Macartney v Macmahon Construction Pty Ltd
[2008] WADC 24
•21 FEBRUARY 2008
MACARTNEY -v- MACMAHON CONSTRUCTION PTY LTD [2008] WADC 24
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 24 | |
| Case No: | CIV:2418/1994 | 23 JANUARY 2008 | |
| Coram: | SCHOOMBEE DCJ | 20/02/08 | |
| PERTH | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | DAVID ROBIN MACARTNEY MACMAHON CONSTRUCTION PTY LTD |
Catchwords: | Practice and Procedure Dismissal for want of prosecution Delay caused by plaintiff defending criminal charges Acquiescence by defendant Whether prejudice to defendant Whether fair trial possible |
Legislation: | District Court Rules 2005 Evidence Act 1906 |
Case References: | Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27 Birkett v James [1978] AC 297 Dzienciol & Ors v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998 Hancock Family Memorial Foundation Limited v Fieldhouse (2005) 30 WAR 398 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 Holt v Wynter (2000) 49 NSWLR 128 Hughes v Gales (1995) 14 WAR 434 Jakovljevic v L & B Doslov [2000] WASC 131 Lewandowski v Lovell (1994) 11 WAR 124 Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273 Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294 Roddan v Gwilliam [2005] WASCA 209 Stollznow v Calvert [1980] 2 NSWLR 749 Ulowski v Miller [1968] SASR 277 Westcoast Clothing Company Pty Ltd v Sail America Foundation for International Understanding, unreported; SCt of WA; Library 940482; 7 September 1994 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MACMAHON CONSTRUCTION PTY LTD
Defendant
Catchwords:
Practice and Procedure - Dismissal for want of prosecution - Delay caused by plaintiff defending criminal charges - Acquiescence by defendant - Whether prejudice to defendant - Whether fair trial possible
Legislation:
District Court Rules 2005
Evidence Act 1906
Result:
Appeal dismissed
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Representation:
Counsel:
Plaintiff : In person
Defendant : Mr D R Clyne
Solicitors:
Plaintiff : Not applicable
Defendant : Kott Gunning
Case(s) referred to in judgment(s):
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27
Birkett v James [1978] AC 297
Dzienciol & Ors v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998
Hancock Family Memorial Foundation Limited v Fieldhouse (2005) 30 WAR 398
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Holt v Wynter (2000) 49 NSWLR 128
Hughes v Gales (1995) 14 WAR 434
Jakovljevic v L & B Doslov [2000] WASC 131
Lewandowski v Lovell (1994) 11 WAR 124
Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273
Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294
Roddan v Gwilliam [2005] WASCA 209
Stollznow v Calvert [1980] 2 NSWLR 749
Ulowski v Miller [1968] SASR 277
Westcoast Clothing Company Pty Ltd v Sail America Foundation for International Understanding, unreported; SCt of WA; Library 940482; 7 September 1994
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1 SCHOOMBEE DCJ: This matter concerns an appeal from a decision by Deputy Registrar Hewitt to dismiss an application by the defendant that the plaintiff's claim be dismissed for want of prosecution. The writ of summons was filed by the plaintiff on 8 April 1994 and accordingly District Court Rules 1996 still apply to this matter. Rule 5(1) of the District Court Rules 2005 provides that the District Court Rules1996 do not apply to any case that was commenced by writ before 30 May 2005. Pursuant to O 6 r 11 of the District Court Rules1996 an appeal from a Registrar to a Judge of the District Court is an appeal of right. The appeal is a complete review de novo by the judge: Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 at 28.
2 The statement of claimed filed by the plaintiff indicates that the plaintiff suffered a back injury when, on 11 June 1993, the plaintiff slipped on the surface of a leach pad at a mining site and fell. The plaintiff's claim is against the defendant who was his employer at the time. The plaintiff alleges that the defendant did not provide adequate footwear to him.
