Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells [1999] 3 VR 863

Hughes v Gales (1995) 14 WAR 434

Jakovljevic v L & B Doslov [2000] WASCA 131

Lewandowksi v Lovell (1994) 11 WAR 124

Monaveen Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v ABB Service Pty Ltd [2004] WASC 5

Noye & Anor v Gwilliam & Anor [2002] WASC 227

Noye & Anor v Thoy [2000] WASC 323

Roddan v Gwilliam & Anor [2005] WASCA 209

The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93

Birkett v James [1978] AC 297

Coe v Commonwealth [1979] HCA 68; (1979) 24 ALR 118

Dalgety Australia Ltd v Rubin, unreported; SCt of WA; Library No 5485; 24 August 1984

Day v William Hill (Park Lane) Ltd [1949] 1 KB 632

Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365

Kimberley Downs Pty Ltd v The State of Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986

Muto v Faul [1980] VicRp 3; [1980] VR 26

Niven v Grant (1903) 29 VLR 102

Noye v Gwilliam [2006] WASC 183

Packhard v Transport, Trading & Agency Co Ltd & Weir (1912) 14 WALR 191

Smith v McCusker QC [2000] WASCA 320

1 MASTER NEWNES: This is an application by the defendant ("Mr Thoy") for an order that the plaintiffs' claim be dismissed for want of prosecution.

2 The action was commenced by writ filed on 26 April 2000. A statement of claim was filed on 30 June 2000. In the statement of claim it was alleged that, from February 1990 to December 1990, Mr Thoy, then a police officer, conducted an investigation into the theft of diamonds from the Argyle Diamond Mine. In February 1992, the first plaintiff ("Mr Noye"), who was also then a police officer, was instructed to investigate matters relating to Mr Thoy's investigation and make a report in writing to his superiors. Mr Noye compiled and submitted a report in December 1992.

3 It was alleged that, between 20 January 1993 and 11 November 1993, Mr Thoy made a series of wilfully false allegations of criminal conduct regarding the second plaintiff ("Mr Roddan") and Mr Noye to Inspector Robbins of the internal affairs unit of the Police Service. It was alleged that as a result of those allegations, on 11 November 1993, Inspector Robbins swore a complaint which alleged that Mr Noye had attempted to pervert the course of justice in the course of his investigations. The plaintiffs alleged that Mr Thoy had no reasonable or probable cause for making the allegations and that in making them he was actuated by malice.

4 The plaintiffs alleged that as a result of further allegations made by Mr Thoy, Inspector Robbins swore a complaint against Mr Roddan alleging that Mr Roddan procured Mr Noye to pervert the course of justice in the course of his investigations. Similarly, it was again pleaded that Mr Thoy had no reasonable or probable cause for making the allegations and was actuated by malice.

5 The plaintiffs were committed to the District Court for trial. In the statement of claim the plaintiffs pleaded that Mr Thoy provided assistance and information to the prosecution in the preparation of the prosecution case for trial. On 8 October 1998, the Crown entered a nolle prosequi in respect of each charge.

6 The plaintiffs claimed against Mr Thoy damages for malicious prosecution, misfeasance in public office, conspiracy by unlawful means to injure or cause detriment and breach of a duty of care. They also claimed aggravated and exemplary damages.

7 On 28 July 2000, Mr Thoy's solicitors filed an application to strike out the statement of claim on the ground that it disclosed no reasonable cause of action or was embarrassing. On 15 September 2000, orders were made by consent striking out the statement of claim and giving leave to the plaintiffs to replead within 28 days.

8 The plaintiffs filed a minute of proposed substituted statement of claim on 16 October 2000. Mr Thoy's solicitors filed objections to it on 19 October 2000. The plaintiffs then filed an amended statement of claim on 31 October 2000. On 3 January 2001, Mr Thoy's solicitors wrote to the plaintiffs informing them that they intended to file an application that the proposed statement of claim be disallowed. That application was filed on 4 January 2001.

9 The application to strike out the statement of claim was heard at a special appointment on 7 March 2001. The statement of claim was struck out and the action dismissed: Noye & Anor v Thoy [2000] WASC 323.

10 On 26 March 2001, the plaintiffs applied for leave to appeal against that decision and obtained leave. The appeal was listed for hearing on 24 May 2001. On the day before the hearing, Mr Thoy's solicitors consented to the appeal being allowed and the plaintiffs being given until 8 June 2001 to file a minute of proposed substituted statement of claim. A minute of proposed substituted statement of claim was in fact filed on 8 June 2001. The solicitors for Mr Thoy filed objections to the minute on 10 August 2001.

