Vassie, Alan --- "Applications to dismiss for want of prosecution" [1997] LawIJV 45; (1997) 71(2) The Law Institute Journal 40

• Applications to dismiss for want of prosecution Practical aspects
• PRE-WRIT DELAY
• THE DEFENDANT'S CONDUCT
• THE PLAINTIFF'S SOLICITOR'S CONDUCT
• COUNTERCLAIM
• Notes

Applications to dismiss for want of prosecution Practical aspects

by ALAN VASSIE

Letting sleeping dogs lie is all very well, but sometimes more active intervention is required.

The discretion to dismiss a proceeding for want of prosecution has recently come back under the judicial spot-light in Victoria. Since September 1994 the Full Court of the Supreme Court or the Court of Appeal has dealt with five appeals from orders dismissing or declin¬ing to dismiss, and there have been four other transcribed decisions by single judges of the Supreme Court on appeals from orders of masters or a reference by a master.' In seven of those nine cases the outcome was that the proceeding was dismissed. So an application to dismiss for want of pros¬ecution can be a potent weapon. A defend-ant's solicitor needs to know how to use it effectively and a plaintiff's solicitor needs to know how to strengthen the armour against it.

The guidelines for dismissal for want of prosecution, as already discussed in this Journal,' relate to both delay and prejudice. The discretion will be exercised by the court, and the proceeding dismissed, if the justice of the case so demands.

As to the prejudice guideline, in many cases the defendant will tender evidence of disadvantages, arising during the period of delay complained of, in preparing for trial: the death or unavailability of a witness, the loss of documents, the fading of witnesses' memories, are common examples. They may create a substantial risk that it is not possible to have a fair trial. But even in the absence of any evidence of specific dis¬advantages, a court may infer from the circumstances of the case, and by using common sense and experience, that the defendant will suffer disadvantages at trial. The defendant's solicitor must ensure that the affidavit material in support of the application proves any instances of specific disadvantage and sets out all the circumstances from which the court will be asked to draw inferences.

Because they are only guidelines, not fixed rules as to how the discretion must be exercised, the guidelines may be depart¬ed from in an appropriate case. Even though the two guidelines point to conclusions adverse to the plaintiff, the court is free to refuse the application for dismissal if in all the circumstances it is nevertheless just to allow the proceeding to continue,' although it will be a rare case in which that happens. Similarly, the unfettered discretion may be exercised in favour of dismissing for want of prosecution even though the guidelines do not point that way conclusively. One might suppose that that would also hap-pen only rarely. Yet sometimes in reasons given for dismissal it is not easy to discern, or the court does not articulate, a pre¬judice to the defendant, caused by delay in prosecution, which is anything more than an inherent difficulty in defending a case about events of long ago.

PRE-WRIT DELAY

Although outside the delay guideline, pre-writ delay is relevant in two ways to the exercise of a court's discretion if post-writ delay also occurs.' First, if the defend-ant had suffered any prejudice during the pre-writ period of delay the plaintiff will have a special duty to prosecute the pro¬ceeding expeditiously, and any post-writ delay will be looked at more critically and may more readily be found to be inord¬inate and inexcusable.' Second, although post-writ delay will not justify a dismissal unless there has been additional prejudice to the defendant caused during the post-writ delay, the additional prejudice need not be great (although it must be "some-thing more than minimal"): its sign¬ificance is magnified, creating a grave danger for any plaintiff facing a dismissal application.'

Courts seem very ready to find addit¬ional post-writ prejudice in this context. Occasionally they have found it in the very fact that during the post-writ delay the plaintiff's allegations and claims for relief have hung over the defendant's head "like the prejudice to Damocles when the sword was suspended over his head at the ban¬quet. It was suspended by a single hair and the banquet was a tantalising torment to him."' Of course, in litigation there are always allegations and claims for relief hanging over a defendant's head, whether the banquet is long or short. So there is a tendency to allow the "hanging over the head" type of prejudice a significance only when the case involves an allegation of professional incompetence, or lack of personal integrity, which might affect the defendant's ability to earn a living while the allegation lasts.' In other instances, courts have found the additional post-writ prejudice to be the mere continuation of a risk or prejudice which first arose pre-writ, holding that (for example) the risk or prejudice flowing from the loss of records

and the dispersal of personnel once a bus¬iness ceases to trade has been exacerbated by the additional post-writ delay.10

Sometimes a plaintiff's solicitor has compelling reasons for not commencing the client's proceeding until the limitation period has almost expired. Nevertheless, pre-writ delay in any case may ultimately tell heavily against the plaintiff if it is not prosecuted with reasonable speed.

