BETWEEN : SANGORA HOLDINGS PTY LTD (ACN 009 348 752)

Practice and procedure - Dismissal of action for want of prosecution - Principles to be applied - Inordinate delay - Prejudice to the defendant

First Plaintiff : Mr M J McCusker QC & Mr E M Corboy

Second Plaintiff : Mr M J McCusker QC & Mr E M Corboy

Birkett v James [1978] AC 297

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

Commonwealth of Australia v Brinkworth, unreported; FCt SCt of WA; Library No 990045; 10 February 1999

1 By way of chamber summons filed on 18 April 2002 the defendants seek orders that the plaintiffs' claim be struck out, the action be dismissed and judgment be entered for the defendants on the ground that the plaintiffs have failed to prosecute their action.

2 The general principles to be applied in applications of this nature are conveniently summarised in Duke v Royalstar Pty Ltd [2001] WASCA 273 at [10]:

"In enunciating the principles relevant to an application to strike out for want of prosecution, the learned Master referred to the decision of this Court in Lewandowski v Lovell ( 1994) 11 WAR 124 and in particular referred to the passage from the reasons of Murray J at which his Honour adopted the statement of principle enunciated by Bray CJ in Ulowski v Miller (1968) SASR 277 at 280. In that case Bray CJ referred to five 'paramount matters' to be considered, they being:-

1. The length of the delay;

2. The explanation for the delay;

3. The hardship to the plaintiff if the action is dismissed and the cause of action left statute barred;

4. The prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and

5. The conduct of the defendant in the litigation."

3 The plaintiffs' claim is for negligence advice in relation to recommendations made by the second defendant through the first defendant, that the plaintiffs invest substantial amounts in three unlisted property trusts. The plaintiffs allege the defendants made certain oral representations concerning the investments and failed to inform the plaintiffs about various matters relevant to the investments. There is also a plea that a secret commission was given.

4 It is pleaded that the representations were made over a period of time with the first being made on 8 February 1990. It is said investments were made between March and May 1990 on reliance of those representations and the investments would have been sold when the price declined in February 1991 if it were not for the representations given. The investments were, in fact, sold in 1996 at a loss.

5 This action was commenced by writ filed on 6 February 1996, which was more than six years after the first meeting and some five years since the plaintiffs had knowledge of the decline of the value in the investments. The writ was not served until 26 August 1996.

6 Some eleven to twelve years had elapsed from the time the oral advice was given to the bringing of this application and six years since the writ was filed. In my view this constitutes an inordinate delay.

7 The plaintiffs explain that the writ was not issued until 6 February 1996 due to the fact that it was not until shortly prior to November 1995 information was received indicating a secret commission had been paid in relation to the investment. It was then they thought the advice they had been given may be negligent and they instructed solicitors to investigate the advice which led to the investments.

8 Counsel for the defendants submits that it is incredible that the plaintiffs had no concern about the advice until they heard about the alleged secret commission. It is submitted that there is no logical connection between the secret commission and the negligence of the advice. It is further submitted that it is clear that there has been a singular failure to offer a complete and accurate explanation of the reason why the action was not taken prior to early 1996. I consider that there is some force in that submission.

9 The first plaintiff was established in 1963 and to 1991 had achieved a gross profit in excess of $16.5 million. Part of the first plaintiff's business relates to property management, property development and investing in real property in Western Australia. Counsel for the defendants submits that this company is a very sophisticated investor in property. He further submits that one would think that a sophisticated investor in local real estate would know of the alleged falsity of the representations said to have been made.

10 On the other hand counsel for the plaintiffs argued that an investment in a property trust investment is different from an investment in property and, thus, the fact that the first plaintiff may have been a sophisticated property investor, it cannot be said to be necessarily something that would cause the first plaintiff to reject the advice of a professional adviser. With that I would agree. However, I do not find the explanation for the delay particularly convincing.

11 Whilst I do not consider the delay prior to the issue of the writ would itself constitute an inordinate delay it was such as to make it incumbent upon the plaintiffs to proceed with all due speed. In my view the plaintiffs have failed to do so.

12 A chronology of events is found at par 5 of the affidavit of Debra Margaret Bradley, sworn 17 April 2002. At par 12 of the affidavit of Steven John Blyth sworn on 29 March 2002 the deponent deposes that the chronology is substantially accurate save for the matters he there lists. What is apparent from the chronology is

(1) It took the plaintiff six months to serve the writ.

