TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)

Procedure - Courts and judges generally - Courts - Dismissal of proceedings for want of prosecution - Whether substantial risk of prejudice established.

Closer Settlement Board v Thomas [1982] Tas R 179; Masel v Transport Industries Insurance Co Ltd [1995] VicRp 59; [1995] 2 VR 328, applied.

Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197, referred to.

Judgment Number: [2001] TASSC 70

ATTORNEY-GENERAL (TAS) and TASMANIAN DEVELOPMENT AUTHORITY v ARGO PTY LTD, GEORGE PETER WRIGHT, NATURELAND OF TASMANIA PTY LTD and MICHAEL WINSTON TATLOW

ATTORNEY-GENERAL (TAS) and TASMANIAN DEVELOPMENT AUTHORITY v ARGO PTY LTD, GEORGE PETER WRIGHT, NATURELAND OF TASMANIA PTY LTD and MICHAEL WINSTON TATLOW

1 I agree with the reasons for judgment of Blow J and with the order he proposes.

ATTORNEY-GENERAL (TAS) and TASMANIAN DEVELOPMENT AUTHORITY v

ARGO PTY LTD, GEORGE PETER WRIGHT, NATURELAND OF TASMANIA

2 I have had the advantage of reading the reasons for judgment of Blow J, and subject to one comment, I agree with them and in particular that the appellants failed to discharge the onus of proof which was upon them to show that the justice of the case warranted the dismissal of the action for want of prosecution.

3 I comment that it is my view that the affidavit of Mr Harry was only used before the learned judge at first instance for a limited purpose, that being expressed by the plaintiffs' counsel as "in so far as it deposes to his enquiries in respect of Mrs Auyeung", and counsel vaguely referred to some parts of it. With the benefit of hindsight, it can confidently be said that it would have been preferable if counsel had read the relevant parts of the affidavit or at least identified them with precision. In any event, I do not accept that the appellants' counsel was entitled to rely on those parts of the affidavit which concerned the possible death of Mr Conyngham, when arguing that the learned judge erred. However, that does not affect in any way my conclusion concerning the disposition of the appeal.

ATTORNEY-GENERAL (TAS) and TASMANIAN DEVELOPMENT AUTHORITY v ARGO PTY LTD, GEORGE PETER WRIGHT, NATURELAND OF TASMANIA PTY LTD and MICHAEL WINSTON TATLOW

4 This appeal relates to an action commenced by the four respondents as plaintiffs on 8 May 1990. They sued four defendants: the two appellants, Philip Joseph Chandler (who died in 1994), and Peter Leonard Faircloth. By an interlocutory application filed on 6 December 1999, the appellants sought an order dismissing the action for want of prosecution. That application was dismissed at first instance: Argo Pty Ltd v Attorney-General for the State of Tasmania (No 2) [2000] TASSC 109. The appellants have appealed from the order dismissing their application. They contend that that order should be set aside and the application remitted for rehearing by another single judge. Alternatively, they contend that the order dismissing the application should be set aside, and that this Court should substitute an order of its own dismissing the action for want of prosecution.

5 The statement of claim alleges a course of tortious conduct on the part of the four defendants amounting to knowing and intentional interference with the business and contractual rights of the plaintiffs, unlawfully and without justification, between 22 May 1984 and 25 June 1985. The significant allegations in the statement of claim are as follows. The third respondent ("Natureland") was the holder of a mining lease and had applied for three further mining leases and a licence to operate scheduled premises pursuant to the Environment Protection Act 1973. The mining lease and the various applications were capable of transfer. The other respondents (Argo Pty Ltd, Wright and Tatlow) entered into an agreement with Dranale Pty Ltd for the sale by them and the purchase by that company of all the shares in Natureland and all the units in a unit trust of which it was trustee. The sale price was $3 million. Mr Tatlow advised the Government of Tasmania of the details of the agreement. He also advised the second appellant ("the TDA") and its general manager, the late Mr Chandler, of the terms and effect of the agreement. Negotiations between the respondents and Dranale took place from about 26 June 1984 until after 11 July 1984 as to a possible extension or variation of the agreement. Mr Chandler encouraged the Director of Mines and the acting director of the Department of the Environment to withhold the issue of any licences to Natureland, thus indulging in conduct which amounted to knowing and intentional interference with the respondents' contractual rights, and which was unlawful and without justification. The TDA and Mr Chandler knew of the agreement, had formed the view that the Government should share in any capital gain which might be available, and intended to interfere with the performance of the Dranale contract. Following communications between Mr Chandler and the Premier, the Government withheld the issue of one of the mining licences that had been applied for, and restricted the Director of Environmental Control from issuing necessary licences, until about 25 March 1985. Mala fides are alleged against the Government in respect of the withholding of the leases and licence. In January 1985, Mr Faircloth (the fourth defendant) attended a meeting with representatives of Dranale, who advised him that the development of peat moss as an industry was only marginally viable, but that the development of a sphagnum moss industry was potentially profitable. That information was deliberately withheld from Natureland. The TDA provided the respondents with a copy of a report prepared by it and Dranale as to the marginal viability of peat moss as an industry, not mentioning the potential profitability of sphagnum moss exports, and recommended to the respondents on the basis of that report that they sell their interests to Dranale for only $20,000. The TDA and its officers subsequently purported to arbitrate between Dranale and the plaintiffs without having passed on their information as to the profitability of sphagnum moss, and knowing that Natureland had been required by the Government to submit a full development proposal by the following day. The purported arbitration resulted in the vendors dropping their price from $3 million to $160,000, thereby suffering a loss of $2.84 million. The damages claimed in the action comprised that amount, together with aggravated damages, exemplary damages, interest, and other relief.

