Roddan v Gwilliam
[2005] WASCA 209
•10 NOVEMBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: RODDAN -v- GWILLIAM & ANOR [2005] WASCA 209
CORAM: STEYTLER P
SIMMONDS AJA
HEARD: 7 OCTOBER 2005
DELIVERED : 7 OCTOBER 2005
PUBLISHED : 10 NOVEMBER 2005
FILE NO/S: FUL 23 of 2003
BETWEEN: LINDSAY GORDON RODDAN
Appellant
AND
EDWARD CLAYTON GWILLIAM
First RespondentPAUL STEFAN SCHUBERT
Second Respondent
Catchwords:
Practice and procedure - Dismissal for want of prosecution - Principles guiding exercise of inherent jurisdiction to dismiss an appeal - Whether inordinate or inexcusable delay by appellant - Whether justice of the case requires appeal to be dismissed - Turns on own facts
Legislation:
Nil
Result:
Appeal dismissed for want of prosecution
Category: B
Representation:
Counsel:
Appellant: In person
First Respondent : Mr G J O'Hara
Second Respondent : Mr G J O'Hara
Solicitors:
Appellant: In person
First Respondent : Kott Gunning
Second Respondent : Kott Gunning
Case(s) referred to in judgment(s):
Bride v Peat Marwick Mitchell (1989) WAR 383
Gallo v Dawson (1990) 93 ALR 479
Girando v Girando (1997) 18 WAR 450
Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93
Hughes v Gales (1995) 14 WAR 434
Jackamarra v Krakouer (1998) 195 CLR 516
Jakovljevic v Doslov [2000] WASCA 131
Muto v Faul [1980] VR 26
Noye v Gwilliam & Anor [2002] WASC 227
Roddan v The Queen [2005] WASCA 87
Stollznow v Calvert [1980] 2 NSWLR 749
Case(s) also cited:
Duke v Royalstar Pty Ltd [2001] WASCA 273
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Faulkner v Bluett (1981) 52 FLR 115
Haoucher v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 648
James v London & South Western Railway Co (1872) LR7 Exch 287
Latrobe Country Credit Co-operative Ltd v Smith [1999] 1 VR 440
Lewandowski v Lovell (1994) 11 WAR 124
Russell v Duke of Norfolk [1949] 1 All ER 109
Walton v Gardiner (1993) 177 CLR 378
JUDGMENT OF THE COURT:
Introduction
This is an application to dismiss an appeal for want of prosecution. The appeal was brought by the appellant, Lindsay Gordon Roddan, against the striking out of his action against the respondents, Edward Clayton Gwilliam and Paul Stefan Schubert, serving police officers. At the hearing of the application to dismiss the appeal for want of prosecution, we granted the application. These are our reasons.
It is first necessary that we provide background concerning Mr Roddan's action and the decision against which he appealed. We then set out the events subsequent to the commencement of that appeal, before considering the approach that should be adopted to consideration of applications for dismissal of appeals for want of a prosecution. We then apply that approach to this case.
The appellant's action
The action in respect of which a Master of this Court made the decision appealed against (Noye v Gwilliam & Anor [2002] WASC 227) was a consolidation of two actions, Roddan v Schubert, CIV 1812 of 1999, and Noye & Roddan v Gwilliam, CIV 1849 of 1999. CIV 1812 of 1999 was commenced by writ dated 26 July 1999, while CIV 1849 of 1999 was commenced by writ dated 2 August 1999. Both writs attached a statement of claim. Both statements of claim were amended a number of times until, by order dated 8 March 2002, CIV 1812 of 1999 was consolidated with CIV 1849 of 1999. A consolidated statement of claim dated 27 March 2002 was subsequently filed on that date. The consolidated statement of claim was described by the Master in the decision appealed from as "then the tenth version of the statement of claim" (Noye, supra, at [2]).
That document identifies a range of causes of action. Some of these directly concern the appellant, alone. These are allegations of the fraudulent procurement of search warrants and subsequent action taken on premises occupied by the appellant involving his property, an allegation of conversion of an item of the appellant's property, and allegations of two conspiracies, one to prevent the appellant maintaining and pursuing an action by a named corporation, and the other to present evidence in bail applications involving the appellant. There was also one cause of action concerning only the plaintiff Noye, a police officer. This related to the instigation, by the first respondent, Gwilliam, of police internal disciplinary charges against Noye. There were also causes of action concerning both Noye and the appellant. These alleged the malicious instigation of criminal proceedings against them as well as misfeasance by the first respondent, Gwilliam, alone, in the discharge of his duties as a serving police officer.
