Jennings Construction Ltd v McNulty
[2000] WASCA 348
•15 NOVEMBER 2000
JENNINGS CONSTRUCTION LTD -v- McNULTY [2000] WASCA 348
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 348 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:149/1999 | 11 & 18 APRIL 2000 | |
| Coram: | MALCOLM CJ WALLWORK J MURRAY J | 15/11/00 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | JENNINGS CONSTRUCTION LTD MARK DENNIS PATRICK McNULTY |
Catchwords: | Appeal and new trial Appeal by leave Dismissal of action for want of prosecution Order by Deputy Registrar dismissing action in District Court for want of prosecution set aside by Judge Delay by both parties No specific prejudice to appellant |
Legislation: | Rules of the District Court 1996 O 4 r 1 r 2 r 3 |
Case References: | Birkett v James [1978] AC 297 Hazart v Rademaker (1993) 11 WAR 26 Hughes v Gales (1995) 14 WAR 434 Lewandowski v Lovell (1994) 11 WAR 124 Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 Carter v Standen, unreported; FCt SCt of WA; Library No 970271; 28 May 1997 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : JENNINGS CONSTRUCTION LTD -v- McNULTY [2000] WASCA 348 CORAM : MALCOLM CJ
- WALLWORK J
MURRAY J
- Appellant (Defendant)
AND
MARK DENNIS PATRICK McNULTY
Respondent (Plaintiff)
Catchwords:
Appeal and new trial - Appeal by leave - Dismissal of action for want of prosecution - Order by Deputy Registrar dismissing action in District Court for want of prosecution set aside by Judge - Delay by both parties - No specific prejudice to appellant
Legislation:
Rules of the District Court 1996 O 4 r 1 r 2 r 3
Result:
Appeal dismissed
(Page 2)
Representation:
Counsel:
Appellant (Defendant) : Mr G I Macnish
Respondent (Plaintiff) : Mr A J Castley
Solicitors:
Appellant (Defendant) : Cocks Macnish
Respondent (Plaintiff) : Bradford & Co
Case(s) referred to in judgment(s):
Birkett v James [1978] AC 297
Hazart v Rademaker (1993) 11 WAR 26
Hughes v Gales (1995) 14 WAR 434
Lewandowski v Lovell (1994) 11 WAR 124
Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Case(s) also cited:
Carter v Standen, unreported; FCt SCt of WA; Library No 970271; 28 May 1997
(Page 3)
1 MALCOLM CJ: This is an appeal by leave of this Court granted on 13 September 1999 to the appellant ("Jennings") to appeal against orders made by Nisbet DCJ on 2 March 1999, by which the learned Judge allowed an appeal and set aside an order made by Deputy Registrar Hewitt in the District Court, on 29 September 1998 that the action by the respondent ("Mr McNulty") against Jennings be dismissed for want of prosecution. In addition, the learned Judge dismissed an appeal by Mr McNulty against an order made by the Deputy Registrar refusing him the costs of his application. An order dismissing an action for want of prosecution is an interlocutory order: Hughes v Gales (1995) 14 WAR 434. An appeal against an interlocutory order made by a Registrar is by way of a rehearing: Hazart v Rademaker (1993) 11 WAR 26. An appeal from a decision of a District Court Judge on such an appeal lies to the Full Court by leave under s 71(1) of the District Court of Western Australia Act 1969.
2 The reasons for judgment of the learned District Court Judge incorporate the following chronology of events in the action:
"Date Event
17 October 1986 Accident.
21 September 1992 Writ issued.
18 January 1993 Default judgment entered.
15 February 1993 Plaintiff's solicitors wrote to the defendant informing it of the judgment.
20 August 1993 Defendant filed summons to set aside default judgment.
6 October 1993 Default judgment set aside.
2 February 1994 Statement of claim filed.
14 February 1994 Defence filed.
27 May 1994 Plaintiff provided informal discovery.
30 May 1994 Plaintiff's solicitors wrote to defendant's solicitors giving notice of intention to enter the action for trial and requesting
(Page 4)
- unavailable dates for pre-trial conference.
- 31 May 1994 Defendant's solicitors wrote to plaintiff's solicitors objecting to entry because they wished to deliver interrogatories and have the plaintiff medically examined.
16 August 1994 Defendant's solicitors wrote to plaintiff's solicitors maintaining their objection to entry for trial because they wished to deliver interrogatories and have the plaintiff medically examined and requiring discovery verified by affidavit.
25 October 1994 Defendant's interrogatories served on plaintiff's solicitors. There were 51 interrogatories, the majority of which had subparagraphs.
12 May 1995 Answers to Interrogatories filed.
15 November 1995 Further and better answers to interrogatories filed.
11 December 1995 Plaintiff's solicitors wrote to defendant's solicitors giving notice of intention to enter the action for trial and requesting unavailable dates for pre-trial conference.
14 December 1995 Defendant's solicitors objected to entry for trial because they wish to have the plaintiff medically examined.
15 February 1996 Defendant's solicitors wrote to plaintiff's solicitors giving further discovery.
19 March 1996 Defendant's solicitors telephoned plaintiff's solicitors informing them that inspection that had been arranged for
(Page 5)
- that day could not take place because the defendant's solicitors had not received the documents.
- 3 May 1996 Plaintiff's solicitors wrote to defendant's solicitors enquiring whether the documents had been received by the defendant's solicitors.
27 May 1996 Defendant's solicitors wrote to plaintiff's solicitors informing them that the documents had now been received.
April 1997 Plaintiff's solicitors received advice from solicitors in Victoria that they were required to transfer the plaintiff's file as they had been instructed to represent the plaintiff in the proceedings.
Late 1997 Plaintiff's solicitors advised by the solicitors in Victoria that they were to continue acting in relation to the proceedings.
20 January 1998 Notice of intention to proceed prepared.
11 March 1998 Plaintiff's solicitors wrote to defendant's solicitors requesting appointment for inspection of the documents. [That letter was apparently not received by the defendant's solicitors.]