6 The learned primary judge quite rightly held that the respondents' delay in prosecuting the action had been inordinate and inexcusable. He correctly identified that pre-writ delay was relevant, in that it compelled them to proceed with expedition in the prosecution of their claim: Bishopsgate Insurance Australia Ltd v Deloitte Haskens & Sells (unreported, Supreme Court of Victoria, Full Court, 9 September 1994); Sacco v Renault (Wholesale) Pty Ltd (unreported, Victorian Court of Appeal, 8 September 1995); Closer Settlement Board v Thomas [1982] Tas R 179 at 183. Astonishingly little progress has been made in the action. The pleadings were closed in 1990. The appellants filed and served a sworn list of documents in September 1990. Copies of some of their discoverable documents were requested in 1993 and, after two years of skirmishing over photocopying expenses, apparently obtained in late 1995. Claims of privilege were made in late 1990. Apparently there is a dispute as to some of those claims, but that dispute has not yet been the subject of any interlocutory application. An interlocutory application as to better discovery was filed in November 1990, but not proceeded with. It seems that nothing of any greater significance happened in relation to the action between 1990 and 17 November 1999, when an application was filed by the respondents seeking leave to take a further proceeding in the action more than six years after the last proceeding therein, pursuant to the Rules of the Supreme Court 1965, O79, r11(2). That application apparently provoked the application for the action to be dismissed for want of prosecution.

7 The learned primary judge considered whether the delay in the prosecution of the action was likely to cause, or had caused, serious prejudice to the defendants, and in particular whether there was a substantial chance that it would not be possible for the defendants to have a fair trial. His Honour concluded that he was not persuaded that the delay would give rise to a substantial risk that a fair trial could not be held, nor that the delay had otherwise resulted, or was likely to result, in serious prejudice to the defendants. The appellants contend that his Honour made a number of errors in reaching his conclusions in relation to the prejudice to the defendants resulting from the delay.

8 Two of the grounds of appeal, grounds 10 and 11, concern the relative significance of the individuals alleged by the respondents to have participated in meetings as representatives of Dranale. Those grounds read as follows:

"10 The learned Chief Justice erred in law and in fact in failing to give any consideration or weight at all to the prejudice caused by the death and disappearance of the witnesses, Auyeung and Conyngham.

11 The learned Chief Justice erred in law and in fact, and his discretion miscarried, in that he failed to proceed on the facts that:

(a) The only Directors of Dranale Pty Ltd were Dorothy Auyeung and Ray Conyngham, and Glenn Thiess and John Miedecke were not connected with that corporation's management nor were they alleged to have taken part in any negotiations with the Respondents.

(b) Conyngham was probably dead or at least unable to be found and Auyeung was unable to be located according to materials presented by both parties."

9 The only information as to the relative significance of the alleged representatives of Dranale was contained in particulars of the statement of claim that had been delivered by the respondents' solicitors. Those particulars were before the learned primary judge. There was no affidavit or oral evidence as to the significance of the various individuals.

10 In par16 of the statement of claim, it was pleaded that from 26 June 1984 until after 11 July 1984, "the Plaintiffs were involved in negotiations with Dranale in relation to the terms and conditions of an extension or variation of that agreement [ie the $3 million agreement] or alternatively the entry into a fresh agreement concerning the subject matter of the said agreement". Lengthy particulars of the alleged negotiations were delivered. Those particulars referred to a series of documents of which copies were annexed, obviously implying that they were true copies of authentic original documents. Messrs Thiess and Miedecke were not mentioned in the particulars relating to the negotiations of June and July 1984, nor in any of the annexures concerning those negotiations One of the annexures purported to be a copy of a telex dated 6 July 1984 to Mr Wright (the second respondent) and Mr and Mrs Tatlow (the fourth respondent and his wife) from Arthur Roy, R A Conyngham, and D Auyeung. The particulars alleged that the respondents' then solicitor spoke to "Mrs D Auyering" [sic] on 10 July 1984. A document purporting to be a note of his telephone attendance on "D Auyeung" on that date was annexed. Another annexure purports to be a telex from Dranale's solicitors to the respondents' solicitors. That document contains references to instructions from Mr Conyngham and instructions as to a representation made by Mr Tatlow to Mrs Auyeung and Mr Conyngham. The next annexure purports to be a telex dated 27 July 1984 from Mr Tatlow to "Mr R Cunningham [sic] and Mrs D Auyeung". A copy of a document purporting to be the $3 million agreement is also annexed to the particulars. It purports to have been executed by Dranale under its common seal, with Mr Conyngham and Mrs Auyeung both signing as directors to attest to the affixing of that seal.

11 In par22 of the statement of claim, it was pleaded that on 27 July 1984 one of the respondents wrote a letter to the Premier advising of a meeting "with the directors of Dranale one Dorothy Auyeung and one Ray Conygham [sic] on the 24th day of July, 1984". Counsel for the appellants, Mr Ellis (who has since been appointed as Senior Counsel), relied on this assertion as evidence that Mrs Auyeung and Mr Conyngham were the only directors of Dranale. The allegation in the pleading is not evidence as to the identity of the directors since the first defendant did not admit the relevant paragraph, the second defendant denied it, the assertions made were not on oath, and the pleading alleges only that an assertion as to the identity of the directors was made in a letter, not that the assertion was true. However, the allegation in par22 is one that should be taken into account in assessing the significance of Mrs Auyeung and Mr Conyngham in comparison to the significance of Mr Thiess and Mr Miedecke.

