Timcal Pty Ltd v Sons Of Gwalia Ltd (Subject To Deed Of Company Arrangement) [No 2] - [2011] WASC 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TIMCAL PTY LTD -v- SONS OF GWALIA LTD (Subject to Deed of Company Arrangement) [No 2] [2011] WASC 58

CORAM: LE MIERE J

HEARD: 18 & 22 NOVEMBER 2010

DELIVERED : 9 MARCH 2011

FILE NO/S: COR 28 of 2009

BETWEEN: TIMCAL PTY LTD
Plaintiff
AND
SONS OF GWALIA LTD (Subject to Deed of Company Arrangement)
First Defendant
DARREN WEAVER
Second Defendant
GARRY TREVOR
Third Defendant
ANDREW LOVE
Fourth Defendant

FILE NO/S :COR 29 of 2009

BETWEEN :LIKNO ESTABLISHMENT As Trustee For THE CLYDE TRUST
Plaintiff
AND
SONS OF GWALIA LTD (Subject to Deed of Company Arrangement)
First Defendant
DARREN WEAVER
Second Defendant
GARRY TREVOR
Third Defendant
ANDREW LOVE
Fourth Defendant

FILE NO/S :COR 31 of 2009

BETWEEN :DAWN EVELYN ROBBINS
Plaintiff
AND
SONS OF GWALIA LTD (Subject to Deed of Company Agreement)
First Defendant
DARREN WEAVER
Second Defendant
GARRY TREVOR
Third Defendant
ANDREW LOVE
Fourth Defendant

Catchwords:

Practice and procedure - Matter entered onto Inactive Cases List - No notice from Principal Registrar that matter on list - Application for dismissal for want of prosecution - Application to transfer proceedings to Federal Court of Australia

Legislation:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5
Rules of the Supreme Court 1971 (WA), O 2 r 2(1), O 4A r 25(1)(b), O 4A r 26, O 4A r 28(1), O 4A r 28(2), O 4A r 124, O 29A (repealed)

Result:

Respondents' interlocutory applications for orders that the applicant's notice of motion be struck out or dismissed for want of prosecution be dismissed

Category: B

Representation:

COR 28 of 2009

Counsel:

Plaintiff:     Mr J J Garnsey QC & Mr M R Gracie
First Defendant            :     Mr K J Mony De Kerloy & Mr S J Dundas
Second Defendant        :     Mr K J Mony De Kerloy & Mr S J Dundas
Third Defendant           :     Mr K J Mony De Kerloy & Mr S J Dundas
Fourth Defendant         :     Mr K J Mony De Kerloy & Mr S J Dundas
Jeffrey Dowling            :     Ms B Ludlow

Solicitors:

Plaintiff:     Thomas Booler & Co
First Defendant            :     Freehills
Second Defendant        :     Freehills
Third Defendant           :     Freehills
Fourth Defendant         :     Freehills
Jeffrey Dowling            :     Blake Dawson

COR 29 of 2009

Counsel:

Plaintiff:     Mr J J Garnsey QC & Mr M R Gracie
First Defendant            :     Mr K J Mony De Kerloy & Mr S J Dundas
Second Defendant        :     Mr K J Mony De Kerloy & Mr S J Dundas
Third Defendant           :     Mr K J Mony De Kerloy & Mr S J Dundas
Fourth Defendant         :     Mr K J Mony De Kerloy & Mr S J Dundas

Solicitors:

Plaintiff:     Thomas Booler & Co
First Defendant            :     Freehills
Second Defendant        :     Freehills
Third Defendant           :     Freehills
Fourth Defendant         :     Freehills

COR 31 of 2009

Counsel:

Plaintiff:     Mr J J Garnsey QC & Mr M R Gracie
First Defendant            :     Mr K J Mony De Kerloy & Mr S J Dundas
Second Defendant        :     Mr K J Mony De Kerloy & Mr S J Dundas
Third Defendant           :     Mr K J Mony De Kerloy & Mr S J Dundas
Fourth Defendant         :     Mr K J Mony De Kerloy & Mr S J Dundas