28 May 1998 Summons to strike out the plaintiff's actions for want of prosecution filed by defendant's solicitors.
29 September 1998 Order to strike out for want of prosecution.
2 October 1998 Plaintiff's appeal.
5 October 1998 Defendant's appeal."
(Page 6)
3 The learned Judge concluded that Jennings, who was the defendant in the action, had been responsible for some "inordinate and inexcusable periods of delay". These were described by the learned Judge as follows:
"For example, from the time of the issue of the writ on 21 September 1992 and its service shortly thereafter, through until 20 August 1993 when the defendant filed a summons to set aside the default judgment which had been entered against it, on 18 January 1993, there was some 11 months of delay, and until default judgment was set aside on 6 October 1993 there was 13 months delay attributable solely to the defendant's conduct.
Then again when the defendant's conduct is examined from 31 May 1994 through until 27 May 1996 the delay in the matter could fairly be attributed to the defendant. During this period the plaintiff's solicitors were writing to the defendant's solicitors giving notice of their intention to enter the action for trial and requesting the defendant's solicitors' unavailable dates for attendance at pre-trial conferences, required by the Rules and Practice Directions of this Court. The defendant's solicitors wrote back denying that the matter was ready for trial and objected to its entry, and at one early stage threatened to immediately apply to countermand any entry and make application for costs!
The reason generally given by the defendant's solicitors for objection to the plaintiff's solicitors entering the action for trial was that they wanted to have the plaintiff medically examined. This was their view in May 1994. By December 1995 they were giving the same reason and yet they had still not arranged any medical examination of the plaintiff."
4 The learned Judge also concluded that the only period of delay which could be solely attributable to the conduct of Mr McNulty as plaintiff and his solicitors was the period between 27 May 1996 and January 1998. By letter dated 27 May 1996 Jennings' solicitors informed Mr McNulty's solicitors that certain documents were received and were available for inspection. The learned Judge found that Mr McNulty's solicitors did nothing until January 1998 when they filed a notice of intention to proceed. As to this period, the learned Judge said:
"The period of delay between 27 May 1996 and 20 January 1998 is explained by the plaintiff by reason of the fact that he
(Page 7)
- was resident in Victoria and had consulted solicitors in Victoria who were in correspondence with the plaintiff's West Australian solicitors who between them took some considerable time to sort out who should have the carriage of the action. On 11 March 1998 the plaintiff's solicitors wrote requesting an appointment for inspection of documents but the defendant's solicitors apparently never received the letter and, as the chronology discloses, this was followed a couple of months later with the defendant's summons to strike out the action for want of prosecution.
In granting the application on the defendant's summons to strike out the plaintiff's action for want of prosecution, paradoxically, the Deputy Registrar refused the defendant its costs of the application because it had been guilty of delay."
5 In his approach to the matter, the learned District Court Judge sought to apply the general principle applicable by reference to the following passage in the speech of Lord Diplock in Birkett v James [1978] AC 297 at 318 which was cited with approval in Lewandowski v Lovell (1994) 11 WAR 124 at 133, namely that:
"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."
6 In commenting on that passage in Lewandowski at 133 Murray J said that:
"In that reformulation of principle … it is made clear that not only must the delay, if not contumelious, be inordinate and inexcusable, but that the defendant will be required to demonstrate serious prejudice thereby."
7 Having so stated the test, the learned District Court Judge said:
(Page 8)
- "In analysing the chronology of this matter there is no doubt that there has been a material delay on the part of the plaintiff, namely the two year period of [sic or] so following 27 May 1996 when the plaintiff's solicitors were advised that documents they had been waiting for were ready. Whilst the explanation for that delay is somewhat weak, the fact of the matter was that the plaintiff had over a long period of time been prepared to enter the matter for trial but was dissuaded from so doing by the defendant's solicitors in correspondence which can in one or two instances be fairly described as being belligerent, and it seems to me that the defendant bears a large portion of the blame for the delay in this matter. It took away the impetus that had been generated by the plaintiff by what can only be seen to be in the light of its complete failure to arrange a medical examination of the plaintiff, a deliberate stalling tactic. The conduct of the defendant in matters such as this always calls for close examination as well as that of the plaintiff: (Lewandowski v Lovell (supra) and see also Ulowski v Miller [1968] SASR 277).
It also needs to be said that the dismissal of this cause of action for want of prosecution will cause the plaintiff irreparable hardship. He will have lost his cause of action because it is clearly statute barred. On the other hand the defendant was unable to demonstrate any particular prejudice arising out of the material delay which can be attributable to the plaintiff, the only prejudice it being able to point to was the general prejudice of the type discussed in Hughes v Gales (supra). For my part, however, I think it unlikely that Hughes v Gales would now be decided solely by reference to a general non-specific prejudice of the type identified by the Master at first instance in that case as emanating from O 1 r 4A, having regard to the subsequent decision of the High Court of Australia in Queensland v J L Holdings Pty Ltd (1996) 141 ALR 353.
In my opinion the defendant's application to dismiss the plaintiff's claim for want of prosecution fails. It follows that, as ordered, the plaintiff's appeal succeeds and the defendant's fails."
8 The learned Judge also concluded that Jennings should pay Mr McNulty's costs of the original application and the appeal to be taxed.
(Page 9)
9 It was from those orders that Jennings sought and obtained leave to appeal contending that the orders made by the learned Judge be set aside and that Mr McNulty's action be "struck out for want of prosecution". Ground 1 of the appeal was that the learned Judge erred in that he misdirected himself and failed to take into account relevant considerations when his Honour found no particular significance was to be attached to the general prejudice to be suffered by Jennings as opposed to the hardship to Mr McNulty; in finding that Jennings was responsible for periods of inordinate and inexcusable delay; and in finding that Mr McNulty was only responsible for a period of delay from 25 May 1996 until January 1998.
10 Ground 2 contended that:
"The learned Judge should have concluded that [Mr McNulty's] action ought to be struck out for want of prosecution because he:
(a) should have directed himself that:
(i) the court may and should in the proper exercise of its discretion strike out an action for want of prosecution in circumstances in which:
(A) there has been inordinate and inexcusable delay on the part of a plaintiff; and
(B) [Jennings] is likely to be prejudiced by that delay.