The decision appealed against was made on 26 September 2002, on an application filed by the respondents on 27 March 2002 and amended by leave on 6 June 2002. The nature of the application, as amended, sufficiently appears from the decision of the learned Master at [1]), as follows:
" ... In its amended form the defendants sought by par 1(a) through to (d) to strike out the statement of claim because it did not disclose a cause of action, or alternatively, because it was not a proper pleading. By par 1(e) the defendants sought to have the action dismissed for want of prosecution. By par 1(f) the defendants sought to strike out the claim on the grounds that:
'Any right of action against either or both Defendants which the Second Plaintiff [the appellant] acquired during the period 20 January 1992 to 22 July 1997 vested in the Second Plaintiff's trustee in bankruptcy, the Second Plaintiff having been bankrupt from 22 January 1992 to 22 July 1997.' "
In the event, the learned Master concluded that he would strike out the appellant's action against the respondents and enter judgment for them on the basis asserted in par 1(f) of the respondent’s application. The final orders to give effect to this decision were made on 5 February 2003. The orders deconsolidated CIV 1849 of 1999 and CIV 1812 of 1999. The action of the appellant in CIV 1812 of 1999 was dismissed, as was his action in CIV 1849 of 1999. Noye was given leave to file a further amended statement of claim within 21 days, presumably in CIV 1849 of 1999, the only one of the two actions to which he had been a party.
Appeal against the learned Master's decision and subsequent events
On 26 February 2003 the appellant filed a notice of appeal against this decision. On 16 July 2003 the respondents were served with a draft appeal book index with a notice that the appointment to settle the index was listed for 18 July 2003. On that date, the appointment was adjourned to 29 August 2003. However, on 22 August 2003, the respondents filed an application to dismiss the appeal as a consequence of what they alleged was the appellant's failure to serve a notice of appeal within 21 days as provided for by O 63 r 2 of the Rules of the Supreme Court 1971 (WA) ("Rules"). They sought, in the alternative, an order dismissing the appeal for want of prosecution and, in the further alternative, leave to file notices of contention supporting the decision of the Master upon grounds other than those relied upon by him. The appointment fixed for 29 August 2003 was consequently adjourned sine die, pending determination of the application for dismissal of the appeal.
The respondents' application was heard by Master Sanderson on 24 September 2003. The appellant was then represented by a solicitor, Kevin Burgoyne ("Burgoynes"). The Master declined to strike out the appeal. He ordered that the respondents have leave to file notices of contention and that the time for entry of the appeal be extended to 14 days after the appeal book index had been settled.
Subsequently, by letter dated 30 October 2003 addressed to Burgoynes, the respondents enclosed a list of documents which, they said, needed to be included in the appeal book as a consequence of their filing of notices of contention. The letter went on to say:
"Once the amended appeal book index has been prepared, would you please provide us with a copy before you relist the appointment to settle the appeal book index so that we can ensure that you have all the necessary documents and to discuss any other changes which may be necessary to the index."
Having received no response, the respondents' solicitors wrote again, by letter dated 21 November 2003, to Burgoynes. They referred to their letter of 30 October 2003 and asked that the "amended appeal book index" be provided "as soon as possible".
By a further letter dated 26 November 2003 to Burgoynes, the respondents' solicitors referred to their letters of 30 October and 21 November 2003, and went on as follows:
"The disposal of this appeal is relevant to other actions in which we represent Police Officers being sued by your client, in which your client is representing himself.
One of these actions - Noye & Roddan v Thoy - is the subject of a status conference being held at the end of the week. We wish to be able to inform the Registrar of the likely period of time it will take to dispose of the appeal in this matter.
Would you please inform us as soon as possible of your progress in preparing the amended appeal book index so that if necessary we may inform the Registrar of this."
By document filed 7 January 2004 the appellant gave notice of his intention to act in person. This document was prepared by Burgoynes and, as required by the Rules, stipulated what was, henceforth to be the appellant's address for service. The document was signed by the appellant.
