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

1. 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.

1. 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.

1. 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 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.

1. In my opinion, it is no answer to an application such as this to say that the defendants could have pressed the matter forward by harrying the plaintiff with correspondence or an application to the Court, pursuant to the Rules of Court, O32A.  On this question, I was referred to the judgment of Mr Justice Neasey in Closer Settlement Board v Thomas [1982] Tas R 179 at 188 - 189 and the views expressed by Underwood J in Khavounitis v NRMA Insurance Ltd [1999] TASSC 2 at 5. Whilst I agree with both their Honours that a defendant's failure to invoke the provisions of O32A can be taken into account, I think that this is a matter of very little weight in circumstances such as the present. It must be remembered that despite the availability of pre-trial mechanisms, proceedings of this kind are still adversarial. Furthermore, it must be borne in mind that a defendant is usually brought reluctantly to court and, unless he has a counterclaim, stands to gain little or nothing except peace of mind, even if the proceedings are resolved in his favour. In my opinion, a plaintiff who comes to the court seeking a large sum of money, liability for which is contested, has a clear obligation to advance proceedings at a reasonable pace and to avoid conduct which carries the risk of prejudice to his opponent. The evidence in the present case does not persuade me that there has been any unreasonable or obstructive conduct by the defendants which would disentitle them to the relief sought or which would weigh heavily in the balance against them.

1. 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. 

1. In all the circumstances, I am of opinion that the overall justice of the case requires that the current application be granted and that the orders sought be made accordingly.

1. Therefore, the action will be dismissed for want of prosecution and judgment will be entered in the defendants' favour with costs to be taxed and I so order.

1. I certify for counsel.