Paxton v Blenkinsop Nominees Pty Ltd
[2004] WASC 159
PAXTON -v- BLENKINSOP NOMINEES PTY LTD & ORS [2004] WASC 159
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 159 | |
| Case No: | CIV:1001/1996 | 30 JUNE 2004 | |
| Coram: | PULLIN J | 21/07/04 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Judgment dismissing the plaintiff's claim | ||
| B | |||
| PDF Version |
| Parties: | MARK ASHLEY PAXTON BLENKINSOP NOMINEES PTY LTD JIM FAY KERRY FAY FRED BLENKINSOP |
Catchwords: | Practice and procedure Application to strike out action Inordinate and inexcusable delay coupled with prejudice Death of critical witness |
Legislation: | Nil |
Case References: | Duncan v Lowenthal [1969] VR 180 Paxton v Blenkinsop Nominees Pty Ltd [2002] WASC 93 Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASCA 15 Birkett v James [1978] AC 297 Bosun Pty Ltd (In Liq) v Makris (2003) 21 ACLC 666 Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1977) 18 WAR 334 Dr SS v Health Care Complaints Commission [2002] NSWCA 391 Herron v McGregor [1986] 6 NSWLR 246 Jakovljevic v Doslov [2000] WASCA 131 Leyburd Nominees Pty Ltd & Anor v Coates Brown & Co, unreported; FCt SCt of Vic; 12 September 1995 Reynolds & Co Pty Ltd v Australian Stock Exchange Ltd (2003) 174 FLR 311 Walton v Gardiner [1993] 177 CLR 378 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BLENKINSOP NOMINEES PTY LTD
First Defendant
JIM FAY
Second Defendant
KERRY FAY
Third Defendant
FRED BLENKINSOP
Fourth Defendant
Catchwords:
Practice and procedure - Application to strike out action - Inordinate and inexcusable delay coupled with prejudice - Death of critical witness
(Page 2)
Legislation:
Nil
Result:
Judgment dismissing the plaintiff's claim
Category: B
Representation:
Counsel:
Plaintiff : Mr M D Cuerden
First Defendant : Mr A F Mizen
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Mr A F Mizen
Solicitors:
Plaintiff : Leask & Co
First Defendant : Alan Mizen
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : Alan Mizen
Case(s) referred to in judgment(s):
Duncan v Lowenthal [1969] VR 180
Paxton v Blenkinsop Nominees Pty Ltd [2002] WASC 93
Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASCA 15
Case(s) also cited:
Birkett v James [1978] AC 297
Bosun Pty Ltd (In Liq) v Makris (2003) 21 ACLC 666
(Page 3)
Christmas Island Resort Pty Ltd v Geraldton Building Co Pty Ltd (No 5) (1977) 18 WAR 334
Dr SS v Health Care Complaints Commission [2002] NSWCA 391
Herron v McGregor [1986] 6 NSWLR 246
Jakovljevic v Doslov [2000] WASCA 131
Leyburd Nominees Pty Ltd & Anor v Coates Brown & Co, unreported; FCt SCt of Vic; 12 September 1995
Reynolds & Co Pty Ltd v Australian Stock Exchange Ltd (2003) 174 FLR 311
Walton v Gardiner [1993] 177 CLR 378
(Page 4)
1 PULLIN J: This is an application by the first defendant for orders that :
(a) the plaintiff's action against the first and fourth defendants be dismissed for want of prosecution and judgment be entered against them;
(b) alternatively that the action be permanently stayed on the ground that it is not possible for the first and fourth defendants to be granted a fair trial, and
(c) alternatively, if orders in terms of (a) and (b) are not made, then the plaintiff provide security for costs in the amount of $95,000 within seven days and that unless security be provided, the action be stayed.
2 The action has been listed for trial on 11 August 2004 and it is necessary for me to deal with this matter promptly.
3 The dispute between the parties dates back to events which are said to have occurred in 1989. There was an earlier application by the first and fourth defendants to strike out the action for want of prosecution. This was heard by Master Bredmeyer and he gave reasons for decision in Paxton v Blenkinsop Nominees Pty Ltd [2002] WASC 93. Master Bredmeyer concluded that there had been delay on the part of the plaintiff in the progress of the action. He held that the delay was inordinate and inexcusable, that the defendants had suffered "general prejudice" but concluded that the hardship to the plaintiff if the action were dismissed would exceed hardship to the defendants if the action were allowed to proceed. The details of the delay are set out in the Master's reasons. As a result the Master ordered that:
"Unless the plaintiff enter the action for trial within 14 days the plaintiff's action is dismissed with costs to the first and fourth defendants."
