Plaintiffs v Defendants

Supreme Court of Victoria|2008-05-29|Before: VICKERY J

DELAY - Dismissal for want of prosecution - Applicable principles - Delay inordinate and inexcusable - Prejudice demonstrated - Dismissal as an abuse of process - Applicable Principles - Interests of justice require dismissal of proceeding

DUTY OF UTMOST GOOD FAITH - Whether duty applies to insurer in its conduct of litigation

2 At the commencement of the hearing Vero Insurance Limited ("Vero") made application to be substituted for the first defendant Sun Alliance Insurance Limited ("Sun Alliance") pursuant to rule 9.06 of the Supreme Court (General Civil Procedure) Rules 2005 ("the Rules"). I granted this leave because Vero has recently assumed the liabilities of Sun Alliance in relation to this proceeding number 2119 of 1990.

3 Further, the name of the second defendant has now changed. On an oral application made by the second defendant during the course of the trial I granted it leave pursuant to rule 36.01 to change its name to "Aon Market Services Pty Ltd."

4 A record of the principal steps in the procedural history of this matter are set out in schedule "A" to this judgement in the form of a chronology.

5 The facts giving rise to this proceeding are summarized in an earlier judgment of the Court by Hedigan J (Imaging Applications Pty Ltd & Anor v Sun Alliance Australia Ltd & Ors[1]) and by Master Daly in her judgment of 4 October 2007.

6 In essence, the claim by the plaintiffs is a claim for indemnity under an insurance policy issued by Sun Alliance. The second plaintiff, Mr Michael Ian Petch ("Petch"), was and is a solicitor. The first plaintiff, Imaging Applications Pty Ltd ("Imaging"), was and is a technology company under the control of Petch. Imaging carried on the business of developing computerised imaging inspection, a business Petch claimed was incidental to his practice as a solicitor. In 1986 Petch took out of policy of insurance with Sun Alliance with he claimed covered not only identified losses arising in the course of his practice as a solicitor, but also covered losses arising in the course of Imaging's business, which he claimed was a business incidental to his practice as a solicitor. The second defendant (formerly Alexander Stenhouse Limited but now Aon Market Services Pty Ltd) ("Stenhouse") was the broker who is alleged, in conjunction with the third defendant the Law Institute of Victoria ("LIV"), to have promoted and marketed the insurance policy to members of the LIV, which included Petch.

7 Losses were claimed to have been suffered by the plaintiffs arising from the fraudulent conduct of an employee of Imaging which occurred towards the end of 1986. On 29 July 1988 the plaintiffs made a claim on the policy in respect of these losses, however Sun Alliance subsequently denied any liability to indemnify the plaintiffs and refused to pay on the claim.

8 The proceeding was commenced with the issue of a writ containing a statement of claim on 16 March 1990. The matter was listed originally in the Commercial List of the Court. An amended statement of claim was filed by the plaintiffs on 20 April 1990. The amended statement of claim has not been subsequently amended and stands as the current statement of claim filed by the plaintiffs.

9 The central allegations made by the plaintiffs in the amended statement of claim are:

(a) In 1986 Petch carried on his practice in Victoria specialising, according to the amended statement of claim, in technology law. It is also alleged that he was and is a major shareholder in Imaging, that he had an insurable interest, and that he was its secured creditor.

(b) The LIV is alleged to have in effect promoted, in combination with Stenhouse, a scheme of combined insurances known as the Law Institute Package ("the Package"). The Package was comprised in a brochure called 'Law Institute Insurance Package'. The Package is alleged to provide cover for incidental business such as that conducted by Imaging.

(c) The plaintiffs further allege that by a contract of insurance in May 1986 made between Petch and Sun Alliance (as varied in August 1986) ("the Policy"), both Imaging and Petch were insured by Sun Alliance against certain perils from 19 May 1986 to 19 May 1987 pursuant to the package formulated and developed by the second and third defendants, who negotiated and administered the Policy.

(d) By paragraph 8. of the amended statement of claim the contract comprising the Policy between Petch and Sun Alliance is alleged to be partly written, and to the extent that it is partly written, constituted by:

(iii) a quotation from Stenhouse to Petch enclosed with a letter dated 20 May 1986,

(iv) a confirmation of cover from Stenhouse dated 17 March 1987, and

(v) by the wording of the commercial risks package "and/or antecedent provisional form of wording".

(e) The contract comprising the Policy is also alleged to have been partly oral. The oral component of the Policy is said to have been constituted by a series of conversations with one Mr Evans of Stenhouse ("Evans").

(f) The first of the conversations with Evans is alleged to have occurred in May 1986. In this conversation Evans is alleged to have agreed to arrange cover with immediate effect for Petch (and his service company Bamat and his partner Harding) against the specified perils which had been set out in the quotation of 20 May 1986.

(g) Shortly after the above conversation, in about July 1986, Petch is alleged to have informed Evans about Imaging's activities and requested cover "appropriate to the needs of Imaging of like or more extensive kind to that specified in the quotation of 20 May 1986".

(h) In about August 1986 Evans is alleged to have inspected Imaging's operations with Petch and Mr Fahnle ("Fahnle"). Fahnle was at the time Imaging's electrical engineer. During this visit, it is alleged that Evans:

(i) orally "confirmed that Imaging could be covered through the Package against perils of the kind specified in the quotation of 20 May 1986",

(ii) orally "agreed, inter alia, that Imaging would be held covered, liability cover would be increased to $1 million and the fidelity cover would be increased to $100,000", and

(iii) said further that "he would attend to the requisite arrangements".

(i) It is further alleged that Evans orally confirmed on 7 January 1987 to Fahnle of Imaging that the cover was in place as previously arranged, that Imaging's cover extended to its computer operations, and that this would be confirmed in writing as soon as he could.

(j) It is then alleged in paragraph 9 of the amended statement of claim that, "with effect from about August 1986 or thereabouts and the time when the contract of insurance in paragraph 8 ("the varied contract") was varied, Imaging (a) was a party to and/or an insured under the varied contract or a person for whose benefit it was entered into; alternatively (b) was insured against like perils to those covered under the varied contract for the period 19 May 1986 to 19 May 1987 under a contract of insurance made between it and Sun as insurer, purportedly pursuant to the Package." The particulars of these allegations are the same as those provided under paragraph 8, including the series of conversations alleged with Evans in 1986.

(k) It is contended that both Imaging and Petch were covered in respect of the relevant risks from May 1986 to May 1987. It is alleged that this contract of insurance was renewed by Stenhouse for the following year.

