Velcrete Pty Ltd (Receiver and Manager Appointed) v MELSOM
[2000] WASCA 109
•28 APRIL 2000
VELCRETE PTY LTD (RECEIVER AND MANAGER APPOINTED) & ANOR -v- MELSOM & ANOR [2000] WASCA 109
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 109 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:39/2000 | 6 APRIL 2000 | |
| Coram: | ANDERSON J SCOTT J | 28/04/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| PDF Version |
| Parties: | VELCRETE PTY LTD (RECEIVER AND MANAGER APPOINTED) IVAN JOHN KENDLE PETER MICHAEL MELSOM STANLEY FREDERIC ROBSON |
Catchwords: | Civil procedure Dismissal for want of prosecution Action proceeding for 10 years Not ready for trial Witnesses not contactable Allegations of negligence in the course of receivership Action the subject of a stay order Inordinate delay Prejudice to respondents Substantial risk that it is not possible to have a fair trial |
Legislation: | Nil |
Case References: | Birkett v James [1978] AC 297 Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1987 Hughes v Gales (1985) 14 WAR 434 Kennedy v De Trafford [1897] AC 180 Pendlebury v Colonial Life Assurance Society Ltd (1912) 13 CLR 676 Inkorn Pty Ltd & Anor v Herbert & Anor [2000] WASC 24 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : VELCRETE PTY LTD (RECEIVER AND MANAGER APPOINTED) & ANOR -v- MELSOM & ANOR [2000] WASCA 109 CORAM : ANDERSON J
- SCOTT J
- First Appellant (First Plaintiff)
IVAN JOHN KENDLE
Second Appellant (Second Plaintiff)
AND
PETER MICHAEL MELSOM
First Respondent (First Defendant)
STANLEY FREDERIC ROBSON
Second Respondent (Second Defendant)
Catchwords:
Civil procedure - Dismissal for want of prosecution - Action proceeding for 10 years - Not ready for trial - Witnesses not contactable - Allegations of negligence in the course of receivership - Action the subject of a stay order - Inordinate delay - Prejudice to respondents - Substantial risk that it is not possible to have a fair trial
(Page 2)
Legislation:
Nil
Result:
Leave to appeal refused
Representation:
Counsel:
First Appellant (First Plaintiff) : In person
Second Appellant (Second Plaintiff) : In person
First Respondent (First Defendant) : Mr P G McGowan
Second Respondent (Second Defendant) : Mr P G McGowan
Solicitors:
First Appellant (First Plaintiff) : In person
Second Appellant (Second Plaintiff) : In person
First Respondent (First Defendant) : Tottle Christensen
Second Respondent (Second Defendant) : Tottle Christensen
Case(s) referred to in judgment(s):
Birkett v James [1978] AC 297
Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1987
Hughes v Gales (1985) 14 WAR 434
Kennedy v De Trafford [1897] AC 180
Pendlebury v Colonial Life Assurance Society Ltd (1912) 13 CLR 676
Case(s) also cited:
Inkorn Pty Ltd & Anor v Herbert & Anor [2000] WASC 24
(Page 3)
1 ANDERSON J: In my opinion, the learned Master was fully justified in dismissing this action for want of prosecution. I have had the advantage of reading in draft the reasons for judgment of Scott J for coming to that same conclusion and I agree with those reasons, to which there is nothing I can usefully add.
2 SCOTT J: On 23 February 2000 a Master of this Court made an order striking out the appellants' claim for want of prosecution. In his reasons, the Master pointed out that the action was now almost 10 years' old and although there had been some interlocutory steps taken and some interlocutory appeals, the action was still a long way from trial because the statement of claim was not yet in final form.
3 The events comprising the subject of the litigation took place in the years between 1986 and 1988, which, if the action goes to trial, will require witnesses to testify to events which at least occurred 12 and probably 14 years ago. Even that predication is based upon the assumption that the action will come on for trial promptly. This "delay" aspect of the matter was referred to by the learned Master.
4 The Master also referred to the fact that a critical witness, being a former employee of the respondents, has resided in the Philippines since March 1997 and that attempts to contact him have been unsuccessful.
5 Importantly, in addition, as referred to by the learned Master, the appellants claim against the respondents is based upon allegations of negligence during the course of the receivership of the first appellant. There is some doubt as to whether an application can proceed without allegations of something more than simple negligence: see Pendlebury v Colonial Life Assurance Society Ltd (1912) 13 CLR 676 per Griffiths CJ at 680, having cited Lord Herschell in Kennedy v De Trafford [1897] AC 180 with approval:
"I understand Lord Herschell to mean that the mortgagee must not recklessly or wilfully sacrifice the interests of the mortgagor, and that if he does he is to be regarded as not having acted in good faith. A good deal of discussion took place as to the meaning which the terms 'recklessly' and 'good faith' were used by the Lord Chancellor. Mr Stark suggested that the word 'reckless' is in a sense analogous to that in which it is used in Derry v Peek 14 App Cas 337. If a man makes a material statement which is false in fact, careless whether it be true or false, he is as much guilty of fraud as if he knew it to be false.
(Page 4)
- That is a case of act of commission. So, he suggests, in the case of a sale by mortgagee, if he omits to take obvious precautions to ensure a fair price, and the facts show that he was absolutely careless whether a fair price was obtained or not, his conduct is reckless, and he does not act in good faith. I am disposed to accept this analogy as sound."
6 It may well be, as the learned Master said, that allegations of negligence may not be sufficient to ground the plaintiffs' (appellants) cause of action against the defendants (respondents). That may have, in due course, occasioned an application for leave to amend the statement of claim.
7 The learned Master also pointed out that the present action is the subject of a stay order. It is also common ground that the appellants have not paid a number of outstanding costs orders totalling in excess of $35,000.
8 In the course of these proceedings the second appellant confirmed that the costs orders were, and remain outstanding.
9 On 1 February 1999, a Master ordered that the solicitors for the first appellant be removed from the record and that the proceedings be stayed. It follows that the first appellant is not in a position to progress the action until some steps are taken to overcome the stay order.
10 Having reviewed the file, this is one of those cases where the delay is clearly inordinate and where there is prejudice to the respondents as a result of the delay. Particularly, the respondents will have difficulty in locating and obtaining evidence from a material witness.
11 The general principles applicable to an application to dismiss an action for want of prosecution were set out by Lord Diplock in Birkett v James [1978] AC 297 at 318:
"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) …
(Page 5)
- (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 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."
12 That decision was cited by Parker J with approval in Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1987.
13 In this case, in my opinion, there is delay which has been both inordinate and inexcusable: Hughes v Gales (1985) 14 WAR 434 per Malcolm CJ at 450. Despite the submission of the second appellant, it would appear that this matter is a long way from being ready for trial after a period of almost 10 years.
14 I am unable to see that the learned Master has erred and I would refuse leave to appeal.
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