4 Master Bredmeyer summarised the dispute between [4] and [14] of his reasons for decision. I should expand the summary in [6] of the reasons where the Master says that:
"The plaintiff says that under an oral collateral agreement, LEF1921was to be endorsed on … wet licence 1050."
5 The plaintiff's case is that pending the plaintiff's purchase of the wet licence 1050, LEF1921 was to be endorsed on the defendants' wet licence. The plaintiff's case is that he was the beneficial owner of LEF1921 and that the transfer of this endorsement onto the defendants' wet licence 1050
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- was not intended by the plaintiff as an unconditional transfer of ownership of the endorsement to the defendants. The transfer was conditional upon the plaintiff purchasing the wet licence which the plaintiff said did not happen.
6 The Master said that the case would not turn "much" on oral evidence but "rather on the legal interpretation of known facts". In saying that, he must have been speaking quantitatively not qualitatively. It is true that much of the evidence in the case would have to be adduced via documents but a critical issue in the case is about the terms of the collateral agreement pleaded in par 8 of the statement of claim. The Master noted in [6] that the arrangement concerning LEF1921 was the subject of an oral collateral agreement. The plaintiff alleges that the oral collateral agreement was entered into by the plaintiff, Mr Paxton, and the fourth defendant, Mr Fred Blenkinsop. The collateral agreement is critical to the plaintiff's case. Without it there will be merely evidence that the endorsement was transferred by a third party to the defendants.
7 After the hearing of the strike-out application before Master Bredmeyer, Mr Fred Blenkinsop died. The case had been listed for trial after the strike-out application and at a time when Mr Blenkinsop was still alive, but the trial was adjourned due to defaults and omissions on the part of the plaintiff.
8 The first defendant now says that the circumstances are quite different from the circumstances which prevailed when the application was heard before Master Bredmeyer, that the hardship to the defendants if the case proceeds outweighs any hardship to the plaintiff if the case is dismissed and that the plaintiff's action should now be struck out. I will now relate the history of the case since 26 April 2002.
9 Within 14 days of the Master's order on 26 April 2002, the plaintiff did, on 1 May 2002, enter the action for trial. A certificate of readiness was signed by the plaintiff's solicitor on 1 May 2002. In that certificate the plaintiff's solicitors certified that:
"5. Discovery of documents requested or ordered has been made by the Plaintiff …
8. The Plaintiff does not intend to adduce expert evidence at the trial …
10. The action is in all respects ready for trial so far as is known to the Plaintiff …"
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10 I was informed that there were then two callovers in which the case appeared in the list of cases to be set down for trial. The first callover on 30 July 2002 was adjourned because Mr Blenkinsop had suffered a brain haemorrhage on 24 July 2002 and had been admitted to intensive care in Royal Perth Hospital. The case was adjourned to the next callover to see if Mr Blenkinsop recovered.
11 There was then a callover on 29 November 2002. By then Mr Blenkinsop had recovered and the medical view was that he would be able to cope with giving evidence at a trial in February 2003. As a result, the action was listed for trial for five days to commence on 17 February 2003. The action was listed before Justice Barker.
12 On 16 December 2002 there was a directions hearing before Justice Barker. His Honour made orders concerning trial documents in accordance with common form 78 orders and made orders about non-expert evidence in accordance with common form number 79. These orders were unexceptional. However, the plaintiff also sought leave to adduce expert evidence concerning the value of LEF1921. The plaintiff's claim includes a claim for damages for conversion in relation to the endorsement. The claim is that the defendants sold this asset, or its replacement, to others rather than transferring it back to the plaintiff after the termination of the contract whereby the plaintiff was to purchase the wet licence onto which LEF1921 was endorsed. The plaintiff claims damages being either the value of the endorsement or the loss of income which might have been earned if the plaintiff had been able to fish pursuant to the endorsement. The defendants objected to the plaintiff being granted leave at that late stage to adduce expert evidence but an order was made. An order was also made that the plaintiff give discovery of tax returns from 1988 to 2002 which tax returns would, if they existed, have been relevant in relation to the amount which the plaintiff was able to earn from his fishing activities. Counsel for the plaintiff who appeared at the hearing evidently believed that there were such returns and the order was made. The order required discovery to be given by 23 December 2002 and expert evidence to be served by 20 December 2002. The order for discovery was not complied with. No expert evidence was served on or before 20 December 2002 despite the fact that the court had been informed that the plaintiff wished to adduce expert evidence.