(ii) in the absence of evidence of specific prejudice, the court may nevertheless in the proper exercise of its discretion strike out for want of prosecution [Mr McNulty's] action in circumstances in which [Jennings] suffers prejudice in a broad sense;
(iii) in circumstances where there has been a long delay between the date upon which the cause of action accrued and the commencement of the proceedings it is incumbent upon a plaintiff to proceed with expedition in the prosecution of his action and that a pace which might have been excusable if the action had been commenced
(Page 10)
- earlier may be inexcusable in light of the time that has elapsed before the writ is issued;
- (iv) to commence and continue litigation which a plaintiff has no intention of prosecuting is, of itself, an abuse of the process of the court and justifies an action being struck out;
- (b) should have found:
(i) [Mr McNulty] has never prosecuted his claim with any degree of expedition and [Jennings'] conduct has not prevented [Mr McNulty] from doing so;
(ii) [Mr McNulty's] prosecution of his claim has been punctuated by a series of inordinate and inexcusable delays or a series of delays which together amount to inordinate and inexcusable delay;
(iii) [Jennings] will suffer extreme prejudice in the general sense since:
(A) [Mr McNulty] was not employed by [Jennings] and therefore evidence will need to be led concerning the degree of control which [Jennings] exercised over [Mr McNulty's] conduct and working environment; and
(B) 12-1/2 years has elapsed since the cause of the action accrued and the memories of witnesses are highly likely to be inaccurate and to have faded; and
(iv) that the inescapable inference to be drawn from [Mr McNulty's] conduct and the dilatory manner in which he has prosecuted his action is that he has and had no intention of prosecuting his claim."
(Page 11)
- by MRS Blocklayers and Renovators ("MRS"). Jennings is said to be a company incorporated in Victoria and carried on business in Western Australia. It was engaged as the main contractor to undertake building operations at the Joondalup College of Advanced Education in Joondalup. It is said that Jennings was the "occupier" as defined in the Occupiers Liability Act 1985 ("the Act") of the premises at Joondalup. It was the main contractor and the principal supervisor, as well as the entity having control of all construction and building operations performed on the premises by it or third parties, having the care, control, instruction, supervision and direction of all work performed by subcontractors and/or Mr McNulty on the premises. It is alleged that on or about 17 October 1986 ("the material date") at approximately 1.30 pm, when he was laying the final courses of a brick wall on the premises, the wall collapsed pushing Mr McNulty off the scaffold on which he was working as a result of which he fell approximately 1.5 metres onto a concrete floor. It is alleged that the accident was caused by the negligence of Jennings, its servants or agents. Detailed particulars are set out in the statement of claim. Alternatively, it was alleged that the accident was caused by the breach of the duty of care owed by Jennings to Mr McNulty under s 5(1) of the Act. It is further alleged that as a result of the accident, Mr McNulty suffered a number of injuries resulting in permanent disability, as a result of which he claimed damages.
12 Section 5(1) provides that:
"Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."
13 In its defence Jennings admits that it was the main contractor on the premises but denies having control of all construction and building operations performed on the premises by third parties and, in particular, says it did not have control over the manner in which building operations were carried out by MRS on the premises. It maintains that MRS were responsible for the care, control, instruction, supervision and erection of
(Page 12)
- work performed by Mr McNulty on the premises. It also pleads that, in terms of s 6 of the Act, Jennings engaged MRS to carry out certain works on the premises on the basis that they appeared to be a reasonably competent subcontractor. Section 6 of the Act provides that:
"(1) An occupier is not liable under this Act where the damage is due to the negligence of an independent contractor engaged by the occupier if -
(a) the occupier exercised reasonable care in the selection and supervision of the independent contractor; and
(b) it was reasonable in all the circumstances that the work that the independent contractor was engaged to do should have been undertaken.
(2) Subsection (1) does not operate to abrogate or restrict the liability of an occupier for the negligence of his independent contractor imposed by any other Act."
15 It is common cause that Mr McNulty's cause of action accrued on 17 October 1986. The writ was issued on 21 September 1992, some 5 years and 11 months after the date of the accident. Mr McNulty obtained judgment in default of appearance on 18 January 1993. This judgment was set aside on 6 October 1993 on the application of Jennings. In the meantime, on 10 May 1988 Mr McNulty had made an application to the Workers' Compensation Board in respect of disability suffered in the accident. This resulted in enquiries being made by Jennings' workers' compensation insurers. It appeared that Mr McNulty was injured on 17 October 1986 when laying the final few courses of bricks on an internal brick wall when a particularly strong gust of wind allegedly caused the upper half of the wall to topple knocking him to the ground 5 feet below and showering him with falling bricks.
16 MRS did not have a workers' compensation insurance cover. Mr McNulty made an application against Jennings pursuant to s 175 of the Workers' Compensation and Rehabilitation Act 1981 ("the WCR Act") by which Jennings, as principal contractor, was deemed to be his
(Page 13)
- employer for the purposes of the WCR Act. That claim was settled at a pre-trial conference at the Board on 13 December 1986. At that time Jennings' insurers were advised that Jennings would not have any further liability at common law and the file was archived.
17 By a letter dated 29 May 1992 Mr McNulty's solicitors gave notice of a claim for damages for personal injury to the insurers. This letter remained unanswered as the Jennings file could not be located. Subsequently, Mr McNulty's solicitors were advised to follow up the matter with the insurers. This was done by letter from the solicitors to the insurers dated 17 August 1992, which was not answered for the same reason as before.
18 The writ commencing the action was issued on 18 September 1992. It was served on Jennings at its registered office in Victoria on 28 September 1992. An affidavit of service was sworn on 14 December 1992 and is exhibited to the affidavit of Mr Leclezio of Mr McNulty's solicitors dated 15 July 1998. In the meantime, the writ had been forwarded to the insurers with a "With compliments" slip on 2 October 1992. Because the relevant file was not located, no action was taken with respect to the writ.
19 By letter dated 16 February 1993 Mr McNulty's solicitors informed Jennings that judgment in default of appearance had been entered in the District Court. Jennings forwarded the writ to the insurers who instructed solicitors. By letter dated 15 April 1993 the solicitors for the insurers said that the insurers were unable to locate the file in relation to the original injury and did not have a copy of the writ. A week later, however, they informed Mr McNulty's solicitors that the file had been located and that the insurers were not at risk for the relevant claim but that Jennings had a separate "employers indemnity insurer". It was requested that instructions be obtained by Mr McNulty's solicitors to obtain his consent to the default judgment being set aside. This request was denied by letter in reply dated 12 May 1993.
