Hoser v Hartcher

[1999] NSWSC 527

CITATION:	Raymond HOSER v Christopher HARTCHER [1999] NSWSC 527
CURRENT JURISDICTION:	Common Law Defamation List
FILE NUMBER(S):	20601 of 1995
HEARING DATE(S):	19 February 1999 28 May 1999
JUDGMENT DATE:	2 June 1999
PARTIES :	Raymond HOSER - Plaintiff Christopher HARTCHER - Defendant
JUDGMENT OF:	Simpson J at 1

COUNSEL :	C Evatt, M Rollinson - Plaintiff J Gibson - Defendant
SOLICITORS:	Duker & Associates - Plaintiff Lynn Boyd - Defendant
CATCHWORDS:
ACTS CITED:	Limitations Act 1969 National Parks and Wildlife Act (1974)
DECISION:	Notice of motion dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

SIMPSON J

2 June 1999

20601/95

Raymond HOSER v Christopher HARTCHER
JUDGMENT

HER HONOUR :

1 By notice of motion filed on 11 December 1998 the defendant seeks an order that the statement of claim filed on 28 June 1995 be struck out for want of prosecution. In the statement of claim the plaintiff claims damages for alleged defamation arising out of the publication by the defendant of a media release issued on or about 30 December 1993 - that is, a year and a half before the statement of claim was issued.
2 By way of background, it appears that the plaintiff was the author of a book titled “Smuggling” which was published in or about May 1993. Possibly as a result of the publication of the book and the allegations contained therein, the Independent Commission Against Corruption (ICAC) investigated allegations of corruption within the National Parks and Wildlife Service (“NPWS”) and within the kangaroo meat industry. Some of the allegations related to events said to have occurred in the 1970’s and 1980’s.
3 Shortly before the publication of the media release ICAC reported on the result of its investigation, and it was this report that prompted the media release. The release was headed:
“ICAC Clears National Parks and Wildlife Service”.
4 The text of the release was as follows:
“The Independent Commission Against Corruption has cleared the NSW National Parks and Wildlife Service of allegations relating to corruption within the kangaroo meat industry.

After a four month investigation which covered several states, the ICAC stated, ‘Commission inquiries have failed to reveal any evidence of corrupt conduct by NPWS officers.’
The inquiry was called by the Director General of the NPWS in June 1993 to answer bizarre allegations made in June 1993 relating to various officers’ involvement in certain activities in wild life smuggling and the meat industry.
On hearing the finding, NSW Minister for the Environment Mr Chris Hartcher, said ‘False accusations such as those made by Mr Hoser detract from the excellent work being carried out by the NPWS in the management and protection of the State’s native wildlife.
‘The high standard of work and the good reputation of the NPWS in carrying out its responsibilities in wildlife management made it very unlikely that there had been improper action by Service officers. I applaud the ICAC’s findings and hope now that the NPWS can continue its work without the need to weather such ridiculous claims.
‘These baseless allegations represent yet another incident where the NPWS has been used as a whipping post. It would appear that the claims served only to create a profile for the architects of the accusations,’ Mr Hartcher said.
‘The resources which had to be diverted to clear the name of the NPWS in this matter would have been better utilised in pursuing the real issues of wildlife management in NSW,’ the Minister concluded.
‘The ICAC’s determination is consistent with the findings of other investigations carried out by the NPWS and the Police Department in response to allegations made by Raymond Hoser.”

5 The media release nominated Julian Green as the person to whom further inquiries should be directed.
6 The defendant was, at the time of the publication, the NSW Minister for the Environment.
7 The plaintiff claims that the publication conveys five imputations, each defamatory of him. They are pleaded as follows:
“(a) the plaintiff made allegations against the NSW National Parks and Wildlife Service which he knew to be false;

(b) the plaintiff made allegations against the NSW National Parks and Wildlife Service of so ridiculous a nature that he ought to have known they were false;
(c) the plaintiff irresponsibly made a series of allegations against the NSW National Parks and Wildlife Service for the purpose of gaining publicity for himself;
(d) the plaintiff had caused the NSW National Parks and Wildlife Service to expend considerable time and money by making a series of allegations against it which he knew to be false;
(e) the plaintiff had caused the NSW National Parks and Wildlife Service to expend considerable time and money by making a series of allegations against it which were so ridiculous that he ought to have known they were false.”