13 On 8 January 2003 the plaintiff's solicitors served the defendants' solicitors with Mr Paxton's second supplementary affidavit of discovery, sworn on 2 January 2003, which disclosed a number of additional
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- discoverable documents relating to his income, but this was not an affidavit which complied with the order for discovery which had been made by Justice Barker on 16 December 2002.
14 On 23 January 2003, witness statements were served by the plaintiff on the defendants' solicitors. Three of the statements were statements which related to the value of the endorsement. I was informed by counsel for the plaintiff that they contained the disclosure of evidence by fishermen about what they had paid for fishing licences or endorsements, and there was some opinion evidence about earnings which might be earned under them. The evidence about what other fishermen paid for such licences or endorsements must have been proffered as comparable sales evidence on which an expert would rely to express an opinion about the value of the endorsement. However, there was no disclosure of any such opinion evidence. (Counsel for the plaintiff appearing before me informed me that now, the intention of the plaintiff was that no such evidence would be led, and that the plaintiff was prepared to abandon, the conversion claim. It has not yet been abandoned).
15 On 4 February 2003 a letter was sent by the plaintiff's solicitors to the defendants' solicitors stating that income tax returns for the period 1988 to 2002 were being prepared. This was somewhat surprising given that the plaintiff had agreed to give discovery of tax returns at an earlier date. It seems likely that counsel appearing for the plaintiff in December 2002 did not know that there were no income tax returns.
16 Then, on 5 February 2003, the plaintiff's solicitors wrote to the defendants' solicitors a short letter enclosing three important documents and stating that they were "by way of further discovery". These were important documents because they directly concerned the question about whether or not Mr Paxton owned, or had a beneficial interest in, LEF1921 before the collateral agreement was entered into. Given that it is Mr Paxton's case that he was the beneficial owner of LEF1921 when he entered into the collateral agreement, the documents excited the defendants' interest. Some of the material in them appeared to contradict Mr Paxton's contention that he was the owner of LEF1921. At the least, the documents opened up several lines of enquiry.
17 The three documents were, a letter from Mallesons Stephen Jaques to M J Hayter & Co dated 12 June 1992, a facsimile from Mr Paxton received by Ferrier Hodgson on 10 July 1992, and an undated letter from Mr Paxton to Ferrier Hodgson. The events set out in these documents are complicated. Mallesons Stephen Jaques were acting for receivers of a
(Page 8)
- company called "Australian Pacific Processes Ltd" ("APP"). It seems that the receivers were selling a LFB "Panama" pursuant to their powers, and Mr Paxton was contending that the receivers were "unable to sell the vessel" due to the existence of an agreement of 10 January 1989 and purported contract dated 28 November 1989. The "Panama" is the vessel referred to in [5] of Master Bredmeyer's reasons for decision. I should also mention that M J Hayter & Co were the solicitors acting for Mr Paxton. The letter from Mallesons Stephen Jaques also revealed that Mr Paxton had previously retained other solicitors namely Glynn & Gray and Ian R Farquhar & Co.
18 It would be pointless for me to try to summarise the issues discussed in these three documents. Suffice it to say that in Mr Paxton's facsimile received by Ferrier Hodgson on 10 July 1992, Mr Paxton wrote that there was a contract dated 10 January 1989 between APP and himself, whereby APP "accepts scallop endorsement 1626 licence 1921 as payment of $35,000 part payment of $200,000 debt". He also wrote that "APP give acknowledgment of $200,000 debt paid - letter from APP 22 Aug 1989" and "record of intention between APP and Mark Paxton - that Mark Paxton representing Sanobach Pty Ltd will purchase single rig endorsement for $35,000 from APP 28/11/89". On the second page of this same facsimile there is a statement that "Paxton's company, Sanobach agreed to pay the $35,000 owed by Paxton to APP in 24 months from 28 November 1989 plus int. accruing at the rate of 20%". On p 3 there is a statement "I repeat APP accepted on 10th Jan 1989 the 'eno' as payment of $35,000 not security. Sanobach agreed to purchase the endorsement in contract 28/11/89. This must now be the only valid document, as the mortgage exists on the basis of a non existence (sic) debt and acknowledged by repeated reference to a false statement 'security for', 'to secure'."