(l) It is alleged that the plaintiffs are entitled to be indemnified by Sun Alliance under the relevant contract of insurance against a number of risks, including:

(i) loss or destruction or damage to computer software, data and associated records and documents belonging to or for which the plaintiffs were responsible, in addition to theft, and accident ("the CSR cover"),

(ii) consequential loss resulting from interruption of the business, and loss, destruction or damage of the insured property used for the purposes of the business ("the business interruption cover"),

(iii) pecuniary loss from employee fraud and dishonesty ("the fidelity cover"), and

(iv) public liability in respect of sums they became legally liable to pay for loss or damage to property other than their own ("the public liability cover").

(m) Other clauses in the Policy to the effect that Imaging's business was incidental to Petch's practice, the limits of indemnity and the fact that computer software was included within the insured goods are specifically pleaded.

(n) It is alleged that property of the Plaintiffs was lost, destroyed or damaged as a result of theft, or the wrongful, dishonest and fraudulent conduct of a former employee of Imaging, who is said to be one Mr Cullinan ("Cullinan").

(o) The property stolen from Imaging included software source codes recorded on disks for use by metallurgical and general scaffolding clients and which were capable of evaluating the standards and quality of rice by computer examination.

(p) Following a claim on the Policy delivered to Stenhouse, Sun Alliance refused to indemnify the plaintiffs. The proceeding against Sun Alliance (now Vero Insurance Ltd) is founded on an alleged wrongful refusal to indemnify the plaintiffs under the Policy.

(q) The claim against the broker Stenhouse is contingent on it being found that Sun Alliance is not liable to the plaintiffs. The claim includes allegations that Stenhouse had specifically advised the plaintiff that cover for Imaging was available under the Package, that it would be covered as an insured under the Policy contract, with immediate effect, for liability cover up to $1m.and fidelity cover to $100,000. Stenhouse is sued by the plaintiffs for failing to act in conformity with the plaintiffs' instructions, or to act with reasonable care and skill, it being alleged that Stenhouse gave incorrect and negligent advice, false representations and warranties, and incorrect information.

(r) The advice, representations and warranties are pleaded in paragraph 25 of the amended statement of claim ("the Stenhouse Advice, Representations and Warranties"). In the particulars provided to that paragraph, they are said to have been oral, written and to be implied. To the extent that they were oral they are said to have been "stated in conversations between Evans of Stenhouse and Petch in about July 1986 and Evans and Petch and Fahnle in about August 1986 when inspecting Imaging's operations." By paragraph 29 of the amended statement of claim, it is alleged that Stenhouse was negligent in advising the plaintiffs in that it:

(i) inter alia, failed to advise on and arrange cover pursuant to the Package "before the provisions thereof were determined and settled and known",

(ii) did not warn the plaintiffs that the provisions of the Package and the cover thereunder were not determined and settled and were liable to be altered,

(iii) did not inform the plaintiffs of potentially detrimental purported alterations to the Package and the cover thereunder; and that Stenhouse did not "adequately or expeditiously" make the plaintiffs aware of a number of things, including:

(A) the terms and effect of the package and the cover thereunder,

(B) "purported variations on renewal detrimental to their interests",

(D) that Imaging was not insured or not insured properly in respect of its business activities and computer software and other property, and

(E) of the limits of cover being less than they had been told.

(s) The LIV is sued as a co-developer of the Package in conjunction with Stenhouse. The claim against the LIV is also contingent upon it being found that Sun Alliance is not liable to the plaintiffs.

(t) The plaintiffs rely upon false representations by both Stenhouse and the LIV. The representations ("the Stenhouse and LIV Representations") are pleaded in paragraph 22(b) of the amended statement of claim to the effect that the LIV and Stenhouse represented to the plaintiffs that the Package had been formulated, negotiated and arranged by them and was a suitable means of procuring any purchasable insurance tailored and adapted to cover the plaintiffs' particular requirements. These misrepresentations are also said to be in breach of the Trade Practices Act and the Fair Trading Act as well as being made negligently at common law.

(u) The Stenhouse and LIV Representations are pleaded in the amended statement of claim to be in writing contained in a brochure entitled Law Institute Insurance Package "(and in other Institute publications including its journal) sent to Petch and other Institute members."

(v) However, by further and better particulars of their amended statement of claim filed 7 June 1990 in response to a request of the LIV filed 10 May 1990, the plaintiffs also allege that the Stenhouse and LIV Representations were partly oral constituted by "representations from the Second Named Defendant "Stenhouse") via its employee Mr Tony Evans to Petch and to Fahnle that Stenhouse could include within the package other persons requiring purchasable insurances, including the first named Plaintiff ("Imaging") for cover of various insurable risks and perils of the type, class and amounts of cover prudent for or required by Imaging or (in the alternative) prudent for or required by a business of the nature of Imaging's business." The Stenhouse and LIV Representations, including the oral components of those representations, appear to have been made in 1986.

(w) By paragraphs 29, 33, 35 and 36 of the amended statement of claim, the liability of both Stenhouse and the LIV in each case is contingent upon it being established that the plaintiffs are not entitled to be indemnified by Sun Alliance under the Policy.

10 The principal defences advanced by the defendants to the amended statement of claim are:

(a) The first defendant, Sun Alliance, by its defence filed 11 May 1990 pleads that it agreed to insure Petch pursuant to the terms of the Law Institute Insurance Package for the period from 19 May 1986 to 19 May 1987. However, it denies all other allegations advanced by the plaintiffs as to what they allege constituted the Policy, including the oral conversations alleged by the plaintiffs to have occurred in 1986.

(b) The second defendant Stenhouse, by its defence filed 16 May 1990, does not admit the contract constituting the Policy as alleged by the plaintiffs. Further, it denies the Stenhouse Advice, Representations and Warranties and it does not admit the Stenhouse and LIV Representations.

(c) The third defendant LIV, by its defence filed 10 May 1990, does not admit the contract constituting the Policy as alleged by the plaintiffs. Further, it denies the Stenhouse Advice, Representations and Warranties and it does not admit the Stenhouse and LIV Representations.

(d) Further, both Stenhouse and the LIV in their defences of this proceeding will have a direct interest in obtaining a finding that the contract of insurance constituting the Policy, which is said to be in part constituted by oral conversations held in 1986, was not made as alleged by the plaintiffs in paragraph 8 of their amended statement of claim. This is so because their potential liability to the plaintiffs, as pleaded, will only arise if Sun Alliance is found not to be liable.

11 It is to be noted that both Stenhouse and the LIV in their defences of this proceeding will have a direct interest in obtaining a finding that the contract of insurance constituting the Policy, which is said to be in part constituted by oral conversations held in 1986, was not made as alleged by the plaintiffs in paragraph 8 of their amended statement of claim. This is so because their potential liability to the plaintiffs, as pleaded, will only arise if Sun Alliance is found not to be liable.

