Tricon Industries P/L & Ors v Abel Lemon & Company P/L

[1996] QSC 215

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No 5289 of 1983

Before the Hon. Justice White

[Tricon Industries P/L & Ors v Abel Lemon & Company P/L & Anor]

BETWEEN:
  TRICON INDUSTRIES PTY LTD
  First Plaintiff

AND:
  FOUR WINDS POTTERY (a firm)
  Second Plaintiff

AND:
  R & J DYBKA
  Third Plaintiffs

AND:
  CHARLES GORDON SPARKS
  and
  PRUE MACFARLANE
  Fourth Plaintiffs

AND:
  RAY SPARKS
  Fifth Plaintiff

AND:
  ABEL LEMON & COMPANY PTY LTD
  First Defendant

AND:
  BAYLIN PTY LTD
  Second Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 11/11/1996

CATCHWORDS:     STRIKE out for want of prosecution - witness memories.

Counsel:Mr J Griffin QC, with him Mr R Dixon for the applicant Abel Lemon & Company Pty Ltd.

Mr P Favell for respondent/second defendant Baylin Pty Ltd.

Mr T Treston, solicitor for respondent/first plaintiff Tricon Industries Pty Ltd.

Solicitors:Murrell Stephenson for the applicant/first defendant.

O'Mara Patterson & Perrier for the respondent/second defendant.

Quinlan Miller & Treston for the respondent/first plaintiff.

Hearing Date:   2 October 1996

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No 5289 of 1983

[Tricon Industries P/L & Ors and
Abel Lemon & Company P/L & Anor]

BETWEEN:

TRICON INDUSTRIES PTY LTD
  First Plaintiff

AND:

FOUR WINDS POTTERY (a firm)
  Second Plaintiff

AND:

R & J DYBKA
  Third Plaintiffs

AND:

CHARLES GORDON SPARKS
  and
  PRUE MACFARLANE
  Fourth Plaintiffs

AND:

RAY SPARKS
  Fifth Plaintiff

AND:

ABEL LEMON & COMPANY PTY LTD
  First Defendant

AND:

BAYLIN PTY LTD
  Second Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 11/11/1996

There are three summonses before the court.  The first has been disposed of by consent that the first plaintiff, Tricon Industries Pty Ltd ("Tricon") discontinues its action against the second defendant Baylin Pty Ltd ("Baylin").  Baylin, by its summons, seeks leave to deliver an amended statement of claim against the first defendant, Abel Lemon & Company Pty Ltd ("Abel Lemon") and other interlocutory orders.  Abel Lemon's summons is to strike out both Tricon's and Baylin's actions against it.  I will deal with that summons first.
           The action arises out of a fire which occurred in a warehouse on the evening of Sunday 19 December 1982 in which the warehouse and its contents were totally destroyed.  The warehouse situated in the Brisbane suburb of Kedron was owned by Baylin, the second defendant.  Abel Lemon was a tenant of part of the building.  Certain of the plaintiffs were tenants or sub‑tenants of other parts of it and all the plaintiffs were owners of chattels destroyed in the fire.  The plaintiffs sued Abel Lemon as first defendant and Baylin as second defendant claiming that the fire was caused by the spontaneous combustion of chemicals stored in its tenancy by Abel Lemon and that Abel Lemon was liable to the plaintiffs for the losses caused to them by the spread of the fire on the basis of the rule in Rylands v. Fletcher (1868) LR 3 HL 388 or, alternatively, negligence. They allege that Baylin was liable to them in negligence for allowing Abel Lemon to keep dangerous chemicals in its tenancy.
Abel Lemon has defended on the grounds that the fire began accidentally and relies on s.86 of the Fire Prevention (Metropolis) Act 1774 or was arson by a stranger and denies negligence.  Baylin served a notice claiming indemnity on Abel Lemon in respect of the plaintiffs' claims against it on the grounds of breach of covenants in the lease or alternatively negligence and claims against Abel Lemon directly for damages for the destruction of the building based on breach of the lease, negligence and the rule in Rylands v. Fletcher.  Abel Lemon has made the same defence as to the plaintiffs and denies breach of the lease.
           Tricon is the only plaintiff still in the action as I understand the material.  It will be convenient to refer only to Tricon as the plaintiff even though at various times to which I shall refer other plaintiffs were still in the action.  From the material before me it seems clear that Tricon ran the action for the plaintiffs.
The writ and statement of claim were issued and delivered respectively in mid-December 1983 and the balance of the pleadings in the first half of 1984. During that time the parties' affidavits of discovery were filed. On 27 September 1984 Baylin filed a demurrer to Abel Lemon's defence maintaining that s.86 of the 1774 Act had been repealed by the Sydney Building Act 1873 (NSW) and not revived by the subsequent repeal of that enactment.  On 14 December 1984 the Full Court upheld the demurrer and Abel Lemon appealed to the Privy Council.  The appeal was heard in December 1985.  During 1985 Abel Lemon answered interrogatories administered to it by Baylin.  On 18 December 1985 the Privy Council upheld Abel Lemon's appeal holding that the Sydney Building Act 1837 had only local application to Sydney and until the coming into effect of the Imperial Acts Application Act 1984 (QLD) s.86 of the 1774 statute was in force in Queensland.

