Leonard Hastings Ainsworth v Leslie James

[2005] NSWSC 338

CITATION:	Leonard Hastings Ainsworth v Leslie James [2005] NSWSC 338
HEARING DATE(S):	01/04/05
JUDGMENT DATE :	1 April 2005
JUDGMENT OF:	Greg James J at 1
DECISION:	Motion for a permanent stay of proceedings is dismissed.

CATCHWORDS:	Civil proceedings - defamation - application for permanent stay - defendant seriously ill and seeks stay for that reason - not an abuse for plaintiff to proceed - application dismissed.
PARTIES:	Plaintiff-Leonard Hastings Ainsworth Defendant- Leslie James
FILE NUMBER(S):	SC 021216/1996
COUNSEL:	Plaintiff-R.R.Stitt QC, T.D. Blackburn SC Defendant- C.A.Evatt, R. Rasmussen
SOLICITORS:	Plaintiff-Priddle Gosling Defendant-Hunt and Hunt Lawyers

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GREG JAMES J

FRIDAY 1 APRIL 2005

No 021216/1996

LEONARD HASTINGS AINSWORTH v. LESLIE JAMES BURDEN

JUDGMENT

Re stay application of proceedings.

1 HIS HONOUR: Application has been made by motion for a permanent stay of proceedings in a defamation action brought by Mr Ainsworth who I will, in summary terms, describe for the purposes of this judgment as a poker machine manufacturer. The proceedings are against Mr Burden who I will summarily describe, for the purposes of this judgment, as a former police officer.

2 It is alleged by Mr Ainsworth against Mr Burden that Mr Burden, after his retirement from the police, wrote a letter to the then serving Minister for Police in which Mr Burden defamed him.

3 The proceedings in respect of that letter were commenced in 1996. The letter was written in 1993. There has been, so I am told, a deal of litigation between Mr Ainsworth and the police and many applications and appeals in the present piece of litigation between Mr Burden and Mr Ainsworth. Mr Burden and Mr Ainsworth's present proceedings are set down for trial, to commence on Monday, that is, 4 April 2005.

4 Some weeks ago the application was filed, seeking a permanent stay. For various reasons, which I do not understand to reflect adversely on either party, the matter has not been able to be dealt with by the Court until today.

5 On the application being called on, Mr Evatt for the defendant/applicant read the affidavit of Susan Irene Frankham, the solicitor for Mr Burden, to which are annexed two medical reports; they being the reports of Dr Yap of 3 September 2000 and the report of Dr Hasche of 17 February 2005.

6 Ms Frankham was called and cross examined and she gave evidence that Mr Burden has an indemnity from the State Government, unqualified as to amount in respect of damages and costs, so far as concerns this litigation.

7 Both doctors were cross-examined. The effect of the evidence of both doctors was very much the same. That is, that Mr Burden, the defendant, is a man with at least a preoccupation - Dr Yap would put it more strongly as an obsession - with this litigation and, in particular, his view that what he said in the letter to the minister was true, that he suffers from chronic severe life-threatening cardiac problems, he will not get better. Stress, in particular the stress in and surrounding this litigation, occasioned to him by his preoccupation in this litigation, exacerbates his cardiac condition to the point where both doctors consider that, from the point of view of his medical health, the litigation should go away.

8 Each doctor concedes that he is physically capable of instructing counsel, instructing solicitors and providing information. Each doctor asserts that the attendance at Court and particularly the giving of evidence in chief and under cross-examination would be stressful such that it is probable a cardiac event might occur.

9 The plaintiff has had the opportunity to have Mr Burden examined by the plaintiff's own cardiac specialist. No evidence was put on to challenge the defence experts. All of that being noted, I see no reason to doubt the honesty, accuracy and competence of the defendant's doctors and the opinions they express, but their concerns are limited to concerns relating to the defendant's personal medical situation.

10 I am told from the Bar table that there has been pleaded truth as a defence to the defamation and that it is contemplated that if the matter is to go on, it being a matter which commenced in 1996, it will proceed before the jury on all issues, and that evidence of over 112 pages of matters asserted to go to the truth of what it was said Mr Burden said to the minister might be given in evidence, some of which, it is said, might be given of Mr Burden’s personal knowledge, other of which might be given from other sources.

11 Mr Evatt is unable to point me to any authority for the proposition that the Court has power, because of the illness of one of the parties to civil litigation, to stay that proceeding indefinitely.

12 Such a proposition as that for which he contends, that is, not only that the Court does have the power, but also that the Court in a case of this kind should exercise it in his favour, is one, I find, I am unable to accept. In effect, that would give to those suffering from a life-threatening condition a licence to commit tort without being subject to action and an immunity from action if they contracted the life-threatening ailment during the proceedings.

13 Much reference has been made by Mr Evatt to delay, that is, to the fact that the proceedings were commenced in 1996. There is nothing before me in the affidavit material, which would go to show that there is any fault on the part of the plaintiff in that regard.

14 A jurisprudence has grown up in criminal proceedings and in proceedings before various statutory tribunals concerning whether there is a right of speedy trial. Whether or not there is a basis in the inherent jurisdiction of the Court whereby the State's proceedings or proceedings by emanations of the State, such as statutory authorities, may be stayed where those proceedings become oppressive or an abuse, particularly where the proceedings are being used for some purpose other than the purpose for which the power to bring proceedings had been conferred, this is not that.

15 Reference has been made to passages in the Court of Appeal judgment in Herron v McGregor (1986) 6 NSWLR 246, referring to, in particular, the inherent power of the Court to prevent abuse of its processes - whether those processes be civil or criminal. Since 1986 when Herron v McGregor (supra) was decided, a deal of jurisprudence has established that power. But, even there, the question is not whether the Court has power to prevent abuse, but what amounts to an abuse. In my view, it is not an abuse to permit a plaintiff to bring proceedings in the Court and to pursue them to judgment to determine whether there has been a tort committed and if so to obtain a remedy.

16 Exigencies will always occur affecting the ability of parties to proceedings to pursue their interests in those proceedings as well as they might like, but the fact of those exigencies is contemplated by such things as the law of evidence, including such cases as Jones v Dunkel (1959) 101 CLR 298. The fact that those exigencies occur should not be such as to deny to a party seeking redress in a Court, the opportunity to prove the basis on which that party says that redress should be given, and if successful, to obtain that redress.

17 I do not see that the circumstances can be categorised as an abuse when a party says, "I have been disabled by a matter outside the control of the courts and outside of any fault of my opponent, from being able to defend proceedings brought against me in tort, so that my opponent, the sufferer of the alleged tort, should be disqualified from obtaining redress."

18 This is a different thing to the prejudice occasioned by inordinate or inexcusable delay or the contumelious conduct of the other side as referred to in Burkett v James (1978) AC 297.

19 I am unable to see, even having regard to the amplitude of section 23 of the Supreme Court Act 1970, any basis on these facts upon which relief of the kind sought might be given. I see nothing, were I to have the discretion Mr Evatt urges that I have, which, having regard to the considerations I have referred to, would mind me to grant his client the relief he seeks. It is not merely that there be an adjournment of the proceedings or a short stay on terms that Mr Evatt seeks. It is that the plaintiff should be forever prevented from obtaining redress because the defendant has developed the life-threatening condition the doctors have referred to.

20 I consider that the application cannot succeed. The motion is dismissed.

**********