TRADERS PRUDENT INSURANCE CO LTD v GUMODIN PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA 17 April 1989 [1989] NSWCA 215 Samuels JA The claimant was the successful defendant in an action for damages heard by Lusher J and a jury and determined by a judgment directed in the defendant's favour as long ago as 20 September 1985. The present opponent filed a notice of appeal on 16 October 1985 which, however, was not served for rather more than two years. There followed gross delays on the part of the opponent by which I must mean the solicitors then acting for him. In matters of this kind one is reluctant to make criticisms of practitioners who are not represented and therefore who have no direct opportunity to offer explanations for acts or omissions or inactivity which at first sight seems reprehensible. Hence anything I say about those who have acted in the matter must be read subject to that caveat. Ultimately in December 1987 the claimant filed a notice of motion to dismiss the appeal for want of prosecution and alternatively, for an order that the appellant, the opponent, provide security for costs. At that stage, as far as I am aware, nothing had been done to move the appeal forward; certainly no index had been settled. That notice of motion came before the court. There were discussions between the parties and ultimately on 15 February 1988 the interlocutory dispute was compromised, it being agreed that the opponent would provide security for costs of the appeal, and this was done. The motion was then dismissed but the opponent was ordered to pay the costs as between solicitor and client. The agreement having been arrived at, the solicitors for the claimant wrote to their opposite numbers on 18 February 1988, referring to the compromise and requesting that the opponent's solicitors notify them within seven days of the new date of settlement of the index to the appeal papers. No reply to that letter was ever received. What next happened in the opponent's camp is described in an affidavit which was filed this morning, sworn by Mr JG Seamer, who was the clerk acting for the new solicitors who took over the representation of the opponent from the solicitors who had previously been acting for it. The new solicitors, Messrs BJ Forbes and Associates received instructions on 2 May 1988. I bear in mind Mr Ashburner's complaints that much of Mr Seamer's affidavit is on information and belief which, although it does not render it inadmissible in these proceedings, may certainly diminish the force which it might otherwise have. However, for present purposes I think it may be regarded as an accurate record of the relevant events. As I have said, instructions were received on 2 May. A letter was written to the previous solicitors on the same day seeking that the files without which, of course, Messrs JB Forbes and Associates would find their retainer somewhat difficult to execute, be supplied. They wrote again on 24 May and received no reply to either of those letters. They wrote on 17 August, having written on 12 July also. They wrote again on 12 October. In that letter they described their 2 UNREPORTED JUDGMENTS client, ie the opponent, as becoming "most agitated" at the five months delay. That attitude was only to be expected I would think. A further letter was written on 7 November, and then on 8 February the solicitors wrote again and for the first time threatened to have resort to the assistance of the Law Society. It does not appear that the previous solicitors were holding the file in pursuance of some alleged lien for unpaid costs; it seems that they merely could not bring themselves to part with their papers. The matter was brought to a head when the claimant, on 10 March 1989, filed another notice of motion seeking that the appeal be dismissed for want of prosecution, and it is that proceeding which is before me now. The discretion to dismiss proceedings for want of prosecution is one which ought to be exercised with considerable care since an order of that kind will terminate proceedings without any decision on their merits. Most of the authorities deal with the exercise of that power to dismiss proceedings at first instance, and it may be that somewhat different considerations apply there from those which should be taken into account when an appeal is in contention. In my opinion, the overriding principle which applies equally to both classes of case is that so far as possible the discretion should be exercised in order to do justice between the parties, ie to produce a fair resulting all the circumstances of the case. In the present situation there is no doubt in my view that the delays on the part of the opponent since February 1988 were extremely grave. I do not think, with all respect to Mr Ashburner's argument, that they can be regarded as contumelious, though gross it may be they were. It must be remembered that during that time new solicitors were making efforts, albeit of a somewhat stately kind, to obtain the file and move the matter forward. Equally I think I am justified in concluding that there is no evidence which shows that the opponent, the appellant itself, or its proprietor, was demonstrating lack of appetite for the conflict. I simply do not know, but I would not attribute that character to a situation which was the result of delays which were, so far as I can see, wholly brought about by the solicitors' failure to press the matter forward with proper zest. It is really, and I repeat that I have nothing but Mr Seamer's affidavit to explain what occurred, it is extraordinary I think that for a period of eight months, BJ Forbes and Associates simply failed to extract the files from the solicitors previously acting. Lismore is not a world away from Mullumbimby after all, but the matter was proceeded with according to strictly classical lines, by correspondence and the odd telephone conversation at fairly considerable intervals. On the other hand, during this time the claimant did nothing either. It was suggested that that was of no account. I must say I disagree. Whether one is dealing with a matter at first instance or with an appeal I think that what was said by this court in Stolznow v Calvert [1980] 2 NSWLR 749, 753 is equally relevant. There it was said: "As a matter of principle the blamelessness of a plaintiff personally for delay is a fact relevant to be considered along with other relevant facts." As I have indicated I think that for "plaintiff' one can read "respondent" or "party to an appeal". In the present case it is not only the conduct of the appellant, but the conduct of the respondent too which is a material factor. URJTRADERS PRUDENT INSURANCE CO LTD v GUMODIN PTY LTD (Samuels JA) 3 I do not set a great deal of store by the importance which Mr Letcher seeks to attach to the absence of a warning letter. I do, however, feel that I am bound to take account of the fact that during the twelve months or so which elapsed between February and February, the claimant took no steps to stir up the other side. I understand that this may well have been the product of a tactical decision, but it is a dangerous course or may be productive of danger once so much time has gone by that recourse must be had to a procedure of this kind. At that stage all that has occurred must go into the melting pot and be examined when the decision comes to be made. Further, tomorrow has been appointed as the day upon which the index is to be settled, so by tomorrow the matter should be "on the way". It is true that it will then have reached a stage which it ought to have reached about three years or more ago. However, in my opinion it would not be fair, in all the circumstances, at this stage to dismiss the appeal for want of prosecution without an opportunity for it to be heard on the merits. Accordingly the notice of motion should be dismissed. I will not make a final order at the moment for reasons which I will mention in a moment, but I do desire to set out clearly the view at which I have arrived. So far as the costs are concerned although, as I have indicated, I think that the claimant should have moved earlier, the filing of the notice of motion was amply justified and that process was brought on by the opponent's own delay. That being so, notwithstanding that I propose to dismiss the notice of motion and refuse the relief sought, I think this is a case where the opponent should be required to pay the claimant's costs of the notice of motion on a solicitor and client basis. What I will do, having indicated the conclusion to which I have come, is to stand the matter over to next Monday 24 April in order to see what has happened at the settling of the index and to make sure that the appeal is set on a proper course. If it is not or there are any facts which are not before the court today, then of course I may very well vary the orders which I have adumbrated this morning. So I have indicated what I will do if the facts remain the same and I will stand the matter over until next Monday at 9.45 am.