Johnson v Raikaki
[1996] QSC 59
•19 April 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No. 241 of 1992
Before the Hon Justice White
[Johnson v. Raikaki & Ors]
BETWEEN:
BEN JOHNSON
Plaintiff
AND:
MELA BRU RAIKAKI
First Defendant
AND:
PAUL RAIKAKI
Second Defendant
AND:
SUNCORP INSURANCE & FINANCE
Defendant by Election
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 19/04/1996
CATCHWORDS APPLICATION to strike out for want of prosecution - inordinate delay - prejudice - self executing order.
Counsel:Solicitor for applicant
Solicitor for respondent
Solicitors:Quinlan, Miller & Treston for applicant
Alan Barrell as town agent for GH Healy & Co for respondent
Hearing date: 12 April 1996
IN THE SUPREME COURT
OF QUEENSLAND
No. 241 of 1992
[Johnson v. Raikaki & Ors]
BETWEEN:
BEN JOHNSON
Plaintiff
AND:
MELA BRU RAIKAKI
First Defendant
AND:
PAUL RAIKAKI
Second Defendant
AND:
SUNCORP INSURANCE & FINANCE
Defendant by Election
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 19/04/1996
The applicant/defendant by election has brought a summons seeking orders that the plaintiff's action be dismissed for want of prosecution. The plaintiff was a passenger in a motor vehicle driven by the first defendant and owned by the second defendant. On 8 December 1985 at approximately 4.00am that motor vehicle was involved in a collision with a power pole in Mackay and as a result the plaintiff sustained personal injury. That much appears not to be in contest. The plaintiff instituted proceedings in the Sydney registry of the Supreme Court of New South Wales in 1987 for damages arising out of the negligent driving of the first defendant.
The plaintiff's solicitors in Sydney concede that the plaintiff was an illegal immigrant probably coming here from Fiji in about 1984. Numbers of documents said by the plaintiff's solicitors to relate to the plaintiff are in names other than that which appears on the court documents, namely, Ben Johnson. Other names are Ben Halliday, Peniasi Kata, Kata Peniasi Rabuatoka and Beniyasi Kada.
The order transferring the action to the Supreme Court of Queensland by consent was made on 28 September 1990. It was not entered until 17 February 1992. In 1991 the plaintiff's present solicitors in Sydney took over the file from another firm. There is nothing in the material to indicate what, if anything, occurred between the date of the amended statement of claim on 24 September 1987 and the date of transfer. A notice of election and an entry of appearance by the defendant by election was filed on 31 March 1992 and the defence was delivered on 15 May 1992. In that defence the defendant by election alleged contributory negligence against the plaintiff on two bases, namely, his failure to wear a seat belt and his voluntary acceptance of the risk of travelling with an intoxicated driver.
On 15 May 1992 the defendant by election's solicitors requested the plaintiff's solicitors for their client's statement of loss and damage. About a week later the plaintiff's town agent in Queensland advised that the defendant by election's solicitors should liaise directly with his principals in Sydney. Accordingly a letter requesting the statement of loss and damage was sent to those solicitors on 26 June 1992. After several further letters the plaintiff's solicitors advised on 4 September 1992 that counsel was drafting the statement of loss and damage which would be provided within fourteen days. Two months later it had not been received. After a threatened application to the court the plaintiff's solicitors wrote on 17 November 1992 seeking an extension of fourteen days. On 21 December 1992 a statement of loss and damage was served. It clearly did not comply with O.39 r.29C of the Rules. Among the matters identified by the defendant by election's solicitors in a letter of 16 April 1993 as deficient were its failure to set out the name and address of each of the plaintiff's employers during the three years immediately before the injury; the period of each employment; the name and address of each of the plaintiff's employers since the injury; the period of employment by each employer; the net earnings for each period of employment both before and after the injury; the particulars of the plaintiff's claim for loss of income to date; all documents relating to the loss including economic loss; documents concerning the amount of wages paid to the plaintiff and documents concerning the income tax paid by the plaintiff and his taxable income. There was a continuing request for more medical reports. The particulars of the plaintiff's injuries were, inter alia, fractured skull, fractures to fingers, concussion, soft tissue injury to the spine, loss of memory and post-traumatic head injury syndrome. The defendant by election's solicitors advised the plaintiff's solicitors that the statement of loss and damage did not comply with the rules of court.