3 It appears from the affidavit filed by Mr Vidal Hockless on 10 August 2007 in support of the application to dismiss the plaintiff's claim for want of prosecution that the plaintiff's then solicitors entered the matter for trial and filed papers for the judge on 13 October 1999. A pre-trial conference was listed for 17 January 2000. However, the pre-trial conference did not go ahead because in about December 1999 the plaintiff was arrested on a charge of murder. The plaintiff was found guilty of this charge in September 2001 and sentenced to life imprisonment. The plaintiff filed an appeal against his conviction, but the judgment was upheld by the Court of Appeal in March 2006. The plaintiff thereupon applied for special leave to appeal to the High Court but this was refused on 9 February 2007. In the meantime the plaintiff did not progress his civil claim against the defendant in any manner whatsoever.
The law applicable to dismissal for want of prosecution
4 Counsel for the defendant submitted that the delay that had occurred in this matter was so substantial that it was not possible to have a fair trial of the issues and that the defendant would be seriously prejudiced by the curtailment of the available evidence caused by the delay. Counsel for the defendant relied on the fact that it was now more than 14 years after the accident and that the memory of witnesses and the ability to locate
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- witnesses and relevant documents had shrunk to a level where it was impossible to conduct a fair trial.
5 Counsel for the defendant referred to Birkett v James[1978] AC 297 at 318 in which Lord Diplock enunciated the general principles applicable to dismissal of an action for want of prosecution as follows:
"The power should be exercised only where the Court is satisfied either that the default has been intentional and contumelious, e.g., 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 These principles were adopted by the Full Court of the Supreme Court of Western Australia in Lewandowski v Lovell (1994) 11 WAR 124 at 128, 133 – 135, and 158.
7 In Ulowski v Miller [1968] SASR 277 at 280 Bray CJ held that there were five matters to be considered by a court exercising its discretionary decision on whether to dismiss a claim for want of prosecution. The Chief Justice summarised the considerations as follows:
"It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation."
8 In Hancock Family Memorial Foundation Limited v Fieldhouse (2005) 30 WAR 398 Steytler P and Owen JA came to the conclusion that whereas the considerations identified in Birkett v James (supra) and the five matters mentioned in Ulowski v Miller (supra) should be taken into account in the exercise of the court's discretion, they should not be used as a check list and the absence of one or more of them would not necessarily
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- determine the result. The overriding consideration was for the court to stand back and ask: "what does justice in all the notions or senses of it that are relevant, require in the circumstances of this case?"
9 Their Honours also cited with approval a passage in the judgment of Bray CJ in Ulowski at 281, where Bray CJ referred to the five matters to be considered and held as follows:
"I think the discretion should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above."
10 Roberts-Smith JA who delivered a separate judgment in Hancock Family Memorial Foundation Limited v Fieldhouse (supra)also referred to the above statement by Bray CJ in Ulowski and said that in his opinion this represented the law in relation to applications for dismissal for want of prosecution.
11 Roberts-Smith JA also expressed his agreement at [164] with a further passage in Ulowski where Bray CJ held that the court should not be bound by any particular rules in applications of this kind with regard to whether a particular onus was laid on either party to prove any particular matter. The preferred approach was to weigh all evidence according to the extent to which it was in the power of one side to have produced and in the power of the other to have contradicted evidence. Roberts-Smith JA pointed out at [166] that the ultimate issue for decision by the court was whether it was unjust to allow the proceedings to continue which decision would turn upon a weighing of the prejudice to be suffered by the respective parties.
12 Counsel for the defendant also referred the court to the High Court decision in Batistatos v Roads and Traffic Authority(NSW) [2006] HCA 27 and the note by Seaman in "Civil Procedure Western Australia" at [3.0.4] to the effect that the principles enunciated in Birkettv James (supra) and Lewandowsiv Lovell had now been overtaken by the High Court's decision in Batistatos. In seems to me that in Batistatos Gleeson CJ, Gummow, Hayne and Crennan JJ came to the conclusion at [69] that oppressive conduct by the plaintiff is not a requirement for the success of an application for dismissal for want of prosecution, but that attention should be directed to the burdensome effect upon the defendants of the situation which has arisen by reason of the lapse of time. Neither in Batistatos nor in the present was there any allegation of oppressive conduct by the plaintiff.
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13 In my view the principles to be followed by this Court are those set out by the Court of Appeal in Hancock Family Memorial Foundation Limited v Fieldhouse (supra)which were confirmedby the Court of Appeal in Roddan v Gwilliam [2005] WASCA 209 at [18].
