Krezalek v Deckbrew Holdings Pty Ltd and Ors (Ruling)
[2013] VCC 928
•5 August 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-02210
| SIMON KREZALEK | Plaintiff |
| v | |
| DECKBREW HOLDINGS Pty Ltd (trading as ‘OLD DANDY INN’) (ACN 114 458 472) | First Defendant |
| and | |
| NITRO SECURITY SERVICES (SOUTH) PROPRIETARY LIMITED (ACN 118 011 895) | Second Defendant |
| and | |
| VAIOS THANASIAS | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 July 2013 | |
DATE OF RULING: | 5 August 2013 | |
CASE MAY BE CITED AS: | Krezalek v Deckbrew Holdings Pty Ltd & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 928 | |
RULING
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Subject: LIMITATION OF ACTIONS
Catchwords: Joinder of incorrect defendant within time – application to join correct defendant out of time – no evidence of specific prejudice – whether the limitation should be extended
Legislation Cited: Limitation of Actions Act 1958, s27K and 27L
Cases Cited:Bell v SPC Ltd [1989] VR 170; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Richards v State of Victoria & Ors [2001] VSC 52; Cowie v State Electricity Commission of Victoria [1964] VR 788; Tsiadis v Patterson (2001) 4 VR 114; Koumorou v State of Victoria [1991] 2 VR 265; Repco Corp Ltd v Scardamaglia [1996] 1 VR; Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614
Ruling: Time extended within which the plaintiff may bring a proceeding against Nitro Crowd Control Services Pty Ltd.
Subject: PRACTICE AND PROCEDURE
Catchwords: Application to dismiss the proceeding against the third defendant for want of prosecution – delay – contravention of the Rules – whether a fair trial could be had - evidence of prejudice
Legislation Cited: County Court Civil Procedure Rules 2008, r24.01 and 24.05; Civil Procedure Act 2010, s63; Corporations Act 2001; Wrongs Act 1958
Cases Cited:Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells [1999] 3 VR 863
Ruling: The third defendant’s application is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Carey | Arnold Thomas & Becker |
| For the First Defendant | Ms H Saloustros (Solicitor) | Wotton & Kearney |
| For the Second Defendant | Mr B Karalus (Solicitor) | Turks Legal |
| For the Third Defendant | Mr S Soldatos (Solicitor) | Rudstein Kron |
HIS HONOUR:
Introduction
1 The plaintiff alleges that on 9 June 2007, he was assaulted by the third defendant at or about premises occupied by the first defendant. He further alleges that the third defendant was employed by the second defendant which provided crowd controllers to the second defendant. The first defendant was the occupier of a hotel known as the Old Dandy Inn.
2 The plaintiff commenced a proceeding by Writ dated 19 May 2010. The Writ contained a general endorsement. The relevant paragraphs of the general endorsement are as follows:
“2On or about 9 June 2007 the plaintiff attended the First Defendant’s premises located at 193 Lonsdale Street, Dandenong.
3The plaintiff was assaulted by an employee of the Second Defendant and/or the Third Defendant.
4By reason of the assault and the negligence of the First, Second and Third Defendants the plaintiff suffered injury.”
3 The Writ was filed within the three-year limitation period referred to in s5(1AA) Limitation of Actions Act 1958. However, the plaintiff discovered that the second defendant, which it named as Nitro Security Services (South) Proprietary Limited, was not the employer of the third defendant. He discovered that Nitro Crowd Control Services Pty Ltd was in fact the employer of the third defendant.
4 By a Summons filed 1 July 2013, the plaintiff seeks, firstly, that the time be extended within which to bring the proceeding against Nitro Crowd Control Services Pty Ltd, and secondly, to file and serve a statement of claim. The second defendant resisted both applications.
5 The third defendant applied to have the plaintiff's proceeding against him dismissed for want of prosecution.
6 Mr M Carey of counsel appeared for the plaintiff. Although Ms H Saloustros, solicitor, appeared for the first defendant, she made no submissions, but foreshadowed that an application might be made by the first defendant for judgment pursuant to s63 of the Civil Procedure Act 2008. Mr Karalus, solicitor, appeared for the second defendant. Mr S Soldatos, solicitor, appeared for the third defendant.
7 The parties filed the following affidavit material in support of their submissions:
· The affidavit of Miss Michel Margalit, solicitor for the plaintiff, sworn 14 June 2013; and
· The affidavits of Mr S Soldatos sworn 6 June 2013 and 22 July 2013.