20 Following correspondence on behalf of the insurers, Jennings notified its public liability insurers through its brokers and the solicitors for such insurers. These solicitors responded that they were unable on behalf of Jennings until a proper claim had been made under the policy and liability had been accepted. It was suggested that Jennings instruct its own solicitors to set aside the default judgment. Jennings instructed its Western Australian agents by fax dated 2 June 1993 to instruct named solicitors. Jennings' solicitors were so instructed on 15 July 1993. On the
(Page 14)
- same day letters were sent to Mr McNulty's solicitors, the solicitors for the workers' compensation insurers and the solicitors for the public liability insurers seeking information and documents relating to the default judgment. No replies were received. Further letters were sent to the solicitors for the workers' compensation insurers dated 5 and 9 August 1993. A reply was eventually received on 26 August 1993 by way of a letter dated the previous day. In the meantime, an affidavit by the solicitor for the workers' compensation insurer was sworn and filed on 20 August 1993. In an affidavit sworn on 7 September 1993 and filed, Mr P E Jarman of Jennings' solicitors recounted the above events and stated that he had been instructed that Mr McNulty was not an employee of Jennings at the material time; Jennings denied that it owed any duty of care to him and/or that it stood in a relationship of sufficient proximity that such a duty arose; denied that such a duty had been breached; and denied that any breach had caused the injury alleged.
21 It was against this background that the default judgment was set aside on 6 October 1993. Subsequently, as appears from the chronology set out earlier, a statement of claim was not filed until 2 February 1994.
22 It is clear that the additional delay after the issue and service of the writ was not the fault of Mr McNulty or his solicitors, but due to the circumstances in which Jennings was placed. This of course is set against the background that the writ was not issued until 5 years and 11 months after the date of the accident. The papers contain no explanation for this period of delay but, in such circumstances, it was encumbent upon Mr McNulty and his legal advisers to expedite the preparation of the case for trial in order to avoid prejudice to either party by reason of any further delay.
23 On 29 May 1998 Jennings' solicitors took out a summons to strike out Mr McNulty's action for want of prosecution. The application was not heard until four months later. On 29 September 1998 Deputy Registrar Hewitt concluded that the application should succeed and ordered accordingly. The Deputy Registrar noted that the writ had been issued 5 years and 11 months subsequent to the accident. He took the view that "a plaintiff who delays commencing an action is expected by the Court to progress his action efficiently once it is started": Birkett v James [1978] AC 297. The principle applied by the Deputy Registrar was that an action may be struck out where there has been inordinate and inexcusable delay that is productive of prejudice to the defendant. Reference was also made to the decision in this Court in Hughes v Gales, supra, at 450 where, with the agreement of Kennedy and Pidgeon JJ, I said:
(Page 15)
- "This was a case in which the learned Master correctly found that the delay had been inordinate and inexcusable. The learned Master was entitled to find prejudice to the respondent in a very broad sense by reason of the delay despite the absence of specific prejudice. While the abuse of process alone may have justified the dismissal of the action for the want of prosecution, when the delay, prejudice and abuse of process were all taken together there was a very compelling case to dismiss the action for want of prosecution."
24 It is noted that the learned District Court Judge considered it unlikely that Hughes v Gales would now be decided solely by reference to a general non-specific prejudice of the type identified by the Master at first instance in that case as emanating from O 1 r 4A, having regard to the subsequent decision of the High Court of Australia in Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146. In that case the parties were engaged in a long-running commercial dispute concerning a lease to develop land. The estimated length of the trial was four months. After a number of interlocutory hearings and several amendments to the defence, the defendants applied again to amend their defence. All but one of the amendments were allowed. The learned Judge refused leave to add a defence which, though arguable, was likely to result in the vacation of the date which had been fixed for the trial six months ahead. The Judge considered that maintaining that date was a more pressing consideration than a party's right to present a further defence. The High Court, reversing a decision of the Full Federal Court, held that while case management principles were a relevant consideration, they could not be used to prevent a party from litigating an issue which was fairly arguable. A party should be permitted to raise an arguable defence, provided any prejudice to other parties could be compensated by costs.
25 As has been seen, the learned Judge said that Jennings was unable to demonstrate any particular prejudice arising out of the material delay which could be attributed to Mr McNulty and was only able to point to the general prejudice of the type discussed in Hughes v Gales. However, in an affidavit sworn 24 July 1998 by Mr Feutrill of Jennings' solicitors, he says that he had been informed by Mr Malcolm Rowe, a former accountant employed by Jennings in its Western Australian office, that Jennings ceased trading in Western Australia in November 1992, at which time the Jennings Group of Companies was taken over by the Fletcher Group of Companies. Mr Feutrill also says that he has been informed by Mr Rowe that all employees of Jennings that were or may have witnessed the alleged accident the subject of the proceedings are no longer in the
(Page 16)
- employ of Jennings. In a letter dated 22 July 1994 it was stated that Jennings was experiencing difficulty in locating all of its files, given the time interval between the alleged injury and the commencement of proceedings.
26 The Deputy Registrar considered that it was a cause of concern that the issues in the case would need to be resolved on the testimony of witnesses some 12 years after the accident when the recollections of those concerned "will be diminished". It was noted that Jennings had adopted a "fairly leisurely approach" to the preparation of the case which had "merely limped along". For example, Jennings had resisted the action being entered for trial in early 1994 because of outstanding interlocutory matters, but in the next six months the only action taken by Jennings was to make an application for discovery.
27 There was then a further period of delay when Jennings' solicitors objected to the action being entered for trial at the end of May 1994 because they wished to administer interrogatories and have Mr McNulty medically examined. The interrogatories were served on 25 October 1994. There were 51 interrogatories, the majority of which were broken down into subparagraphs. It was about six months before they were answered on 12 May 1995. The answers were insufficient. Further and better answers were filed on 15 November 1995. In the meantime, Jennings' solicitors took no step to have Mr McNulty medically examined.
28 On 11 December 1995 Mr McNulty's solicitors gave notice of their intention to enter the action for trial. Jennings' solicitors objected because they wished to have Mr McNulty medically examined. This had still not occurred and, again, no steps were taken to that end. In the result, the Deputy Registrar concluded that from approximately the middle of June 1996, there was no excuse for Mr McNulty's solicitors not proceeding with the action and from that time on no delay could be attributed to Jennings or their solicitors. The Deputy Registrar then made the following comments:
"I should also say that whilst it is not possible for me to pinpoint any particular period of delay prior to the middle of 1996, I am left with a powerful impression that the plaintiff's case was not being pursued vigorously at any time. Be that as it may, during 1996 the action, in my view, ground to a halt and it was not thereafter being progressed satisfactorily.
