THOMAS v AUSTRALIAN POSTAL COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 16 February, 12 March, 27 April 1993, 27 July 1993 [1993] NSWCA 268 MOTION — DISMISSAL FOR LACK OF PROSECUTION — DELAY ENORMOUS- NO EXPLANATION — PREJUDICE TO CLAIMANT. Clarke JA The opponent received injuries when involved in an accident on 11 March 1976. He commenced proceedings in the Supreme Court in 1977 claiming damages against the claimant and the Botany Municipal Council ('the Council'). He claimed that he had been driving a five tonne truck in the course of a mail run in his employment as a truck driver with the claimant when the vehicle hit a trench running across O' Riordan Street, Mascot, the maintenance of which was the responsibility of the Council. He also said, and his evidence to this effect was not contradicted, that the truck which had been supplied by the claimant was not fitted with a seat belt of any sort. In the action he asserted that the claimant was negligent in failing to ensure that the truck was fitted with a seat belt and the Council was negligent in its maintenance of the road surface. The trial commenced before Miles J and a jury of four at Sydney on 13 March 1984 and continued until the jury returned its verdict on 20 March. During the course of the trial his Honour directed a verdict for the Council and at the end of the trial the jury returned a verdict in favour of the claimant. The opponent appealed and service of his notice of appeal was effected on the solicitor for the claimant on 21 May 1984. In that notice of appeal the opponent challenged his Honour's decision directing a verdict for the Council on the ground that his Honour erred in holding that there was no evidence that the Council had been guilty of misfeasance in relation to the trench across O'Riordan Street. Grounds 4 to 9, however, related to the verdict for the claimant. In grounds 4 to 6 the opponent asserted that his Honour misdirected the jury and grounds 7 to 9 asserted, in different ways, that the verdict of the jury was unreasonable or perverse. Having filed and served a notice of appeal the opponent and/or his solicitors rested on their laurels. Until put under severe pressure in 1992 they did nothing to advance the appeal. Apparently his solicitors wrote a letter to the solicitors for the claimant on 22 October 1986 but I am completely unaware of the terms of that letter. It did however provoke a reply from the solicitors for the claimant on 18 February 1987 which relevantly stated: "Please advise my office whether an appointment has been made with the Registrar of the Court of Appeal to settle an index in this matter. If I am not notified of an appointment to settle an index by 27 March 1987, I propose to file a notice of motion to have these proceedings struck out." No appointment was made and the solicitors for the claimant did not make good their threat. There was apparently a conversation between the solicitor for the opponent and a solicitor in the employ of the solicitors for the claimant on 29 May 1987. Not surprisingly the only information as to the content of that discussion appears in a letter of 24 August 1987 from the solicitors for the 2 UNREPORTED JUDGMENTS claimant to the solicitors for the opponent. In that letter, having referred to the telephone conversation, the claimant's solicitors said: "On that day Mr Kelly advised that he believed that the reason for the delay in the appeal was that the appeal books were being printed. Mr Kelly also advised that he was not handling the matter but would ask the solicitor who had carriage of it to expedite proceedings. I note that I cannot understand how the appeal books are in the process of being printed when an index has never been settled. However, unless an appointment is taken to settle the index by not later than 14 September 1987 I will without further notice to yourselves move the court for order striking out the appeal herein and for costs." No reply was received to that letter and on 8 September the solicitors for the claimant wrote again threatening to have the matter struck out. The next piece of evidence concerning communications between the solicitors is a diary note of a telephone conversation between an employee of the claimant's solicitors and the solicitor for the opponent on 6 March 1990. That note records the following conversation. (KT is the solicitor in the employ of the claimant's solicitors and Kelly is the solicitor for the opponent.) "KT What's happening in matter of Thomas? Outstanding appeal. Kelly Yes, in the process/need to rev that one up will be moving in a few weeks. KT So I will hear from you in a few weeks? Kelly Yes." Nothing changed. The solicitors for the opponent did nothing. On 22 August 1991 the claimant's solicitors wrote a letter in which the ultimate paragraph said: "T assume that your client does not intend to proceed with this action. Please confirm that this is the case. Discussions can then take place as to the most appropriate manner by which the matter should be removed from the court's