The relevant events
8 It is necessary to set out a chronology of relevant events which I was referred to in submissions:
· 9 June 2007 – the date of the assault alleged by the plaintiff
· 9 February 2009 – the date upon which the plaintiff consulted Ms Anne Shortall, solicitor employed by Arnold Thomas & Becker
· 25 May 2010 – the date upon which the Writ was filed in the Court
· 25 May 2011 – the date upon which Ms Margalit received an invoice dated 3 July 2007 which indicated that the employer of the third defendant was in fact Nitro Crowd Control Services Pty Ltd and not Nitro Security Services (South) Proprietary Limited
· 25 May 2011 – Ms Margalit did a company search which revealed that Nitro Crowd Control Services Pty Ltd was deregistered as at 18 March 2010.
· 30 May 2011 – Ms Margalit filed a Notice of Discontinuance of the proceeding against the second defendant
· 18 November 2011 – the plaintiff made an application to the Supreme Court pursuant to s601AH(2) of the Corporations Act 2001 to have Nitro Crowd Control Services Pty Ltd reinstated
· 8 May 2013 – Associate Justice Randall made an order that Nitro Crowd Control Services Pty Ltd be reinstated
· 1 July 2013 – the Summons returnable before me was filed.
9 Ms Margalit explained the delay between discovering that Nitro Crowd Control Services Pty Ltd was the correct second defendant and filing of the Summons in her affidavits. The date of discovery was 25 May 2011, and the date of the order reinstating Nitro Crowd Control Services Pty Ltd was 18 November 2013, a period of almost two-and-a-half years. She said:
“25In making the application for reinstatement of Nitro, the plaintiff experienced difficulty in identifying the relevant public liability insurer of Nitro and in contacting the former Director of Nitro Michael Murray.
26Since becoming aware that proceedings had been issued against the incorrect second defendant (see paragraph 10 above) our firm has at least, inter alia, shared 13 telephone calls with ASIC, sent 18 letters to ASIC, received two letters from ASIC, exchanged 16 emails with ASIC, shared eight telephone calls with the former liquidator of Nitro, Venn Milner & Co, received and sent two emails between our firm and Venn Milner & Co, exchanged and sent seven emails with the new liquidator Rodgers Reidy, made seven telephone calls between myself and Rodgers Reidy, sent seven letters between our firm and Rodgers Reidy, sent 65 letters in an attempt to contact the former Director of Nitro Michael Murray and made 13 telephone calls in an attempt to contact Michael Murray. In addition to this, I inspected two files of other cases in the County Court, conducted a search through Consumer Affairs Victoria, searched and inspected various ASIC documents including company searches and licences, made numerous telephone calls to Victoria Police, conducted searches of the electoral roll and the White Pages, conducted a land titles search and served subpoenas for production of documents on Venn Milner & Co, Australian Hospitality Management and Victoria Police.”
The competing submissions
10 Mr Carey submitted that the plaintiff filed the Writ within time, although it named the incorrect second defendant. He further submitted that upon discovering that the invoice dated 3 July 2007 referred to a similarly named corporate entity, but quite obviously a different legal person, the plaintiff’s solicitors set about taking the steps referred to by Ms Margalit to obtain sufficient evidence to satisfy Associate Justice Randall that he should make an order reinstating Nitro Crowd Control Services Pty Ltd. One of the relevant considerations was whether the company to be reinstated has insurance cover indemnifying it should be found to have breached its duty of care owed to the plaintiff.
11 Mr Carey also submitted that there was no evidence to suggest that that Nitro Crowd Control Services Pty Ltd has suffered prejudice of any kind. Furthermore, on the subject of prejudice, he submitted that the question of prejudice needed to be viewed through the prism of the simple facts alleged by the plaintiff that he was assaulted on 9 June 2007 at or about premises occupied by the first defendant. In essence, he submitted that the question of liability would involve whether Nitro Crowd Control Services Pty Ltd was the employer of the third defendant; whether the third defendant assaulted the plaintiff, or was a joint tortfeasor in an assault on the plaintiff occasioned by some other employee of Nitro Crowd Control Services Pty Ltd, and whether Nitro Crowd Control Services Pty Ltd can be held vicariously liable for the acts of the third defendant or a joint tortfeasor.