14 I should also refer to the finding by Steytler J in Jakovljevic v L & B Doslov [2000] WASC 131 that inaction by a defendant does not of itself justify delay on the part of the plaintiff. However, his Honour also referred to Stollznow v Calvert [1980] 2 NSWLR 749 at 753, where Moffitt P held as follows:
"…in some cases inaction by a defendant in the face of impending prejudice to him if delay continues may render a later claim of actual prejudice less creditworthy, and the prejudice, if established a less weighty factor".
15 Steytler J further cited with approval the statement by Parker J in Dzienciol & Ors v LogieBrae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998 that there might well be circumstances where delay of itself might lead to an inference of serious prejudice.
16 A further principle relevant to this appeal was formulated by Martin CJ in Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273 at [45] – [46], where his Honour came to the conclusion that an assessment of merit was irrelevant to a determination as to whether proceedings should be dismissed for want of prosecution.
17 Counsel for the defendant also relied on Hughes v Gales (1995) 14 WAR 434 at 444 in support of the submission that deliberate delay due to a strategic decision to delay the action for reasons related to another action was inordinate and inexcusable. In Hughesv Gales (supra)the plaintiff delayed the prosecution of his claim against the defendant because the plaintiff was involved in other proceedings in which he wanted the defendant to appear as a witness and to cooperate with him. Counsel for the defendant submitted that in the present case the plaintiff had made a deliberate decision to delay the prosecution of his claim against the defendant until he was exonerated in respect of the criminal charges and that this was a strategic decision which did not provide a proper excuse for the delay.
18 Counsel for the defendant further relied on Hughesv Gales for the proposition that the case management principles set out in the Rules of the Supreme Court 1971 reflect the public interest in the elimination of
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- unnecessary delays in determining proceedings before a court and in an appropriate case these principles would justify dismissal on the grounds of delay alone.
19 In Hughesv Gales Malcolm CJ referred to a statement by Master Adams in Westcoast Clothing Company Pty Ltd v Sail America Foundation for International Understanding, unreported; SCt of WA; Library 940482; 7 September 1994 where the Master said the following at p 27 with regard to the case management rules:
"… the full effect of these Rules upon applications of this nature (for dismissal for want of prosecution) has yet to be determined. They would certainly justify the acceptance of a shorter period than might have otherwise have been necessary for the Court to find that there has been inordinate delay. In an appropriate case, it may be that they would justify dismissal on the grounds of delay alone without the need for any other ingredient to be established."
20 In Hughes v Gales Malcolm CJ accepted the above as a correct statement of the policy and implications of the principles of case flow management in respect of an application for dismissal for want of prosecution. However, in Hancock Family Memorial Foundation Limited v Fieldhouse (supra)Roberts-Smith JA referred to the statement by Parker J (with whom Kennedy and Steytler JJ agreed) in Dzienciol that the observations by Master Adams must now be read and applied in light of the decision of the High Court in Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294, which emphasised that case flow management was not a objective in itself but a means of enabling a Court to more efficiently discharge its responsibility to do justice between litigants.
The relevant facts
21 The affidavit filed by Mr Hockless sets out the steps that were taken by the plaintiff and the defendant in the period between the filing of the writ of summons on 8 April 1994 and the entry for trial on 13 October 1999. Whereas there are periods during which the plaintiff or his solicitors appear to have delayed unnecessarily in providing answers to interrogatories, these delays were a matter of months and not years and do not in my view amount to delay on which an application for dismissal of a claim for want of prosecution could be based. The defendant still filed an application to amend its defence in August 1996 and supplementary informal discovery in April 1999. As far as is apparent from the chronology contained in the affidavit by Mr Hockless the
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- defendant would not have had a case based on want of prosecution by the plaintiff as at the date when the matter was entered for trial. In my view the relevant and effective period of delay started when the pre-trial conference was not proceeded with on 17 January 2000 because of the plaintiff's arrest which, to date, is a period of approximately eight years.
