Holland v Leach [1999] WADC 5

Practice and procedure - Defendant's application to dismiss for want of prosecution - Plaintiff's application for directions - No dismissal for want of prosecution where limitation period has not expired - Otherwise turns on own facts.

Limitation Act 1935 (WA)

Defendant's application refused, plaintiff's granted, in part.

Birkett v James [1978] AC 297

Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996-1997) 186 CLR 541

Headford v Bristol and District Health Authority [1995] PIQR P180 CA

Hughes v Gales (1995) 14 WAR 434

Lewandowski & Ors v Lovell (1994) 11 WAR 124

Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 All ER 897

Austin Securities v Northgate and English Stores Ltd [1969] 1 WLR 529 [1969] 2 All ER 753 CA

Hayes v Bowman [1989] 1 WLR 456 [1989] 2 All ER 293 CA

NISBET DCJ:

Defendant's application

1 The defendant applied by summons dated 2 September 1998 for orders striking out the plaintiff's claim for want of prosecution and entry of judgment in his favour and in the alternative for summary judgment. The application was supported by an affidavit of Ms Morag Donaldson Smith sworn 2 September 1998. By the time the matter came on for hearing (but otherwise than in accordance with directions made by consent on 18 September 1998 whereby the defendant had until 23 October 1998 to file an affidavit in reply to Ms Smith's affidavit, and until 13 November 1998 to file its list of authorities and submissions) the plaintiff, exhibiting a delay bordering on contempt for the court's programming orders, did not file any affidavit until 2 July 1999 when he filed the affidavit of his solicitor Pino Anthony Monaco sworn 1 July 1999. The plaintiff's submissions and list of authorities were filed on 13 July 1999.

2 The defendant complains of long periods of delay by the plaintiff and his advisers and as any examination of the court file reveals, the complaints of delay are more than adequately made out.

3 The position is that the plaintiff was born on 22 November 1977 making him now a little over 21½ years old. At the time of his birth the plaintiff was diagnosed as suffering from perinatal asphyxia in consequence of which he has cerebral palsy. It appears that the plaintiff has matured to the approximate age of 10 years at which stage of development he will remain for the rest of his life. He is quite unable to look after himself, the full extent of his disability not having been explored in this proceeding as yet, but the defendant concedes that the plaintiff has never matured, undertaken any ordinary education and requires the full time care of his mother such that he remains totally and permanently disabled, incapable of making decisions and requires a next friend to conduct this litigation for him.

4 The writ of summons in this action was issued on 31 August 1990, however the defendant, resident and working out of the jurisdiction in Dubai and the United Kingdom was not served with the writ until after the plaintiff obtained leave to serve out of the jurisdiction by order of this Court made 24 May 1991. The defendant points to this as being the first period of delay. The next period of delay of which the defendant complains relates to the defendant's request for discovery from the plaintiff which was made in writing on 2 October 1991 but not provided until 16 April 1993, some 18 months later. On 16 October 1991 the defendant requested further and better particulars of claim and these have never been provided. It is fair to say that the defendant has never taken out a summons to compel their delivery. The next (fourth) period of delay the plaintiff complains about was from 21 January 1992 when the plaintiff filed a further amended statement of claim which necessitated, on the case of the defendant, some amendments being made and requests for amendments having been made in a timely fashion and followed up at regular intervals were not given effect by the plaintiff until 5 August 1993 when he was given leave to amend the statement of claim. This is a period of almost 18 months. The next and fifth period of delay of which the defendant complains relates to the period between 24 September 1993 when the plaintiff provided further and better particulars of his statement of claim and took no further action until April the next year when he requested answers to interrogatories from the defendant. The next and sixth period of delay the defendant points to occurred when on 7 November 1994 the plaintiff took out a summons for orders for separate trials on the issues of liability and quantum of damages. The summons having been adjourned to a special appointment the plaintiff took no steps to have the matter listed until 10 June 1996. During part of this period the plaintiff's delay may be explained by the fact the then first defendant, the hospital in which the plaintiff was delivered of his mother, had taken out a summons to strike out the plaintiff's claim against it by reason of it being statute barred having regard to the particular provisions applicable to it as a State instrumentality protected by s47A of the Limitation Act 1935 as amended. That application succeeded. Judgment was not delivered until 9 August 1995 and hence part of this sixth period of delay can be attributed to the plaintiff's pre-occupation with the hospital's action to dismiss his claim against it but there can be no excuse for his delay from 9 August 1995 until 10 June 1996, a period of some 10 months. The seventh and final period upon which the defendant relies is from 26 February 1997 when the plaintiff's application for answers to further and better interrogatories was dismissed. From that time until this the plaintiff has taken no steps in the action at all.