12 Paragraph 30 of the statement of claim alleges that, on or about 10 January 1985 the defendant Faircloth "attended a meeting with the directors of and representatives of Dranale and was informed that research undertaken on behalf of Dranale indicated that the mining and export of peat moss as an industry was only marginally viable but that the export of the associated substance of sphagnum moss represented a potentially profitable industry". The defendants' solicitors sought particulars of the directors and/or representatives of Dranale attending the meeting. The particulars delivered in reply simply read "Mr Ray Conyngham, Mrs Dorothy Auyeung, Mr Glen [sic] Thiess and Mr John Miedecke" without discriminating between those who were directors and those who were only representatives of Dranale. One of the annexures to the particulars purports to be a report of the alleged meeting by Mr Faircloth to Mr Chandler. It lists the persons attending the meeting, including the following:

13 Mr Tatlow swore an affidavit giving details of the whereabouts of Mr Thiess and Mr Miedecke, but said nothing as to the whereabouts of Mr Conyngham and Mrs Auyeung. Under cross-examination before the learned primary judge, he said the respondent Wright had told him that some tradesmen had told him that they thought Mr Conyngham had died. It was appropriate to infer from Mr Tatlow's silence as to Mrs Auyeung that he did not then know where she was. Before the learned primary judge, counsel for the plaintiffs relied on an affidavit of their previous solicitor, Mr Harry, or at least parts of it, which established that his firm had been unable to find Mrs Auyeung through on-line telephone directory services, nor through searching the ASIC's database. Mr Harry's affidavit contained information from Dranale's solicitor that Mr Conyngham had died, but there is a dispute between the parties as to whether the relevant paragraph in that affidavit was notionally "read" at first instance. Mr Ellis also swore an affidavit asserting that he had not been able to obtain any information as to the whereabouts of "Dorothy Auyeung, Ray Conygham [sic], Glen [sic] Thiess and John Miedeche [sic]", though he did not mention any enquiries that he had made apart from receiving information from a Mr Rowell and the Parliamentary Librarian.

14 The numbering of the paragraphs in the particulars did not correspond to the numbering of the paragraphs in the statement of claim. The particulars of par16 of the statement of claim were set out in par7 of the particulars. Paragraph 16 of the particulars related to par30 of the statement of claim, not par16 of it. This was potentially confusing, and appears to have led the learned primary judge into error. He apparently thought par16 of the particulars related to par16 of the statement of claim. In analysing the allegations made in the statement of claim in relation to conversations, his Honour wrote the following (at par12):

"Paragraph 16 alleges negotiations between the plaintiffs and representatives of Dranale. It appears that the whereabouts of two of the persons named as representatives of Dranale, namely Mr Thiess and Mr Miedeche [sic] are known, but that they have not been approached by the defendants in order to locate the other two, namely Dorothy Auyeung and Ray Conyngham. Particulars delivered under this paragraph indicate that most of the negotiations were conducted or recorded in writing which is identified."

15 From what the learned primary judge wrote about par16 of the statement of claim, it appears that he made the mistake of thinking that Messrs Thiess and Miedecke were alleged to have been involved in negotiations in June and July 1984, whereas their only alleged involvement was in a meeting said to have been held in January 1985. His Honour thereby erred as to the significance of the then unlocated Mrs Auyeung and the apparently deceased Mr Conyngham. In my view, he misapprehended the facts - specifically, the facts as to what the plaintiffs were alleging in their particulars - within the meaning of the Supreme Court Civil Procedure Act 1932, s45(1)(b). In my view, ground 11(a) should succeed on that basis.

16 There is no merit in ground 10, which asserted that the learned primary judge gave no consideration or weight at all to the prejudice caused by the unavailability of Mrs Auyeung and Mr Conyngham. He plainly took their unavailability into account in favour of the appellants, but gave their unavailability reduced weight because of his misapprehension about the significance of Mr Thiess and Mr Miedecke. Ground 11(b) has no merit either. It asserts that his Honour failed to proceed on the fact that Mrs Auyeung was unable to be located. The evidence fell short of establishing that she was unable to be located, and his Honour did take into account the fact that she had not been located. Ground 11(b) also asserts that his Honour erred in failing to proceed on the fact that Mr Conyngham was probably dead. Whether his Honour ought to have made a finding of fact that Mr Conyngham had died depends, in my view, on whether the whole of Mr Harry's affidavit was "read" by counsel for the respondents, as contended by Mr Ellis, or whether, as contended by Mr Burnside QC, only those parts of it relating to Mrs Auyeung were "read". Given the conclusions that I have reached in relation to other grounds of appeal, I do not think that that dispute, nor that part of ground 11(b), need be determined.

17 At first instance, it was common ground between the parties that Mr Chandler, who had been the general manager of the TDA, had died in July 1994. There was also evidence, which the learned primary judge accepted, that a potential witness named Jim Rickard, who had been the chairman of the TDA, had died in the early 1990s. It was alleged in the plaintiff's particulars that Mr Rickard knew Mr Tatlow was the managing director of Argo Pty Ltd and that that company was interested in the affairs of Natureland. Mr Chandler and Mr Rickard are referred to in the notice of appeal in ground 7(a), which reads as follows:

"The learned Chief Justice erred in fact and in law and his discretion miscarried in that he:

(a) held the absence of express evidence from Messrs Richard [sic] or Chandler refuting the drawing of inferences was not likely to be 'unduly' prejudicial, or sufficiently prejudicial to dismiss the action ...".

