Randall v Hamersley Iron Pty Ltd

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RANDALL -v- HAMERSLEY IRON PTY LTD [2006] WADC 49

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 2 FEBRUARY 2006

DELIVERED : 7 APRIL 2006

FILE NO/S: CIV 2186 of 1998

BETWEEN: PHILLIP CHARLES RANDALL
Plaintiff
AND
HAMERSLEY IRON PTY LTD (ACN 004 558 276)
Defendant

Catchwords:

Practice and Procedure - Western Australia - Application to dismiss for want of prosecution

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr B Nugawella
Defendant: Mr J Ley

Solicitors:

Plaintiff: Cameron Eastwood
Defendant: Freehills

Case(s) referred to in judgment(s):

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543
Birkett v James [1977] 2 All ER 801

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: By its application of the 26 May 2005 the defendant seeks to have the action dismissed for want of prosecution. The power of a court to so dismiss was canvassed by Lord Diplock in Birkett v James [1977] 2 All ER 801 at p 805. In so doing he drew upon a test formulated in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 1 All ER 543 which he expressed as follows:
"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 pre-emptory 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."
It is for the applicant to establish that it is appropriate for the court to dismiss the action. By the action the plaintiff seeks damages as a result of what he contends was the defendant's breach of contract and of duty of care. The circumstances giving rise to the causes of action being that the plaintiff found himself in a difficult position as a result of his fellow workers and the defendant being and having been engaged in an industrial dispute.
In its defence, the defendant traverses the allegations made by the plaintiff and at various points contends that the plaintiff's case is flawed. The defendant makes a limited number of allegations of material fact as follows:
1.At par 4, where it relates terms of the plaintiff's employment by reference to the content of a particular letter, a specified and unspecified variations of those terms and a particular industrial award;
2.At par 6, where it alleges that on a particular date the plaintiff resigned or purported to resign from an industrial organisation;
3.At par 9, where it alleges that it was obliged under the Industrial Relations Act 1979 and its contract with an individual identified as Beales, to continue to employ Beales whether or not he was a member of a union;
4.At par 10, where it alleges that on a particular date an individual identified as Haydock had attended for work;
5.At par 16, where it alleges that on a particular date it circulated a particular letter to its employees, the content of which it would refer to at trial;
6.At par 18, where it alleges that a letter was sent by an identified agent;
7.At par 22, on the basis that it is implicit that it contends that actions identified by the plaintiff at par 26 of the statement of claim were contrary to the policy or instructions of the defendant, an order of the Commission or the law or was in furtherance of the interests of its employees or was deliberate conduct of third parties; and that it took reasonable but unspecified steps to prevent conduct adverse to the plaintiff;
8.At par 24, where it alleges that it provided psychological assistance to the plaintiff from a particular date; and
9.At par 25, where it alleges that the plaintiff's injury was a disability for the purposes of the Workers' Compensation and Rehabilitation Act 1981-1993 and that particular statutory consequences would follow.
The action was commenced in 1998 and meandered its way through the years until on 26 May 2002 the applicant made a prior application in similar terms to that before me. That application sought to draw upon each of the limbs by which Diplock LJ justified the exercise of power. All that I need to say in relation to the prospect that the plaintiff fell within the scope of the first limb is that the application was unsuccessful. As to the second, the court examined the history of the action both in terms that would have responded to the defendant's complaint of delay and also against the framework provided by the process of case management. In my opinion, the court properly focussed its attention on the particular features of the case and the evidence rather than paying any particular attention to the fact that from time to time the plaintiff had been found wanting by the case management timetable. It concluded that there had been delay but did not identify any particular period or periods for the purpose of considering any prejudice.
It appears that the court's response to the thrust of the applicant's submission on the subject of prejudice was as follows:
"The case relies upon the proposition that delay is of itself bad and erodes recollection and makes the prospects of the witnesses upon whom the parties will rely giving accurate evidence less probable. In short, this case is said to be ancient history, taking place some 10 years, or thereabouts, ago and pivoting to the great extent on the recollections of the individuals involved in the transactions with which we are concerned.
It is obviously commonplace that recollections fade. Nobody would dispute that. It is a common observation of human behaviour. One has more difficulty remembering what happened yesterday, or what happened last week, what happened last month, last year or a decade ago than what happened today.
It is however, I think a much bolder step to say that because of the general erosion of human recollection the proposition has proceeded to a state where the defendant should be regarded as sufficiently prejudiced to have the action against it struck out.
On that score I note and record the fact that the defendant complains that the case against it is as yet insufficiently particularised for it to make a very sensible judgment as to who might be witnesses to be called on its behalf in defence of this claim. That might well be so in regard to some of the specifics of the allegations but I think that the general thrust of the case is and has been for some time sufficiently clear on the pleading for the defendant to at least appreciate who the main players should be in regard to its defence and the fact that it has not suggested there is a difficulty with any nominated individual suggests to me that such loss as may exist would be more likely to be peripheral than central to the defendant's case."
