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. It can be difficult for a litigant to find funds sufficient and lawyers willing and competent for the conducting of proceedings of the kind involved in this case. The difficulties can mean personal struggles for a litigant with the litigant's own lawyers before getting such a case to trial. The evidence in the present application shows pretty clearly that problems of this kind contributed to the length of time it took for the appellant's case to come to trial. 2 UNREPORTED JUDGMENTS The trial took sixty four hearing days. The costs decision of Fisher J of 14 November 1980 above referred to was one upon an application by the defendants for a special costs order. Fisher J took the view that the way the appellant's case had been conducted had unnecessarily lengthened the trial, and that the appellant should pay the defendants' costs for seventeen hearing days. To simplify the working out of this conclusion, he ordered that the defendants should pay the appellant's costs of the hearing for thirty days, and made no order for the appellant's costs for thirty-four hearing days. Appeals filed. Before the decision on interest and costs and before judgment was formally entered the appellant and respondent filed notices of appeal and of cross appeal. Motions came before this court on 20 October 1980 raising procedural questions which were stood over to the hearing of the appeals, with liberty to either side to apply on three days notice. Then on 15 December 1980 a summons by the appellant for leave to appeal against Fisher J's costs order came on before this court. This also was stood over to the hearing of the appeals. On 19 December 1980 the solicitors for the defendants wrote to the solicitors for the appellant, enclosing a cheque for $72,100 being the total amount of the judgment entered. By March 1981 the position had been reached that supplementary notices of appeal had been filed by the appellant, a notice of cross appeal had been filed by the respondent and a draft Index to Appeal Books filed by the solicitors for the appellant. In form, the appellant had two notices of appeal on the file numbered 378/1980 and 226/1980. The first of these raised only the question of Fisher J's costs orders, the other included that ground and fifty grounds of appeal asserting errors by Fisher J in regard to rulings he had made bearing on damages and evidence. (It was this earlier notice of appeal which had been supplemented by later notices.) On 17 March 1981 the appellant's solicitors wrote to the Registrar saying that pending advice from counsel the appeals could not be set down for hearing and the appellant could not undertake to pay his proportion of the cost of printing the appeal books. A copy of this letter was sent to the solicitors for the respondent. No step taken in appeals. 1981-1992. Nothing happened concerning the appeals, so far as this court was concerned, from 17 March 1981 until 10 September 1992, when the appellant's present solicitors became his solicitors on the record and wrote to the court's Registrar asking for a directions hearing preparatory to the appeals being heard. The Registrar fixed 29 October 1992 as the date for the giving of directions. Following notice of the date of the appointment for directions the solicitors for the respondent wrote to the solicitors for the appellant, by letter dated 8 October 1992, saying they were seeking instructions to file an application to strike out both appeals. On 29 October 1992 the Registrar made various orders, including one that any notices of motion by either party be filed and served by 13 November 1992. Respondent gets hearing of application to dismiss appellant's appeals for want of prosecution. On 13 November 1992 the respondent filed motions in 226/1980 and 378/1980 seeking that the appellant's appeals be dismissed for want of prosecution. URJ HART v HERRON (Priestley JA) 3 The appellant also filed notices of motion in both matters (on 16 November 1992) seeking orders and directions of various kinds and asking that the appeal in 226/1980 be expedited. Matters were simplified when the various notices of motion came on for hearing. Counsel agreed both that the appeal in 226/1980 raised anything raised in 378/1980, and that it would be appropriate for the court to deal only with the respondent's notice of motion in 226/1980; everything of substance could be decided within that motion; if the respondent succeeded, then both of the appellant's notices of appeal would be struck out, taking with them the appellant's notices of motion and the respondent would then, subject to any terms imposed by the court, withdraw his own appeals; if the respondent failed on the notice of motion argued, then the appeal 226/1980 would go forward, the respondent's cross appeal would also remain on foot, and the court would then decide the appropriate way of dealing with the appellant's notices of motion. Order sought by respondent. The respondent's motion asked in paral that the appellant's appeal be dismissed pursuant to Pt51 R17 for want of prosecution, alternatively, in para2, that it be permanently stayed. At the outset of the case counsel for the respondent indicated that it had been contemplated that the alternative relief would be asked for on the basis that the appeal was an abuse of process, but that that relief was no longer sought, and that para2 in the notice of motion should be struck out. What happened between 1981 and 1992. The reference in the letter written by the appellant's then solicitors on 17 March 1981 to advice pending from counsel had been a reference to an advice sought from Mr Burchett QC. He gave written advice on 3 September 1981. It was to the effect that it would be better for the appellant not to proceed with his appeal. That advice led to the Legal Aid Commission declining to give the appellant legal aid for the purposes of his appeal. From that time until 1992 the appellant had intermittently but persistently been trying to get the Legal Aid Commission to change its decision. Another main thread of the appellant's activities, until the end of 1990, was his participation in efforts in which a number of other people took part to have a full inquiry into a series of events connected with Deep Sleep Therapy at the Chelmsford Private Hospital at about the time he had been treated there. A Royal Commission into these matters was announced in August 1988. The appellant, the respondent and many others gave evidence before the Commissioner, who presented his report on 19 December 1990. Dr Herron was called to give evidence before the Commission on 5 December 1988. Before he was sworn his counsel drew to the Commissioner's attention the fact that the appeal in question in the present application was on foot. He said (at 2173 of the Commission transcript) that there were appeals on foot both by Mr Hart and Dr Herron each seeking a new trial and that "there is no technical difficulty in respect of either appeal. They are filed in accordance with the rules and in time". Counsel later said (transcript 2175) "that all of the information we have to date is consistent with Mr Hart wishing to proceed with this matter at some stage", and then made the following submission: "So far as we understand it therefore the proceedings are still on foot and open to be proceeded with and by all accounts from what we understand to be the position, Mr Hart intends to do that at some stage. 