8 The court file shows that the parties appeared in the Defamation List on 7 July 1995, but thereafter there appears to have been a long period of inactivity with no further listing of the matter until 20 March 1998, and thereafter from time to time during 1998. No defence has yet been filed.
9 The defendant’s notice of motion was supported by an affidavit sworn by his solicitor. He deposed to the following:

(a) that the lapse of time between the date of the issue of the press release and the commencement of the proceedings has prejudiced the defence;
(b) neither the press release nor papers recording its preparation or its issue can be located other than one undated copy, not on letterhead, which was located on 21 January 1994;
(c) the officer who found the document can no longer recall where it was or whether any other documents existed;
(d) There have been significant structural and organisational changes in the administration of the NPWS, and particularly that section of the NPWS concerned with media, promotions, and publicity;
(e) Julian Green resigned in November 1994, and worked as a temporary employee for a period in 1995;
(f) in March 1995 (that is, after publication of the media release, but before the commencement of the proceedings) there was a change of government in NSW and the defendant ceased to be Minister for the Environment;
(g) the defendant did not retain any papers relating to the plaintiff, the media release, or the ICAC investigations;
(h) a number of the persons named in the book “Smuggled” had resigned or retired prior to the book’s publication, and one died in 1988;
(i) other officers named in the book have left the NPWS since 1993; another, a former director of NPWS, died in 1997;
(j) should the action proceed the defendant would wish to plead defences of truth, contextual truth, comment and qualified privilege;
(k) his capacity to maintain these defences would be compromised by reason of the delays that have taken place;
(l) the plaintiff has been convicted of offences against the National Parks and Wildlife Act in 1982, 1984, and 1985;
(m) In 1995 the plaintiff was convicted in Victoria of perjury, and was sentenced to a term of imprisonment.

