(f) I am satisfied that but for the matters being called up by the Court the plaintiff would not have consciously decided to proceed at all let alone at the end of the Kahn matter. I simply do not believe the plaintiff's testimony to the contrary.
60 Reviewing the chronology one of course can find periods of unexplained gaps. The most glaring is the delay between the publication by the ABC and the institution of proceedings. That has not been explained nor was the plaintiff cross-examined on it.
61 The principles applicable to an application of this kind have, with respect, been usefully summarised (since the argument of these applications) by Simpson J in Hoser v Hartcher [1999] NSWSC 527, 2 June 1999. The solicitors for the plaintiff reminded me in post-hearing correspondence of this decision. Her Honour articulates the relevant considerations in paragraphs 20-30 (pages 9 to 14).
62 It is important to note that the circumstances of this present application are quite different to those with which her Honour was concerned and, indeed, are different to those with which I was concerned in McBride v Australian Broadcasting Corporation (unreported, 6 November 1998). The interesting and important factor that attends the current litigation is that as at 1989 when the matter was removed from the list, save for I suppose unremarkable lapses of time excepting the delay in the initiating of proceedings in the ABC case, the litigation had progressed to the point where discovery and interrogatories had been effected and delivered and answered. In other words both sides had with a degree of diligence attended to interlocutory steps to enable the matters otherwise to be listed for hearing. This is not a case where a charge can be levelled, for example, against the defendants for not having put on defences. The issue is the failure of the plaintiff to prosecute defamation proceedings which as at 1989 were in reality ready then for hearing but which were not listed by reason of the conscious decision of the plaintiff to have his litigation removed from the Defamation List.
63 As was pointed out in Stollznow v Calvert (1980) 2 NSWLR 749 at 752 an application to strike out proceedings for want of prosecution and an application for an extension of a limitation period involved similar considerations and similar principles. It was submitted for the defendants by Mr Nicholas that at issue in both cases is a recognition of the right of a citizen to a speedy hearing of an action that has been commenced: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552 per McHugh J; Herrron v McGregor (1986) 6 NSWLR 246 at 253.
64 The requirement for the speedy hearing of an action arises from the following considerations: as time goes by relevant evidence is likely to be lost; it is oppressive to have an action being pursued long after the circumstances which gave rise to it have passed; there is a need for litigants to order their affairs and it is in the public interest that disputes be resolved as quickly as possible (Taylor (supra) at 552-553).
65 Where there is a delay the whole "quality" of justice deteriorates (Taylor at 551). The deterioration in quality may be palpable, for example, the loss of documents, the unavailability of witnesses and the dimming of memory (Taylor at 541; Stollznow at 745D). Prejudice may exist without the parties or anyone else realising that it exists. Evidence may disappear without anybody knowing that it "ever existed". Time will often diminish the significance of a known fact or circumstance because its relationship to the cause of action no longer is apparent as it was when the cause of action arose (Taylor at 551). The general principle to be applied is whether or not on balance justice demands that the action should be dismissed (see, for example, Witten v Lombard Australia Limited (1968) 88 WN(Pt 1) NSW 405 at 412 per Walsh JA as applied in Stollznow at 751; see also Spitfire Nominees Pty Limited v Ducco (1998) 1 VR 242 at 246).
66 A defendant, it is submitted, prima facie would be entitled to have proceedings dismissed where, as it is submitted in this case, there has been a long delay (this cannot be questioned) which has given rise to a substantial risk that it is not possible to have a fair trial of the issues in the actions or is otherwise likely to cause or to have caused serious prejudice to the defendants. It is submitted that such circumstances have arisen in the present litigation and to permit the proceedings to continue is to permit an unacceptable deterioration in the "quality" of justice. This may not necessarily depend upon proving or identifying unavailable witnesses or documents (Masel v Transport Industries Insurance Co Limited (1995) 2 VR 328 at 345; Spitfire Nominees at 246; Burkett v James [1978] AC 297 at 318). In this case the relevant events took place in 1977; the plaintiff in 1986 was able to demonstrate prejudice to him in part by the passage of time and in 1991, was able to demonstrate that he himself had been put to significant disadvantage by reason of the elapse of time (Gill v Walton (1991) 25 NSWLR 190 at 200B). In the News Limited case the whereabouts of the first defendant is unknown. In the ABC case the second defendant is clearly unable to be contacted and would be prejudiced in the communication of any matters of instructions let alone attendance in this State. It is quite clear that the whereabouts of certain of the witnesses, particularly nurses, is not known.