Solicitors:

Plaintiff:     Thomas Booler & Co
First Defendant            :     Freehills
Second Defendant        :     Freehills
Third Defendant           :     Freehills
Fourth Defendant         :     Freehills

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

Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398; [2005] WASCA 93
Hoskins v Van Den‑Braak (1998) 43 NSWLR 290
Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273
Owners of Riviera Apartments v Wembley Lakes Estate Pty Ltd [2009] WASC 37
Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355

LE MIERE J: The plaintiff in each of these actions commenced proceedings in the Federal Court. The proceedings were transferred to this court under the Jurisdiction of Courts (Cross‑Vesting) Act 1987 (Cth) (the Cross‑Vesting Act) by order of Jacobsen J of the Federal Court made 6 February 2009. In each action the plaintiffs' case is founded upon claims of misleading and deceptive conduct and non‑disclosure by Sons of Gwalia Ltd (Subject to Deed of Company Arrangement) (SOG). The matters raised in each action, the procedural history of each action and the applications presently under consideration are essentially the same. For convenience I will refer to COR 28 of 2009.
By notice of motion filed 14 September 2009 the applicant moved for orders that pursuant to s 5 of the Cross‑Vesting Act the proceeding be transferred to the Federal Court of Australia, Sydney registry. By interlocutory process filed on 12 October 2010 the respondents applied for orders that the applicants' notice of motion be struck out on the ground that the action is taken to have been dismissed for want of prosecution pursuant to O 4A r 28(1) of the Rules of the Supreme Court 1971 (WA) (RSC) or alternatively that the action be dismissed for want of prosecution.
The applicant's notice of motion and the respondents' interlocutory process came on for hearing on 18 November 2010. The respondents submitted that the action is taken to have been dismissed for want of prosecution pursuant to RSC O 4A r 28(1) because prior to the applicants' notice of motion the action had been put on the Inactive Cases List, remained on the list for six continuous months and is taken to have been dismissed for want of prosecution by RSC O 4A r 28(1). Alternatively, the respondents submitted the action should be dismissed for want of prosecution.
The applicant made four submissions. First, the action had not been put on the Inactive Cases List. Secondly, if it had been put on the list then the Principal Registrar had not given the applicant written notice that the case was on the Inactive Cases List as required by RSC O 4A r 25(1)(b) and the giving of such notice was a precondition to the action being taken to have been dismissed for want of prosecution under RSC O 4A r 28(2). Thirdly, the applicant submitted that if notice to the applicant that the action had been put on the Inactive Cases List was not a precondition to the action being dismissed for want of prosecution under RSC O 4A r 28(2) then the rule is invalid. Fourthly, and alternatively, the applicant submitted that if the action is taken to have been dismissed for want of prosecution then the court should, in the exercise of its discretion under RSC O 2 r 2(1), set aside the deemed dismissal.
The parties agreed that the applicant's motion for the proceedings to be transferred to the Federal Court should await the decision of the court on the issues relating to the dismissal of the action for want of prosecution.