Subsequently, by letter dated 20 January 2004 from the respondents' solicitors to the appellant at his address for service, copies of the respondents' letters to Burgoynes dated 30 October, 21 November and 26 November 2003 were enclosed. The letter went on:
"It is now nearly a year since Master Sanderson made the decision which is the subject of your appeal. Please attend to the matters referred to in the enclosed letters within seven days, failing which we shall be applying to the Court to strike out the appeal for want of prosecution."
No response having been received, on 27 January 2004, a further letter was sent to the appellant at the same address by the solicitors for the respondents. After referring to their letter of 20 January 2004, they asked, for the purpose of O 59 r 9 of the Rules, whether the appellant consented to an application to strike out the appeal for want of prosecution.
Nothing further occurred in relation to the appeal until, by letter dated 7 July 2005 addressed to the appellant at the same address, the respondents' solicitors confirmed that they were "now instructed to proceed with the application to strike out Appeal FUL 23 of 2003 for want of prosecution".
On 20 July 2005, the present application was filed, by which the respondents seek to have the appeal dismissed for want of prosecution in reliance upon the court's inherent jurisdiction to do so.
Principles guiding exercise of the inherent jurisdiction to dismiss an appeal for want of prosecution
The principles in this area are similar to those which apply in the case of the court's inherent jurisdiction to dismiss an action for want of prosecution: Muto v Faul [1980] VR 26 (Full Court); Roddan v The Queen [2005] WASCA 87, per Malcolm CJ at [41], per McLure J at [49].
The Court recently had occasion to review the principles to guide the exercise of the discretion in relation to the dismissal of an action for want of prosecution in Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93. At [99], [100] and [103], Steytler P and Owen JA said:
"The general principles identified in … [Birkett v James [1978] AC 297 and Lewandowski v Lovell (1994) 11 WAR 124] include consideration of these points:
(a)whether any default has been intentional and contumelious, for example, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or
(b)whether there has been inordinate and inexcusable delay on the part of the plaintiff or his or her lawyers, and, if so
(c)whether such delay:
(i)will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action; or
(ii)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.
But as with so many areas in the law, it is one thing to identify general principles and another properly to apply them. It should always be borne in mind that the power to dismiss for want of prosecution calls for the exercise of discretion. It is a discretion that must be exercised judicially but is otherwise open. It exists to serve the ends of justice. Caution should therefore be employed so that these general principles are not elevated to the level of a 'test' or a 'rule'. They are more appropriately to be seen as guidelines indicating some of the matters to which the court should have regard in exercising the discretion. The court's discretion to dismiss an action for want of prosecution is not fettered by any absolute or inflexible rules. There are however five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:
•the length of the delay;
•the explanation for the delay;
•the hardship to the plaintiff if the action is dismissed and the cause of the 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.
Ulowski v Miller [1968] SASR 277 at 280 (FC); Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998.
...
In our view it is inappropriate to take the considerations identified in Birkett or the five matters mentioned in Ulowski and use them as a check list to be ticked off one after the other. They are all things to which the court should have regard and they will usually be persuasive. But the absence of one or more of them from the credit or debit side of the check list process will not necessarily determine the result. It will always be necessary for the court to stand back and ask: what does justice, in all the notions or senses of it that are relevant, require in the circumstances of this case?"
See also per Roberts‑Smith JA, at [161] ‑ [166].
We turn now to consider the application of those principles in this case.
The delays in this appeal
We have said that the notice of appeal was filed on 26 February 2003. Almost 29 months elapsed between then and the filing of the application to strike out the appeal on 20 July 2005. The delay between 24 September 2003, when the Master extended the time for entry of the appeal, and 20 July 2005 is some 22 months. The appellant did nothing to advance the appeal during that time.
The respondents contend that this delay was intentional, with full knowledge of the possible consequences. They place particular emphasis on their communications to the appellant of their concern that the appeal be prosecuted without undue delay. As the respondents point out, this would have been evident to the appellant, even absent the correspondence, from the nature of the application which resulted in the orders of 24 September 2003.
The respondents also contend that the delay must be assessed in the context of the delay in the commencement and pursuit of the action itself, as to which see Girando v Girando (1997) 18 WAR 450, at 455, per Malcolm CJ, Kennedy and Franklyn JJ agreeing.
