"AN" v State of NSW

SOLICITORS : Ms G Fuller Crown Solicitor's Office (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13923/ 1992 - "AN" v STATE OF NEW SOUTH WALES

JUDGMENT (Dismissal of proceedings - want of prosecution) 1 MASTER: By notice of motion filed 25 February 2002, the defendant seeks an order that these proceedings be dismissed or alternatively stayed for want of prosecution pursuant to Part 33 r 6 of the Supreme Court Rules (SCR). The defendant relied on the affidavit of Gillian Fuller affirmed 13 March 2000 and 22 February 2002. As the plaintiff did not appear at the hearing, the court has taken into account an affidavit by him sworn and declared on 13 September 2000 and a report by Dr Peter Anderson dated 17 May 2001 (Ex A on 3 April 2002).

These current proceedings 2 These proceedings have had a long and sad history. A history of the steps taken in these proceedings is as follows. 3 On 15 August 1992, the statement of claim was served. 4 On 17 August 2002, the plaintiff issued a subpoena to the Department of Community Services (DOCS) requiring it to produce all records relating to his son. This subpoena was returnable on 26 August 1992. On that day objection was taken on behalf of DOC to the subpoena and the registrar stood the matter over for hearing before the Prothonotary on 28 September 1992. 5 On 28 September 1992, the Prothonotary ordered that the subpoena and another subpoena addressed to the Police Department be set aside and ordered the plaintiff to pay the defendants' costs. 6 On 12 February 1993, the defendant filed a notice of motion to have the statement of claim dismissed as no reasonable cause of action was disclosed. 7 On 9 March 1992, that notice of motion was returnable before Registrar Harrison and was adjourned to 31 March 1993 for mention. On 31 March 1993, the notice of motion was further adjourned to 23 April 1993. On 23 April 1993, the notice of motion was further adjourned to 21 May 1993 and the plaintiff was ordered to pay the defendant's costs of the appearance on 23 April 1993.

Proceedings 11844/1993 8 Meanwhile, these proceedings occupied a great deal of the plaintiff's time. 9 On 20 May 1993, the plaintiff in his capacity as tutor for his son commenced proceedings in the common law division of this court against the State of New South Wales and other defendants. Those proceedings are No 11844/1993. Those proceedings involve allegations of negligence by DOCS in the investigation of child abuse allegations concerning the plaintiff's son. The court ordered that the plaintiff and his son be referred to as pseudonyms, namely the plaintiff was to be referred to as "HF" and his son was to be referred to as "TC". 10 Proceedings No 11844/1993 have occupied approximately 80 hearing days commencing on 14 October 1997. On 11 February 1999, Studdert J delivered judgment in relation to the issue of whether the defendant owed TC a duty of care and if so, whether it had been breached. 11 The matter was listed for a further 10 days hearing before Studdert J commencing 13 March 2000. 12 On 11 November 1997, pursuant to an order of Sperling J the plaintiff was removed as the tutor in proceedings No 11844/1993. 13 The plaintiff appealed the decision of Sperling J. On 8 December 1997, the plaintiff's appeal was dismissed by the Court of Appeal.