4 UNREPORTED JUDGMENTS If one were a little sceptical about proceedings being brought on so long after the event, that we suggest in the circumstances of this particular person, is not an assumption that one can make because in February this year Mr Hart's proceedings against the doctor who treated him prior to Chelmsford were finally disposed of and those proceedings predated the statement of claim against the hospital and Dr Herron. So for our part at least and for various historical reasons outlined to us, these proceedings seemed to be still all open. There is no suggestion he does not wish after this commission is over to proceed with the matter. COMMISSIONER: Why have not the parties, Dr Herron in particular, taken some steps to have the appeal dismissed for lack of prosecution. MR SACKAR: My understanding is some steps have been taken by way of correspondence, but the current authority binding certainly the criminal appeal of Calvert v Stolzio [sic] would make it fairly clear unless some difficulties of the kind set out in Mr Justice Cross' judgment which was confirmed in the court of criminal appeal, the appeal having been taken in time, there are certain difficulties in having appeals stayed for want of prosecution. In any event, whether that has been done or not there is indeed outstanding an appeal by Mr Hart and indeed one of the consequential orders sought is a new trial and if that event took place there would be an immense amount of prejudice which would flow if Mr Hart gave evidence in these proceedings." (transcript 2175) Counsel for Dr Herron then argued at some length that it would be prejudicial for Dr Herron to give evidence before the Commission while the possibility of a new trial of Mr Hart's proceedings remained open because of the pendency of an appeal that could very well go to hearing and perhaps succeed. Reference was made to material before the Commission explaining in detail the problems Mr Hart had experienced in trying to get legal aid for carrying on his appeal. In regard to this material Dr Herron's counsel said: "A Court may be receptive to the suggestion that it had not been Mr Hart's fault in bringing the case on. If he says that he wants to proceed and keep his option open, then that is his right." (transcript 2179) The Commissioner also heard argument from counsel for other interested parties. The transcript of the argument altogether occupied at 2172 to 2188. At 2189 the Commissioner's decision rejecting Dr Herron's application is recorded. His reasons concluded: "The question is whether the taking of evidence now from Mr Hart and later from Dr Herron is likely to prejudice any possible new trial arising from the current appeals. As I said to Mr Sackar during submissions, the likelihood of any appeal being heard on the current stage of appeals could be as much as 12 months. In the event of success ensuing for one or more of the appellants, the re-hearing of the proceedings, subject to any appeal to the High Court, could be several years further ahead. I have not overlooked the fact that an application could be made for the expedition of the hearing of any new trial. On the present state of my understanding of the facts there is not likely to be prejudice to any of the three appellants, and it is my view that the evidence from Mr Hart should be called." Respondent's argument. The argument for the respondent was along the following lines. The appeal if it went forward would be lengthy and difficult. The appellant would seek to adduce further evidence in the appeal. Realistically, all the appellant could obtain if successful in the appeal was an order for a new trial at which he would be URJ HART v HERRON (Priestley JA) 5 claiming greater damages than those he was awarded at the trial in 1980. The adverse costs orders made by Fisher J were of no real concern to him; it was the Legal Aid Commission which stood to benefit from their being reversed. There was no certainty even now that the appellant would be able to obtain funds to prosecute the appeal, or, if he succeeded, the new trial. The appellant had not shown due diligence in prosecuting the appeal, so that the court must decide whether to exercise its power under PtS1 R17 to dismiss the appeal for want of prosecution. It was submitted that the relevant rule in the circumstances was that the court would not permit the appeal to go forward because justice could not be done at a new trial. It seems to me to be important in dealing with the respondent's application to keep in mind that its explicit basis was, and was confined to, the proposition that if the appeal were to succeed the result would be a new trial at which justice could not be done. Further, the assertion that justice could not be done was not based on any specific matter such as the unavailability of material witnesses, the disappearance of evidence or the like, but on the more general basis of presumptive prejudice. It was then added that the particular prejudice to the respondent would be the difficulty in dealing with the appellant's damages case if a new trial were ordered. Respondent's argument not accepted: first reason. on footing of test advanced by respondent. I do not think the respondent has shown that justice could not be done if a new trial were ordered. The respondent did not point to one particular or specific matter of disadvantage he would be subject to in conducting his case at a new trial; this, I assume, was because there was none to point to. I take it that the respondent, in relying on presumptive prejudice, was relying on the consideration that delay in itself "may create prejudice which can never be proved affirmatively" as McHugh JA said in Herron v McGregor (1986) 6 NSWLR 246 at 254. McHugh JA went on in the same passage to discuss the " difficulties in ascertaining the truth about a matter after time has done its work" (at 254-5). These difficulties undoubtedly exist; they have an effect in any case where a court is required to decide disputes about past events. Delay accentuates the difficulties of the court's task. Whether the presumptive prejudice from delay is such as to warrant the prevention of the proceedings (when the court has power to prevent them) must always involve an assessment of matters of fact and degree in the particular case. In Herron, following such an assessment, the court stayed disciplinary proceedings; the reason was that the delay in commencing the proceedings produced such unfairness and oppression that the proceedings were an abuse of process. In Gill v Walton (1991) 25 NSWLR a similar order was