10 In evidence also was a bundle of correspondence between the solicitors for the parties, commencing on 23 March 1998 with a letter from the defendant’s solicitors to the plaintiff’s solicitors. After complaining that the proceedings had been “revived” and re-listed without notice to them, the solicitors advised of their intention to make the present application. In a letter dated 24 April 1998 they referred to a direction made by the court requiring the defendant to file a notice of motion and affidavit within 21 days, and sought the plaintiff’s agreement to an extension of time for compliance. The reason they gave was “the length of time the claim has been dormant …” By facsimile dated 30 April 1998 the plaintiff’s solicitors notified them that they refused to agree to the extension. In the absence of any evidence to the contrary, or any evidence as to any other notice of motion which the defendant might have contemplated filing, I assume that the notice of motion and affidavit referred to were those connected with the present application which had been foreshadowed in the first letter of the current round of correspondence.
11 In a further letter dated 8 May 1998 the defendant’s solicitors told the plaintiff’s solicitors they were unable to comply with a court imposed timetable for filing a notice of motion and affidavit “due to the difficulty in gathering all of the evidence”, and advised that they now considered it necessary to issue subpoenas for the purpose of obtaining that evidence.
12 There is no evidence of further correspondence until 2 October 1998 when the plaintiff’s solicitors wrote to the defendant’s solicitors notifying of their intention to restore the matter to the Defamation List on 13 November for the purpose of seeking an order that it be placed in the Holding List. They asked the defendant’s solicitors “to advise of any outstanding matters in order that same may be attended to”.
13 The defendant’s solicitors responded with a short history of the proceedings, noted their opposition to the matter being placed in the Holding List, as interlocutory steps had not been completed, and said that in their view the appropriate orders to be made on 13 November related to the defendant’s application to strike out for want of prosecution (which still had not been filed). They invited the plaintiff’s solicitors to prepare to argue the application on that date.
14 The evidence does not disclose what orders, if any, were made on 13 November. There is another letter from the defendant’s solicitors dated 11 November, the details of which need not here be mentioned. The next and final letter in the bundle is another from the defendant’s solicitors dated 10 December, again complaining that the matter had been listed without reference to them, and reiterating that they would ask for argument to proceed on the defendant’s notice of motion to strike out the claim on the basis that the publication was absolutely privileged. No mention was made in this letter of an application to strike out for want of prosecution.
15 Evidence was given on behalf of the plaintiff by way of an affidavit sworn by his solicitor, Mr Tees. Mr Tees deposed that he had first received instructions to act on the plaintiff’s behalf in late 1996, after the proceedings had been commenced by other solicitors. At the commencement of argument, the date 1996 was corrected to 1997. In essence, Mr Tees recounted instructions he had received from the plaintiff to the effect that his former solicitors had deceived him in relation to the progress of the matter and had failed to take proper and appropriate steps to have it brought on for hearing. There was also an allegation that the former solicitors had entered an arrangement with the plaintiff concerning fees, but that they had failed to honour the agreement and demanded additional payment. Mr Tees said that the plaintiff’s instructions were that he had always wished, and continued to wish, to prosecute the claim to vindicate his reputation, and that the publication had had a seriously long term damaging effect on his reputation as a researcher and commentator on wildlife conservation and other matters.
16 He also deposed that, as might have been anticipated, the media release was re-published in certain newspapers, and that, early in 1994, the plaintiff complained to the Australian Press Council about the newspapers that repeated the allegedly defamatory material. Annexed to his affidavit was an adjudication of that body dated September 1994 upholding the plaintiff’s complaints against the newspapers.
17 The evidence showed that the plaintiff was convicted of perjury in Victoria in 1995, and that, after an unsuccessful appeal, he served a prison sentence of six months, of which two months was suspended. He was released on 13 August 1997.
18 The notice of motion was filed on 11 December 1998. In it the defendant sought, in the alternative, orders that the matter be struck out for want of prosecution, or that it be struck out on the basis that no cause of action could arise because the publication was absolutely privileged. The latter was not ultimately pursued.
19 It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive:
20 (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited, unreported, 19 November 1995, per Sperling J;
21 (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan, per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D;
22 (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J;
23 (4.) personal blamelessness on the part of a plaintiff(as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73.
24 (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant’s case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff’s earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie’s Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestley JA;
25 (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant’s capacity properly to defend the plaintiff’s claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time;
26 (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise;
27 (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff’s personal responsibility for the delay is an important factor as is any explanation provided for the delay;
28 (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC, unreported, 6 November 1998, per Levine J;
29 (10) the plaintiff’s prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff’s case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P;