Procedural history

The applicant commenced these proceedings by originating process in the Federal Court on 2 June 2008. The applicant was then represented by Dennis & Co. On 6 February 2009 Jacobsen J ordered pursuant to s 5 of the Cross‑Vesting Act that the proceeding be transferred to this court.
On 19 February 2010 RSC O 29A r 18A provided:
If no procedural step is taken in a case for 12 months by any party to the case, the case is taken to be inactive unless a judge, master or Case Management Registrar orders otherwise.
Order 29A r 19 provided, relevantly:
(1)When … a case is to be taken to be inactive under rule 18A, the Principal Registrar must ‑
(a)put the case on the Inactive Cases List; and
(b)give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rule 21.
Rule 21 provided:
(1)A case that has been on the Inactive Cases List for 6 continuous months is to be taken to have been dismissed for want of prosecution;
(2)When under subrule (1) a case is dismissed, the Principal Registrar must give all parties to the case written notice of the fact.
After the proceedings had been transferred to this court no procedural step was taken. On 19 February 2010 the court put the action on the Inactive Cases List. However, the Court did not give notice to the applicant, or any party, that the case had been put on the Inactive Cases List or of the effect of r 21.
On 29 October 2009 the respondents' solicitor, Freehills, wrote to the applicant's solicitor, Dennis & Co, stating that as the applicant was aware, the respondents had settled the Shareholder and Auditor actions and requested a minute of proposed directions to facilitate making orders to progress the action to trial. On 3 November 2009 Mr Joukhador of Thomas Booler & Co wrote to Freehills saying that Thomas Booler & Co had received instructions to act on behalf of the applicant and asking whether the respondents would be willing to participate in a private mediation. By email of 13 November 2009 to Mr Joukhador, Freehills stated that they saw little merit in a mediation and attached a copy of a letter to Dennis & Co requesting a minute of proposed directions. On 27 January 2010 Thomas Booler & Co wrote to Freehills requesting that the respondents consent to the transfer of the proceedings to the Federal Court at Sydney and suggested a mediation or settlement conference. By letter of 28 January 2010 to Thomas Booler & Co, Freehills stated that they had not received any notice that Thomas Booler & Co had replaced Dennis & Co on the court's record as solicitors for the applicant and that until such time as they received such a notice they could not respond to Thomas Booler & Co's letter substantively.
On 4 March 2010 Thomas Booler & Co filed a notice of change of solicitor for the applicant. By letter of 17 March 2010 to Thomas Booler & Co Freehills stated that the respondents did not agree to the transfer of the actions back to the Federal Court, Sydney registry and stated that the applicant had failed to provide any minute of proposed directions to progress the actions to trial and that if the applicant intended to progress the action it should provide a minute without further delay. There was then further correspondence between the solicitors.
By letter of 28 May 2010 to Thomas Booler & Co, Freehills referred to RSC O 29A r 18 and stated that from their enquiries of the court, the court had placed the action on the Inactive Cases List on 17 March 2010. Freehills referred to the consequences of matters being on the Inactive Cases List in accordance with the rules.
In his affidavit sworn 15 November 2010 Mr Joukhador swore that on or about 15 September 2010 he spoke to Sam at the Supreme Court by telephone and Sam said that the action was not and never had been on the Inactive Cases List. On 14 September 2010 the applicant filed its notice of motion for the action to be transferred to the Federal Court, Sydney registry.

Inactive Cases List rules

RSC O 29A was repealed on 29 July 2010 and replaced by O 4A. Order 4A div 5 is substantially similar to the repealed pt 4 (Inactive Cases List) of O 29A. The parties argued the matter on the basis that the repeal of O 29A r 4 and enactment of O 4A div 5 did not affect the rights of the parties or the validity or effect of the Rules. The parties argued the matter on the basis that O 4A div 5 applies to this case. I will adopt the same approach.

The action was put on the Inactive Cases List

Order 4A r 24 provides that if no procedural step is taken in a case for 12 months by any party to the case, the case is taken to be inactive unless the case manager orders otherwise. No procedural step was taken in the action for 12 months after 19 February 2009. A judge, master or case management registrar did not order that the case was not to be taken to be inactive. The effect of O 4A r 24 is that on 19 February 2010 the action was taken to be inactive.
Order 4A r 25 provides that when a case is taken to be inactive under r 24 the Principal Registrar must put the case on the Inactive Cases List. The Court put the case on the Inactive Cases List on 19 February 2010.