22 The correspondence between the parties' solicitors attached to the affidavit by Mr Hockless indicates that the defendant was initially prepared to not insist on the re-listing of the pre-trial conference and enquired from time to time from the plaintiff's solicitors how the plaintiff's defence of the criminal proceedings was progressing. It was only after Legal Aid refused to fund the plaintiff's appeal to the Court of Criminal Appeal that the defendant's solicitors wrote to the plaintiff's solicitors on 28 November 2002 stating that the defendant "no longer consents to the matter being adjourned and requests that your client take the appropriate steps to progress the matter in the District Court". However, the plaintiff's solicitors did not re-list the matter for a pre-trial conference, but instead kept on informing the defendant's solicitors from time to time by letters of the steps the plaintiff was taking in order to obtain legal assistance to proceed with his appeal. In a letter of 17 February 2003 the plaintiff's solicitors suggested to the defendant's solicitors that the matter "be left in abeyance until say the end of June". On 10 March 2003 the defendant's solicitors replied, stating that the defendant continued to object to the District Court action being adjourned and requested that the plaintiff take steps to progress the matter. In reply to this letter the plaintiff's solicitors wrote on 12 March 2003 referring to the fact that "the District Court" had apparently "agreed on previous occasions that it would be inappropriate to continue with our client's action whilst his criminal appeal remains pending" and offered to re-list the pre-trial conference if the defendant's solicitors wished the District Court to "rule upon the matter again".
23 After this letter the defendant's solicitors sent a further three letters enquiring about the progress of the plaintiff's criminal appeal. On 27 August 2003 the plaintiff's solicitors advised the defendant's solicitors that a date for the criminal appeal had not yet been set but requested that if the defendant's solicitors were of the view that the matter had to be brought before the court again, they should contact the plaintiff's solicitors before making any application to re-list the pre-trial conference to enable the plaintiff's solicitors to advise of their unavailable dates. There then followed numerous further letters from the defendant's solicitors enquiring about the progress of the criminal appeal and letters from the plaintiff's
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- solicitors providing as much information as appeared to be available at that time.
24 In none of this correspondence do the defendant's solicitors insist that the plaintiff re-list the matter for a pre-trial conference or say that they intend to do so themselves. On 25 January 2005 the defendant's solicitors asked by letter that the plaintiff provide them with his intentions regarding the District Court action and also with evidence from his legal representative regarding the merits of the criminal appeal. The letter stated that "this will allow us to obtain our client's instructions as to the reasonableness of the adjournment".
25 On 6 March 2006 the plaintiff's criminal appeal was dismissed. On 9 March 2006 the defendant's solicitors wrote to the plaintiff's solicitors asking them to advise of their intentions with regard to the plaintiff's civil claim and stated that if they did not hear from the plaintiff's solicitors they were instructed to bring an application to have the action dismissed for want of prosecution. In response the plaintiff's solicitors wrote a letter on 30 March 2006 explaining that Legal Aid had granted assistance for an application for special leave to the High Court and asked that the defendant's solicitors not take any further steps without reference to them. The chronology in the affidavit by Mr Hockless indicates that the defendant's solicitors made a number of enquiries during the period August to December 2006 with the High Court Registry to find out about the progress of the plaintiff's special leave application.
26 On 9 February 2007 the plaintiff's application for special leave to the High Court was refused. The affidavit by Mr Hockless does not deal with the correspondence between the defendant and the plaintiff or their respective solicitors after this date. However, in the memorandum of conferral pursuant to r 22 of the District Court Rules 2005 the defendant's solicitors say that they wrote to the plaintiff's solicitors on 17 May 2007 in an attempt to agree a method of finalising the action. A copy of this letter was supplied to the court after the hearing of the appeal on request by the court. The letter said that the defendant intended to proceed with an application to strike out the plaintiff's claim for want of prosecution unless the plaintiff was prepared to consent to such a course. According to the memorandum of conferral the plaintiff's solicitors replied that they were seeking instructions and by letter dated 24 May 2007 the defendant's solicitors agreed to allow the plaintiff's solicitors more time. In late June 2007 the defendant's solicitors received a notice of dismissal of solicitors from the plaintiff advising that the plaintiff had dismissed his solicitors and was acting for himself. On 25 June 2007 the defendant's solicitors
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- wrote a letter to the plaintiff personally, a copy of which was also furnished to the court upon request. It essentially restates what was said by the defendant's solicitors in the letter to the plaintiff's solicitors of 17 May 2007 and allows the plaintiff one month within which to reply. The plaintiff replied by letter, dated 23 July 2007 indicating that he did not consent to his claim being dismissed and that he was determined to pursue it. However, the plaintiff has taken no steps since that letter to progress his claim.