11 It seems the matter then fell dormant until a status conference, convened by the Court, took place on 22 November 2001. At the status conference, the plaintiffs were given leave to file and serve a further minute of proposed substituted statement of claim by 13 December 2001. The minute was filed on 12 December 2001. Mr Thoy's solicitors filed a schedule of objections to the minute on 29 January 2002.

12 On 21 February 2002, the plaintiffs wrote to Mr Thoy's solicitors saying that the statement of claim had been amended in light of the objections. The plaintiffs enclosed a draft minute of consent orders and said they would be able to file and serve an amended statement of claim in terms of the consent orders within 7 days. Mr Thoy's solicitors responded by suggesting that the consent orders be altered to provide for the plaintiffs to pay for Mr Thoy's costs of objecting to the earlier minutes of proposed statement of claim.

13 The costs question was the subject of further, fruitless, correspondence, until, on 22 April 2002, a further status conference took place when Mr Thoy's solicitors sought an order for the costs. The case management registrar reserved her decision. On 30 April 2002, the case management registrar ordered the plaintiffs to pay Mr Thoy's costs of objecting to the early minutes and directed the plaintiffs to file and serve any further minute of proposed statement of claim by 20 April 2002.

14 On 31 May 2002, Mr Roddan contacted Mr Thoy's solicitors to say that he intended to appeal against the decision of the case management registrar. On 13 June 2002, Mr Thoy's solicitors wrote to the plaintiffs saying that unless a notice of appeal was received by the following day, they would lodge a bill of costs for the taxation of the costs awarded to Mr Thoy by the case management registrar.

15 On 30 July 2002, the plaintiffs filed an application for leave to appeal against the orders of the case management registrar on the question of costs and sought an extension of time within which to make the application. The application for leave to appeal was heard by Master Sanderson on 7 August 2002. Master Sanderson allowed an extension of time for making the application, but dismissed the appeal.

16 It seems the matter came back before the case management registrar on 8 August 2002, at which time Mr Roddan sought to have her disqualify herself on the basis that he had a reasonable apprehension she was biased against him. The registrar adjourned the matter sine die to consider that application. It seems that the matter did not come back on again until 21 February 2003 when it was listed before a different case management registrar. On that occasion, a springing order was made requiring the plaintiffs to file and serve a minute of proposed substituted statement of claim by 21 March 2003. That minute was filed on 20 March 2003. That is the current minute and no order has been made in respect of it.

17 In the meantime, in April 2002, in another action brought by the plaintiffs, the defendants to that action, Messrs Gwilliam and Schubert, sought to have it dismissed for want of prosecution. On 26 September 2002, Master Sanderson dismissed Mr Roddan's action against Messrs Gwilliam and Schubert on the ground that Mr Roddan's right to bring the action had passed to his trustee in bankruptcy as a result of Mr Roddan's bankruptcy between 1992 and 1997: Noye & Anor v Gwilliam & Anor [2002] WASC 227. Final orders were made on 5 February 2003.

18 Mr Roddan filed a notice of appeal against the decision of Master Sanderson on 26 February 2003. It appears that nothing further of any significance was done to prosecute the appeal until, on 22 August 2003, the defendants' solicitors applied to have it dismissed for failure to comply with O 63 r 2 or O 63 r 7(1). That led to some renewed activity on Mr Roddan's part but the appeal continued to proceed slowly and by 28 November 2003 the appeal book had still not been settled.

19 On that date, there was a status conference in this action in which Mr Thoy's solicitors informed the case management registrar that the matters the subject of the appeal were so germane to this action that it was inadvisable to take any further steps in this action until the appeal was determined. The case management conference was adjourned sine die.

20 Mr Roddan's appeal apparently continued to languish and finally, on 20 July 2005, the defendants' solicitors applied to have it dismissed for want of prosecution. The Court of Appeal dismissed the appeal on 7 October 2005 and published its reasons on 10 November 2005: Roddan v Gwilliam & Anor [2005] WASCA 209.

21 There was also in the course of this action another intervening event. Between June and August 2003, a Royal Commission heard evidence relating to the police investigation into the theft of diamonds from the Argyle Diamond Mine. The evidence was heard over approximately 30 hearing days. Messrs Noye and Roddan attended on most days of the hearing, as did Mr Thoy's solicitor.

22 A status conference in this action was held on 11 July 2003. Both Mr Thoy's solicitor and the plaintiffs informed the case management registrar that for practical purposes it was not possible to advance this action until the Royal Commission had finished hearing the evidence on this term of reference.