list." This letter was given the same treatment by the opponent's solicitors as all previous letters had been given. Finally on 6 March 1992 the claimant's solicitors wrote observing that no reply had been received to their latest letter and putting the opponent's solicitor's on notice that unless a notice of discontinuance was filed within 14 days a notice of motion seeking orders that the matter be dismissed for want of prosecution would be filed. The claimant's solicitors allowed ample time for a reply, which never arrived, and on 7 May filed the motion which had first been threatened in February 1987. The motion was returnable before the court on 1 June 1992 and since that date has been adjourned on many occasions. Initially adjournments were granted by the court, sometimes over the objection of the claimant, on the ground that the opponent was applying for legal aid and subsequently appealing from the Legal Aid Commission's refusal to grant legal aid. The motion was adjourned in all on five occasions to allow the opponent to pursue that course. The motion was then listed on 15 February 1993 and again further adjournments were granted to the opponent over the objection of the claimant to enable him to make all possible enquiries to locate a transcript of the trial judge's directions to the jury. The opponent has, however, been unsuccessful in obtaining a transcript of those directions although he has established that the transcript of the evidence led at the trial is available. It appears clear now that despite all attempts to obtain the transcript of the trial judge's directions they will not be available in the event the appeal is permitted to proceed. The principles upon which the court should act in this motion are not in dispute. They were discussed in some detail by Walsh J in Witten v Lombard Australia Ltd (1968) 88 WN Pt1 405 and by this court in Stollznow v Calvert URJ THOMAS v AUSTRALIAN POSTAL COMMISSION (Clarke JA) 3 [1980] 2 NSWLR 749. The overriding principle is that a balance must be struck between the parties and, in the end "the court must decide whether or not, on balance, justice demands that the action (appeal) should be dismissed" (Witten at 411). It is, of course, proper to consider whether any explanation or excuse has been offered for the delay and whether any explanation or excuse that has been offered is satisfactory. It is also relevant to consider whether there is evidence of particular prejudice to the opposing party. In particular cases circumstances such as dilatoriness on the part of a party in seeking to strike out the proceedings or the failure to warn of such an application will be relevant. In the present case I have come to the conclusion that on balance justice demands that the appeal against the claimant be dismissed. The considerations which lead me to that conclusion can be shortly stated. First, the delay is enormous. More than nine years have passed since the trial and more than seventeen years since the accident the subject of the action. Perhaps of more relevance is the delay prior to the filing of the motion but even that was very great indeed. Secondly, there has been no explanation at all advanced for the delay. While the solicitor for the opponent swore an affidavit he gives no explanation or excuse of any sort for the delay. The only two relevant facts which appear in the affidavit on this issue are, first, that the solicitor's file does not disclose any contact between the solicitor and the opponent between 1985 and 12 September 1991 and, secondly, the opponent has not worked since 1984 and has been in receipt of a Commonwealth Employees Invalidity pension. But neither of these facts explain or excuse the delay in any way. It may be that the major fault for the delay lies at the feet of the opponent's solicitors but there is simply no explanation why the opponent, who presumably instructed the institution of the appeal, did not seek to have it brought on for hearing or to press his solicitors for action. The solicitor for the claimant put before the court a report of Dr Wright Short dated 6 April 1981 which, I assume, was used in the trial in which it was said, inter alia, that he appeared to have "decompensated completely". I am not precisely sure what the doctor meant by that expression but in my opinion the contents of that report do not provide any reason why the opponent himself has not sought to agitate the appeal. Bearing in mind that the opponent and his solicitor each could have given evidence to explain the lack of activity in the lengthy period between 1984 and 1992 I am not prepared to draw the inference, which the opponent's solicitor urged upon me, that the opponent was so sick that he was unable to give instructions. If that had been the position he could have said so and medical evidence could have been led to support that contention. Thirdly, there is obvious prejudice to the claimant in permitting the appeal to proceed. If, for instance, it were successful the claimant would have to meet a claim relating to