19 The letter ended with a threat to commence proceedings to obtain an injunction.
20 It is unnecessary for me to decide what conclusion should be drawn from this material but it most certainly raised questions about whether Mr Paxton was the owner of LEF1921 at the time of the collateral agreement. It appears from Mr Paxton's facsimile that the endorsement was transferred to APP early in 1989 and that, on one reading of the material in the facsimile, this was then transferred back, not to Mr Paxton, but to a company called Sanobach Pty Ltd. There may be other material in the three documents which suggests otherwise, but it was certainly enough to cause the defendants to make further enquiry about the
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- ownership issue. However, there were then only a few days left before the trial was to commence. No explanation was given for the late production of this highly relevant information. As a result, and over the objection of the defendant, I granted the plaintiff leave to file an affidavit providing an explanation. Mr Paxton swore an affidavit on 1 July 2004 in which he said: "Prior to 19 January 2003 I did not believe that my ownership of the unit being Concession No 1626, was in issue in these proceedings. I therefore gave no thought to the Mallesons documents whether as being relevant, discoverable or at all until 19 January 2003." The reference to Concession 1626 is explained in another affidavit as being a reference to LEF1921. The "Mallesons documents" were defined earlier in Mr Paxton's affidavit of 1 July 2004 as including a reference to the documents disclosed by the plaintiff's solicitors in their letter of 5 February 2003. Mr Paxton also said in his affidavit that he only became aware of the potential significance of the documents at a lengthy meeting with his barrister and his solicitors on Sunday 19 January 2003. The claim by Mr Paxton that he did not believe ownership to be an issue is a somewhat extraordinary claim to make. The statement of claim alleges in par 6 that the "Plaintiff remained the beneficial owner of" LEF1921. The defendant in its defence did not admit par 6 and therefore it was necessary for the plaintiff to prove that fact, which fact then sustained the plea in par 8 of the statement of claim that the plaintiff would "remain the beneficial owner" of LEF1921 after the third party was directed to transfer LEF1921 on to the defendants' wet licence.
21 Mr Paxton's affidavit suggests to me that preparation of the case for trial had only commenced in earnest in early 2003 and that the Sunday conference with counsel prompted the disclosure of the important documents disclosed on 5 February 2003. Even if counsel had only just been briefed, the solicitor for the plaintiff who had been conducting the litigation should have been alive to the issues in the case and the need to prove ownership of the endorsement. The affidavit of Mr Paxton of 1 February 2003 lends support to a conclusion that preparation of the plaintiff's case was dilatory.
22 As a result of the 19 January 2003 conference with counsel, the plaintiff subpoenaed Mallesons to produce documents. Mallesons responded to the subpoena and produced documents relating to this issue about ownership of LEF1921, some of which were documents which Mr Paxton should have discovered earlier.
23 As a result of the late disclosure of all of this material, an application was made before Barker J on 11 February 2003 by the defendants to
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- adjourn the trial and vacate the trial dates which had been set in February 2003. This application was supported by an affidavit sworn by Mr Mizen on 11 February 2003 which, inter alia, exhibited the material which had been revealed in the 5 February 2003 letter from the plaintiff's solicitor. The affidavit also complained about the fact that no expert evidence had been served. The trial was inevitably adjourned and the trial dates vacated.
24 On 28 February 2003 the defendants' solicitors wrote relating what they considered had been revealed in the documents sent to them on 8 February 2003 and asking the plaintiff's solicitors to now provide security for costs in view of the developments. The plaintiff's solicitors responded by disputing the defendants' view of the documents and disagreeing that security should be given.
25 There were then no dealings between the parties through the rest of 2003 and no steps were taken by the plaintiff to further the progress of the case to trial, although Mr Paxton did have some dealings with the Fisheries Department and was preparing income tax returns for the years referred to above.
26 Then, on 28 January 2004, Mr Blenkinsop died.
27 On 14 March 2004, after Mr Paxton had noticed the obituaries for Mr Blenkinsop, he made a telephone call to Mr Blenkinsop's daughter and, according to Mr Paxton, offered to discuss settlement of the case. The evidence on behalf of the defendants, via Mr Blenkinsop's daughter, is that Mr Paxton said he would not proceed with the action. It is not possible to resolve the difference between those two deponents, and nor does it much matter which version is correct save that the understanding Mr Blenkinsop's daughter had of the conversation explains why this application was not made immediately after Mr Blenkinsop's death.
28 On 8 April 2004 the plaintiff's solicitors wrote to the defendants' solicitors, enclosing an unsworn affidavit of Mr Paxton which, if sworn, might be seen as the response to Justice Barker's order that discovery of tax returns be given, which order he had made on 16 December 2002. This affidavit disclosed not only the tax returns, but a large quantity of additional documents some of which related to the issue about ownership of LEF1921. In all, there was nearly 100 extra documents referred to in this unsworn affidavit of discovery.