The material read on this application would suggest that nothing occurred after the Privy Council decision in December 1985 until July 1989 when Tricon delivered interrogatories for the examination of Abel Lemon.  This would raise issues about the application of O.90r.9.  However Mr Favell for Baylin submitted that at no time had any leave to proceed been necessary and a perusal of the index to the court file reveals that throughout 1986 there was activity by way of applications to the court from one party or another.  However that activity appears to have come to an end at the beginning of 1987 until July 1989 when Tricon delivered interrogatories to Abel Lemon which were answered on 3 April 1990.  During that time some machinery matters occurred relating to changes of solicitor preceded by a notice of intention to proceed and notices of discontinuance by some of the plaintiffs.
           On 23 April 1991 Abel Lemon sought further and better particulars from Tricon.  On 18 and 20 September 1993 respectively Baylin and Tricon gave notices of intention to proceed.  On 3 November 1993 Tricon provided the further and better particulars as requested by Abel Lemon on 23 April 1991.  On 12 November 1993 Baylin filed a supplementary affidavit of documents and the matter was entered for trial.  On 29 July 1996 Baylin served a notice of intention to proceed and filed its present summons on 30 August.
           What is said to be all the correspondence that has taken place between the parties and Abel Lemon since April 1991 has been exhibited to Mr Peter Murrell's affidavit.  A brief description will suffice to indicate that little advance in the action was generated by Tricon or Baylin.  On 19 April 1991 Abel Lemon sought further discovery from Baylin and further and better particulars of Tricon's statement of claim.  In that month Baylin's present solicitors notified Abel Lemon's solicitors that they were the new solicitors on the record.  There were letters of a formal kind from Tricon and Baylin's solicitors to Abel Lemon's solicitors at about that time.  Baylin's solicitors notified Abel Lemon's solicitors of their intention to proceed with the action by letter and notice dated 8 September 1993.  There was some minor correspondence in September and October 1993 relating to notices of discontinuance and on 23 October 1993 Baylin's solicitors asked for a copy of Abel Lemon's licence to store chemicals noting that there was no mention of it in the affidavit of documents.  Again by letter dated 15 April 1994 Baylin sought information about the licence and also sought access to expert reports obtained on behalf of Abel Lemon.  The issue of the licence had been dealt with in interrogatories delivered by Baylin in 1984 in which Abel Lemon had indicated it had held such a licence.
           In its letter of 22 August 1994 Baylin's solicitors addressed issues which had been raised in Abel Lemon's letter of 19 April 1991 dealing with particulars of damage and again raised the question of the experts' reports and also in letters in November and December 1994.  In January 1995 Abel Lemon's solicitors indicated that the experts' reports would not be made available.  By letter dated 29 May 1995 Baylin's solicitors enquired as to the licence again.
           Periods of inaction so far as the prosecution of the action by Tricon and Baylin is concerned occurred between the beginning of 1987 and Tricon's delivering interrogatories in July 1989 and the delivery of Tricon's further and better particulars of damage in November 1993; and the period between November 1993 and August 1996 when the present summons was taken out by Baylin.  Baylin's counsel, Mr Favell, has submitted that the plaintiffs had the conduct of the action and that it, as second defendant could not be expected to "make the running".  In reality Baylin was a plaintiff and although Tricon has just discontinued against Baylin the lack of interlocutory steps between them and a perusal of the correspondence suggests that the action against Abel Lemon was dominant.  Further, it was Baylin who brought the demurrer proceedings which ultimately went to the Privy Council.
           Abel Lemon submits that the inordinate and inexcusable delay by Tricon and Baylin has been such that there is a substantial risk that a fair trial of the matter will not be possible should the action proceed to trial and it will suffer serious prejudice.  It contends that certain witnesses who could give evidence in respect of matters relating to the storage of the chemicals and the cause of the fire cannot be traced and that the memories of witnesses who can be found have been adversely affected by the passage of time.  Baylin, with whose submissions Tricon associates itself, submits that these concerns are more apparent than real when the nature of the matter is more fully examined.
           There can be little doubt that the delay is inordinate.  It is 14 years since the fire and after the initial prompt delivery of pleadings and completion of documentary discovery the action fell into something of a decline.  The explanation for the periods of delay is that Tricon and Baylin were not fully insured in respect of their losses and were unable to reach a satisfactory agreement with the insurer, who was the same for both, as to the companies' contribution to the costs of the action.  Baylin's solicitor who had a small interest in the company died in about 1987.  These are not adequate excuses.  Subsequently Baylin and Tricon had little or no access to funds to enable them to contribute to the conduct of the action.
           The principles to be applied in a case of striking out for want of prosecution are well established.  The statement by Lord Diplock in Birkett v. James [1978] AC 297 at p. 318 is the most quoted exposition of the circumstances in which a court will exercise its inherent power to strike out an action.