THE DEFENDANT'S CONDUCT

A defendant is under no obligation to do anything to expedite the case, but is entit¬led to choose to let sleeping dogs lie.11 If the defendant instead takes procedural steps and they lead the plaintiff to incur expense by taking further steps, the de¬fendant is not debarred, by any principle of waiver or acquiescence or estoppel, from asking for the court to dismiss the case for want of prosecution.'

If the defendant actually causes delay in the proceeding, such as by acting so as to obstruct or confuse or sidetrack the plain-tiff, or by failing to correct a plaintiff's erron¬eous belief when the defendant has a duty to do so, or in the course of pursuing a counterclaim, the delay to that extent cannot be held against the plaintiff.13 So a plaintiff's solicitor defending an applic¬ation to dismiss for want of prosecution should include in the answering affidavit material not only any available explanation for delay, but also any facts sheeting home to the defendant the blame for some of that delay.

Apart from the question of which party has caused delay, the whole topic of the defendant's conduct is not necessarily irrelevant and the court may examine it. Undertaking such an examination carries a risk of becoming a search for who holds the higher moral ground rather than a search for a just outcome to the applic¬ation. It is relevant that procedural steps taken by the defendant have induced the plaintiff to incur legal costs and other expense in the proceeding.14 Other types of conduct may be wholly irrelevant. A plain-tiff's solicitor should include in the answering affidavit material any available evidence relating to the defendant's con-duct or misconduct, so long as it is arguably relevant.

A prior warning, that unless the plaintiff acts more speedily the defendant will make an application for dismissal, will strengthen the eventual application if there is any further inordinate and inexcusable delay.1' Sometimes (depending on the case) the defendant's solicitor ought to give such a warning rather than just letting sleeping dogs lie, or rather than taking further procedural steps which put the plaintiff to expense, and then ought to include evi¬dence of the warning in the affidavit material.

Even a failed application to dismiss for want of prosecution may, in time, assist a defendant, on a later application, if when rejecting the first application the court warns the plaintiff of the consequences of any further delay in prosecution."G

THE PLAINTIFF'S SOLICITOR'S CONDUCT

The delay guideline directs attention to inordinate and inexcusable delay by the plaintiff's lawyers as well as by the plaintiff. So a plaintiff can never excuse delay by showing that it is all the fault of the law¬yers. If the affidavit material reveals that the plaintiff is personally responsible for all or some of the delay, the danger of the application for dismissal succeeding will be increased. But any evidence that the plaintiff is not personally responsible for delay may be balanced in the scales to determine what justice requires."

In Victoria it seems to be open to a de¬fendant to argue that a dismissal for want of prosecution will give the plaintiff a right to sue the plaintiff's solicitor and so will not produce any injustice. The alleged right to sue the solicitor is not an irre¬levant consideration, but has compar¬atively little weight, because it is so difficult to evaluate.18 The affidavit material rarely establishes a cast iron case in negligence against the plaintiff's solic¬itor. Often the solicitor whose conduct is capable of criticism still acts for the plain-tiff and has prepared the affidavit material in opposition.

A plaintiff's solicitor who realises a personal responsibility for much of the delay is in a difficult position. Proper pro¬tection of the plaintiff's interests may re-quire evidence that the delay is not the fault of the plaintiff personally. Where the delay is largely the solicitor's fault, the solicitor should recommend the plaintiff to have independent advice about the defendant's application and, depending on that advice, to engage a fresh solicitor to defend the application; also, the solicitor may have to notify an insurer of the pros¬pect of a claim.