On 20 January 1993 the plaintiff's solicitors advised that they would apply to have the matter transferred back to New South Wales. Nothing further has occurred in respect of that proposal.
On 10 February 1993 an order was made by Derrington J that the plaintiff file and serve his statement of loss and damage complying in all respects with requirements of O.39 r.29C of the Rules within fourteen days of the order. There appears then to have been some months of delay arising out of oversight in the town agent's office and an extension was given until 16 April 1993 to comply with the order. On that day Mrs Jan Robinson, who is the solicitor in the plaintiff's solicitors' office in Sydney who has had the handling of this file from at least that time, advised that she was unable to comply with the order because of difficulty in obtaining instructions from the plaintiff. She also seemed to have some difficulty in comprehending the faults in the statement of loss and damage. On that day the solicitors for the defendant by election sent by facsimile transmission a letter advising of the specific deficiencies in the statement of loss and damage and gave a short extension within which to file a satisfactory statement. A few days later Mrs Robinson wrote advising that the original statement of loss and damage disclosed the full extent of the plaintiff's instructions.
On 4 May the plaintiff's solicitors provided a bundle of medical reports. They included a report of Dr MJ Wohlfahrt senior medical officer at the Mackay Hospital dated 30 September 1989, a report of Dr Damian Wohlfahrt dated 9 June 1992 from the Mackay Base Hospital, three reports of Dr D O'Sullivan neurologist at St Vincent's Hospital dated 20 August 1990, 24 September 1990 and 5 November 1990. A few days later the plaintiff's solicitors provided letters from a general practitioner in Sydney, Dr Ursula Christopher, Hoover (Australia) Pty Ltd and Morganite Ceramic Fibres Pty Ltd, all dated 27 April 1993. The reports from the Mackay Base Hospital concerned Ben Johnson. The St Vincent's Hospital reports referred to a Peniasi Kata. Dr Christopher's letter referred to Ben Johnson (aka Peniasi Kata). Hoover referred to a Peniasi Kata as an employee and Morganite Ceramic Fibres responded to a request to provide employment details for a Ben Halliday who had worked with them from 8 April 1986 to 2 March 1990. A letter was received from one Pastor Filimone Beranalava from Panania, New South Wales in which the writer confirmed that he had known a Kata Peniasi Rabuatoka for more than 15 years when he sang in a church youth group in Suva in Fiji.
The injuries noted to have been sustained by Ben Johnson on admission to the Mackay Base Hospital on 8 December 1985 at 6.00am were a severe closed head injury. The CAT scan showed no localising lesions. He was unconscious when admitted and his conscious state lightened slowly over the next few days. He was discharged on 23 December and was noted to be having problems with his memory. The only external injury noted was a laceration to the scalp. He attended outpatients once on 7 January 1986 and said that he was still having problems with concentration and attention.
Dr O'Sullivan saw a Mr Peniasi Kata on referral from Dr Christopher at the neurology outpatients' department at St Vincent's Hospital on 20 August 1990. He was told that the patient had been involved in an accident in the summer of 1987 after being at a nightclub in Mackay and had accepted a ride home from a person who had been drinking. On the way home the car rolled over and the patient was knocked unconscious. Dr O'Sullivan wrote: "Clinically I suspect that he has a post-traumatic head injury syndrome. There may well be some degree of function and elaboration of this man's symptoms. I find it extraordinary that it has taken him almost 3 years to seek any further medical help." On examination Dr O'Sullivan noted the evidence of a laceration in the skull and a dislocation in the terminal joint of the left ring finger. He concluded that in view of the nature of the head injury and the period of unconsciousness the patient should have an EEG and a CAT scan. He was suspicious that there was some degree of function and elaboration of the patient's symptoms because, whilst complaining of memory loss, he was able to give a very clear and precise history. Dr O'Sullivan reported again on 24 September 1990 that the CAT scan and EEG were normal. He was told by the patient that he felt "somewhat sleepy" and that his memory was impaired. Accordingly Dr O'Sullivan arranged for him to have some psycho-metric studies carried out. Those studies were referred to in a letter to Dr Christopher dated 5 November 1990. The patient's verbal IQ was estimated at 74 with a performance IQ of 72 and a full scale IQ of 72. Dr O'Sullivan considered that it was difficult for the psychologist to estimate what the patient's pre-morbid IQ would have been. The clinical psychologist thought that the patient's results did not quite fit the pattern of organic short term memory loss. He commented that the pre-morbidity IQ was probably not much greater than the low average into which he fitted post-accident. Dr O'Sullivan concluded that perhaps the patient suffered some short term memory problems from the accident but he was hampered by not knowing further details of the accident and the nature of the head injury sustained. He noted that the patient still complained of occasional nocturnal incontinence but thought it possible that that might have been epileptic.
