Howlett v Hurburgh
[2000] TASSC 171
•14 December 2000
[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 that such notes had been discovered and remained in the possession of the defendant's solicitors, and
(iv) The second defendant gave evidence that he was present at all relevant site meetings and that he has a reasonable recollection of the events.
(b)His Honour erred in placing little or no weight on the fact that Mr Hewitt's evidence, even if favourable to the defendants, would have only gone to part of the plaintiff's claim and not all of it.
(c)His Honour erred in placing little or no weight on the acquiescence by the defendants in the plaintiff's delay.
(d)His Honour placed undue weight on general prejudice when:
(i) There was no evidence before him that any witnesses' memories had been affected due to the passage of time;
(ii) a significant part of the dispute between the parties would be determined by documentary evidence and expert evidence, and
(iii) The defendants did not identify any documents, the probative value of which would be lost or diminished in the absence of evidence from Mr Hewitt.
(e)(Not pursued.)"
The respondents conceded by their defence that a number of variations had been undertaken by the appellants and that they were entitled to payment in full for some of these claims or to payment in part for others. They resisted payment entirely in respect of some other variations and claimed the deduction of a penalty amounting to $2,100 for late completion of the work and an allowance of $1,509 for savings effected by reason of the variations. They claimed that they had paid $15,387 more than the $89,000 acknowledged by the appellants and in the result asserted that the appellants had received a small surplus of $254 by way of overpayment. The respective positions of the parties can be seen in the following table:
Appellants
Contract Price
$92,538
Respondents
Contract Price
$92,538
Variation
70,483
Conceded variations
15,204
$163,021
$107,742
Less paid
89,000
Less paid
104,387
Balance owing
$74,021
$3,355
Less penalty $2,100
Less Savings $1,509
3,609
Balance overpaid
$254
The appellant does not argue that the delays in this matter are not inexcusable and inordinate. It is common ground that these delays in prosecuting the action are not attributable to the appellants themselves, but rather to their legal advisers. The learned primary judge placed considerable emphasis on the fact that Mr Keith Hewitt, who was engaged as clerk of works by the respondents and who had day to day administration of the contract on the latter's behalf, had died in April 1998. He did not accept counsel for the appellants' characterisation of him as a "helpful, but not an essential, witness". His Honour said:
"I disagree with this assessment. Notwithstanding the existence of documents and the presence of other witnesses from time to time at site meetings dealing with issues which are now relevant to these proceedings, it is plain to me that it will be very difficult for the defendants to properly deal with the plaintiffs' claim without Mr Hewitt. Equally plainly, it is apparent to me that there has been irremediable prejudice to the defendants as a consequence of Mr Hewitt's death. If the matter had been brought to trial within a reasonable time, Mr Hewitt's evidence would have been available. It is only 18 months since he died This is not a case where a deceased witness would have been unavailable even if the case had been brought to a hearing within a reasonable time. Mr Hurburgh gave evidence that Mr Hewitt was known by him to have had coronary by-pass surgery prior to his engagement as Clerk of Works for this job, but Mr Hurburgh said he was quite unaware that Mr Hewitt was terminally ill until he read his death notice in the local newspaper.
…
In the present case there is not only the general prejudice of delay which could, and probably will, adversely affect the memories of surviving witnesses, but there is the clear prejudice which exists and has existed since the death of Mr Hewitt."
The two biggest issues in dispute between the parties were first, the question of whether the respondents had paid the appellants $104,387 or only $89,000, and second, whether the reasonable cost of an admitted variation in respect of placement and consolidation of additional road sub-base was $53,376 as claimed by the appellants or would not exceed $3,738 as claimed by the respondents. The resolution of the first question in no way depended upon Mr Hewitt's evidence. It is a simple issue easily proven, one way or the other, by bank and accounting records. Even if there were good reason for dismissing parts of the claim because, in the circumstances, a fair trial could not be had, there was no justification for dismissing the entire claim, including the appellants' claim not to have been paid $15,387. In respect of that part of the claim, I think, with respect, that his Honour's discretion clearly miscarried.
