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[2012] NSWSC 73
Supreme Court of NSW
2012-02-16
Macready J
Original judgment source is linked above.
Judgment 1This is the hearing of three notices of motion by the various parties. The first and second defendants moved on a further amended notice of motion filed 31 January 2012 which sought a strike out of the statement of claim, summary dismissal inter alia on the basis of want of prosecution and the removal of a caveat. 2The fourth and fifth defendants' notice of motion was filed on 27 January 2010 and seeks a strike out of the statement of claim and, pursuant to the claims for other relief, a dismissal of the claims including on the basis of want of prosecution. 3The plaintiff's notice of motion filed on 28 September 2011 sought a variety of different orders including resisting the strike out applications.
Background 4The plaintiff is the cousin of the first defendant, who at all material times owned a farm at Kyalite, known as Riverside Farm. The second defendant is a nephew of the first defendant and a cousin of the plaintiff. The third defendant (no longer in the proceedings) is the sister of the first defendant and mother of the second defendant. The fourth defendant is a retired solicitor and the fifth defendant is a firm of solicitors which purchased the fourth defendant's practice in 2005. 5In these proceedings the plaintiff has appeared in person throughout and, despite extensive attempts, he has not been able to secure representation. The statement of claim which has been filed is one which does not comply with the Uniform Civil Procedure Rules 2005 ("UCPR") and contains no pleadings of any material facts to give an appropriate background to the matter. Unfortunately the plaintiff's affidavit evidence which has been filed to date is largely inadmissible and it is therefore difficult to have an accurate picture of what the plaintiff alleges are the relevant facts. 6However, notwithstanding these difficulties, the following matters emerge from the evidence. 7In 1973 the plaintiff started working on Walter Hammond's farm. He lived in a self-contained unit on the farm. This period of work continued until 1985 or 1987 when the plaintiff left the farm to join the army. The plaintiff suggested he left the farm to join the army in 1985. Thereafter Walter Hammond's brother worked on the farm for a period, until he died on 17 October 1990. 8In early 1990 the plaintiff returned to work on the farm, by which time he had left the army. He was then aged 30 years. He remained on the farm until 2003 when he again left the farm. 9The first agreement which the plaintiff seems to allege he made with the first defendant occurred in about 1990. The agreement was that the plaintiff would work on the farm for a period of six years, at the expiration of which the farm would be sold if it were not profitable and the proceeds distributed equally between the plaintiff and Walter Hammond. Although it is plain that from 1990 the plaintiff worked on the farm and received all the proceeds from the farm it is clear that the proposed sale and division of the proceeds did not occur. As part of the arrangement the income from the farm was to belong to the plaintiff but he made provision for Walter Hammond's and Shirley Hammond's (Walter's wife, now deceased) expenses from the farm earnings. 10The plaintiff also suggests that in August 2001 there was an agreement between him and Walter Hammond that the farm would be left to the plaintiff by Walter Hammond in his will. Walter Hammond for his part concedes that in early 1992 he entered into a "gentleman's agreement" with the plaintiff which included the following terms: (a) If Ross worked on the farm and stayed until his death then he would leave the farm to Ross in his will; and (b) Any income generated by the farm was to belong to Ross. 11The plaintiff denied that there was any agreement to stay on the farm until the death of Walter Hammond. 12On 20 August 2001 Walter Hammond executed a will under which he appointed the plaintiff as executor and gave the whole of his estate to be held upon trust first for this wife, Shirley Hammond, for life and upon her death for the plaintiff absolutely. In a note which accompanied the will he said the following: "NOTE TO ACCOMPANY WILL OF WALTER EDWARD HAMMOND Signed 20th August 2001
History of the proceedings 24The proceedings commenced on 7 August 2009 by the filing of a statement of claim. On 1 October 2009 the plaintiff filed a notice of motion seeking leave to amend his statement of claim which was stood over as the statement of claim had not been served on the defendants. After service, that motion, and a motion filed by the first, second and third defendants on 20 November 2009, was stood over to 11 December 2009. 25The plaintiff filed a further motion and all motions were stood over to 5 February 2010. On 27 January 2010 the fourth and fifth defendants filed a motion seeking a strike out, which is one of the motions presently before me. On 5 February 2010 all the motions were stood over to enable the plaintiff to obtain legal assistance. All the motions were back before the Court on 19 March, 30 April and 28 May 2010 when a number of the plaintiff's motions were dismissed. The matter was referred to Justice Palmer, the duty judge. On 28 May 2010 Justice Palmer vacated further dates and stood the motions over to 16 July 2010 and directed the Registrar to seek to obtain pro bono legal assistance for the plaintiff. 26On 16 July 2010 the Registrar fixed the motions for hearing on 27 August 2010. On 27 August the motions came before Associate Justice Hallen who made the following orders by consent:
