Hookway Aerospace Pty Ltd v Commonwealth of Australia
[2000] TASSC 112
•11 August 2000
[2000] TASSC 112
CITATION: Hookway Aerospace Pty Ltd v Commonwealth of Australia [2000] TASSC 112
PARTIES: HOOKWAY AEROSPACE PTY LTD
v
COMMONWEALTH OF AUSTRALIA
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 1482/1992
DELIVERED ON: 11 August 2000
DELIVERED AT: Hobart
HEARING DATE: 11 August 2000
JUDGMENT OF: Underwood J
CATCHWORDS:
[Edited edition of reasons for judgment delivered orally]
REPRESENTATION:
Counsel:
Applicant: B J Morgan
Respondent: T G Bugg
Solicitors:
Applicant: Australian Government Solicitor
Respondent: Dobson Mitchell and Allport
Judgment Number: [2000] TASSC 112
Number of Paragraphs: 13
Serial No 112/2000
File No 1482/1992
HOOKWAY AEROSPACE PTY LTD v COMMONWEALTH OF AUSTRALIA
REASONS FOR JUDGMENT UNDERWOOD J
(DELIVERED ORALLY) 11 August 2000
This is an application to dismiss an action for want of prosecution. It is brought by the applicant. With respect to the law applicable upon an application of this sort, I direct myself in accordance with the statements made in the reasons for judgment in Argo Pty Ltd & Ors v Attorney-General for the State of Tasmania (No 2) [2000] TASSC 109. In short, the order sought will be made if the justice of the case demands that it be made.
In this case there is no doubt that the respondent has been guilty of inordinate delay. There is no point in setting out in elaborate detail all the events that have occurred because they are not in dispute and they are set out in the helpful timetable prepared by Mr Morgan and handed up by consent. It suffices to say that the litigation relates to a contract that was entered into between the parties in December 1986. The action was not commenced until five years and 364 days after that contract was entered into and the writ was not served until 364 days after it had been issued. Further, it is clear that following its service, the respondent was undecided whether to proceed with the action or not until at least 1995.
This is the second application to dismiss for want of prosecution. The applicant made the first application on 13 May 1996 because no statement of claim had been delivered. The statement of claim was delivered shortly thereafter, namely on 18 June 1996, and the day before the hearing, the applicant agreed to an order that the application to dismiss be adjourned sine die. In my view, that is a significant matter in the history of this litigation because by that step the applicant said, in effect, notwithstanding inordinate delay to this date, and notwithstanding we have not even received a statement of claim, we agree to this litigation proceeding.
Thereafter, there was a lot of correspondence sent by the solicitor for the applicant to the solicitors for the respondent, a lot of which received no response, or no useful response, and applications were made to the Master for delivery of particulars. I think that there is a great deal in the submission made by Mr Morgan, that throughout, the respondent only acted when under threat of some court order to do so.
Things progressed in a rather desultory way until an application was made on 4 February 2000 for an order that the respondent make discovery. That was heard on 24 February 2000 and an order was made that the respondent make discovery within six weeks. The respondent set about the business of making discovery, but did not comply with the order within the prescribed time and, accordingly, this application was filed on 26 April. However, shortly after it was filed, namely 5 May, the respondent made discovery by filing and serving a list of documents verified by affidavit.
With respect to the issue of delay, although it is quite clear, as I say, that the respondent has been guilty of inordinate delay, I would venture to note that at no stage during the period of delay did the applicant seek to invoke the case management procedures available by the Rules of Court, formerly O32A. In this context, I repeat a passage from my judgment in Kosta Khavounitis v NRMA Insurance Limited [1999] TASSC 2:
"In my view, an applicant who complains of delay and asks for a strike out order but has not sought pre-trial orders pursuant to O32A, needs to explain why he or she did not have recourse to the case management offered by O32A in an attempt to eliminate that delay at an early stage. Unexplained failure to invoke case management to eliminate delay may, as it does in this case, lead to the inference that no objection was taken to the delay."
It is not entirely right to say in this case that the applicant had no objection to delay, the correspondence from the applicant's solicitors show that throughout, there were many complaints about delay, but I refer to Khavounitis because the principle concerning the role of the case management rules still applies. If an applicant is concerned about delay, the case management rules will eliminate it if they are invoked either on the application of a party or on the Court's own motion. That cited passage from Kosta Khavounitis was approved in a later decision of Evans J, Nogarap Pty Ltd v Commonwealth Bank of Australia [1999] TASSC 86.
I have reached the clear view that this case is, like Argo, at a stage where the order sought should be made if I am persuaded that there is a substantial risk that it is not possible to have a fair trial, or that the delay is likely to cause, or has caused, serious prejudice to the applicant.
As Mr Morgan very fairly conceded, there is no evidence of specific prejudice, although, of course, general delay always creates prejudice in the way enunciated by McHugh J in that now famous passage in his judgment in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. In this case it is not suggested, even though there has been a very long delay, that there are not still available documents and records, and the like, which will enable a fair trial to take place. Further, it is not suggested, as Mr Bugg properly put to me, that the respondent does not have an arguable case in what appears to be quite substantial litigation.
For those reasons, I am clearly of the view that the justice of the case does not require the making of the order sought and the application for a strike out order is dismissed.
Before I leave these reasons for judgment, however, it is appropriate that I should refer to the matter I discussed with counsel, namely that this litigation has got off to a bad start because the issues are not properly defined by the pleadings and until the issues are properly defined, a lot of time will be wasted on interlocutory procedures that are neither well aimed nor well directed. With respect to the particulars of the terms pleaded in the statement of claim, it is not good enough to simply say that they are either express or implied or partly written or partly oral. The whole agreement itself is not properly pleaded in the statement of claim. It is just pleaded as an agency agreement, but it does not plead what the substance of the agreement was; that is to say, what was to be done and by whom, in return for $1,000,000 allegedly paid by par3. Further, in the statement of claim there appears an allegation, expressed to be further pleaded, that the applicant made certain warranties, but what the consideration for those warranties is does not appear. Were these terms outside the principal agreement? If yes, what consideration supports them? Then it is pleaded that there were inducements to enter into the agreement by representations which were false. That would give rise to a claim for rescission, but it is not suggested in the statement of claim that the respondent rescinded the agreement. For good measure, par11 throws in an allegation that the representations were made fraudulently, but there is no plea for consequential relief. The plea for relief is confined to damages as a result of the said breaches of agreement and warranty. That needs to be dealt with in a proper manner because on an application to amend, it may be necessary to consider the principles set out in Weldon v Neale (1887) 19 QBD 394.
Finally, with respect to the statement of claim, par12 simply pleads that the consideration for the agreement has wholly failed. What that means and what it leads to is not alleged. When one has a look at the defence, it raises a whole lot of matters that are largely evidence and/or not relevant to the issues pleaded in the statement of claim. This gives rise to confusion. The confusion is compounded by the request for particulars which seeks particulars with respect to each term or condition, whether it was alleged that the term or condition was written, oral or partly written or partly oral or to be implied. Obviously, the first question to ask was whether the term is alleged to be express or implied. Unfortunately, because of the terms of the request, the response is that the terms are party oral, partly written and to be implied, which is singularly uninformative to those who have to get the case ready for trial and perhaps administer interrogatories.
I say all those things because it seems to me that the next step in this litigation is to make an order that there be a directions hearing and an order that this case come under continuing case management by the Master.
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