an accident in 1976. That is a task which, having regard to passage of time, would not be regarded as other than very difficult. The solicitor for the opponent sought to meet this problem by pointing out that the claimant led no evidence on liability at the trial. But that does not mean that it may not be placed in a situation in a retrial that it wishes to call evidence and it may well be that that evidence is either not available or if available not entirely satisfactory because of the effect of time on the memories of the persons concerned. There is, however, far greater particular prejudice arising from the absence of the trial judge's directions which necessarily results from the delay and inaction by the opponent. The directions in the summing-up have importance to both 4 UNREPORTED JUDGMENTS limbs of the appeal against the claimant. Obviously, their absence places the court in an almost impossible position in regard to those grounds which assert misdirection by the trial judge. In my opinion it would be quite unfair to the claimant to ask it to face those grounds of appeal in these circumstances. The absence of the summing up has, in my view, equal relevance to the assertion that the verdict was unreasonable or perverse. That is because the verdict of the jury must be understood in the light of the directions of law and fact which are given by the trial judge. The members of the jury are bound to apply the principles of law laid down by the trial judge and his directions of fact should have, and almost certainly would have, explained the issues of fact which fell for consideration by the jury. Almost as importantly the summing up would provide insight into the course that the trial took. In these circumstances the prosecution of an appeal on grounds which relate directly and indirectly to the summing up, in the absence of the trial judge's directions, would not only place the appellate court in a difficult situation but would undoubtedly cause prejudice to the claimant as the respondent in the appeal. The solicitor for the claimant sought to answer that point by arguing that the absence of the summing-up would prejudice his client more than it would prejudice the claimant. I think it may well be true to say that the absence of the summing up makes the prosecution of the appeal very difficult from the appellant's point of view but that does not answer the point that that absence creates a great prejudice to the respondent to the appeal. Indeed the mere statement that the absence of the summing up creates difficulties to both parties and the appellate court itself exposes the prejudice to the respondent who is presently the claimant before me. Further, the remedy sought in the notice of appeal is a new trial of the action and that is the only order which, in my opinion, the court could make in the event that the appeal was upheld. That would lead to the necessity of a further trial conducted close to twenty years after the events in question. This is hardly satisfactory and would follow as a direct result of the delay by the opponent and his solicitors. It has been argued that as the notice of appeal also challenges the directed verdict against the Council and as there has been no application to strike that notice out for want of prosecution the interests of justice require that the opponent be able to pursue both appeals with the hope of securing a trial against both defendants in the action. There are many problems with that submission in this case which would cause me to give that factor little weight. In some cases a consideration such as that may be entitled to considerable weight particularly where the position is that each of two defendants is blaming the other. But that is not this case. The Council was said to be negligent in the filling of the trench and the creation of a danger across a busy public road. Either it was negligent or it was not and it could not seek to escape liability by blaming the claimant for the accident. For its part the claimant is said to have been negligent in failing to supply a seat belt. Again it was either negligent or not negligent and considerations of the conduct of the Council do not bear on the question of its liability. There is one final matter which I should mention and that is that this is not a case in which it could be argued that the opponent was lulled into a sense of false security. The claimant gave the opponent's solicitors many notices over a lengthy period threatening that if action was not taken the present application would be brought. They gave the opponent's solicitors every possible chance yet, for reasons which have not been explained, nothing was done. URJ THOMAS v AUSTRALIAN POSTAL COMMISSION (Clarke JA) 5 The appeal against the claimant should be dismissed for want of prosecution and the opponent is ordered to pay the claimant's costs of the appeal and this motion. 5 Counsel for the Claimant: J HARRIS Instructed by: AUSTRALIAN GOVERNMENT SOLICITOR Counsel for the Opponent: TD KELLY 10 Instructed by: TD KELLY AND CO