Regan v GIACOMUCCI
[2002] WASC 222
REGAN -v- GIACOMUCCI & ANOR [2002] WASC 222
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 222 | |
| Case No: | CIV:1065/1995 | 29 JULY 2002 | |
| Coram: | ACTING MASTER CHAPMAN | 17/09/02 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Action dismissed for want of prosecution | ||
| B | |||
| PDF Version |
| Parties: | MINDA ROMANILLOS REGAN BENITO GIACOMUCCI KALGOORLIE TAXI CAR DRIVERS ASSOCIATION INC |
Catchwords: | Practice and procedure Leave to bring summary judgment application Summary judgment Judgment on admissions Dismissal of action for want of prosecution Inordinate delay Prejudice to the defendants |
Legislation: | Rules of the Supreme Court 1971 WA, O 16, O 30 r 3 |
Case References: | Duke v Royalstar Pty Ltd [2001] WASCA 273 Jakovljevic v L & B Doslov [2000] WASCA 131 Ulowski v Miller [1968] SASR 277 Arcadia Holdings Pty Ltd & Anor v Brown & Ors [2002] WASC 44 Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Evans v Bartlam [1937] AC 473 Fancourt v Mercantile Credits Ltd (1993) 154 CLR 87 Hughes v Gale (1995) 14 WAR 434 Jacob v Booth's Distillery Co Ltd (1901) 85 LT 262 Kalgoorlie Taxi Car Owners Association Inc v Regan, unreported; SCt of WA (Templeman J); Library No 980075; 20 February 1998 Latrobe Country Credit Co-operative Ltd v Smith & Ors (1991) 1 VR 440 Lewandowski v Lovell (1994) 11 WAR 124 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
BENITO GIACOMUCCI
First Defendant
KALGOORLIE TAXI CAR DRIVERS ASSOCIATION INC
Second Defendant
Catchwords:
Practice and procedure - Leave to bring summary judgment application - Summary judgment - Judgment on admissions - Dismissal of action for want of prosecution - Inordinate delay - Prejudice to the defendants
Legislation:
Rules of the Supreme Court 1971 WA, O 16, O 30 r 3
(Page 2)
Result:
Action dismissed for want of prosecution
Category: B
Representation:
Counsel:
Plaintiff : Mr M D Evans
First Defendant : Mr M S Macdonald
Second Defendant : Mr K E E Yin
Solicitors:
Plaintiff : Corsers
First Defendant : Macdonald Rudder
Second Defendant : Macdonald Rudder
Case(s) referred to in judgment(s):
Duke v Royalstar Pty Ltd [2001] WASCA 273
Jakovljevic v L & B Doslov [2000] WASCA 131
Ulowski v Miller [1968] SASR 277
Case(s) also cited:
Arcadia Holdings Pty Ltd & Anor v Brown & Ors [2002] WASC 44
Cordinup Resorts Pty Ltd v Terana Holdings Pty Ltd (1997) 143 FLR 18
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Evans v Bartlam [1937] AC 473
Fancourt v Mercantile Credits Ltd (1993) 154 CLR 87
Hughes v Gale (1995) 14 WAR 434
Jacob v Booth's Distillery Co Ltd (1901) 85 LT 262
Kalgoorlie Taxi Car Owners Association Inc v Regan, unreported; SCt of WA (Templeman J); Library No 980075; 20 February 1998
Latrobe Country Credit Co-operative Ltd v Smith & Ors (1991) 1 VR 440
Lewandowski v Lovell (1994) 11 WAR 124
(Page 3)
- ACTING MASTER CHAPMAN:
Applications
First defendant
1 The first defendant, by way of chamber summons filed on 2 May 2002, seeks the following orders:
"1. The defendant have leave to apply for summary judgment against the plaintiff.
2. Pursuant to Order 16 of the Rules of the Supreme Court the action be dismissed and the plaintiff do pay the first defendant's costs of the action (including all reserved costs and the costs of this application) to be taxed.
3. In the alternative to the order sought in paragraph 2, the plaintiff's action against the first defendant be dismissed for want of prosecution and the plaintiff do pay the first defendant's costs of the action (including all reserved costs and the costs of this application) to be taxed."
- Second defendant
2 The second defendant, by way of chamber summons filed on 12 July 2002, seeks similar orders.
3 When the first defendant's application first came before the Court on 5 June 2002, he sought, and was granted, leave to amend the chamber summons to include in the alternative judgment pursuant to O 30 r 5. The second defendant has not sought and was not granted such an amendment.