(2) The statement of claim and the particulars thereof were not finalised until August 2000, over four years after the action was commenced.

(3) Very little progress was made in 1996 and 1997 and virtually nothing happened in 1998. Little progress was made in 1999 with somewhat of a spurt in 2000 and little progress in 2001.

13 The plaintiffs have not provided any specific reason for the delay, apart for the period before the writ was filed. The apparent reason profited by the plaintiffs for the delay after the issue of the writ is encapsulated in par 28 of the affidavit of Mr Blyth, where he deposes as follows:

"Since November 1995 the Plaintiffs have formulated and pleaded their claims; through my firm and William Buck, expended considerable time and money in investigating and pursuing the claims to which I have referred above. Two of the three sets of proceedings which have been commenced have been settled. In these proceedings, the Plaintiffs inspected and analysed a large quantity of discovered documents and, where appropriate, sought and obtained further discovery; conferred extensively with counsel; made enquiries from possible witnesses and prepared proofs of evidence; engaged and consulted with experts in the financial planning industry and generally prepared the Plaintiffs' case for trial. The time taken to complete those steps reflects matters such as the number of actions which the Plaintiffs considered it was necessary to commence, the need to make extensive enquiries in relation to those actions, the fact that Mr Kawasaki requires an interpreter and spends substantial periods of time in Japan, the involvement of various counsel and experts and the work required to coordinate and conduct the actions generally including the prospect of CIV 1768 of 1996 being either consolidated with or heard at the same time as this action."

14 I do not find the explanation given satisfactory. To the extent it suggests leniency should be extended because of the complexity of the matter, I agree with the observations in Bishopgate Insurance Australia Ltd (In liq) v Deloitte Haskins & Sells, unreported; SCt of Vic; No 4901 of 1989; 9 September 1994, where Tadgell and Ormiston JJ said at page 34:

"It should not, however, be supposed that merely because the litigation is complex there is some general principle of leniency and that expedition is not required by the litigants. Indeed it is all the more necessary to require proper and fair expedition in conducting a complex case lest it become out of control and remain a never-ending threat to the defendant."

15 Counsel for the plaintiffs submitted that the question of obtaining the co-operation of Mr Louis (who is a defendant in CIV 1768 of 1996) was an important one which was not simply a tactical one. I accept that to be so and that course may be a reasonable explanation for some delay, but I do not accept that it explains any significant part of the delay. He submitted that although there had been some delays, they have not been the subject of complaint by the first defendant. It is said that the trial will, to some degree, be complex because of the nature of the expert evidence and the detailed pleading and set-off particulars.

16 In Jakovljevic v L & B Doslov [2000] WASCA 131 at [30] and [33] Steytler J said:

"30 There is no doubt that it was open to the learned Judge below to conclude that the delay had been inordinate. Some thirteen and a half years had expired between the date of the accident and the date of the application to dismiss the action for want of prosecution. Some seven and a half years had by then expired since the issue of the writ. While it is true, as was pointed out by Lord Diplock in Birkett v James, above, at 322, that time elapsed before the issue of a writ within the limitation period cannot of itself constitute inordinate delay, a 'late start makes it the more incumbent upon the plaintiff to proceed with all due speed'. His Lordship also there said (ibid) that 'a pace which might have been excusable if the action had been started sooner may be inexcusable in the light of the time that has already passed before the writ was issued'. (See also Lewandowski v Lovell, above, at 134).

...

33 While it is true that the remaining periods of delay were contributed to by the tardiness of the third party proceedings the authorities make it plain that inaction by a defendant does not of itself justify delay on the part of the plaintiff. (See, for example, Birkett v James (above) at 329.) It might be so that 'in some cases inaction by a defendant in the face of impending prejudice to him if delay continues may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor' (Stollznow v Calvert [1980] 2 NSWLR 749 at 753, per Moffitt P) but this does not provide a plaintiff with an excuse for delay on its part."

17 I do not accept that the explanation put forward by the plaintiffs adequately explains the length of the delay which exists, particularly in view of the delay in filing and serving the writ. Counsel for the plaintiffs submit that since February 1999 the chronology shows that both parties have contributed to any delay.