Notice is a precondition to dismissal

RSC O 4A r 25 provides:
(1)When an order is made under rule 22(4), or an order made under rule 23(1) takes effect, or a case is taken to be inactive under rule 24, the Principal Registrar must ‑
(a)put the case on the Inactive Cases List; and
(b)give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rule 26.
(2)As soon as practicable after being notified under subrule (1), the practitioner for a party to the case must notify the party of ‑
(a)the fact that the case is on the Inactive Cases List and why; and
(b)the effect of rule 26.
The rule requires the Principal Registrar to give all parties notice that the case is on the Inactive Cases List and of the effect of r 26. Rule 26 provides that if the case in on the Inactive Cases List no document in relation to the case, other than a summons for an order under r 27(1) can be filed in the court. Rule 26 replaces the repealed O 29A r 19 which provided that the Principal Registrar must give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of r 21. The repealed r 21 provided that a case that has been on the Inactive Cases List for six continuous months is to be taken to have been dismissed for want of prosecution. The equivalent provision under O 4A div 5 is r 28. In my opinion the reference in O 4A r 25 to r 26 is a printing or drafting error. The cross reference in r 25 should have been to r 28.
There are two competing constructions of O 4A r 25 and r 28. The applicant submits that it is a precondition to the operation of r 28 that the Principal Registrar gives the parties notice that the case is on the Inactive Cases List and of the effect of r 28 and if that notice is not given then r 28(1) does not have the effect that a case on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution. The respondents submit that the failure of the Principal Registrar to give notice under r 25 is an irregularity and the effect of RSC O 2 r 1(1) is that the irregularity does not nullify the deemed dismissal. If so, then the action is deemed dismissed unless the court sets aside the deemed dismissal under O 2 r 1(2).
In the Owners of Riviera Apartments v Wembley Lakes Estate Pty Ltd [2009] WASC 37 Sanderson M held that the failure to give notice under O 29A r 19 was an irregularity and the judgment or deemed dismissal in accordance with r 21 was valid despite the prior irregularity. It is not clear from the judgment in the Owners of Riviera Apartments v Wembley Lakes Estate Pty Ltd whether a judgment had been entered in favour of the defendant. Sanderson M described the application before him as an application to set aside a judgment. In this case no formal judgment was entered. No step was taken in the proceedings after the action had been put on the Inactive Cases List. Order 2 r 1(1) provides that where there has been a failure to comply with the requirements of the rules, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. In this case, the irregularity, if there was one, was the failure to give notice as required by O 29A r 19. But no step was taken in the proceedings, or any document filed or judgment or order made. Order 2 r 1(1) does not apply to this case.
If I am wrong in that conclusion then the step taken in the proceedings or judgment or order made is the dismissal of the action deemed by O 4A r 28.
The issue in this case is whether the consequence of the failure of the court to give notice is that O 4A r 28 is not engaged and the action is not taken to have been dismissed for want of prosecution.
In their joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355, 388 ‑ 389, McHugh, Gummow, Kirby and Hayne JJ observed that:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.
I find that the court giving notice under O 4A r 25(1) is a precondition to the operation of O 4A r 28(1). That is, a case that is on the Inactive Cases List for six consecutive months is not taken to have been dismissed for want of prosecution if the court has not given the defendant notice as required by O 4A r 25(1)(b). That conclusion follows from a consideration of the rule, its subject matter and objects and the consequences of holding that r 28 operates when notice is not given under r 25(1)(b).
Order 4A r 25(1) states that the Principal Registrar 'must' give the parties notice that the case is on the Inactive Cases List and of the effect of r 26. The imperative language is an indication that the giving of notice is obligatory in the sense that it is a precondition to the dismissal deemed by r 28 taking effect.
The subject matter of r 28 is the dismissal of the action for want of prosecution. That is a serious matter and may have serious consequences for the plaintiff. For example, the plaintiff may not be able to commence a new action because his or her cause of action might be statute barred.
The object of O 4A r 25(1)(b) is that the parties receive notice that the case is on the Inactive Cases List so that they have an opportunity to apply for an order that the case be taken off the Inactive Cases List and thereby avoid the action being taken to have been dismissed for want of prosecution pursuant to r 28. A case may be put on the Inactive Cases List by order of the case manager under r 22. A case may be put on the Inactive Cases List after a judge, master or registrar has made an interlocutory order or case management direction that unless the interlocutory order or direction is complied with by a date stated in the order the case is to be put on the Inactive Cases List. A case might be put on the Inactive Cases List in circumstances where the plaintiff is not aware that it has been put on the list. The plaintiff may not be aware of an order having been made or, in the case of a springing order, that a purported compliance with a springing order is not compliance.
The objective of O 4A r 25 is twofold. First, the parties to the case must receive the required notice so that they are aware that the case has been put on the list and of the consequences so that they have an opportunity to take appropriate steps. Secondly, r 25(2) provides that after receiving the notice from the court the practitioner for a party must notify the party that the case has been put on the Inactive Cases List and if it remains on the list for six months the action will be deemed to be discontinued. That gives the party the opportunity to take appropriate action if the practitioner has not done so because the practitioner has not received instructions or for any other reason.
To hold that the giving of notice under r 25 is not a precondition to a case that is on the Inactive Cases List for six continuous months being taken to be dismissed under r 28 may have harsh consequences. As I have said, it may result in the action being dismissed and the plaintiff being unable to commence a new action.
It may be argued that the potentially harsh or unjust consequences of an action being taken to have been dismissed when the plaintiff has not received notice that the action had been put on the Inactive Cases List is alleviated by O 2 r 1(2), which empowers the court to set aside any step in the proceedings or any document judgment or order therein and to make such order dealing with the proceedings generally as it thinks fit where there has been an irregularity in the form of a failure to comply with the requirement of the rules. In my view O 2 does not apply to the present circumstance for the reasons I have stated.

