BETWEEN : THE AUSTRALIAN ELECTRICAL ELECTRONICS FOUNDRY & ENGINEERING UNION WESTERN AUSTRALIAN BRANCH

Application to strike out - Want of prosecution - Abuse of process - Distinction between defendants - Relevance of other defendants - Case management principles - Long causes list - Turns on own facts

Birkett v Jones [1978] AC 297

The Australian Electrical Electronics Foundary & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd [1999] WASCA 62

Ulowski v Miller (1968) SASR 277

1 OWEN J: I have read the reasons to be published by Wheeler J. I agree with those reasons and have nothing further to add.

2 WHEELER J: This is an appeal from a decision of Parker J on 24 April 1997 dismissing the appellants' applications to strike out the respondent's action against them for want of prosecution and as an abuse of the process of the court. The action is one relating to industrial action at the respondent's operations at Tom Price, Paraburdoo and Dampier during 1992. Very substantial damages, of the order of $37 million, are sought by the plaintiff. There are eight sets of defendants. Some are unions and some are collections of individuals.

3 The legal principles governing applications of this type are, on the whole, not in dispute. His Honour applied the principles which are discussed in Lewandowski v Lovell (1994) 11 WAR 124. Both the appellants and the respondent appear to accept that those principles were accurately stated, and I do not think it is necessary to set them out again.

4 The grounds of appeal fall into four major categories. They are:

(i) First it is said that his Honour erred in treating the appellants in the same way as he treated the first, second, seventh and eighth defendants. It was said that the appellants produced and relied upon substantial affidavit evidence, which made their position very different from that of the other defendants mentioned, and that his Honour either failed to take that evidence into account or failed to give their evidence sufficient weight. That issue appears to arise from grounds of appeal 1 and 2.

(ii) It is alleged that his Honour should have considered the delay relating to the appellants separately from any action taken in respect of other defendants, and he that he erred in failing to find that there had been inexcusable delay as against the appellants at times when no action was taken against them, notwithstanding that the plaintiff may have been taking steps against some other defendant. This issue is raised by grounds 5, 6 and 7.

(iii) It asserted that his Honour was in error in determining that what were described as "case flow management principles" had no formal application to this case. This issue is raised by ground 3.

(iv) It is said that his Honour erred in failing to include within his calculation of the periods of delay, a period of some nine months which elapsed prior to the plaintiff applying to have the action managed in the long causes list in accordance with Practice Direction No 1 of 1995. This is raised by ground of appeal 4.

5 In my view, all of these issues can be shortly dealt with.

(i) Factual Distinction Between the Appellant and Others

6 The answer to the contention that his Honour should have distinguished between the appellants and the other defendants is that his reasons reveal that he did so. His Honour dealt with the issue of what he described as "general prejudice", which may be expected in any case where the preparation for trial takes a period of, as in this case, some four and a half years. However, he also dealt with the evidence. It appears that the appellants relied upon affidavits from five witnesses on the issue of prejudice. His Honour discussed that evidence in broad terms and summarised the effect of the evidence of each of the five.

7 Having done so, his Honour reached the view that it had not been shown that the prejudice sought to be identified was causally related to the delay of the plaintiff, which his Honour found was confined to particular periods in 1994 and 1995. His Honour referred also to the evidence on behalf of the appellants as to the effects of the delay on their personal plans and day-to-day affairs, but took the view that that evidence was not sufficient to support the conclusion that serious prejudice had been caused.

8 Affidavit evidence from three further deponents sought to be relied upon by the appellants was summarised in some detail by his Honour when he considered the question of abuse of process. He reached the conclusion that that evidence, whether taken alone or viewed in combination with other matters raised on behalf of the appellants, failed to persuade him that any finding of abuse of process was justified as against the plaintiff.

9 Broadly, under this heading, it is asserted that his Honour was in error in considering what he found to be the generally unco-operative attitude of most of the defendants and the changes of solicitors by a number of defendants during 1994 as relevant to the question of whether the delay as against the appellants was inexcusable. In ground of appeal 6, it is put that his Honour erred in "attributing the behaviour of the first, second, seventh and eighth defendants to the appellants" in respect of changes of solicitor. This view simply misconceives the approach which his Honour took.

10 As I understand it, his Honour took the view that where there are a number of defendants in an action, and where, as appears to be the case here, there has been no application for separate trials and no indication by one or more defendants that they consider it appropriate that any issue or issues with respect to them ultimately be determined separately, then what is important in considering whether there has been inexcusable delay is the overall progress of the whole case, involving all parties, towards trial. Where issues involving one or more defendants are particularly complex, or where one or more defendants is particularly unco-operative, this may have the effect that no steps are taken against some defendants for a time while a plaintiff devotes attention to others.