"The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, eg, disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the  issues in the action or is such as is likely to cause or 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."

The application of those principles in Queensland was endorsed in Bruce Pie & Sons Ltd v. Mainwaring [1987] 1 Qd R 304.
           The prejudice which a defendant may suffer may take a variety of forms but one recognised form is the impairment of the memory of witnesses, Shtun v. Zalejska [1996] WLR 1270 per Peter Gibson LJ at p. 1277. The aggregate of the periods of delay may be looked at even though, for example, an earlier period of delay may have been waived by a defendant, when ascertaining the impairment of the memory of witnesses, Roebuck v. Mungovin [1994] 2 A.C. 224 at p. 234 per Browne-Wilkinson LJ.
           The English Court of Appeal has recently considered what evidence is required to demonstrate sufficient prejudice to strike out an action for want of prosecution, Shtun v. Zalejska supra.  A thorough analysis of recent authorities by Peter Gibson LJ demonstrated that there were differences in emphasis about the way in which a defendant could discharge the onus of proving that there could not be a fair trial or prejudice, see p. 1284.  His Lordship concluded at p. 1285

"In my judgment, in order to determine whether a defendant has suffered the necessary prejudice when it is in the form of the impairment of witnesses' recollections as a result of inordinate and inexcusable post-writ delay, the court must examine with care all the circumstances of the case, including both the affidavit evidence as well as the issues disclosed by the pleadings.  It is not, in my judgment, essential in every case that there should be evidence of particular respects in which potential witnesses' memories have faded, still less that it need be shown that such fading of memories occurred in the particular period.  That would be to approve of the classically inept question in cross-examination, "When did you first forget?"  Every court in the land is accustomed to drawing inferences from primary facts.  So long as there are primary facts from which inferences can properly be drawn, there is nothing wrong with doing so.  That is as true in this area of the law as it is in any other.  It is not a reversal of the burden of proof that the court at the invitation of the defendant should draw an inference of prejudice from the material put before it."