Alternatively, if the deemed dismissal is a step taken in the proceedings or a document, judgment or order within the meaning of O 2 r 1(1) then the failure to give notice under O 4A r 25 is not an irregularity which can be cured: see Hoskins v Van Den‑Braak (1998) 43 NSWLR 290.

Rule is not invalid

The applicant submitted that if O 4A div 5, and in particular r 28, were to be construed to effect a deemed dismissal for want of prosecution notwithstanding the absence of notice or an opportunity to be heard then the rules, or the act supporting them, would be invalid because for the rule to be so construed would be to deprive the court of its power to set aside judgments which are a nullity or otherwise which should be set aside in the exercise of its supervisory jurisdiction.
It is unnecessary to decide that matter because I have decided that, on the proper construction of O 4A div 5, an action is not deemed to be dismissed for want of prosecution where notice has not been given under O 4A r 25.

Dismissal for want of prosecution

The court has the inherent jurisdiction to dismiss an action for want of prosecution. The principles applicable to an application to dismiss an action for want of prosecution were set out in Hancock Family Memorial Foundation Ltd v Fieldhouse (2005) 30 WAR 398; [2005] WASCA 93 [99] ‑ [100] as follows:
The general principles identified in those cases 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.
The first matters to be considered here are the length of the delay and the explanation for the delay. These proceedings were commenced by originating process issued in the Federal Court on 2 June 2008. On 6 February 2009 Jacobsen J ordered that the proceedings be transferred from the Federal Court to this court under the Cross‑Vesting Act. The respondents make no complaint about any delay in the proceedings prior to the transfer of the proceedings to this court. Jacobsen J found that the interests of justice favoured transferring the proceedings to this court for two principal reasons. The first was that there is a substantial overlap between the issues that are raised in these proceedings and those that are the subject of the Shareholder and the Auditor Actions. His Honour said that the essential issue in these proceedings and in the Shareholder Action is what the true value of the SOG shares was at the relevant time. In these proceedings the relevant time is that at which the applicants say they would have sold the shares. That issue formed part of the subject matter of the Shareholder Action and his Honour said would be the subject of extensive expert evidence. The second principal reason was that the administration of SOG is huge and complex and it was in the interests of the creditors generally that these proceedings and the Shareholder and Auditor Actions not proceed in two separate jurisdictions. His Honour observed:
Indeed, it would seem to me that there is a benefit to the applicants in these proceedings in having their matters heard by the court that is hearing the Shareholder Action and the Auditor Action. The applicants will obtain the benefit of the extensive discovery to be given in that case as well as the benefit of expert evidence to be called as to the true value of the SOG shares. Although the applicants do not wish to be joined in, or party to, the Shareholder Action, another course which would be open would be for their proceedings to be heard after the Shareholder Action and the Auditor Action have been determined. An order could be made for evidence in the earlier proceedings to stand as evidence in the latter actions [38].
After the action had been transferred to this court, no party took any steps to progress the action to trial. The respondents were concerned in 2009 with mediation of the Shareholder Action and the Auditor Action. SOG's claims against certain of SOG's directors in the Auditor Action and the shareholder's claims in the Shareholder Action against certain of SOG's directors were settled at a private mediation in September 2008. The settlement was conditional upon SOG's creditors approving a scheme of arrangement. The scheme of arrangement was approved by this court on 28 May 2009. The scheme of arrangement also contained provisions permitting the administrators to settle, subject to the approval of creditors, the Auditor Action and the Shareholder Action with Ernst & Young. A private mediation between representatives of SOG, participating shareholders and Ernst & Young was conducted in Melbourne between 18 and 21 August 2009. SOG's creditors approved the settlement at a meeting of creditors held on 23 September 2009.