Leave to bring summary judgment application
First defendant
4 In his affidavit sworn on 29 April 2002 the first defendant deposes to the fact that he had hoped the plaintiff would not pursue her action and he wanted to keep his legal fees to a minimum. At par 8 to par 10 of her affidavit sworn on 1 May 2002, Sze-Hwei Yen deposes as follows:
"8. The grounds for an application for summary judgment arise out of Ms Ling's affidavit.
(Page 4)
- 9. The partner with the conduct of this matter, Mr Morton Stuart Macdonald informs me and I verily believe that the first defendant's instructions to Messrs Macdonald Rudder at the time that Ms Ling's affidavit was served were:
(a) to minimise legal costs; and
(b) given the history of the matter, particularly the delay in prosecuting the action, to do as little as possible in the hope that the claim would not proceed.
10. On the facts set out in the affidavit of Ms Ling, I believe that the plaintiff has no cause of action against the first defendant."
5 I would have thought it was incumbent upon the first defendant to at the latest bring this application within a short time after Ms Ling's affidavit was filed, particularly as it was filed in support of an application to amend the statement of claim. The affidavit was sworn on 25 October 2000 and filed on the same day. It is apparent from the plaintiff's chronology of events that a good deal of interlocutory activity has taken place in the intervening year and a half and thus a degree of unnecessary expense has been incurred. In my view the reasons put forward by the first defendant does not justify a delay of this magnitude. I would therefore not grant the leave sought.
Second defendant
6 It is not clear to me the basis of the leave application brought by the second defendant. At par 16.1.1 of Civil Procedure in Western Australia, the learned author states:
"[16.1.1] Late applications for summary judgment The policy of the Rules is that summary judgment applications must be brought at an early stage of the proceedings and before unnecessary expense has been incurred. The onus is on the applicant to justify any delay by affidavit evidence and its absence is fatal to an application under this Order: Michael v Nicolson (Full Court, 1995, unreported, Lib No 950660S)."
7 As there is no affidavit evidence from the second defendant relating to the delay, I am of the view the application must fail.
(Page 5)
Judgment on admissions
8 The first defendant also seeks judgment on the admissions purported to have been made in the affidavit of Ms Ling previously referred to. Such an application can be made at any time. Although the admissions may be made in an affidavit, a court will not give judgment where the admissions appear to be contrary to the true facts. The power to give judgment on admissions must be exercised with great caution.
9 In this matter the plaintiff has sworn an affidavit on 29 June 2002 in which she deposes to the fact that the lease in question was entered into in her own personal capacity. A copy of the leased agreement is attached to the affidavit. I agree with counsel for the first defendant that one would have expected the plaintiff to address in some detail the issues which Ms Ling raised in her affidavit, particularly as they form the basis of this application. Nevertheless, on the state of the evidence before me, it at least appears that the true facts may be contrary to the admissions made. That being the case, I would decline to exercise my discretion to enter judgment for the first defendant.
Strike out for want of prosecution
The Action
10 The action in relation to the first defendant relates to the removal of taxi plates on or about 13 January 1995 which it is said, breached or repudiated the lease agreement. It is said the second defendant influenced the first defendant in the breach, or alternatively the repudiation, and these issues were discussed between July 1994 and 15 January 1995. The importance of oral evidence in this matter is apparent from par 3 of the affidavit of the plaintiff sworn on 24 July 2002.
General Principles
11 It is well established that the discretion to dismiss an action or want of prosecution is not fettered by any absolute or inflexible rules and that the five primary matters to be considered are:-
(i) the length of the delay;
(ii) the explanation for the delay;
(iii) the hardship to the Plaintiff if the action is dismissed and the cause of the action left statute-barred;
(Page 6)
- (iv) the prejudice to the Defendant if the action is allowed to proceed not withstanding the delay; and
(v) the conduct of the Defendant in the litigation.
- See Ulowski v Miller [1968] SASR 277 at 280, and see generally the discussion in Seaman, Civil Procedure WA at paragraphs [3.0.3] to [3.05.4].
Delay
13 Although some action took place in 1999, in fact the carriage of the action did not progress in that year either. Thus for four years the plaintiffs took no action to significantly progress this matter. From then until the time this application was commenced, there have been a number of interlocutory application mainly aimed at the plaintiffs' pleading and the supply of the necessary particulars.