Claim against 1 st and 2 nd defendants 38In respect of the first agreement alleged by the plaintiff, that agreement on the face of it expired in 1996 and neither the plaintiff nor the first defendant, Walter Hammond, took any steps to enforce it. Any breach of that agreement is plainly statute barred (see s 14(1)(a) of the Limitation Act 1969). 39The alternative claim put forward by the plaintiff is not supported by any written evidence of an agreement between the parties or the giving of any consideration. For the purpose of considering the plaintiff's possible cause of action, I will consider the matter on the basis that there was no agreement, representation or statements suggesting that the plaintiff had to work on the farm until the death of Walter Hammond. 40The note which accompanied the will in 2001 indicates circumstances leading to Walter Hammond recognising an obligation to make some provision for the plaintiff. In the absence of any agreement to make a will, one is left with a circumstance where the remedy may be found on the basis of a propriety estoppel by encouragement. Such an estoppel comes into existence when the owner of a property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other person, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. 41In DeLaForce v Simpson-Cook [2010] NSWCA 84 his Honour Handley AJA set out the principles which apply in cases of proprietary estoppel: [55] A proprietary estoppel by encouragement may be established where the conduct of the party estopped did not define the expectation: Plimmer v Mayor of Wellington (1884) 9 App Cas 699 at 713; Flinn v Flinn [1999] 3 VR 712 CA, 738-9, 742, 743; Gillett v Holt [2001] Ch 210 CA, 226 per Robert Walker LJ "[T]he quality of the assurances which give rise to the claimant's expectations" is an important factor: Jennings v Rice [2003] 1 P & CR 100 at 112 and 114 per Robert Walker LJ repeating what he said in Gillett v Holt [2001] Ch 210 at 225: "the quality of the relevant assurances may influence the issue of reliance [and] reliance and detriment are often intertwined", which was approved by the Privy Council in Henry v Henry [2010] 1 All ER 988 PC, 995, 1000. ... [71] The House of Lords has since considered estoppel by encouragement in Cobbe v Yoeman's Row Management Ltd [2008] 1 WLR 1752 (Cobbe), and Thorner v Major [2009] 1 WLR 776, as did the Privy Council in Henry v Henry [2010] 1 All ER 988. [72] In Cobbe, where the parties were in a commercial relationship, Lord Scott with whom Lord Hoffmann, Lord Brown and Lord Mance agreed, referred (at pp 1763-4) to Lord Kingsdown's principle (above [59]) and approved its reformulation by Oliver J in Taylors Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1982] QB 133 at 144: if A under an expectation created and encouraged by B that A shall have a certain interest in land, thereafter, on the faith of such expectation and with the knowledge of B and without objection by him, acts to his detriment in connection with such land, a court of equity will compel B to give effect to such expectation. ... [74] In Thorner v Major [2009] 1 WLR 776 the parties were in a family relationship, and the claimant had worked on the deceased's farm without wages for many years. The House of Lords upheld an estoppel by encouragement based on promises by the deceased that he would leave the farm to the claimant on his death". 42A crucial element of proprietary estoppel is the detriment suffered by the promisee. As stated by Young CJ in Eq (as his Honour then was) in Barnes v Alderton [2008] NSWSC 107: "No equity arises to raise a proprietary estoppel unless the person in whose favour it is being raised, has acted to their prejudice or detriment in some way whether in terms of direct expenditure or on some other basis". 43Relevant to this matter, his Honour also said, commencing at [46]: " It is abundantly clear that the doctrine of proprietary estoppel does not assist a person who hears a statement from someone who says that they are intending to make the hearer a gift and who says to themselves, "I'm very happy with that, for instance when John dies I will get a million dollars". The hearer must actually change his or her position or suffer some prejudice . Initially, the prejudice was making an expenditure of money on property which the hearer expected to own. As time went by, it was extended to situations where a person gave up her job in order to look after somebody else on the basis of a promise. ... It may well be that ... the element of detriment has been watered down to prejudicial change of position, but to my mind the authorities show it clearly exists...It must be remembered too that in Riches v Hogben [1985] 2 Qd R 292 at 301, McPherson J said, " It is not the existence of an unperformed promise that invites the intervention of equity but the conduct of the plaintiff in acting upon the expectation to which it gives rise ." It is the defendant's unconscionable conduct in permitting the plaintiff to suffer prejudice by virtue of his or her action that is the equity. Detriment in the modern sense must accordingly be an element... this passage was approved by the High Court in Giumelli at p 121." (emphasis added) 44The concept of detriment was also discussed by Handley AJA in DeLaForce v Simpson-Cook : [42] The detriment that makes an estoppel enforceable is that which the party asserting the estoppel would suffer, as a result of his or her original change of position, if the assumption which induced it was repudiated by the party estopped. This was explained by Dixon J (the Dixon principle) in Grundt v Great Boulder Pty Gold Mines Ltd [1938] HCA 58 ; 59 CLR 641, 674-5 (Grundt): That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. In stating this essential condition, particularly where the estoppel flows from representation, it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. Although substantially such a statement is correct and leads to no misunderstanding, it does not bring out clearly the