Howlett v Hurburgh - [1999] TASSC 134

[1999] TASSC 134

CITATION: Howlett & Ors v Hurburgh & Ors [1999] TASSC 134

PARTIES:  HOWELTT, 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 HOBART
JURISDICTION:  Original
FILE NO/S:  1169/1987
DELIVERED ON:  3 December 1999
DELIVERED AT:  Hobart
HEARING DATES:  2 December 1999
JUDGMENT OF:  Wright J

CATCHWORDS:

[Edited version of reasons for judgment given orally]

REPRESENTATION:

Counsel:
           Plaintiffs:  R C Mackay
           Defendants:  C P Webster
Solicitors:
           Plaintiffs:  Lowrie Blissenden Howarth & Tauber
           Defendants:  Wallace Wilkinson & Webster

Judgment Number: [1999] TASSC 134
Number of Paragraphs: 8

Serial No 134/1997
File No 1169/1987

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 WRIGHT J
(DELIVERED ORALLY) 3 December 1999

By application dated 13 July 1999, the defendants apply for orders that the plaintiffs' action be dismissed for want of prosecution and that judgment be entered for the defendants.

The plaintiffs' claim is for $74,021.20, plus interest. The work in respect of which the claim is made was allegedly performed between March and June 1987. The writ was issued in September 1987. During the currency of these proceedings, the plaintiffs have had three different firms of solicitors acting for them. It is plain from the chronology of events presented in the various affidavits and the summary contained in the "time line" document prepared by Mr Webster and referred to by him during the course of his address, that the claim has proceeded on a stop/start basis for many years. There have been lengthy periods of complete inactivity. No satisfactory explanation for the inordinate delay has been forthcoming. The plaintiffs' action is founded upon an agreement that the plaintiffs would perform for the defendants, excavation and construction works on lands at Blackman's Bay in Tasmania.

Keith Hewitt was engaged as Clerk of Works by the defendants. He had the carriage of the day to day administration of the contract on the defendants' behalf. Mr Hewitt died on 2 April 1998. From the material presented, it is apparent to me that his evidence would have been of critical importance to the defence case. Mr MacKay, counsel for the plaintiffs, suggested that Mr Hewitt would have been a helpful, but not an essential, witness. 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…

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.

Keep reading for free

Create a free CaseChat account to read Howlett v Hurburgh and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1999] TASSC 134
Decision Date: 3 December 1999

CaseChat Overview and Summary

The case of Howlett v Hurburgh involved a claim by Colin Horace Howlett and Roslyn Gladys Howlett, trading as C H & R G Howlett, against Joan Helen Hurburgh, Donald Hurburgh, and Contas Pty Ltd. The plaintiffs sought to recover the sum of $74,021.20 plus interest for work they alleged was performed between March and June 1987. The writ was issued in September 1987, and the plaintiffs had multiple firms of solicitors representing them during the course of the litigation. The defendants applied for the plaintiffs' action to be dismissed for want of prosecution, arguing that the delay had caused significant prejudice, particularly due to the death of Keith Hewitt, the Clerk of Works who was critical to their defence. The court had to consider whether the plaintiffs' inordinate delay in prosecuting the claim and the subsequent death of a key witness constituted sufficient grounds for dismissing the action.

The primary legal issue before the court was whether the plaintiffs' delay in prosecuting their claim, coupled with the death of a key witness, constituted just cause for dismissing the action under the relevant procedural rules. The court also needed to weigh the defendants' responsibility in the delay against any prejudice caused by the delay. In examining the matter, the court considered the plaintiffs' obligation to prosecute their claim with reasonable diligence and the defendants' entitlement to have their case heard without undue prejudice. The court had to assess the specific circumstances of the case, including the length of the delay, the reasons for the delay, and the impact of that delay on the defendants' ability to mount a proper defence.

The court held that the plaintiffs' delay in prosecuting their claim, along with the significant prejudice caused by the death of Keith Hewitt, warranted dismissal of the action. The court found that there was a clear obligation on the plaintiffs to advance their proceedings at a reasonable pace and avoid conduct that could prejudice the defendants. The plaintiffs had not provided a satisfactory explanation for the delay, and the death of Hewitt had caused irremediable prejudice to the defendants' ability to defend the claim. The court concluded that the overall justice of the case required the dismissal of the plaintiffs' action and that the defendants were entitled to the relief sought. The court therefore dismissed the plaintiffs' action for want of prosecution and entered judgment in favour of the defendants with costs to be taxed.

The court ordered that the plaintiffs' action be dismissed for want of prosecution and that judgment be entered in favour of the defendants. The defendants were also granted costs, which were to be taxed. The court found that the plaintiffs' delay and the death of the key witness had caused sufficient prejudice to warrant the dismissal of the action. The plaintiffs' failure to provide a satisfactory explanation for the delay and the critical nature of Hewitt's testimony further supported the court's decision to dismiss the claim.

Orders