Koprivnjak & Ors v Body Corporate Services

His Honour referred to r 146 and r 147 and observed at 51 that the primary objective of the discretion to dismiss the matter under r 146 appears to be synonymous with that which arises under the Supreme Court Rules (NSW).

In the Supreme Court, the most recent consideration of the authorities dealing with a strike out application is Raymond Hoser v Christoper Hartcher [1999] NSWSC 527 where Simpson J at [20] - [30] set out the principles relevant to the exercise of discretion to strike out for want of prosecution. The principles may be summarised as follows: 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 (Court of Appeal); Razvan v Berechet, unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Limited , unreported, 19 November 1995, per Sperling J. 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 discretion: Stollznow v Calvert . 3. Any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Channel Nine Pty Limited, unreported, 16 December 1994, per Levine J. 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, p73. 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. Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, par 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffitt J, p 753; Vilo, p 10; McBride v Australian Broadcasting Corporation, unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Limited, unreported 25 July 1997, per Levine J; Hart v Herron, unreported, 3 June 1993, Court of Appeal per Priestly JA. 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. Simpson J observed that in her view, this circumstance must be treated with some caution, noting that the weight that can be accorded to that delay is limited. 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. 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. 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. 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. 11. The exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: The State of Queensland v J L Holdings Pty Limited (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice.

Having heard the parties and applying the above principles, I am not persuaded, in light of the history of the proceedings, that the applicant has not pursued the proceedings with due diligence. When the matter was mentioned on 29 March 2004, the respondent did not consent or oppose the application for an adjournment of the conciliation conference for six months. The applicant did not appear on 7 October 2004 when the matter was listed for conciliation. The applicant has not provided an explanation to the Court for his non-attendance on 7 October 2004. Needless to say, this is regrettable, and discourteous to the Commission.

The applicant was ordered to pay the respondent's costs incurred in respect of the proceedings on 7 October 2004.

The applicant was subsequently represented at the further mention on 29 October 2004 and presses his application.

The respondent has never seriously asserted (nor could it) that any difficulties occasioned in the proceedings were substantial in nature or caused any serious prejudice. Indeed, there was no real contest, as I have already noted, about the earlier adjournment of the conciliation conference and to the extent that the respondent has been put to additional costs this has been remedied by a costs order in respect of the proceedings on 7 October 2004.

Since at least 18 November 2004 the parties have been involved in settlement discussions.

Rule 146 requires a finding that a party "has not pursued proceedings with due diligence". As was observed by the Full Bench in Mealey and the Council of the City of Sydney [2004] NSWIRComm 58 at [51]: ... In considering any application for want of prosecution it is important to make a proper assessment as to whether the history of the proceedings warrants such a conclusion.

In my view it does not. Mr Moorhouse conceded that the delay in the proceedings could not be characterised as gross delay. I agree. I observe that if the proceedings had not settled on 7 October 2004 they would still be awaiting the filing of affidavits and a hearing date.

Mr Moorhouse submitted that in weighing up the matters to be taken into account, I should draw the inference that the proceedings have been commenced for an ulterior purpose. Mr Moorhouse referred to the hearsay evidence that Mr A Hakim had given "that the applicant was going to drag the case out and send him bankrupt."

Mr Latham submitted no such inference should be drawn. This was not a motion about abuse of process or misconduct and the applicant was entitled to proper particulars of this matter if it was to be pressed.

I do not propose to draw such an inference. In my view the evidence upon which the contention was based was hearsay and the applicant has not had the benefit of proper particulars or the opportunity to put any evidence in reply.

Having carefully considered the history of the proceedings, I am of the view that the interests of justice would be best served if the applicant was permitted to have his application properly heard and determined.

37. In my view, costs should be costs in the cause.

38. I fix the matter for a conciliation conference at 10:00 am on Monday 14 February 2005. I require the applicant to be in attendance on that day.

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