Ground 8, which also related to Mr Chandler and Mr Rickard, included the following:

"8 The learned Chief Justice erred in fact and in law and his discretion miscarried and/or he failed to extend natural justice to the Appellants in that he acted on an 'impression' that the states of mind alleged by the Respondents were to be proved by way of inference rather than from admissions when:-

(a) such a position was never asserted by the Respondents;

(b) the Respondents did not detail what evidence they relied on; ...".

18 Grounds 7(a) and 8 relate to par12 of his Honour's reasons. In that paragraph, his Honour analysed the allegations in the statement of claim as to a number of conversations, including an alleged conversation on 23 May 1984 between Mr Tatlow and Mr Tilt, an alleged conversation the next day between Mr Tatlow and Mr Chandler, and the alleged negotiations with representatives of Dranale, which I have referred to. His Honour continued:

"Paragraph 17 alleges that by letters signed in July 1984, Chandler directed and encouraged the Director of Mines (Hugh Mackie or Murchie) and the Acting Director of the Department of the Environment (Brian Healey) to withhold the issue of any licences to Natureland.

Paragraph 18 alleges that that conduct was a knowing and intentional interference by TDA and Chandler with the contractual rights of the plaintiffs.

As to these last two paragraphs, it is clear that the plaintiffs are relying on the contents of certain letters and not on oral communications to establish the intentions of the writer (who is now deceased) and the result upon the minds of the recipients, the whereabouts of both of whom are known. The state of mind attributed to Chandler and through him the TDA was that they had formed a view that the government should share in any capital gain which might arise out of the grant of the licences to Natureland. Similar allegations are made later in the statement of claim as to the knowledge and intentions of the government, TDA and Chandler and as to a conspiracy to harm the plaintiffs in respect of which Chandler's evidence, if available, would undoubtedly be material. Nevertheless, the impression I obtain from a perusal of the pleadings and the particulars supplied is that the states of mind alleged are to be proved by way of inference from existing documents rather than from admissions made by any agent of the government or the TDA and that in consequence, the absence of express evidence from Mr Rickard or Chandler refuting the drawing of such inferences is not likely to be unduly prejudicial to the defendants given that the fact that their having died is common ground."

19 Whilst the annexures to the plaintiffs' particulars warranted a conclusion that the plaintiffs were likely to rely on a substantial body of documentary evidence for the purpose of proving the states of mind alleged in the statement of claim, it did not follow that they were likely to rely on little or no non-documentary evidence for the purpose of proving such states of mind. For all the learned primary judge knew, the plaintiffs might have had witnesses who were able to give admissible evidence as to conversations with Mr Chandler and/or Mr Rickard as to their relevant states of mind. If the unresolved disputes as to privilege are one day resolved in favour of the plaintiffs, the inspection of documents presently in controversy might lead to the interviewing of witnesses, as yet unidentified, who could give evidence of statements made by Mr Chandler and/or Mr Rickard as to their states of mind. His Honour's impression that their states of mind were to be proved by way of documentary evidence, rather than admissions, resulted from the drawing of an inference to that effect that was not reasonably open on the evidence. I think it follows that his Honour's adjudication was founded in part on an erroneous finding of fact within the meaning of the Supreme Court Civil Procedure Act, s45(1)(c), and that grounds 7(a), 8(a) and 8(b) should succeed.

20 There were numerous other grounds of appeal, all of which struck me as having less merit than the ones I have referred to. I see no need to determine any of the other grounds. In my view the mistakes made by the learned primary judge in underestimating the significance of Mrs Auyeung and the late Mr Conyngham as potential witnesses, and in inferring that the plaintiffs' case as to the states of mind alleged in the statement of claim was essentially documentary, were so serious that his exercise of the discretion to make the orders sought by the appellants miscarried. It follows that the appellants' interlocutory application must be re-determined, either by this Full Court or by a single judge to whom it is remitted.

21 Mr Ellis submitted that, in the event of it being concluded that there had been a miscarriage in the exercise of the learned primary judge's discretion, the preferable course was for the interlocutory application to be remitted to a single judge for determination. Although there had been cross-examination of Mr Tatlow before the learned primary judge, but no cross-examination before the Full Court, Mr Ellis did not rely upon the advantages enjoyed by a single judge who has observed the demeanour of a witness as a reason for remitting the application. Nor did he rely upon the fact that a party aggrieved by a re-determination by a single judge would have a right of appeal, whereas a party aggrieved by a re-determination by this Court could appeal only if the High Court granted special leave. Those are both matters which weigh in favour of our remitting this matter to a single judge. The possibility that, if the application is remitted to a single judge, more thorough evidence will be adduced as to the likely prejudice to the appellants, and that justice will therefore be better able to be done, also weighs in favour of that course; but Mr Ellis did not seek to have the matter remitted for the purpose of mustering additional evidence and thus taking a second bite at the cherry. Mr Ellis submitted that it would do the appellants a serious injustice for this Full Court to make its own discretionary decision as to whether the action should be dismissed, since it would be necessary for him to convince at least two judges to dismiss the action, and since doing that was inherently harder than convincing one judge to do so. Some counsel might have greater self-confidence when making a submission to a single judge than when facing a Full Court. We have no reason to think that any of the counsel in this case are in that situation. In the absence of any such self-confidence problem, which should not influence the exercise of our discretion, I see no reason why any litigant would be disadvantaged in having an application determined by a multiplicity of judges, rather than a single judge.