12 Mr Karulas informed me that the liquidator of Nitro Crowd Control Services Pty Ltd appointed by Associate Justice Randall at the time when he ordered that Nitro Crowd Control Services Pty Ltd be reinstated, was informed of this application yesterday. Despite that short notice, he was not instructed to apply for an adjournment of the application. The liquidator did not file and serve any affidavits in response to the application.
13 Mr Karulas submitted that there were a number of factors which I should weigh into account in determining whether to extend leave in favour of the plaintiff. Firstly, there was no explanation for the delay between the initial conference on 9 February 2009 and what steps were taken by the plaintiff and his solicitors up until the time when the Writ was filed on 25 May 2010.
14 Secondly, he submitted that the plaintiff’s solicitors were tardy in their preparation by not undertaking a company search which would have revealed that Nitro Crowd Control Services Pty Ltd was a registered company within the three-year limitation period, and had the plaintiff’s solicitors appreciated that, then the proceeding could have been brought without the added delay of the application for reinstatement. Mr Karulas acknowledged that the submission he made was “from the bar table” and was not supported by evidence.
15 Thirdly, Mr Karulas submitted that the delay between the accrual of the cause of action on 9 June 2007 and the filing of the summons on 1 July 2013 was likely to cause prejudice to Nitro Crowd Control Services Pty Ltd by reason of the effluxion of time.
The statutory framework
16 The discretion to grant the relief sought contained in s27K of the Limitation of Actions Act is in the following terms:
“(1)A person claiming to have a cause of action to which this Part applies may apply to a court for an extension of a period of limitation applicable to the cause of action under Division 2.
(2) Subject to section 27L, the court—
(a)may hear any of the persons likely to be affected by the application as it sees fit; and
(b)may, if it decides that it is just and reasonable to do so, order the extension of the period of limitation applicable to the cause of action for such period as the court determines.
(3)If a court orders the extension of a period of limitation applicable to a cause of action under this section, that period of limitation is accordingly extended for the purposes of an action brought by the applicant in that court on the cause of action that the applicant claims to have."
17 Section 27L refers to the considerations to which the Court shall have regard in determining an application for an extension of the limitation period. It is in the following terms:
“(1)In exercising the powers conferred on it by section 27K, a court shall have regard to all the circumstances of the case, including (but not limited to) the following—
(a) the length of and reasons for the delay on the part of the plaintiff;
(b)the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c)the extent, if any, to which the defendant had taken steps to make available to the plaintiff means of ascertaining facts which were or might be relevant to the cause of action of the plaintiff against the defendant;
(d)the duration of any disability or legal incapacity of the plaintiff arising on or after the date of discoverability;
(e)the time within which the cause of action was discoverable;
(f)the extent to which the plaintiff acted promptly and reasonably once the plaintiff knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(g)the steps, if any, taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice he or she may have received.
(2)To avoid doubt, the circumstances referred to in subsection (1) include the following—
(a)whether the passage of time has prejudiced a fair trial of the claim; and
(b) the nature and extent of the plaintiff's loss; and
(c) the nature of the defendant's conduct.
(3)In the application of this section to a cause of action that is a survivor action references in subsection (1) to the plaintiff include references to the deceased and the applicant, or any of them, as appropriate in the circumstances.
(4)In the application of this section to a cause of action that arises under Part III of the Wrongs Act 1958, references in subsection (1) to the plaintiff include references to the deceased, the executor or administrator of the deceased, and the beneficiaries, or any of them, as appropriate in the circumstances.”
