First Plaintiff v First Defendant

1 The issue in dispute is whether or not this proceeding should be dismissed for want of prosecution.

2 The issue has arisen because of the failure of the plaintiffs to file a statement of claim ('SOC') in compliance with the rules. In circumstances such as these, where an indorsement on a claim on writ does not constitute a SOC within the meaning of r 5.04(3), r 14.02 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') requires that a SOC be filed 30 days after the defendant's appearance.

3 During the hearing of this application, the Court was assisted by the very able submissions of both counsel. At the conclusion of oral submissions, orders were made dismissing the application to dismiss for want of prosecution. The reasons for the decision now follow.

4 It is necessary to consider the indorsement on the writ. This proceeding allegedly arises on the date known in Victoria as 'Black Saturday' - 7 February 2009. The plaintiffs, Mr and Ms Nelson, are dairy farmers and lessees. The first and second defendants, Mr and Ms Harvey, are neighbours. The third and fourth defendants, Mr and Ms Geary, own the property occupied by the Harveys.

5 It is alleged that on 7 February 2009, the Harveys operated a water pump in hot weather. The operation of the pump allegedly caused a fire which spread to the Nelson farm causing loss and damage to the property and pasture and leading to extensive loss of stock and farming production. In addition, Mr Nelson allegedly suffered a psychiatric injury.

6 Mr Nelson's injury allegedly constitutes a significant injury within the meaning of Part VBA of Wrongs Act 1958. The Harveys' alleged negligence is said to have caused the psychiatric injury and property loss. The negligence is allegedly a failure to exercise reasonable care to ensure the pump was not operated on Black Saturday thereby exposing the plaintiffs to the risk of outbreak of fire and personal injury.

7 The defendants' application is made pursuant to r 24.01(a) of the Rules and the Court's inherent jurisdiction.

8 The defendants relied upon Slaveska v Elenchevski.[1] In that decision, the Court of Appeal referred to English authority and noted that one limb of the test for dismissal for want of prosecution is whether the default has been 'intentional and contumelious'. The example provided was disobedience of a peremptory order or conduct amounting to an abuse of the process of the Court.

9 In Chan & Ors v Chen & Ors,[2] Digby J held, after referring to English authority:

These cases establish that it may be appropriate to dismiss a proceeding for want of prosecution where the Court is satisfied either that:

(i) The default of the Plaintiff has been intentional and contumelious, for example, disobedient to a pre-emptory order of the Court or conduct amounting to an abuse of the process of the Court; or

(ii) That there has been inordinate and inexcusable delay on the part of the Plaintiff or his or her lawyer, and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the questions in the proceeding or is such as likely to cause, or to have caused, serious prejudice to the Defendant as between himself or herself and the Plaintiff or as between himself or herself and a third party.

10 The first limb above is not applicable to this proceeding. There have been no orders made previously in this proceeding. The plaintiffs' solicitor, Keith Alexander Borthwick, filed an affidavit sworn 27 April 2017 ('the Borthwick affidavit'). He deposes that the failure to file the SOC is solely the result of him not giving proper attention and consideration to the file. He was overwhelmed by work. I reject the defendants' submission that the Borthwick affidavit should be given little weight. Mr Borthwick's affidavit explains the delay in a frank and forthright manner. Neither his conduct nor the delay itself amounts to an abuse of process.

11 Turning then to the second limb of the test, and to Chan & Ors v Chen & Ors:[3]

... the Court of Appeal said the second basis for dismissal referred to in Birkett involves the consideration of three key elements:

(i) whether there has been inordinate delay,

(ii) whether any such delay is inexcusable, and

(iii) whether the Defendant has demonstrated prejudice arising, or likely to arise from such delay.

The critical consideration is whether the Plaintiffs' conduct has caused, or is likely to cause, injustice to the Defendants. This will occur when there is a substantial risk that it will not be possible to have a fair trial of the proceeding because of inordinate and inexcusable delay.

However, the Court's decision on applications of this kind is in the nature of an exercise of discretion. As such, this exercise should not be constrained by any inflexible formulation as to the circumstance or circumstances in which that discretion should be exercised. Ultimately, an order for dismissal is appropriate only when the justice of the occasion demands it.

12 The test to apply in respect of r 24.01 of the Rules effectively arrives at the same outcome.[4]

13 The relevant principle to apply is outlined by the Court of Appeal in Sullivan v Greyfriars Pty Ltd:[5]

The inherent jurisdiction to dismiss a proceeding... for want of prosecution is well-established and is recognised in r 24.05 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). It has been held that the power is to be exercised very sparingly and that it must be shown that there has been in inordinate and inexcusable delay in complying with the Rules, and that the defendant or respondent is likely to be seriously prejudiced as a result.

14 In Chan & Ors v Chen & Ors[6] Digby J held:

It has long been recognised that where questions of fact cannot be tried fairly as a result of the lapse of time, including as a result of the loss or destruction of documentary evidence or other pertinent material and the disappearance, death or degraded memory of witnesses, it is likely that a fair trial of the proceedings cannot occur. If a Plaintiff is responsible for inordinate and inexcusable delay, which can be seen as likely to bring about such a situation at trial, justice may require that the proceeding be dismissed.

...

The critical consideration is whether the Plaintiffs' conduct has caused, or is likely to cause, injustice to the Defendants. This will occur where there is a substantial risk that it will not be possible to have a fair trial of the proceeding because of the inordinate and inexcusable delay.