12 In the course of his submissions in this matter, Mr Petch, who appeared for both plaintiffs, said that the plaintiffs intended to go to trial on their amended statement of claim with only minor amendment to paragraph 13(c)(iii) (being the description of the limit of the fidelity cover under the Policy) and possibly to paragraph 12(c) (one of the alleged insured risks).

13 Consequently, evidence of oral conversations held in 1986 is to be a significant component of the case to be advanced by the plaintiffs at any future trial. It follows that in their defences to the allegations raised in the amended statement of claim at trial, each of the defendants would be entitled to put some or all of these alleged conversations in issue.

14 This is a long delayed proceeding. Even though it was commenced in May 1990, it has not yet been brought on for trial. The delay has been manifest, as demonstrated in the procedural history of this matter set out in the chronology which is schedule "A" to this judgment. Nowhere in any reported or unreported judgments referred to me in the course of submissions has any case survived such longevity.

15 The delay is considered in two periods, as reflected in the chronology:

(a) the first period, from the commencement of the proceeding upon the issue of the writ on 16 March 1990 until the determination of the applications by the defendants for dismissal of the proceeding for want of prosecution before Hedigan J on 24 June 1999 (Imaging Applications Pty Ltd & Anor v Sun Alliance Australia Ltd & Ors[2]), and

(b) the second period from 24 June 1999 to the present day.

16 Between 20 July 1990 and 10 June 1997, a period of nearly 7 years, no step in the proceeding was taken by the plaintiffs.

17 On 10 June 1997 orders were made by the Court which called on the plaintiff to address Rule 34.05 of the Rules of Court or their proceeding would be struck out. The revival of the plaintiffs' proceeding was the product of the initiative of the Court's Litigation Support Group. This period of complete inactivity for nearly 7 years between 20 July 1990 to 10 June 1997, was conceded by the plaintiffs before Hedigan J to amount to inordinate delay.

18 The defendants then issued summonses seeking to strike out the proceeding for want of prosecution. These applications were heard by Master Evans on 11 November 1998. The Master dismissed the defendants' applications, following which the defendants launched an appeal which was ultimately heard by Hedigan J on 15 and 19 April 1999. On 24 June 1999 Hedigan J delivered his judgment on the defendants' appeals in which he dismissed the appeals (Imaging Applications Pty Ltd & Anor v Sun Alliance Australia Ltd & Ors[3]). Although the Court found that the delay between 20 July 1990 to 10 June 1997 had been inordinate, as conceded by the plaintiffs, it also found that their delay was excusable and the defendants were found not to have experienced sufficient prejudice to justify the matter not proceeding to trial.

19 During the second period (from 24 June 1999 to the present) interlocutory activity took place in the proceeding until about December 2001. This period included a failed application for Special Leave to the High Court of Australia from orders made by the Court of Appeal on an interlocutory matter pressed by the plaintiffs. The plaintiffs' application for Special Leave before the High Court was refused on 13 December 2002. Since then the proceeding again became dormant until the third defendant, the LIV, filed its summons seeking to dismiss the proceeding for want of prosecution, and in the alternative, as an abuse of process of the Court on 9 May 2007 and the second defendant, Stenhouse, filed a summons claiming identical relief on the following day 10 May 2007.

20 Thus a further period of delay of over 4 years occurred between 13 December 2002 and 9 May 2007.

21 The summonses of the second and third defendants came on for hearing before Master Daly. The Master delivered her judgment on 4 October 2007. In it she dismissed the plaintiffs' proceeding against the second and third defendants for want of prosecution. This was followed by a notice of appeal filed by the plaintiffs on 5 October 2007 and subsequently by a summons issued by the first defendant, Sun Alliance, which also sought to dismiss the plaintiffs' proceeding for want of prosecution and, in the alternative, as an abuse of the process of the Court. On 24 October 2007, Osborn J ordered that the summons of the first defendant be heard at the same time as the appeals. The matters before me were conducted on this basis.

Want of Prosecution - Rule 24.01 of the Supreme Court (General Civil Procedure) Rules 2005

22 The defendants rely upon Rule 24.01(b). The Rule provides that the Court may order that a proceeding be dismissed for want of prosecution where the plaintiff does not, within a reasonable time after the commencement of the proceeding, file and serve notice of trial or apply to have a date fixed for the trial of the proceeding. The plaintiffs have not yet filed and served notice of trial or applied to have a date fixed for the trial of the proceeding. This failure has occurred in spite of commencing the litigation by a writ issued on 16 March 1990 and in the face of an order of Teague J made on 11 November 1997 directing the plaintiffs to serve a notice of trial by 6 November 1998. The pre-condition for the operation of rule 24.01 is therefore made out.

23 The principles to be applied in cases of this kind are well settled. In Bishopsgate Insurance v Deloitte Haskins[4] the Court of Appeal considered the operation of the former Supreme Court Rules Ch. 1 r. 23 in the context of an application that the relevant proceeding be stayed, essentially for want of prosecution. The Court of Appeal[5] applied the principles adopted by Lord Griffiths in his speech in Department of Transport v Chris Smaller (Transport) Ltd,[6] as follows:

The power [to dismiss a proceeding for want of prosecution] should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) 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 plaintiffs, or between each other, or between them and a third party.

Inherent Jurisdiction to Dismiss Proceedings for Abuse of Process of the Court

24 This Court has inherent jurisdiction to dismiss a proceeding before it on the ground that it is an abuse of the process of the court. See: Duncan v. Lowenthal[7]; and Exell v Exell[8].

25 In Batistos v Road and Traffic Authority of New South Wales[9] the High Court considered the scope of abuse of process of the Court in the contemporary context. Batistos concerned an application by interlocutory motions for orders that the proceeding in question be dismissed or stayed permanently. Part 13, r 5 of the Supreme Court Rules 1970 (NSW) were relied upon. This rule provided that the Court might order that proceedings be stayed or dismissed where it appeared to the Court that the proceedings were an abuse of its process.

