Nicholas v Commonwealth New Guinea Timbers Pty Ltd [1986] PNGLR 133 (29 May 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 133 - Ronald Nicholas v Commonwealth New Guinea Timbers Pty Ltd 

[1986] PNGLR 133

N539

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

RONALD NICHOLAS

V

COMMONWEALTH NEW GUINEA TIMBERS PTY LTD

Waigani

Woods J

19 May 1986

29 May 1986

PRACTICE - National Court - Dismissal for want of prosecution - Discretionary matter - Principles applicable - Where lengthy delay - Balance of justice - Plaintiff out of jurisdiction - Changes in lawyers - Legal aid applications - No action from defendant - No order for dismissal - National Court Rules, O 4, r 36.

On an application by a defendant to dismiss proceedings for want of prosecution,

Held

(1)      The power of the Court to dismiss proceedings for want of prosecution should be exercised only where the plaintiff’s default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial will not be possible or to serious prejudice to the defendant.

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v James [1978] AC 297, adopted and applied.

(2)      Where there has been a long delay in bringing the proceedings to trial a balance must be struck as between the plaintiff and the defendant and in the end the Court must decide whether or not, in the balance, justice demands that the proceedings should be dismissed.

Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411, adopted and applied.

(3)      Accordingly, no order should be made in circumstances where eleven years had elapsed since proceedings claiming damages for wrongful dismissal had been commenced — the delay being occasioned mainly by the plaintiff having to leave Papua New Guinea for financial reasons and for reasons of employment, and then being caught up with the obtaining of an invalid pension, legal aid and with changing solicitors and conducting legal proceedings from a distance and where the defendant had as recently as November 1984 obtained an order for security for costs and had not previously taken any steps to forestall the proceedings.

Cases Cited

Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229; [1968] 1 All ER 543.

Birkett v James [1978] AC 297; [1977] 2 All ER 801.

Calvert v Stollznow (Unreported, affirmed on appeal [1980] 2 NSWLR 749).

Fitzpatrick v Batger & Co Ltd [1967] 1 WLR 706; [1967] 2 All ER 657.

Witten v Lombard Australia Ltd [1968] 2 NSWR 529; (1968) 88 WN (Pt 1) (NSW) 405.

Application

This was an application seeking to dismiss proceeding for want of prosecution pursuant to the National Court Rules, O 4, r 36.

Counsel

J Goodman, for the applicant/defendant.

N Diacos, for the respondent/plaintiff.

Cur adv vult

29 May 1986

WOODS J: This is an application by the defendant pursuant to the National Court Rules, O 4, r 36, for an order that the proceedings be dismissed for want of prosecution. It is necessary to recite the relevant history of this litigation and the facts relating to its antiquity.

1 August 1975. The date the plaintiff alleges his contract with the defendant was unlawfully terminated.

12 September 1975. The plaintiff filed a writ of summons claiming damages for loss of earnings and expenses incurred as a result of unlawful termination on 1 August 1975 of a contract between the plaintiff and defendant.

7 October 1975. The defendant filed an appearance.

7 November 1977. Plaintiff filed a notice of change of solicitor.

21 February 1978. Plaintiff filed a summons for directions.

7 March 1978. Orders were made on the summons for directions.

8 March 1978. The statement of claim served on the defendant.

13 April 1978. The defendant filed a notice of change of solicitor.

14 April 1978. Defence filed and served.

4 January 1979. Plaintiff filed an entry for trial.

10 January 1979. Defendant filed a verified list of the defendant’s documents.

15 February 1979. Defendant filed a notice of motion seeking security for costs.

16 February 1979. Plaintiff filed a joinder of issue.

6 March 1979. Plaintiff filed a verified list of documents.

6 October 1981. Plaintiff filed a notice of change of solicitor.

8 October 1981. Plaintiff’s interrogatories filed and served.

7 December 1981. Plaintiff filed a notice of motion seeking order that the defendant give answers to the plaintiff’s interrogatories.

11 December 1981. Order that the defendant answer the plaintiff’s interrogatories.

24 September 1982. Plaintiff filed a notice of change of lawyer.

10 November 1982. Plaintiff filed a notice of motion seeking orders that judgment be entered for the plaintiff on the defendant’s failure to answer interrogatories.

12 November 1982. Defendant’s answers to the plaintiff’s interrogatories filed and served.

22 September 1983. Plaintiff filed a notice to set down for trial.

16 November 1984. Defendant filed a notice of motion seeking security for costs.

30 November 1984. Order that the plaintiff pay security for costs.

There are other matters which may be relevant, which have been brought to the Court’s attention by affidavit filed by the parties and these are as follows:

September 1975. Plaintiff left Papua New Guinea and commenced residing in Australia.

1976, 1980 and 1983. Plaintiff’s legal aid reviewed.

Generally it appears that after issuing the writ the plaintiff was employed for some years after he returned to live in Australia until in 1984 he became eligible for an invalid pension. He sought and obtained legal aid for the case. The problems of distance and the problems of continual reviews of the legal aid created difficulties for the plaintiff.

Such difficulties and the changes of lawyers were circumstances which often delay litigation and which the system usually tolerates.