basal purpose of the doctrine. That purpose is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. So long as the assumption is adhered to, the party who altered his situation upon the faith of it cannot complain. His complaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then, if it is allowed, his own original change of position will operate as a detriment. (emphasis added) 45The plaintiff has not pointed to any "prejudicial change of position" in his evidence. He remained on the farm after 2001 and arrangements continued as they had prior to 2001. No relevant detriment could flow from this maintenance of the status quo. Furthermore, in 2003 the plaintiff left the farm and thereafter was not involved in its operation. Whatever the reason for his departure, the plaintiff could not argue that after 2003 he suffered detriment in reliance on the promise to obtain the farm. 46The fact that the alleged promise was contained in a will raises the problem that the promise was inherently uncertain. The first defendant retained at all times the right to change his will. This problem was raised by Lord Scott In Thorner v Majors [ 2009] UKHL 18 at [19], as follows: "... a problem inherent in every case in which a representation about inheritance prospects is the basis of a proprietary estoppel claim, is that the expected fruits of the representation lie in the future, on the death of the representor, and, in the meantime, the circumstances of the representor or of his or her relationship with the representee, or both, may change and bring about a change of intentions on the part of the representor." 47In Barnes v Alderton Young CJ in Eq noted that for some years it was thought that a plaintiff could not get relief in a proprietary estoppel case based on a promise to leave money by will unless there was also an assurance by the promisor that he or she would not revoke that will. However, his Honour then referred to English and Victorian authority to the effect that the circumstances of a case may demonstrate that a promise is intended to be "not of a revocable testamentary instrument but of a gift by will taking effect on death" (at [54]). 48In Delaforce v Simpson-Cook Handley AJA reached the same conclusion at [36]: " The plaintiff knew that a will can be revoked at any time, and Mr Harper submitted that a promise about an existing or future will had to be understood in the same way. In some cases this could be the proper finding but testamentary promises are not always revocable. This is clear from the cases on testamentary contracts, and it is denied for estoppels by encouragement based on testamentary promises by Flinn v Flinn [1999] 3 VR 712 at 736 per Brooking JA and by Gillett v Holt [2001] Ch 210 CA, 227-8 where Robert Walker LJ said: ... the inherent revocability of testamentary dispositions (even if well understood by the parties...) is irrelevant to a promise or assurance that "all this will be yours" ... Even when the promise or assurance is in terms linked to the making of a will ... the circumstances may make clear that the assurance is more than a mere statement of present (revocable) intention and is tantamount to a promise." 49In this matter the circumstances do not make it clear that the first defendant's making of the 2001 will is more than a mere statement of present intention. The plaintiff has not provided any evidence of the first defendant making extraneous promises not to change his will. There is no evidence that the first defendant made representations that he would not change his will, including clause 6 contained therein. 50Accepting for the purpose of argument that some promise was made by Walter Hammond, plainly that promise either happened on or before he signed his will in 2001. The situation is that the plaintiff cannot show that he acted to his detriment in reliance on the promise. He did not change the arrangements for his occupation of the farm. They continued to be the same as when he came to live there the second time. The same arrangements applied after the promise was made and fulfilled by making the will. At all times the plaintiff received the profits of the farm in return for working on the farm and making some provision for Walter Hammond and his wife. 51In addition the plaintiff received a carer's pension for services he rendered to Shirley Hammond, namely, caring for her. This carer's pension was received before and after the will was made on 20 August 2001. It would seem that Walter Hammond received the benefit, perhaps as a result of the promise, of the continuation of the arrangements which had been in place up until the time of the promise, whenever it might have occurred. However, that does not give rise to a cause of action. An equity does not arise because Walter Hammond could not be said to have acted unconscionably by allowing the plaintiff to remain on the farm, rent-free and pursuant to the previous arrangements, after the will was signed. 52In my view, on the facts presently available and put before the Court, there is no basis for any relief on the part of the plaintiff. 53Another matter arises in respect of the claim against Colin Hammond. He has taken a transfer of the property for one dollar in return for providing valuable services which are set out in the deed. In these circumstances Colin Hammond is a purchaser for value and the evidence is that he purchased the property without notice of any promises that might have been made by Walter Hammond to the plaintiff. In these circumstances the plaintiff has no cause of action against the second defendant. 54I note also that the plaintiff in his evidence suggests that Colin Hammond made an additional, undeclared, payment of $50,000 in return for the transfer of land. This allegation, if proven, would reinforce my view that Colin Hammond is a bona fide purchaser for value.