30 (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.
The Defendant’s Argument
31 The defendant’s first argument involved the provisions of SCR Pt 32A, introduced into the Rules in August 1998. These rules are designed, and operate, to enable the court of its own motion to dispose of cases which have been inactive for twelve months or more. Although it would have been open to this court, on the chronology earlier mentioned, to have called upon the plaintiff to show cause why the proceedings should not have been dismissed (and given the defendant also an opportunity to be heard on that question) that step was not, apparently, taken. The rule was not introduced as a weapon in the armory of the defendant who, after taking no action for two years and eight months, is confronted by a reactivated plaintiff. I regard the provisions of Pt 32A as irrelevant to the present application.
32 Another plank in the defendant’s case was based upon what are said to be special considerations in defamation cases. A specialist list has been in existence in this court to manage defamation cases since 1979, because of what is perceived to be the need for early resolution of cases of that kind. A plaintiff who fails to act in relation to a perceived defamation may be regarded as lacking genuine interest in pursuing the vindication of his or her rights and this is something that may be factored into the calculation of any damages awarded.
33 If, in any particular case, it is proper to draw an inference that the plaintiff is not truly concerned about the vindication of reputation, then that is one factor in the equation in the consideration of whether the interests of justice are met by striking out the claim.
34 The foundational premise, however, is that the plaintiff is not especially interested in pursuing the claim, and would therefore not be unduly prejudiced by its termination. In the present case, there is sworn evidence, of a hearsay character, that the plaintiff has at all times maintained his interest in and determination to pursue his rights. Although no objection was taken to the evidence, and the deponent was not cross-examined, given its hearsay character the evidence can be given little weight. I would be reluctant to make a positive finding on this evidence that the plaintiff is motivated to pursue the action. But that is to invert the question. The relevant question for present purposes is whether the plaintiff has been shown to be not genuinely interested in the claim. The onus of establishing that lies upon the defendant. On the available evidence, I would not draw the inference that the plaintiff lacks commitment to the cause of action he asserts.
35 Counsel for the defendant next argued that what is crucial in the present determination is not the length of the delay, but the explanation for it. This has created a difficulty. The action was commenced in July 1995, although the cause of action is said to have arisen eighteen months earlier. Thereafter the record does not disclose any activity at all by either party until the plaintiff took steps to re-activate (activate might be a more appropriate term) in March 1998. In the affidavit evidence relied on by the plaintiff blame is unequivocally cast upon his former solicitors. Relative blamelessness on the part of a plaintiff is, as indicated above (para 23) a relevant factor. That means that findings of fact in relation to the inactivity on the plaintiff’s side of the record are necessary.
36 After judgment was reserved, counsel for the defendant in facsimile communications sought to re-open the defendant’s case, on the ground that additional evidence tending to rebut the plaintiff’s solicitor’s assertions about the conduct of his former solicitors was available. In part, this was said to be due to the error admittedly made in the affidavit, in which, originally, the deponent said that he first received instructions in late 1996, a date which was corrected to read 1997. There followed a flurry of correspondence by facsimile, the plaintiff opposing the proposed re-opening. In the end, having considered all that was put to me by both parties, and having regard to the tentative view I had reached, I re-listed the matter for argument on whether leave to re-open should be granted. This was largely because it seemed to me that the issues raised bore largely on the plaintiff’s credibility and could not properly be decided on the papers alone. When the matter was finally relisted, counsel for the plaintiff took no objection to leave being granted to the defendant to reopen.
37 Counsel for the defendant read an affidavit of Mr Richard Thomas, formerly the solicitor for the plaintiff. Mr Thomas also gave oral evidence.
38 He denied the plaintiff’s allegations about the arrangements for payment of fees. Particularly in the light of the absence of sworn evidence from the plaintiff, I accept these denials. Mr Thomas also said that, on hearing of the plaintiff’s conviction for perjury, he formed the view that he was unlikely to succeed in a defamation action, depending as it does upon reputation, and so advised the plaintiff.
39 To some extent Mr Thomas’s evidence damages the plaintiff’s credibility for the purpose of the present application. Counsel for the defendant argued that lack of credibility in the plaintiff is a relevant factor in assessing the plaintiff’s prospects of success, and therefore a relevant factor in the present determination. That is so, but there is a limit to how far the damage to plaintiff’s credibility in the present application can be carried over to a final hearing on the merits. I do not regard Mr Thomas’s evidence of being of great significance on the question whether the proceedings should be struck out for want of prosecution.
40 Counsel for the defendant also argued that the plaintiff’s conviction for perjury bears heavily on the present question. This, she argued, is because, in any defamation action, the plaintiff’s reputation is a central issue, and, in this case, his credibility will be important. There can be little doubt that the perjury conviction, and the penalty imposed, have potential to handicap the plaintiff in the pursuit of his claim. That in turn affects his prospects of success, which, as I have noted earlier, is one relevant factor in the present decision. I take into account, in the defendant’s favour, that the plaintiff’s prospects of success are likely, to some presently undefinable but probably significant extent, to be compromised by his conviction.
