Metal Manufactuers v Nautitech P/L and 2 Ors

[2001] NSWSC 1128

CITATION:

Metal Manufactuers v Nautitech P/L & 2 Ors [2001] NSWSC 1128

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20291/2000

HEARING DATE(S):

5 December 2001

JUDGMENT DATE:

10 December 2001

PARTIES :

Metal Manufacturers Limited
(PLaintiff)
Nautitech Pty Limited
(First Defendant)

Richard Terrence Tamba
(Second Defendant)

Mariusz Krzysztof Dudzik
(Third Defendant)

JUDGMENT OF:

Master Harrison

COUNSEL :	Mr S A Kerr (PLaintiff) Mr C Birch SC (Defendants)
SOLICITORS:	Phillips Fox (Plaintiff) Thurlow Fisher Bankstown (Defendant)
CATCHWORDS:	Dismiss proceedings for want of prosecution
LEGISLATION CITED:	Supreme Court Rules
CASES CITED:	Birkett v James [1977] 2 All ER 801; AC 297 at 318 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491 McKenna v McKenna [1984] VR 665 Stollznow v Calvert [1980] 2 NSWLR 749 Grovit & Ors v Doctor & Ors [1997] 2 All ER 417 Securum Finance Ltd v Ashton [2001] Ch 291
DECISION:	(1) Paragraph 3 of the amended notice of motion filed 14 November 2001 in relation to subpoenae is stood over generally; (2) The defendants are to file and serve a defence on or before 14 January 2002; (3) The plaintiff is to file and serve DCM documents and experts reports on or before 29 March 2002; (4) The defendants are to pay the plaintiff's costs.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 10 DECEMBER 2001

20291/2000 - METAL MANUFACTURERS LIMITED v
NAUTITECH PTY LIMITED & 2 ORS

JUDGMENT (Dismiss proceedings for want of prosecution)

1 MASTER: By amended notice of motion filed 14 November 2001 the defendants seek an order that the proceedings be dismissed pursuant to Part 32A r 2(1) of the Supreme Court Rules (SCR) or alternatively that the proceedings be dismissed pursuant to Part 33 r 6(2) of the SCR. The defendants also seek an order for indemnity costs. The first defendant is Nautitech Pty Limited. The second defendant is Richard Terrence Tamba and the third defendant is Mariusz Krzysztof Dudzik. The defendants relied on the affidavit of Matthew John Fisher sworn 5 November 2001.

2 The plaintiff is a business which carried on the business of the supply of electrical equipment for use in various applications, including in the mining industry. The first defendant is a company that is engaged in research and development. This involves inventing products for industrial applications, such as sequential gearboxes, off road military vehicles and communications. The plaintiff sues the defendant for breaches of contract, negligence and pursuant to s 52 of the Trade Practices Act, s 19 of the Sales of Goods Act, and ss 42 and 44 of the Fair Trading Act 1987. The plaintiff and first defendant entered into four agreements namely firstly an agreement on 3 October 1996 between the plaintiff and Metal Manufacturers Limited; secondly and agreement on 14 February 1997 between the plaintiff and Mine Technic Australia Pty Limited in regard to Moonee Colliery (the Moonee contract); thirdly, an agreement on 18 July 1997 between the plaintiff and Mine Technic Australia Pty Limited in regard to Newlands Colliery (Newlands contract); and fourthly, an agreement on 26 February 1998 between the plaintiff and first defendant for Newlands Colliery. The plaintiff has given specific details of some of the damages and claims that damages are still ongoing.

3 A short chronology of the court proceedings is as follows.

(1) On 4 July 2000 a statement of claim was filed. This statement of claim was not served on the defendants.

(2) On 27 June 2001 (about one year later) an amended statement of claim was filed.

(3) On 28 June 2001 an amended statement of claim was served on the defendants.

(4) On 19 July 2001 the defendants requested particulars. On 23 July 2001 the defendants served a notice to produce on the plaintiff.

(5) On 24 August 2001 the defendants reminded the plaintiff to answer the request for particulars.

(6) On 15 October 2001 the defendants wrote to the plaintiff advising that if answers to particulars were not given within seven days a motion seeking to strike out the proceedings would be filed.

(7) On 6 November 2001 the plaintiff answered the defendants’ request for particulars.

(8) On 30 October 2001 the defendants pre-empted the Not Ready Callover (scheduled to occur on 13 November 2001) and filed a motion seeking orders pursuant to Part 32A r 2(1) and Part 33 r 6 (want of prosecution). The defendant did not file a supporting affidavit until 5 November 2001. The plaintiff could have sought an order pursuant to Part 32A at the Not Ready Callover. However such an application was always doomed to failure because an amended statement of claim had been filed on 27 June 2001. Hence the plaintiff had taken a step in the proceedings within the year so fell outside the provisions of Part 32A r 2(1).

(9) On 7 November 2001 the motion came before Deputy Registrar Howe who made directions and vacated the Not Ready Callover.

