Khavounitis v NRMA Insurance Ltd - [1999] TASSC 2

[1999] TASSC 2

PARTIES:  KHAVOUNITIS, Kosta
  v
  NRMA INSURANCE LIMITED

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  45/1988
DELIVERED:  13 January 1999
HEARING DATE/S:  7, 11 December 1998
JUDGMENT OF:  Underwood J

CATCHWORDS:

Procedure - Courts and judges generally - Courts - Dismissal of proceedings for want of prosecution - Exercise of discretion - Relevance of power of court to manage pre-trial conduct of the litigation.

Closer Settlement Board v Thomas [1982] Tas R 179, applied.
Witten v Lombard Australia Ltd (1968) WN (Pt1) NSW 405; Stollznow v Calvert [1980] 2 NSWLR 149, followed.
Aust Dig Procedure [33]

REPRESENTATION:

Counsel:
             Applicant/Defendant:  D F M Zeeman
             Respondent/Plaintiff:  P W Tree
Solicitors:
             Applicant/Defendant:  Butler McIntyre & Butler
             Respondent/Plaintiff:  Page Seager

Judgment category classification:
Judgment ID Number: [1999] TASSC 2
Number of pages: 5

Serial No 2/1999
File No 45/1988

KOSTA KHAVOUNITIS v NRMA INSURANCE LIMITED

REASONS FOR JUDGMENT UNDERWOOD J

13 January 1999

Introduction

By a writ filed on 19 January 1988, the plaintiff, who is the respondent to this application, instituted proceedings against the defendant insurance company to recover $10,522.87. The statement of claim alleges that this sum was the cost of repairing damage done to the plaintiff's Porsche motor vehicle during the currency of a policy of insurance entered into between the parties on 5 March 1987.
By its defence dated 18 February 1988, the defendant sought to avoid liability on a number of bases including:
·    the making of a false statement in the proposal for the insurance;
·    the failure to comply with the duty to make full disclosure of matters relevant to the acceptance of the risk;
·    misrepresentation;
·    fraud;
·    some of the damage to the vehicle was intentionally caused by the plaintiff.
By an application filed on 9 November 1998, more than a decade after the commencement of the proceedings, the defendant seeks an order that the writ and statement of claim be struck out for want of prosecution.
The history of the litigation
The conduct of the litigation got off to a brisk start, but this soon degenerated to a pace that can at best be called leisurely. Towards the end of 1988, there were some unproductive interlocutory skirmishes over the production of documents. A hearing to resolve this issue was listed for 19 September 1988 but it was adjourned sine die because the plaintiff's solicitor, who had sought the hearing, failed to appear. According to that solicitor's affidavit, his failure to appear was the result of an agreement made between solicitors that the hearing be adjourned sine die to give the plaintiff's solicitor time to consider an argument that the defendant's solicitor wished to put forward. According to the plaintiff's solicitor's affidavit, that argument was that production of certain documents should not be ordered, not on the ground originally taken of legal professional privilege, but on the ground that it was not in the interests of justice to do so. The plaintiff's solicitor must have found the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] TASSC 2
Decision Date: 13 January 1999

CaseChat Overview and Summary

In the matter of Khavounitis v NRMA Insurance Ltd, the plaintiff, Mr Khavounitis, sought compensation for damages to his Porsche vehicle from the defendant, NRMA Insurance Ltd. The defendant contested the claim on the basis of undue delay in bringing the proceedings, arguing that this delay had caused it significant prejudice. The case was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether the delay in proceeding with the case was so substantial that it warranted the striking out of the plaintiff's claim. The defendant argued that the delay had led to the death of a key witness, a loss assessor who had inspected the vehicle and provided a report suggesting that certain scratches on the damaged panel were inflicted post-impact. The plaintiff maintained that the delay was not unreasonable and that the prejudice to the defendant was minimal, especially since the damaged panel remained in the possession of his solicitor and could be inspected by another expert.

The court considered the extent of the delay and the reasons for it, noting that while both parties had suffered some prejudice due to the passage of time, the plaintiff's solicitors had not acted unreasonably in the manner they conducted the litigation up until March 1998. The court found that the justice of the case did not require the plaintiff's claim to be struck out, as the defendant had not demonstrated that the delay had caused them significant prejudice that could not be remedied. The court also highlighted that the deceased witness's report could still be admissible in evidence.

Ultimately, the court dismissed the defendant's application to strike out the plaintiff's claim. The court determined that the delay was not so egregious as to warrant the dismissal of the claim, and the plaintiff's right to pursue his compensation claim was upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case, the defendant claims it has suffered prejudice by reason of the inordinate delay. There is no doubt that after this lapse of time both parties will have suffered prejudice. The defendant's solicitor deposed that three months before the application was filed, a loss assessor, who inspected the plaintiff's vehicle, died. In a written report, this assessor opined that the position of certain scratches on the damaged panel of the Porsche indicate that they were inflicted after impact. Although this witness is no longer available, the damaged panel has been in the possession of the plaintiff's solicitor for the past four years and is available for inspection by another loss assessor. Further, the statement by the deceased witness may still be admissible in evidence, in any event.Conclusion Having regard to the manner in which both solicitors conducted this litigation, at least up until March 1998, I am not persuaded that the justice of the case requires an order that the plaintiff's claim be struck out for want of prosecution. The application is dismissed.

Ratio Decidendi

Legal Principle Established

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