The letter from Hoover (Australia) dated 27 April 1993 indicates that a Mr Peniasi Kata commenced employment with Hoover on 3 May 1990, was still employed as a process worker on a production line and had no difficulties completing his duties. He was paid $402.30 per week and worked 5 days per week with one rostered day off per month. Mr Kata had not advised Hoover that he had been involved in an accident when he commenced employment and had not, over the course of his employment, complained of any difficulties. Morganite Ceramic Fibres Pty Ltd wrote that they had employed one Ben Halliday from 8 April 1986 to 2 March 1990 as a general hand who worked in process work and carried out storeman's duties in the warehouse earning $330.90 net per week and who had been retrenched. The defendant by election's solicitors asked for evidence that the documents all related to the same person who was the plaintiff in the action. In their view the documents did not remedy the deficiencies in the statement of loss and damage but they were prepared to put those deficiencies to one side pending the receipt of further instructions from their client.
Between August and January 1994 settlement negotiations took place unsuccessfully between the solicitors. On 10 January 1994 the defendant by election's solicitors wrote to the plaintiff's solicitors noting that they had not received an answer to previous correspondence including an offer of settlement on 25 August 1993. They were then minded to bring the action on for trial without further delay.
By letter dated 20 March 1994 the defendant by election's solicitors wrote to the town agent noting that the firm had not heard from him or from the Sydney principals in response to earlier correspondence and enclosed a Certificate of Readiness. They wrote that they were prepared to recommend that the matter should be dealt with in Settlement Week and forwarded their bill of costs in respect of the order of 10 February 1993. By letter dated 25 April 1994 the Sydney solicitors indicated that the matter was not ready for trial and that they were experiencing considerable difficulty in obtaining instructions from their client. The firm had decided to refer the plaintiff to Dr G Coffey a Sydney neurologist and hoped to be able to serve the ensuing report shortly. Approval for the Settlement Week proposal was given and an offer made to settle the costs for less than the bill.
On 5 July the Sydney solicitors wrote that the plaintiff was to be examined by Dr G Coffey on 25 August 1994 and on receipt of his report they were to attempt to settle the matter. The defendant by election's solicitors wrote on 13 September 1994 asking for Dr Coffey's report. As set out in paragraph 14 of Mr Treston's affidavit he left telephone messages for Mrs Robinson twice in October, once in November and once in December 1994 concerning Dr Coffey's report. On 2 December 1994 the solicitors sent a formal offer to settle the action to the Sydney solicitors as well as the town agents, noting their fruitless attempts to elicit a response by telephone from the Sydney principals. Dr Coffey's report has not been provided.
Mr Treston again attempted to speak with Mrs Robinson by telephone on 12, 13, 15 and 16 December 1994, on 10, 11, 16, 17 and 19 January 1995 and on 7 and 10 February 1995 without any return call or message. On 10 February 1995 Mr Treston wrote to the plaintiff's solicitors setting out the telephone messages that had been left in an attempt to discuss the action with them. He indicated that unless some positive steps were taken to move the action on then he would refer to matter to the New South Wales Law Society.
On 15 March 1995 Mrs Robinson notified the solicitors that she was endeavouring to obtain instructions from the plaintiff about settlement but her firm was unable to recommend the offer as put in previous correspondence until "such time as we are advised of the outcome of the MRI which, we understand, our client has undertaken". She referred to a recent report from Dr G Coffey dated 5 September 1994 in which he mentioned to "the possibility of significant brain damage". The solicitors wrote on 19 April 1995 suggesting that the matter be dealt with in Settlement Week in Brisbane in July 1995 and that the plaintiff's solicitors should provide any further medical evidence. Mrs Robinson rang Mr Treston to say that she had not obtained the MRI results from her client and did not know whether the plaintiff was naturally dull or whether he had suffered head injury.