22 In my view, all of the arguments in favour of remitting the matter to a single judge are outweighed by the fact that taking such a course would involve a significant further delay, possibly of several months, and significant additional costs. The application to dismiss the action for want of prosecution was made as long ago as December 1999. It has now been the subject of lengthy argument before four of this Court's six judges. There is no suggestion that this Full Court is not in a position to determine the application justly. The delay and expense involved in giving this application yet another judicial outing are simply unwarranted.

23 At the hearing of the appeal, we allowed counsel for the respondents to read three affidavits as to the whereabouts of Mrs Auyeung, not because they were relevant to any grounds of appeal, but because they would be relevant to our final order if we concluded that the decision of the learned primary judge was vitiated by error. On the basis of those affidavits, I am satisfied that Mrs Auyeung is living at a known address in Sydney, and is able to be contacted there. I also accept that she expressed unwillingness to become involved in the action as a witness. Apart from the affidavits as to Mrs Auyeung's whereabouts, the material before us is the same as that which was before the learned primary judge. For the purpose of re-determining the application, I think the just course is to take all of Mr Harry's affidavit as read.

24 The guiding principle for the exercise of a discretion to dismiss an action for want of prosecution is that such an order will be made if the justice of the occasion demands it: Shepperdson v Lewis [1966] VicRp 59; [1966] VR 418 per O'Bryan J at 419; Masel v Transport Industries Insurance Co Ltd [1995] VicRp 59; [1995] 2 VR 328 at 332. The power to dismiss an action for want of prosecution exists as part of the general or inherent jurisdiction of the court, and has not been conferred by any statute or rule of court. The discretion is thus not fettered by any legislative restriction, but it must be exercised in accordance with principles that have been developed by the common law: Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513; Kahavounitis v NRMA Insurance Ltd [1999] TASSC 2 at 4. The principles governing the exercise of the discretion that have been developed are guidelines, rather than binding rules of law: Closer Settlement Board v Thomas [1982] Tas R 179 at 186, 190, 194 - 195; Masel v Transport Industries Insurance Co Ltd (supra) at 332. The discretion must be exercised judicially after taking into account all the circumstances of the case. Particular factors that should be taken into account are the length of the delay, the nature of any explanation given for the delay, and any prejudice to the defendants that has arisen or might arise as a result of the delay: Closer Settlement Board v Thomas (supra); Masel v Transport Industries Insurance Ltd (supra). As I have already said, pre-writ delay is relevant, in that it compels a plaintiff who has delayed substantially before issuing a writ to proceed with expedition in the prosecution of his or her claim.

25 I have already briefly outlined the history of the progress - if that is the right word - made in the action. The respondents have not been entirely idle in relation to the matter since 1991. Apart from the limited progress that was made between 1990 and 1995 in relation to discovery, a certain amount of effort was made between January 1991 and early 1996 in relation to the seeking of legal aid. Legal aid was withdrawn in March 1996. In December 1996, Mr Tatlow approached a Melbourne legal firm, Messrs Slater and Gordon. It took him until September 1998 to reach agreement with them as to the basis of their retainer. Most of 1999 was lost as a result of a dispute as to whether the Hobart agents of Messrs Slater and Gordon were entitled to enter an appearance nominating that firm as their principals. The detailed history of the respondents' dealings with the legal aid authorities and Messrs Slater and Gordon is set out in the reasons for judgment of the learned primary judge, and does not need restating.

26 In relation to one of the grounds of appeal, Mr Ellis submitted that the conduct of Mr Tatlow in relation to the action was so deceitful and reprehensible as to involve intentional and contumelious default, and to an abuse of the process of the Court. He relied on the following passage in the speech of Lord Griffiths, with whom the other members of the House of Lords agreed, in Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1203:

"The principles upon which the jurisdiction to strike out for want of prosecution is exercised were settled by the Court of Appeal in Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229, and approved by the decision of this House in Burkett v James. 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 to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party."

The factual and evidentiary matters relied upon by Mr Ellis in support of that submission, and my conclusion as to each of them, are as follows.

27 The respondents had the writ issued in 1990 without making arrangements for the funding of the proceedings. In my view, those matters do not weigh against them in relation to the present application. Impecunious litigants should not be deterred from seeking to advance just claims. The respondents' writ was issued prior to the enactment of the Legal Profession Act 1993, s131, at a time when solicitors in Tasmania were not entitled to send their clients interim bills in the absence of a contractual term authorising them to do so. The respondents' solicitors were no doubt entitled to require their clients to cover their disbursements from time to time, but no doubt some firms "carry" the disbursements of impecunious clients in some cases. If the failure to fund litigation results in a delay, that is a matter that can be taken into account, but in my view the mere institution of proceedings, even proceedings likely to be very expensive, by an impecunious litigant, is not in itself something that should be taken into account in determining an application of this sort.

28 On 20 October 1993, the defendants' solicitor offered to provide the plaintiffs' solicitors with requested copies of selected discoverable documents of the defendants upon the payment of $743.40 for photocopying expenses. The copies were not provided until late 1995 because Mr Tatlow was not prepared to pay for the photocopies. His taxable income was $32,720 in 1991/1992, $37,427 in 1992/1993, $21,993 in 1993/1994, and over $35,000 in 1995. He and his wife had purchased a house for $295,000 in 1994, subject to a mortgage securing a debt of $167,000. They travelled to Prague in 1994 at a costs of $13,000, apparently for the purpose of establishing an Amway dealership there. They went on another trip to Europe for seven or eight weeks in or about 1992 at their own expense. That was a holiday trip. No doubt Mr Tatlow could have found the money to pay for the photocopies, but chose not to spend his money on this litigation, with the result that it was delayed. This is a factor that should be taken into account against Mr Tatlow, and against Argo as his alter ego, but there is no reason to take it into account against Mr Wright or Natureland.