11 In this case, the issues involving all defendants are generally similar, and are interwoven. Until May 1996 the first to sixth defendants had one common defence. The most logical way of preparing the matter would then have been to have ensured that progress in respect of each defendant is made at roughly the same rate.

12 His Honour's conclusion was, that save for particular periods which he identified, the respondent had at all times been taking steps to ensure that the whole of the action was ready for trial so soon as was reasonably possible. While this may have had the effect that there were periods during which no step was taken against these appellants, in my view the relevant issue is whether there was delay in preparation of the action, rather than delay as against a particular defendant. It appears to me that the approach taken by his Honour was the only one logically available.

13 "Case-flow management principles" are the principles outlined in O 1 r 4A and r 4B of the Rules of the Supreme Court. Their objective is that of ensuring that the processes and procedures of the court are used in a way that will eliminate unreasonable delays in progressing actions towards trial: Hughes v Gales (1995) 14 WAR 434. They place greater emphasis than has generally been placed in the past upon the prejudice to a party in a general sense which stems from delay, recognising both the very significant stress and anxiety caused for litigants by the period of uncertainty prior to determination of litigation and the greater difficulty of accurately remembering or reconstructing events which is experienced as the passage of time increases (even where no specific prejudice, such as loss of a witness, can be proved). The principles also recognise a general prejudice to the public interest arising from unnecessary delays in litigation, as delays by one litigant tend to have the effect of increasing interlocutory procedures and increasing the difficulty of decision-making, thereby increasing public expense and, further, delays in the conduct of one piece of litigation may mean that the court is unable to give attention to the affairs of other litigants as expeditiously as it should. Those principles are given effect by the system of management by Registrars and, where appropriate, Judges, and by the setting of standard milestones against which the progress of the ordinary case may be judged.

14 In my view, it is not necessary to determine whether his Honour was correct in the view which he expressed that "the case-flow management principles have no formal application to the present case", for two reasons. First, his Honour made it plain that he fully accepted the application to this case of a public interest in the expeditious conduct of litigation and that he took the view that even without the application of case-flow management principles, it was certainly open to a defendant in an appropriate case to ask the court to infer that prejudice has been, or will be likely to be suffered even in the absence of direct evidence or of evidence establishing specific prejudice. In the context of this case, and having regard to the conclusions which his Honour had already reached concerning the question of prejudice, it is unlikely that the "formal" application of case-flow management principles would have had any different result. Second, his Honour did consider whether his conclusion would have differed had this case been the subject of case-flow management, and concluded that "I would take the same effective view of the nature of the delay ... whether I applied the ordinary principles or had regard to the greater emphasis on the speedier preparation of cases for trial which is a principle underlying the case-flow management rules".

15 Since April 1995, Practice Direction No 1 of 1995 had required actions expected to take 10 days or longer to be notified to the Listing Co-ordinator so as to be entered into the long causes list. The plaintiff did not comply with that direction until 4 January 1996. In those circumstances, the appellant says there was a failure to take a "step in the action" by the respondent for a period of some nine months, which period should be added to the other periods of inexcusable delay found by his Honour. The ground of appeal proceeds from the view that his Honour did not regard the taking of action in accordance with Practice Direction No 1 of 1995 as relevantly a "step in the action". Again, I think the appeal misconceives his Honour's position.

16 On my reading of his Honour's reasons, he did regard taking action in accordance with the practice direction as a relevant step which should have been taken by the respondent. However, his Honour adverted to the fact that the long causes list was in its infancy in the earlier part of 1995 and that the court was without the resources necessary at that time for full implementation of the long causes list.

17 Although his Honour did not expressly state that he was of the view that the failure to comply with the practice direction was not intentional or contumelious, it appears clear from the way in which he expressed his views that that was the case. He expressly found that the delay had not been shown to have caused any prejudice, in that it had not apparently had any substantial effect on the progress of the action. His Honour was therefore correct in taking the view that this period of delay was not relevant for the purposes of this application.

18 I should note that, as was pointed out by the respondent, the responsibility to comply with Practice Direction No 1 of 1995 is not in any event solely that of the respondent. It applies to "any party" who forms a relevant view as to the likely length of the action. While, in an action with multiple defendants, a plaintiff is likely to be the party best placed to form a view as to the likely length of trial, it appears to me that delay in complying with the practice direction should not be attributed solely to the plaintiff unless it can be shown that no other party was in a position to form the relevant judgment.

19 For the reasons outlined above, it is my view that this appeal should be dismissed.