made. (An appeal from this decision was dismissed by the High Court on 29 April 1993.) Although some of the facts in the present case are the same as in the cases of Herron and Gill, the assessment the court is called on to make is quite different. In the present case, despite the reliance on presumptive prejudice, the court is explicitly not being asked to stay the appeal on the ground of abuse of process. (If it were, problems not present in Herron and Gill would have to be examined.) The proceedings the court is asked to strike out in the present case are not first instance proceedings but an appeal against the judgment entered following a trial which although itself delayed was not so far as I know the subject of any complaint of want of prosecution. In the present case the presumptive prejudice 6 UNREPORTED JUDGMENTS relied on is not applicable to the hearing of the appeal, but to the consequences of the appeal if a new trial is ordered. Another difference is that the disciplinary proceedings in Herron and Gill raised for consideration the fitness of Dr Herron and others as medical practitioners by reason of their use of Deep Sleep Therapy, which the court in Herron was told Dr Herron had not used since 1979 (at 249). The substantive proceedings in the present case concern Mr Hart's claim against the respondent for damages allegedly caused in the course of the Deep Sleep Therapy. In the circumstances now obtaining in the present case presumptive prejudice does not seem to me to be a strong argument. One reason is that it appears from the parts of the Royal Commission Report which were in evidence before us that the Commissioner had no difficulty through lack of relevant evidence in dealing fully with the issues raised before him concerning the treatment received by the appellant at the Hospital. Another reason stemming from the Royal Commission is that no submission was made to this court that anything had occurred affecting the position concerning prejudice since the Commissioner delivered his report in December 1990. The submission made on the respondent's behalf to the Commissioner in December 1988 took into account the possibility of a new trial resulting from the hearing of the appeal after the conclusion of the Commission. No reference was then made to any such new trial being one in which justice could not be done. I am not treating this as representing any kind of admission by the respondent which can be used against him in the present application; I simply take it as showing how matters then appeared to the respondent. In the absence of anything prejudicial to the respondent having happened since the delivery of the Commissioner's report it seems to me that in considering now whether a possible new trial could be justly held the apparent fact that although the respondent now asserts the contrary, he did not see any difficulty at the earlier stage is a matter to be taken into account. Respondent's argument not accepted; second reason, on footing of test usually adopted by this court. In Calvert v Stollznow (1 April 1980, printed at para[13,022] of Ritchie's Supreme Court Procedure (NSW) vol 2) Cross J thoroughly analysed the law as it then stood concerning the situations in which the court would strike first instance proceedings out of the list for want of prosecution. He concluded that the relevant considerations arose under two headings: (1) the prejudice to the defendant if the action were allowed to proceed notwithstanding the delay; and (2) the prejudice to the plaintiff if the action were dismissed. Cross J was of the view that under heading (1) the court should consider (a) the length of the delay since the cause of action arose; (b) the delay between the cause of action and the commencement of the action; (c) the degree to which circumstances have changed since the accident; (d) changes in the insurance position; (e) the prior attitude of the defendant to the delay; and under heading (2) the court should have regard to (a) the plaintiff's personal degree of fault for the delay; (b) the explanation and/or excuse for the delay; (c) the degree to which the plaintiff has kept the defendant informed of the cause of the delay. Cross J considered these matters in regard to the facts of the case before him. He concluded that the plaintiff's solicitor (but not the plaintiff personally) had been guilty of inordinate and inexcusable delay in which the defendant had silently acquiesced. He was of the view that the action should be allowed to proceed. He gave as his final reason that there was no evidence given by the URJ HART v HERRON (Priestley JA) 7 defendant satisfying him of any prejudice other than a minimal one, if the plaintiff's action went forward. Then in regard to the presumptive aspect of prejudice he referred to what was said by Bray CJ in Ulowski v Miller (1968) 1 SASR 277 at 283: "There is no positive evidence at all of the prejudice to the appellant if the action is allowed to continue. We are asked to infer such hardship from the delay in itself and reliance is placed on the words of Diplock LJ in Allen v Sir Alfred McAlpine and Sons [1968] 1 All ER 543 at 556 that the length of the delay may itself suffice to satisfy the condition of prejudice if the relevant issues would depend on the recollection of witnesses concerning events which happened long ago. It is not necessary to deny that there may be such cases though, unless one knows what witnesses are or were available and whether their forgetfulness or absence is likely to operate against the plaintiff or the defendant, it is difficult to see how one can come to the conclusion of prejudice." The defendant appealed against Cross J's decision: Stollznow v Calvert (1980) 2 NSWLR 749. Moffitt P gave reasons for dismissing the appeal with which both Hope and Mahoney JJA agreed. Moffitt P described Cross J's judgment as "most valuable" (at 750). The basis of the appeal was that Cross J had erred in certain aspects of the approach that he had taken. Moffitt P's conclusion was that no error by Cross J had been established (at 757). In arriving at that conclusion he amplified certain considerations dealt with by Cross J. I extract some observations presently relevant, (with the caveat that they are best read in their full context): "\.. in some cases inaction by a defendant in the face of impending prejudice to him if delay continues, may render a later claim of actual prejudice less creditworthy, and the prejudice, if established, a less weighty factor." (at 753) "\.. It is too simplistic an approach to regard preparation for, and bringing the proceeding to trial, as a one sided affair resting entirely on the plaintiff, who has the carriage of the action. I cannot accept, for example, that a defendant, who has written complaining of the delay and warning that particular prejudice will occur to him if delay continues, is not, on a later application to dismiss the proceedings, in a position superior to that of a defendant who has lain silent, and later claims for the first