Acceptance of the delay by the defendant and inaction to prevent prejudice
27 In my view the correspondence between the parties' respective solicitors during the period January 2001 to May 2007 indicates that the defendant tacitly agreed, albeit reluctantly, to the pre-trial conference being adjourned on an ongoing basis until the plaintiff had had the opportunity of pursuing the last step in trying to prove his innocence. It is not clear why the defendant was this indulgent, but in the absence of any other reason advanced, it appears that the defendant was prepared to allow the plaintiff the opportunity to properly conduct his civil claim while being out of jail. The plaintiff's incarceration had an impact on the plaintiff's claim for loss of future earning capacity and it may have been the uncertainty with regard to calculating this claim which may have had an influence on the defendant's decision. Whatever the reasons may be, and I am assuming a benevolent motive on the part of the defendant, the defendant impliedly indicated to the plaintiff from time to time that it would allow him another opportunity of adjourning the pre-trial conference until the last step in the criminal proceedings had been exhausted. Although the defendant's solicitors said in their letters of 28 November 2002 and 10 March 2003 that the defendant no longer consented to the matter being adjourned and required the plaintiff to take the appropriate steps to progress the matter, the defendant thereafter kept on making enquiries about the progress of the plaintiff's criminal appeal and did not press its objection to the adjournment of the pre-trial conference.
28 I take into account the finding by Steytler J in Jakovljevicv L & B Doslov (supra) that inaction by a defendant does not of itself justify a delay on the part of the plaintiff. However, as held in Stollznow v Calvert (supra) inaction by a defendant in the face of impending prejudice to him if delay continues, may render a later claim of actual prejudice a less weighty factor. It must have been obvious to the defendant that the plaintiff's criminal proceedings were taking a very slow course and the defendant was clearly aware that with each year that passed witnesses'
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- memories would dim and it would be harder to locate witnesses and documents. Although counsel for the defendant did not make such a submission, I have considered the argument in the defendant's favour that it was dragged along, unwillingly, by the slow train of the plaintiff's criminal proceedings and only realised when this had come to its final stop how much time had passed and the difficult position it now found itself in.
29 In Hancock Family Memorial Foundation Limited v Fieldhouse Roberts-Smith JA made the following finding at [195] with regard to a defendant who stands by while the plaintiff delays:
"I accept the respondent's submission that there is no obligation upon a defendant to press a plaintiff to prosecute an action against the defendant. Accordingly, mere failure to do so cannot militate against a defendant who seeks to strike out the plaintiff's action for want of prosecution. The defendant who does no more than stand by while the plaintiff delays, is not by that alone, acquiescing in the delay; there must be something more which indicates a willing acceptance or allowance of the delay, for whatever reason."
30 In my view the correspondence exchanged between the parties' respective solicitors indicates that the defendant did not only stand by, but indicated tacitly its acceptance or allowance of the delay. I base this conclusion on the fact that the defendant's solicitors kept on making enquiries about the progress of the plaintiff's criminal proceedings and, apart from the two letters in November 2002 and March 2003, did not object to the delay or insist that the plaintiff re-list the pre-trial conference
31 I accept that inaction by a defendant does not of itself justify a delay on the part of the plaintiff, as held in Birkett v James at 329 and Jakovljevic v L & B Doslov. However, in those cases the court referred to "inaction" in the context of a defendant not taking out an earlier application for dismissal for want of prosecution (Birkett) and the defendant being tardy in its pursuit of third party proceedings (in Jakovljevic). In this case the issue is not that the defendant should have brought an application for dismissal for want of prosecution on an earlier occasion. The relevant consideration is that the defendant knew that the prosecution of the plaintiff's claim was likely to be delayed considerably and it could have taken its own steps to minimise the prejudice that the delay was likely to have on the availability of witnesses and documents. In the context of the defendant impliedly accepting the
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- delay and not doing anything to guard against prejudice to its own case, I am of the view that this is a situation where the defendant's prejudice is a less weighty factor, as referred to in Stollznow v Calvert (supra) 753.