On 13 June 1995 Mrs Robinson wrote that her firm was still attempting to gauge the full extent of the plaintiff's injuries. On 6 September 1995 the defendant by election's solicitors made a without prejudice offer of settlement to which no response was received. Once again Mr Treston endeavoured to contact Mrs Robinson by telephone and left messages for her on five occasions in October and November 1995 without response. He wrote summarising the attempts which his firm had made to discuss the action by telephone and indicated that unless something was done within seven days, it being ten years since the plaintiff had sustained his injury, the matter would be referred to the senior partner or alternatively to the New South Wales Law Society. Still no response was received. On 15 December 1995 the defendant by election's solicitors wrote noting that it was ten years since the plaintiff was injured, that it was over eight years since proceedings were instituted in New South Wales and over five years since the action was cross-vested to Queensland. An application to dismiss for want of prosecution was foreshadowed. A few days later Mr Treston wrote to the senior partner of the plaintiff's solicitors setting out a brief history of the matter and foreshadowing an application to dismiss for want of prosecution. No response was ever received to that letter. Finally on 22 January 1996 a further letter was sent to the plaintiff's solicitors advising that an application to dismiss the action would be made but not until 31 January to allow them time to satisfy the solicitors that it ought not be made. Once again no response was received. Accordingly, on 23 February 1996 the present summons was filed returnable on 22 March. The summons and supporting affidavit were served on the town agent on 23 February.
On 21 March 1996 the solicitors attempted to contact Mrs Robinson to enquire as to her client's attitude to the application to be held the following day. She was unavailable. Mr Schneidewin of Mr Treston's office was advised that she would send by facsimile transmission the plaintiff's attitude to the application prior to lunch that day. That did not occur. He again attempted to contact her at 12.40pm and was advised that she was out. He left a message requesting that she return his call as a matter of urgency. At 4.15 on that day he again telephoned and was advised that she was unavailable. At approximately 4.30 Mrs Robinson returned his call and advised that she was having difficulty obtaining instructions. The solicitors agreed to adjourn the application for three weeks until 12 April 1996 in order to permit her to attempt to obtain obstructions from her client on the basis that the plaintiff would pay the costs of and incidental to the adjournment and provide immediately any further medical reports and a proper statement of loss and damage in accordance with the rules. The solicitors exchanged correspondence further to that agreement. The plaintiff's solicitors were put on notice that should these things not be provided then the application would be revived.
On 3 April Mrs Robinson telephoned the solicitors and advised that she had not received a report from Dr Coffey. Neither had she cured the deficiencies in the statement of loss and damage because she had not ever received particulars from her Queensland town agent as to the nature of the deficiencies nor had she received advices outlining the requirements under the rules of the Supreme Court of Queensland. Her attention was drawn to the solicitors' letter of 16 April 1993, to which reference has been made, in which those deficiencies were outlined to her firm. She doubted that she had received the letter but her attention was drawn to her letter of 20 April 1993 in which she acknowledged receipt of the letter. In her affidavit filed by leave at the hearing of this application she exhibited a letter written by her to Dr Coffey in which she referred to a report received from Dr Coffey.
Her affidavit was a photocopy of a facsimile and undertakings were given to the court to file the original. Mrs Robinson's affidavit adds little to what I have set out in the chronology. She mentions that the plaintiff is not of substantial means and has been unable to make any contribution to the outlays involved in obtaining medical reports. It appears that the partners of the firm had assisted with disbursements from time to time. Mrs Robinson asserts in paragraph 40 that the plaintiff has "severe ongoing disabilities including post-traumatic head injuries and their sequelae. These instructions are confirmed by independent medical evidence." There is no clear medical evidence that the plaintiff suffers from severe ongoing disabilities. He has apparently been able to maintain steady employment without demonstrating such disabilities to an employer (supposing that he is the person referred to in the Hoover letter). In paragraph 42 Mrs Robinson refers to a substantial claim including special damages. This is the first reference to substantial special damages. Mrs Robinson swears that she has made numerous endeavours to telephone the plaintiff on the last telephone number advised to the firm but has not been able to contact him. She adds in paragraph 46
"It would appear that the plaintiff, in addition to his disabilities caused by the trauma which is the basis of this claim, is by nature itinerant and uses not only his Melanesian name but numerous Anglicised variations."