18 The legal principles relevant to this application which I must apply in considering the plaintiff’s application can be summarised as follows:
· The onus in establishing that it is just and reasonable to grant the plaintiff’s application is borne by the plaintiff.[1]
[1]Bell v SPC Ltd [1989] VR 170 at 174-175; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; Richards v State of Victoria & Ors [2001] VSC 52 at paragraph 11
· If the defendants place evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, then it is for the plaintiff to show that the defendants’ evidence does not demonstrate prejudice.[2]
[2]Cowie v State Electricity Commission of Victoria [1964] VR 788 at 793; Brisbane South Regional Health Authority (supra) at 547
· The competing considerations referred to in s27L are not to be weighed against each other, but rather the Court must synthesise the competing considerations in arriving at a conclusion that takes account of all of them, bearing in mind that the plaintiff bears the onus of persuading the Court that is just and reasonable to extend the limitation period.[3]
[3]Bell v SPC Ltd (supra) at 125-126; Tsiadis v Patterson (2001) 4 VR 114at 123
· The delay referred to in s27L(1)(a) is the delay between the accrual the cause of action and the making of the application for an extension of time.[4]
[4]Koumorou v State of Victoria [1991] 2 VR 265 at 271; Repco Corp Ltd v Scardamaglia [1996] 1 VR 7 at 11
· The plaintiff cannot avoid any delay period resulting from the conduct of her legal representatives being considered as delay for which she is liable.[5]
[5]See paragraph 49
· If the defendants place evidence before the Court sufficient to lead to the conclusion that prejudice would be occasioned by granting the plaintiff an extension of time, the prejudice of which account can be taken is prejudice which has come about by reason of a lapse of time involved in that period of delay;[6] which can be established by the defendants; the extent to which there is likely to be prejudice, and mere delay in itself, when it is inordinate, may be taken as evidence of prejudice.[7]
[6]Lord v Australian Safeway Stores Pty Ltd [1996] 1 VR 614 at 622
[7]Tsiadis (supra) at 123-124, and Brisbane South Regional Health Authority (supra) at 551
· The test of prejudice must not include whether an order extending time would make the defendants any worse off than if the proceeding had been commenced within, or at the end of the limitation period. What must be considered is that the defendants’ potential liability expired at the end of the limitation period and that the extension of time would impose a new legal liability on the defendants.[8]
· In relation to the passage of time in connection with resulting prejudice, s27L(2)(a) expressly requires the considerations enumerated in ss(1) to be treated in the following way – for the purpose of avoidance of doubt, that the considerations just mentioned include whether the passage of time has prejudiced a fair trial of the claim.
[8]Brisbane South Regional Health Authority (supra) at 554-555
To grant leave or not
19 Mr Carey did not choose to submit that there was no delay in the filing of the Summons seeking the relief sought. Therefore, it is clear that the relevant delay commenced from the date of the accrual the cause of action to the date of the Summons which is a period of approximately six years.
20 However, Mr Carey submitted that the delay can be explained by the fact that Ms Margalit made enquiries of a Ms Muriel Ho of Australian Hospitality Management for the purpose of determining the identity of the employer of the third defendant. Ms Ho sent an email on 14 May 2010 which informed of Ms Margalit that the identity of the employ of the third defendant was “Nitro Security Services (South) P/L t/a Nitro Security Services”. It would appear that it was on the basis of that information that Ms Margalit concluded that Nitro Security Services (South) Proprietary Limited was the employer of the third defendant.
21 It seems to me that Ms Margalit operated on information which, on the face of it, appeared to be reliable, because it was from an authority which had access to the corporate identity which provided crowd controllers to the first defendant.
22 Upon receiving the invoice dated 3 July 2007, which was emailed by Ms Ho on 25 May 2011 to Ms Margalit, it became apparent that Nitro Security Services (South) Proprietary Limited was incorporated in November 2007, which is obviously subsequent to the date when the assault occurred on 9 June 2007. It would appear that it was following such revelation that Ms Margalit set about making the enquiries which I have quoted in paragraph 9 above which led to her appreciating that the plaintiff should discontinue the proceeding against Nitro Security Services (South) Proprietary Limited and should join Nitro Crowd Control Services Pty Ltd as the employer of the third defendant.
23 The delay in obtaining the order from Associate Justice Randall is explained by Ms Margalit, and was not challenged by Mr Karulas nor Ms Saloustros or Mr Soldatos. Had it not been for what I infer were difficulties in uncovering the identity of the actual employer of the third defendant, and reinstating Nitro Crowd Control Services Pty Ltd, then it is likely that an application to join Nitro Crowd Control Services Pty Ltd would have been made much earlier. Exactly how much earlier is impossible to say.
