Tipperary Developments Pty Ltd v The State of Western Australia - [2004] WASC 187

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: TIPPERARY DEVELOPMENTS PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [2004] WASC 187

CORAM: MURRAY J

HEARD: 18 AUGUST 2004

DELIVERED : 18 AUGUST 2004

FILE NO/S: CIV 2490 of 1992
CIV 1473 of 1994
CIV 1878 of 1994

BETWEEN: TIPPERARY DEVELOPMENTS PTY LTD
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Adjournment - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A, O1 r 4B

Result:

Trial adjourned

Category: B

Representation:

Counsel:

Plaintiff: Mr J C Giles
Defendant: Mr K M Pettit SC & Mr P J Hannan

Solicitors:

Plaintiff: Solomon Brothers
Defendant: State Solicitor

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

Nil

Case(s) also cited:

Nil

MURRAY J: This action is such that, if one were to devote too much attention to its past, it seems to me that one would soon bog down in that endless inquiry as to where the balance of blame may lie for the dilatory progress of the action to its present point. It does seem to me that in relation to the question of maintaining or vacating the presently fixed trial dates, it is proper to look at the proceedings from the point of their resumption following the decision of the Full Court and the directions hearing which was mounted before me shortly thereafter. In other words, without essaying any precision about it, at the end of last year.
It is abundantly clear that at that point much remained to be done and the difficulty of pursuing it seems to me to have been the result of the fact that things like pursuit of discovery and the location of documents and matters of that kind are all being done at such a distance from the events. I accept that materials of that kind may be difficult to locate and deal with.
I have just given a judgment, one which took me rather longer than I had hoped that it would because of the pressure of other more urgent business so far as I was concerned and the demands upon my time of other, more pressing matters. But that has meant that the question of interrogatories and their completion remains yet to be dealt with and we have just fixed upon a 50‑day period in which that process would be finalised.
All of that sort of thing seems to me to present difficulties compounded, to a degree at least, not only by the passage of time and the distance of the events from the evidence gathering and preparation process, but also, potentially at least, the factual complexity of the issues thus far raised.
Then one comes to as yet undetermined proposals in respect of potential third party proceedings and the need for decisions to be made with respect to whether or not such matters may be incorporated into the litigation at this point, or whether leave to do so should be refused and, if leave is granted, how those matters may be dealt with by way of trial, and whether they should or should not, and if so to what degree, be integrated into the trial process as between the plaintiff and defendant in respect of the claim and counterclaim. All those matters have belatedly emerged and require attention.
I must say that there are a number of matters to which I have been referred which would not attract my sympathetic view in relation to points of difficulty and distractions, as they were put by Mr Pettit, in relation to the defendant's pursuit of its readiness for trial. I have touched briefly, however, upon some that have had an impact in my thinking, like the pursuit of documents and discovery issues and matters of that kind which I have already mentioned.
So far as Mr McKerracher's situation is concerned, I accept what Mr Giles says. To the extent that that posed a problem, it was a problem for the plaintiff and while it needed some attention, no doubt, by the defendant to advance the matter properly for the plaintiff's consideration, it seems to me to be a matter which had to be dealt with in the course of running and ought not to have been allowed to delay the matter, and indeed, so far as the plaintiff is concerned, it has not been allowed to delay the matter. Senior counsel has recently been briefed and there is some confidence, it would appear, that Mr Oslington QC can be in a position to adequately discharge his duties as leader for the plaintiff by the projected trial date.
I see nothing of moment in the High Court's attention to the matter and the special leave application and the unsuccessful application for expedition in relation to that, which ought to be allowed to delay this matter being brought to trial, and nor indeed does Mr Pettit rely upon it as requiring of itself that the trial be delayed until the fate of the special leave application is known. Nor would the Court be receptive to any such application. Mr Pettit relies upon it as being one of those distractions which have diverted attention by the defendant's legal advisers from the process of preparation and getting up for trial to these other matters.
The constitutional point seems to me to be a matter of no great moment in that regard either, and I propose to say little more about it. Nor, it seems to me, is the need to enter upon the process of preparation for and engagement in the mediation, a matter which can be relied upon to any degree by the defendant.
The question of the preparation and availability of the expert report, so far as the defendant is concerned, is again a matter which seems to me to provide little in the way of meat or grist for the defendant's mill in seeking the adjournment. If the report was provided late, then to the extent that that involved any prejudice or incapacity to progress the matter, it was a matter which affected the position of the plaintiff rather than the defendant.
The outstanding matters to which reference has been made, include particularly the applications to amend the pleadings and to resolve upon the proposed third party proceedings, and these seem to me to be matters of some substance which, although, as I say, they have emerged belatedly, will require to be addressed and dealt with by the Court and they may have an impact upon the process of preparation and the process of trial.