23 It seems that this action then remained dormant until, on 25 January 2006, Mr Noye wrote to the Principal Registrar requesting that the status conference be re-listed. The status conference was held on 28 April 2006 and was attended by Mr Thoy's solicitor. Neither Mr Roddan nor Mr Noye appeared. It appears from the evidence that that occurred by way of an oversight. The status conference was adjourned sine die.

24 On 2 May 2006, the plaintiffs wrote to Mr Thoy's solicitors saying, among other things, that they were anxious to resume the proceedings as soon as possible and suggesting that steps be taken to fix another date for a further status conference. Mr Thoy's solicitors responded on 5 May 2006, saying that they had numerous objections to the minute of proposed statement of claim of 20 March 2003 but, in any event, had instructions to apply to strike out the action for want of prosecution.

25 The current application was made on 9 August 2006.

26 It was submitted that although between 2000 and 2003 the plaintiffs had produced five different statements of claim, or minutes of statement of claim, there was still no satisfactory statement of claim on foot. The last substantive step taken by the plaintiffs in the action was the filing of the minute of 20 March 2003 and that minute is objectionable in a number of respects.

27 In fact, no step was taken by the plaintiffs in the proceedings after March 2003, other than arranging for a status conference to be convened on 28 April 2006, which they failed to attend. In more than six years since the proceedings were commenced the plaintiffs have not proceeded even to the point of having a statement of claim in acceptable form.

28 The events on which the plaintiffs rely go back to the period between 20 January 1993 and 11 November 1993 when it is alleged Mr Thoy made wilfully false representations to Inspector Robbins. That is some 13 years ago.

29 Although between 2000 and 2003 the plaintiffs were unsuccessfully attempting to formulate an acceptable statement of claim, this still relevantly constitutes delay. No explanation has been put forward by Mr Roddan or Mr Noye for the delay since that time.

30 Counsel for Mr Thoy acknowledged that at a status conference on 28 November 2003 Mr Thoy's solicitors had told the registrar that the matters the subject of Mr Roddan's appeal in the other proceedings were so relevant to the action that it was inadvisable to take further steps until the appeal was determined. But, counsel submitted, that does not assist the plaintiffs because unnecessary delay was caused by the failure of Mr Roddan to prosecute the appeal, leading eventually to the appeal being struck out for want of prosecution. Very little delay was caused by the Royal Commission. It was agreed between the parties that it was impractical to pursue this action while the Royal Commission was taking evidence, but that was a matter of only some 30 days.

31 Counsel for Mr Thoy submitted that while there would undoubtedly be hardship to the plaintiffs if the action were dismissed, as any fresh action would be statute-barred, that hardship is clearly outweighed by the prejudice caused to Mr Thoy by the plaintiffs' delay in prosecuting the action. The risk caused by the delay is obvious. Some 13 years have passed since critical events are alleged to have occurred and there will clearly be further substantial delay before the matter can get to trial, given that there is not yet even a statement of claim in an acceptable form.

32 Moreover, the allegations against Mr Thoy are extremely serious and go to the heart of his reputation as a former serving police officer. In addition, Mr Thoy has deposed that he has a number of health problems which have been exacerbated by these proceedings and that he now lives interstate and will have the additional disadvantage of having to defend the proceedings from Tasmania, if they are allowed to continue. Mr Thoy has had these proceedings hanging over him since June 2000 and will continue to have them hanging over him for some time to come if the action is not dismissed.

33 It was submitted that in circumstances where the plaintiffs have effectively done nothing which has advanced the action since filing the writ - and nothing at all in an endeavour to advance it since March 2003 - and where they have offered no explanation for their failure to take any steps after March 2003, and in light of the inevitable prejudice which will be caused to Mr Thoy if the action is allowed to proceed, it should be dismissed at this stage.

34 The plaintiffs argued that although the matter has proceeded slowly, none of the delay has been occasioned by any intentional or contumelious conduct by them. They have at all times complied with the orders of the Court and the substantive delay has been caused by the protracted, unsuccessful, appeal by Mr Roddan and by delays associated with the Royal Commission. The case the plaintiffs seek to make against Mr Thoy has been clear from the outset, regardless of technical defects in the statement of claim. It was also submitted that Mr Thoy had acquiesced in the delay and it is not now open to him to complain about it.

35 The plaintiffs said that there was an agreement between the parties effectively to suspend the progress of this matter until the outcome of the Royal Commission and Mr Roddan's appeal respectively were known.