26 Gleeson CJ, Gummow, Hayne and Crennan JJ considered that "What amounts to abuse of court process is unsusceptible of a formulation comprising closed categories. Development continues."[10] Further, "Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on the public confidence in the administration of justice, must reflect contemporary values and, as well, take into account the circumstances of the case."[11]

27 It is to be noted in Batistos that the majority of the High Court rejected the proposition of the House of Lords in Birkett v James[12] that oppressive conduct by the plaintiff is a requirement to establish abuse of the process of the court.[13] The majority took this position even though it noted that Birkett "has been accorded significant standing in several Australian intermediate courts of appeal."[14]

28 Earlier, in Rogers v The Queen,[15] McHugh J observed:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three main categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. [16]

29 Delay is a natural enemy of justice. There is much truth in William Gladstone's maxim "justice delayed is justice denied".[17] Lord Denning MR, said in Allen v Sir Alfred McAlpine and Sons Ltd:[18]

The delay of justice is a denial of justice. Magna Carta will have none of it. "To no one will we deny or delay right or justice".[19]

All through the years men have protested at the law's delay and counted it as a grievous wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time.[20] Dickens tells how it exhausts finances, patience, courage, hope.[21] To put right this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will strike out actions when there has been excessive delay. This is a stern measure. But it is within the inherent justice of the court. And the Rules of Court expressly permit it.

30 Delay in bringing a case to trial may cause direct prejudice to a party. However, it may also have a more insidious effect. In Brisbane South Regional Health Authority v Taylor[22] McHugh J (with whom Dawson J agreed) said:

For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates." Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.[23]

31 Although these observations of McHugh J in Taylor were made in the context of a consideration of limitation periods and the rationale for imposing them to govern the commencement of an action, they are apposite in consideration of the effects of delay in the conduct of a proceeding, once it has been commenced.

32 I first summarize the submissions of the defendants because the appeal of the second and third defendants was conducted as an application de novo before me as required by rule 77.05(7) of the Rules and because the summons of the first defendant was a hearing de novo in any event.

33 All three defendants made applications for dismissal of the plaintiffs' proceeding for want of prosecution pursuant to rule 24.01, and in the exercise of the Court's inherent jurisdiction on the ground that the proceeding has become an abuse of the process of the Court.

34 The principal matters advanced by the first defendant (Sun Alliance) were:

(a) There was a substantial risk that the Sun Alliance would be unable to obtain a fair trial in the circumstances of this case.

(b) Sun Alliance relied upon the following, which it claimed caused it actual prejudice:

(i) the recollection of a central witness (Mr Evans) was said to be "very poor",

(ii) four other potential witnesses have been identified, one of whom has not been found and the rest of whom have little, if any recollection of events which gave rise to the litigation,

(iii) the plaintiffs appear to have mislaid key documents,

(iv) of the documents which the plaintiffs may have on hand, the solicitors for Sun Alliance have been denied the opportunity to inspect them all,

(v) the quality of some of the documents of Sun Alliance have deteriorated over time such that many are no longer legible,

(vi) Sun Alliance misplaced its own underwriting file some time before 1998,

(vii) the plaintiffs' pleadings are not finalised and are in a state of disarray,

(viii) counsel previously retained to act for Sun Alliance have both left the Bar, and

(ix) it is unlikely that any trial will be held in the near future and the prejudice will be aggravated as time goes on.

(c) Further, and alternatively, Sun Alliance submitted that, as a matter of experience and common sense, prejudice to it may be inferred from the long period of time that has elapsed since the events which gave rise to the litigation occurred.

35 The principal matters advanced by the second defendant (Stenhouse) were:

(a) The history of the proceeding shows inordinate and inexcusable delays on the part of the plaintiffs that have cause actual prejudice to Stenhouse (and to the other defendants) such that there is a substantial risk that there cannot now be a fair trial.

(b) There are facts peculiar to this case which provide further reasons why it is just in all the circumstances that the plaintiffs' proceeding be dismissed, including:

(ii) discovery and inspection is incomplete and documents have been lost,

(iii) each of the plaintiffs is impecunious and no firm arrangements have been reached with respect to litigation funding,

(iv) should litigation funding become available, any security for costs which may be offered is wholly inadequate, and

(v) the second plaintiff (Mr Petch) is a solicitor and a litigant in person and also represents the first plaintiff (Imaging). He has asserted on numerous occasions that he suffers from physical and mental illness and such difficulties are likely to continue; and the plaintiffs have consistently failed to comply with Court orders.

(c) There is actual and significant prejudice to Stenhouse which includes the inability to locate witnesses or, the fact that where they have been located, such witnesses have limited or no recollection of the matter. The same applies to witnesses for the other defendants.

(d) The nature of the plaintiffs' claim is such that (contrary to assertions made by the plaintiffs) the case is not a "document case" but will turn on particular evidence relating to dealings between, inter alia, Mr Petch and others, including a former officer of Stenhouse (Mr Evans) which occurred in or about 1986.

(e) The Court can have little confidence that the plaintiffs' claim would proceed in an orderly fashion.

(f) Then delay is extreme and risks bringing the Court itself into disrepute.

36 The principal matters advanced by the third defendant (LIV) were:

(a) In breach of the orders of Teague J made 11 November 1997, the plaintiffs failed to serve a Notice of Trial by 6 November 1998. This failure enlivens the Court's power to dismiss the proceeding under rule 24.01.

(b) The LIV pointed to three matters said to be conduct amounting to an abuse of process:

(i) the plaintiffs extraordinary delay in prosecuting their claims,

(ii) the plaintiffs' repeated refusal to abide by their discovery obligations, and

(iii) the plaintiffs' persistent refusal to comply with the Courts' orders.

(i) the status of the plaintiffs' discovery, which includes a number of documents which have been formally discovered by the plaintiffs, but which appear to be missing,

(ii) the LIV appears to have lost some of its own documents described in its supplementary list of documents dated 27 June 1990,

(iii) some of the potential witnesses who may be called on behalf of the LIV are not able to be located, and

(iv) even where witnesses have been located, their recollection of events which occurred approximately 20 years ago, has diminished.

37 The plaintiffs advanced a number of matters which were put forward as both explanations for the delays and as matters which should be taken into account in the exercise of my discretion.

38 Mr Petch submitted that there were three principal reasons for the delay in the prosecution of this proceeding by the plaintiffs:

(a) Petch's health, his impecuniosity and the financial consequences upon him and the first plaintiff Imaging, of the Cullinan employee dishonesty,

(b) the refusal of any of the defendants to admit the occurrence of employee fraud by Cullinan, and

(c) the refusal of the first and second defendants to admit "the existence of the underwriting agency called, in insurance language, a binder".

39 In exhibit "MP-102" to the affidavit of Mr Petch sworn 6 June 2007, Mr Petch describes the poor state of his physical and mental health taking medication for depression and anxiety, as well as for high blood pressure and cholesterol, and having been prescribed devices for controlling sleep apnoea.

