Paxton v Blenkinsop Nominees Pty Ltd - [2002] WASC 93

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: PAXTON -v- BLENKINSOP NOMINEES PTY LTD & ORS [2002] WASC 93

CORAM: MASTER BREDMEYER

HEARD: 9 APRIL 2002

DELIVERED : 26 APRIL 2002

FILE NO/S: CIV 1001 of 1996

BETWEEN: MARK ASHLEY PAXTON
Plaintiff
AND
BLENKINSOP NOMINEES PTY LTD
First Defendant
JIM FAY
Second Defendant
KERRY FAY
Third Defendant
FRED BLENKINSOP
Fourth Defendant

Catchwords:

Dismissal of application for lack of prosecution - Relevant principles

Legislation:

Nil

Result:

Springing order made

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):

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229
Birckett v James [1978] AC 297
Lewandowski v Lovell (1994) 11 WAR 124
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
Ulowski v Miller [1968] SASR 277

Case(s) also cited:

Jakovljevic v L & B Doslov [2000] WASCA 131
Pierce v Securities Exploration Corporation Pty Ltd, unreported; FCt of WA; Library No 2872; 15 April 1980
Stun v Zelsjska [1996] 1 WLR 1270
The State of Western Australia & Ors v John Asciak & Anor [1998] WASCA 81
Tolley v Morris [1979] 2 All ER 561