As to the difference of $49,638 in respect of the variation for additional road sub-base, it is common ground that pursuant to site instructions, a quantity of 4,448 tonnes was placed and consolidated by the appellants. The appellants originally claimed an allowance of $3 per tonne in respect of this quantity, but in their amended statement of claim increased it to $12 per tonne or $53,376. The contract provides for the payment of "reasonable rates or prices" in respect of such variations. The respondents' position was that a total of 4,448 additional tonnes was not required but that only 2,250 additional tonnes were needed. They claim that at a site meeting attended by the appellant Mr Howlett and his employee Mr Grace, and by the respondent Mr Hurburgh and his clerk of works Mr Hewitt, agreement was reached that the tonnage for which payment was to be made was 2,250 tonnes and that no agreement was reached as to any rate per tonne. According to the defence, the appellants claimed $3 per tonne which the respondents did not accept and the respondents contended that a fair and reasonable basis for payment was the cost of plant hire for the time taken to undertake the work. This they claimed was only one-half of the total plant hire cost, namely $3,738.
The appellants' contention is that Mr Hewitt was not shown to be a witness whose evidence was crucial to the resolution of this dispute. There were several sub-issues:
· how much additional tonnage did the site instructions require by way of variation?
· was there an agreement by which the parties accepted the figure of 2,250 tonnes as the aditional tonnage?
· what was a reasonable price for the placement and consolidation of the additional tonnage?
I think one can readily infer that Mr Hewitt could have given relevant evidence on all matters, but there was no evidence before his Honour that an assessment of the first sub-issue had not been made by anyone else or could not now be made. Mr Hurburgh himself was present at the meeting and can give evidence of any agreement as to the figure of 2,250 tonnes being accepted and there is no reason to suppose that expert evidence could not be produced as to whether a rate per tonne of $3 or $12, as opposed to a charge based on the cost of machinery hire, is reasonable. Mr Hurburgh admitted in his affidavit that he had "a reasonable recollection of the events", but he could not recall the specific date of the site meeting.
Of the remaining $9,000 or so in dispute, proof of the set-offs for penalty and savings does not seem to be dependent on Mr Hewitt, while most of the other claims in respect of variation again depend upon expert evidence of what would be reasonable. Although Mr Hewitt may well have had detailed knowledge of the individual items in dispute, it has not been shown that the absence of his evidence will cause irremediable prejudice to the respondents in defending their refusal to pay the claims in whole or in part.
The serious step of denying a plaintiff a hearing on the merits because of inordinate and inexcusable delay on his part or on the part of his advisers 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" (per Lord Browne-Wilkinson in Roebuck v Mungovin [1994] 2 AC 224 at 230). While there is general prejudice to all parties when litigation is not brought before the Court for a lengthy period of time, such as in the present case, it does not follow that a defendant will be thereby deprived of a fair trial or suffer "serious prejudice". In The Closer Settlement Board v Thomas [1982] Tas R 179, the evidence of prejudice to the Board, which had sought dismissal of the long delayed action, was not regarded as persuasive. I find the evidence of prejudice due to Mr Hewitt's death unpersuasive in the present case. Notes of what might have been the forerunner of a proof of evidence taken from him in September 1995 shed little light on what he might have said in relation to the dispute about the sub-base in particular.
In the circumstances, I think more needed to be demonstrated before a finding could validly be made that Mr Hewitt's death has caused the respondents irremediable prejudice. In my respectful view, the learned primary judge's discretion miscarried when he dismissed the entire action. I would allow the appeal and set aside the judgment entered in favour of the respondents.
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
SLICER J
14 December 2000
I have read the draft form of the Reasons for Judgment of the learned Chief Justice and agree with his reasoning and conclusion. I would uphold the appeal.
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
EVANS J
14 December 2000
I have had the advantage of reading the Reasons for Judgment prepared by the Chief Justice. I agree with them and the orders he proposes.
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