67 I accept these submissions. If looked at in strict isolation the question of prejudice in relation to the defendants would arguably be found not to be as serious as might arise in other cases. There are the absences of witnesses referred. The third defendant in the ABC litigation has not unnaturally, memory difficulties relating to events said to arise from the allegations in the plaintiff's Reply that precede 1982. Arguably the defendants are no worse off 9 years down the track than they were in 1989 at which time the defences including the defence of justification were in fact on the record. The plaintiff argues that all relevant testimony was recorded by Coronial inquiries and the Royal Commission and are matters of record and are susceptible to submissions and subpoenas. As to the former of course Notices to Admit can be delivered but the plaintiff has given no indication at all as to whether any appropriate admissions would be made.
68 The plaintiff's statement in his affidavit that the only person likely to be prejudiced by the findings adverse to him of the Royal Commission is anyone seeking to disprove is, as I have remarked, a very curious one. Having sworn to that proposition on oath (he was not cross-examined on it), the defendant must be seen to be in at least a position of a dilemma. Is the plaintiff asserting that the defendants are not prejudiced because the defendants are not going to dispute the findings? Is the plaintiff asserting that he would accommodate the defendants in the quest for the truth of the findings or the admissibility of evidence giving rise to them by making requisite admissions?
69 As was submitted by Mr Lynch of counsel for the second defendant in the ABC matter on the plaintiff's own evidence the purpose of him not prosecuting the proceedings was to secure an advantage to himself, to gain a strategic benefit by not exposing himself to cross-examination in the defamation proceedings until the civil proceedings were resolved to his satisfaction. That was a conscious and intentional act which he chose to follow and put the defendants in the position of thinking that the proceedings (ready for trial in 1989) were effectively at an end.
70 I agree with the submission that the delay was plainly inordinate. I reject what was plainly offered as an excuse. The purported excuses in the plaintiff's affidavit and oral evidence cannot be seen to be excuses or explanations at all relevantly acceptable when they are characterised as deliberate choices on his part to secure tactical advantages as a litigant in other causes - criminal, disciplinary, Royal Commission and civil actions.
71 As was submitted by Mr Sexton the plaintiff deliberately chose to avoid a forensic risk by prosecuting these proceedings vis-a-vis the other proceedings in which he was involved. The delay involved a choice by the plaintiff as to the way in which he might be disadvantaged in one set of proceedings notwithstanding the disadvantage caused to the defendants in other proceedings.
72 Submissions along these lines, which I accept, fall with the statements of policy made in the speeches in the House of Lords in Grovit v Doctor & Ors (1997) 1 WLR 640 and I am of the view that the conduct of this litigation and the explanations that the plaintiff sought to give for the inordinate delay could (though I do not so decide), amount to that kind of abuse of process to which their Lordships referred.
73 In this instance the plaintiff as at 1989 had viable defamation actions ready to be listed for hearing; he chose not to pursue that course. Thereafter he elected for tactical reasons not to pursue these defamation actions to the obtain the advantages to which reference has been made in the submissions which I have rehearsed above. He did not give credible oral evidence before me to the extent that I simply do not accept that it was his intention to prosecute these actions and would have done so even if the Supreme Court had not called them up to be dealt with in the Dormant Cases Callover.
74 The prejudice to the defendants exists though not to a very great degree and such that it is, and such that it was in 1989, can only have been aggravated by the lapse of time consequent upon the deliberate choice made by the plaintiff. Even though in the light of the plaintiff's response to the defendants' complaint about access to documents and records and its curiously equivocal nature, any prejudice the defendants have suffered is not thereby ameliorated. In my view, it is further aggravated.
75 All these factors sufficiently accord with principle to warrant the success of the defendants' applications.
76 The formal orders are that in respect of each of the Notices of Motion in both actions filed by the defendants the plaintiff's action is dismissed for want of prosecution.
77 The plaintiff is to pay the costs of the defendants of the action and of the application.
78 The exhibits are to be returned to the second defendant, News.
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