In determining the application before me I have no alternative than to accept that such an assessment was made of the action upon consideration of the content of the following affidavits:
1.Lisa Marie Betts sworn 6 October 2000.
2.Ivan Armeli sworn 20 November 2000.
3.Ivan Armeli sworn 23 November 2000.
4.Lisa Marie Betts sworn 21 November 2000.
5.Ivan Armeli sworn 11 July 2001.
6.Saul David Hardon sworn 6 December 2001.
7.Saul David Hardon sworn 25 January 2002.
8.David Scott Ellis sworn 13 February 2002.
9.Saul David Hardon sworn 30 May 2002.
The application before me is supported by the affidavit of David Scott Ellis sworn on an unspecified date in June 2005, and those of Fiona Meredith Reed sworn 22 June 2005 and 13 December 2005.
Ms Reed commences the history of the action at a point some four months prior to the determination of the application previously made by the applicant. It reveals that each of the parties had then been engaged in the process of discovery. Otherwise the history reveals that one month after the determination the defendant had requested further and better particulars of the statement of claim to which it received a response three months later. The applicant then contested the sufficiency of that response. At par 3(p) and following the deponent states:
"(p)On 6 November 2003 Freehills wrote to Cameron Eastwood noting that no additional particulars had been provided as requested in January 2003, that the plaintiffs had not progressed their claims for 9 months and reiterated the request for further and better particulars. …
(q)On 17 February 2004, over one year after the defendants (sic) delivered to the plaintiffs a schedule of defects in the plaintiffs' answers to the defendant's request for further and better particulars of the statements of claim, Cameron Eastwood wrote to Freehills and advised that the plaintiffs were briefing counsel and that they intended to prepare interrogatories and an application for leave to administer interrogatories. Cameron Eastwood also delivered the plaintiffs' response to the defendant's schedule of defects in the further and better particulars provided. …
(r)On 13 December 2004 the plaintiffs filed and served on the defendant Notices of Intention to Proceed. …
(s)On 1 February 2005 Cameron Eastwood wrote to Freehills advising that the Randall matter would be entered for trial and seeking unavailable dates. …
(t)On 3 February 2005 the plaintiff Randall entered his matter for trial. The matter of Troy was not entered for trial …"
According to the notice of entry for trial the action was allocated to a pre‑trial conference on 10 March 2005. According to the notation on that document the conference was then adjourned until 11 May 2005 and subsequently to 27 May 2005. The action was then allocated to a listing conference on 8 July 2005. On 8 June 2005 the listing was vacated upon the return of the application presently before me.
The affidavit of Ellis canvasses what I apprehend to be the same history and then adds the following relevant text:
"3.As at the date of swearing this affidavits (sic) no further steps have been taken by the plaintiff in these proceedings."
It appears to me that the task established by the dicta of Diplock LJ is to first establish a period of delay, to then consider whether that delay qualifies as inordinate and then to assess the impact of any found inordinate delay upon the defendant. It would resonate with the fact that the role of the court is to determine intractable disputes and that it would only consider abdicating that responsibility for good reason attributable to the conduct of the respondent to such an application.
In constructing a period of delay from the material that is before me I could take into account the flow of communications over the period between the date upon which the defendant issued the request for further and better particulars of claim and the date upon which a response with which it may have been satisfied was received. Alternatively it would be open for the court to simply consider the process the subject of consideration in order to mark the period in which the defendant had insufficient particulars of the plaintiff's claim. Such a period would commence on 17 September 2002 and conclude on 17 February 2004.
In either case it would be appropriate to reflect upon process to which any period of delay would relate. The function of pleadings is to inform. The purpose of particulars is to give precision to allegations of material fact. Where consideration is given to the pleading process in the context of a request for particulars, there is no reason to exclude the prospect that an analysis of the request may reveal other interests. Furthermore although any period of contended delay in the provision of particulars may be considered as having been fundamental in that want of particulars may impede any useful appreciation of the case, the process of discovery or any process associated with the task of getting up the case for trial, it would not necessarily be the case that want of particularity would have had any significant impact. There is no evidence provided by the applicant that would found any basis for analysis of the impact of the failure of the plaintiff to provide particulars. The applicant did not advance any submissions based upon the content of the documents relevant to the application. The dimensions of defendant's request and the plaintiff's response are sufficiently large that the court ought not to be expected to embark upon its own analysis in order to determine how any information deficit may have impacted upon the defendant. Suffice to say that the plaintiff's initial response, the defendant's schedule of asserted defects in that response and the plaintiff's response to that schedule comprise 130 pages of the papers for the judge. The significant consideration is that in the absence of any useful evidence, I am not in a position to judge the impact of want of particulars upon the defendant. Accordingly, I am left with no more than that there was an outstanding request for particulars for a lengthy period of time that may speak to a delay in the action coming on for trial but not on any other process.