29 A notice of intention to proceed was then filed by the plaintiff. The defendants' solicitors, by letter dated 27 April 2004, expressed surprise at
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- the receipt of the notice of intention to proceed and stated their intention to make this application.
30 On 27 May 2004 the plaintiff's solicitors wrote to the Listing Coordinator of this Court asking for the matter to be restored to the callover list. There is no evidence that this was sent to the defendants' solicitors.
31 On 17 June 2004 the parties received a letter from the Court stating that there would be a listing conference on 25 June 2004. The defendants objected to the listing of the action for trial and indicate that this application should first be heard. I listed the action for trial in August 2004 and directed that this application be heard on 30 June 2004.
32 On 30 June 2004 (that is the morning of the hearing of this application) the defendants' solicitor received a letter from the plaintiff's solicitor enclosing Mr Paxton's sworn affidavit of discovery dated 23 April 2004. The plaintiff's solicitor apologised for not forwarding the affidavit earlier. This was the sworn version of the affidavit in unsworn form which had been sent to the defendants' solicitors by letter dated 8 April 2004.
33 That is the history of the matter since Master Bredmeyer's decision.
34 This application has to be approached on the basis that if the case had not been entered for trial within 14 days of Master Bredmeyer's decision, the action would have been dismissed. In my opinion it was entered for trial in circumstances where it should not have been entered for trial. I say this because it was patently clear that expert evidence had to be led about the value of the property which had been allegedly converted and about the income which Mr Paxton said he could have earned if the alleged conversion had not taken place. Accordingly the statement in the certificate of readiness that the plaintiff did not intend to adduce expert evidence at the trial was not correct. It was not correct because if the issue had been properly considered the conclusion must have been that expert evidence was necessary. I am not holding that the solicitor who signed the certificate deliberately signed a false certificate, because I have no evidence to support such a drastic conclusion. However, the certificate was signed, at least, without a proper consideration of the issues. Another statement in the certificate of readiness was to the effect that a written advice on evidence had been obtained by plaintiff from counsel who had signed the pleading or who was expected to be briefed to appear at the trial. Anyone who had given
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- advice must have turned his or her mind to the need for expert evidence. There is no evidence that there was any written advice from counsel dealing with the subject of expert evidence.
35 I have recently conducted a number of listing conferences (and one callover). I have discovered that it is not uncommon at a callover or listing conference, for some parties in some cases to claim that expert evidence is necessary notwithstanding the existence of a certificate of readiness stating that expert evidence was not to be led, or notwithstanding that no application to countermand had been made. Doubtless solicitors sign certificates of readiness in order to get their client into the queue of cases awaiting a date for trial. If a case is not in fact ready for trial, this is a most unsatisfactory course to follow and it should not happen. If the certificate of readiness says that a plaintiff does not intend to adduce expert evidence at the trial, then the court is entitled to act upon that representation. Such a certification, made in circumstances where no consideration has been given to the question, may amount to unprofessional conduct. I do not make any such finding here because I do not know the full circumstances. All I know is that the plaintiff's solicitor certified on 1 May 2002 that the plaintiff did not intend to adduce expert evidence at the trial, and then by December 2002 the plaintiff said he did intend to adduce expert evidence. As I have said, it appears to me to be obvious that expert evidence was required to support the claim for damages for conversion.
36 The late application for leave to adduce expert evidence partly prompted the application for the adjournment of the trial. The certificate of readiness also stated that discovery requested or ordered had been given. Mr Paxton had sworn an affidavit of discovery which he said was pursuant to O 26 r 1 which suggests that a request for discovery had been made, although no evidence of the request has been found. The parties certainly acted as though a request for discovery had been made and that is how the matter proceeded. Clearly, discovery had not been given of documents which were relevant to Mr Paxton's claim that he was the owner of LEF1921 at the time the collateral agreement was entered into. The certificate of readiness was doubtless signed by the solicitors on instructions that Mr Paxton had produced all relevant documents, but those instructions were not correct.
37 The result of the filing of the certificate of readiness and an entry for trial on 1 May 2003 was that the plaintiff avoided the striking-out of the action. The case should not have been entered for trial because the certificate of readiness should not have been signed. I do not decide this
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- application by reference to that point alone, but it is a relevant point to be taken into account. It is the starting point for the history after the last strike out application.