She has approached the partners and has been instructed to retain a private investigator to locate the plaintiff and to expend firm funds to obtain the further opinion of Dr Coffey as to the significance of the MRI findings. Although a number of years have passed since Hoover (Australia) Pty Limited responded to her letter of 22 April 1993 by their response dated 27 April nonetheless it showed that the plaintiff (if it be he) commenced employment with them on 3 May 1990 and was then still currently employed with that company some three years later. He was said to have no difficulty in completing his duties. This is totally inconsistent with the explanation given above. There is no indication as to whether the plaintiff continues in that employment, but he was clearly far from itinerant for those three years and a letter or a call or even a telephone message to him care of his place of work might have been successful.
Mrs Robinson has proposed rather than have the action dismissed for want of prosecution that the defendant by election's solicitors specify in writing any further particulars required of the plaintiff's claim, that they nominate within 28 days any medical examinations that they require; and that the matter not be listed for hearing for a period of six months.
The effect of the authorities is that an applicant must show that there has been intentional and contumelious default by a party, that is, disobedience to a peremptory order of the court, or conduct amounting to an abuse of process of the Court; or that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and 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 defendant, Birkett v. James [1978] AC 297; Bruce Pie & Sons Pty Ltd v. RH Mainwaring, English & Peldan [1987] 1 Qd 305; and Dempsey v. Dorber [1990] 1 Qd R 418.
There has been little attempt to comply with the order of this court made on 10 February 1993 that the plaintiff file a statement of loss and damage complying in all respects with the requirements of O.39 r.29C of the Rules. The explanations given over the years of not hearing about the order from the town agents for some months, not being aware in what respects the statement of loss and damage failed to comply with the Rules and the difficulty in obtaining instructions have little merit. Advice could have been sought from the town agent as to the proper form of the statement. Evidence as to the inability to contact and get proper instructions from the plaintiff is quite unsatisfactory. I have mentioned the continuity of employment at least until April 1993. Those inconsistencies between the affidavit filed by Mrs Robinson and her correspondence over the years suggests that this is a matter which has been given little or no attention in her office and, indeed, only threats of a most serious kind seem to bring about a response. For all that, it would not be appropriate to characterise that conduct as amounting to an abuse of process of the court.
There can be no doubt that there has been inordinate and inexcusable delay on the part of the plaintiff's lawyers. The correspondence, or in most cases, the lack of it, speaks for itself. The propriety of the conduct of the solicitors for the defendant by election and the concern for the rights of the plaintiff are in stark contrast to the conduct of the plaintiff's own solicitors. But the question is whether the delay gives rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is likely to cause serious prejudice to the defendant by election.
Mr Treston swears that "given the delay on the part of the plaintiff my client may be prejudiced in properly defending the action brought by the plaintiff". He refers to the "passage of time" prejudice in that he says that given the lengthy delay the defendant by election's prospects in defending the action on the basis of the voluntary assumption of risk in driving with an intoxicated driver and failing to wear a seat belt are weakened. The defendant by election has defended on both of those bases and it cannot be supposed that that was without some information. The insured and the driver are named in the proceedings commenced in New South Wales some time in 1987 including their addresses in Mackay. There is no material to indicate at what time the defendant by election became seized of the matter but a conditional appearance was entered on behalf of the defendants by Hunt & Hunt Solicitors in Sydney on 24 December 1987. Suncorp Insurance & Finance elected to be joined as defendant on 31 March 1992. Mr Treston does not say that no statements have been obtained from potential witnesses in respect of this matter including the driver of the motor vehicle. There can be no doubt that if nothing has been done to collect any evidence about the circumstances surrounding the accident 10 years having elapsed it would be almost impossible to anticipate that witnesses could be found, or if found, would have any reliable recollection.