It was reasonable for the applicant not to take steps to progress the action to trial whilst it believed that the Shareholder Action and Auditor Action were on foot and interlocutory steps were proceeding in those actions. I infer that the respondents acquiesced in that course until the Shareholder Action and Auditor Action were resolved on 23 September 2009.
On 29 October 2009 the respondents' solicitors wrote to the applicant's solicitors stating that the respondents had settled the Shareholder and Auditor Actions and requested a minute of proposed directions to facilitate making orders to progress the action to trial. On 3 November 2009 the applicant invited the respondents to participate in a private mediation. That invitation was declined by the respondents. On 27 January 2010 the applicant requested that the respondents consent to the transfer of the proceedings back to the Federal Court at Sydney. The respondents did not substantively respond to that proposal until 17 March 2010 when they told the applicant that they did not agree to the transfer of the actions back to the Federal Court. That delay was caused because the applicant's new solicitors had not filed a notice of change of solicitors and the respondents' solicitors declined to respond to their proposal until they had done so. There was then further correspondence between the solicitors until 28 May 2010 when the respondents' solicitors informed the applicant's solicitors that from their enquiries of the court they had learned that the court had placed the action on the Inactive Cases List on 17 March 2010.
The applicants should have taken some step in the proceedings after 28 May 2010. They could have applied for an order for court annexed mediation or for an order that the proceedings be transferred back to the Federal Court at Sydney. The applicants delayed in making any application until 14 September 2010. However, I do not consider that delay to be either inordinate or inexcusable. In making that finding I do not confine my assessment to an assessment of discreet periods and whether there was inordinate or inexcusable delay in each particular period. I take into account the cumulative delay, that is, the delay between 6 February 2009 and 14 September 2010.
I next have regard to the hardship to the applicant if the action is dismissed. The applicant's causes of action are now statute barred. If the action is dismissed for want of prosecution that would determine the applicant's claim for all time. That is a substantial prejudice.
Mr Weaver deposes in [105] ‑ [117] of his affidavit sworn 11 October 2010 to prejudice to the respondents if the action is allowed to proceed notwithstanding the delay. Broadly speaking, Mr Weaver deposes that the delay:
(a)has increased and will increase the costs of the administration;
(b)has delayed and will delay a final distribution to creditors;
(c)has delayed and will delay the finalisation of the administration; and
(d)has prejudiced the ability of the respondent to prepare the defences to the applicant's claim.
Mr Weaver says that the respondents will be prejudiced in their ability to prepare the defences to the applicant's claim because as a result of the settlement of the Auditor Action and Shareholder Action and the inactivity and delay with this action the legal team at Freehills, which comprised 10 lawyers, have ceased working on the matters and have moved onto other matters and it would not be possible to re‑engage all of the persons who previously worked on the matters. Also, the events which are relevant to the applicant's claim occurred over 10 years ago. The relevant directors of SOG are retired men, some of whom are in their 70s. Mr Ross‑Adjie and Mr Chris Lalor are in poor health.