MASTER BREDMEYER: This is an application by the first and fourth defendants to dismiss the plaintiff's action for lack of prosecution. The second and third defendants have not been served with the writ and, hence, play no part in the action or on this application. The defendant's application is made under the inherent jurisdiction of the court and the relevant authorities are digested at [3.0.3] and following of Seaman. I propose to quote from three of the leading authorities, all of which have been approved by our Full Court in Lewandowski v Lovell (1994) 11 WAR 124 and in other Full Court authorities. Lord Diplock in Birckett v James [1978] AC 297 at 318 stated:
""The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, 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."
Diplock LJ, as he then was, in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 at 259 ‑ 260 said:
"What then are the principles which the court should apply in exercising its discretion to dismiss an action for want of prosecution upon a defendant's application? The application is not usually made until the period of limitation for the plaintiff's cause of action has expired. It is then a Draconian order and will not be lightly made. It should not in any event be exercised without giving the plaintiff an opportunity to remedy his default, unless the court is satisfied either that the default has been intentional and contumelious, or that the inexcusable delay for which the plaintiff or his lawyers have been responsible has been such as to give rise to a substantial risk that a fair trial of the issues in the litigation will not be possible at the earliest date at which, as a result of the delay, the action would come to trial if it were allowed to continue. It is for the defendant to satisfy the court that one or other of these two conditions is fulfilled. Disobedience to a peremptory order of the court would be sufficient to satisfy the first condition. Whether the second alternative condition is satisfied will depend upon the circumstances of the particular case; but the length of the delay may of itself suffice to satisfy this condition if the relevant issues would depend upon the recollection of witnesses of events which happened long ago."
Bray CJ in Ulowski v Miller [1968] SASR 277 at 280 said:
"In these cases, as perhaps might be expected, a variety of opinions has been expressed in language differing in emphasis and sometimes in substance. I do not think it necessary or desirable to attempt to canvass them case by case. 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."
The fourth defendant, Mr Fred Blenkinsop swore an affidavit in support of this application on 21 December 2001. The plaintiff, Mr Paxton, swore an affidavit in opposition on 3 April 2002. That affidavit sets out the plaintiff's case in some detail and annexes, I suspect, most of the documents on which the plaintiff relies to prove his case. The plaintiff's case, as it appears from the statement of claim and from his affidavit in broad summary is as follows. The plaintiff is a commercial fisherman and has been so since 1981. In 1986, he was issued with a limited entry fishing (LEF) licence, number 1921. This entitled him to fish in the Abrolhos Islands Otter trawl fishery for scallops by means of one net (single rig). The licence mentions the boat to which it was attached; namely, "Apollo XI", registration number LFBG298, which stands for "licensed fishing boat Geraldton 298". This LEF is not a licence which can stand alone. It has to be endorsed on a licensed fishing boat licence, otherwise known as a "wet licence". In 1988, the plaintiff allowed his LEF1921 to be endorsed onto a wet licence then owned by Mandare Holding Pty Ltd (Mandare), a company run by a Mr Boschetti. Mandare is not a company connected with the defendants. The plaintiff says he remained the beneficial owner of LEF1921. He transferred the endorsement onto Mandare's wet licence and then leased the licence back from Mandare which enabled him to fish for scallops in 1988.
On 9 November 1989, the plaintiff entered into a written offer and acceptance agreement with the defendants, who operated a partnership under the name of Victory Fishing. Under that agreement, the plaintiff was to lease five licences from Victory Fishing at $750 per month and then, on 30 November 1990, purchase those licences from the defendants for the sum of $110,000. The five fishing licences the subject of that agreement included, relevantly, FBL1050 (LFBG249) and another scallop licence, LEF licence 1890, which also was for one net; ie, a single rig. That agreement was subject to two special conditions. One was that it was conditional upon the Fisheries Department transferring those five licences to the vessel "Panama", which was the plaintiff's vessel, and, secondly, conditional upon the Fisheries Department's approval of the transfer of all licences to the plaintiff at the settlement date of 30 November 1990. The first condition was met. The five licences were transferred to the plaintiff's vessel, Panama, in May 1990.
The plaintiff says that under an oral collateral agreement, LEF1921was to be endorsed on the Blenkinsop Nominees' wet licence 1050. This enabled the plaintiff to fish with two scallop nets for the 1990 Abrolhos scallop season, because each of the two LEF's permitted the licensee to fish with one net. The plaintiff says that under this oral agreement, LEF1921 was to remain his property; that is, the defendants would hold it on trust for him and he would be the beneficial owner. Other terms of that oral agreement were that the defendants would at all times maintain the currency and validity of that licence and would not, without the plaintiff's express consent or authority, do anything which would invalidate or cause the loss of the licence. LEF1921 was transferred onto the defendants' wet licence.