The result is that almost eleven years have elapsed since the writ of summons was issued and the defendant is now exercising his right to say that this delay has become intolerable and it should not be put to the trouble and expense of going to court after such a long delay. Whilst this Court has, on occasions, taken a strict approach where a plaintiff has done nothing, it cannot be said that this case is quite on the same lines as that. In this case the plaintiff presumably had to leave the country for financial reasons and for reasons of employment and not being a man of means was caught up in a web of applying for legal aid and seeking legal action from a distance. There have been changes of solicitor which could not have helped the plaintiff in his claim. It also appears that a couple of times the lawyer for the plaintiff has attempted to have the matter heard.

There is no doubt that the defendant can sit and do nothing when faced with a writ of summons and relative inaction. He may let sleeping dogs lie hoping that the dog may die a natural death. However, one must not forget that once an action has been started there is a remedy for any delay on the part of the plaintiff by the defendant coming to court and taking steps under the rules to compel the plaintiff to comply with the timetable of procedural requirements preliminary to having a matter set down. And the defendant himself could set it down if the plaintiff failed to do so. If a defendant does not do any of these things can he be said to have acquiesced in the delay or alternatively can he be said to have shown no concern or interest in the delay. When a defendant after many years suddenly shows concern and if the plaintiff has shown some action or has some excuse then the defendant should be prepared to accept the court saying that although the plaintiff may have delayed for many years, as you are both anxious that these proceedings be concluded, come to the court and litigate without any further delay.

An excellent analysis of the law on the inherent power to dismiss for want of prosecution is to be found in the case of Calvert v Stollznow an unreported decision of Cross J of the Supreme Court of NSW found in the Supreme Court Procedure NSW Service Vol 2 at 44 under Practice Decisions (Affirmed on appeal [1980] 2 NSWLR 749). His Honour in that case analysed Australian and English decisions. He notes that prior to 1967 the law in New South Wales and England tolerated delay within fairly wide limits. The principle being that there was no point in striking out an action which the plaintiff could immediately commence.

Then his Honour notes that in 1967 the Courts in England appeared to make a deliberate policy decision and adopted a new and sterner approach. See Salmon LJ in Fitzpatrick v Batger & Co Ltd [1967] 2 All ER 657 at 659: “It is of the greatest importance in the interests of justice that these actions should be brought to trial with reasonable expedition” and see Birkett v James [1978] AC 297.

However when one looks at these cases and other examples it is not necessarily a sterner approach but rather a more careful explanation and application of the principles that apply.

In the case of Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 and Birkett v James the courts laid down the following principle (at 298):

“That the power of the Court to dismiss an action for want of prosecution should be exercised only where the plaintiff’s default had been intentional and contumelious or where there had been inordinate and inexcusable delay on his or his lawyer’s part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant.”

Where there is a long delay “a balance must be struck as between the plaintiff and defendant and in the end the Court must decide whether or not in the balance justice demands that the action should be dismissed”. See the words of Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411.

Going back to the facts in this matter, the plaintiff left the country following the issuing of the writ of summons. He was employed for some years although there is a suggestion in his affidavit of being in receipt of sickness benefits after about 1981. He states that in August 1985 he was in receipt of an invalid pension. It is very hard to appreciate what relevance that has to an action filed in 1975, however, he has had to operate from a distance outside this jurisdiction, has had to run the gamut of seeking legal aid and reviews of legal aid and there is no doubt that this has caused some delay. It is clear from the file that the case was ready for trial a couple of times during the ten year period but for reasons unknown these lapsed. And as recently as within the last two years there have been attempts to set the matter down for trial and the plaintiff’s lawyer has come to this Court at the hearing of this application and said that he was seeking to have this matter heard in the current months.

On the other hand the defendant has done very little, apparently deciding to let the sleeping dog lie. And of course this is always the right of the defendant. Now the defendant suggests that he may suffer real prejudice on the basis that the cause of action relies on an alleged oral contract made eleven years ago. However, I note that the defendant never took such action or suggested such prejudices in 1984 when it became clear to him that the plaintiff was going to revive the matter and the defendant thereby sought security for costs which security he obtained. And not all the witnesses have disappeared, one of the relevant witnesses apparently is still resident here.

If there was an inordinate delay the plaintiff does have some excuse for it or some explanation for it, being caught up in the problems of being out of the jurisdiction, changing lawyers, and seeking legal aid. And the defendant has not exercised his right earlier when he could have done so to press for the matter to go on or be dismissed. At least he could have done such and shown prejudice two years ago when he sought security for costs. Does justice demand that this action now be dismissed when both parties are coming to the court pressing that the matter be concluded. The court must let parties litigate their problems if the parties are ready and willing. The plaintiff here says he is ready and willing, the defendant has shown no really convincing reasons why the plaintiff should not be allowed to litigate his claim. I dismiss this application but in doing so I propose to make further orders to expedite the hearing of this matter before this court. The further orders I make are that the parties by their lawyers appear before the Registrar of this court on 4 June at 9.30 am with the view to obtaining a timetable with respect to any further matters outstanding between the parties before the hearing and that the parties appear at the call-over for the 1986 July Sittings on 23 June at 9 am.

Orders accordingly

Lawyer for applicant/defendant: Beresford Love Francis & Co.

Lawyer for respondent/plaintiff: Kirkes.

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