Howlett v Hurburgh - [2000] TASSC 171

[2000] TASSC 171

CITATION: Howlett & Anor v Hurburgh & Anor [2000] TASSC 171

PARTIES:  HOWLETT, Colin Horace
  HOWLETT, Roslyn Gladys
  Trading as C H & R G Howlett

v
HURBURGH, Joan Helen
HURBURGH, Donald
CONTAS PTY LTD

TITLE OF COURT:  SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION:  APPELLATE
FILE NO/S:  FCA 142/1999
DELIVERED ON:  14 December 2000
DELIVERED AT:  Hobart
HEARING DATE:  25 August 2000
JUDGMENT OF:  Cox CJ, Slicer and Evans JJ

CATCHWORDS:

Procedure - Courts and judges generally - Courts - Dismissal of proceedings for want of prosecution - Exercise of discretion - Whether death of witness causative of irremediable prejudice.

The Closer Settlement Board v Thomas [1982] Tas R 179, applied.
Aust Dig Procedure [33]

REPRESENTATION:

Counsel:
           Appellants:  R C Mackay
           Respondents:  D R Wallace
Solicitors:
           Appellant:  Dobson Mitchell & Allport
           Respondent:  Wallace Wilkinson & Webster

Judgment Number: [2000] TASSC 171
Number of paragraphs: 11

Serial No 171/2000
File No FCA 142/1999

COLIN HORACE HOWLETT and ROSLYN GLADYS HOWLETT
Trading as C H & R G HOWLETT v
JOAN HELEN HURBURGH, DONALD HURBURGH and CONTAS PTY LTD

REASONS FOR JUDGMENT FULL COURT

COX CJ
SLICER J
EVANS J
14 December 2000

Orders of the Court:

Appeal upheld.

Judgment entered on 3 December 1999 in favour of the defendants set aside.

Serial No 171/2000
File No FCA 142/1999

COLIN HORACE HOWLETT and ROSLYN GLADYS HOWLETT
Trading as C H & R G HOWLETT v
JOAN HELEN HURBURGH, DONALD HURBURGH and CONTAS PTY LTD

REASONS FOR JUDGMENT FULL COURT

COX CJ
14 December 2000

The appellants sued the respondents for $74,021.20, being the balance allegedly owing on a contract for road and earth works on a subdivision at Blackmans Bay carried out in 1987. They also claimed interest on the sum found due. The original contract price was $92,538 and the appellants claimed that with authorised variations and extras, they were entitled to receive a further sum of $70,483. They were paid, they claimed, a total of $89,000 only. The litigation commenced with a writ filed on 8 September 1987. Pleadings and amended pleadings were exchanged and a number of interlocutory matters undertaken, but the matter progressed in fits and starts until 1999 when, on 13 July, the respondents took out a summons to dismiss the entire action for want of prosecution. A significant witness, Mr Keith Hewitt, had died on 2 April 1998. The learned primary judge dismissed the action on 2 December 1999 and the appellants now appeal on the following grounds:

"(a)His Honour erred in finding that Keith Hewitt was a witness who would have been of critical importance to the defendant and that as a consequence of his death the defendants suffered irremediable prejudice when:
(i)    There was little or no evidence as to what the nature of Mr Hewitt's evidence would have been;
(ii)     There was no evidence that Mr Hewitt's evidence would have been helpful to the defendants;
(iii)    There was evidence that notes of all site meetings had been taken and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] TASSC 171
Decision Date: 14 December 2000

CaseChat Overview and Summary

The Full Court of the Supreme Court of Tasmania was asked to consider an appeal by Colin Horace Howlett and Roslyn Gladys Howlett against the dismissal of their action for want of prosecution. The respondents, Joan Helen Hurburgh, Donald Hurburgh, and CONTAS Pty Ltd, had successfully applied to dismiss the proceedings on the grounds that the appellants' delay in bringing the action to trial was inordinate and inexcusable. The appellants sought to recover the balance allegedly owing on a contract for road and earth works on a subdivision at Blackmans Bay. The case turned on whether the learned primary judge was correct in finding that the death of Keith Hewitt, a witness engaged by the respondents as the clerk of works, caused irremediable prejudice to the respondents. The appellants argued that there was little evidence as to what the nature of Mr Hewitt's evidence would have been, and there was no evidence that his evidence would have been helpful to the respondents. They further argued that the learned primary judge placed undue weight on general prejudice and failed to consider the acquiescence by the respondents in the appellants' delay.

The Full Court held that the learned primary judge's discretion miscarried when he dismissed the entire action. The Court found that the resolution of the first question in dispute between the parties, whether the respondents had paid the appellants $104,387 or only $89,000, did not depend upon Mr Hewitt's evidence. The Court further found that the appellants' contention that Mr Hewitt was not a witness whose evidence was crucial to the resolution of the dispute was valid. The Court held that there was no evidence before the learned primary judge that an assessment of the first sub-issue had not been made by anyone else or could not now be made. The Court concluded that the serious step of denying a plaintiff a hearing on the merits because of inordinate and inexcusable delay should not be taken unless it is shown that such delay gives rise to a substantial risk that it is not possible to have a fair trial or is likely to cause serious prejudice to the defendant. The Court found the evidence of prejudice due to Mr Hewitt's death unpersuasive in the present case. The Full Court allowed the appeal and set aside the judgment entered in favour of the respondents.

Orders