The plaintiff was supposed to pay monthly payments of $750 for the use of the defendants' licences, commencing from May 1990. According to the defence, only one such payment was made. The plaintiff was also supposed to purchase the licences on the settlement date of 30 November 1990 by a payment of $110,000. This payment was not made. The plaintiff says he has a lawful excuse for not making that payment; namely, that the second condition in the offer and acceptance agreement was not met. The Fisheries Department would not approve a transfer of all five of the defendants' licences to the purchaser. The plaintiff's case is not that he submitted a transfer of the licences to the Fisheries Department and it was rejected, but rather that in November 1990 the Fisheries Department resolved, at a public meeting in Onslow, to continue its policy of non‑transferability of the Onslow prawn trawl licences. Thus, he says, the offer and acceptance did not become unconditional and neither party to the agreement had any continuing obligations to the other in relation to the completion of the sale and purchase of the various licences.
Shortly after that event, the plaintiff approached Baseking Pty Ltd (Baseking) to see whether that company would be prepared to enter into a lease arrangement with the defendants whereby Blenkinsop Nominees' wet licence and endorsements could be commercially exploited by Baseking. Baseking and Blenkinsop Nominees entered into an offer and acceptance on 11 April 1991 whereby Baseking could use Blenkinsop's fishing boat licence 1050 (or LBFG249) with access to Onslow areas 2 and 3 for $45,000 payable by instalments in the period April and May 1991. That suited the plaintiff well, because at that time he was skippering the fishing vessel "Kachula K", owned and operated by Baseking. He said that the fact that the prawn licence was not transferable was not an impediment to that arrangement, because the offer and acceptance stated that the vendors gave the purchaser a power of attorney for 99 years. Baseking paid $1,000 only of the purchase price and settlement did not take place.
On 20 July 1990, LEF1921 was cancelled. The single rig unit which was associated with that licence was added to the single rig unit associated with LEF1890. Thus, licence 1890 became a double‑rig licence. Either licence could have been cancelled, but number 1921 was chosen by the defendants for cancellation at that time.
On 3 May 1991, the two gear units associated with the twin‑rig licence number 1890 were split in two. One gear unit was transferred to David James McDonald for $25,000. The settlement date was 28 June 1991. The other gear unit was transferred to David Guy Thompson also for $25,000 on 5 August 1991. On 12 March 1992, licence number 1890 was cancelled due to those two transfers.
The plaintiff says that there has been a breach of the collateral agreement by the defendants in cancelling his licence and later selling the benefit of it to one of those two purchasers for $25,000. The plaintiff seeks a declaration that the licence was at all times held by the defendants on trust for him. He seeks damages and compensation for loss on account of profits for breach of trust. The damages and compensation include the $25,000 mentioned, plus a loss of profits for not being able to use that licence which he estimates at $100,000 per year, multiplied by 10 years.
The first defendant says that it did not get the benefit of the plaintiff's licence number 1921 for nothing. The consideration for the transfer is set out in the first defendant's letter to the Director of Fisheries of 3 April 1990. That letter is signed by Mr and Mrs Fred Blenkinsop and has the seal of the first defendant affixed to it. It reads:
"Director of Fisheries
We the undersigned agree to the transfer of the Abrolhos Scallop Licence No 1921, currently in the name of Mandare Holdings P/L and on the LFBF780, to the LFBG249 in the name of J.J & K.A. Fay and Blenkinsop Nominees P/L.
We also agree that during 1991 we will offer a 'Wetfish Licence' to the Fisheries Buy Back Scheme.
If a "Wetfish Licence" is not offered to the buy back scheme prior to the 1991 Abrolhos Scallop season we agree that we will not fish the CFBG249 in the 1991 Abrolhos Scallop Fishing."
The same condition was imposed by the Fisheries Department in order to implement the offer and acceptance between the plaintiff and the defendants. Under that agreement, the defendants were to transfer fishing boat licence 1050 (LFBG249) from the defendants' vessel which was the "Victorious" to the plaintiff's vessel the "Panama". The terms for this approval were set out in a letter from the Executive Director of the Fisheries Department to the defendants on 23 July 1990 which reads:
I refer to the approval to replace LFBG249 'Victorious' with 'Panama'. This approval was given on the following understanding:
1.The single rig Abrolhos Islands Trawl Licence be transferred from LFBF780 ex 'Tonnarella' to LFBG249 'Victorious'. These two licences were amalgamated into a twin rig trawl endorsement to enable the 'Panama' to be licensed as the replacement boat. The Limited Entry Fishery Licence No. 1921 (ex LFBF780) was cancelled on this amalgamation and the Limited Entry Licence No. 1890 (LFBG249) is now a twin rig trawl endorsement.
2.Under the current Ministerial licensing guidelines (Section 5.2.2 of the enclosed Management Paper No. 21) the above licensing steps require that the Fishing Boat Licences for LFBF780 ex 'Tonnarella' be cancelled. However, this requirement was waived by the Minister on the understanding that a 'wetline' licence was to be offered to the Fisheries Adjustment Buy‑Back Scheme prior to the 1991 season. The Buy‑Back Scheme is currently accepting offers and an application form is enclosed. The round is due to close on 31 August 1990. This condition needs to be met prior to LFBF249 'Panama' being able to operate in the 1991 season.