time that prejudice has occurred by reason of the delay." (at 754) "Delay, usually renders more difficult the determination of factual issues. However, the contrary may be so in respect of factual issues which relate to future events. Dim memories and unavailable witnesses render the elucidation of the truth more difficult to the prejudice of the parties and to the quality of justice provided by the courts. Delay is usually to be condemned and avoided. It may be due to congestion of lists or to the dilatory conduct of parties or their legal advisers. Despite the adverse effects of delay the law and the practice of the law accept that justice otherwise may require or justify some delay. An example is to be found in various liberal statutes of limitation. Some court procedures permissible by virtue of the provisions of various statutes or rules are such that proceedings can be commenced and pursued at times when memories for events may be dim or almost non-existent. By way of example, a claim for worker's compensation was able to be commenced and pursued twenty five years out of time: Eyeington v Western Pastoral Co (1971) 1 NSWLR 483; affirmed (1971) 125 CLR 342)." At one point in his reasons Moffitt P referred to the particular situation which is the relevant one in the present case, that is, where what is being sought to be struck out for want of prosecution is an appeal. He said: 8 UNREPORTED JUDGMENTS "Tn this Court, in relation to both appeals and other proceedings, the policies adopted, at least in recent years, are directed to the court concerning itself with the prompt disposal of such appeals and proceedings. To this end the date of the appointment to settle appeal papers is allotted when the notice of appeal is filed, and is included in the notice. Appeal books are prepared with the Court. Proceedings initiated in the Court of Appeal are given an early return date, and are thereafter under the control of the Court. The Court declines to stand over proceedings generally. Where, within these procedures, the appellant still delays, the inactivity of the respondent is not regarded as irrelevant, so that where no earlier complaint has been made to the appellant, or moving party, the court will not usually dismiss an appeal or other proceeding which the appellant or moving party wishes bona fide to prosecute, but may give the appellant a specific direction which, in the event of default, will provide the respondent with an independent ground then to have the appeal dismissed: Supreme Court Rules, 1970, Pt51, R17. The point to be made is that different practices and policies are adopted by courts to prevent delay on the part of litigants or their legal representatives. In these circumstances, I agree with Cross J that the reasoning in English authorities based on policies there adopted to prevent delay may be inappropriate here. In any event, once it is accepted, in respect of an application to dismiss a proceeding for want of prosecution, that it is relevant to consider the lack of blame of the plaintiff, as compared with the fault of his solicitor, it is difficult to see how some principle of general deterrence, adopted from the criminal law, to deter other lawyers in future cases from being dilatory in the prosecution of their clients' cases, with respect, can be a proper exercise of discretion to do that which is just between particular parties before the Court in civil proceedings." Upon consideration of those matters referred to by Cross J which are relevant to the present case, my assessment of the situation is that the case put by the respondent to this court for dismissing the appellant's appeal for want of prosecution is not sufficient to justify the court in making such an order. A balancing of the prejudices occasioned to the two sides by on the one hand granting the application and on the other hand refusing it does not seem to me to favour the respondent. One of the various factors leading me to this conclusion is that the respondent was fully aware, at least in 1988, that it was open to him to try to have the appeal either brought on for hearing or dismissed, but took no step in either of these directions. In regard to that part of Moffitt P's reasons in which he referred to the practice concerning appeals, that practice has, in my experience regularly been followed: typically, the court will not dismiss without a hearing on the merits an appeal which the appellant wishes bona fide to prosecute, notwithstanding past delays. Sometimes, when it becomes apparent on a respondent's application based on undue delay and lack of diligence, that notwithstanding the appellant's wish to proceed the appeal has no significant chance of success, the court will strike it out. It was not suggested in the present case that the appeal fell into this category. For the respondent reliance was placed upon McKenna v McKenna (1984) VR 665, a decision of the Victorian Full Court, which took what might be thought to be a different approach. This was summarised in the headnote as follows: "In applications to dismiss for want of prosecution a central consideration is whether, at the time when the action is likely to be tried, it will be capable of being tried adequately and fairly." URJ HART v HERRON (Sheller JA) 9 McKenna concerned the striking out of proceedings at first instance. Assuming the same approach would be applied to an appeal carrying with it the possibility of a new trial, the way the Victorian Full Court approached the matter seems to indicate a different emphasis from that shown by this court as exemplified in Stollznow. If the Victorian approach be the correct one then I have already given reasons why I do not think it helps the respondent in the circumstances of the present application: see the earlier section described as the first reason for not accepting the respondent's argument. In any event, it seems to me this court should follow its own practice as described by Moffitt P in Stollznow. On that approach, as already indicated, I think the respondent's application fails. Conclusion. In my opinion the respondent's motion in 226/1980 should be dismissed. As earlier recorded, it was the only motion argued. The other motions should be treated as stood over to 9.30 am 11 June 1993, when they should be disposed of, and costs orders provided for in all motions. Now that the respondent has sought to assert his right to have the appeals dealt with or dismissed, and the appellant is seeking expedition, it seems clear the court should take all necessary steps to bring them to a proper termination without further delay. Sheller JA The claimant applies to have the opponent's appeal dismissed pursuant to Pt51 R17 of the Supreme Court Rules for want of prosecution. I have had the benefit of reading the judgments prepared by Priestley and Cripps JJA. I shall state shortly my reasons for concluding that the application should be refused. While it is true that we are here concerned with an application to dismiss an appeal for want of prosecution