(Page 17)
- I make that comment conscious of the fact that there was some level of activity but nothing that in my view would justify the plaintiff failing to enter the matter for trial, particularly after such a long delay in the first place. At the end of the day I am left with a powerful impression that 12 years after the event there is a real risk that the parties will not be able to achieve a fair trial in regard to this action.
The recollections of individuals will be required. Their credit will be tested. The relationship between the defendant and another party will need to be explored and established. All sorts of matters will require testimony and, in my view, it is simply not fair to the defendant to have to adduce evidence on these issues so long after the event. It is therefore my decision that the application which is brought by the defendant should succeed and that there should be orders in terms of the application."
29 In the appeal to this Court it was submitted on behalf of Jennings that Mr McNulty or his solicitors were responsible for the entire period of the delay after the default judgment was set aside on 6 October 1993. It was contended that from that point on Mr McNulty's solicitors took no step in the proceedings except under the compulsion of a springing order. It is the case that springing orders were made on 19 January 1994 to compel Mr McNulty to file a statement of claim; on 9 May 1995 to compel him to answer interrogatories originally administered on 25 October 1994 and the subject of a previous order to answer; and on 10 November 1995 to compel him to provide further and better answers the subject of an order made on 23 June 1995. The answers were ultimately provided on or about 10 November 1995. According to the affidavit of Mr Feutrill, a solicitor having the conduct of the action for Jennings, no step was taken by Mr McNulty's solicitors in the action after that date.
30 Mr Feutrill, however, refers to correspondence which passed between the solicitors in the period 11 December 1995 to 25 February 1997. This commences with a request from Mr McNulty's solicitors for Jennings' solicitors to provide unavailable dates in the months of January, February and March 1995 as they intended to enter the action for trial on 19 December 1995. By letter dated 11 December 1995 Jennings' solicitors objected to the action being entered because they wished to have Mr McNulty medically examined. No reply was received and a reply by return was sought by letter dated 19 December 1995 faxed that day. A reply by letter was again sought by a letter dated 3 January 1996 and sent
(Page 18)
- by fax. The reply dated 4 January 1996 pointed out that Mr McNulty resided in Victoria, but indicated that the requirement to have him medically examined would not delay the entry for trial and that a pre-trial conference was unlikely to be listed for two to three months. By letter dated 5 January 1996 Jennings' solicitors maintained that the action was not ready for trial because of the need for the medical examination and the failure of Mr McNulty's solicitors to indicate whether they intended to adduce expert evidence at the trial. A reply to that letter was sought by a further letter dated 19 January 1996. The reply dated 24 January 1996 sought information within seven days whether a medical appointment had been arranged for Mr McNulty and indicated that the issue of expert evidence would be dealt with in the certificate of readiness. The response from Jennings' solicitors dated 1 February 1996 was to maintain that the action was not ready for trial.
31 In a letter dated 15 February 1996 Jennings' solicitors disclosed documents relating to the Head Contract for the construction project in the course of which Mr McNulty was injured and enquired whether Mr McNulty intended to adduce medical and/or non-medical expert evidence. Attention was also drawn to the requirement that the certificate of readiness state that the plaintiff had been recently medically examined and his condition was ready for assessment by the court. Information about this was requested together with information about any application to adduce non-medical expert evidence in accordance with the requirements of O 36A r 3 of the Rules of the Supreme Court 1971. The view was expressed that Mr McNulty could not succeed at the trial in the absence of expert evidence as to the method of construction and the reason for collapse of the wall.
32 Mr McNulty's solicitors replied by letter dated 28 February 1996 seeking copies of the documents enclosed and an appointment to inspect them was arranged for 19 March 1996. It seems that further documents were then to be sought by Jennings' solicitors from the Building Management Authority. These were not obtained until late May 1996 and an offer of inspection was made to Mr McNulty's solicitors by letter dated 27 May 1996.
33 In the meantime, according to Mr Leclezio, on 3 May 1996 Mr McNulty's solicitors requested an opportunity to inspect the additional documents because they had received no reply. A further letter was written on the same subject dated 20 May 1996. By letter dated 18 June 1996 Mr McNulty's solicitors confirmed an appointment to inspect Jennings' discovered documents and the "further documentation". The
(Page 19)
- inspection did not then take place and Jennings' solicitors confirmed a further appointment for inspection on 28 June. This appointment was not kept and by letter dated 25 February 1997 Mr McNulty's solicitors sought a further date and time to inspect Jennings' documents. On 4 March 1997 Mr Lee, a solicitor employed by Jennings' solicitors, telephoned the secretary of Mr McNulty's solicitor and informed her that the documents could be inspected at any time. As at 28 May 1998 the documents had not been inspected. It is apparent that the delay of almost two years in inspecting the relevant documents was solely due to Mr McNulty's solicitors' failure.
34 In his affidavit sworn on 15 June 1998 Mr Leclezio of Mr McNulty's solicitors says that his inspection of the documents was "probably overlooked" in the latter part of 1996 because of his involvement in getting up a District Court action for trial, which was heard over a two week period in November 1996. He was aware of the fact that the documents were available for inspection at any time from 4 March 1997. He says that in April 1997 his firm was informed by solicitors in Victoria that they had been instructed to represent Mr McNulty and requested that the file be transferred to them. There was then some correspondence between the two firms on this subject. In late 1997 his firm was informed that they were to continue to act. Accordingly, as no step in the action had been taken for more than a year, a notice of intention to proceed was prepared on 20 January 1998.
35 By letter dated 11 March 1998 Mr McNulty's solicitors sought to inspect Jennings' documents and asked for arrangements to be made for a mutually convenient time for this purpose. No reply was received and a reply was requested by letter dated 2 June 1998. The reply from Jennings' solicitors dated 8 June 1998 indicated that the last correspondence received from Mr McNulty's solicitors was the letter dated 25 February 1997 and requested a copy of the letter dated 11 March 1998 as the letter had not been received. On this basis the relevant period of delay by Mr McNulty's solicitors was certainly not less than nine months.