40 In the exhibit he states that he presently suffers from "mental infirmity", which condition he has suffered for many years. He says that he is " 'mentally infirm', on a broad view of the expression, but NOT so in the sense that I suffer delusions, hallucinations or am otherwise 'not in reality'. Rather, I am mentally infirm in the sense that the depression and anxiety I suffer, arises from anger, despair and horror objectively, at lies, dirty tactics and unjust treatment in the court, at the hands of the insurance defendants."

41 In the same document Mr Petch describes himself as a "non-practising alcoholic. One who has not drunk alcohol for 24 years including with the help of Alcoholics Anonymous". The definition he provides of a non-drinking alcoholic is of someone who "is never 'cured' but is merely 'in recovery' ". I take this to mean that Mr Petch presently continues to be in recovery from alcoholism.

42 I accept the second plaintiff's medical condition as he describes it. In the application before Hedigan J his Honour found that Mr Petch was "so overwhelmed by physical, emotional, psychiatric, professional and financial burdens that he was unable to advance the action at all". I see no reason to depart from those findings in the matters before me, and like Master Daly, I proceed on the basis that such difficulties are ongoing and have been a substantial if not dominant cause of the plaintiffs' continuing delay in prosecuting the proceeding.

43 I find that, although Mr Petch's poor health might provide an explanation for the delays that have occurred, they do not render the delays excusable. Mr Petch appears to have devoted considerable time and energy in pursuing a number of interlocutory applications ancillary to the prosecution of the principal action. This included an application for special leave to the High Court to appeal a decision of the Court of Appeal of this Court on an interlocutory matter. Plaintiffs have a right to use the Rules of Court to advance the preparation of their case. However, the plaintiffs in this case appear to have been consumed by steps of this kind, and in the process to have lost sight of the main object of their task - to bring on their case for trial with as much expedition as possible and in a cost effective manner for all parties.

44 Mr Petch also advanced a case that his personal impecuniosity and that of Imaging was a cause of the delay, in that the plaintiffs did not have the financial resources to prosecute the action with any greater speed. A large number of matters addressed in the affidavit material were directed to this issue. This culminated in Mr Petch making contact with and obtaining support from a litigation funder in recent times.

45 The affidavits relied upon by Mr Petch depose to why it was that his former litigation funder, Mr Newton-Thomas was "sacked" by him. The replacement litigation funder is Darman Pty Ltd ("Darman"). Graham Clive Critchley is the director of Darman and a deponent to a number of affidavits before me. In his affidavit sworn 7 May 2008, Mr Petch refers to two previous affidavits sworn by him and Mr Critchley on this matter. The position is that Mr Critchley told Mr Petch in late September 2007 that he would have his company Darman provide litigation funding to the plaintiffs in this case, for $250,000 and on virtually the same terms as those agreed to with the previous litigation funder, Mr Newton-Thomas. Pursuant to the new arrangement Mr Petch has received $100,000 as part payment, which he has banked into an account called "Trial It Trust".

46 Mr Petch in his submissions advised that Mr Critchley was present in Court, however he was not called to give oral evidence. Mr Petch also submitted that the litigation funding would be devoted to engaging a new professional legal team to proceed with the case, prepare it for trial and conduct the trial on behalf of the plaintiffs.

47 I accept on the material before me that an arrangement for litigation funding to an amount of $250,000 is now in place. However, this does not excuse the delays which have occurred in the litigation to date. The plaintiffs have devoted considerable resources to elaborate interlocutory steps, which have included a number of failed applications attracting substantial costs orders against the plaintiffs. This included a failed application for special leave to the High Court to appeal a decision of the Court of Appeal of this Court on an interlocutory issue which also failed for the plaintiffs. The costs orders were such that, at least in part, they forced the first defendant Imaging into liquidation and placed Mr Petch under financial strain.

48 Further, the present promise of litigation funding comes far too late in the proceeding to remedy the adverse effects on the defendants of the long standing delay. No acceptable explanation was given as to why litigation funding could not have been in place much earlier to enable another professional team of lawyers to advance the plaintiffs' case with due expedition following the decision of Hedigan J on 24 June 1999.

49 In the end, and based on the manifest delays, the tortuous procedural history of this matter to date and the manner in which the litigation has been prosecuted by the plaintiffs, I have no confidence that, even with litigation funding in place and a new team of professional lawyers engaged, the plaintiffs will be able to advance their case to trial in a satisfactory manner. The control of the proceeding will remain in the hands of Mr Petch who will continue to provide instructions to his new lawyers. I am not in a position to foreshadow what those instructions may entail, however, based on the past history of the case, if it is permitted to continue, I am not at all optimistic that it will proceed with due expedition to trial by the end of this year or early into 2009. Even then, as I have found, the case is no longer capable of being conducted so as to give the defendants a fair trial.

Defendants' Failure to Admit Facts and Duty of Good Faith (ss. 12 and 13 Insurance Contracts Act 1984)

50 Mr Petch further argued that it was the failure of the defendants to make obvious admissions which was the cause of delay in the proceedings. In particular, he referred to the failure of any of the defendants to admit the occurrence of what he described as the "employee fraud by Cullinan", and the refusal of the first and second defendants to admit "the existence of the underwriting agency called, in insurance language, a binder". Notices for admission of facts were served by the plaintiffs on the defendants. Notices disputing all of those facts were served by the defendants.

51 The conduct of the defendants in this regard cannot provide any proper explanation for the plaintiffs' delay in this case. The Rules provided and still provide a procedure which enables a party to put the party serving the notice for admission of facts to its proof of those facts at the trial upon service of a notice disputing those facts. The sanction provided for in the Rules is that where a party serves a notice disputing the facts and afterwards the fact is proved in the proceeding, liability for the costs of the proof shall be incurred by the party putting the fact in issue, unless otherwise ordered by the Court. An exercise of a right to dispute facts provided for in the Rules of Court cannot properly found an explanation for delay on the part of the other party. It merely puts the other party on notice that the particular fact or facts are put in issue and the other party, and if it wishes to rely on the fact or facts, must provide the necessary proof at trial.

52 In this case, however, Mr Petch raised another matter which, he submitted, compelled the defendants to admit facts which he claimed were obvious in the proceeding. Mr Petch placed reliance upon ss. 12 and 13 of the Insurance Contracts Act 1984 (the "Act"), which he said obliged the insurer, Sun Alliance, to conduct the litigation against it with the utmost good faith (uberrimae fidei). Sections 12 and 13 of the Act provide:

The effect of this part is not limited or restricted in any way by any other law, including the subsequent provisions of this Act, but this Part does not have the effect of imposing on an insured, in relation to the disclosure of a matter to the insurer, a duty other than the duty of disclosure.

A contract of insurance is a contract based on the utmost good faith and there is implied in such a contract a provision requiring each party to it to act towards the other party, in respect of any matter arising under or in relation to it, with the utmost good faith.