24 In the absence of any evidence adduced by Nitro Crowd Control Services Pty Ltd of prejudice, then the only prejudice which it can point to is the kind of prejudice referred to by McHugh J in Brisbane South Regional Health Authority:[9]
“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.”[10]
[9]supra
[10]at 551
25 The similar observations were made by Buchanan JA in Tsiadis:[11]
“In my opinion para (b) of s 23A(3) does not limit the court’s attention to prejudice which is present or is likely to occur in the sense that it is more probable than not that it will occur and the word ‘extent’ in the paragraph requires the court to have regard to the degree to which prejudice is likely to eventuate. Thus, while it may be concluded that Mr Tsiadis could not have given direct evidence as to the circumstances of the alleged accident, the possibility that he may have been able to give evidence as to the layout of the reception centre, whether like accidents had occurred in the course of the business and the way in which its business was conducted should have been considered. Similarly, the potential difficulties in obtaining evidence from Mr Christopoulos should have been considered. Of course the influence of potential prejudice will decrease as its likelihood is reduced.” [12]
[11]supra
[12]at 120
26 I am not persuaded that reliance upon Brisbane South Regional Health Authority is really of much assistance to Nitro Crowd Control Services Pty Ltd. Mr Karulas was not able to even point to any possible prejudice except to inform me from the bar table that the liquidator has instructed him that it has “nothing”. That might be so, but there is no evidence of what might have existed, and which no longer exists, and whether what might have existed would be of any relevance in any event. It must not be forgotten that the simple facts on which this proceeding is based is an assault which occurred on a known date and at a known place.
27 What is known of the allegations made by the plaintiff and what is known of the third defendant’s defence to those allegations is at the heart of what the Court will need to determine at the trial. A finding in favour of the plaintiff that the third defendant, or a fellow crowd controller, assaulted the plaintiff will determine the third defendant’s liability, and then it will be a matter for the Court to determine whether Nitro Crowd Control Services Pty Ltd should be held vicariously liable for the actions of the third defendant, if that is taken as a defence by Nitro Crowd Control Services Pty Ltd. It is difficult to see what specific prejudice Nitro Crowd Control Services Pty Ltd can actually allege when the submissions of Mr Karulas regarding prejudice are looked at through the prism of the cause of action and the facts which the Court will need to determine.
28 It is on the basis of the foregoing that I propose to grant the relief sought by the plaintiff in the Summons. I have reached that conclusion by having regard to my summary of the principles of law set out in paragraph 17 above which have led me to conclude that it is just and reasonable to extend the limitation period relevant to the cause of action pleaded against Nitro Crowd Control Services Pty Ltd.
The Third Defendant
29 Mr Soldatos submitted that the plaintiff has failed to prosecute his proceeding and that it should be dismissed. The substrata of his submissions were that since the plaintiff filed the Writ, he has done little to further the proceeding against the third defendant, that third defendant had suffered specific prejudice, and the general prejudice referred to in Brisbane South Regional Health Authority was applicable.
30 Rule 24.01 of the County Court Rules of Civil Procedure 2008 provides that where the plaintiff is required to serve a statement of claim and fails to do so with the time limited by the Rules, the Court may order that the proceeding be dismissed for want of prosecution. Further, rule 24.05 provides an inherent power in the Court to dismiss a proceeding for want of prosecution.
31 Mr Soldatos essentially pointed to the following as evidence of a contravention of rule 24.01, sufficient for me to exercise the inherent power under rule 24.05:
· The endorsement on the Writ is not a statement of claim in accordance with rule 5.04, and therefore, under rule 14.02, the plaintiff must serve a statement of claim on a defendant within 30 days after that defendant has filed an appearance, unless the Court otherwise orders.
· The third defendant filed an appearance on 10 May 2011.
· In the absence of a statement of claim, the third defendant does not understand what allegations are made against him and has not filed a defence. Rule 14.04 provides that the third defendant is required to file a defence where the plaintiff serves a statement of claim.
· In the absence of service of a statement of claim, the third defendant does not understand what allegations are made against him for the purpose of determining whether he should join any other parties to the proceeding by the third-party procedure provided for by rule 11. Rule 11.05(1) provides that the third defendant may not file a third-party notice until he has first served a defence.
· The third defendant cannot avail itself of s24(4)(a)(ii) of the Wrongs Act 1958, which provides that where the third defendant becomes entitled to a right to recover contribution from any other person, that right may be commenced by the third defendant within 12 months after the writ was served on him.
· Dr Lim, general practitioner, has expressed an opinion in a report dated 4 June 2013 that the third defendant is “under immense stress due to an upcoming court case” which is likely to impact greatly on his ability to concentrate on improving his general health, attending medical appointments, his family life and relationship with his partner. He also refers to the plaintiff having multiple medical comorbidities which was severe enough to stop him working.
32 Mr Soldatos provided me with submissions in writing dated 23 July 2013 in which he set out many factors which he submitted I should weigh into account in determining the third defendant’s application to dismiss the plaintiff’s proceeding for want of prosecution. There are many factors which are irrelevant, and which I do not intend to repeat here. I think the summary I have set out in paragraph 31 above is sufficient to now deal with the third defendant’s application.
