W Coogan & Co (Hobart) Pty Ltd v Reid

[1989] TASSC 93

Serial No. B15/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              W Coogan & Co (Hobart) Pty Ltd v Reid [1989] TASSC 93; B15/1989

PARTIES:  W COOGAN & CO (HOBART) PTY LTD
  v
  REID

FILE NO:  2345/1980
DELIVERED ON:  12 May 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B15/1989
Number of paragraphs:  11

Serial No B15/1989
File No 2345/1980

W COOGAN & CO (HOBART) PTY LTD v REID & ORS

REASONS FOR JUDGMENT  CRAWFORD J

12 May 1989

1. Applications have been made by the defendants to dismiss the plaintiff's action for want of prosecution. The uncontested facts are:–

1On 28 August 1980 the plaintiff issued a writ against four defendants claiming $32,969.42 allegedly due under the terms of an alleged guarantee between the parties dated 21 May 1979.

2On 12 September 1980 the defendants appeared.

3On 19 September 1980 a statement of claim was delivered.

4On 1 October 1980 a defence was delivered. No further steps were apparently taken by the plaintiff until 30 November 1982.

5On 29 May 1981 the (then) first defendant died and probate of her will was granted on 9 September 1981. She was to have been a witness at the trial.

6On 30 November 1982 the plaintiff delivered a "Notice of Intention to Proceed" to the defendants' solicitors but took no further steps until November 1984.

7On 13 January 1983 the plaintiff delivered to the office of the defendants' solicitors a notice addressed to the deceased first defendant's executrix, giving notice that the deceased "was at the date of her death jointly and severely (sic) indebted with others to W Coogan and Co (Hobart) Pty Ltd, in the sum of $32,969.42 together with interest and costs to be taxed". Presumably the defendant's solicitors acted for the estate.

8On 6 November 1984 the plaintiff delivered another "Notice of Intention to Proceed" to the defendants' solicitors.

9On 7 November 1984 the plaintiff filed a summons seeking orders that the executrix of the will of the deceased first defendant be added as a party in place of the deceased, and that certain consequential amendments be made to the statement of claim.

10On 17 January 1985 orders were made as sought.

11On 4 February 1985 the plaintiff delivered to the defendants' solicitors an amended statement of claim incorporating the ordered amendments.

12On 22 April 1985 the defendants delivered to the plaintiff's solicitors a list of documents. On 9 May 1985 they also delivered two affidavits verifying the list.

13On 24 May 1985 the plaintiff delivered to the defendants' solicitors a list of documents verified by affidavit, together with some further particulars of the plaintiff's claim. No further steps in the action were taken until August 1987.

14On 13 August 1987 the plaintiff delivered a fresh "Notice of Intention to Proceed" and on the same day its solicitors wrote to the respective solicitors for the defendants appointing "Tuesday the 15th September next at 4.30 pm at our offices for the holding of a compulsory conference". Since January 1985 one firm of solicitors has acted for the first, third and fourth defendants and another firm for the second defendants.

15On 15 September 1987 the solicitors for the defendants did not attend the appointed conference.

16On 21 September 1987 letters were sent by the plaintiff's solicitors to the solicitors for the defendants in the following terms:–

"We note you failed to attend our office for the holding of a compulsory conference on 15th September. We appoint Monday, 12th October at 4.30 pm at our offices for the holding of a conference. Please ensure you attend."

17Once again, on 12 October 1987 the solicitors for the defendants failed to attend the conference.

18On 30 March 1988 letters were sent by the plaintiff's solicitors to the solicitors for the defendants advising:–

"We appoint the 13th April at 4.30 pm for the holding of a compulsory conference."

19On 13 April 1988 the secretary of the second defendant's solicitor rang the plaintiff's solicitor and informed him that the second defendant's solicitor was involved in a court case and was not able to attend the conference. Apparently the solicitor for the first, third and fourth defendants simply ignored the appointment of a further compulsory conference as he did not attend the conference appointed for that day.

20On 14 April 1988 the secretary of the second defendant's solicitor was advised that the compulsory conference would be held on the 28 April 1988 at 4.30pm.

21On 15 April 1988 the plaintiff's solicitors sent to the solicitors for the first, third and fourth defendants a letter noting that they had not attended the conference on 13 April and advising that it would be held on 28 April 1988 at 4.30pm.

22On 28 April 1988 the conference was called off by the plaintiff's solicitors, apparently because the solicitor handling the matter was indisposed.

23On 20 July 1988 the plaintiff's solicitors sent letters to the solicitors for the defendants appointing 11 August 1988 at 4pm as the date and time for the compulsory conference.

24Once again, on 11 August 1988 the respective solicitors for the defendants failed to attend the conference.

25On 21 October 1988 the plaintiff's solicitors wrote to the Registrar of the Court pursuant to O32A, r8(1)(b) of the Rules of Court, requesting an appointment before the Master for the purpose of seeking orders that the defendants or their solicitors attend a compulsory conference at a date and time to be nominated by the Master. The letter stated the grounds of the application to be that pleadings had closed by May 1985, the plaintiff did not wish to interrogate and had not been requested by the defendants to answer interrogatories and discovery had been completed, and the letter explained the unsuccessful attempts which had been made by the plaintiff's solicitors since September 1987 to hold a compulsory conference. On 1 November 1988 an appointment for the hearing of the application was given for 21 November.

26On 16 November 1988 the first, third and fourth defendants filed their application to dismiss the plaintiff's action for want of prosecution.

27On 7 December 1988 the second defendant filed his application to dismiss the plaintiff's action for want of prosecution.