53 The question in this case is whether the duty of utmost good faith required of an insurer under the Act applies beyond the formation of the contract of insurance and its administration but also extends to its conduct of litigation in which it is sued by an insured (and a claimed insured) on the basis of having wrongfully denied a claim on an insurance policy.

54 It is clear that the duty of utmost good faith applies both pre-contractually and post-contractually. The House of Lords in Manifest Shipping Co Ltd v Uni-Polaris Insurance Co Ltd and Anor (the 'Star Sea'),[24] considered the duration of the duty of utmost good faith. Manifest Shipping Ltd, as owners of the 'Star Sea', claimed against the underwriters, Uni-Polaris Insurance Co, under an insurance contract for hull and machinery risks governed by English law, for the constructive total loss of the Star Sea caused by fire. The underwriters put forward defences which included a defence under s 17 of the Marine Insurance Act 1906 (UK). Section 17 provided: "A contract of marine insurance is a contract based upon the utmost good faith and, if the utmost good faith be not observed by either party, the contract may be avoided by the other party." Whilst the House of Lords accepted that the s 17 duty of utmost good faith continued to apply after the contract was originally concluded, it held that it ceased to apply once the parties were in litigation. Lord Clyde, with whom Lord Steyn agreed, said:[25]

As regards the obligations in law of an insured at the stage of a disputed claim I take the view that there is no duty upon an insured to make a full disclosure of his own case to the other side in litigation. I see no practical justification for such an obligation at that stage. Unlike the initial stage when the insurer may rely very heavily on the openness of the insured in order to decide whether or not to provide insurance cover, and if so at what level of premium, the insurer has open to him means of discovery of any facts which he requires to know for his defence of the claim. Moreover, I have found no precedent to support the appellant's proposition; if anything the authority at least of MacGillivray on Insurance Law, 9th ed. (1997), par. 19-59 points in the opposite direction. The idea of a requirement for full disclosure superseding the procedural controls for discovery in litigation is curious and unattractive, and one which would require to be soundly based in authority or principle.

Lord Hobhouse, with whom Lord Steyn and Lord Hoffman agreed, having analysed the issue in some depth said:[26]

When a writ is issued the rights of the parties are crystallized. The function of the litigation is to ascertain what those rights are and grant the appropriate remedy.

It cannot be disputed that there are important changes in the parties' relationship that come about when litigation starts. There is no longer a community of interest. The parties are in dispute and their interests are opposed. Their relationship and rights are now governed by the rules of procedure and then orders which the Court makes on the application of one or other party. The battle lines have been drawn and new remedies are available to the parties. The disclosure of documents and facts are provided for with appropriate sanctions; the orders are discretionary within the parameters laid down by the procedural rules.

His Lordship, having analysed the issue in some depth concluded:

I am therefore strongly of the view that once the parties are in litigation it is the procedural rules which govern the extent of the disclosure which should be given in the litigation, not s. 17 as such, though s. 17 may influence the Court in the exercise of its discretion.[27]

Lord Scott however, did not decide the matter conclusively. He said:

I can see a great deal of force in the argument that the s.17 duty does not apply to conduct in the prosecution of litigation, as to which the Rules of Court that govern litigation constitute the regulatory code. A decision as to that, too, is best left for a case where the point is critical to the result.[28]

55 I accept that ss.12 and 13 of the Australian Insurance Contracts Act 1984 are in a slightly different form to s.17 of the Marine Insurance Act 1906 (UK). However, the reasoning of the House of Lords in Manifest Shipping is persuasive. I am of the opinion that once the parties have commenced litigation that litigation is to be conducted under the procedural rules which govern their court of choice. The implied term imported into the contract of insurance by s.13 of the Act applies to any matter arising under or in relation to the contract of insurance, and this includes the initial formation of the contract and its subsequent administration. However, the statutory implied term does not extend to the conduct of litigation, which is an entirely different process. This is so, even though the litigation may concern a contract of insurance.

56 However, even if a duty of utmost good faith is extended to the conduct of an insurer in the course of litigation, this does not explain the extent of the delay in the present case. In the first place, the duty, if it applies in the course of litigation as Mr Petch contends, would only apply to the conduct of the first defendant, the insurer Sun Alliance, Stenhouse and the LIV being free of the duty. The material before me does not attribute any specific period of delay to the conduct of Sun Alliance in refusing to admit what are said to be the obvious facts of the "employee fraud by Cullinan" and "the existence of the underwriting agency called, in insurance language, a binder". Although the first defendant in its defence denies the alleged fraud by Cullinan and has not admitted in the course of the proceeding the existence of a "binder" underwriting agency, Mr Petch did not take me to any evidence to demonstrate that he is unable to prove these facts by other means and made no such submission to me. I reject the contention that the conduct of the defendants in the course of the litigation excuses the delay caused by the inactivity of the plaintiffs in the second period.

57 Further, having considered the matter in the exercise of my discretion, I am not satisfied that the conduct of the first defendant which is complained of was anything more than a legitimate exercise of its rights under the Rules in the conduct of the litigation brought against it. As such, the conduct did not constitute a breach of the duty of utmost good faith even if the duty did continue to apply during the course of the litigation.

58 Mr Petch submitted that the defendants have suffered no prejudice. I do not accept this submission.

59 In his affidavit of 7 May 2008 and in his submissions Mr Petch states that the plaintiffs' claims are based essentially on documents. Although the plaintiffs will no doubt found their claims at trial in large part upon documents, the case as it is presently framed and upon which the plaintiffs intend to proceed to trial, will in significant part also involve proof of conversations with a former employee of the second defendant, Mr Evans, which occurred during 1986.

60 Mr Petch also said: "It is conceded in the pleadings that there is a contract of insurance. It is not conceded in the pleadings that a varied contract of insurance included Imaging Applications Pty Ltd for its technology business."

61 However, an examination of the defences reveals that, although the first defendant concedes in its defence that a contract of insurance existed, it maintains that the Policy insured Petch and his partner Harding pursuant to the terms of the Law Institute Insurance Package against certain perils for the period from 19 May 1986 to 19 May 1987. All other allegations made by the plaintiffs as to the contract of insurance, including the allegation that there was a variation of the contract in or about August 1986 to include cover for Imaging, are denied. This denial is critical because, as revealed in the particulars to paragraph 8 of the amended statement of claim, in or about August of 1986 Mr Evans, in conversations he is alleged to have engaged in with Petch and Fahnle of Imaging, is said to have agreed that Imaging was to be covered under the Policy. The amended statement of claim, in reliance on these particulars in paragraph 8, then alleges in paragraph 9 that, with effect from about August 1986 or thereabouts, a variation of the contract of insurance was implemented pursuant to which Imaging was insured under the Policy. Sun Alliance denies this allegation in its defence.