A further matter to be considered is the conduct of the respondents in the litigation. As I have said, it can be inferred that the respondents acquiesced in the delay in progressing the action to trial until October 2010.
The respondents submit that the applicant's claim has no merit. The applicant alleges that its losses were caused by SOG's misleading and deceptive conduct which occurred some years after they had purchased the shares. The respondents say that if it be accepted that the applicant was misled that does not lead to the conclusion that it suffered any loss. The value of the shares had been destroyed by SOG's speculative derivative trading and dealing. If the applicant had been told the truth about that trading and its consequences for SOG, as they and all other market participants should have been, by immediate public announcements by SOG to the ASX under the continuous disclosure requirements of the Corporations Law, either or both SOG or the price of its shares would have collapsed. The respondents submit that if the action is dismissed for want of prosecution, the applicant will not be denied the opportunity to pursue a meritorious claim.
The applicant says that it is at least arguable that it suffered loss from its inability or failure to sell the shares and to reinvest. The applicant's case, on one basis, is that even if appropriate disclosure were made, the shares would have had some considerable value and would have been able to be traded. This is based on the asset backing of the shares. Furthermore, the applicant says it has pleaded and is entitled to maintain and litigate a case that the misleading and deceptive conduct of the respondents, and or their failure to make full disclosure of the true situation, which continued until the collapse of SOG caused the applicant to retain and not to sell its share and so, in the event, to have shares of substantially less worth.
In Monaveen Pty Ltd v ABB Service Pty Ltd [2007] WASCA 273 Martin CJ said at [50] that in considering an application to dismiss for want of prosecution 'it will be an exceptionally rare case in which [an assessment of the merits of the plaintiff's case] will be a significant factor'. Furthermore, the Chief Justice said that if undertaking such an assessment the court should 'bring to account the principals often enunciated in the context of applications for summary judgment which caution the court against a hasty or premature assessment of the merits of a case based on only documentary materials which are not subject to the scrutiny afforded by a trial' [51].
I do not consider that the applicant's case is so clearly unarguable that the dismissal of its action causes no prejudice to the applicant. This is not an exceptionally rare case in which an assessment of the strength of the applicant's case is a significant factor.
As the Court of Appeal made clear in the Hancock Family Memorial Foundation Ltd v Fieldhouse, the ultimate test on an application for dismissal for want of prosecution is what the interests of justice require in the circumstances of the particular case. While there has been some delay on the part of the applicant, in my view, it was not inordinate or inexcusable. Having regard to all of the circumstances, including the length of delay and the circumstances in which it occurred, and the likely prejudice to the applicant and the respondents respectively, I do not consider that the interests of justice require that the applicant's action be dismissed.

Conclusion

The respondents' interlocutory applications for orders that the applicant's notice of motion be struck out on the ground that the actions are taken to have been dismissed for want of prosecution or alternatively that the actions be dismissed for want of prosecution should be dismissed.
The actions remain on the Inactive Cases List unless and until an order is made that they be removed from the Inactive Cases List. The applicant's motion that the actions be transferred to the Federal Court, Sydney is incompetent unless and until an order is made removing the action from the Inactive Cases List.