The allegations of fact in the statements of claim are spare.  It is alleged that Abel Lemon had on its premises six named chemicals associated with the swimming pool industry, (admitted in answers to interrogatories), and that such chemicals so stored were dangerous in that the intermixing of them was likely to result in spontaneous ignition and a fire or explosion.  It is then alleged that those chemicals were kept on Abel Lemon's premises in such a condition that if they ignited the resulting fire would be likely to spread to Tricon's premises.  It is alleged that the fire was caused by spontaneous ignition of the chemicals and escaped into Tricon's premises.  The particulars of the alternative plea of negligence are keeping the chemicals in close proximity to each other; failing to take adequate care in the handling of the chemicals; failing to prevent the fire from occurring or to prevent or slow its spread; and keeping dangerous chemicals in premises not suited for their storage.  Abel Lemon denies, inter alia, that the fire broke out in its premises, that it was negligent and alleges that it was caused accidentally or in the alternative by arson by a stranger.  Baylin relies on the principles of Rylands v. Fletcher, res ipsa loquitur, and negligence in substantially the same terms as Tricon, and breach of the lease.
           It is clear that the issues central to the action concern the measures taken by Abel Lemon to store and control the chemicals in the warehouse, the layout of the warehouse prior to the fire especially Abel Lemon's tenancy, the course of the fire and any evidence which might support the defence of arson by a stranger.
           Abel Lemon has twice been sold or taken over by another entity since the fire occurred.  Its answers to the interrogatories delivered by Baylin were sworn by Mr Garry Fisher on 29 January 1985.  He was the manager of the Pool Chemicals Division of Abel Lemon at the time of the fire and made his answers by reference to records and employees of Abel Lemon.  Apart from deposing that Abel Lemon had obtained a licence for the storage of chemicals from the Director-General of Health and Medical Services little other information appears in the answers as he objected to answering many of the questions.  He can recall drawing diagrams showing the distribution of chemicals in the warehouse but he no longer has an independent recollection of those facts.  He can recall some detail of how the calcium hypochlorite was packed and stacked.  Two sets of answers were given to the interrogatories delivered to Abel Lemon by Tricon by two different deponents.  Mr Fred Degenhardt the group financial controller for the Laporte Group Australia Limited of which Abel Lemon was by then a wholly owned subsidiary made his answers on 23 April 1990.  Mr Alan Freeman finance director for the Laporte Group swore the further answers on 5 November 1990.  Mr Degenhardt had no personal knowledge of the matters enquired about but made enquiries of persons who are or were employed by Abel Lemon at the material time.  His answers included that

•the repacking of calcium hypochlorite was not carried on at the premises;

•there were two parts of the building which were adjacent to Abel Lemon's premises;

•Abel Lemon had trading stock stored on the premises at the time of the fire;

•the fire was not deliberately lit by any person acting on behalf of Abel Lemon;

•Abel Lemon was unable to identify the stranger referred to in the defence;

•there was hydrochloric acid stored on the premises at the time of the fire, and he stated the quantity, the way in which it was stored, in what, and where, indicated on a floor plan exhibited to the interrogatories; and precautions to keep it away from other chemicals.