36 The application by Jennings to strike out the action for want of prosecution was filed and served on 28 May 1998. In a letter to Jennings' solicitors dated 6 July 1998, Mr McNulty's solicitors noted that the application to strike out was returnable on 6 July 1998. They also enclosed copies of their letter dated 11 March 1998 and the notice of intention to proceed dated 20 January 1998 which their opponents maintained had not been received. In their reply dated 7 July 1998
(Page 20)
- Jennings' solicitors noted that, while Mr McNulty had 21 days in which to file an affidavit in reply he had not done so.
37 The application was heard by the Deputy Registrar on 29 September 1998. At the conclusion of the argument orders were made that the action be struck out for want of prosecution. However, the Deputy Registrar declined to order that Mr McNulty pay Jennings' costs of the application. No order for costs was made on the ground that Jennings' conduct in the course of proceedings had contributed to the delay in prosecution of the action. In this respect, he referred to the numerous requests by Jennings' solicitors that the action not be entered for trial and the requests that Mr McNulty be medically examined without seeking to make any arrangements for such examination.
38 In the meantime, Mr McNulty's solicitors had obtained a medical report dated 5 July 1993 from Mr G Speck, an orthopaedic surgeon in Victoria. The report noted that Mr McNulty had been treated by a Dr Hodgkinson of North Perth, Mr John Bell, an orthopaedic surgeon, who is well known in Western Australia, as well as a Dr Osborne at Waragul and a Dr Finch. The materials before the Court give no indication of any effort to obtain any further information from any of these doctors or from the Wanneroo Hospital where Mr McNulty had been treated and had an overnight stay following the accident, before being allowed home the following day.
39 The primary contention of Jennings was that all of the delay since February 1994 was attributable to Mr McNulty, not Jennings. It was contended that the action could have been entered for trial in March 1994 after the pleadings had closed, but that Mr McNulty's solicitors chose not to do so. I am unable to accept that contention. There had not been any exchange of medical reports. Mr McNulty's solicitors were not in a position to complete a certificate of readiness. As indicated above, the learned Judge found that the delay between 31 May 1994 and 27 May 1996 could fairly be attributed to Jennings. It was contended on behalf of Jennings that the learned Judge had overlooked that for some 13 months from when interrogatories were administered in October 1994, Mr McNulty was in default of orders and springing orders to delivery answers to the interrogatories. It was also submitted that the learned Judge wrongly concluded that delay was caused by Jennings' solicitors objecting to the entry of the action for trial because they wanted to have Mr McNulty medically examined. This objection was first raised in May 1994. It was still being repeated in December 1995 and yet no steps had been taken by Jennings to arrange for any such examination.
(Page 21)
40 It was submitted on behalf of Jennings that the appellant's remedy was to enter the action for trial, notwithstanding the objections by Jennings that the action was not ready for trial. In my opinion, a party who is objecting that an action is not ready for trial because there is something which that party wants done first, and it is in that party's hands to take the necessary steps, cannot complain if the action is not entered for trial. In such circumstances, it would not be appropriate for the plaintiff's solicitors to certify that the action was, in all respects, ready for trial.
41 It was contended on behalf of Jennings that the learned Judge was in error when he found that the only period of delay solely attributable to Mr McNulty and his solicitors was the period following 27 May 1996. It was contended that this overlooked the time taken by Mr McNulty to properly answer the interrogatories in the 13 months from November 1994 to November 1995. That may well be so, but Jennings were very late in giving discovery of documents relating to the building project in the course of which Mr McNulty was injured. On 15 February 1996 Jennings' solicitors discovered relevant files that "had only just then come to [Jennings'] notice". As earlier indicated, Jennings had been taken over in November 1992 and closed down its business in Western Australia. Considerable difficulty had been experienced in locating relevant documents and giving discovery. It was on 27 May 1996 that Mr McNulty's solicitors were informed by Jennings' solicitors of the discovery of the additional documents and invited to inspect them. There was no response to the invitation. Hence, in that context, delay was the fault of Mr McNulty's solicitors.
42 During the course of the hearing of the appeal it appeared that on 25 November 1999 Mr McNulty's solicitors had filed a certificate of readiness in the District Court together with an entry for trial and a request for a date to be fixed for a pre-trial conference.
43 At the time of the hearing in the Full Court on 11 April 2000, none of these documents were before the Full Court. Consequently, the Court directed that the chronology be expanded to deal with such documents and that copies of them be delivered to the Court.
44 It appears that the certificate of readiness filed on 25 November 1999 and the entry for trial were not served on Jennings' solicitors. They were quite unaware of them. It appears, however, that by a letter dated 9 February 2000 Mr McNulty's solicitors informed Jennings' solicitors that a pre-trial conference was listed for 10 March 2000 and that the papers would be served "shortly".
(Page 22)
45 Mr McNulty's solicitors provided copies of the documents to the Court and Jennings' solicitors on 11 April 2000. By letter dated 12 April 2000 Jennings' solicitors gave notice that they wished to seek the leave of the Court to file and read affidavits of Jamie John Stranger and Matthew John Walton sworn on 12 April 2000 and make further submissions to the Court.
46 The appeal was listed before Murray J as a single Judge of the Full Court on 18 April 2000. In the meantime, it had been verified that the action had indeed been entered for trial on 25 November 1999, although copies of the papers had not been served. A further certificate of readiness had been filed on 1 March 2000. In the circumstances, leave to file and read the affidavits of Messrs Stranger and Walton was granted. Leave was also granted to Mr McNulty to file an affidavit by Mr Bradford who was the principal of the firm acting for him.
47 Mr Stranger's affidavit deposes that subject to the supervision of his principals he had the conduct of the action on behalf of Jennings from 26 August 1999 to 6 January 2000. By a letter dated 16 November 1999 Mr McNulty's solicitors informed Jennings' solicitors that they were instructed to enter the action for a pre-trial conference. On 17 November Mr Stranger told Mr Bradford that the action should not be entered for trial while the appeal was pending. Mr Bradford replied that he was under pressure from his client to progress the action and requested that Mr Stranger put his concerns in writing. This was done by letter to Mr McNulty's solicitors dated 23 November 1999. Mr Stranger says during the period from that date to 6 January 2000 Mr McNulty's solicitors did not:
(a) notify Mr Stranger's firm that they intended to enter the action for trial;
(b) ask for unavailable dates for the listing of the pre-trial conference;
(c) serve the entry for trial papers on his firm; and
(d) give any notice of intention to file a certificate of readiness on his firm.