I look forward to your reply. When replying please quote reference 406/67."
I note in that letter that the reference to the "Tonnarella" refers to Mandare's fishing vessel.
Under the second term of that agreement, the defendant was required to surrender a wet licence by selling it back to the Fisheries Department under that department's Adjustment Buy‑Back Scheme prior to the 1991 season. This happened, but not in 1991. The defendants sold the wet licence LFBG249 to the Fisheries Department under the fisheries' adjustment scheme for $22,500 on 9 March 1993.
From a review of the pleadings, I consider that many of the material facts in this case are not in issue. The basic facts as to what happened are not in issue and are set out in the documents annexed to the plaintiff's affidavit. One fact not in issue is that the plaintiff's licence LEF1921 was transferred from the Mandare wet licence to the defendants' wet licence in 1990, with the defendants' consent. A fact in issue is whether the plaintiff retained the beneficial ownership of that licence after the transfer. The plaintiff asserts that he did and the defendants, in par 5(f) of the defence, assert that he did not. I consider that most of the dispute in this case will be over the legal interpretation of facts which are not in issue. A big issue here concerns the plaintiff's non‑payment of the monthly lease fees of $750, apart from one payment, and the plaintiff's non‑payment of the purchase price for the licences of $110,000 due on 30 November 1990. The plaintiff says nothing about the non‑payment of the lease fees, but says, in relation to the non‑payment of the $110,000, that the agreement for sale was frustrated by the Fisheries Department's policy decision not to approve any transfers of Onslow prawn trawl licences. As a result of that, the plaintiff says it became impossible for the defendants' licences to be transferred to him, hence, he was absolved from all liability under the offer and acceptance agreement. The defendants, on the other hand, say that the plaintiff breached the agreement in failing to pay the $110,000. The defendants say that the policy set by the Fisheries Department could readily have been circumvented by the vendor giving to the purchaser a 99‑year power of attorney to access its fishing licences. The defendants say that they suffered loss as a result of the plaintiff's breach of that agreement. If the plaintiff had honoured that agreement, he would have acquired the licences the subject of the agreement, including LEF1921 endorsed on wet fishing licence 1050 (LFBG249), and he would have had the obligation in 1991 to surrender one of the fishing licences by way of selling it back to the Fisheries Department under the Fisheries' Adjustment Buy‑Back Scheme. In other words, he would have had the benefit of one thing and the detriment of the other. Instead, the defendants retained the benefit of LEF1921, but suffered the detriment of the loss of their fishing boat licence.
I turn now to the history of this action and the various delays. The cause of action probably arose on 30 November 1990, when the defendants retained the plaintiff's licence LEF1921. The defendants, and here I refer to the first and fourth defendants, do not contend that the plaintiff has been guilty of contumelious delay. "Contumelious" means an insolent approach or abuse: ReJokai Tea Holdings Ltd [1992] 1 WLR 1196 at 1207. The defendants do say, however, that the plaintiff has been guilty of inordinate and inexcusable delay in getting this action to trial. An action that is liable to be dismissed on the grounds of inordinate and inexcusable delay should not be so dismissed prior to the expiration of the limitation period, save in exceptional circumstances: Birckett v James at 322. In this case, the limitation period has expired. Inactivity on the part of a defendant provides no excuse for the plaintiff: see Birkett v James at 813. Time that has elapsed pre‑writ is of some relevance.
"[T]ime which has elapsed before the issue of a writ within the limitation period cannot, of itself, constitute inordinate delay, however much the defendant may have already been prejudiced by the lack of early notice of the claim against him, the fading recollections of his potential witnesses, their death, or their untraceability. To justify an action for want of prosecution, the delay relied on must relate to time which the plaintiff allows to lapse unnecessarily after the writ has been issued. A late start makes it more incumbent on the plaintiff to proceed with all due speed and a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued: Birkett v James at 322 per Lord Diplock."
In this action, the writ issued on 3 January 1996 and was generally endorsed. It was prepared by Dwyer Durack. On 26 August 1996, the plaintiff filed a notice of acting in person. On 10 October 1996, the first and fourth defendants (the defendants) were served with copies of the writ. On 28 October 1996, Alan Mizen, the defendants' solicitor, entered an appearance on their behalf. The plaintiff was obliged to file and serve a statement of claim by 11 November 1996. Nothing happened.
On 8 December 1997, the plaintiff filed a notice of intention to proceed. Nothing happened for a further 12 months. On 10 December 1998, the plaintiff served on the defendants' solicitor a statement of claim. That statement of claim was way out of time. By a chamber summons dated 17 December 1998, the plaintiff, in person, applied for an extension of time within which to file a fresh statement of claim. On 13 January 1999, I granted leave to the plaintiff to file a minute of fresh statement of claim on or before 26 February. The plaintiff thereupon engaged his present solicitors, Leask & Co, who got on the record and who filed a substituted statement of claim on 25 February 1999. On 29 March 1999, the defendants pleaded a defence to that statement of claim.

