YAP v BAILIFF - [2004] WADC 71

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: YAP -v- BAILIFF [2004] WADC 71

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 13 OCTOBER 2003

DELIVERED : 20 APRIL 2004

FILE NO/S: CIV 2889 of 1994

BETWEEN: CHENG SEE YAP
Plaintiff
AND
BAILIFF
Defendant

Catchwords:

Practice - Western Australia - Application to strike out action for want of prosecution - Delay of six years - Lack of explanation - Delay inordinate and inexcusable - No evidence of prejudice - Consideration of whether trial may not be fair - Case management

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: In person
Defendant: Ms B H Peters

Solicitors:

Plaintiff: In person
Defendant: State Solicitor

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

Burkett v James [1978] AC 297
State of Queensland & Anor v JL Holdings Pty Ltd (1996) 141 ALR 353

Case(s) also cited:

Nil

DEPUTY REGISTRAR HARMAN: On 13 October 2003, I heard the defendant's application to dismiss the action for want of prosecution in general chambers. The parties made their submissions and the order that I recorded was that the part-heard application be adjourned to a special appointment and that any further affidavit of the defendant be filed and served no later than 10 days prior to the re-listed hearing. The defendants solicitor's office subsequently communicated to me that it did not wish to file any further evidence or seek to make any further submissions.
The evidence in support of the application is provided by the defendant's solicitor. The significant features of that evidence and what is apparent from the file indicates that there has been no activity undertaken by the parties during the period from October 1997 until the date of the application, a period of some six years.
The significant events in the life of the action include the fact that the writ issued in April 1994 and a defence was filed in August 1995. Subsequently an order was made that the substituted statement of claim stands as the amended statement of claim. No amended defence has been filed. Throughout the years 1995, 1996 and 1997 the parties were engaged in hearings associated with applications brought by each of them for judgment. The last significant action was on 1 October 1997 when the application of the plaintiff then before the court was adjourned sine die as the plaintiff had failed to pay money into court by way of security for the defendant's costs as had been ordered on 16 May 1996.
According to the terms of the substituted statement of claim the cause of action brought by the plaintiff relates to a failure of the defendant to secure the plaintiffs interests when the defendant was engaged in the sale of the plaintiff's premises. According to the pleading the defendant was so engaged under a writ of fi fa and the property was not put to market according to its value.
The exercise of discretion to dismiss an action for want of prosecution might be contrasted with the court's role in the community as the arbiter of intractable disputes. There is no other mechanism or forum of which I am aware in which the plaintiff could obtain the redress she has sought. For the court to vacate the field of contest entered by the parties would be a serious step indeed and one that ought not be contemplated other than for good cause.
The proper scope for the exercise of jurisdiction was expressed in the judgement of Lord Diplock in Burkett v James [1978] AC 297 at 318 in the following terms:
"The power should be exercised only where the court is satisfied … 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."
There can be no doubt that there has been a period of significant delay on the part of the plaintiff in bringing on the case for trial. By any measure that delay is inordinate.
During the course of the plaintiff's submissions she made reference to what I understood was a recent period of her formal bankruptcy. That would provide some explanation as to why the costs ordered to be secured were not secured and why the plaintiff has demonstrated no interest in the action for six years. However, in the absence of evidence it is appropriate to conclude that the delay of six years is not only inordinate but also inexcusable.
According to the passage that I have quoted above, consideration ought be given to the impact of that delay. Although the onus is on the applicant and the context is such that it might be considered to be not easily discharged, the applicant has chosen to remain silent. I do not know whether there is any basis to conclude that the defendant has been prejudiced.
I might speculate that the transaction or series of transactions the subject of the plaintiff's claim in the action is likely to have been the subject of some formal recording at least on the part of the defendant. Presumably the defendant would have set a reserve price after receiving information or advice, which I would expect to have been in written form. Otherwise conceivably for the purposes of the action the defendant could rely on an historical valuation prepared after the event. I would expect that the defendant could demonstrate that in conducting the sale a procedure had been followed and that there would be some useful documentary evidence.
If any of that analysis accords with reality the only difficulty likely to be experienced in getting up the defendant's case would be difficulty in locating witnesses. For all I know, all of the witnesses that the defendant would intend to call at trial have been proofed and their current whereabouts are known.
There scope of prejudice is potentially wider than any difficulties associated with the task of "getting up the case for trial", but whilst I may speculate as to what may be involved in preparing the defendant's case, I have no idea as to whether the defendant would otherwise be prejudiced by the delay.
I assume that the strength of the applicant's case is that the court might conceive or infer that after a period of time represented by the delay any trial would not be fair. I have already speculated as to what may be the defendant's case. It seems to me that if my speculation accords with reality there is no reason for the defendant to be concerned that the trial would be unfair. If it does not then I suppose that the defendant has realised on the risk confronted by an applicant in bringing an application unsupported by useful evidence. I might add that even if the defendant had some evidentiary difficulties at trial such as that memory had faded, the balancing process brought to bear in considering judgment may take into account the plaintiff's delay in bringing the matter to trial. Simply because that prospect may give rise to an additional layer of complexity in a particular part of a case is a consideration to which there might properly be considered to be a more proportional or measured response than that which the defendant proposes.
In the circumstances of the delay being inordinate and inexcusable I have no interest in whether the delay of the trial would generate unfairness for the plaintiff.
However I consider the impact of delay on the fairness of the trial there is nothing that informs me of any measure of the prospect of a want of fairness sufficient to justify striking out the action. It seems to me that it would be a bold step for the court to take to come to the conclusion that there is a substantial risk that there could not be a fair trial in the absence of useful evidence.
In advancing submissions in support of the application the defendant appeared to favour the view that in the absence of any useful evidence the significant hurdle presented by the second part of the test expressed by Diplock LJ may be met by reference to the impact of case management.
Case management expresses a strategy implemented by the court to bring actions on for hearing within a reasonable period of time. Otherwise it provides a datum for analysis of delay. I understood from the defendant's submissions that case management might stand for or establish something more than that. I accept that the fact that the court has been motivated to introduce some markers of progress in bringing a case to trial may indicate that it considered that to do so was somehow justified. Yet I struggle to find something akin to principle that resides in or is reflected by case management. The implementation of such a policy has been described as a second order consideration by the High Court in State of Queensland & Anor v JL Holdings Pty Ltd (1996) 141 ALR 353.
In my opinion there is no principle expressed by Diplock LJ in the passage that I have quoted above, however at least it expresses the considerations that might bear upon the exercise of jurisdiction. By comparison, in my opinion, once delay has been found case management has nothing more to say.
Although the case management time-table and the considerations that found case management provide an easy point of reference, the fact that the plaintiff by any measure is out of time in bringing an action on for trial of itself is of little significance. Whatever impact case management may have it would be unwise to speculate that it is not possible to have a fair trial simply because of the effluxion of time.
As I indicated to the defendant at the hearing, I consider that the case put fell considerably short of the mark but that it was conceivable that if there was evidence in relation to the impact of the delay on the defendant then it was conceivable that the defendant would be successful.
In light of the fact that the defendant has chosen not to provide any further evidence, in my opinion to exercise discretion as the defendant seeks would demonstrate the exercise of jurisdiction simply because I could do so rather than for good reason. Accordingly, the application will be dismissed.