32 It could be argued that the plaintiff's decision to delay the prosecution of his claim until his criminal proceedings were finally determined was a tactical decision and that a tactical forensic decision does not provide a valid explanation for delay, as held in Hughes v Gales (supra) at 444. However, in this case the defendant impliedly accepted the plaintiff's decision to delay the prosecution of his claim until his criminal proceedings had been determined.
33 I am taking the defendant's acceptance or allowance of the delay into account as a factor relevant to the exercise of my discretion with regard to whether the plaintiff's claim should be dismissed as, in my view, it is a factor which bears upon the question whether it would be just to allow the proceedings to continue. This is not a situation such as that described by Lord Salmon in Birkett v James (supra) at 329 where the defendant, with some justification, hoped that if it let sleeping dogs lie, the plaintiff's claim, which had not been progressed for some time, would quietly go away. The defendant in this case knew at all times that the plaintiff intended to prosecute his claim as soon as his criminal proceedings were finally determined. Accordingly, the defendant knew that its witnesses and medical records would still be required at some time in the future. There is nothing that would have prevented the defendant from keeping in regular contact with its witnesses or asking them to provide it with any change of address and to have made sure that it had copies of the necessary medical records. Strictly speaking, those documents should have been obtained by the defendant in any event prior to it agreeing to the case being entered for trial, although I accept that in practice a party will not necessarily have taken every last step at that time.
Prejudice to the defendant
34 The affidavit filed by Mr Hockless deals with specific aspects of prejudice to be suffered by the defendant if the plaintiff is allowed to continue with his claim. Mr Hockless says that an important witness, a Mr Frost, who was the person to whom the plaintiff allegedly made a complaint and from whom he received instructions, was contacted by the defendant's solicitors in August 2006. Whilst he could recall generally the circumstances regarding the accident, he had himself been involved in a major accident in July 1997 and was still in the process of recovery. However, Mr Frost would have been in the same position if the trial had
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- proceeded in 2000, perhaps he would have been even more affected by the major accident suffered by him. In any event, the affidavit makes it clear that Mr Frost had previously given statements to the defendant's solicitors and to assessors instructed by them in 1994 and 1995.
35 Mr Hockless' affidavit further refers to a Mr Ponga, who was not an eye witness to the accident, but saw the plaintiff lying on the ground on the day of the alleged accident. This witness had given a statement in 1994, but the defendant's solicitors were not able to contact him late last year. However, if Mr Ponga did not see the accident happen, he does not appear to be a crucial witness.
36 The affidavit also refers to the shift supervisor who had given a statement in 1994 concerning "the liability issues", including the weather conditions on the day of the accident and the lack of any prior complaints by personnel working on the leach pad. It appears from the affidavit that this witness could not be located by the assessors in August 2006. The affidavit does not provide any detail with regard to the steps taken by the assessors in order to locate this witness.
37 The affidavit deals with two more witnesses who could not longer be located by the assessors. One was the project manager for the mine site who gave an earlier statement in which he said that the plaintiff was likely to be dismissed because of his attitude prior to the accident. This evidence would be relevant to the plaintiff's claim for economic loss. However, this witness has previously provided a statement to the defendant's solicitors and the defendant should be able to tender the statement at trial pursuant to s 79C(2)(d) of the Evidence Act 1906 (WA).
38 Mr Hockless says that the defendant's solicitors have been able to contact the plaintiff's general practitioner, Dr Franklyn, who treated him for back pain prior to the accident, but have been unable to obtain the practice notes relating to the period prior to the accident. However, when the assessors requested these practice notes from Dr Franklyn in 1998 he was already unable to locate them. According to the affidavit Dr Franklyn advised the assessors in August 2006 that he could recall the plaintiff presenting with back pain, but not the details of the complaint. I accept that Dr Franklyn's memory may have dimmed in the period from 2000 (when the trial is likely to have taken place, if the plaintiff had not been taken into custody) to date, but if he was asked about the plaintiff's previous injuries in 1998, he would have directed his mind to this at that time and it is likely that he recalls today as much of the plaintiff's consultations with him in 1992, as he would have recalled in 2000.