14 This is a relatively simple cause of action and I have no hesitation in concluding that the delay is inordinate. I can see no valid reason why the matter could not have been listed for trial within one year of the action having been commenced.
Explanation for delay
15 In her affidavit sworn on 25 June 2002 at par 5, the plaintiff deposes as follows:
"I was preoccupied with the proceedings in the Equal Opportunities Tribunal and the subsequent appeal to the Supreme Court, and whilst those proceedings were on foot, I did not press ahead with this Action."
16 That, in my view, is an inadequate explanation for a delay of this magnitude. I am thus of the view that the delay is without adequate explanation.
(Page 7)
Conduct of the defendants in the litigation
17 At par 12 of the plaintiffs' written submissions, the following is recorded:
"It is submitted that any delays which have occurred have been contributed to by the conduct of the First Defendant, since:
(i) Between 1996 and 1999 the Plaintiff and the Second Defendant were involved in proceedings in the Equal Opportunities Tribunal and the subsequent appeal. It is noted (at least from the headnote of the Reasons for the Decision in the Supreme Court Appeal) that the same solicitors acted for the Second Defendant in those proceedings as the First Defendant in these proceedings. It is apparent from the Reasons for Decision from the Supreme Court that the issues in those proceedings were related to the issues in these proceedings.
(ii) Between October 2000 and March 2002 both Defendants have proceeded at different times to apply to strike out the Statement of Claim in its various forms. This has caused the proceedings to be bogged down during that time."
18 As the first defendant was not a party to the proceedings in the Equal Opportunities Tribunal I fail to see how it is that the actions of the first defendant in relation to those proceedings could have contributed to any delay in these proceedings. Further, during the course of proceedings before the Equal Opportunities Tribunal the second defendant was not a party to this action. Not only do I not consider the ground found in par (i) presents any valid reason for the delay, I do not consider the defendants could be said to have contributed to it.
19 As to the issue raised in the par (ii) I again do not consider this is a valid reason for the delay and in any event the cause lay squarely at the feet of the plaintiff and those who advise her. This is not a difficult matter.
Hardship to the plaintiff
20 The hardship to the plaintiff is apparent as any cause of action is now statute-barred and thus the plaintiff will not be able to pursue her cause of action if the action is struck out.
(Page 8)
Prejudice to the first defendant
21 At par 12 of Duke v Royalstar Pty Ltd [2001] WASCA 273 the Court said:
"As to the relevance of delay, however, it is important to note that in Hughes v Gales (1995) 14 WAR 434 at 499-500, Malcolm CJ, in reasons with which the other members of the Court agreed, made observations to the effect that it may well be that the case flow management principles contained in O 1 r 4A and r 4B of the rules of the Supreme Court within an appropriate case, justify dismissal on the grounds of delay alone without the need for any other ingredient to be established. The relevance of case management principles was emphasised also in Levi v StirlingBrass Founders Pty Ltd, unreported; FCt SCt of WA; Library No 97029; 9 May 1997. Giving effect to those observations would mean that the earlier practice in this jurisdiction to which the learned Master referred is (since March 1993) not an appropriate guide to the way in which delay should be approached."
22 This is a simple case and should have been progressed to trial well within a twelve-month period. I consider this is a case in which it may well be appropriate to dismiss on the ground of delay alone.
23 In this case the first defendant does allude to particular areas of prejudice. At par 13 to par 18 of his affidavit sworn 29 April 2002 he deposed as follows:
"13. I am now advised by my solicitor that the plaintiff has been given leave to amend her statement of claim. It seems clear to me that the matter will not simply go away, and I feel I should take steps now to resolve the action.
14. The prolonged litigation is affecting my life. I am constantly unhappy and irritable. I have become anxious and edgy, whereas prior to the commencement of the action I was calm and steady. I easily become angry at those around me.
15. As a result of this action and the effect it is having on me, my marriage is breaking up and I have lost friends.
(Page 9)
- 16. The claim relates to events which took place in early 1995. I am 65 years of age. I believe I still have a good recollection of the relevant events but am concerned that I may forget. I am also concerned that others may have forgotten or will forget.
17. I have not travelled since the commencement of this action. In my anxiety I do not want to leave Western Australia in case something is required from me in respect of this action.
18. If not for this action I may have retired. There is now extra pressure on me to keep working to fund the legal costs of this action."