so that ordinarily the relevant considerations may be different in degree or nature from those applicable where a court is asked to dismiss original proceedings for want of prosecution, I do not think the principles applicable to the exercise of the Court's discretion are different. Even less could this be so in the present case because the argument was directed to the prejudice of a new trial to the claimant if the appeal goes ahead and is successful. Such principles are succinctly stated by Lord Diplock in Birkett v James [1978] AC 297 at 318. The power to dismiss for want of prosecution should be exercised only where the court is satisfied either that the default has been intentional and contumelious or that there has been an inordinate and excusable delay on the part of the appellant or his lawyers and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the respondent as between the respondent and the appellant. Examples of the former are a failure to comply with a peremptory order such as one made under Pt51 R17 (b) or conduct amounting to an abuse of the process of the court. Consideration of recent cases in this Court and in the High Court (Jago v The District Court of New South Wales (1989) 168 CLR 23; Walton v Gardiner (unreported) High Court 29 April 1993) emphasise, in the absence of some manipulation or abuse of the curial process, the need to show that the delay in prosecution has prejudiced the party complaining. Delay in prosecution resulting in any future trial being inevitably unfair to the party complaining is an example frequently found of such prejudice. The party prejudiced may be entitled to have proceedings dismissed peremptorily for such want of prosecution. In an exceptional or extreme case delay in prosecution may be such that it could be said that the processes and procedure of a court have been converted into instruments of injustice and 10 UNREPORTED JUDGMENTS unfairness so that although a fair trial might be conducted the proceedings should be stayed or dismissed peremptorily; see the joint judgment in Walton v Gardiner at 11. The factors to be balanced in criminal and civil cases are different. But common to both is the maintenance of public confidence in the administration of justice. A recent example of the application of these principles is the decision of this Court in Director of Public Prosecutions v Gill (unreported) 20 May 1993. But the facts in the present case are strikingly different to those described in the judgment of the Chief Justice. Apart from the nature of the proceedings and the history of dismissals and stays of proceedings found in that case there is in this case no evidence to support a finding that the respondent has sustained grave evidentiary prejudice. If in the future a new trial is ordered any difficulty in assembling a dispassionate jury can be overcome by dispensing with the jury. The judgment of Cripps JA graphically marks out the considerable delays in the present case. It is true that the opponent had available to him the fruits of his verdict and it may be right that he was not prepared to commit his own funds to the advancement of the appeal. But the claimant did not argue that the opponent's conduct could be categorised as contumelious or that there was any abuse of court process. Thus it seems to me the determinative factor is whether the claimant has suffered such prejudice as a result of the opponent's delay in prosecution that the appeal should be peremptorily dismissed. The claimant relied not on proof of actual prejudice but upon what is described as presumptive prejudice which I take to embrace such matters as anxiety, stress and the loss of memory of witnesses. Such matters are an unfortunate but inevitable consequence of our system of justice. Cases may quite legitimately be commenced six years or more after the events giving rise to them and may then await a further period of years before they are tried. In the absence of any evidence to the contrary I myself would doubt whether in the present case the presumed matters of prejudice are any greater now than when, in December 1988, during the Royal Commission, counsel for Dr Herron stated that there was no technical difficulty in respect of the appeal and spoke of the right of Mr Hart to proceed with his appeal if he wanted to. The claimant first took steps to have the appeal struck out in October 1992 after the opponent had sought directions from the Registrar for hearing of the appeal. In my opinion in the absence of abuse of the Court's process or such unfairness injustice or oppression resulting from delay as would mean that a continuance of the appeal would bring the administration of justice into disrepute this Court would not peremptorily dismiss an appeal for want of prosecution on the basis of delay in the absence of any proved and irremediable prejudice to the respondent. This accords with what Moffitt P described as the practice of the Court in Stollznow v Calvert (1980) 2 NSWLR 749 at 755 in a passage quoted by Priestley JA. Where no earlier complaint has been made to the appellant, the Court will not usually dismiss an appeal which the appellant wishes, bona fide, to prosecute but may give the appellant a specific direction which, in the event of default, will provide the respondent with an independent ground to have the appeal dismissed; see Pt51 R17 (b). No such order is sought in the present case and it is unnecessary at this stage to consider whether it would be appropriate. I should add that the opponent now runs the risk that future events or further delays may well give the claimant grounds for obtaining a permanent stay of the appeal. For these reasons, which I do not believe differ in substance from those of Priestley JA, I agree with the conclusion he states and the order he proposes. URJ HART v HERRON (Cripps JA) 11 Cripps JA This is an application under Pt51 R17 for an order that the appeal by the opponent (Mr Hart) against the claimant (Dr Herron) be dismissed for want of prosecution. I have had the advantage of reading the judgment of Priestley JA. I am in general agreement with his statement of the principles to be applied subject, however, to certain reservations which will become apparent in due course. Unlike Priestley JA, I have come to the conclusion that the application should be granted and the appeal should be dismissed for want of prosecution. Pt51 R17 provides: "Where an appellant has not done any act required to be done by or under these rules, or otherwise has not prosecuted his appeal with due diligence, the Court of Appeal may (a) order that the appeal shall be dismissed for want of prosecution; or (b) fix a time peremptorily for the doing of the act and at the same time order that upon non compliance the appeal shall stand dismissed for want of prosecution or subsequently and that in the event of non-compliance, order that it be so dismissed; or (c) make such further or other order as in the circumstances may seem just." Pt51 R4 provides that ordinarily appeals must be