On 28 April 1999, the plaintiff filed and served a request for further and better particulars of that defence. On 31 May 1999, the Court ordered the defendants to provide answers to that request within 14 days. Those answers were filed on 16 June 1999. On 7 July 1999, the plaintiff's solicitor wrote to the defendants' solicitor, stating that certain of the answers were inadequate. On 21 July 1999, the plaintiff filed and served a chamber summons for further and better answers to the request for particulars. On 22 July 1999, the defendants filed further answers to the plaintiff's request for particulars. The plaintiff's solicitor was not happy with those answers, and, on 21 July 1999, filed and served a chamber summons for further and better answers. That application came on for hearing before me on 23 August 1999 and I ordered the defendants to supply certain information. The defendants at that time were represented by a barrister. Unfortunately, according to Mr Mizen, his barrister did not inform him of those orders and he did not know of them until 1 February 2000 when he received a copy of the extracted orders from the plaintiff's solicitor.
On 17 March 2000, the plaintiff filed a chamber summons for a springing order on the ground that order (3) of my orders of 23 August 1999 had not been complied with. On 27 March 2000, Mr Mizen wrote to the plaintiff's solicitor providing the answer to order (3).
On 9 August 2000, the plaintiff filed his affidavit of discovery which was served on 14 August, together with a request for discovery from the defendants. On 22 September 2000, the plaintiff filed a chamber summons for discovery by the defendants, which was served on 27 September. It was returnable on 3 October 2000, at which time it was adjourned for 10 days. On 6 October 2000, the defendants filed their affidavit of discovery. On 3 November, Mr Mizen provided the plaintiff with a copy of the documents set out in the affidavit of discovery.
On 19 July 2001, and again on 7 August 2001, the plaintiff's solicitor phoned Mr Mizen to see if his clients were interested in having an informal conference. He mentioned at the time that the plaintiff had instructed him to enter the matter for trial. Mr Mizen advised that his clients had no interest in having an informal conference.
On 26 October 2001, the plaintiff lodged entry for trial papers with the court, but the documents were rejected due to two defects set out in a letter from a Registrar dated 29 October 2001. That letter was not posted to Mr Leask, but was left in a pigeonhole in the registry. He was not aware of the letter until he collected it on 12 November 2001. He then amended the entry for trial papers to meet the objections, but prior to re‑lodging the same, it came to his attention that he needed to file and serve a notice on intention to proceed. He did that on 14 November 2001. While the one‑month period given in that notice was running, Mr Mizen, on 28 October 2001, applied by way of chamber summons to have the plaintiff's action dismissed for want of prosecution.
The defendants make no complaint about delays in the progress of the action between 26 February 1999 and 3 November 2000. Some of the delays in the action in that period were caused by the defendants. The main periods of delay caused by the plaintiff in the progress of this action are as follows:
(a)delay in serving the writ
3.1.96 - 18.10.96 - 9 months
(b)delay in serving statement of claim
11.11.96 - 10.12.98 - 2 years 1 month
(c)delay in serving substituted statement of claim
11.12.98 - 25.2.99 - 2 months
(d)delay since 3 November 2000 and this application to dismiss
18.12.01 - 13 months
Total plaintiff‑caused delays - 4 years 1 month
The defendant says that the agreement to purchase the fishing licences was made in November 1989 some 12 years ago. By virtue of par 8 of the substituted statement of claim the agreement on which the plaintiff relies is said to be partly oral, partly written and partly to be inferred from the conduct of the parties.
Mr Blenkinsop says he is 73 years of age. His wife who handled a lot of the paperwork concerning the transaction with the plaintiff and who will be a witness if the matter proceeds is 67 years of age. On 4 July 2001 she suffered a stroke. As a result, her memory in relation to names is not as good as it used to be. Mr Blenkinsop says he is suffering from thrombosis which makes it difficult for him to walk around and his doctor has told him that this condition will probably last for at least three months. He further says:
"I believe our memory of the events surrounding these transactions is still reasonably good but our memories are bound to have faded compared to what they would have been if this action was not delayed by the plaintiff. This is especially so in relation to my wife after my strike. Further, the business broker handling the sale of the licences referred to in this action was unable to be located by my solicitor when he attempted to contact him in February 2000.
On 7 January 1998 many of our records that I believe included financial records relating to the business of the Victory Fish partnership were destroyed in a fire."
What is the plaintiff's explanation for these serious delays? In his affidavit he states that in March or April 1992 he was told that his fishing licence 1921 had been cancelled and the net entitlement which went with it had been sold to either McDonald or Jackson. He complained about this in a telephone conversation to Mr Blenkinsop. In May 1992 he contacted the Fisheries Department and advised them that their licensing system had been used to commit what was, in his opinion, a fraud. On 15 June 1992 he faxed a series of questions to solicitors for the second and third defendants. In the same month he approached M J Hayter & Co, solicitors of Fremantle, with a view to establishing that he was the beneficial owner of the scallop unit. On 26 June 1992 the defendants' then solicitors, Altorfer & Stow, advised that Mr Blenkinsop did not acknowledge Paxton's claim to the money in question. In November 1992 the plaintiff called at the offices of Altorfer & Stow and spoke to their solicitor and advised him that he considered the actions of the first and fourth defendants amounted to fraud. He also spoke about the same time to the solicitors acting for the second and third defendants. At the end of June 1992 he returned to Carnarvon for the scallop season. At the end of that season, and after a holiday in Bali, he attempted to pick up communications again with the respective solicitors for the first, second, third and fourth defendants. In early 1993 he discussed his beneficial ownership of the unit with Mr Peter Rogers of the Fisheries Department. The Fisheries Department wrote a letter explaining the transfer of the fishing boat licences to solicitors Frank, Unmack & Cullen on 18 February 1993.