That is not to say that the defendant has not addressed particular aspects of prejudice for which it contends. According to the affidavit of Ellis, the defendant had identified the potential pool of witnesses and he gives the following evidence:
"4.These proceedings arise out of industrial action which occurred at the defendant's operations in the Pilbara in June 1992 and from subsequent allegations of harassment in the workplace. As a result, the bulk of the witnesses to that would have been called by the defendant were employees of Hamersley at the relevant times, and were readily accessible to it by reason of that employment relationship. Trial of these proceedings will involve extensive evidence. It is anticipated that the trial is likely to take four weeks and that a large number of witnesses will be called.
5.I am informed and verily believe that the following persons who might have been called by Hamersley ceased to be employed by it and, as a consequence, the availability and accessibility of those persons has been curtailed: (The deponent then lists 10 named witnesses)
6.In addition, I am aware that Terrence Palmer, who was the Managing Director, Operations, of the defendant in 1992 and for a number of years afterwards, has died. I have been involved with the litigation connected with the events in 1992 since that time. I am aware that Mr Palmer took a number of steps to assist persons such as the plaintiff. His evidence will not be available."
The difficulty in attributing value to that evidence extends from the fact that par 5 is unfounded hearsay in that it does not disclose the source of information or state why it is that that source is believed, to the fact that there is insufficient provided to allow for any understanding of what evidence it is that the defendant would have sought to adduce from the disclosed potential witnesses and what impact difficulty in locating them may have upon the defendant's preparation of its case. Furthermore, there is no indication as to why it would be the case that the cessation of employment of witnesses by the defendant would translate into such a difficulty in obtaining access to them that it was worthy of consideration.
As to the deceased witness, again there is no evidence as to assist with an understanding of the impact of his loss has had on the defendant. In Ms Reed's affidavit she provides the detail that Mr Palmer died on 22 February 2001. That being the case, the significant consideration is that he died prior to the last application to dismiss for want of prosecution. Whilst there is a prospect that prior to issuing the request for particulars the defendant would not have been able to appreciate the dimensions of the case that it would need to get up for trial, it appears to me that the court at the hearing of the last application considered there was sufficient to have allowed the defendant to appreciate at least the scope of the plaintiff's case, if not the detail. Apart from those observations I am left in the position where I have no basis upon which to appreciate whether or to what extent the deceased had been available to either assist the defendant or whether he had provided it with a proof.
According to the later affidavit of Reed, it appears that in the intervening period the defendant had taken the opportunity to locate the identified potential witnesses. She deposes as follows:
"3.In an affidavit sworn on 2 June 2005 and filed herein, also in support of the application, ('the Ellis affidavit') David Scott Ellis deposed, in paragraph 5 of the Ellis affidavit, to his belief that there were a number of people whom the defendant would, in all probability, need to call as witnesses at the trial of this action, who had been but were no longer employed by the defendant and whose availability and accessibility by the defendant had been curtailed by the passage of time since the incidents the subject of this action, which took place largely in June 1992 and the months following.
4.Another solicitor employed by Freehills, Jennifer Keane ('Ms Keane'), and I have recently spoken to some of the people named in the Ellis affidavit and to some others whom we believe the defendant would need to call as witnesses at the trial.
5.Before Ms Keane and I spoke to these people, we reviewed a large volume of documents dating back to 1992 in order to compile a list of people whom the defendant might need to call as witnesses at the trial of this action. That was a complicated and lengthy process. We identified in excess of 100 people and ascertained that the majority of them were no longer employed by the defendant. It then became necessary for us to search the defendant's company records, the telephone white pages throughout Australia and the Australian electoral rolls in an effort to locate these people and contact them.
6.In the result, either Ms Keane or I were able to speak to a number of people … ."
The deponent then refers to six of the individuals identified by Ellis and names two others. She then canvasses some detail relating to each of those potential witnesses; their involvement in the circumstances giving rise to his claim; and the conversations held with them by which she relates the extent of the difficulties that they would have in providing details such as names, dates and sequences of events, and the substance of conversations. Consistent with the observations made by the court on the last occasion that such an application was made, the memories of those identified potential witnesses reveal some erosion.
In an application as fundamental as that brought by the deponent it is appropriate to consider that the onus of persuasion would not lightly be discharged. It is my appreciation that if an applicant wishes to pursue such an application and maintains that it has suffered actual prejudice; it is for the applicant to disclose the detail of prejudice. If an applicant chooses to discharge the onus by providing what appears to be limited evidence in general terms upon which it invites the court to draw an inference, then unless there is scope to consider that the applicant could not have done any better, a common feature of the range of inferences properly drawn is that to some degree they would be adverse to the applicant.