instituted within twenty eight days of judgment or verdict. The subject appeal was lodged in 1980. As will be seen, a few tentative steps were taken by Mr Hart but nothing was done between March 1981 and September 1992 - eleven and a half years. It must be borne in mind that the application is not an application pursuant to Pt33 R6 which gives the Court the power in certain circumstances to dismiss actions for want of prosecution before they are tried. In the present case, the making of the order will not deny Mr Hart his opportunity or entitlement to have his case heard and determined by a judge and jury which is what happens if a case is dismissed for want of prosecution before trial. The order, if made, will deny to Mr Hart access to the second tier of the litigation process. Mr Hart's complaint against Dr Herron was litigated in the Supreme Court in February 1980. The trial before Fisher J and a jury of twelve lasted 64 days. The jury returned a verdict in his favour in the sum of $60,000 (that, at least, is what has been assumed in these proceedings although documents placed before this Court would seem to contradict this perhaps this is no more than a manifestation of the understandable confusion apt to result from appeals being left dormant for so long). If the order sought by Dr Herron is made, it will mean that Mr Hart will lose the opportunity of persuading the Court of Appeal that he should have his claim re-heard by a jury of twelve some time in the future - that being the object he seeks to achieve by the appeal. The question before this Court is whether in all the circumstances he should be denied that opportunity. Priestley JA has referred to the two motions before the Court. It was agreed by the parties that for practical purposes everything of substance should be dealt with under Dr Herron's notice of motion 226/80. I should mention, however, that Mr Hart also seeks certain orders and directions concerning the future conduct of the appeal and requests that his appeal be expedited notwithstanding that no appeal books have yet been filed and, as far as I understand the submission made on his behalf, Mr Hart has not finally determined which grounds of appeal he wishes to pursue or whether he wishes to seek leave to further amend the notice of appeal. Indeed, it is still not clear whether the appeal will proceed even if the present application is dismissed. 12 UNREPORTED JUDGMENTS Mr Hart was admitted to the Chelmsford Private Hospital for psychiatric treatment by Dr Herron in March 1973. He said that without his consent he was subjected to electro convulsive therapy and deep sleep therapy which led to bronchial pneumonia and pulmonary embolism and to his subsequent admission to Hornsby Hospital. He said he suffered permanent physical and psychological impairment as a result of the unauthorised treatment. In November 1976 he commenced proceedings against Dr Herron in the District Court. In 1979 the proceedings were removed to the Supreme Court. On 26 February 1980 his case commenced before Fisher J and a jury of twelve. As I have said, the hearing lasted sixty four days. On 14 July 1980 the jury returned a verdict for Mr Hart in the sum of $60,000 (as I will assume). The parties have conducted the present proceedings upon the basis that he was awarded $36,000 for general damages for the three torts of trespass, negligence and false imprisonment, $18,000 aggravated damages for the tort of trespass and $6,000 aggravated damages for the tort of false imprisonment. At the conclusion of the trial, Fisher J ordered the defendants (Chelmsford Hospital and Dr Herron) to pay Mr Hart's costs as on a hearing of thirty days and made no order with respect to the costs of the remaining thirty four days. Both Mr Hart and Dr Herron appealed. There are now some fifty grounds of appeal in Mr Hart's amended notice of appeal. He asks for a new trial of the action on liability and damages and an order that he is entitled to exemplary damages. He also seeks an order that the interest component of the judgment be increased and that the costs order of Fisher J be set aside and that his costs be paid by Dr Herron. (Years ago there was some discussion as to whether it was necessary for Mr Hart to obtain leave to appeal against the costs order but that matter has not been pursued because it was agreed, it would seem, that this aspect of the matter should be dealt with at the time the appeal was heard and, of course, if the present application is successful, that will be an end of the matter.) After the appeal was lodged, Dr Herron paid Mr Hart the sum of $72,100 being the verdict sum together with interest. It has not been contended by Dr Herron that the acceptance by Mr Hart of the verdict moneys together with interest affected his entitlement to maintain his appeal. Early in 1981 there were some tentative moves by Mr Hart with respect to the preparation of appeal books but they were not then prepared and have not been prepared since. Thereafter, nothing more happened in the proceedings until Mr Hart's solicitors wrote to the Court's Registrar on 10 September 1992 asking for a directions hearing. That action triggered the present application by Dr Herron that the appeal be dismissed for want of prosecution. Mr Hart was legally aided in the litigation before Fisher J and the jury of twelve. That meant that except for his contribution (which was stated in this Court to be $18,000 but which was said in 1981 by Mr Burchett QC in an opinion which I will refer to hereafter to be $5,000), the Legal Services Commission (as it then was) bore the brunt of the costs order made by Fisher J. Bearing in mind the thousands of dollars in costs that must have been spent on the trial and the circumstance that if an order for costs were made in favour of Mr Hart, the Legal Services Commission would recoup a large part of its outlay it is clear it had a clear interest in the success or otherwise of Mr Hart's appeal. It also meant that, whatever the outcome of the appeal, Mr Hart would not recover his contribution. An order that a defendant pay a plaintiff party and party costs for a sixty four day trial necessarily results in the successful party being significantly out of pocket. URJ HART v HERRON (Cripps JA) 13 The opinion of Mr Burchett QC was sought as to the prospects of success in the appeal. On 3 September 1981 he advised that the appeal should not go forward. His opinion has been tendered before us. He said he consulted with barristers appearing at the trial and read all the necessary documents. He was of the opinion that the prospects of success in the appeal were not good. He also advised that if the appeal was pursued, Mr Hart, "as distinct from the legal aid fund, cannot, with any confidence, be regarded as having much to gain, while he does have a great deal to lose". I have already referred to the circumstance that Mr Hart received the sum of $72,100 towards the end of 1980. He has not sworn an affidavit in these proceedings but it is reasonable to infer from