Waugh v Waugh [1999] VSC 51

The deadline for filing the notice of trial was stipulated in the order to be 1 May 1998. No party filed a notice of trial by that date and accordingly, as from that date, the proceeding stood dismissed.

7. I now have a summons filed in the court by the plaintiff on 23 December 1998 seeking an order that the proceeding be reinstated.

10. In the statement of claim endorsed on the plaintiff's writ the plaintiff alleges that by an agreement in writing dated 28 October 1980 the plaintiff guaranteed to the Commercial Banking Company of Sydney Limited the payment of all moneys then owing to the bank by the defendants or anyone of them or thereafter to be advanced by the bank to the defendants or any of them on any account or in any manner whatsoever.

13. The first-named defendant, Kenneth Waugh, is the plaintiff's husband. The second-named defendant, James Alfred Streeter, was a business partner of the plaintiff's husband.

16. The statement of claim alleges that prior to 12 March 1982 the defendants defaulted in payment to the bank of the moneys advanced to them and that by notice dated 12 March 1982 the bank demanded payment of the principal and interest then outstanding from the plaintiff.

19. On 16 July 1982 the plaintiff paid to the bank a sum of $54,821.85 in full discharge and in satisfaction of her obligation. By her writ she seeks to recover that sum from the defendant, together with a further sum of $7,539.86 which she says she advanced to the defendants between 9 May 1980 and 23 February 1981.

22. On 1 May 1985 the second-named defendant entered an appearance to the proceeding. However, he failed to deliver a defence and on 9 September 1988 judgment was entered in default of defence against him. It is perhaps not without significance that the first-named defendant, that is the plaintiff's husband, did never enter an appearance or deliver a defence but that the plaintiff did never see fit to enter any default judgment against him.

25. At all events, on 16 November 1990 the default judgment entered against the second-named defendant was set aside by order of a Master of the court.

28. On 29 November 1990 the second-named defendant filed and served his defence to the plaintiff's statement of claim. Nothing then appears to have occurred so far as the proceeding is concerned until 9 June 1994 when the plaintiff filed a notice of her intention to proceed with the action after the expiration of one month from that date.

31. Having filed that notice of intention to proceed, the plaintiff took no further action in the matter and the next event of significance which occurred was the making of the order by Teague, J. on 30 September 1997 to which I have already referred.

34. It is significant, perhaps, that following the making of that order the solicitors for the plaintiff filed a notice of the fact that they were ceasing to act for the plaintiff. That notice was filed on 3 March 1998; that is, after His Honour had made his order but before the deadline for the filing of a notice of trial had expired.

37. In a number of similar applications made to me of recent months, I have expressed the view that if I was satisfied that any application by a defendant to have a proceeding dismissed for want of prosecution would be bound to succeed then in my view it would be quite inappropriate to reinstate the proceeding. See Graham v. Visy Board Pty Ltd, unreported, 11 February 1998 and Invol Pty Ltd v. Perceptive Systems Pty Ltd & Ors, unreported, 7 September 1998. See also the decision of Mandie, J. in Caruso v. Jaffa & Anor, unreported, 18 June 1998.

40. In this proceeding, more than four years has expired since the plaintiff last took a step in the action. I refer in that regard to the filing by her solicitors of the notice to proceed on 9 June 1994. In my opinion, the delay which has occurred in this case is inordinate and inexcusable. The plaintiff has not proffered any acceptable explanation for her failure to pursue the litigation.

43. It is said on behalf of the plaintiff, however, that the second-named defendant would not be prejudiced if the proceeding was reinstated. I do not agree with that proposition. It is not for the defendant to prove by evidence each matter of prejudice, and prejudice can be inferred in the absence of evidence. That much is clear from the decision of the Full Court in Bishopgate Insurance Australia Limited v. Deloitte Haskins & Sells, unreported, 9 September 1994. In the joint judgment of Tadgell, J. and Ormiston, J., as their Honours then were, at page 24, their Honours said,

"The plaintiff argued that there was no allegation and thus no evidence of prejudice of any relevant kind in the present case. So it was asserted that it was for the defendant to prove by evidence each matter of prejudice and that prejudice could not be inferred in the absence of such evidence. However, this would appear to overstate the obligation of a defendant on an application of this kind."

47. I interpolate, the application their Honours were there dealing with was an application to dismiss a proceeding for want of prosecution. Their Honours continued,

"Although there are many cases in which the necessity to establish prejudice has been stated as a condition precedent to the exercise of the power to dismiss for want of prosecution on the basis of delay, it is not correct, in our opinion, to say that the defendant is obliged to allege that prejudice upon affidavit as opposed to asking the Court to infer from all the circumstances of the case that prejudice has been or will be likely to be suffered. This is not to deny that prejudice, actual and potential, must be established: it is merely a reminder that proof of any issue can be established by circumstantial evidence and of the necessary process of inference from such evidence. Nor are we suggesting, for it would be contrary to authority, that it is for the plaintiff to disprove prejudice; but the defendant is entitled to point to undisputed facts and ask the Court to draw necessary logical inferences from them for this purpose."

51. In this case, in the affidavit the second-named defendant has sworn in opposition to the plaintiff's application, he has said this,

"9. I am 67 years of age; my wife, Eileen, is 77 years of age; we are both retired and our only source of income is the old age pension.

10. My health is not good, I have in the last few years suffered two heart attacks. I have been advised by my doctor that I suffer from serious heart disease. I do not feel that I am physically capable of continuing to have to deal with the stress associated with defending this legal proceeding which has been going on for 14 years."

56. In my opinion, the second-named defendant would clearly be prejudiced if this proceeding was reinstated. It is to be remembered that if it was, the court would be required to determine issues that arose as long ago as 1980. That is some 19 years ago. It is a matter of commonsense that people's memories of such events would now be very vague.

59. In my opinion, the delay which has occurred in pursuing this litigation is, as I observed earlier, inordinate and inexcusable. I am satisfied that if an application was made by the second-named defendant to dismiss the proceeding for want of prosecution that that application would be bound to succeed. In that situation, it would be quite inappropriate to reinstate the proceeding.

62. The plaintiff's summons filed in the court on 23 December 1998 will be dismissed with costs to be taxed and paid by the plaintiff.