The answers proceed in the same way with respect to each of the six chemicals providing the amount of the chemical stored, the container description, and the place on the diagram where it was stored indicated.  Mr Freeman the other deponent was able to say of his own knowledge that the plan provided depicted the layout of the premises as at the date of the fire and that another diagram depicted its contents and four racks within the premises.
           A number of potential witnesses has been identified by Mr Murrell and/or Mr Luxton as necessary to Abel Lemon's case.  Two of them, Mr Hartley and Mr Longhurst, have been shown never to have had relevant evidence.  Mr John Woods was an administration manager for Abel Lemon in Brisbane at the time of the fire.  He was responsible for storing, warehousing and the movement of the chemicals.  He has told Mr Luxton, a solicitor for Abel Lemon, that he is aged 71 years and apart from being able to recall the position of large drums of chlorine at the time, his memory concerning the disposition of chemicals in the warehouse is now hazy.  Mr Griffin QC submits that his evidence would be necessary to refute any allegation that the goods were not stored with proper care.
           I have mentioned Mr Garry Fisher, the manager of the Pool Chemical Division of Abel Lemon in Brisbane at the time of the fire above and his limited recollection.  He has said that although he had a lot to do with sales Mr Woods was primarily responsible for the storage of the chemicals.
           The last two employees to leave the premises the day previous to the fire were Perry Risson and one Cocks.  Mr Luxton has deposed that since they were described by Mr Fisher as itinerant workers it was unlikely that they could be found but Mr Brian Smith, solicitor for Baylin, was able to locate Mr Risson in 1993 to take a statement from him and again spoke to him on 11 September 1996.  He does not say whether Mr Risson has any recollection of the details relating to storage in the premises, the state of the chemicals and the warehouse when he left on the Saturday or, indeed, if he remembers anything at all about working for Abel Lemon.
           A security officer, Mr Kerry Probert, an employee of Metropolitan Security Services who carried out an inspection of the premises at approximately 7.20pm on the Sunday evening prior to the fire breaking out was said to be unfindable by Mr Luxton.  However Mr Smith had better success and located Mr Probert.  In a telephone conversation Mr Probert indicated that he recalled the evening of the fire, remembered going into the warehouse and remembered clearly the hot conditions inside the warehouse.  He recalled shutting the security grill and securing the outer glass doors as he left and that there was no one in the warehouse nor an indication of any combustion.  He recalls going to another factory approximately 500 yards away, seeing a glow in the sky, returning to the warehouse and noticing that a fire had commenced.  He recalls that a period of approximately four minutes elapsed between his departure from the warehouse and seeing the glow in the sky.  (His times are not consistent with the Fire Brigade times although that is irrelevant for these purposes).

           District Officer C O'Brien was in charge of the first units to attend the fire.  He now suffers Alzheimers Disease and has done so for about 4 years and will be unable to give evidence.  He apparently reported to his superiors that the fire was in the mid-section of the building when he arrived.
           Mr Barry Rowland the New South Wales state manager of Abel Lemon at the time of the fire used to travel to Brisbane frequently and told Mr Smith that he was aware of the nature and extent of the operations carried out in Brisbane and how calcium hypochlorite was stored in the warehouse.
           The Metropolitan Fire Brigades Board's Fire Prevention Department prepared a report on the fire.  It has apparently been prepared by three officers based upon information received after interviewing a number of people, not all witnesses.  Whether the report itself would be admissible as to the truth of the facts contained therein is a matter about which there may be some debate.  The report notes that brigade control received a call on the 000 line in respect of the fire at 2024 hours.  The first fire pump arrived at 2029 when the building was well involved in the fire.  The report notes that because of the severity of the fire the exact cause could not be determined but concluded that from the fire damage and the information received by the attending brigade officers the fire originated in the centre of the building occupied by Abel Lemon.  The writers of the report offered three possible causes of the fire,

•Spontaneous ignition of the chemicals;

•They speculated that intermixing of the chemicals might have taken place due to damage to the containers when positioning stock with a forklift.  The exact location of the various chemicals could not be determined due to the severity of the fire.

•Careless smoking was raised only to be rejected since the last lawful person to leave the premises apart from the security officer, had done so approximately 20 hours previously.

•Electrical fault was raised only to be rejected.

•There was some evidence from a Miss MacFarlane and a Mr Sparks, who had at one stage been the fourth plaintiffs in the action, who were residing in the pottery section of the premises leased by Tricon, that at about 8 o'clock they heard two loud noises approximately five minutes apart sounding like a large rock landing on the iron roof and shortly afterwards hearing a sound like a person using a stapling gun.  No smell of smoke was then noticeable.  They noticed smoke about 20 minutes later and on investigation saw fire visible in the chemical storage section of the premises at the front of the building.  An explosion occurred shortly thereafter.

