RAZVAN v BERECHET [1990] NSWCA 155

RAZVAN v BERECHET

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and MEAGHER JJA 22 November 1989, 23 February 1990

[1990] NSWCA 155

APPEAL — practice decision — order dismissing proceedings for want of prosecution — stringent conditions for — need to show that default has been intentional and contumelious or that there has been inordinate and excusable delay and that such delay will give rise to a substantial risk that a fair trial may not be had. Birkett v James [1978] AC 297, 318 (HL) and Department of Transport v Chris Smaller (Transport) Ltd [1989] 2 WLR 578, 581 (HL) referred to; Stollznow v Calvert [1980] 2 NSWLR 749, 751 applied. Alexander vy Cambridge Credit Corporation Ltd (Receivers Appointed) (No 3), Court of Appeal, unreported, 30 May 1986; (1986) NSWJB 103 referred to and explained. JUDGMENTS AND ORDERS — dismissal of proceedings for want of prosecution — Defamation List — application made in April 1987 to dismiss proceedings commenced in 1983 in respect of publication in 1981 — failure of plaintiff to set down for trial — trial judge (David Hunt J) in March 1987 orders plaintiff to pay defendant's costs and warns against "unexplained or unacceptable delay" — declines to dismiss proceedings — in August 1987 following further delay dismisses the proceedings — explanations for delay proffered by appellant and, in part, accepted by Hunt J — whether discretion to dismiss proceedings miscarried in the circumstances — held: It did because (per Kirby P) (a) there was no evidence that further delay was deliberate; (b) there was no evidence of specific prejudice to the respondent; (c) the additional delay was not inordinate and acceptable excuses had been given for it; (d) there was no additional substantial risk that a fair trial might not be had by reason of what had occurred between April and August 1987; (e) there was no evidence that his Honour had weighed, in reaching his decision, the right of the plaintiff to have a trial of his action, which appeared otherwise arguable on the merits; and (f) the relief of dismissal is conserved to clear cases, of which this was not one; (per Samuels and Meagher JJA) The trial judge had exercised his discretion by reference to the failure of the plaintiff to comply with directions given; but there was no such clear direction, default in compliance with which justified the order made. Supreme Court Rules, Pt33 r6.