The appellant has sought to explain his delay in an affidavit sworn by him on 15 September 2005, filed in answer to an affidavit dated 20 July 2005 sworn by Mr Thomas Darbyshire, one of the respondents' solicitors. He relies, essentially, upon three matters. The first is the delay which, he says, was brought about by the fact that the respondents wished to file notices of contention and consequently wanted additional documents added to the appeal book index. The second is that the notice of appeal prepared by his former legal adviser was deficient and needed amendment. The third is that the relationship between himself and that legal adviser, Mr Tim Stephenson, deteriorated to such an extent that further dealings with him became impossible.
As to the first of those matters, there had already been a lapse of some six months between the time of filing the notice of appeal and the time at which the respondents filed their application to file notices of contention (as an alternative to their application, to strike out the appeal for want of prosecution). More importantly, the lodgement of the notices of contention, and the amendments which were required to the appeal book index as a consequence, were not matters which should have delayed the progress of the appeal. By 24 September 2003 Master Sanderson had ordered that the respondents have leave to file their notices of contention and, by 30 October 2003, the respondents' solicitors had forwarded on to the appellant's then solicitor a list of documents for inclusion in the appeal book index. However, nothing further was done by the appellant in order to progress the appeal until 20 July 2005, when the respondents filed their current application to dismiss it for want of prosecution.
As to the second matter, the appellant has since lodged a minute of amended notice of appeal. It is apparent, from that document, that the amendments are not complex and we can see no reason why that document could not have been filed more promptly. Moreover, we can see no reason why the amendments should have delayed the progress of the appeal.
As to the third matter, we can see no reason why the deterioration in the relationship between the appellant and Mr Stephenson should have caused any significant problem as regards the progress of the appeal. While the appellant said that he had been unable to secure papers from Mr Stephenson, the appellant did not, and could not, dispute that he did not require any documents from Mr Stephenson in order to amend the existing draft appeal book index. The only documents which he needed could be obtained from the respondents or were available to him from the Supreme Court file.
In his oral submissions, the appellant told us that he had not seen any of the letters referred to by the respondents, including those of January 2004 directed to his address for service. However, his affidavit was silent in that respect, notwithstanding that the correspondence had been exhibited to the affidavit sworn by Mr Darbyshire. Moreover, the appellant acknowledged to us that the address was his residence, where his wife collected his mail while he was away working as a mine manager in the north of the State.
The appellant acknowledged that he was aware of the orders made by the Master on 24 September 2003. He said that he had discussed, with his then solicitors and with the solicitors for the respondents, the correctness of the order of Master Sanderson of 24 September 2003 giving leave for the lodgement of notices of contention. The appellant explained to us that he believed that these notices were deficient, primarily because they raised matters of concern to both him and Mr Noye and Mr Noye had not been joined as a party to the appeal. He contended (in effect) that the notices should have been notices of cross appeal, with Mr Noye being a respondent to them. The appellant could offer no sufficient explanation of why he had done nothing to pursue his concerns, other than to suggest that he had difficulty in extracting the necessary papers. However, those papers all appear to have been on the court file and the appellant indicated he had recently obtained them. He explained his failure to obtain them earlier by reference to the burden of other litigation, including criminal actions, in which he was engaged, as well as his absences from Perth working as a mine manager in the north of the State. However, he acknowledged that he had often been in Perth and it seems plain that he could easily have obtained whatever documents he needed. While we are conscious that the appellant has largely been self‑represented, he is, as we have said, an experienced litigant and knew that the respondents were anxious for him to get on with the appeal.
The appellant also put to us (and again this is not addressed in his affidavit of 15 September 2005) that by "mutual consent" actions involving the appellant and Mr Noye had been suspended pending the completion of hearings by the Royal Commission into Police Corruption, which heard evidence relating to the police investigations into the theft of diamonds from the Argyle Diamond mine, a matter which both sides agreed lay at the heart of the claims made by Mr Noye and the appellant in the consolidated action. It was not in contest before us that the Royal Commission heard evidence in relation to the theft over the period June and August 2003, or that it reported in the first quarter of 2004. However, it appears to us to be impossible to reconcile the appellant's contention that there was mutual consent to the suspension of activity on the appeal, because of the Commission, with the hearing and orders of 24 September 2003 and with the letters which were written on behalf of the respondents to the appellant. Moreover, there remains a very substantial delay between the first quarter of 2004 and 20 July 2005, when the respondents filed their application.
