"While it is undoubtedly necessary to have regard to the course of authority touching the issues that arise in this matter, it is of the very first importance to bear steadily in mind that the allowance of interest, in a case such as the present, is governed by statute."
6 In Golden West Refining Corp Ltd v Daly Laboratories Pty Ltd (Carr J, 16 February 1995, unreported), his Honour allowed interest for a period abridged by the period by which the applicant had delayed in instituting its proceedings. His Honour regarded that as reasonable, having regard to the object of an award of interest as compensating an applicant for the detriment suffered by being kept out of its money during the relevant period, in effect because the detriment to that extent was self inflicted. That general object of provisions such as s 51A was recognised in MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657 at 663. In Grincelis, the majority at [16] also adverted to the possibility that such statutory provisions also serve the purpose of encouraging early resolution of litigation. If that be the case, that purpose would not be served by awarding interest for a period during which the default of an ultimately successful applicant was responsible for the resolution of the litigation being delayed. It was not necessary in Grincelis for the High Court to finally decide that question. It is also not necessary to address it in relation to this matter.
7 I share the view of Carr J that, to the extent that it is shown that final resolution of proceedings was delayed by the conduct of a successful applicant, good cause exists not to award interest on the amount of the judgment. That is because it is reasonable not to compensate that applicant by an award of interest to that extent, as that applicant's own conduct has been the cause of being kept out of the money to which that applicant was entitled during that period. See also Osborne v Kelly (1993) 61 SASR 308.
8 These proceedings were commenced on 16 November 1995. They had a chequered history, in the course of which they were cross-vested to this Court by order of the Supreme Court of South Australia on 17 January 1997, and then were allied with separate proceedings in the Western Australian District Registry of this Court. It was reported at a directions hearing on 15 May 1998 that those proceedings had resolved, so that this matter could progress in its own right. At that directions hearing, Forwood through its counsel maintained that the discovery of both Shavings and Gibbett was inadequate. On 26 June 1998, I fixed 1 February 1999 as the proposed hearing date, and gave directions to ensure that the parties were ready to proceed to trial at that time. That hearing date had to be vacated as Shavings and Forwood did not comply with those directions in a timely manner. Indeed, their failure to comply with directions led to an application to dismiss or stay the proceedings. On 7 September 1999, due to the persistent failure of Shavings and Gibbett in complying with directions aimed at having the matter prepared for trial, I ordered, in effect provisionally, that the application be dismissed but gave them leave to apply within a certain time to discharge that order if they complied with directions already given albeit, very belatedly. They then complied with those directions, and on 6 December 1999 I discharged the dismissal order.
9 In my view, both Shavings and Gibbett are responsible for the fact that they have been kept out of their entitlement to damages for the period from 26 June 1998 to about the end of October 1999, a period of about sixteen months. There is no indication that responsibility for that delay lay elsewhere than with themselves. In that period Forwood conscientiously pursued orders seeking to bring the claim to trial, and ultimately in the face of its inability to force them to trial to have the claim dismissed or stayed. It was not simply lying by, awaiting developments. Its industrious but not overzealous pursuit of its rights as a litigant is a further consideration which supports my conclusion that good cause exists not to allow interest to Shavings or Gibbett in respect of that period.
10 Forwood claims that the period of delay for which Shavings and Gibbett are responsible is much longer, and commenced in February 1997. On the material now before me, Forwood by February 1997 had engaged a financial adviser to assist in its consideration of the claim. That financial adviser identified the need for further information. The financial adviser's report was promptly provided to solicitors for Shavings and Gibbett. Despite that step, and subsequent correspondence with solicitors for Shavings and Gibbett, the further financial documents requested were not provided for a long period. On 26 June 1998, directions were made for the provision of further financial records to Forwood. Ultimately, that direction was complied with, but only in the latter part of 1999. Whilst I accept that Shavings and Gibbett were very dilatory in responding to that request, the giving of discovery was a matter of mutual ongoing concern during 1997. However, I consider that the failure of Shavings and Gibbett to respond adequately to the requests for further information during the first six months of 1998 delayed this matter being ready for trial earlier. Whilst the parties during that period were awaiting the outcome of the allied proceedings in the Western Australian District Registry of the Court, that does not excuse that failure. An adequate response to the request of Forwood during that six month period would have enabled Forwood through its solicitors to prepare for trial at an earlier stage than proved to be the case.
11 Forwood, through its solicitors, acted in a timely and persistent manner in its requests. The delay on the part of Shavings and Gibbett is not satisfactorily explained. Their failure impeded the proper progress of their application to hearing. In my view these factors provide "good cause" why they should be deprived of their prima facie entitlement to interest from January 1998.
12 I propose to allow interest, therefore, to cover the periods July 1994 to December 1997 and November 1999 to the present. Rather than do a precise calculation, I will allow a lump sum in accordance with s 51A(1)(b) in relation to each of their claims, which roughly represents interest at the rates applicable under the Third Schedule to the Supreme Court Rules 1987 (SA) for those periods. As my reasons for judgment indicate, the losses for which damages were awarded were essentially suffered by the end of the 1993/94 financial year. There is no need to make any adjustment to reflect the fact that the losses were increasing beyond that time, so that interest awarded should also be adjusted to reflect such a consideration.
13 I award Shavings a lump sum in lieu of interest of $127,000 and Gibbett a lump sum in lieu of interest of $3,800. There will therefore be judgment in favour of Shavings against Forwood in the sum of $452,000 including interest, and in favour of Gibbett against Forwood in the sum of $13,800.