Spitfire Nominees Pty Ltd v Ducco - [2001] VSCA 147

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No.7417 of 1994

PETER SHELLARD & OTHERS
	Appellants
v.
HENRY ORLANSKI Trading as “GORDON & ORLANSKI”	Respondent

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JUDGES:	ORMISTON, PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 August 2001
DATE OF JUDGMENT:	7 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 147	1^STREVISION – 10/9/2001

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Practice – Dismissal for want of prosecution – Necessity to consider prejudice resulting from net delay only – Appeal allowed and proceeding reinstated.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr. M. Clarke	Slater & Gordon
For the Respondent	Mr. J. Ruskin Q.C. with Ms R.M. Germov	Phillips Fox

ORMISTON, J.A.:

In this matter I have had the benefit of reading the joint judgment of Phillips and Batt, JJ.A. and for the reasons which they give and subject only to the additional comments I will make, I consider that the appeal should be allowed and the orders made which they propose.

In my opinion this proceeding should not have been struck out for want of prosecution. Unless I have misunderstood him, the fundamental error of the learned judge was, with respect, to choose the period of nine years from the time the appellants terminated the services of the respondent accountant as the basic period for determining the consequences of delay. The period which the appellants and their solicitors inexcusably delayed the proceeding was considerably less than the assigned period of nine years and, assuming that the judge had properly found that there had been inordinate and inexcusable delay, it was the period of that delay which had to be considered in determining whether thereby had resulted a substantial risk that a fair trial could not be held or that it was likely to have caused, or would cause, serious prejudice to the respondent. Of course, in calculating the period of inordinate delay one cannot merely work out a total by, as it were, turning on the tap and turning it off again in order to make a fair calculation. There must be some broader appreciation of the delay and the causes for it. So, for example, one cannot look merely at the periods of months during which the appellants unreasonably failed to take particular steps in relation to the discovery and inspection process in this case. The Court is entitled to take a reasonably benevolent view of the response of the party not in default and to take account of any consequential delay which arises from default in relation to one element of the litigation process. But that does not mean that the action can be put to sleep, nor does it mean that one cannot take account of other genuine attempts by a plaintiff to bring the proceeding on to trial. When one has made a fair assessment of what delay can be characterised as inordinate and inexcusable, then, of course, it is essentially a matter of discretion as to whether that delay justifies an order striking out the proceeding for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] VSCA 147
Decision Date: 7 September 2001

CaseChat Overview and Summary

The case of Spitfire Nominees Pty Ltd v Ducco was heard in the Federal Court of Australia, where the plaintiff, Spitfire Nominees Pty Ltd, sought to challenge the defendant, Ducco, over an issue that was not detailed in the provided text. The matter at hand revolved around the dismissal of Spitfire's proceeding for want of prosecution. The plaintiff appealed this decision, arguing that the primary judge had overlooked a significant factor: the necessity to consider the prejudice resulting from the net delay caused by the proceedings.

The legal issue before the court was whether the primary judge had erred in law by not adequately considering the prejudice resulting from the net delay in reinstating the proceeding. The court had to determine whether the dismissal for want of prosecution was justified in light of the delay and if the prejudice caused by this delay should have been a critical consideration in the decision to reinstate the proceeding. The court also needed to assess whether the primary judge had correctly applied the principles governing the reinstatement of proceedings dismissed for want of prosecution.

The court concluded that the primary judge had indeed erred in law by not considering the prejudice caused by the net delay. The judges held that when determining whether to reinstate a proceeding dismissed for want of prosecution, the court must consider the prejudice resulting from the delay. The court found that the primary judge's approach did not sufficiently account for this essential factor. Consequently, the appeal was allowed, and the proceeding was reinstated. The court's decision underscored the importance of considering the full implications of delay when deciding on the reinstatement of proceedings.

Orders