trial milestone to 23 February 1997
24 January 1997	Second Defendant files Further and Better Particulars of Further Re-Amended Defence
10 February 1997	First Defendant files inadequate particulars of Re-Amended Defence (Request 2 August 1996)
12 February 1997	Full Court dismisses First Defendant’s appeal from orders of Master Ng
13 March 1997	Registrar Dixon orders that:- 1. entry for trial milestone be extended to 13 September 1997 2. First Defendant provide proper particulars of Re-Amended Defence by 22 April 1997 3. Parties administer interrogatories within 14 days. 4. Plaintiffs provide Defendant with copy of expert evidence by 16 June 1997
8 May 1997	Registrar Dixon grants Plaintiffs springing orders in respect of First Defendant’s failure to provide proper particulars of Re-Amended Defence (Request 2 August 1996) and also orders that:- 1. Parties administer interrogatories within 14 days 2. Entry for trial milestone be extended to 8 November 1997
4 June 1997	First Defendant files Further and Better Particulars of Re-Amended Defence (Request 2 August 1996)
20 June 1997	Plaintiffs file Interrogatories for Answer by the First Defendant.
10 July 1997	Second Defendant files Interrogatories for Answer by the Plaintiffs
24 July 1997	Registrar Dixon orders that:- 1. First Defendant answer or object to Plaintiff’s Interrogatories within 28 days 2. Plaintiffs provide Defendants with copy of expert evidence by 30 September 1997.
1 August 1997	First Defendant’s Interrogatories for answer by the Plaintiffs
9 September 1997	Letter from Cocks Macnish to Williams & Hughes requesting First Defendant’s answers to Interrogatories (Administered 20 June 1997)
2 October 1997	Plaintiffs’ Answers to First Defendant’s Interrogatories (Administered 1 August 1997)
2 October 1997	Plaintiffs’ Answers to Second Defendant’s Interrogatories (Administered 10 July 1997)
6 October 1997	Letter from Cocks Macnish to Williams & Hughes requesting First Defendant’s answers to Interrogatories (Administered 20 June 1997)
24 October 1997	Letter from Cocks Macnish to Williams & Hughes requesting First Defendant’s answers to Interrogatories (Administered 20 June 1997)
13 February 1998	Cocks Macnish provide a copy of the Tichet Report to Williams & Hughes
27 February 1998	Master Sanderson grants Plaintiffs springing orders in respect of interrogatories administered to First Defendant (Administered 20 June 1997)
16 March 1998	First Defendant files Answers to Interrogatories (Administered 20 June 1997)
15 June 1998	Plaintiffs file Application for Further Answers to Interrogatories (Administered 20 June 1997)
18 June 1998	Plaintiffs file Interrogatories for Answer by Second Defendant.
25 June 1998	Kott Gunning agree to provide answers to interrogatories (administered 18 June 1998) by “the end of August 1998"
30 June 1998	Cocks Macnish provide copies of documents concerning the 1997 accident to Kott Gunning
11 August 1998	Plaintiffs’ Application for Further Answers to Interrogatories (Administered 20 June 1998) adjourned sine die.
17 August 1998	Plaintiffs administer amended interrogatories to First Defendant
18 August 1998	Williams & Hughes inform Cocks Macnish that they would endeavour to respond in relation to the interrogatories “within the next couple of working days”

27 August 1998	First Defendant’s Chamber Summons for Leave to Amend Defence in terms of Minute of Further Re-Amended Defence dated 18 August 1998
4 September 1998	First Defendant files Contribution Notice and Statement of Claim in Contribution Proceedings.
16 September 1998	First Defendant files Memorandum of Consent Orders in Contribution Proceedings
1 October 1998	Second Defendant files Defence and Counterclaim in Contribution Proceedings
15 October 1998	Cocks Macnish request answers to Interrogatories administered 18 June 1998
19 October 1998	First Defendant’s Chamber Summons for Leave to Amend Defence adjourned sine die (pending Plaintiffs’ Application for Leave to Amend Statement of Claim”)
26 October 1998	Plaintiffs file Application for Leave to Amend Statement of Claim in terms of Minute of Proposed Amended Further Amended Statement of Claim dated 22 September 1998.
27 November 1998	Plaintiffs provide informal consolidated list of discovered documents to Williams & Hughes
14 December 1998	Master Sanderson orders that the Plaintiffs have leave to amend the Statement of Claim largely in terms of the Minute dated 22 September 1998.
4 February 1999	Cocks Macnish provide Minute of Proposed Amended Further Amended Statement of Claim to Williams & Hughes
11 February 1999	Plaintiffs’ file and serve sworn Consolidated List of Discovered Documents
4 May 1999	Cocks Macnish request answers to interrogatories administered 18 June 1998
4 May 1999	Cocks Macnish request response from William & Hughes to letter dated 4 February 1999
11 May 1999	Kott Gunning advise that they will provide answers to interrogatories administered 18 June 1998 “by the end of June 1999"
12 May 1999	Williams & Hughes advise that they opposed the amendments to the Statement of Claim in terms of the Minute of Proposed Further Amended Statement of Claim

10 June 1999	Letter from Cocks Macnish to Williams & Hughes stating that the Plaintiffs would provide further particulars of loss.
15 June 1999	Letter from Williams & Hughes to Cocks Macnish advising that they would consent to the proposed amendments subject to the provision of further particulars of loss
21 June 1999	Letter from Cocks Macnish to Williams & Hughes advising that further particulars and Minute of Consent Orders would be forwarded shortly.
25 June 1999	Cocks Macnish request answers to interrogatories administered 18 June 2001 within 14 days.
August 1999	Feutrill leaves Cocks Macnish. Day to day conduct transferred to Walton
27 March 2000	Cocks Macnish write to First Plaintiff requesting detailed particulars of loss
30 March 2000	Second Plaintiff advises Cocks Macnish that First Plaintiff unavailable until 18 April 2000.
16 May 2000	First Plaintiff provides further particulars of loss.
17 May 2000	Cocks Macnish wrote to First Plaintiff regarding estimate of current resale value of Vessel.
18 May 2000	First Plaintiff provides estimate of resale value of Vessel to Cocks Macnish
May 2000	Walton leaves Cocks Macnish. Day to day conduct transferred to Oud.
June 2000	Oud leaves Cocks Macnish. Day to day conduct transferred to Nichols
18 September 2000	Cocks Macnish order from the Supreme Court a copy of the current Amended Statement of Claim.
29 September 2000	Supreme Court Registry telephones Cocks Macnish and advises that it is unable to identify the current Amended Statement of Claim.
3 October 2000	Naseem attends at Supreme Court to inspect Court file and identify current Amended Statement of Claim
13 November 2000	Plaintiffs file Notice of Intention to Proceed.
14 November 2000	Cocks Macnish request further particulars of loss from First Plaintiff
22 January 2001	Cocks Macnish request further particulars of loss from First Plaintiff
14 March 2001	Cocks Macnish request further particulars of loss from First Plaintiff

12 April 2001	Letter from Second Plaintiff to Cocks Macnish indicating a lack of understanding of the further particulars of loss requested by Cocks Macnish.
14 June 2001	Cocks Macnish received final particulars of loss from First Plaintiff.
18 June 2001	Cocks Macnish provide Minute of Further Amended Further Amended Statement of Claim to Williams & Hughes.
19 June 2001	Williams & Hughes inform Cocks Macnish that the First Defendant opposes amendments in terms of the Minute.