36 On 1 July 2002, the Royal Commission into the Western Australian Police Service was instituted and in the latter part of 2002 it was publicly announced that investigations into the Argyle diamonds theft would be a term of reference. The Royal Commission heard evidence in relation to that matter between mid-June 2003 and mid-August 2003. The Royal Commissioner's report was provided to the Attorney General on about 31 January 2004 and the final report of the Royal Commission was released by the government on 2 March 2004.

37 It was submitted that between 26 September 2002 and 2 March 2004 the parties were awaiting the outcome of Mr Roddan's appeal and the Royal Commission. Between 2 March 2004 and 7 October 2005 the parties, by mutual consent, were not proceeding with this action because they were still awaiting the outcome of Mr Roddan's appeal to the Court of Appeal.

38 The fact that Mr Thoy had acquiesced in the delay was clearly evidenced by the fact that no objection had been made to the minute of proposed substituted statement of claim for almost three years after it was filed on 20 March 2003. Nor had Mr Thoy attempted to bring the matter back to court to force the pace or bring it to a head.

39 It was submitted by the plaintiffs that no weight could be given to the medical conditions claimed by Mr Thoy in his affidavit as there was no medical evidence to support them and, in any event, no demonstrated relationship between those medical conditions and the plaintiffs' case against him.

40 The plaintiffs submitted that Mr Thoy would not be disadvantaged by the delay because there were ample documents from which he could refresh his memory, both from the time of the investigation by Mr Noye and from the evidence given at the Royal Commission.

41 An action should be dismissed for want of prosecution where the Court is satisfied either that the delay has been intentional or contumelious, or that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers and the 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 defendant: Lewandowksi v Lovell (1994) 11 WAR 124 at 133.

42 The matters which will usually be relevant to the Court's discretion to dismiss a claim for want of prosecution were recently considered by the Court of Appeal in The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 at [99] - [103]. They are as follows:

3. the hardship to the plaintiff if the action is dismissed and the cause of the action is left statute-barred;

4. the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and

5. the conduct of the defendant in the litigation.

43 The Court made it clear, however, that it is inappropriate to use these matters as a checklist and the ultimate test is what justice in all its relevant notions or senses requires in the circumstances of the case.

44 While the relevant delay is that which occurs after the issue of the writ, a late start makes it more incumbent upon the plaintiff to proceed with all due speed, and a pace which might have been excusable if the action had been started sooner may be inexcusable in light of the time that has already passed before the writ was issued: Lewandowski v Lovell (supra) at 134.

45 Delay can be constituted by a failure to prosecute an action in a way which would enable the interlocutory steps to be concluded within a reasonable time. There may, therefore, be a want of prosecution during a period in which the plaintiff is involved in continuing unsuccessful attempts to establish a proper pleading: Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells [1999] 3 VR 863 at 876 - 877; Monaveen Pty Ltd (Receivers and Managers Appointed) (Administrator Appointed) v ABB Service Pty Ltd [2004] WASC 5. Generally, therefore, delay is not to be measured simply by the amount of activity by the plaintiff but rather by the amount of progress that the plaintiff has made.

46 Where there has been substantial delay, that delay of itself may lead to an inference of serious prejudice without specific evidence of prejudice: Hughes v Gales (1995) 14 WAR 434; Jakovljevic v L & B Doslov [2000] WASCA 131. Where a claim is made against individuals relating to their probity or competence, especially their professional competence, it is not hard to infer that the defendant against whom allegations are made is under a heavy burden. It is then easier still to infer serious prejudice of a relevant kind: Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells (supra); The Hancock Family Memorial Foundation Ltd v Fieldhouse (supra) at 148.

47 It is in the light of those principles that I turn to the merits of Mr Thoy's application.

48 The plaintiffs have proffered two substantive reasons for the delay in the prosecution of the action, namely, the appeal by Mr Roddan against the decision of Master Sanderson dismissing Mr Roddan's action against Messrs Gwilliam and Schubert, and the delay while the parties awaited the outcome of the Royal Commission. They say that that accounts for the period between 26 September 2002 and 7 October 2005.

49 Mr Thoy's counsel acknowledged that in November 2003 both sides had accepted that it was inadvisable for the action to proceed until Mr Roddan's appeal had been determined. Mr Thoy's counsel contended, however, that that did not provide an acceptable explanation for the delay in circumstances where Mr Roddan had failed to prosecute the appeal to the point where it was ultimately dismissed by the Court of Appeal for want of prosecution.