other material before us that although he was pressing the Legal Services Commission to maintain the litigation on his behalf, he was not prepared to commit any of his own funds to the appeal. Whether that was because he was mindful of the advice given by Mr Burchett QC or whether he felt he was entitled to be publicly funded, or both, is not clear. But what is clear is that this is not a case where a litigant has been disadvantaged by the incompetence of his own legal advisers. Nor is it a case where the tardy litigant is impecunious. The Legal Aid Commission did what it ought to have done. It received advice before it committed public moneys to the pursuit of the appeal. It may be that the time is fast approaching when the incompetence of legal advisers will no longer be a relevant consideration in such applications. But however that may be, legal incompetence is not a factor in the present case. Mr Branson QC, on behalf of Mr Hart, has referred to the findings of the Royal Commission into the Chelmsford Hospital by Slattery J and to the conduct of Dr Herron in the course of the inquiry. It is submitted that the findings of Slattery J entitled Mr Hart to have the Court of Appeal consider evidence relating to Dr Herron's conduct which emerged only in the Royal Commission. In order to understand the submission, it is necessary to refer to the findings of the Royal Commission and to the case Mr Hart made at trial. At trial it was Mr Hart's case that he had given no consent to the treatment he received. That is he did not consent to electro convulsive therapy and he did not consent to deep sleep therapy. Dr Herron said he consented orally. It is evident that the jury disbelieved Dr Herron. During the proceedings he was cross examined about the admission records of Chelmsford Hospital and whether he had tampered with them. It was submitted by Mr Branson QC, on behalf of Mr Hart, that what was merely a suspicion in 1988 became (if Slattery J's findings were to become the findings of the jury at a new trial) a certainty. That is, that Dr Herron was a party to tampering with the admission papers by removing that part of them which made provision for the "consent" of the patient and later improperly trying to cover up his earlier wrong doing. It was Dr Herron's case (rejected by the jury) that he gave oral consent. The circumstance that, if Slattery J is correct, Dr Herron tampered with the records no longer matters on the issue of consent. It could only have gone to Dr Herron's credit and, as I have said, he was disbelieved. The issue of consent was decided against Dr Herron and, in my respectful opinion, the findings of the Royal Commission are something of a red herring in these proceedings. What in fact happened, as I will assume, was this. In 1975 Dr Herron's solicitors sent the Chelmsford records to Mr Hart's solicitors who were then contemplating action against Dr Herron and Chelmsford. The District Court action started in 1976. The records that were sent to Mr Hart's solicitors had been tampered with by the removal of the "consent" part before 14 UNREPORTED JUDGMENTS they were sent to Dr Herron's solicitors. Had the documents not been tampered with, it would have been apparent to Mr Hart's solicitors that there was no written record of Mr Hart giving his consent for the treatment he received. That case was not conducted on that basis. According to the findings of the Royal Commission (and I am prepared to assume the findings were correct) in 1977 there was a conspiracy involving (as again I will assume) Dr Herron as a result of which the records were further tampered with to give the appearance that that part of the form relating to the "consent" of the patient had not been earlier detached. The reason why, it would seem, that the unfilled in "consent" part of the form was removed before it was sent to Dr Herron's solicitors from Chelmsford was to avoid, if possible, the insurer seeking to avoid the policy of indemnity. Dr Herron's defence was conducted by the solicitors for the insurance company. As events turned out, as I have said, it really had nothing to do with the litigation between Mr Hart and Dr Herron. Dr Herron did not attempt to make out a case of written consent. In any event, the cover-up was a clumsy affair. It must have been apparent to Mr Hart's lawyers that the documents they earlier received had been tampered with and were not the same as the copies produced during the proceedings. In fact, Dr Herron was asked questions about these matters at the trial. Dr Herron sought to avoid giving evidence before the Chelmsford Royal Commission upon the ground that to do so would be to prejudice his appeal and Priestley JA has set out in his judgment exchanges between Mr Sackar, on behalf of Dr Herron, and Mr Justice Slattery.Dr Herron must, I think, accept responsibility for the conduct of his representatives in the proceedings before the Royal Commission for much the same reason as, I think, Mr Hart would have been responsible for his had that matter been relevant. But all this took place more than four years before the subject application was made. Dr Herron gave evidence before the Royal Commission. No steps were taken thereafter to advance the appeal until the end of 1992. Dr Herron accepted that the Court should determine the matter by reference to the prejudice to Mr Hart if the appeal is peremptorily dismissed and the prejudice to Dr Herron if the appeal is allowed to go forward and a new trial is ordered. It cannot be ignored, in my respectful opinion, that the new trial could not be heard much before 1996 unless it is expedited and other cases in the list are displaced. In the ordinary course of events and because the appeal books of the sixty four day trial have not yet been printed, a new trial would not be heard, on my information, unless expedited, until at least 1996 even if the parties moved promptly. That would mean that if a new trial was ordered it would be concerned with events which took place twenty three years previously unless that period could be shortened by expedition in the Court of Appeal and expedition thereafter. It is not uncommon, of course, for cases to be expedited after a successful appeal. However, the question must remain why Mr Hart's appeal should be expedited at the expense of other litigants. The Court still does not know what the final grounds of appeal are to be. But it is a fair assumption, I think, that the appeal will not be short. That, in my opinion, is a relevant circumstance for the Court to take into account when determining whether or not the proceedings should be dismissed for want of prosecution. There is another matter which I think is relevant to this question although it was somewhat glossed over in argument. If Mr Hart's appeal is successful and a new trial is ordered, the jury will be required to determine in 1996 the amount of compensation in the money of the day to which Mr Hart is entitled in respect of tortious conduct which took place in 1973. Furthermore, as I have