Claim against 4 th and 5 th defendants 55The evidence shows that the fourth defendant acted for the plaintiff in the early 1980s when he drew his will and also on a purchase of property by the plaintiff at Carrathool. 56The plaintiff gave no admissible evidence as to the engagement of the fourth defendant by him in respect of the transactions of which the plaintiff now complains. Similarly the plaintiff gave no evidence that he engaged the fifth defendant, Belbridge & Hague, in respect of those transactions. The sworn evidence is all one way, namely, neither Geoffrey Edmunds or Belbridge & Hague acted for the plaintiff. 57The plaintiff gave evidence in relation to his claim against the fourth and fifth defendants in his affidavit sworn on 13 July 2010, as follows: "(4c) I affirm that the fourth defendant acted for me in the purchase of the property at Carrathool in 2001. There were many letters of correspondence sent to me by the fourth defendant in relation every little detail approximately 24 along with other information I attached I affirm there was no indication of a breech (sic) of agreement or me having to leave the farm permanently at any time. (4d) I affirm that I did not receive any letter's (sic) of communication letting me know that there were problems... (4e) I affirm that I went to the fourth defendants (sic) office on the 20 th of August 2011 with the first defendant and his wife, where the wills and powers of attorney were being done, I stated to the fourth defendant words to the effect "what confirmation is there of these transactions being done" and the fourth defendant stated words to the effect "I will lodge them with the appropriate departments and I will send copies of them to you in the mail". This was never done. (4f) I affirm that in Jan 2005 I went to the fourth defendant's office to ask if I was still covered the fourth defendant stated words to the effect "I cant disclose what is in Wally's will but in a word yes you are covered" I then stated words to the effect "I have not yet received any confirmation of this" The fourth defendant then stated words to the effect "don't worry ill (sic) see that you get it in the near future," I affirm the fourth defendant has told me this many times... " 58In these circumstances it is hard to see that there was any duty of care owed to the plaintiff. The plaintiff gave evidence that the fourth defendant was "the family solicitor and new (sic) well of the whole situation at Riverside Property Kyalite". However the fact that the fourth defendant acted as Walter Hammond's solicitor for many years does not create a duty of care to the plaintiff. 59There was a suggestion by the plaintiff in his submissions that there was some undue influence over Walter Hammond by Geoffrey Edmunds. There is no evidence of any such undue influence. 60In some of the evidence there are suggestions by the plaintiff that Walter Hammond may not have been of sound mind when he executed the deed and the transfer to Colin Hammond in 2006. The only medical evidence available is a doctor's note dated 10 November 2009 that Walter Hammond had appropriate capacity to make decisions on his own behalf and was able to understand the meaning of written documents. 61In these circumstances I do not think there is any claim against the fourth and fifth defendants. 62When considering the question of whether or not there ought to be some leave to file a further statement of claim I note that the plaintiff has approached numerous solicitors to obtain their advice. None of the solicitors have prepared a statement of claim or have acted for the plaintiff and indeed there is evidence that one solicitor and counsel whom he briefed advised that the plaintiff had no available case. In these circumstances it seems to me inappropriate for the plaintiff to be given the opportunity to replead his case and the proceedings should be dismissed. 63I note that the plaintiff has lodged a caveat No AG466711L over the farm claiming an interest pursuant to an agreement with the first defendant. Given my findings that caveat cannot be maintained. 64In case a different view is taken I should at least deal with the application to dismiss the proceedings for want of prosecution. 65The application arises pursuant to UCPR rules 12.7 and 14.28 which provide: "12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit." and "14.28 Circumstances in which court may strike out pleadings (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1)." 