29 Mr Ellis submitted that Mr Tatlow had made deceitful applications to the legal aid authorities. Certainly he instructed his solicitors to write to the Legal Aid Commission in 1994 asserting that he could not afford to pay for the photocopying of discoverable documents, and that assertion was false. His legal assistance application of January 1991 is annexed to one of his affidavits, but does not appear necessarily to contain anything deceitful. His solicitors apparently sent his three most recent tax returns to the Legal Aid Commission with a letter requesting legal aid dated 1 May 1992. At worst, his assets and liabilities were not disclosed at that time, but that could have been the result of an honest omission on his solicitors' part, rather than deceit on his part. Certainly they offered to prepare applications for legal aid on the application forms that were then current. Given the likely costs of taking this action to trial, there was nothing reprehensible in Mr Tatlow seeking legal aid. Delaying the matter as a result of negotiations in relation to legal aid was inexcusable, but had little to do with any deceit. Mr Tatlow's only deceitful act in relation to the legal aid authorities appears to have been his instructing his solicitors to write asserting that he could not afford to pay for the photocopying. To the extent that the delays in this matter resulted from that deceitful act, they should be given greater weight than ordinarily would be the case, but only in relation to Mr Tatlow and Argo.

30 Mr Ellis submitted that Mr Tatlow could have produced sufficient funds to retain his solicitors' services in preparing the case for trial, but did not. Certainly he could have produced some funds, and produced none, but I am not satisfied that he could have produced sufficient funds to take the case to trial. The funds expended on the trips to Europe might have gone a long way towards funding the action, but may well have been insufficient to cover the trial and all pre-trial steps. The funds used to purchase the Tatlows' house would probably have been sufficient, but the evidence is unclear as to whether those funds were within the control of Mrs Tatlow, who might have been unwilling for them to be spent on this litigation. To the extent that Mr Tatlow had funds at his disposal and chose not to devote them to the litigation, I am not convinced his conduct was so reprehensible as to warrant attaching any additional weight to the resulting delay and its consequences.

31 In his written outline of argument, Mr Ellis submitted that Mr Tatlow "was at the least complicit in the generation and courting of publicity concerning issue of the Writ ... which could only have had one purpose, viz, to bring improper pressure on the Appellants to settle". The only evidence relevant to this submission came from the cross-examination of Mr Tatlow. He said that the media were aware of the writ being issued, and that a journalist telephoned his solicitor, who convened a press conference, which he attended. He said that the television people asked if they could film outdoors because of lighting, and that his solicitor continued the interview in St David's Park, possibly on his way to file the writ. He was present in the park at the time. He did not speak to the media. He denied that his aim was to seek to embarrass and humiliate the Government into paying him. The writ and the statement of claim are matters of public record. In past times the giving of a press conference by a solicitor when issuing a writ was considered so undignified as to be unethical. But we are concerned with the conduct of a litigant in 1990, not a solicitor in less enlightened times. There is no evidence that Mr Tatlow did anything at or about the time the writ was filed that ought to be taken into account against him in determining this application.

32 Argo and Natureland were deregistered in or before 1993. Apparently this was a result of annual returns not being filed. The defendants' solicitor advised the plaintiffs' solicitors of their deregistration in 1993. They were re-registered on 6 August 1997 at the instigation of Mr Tatlow. He had allowed them to remain deregistered for about four years. Their deregistration, and the delay occasioned by their re-registration, provide no excuse for delay in the progress of the action. However, Mr Tatlow's inertia in relation to the need to re-register them was not something morally reprehensible that warrants the giving of greater weight to the delay in the prosecution of the action.

33 During the period of delay, the respondents blamed delays on the legal aid authorities and, by implication, their impecuniosity. Since Mr Tatlow had been able to provide substantial funds for the litigation, and had chosen not to, this was morally reprehensible, at least on his part. I am prepared to accept for the purposes of this application that his inappropriate blaming of legal aid authorities ought to be taken into account against him.

34 The respondents promised in 1990 to swear an affidavit verifying a list of documents after the appellants made discovery. That affidavit has not yet been sworn. This is but one aspect of the general delay in the progress of the action. I do not think the respondents' failure to honour a promise to swear an affidavit makes their delay any more evil than it would otherwise have been.

35 Mr Tatlow's conduct has not involved the sort of intentional and contumelious default referred to by Lord Griffiths in Department of Transport v Chris Smaller (Transport) Ltd (supra). There is no basis for inferring that the institution of the proceedings or anything done or not done in relation to the proceedings was actuated by any improper motive, or was in any other sense an abuse of the process of the Court. Whilst some aspects of Mr Tatlow's conduct are of some significance in relation to the just disposition of the appellants' application, those aspects of his conduct, taken in isolation, come nowhere near warranting the dismissal of the action, even as against him alone. Since morally reprehensible conduct, in an extreme case, will be sufficient of itself to warrant dismissing an action for want of prosecution, I think it must follow that, in less extreme cases such as this, the fact that certain conduct that contributed to a delay in the prosecution of an action was morally reprehensible must be taken into account in determining whether it is just to dismiss the action.