41 Another matter relevant to the plaintiff’s credit is said to be his trio of convictions under the National Parks and Wildlife Act, from which, it was put, an inference might be drawn that he was motivated by spite and ill will towards the NPWS. This relates, as I understand it, principally to the publication of the book “Smuggled”, but also to his motivation in bring these proceedings against a former Minister for the Environment.
42 While this may be an issue that will arise if there is to be a trial, and an inference that may be drawn by a jury, it is not an inference that I am prepared to draw on the present application and on the present state of the evidence.
43 All of this brings me to what, as I see it, is really the defendant’s principal argument; that is, that, by reason of the passage of time, the death of some potential witnesses, the movement of others, and the fading of memories that may be presumed in those who are available, and the loss or destruction of relevant documentary material, the defendant has suffered irremediable prejudice. There are a number of facets to this argument. One is that, the history and background of the matter being as they are, the circumstances to be explored date back, not merely to the date of publication of the media release, but to the date of events and activities referred to in the book “Smuggled” - that is, to the late 1970’s and early 1980’s. Issues relating to those events will or might arise as a result of the defendant’s intention to plead defences of truth, contextual truth, and qualified privilege. I have taken it that the defendant intends to justify the imputations by reference to the allegations made by the plaintiff in the book.
44 In this respect there is, to my mind, a glaring omission in the defendant’s evidence. As mentioned above, he has not filed a defence to this date and neither has he adduced any evidence at all of the reason for his failure to do so, nor of what steps (if any) have been taken on his behalf to investigate and prepare to meet the plaintiff’s claim since it was served on 3 July 1995. All that is said is that, on that date, he requested the Director General of the NPWS to arrange legal representation and that this was done. The deponent of the affidavit goes on to say that he had caused inquiries to be made, with the results outlined above (paragraph 9). Interestingly enough, one document was said to have been located on 21 January 1994 - well before the statement of claim was issued.
45 The inference I draw is that, for reasons that remain unexplained, the defendant did not make the necessary and appropriate inquiries, investigations and preparations at or shortly after the time he was served with the statement of claim.
46 That being so, his present complaints that the delay since that time has prejudiced his defence cannot be given any significant weight. His own assertion, through his solicitor, of prejudice has to be seen in the context of his own inactivity. Moreover, on the evidence before me, it is in fact the defendant who is responsible for the first hiccup in the proceedings, in his failure to file a defence. There is no suggestion in the evidence that this occurred because of any arrangement between the parties.
47 During the course of argument counsel for the defendant recounted a conversation between herself and then counsel for the plaintiff following the plaintiff’s perjury conviction in October 1995. The most I could infer from this (even if it could be treated as evidence, which it cannot) is that both counsel made assumptions, unconfirmed by instructions, that the conviction would bring the defamation proceedings to an end. That has proved to be a false assumption.
48 I have reached the conclusion that, if the defendant is prejudiced, it is because of his own inactivity immediately following service of the statement of claim. There is nothing in the affidavit to show that further prejudice has been occasioned between 1995 and 1998. In this regard I am conscious that there is evidence that one individual, a former director of the NPWS, died in 1997. However, there is nothing to show whether or not he was interviewed in 1995.
49 Nor does it assist the defendant to rely upon the antiquity of the allegations made in the plaintiff’s book “Smuggled”. If, in 1995, it was the defendant’s intention to defend the claim by alleging that the imputations pleaded by the plaintiff were (or any of them was) true, and to do so by reference to the plaintiff’s own writings, which themselves related to events said to have occurred as long ago as the early 1970’s, then one would have thought that immediate preparations would have been made to that end.
50 On behalf of the plaintiff it was suggested that his involvement in, and pursuit of his complaint to the Press Council should be taken into account as a matter into which his energy, and possibly funds, were diverted. Although his solicitor mentioned the complaint and its outcome, there is no evidence that it had any bearing on the plaintiff’s failure diligently to pursue this claim, or that it absorbed any of his funds. Nor is the favourable adjudication relevant. The defendant was not involved in that complaint. I find this part of the plaintiff’s evidence irrelevant to the present decision.
51 The plaintiff also argued that to strike out his statement of claim at this stage would be futile, since he is still within the period provided by the Limitations Act 1969 to commence afresh. In Razvan Kirby P doubted whether that circumstance “necessitated” the exercise of discretion against a defendant. It does not seem to me that his Honour entirely excluded that fact as a relevant consideration, and a different view appears to have been taken by Meagher JA who said that the fact that an order is made would be a futility has always been recognised as a valid ground for refusing to make a discretionary order. I think the fact that the plaintiff could, if the order were made, recommence his claim is a matter I should and do take into account. It is not, however, decisive. It is one only of a number of factors.
52 In my opinion the evidence shows that both parties have been equally lethargic, the plaintiff in pursuing his own interests, and the defendant in protecting his. I am satisfied that the interests of justice would not be met by striking out the statement of claim. The notice of motion is dismissed.

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