TERRY ROBERT DUNN & ORS Applicants v BOHEMIAN SOUND PTY LTD & ANOR Respondents

authority were needed for that proposition, I would refer to the

case of Exell v Exell 1984, VR 1 and cases there cited.

However, the point at which, in my view, Mr Greenberger's case breaks down, is when he is required to establish to my satisfaction that there is "a substantial risk that a fair trial of the issues will no longer be possible", to

use the words of Diplock LJ in Allen v Sir Alfred McAlpine & Sons Ltd (1968) 2 QB 229 at 255; see also Duncan v Lowenthal, 1969 VR

180 at 187. In the event, I am not satisfied that this action is not still capable of being tried adequately and fairly, McKenna v

I take that test, of whether a fair and adequate trial of the 1ssues would still be possible, as being the appropriate test for me to apply, putting to one side the rather stronger language found in the judgment of Lord Denning MR in Allen v McAlpine (above) at p.246 where he seemed to suggest that an applicant for such an order has to show that "grave injustice"

would be likely to result if the order were not made.

I should say, before dealing with the details of the evidence as to possible prejudice to the respondents, that I am satisfied that in this case there has been an "inordinate and inexcusable delay" on the part of the applicants' solicitors (see Allen v McAlpine above). That delay extended over a period of some two and a half years, perhaps even longer, and is explained.

simply by saying that the matter was put to one side and forgotten

The extent of involvement of the applicants themselves in the delay is not entirely clear to me. It seems that during the relevant period there was some communication between them and their solicitors' office on other matters; but there is no suggestion that they were in any way pressing their solicitors to proceed with the matter, and I think that the absence of any evidence from them to that effect permits me to draw the inference

So the first requirement for an order for dismissal for want of prosecution has, I find, been satisfied; there has been inordinate and inexcusable delay on the part of the applicants. So far as prejudice to the respondents is concerned, I am not persuaded by the evidence put before me that it is likely that a

fair and adequate trial of the issues cannot still be had.

The main issue in this matter, which arises from the sale of a 'Hi-fi' retail business, is going to be what representations were made about the sale of this business, and there seems to be no difficulty so far as evidence on that issue

1s concerned. The second-named respondent is the person who made

any oral representations and he is available to give evidence. All the relevant documents are apparently still in existence, and

It is true that there will be a number of other issues to be determined, and one quite important matter could he - although I cannot be certain of this - the way in which the

business was conducted, first under the management of the

respondents, and secondly by the applicants. I think I am

entitled to make assumptions, from experience of other similar actions, that il ts Vikely Lhat evidence on those matters will he called by one party or the other. And it is said that it 16 an

this area that the likely prejudice to the respondents will lie.

Iam informed that two potential witnesses have died during the period between the issue of the proceedings and today, both of whom could have given some evidence about the way in which the business was conducted, before and after its transmission between the parties. The first of those people was described as being a retired gentleman and the second as a parking officer, but there is nothing to indicate the extent of their knowledge of the business, either before or after the sale and transmission occurred. Nor is there any evidence before me as to how many

I suppose it would be reasonable to draw the inference that of these two witnesses, the one who died recently, some eight months ago, would have been available to give evidence had the matter come to trial in the ordinary course of events, without any avoidable delay. It is not so clear that the other person, who I am told died approximately two years ago, would have been well enough, or indeed even alive, to give evidence had the matter come on for hearing in its due course. However I would be prepared to infer, on the meagre evidence available to me, that it is more

probable than not that that evidence would have been available.

It is said that two other people, who were nearby shop-owners, who could have said something about the way in which the business was managed after its sale to the applicants, are currently in Noosa Heads, Queensland, but I am not told whether they went there before or after the delay occurred in these proceedings, and in any event there is no suggestion that it would

not be possible to bring them back again to give evidence.

Iam told next, in the affidavit material, that there were several representatives in the electronics industry, with which this business was concerned, who have been difficult to

find. I use the precise words of the affidavit in saying that.

The deponent, the second-named respondent, goes on to say that he has not been able to locate three named people with whom he had dealings, but there is no evidence before me as to what efforts have been made to locate those people; what further efforts are still available; what evidence they could have given 1f they had been able to be found; or what other representatives of firms involved in the electronics industry are, in any event,

Finally there is a reference to someone called Chery] Boyle and her parents, who it is said, could testify as to the operation of the business under the control of the applicants and respondents respectively. It is said that those people are operating a caravan park in New South Wales and that the deponent is not aware of the town in which they reside; but it is not

suggested that any efforts have been made to establish the town in

which they reside, through any search of electoral records or of publications which publicise caravan parks or in any other way, nor is there any evidence as to the precise nature or importance of the evidence which those people might have been able to give, nor of the time when they left Victoria and went to New South Wales. There is nothing before me to indicate whether losing track of them is connected with the delay which I have found in

Obviously, in dealing with a case such as this, there are several groups of people who could be ina position to give evidence about the way in which a business was run before and after changing hands. Neighbouring shop-owners come to mind; the regular customers of the business are an obvious' source of

evidence; the dealers whu came to the premises to sell or try to

sell goods on behalf of their principals could also be a valuable source of evidence, if the way in which the business was conducted proves to be an important issue 1n the case. And I am simply left without any information as to the avarlability of people of each of those classes, beyond the fact that some members of each class are either unavailable through death - in two cases - or may prove

When all the matters I have dealt with are put together, I find myself quite unable to be satisfied that this matter cannot still be tried fairly and adequately, which, as I have said, is the test that I have to apply. For that reason the application must fail. Before concluding my reasons for that decision I

should perhaps say something about another issue which was

canvassed by counsel. Even though the period of limitations for

actions under the Trade Practices Act 1974 has expired, it would

still be open to the applicants to bring fresh proceedings in the Supreme Court relying, it would seem, upon claims of fraudulent misrepresentation, seeking damages and setting out virtually the same facts as have been alleged in the proceedings before this

It is clear that the issues which would be involved in the Supreme Court action would be some of the issues which will have to be determined 1n this Court, and certainly the same type of witnesses would be required in those proceedings, as far as I am able to judge on the material before me. However, I think that there is a difference between this case and English cases, such as

Birkett v dames 1977 2 All ER 801, which dealt with this issue,

because there are a number of remedies available to the applicants under the Trade Practices Act 1974 which would not be available in the Supreme Court, and the matters that would have to be proved by the applicants would not be as demanding in this Court as in the Supreme Court. Thus there would, I believe, be a positive advantage to the respondents in having the matter dismissed for want of prosecution in this Court and leaving the applicants to

For that reason, I believe, the English authorities are

not directly in point, although had T found it necessary to da so I would probably have given some weight to the fact that some of the matters involved could still have been litigated in another

Court, where the same problems with witnesses would still have

arisen, and that even further delays would have been involved before the matter could have been brought to trial. But in the event I have not found 1t necessary to take those questions into account in reaching the decision that I have. For the reasons which I have given the application will be dismissed, but because I think it was properly and reasonably brought, due to the default

of the applicants, I shall order that the costs be costs in the

seven (7) preceding pages are a true and accurate copy of the

Reasons for Judgment herein of The Hon Mr Justice' Woodward