Mr Treston points to the various names under which the plaintiff apparently conducts his life and the further difficulty which that presents. He complains of the lack of information or documentation relating to the plaintiff's pre-accident employment and doubts that even if that information were now supplied that it could be verified. In the statement of loss and damage the plaintiff asserts that he worked as a barman and a musician playing the guitar in a band at an RSL club at Watu Bay in Fiji prior to coming to Australia; he then obtained a job as a brick sorter at Clifton Bricks at Mackay and worked there for approximately two years leaving on 23 December 1987. Morganite Ceramic Fibres Pty Ltd in New South Wales state that "Ben Halliday" commenced working for them on 8 April 1986. However due enquiries could no doubt have been made of the brickworks when that information was provided in April 1993. The defendant by election's solicitors have been in receipt of the statement of loss and damage since 21 December 1992 and whilst they have no obligation to investigate these matters nonetheless they were in receipt of information which, should they have wished to, they could have followed up some three and a half years ago.
Dr Coffey's report has not been provided notwithstanding many requests. Mr Treston complains that the defendant by election has been deprived of the opportunity to carry out examinations relatively contemporaneously with the accident of the plaintiff so that the true extent of his injuries could be ascertained. The reports of the Mackay Base Hospital were available to the defendant by election by April 1993. After the filing of the statement of loss and damage it was open to the defendant by election to seek to have the plaintiff independently examined. I am not suggesting that in the ordinary course of an action that would necessarily be expected at that stage since a defendant is entitled to rely upon the professional competence of a plaintiff's solicitors in making out a proper case by way of appropriate supporting medical reports. Even had a proper statement of loss and damage and supporting medical reports been provided in 1992/3, it was by then some seven years since the accident.
Mr Treston complains that the defendant by election has been deprived of the opportunity of investigating the plaintiff's pre-accident level of functioning by locating pre-accident workmates and employers who could provide necessary and relevant detail. I have mentioned a letter from a pastor who knew the plaintiff in Fiji and who is presently in Australia. There is no indication that the defendant by election has made an attempt to canvass the Fijian population in Mackay where the plaintiff apparently resided for some years before moving to New South Wales. Mr Treston fears that necessary records of medical practitioners and hospitals who have treated the plaintiff may have been destroyed after 10 years. As I have said the report from the Mackay Hospital Board has been provided although it is likely that the more detailed records from which those reports were taken have been destroyed. Dr O'Sullivan writing to Dr Christopher said that he found it "extraordinary that it has taken him [the plaintiff] almost three years to seek any further medical help". That observation was based on an assumed accident date of 1987. That would suggest that there are no other records relevant to the enquiry to be discovered. In the end it is for the plaintiff to prove his loss and there is presently no material to substantiate a loss claimed of $300 per week.
There was lengthy delay between the institution of the action in New South Wales in 1987 and its transfer to Queensland in 1992. No step appears to have been taken during that time, but by electing to be joined and delivering a defence the defendant by election waived any prejudice then due to the delay.
I am not finally persuaded apart from the prejudice that comes from the passage of time, which had already in a sense occurred by the end of 1992 and the unnecessary expense to which the defendant by election has been put in chasing up this matter, that any specific prejudice due to the delay has been identified such as would justify striking out the action forthwith. However the conduct of the plaintiff through his solicitors has been such that there can be no confidence that without a peremptory order of the court that things will improve. The defendant by election is entitled to have this matter disposed of after 11 years. I am not persuaded that the plaintiff's solicitors have adequately sought to resolve the difficulties they say they have experienced. The defendant by election's solicitors have proposed a timetable in the event that the action is not struck out forthwith. Mr Barrell, the plaintiff's solicitors' town agent has accepted that timetable. I shall alter the dates to take account of the delay in delivering this judgment.
I therefore order that
The plaintiff file and serve a statement of loss and damage complying in all respects with the requirements of O.39 r.29C of the Rules of the Supreme Court on or before Friday, 26 April 1996.
The plaintiff provide the solicitors for the defendant by election with copies of all relevant medical reports and other supporting documents not already provided on or before Friday, 10 May 1996.
The plaintiff attend such medical examination as may be required by the defendant by election at a date to be notified to the plaintiff's Sydney solicitors on the usual basis for such examinations.
In default of the plaintiff complying with any of the above orders the plaintiff's action be struck out forthwith for want of prosecution.
There by liberty to apply in respect of these orders on giving 2 clear days' notice in writing.
The plaintiff pay the defendant by election's costs of and incidental to the summons to be taxed.
0
0
0