36 I turn to the question of prejudice. I am satisfied, on the basis of the information received by Mr Harry from Dranale's solicitor, that Mr Conyngham died in about 1997. That brings to three the number of significant potential witnesses who have died, the others being Mr Chandler, who died in July 1994, and Mr Rickard, who died in the early 1990s, after the issue of the writ.

37 Mr Chandler's activities and intentions in 1984 and 1985 are central to the plaintiffs' claims of tortious conduct. He was the managing director of the Tasmanian Development Authority at all material times. The plaintiffs allege that Mr Tatlow told him of the details of the $3 million agreement; that he directed and encouraged the withholding of the issue to Natureland of three mining leases and an environmental licence; that he did so because he had decided that the Government should share in any capital gain which might arise from the transfer of Natureland's mining lease, and the benefit of its applications for mining leases and an environmental licence; that he knowingly and deliberately interfered with the plaintiffs' business and their contractual rights; that he signed a letter from the TDA to the Premier (inter alia) suggesting that the Government consider sharing any capital gain arising from the sale of a peat moss mining licence project with the project's initiators; that he wrote another letter to the Premier advising that the directors of Dranale would be prepared to pay the Government significant royalties; that he sent a telex on behalf of the TDA offering financial assistance to Dranale for the preparation of a business plan in relation to a sphagnum peat industry, knowing that the plaintiffs had been required to present a full development proposal for such an industry to the Government; that the TDA agreed to provide Dranale with $20,000 towards such a business plan; that he participated in a decision to withhold from the plaintiffs information that a sphagnum moss industry was potentially profitable, and to try to have the contractual negotiations between the plaintiffs and Dranale concluded on the basis that a peat moss industry was of only marginal viability; that he accordingly participated in the making of a recommendation to the plaintiffs that they sell their interests to Dranale for only $20,000; that he and others purported to arbitrate between Dranale and the plaintiffs at a meeting at which a sale for $160,000 plus agreed royalty payments was agreed to; that he with others had at various times valued the assets sold to Dranale at figures from $1.8 million to $3.32 million; that his conduct was part of a conspiracy; and that he intended to injure the plaintiffs by causing them economic loss. Plainly he would have been a most important witness in relation to nearly every aspect of the case. No application has been made by the respondents for Mr Chandler's legal personal representatives to be made defendants to the action in his place. The respondents no doubt contend that the appellants are vicariously liable for Mr Chandler's alleged torts. If the action proceeds to trial, the appellants will plainly be disadvantaged as a result of Mr Chandler not having lived long enough to be able to give evidence, not only as to what he wrote, but also as to what he said in relevant conversations, and as to what his intentions were at relevant times in 1984 and 1985.

38 From the material before the Court, it appears that the evidence Mr Rickard could have given was significant, but much less significant than in Mr Chandler's case. The plaintiffs allege that Mr Rickard was the inaugural chairman of the TDA, and that he knew Mr Tatlow was involved in Argo as a family company, and knew that Mr Tatlow was Argo's managing director. It is alleged that Mr Rickard knew that Argo was interested in the affairs of Natureland. It is alleged that the Government ought to have known that Mr Tatlow's interest in Natureland involved or might have involved a family company. It would seem that any evidence Mr Rickard could have given might have been important only if the plaintiffs other than Argo were successful in the action, and some question arose as to whether Argo should fail on the basis that its involvement was unforeseen, unknown or too remote.

39 The evidence that the late Mr Conyngham could possibly have given essentially relates to the plaintiffs' contention that, but for the conduct on the part of the defendants that the plaintiffs complain of, Dranale would have completed its purchases pursuant to the $3 million contract. Annexures to the plaintiffs' particulars that purport to be copies of correspondence suggest that Mr Conyngham might have been able to give evidence to the effect that Dranale was induced to enter into that contract by a representation by Mr Tatlow that it was a certainty that the three mining leases and the environmental licence would be granted. Those annexures also suggest that Mr Conyngham could have given evidence that the settlement date stipulated in the agreement was 28 June 1984, and that Dranale was unable to settle on that day, not because of any impropriety on behalf of any of the defendants, but because it did not have the funds required to settle and had not succeeded in obtaining an appropriate loan. The annexures suggest that, before any Government intervention in relation to the applications for the mining leases and the environmental licence, Dranale was agreeable to the original agreement being terminated and its deposit of $50,000 refunded. Mr Conyngham could no doubt also have given evidence as to the allegations in the statement of claim and the plaintiffs' particulars to the effect that Dranale ultimately negotiated a price of $160,000 as a result of the alleged improprieties on behalf of the defendants. There is no evidence to suggest that any relevant piece of evidence within the knowledge of Mr Conyngham is not also within the knowledge of Mrs Auyeung. However, it is often advantageous to have two witnesses, rather than one, giving evidence as to a controversial fact. It is also of some significance that Mrs Auyeung is unwilling to become involved as a witness. She told the plaintiffs' solicitor on 26 February 2001 that she did not want to become involved in the matter "because no one wins".