33 I was not referred to any authorities which deal with the degree of satisfaction I need to reach to conclude that in the exercise of discretion I should dismiss the plaintiff’s proceeding against the third defendant for want of prosecution. There are a large number of authorities referred to in the commentary to rule 24 in Williams Civil Procedure Victoria. The editors have referred to a number of relevant propositions derived from the authorities, namely:
· The onus is on the third defendant to demonstrate that the proceeding should be dismissed.
· The critical question is whether there is, in the circumstances, a substantial risk that a fair trial cannot be had because of inordinate and inexcusable delay.
· The prejudice caused by delay is, firstly, prejudice in the proper conduct of the third defendant’s defence which may be presumed or proved to follow from delay; and secondly, the fact that the third defendant has suffered a hazard being kept at risk by the proceeding where the third defendant has an interest in the reasonably prompt determination of his position.
34 In Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells,[13] the Full Court of the Supreme Court dealt with a cause of action which arose in 1982. The proceeding was filed in February 1989. It was heard by the Full Court in August and September 1994 by which time some 12 years had expired from the time when the cause of action accrued. It is clear from a reading of the head note and the recitation of facts in the joint judgment of Tadgell and Ormiston JJ that the plaintiff was given leave to file and serve seven versions of a statement of claim, and that the proceeding was returned before Masters of the Supreme Court, a Justice sitting on appeal from a decision of a master, and then to the Full Court.
[13][1999] 3 VR 863
35 The prejudice alleged by the respondent to the appeal was based upon the delay in bringing the proceeding to trial. Tadgell and Ormiston JJ reviewed a significant number of authorities relevant to the question of dismissal for want of prosecution, but in particular, made the following relevant observation about delay resulting in prejudice:
“In each case, however, one must look at each of the elements of prejudice asserted and examine the time at which it is likely to be suffered, always making due comparison between prejudice which the defendant has suffered or will be likely to suffer because of inordinate and inexcusable delay and any prejudice it might have suffered in any event. So far as likely prejudice to the conduct of a fair trial is concerned the critical time is the time at which the action is likely to be heard. In the case of prejudice resulting from a defendant being kept at risk in respect of the subject matter of the action, the relevant period will extend from the time the action is brought to the time that it is likely to be heard. In each case due allowance should be made for the time which any action will ordinarily take to reach final determination. In many applications of this kind the action has been through all interlocutory stages and is only awaiting setting down for trial and so it may be and has been argued that the relevant trial or determination would not be far in the future. There it would be appropriate to look at existing circumstances.”[14]
[14]at 875-876
36 Mr Soldatos swore two affidavits setting out, among other things, the instructions he obtained from the third defendant. Much of the first affidavit is by way of a submission referring to a chronology of events; references to the Civil Procedure Act 2010; procedural failures of the plaintiff; Mr Soldatos’ own opinion of the prejudice suffered by the third defendant, and lastly, what appears to be a submission that the third defendant should have judgment because the plaintiff’s cause of action has no reasonable prospect of success, which I assume is based upon s 63 of the Civil Procedure Act 2010. His second affidavit is in very similar.
37 I do not propose to traverse the affidavits sworn by Mr Soldatos, because I consider them to be unhelpful. I am not interested in his opinion of the impact upon the third defendant of this proceeding, but very much in what the third defendant has to say himself. The third defendant has not sworn an affidavit. The only evidence in his affidavits which is of any probative value is the report of Dr Lim. However, I am not persuaded that this proceeding has impacted upon the third defendant’s life any more than it would have in the absence of the delay. It is very apparent that the third defendant had a number of comorbidities which resulted in disablement, and that this proceeding is impacting upon the third defendant’s general health, but Dr Lim says nothing of the nature and extent of that impact when one has regard to the third defendant’s background of ill health. All of this leaves me in a position where I can only determine this application by determining whether there has been delay; whether the delay is inordinate and inexcusable, which results in a substantial risk that a fair trial cannot be had.
38 There seems to be no doubt about the following:
· There was a delay between the accrual of the cause of action and the date when the Writ was filed; however, it was filed within the relevant limitation period.
· The plaintiff did not, and should have, filed and served a statement of claim in accordance with the Rules.