While we are prepared to assume that the appellant's conduct, or lack of it, was neither intentional nor contumelious, it seems to us that, in all of the circumstances, the explanations proffered do not excuse what seems to us to have been an inordinate delay.
We will deal, next, with the other four matters listed in Hancock Family Memorial Foundation Ltd (supra) at [100] per Steytler P and Owen JA, which are there referred to as relevant to the jurisdiction to dismiss an action for want of prosecution.
Hardship to the plaintiff if the appeal is dismissed
There would, no doubt, be hardship to the appellant if the appeal were dismissed, as the consolidated statement of claim relied upon conduct which occurred more than six years ago, raising limitation issues. Moreover, it seems to us, on a prima facie view, that the appeal has reasonable prospects of success in so far as it concerns those causes of action pleaded in the consolidated statement of claim which relate primarily to "the personal injury done to the person or feelings" of the appellant, rather than to "direct pecuniary loss to … [his] property or estate": Bride v Peat Marwick Mitchell (1989) WAR 383 at 391.
Counsel for the respondents contends that the grounds raised in the notice of contention, too, have reasonable prospects of success. He argued that the appeal, and the action itself, are vexatious or an abuse of process. He relied primarily upon the fact that the consolidated statement of claim has undergone many changes and upon the Master's comment, at [34] of his reasons, that "it is difficult to resist the conclusion that the plaintiffs are making up the story as they go along and pleading whatever suits their purposes on a particular date". However, while the notices of contention raise serious issues, we are prepared to assume, in the appellant's favour, that there is at least a reasonable prospect that he will be successful in his opposition to the grounds raised by them (see, also, in this respect, Jackamarra v Krakouer (1998) 195 CLR 516).
Prejudice to the respondents if the appeal is allowed to proceed notwithstanding the delay
The respondents, in asserting that they will suffer serious prejudice if the appeal is allowed to proceed, point to the nature of the allegations against them as serving police officers, and to the age of the matters the subject of those allegations. The consolidated statement of claim alleges that search warrants were obtained by fraud; that property of the appellant was removed that was not within the search warrants; that the respondents' wilfully and maliciously breached their duty as police officers in relation to the property of the appellant; that the respondents engaged in unlawful and malicious conspiracy to injure the appellant by unlawful means; that they gave wilfully false testimony in bail applications involving the appellant; and that they were parties to the malicious prosecution of the appellant. The matters the subject of these allegations occurred over the period from mid 1993 to late 1993. The action in respect of those allegations was only commenced in the second half of 1999, that is to say, almost six years later. Thus, serious allegations have been hanging over the respondents for some time. If the matter came to trial, it was said, there could be expected to be difficulties in diminished recollection of witnesses and difficulties in obtaining documents.
The appellant's reply was that many of the matters in question would be litigated in any event in the remaining action by Mr Noye, not dismissed by the learned Master, and in related actions, although against different parties, by Noye and the appellant. We have already referred to the letter by the respondents' solicitors to the then solicitors for the appellant dated 26 November 2003 which makes reference to some of those related actions at least. Also, the appellant indicated he could, and would if the present application succeeded, bring action in respect of his property that continued to be detained.
However, neither reply in our view dissolves the serious prejudice to which the respondents refer. The allegations in the consolidated statement of claim as to the search warrants, conspiracies and false testimony referred to make no reference to Noye, and it was not made clear to us how his action went to those allegations. Nor was it made clear to us how, in proceedings involving other parties, the respondents would have an opportunity themselves to meet allegations concerning them. Further, we were told by the appellant of delays in those other actions arising out of difficulties which he had had in procuring common legal representation for Noye and himself. It was also not clear to us how at least some of the allegations of concern would arise in proceedings which might subsequently be brought by the appellant in respect of the detention of property alleged to have been unlawfully seized. We refer, in particular, to the allegations of conspiracy, wilfully false testimony, and malicious prosecution.
The appellant also put to us that the trial of the consolidated action would be conducted entirely by reference to documents, apparently already to hand. In view of the nature of the allegations referred to, the correctness of this assertion seems to us to be very doubtful. To take only one example, pars 8(a), 18(a), 33(a) and 47(a) of the consolidated statement of claim allege that search warrants were fraudulently obtained by falsely swearing that the deponents had "information" indicating that certain property to be seized may be evidence in the commission of offences. It is not clear to us that the "information" is confined to documentary information.