These current proceedings continued 14 On 10 December 1993, the plaintiff filed a further amended statement of claim in these proceedings. This amended statement of claim has been the subject of a strike out application, which I will refer to, in chronological order in this judgment. 15 On 13 December 1993, the plaintiff filed a notice of motion seeking an extension of time to commence proceedings under ss 58 (2) and 60 (2) of the Limitation Act 1969 (NSW). On 4 January 1994, the defendant filed its defence and inter alia pleaded the Limitation Act. On 1 March 1994, the plaintiff's application for an extension of time to commence proceedings under the Limitation Act was dismissed by Master Greenwood. The Master stated that the plaintiff could not obtain an extension of time within which to grant an extension under the limitation act based on a cause of action for defamation. The master also stated that even if the plaintiff's action could be characterised as one of personal injury the plaintiff must fail, as he could not bring himself within the terms of ss 57 and 58. 16 On 18 March 1994, these proceedings were listed before Simpson J for directions in the defamation list. There was no appearance on behalf of the plaintiff and the matter was adjourned to 8 April 1994. On 18 March 1994, Simpson J made an order that until 8 April 1994 there be no publication of any material that could identify the son of the plaintiff. 17 On 8 April 1994, Simpson J made the following directions and orders: (i) The defendant is to take steps to notify the plaintiff of the Short Minutes of Order. (ii) Reply to be filed and served on or before 22 April 1994. (iii) Particulars to Reply to be sought by the defendant on or before 6 May 1994 and to be given by the plaintiff on or before 20 May 1994. (iv) The plaintiff to give verified discovery on or before 3 June 1994. (v) Interrogatories (not limited to 30) to be filed and served on or before 17 June 1994. (vi) Verified answers to interrogatories to be filed and served on or before 1 July 1994. (vii) Liberty to restore on 3 days notice. 18 On 23 August 1996, the proceedings were listed for directions in the defamation list before Levine J. They were adjourned to 6 September 1996. 19 On 6 September 1996, the matter was again listed before Levine J. Levine J made the following orders: (i) The plaintiff to file and serve any reply on or before 26 September 1996; (ii) The defendant to request any further and better particulars of the reply by 11 October 1996 and the plaintiff to supply the same on or before 25 October 1996; (iii) The parties to file and serve verified lists of documents by 8 November 1996 and permit inspection within 7 days thereafter; (iv) Proceedings be stood over generally with liberty to restore on 3 days notice; (v) The plaintiff's solicitors to file a notice of appearance and address for service within 14 days. 20 On 30 November 2001, at a callover Levine J further extended the timetable and made the following orders: 1. Particulars of the statement of claim to be sought by 7 December 2001 and to be given by 21 December 2001.

2. Reply to be filed and served on or before 21 January 2002. 3. Particulars of the reply to be sought by 28 January 2002 and to be given by 8 February 2002. 4. All parties to give verified discovery on or before 8 February 2002. 5. Inspection to take place within 21 days of the time limited for the giving of discovery. 6. Liberty to restore on 7 days notice. 21 On 4 December 2001, the defendant requested particulars. To date the plaintiff has not responded to that request. 22 On 4 October 2001, Adams J delivered judgment in relation to a strike out application filed on 13 March 2000. As a result, paragraphs 10, 11 and 13 of the amended statement of claim (ASC) remain on foot. The other paragraphs of the ASC have been dismissed. 23 The paragraphs of the ASC that remain on foot state: "10. The allegation contained in the statements referred to in paragraph 4 hereof were repeated by Barbara Burgess and other officers of the Department on a number of other occasions between May 1984 and July 1986. 11. In or about March 1992 an officer of the Department of Family and Children's Services, namely Wendy Gilmour, said to Mr. Stephen Stockwell a producer with the Australian Broadcasting Commission's "Four Corners" program, words to the effect of "Beware of Mr. Andy Soames, he is violent and a dangerous man, has bombed a number of solicitor's offices, is well known to the police and implicated in the fire bombing of a night club". 13. By reason of the matter complained of, the Plaintiff has been injured in his reputation, standing, character, profession, occupation and credit and has been and will be held up to public odium, ridicule, scandal and contempt and has suffered and will continue to suffer damage." 24 On 25 February 2002, this notice of motion was filed. 25 On 5 March 2002, the court made the following orders: (1) Defendant to notify plaintiff that he is to file and service affidavit explaining non-compliance with order of Levine J of 30 November 2001. If there is no attendance by the plaintiff on the next occasion the Master has indicated that she will dismiss the matter for want of prosecution.

(2) Stood over 3 April 2002 at 9.30am before the registrar.