18 Whilst it is true that since the beginning of 2000 some delay could be attributed to the defendants, any delay which lies at the defendants' feet is not such as would provide the plaintiffs with an excuse for delay, nor render a claim of prejudice less creditworthy or a less weighty factor. I am of the view that the majority of the delay is without adequate explanation, particularly the delay since the writ was issued.

19 The hardship to the plaintiff is apparent. It is common cause that the causes of action the subject of the plaintiffs' claim are now statute-barred. Thus if the action is struck out for want of prosecution, the plaintiffs will not be able to pursue these causes of action.

20 At par 12 of Duke v Royalstar Pty Ltd (supra) the Court said:

"As to the relevance of delay, however, it is important to note that in Hughes v Gales (1995) 14 WAR 434 at 499-500, Malcolm CJ, in reasons with which the other members of the Court agreed, made observations to the effect that it may well be that the case flow management principles contained in O 1 r 4A and r 4B of the rules of the Supreme Court within an appropriate case, justify dismissal on the grounds of delay alone without the need for any other ingredient to be established. The relevance of case management principles was emphasised also in Levi v Stirling Brass Founders Pty Ltd, unreported; FCt SCt of WA; Library No 97029; 9 May 1997. Giving effect to those observations would mean that the earlier practice in this jurisdiction to which the learned Master referred is (since March 1993) not an appropriate guide to the way in which delay should be approached."

21 Given the nature of this action, the length of the delay and the inadequacy of the explanation, I am of the view that this is a case where it could be appropriate to dismiss the action on the ground of delay alone. However, in this case there is more.

22 At pars 3 and 4 of his affidavit sworn on 22 April 2002, James Antony Elliott Hodder deposes as follows:

"3 I do not have in my possession any notes that I may have taken at those meetings which may assist me to recall the specifics of what was said by the people who attended the meetings.

4 As would be expected, my memory of those meetings has faded with time."

23 The matter deposed to in par 4 is readily accepted. Paragraph 3 is somewhat equivocal. What is not clear is whether or not notes were made and, if so, where are they now? Counsel for the plaintiffs argues that the writ was served in 1996 and several defences have been filed. He submits the consolidated defence pleads in detail what was said in the various meetings and, presumably, a proof of evidence was taken prior to the preparation of the defence. Even if that is so, that is not an end to the matter. Steytler J in Jakovljevic v L & B Doslov (supra) said at [41] and [42]:

"41 It is also apposite to quote the following remarks of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551:

'The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates" (R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC). 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 anyone else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo [1972] USSC 146; (1972) 407 US 514 at 532, "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.'

42 I should also mention that, in Dzienciol v Logie Brae Pty Ltd, unreported; FCt SCt of WA; Library No 980078; 25 February 1998, Parker J has said that there may well be circumstances where delay of itself might lead to an inference of serious prejudice. (See also Hughes v Gales (1995) 14 WAR 434 and Ulowski v Miller [1968] SASR 277). This case seems to me to be one which falls into that category."

24 In this action not only will the evidence as to what was said at various meetings be crucial, but so will the evidence of experts. Given the passage of time since the relevant events have occurred, I accept that it is reasonable to infer that the recollection of witnesses, including expert witnesses, will have faded. I am satisfied that the particular circumstances of this matter establishes real prejudice on behalf of the defendants.

25 The defendants submit there is a further factor which establishes they will suffer prejudice if the action is permitted to continue. At pars 5 to 7 of the affidavit of Mr Hodder, he deposes as follows:

"5 At the time that the Plaintiffs first made their claim against myself and Godfrey Pembroke, I had the benefit of a professional indemnity policy taken out by Godfrey Pembroke with FAI General Insurance Company Limited.

6 As a result of FAI being placed in liquidation, I verily believe that there is a real prospect that I do not have any insurance that will respond to the Plaintiffs' claim against me.

7 Both myself and my wife have been subjected to a significant amount of stress and anxiety as a result of the claim made against Godfrey Pembroke and myself. This anxiety has been heightened by FAI being placed into liquidation."

26 In his affidavit sworn on 30 May 2002, David William Speak, at par 12 - 13 deposes as follows:

"12 Godfrey Pembroke is now an unsecured creditor of FAI.