The Fire Board report concluded that spontaneous ignition by the intermixing of reactive chemicals was the most likely cause of fire but incendiarism could not be ruled out.  No mention has been made of Miss MacFarlane and Mr Sparks as possible witnesses.  A Mr P Birch from Metropolitan Security Services was interviewed and reported that during the inspection at 7.20 the security gate between the office and the chemical storage section of Abel Lemon was open but there was no evidence of forced entry.  Mr Probert, the employee, makes no mention of this.  Mr Fisher told the fire investigators that the last person to leave the premises had locked that gate before leaving.  That was presumably either Cocks or Risson but Mr Fisher apparently now has no memory of this.
           The Fire Board report mentions a Fire Officer Foat present with the first pump.  He told Mr Miller, a solicitor for Abel Lemon, that he remembered nothing of the fire beyond the content of an extremely brief report which he sent to his Chief Officer and he no longer has any recollection as to the course the fire took.
           In 1986 Abel Lemon retained two international experts on the combination of chemicals.  Their reports will be dependent upon factual evidence including how the chemicals were stored, the conditions inside the warehouse and the path of the fire.
           District Officer O'Brien's evidence as to where the fire appeared to have started and how it progressed would be of considerable importance.  The statement in the report attributed to him, presuming that it would be admitted into evidence, is brief.  There is the evidence of MacFarlane and Sparks as to where the fire appeared to commence but there is no indication as to whether those witnesses would be available to give evidence or the state of their memories.  Mr Garry Fisher now has only a hazy recollection of the layout of the warehouse and the storage of the chemicals.  He does recall that he did draw the diagrams which are exhibited to the interrogatories.  Mr Probert seems to have a clear recollection of the events.  Mr Woods now has a hazy recollection about storage matters.  He was the employee in charge of storage and the like and his loss of memory must be considered as quite serious.  Whilst Mr Fisher's diagrams would deal with the general layout and storage nonetheless Mr Woods might have been expected to know of any particular changes or differences from those diagrams on the Saturday before the fire.  In any event Mr Fisher did not swear the interrogatories relating to these matters.  There is real prejudice in a forensic sense to a litigant whose witnesses are unable of their own recollection to give evidence about the matters for which he or she has been called but merely to agree that he or she drew a diagram or answered an interrogatory in a particular way.  This is particularly true where interrogatories have been answered by asking others.  The cross-examiner is able to put such questions as "you then are unable to comment one way or another as to whether ..." without contradiction.  The matters concerning which Abel Lemon's former employees would be asked to give evidence relate to day to day routine things which are unlikely to have been impressed upon the mind such as would be retained over any lengthy period.
In a recent High Court decision relating to an extension of time pursuant to s.31 of the Limitation of Actions Act 1974, (2), Brisbane South Regional Health Authority v. Taylor unreported decision of 2 October 1996 (FC 96/028) McHugh J observed

"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods.  For nearly 400 years, the policy of the law has been to fix definite time limits (usually 6 but often 3 years) for prosecuting several claims.  The enactment of time limitations has been driven by the general perception that "[w] here there is delay the whole quality of justice deteriorates."

R v. Lawrence [1982] AC 510 at 517 per Lord Hailsham of St Marelebone LC. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the party. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v. Wingo (1972) 407 US 514 at 532, "What has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose."