I appreciate that that observation may tend to limit the utility of the mechanism articulated by Diplock LJ to those cases where a defendant is prepared to portray the extent of its prejudice. The response to that proposition is that the court does not bring any preference to the hearing of any particular application. Each application is determined on its merits in accordance with the considerations that bear upon it. In every application consideration is properly given to whether it is sufficiently founded and whether the onus of persuasion has been satisfied. It is probably unnecessary to add that the fact that the court promotes the strategy represented in the process of case management at every opportunity would provide cause for circumspection in determining an application to dismiss for want of prosecution.
According the formulation expressed by Diplock LJ the prejudice that would found such a result would derive from a period or periods of inexcusable delay. In this case there is no material before me which would allow me to reach the conclusion that any particular difficulty that a witness may have would be attributable to any period of delay that may be constructed around either any perceived want of particulars or progress to trial. Having said that, it is obvious that delay would have some impact upon memory. As the court expressed on the prior occasion that the defendant sought such relief, memory is eroded by the effluxion of time as short as the lapse of one day.
In the absence of any evidence as to the impact of delay on the defendant's case I can only refer to the fact none of the nine allegations that the defendant makes in its pleading of themselves would indicate the prospect of any particular difficulty for defendant in attending to their proof.
The plaintiff chose to respond to the application by filing an affidavit of his solicitor, Cameron Victor Eastwood of 31 January 2006 in which he canvasses the actions undertaken by the plaintiff over the period during which the particulars sought were outstanding and his efforts to communicate with the defendant's potential witnesses. It is evident that he would draw different conclusions as to the prospect of that they would be of utility to the defendant than those reached by Ms Reed.
On the case presented in the application the defendant has conveyed no more than the prospect that any delay in providing particulars had any broader impact than in delaying any trial. Whilst I have reflected upon whether I consider that the standard to be discharged is insurmountable, I have come to the conclusion that such a significant application demands some rigour in the process of assessing whether it ought to succeed. The defendant has not presented a case upon which I ought be satisfied that it should succeed.
Although strictly speaking not part of the application, the effluxion of the period of time since the material date in 1992 gives rise to concern that the trial will be compromised. In light of the terms of the defendant's defence, it appears to me that in all likelihood, the impact of the detriment will be most keenly felt by the party carrying the onus of proof at trial. I also note that the circumstances which gave rise to the plaintiff's causes of action have been the subject of litigation in the Supreme Court and that no reference has been made by the applicant to any difficulty in obtaining access to written material which presumably would reflect the position that it has adopted in this litigation. Accordingly, whilst it is appropriate to express concern as to the considerable delay in bringing the action on for trial, I suppose that it may to some extent be ameliorated by the fact that in this case, in all probability, there would be a significant amount of written material which would assist the defendant for the purposes of the trial.
The applicant is the defendant in action 2186 of 1998 and it has brought a similar application in that case. There is no significant difference between either the plaintiff's claims or the defendant's applications in each action. That being the case I do not intend to provide separate reasons in relation to the determination in action 2186 of 1998.

[2006] WADC 49

7 April 2006