62 The first defendant therefore directly puts in issue the oral components of the contract of insurance pleaded by the plaintiffs to the effect that Imaging was also covered by the policy, said to be constituted by conversations conducted in 1986 with a former employee of Sun Alliance, Mr Evans, whilst the second and third defendants do not admit the contract of insurance.

63 Mr Petch relied upon affidavits which he submitted deposed to the conversations with Mr Evans in 1986, namely that of Mr Petch sworn 25 June 1998 and of Mr Fahnle sworn 23 July 1998 and the exhibits to those affidavits.

64 On reading the affidavit of Mr Petch, paragraphs 16-29 include references to Mr Evans in the context of a description of the formation of the contract of insurance. It is in paragraph 22 of his affidavit that Mr Petch deposes to his conversations with Evans. He says: "In late July 1986, in response to urgings from me, Evans visited the premises. During that visit I told him in detail about Imaging's rice grain classification technology and introduced him to Fahnle. Fahnle informs me and I believe that - (a) he showed Evans around Imaging's business, described some of its equipment and values and told Evans about the software; (b) Evans advised him, in substance, that Imaging's needs and risks could be covered within the Law Institute Insurance Package and that he would review any adjustment of the premium which might be required and send out revised documentation, which would include Imaging." As is clear, the significant part of the conversation with Evans deposed to by Mr Petch is hearsay. Further, only the substance of the critical conversation is set out in paragraph 22(b) of Mr Petch's affidavit.

65 The affidavit of Mr Fahnle does not advance the evidence much further. In paragraph 11 Mr Fahnle says: "I refer to paragraphs 16-29 of Michael Petch's affidavit sworn 25 June 1998. Insofar as I was involved or had knowledge of those matters, I confirm that they are true and correct. In particular, the description of what I showed to Tony Evans of Stenhouse; and what I told him about the business of Imaging is correct." In paragraph 12 of his affidavit, Mr Fahnle exhibits as "AF1" some handwritten notes that "are consistent with the conversation I had with Tony Evans at his meeting with me, at the premises of Imaging, in or about late July 1986." The handwriting appeared to Mr Fahnle "to be the same as that on a copy of the 'With Compliments' slip written on and signed by Tony Evans in February 1987" which he exhibits as "AF 2". The notes appear to refer to such items as "Prototype Equipment", "Base cost - value added = finished price", "Stock $130,000 (2 cubic metres)", "Computer Hardware & Softwear" (sic), "Test Equipment -> $10,000", and "Transit erection & testing as & when required".

66 Assuming that the notes were in fact made by Mr Evans, the notes do not contain any references as to the important conversations relied upon by the plaintiffs, let alone record what was actually said by Mr Evans as to the central matters alleged by the plaintiffs, namely that Evans orally confirmed that Imaging could be covered through the Package against perils of the kind specified in the quotation of 20 May 1986, orally agreed, inter alia, that Imaging would be held covered, liability cover would be increased to $1 million and the fidelity cover would be increased to $100,000, and that he would attend to the requisite arrangements.

67 It is also alleged in the amended statement of claim in the particulars provided to paragraph 8 that Evans orally confirmed on 7 January 1987 to Fahnle of Imaging that the cover was in place as previously arranged, that Imaging's cover extended to its computer operations and that he would confirm this in writing as soon as he could. No evidence of this matter was provided, in the affidavits of Mr Petch or Mr Fahnle. Further, as Mr Petch conceded in argument, Mr Evans "has never sworn any material whatsoever."

68 In the course of the hearing, the second defendant referred to the affidavit of Anne Morgan sworn 7 May 2008. This affidavit was not before Master Daly. However, I granted special leave for the second defendant to rely upon it pursuant to Rule 77.05(7)(b). Special leave was granted because the affidavit of Anne Morgan was in direct response to the affidavit of Thomas Joseph Gannon sworn 5 May 2008, which I had permitted Mr Petch to rely upon.

69 The affidavit of Anne Morgan included the following passages in paragraphs 7 and 8:

Mr Evans said to me that he was unwilling to assist in the matter and that he could not add anything further to the information already provided by him in (about) the year 2000.
1. Mr Evans further observed that:

(a) his recollection of the matter and of Mr Petch is very poor;

(b) as best he can recall, the matter involved someone who "went off with some computer software";

(c) he did recall that the subsequent insurance claim made [by the Plaintiffs] was "outside the policy of insurance" because the insurance policy was for legal practitioners and not "businesses on the side";

(d) he "cannot believe that this matter is still going on".

70 The answer proffered in argument by Mr Petch as to the lack of clear memory of potential witnesses on the issue of the conversations said to give rise to the variation of the contract of insurance to include Imaging, was: "We've heard about all these other people's memories. They are irrelevant, the plaintiffs only ever spoke to Tony Evans."

71 However, this submission ignores the fact that the defendants are entitled to challenge the recollections as to the 1986 conversations of not only Mr Petch and Mr Fahnle, but also of Mr Evans, and could be expected to do so at any future trial. It also ignores the fact that the recollection of Mr Evans as to events surrounding the creation of the contract of insurance in 1986 and of Mr Petch is very poor.

72 Mr Evans is a central witness in the case. Furthermore, as my analysis of the pleadings shows, it will be his recollection of conversations conducted in 1986 which will be critical, not only as to the formation of the contract of insurance, but also as to the alleged oral variation of the Policy to include cover for Imaging in August 1986. Further, the plaintiffs rely in part on the Evans conversations in 1986 to prove the Stenhouse Advice, Representations and Warranties and the Stenhouse and LIV Representations and the alleged falsity of these representations to found breaches of the Trade Practices Act, the Fair Trading Act and the duty at common law to not make negligent misstatements. It is by these means that the plaintiffs seek to render the second and third defendants liable under the amended statement of claim.

73 On the evidence before me of the poor recollection of Mr Evans as to the events and conversations which occurred in 1986, the passage of time is such that there is a substantial risk of it no longer being possible for the defendants to have a fair trial of this proceeding.

74 The defendants have each provided evidence as to the potential witnesses they may call in a trial of the proceeding.

75 I accept that the first defendant has four potential witnesses that it has identified, other than Mr Evans. One of those cannot be found and the others now have little, if any recollection of the events which gave rise to the litigation.