In late 1993 the plaintiff approached Monty House, the then Minister for Fisheries. He wrote to him on 8 December 1993 and received a responsive letter dated 11 January 1994. The Minister replied on 11 January 1994 in these terms:
"In response to your letter of 8 December 1993, regarding disputed ownership of a net endorsement in the Abrolhos Islands Trawl Fishery, I have had the Fisheries Department check all of the licence and gear unit transfers involved.
As all of the transfer applications have been signed by the correct people, ie the holders of the fishing boat licences, including the original one by yourself, I cannot direct the Department to reverse any of the transfers. Nor can I issue you an Abrolhos Islands Trawl Limited Entry Fishery licence.
As you have not held an official licence in this fishery since you transferred yours to Mandare Holdings, a dispute over any unofficial form of ownership is a civil matter. Should you choose to seek legal redress, the Executive Director of Fisheries will abide by the court's direction."
Mr Paxton then approached the State Ombudsman and the Fisheries Department wrote a long letter on 14 February 1994 to the Ombudsman setting out the story of the transfers of the licences etc.
In the same year the plaintiff approached the Legal Aid Commission for assistance in funding a legal civil action against the defendants. The Commission provided limited assistance in the form of an opinion from W J Millar of counsel, which opinion was favourable. Mr Paxton then attempted to find a firm of lawyers who could assist him. All the firms he approached requested large sums of money, between $15,000 and $40,000 to take the case on and he did not have anything like that sort of money. He approached Dwyer Durack at the recommendation of the Litigation Assistance Fund, which firm drafted the generally‑endorsed writ and attended to its issue and service. He was not able to pay anything for their services. Later, he says, the Litigation Assistance Fund ceased operating.
In 1994, he approached he Fraud Squad and had a number of meetings with them and was advised that the matter was being investigated. On 3 June 1997, the officers of that squad interviewed the second, third and fourth defendants and Jim Mace, the broker who was involved in the sale of both scallop units. Copies of those interviews are annexed to his affidavit. On 3 June 1997, the Director of Public Prosecutions wrote to the Criminal Investigation Branch that there did not appear to be any prospects of success for a criminal prosecution. He said the case was not an appropriate one to prosecute and referred Mr Paxton to the civil courts.
As mentioned, Mr Paxton first approached the Ombudsman in late 1993. He returned to him on a number of other occasions to obtain more information. He received a letter from the Ombudsman dated 29 May 1998, which is annexed to his affidavit.
He said that in 1996 when the writ was issued he was away working as a mate on a scallop trawler. This required him to be away from Perth for many months. He was unable to earn enough money to obtain legal representation and had to prepare the statement of claim himself. He approached a number of law firms and organisations for assistance but was unsuccessful. He mentions three firms of lawyers. He spent many hours researching civil procedure to find out how to draft a statement of claim. He prepared and filed the initial statement of claim on 7 December 1998. He approached Legal Aid again and on 13 January 1999 they referred him to Leask & Co. Following discussions with that firm they prepared the substituted statement of claim on 25 February 1999. Mr Leask agreed to take the case on without requiring any initial payment of costs. He instructed Mr Leask to have the matter brought to mediation or trial as quickly as possible. Mr Leask says in an affidavit that delays since January 1999 have been caused by him rather than his client. He mentioned pressure of (other) work. He says that although it is difficult to communicate with Mr Paxton when he is away fishing, he at all times wanted to progress the action.
I consider the plaintiff's delay in the progress of this action has been inordinate and inexcusable. I acknowledge general prejudice to the defendants as stated by Mr Blenkinsop in his affidavit, but, as stated above, I do not consider that too much should be made of this because I do not consider that this case will turn much on oral evidence or on missing documents, but rather on the legal interpretation of known facts. I have to balance the hardship to the plaintiff if this action is dismissed against hardship to the defendants if it is allowed to continue. A factor of some weight in favour of the plaintiff is that, despite his dilatoriness, he attempted to enter it for trial before the defendants' present application was brought. The application to enter failed due to two requisitions from the Registrar, which were minor and easily capable of remedy, and the failure to give one month's notice of intention to proceed. It was the giving of that notice which I suspect prompted this present application from the defendants. Had the plaintiff successfully entered the action for trial a few months earlier, the defendants' application could not have been brought. Weighing up all relevant factors, I do not consider that the defendants are at a substantial risk that it would not be possible for them to have a fair trial due to the plaintiff's delays in this action. I consider that the hardship to the plaintiff if the action were dismissed would exceed the hardship to the defendants if it is allowed to proceed. Hence, I do not proposed to accede to the application. The plaintiff will be ordered to achieve entry on or before a certain date, failing which the action will be dismissed. I will hear the parties on this and on costs.