48 Mr Walton is a solicitor employed by Jennings' solicitors and has assisted in the conduct of this matter. By letter dated 16 November 1999 a request was received from Mr McNulty's solicitors requesting unavailable dates for a pre-trial conference to be listed within seven days of the date of the letter. By letter dated 9 February 2000 Jennings' solicitors were notified of a pre-trial conference listed for 10 March 2000.
(Page 23)
- It was contended in Mr Walton's reply dated 17 February 2000 that this was inappropriate while the appeal was pending. A request was made for the date to be vacated and the entry for trial suspended, pending the disposal of the appeal. By letter dated 22 February 2000 this request was refused and it was stated that any request to countermand the entry for trial would be opposed.
49 In a telephone conversation on 25 February 2000 with a solicitor in the employ of Mr McNulty's solicitors, Mr Walton was informed that the action had been entered for trial in or about November 1999, but a pre-trial conference date had not been fixed by the Court until on or about 9 February 2000. Mr Walton informed the solicitor that his firm had never been served with nor received the entry for trial or the papers for the Judge. He was informed that the documents would be served "shortly".
50 Mr Walton inspected the District Court file on 11 April 2000. He explained that the District Court places what he referred to as a "circular" but what is in fact an oval stamp on a document on the date it is filed. A rectangular stamp is placed on the document when it has been accepted and the relevant filing fee paid. The entry for trial (exhibit "D" to Mr Walton's affidavit sworn 11 April 2000) bears an oval stamp dated 25 November 1999. This infers that the entry was filed but not then served. Exhibit "E" to the affidavit is a Notice of a Pre-trial Conference which has an oval stamp indicating that it was filed on 14 December 1999 and the relevant fee was paid on 1 March 2000. The certificate of readiness, exhibit "F" to the affidavit, has a rectangular stamp on it of 1 March 2000. It is clear that Jennings' solicitors were never served with copies of exhibits "D", "E" and "F" at the time or immediately after the time they were filed at the District Court. Exhibit "F" is itself undated. Another copy of the certificate of readiness, exhibit "G", however, has a rectangular stamp on it dated 25 November 1999. It is apparent from the signature page on each of exhibits "F" and "G" that they were signed by different persons. A copy of exhibit "G" was received by Jennings' solicitors under cover of a letter dated 11 April 2000 from Mr McNulty's solicitors. Until then, they were unaware of its existence.
51 According to Mr Walton, there is no copy of exhibit "G" on the District Court file and there is no record of it in the District Court. Mr Walton's exhibit "H" is a copy of a record of documents filed at the District Court in the action. The only reference to an entry for trial in the action is that dated 1 March 2000 on which date the papers for the Judge were also filed. Both of exhibits "F" and "G" contain a par 12 stating:
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- "Not less than 7 days Notice of Intention to File this Certificate has been given to all parties."
52 Mr Walton says that notwithstanding par 12 of each of the two exhibits, Jennings' solicitors have never been served with or received a copy of either document until 11 April 2000. Both exhibits "F" and "G" contain a par 6 which states that:
"Inspection of documents, requested or ordered, has been made by or to the Plaintiff (or the Defendant)."
53 Mr Walton says that the file maintained by Jennings' solicitors does not disclose that Mr McNulty's solicitors have ever inspected the documents discovered by Jennings in these proceedings. The inference from the materials is that no such inspection has taken place and I would so find.
54 Both exhibits "F" and "G" also state in par 8(d) that Mr McNulty has sought agreement of medical and other expert reports, plans, photographs and other documents. Mr Walton says that no such agreement had been sought.
55 Paragraph 10 of exhibit "F", which is omitted from exhibit "G" (apparently in error), says:
"We advise that there are no unavailable dates for the parties."
56 Mr Walton says that, notwithstanding par 10, "… of each of exhibits 'F' and 'G' [Jennings'] solicitors were never asked to supply and never informed [Mr McNulty's] solicitors that there were 'no unavailable dates' for the assumed trial of these proceedings."
57 In fact, as appears from par 4 of the affidavit of Mr Stranger of Jennings' solicitors sworn 12 April 2000 (to which I have already referred), Mr Stranger acknowledges that by letter dated 16 November 1999 (exhibit "A" to the affidavit) Mr McNulty's solicitors did in fact say that they were instructed to enter the action for a pre-trial conference and asked for unavailable dates within seven days. The point is made that following a telephone conversation with Mr Bradford on 17 November 1999, to which I have already referred, it was agreed by Mr Stranger and Mr Bradford that Mr Stranger would convey his concerns about the entry for trial while the appeal was pending and that Mr Bradford would obtain "further instructions". The letter was duly written by Mr Stranger but no response was received.
(Page 25)
58 Mr Bradford has replied to the affidavits of Mr Stranger and Mr Walton in an affidavit sworn on 18 April 2000. He says that there was an application by Jennings to adjourn the pre-trial conference which was granted, pending the outcome of the appeal, with liberty to either party to re-list on 48 hours' notice.
59 Mr Bradford responds to the allegation that he had told Mr Walton that:
"It did not matter to him what happened; he just wanted to be seen to be doing something."
60 Mr Bradford says that he said he did not "care" about the result of an appeal from the Deputy Registrar but that Mr McNulty had to be "seen" to be doing the right thing or words to that effect. Mr Bradford points out that no application had been made to countermand the entry for trial. There is little substance in that point given that the papers had not been served.
61 Mr Bradford exhibited to his affidavit a medical report from a Dr David Vivian in Victoria dated 12 August 1999. He says that no decision has yet been made whether to call him. He says that the same is true in respect of another medical report from a Dr Brendan Holwill dated 10 August 1999, a copy of which is also exhibited.
62 In respect of Mr Stranger's affidavit, Mr Bradford says that he agrees with it. He says, however, that as "a result of no co-operation being received to enter the action for trial", he caused a letter to be written to the District Court dated 10 December 1999. The letter was addressed to the Listing Officer and indicated that the plaintiff had no unavailable dates for a pre-trial conference and enclosed a copy of the letter to Jennings' solicitors dated 16 November 1999 and said that Mr McNulty's solicitors had not been notified of any unavailable dates.