However, the Court's decision on applications of this kind is in the nature of an exercise of discretion... Ultimately, an order for dismissal is appropriate only when the justice of the occasion demands it.

15 When considering prejudice, the relevant period is subsequent to the issue of proceedings, 'however events that occurred before the issue of proceedings, when those proceedings were issued just before the expiration of the period of limitations, are not irrelevant to the exercise of the Court's discretion'.[7]

16 The Civil Procedure Act 2010 ('the CPA') is also applicable. Section 7 provides:

the overarching purpose of the CPA and rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.

17 Section 8 of the CPA requires the Court to give effect to the overarching purpose in the exercise of any of the powers.

18 In Sullivan v Greyfriars Pty Ltd,[8] the Court of Appeal held:

Section 8 casts a new light on the inherent jurisdiction. It gives statutory emphasis to the importance of the timely resolution of proceedings, which in turn underscores the importance of compliance with orders of the Court for the management of a proceeding. But it also widens the range of matters to which consideration must be given. Even in cases where inordinate, inexcusable and prejudicial delay are not established, failure to comply with the orders of the Court may therefore none the less warrant summary dismissal. In light of s 8, the merits of the proceeding that is sought to be dismissed may bear on the exercise of the Court's discretion...

19 Section 9(c),(d) and (e) of the CPA require the Court to further the overarching purpose by having regard to various objects including the efficient conduct of the business of the Court, the efficient use of judicial and administrative resources and minimisation of delay. Section 25 of the CPA is also relevant. It imposes a duty on parties and their legal practitioners to use reasonable endeavours to act promptly and minimise delay.

1. Has there been an inordinate and inexcusable delay?

2. Have the defendants demonstrated serious prejudice may arise?

1. Has there been an inordinate and inexcusable delay?

21 The plaintiffs concede there has been an inordinate and inexcusable delay. This delay is evidenced by the affidavits of Steven Ronald Weybury, the first and second defendants' solicitor, sworn 11 March 2017 and the affidavit of Michael Montagu Kavanagh, the third and fourth defendants' solicitor, affirmed on 14 March 2017.

2. Have the defendants demonstrated serious prejudice may arise?

22 The defendants do not make any submissions nor provide any evidence as to specific prejudice. They rely upon the general effluxion of time.

23 The effluxion of time since Black Saturday is slightly more than eight years. The writ was filed on 9 February 2015 and served almost one year later. The third and fourth defendants consented to an extension of time for service of the SOC until 11 April 2016. The plaintiffs' solicitors did not meet that deadline, and after the serving of a medical report and correspondence in May 2016, did not provide any explanation in response to the telephone messages or correspondence from the solicitors for the third and fourth defendants.[9]

24 I do not consider the effluxion of time from the issue of the proceedings to be serious prejudice in the circumstances of this proceeding. Whilst it will cause some prejudice to the defendants, I am not satisfied they have established it is such that there is a substantial risk that it will not be possible to have a fair trial. I have also considered the general effluxion of time since Black Saturday and do not consider that it gives rise to such a risk.

3. Should the proceeding be summarily dismissed?

25 There was no application made for summary dismissal, however the issue is considered in light of the defendants' submissions about the claim lacking merit.[10]

26 I am not satisfied that it can be established at this point, considering the indorsement on the writ, that the plaintiffs' claim has no real prospect of success. Nor have the defendants made such a submission. There is a draft SOC exhibited to the Borthwick affidavit pleading several causes of action.[11]

27 It would be premature to make findings about the merits of the claim based on the defendants' submissions about a lack of particulars and evidence. Pleadings are required to contain the material facts upon which a party relies, not the evidence. Consistently with the Rules, particulars will need to be provided in due course.

28 It would also be premature to make findings about whether the claim is statute barred. Parts of the claim concerning property damage may be statute barred, and other parts may not be. It appears to be common agreement between the parties that even if the personal injuries' claim is statute barred, then an application for time extension may be made under the Limitation of Actions Act 1958. At this very early stage of the proceeding, it would be premature to find that any part of the claim is without merit on the basis it is statute barred.

29 It is conceded that the plaintiffs' solicitor should pay the costs of the application on an indemnity basis.

30 In all the circumstances, I do not consider an order for dismissal is in the interests of justice.

31 Orders will be made dismissing the defendants' application. Orders will be made for the plaintiffs' solicitor to pay costs on an indemnity basis.

32 The plaintiffs have filed a summons seeking leave to file a SOC. Orders will be made giving the plaintiffs leave do so.

[1] [2013] VSCA 283 [36].

[2] [2013] VSC 538 [43].

[3] [2013] VSC 538 [44]-[46]. [citations omitted].

[4] Sullivan v Greyfriars Pty Ltd [2015] VSCA 196 [20]; Chan & Ors v Chen & Ors [2013] VSC 538 [39]-[46].

[5] [2015] VSCA 196 [21].

[6] [2013] VSC 538 [42], [45]- [46]. [citations omitted].

[7] Newman v Victoria (BC9507248, Unreported, Supreme Court of Victoria, McDonald J, 7-10 August and 14 August 1995, 25 August 1995) [16].

[8] [2015] VSCA 196 [23].

[9] Affidavit of Michael Montagu Kavanagh affirmed on 14 March 2017.

[10] This is also consistent with Sullivan v Greyfriars Pty Ltd [2015] VSCA 196 [23].

[11] Exhibit 'KAB-14' to the Borthwick affidavit.