Stephens v Lewis No. Scciv-02-936

[2003] SASC 350

STEPHENS v LEWIS
[2003] SASC 350

Civil

1. PERRY J.  (ex tempore)     This matter is listed for trial before me to commence today.

2. The plaintiff issued a notice for specific directions on 13 November 2003 in which he sought an order that trial be adjourned sine die. The application was supported by an affidavit from the solicitors in the employ of the plaintiff’s solicitors, from which it appears that the plaintiff has been sentenced to two years imprisonment with a one year non-parole period, for offences of fraud. The period of imprisonment is to be served in Western Australia and the plaintiff was, at the time the affidavit was sworn, in custody at Hakea Prison, Western Australia.

3. After he had been sentenced to imprisonment, the plaintiff advised his solicitors that he was intending to lodge an appeal against the penalty which he had received. But he later informed them that no appeal was to proceed. In the result, I have been given to understand that the plaintiff will be eligible for parole on about 23 August 2004.

4. It is implicit in the application to adjourn the trial, that the plaintiff is not in a position to prosecute the proceedings at this stage, and he is not in a position to conduct the trial while in custody.

5. This is not the first application to adjourn the trial of these proceedings.

6. The case was listed before me for trial to commence on Wednesday 10 September 2003. Counsel for the plaintiff then applied for an adjournment on the footing that his client had shortly before then been extradited from Victoria to Western Australia, where he was being held in custody pending sentence, which I was informed was due to take place on 10 October 2003. Obviously that has now taken place.

7. I then acceded to the application to adjourn the trial for a short period, that is, until today. At that time I pronounced ex tempore reasons which explained the basis upon which I dealt with the matter at that stage. In the reasons I said:

   “However, not without some hesitation, I have decided to grant a short adjournment. This will be on the footing that it is the only adjournment of the trial which will be allowed. If the plaintiff is not in a position to proceed on the adjourned date, the action will be struck out for want of prosecution.

   I take this stand for a number of reasons:

   (a)There is a growing body of affidavit evidence before the court which has added considerable force to the defendant’s contention that the plaintiff’s claim is vexatious and entirely without foundation.

   (b)It is unreasonable to have the proceedings hanging over the head of the defendant indefinitely, particularly having regard to the public office which he holds.

   (c)If a plaintiff is unable, through circumstances which are a product of his own wrongdoing, to present a civil claim in a timely fashion, a stage may be reached where it is proper for the court to strike it out for want of prosecution.”

8. I then adjourned the trial to today and I said:

   “I confirm that no further adjournment will be permitted. If the plaintiff is unable to proceed then, the action will be dismissed.”

9. The considerations which led me to intimate on that occasion that the action would be dismissed for want of prosecution if the plaintiff was unable to proceed on the adjourned date, are still valid. In addition, there has of course been some further delay.

10. Mr Stevens, who appeared for the plaintiff today, was unable to advance any further argument in favour of the adjournment, apart from the obvious, mainly that his client, being in custody, was unable to prosecute the claim at this stage.

11. For the reasons which I gave when the matter was last before me, I am not prepared to accede to the request to adjourn the matter further. The stage has well and truly been reached when the proceedings ought to be struck out. The only proper course is to dismiss them for want of prosecution.

12. I so order.