The question of the sufficiency of time available for putting together materials and witness statements, and their exchange leading up to trial from this point is a matter of substance, it seems to me, and it is a matter of a kind which can always be debated and which it is very difficult for a Judge to make a judgment about in terms of the capacity of a party reasonably to be required to progress a matter within a particular time frame. But as I have already said, without going into the matter in great detail for the purpose of these shortly‑expressed reasons, it seems to me that there are matters of complexity that need to be dealt with, and that in the end it will be a process which will aid the more expeditious disposition of the matter at trial if matters of that kind, although to a degree mechanical, are dealt with in an orderly and appropriate fashion so that the best decisions possible are made in relation to the efficiency of the trial process. They are matters that in this case I am satisfied may take more than a little time to satisfactorily be resolved.
The question of prejudice in relation to the application to vacate the trial dates and adjourn the trial is one which seems to me to leave the Court short of a capacity to make a firm judgment either way. It is undoubtedly the case that for the plaintiff, the first defendant by counterclaim, and the second defendant by counterclaim, the plaintiff is out of the money which it has claimed and has been for some considerable time, but I find myself unable to have a clear reaction to that as an element of prejudice, while one can understand that the plaintiff now conceives it to be in its interest that the matter be progressed with all possible expedition and brought to a final conclusion.
The Court is always conscious of the case management emphasis which is enshrined in the Rules of the Supreme Court 1971 (WA), particularly in O 1 r 4A and 4B, but of course it is the case that the Court is to bear in mind that the application of principles of that kind and the target of the elimination of delay is one which is to be an instrument of achieving a just trial process and a just outcome in relation to any piece of litigation and may not itself be the driver of the final result and the determinant of the final decision in relation to an application of the kind which is now before the Court.
I have left till the end Mr Zelestis's position. It seems to me that in a matter of this kind it is appropriate that the Court, where possible, reserve the capacity for the participation of counsel of choice. By that I mean in this context senior counsel of choice. I am not talking of course about a situation where counsel of choice finds himself or herself unable to continue by reason of some impediment of a professional kind. I am talking about a situation where counsel has taken the brief, it is proposed should lead for the defendant, but in circumstances where there was no impediment to do so, has also taken on other obligations of a professional kind which impede his participation in the process of finally getting the matter up and finally making decisions about the form and the manner in which the matter may be progressed at trial, and in appearing at the trial.
I am embarrassed, frankly, to find that the Court did not properly touch upon those matters by contact with the parties' legal representatives in an administrative way before fixing upon the trial dates for which the matter has been listed, a listing which was, to my recollection, determined not only by a judgment as to the capacity of the parties to be ready, as what was left to be done was then known, but also the capacity to dispose of the trial in a block of time which would end on or before the close of the legal year and so would not of itself be marked by the disruption of the break in the Court's proceedings, euphemistically described as the Court's summer vacation.
It seems to me that with the best will in the world there are reasons to suppose that to force this defendant on to trial on 1 November will have a substantial effect in disrupting its capacity to present itself at trial, represented by counsel of its choice and properly prepared. I propose to grant the adjournment and vacate the trial dates, but it is a matter, as the observations made in the Full Court themselves made clear, where the Court now expects the parties, as I think I have endeavoured to make clear, to pull out all stops to bring the matter on for trial expeditiously. The Court will participate in that process and facilitate that process, as the Court has always been prepared to do to the extent that it is possible.
I am not satisfied that the matter should be delayed to a trial date commencing at the beginning or some convenient point in April next year. It is clear that the adjournment which I grant should not be for a week or two or a few weeks so that the trial may commence in December. That would be a fruitless exercise, but I think the matter should be brought on for trial at the earliest possible opportunity in the New Year.
Counsel and solicitors, it seems to me, will have to, if necessary, truncate their seasonal celebrations and break to permit the time required to be expended on getting the matter up to enable it to be brought on at the earliest opportunity. I am presently minded to think that the matter should again be brought on and trial dates should be fixed in March.
I will not, however, make the same mistake of dealing with that and fixing trial dates now in the absence of a capacity for the court to be informed about counsel's availability. Nonetheless, that should, I would urge, be approached by the parties on the basis that I have mentioned, that the Court has a real concern that the impetus which this matter has recently, and perhaps for the first time in its long and sorry history, gathered should not be lost and should be kept up.
As I say, I would be presently of the mind that a trial substantially in March of next year ought to be possible. No doubt it would be difficult to list the matter at the beginning of next year in a way which would avoid the Easter break but that is a break of a limited kind and might readily, and seems to me, be accommodated in the course of a trial period. So for those shortly expressed reasons, the application to vacate the trial date is granted.