66In exercising this power, the Court must to take into consideration the particular circumstances causing the delay and consider the overriding purpose of the Civil Procedure Act 2005 ("CPA") and the UCPR, that is, the just, quick and cheap resolution of the real issues in the proceedings (s 56 of the CPA). The court must also have regard to the CPA's complementary provisions, namely the objects of case management (s 57) and the dictates of justice (s 58), as follows: "58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: ... (iii) any other order of a procedural nature, and ... (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case." 67In Hoser v Hartcher [ 1999] NSWSC 527, Simpson J noted a number of principles that may be considered in an application to dismiss for want of prosecution. These include: "[20] (1) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal); Razvan v Berechet , unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Ltd , unreported, 19 November 1995, per Sperling J; [21] (2) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan , per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D; [22] (3) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Ltd , unreported, 16 December 1994, per Levine J; [23] (4) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow v Calvert (1980) 2 NSWLR 749 at 751 F (Court of Appeal), p73. [24] (5) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity: Calvert v Stollznow , 1 April 1980, Ritchie's Supreme Court Procedure , (NSW) Vol 2, para13,022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p753; Vilo v John Fairfax and Sons Ltd , unreported, 19 November 1995, per Sperling J, p10; McBride v Australian Broadcasting Corporation , unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Ltd , unreported 25 July 1997, per Levine J; Hart v Herron , unreported, 3 June 1993, Court of Appeal per Priestley JA; [25] (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 Channel Nine Pty Ltd , unreported, 16 December 1994, per Levine J. 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; [26] (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; [27] (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; [28] (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; [29] (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..." 68Simpson J went on to refer to State of Queensland v JL Holdings [1997] HCA 1, but that case has been distinguished by the next case to which I will refer. 69The High Court's recent decision in Aon Risk Services Australia v Australian National University [2009] HCA 27 dealt with the Court Rules of the Supreme Court of the Australian Capital Territory and the general principles set out in that case clearly apply in this matter. In their joint judgment Gummow, Hayne, Crennan, Kiefel and Bell JJ discussed the significant burden a party carries when seeking to justify why they should be granted leave to amend pleadings. 70Their Honours identified the relevant considerations to be the proper use of public resources and the effect that delay may have on the public's confidence in the Court system; the nature and importance of the amendments; the extent of the delay; prejudice to the other side; the interests of other litigants; the point the litigation has reached when the amendments are sought; and whether the application is made in good faith. 71Although Aon concerned an amendment, the general principles are relevant to this application to dismiss for want of prosecution and of course, to the plaintiff's application for leave to file a further amended statement of claim. At [98] to [103] they stated: "[98] ... what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. [100] The views expressed by Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 89 at 220, that justice cannot always be measured in money and that a judge is entitled to weigh in the balance the strain the litigation imposes upon litigants, are also now generally accepted. In Bomanite Pty Ltd v Slatex Corp Aust French J said of Bowen LJ's statements in Cropper v Smith : ... That may well have been so at one time, but it is no longer true today ... Non-compensable inconvenience and stress on individuals are significant elements of modern litigation. Costs recoverable even on an indemnity basis will not compensate for time lost and duplication incurred where litigation is delayed or corrective orders necessary. [101] In Ketteman Lord Griffiths recognised, as did the plurality in J L Holdings , that personal litigants are likely to feel the strain more than business corporations or commercial persons. So much may be accepted. But it should not be thought that corporations are not subject to pressures imposed by litigation. A corporation in the position of a defendant may be required to carry a contingent liability in its books of account for some years, with consequent effects upon its ability to plan financially, depending upon the magnitude of the claim. Its resources may be diverted to deal with the litigation. And, whilst corporations have no feelings, their employees and officers who may be crucial witnesses, have to bear the strain of impending litigation and the disappointment when it is not brought to an end. The stated object in the Court Procedures Rules, of minimising delay, may be taken to recognise the ill-effects of delay upon the parties to proceedings and that such effects will extend to other litigants who are also seeking a resolution in their proceedings. ... [103] The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 152. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case." [citations omitted] 72However, care should be taken to construe the principles elucidated in Aon within the context of the facts and circumstances of the matter before the Court. As Keane CJ, Gilmour and Logan JJ in Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101 note: "[51] Aon Risk is not a one size fits all case. Whilst various factors are identified in the judgment as relevant to the exercise of discretion, the weight to be given to these factors, individually and in combination, and the outcome of that balancing process, may vary depending on the facts in the individual case. As the plurality in Aon Risk observed at [75], statements made in cases concerning amendment of pleadings are best understood by reference to the circumstances of those cases, even if they are stated in terms of general application." 