5 Without doubt these periods represent serious delays in the prosecution of the plaintiff's claim. I have little difficulty in categorising them as being inordinate within the meaning of that word in Birkett v James [1978] AC 297. I turn to consider whether the delays identified are inexcusable and I consider Mr Monaco's affidavit previously referred to. Mr Monaco makes no attempt to excuse the plaintiff's delay, saying in part:

"3. I admit that there have been intervals of time when it would have appeared to the defendant that the plaintiff was taking no action, however, it must be understood that the nature of this claim is extremely complex and difficult to prepare for trial. The circumstances surrounding the plaintiff's birth and life to date are extremely tragic and distressing."

6 This is a weak and totally inadequate attempt to fudge the issues legitimately raised by the defendant. Additionally, Mr Monaco makes no attempt to explain his failure to comply with the directions of this Court in relation to the hearing of this application. This, coupled with the complete failure to explain the plaintiff's delay in this matter, warrants censure.

7 The extent to which a plaintiff can be visited with his solicitor's neglect in Western Australia may be at large. Certainly Birkett v James has been approved by the Full Court of this State in both Lewandowski & Ors v Lovell (1994) 11 WAR 124 at 133 and Hughes v Gales (1995) 14 WAR 434 at 440 and there (Birkett v James) the House of Lords made it perfectly plain that his solicitor's delay is the plaintiff's delay:

".... If the delay on the part of the plaintiff or his legal advisers was so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible." (p318D)

Again, I have little difficulty in concluding that there has been inordinate and inexcusable delay on the part of the plaintiff or his legal advisers, this notwithstanding what follows, because the plaintiff, having invoked the jurisdiction of the court is duty bound to comply with its Rules and Directions.

8 These findings however only bring the defendant's application within the first of two limbs of the second ground upon which a court will dismiss an action for want of prosecution, the second limb being that an ordinate and inexcusable delay having been found it must be shown that ".... such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party." (Birkett v James.)

9 It is here that the defendant's application founders in my opinion. The most telling reason for this is that it has been held that there can be no prejudice of the type described where the limitation period has not yet expired. Assuming without deciding that it could be said that the plaintiff attained his majority upon his 18th birthday then the ordinary limitation period of six years would not expire for another two and a half years or so. In the 1999 White Book at para 25/L/8 it is said that:

"The fact that a limitation period has not yet expired must always be a matter of great weight in determining whether the court should exercise discretion to dismiss an action where no question of contumelious default on the part of the plaintiff is involved; in cases where it is likely, if the action is dismissed, that the plaintiff will avail himself of his legal right to issue a fresh writ, the non-expiry of the limitation period is generally a conclusive reason for not dismissing the action which is already pending ..." (citing Birkett v James supra).

10 Interestingly, in a case noted in the 1999 White Book at para 25/L/5, namely Headford v Bristol and District Health Authority [1995] PIQR P180 CA, it was held that a delay of 28 years in commencing an action for personal injury on the part of a plaintiff under a disability was irrelevant when the action was begun within the limitation period and called for no explanation no matter what prejudice may have been caused to the defendant.