40 In the light of the significance of the three deceased potential witnesses, I accept that, if the action proceeds to trial, the appellants will be disadvantaged as a result of them no longer being available. However it must be remembered that the appellants came to the Court as applicants, seeking by their interlocutory application an order that the action be dismissed for want of prosecution, and that, as applicants, they bear the onus of establishing on the balance of probabilities the existence of a series of facts warranting the dismissal of the action. Against that background, it is important to consider not only what the appellants have established, but also what they have not established, or not sought to establish. Thorough records are often kept as to the information provided to the holders of high public office, and as to important conversations held by senior public servants. Public servants conducting important and sensitive negotiations often do not do so alone. It is quite possible that practically all of the evidence Mr Chandler and Mr Rickard could have given as to their knowledge, and as to the sequence of events in 1984 and 1985, can be replaced by evidence from other sources, such as admissible records, and the oral evidence of other people present at the times of significant conversations. No evidence has been adduced as to what Mr Chandler or Mr Rickard would have said as to any relevant matter if they were still living. The former Director of Public Prosecutions delivered a defence in the action on behalf of Mr Chandler in June 1990, and must therefore have taken some instructions from him as to the allegations in the statement of claim. That director was also acting as the solicitor for each of the appellants. There is no evidence to suggest that the instructions taken from Mr Chandler were incomplete or in any respect inadequate.

41 There is no evidence that Mr Conyngham was ever willing to be more co-operative than Mrs Auyeung, nor that he was able to give any evidence as to matters not also within Mrs Auyeung's knowledge, or not the subject of admissible documentary records. It is clear that the appellants' legal representatives have not attempted to interview Mrs Auyeung. They had not found out where she was until shortly before the hearing of this appeal. It may well be that she will co-operate with them. The fact that she told the opposing solicitor, when he initiated telephone contact, that she did not want to become involved by no means compels a conclusions that she will not give in and co-operate, or that she will be equally unhelpful to the appellants.

42 The extent to which the delay in this matter has prejudiced the appellants depends in part on how thoroughly the relevant events of 1984 and 1985 have been investigated. In par9 of his affidavit sworn on 17 December 1999, Mr Tatlow said the following:

"The matters subject of this proceeding were heavily documented and have been the subject of extensive scrutiny, including by way of an enquiry conducted by the late Mr W P M Zeeman (as he then was) which was tabled in the Tasmanian Parliament on April 27 1988, which affords plentiful material from which to refresh memory in the event that recollection of events may have dimmed."

43 There is no evidence before us as to the terms of reference of that enquiry, the nature of Mr Zeeman's appointment, or the scope of the evidence received by him. If, as the passage quoted from Mr Tatlow's affidavit suggests, the allegations of fact which form the basis of the plaintiffs' claims were all the subject of some sort of official enquiry which was concluded in or before April 1988, the passage of time has probably not had the usual effect on the availability of evidence. Memories that may have dimmed might be able to be refreshed by reading transcripts or other documents. Documents that might otherwise have become unavailable might still be available.

44 If, as the statement of claim, the particulars, and the annexures thereto suggest, Mr Chandler and others were not motivated by anything other than over-zealousness, then I agree with a comment made by the learned primary judge (reasons, par14), that "there does not appear to have been any occasion to be surreptitious in the making and maintaining of factual records on the part of the relevant actors".

45 In Closer Settlement Board v Thomas (supra), in which the primary judge decided not to dismiss a case for want of prosecution, and the Full Court declined to interfere with that decision, Nettlefold J said the following (at 193 - 194):

"The mere circumstance that people have died who had knowledge of the matters in issue does not show that the defence case cannot be put to the Court adequately. Their knowledge may be the subject of an admissible record or be possessed by others. It does not appear that anyone was prepared to pledge his oath to the precise extent or nature of any alleged prejudice. That was left to inference on materials which do not compel the drawing of that inference."

In my view, all of those words are equally applicable to this case. No doubt the appellants are disadvantaged by the deaths of three potential witnesses, by the dimming of memories, and by the risk that some relevant documents have become unavailable, but the evidence before us falls far short of establishing that there is any significant risk that those matters will result in the appellants not receiving a fair trial or otherwise being seriously prejudiced or disadvantaged.

46 It is now some 17 years since the events alleged in the statement of claim began to occur. It will take some time yet for the parties to get this action ready for trial if it is not dismissed. It seems inevitable that all parties will suffer general prejudice affecting the likelihood of there being a fair trial in some or all of the ways described by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1997) 186 CLR 541. It may be that the enquiry by Mr Zeeman (as he then was) has had the effect of significantly reducing such general prejudice, but it is not clear to what extent, if any, that enquiry is likely to preserve or increase the chances of a delayed trial being a fair one. The appellants have not sought to establish by evidence that that enquiry was of limited scope, or of limited relevance, or lacking in thoroughness.

47 If the action proceeds to trial, the respondents will of course bear the onus of proof. The seriousness of their allegations will operate to reduce the ease with which the burden of proof may be discharged: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Often a long delay before trial will have the effect of making it difficult for a plaintiff to discharge the burden of proof, but this will not always be so. It can often happen that the death or disappearance of witnesses, the dimming of memories, the misplacing of documents, and so forth, will affect the defendants to an action to a greater extent than the plaintiffs.

48 It is true that the respondents' delay over many years has been inexcusable. It is significant, at least in relation to Mr Tatlow and Argo, that the delay was contributed to by morally reprehensible conduct on Mr Tatlow's part. It is inevitable that the appellants will suffer prejudice likely to affect the chances of their receiving a fair trial, for the reasons I have described. However, in the absence of evidence as to the extent to which the appellants have been prejudiced by the deaths of witnesses, and without knowing what impact Mr Zeeman's enquiry has had in relation to the preservation of evidence, I am not persuaded that the likely prejudice to the appellants, considered together with all other relevant matters, is so serious as to warrant dismissing the action for want of prosecution.

49 In my view, the orders of the learned primary judge should therefore not be disturbed. I would dismiss the appeal.