(3) Plaintiff to pay the defendant's costs of today. 26 On 3 April 2002, the court made the following orders in relation to the defendant's motion for dismissal filed 25 February 2002. (1) Direct the plaintiff to file and serve any affidavit he intends to reply upon on or before 31 July 2002. (2) Refer plaintiff to a registrar for referral to solicitor or barrister for Pro Bono assistance pursuant to Part 66A(4) SCR. The assistance required is representation at the dismissal application listed for hearing on 5 August 2002. (3) Costs of today are reserved. 27 On 26 August 2002, the court noted that the plaintiff had not been referred to the Pro Bono scheme. The matter was stood over to 18 October 2002 at 9.30 am before the registrar and costs were reserved. On 18 October 2002, the matter went before Registrar Younes. There was no appearance by the plaintiff and the matter was stood over to 7 November 2002. On 7 November 2002, the plaintiff appeared in person and Registrar Younes specially fixed the motion before this court on 19 February 2003 at 10.00 am for hearing. 28 The plaintiff did not appear at the hearing on 17 February 2003 but forwarded a facsimile transmission. It stated as follows: "About hearing of today 19/2/03 I'm asking the court to adjurn (sic) the hearing today for six months because I am suffering from severe depression and many other illnesses. And I cannot attend today hearing. Sincerely Andy Soames 19/2/03" 29 The fax was not accompanied by a medical certificate.

Law in relation to want of prosecution 30 Part 33 r 6(2) and (3) provide: "(1) …

(2) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any part or of its own motion, stay or dismiss the proceedings.

(3) The Court may not make an order under subrule (2) without giving the plaintiff a reasonable opportunity to be heard."

31 In Hoser v Hartcher [1999] NSWSC 527 Simpson J at 19 stated: "19 It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive: 20 (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet , unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited , unreported, 19 November 1995, per Sperling J; 21 (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan , per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D; 22 (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited , unreported, 16 December 1994, per Levine J; 23 (4.) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. 24 (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity: Calvert v Stollznow , 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation , unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited , unreported 25 July 1997, per Levine J; Hart v Herron , unreported, 3 June 1993, Court of Appeal per Priestley JA; 25 (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow , per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings, and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example, at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time; 26 (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise; 27 (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke , supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay; 28 (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: McBride v ABC , unreported, 6 November 1998, per Levine J; 29 (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P; 30 (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan , per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice." 32 This analysis has been adopted by Levine J in Gill v Eatts & Ors (1999) Aust Torts Reports 81-529. I respectfully agree that this is a most helpful analysis.

33 These proceedings are now over 10 years old. There has been an extensive number of directions, none of which have been complied with by the plaintiff. Although these proceedings would not have been at the forefront of the plaintiff's mind while his son's proceedings were litigated, his son's proceedings were finalised in 1997, ie., over 5 years ago. Still nothing has happened despite numerous directions being given. 34 The plaintiff still has not filed a reply nor answered particulars. The matter has hardly advanced from the filing of a statement of claim. From 2 March 2002, the plaintiff has not complied with an order that he file an affidavit explaining his non-compliance with previous orders. There is no evidence as to what steps the plaintiff has taken after being referred to the Pro Bono scheme. On the morning of this hearing the plaintiff forwarded a fax saying he is severely depressed and has many other illnesses but failed to attach a medical certificate which would support his application for another adjournment for a period of a further six months. On 17 May 2001, Dr Anderson psychiatrist provided a report which diagnosed the plaintiff as suffering from chronic post traumatic stress disorder and depression. Dr Anderson stated that these psychological symptoms have been present for 20 years since the birth of his son. This medical evidence does not suggest that the plaintiff is not able to prosecute his claim. 35 The defendant submitted that it has not sat back and done nothing over the last 10 years. The defendant further submitted that now some 10 years later, it still does not know the case it has to meet. Since the decision of Adams J in 2001, the issues have been somewhat narrowed but they revolved around certain oral statements alleged to have been made. I accept with the passing of 10 years the quality of evidence will be adversely affected. The defendant's witnesses will be obliged to recall conversations which occurred as far back as 1984 and 1986. The issue of damage suffered the plaintiff in relation to statements made will be difficult to assess due to the plaintiff's life experiences and resulting psychological state. In light of the plaintiff not proffering any proposed timetable nor detailing any steps he is prepared to take to ensure that his matter is ready to proceed to trial, and the effluxion of 10-15 years since the alleged statements were made, it is my view that the defendant will no longer be afforded a fair trial. While I have sympathy for the position the plaintiff finds himself in, it is my view that justice is best served if the remaining paragraphs of the ASC are dismissed. 36 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs of the motion and of the proceedings. 37 The court orders:

(1) The balance of the ASC filed 10 February 1993 is dismissed.

(2) The plaintiff is to pay the defendant's costs of the motion and of the proceedings. **********

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