(10) On 14 November 2001 the defendants filed an amended motion. It sought some additional orders, namely, that the subpoena returnable on 5 November 2001 be set aside and in the alternative to an order pursuant to Part 32A r 2(1), all particulars and expert reports be provided within 28 days failing compliance the proceedings should be struck out.

4 The defendants no longer seek an order pursuant to Part 32A r 2(1). Paragraph 3 of the notice of motion is stood over generally in order to give the parties an opportunity to amicably resolve any dispute in relation to the width of the subpoena.

The Law

5 Part 33 r 6 of the SCR relevantly reads as follows:

“(1) …

(2) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any part or of its own motion, stay or dismiss the proceedings.
(3) The Court may not make an order under subrule (2) without giving the plaintiff a reasonable opportunity to be heard.”

6 The power of the courts to dismiss an action for default or want of prosecution should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible due to serious prejudice to the defendants: Birkett v James [1977] 2 All ER 801; AC 297 at 318. In each case, a balance must be struck between the plaintiff and the defendant and the court must decide whether or not, in all the circumstances, justice requires that the proceedings should be dismissed: Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491; McKenna v McKenna [1984] VR 665.

7 In Stollznow v Calvert [1980] 2 NSWLR 749 Moffitt P held that the discretion to dismiss proceedings for want of prosecution is to be exercised for each case upon its own facts by deciding whether, on striking a balance between the plaintiff and the defendant, justice demands that the action should be dismissed. The judgment makes it clear that the discretion is not confined and that authority does not and cannot establish the weight to be given to particular classes of facts or circumstances.

8 Relevant considerations are that the conduct of a plaintiff himself and his contribution to delay is considered separately from conduct, contribution and defaults of his solicitor, but it is not the law that a litigant has no involvement in his solicitor’s shortcomings or that they are not relevant. It is not the responsibility of a litigant to ensure that his opponent is adequately represented or to point out steps which his opponent’s representatives ought to take to advance the claim against him. In relation to delay, the longer it continues the more difficult becomes the determination of factual issues because dim memories and unavailable witnesses render the elucidation of the truth more difficult to ascertain. Prejudice both actual and presumed should be considered.

9 Further in Grovit & Ors v Doctor & Ors [1997] 2 All ER 417 Woolf LJ held that an action can be dismissed where a plaintiff commenced and continues litigation with no intention to bring it to a conclusion as this can amount to an abuse of process (p 424). Lord Woolf also refers to the little regard paid to the anxiety caused to litigants. In the case before this court, the anxiety caused to the parties has been taken into account. The defendant also referred to Securum Finance Ltd v Ashton [2001] Ch 291. Securum is a very useful case where second proceedings are brought which involve relitigating issues involved in prior proceedings which have already been determined by the court. Of course, the situation described in Securum is becoming increasing prevalent and a matter of great concern to the court. However, Metal Manufacturers Limited, the plaintiff in the proceedings before me, has only this one set of proceedings before the court, so Securum is not instructive.

10 The plaintiff was perhaps tardy when it filed a statement of claim three years after the cause of action arose and then did not chose to serve the statement of claim for nearly 12 months. The defendants high point in their application is contained in paragraph 3 of the plaintiff’s letter dated 6 November 2001 where it states “As you are aware, our client instructed us to file the Amended Statement of Claim in this matter to protect its legal rights and to avoid the expiration of any limitation periods.”

11 The defendants’ counsel referred to Part 1 r 2 and submitted that Grovit, Securum and Part 1 r 2 mean that the principles laid down in Birkett have changed. While courts in present times place more emphasis on the timely disposal of cases, they do not take the drastic step of dismissing cases without allowing a party to have a trial on its merits. The plaintiff has not been in any breach of the Supreme Court Rules. The plaintiff may well have been ordered to file its DCM documents and experts reports had the Not Ready Callover not been aborted by the defendants. Additionally, the defendant could have filed DCM documents at any time after the amended statement of claim was served upon them. This step would have triggered a status conference at which the directions sought could have been made. There is no basis to dismiss these proceedings for want of prosecution. From the defendant’s point of view, it is critical that they are served with the experts reports so that they can prepare their case. It is my view that experts reports should be served. However, at no time prior to filing the motion, did the defendants request the plaintiff to provide them with experts reports. I do not accept the plaintiff’s contention that the three to four years after the contracts were entered into that the damages have not crystallised. To this end, I order that the plaintiff file and serve DCM documents together with experts reports on or before 29 March 2002. It is my view that the defendants’ application was entirely unnecessary. As previously stated, these orders could have been made at the Not Ready Callover. The defendants are to pay the plaintiff’s costs. Costs are discretionary. While it is a borderline case, in the exercise of my discretion, I decline to award costs on an indemnity basis on this occasion.

12 The court orders:

(1) Paragraph 3 of the amended notice of motion filed 14 November 2001 in relation to subpoenae is stood over generally.

(2) The defendants are to file and serve a defence on or before 14 January 2002.

(3) The plaintiff is to file and serve DCM documents and expert reports on or before 29 March 2002.

(4) The defendants are to pay the plaintiff’s costs.
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Last Modified: 12/12/2001