Independent advice for the plaintiff may be desirable for other reasons. In the exercise of its discretion the court is not con-fined to dismissing or not dismissing; it is entitled to make different orders, includ¬ing orders with conditions attached.19 Sometimes, although usually with dif¬ficulty,'-, a defendant's allegations of prejudice or risk of unfairness at trial can be neutralised or minimised if the plaintiff offers admissions of fact, or other concess¬ions (by, for example, allowing a signed statement of a deceased witness for the defendant to be received in evidence). A plaintiff's solicitor thinking of advising the plaintiff to make such admissions or concessions must be alert to the need for that advice to be given in the plaintiff's best interests rather than in the interests of the solicitor.

COUNTERCLAIM

If there is a counterclaim, the defend-ant's affidavit material should indicate a willingness to submit to an order that the counterclaim be dismissed if the plaintiff's claim is dismissed, because the application for dismissal will not usually succeed when a counterclaim remains on foot.21 

Notes

1. Bishopsgate Insurance Australia Ltd (in liquidation) v Deloitte Haskins & Sells (9 September 1994); Masel & Others v Transport Industries Insurance Co Ltd & Ors [1995] 2 VR 328; Sacco v Renault (Wholesale) Pty Ltd (8 September 1995); Leyburd Nominees Pty Ltd & Anor v Coates Brown & Co (12 September 1995); Reid v Australian Guarantee Corporation Limited (19 March 1996). All except Masel are unreported.

2. All are unreported: Casauria & Ors v De Kever & Ors (21 November 1994, Hayne 1); Russell Crayfish Supply Pty Ltd v Australia & New Zealand Banking Group Limited (15 February 1995, Hayne 1); Newman & Anor v State of Victoria & Ors (25 August 1995, McDonald J); Importers Collectibles Storage and Management Pty Ltd v The South British Insurance Company Ltd (5 September 1996, Gray 1).

3. M Harvey, "Dismissal for want of prosecution" LII, October 1996, pp57-59.

4. Masel, at 335-6.

5. Originating motions, no less than writs, are subject to the law under discussion, but, for convenience, "writ" is used to describe all initiating process.

6. Birkett v lames [1978] AC 297 at 322; Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1208; Bishopsgate at pp22-23 and 42; Sacco, per Callaway 1A, p2.

7. Birkett v lames at p322; Department of Transport at 1208; Sacco (Callaway 1A) at p2.

8. Biss v Lambeth Southwark and Lewisham Health Authority [1978] 2 All ER 125 at 131 (Lord Denning MR).

9. Department of Transport at 1209-10; Bishopsgate at pp33 and 36.

10. Sacco, per Callaway 1A, at p7.

11. Duncan v Lowenthal [1960] VR 180 at 186; Reid at p11.

12. Zurich Australia Insurance Ltd v Cannata & Anor (unreported, 27 November 1987, FC), approving dicta of McGarvie 1 in McKenna vMcKenna (1984) VR 665 at 676; see also Leyburd Nominees at p5.

13. See variously: Masel, especially at 344; Sacco (Callaway 1A) at p5; Alginates (Australia) Pty Ltd v Thomson & Carroll Pty Ltd [1970] VR 570 at 575; Allen v Sir Alfred McAlpine & Sons Ltd [1968) 2 QB 229 at 260.

14. Roebuck v Mungovin [1994] 2 AC 224.

15. Alginates at p575; Casauria at p12.

16. Bishopsgate at pp42-3; Importers Collectibles at p14.

17. Alginates at pp574-5; Newman at pp27-8.

18. The minority view of Lord Salmon in Birkett v lames at pp330-1, approved by the majority in Soper v Matsukawa [1982]VR 948; but see the judgment of McGarvie1 in McKenna v McKenna.

19. Shepperdson v Lewis [1966] VR 418 at 419; Alginates at pp575-6.

20. See e.g. Power v Theodore (unreported, 24 October 1979, FC) at p7.

21. Zimmer Orthopaedic Ltd v Zimmer Manufacturing Co [1968] 2 All ER 309.