Those observations may be applied in respect of delay in the prosecution of a cause once commenced.  Here there are some witnesses who say that they have a good recollection of the events of the night and I particularly refer to Mr Probert.  However there are a number of important witnesses, particularly Mr Woods who was in charge of the disposition and storage of chemicals within the warehouse, who have but a hazy recollection of those matters now.  Mr Fisher's recollection is similarly limited.  The first fire officers on the scene are unable to give evidence or have no recollection.
           The submission by Mr Favell that witness statements should have been or would have been collected and prepared by the solicitors for Abel Lemon at the time when the defence was delivered or to answer the interrogatories is not to the point.  There is no obligation on a defendant to prepare early for trial so as to disentitle it to plead the inability to have a fair trial if a plaintiff has delayed inordinately in prosecuting the action.  In any event those statements are of little use if the witnesses cannot recall what is in them.  He also submitted that Abel Lemon could have brought the application to strike out years ago, in 1993, for example, but waited until Tricon and Baylin gave notices of intention to proceed.  There are two things to say about that submission:  the first is that Tricon and Baylin were not induced by conduct on Abel Lemon's part to expend funds on preparation for trial such as would preclude the discretion to strike out being exercised, Queensland Trustees Limited v. Drysdale Hendy & Co (a firm) [1992] 2 Qd. R. 625; and Roebuck v. Mungovin, supra.  The second is that it was almost three years since the last step had been taken by Baylin and/or Tricon.  Once that point was reached if they were to proceed they needed to get leave pursuant to O.90r.9 and would bear a quite heavy onus, William Crosby & Co Pty Ltd v. The Commonwealth (1963) 109 CLR 490 and Dempsey v. Dorber [1990] 1 Qd. R. 418. It was therefore in Abel Lemon's interest to let three years elapse at least.
           Mr Favell submitted that it is necessary for Abel Lemon to show that the memories of the witnesses have been affected because of delay attributable to Tricon and/or Baylin.  That involves an application of Peter Gibson LJ's "When did you first forget?" example.  It is not in my view necessary to show that the fading of the witnesses' memories occurred in the period post-1991 although commonsense would suggest that that inference can be drawn.  I make no particular distinction between the position of Tricon and that of Baylin.
           On a consideration of all of the evidence there has been such inordinate delay that I infer that there will be prejudice to Abel Lemon if the matter is to proceed to trial such that a fair trial may not be had after a period of 14 years since the date of the fire and Tricon's and Baylin's actions should be struck out.
Summons to Amend Statement of Claim
           Baylin seeks to amend its statement of claim.  Although I have struck out Tricon's and Baylin's actions nonetheless I should say something about the amendments.  The amendments to paragraph 9 relating to damages are not opposed but the balance are.  By new paragraphs 5A-D, the following allegations of fact are proposed to be made

•Abel Lemon at various times prior to and on 17, 18 and 19 December 1982 stored calcium hypochlorite outside the building which was occupied by it;

•On those days precipitation occurred on the concrete apron area outside the part of the building occupied by Abel Lemon;

•Further or in the alternative at various times prior to and on 17, 18 and 19 December 1982 Abel Lemon wrapped calcium hypochlorite in plastic shrinkwrap and stored it on the concrete apron area outside the part of the building which it occupied;

•Further or in the alternative such wrapping caused condensation to form on the inside of the plastic shrinkwrap and come into contact with calcium hypochlorite.

It is proposed to add to paragraph 7 that by mixing some of the chemicals or one of them with the precipitation or the condensation a spontaneous ignition of chemicals occurred.  The new particulars of negligence proposed to be pleaded in paragraph 10 to reflect the new allegations of fact are

•Storing calcium hypochlorite outside the part of the building occupied by Abel Lemon on days when there was or could be precipitation;

•wrapping calcium hypochlorite in plastic shrinkwrap and storing it on the concrete apron outside the part of the building occupied by Abel Lemon;

•Causing or allowing condensation to come into contact with calcium hypochlorite;

•Failing to monitor or ensure that calcium hypochlorite did not come into contact with precipitation, water or condensation;

•Failing to take any adequate precautions to prevent spontaneous combustion of stored chemicals;

•Failing to keep the chemicals in a secure fireproof place or other place in which combustion or fire would be contained;

•Failing to ensure that chemicals would not be intermixed.