38 The late disclosure, on 8 February 2003, of the three documents referred to above produced a number of avenues of enquiry for the defendants, and the late disclosure fully justified the application to adjourn the trial. If the case had been prepared without delay the question of expert evidence, and the discovery issues, would have been properly and promptly dealt with and the trial could have proceeded in February 2003. Mr Blenkinsop was, at the time, alive to give evidence.
39 The allegations which the defendants face are serious ones. They include allegations of breaches of fiduciary duty. The complaints Mr Paxton made were also the subject of complaints by him to the police. The seriousness of the allegations against a party are relevant when considering the effect of delay.
40 The court has the inherent jurisdiction to strike-out an action for want of prosecution. The principles upon which the court is to act in deciding whether to strike-out an action for want of prosecution have recently been restated in Tipperary Developments Pty Ltd v The State of Western Australia [2004] WASCA 15. Five matters which should normally be considered are set out in [11] of the reasons for decision of the Full Court. I refer to them below.
41 In this case I am concerned with the delay which has occurred since Master Bredmeyer's decision. Already, at that stage, there was inordinate and inexcusable delay by the plaintiff causing the defendants some prejudice. However, at that time, Mr Blenkinsop was alive and able to give evidence. The case has since been delayed because of dilatory conduct on the part of the plaintiff. Mr Blenkinsop is not now here to give evidence. The plaintiff submits that there will be no prejudice because Mr Blenkinsop has filed a statement which may stand as his evidence-in-chief and that the plaintiff will not be objecting to the tendering of his statement under s 79C of the Evidence Act. The plaintiff contends that it will be the plaintiff who will be prejudiced because the plaintiff will not be able to cross-examine Mr Blenkinsop. In my opinion, that is not an answer to the defendant's complaint about prejudice. The impression made by a witness in the witness box, and the ability of that witness to satisfactorily answer questions in cross-examination, is an important part of the process which allows a court to resolve a dispute about whether or not an oral agreement was entered into. In a case where
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- two witnesses are in disagreement about the existence of, or the terms of, an oral agreement, then it is usually desirable for the trial Judge to direct that the written statement not stand as the evidence-in-chief and that both witnesses give oral evidence. That course cannot be followed in this case. If the case is allowed to proceed the contest will be between the written and untested statement of Mr Blenkinsop and the written and oral testimony of Mr Paxton. In Duncan v Lowenthal [1969] VR 180 the Full Court of the Supreme Court of Victoria dealt with a submission that a party would make a concession about the evidence which would have been given by witnesses no longer available to give evidence. The Full Court, at 185, when speaking about the significance of the concession said:
"It would not be capable of carrying the persuasion of evidence given by witnesses present in person, and it is impossible to know whether or how the witnesses could have helped either in respect of the cross-examination of the plaintiff's witnesses, or in respect of the evidence for the defence … Such a venture as endeavouring to compensate for the absence of witnesses by trying to formulate the evidence they would have given and treating the record thus produced as evidence was calculated to exhibit many deficiencies."
43 I should finally consider the five paramount matters referred to in the Tipperary case. The length of the delay was inexcusable and inordinate, even in 2002. There has been further such delay. There has been no satisfactory explanation for the delay since 2002. No submissions were made levelling any serious criticism at the defendants' conduct of the litigation since 2002. The defendants are now seriously prejudiced by the delay.
44 In my opinion the position has now been reached where, because of the plaintiff's delay, the defendants will not now be able to have a fair trial. The hardship to the defendants if the case proceeds is now plain to see. A dismissal of the claim will cause hardship to the plaintiff. However, if the claims are dismissed the plaintiff's hardship will have
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- been brought about by the plaintiff's conduct. It is the plaintiff who must suffer the hardship in those circumstances.
45 The plaintiff's failure to properly prepare for trial in February 2003, the plaintiff's late disclosure of highly relevant documents close to the trial date in circumstances where the court had already decided that the plaintiff had been guilty of inordinate and inexcusable delay causing some prejudice, and the plaintiff's delay when he was aware that he was pursuing serious allegations against an elderly opponent in ill-health, lead me to the conclusion that the plaintiff's delay was not only serious, inordinate, and inexcusable but it was also contumelious. The delay is coupled with, and has produced a situation of, serious and irremediable prejudice to the defendants. If this is not a case for striking-out a claim because of delay and want of prosecution then it is hard to imagine a case which would succeed.
46 I am of the option that the plaintiff's action should be struck-out.
47 As a result of my decision to strike-out the action for want of prosecution, it is unnecessary for me to decide the application for security for costs.
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