· The third defendant was not required to file a defence, but the relevant rule does not provide that the third defendant could not file a defence. He could have, and had he done so, he could have availed himself of the Rules and the provisions of the Wrongs Act 1958 to join any other person from whom he could legitimately seek contribution.
· There has been significant delay from the date when the Writ was filed until the present time, and there cannot be any doubt that the plaintiff has done little to further the claim against the third defendant, although part of that has been due to bringing the proceeding initially against an incorrect defendant which took a significant period of time to rectify.
39 As the judge in charge of the Damages and Compensation List, I am in a position to know that if procedural orders had been sought not long after the Writ was filed, then it is likely that the proceeding would have been listed for trial somewhere between 12 and 15 months after the orders had been made. It is likely, therefore, that the trial would have been listed somewhere between mid to late 2011. The prejudice to the third defendant amounts to the time which has elapsed between mid to late 2011 and the present time, which is 18 to 24 months.
40 Again, relying on my experience as the judge in charge of the Damages and Compensation List, it is likely that this proceeding will be listed for trial by mid-2014.
41 I am not convinced that the third defendant has discharged the onus which he bears to satisfy me that the proceeding should be dismissed for want of prosecution. I am not persuaded that his defence has been prejudiced. It is a simple defence that he was not the assailant. Mr Soldatos informed me that the third defendant knows of the person he alleges to be the assailant. It seems to me not to be a proceeding which has much potential to erode memories of that event by the effluxion of time, particularly where there are statements made by witnesses to investigating police, some of which Mr Soldatos exhibited to his second affidavit.
42 Although Mr Carey did not object to Mr Soldatos relying on his affidavits, and the expression of opinion by Mr Soldatos of what he thinks the prejudice is that has been, and will be suffered, by the third defendant, it seems to me that it is an unsound basis for me to determine that those consequences are due to the effluxion of time and have resulted in inordinate and inexcusable delay.
43 I have also taken the time to review a section of Williams[15] in which the editors referred to instances of dismissal of proceedings for want of prosecution. The proceedings which were dismissed had a number of characteristics which are not present in this proceeding – actual prejudice of which there was evidence and delay between 10 to 17 years. The editors also referred to instances where there was no prejudice demonstrated, but that the delay from the accrual of the cause of action was 15 years or more which, of itself, strongly points to the sort of prejudice referred to McHugh J in Brisbane South Regional Health Authority.
[15]paragraph 24.01.50
44 I will lastly deal with the written submissions of Mr Soldatos and the content of his affidavits. I do not accept that the order made by his Honour Judge Saccardo on 21 September 2011 is a self executing order. It could not, on any reading, be interpreted to be that. The part of the order referred to is a warning by the Court of what might happen if compliance with his Honour’s order did not occur.
45 The reference to s63 of the Civil Procedure Act 2010 is a nonsense. There is inadequate evidence adduced by the third defendant to show that the plaintiff’s proceeding has no prospect of success. All Mr Soldatos was able to do was to point to the statement of Rodney Hawken, who described a person of Maori background who assaulted the plaintiff. The plaintiff is apparently of Caucasian background. However, the question of identity is a triable issue which can only be determined by the Court’s evaluation of the evidence of relevant witnesses. Mr Carey informed me that the plaintiff is adamant that he is able to identify the third defendant as his assailant.
46 Lastly, Mr Soldatos has referred to the failure of the plaintiff to join the other crowd controller as a defendant. I cannot see how the failure to join a party comes against the plaintiff. It rather more constitutes a defence for the third defendant that he was not the assailant and he can point to someone else who was, and perhaps even call that person to give evidence.
47 The authorities I have read do not refer to considerations to be weighed into account in the exercise of the discretion whether to dismiss a proceeding for want of prosecution. According to the editors of Williams, and also in some of the authorities I have had reference to, it is said that what is contained in the authorities are rather more guidelines to the exercise of the discretion. It seems to me that each case needs to be determined on its own merits. It is for the judge to undertake an intuitive synthesis of the facts in determining whether the delay is inordinate and inexcusable, and then whether a fair trial can be had or not.
48 Although, there has been delay, and although the plaintiff should have pushed this proceeding along more vigorously, I am not satisfied that there is evidence which is persuasive of the issue that a fair trial cannot be had.
Orders
49 I propose to make the orders in the form of those annexed to this ruling, and otherwise I will hear the parties on the question of the practice of those orders and on the question of costs.
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