13 Based on information that I have received from FAI's liquidator, I verily believe that FAI will not be in a position to fund the ongoing defence of this claim. I further believe that there is little, if any, prospect that FAI will be in a position to indemnify the Defendants in relation to any award of damages against them."

27 Counsel for the plaintiffs submits that the plaintiffs have been unable to discover any authority to support the proposition that where the defendants' insurer collapses, that is prejudice within the meaning of that term as it relates to applications of this nature. That I do not find surprising. The collapse of insurance companies is not commonplace. It was suggested that the relevant prejudice is prejudice in the conduct of the case. I do not agree. The cases should not be read as narrowly as that.

28 Master Bredmeyer, in Sangora Holdings Pty Ltd & Anor v Louis & Ors [2001] WASC 232 said (at [51]):

"I consider that there is nothing, even when taken together, in the defendants' submissions that missing records, missing witnesses and failed memories in this case constitute substantial prejudice to Mr Louis. The fact that his insurer has gone bad is, indeed, a matter of real prejudice. Had the plaintiffs got on with their actions earlier on and proceeded to a trial and judgment, the insurer would have met the damages and the legal costs. Now the insurer is, possibly, worthless. However, the delay in the progress of the action was not caused exclusively by the plaintiffs. It was a mutual thing. The plaintiffs were trying to negotiate with Mr Louis to settle this action. Those negotiations, as I have related above, took several years. They were mutual negotiations. At no time did Mr Louis or his advisers say 'This is taking far too long. We will terminate the negotiations and demand a statement of claim, failing which we will apply for a springing order or for dismissal of the action.' In the circumstances of this case of the long mutual negotiations to settle I am not persuaded that the substantial prejudice of the lack of an insurer caused by the delay amounts to a justification to dismiss this action against Mr Louis for lack of prosecution."

29 In the matter before Master Bredmeyer Mr Louis deposed to his lack of assets. Neither of the defendants in this case have sought to lead such evidence. None the less I consider the failure of the insurer constitutes a substantial prejudice to the defendants.

30 Because of the lapse of time the plaintiffs will be unable to maintain a fresh action. It is a serious matter to strike out an action in these circumstances but it may not be unjust to do so. It was contended by the defendants that any hardship suffered by the plaintiffs was always within their grasp. It is said they have not explained why they have not prosecuted this action in a timely way and the case is not complex. With this I would agree.

31 Counsel for the plaintiffs submitted that a salient feature in this matter is that the application is brought at a time when he says each party appears to be proceeding, albeit at a bit of a leisurely pace, towards trial and it was made without any prior notice or warning. I accept that the application was brought without any prior warning, but note there is no obligation on the defendants to do so, even though that may be a courtesy one would usually expect. I do not accept the matter is progressing in a leisurely way. There have been substantial periods when little or nothing has happened.

32 It was submitted that a second salient feature exists, in that the defendants submit that prejudice may be inferred by reason of the delay, but neither defendant has gone on affidavit to say that there has been, in fact, any prejudice suffered by reason of the delay, apart from the collapse of the insurance company. This application was not brought until some twelve months after the collapse of the insurance company.

33 It was further submitted that it is, at least, very likely that by the time the matter had been finally resolved, the collapse of the insurance company would have occurred. I do not agree. Counsel for the plaintiffs also argues that the interlocutory steps in the action have been substantial. With this I would agree, noting that many of those steps related to the settling of the statement of claim or supplying particulars thereof.

34 At [34] to [35] of Duke v Royalstar Pty Ltd (supra) the Court said:

34 So far as hardship to the plaintiff is concerned, if the Limitation Act is applicable under the principle in R v McNeil or by analogy, the plaintiff would be unable to maintain a fresh action, because of the lapse of time. If the doctrine of laches applies, there is no material before us which suggests that the plaintiff will be able to overcome that doctrine. It is a serious matter to strike out an action in these circumstances. However, it appears to us that the principles discussed in Lamshead v Lamshead and Boomalli v Hake lead to the conclusion that it is not unjust to do so. This is particularly so where, as here, the plaintiff's lengthy and unexplained delay points to the conclusion that it did not, until very recently, consider the right which it seeks to assert to be of sufficient value to justify the relatively limited expense involved in pursuing this action.

35 There is no prejudice to the defendant in allowing the action to proceed, in the sense of lost witnesses or documents or the like. However, there is the general prejudice which appears to be assumed in the cases to which we have referred, and which is illustrated in this instance by the fluctuating value of the land in question. So far as the conduct of the defendant is concerned there is, as the Master noted, nothing to criticise in her conduct in this action."