73So far as these proceedings are concerned they have been on foot for two and a half years and there is still no pleading. There have been extensive adjournments to allow the plaintiff to obtain legal assistance and despite having approached a number of solicitors he has not been able to obtain assistance. So far as prejudice is concerned there is particular prejudice in respect of the situation of Walter Hammond and Colin Hammond which was appropriately set out in their submissions in these terms: "In addition to the ongoing uncertainty and mounting cost of these proceedings, the first and second defendants are prejudiced by the delay caused by the plaintiff's failure to prosecute his claim for the following reasons: (a) The first defendant is now 74 years old. Whilst in acceptable health at the commencement of these proceedings, he has suffered considerably since then: (b) On 8 June 2010, the first defendant's wife passed away; (c) On 29 June 2010, he suffered a heart attack and was hospitalised. He underwent heart surgery; (d) On 6 December 2011 was re-admitted to hospital for further treatment and was told that he had suffered a mini-stroke; (e) He has been under the care of a cardiologist since, and both his doctor and cardiologist think that it would now be difficult for him to travel to Sydney to give evidence; (f) His condition is deteriorating, and the stress of these proceedings, coupled with their glacial progress is unlikely to be helpful to his health. And he has been advised by his doctor to avoid stressful situations; (g) Therefore, not only are these proceedings having a negative impact on his already frail health, but also his ability to attend the Court in Sydney, and provide extensive evidence on the broad range of allegations made by the plaintiff, is rapidly diminishing, and may be non-existent before the proceedings are heard; (h) The Second defendant has left his home to care for the first defendant, and has been living on the property at the centre of this dispute. However he is unable to relocate his family (who live 155 km away in Victoria) there due to the uncertainty caused by these proceedings; (i) The second defendant is on a disability support pension and is seeking work, but it has been suggested to him by an employment agent that involvement in these proceedings may be a hindrance to his prospects of employment; (j) In the case of the Fourth Defendant, the fact that he has retired from practice and the Plaintiff's claim constitutes the only matter outstanding from his time in professional practice; (k) In the case of the Fifth Defendant, its professional indemnity insurers have applied a loading to the Fifth Defendant's professional indemnity premium which cannot be removed until the claim is dealt with." 74There is also of course reliance on the presumptive prejudice simply because of the passage of time in this case, because relevant events go back to before 2001 (see, for example, Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 552-553 per McHugh J). I note that the plaintiff has been well aware of the need to do something, if he wished to complain, at least by 2006 and it took nearly three years for him to commence the proceedings. 75A consideration of all these circumstances and the fact that at this stage the plaintiff does not propound another version of the statement of claim, leads me to the view that the plaintiff is not pursuing the proceedings with due despatch and on this basis I would also dismiss the proceedings. 76There was also a submission that because the amount in issue is small the proceedings are an abuse of process warranting their summary dismissal pursuant to UCPR rule 13.4. This is said to flow from Schellenberg v British Broadcasting Commission [2000] EMLR 296 at 318 and s 60 of the CPA, which requires the court's procedure to be implemented with the object of resolving the issues between parties so that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. The abuse is based upon the fact that the property has a value of only $95,000 and its water rights have been valued at $274,350. It was suggested that because of the disproportion in respect of costs and the value of the property that the proceedings should be dismissed. Without conceding that this is an appropriate approach, it seems to me that the stage has not been reached where such a step should be taken. 77The plaintiff's notice of motion sought relief on a number of inappropriate bases. None of the matters raised is an answer to the claims made to dismiss the proceedings. 78I order the plaintiff to withdraw caveat No AG466711L within seven days. I otherwise dismiss the proceedings and order the plaintiff to pay the defendants' costs.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2012
Hammond
Hammond
[1996] HCA 25
(1996) 186 CLR 541
(1980) 2 NSWLR 749
(1997) 189 CLR 146
[2009] HCA 27