76 Likewise, the second defendant has four potential witnesses other than Mr Evans. The second defendant:

(a) is unable to locate a potential witness, Mr Walters,

(b) as to another potential witness, Mr Miller, he was contacted on 14 February 2008, and recalled speaking to the solicitor acting for Stenhouse about Mr Petch several years ago but could not recall much about what they discussed. He said that he remembered that Tony Evans was involved in the matter and that he had heard that Tony Evans had passed away,

(d) Mr Leach is another potential witness for Stenhouse. The memory of Mr Leach about the matter when he was consulted by the Stenhouse solicitors in May 1998 was that he did not have any recollection of ever speaking to Mr Petch in relation to his claim and could only vaguely recall the claim itself. When the Stenhouse solicitor contacted Mr Leach again on 13 February 2008, Mr Leach informed her that he vaguely remembered the name "Petch" because it was a matter that Mr Miller was working on. He said that he could not recall anything specific.

77 The third defendant, the LIV, finds itself in a similar position. The solicitor now acting for the LIV has been able to identify a number of potential witnesses. Mr Head appeared to have had some involvement in the insurance package which is the subject of the plaintiffs' claim. On 28 August she contacted Mr Head but he "appeared to struggle to remember the particulars of the matter, including the insurance package." As to other potential witnesses identified by the LIV: the whereabouts of a Mr Perry is unknown; the LIV does not have any contact details for a Mr Carmody; and no contact details are retained by the LIV in relation to a Mr Hatch.

78 The evidence discloses that all defendants will suffer material and significant prejudice in relation to their potential witnesses if the trial is allowed to continue. It follows that there is at the very least a significant risk that a fair trial is no longer possible.

79 Sun Alliance claims it has suffered prejudice by the loss of its underwriting file some time before 1998. Mr Petch concedes that Sun Alliance has lost its underwriting file but says that this underwriting file did not relate specifically to the insurance of Imaging but rather it was a file for all insurances for which it became underwriter for the LIV commercial risks package. Sun Alliance formally discovered its underwriting file. Discovery is a process involving compulsory disclosure to a party before trial of information relating to the questions for determination in the proceeding which could assist the party to establish the claim or defence of the party.[29] Mr Petch himself recognised the relevance of the file in the proceeding, at least to the plaintiffs' case.

80 However I take into account some factors which militate against the claim by Sun Alliance that it has suffered prejudice in the relevant sense by the loss of its underwriting file. The plaintiffs did not cause the loss, nor is there any direct evidence that Sun Alliance cannot now obtain copies of the relevant documents which comprised the file. Further, as the submissions and the materials relied upon by Mr Petch make clear, the documents which are central to the plaintiffs' case are available.

81 Nevertheless, even though the plaintiffs did not cause the loss of the underwriting file, in litigation where there has been very long delay, loss of documents may well occur. Further, in this case I am far from satisfied that the file can now be reconstructed from other documents. The passage of time is such that it is unlikely that any person could accurately remember the contents of the file, let alone piece it together from what documents might still be available from other sources and be confident that the reconstructed file is complete and has been faithfully restored. The lost file may well contain a document or documents which turn out to have an important bearing on the case as it unfolds.

82 I find that the loss of its underwriting file will cause prejudice to Sun Alliance in its defence of the proceeding.

83 The LIV also appears to have lost some of its own documents set out in its supplementary list of documents dated 27 June 1990. Mr Petch in argument conceded that the LIV has lost some of its documents. Again, being documents it had discovered, I infer that the lost documents related to the questions for determination in the proceeding which could assist the LIV in its defence of the proceeding. I find that the loss of the LIV documents will cause prejudice to the LIV in its defence of the proceeding.

84 Further, Mr Petch admitted in argument to not being able to find some ten to fifteen (and later "up to 20") documents of his own. He said that "... I believe that they are peripheral in the extreme. I have a vague memory about that; they are not central." Ms Sarah Letcher is a solicitor who has the care and conduct of the defence of the proceeding on behalf of the first defendant. In her affidavit sworn 18 October 2007, Ms Letcher swears that on 25 July 2001 she inspected with her then Junior Counsel Mr Ian Arnold documents which at the time had been discovered by the plaintiffs in a list of documents dated 14 May 1990 and a supplementary list of documents which was undated. She swears that many documents were missing and the plaintiffs' solicitor who is also the second plaintiff Mr Michael Petch could not produce those documents and could not explain to her why the plaintiffs could not produce them. Mr Petch attempted to explain away the problem of the missing documents by submitting that he did not believe that the documents were lost because he had been subjected to two burglaries at his Elwood premises "which have completely trashed the place". The first of the burglaries occurred on Easter Sunday 2005 and the second on 1 January 2007. Mr Petch said: "And so six months later the mess was partly cleared up, but not fully cleared up, and that presented a genuine problem for the plaintiffs for inspection." Nevertheless, Mr Petch remained in the position where he could not inform the Court as to the whereabouts of these missing documents. I find that the loss of these documents will cause prejudice to all of the defendants in their defence of the proceeding and that there is at least a significant risk that a fair trial is no longer possible.

85 I am also mindful of the observations made by McHugh J in Brisbane South Regional Health Authority v Taylor, a decision in which Dawson J concurred, which I have already referred to in these reasons. As his Honour concluded in the passage cited: "The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose."[30] Although these observations were made in the context of a discussion about limitation periods and the effect of delay in the commencement of a proceeding, they are equally pertinent to delay in the conduct of a proceeding.

86 In this case the delay caused by the plaintiffs in the prosecution of the proceeding was, as I have found, inordinate. As a consequence of the very long passage of time in this case, which concerns events which occurred during 1986, I infer that there will be less evidence available to the parties, including the defendants, at any future trial than would have been the case had the litigation been diligently managed by the plaintiffs. Further, I infer that the quality of the evidence will have diminished by the conduct of the plaintiffs in causing the delay.

87 For this reason too, I find that the defendants have suffered significant prejudice and that on this ground there is a significant risk that a fair trial is no longer possible.

88 The defendants claimed that other factors had caused them prejudice, such as the unavailability of counsel originally briefed in the case who had retired and the fading of a telex message caused by deterioration over the period of time. However, I am not satisfied that these other matters could not be remedied, for example by engaging fresh counsel and using modern scanning technology to retrieve the information on the spoiled telex.

89 To the extent that the defendants may have been prejudiced by these other matters, I am not satisfied that the defendants will have suffered other than a relatively minor prejudice, whether each item is considered alone, or cumulatively with the other elements of prejudice which I have found.

90 Mr Petch submitted that issues raised in the proceeding were of such public importance that, in the exercise of my discretion, it warranted me permitting the matter to proceed to trial in spite of the apparent delay which has occurred.

At a glance

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Judgment (309 paragraphs)

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Legislation Cited (4)

Cases Cited (6)