63 Mr Bradford also says that irrespective of whether Jennings' solicitors received copies of exhibits "D", "E" and "F" to Mr Walton's affidavit, they were notified by letter dated 9 February 2000 of the date for the pre-trial conference, which was adjourned on their client's application.
64 Mr Bradford points out that a standard form certificate of readiness in the Rules of the Supreme Court 1971 no longer applies as the matter is dealt with in O 4 r 1 of the Rules of the District Court 1996. Order 4 r 1
(Page 26)
- provides that O 33 of the Rules of the Supreme Court "shall no longer have effect".
65 Order 4 r 2 provides that:
"In any action commenced by writ:
(a) Each party other than the plaintiff shall within 200 days of an appearance being filed, notify the plaintiff of any dates on which that party is unavailable to attend a pre-trial conference. A party that does not so notify the plaintiff shall be deemed to be available on any date.
(b) The plaintiff shall within 210 days of an appearance being filed, file a notice of entry for trial in the prescribed form. Such a notice shall specify the dates on which any party is unavailable to attend the pre-trial conference.
(c) In the event of the plaintiff failing to comply with subrule (b) any other party may file the said notice, whereupon:
(i) The plaintiff shall be deemed to be available to attend the pre-trial conference on any date (unless notice to the contrary is filed prior to the listing of the pre-trial conference).
(ii) The parties shall be relieved of the obligation to attend on the return date of any summons for directions issued (pursuant to Order 1, Rule 4) in respect of the plaintiff's non-compliance with subrule (b)."
67 As to par 6 of the certificate of readiness, Mr Walton says that this implies an exchange of documents rather than being read "in a literal sense". In other words, an exchange of documents may take the place of discovery as such. Presumably, however, that would require an express agreement between the parties. In this case, there has been no disclosure of the relevant medical reports. Mr Bradford says, in effect, that copies of
(Page 27)
- the medical reports had not been served as no decision has as yet been made to call either of the doctors to give evidence at the trial. There is no material in the evidence before us which describes any steps taken to obtain evidentiary material from the Wanneroo Hospital, any doctor responsible for the treatment of Mr McNulty or the surgeon who was consulted at the relevant time, namely, Mr John Bell. Finally, there does not appear to have been any attempt to obtain any expert evidence relevant to the cause of the collapse of the wall which resulted in Mr McNulty's injury. As to this, Mr Bradford says that it is not Mr McNulty's "present intention" to adduce expert evidence "of a non-medical nature". On the face of it, it is difficult to understand the rationale of that position as it would seem obvious that such evidence could be of some importance.
68 In the end, the position is that the Court is left with no or no adequate explanation for the fact that the proceedings were instituted approximately one month before the expiration of the relevant limitation period of six years. There was a significant period of delay on the part of Jennings following service of the writ leading to the entry of judgment by default which was ultimately set aside. Clearly, it was then in the interests of both parties that the action should proceed to trial as soon as possible. An application to set aside the default judgment was not made for some five months after the judgment had been entered. At the end of May 1994 Mr McNulty's solicitors gave notice of their intention to enter the action for trial and requested unavailable dates for a pre-trial conference. Jennings' solicitors objected on the ground that they wished to deliver interrogatories and have Mr McNulty medically examined. Two and a half months later they maintained their objection to the entry for trial because they wished to deliver interrogatories, have Mr McNulty medically examined and required discovery verified by affidavit. Although interrogatories were administered on 25 October 1994, no steps were taken to obtain discovery verified by affidavit and no steps were taken to have Mr McNulty medically examined, although there was an objection to the action being entered for trial in December 1995 for the same reason. Inspection of Jennings' documents arranged for 19 March 1996 did not take place because Jennings' solicitors had not received the documents. There was then a period of delay between 27 May 1996 and 20 January 1998 when Mr McNulty's solicitors failed to take steps to inspect documents and there was a question whether they should continue to act for Mr McNulty. It is in this period that Mr Leclezio appears to have neglected the file for a period due to other commitments.
(Page 28)
69 In the result, it seems to me that both parties were responsible for significant periods of delay.
70 So far as ground 1 is concerned, I am not convinced that the learned Judge was in error in the manner contended, namely that he failed to take into account relevant considerations when he found no particular significance was to be attached to the general prejudice to be suffered by Jennings as opposed to the hardship to Mr McNulty. While it is true that there was delay in obtaining a statement of claim and in obtaining satisfactory answers to the interrogatories, these periods of delay seem to be largely the fault of Mr McNulty's solicitors rather than any lack of diligence on his part personally.
71 Given that the action was commenced late, although within the limitation period, it was always going to be difficult for Jennings to obtain evidence from persons employed on the construction site at the material time following the takeover and the cessation of Jennings' operations in Western Australia. Taking account of the desirability, if not duty, of a plaintiff to proceed with expedition where an action has been commenced at such a late stage as this one, I am not persuaded that the decision of the learned Judge suffered from any fatal error of fact or principle. I am unable to accept in particular that Mr McNulty has never prosecuted his claim with any degree of expedition and that Jennings' conduct has not prevented him from doing so. I do not accept that the prosecution of his claim has been punctuated by a series of inordinate and inexcusable delays or a series of delays which together amount to inordinate and inexcusable delay. Further, I am not satisfied that Jennings will suffer extreme prejudice in the general sense either because he was not employed by Jennings and evidence will need to be led concerning the degree of control which Jennings exercised over his conduct and working environment, or the fact that, as at 21 September 1992 when the writ was issued, it was some 5 years and 11 months after the date of the accident and, as at the date of the hearing before the learned Deputy Registrar, it was almost 12 years after the date of the accident. There is no evidence before this Court, apart from the fact that persons employed by Jennings at the time of the accident have not been employees for some considerable period, of what efforts have been made by Jennings or on Jennings' behalf to locate potential witnesses or any difficulty which has been experienced in that connection.
(Page 29)
72 For these reasons, I do not consider that either of the grounds of appeal has been made out. I would dismiss the appeal.
73 WALLWORK J: I agree with the reasons for judgment of Malcolm CJ and to the order proposed by his Honour.
74 MURRAY J: I have had the advantage of reading the reasons for decision published by Malcolm CJ. I have nothing to add to them and agree that the appeal should be dismissed.
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