50 While that contention has some force in relation to Mr Roddan, it does not have the same force in respect of Mr Noye, who was not involved in, and apparently had no control over, the pace at which Mr Roddan pursued the appeal. It seems it was never suggested that Mr Noye's action should proceed separately; the parties apparently agreed that it should await the outcome of Mr Roddan's appeal.

51 In the meantime, the plaintiffs' minute of proposed substituted statement of claim of 20 March 2003 has remained on the Court file without any order having been made in respect of it and, as I understand the position, prior to 5 May 2006 without Mr Thoy having said whether he had any objections to it.

52 Within the period that Mr Roddan's appeal was extant there was also an agreed period of delay while the parties were concerned with the hearing before the Royal Commission. The extent of that agreed delay is not entirely clear. Mr Thoy says that it was until the Royal Commissioner had finished hearing evidence on the term of reference relating to the Argyle Diamond Mine matter, a period of some 30 days between June and August 2003. In submissions, Mr Noye and Mr Roddan said it was until the outcome of the Royal Commission was known, that not occurring until 2 March 2004 when the report was publicly released. I should say that there was no evidence from either Mr Noye or Mr Roddan as to the agreement, neither having filed an affidavit in opposition to the application.

53 In the end, I do not consider that it matters a great deal which version is correct. It is quite conceivable that there was a misunderstanding between the parties as to the agreed period of delay. In any event, no action was likely to be taken in the action before 2 March 2004, as Mr Roddan's appeal was still on foot.

54 I accept that Mr Thoy has borne the burden of having these proceedings hanging over him for a very long time. The burden may not have been as great since he has ceased to be a serving police officer, but I accept that the prejudice is real nonetheless. The allegations against Mr Thoy are serious and go to his integrity.

55 The question of specific prejudice to Mr Thoy is more difficult. It can readily be accepted that over the period of some 13 years since the relevant events occurred the quality of the recollection of witnesses is likely to deteriorate. On the other hand, it was not in dispute that there are substantial written records relating to those events both from the time that they occurred (including the records relating to Mr Noye's investigation) and as a result of the hearings before the Royal Commission in 2003.

56 Any difficulties associated with delay in this action also did not seem to deter Mr Thoy from agreeing that the action should remain dormant pending the outcome of Mr Roddan's appeal. And on the evidence before me, no objection to the overall delay was taken by Mr Thoy until after the plaintiffs had applied to have the matter re-listed for a status conference in the Court, early in 2006. While the absence of any complaint by Mr Thoy does not excuse the plaintiffs' delay, it is, in my view, a factor to be taken into account when considering the prejudice that Mr Thoy says he will suffer if the action is allowed to proceed.

57 I do not consider that any significant weight can be given to Mr Thoy's contention that his current health problems have been exacerbated by the existence of these proceedings. Such evidence as there is as to his health does not allow that conclusion to be drawn. While there will undoubtedly be some additional difficulties in defending the action now that Mr Thoy is living in Tasmania, given modern communication facilities I do not consider that that is a factor of great weight.

58 The delay that has been occasioned by Mr Roddan's appeal is a substantial factor on this application. His failure properly to prosecute his appeal has undoubtedly been a major contributor to the delay that has occurred. But in determining whether the interests of justice require that his claim be dismissed, it is, in my view, a relevant consideration that there is a substantial overlap between the facts relied upon for his claim and those relied upon for Mr Noye's claim. There is much that is common to them both and the ambit of the factual issues at trial is unlikely to be greatly altered if Mr Noye's claim were to proceed alone.

59 There was also significant delay caused by the earlier, unsuccessful, attempts by the plaintiffs to produce a statement of claim in acceptable form. While due allowance must be made in that respect for the fact that the plaintiffs do not have the benefit of legal representation, the fact that considerable delay has arisen from their inability to produce an acceptable statement of claim must be weighed in the balance.

60 There is no doubt that if the plaintiffs' claims were dismissed on this application the plaintiffs would have no other remedy available to them. Any cause of action relating to the matters in issue in this action would be statute-barred and their allegations that they were wrongfully and maliciously prosecuted would remain untested.

61 In all the circumstances, I am not satisfied that the interests of justice require that the plaintiffs' action be dismissed at this stage. I consider that the appropriate course is to admit the action to the Commercial and Managed Cases List and to give such directions as are appropriate - with such sanctions for non-compliance as may be required - to ensure that the action proceeds to trial as soon as possible.

62 I will hear the parties on the appropriate directions and on the costs of this application.