1. An affidavit of the first defendant (the executrix of the original first defendant) was read into evidence. The original first defendant was her mother. She and her sister were executrices of her mother's will, but she alone had been added as a defendant. She and her sister were the sole beneficiaries of her mother's estate. The estate, she said, "small as it was, was distributed over six years ago in June 1982". She said that she had been very close to her mother, whose death was quite sudden and unexpected. She went on:–

"It distresses me to have matters such as this concerning her long past business affairs brought up erratically, especially when very long periods of time, even years on occasions, are allowed to pass by without any murmur at all from the plaintiff company about these proceedings."

1. The applications call for the exercise of a discretion to be determined according to the overall justice of the matter, which depends upon all its facts and circumstances; Closer Settlement Board v Thomas [1982] Tas SR 179 per Neasey J at p186. "Fixed formulae cannot be prescribed to limit the judicial discretion to do what is just between the parties in the circumstances. A balance must be struck as between the parties and, in the end, the court must decide whether or not on balance justice demands that the action should be dismissed"; Nettlefold J at p192 seemingly approving this as a proposition coming from Stollznow v Calvert [1980] 2 NSWLR 749.

1. In Ulowski v Miller [1968] SASR 227 at p280 Bray CJ said that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action left statute–barred, prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation. It is appropriate in this case to consider such matters.

1. So far as the length of the delay is concerned I propose to consider these applications as though they had been made in about October 1987, for I am not persuaded that the plaintiff should be saddled with the time which has passed since then being a material part of the delay. The plaintiff may not have acted with as much haste as might reasonably have been expected of it, but I am satisfied that the cause of the delay from then until November 1988 was to a large extent the conduct, or lack of it, of the defendants or their solicitors. Notwithstanding this however the delay to October 1987 was substantial. The action was commenced in August 1980 and it took a little over seven years for the plaintiff to endeavour to call a compulsory conference under the pre–trial procedures. There were in particular two substantial periods of time in which virtually nothing occurred so far as promotion of the action is concerned. The first period was one of about four years from October 1980 until November 1984. During that time all that occurred, so far as the action is concerned, was that the plaintiff delivered to the defendants' solicitors in November 1982 a notice of intention to proceed. The second period of substantial delay occupied two years three months from May 1985 to August 1987. During that period nothing occurred.

1. The plaintiff has failed to provide any explanation for the delays referred to in the preceding paragraph. The only conclusion I can some to is that neither the plaintiff nor its solicitors have any explanation available to them. In other words none of the delay can be justified.

1. It is clear that there will be hardship to the plaintiff if the action is dismissed, in the sense that the cause of action will then be statute–barred and the plaintiff will no longer be able to proceed with the claim. One of the counsel for the defendants argued that this did not establish hardship because there is no evidence to suggest that the plaintiff would be put into liquidation or would otherwise suffer financial hardship as a result. While I understand what he says, I still consider it will be a hardship if the plaintiff is prevented from proceeding with the action, notwithstanding that particularly severe consequences of that hardship have not been established.

1. There is no evidence of any specific prejudice to the defendants. They have not established that any witnesses have died or become unavailable because of the delay. One of the defendants died in May 1981, but that should not be used against the plaintiff on the hearing of these applications. Further there has been no suggestion made that the evidence at the trial will depend on the recollection of witnesses to any real extent. The statement of claim alleges that in 1977 and 1978 the plaintiff leased to a company four aircraft and also entered into a hire purchase agreement with the company in respect of a fifth aircraft. It alleges that on 21 May 1979 the defendants guaranteed that the company would pay the moneys due under the leases and the hire purchase agreement and would also pay certain navigation charges. It further alleges that the company failed to meet those financial obligations and that the defendants (that is the four original defendants) were therefore obliged to pay the plaintiff $32,969.42. The defence does not admit most of the allegations in the statement of claim and denies all the allegations in two of the paragraphs. The existence of the guarantee is not admitted, and the defence alleges that if there was such a guarantee agreement it was void in so far as the hire purchase agreement was concerned, because of s23(1)(a) of the Hire Purchase Act 1959 "in that, inter alia, such guarantee made payable by the Defendants an aggregate sum that was larger than any balance originally payable under any such hire purchase agreement". The defence pleaded further that that guarantee agreement was void pursuant to s23(1)(b) of the same Act "in that, inter alia, such guarantee required the Defendants to perform obligations in respect of goods other than the goods comprised in a hire purchase agreement". None of these allegations make it appear that the recollections of witnesses will be of any importance. The conclusion I have come to is that no specific prejudice has been established. It is impossible to come to the conclusion that the substantial delay in bringing the action to trial may have had any effect on the strength of the case of the defendants.

1. No blame for the delay to September 1987 can be placed on the defendants. To that time this appears to have been a case where the defendants have been content to allow the action to "go to sleep" when the plaintiff has taken no steps to promote its movement. Delay since then can be attributed largely to the failure of the defendants or their solicitors to attend appointed conferences and to the delay caused by these applications.

1. On balance I have not been persuaded that the plaintiff's action should be dismissed. There has been inordinate and unexplained delay but there is absolutely no evidence of prejudice having been caused to the defendants, and as a matter of justice I am not persuaded that the plaintiff should be prevented from having its action tried. To dismiss the action will constitute a hardship for the plaintiff. To allow the action to proceed cannot be said to be a hardship for the defendants except in so far as they may be troubled or, as stated by the first defendant in her affidavit, distressed, by the action dragging on over a very long period of time without resolution. This is an aspect to which I have given consideration, but it does not persuade me that the action should be dismissed, taking into account all other relevant matters.

1. Accordingly the applications will be dismissed.