already URJ HART v HERRON (Cripps JA) 15 mentioned, Mr Hart has had the use of the Dr Herron's money (or at least $72,100 of it) since 1980. These matters are not, in my opinion, irrelevant to the matter now before the Court although I am prepared to assume in Mr Hart's favour that the complications are not insuperable. As I have said, this is not an application under Pt33 R6 for dismissal for want of prosecution on an action yet to be tried. In my opinion, a court is necessarily less indulgent where an application is made with respect to an appeal than it is with respect to proceedings which have not yet had a hearing. In the ordinary case of dismissal for want of prosecution under Pt33 R6 the result is that the litigants are denied access to the Court. Relevant to those applications is, for example, the circumstance that there is a limitation period in any event - often up to six years. As I have said, Mr Hart has not been denied access to the Supreme Court. What is to be denied to him if the application is successful is access to the second tier of the litigious process which, according to the Supreme Court rules, should be prosecuted within twenty eight days of judgment. A litigant who has had one hearing and is denied the opportunity of persuading the Court of Appeal he should have another is not, with respect to people who have other views on this matter, to be treated as if he or she is a litigant being denied a hearing at all. Although Mr Hart's first trial took sixty four days, I am prepared to accept in his favour and for the purpose of this application that if a new trial is ordered his claim can be disposed of in less time. Nonetheless, the new trial will necessarily involve canvassing not only Mr Hart's allegations of events that took place in 1973 and Dr Herron's denials but also Mr Hart's medical history from that time until the date of trial and thereafter. Dr Herron relies on presumptive prejudice. The presumptive prejudice relied on is not applicable to the hearing of the appeal but to the new trial. It has been submitted that Dr Herron cannot point to any specific prejudice. It is said he cannot nominate a witness who has died or who is no longer available. It is also said that the Chelmsford Royal Commissioner appeared not to have a problem about events in 1973. With respect to people who have other views on this matter, I would have thought that presumptive prejudice to a litigant having to re litigate a case of false imprisonment, trespass and negligence and damages resulting therefrom arising out of circumstances taking place more than twenty years ago is self evident. The circumstance, if it is correct, that the Royal Commissioner was able to report on events according to his terms of reference does not persuade me that Dr Herron would not suffer prejudice if a new trial were ordered. I do not accept the submission that because the findings of the Royal Commissioner are favourable to Mr Hart, that eliminates the presumptive prejudice that will be suffered by Dr Herron. It must be remembered that Dr Herron has consistently denied Mr Hart's allegations. The whole matter will have to be litigated again. The report of the Commissioner cannot be tendered in evidence. As I have said, it is difficult to see why, on appeal, Mr Hart should be given leave to advance additional material on an issue which was resolved favourably to him at trial. However, I cannot overlook the circumstance that if a new trial is ordered, it is probable that Dr Herron's conduct will be exhaustively canvassed. As I have said, the appeal books have not been prepared. The appeal will necessarily last for some days. There is no point in the appeal from Mr Hart's point of view unless there is a new trial. If there is, there will be, in my opinion, self-evident prejudice to Dr Herron. 16 UNREPORTED JUDGMENTS Mr Hart understandably feels outraged and humiliated by the treatment he received from Dr Herron in 1973. However, his claim has been litigated and his complaints have been vindicated. No satisfactory explanation has been given, so far as Iam concerned, why no steps were taken in the appeal from 1981 until the end of 1992 otherwise than that Mr Hart was not prepared to commit any of his funds to the advancement of the appeal and believed (as I will assume) he was entitled to be publicly funded. Iam prepared to assume in Mr Hart's favour that had the appeal come on for hearing when it should have come on he had good prospects of obtaining a new trial. But the reason why the appeal has not come on is because Mr Hart has determined that it should not. As I have said, it is not because his lawyers have let him down or because he is impecunious. I can see no good reason why Dr Herron should, in effect, be penalised and subjected to what must be presumed to be proceedings that would be unfair to him because he failed to take the step of warning Mr Hart that he would move to have the proceedings dismissed for want of prosecution. If this matter is relevant in the circumstances of the present case, it would seem, logically, that it would be relevant had Mr Hart delayed not eleven and a half years but twenty three years. There must come a time when the failure to warn that such a step would be taken becomes, if not irrelevant, at least of minimal significance. Nor do I think Dr Herron should be required to be exposed to a trial which must be presumed to be less than fair because he made an unmeritorious and unsuccessful application in 1988 to avoid giving evidence before the Chelmsford Royal Commission. It is the practice of this Court, and has been for some time, that appeals would be dealt with in a timely manner. There was probably a similar policy in 1981 although the need for proper case management in the interests of all litigants was not then recognised to be as important as it now is. However, in my opinion, the existence or non existence of a policy in 1981 is really of no relevance to the present application. As I have said, for many years it has been accepted in this Court that an appellant who wishes to appeal against a decision (which is presumed to be correct) has an obligation to bring the appeal on for hearing as soon as possible. Mr Hart had the opportunity of bringing his appeal on. He has not taken advantage of the opportunity. I can see no unfairness in acceding to Dr Herron's application that the appeal be dismissed for want of prosecution. I am of the opinion, therefore, that the appeal should be dismissed for want of prosecution and I would so order. I would grant leave to Dr Herron to discontinue his appeal and, if necessary, to refuse leave to appeal in respect of the costs decision of Fisher J. I would make no further order as to costs. 1. Motion to dismiss appeal for want of prosecution dismissed. 2. Question of costs, and disposal of other motions, stood over to 9.30 am, 11 June 1993. Counsel for (Hart): CC BRANSON QC Instructed by: CASHMAN and PARTNERS Counsel for (Herron and Anor): J SACKAR QC Instructed by: BLAKE DAWSON WALDRON