A further breach of the lease is proposed to be added to paragraph 13

•In using the outside concrete apron for the storage of chemicals Abel Lemon interfered with the rights of other tenants and exposed the premises and the chattels of the other tenants to danger of damage or destruction.

These proposed allegations of fact do not raise new causes of action.  Mr Favell for Baylin submits that how the chemicals were stored has always been a central issue.  That is so, but at no time has it been suggested that calcium hypochlorite was stored outside the part of the warehouse leased by Abel Lemon on the concrete apron either exposed to rain or, because of that position and its packaging caused condensation to form within the packaging.  The interrogatories concerning storage and their answers make no reference to such storage.  It is 14 years since the fire and both Mr Woods and Mr Fisher, the relevant witnesses, have at best a very hazy recollection of where the chemicals were stored.  These allegations are said to have come to light as a consequence of experts' reports obtained by Baylin.  Baylin has had many years in which to obtain any such reports.  The action was entered for trial in November 1993.  It would not be in the interests of justice to permit new allegations of fact to be raised after so many years when the relevant witnesses' memories are severely impaired.  Should the action not have been dismissed I would have given leave to amend the statement of claim as follows

•By adding to paragraph 7 "the intermixing of the chemicals referred to in paragraph 4 hereof" (this adds nothing new);

•Amending paragraph 9 in the form exhibited to the affidavit of Brian Charles Smith sworn on 30 August 1996;

•Adding to paragraph 10(d) "keep" and deleting "have";

•Adding (j),(k) and (l) to paragraph 10 in the form exhibited to the affidavit of Brian Charles Smith sworn on 30/8/1996 (which depend on no new allegations of fact).

Further and Better Discovery
           In the summons Baylin sought to deliver interrogatories for the examination of Abel Lemon relating to a licence to have chemicals on the premises.  It no longer seeks to do so having already delivered interrogatories in respect of that matter.  However it does seek further and better discovery of those licences.  Mr Murrell has sworn that his firm has 20 boxes of documents from Abel Lemon and has said in correspondence to Baylin's solicitors that it would be very difficult to find the documents sought.  Were the action to continue I would order that Abel Lemon give further and better discovery in respect of the licences or licence which it swore in interrogatories it had from the Department of Health.
Experts' Reports
           In correspondence Abel Lemon's solicitors revealed that they had retained two experts in respect of chemicals and declined when requested to give Baylin access to those reports.  Abel Lemon maintains that those reports having been brought into existence for the sole purpose of the litigation a proper claim of privilege pursuant to the old rules of discovery which govern this action is maintainable.  The present rules now provide that such expert reports would no longer be entitled to be protected by a claim of privilege from disclosure.  Baylin has indicated that it also has an expert's report.
           The court has an inherent power to control its process.  Had the action not been struck out I would have ordered that the parties exchange experts' reports and that failure to do so would result in the defaulting party being barred from using the report or the expert who prepared it at trial.
Costs
           Abel Lemon has been successful in its summons and, taken independently, has been substantially successful on Baylin's summons.  The appropriate orders as to costs, unless there are submissions to the contrary, are that the first plaintiff, Tricon Industries Pty Ltd and the second defendant Baylin Pty Ltd pay the first defendant, Abel Lemon & Company Pty Ltd's costs of and incidental to Abel Lemon's summons to be taxed.  Abel Lemon's costs of opposing Baylin's summons be paid by Baylin.  There should be a further order that Tricon Industries Pty Ltd and Baylin Pty Ltd pay Abel Lemon & Company Pty Ltd's costs of and incidental to the action to be taxed unless there are other orders that are appropriate.
Orders

1. The first plaintiff's and the second defendant's actions against the first defendant be struck out for want of prosecution.

2. The first plaintiff and the second defendant pay the first defendant's costs of and incidental to the first defendant's summons to be taxed.

3. The first plaintiff and the second defendant pay the first defendant's costs of and incidental to the action to be taxed.

4. Dismiss the second defendant's summons.

5. The second defendant to pay the first defendant's costs of and incidental to that summons to be taxed.