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39 Mr Hockless' concern is further that the two medical specialists, Drs Batalin and Hollingworth who reviewed the plaintiff at the defendant's insurers' request in the period 1996 to 1998 have both retired from practice. Mr Batalin is also said to be "extremely unwell". However, both specialists have provided reports which are likely to be admissible pursuant to s 79C(2)(b) if the witness is unfit by reason of his bodily condition to attend or give evidence as a witness. The defendant is also in the position to request the plaintiff to attend a further review by a specialist.
40 Mr Hockless also advises that whereas the reports from Perth Radiological Clinic are still available, the original CT scan on which the reports are based has not been kept. Presumably, however, Drs Batalin and Hollingworth saw the original CT scan of 16 June 1993 and commented in their reports on this scan. In any event, the reports by Perth Radiological Clinic would summarise the results of the CT scan.
41 Lastly, the affidavit deals with the availability of a number of rehabilitation providers and their reports. It appears that in response to enquiries made by the defendant's solicitors two rehabilitation providers have not replied, one no longer has any records and does not know where the person who attended to the plaintiff is currently to be found, whereas a fourth rehabilitation provider no longer has any records, but the person who provided the services to the plaintiff is still employed with them.
42 I accept that there is clearly some prejudice to the defendant as a result of the lack of availability of witnesses and documents and the failing memory of the witnesses who are available. However, in my view it is fallacious to argue that the prejudice has been caused by 14 years' of delay. As indicated earlier, I am of the view that the blame for the delay until the date of entry for trial cannot be laid squarely at the door of the plaintiff and his solicitors. The question should therefore be asked whether the defendant is that much worse off than what it would have been if the trial had proceeded in 2000, that is, soon after the scheduled pre-trial conference. It is questionable whether all of the witnesses and records would have been available if the defendant's solicitors had tried to trace them in 2000, and Mr Hockless' affidavit does not state that such enquiries were made when the matter was entered for trial.
43 I accept that the defendant has been prejudiced to a material degree, but in my view it cannot be said that it is not possible to have a fair trial. In Batistatos v Roads and Traffic Authority(NSW) (supra) at [163] Kirby J, in a minority judgment, referred to the following statement by
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- Priestley JA in Holt v Wynter (2000) 49 NSWLR 128 at [79], which Kirby J described as "uncontroversial":
"One thing seems to be clear; that is that the term ['fair trial'] is a relative one and must, in any particular case, mean a fair trial between the parties in the case in the circumstances of that particular case. Further, for a trial to be fair it need not be perfect or ideal. That degree of fairness is unattainable. Trials are constantly held in which for a variety of reasons not all relevant evidence is before the court. Time and chance will have their effect on evidence in any case, but it is not usually suggested that that effect necessarily prevents a fair trial."
Prejudice to the plaintiff
45 The plaintiff was unrepresented at the hearing of the appeal and made his submissions by way of video-link. He is in prison and would, according to him, only be eligible for parole after 2013. Asked by the court why he and his solicitors had not progressed the claim against the defendant earlier, he said that he was advised by his solicitors that it would be prejudicial to him if the trial was conducted while he was in jail. It is not clear what this prejudice would have been other than the fact that until the criminal proceedings had been finally determined it would have been difficult to put a value on the plaintiff's loss of future earning capacity. Asked why the claim was not progressed after the dismissal of his application for special leave to the High Court, the plaintiff said that he had been very busy doing research into the manner in which the DNA samples relevant to his criminal proceedings were taken and analysed and that he had obtained the assistance of persons involved with the "Innocence Project" in this regard. The plaintiff stated that he was quite certain that pursuant to the work currently done with regard to the DNA samples he would not spend time in jail until 2013.