35 I accept in this matter there is no evidence of any lost witnesses or documents or the like. However, the action does rest on alleged oral representations made over eleven years ago and will depend upon expert evidence which will relate to that period. As McHugh J observed in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 lengthy delays make it more likely that the case will be decided upon less evidence than was available to the parties at the time the cause of action rose. In my view that is a real possibility here. I do not consider that difficulty is overcome by the fact that the defendants have provided instructions to their solicitors which have enabled their defence to be pleaded. This is a case where the action was started almost six years after the cause of action arose and for that reason alone required the plaintiffs to prosecute the action in a timely way. A further six years has passed before this application was brought and the matter has not got to trial.

36 The plaintiffs submit that all interlocutory stages have been completed except for disclosing the substance of the expert evidence upon which they intend to rely. It is said the expert report will shortly be ready and the action would then be ready for entry. The defendants, on the other hand, submit there are a number of interlocutory matters they wish to pursue and they will need to respond to the expert evidence of the plaintiffs. I am far from satisfied that this matter will be in a position to be entered for trial in the near future.

37 The plaintiffs' delay have deprived the defendants of the benefit of professional insurance that they held. Had the proceedings been prosecuted expeditiously it is likely that the action would have been resolved before the insurer was placed into provisional liquidation. This, in my view, has caused the defendants real prejudice of a type which should be taken into account in considering the competing interests. Admittedly it was some twelve months after that event before the defendants brought this application. That should not deprive the defendants of the benefit of raising this issue but it may be a factor which should properly be considered when determining the question of costs.

38 Counsel for the plaintiffs argued that the second defendant is a body corporate and therefore would not suffer the stress and anguish which a natural person may. That is true. However, the action deals with the professional competence of the first defendant whom it is alleged is an agent of the second defendant and thus the causes of action reflect on the competence of both the first and second defendants. In Bishopsgate Insurance Australia Ltd (In Liq) v Deloitte Haskins & Sells (supra) Tadgell and Ormiston JJ said at pages at 52 and 53:

"This is, however, not a case where the only prejudice to be suffered by the defendants is in conducting its case at the trial. As we have already pointed out, a significant potential area of prejudice is that which a defendant suffers by reason of being placed at risk for many years, from the time proceedings are issued, in relation to a serious claim against it. Again, there is no direct evidence but the inference of additional prejudice caused by the plaintiff's delays is one which may be drawn as a matter of commonsense from the circumstances of this particular claim. Every case exposes defendants to risk and in complex cases that risk may extend over a number of years. But the nature of the claim and the potentiality for prejudice must be looked at in the light of the claims made. Where a claim is made against individuals relating to their probity or their competence, especially their professional competence, and the claim is for many millions of dollars, then it is not hard to infer that defendants against whom such allegations are made are under a heavy burden. When that burden is not merely deferred but then unjustifiably drawn out over many years, it is easier still to infer serious prejudice of the relevant kind to a defendant. It has sometimes been said that where a defendant is insured or likely to be insured then the prejudice is not so great and the risk of litigation has been said not to be so great in cases of compulsory insurance, such as that applicable to motor accidents, especially where the premiums cannot be increased if the plaintiff is successful. But where a claim extends beyond mere casual negligence to acts which reflect upon the competence or probity of a defendant, especially when that competence or probity is critical to the defendant's future livelihood, then the delay in bringing an action on for hearing will properly be held to impose severe additional prejudice on a defendant. This is particularly the case in claims alleging professional negligence, although such a description is not to be confined merely to the negligence of accountants, solicitors, doctors and the like for it is relevant to any person in respect of whom an unfavourable finding will be likely to place at risk his or her capacity to earn a living. No doubt this case, without delays, would have hung over the defendant's head for up to three years. We are, however, primarily here concerned with the additional and quite unnecessary burden imposed in the later years while awaiting trial."

40 I consider there has been inordinate delay, most of which is without an adequate explanation and the defendants have suffered serious prejudice.

41 In my view this is one of those cases where despite the fact that the plaintiffs will be unable to maintain a fresh action it is not unjust to dismiss the plaintiffs' action for want of prosecution and I propose to do so.