DERON v BHP COMPANY LIMITED [2002] NSWSC 1164 | Case summary

(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; (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; (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; (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; (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; (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 Ltd (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. 87 With this statement I agree. To it I would add two further references I included in a decision of Clarke v Garling [2002] NSWSC 968 where I said:- "the power to dismiss must be considered against the background that 'the object of courts is to decide the rights of parties, and not to punish them for mistakes they make in the conduct of their cases' - Cropper v Smith (1884) 26 Chancery Division 700 at 710 and 'that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim' - Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146 at 154. 88 To the extent to which they depend on evidence, I have made reference to most of the matters mentioned by Simpson J as are significant here. However I should say something about the Plaintiff's prospects of success. The only aspect of it canvassed during the course of the argument before me was the issue of the Limitation Act. It was submitted on behalf of the Defendants that the Plaintiff had no prospect of success. However that seems to me very much to depend on whether the Plaintiff is permitted to file a Reply and whether the limitation period should be extended. Given the principles about allowing the real issues between parties to be litigated, I would certainly not regard the application to file a Reply out of time as hopeless. Given I have not seen the medical reports, nor could I take that view about the Plaintiff's prospects of having the limitation period extended. 89 I should also refer to the fact that the Defendants placed reliance on the terms of Part 1 Rule 3 of the Rules. So far as relevant, this provides:- (1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings. (2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule. 90 It may well be that this rule tilts the balance more in favour of applicants under Part 33 Rule 6 than it was under the decisions quoted by Simpson J and myself but, given that the rule gives "just" as much emphasis as "quick", the change is limited. 91 During the preparation of these Reasons my mind has vacillated as to what should be the outcome of the Defendants' applications. There is certainly a strong temptation to say that, if directions of the Court are to have any effect at all, the proceedings should be dismissed. In practical terms in this case they have largely been a waste of time. And it is clear that the Plaintiff has made default in complying with orders and directions and has not prosecuted the proceedings with due despatch. 92 Against this is the fact that it is impossible to blame the Plaintiff personally for some, and perhaps, much of the delay. Furthermore, I am not persuaded that the delay has imposed much by way of prejudice on the Defendants. Given the extent of the detriment - the complete loss of rights, which, though not yet established, may be valuable - to the Plaintiff if the orders are made, I am not persuaded that the proceedings should be dismissed. 93 I am a little comforted in that decision, though I do not rely on it, by the fact that the Plaintiff has now been granted legal aid and there should be no cause for further delay. One cannot but be conscious of the fact that litigation, where a Plaintiff's chances are doubtful and his legal advisers may not be paid, tends not to be conducted as efficiently as in other circumstances. 94 The Notices of Motion of the Second and Third Defendants respectively dated 6 and 4 July 2001 are dismissed. Given the circumstances there is something to be said for the view that each party should pay its own costs but I will afford the paries an opportunity of debating that if they wish. Clearly the Plaintiff's motion to file his Reply out of time should be brought on as soon as possible and it may be appropriate to make directions in that regard.

DERON v BHP COMPANY LIMITED

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Judgment (8 paragraphs)

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Cases Cited (4)