It is true that no specific instance of prejudice on the part of the respondents was put to us. However, given the nature of the allegations in the consolidated statement of claim and the delay before the writs were issued, as well as the delay of almost two years in pursuing the appeal, it seems to us that general prejudice may be inferred: Hughes v Gales (1995) 14 WAR 434 at 450, and Jakovljevic v Doslov [2000] WASCA 131. The fact that the respondents are serving police officers adds strength to the drawing of the inference of prejudice: cf, in a somewhat different context, Hancock Family Memorial Foundation Ltd (supra), at [148], per Steytler P and Owen JA.
It is true that, as was said in Jakovljevic (supra) at [33], per Steytler J, quoting Moffit P in Stollznow v Calvert [1980] 2 NSWLR 749 at 753:
"It might be so that 'in some cases inaction by a defendant in the face of impending prejudice to him if delay continues may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor' ... "
However, in this case the respondents had sought to advance the appeal, as we have said. It is true they did not take further steps in relation to the threat, contained in their solicitor's letter of 27 January 2004 addressed to the appellant at his then address for service, to have the appeal dismissed for want of prosecution, until a further letter to the same effect was sent in July 2005. However, given the other action taken by the respondents, including the application which produced the order of the Master of 24 September 2003, it seems to us to be obvious that the respondents were anxious to see the matter brought to its conclusion.
The conduct of the respondents in the appeal
We have already commented at a number of points on the efforts made by the respondents, either to have the appeal dismissed for delay in advancing it in accordance with the Rules (one of the bases for the application that produced the orders of 24 September 2003), or to have it moved forward to entry for hearing (which underlay the correspondence following those orders). It follows that we see no acquiescence by the respondents in any of the delays in this appeal (cf Hancock Family Memorial Foundation Ltd at [141], per Steytler P and Owen JA). We have already said that there seems to us to have been no question of consent to any delay in the advancement of the appeal. We have also already commented on the delay concerning the making of the present application.
It follows that we do not see any conduct of the respondents that would weigh heavily against the exercise of the discretion to dismiss this appeal for want of prosecution.
The justice of the case
As called for by the discussion of the general principles in Hancock Family Memorial Foundation Ltd, above, it is necessary in our view now to "stand back and ask: what does justice in all the notions or senses of it that are relevant, require in the circumstances of this case?" (Hancock Family Memorial Foundation Ltd, [103], per Steytler P and Owen JA). This is not simply to undertake a summary of the results of the evaluation of the five previous matters, important as a review of those results is. The question requires us to consider whether or not the assessment of those matters produces the result justice requires.
We have already indicated that the delay was inordinate and that no adequate excuse was provided for it by the appellant. Delay of the sort involved here (almost two years) is not as long as some in the cases to which we were referred (see Hughes, supra: four years), but it is longer than that involved in others (see Gallo v Dawson (1990) 93 ALR 479: 16 months, although the case there involved an application for leave to enter a notice of appeal out of time). Delay, as we have indicated, needs to be seen in the context of the hardship dismissal of the appeal would cause the appellant, as well as the fact that for most, if not all, of the relevant period he was unrepresented, having had problems with the lawyers retained by him. However, as we have also said, the appellant was an experienced litigant (having represented himself in a number of matters over the last few years) and was aware of the respondents' concern to have the appeal advanced, if it was not dismissed.
We have said that there was serious prejudice to the respondents to be inferred from delays in this case which included the period of almost two years referred to, but also included the delay in the commencement and pursuant of the underlying actions. We have also said that there was no conduct of the respondents which strongly tells against exercise of the discretion to dismiss.
In all the circumstances, it seems to us that the justice of the case requires that the appeal be dismissed for want of prosecution. We should add that, as was mentioned in Hancock Family Memorial Foundation Ltd (supra), there is a public aspect to the notion of justice which is of significance in the exercise of the present discretion: see [97] and [144], per Steytler P and Owen JA. This case has been longer in the system as a result of the inaction of the appellant than it ought to have been, and has consequently used more than its fair share of the scarce public resource represented by the court system. There is no basis for allowing it to continue to do so, in all of the circumstances.
It was for these reasons that we concluded that the appeal should be dismissed for want of prosecution, with the appellant to pay the respondents' costs of this application and the appeal, including reserved costs, to be taxed.
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