46 Although I asked the plaintiff to provide me with a copy of the letter from the persons involved with the "Innocence Project" which he said in oral submissions had been sent to him, I do not take into account in exercising my discretion whether the plaintiff has a reasonable chance of being released from jail prior to him becoming eligible for parole. It
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- would be impossible to make a reasonable assessment of that chance on the basis of the available material. I therefore assume that the plaintiff will remain in jail until at least 2013. There is, however, no reason why the plaintiff could not conduct his claim by way of legal representation or as an unrepresented litigant while in jail.
47 It appears from the r 22 memorandum that in June 2007 the defendant's solicitors were served with a notice of dismissal of solicitors from the plaintiff's solicitors. The plaintiff advised the court during the hearing that the solicitors who had represented him in respect of his civil claim and had corresponded with the defendant's solicitors while the criminal proceedings were on foot had advised him at some stage after the Court of Appeal had dismissed his appeal and before the special leave application to the High Court was made that they wished to withdraw as solicitors because they were incurring costs which the plaintiff was unable to pay. The plaintiff said that the solicitors asked him to sign a notice of dismissal of solicitors on the basis that he would not be charged for any outstanding fees and he was provided with the file kept by the solicitors in respect of his claim against the defendant.
48 The plaintiff indicated that he could contact some of the people that had helped him on a pro bono basis with regard to his criminal proceedings to see whether he could find a lawyer who would represent him on that basis in the claim against the defendant. The plaintiff had also not previously contacted Legal Aid and was prepared to do so if his claim was not dismissed for want of prosecution. The Law Society would also be able to provide the plaintiff with a list of names of solicitors firms who deal with personal injury claims and the plaintiff could make enquiries as to whether any firm would be prepared to represent him under the circumstances. If it was not possible to obtain any legal representation, the plaintiff said that he was keen and determined to conduct his own case from prison.
49 I accept that it would be difficult for the plaintiff to conduct his own case from prison if he is unrepresented. However, he said that he knew a person who had assisted him in respect of the criminal proceedings and, although the person was not a lawyer, he would be able to make enquiries on his behalf. The plaintiff stated that he might want to call witnesses and that he would need to locate them. The mere fact that the plaintiff is in prison and may have to conduct the claim as an unrepresented litigant is no valid reason on its own for the exercise of my discretion against his interests. It was not argued and no evidence was presented that the plaintiff's claim has no merit. In any event, as held by Martin CJ in
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- Monaveen Pty Ltd v ABB Service Pty Ltd(supra) an assessment of merit is irrelevant to a decision whether proceedings should be dismissed for want of prosecution. If the plaintiff's claim was dismissed for want of prosecution, he would suffer severe prejudice as the statutory limitation period for bringing a personal injuries claim has by now expired.
50 I have not discounted that the plaintiff has done nothing to progress the claim since his letter to the defendant's solicitors of 23 July 2007. However, the plaintiff has been unrepresented and occupied with his research into the DNA evidence which he hopes will provide him with another opportunity to challenge his conviction and is therefore of immediate concern to him. Although the letter by the defendant's solicitors of 25 June 2007 makes it clear that the defendant will bring an application for the dismissal of the plaintiff's claim if the plaintiff does not consent to that, the plaintiff is unlikely to have understood the seriousness of such an application and the fact that it was urgent that he took steps to re-list the matter for a pre-trial conference.
Exercise of discretion
51 As appears from what I have discussed I have considered each of the five factors listed in Ulowski v Miller. Taking the result of those considerations into account and asking myself "what does justice, in all the circumstances require?" I can only come to the conclusion that the plaintiff should have another opportunity to progress his claim against the defendant. I have also taken into account, as stated by Roberts-Smith JA in Hancock Family Memorial Foundation Limited v Fieldhouse (supra) at [157] that an order striking out an action for want of prosecution is a "draconian order".
52 The plaintiff is now, after the hearing of the application, well aware that he has to take steps to re-list the matter for a pre-trial conference or the trial and that he has to take all preparatory steps as an unrepresented litigant if he is unable to obtain legal representation. The plaintiff should be afforded this opportunity. If the plaintiff does not make full use of this opportunity, there is nothing preventing the defendant from bringing a further application for dismissal of the claim for want of prosecution based on any additional delay by the plaintiff which may have occurred by then.
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