HART v HERRON [1993] NSWCA 130

HART v HERRON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and Cripps JJA 25 and 26 March 1993, 3 June 1993

[1993] NSWCA 130

MOTION TO DISMISS APPEAL FOR WANT OF PROSECUTION — cause of action arises in 1973 — proceedings commenced 1976 — trial 1980 — verdict for plaintiff — plaintiff and defendant appeal and cross appeal — after March 1981 no action by either plaintiff or appellant to bring appeal to hearing until plaintiff seeks directions in 1992 — intervening events covering inter alia aspects of proceedings under appeal — Royal Commission covering period August 1988 — December 1990 — both parties and Commissioner treat appeal as on foot in discussion in course of Royal Commission — defendant responds to directions hearing by seeking dismissal for want of prosecution — defendant does not claim prejudice in fact by delay — defendant relies on "presumptive" prejudice — Stollznow v Calvert [1980] 2 NSWLR 749 followed — application dismissed.

Priestley JA Application to dismiss appeal for want of prosecution. The substantial question raised in these proceedings is whether an appeal should be dismissed for want of prosecution. This question is raised by motion by the respondent, prompted, not by continuing inactivity in the appeal on the appellant's part, but by his having taken the first formal step in the appeal for many years. The appeal had fallen into a state of suspense during which both sides had done nothing. When the appellant at last took steps to bring it on for hearing the respondent asked that it should be permanently stayed.

Events leading to appeal. In outline the history is as follows.

The appellant Mr Hart was treated by the respondent Dr Herron at the Chelmsford Private Hospital in 1973 by what became known as Deep Sleep Therapy. The appellant subsequently took proceedings against two defendants (the respondent and the Hospital) for professional negligence, wrongful imprisonment and assault, all based upon the manner and the effects of this Therapy. The proceedings came before Fisher J and a jury in the Supreme Court resulting in verdicts, on 14 July 1980, for the appellant against both defendants for false imprisonment and against the respondent alone for professional negligence and assault. Despite the form of judgment which was entered (see Annexure E to the affidavit of AC Collins sworn 13 November 1992) Fisher J in his costs decision of 14 November 1980 treated the verdict as having been $60,000 (see at 2 of his reasons). The parties argued the present application on that basis and, also, on the basis that the $60,000 comprised $36,000 for general damages, $18,000 for aggravated damages and $6,000 for the false imprisonment. To the figure of $60,000 deriving from the jury's verdicts Fisher J had, on 30 October 1980, added $12,000 for interest.