11 This decision highlights the dictum of Birkett v James to the effect that there must be exceptional reasons for dismissing an action for want of prosecution when a limitation period has not expired.

12 In any event it seems to me that the defendant has not pointed to any particular prejudice to him in the circumstances of this case but rather to the general prejudice occasioned by delay of the type that was pointed out by counsel for the defendant in his reference to Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996-1997) 186 CLR 541 at 551-552 per McHugh J. It must be noted however that the defendant is in no worse position than he would have been had the plaintiff exercised his undoubted legal right to wait until he attained his majority before instructing solicitors and instituting proceedings.

13 For these reasons I am of the opinion that where the limitation period has not expired there can be no prejudice to the defendant in the plaintiff's delay in prosecuting his claim in the sense required by the authorities of Birkett v James, Lewandowski & Ors v Lovell, and Hughes v Gale. For this reason the defendant's summons to dismiss the action for want of prosecution fails.

14 For completeness I should add that the defendant's summons also sought relief by way of summary judgment. The defendant abandoned this part of his application conceding that the service of Mr Monaco's affidavit and the attached medical reports revealed an arguable case for the plaintiff.

Plaintiff's application

15 The plaintiff applies for relief by summons dated 9 July 1999 for three items of relief namely:

"2. Notwithstanding that the plaintiff Justin Robert Holland attained the age of 18 years on the 22nd November 1995, he is, by reason of mental defect or infirmity a person incapable of managing his own affairs in respect of these proceedings and it is likely that he will remain a person under such a disability indefinitely and in the circumstances these proceedings may and shall continue to be brought by the plaintiff's next friend.

3. The order made herein on 10th June 1996 directing separate trials of issues of liability and damages be varied or set aside and it be directed that the plaintiff's action proceed to trial on all issues joined on the pleadings.

4. All further interlocutory applications and directions in this action be referred to a judge to be appointed to supervise the conduct of the proceedings and give further directions in relation to the trial."

16 The defendant consented to the order sought in para 2 of the summons, opposed the granting of the relief sought in para 3 and, in the event that its application to dismiss the plaintiff's claim for want of prosecution failed, consented to the relief sought in para 4. This means that orders in terms of paras 2 and 4 can be made by consent.

17 With regard to the order sought in para 3 of the summons however I am of the opinion that where a plaintiff chooses to institute proceedings within a limitation period and by a next friend, the plaintiff being a person under a disability by reason of both age and total and permanent incapacity, and where those proceedings have been delayed by the plaintiff's solicitors, the plaintiff is not to be afforded the luxury of changing his mind as to the best way in which to proceed with his claim in the face of reasoned opposition from a defendant who is otherwise blameless in the conduct of the litigation. Put another way, the weight to be attached to the defendant's concerns about the prospects for further delay occasioned by a change in the order are to be afforded more weight than the preferences of the plaintiff's present advisers (carefully considered and reasoned though they are if I may say with respect) to rejoin issues of liability and damages. For my own part I'm of the opinion that whilst I have the undoubted power to set aside the order of 10 June 1996 (a court not being bound by its own interlocutory orders) I decline to do so on the ground that on balance I think that to enable this trial to go forward now on issues of both liability and quantum of damages would occasion delay.

Further directions

18 I'll arrange for the parties to be given a copy of these reasons and I direct that at a time and place to be nominated by my associate after consultation with counsel the parties appear before me and advise the court:

1. Whether there is any and if so what impediment to this matter being listed for hearing for three weeks in either December 1998, the second half of January 1999 or February 1999.

2. Whether there is any and if so what reason why the plaintiff or defendant should not forthwith enter the matter for trial.

3. Whether there should be any and if so what directions for the exchange of witness statements.

4. Whether there is any and if so what impediment to fixing 31 October 1998 as being the latest date for the exchange of any other or further expert witness reports.

Costs

19 I will hear the parties as to costs.