24 Steytler J in Jakovljevic v L & B Doslov [2000] WASCA 131 said at [41] and [42]:
"41 It is also apposite to quote the following remarks of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551:
'The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates" (R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC). Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anyone else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, "What has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause
(Page 10)
- of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.'
- 42 I should also mention that, in Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998, Parker J has said that there may well be circumstances where delay of itself might lead to an inference of serious prejudice. (See also Hughes v Gales (1995) 14 WAR 434 and Ulowski v Miller [1968] SASR 277). This case seems to me to be one which falls into that category."
25 The cause of action arose in relation to matters said to have taken place over seven years ago. In my view the circumstances of this case are such that they lead to an inference of serious prejudice in addition to that deposed to by the first defendant.
Prejudice to the second defendant
26 The second defendant did not become a party to this action until two years before this application was filed. Whilst this action is straightforward I do not consider a delay of two years to be of itself inordinate. Having said that, I consider it appropriate to take the period prior to the joining of the second defendant into account in the same way that any delay prior to the issue of proceedings would be considered.
27 In Jakovljevic v L & B Doslov (supra) at [30] Steytler J said:
"30 There is no doubt that it was open to the learned Judge below to conclude that the delay had been inordinate. Some thirteen and a half years had expired between the date of the accident and the date of the application to dismiss the action for want of prosecution. Some seven and a half years had by then expired since the issue of the writ. While it is true, as was pointed out by Lord Diplock
(Page 11)
- in Birkett v James, above, at 322, that time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay, a 'late start makes it the more incumbent upon the plaintiff to proceed with all due speed'. His Lordship also there said (ibid) that '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'. (See also Lewandowski v Lovell, above, at 134)."
28 Whilst the second defendant was not joined until later in this action, a period in excess of two years has elapsed from its filing an appearance and the bringing of this application. In a case as simple as this it could hardly be said that that progress amounted to all due speed. There has been a good deal of activity during that time, most of which relates to the plaintiff endeavouring to properly plead her case. Whilst this shows the plaintiff's intention to pursue her claim it is hardly satisfactory.
29 The second defendant has not put any evidence forward as to any prejudice it may suffer as a result of the delay. Nonetheless, I consider an inference of seroius prejudice can be drawn on the same basis as for the first defendant.
Balancing considerations
30 Whilst it is a serious matter to strike out an action in circumstances where the lapse of time will result in the plaintiff being unable to maintain a fresh action it may not be unjust to do so. It was always in the hand of the plaintiff to move this action along in a timely way. If she had done so, the action should have been completed within twelve months of commencement, rather than the delay of seven years which has resulted in the limitation period now expiring. Although the plaintiff has put forward an explanation for the delay, in my view it does not justify the delay and the delay is without adequate explanation.
31 Whilst there is no evidence of lost witnesses or documents or the like, it is clear that prejudice of a significant nature will be suffered by the first defendant both actual and to be inferred from the circumstances and the delay. It is apparent that this matter will depend upon discussions which took place a considerable time ago and the length of delay makes it more likely that the case will be decided on less evidence than would have been available to the parties at the time the cause of action arose.
(Page 12)
32 The first defendant was served with the writ shortly after the cause of action arose and one would expect detailed instructions would have been supplied and a proof of evidence taken, thus reducing the impact of the delay. That, in my view, does not eliminate the prejudice which will result from the delay.
33 In the case of the second defendant, it was only some two years ago that it was joined as a party to the action. It has taken the greater part of that period of time for the plaintiff to plead her case in a satisfactory way and thus the second defendant has been denied the opportunity of addressing the issues within a short time of the cause of action arising. This matter has not yet been entered for trial. It appears to me there may well be a need for further interlocutory steps to be taken before it is. In those circumstances I am of the view that prejudice can and should be inferred in relation to both defendants, given the nature of the case and the delay that has occurred.
Conclusion
34 In my view, an inordinate delay has occurred in this matter, most of which is without any or an adequate explanation. Despite the fact that the plaintiffs will be unable to maintain a fresh action, I consider it is appropriate in these circumstances to strike out the action against the first defendant.
35 A substantial delay occurred before the second defendant was joined as a party to that action. This, in my view, required the plaintiff to pursue her action with all due speed. She has failed to do so. Admittedly there has been a good deal of activity during that period but it has not achieved any significant progress of the action.
36 I think the circumstances as they relate to the second defendant are more finely balanced, but I am of the view the action against them should also be dismissed.
0
10
0