Gerlach v Meares & 3 Ors [1999] NSWSC 835

New South Wales Supreme Court CITATION : Gerlach v Meares & 3 Ors [1999] NSWSC 835 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20367/94 HEARING DATE(S) : 18 August 1999 JUDGMENT DATE : 18 August 1999

Jeanne Gerlach (Plaintiff)

Allan Meares (First Defendant)

PARTIES : Western Suburbs Hospital (Second Defendant)

Dow Corning Australia Pty Limited (Third Defendant)

Dow Corning Wright (Fourth Defendant) JUDGMENT OF : Master Harrison

Mr W F Mason (Solicitor) (Plaintiff) COUNSEL : Mr B P Cran (Solicitor) (First Defendant) Messrs Mason (Plaintiff) SOLICITORS : Blake Dawson Waldron (First Defendant) CATCHWORDS : Dismiss statement of claim for want of prosecution Birkett v James [1977] 2 All ER 801; AC 297 at 318 Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411 ACTS CITED : Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491 McKenna v McKenna [1984] VR 665 Stollznow v Calvert [1980] 2 NSWLR 749 CASES CITED : Supreme Court Rules - Part 33 r 6(2) DECISION : See para 11

4

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 18 AUGUST 1999

20367/94 - JEANNE GERLACH v ALLAN MEARES & 3 ORS

JUDGMENT (Dismiss statement of claim for want of prosecution) 1 MASTER: By notice of motion filed 1 June 1999 the first defendant seek that the proceedings be dismissed for want of prosecution pursuant to Part 33 r 6(2) of the Supreme Court Rules. The first defendant relied on the affidavit of Benjamin Peter Cran sworn 27 May 1999 and the plaintiff relied on the affidavit of William Francis Mason sworn 11 August 1999. 2 I turn to the law. Part 33 r 6(2) provides: "(1) … (2) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any part or of its own motion, stay or dismiss the proceedings. 3 The power of the courts to dismiss an action for default or want of prosecution should be exercised only where the plaintiff's default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyer's part giving rise to a substantial risk that a fair trial would not be possible due to serious prejudice to the defendants: Birkett v James [1977] 2 All ER 801; AC 297 at 318. In each case, a balance must be struck between the plaintiff and the defendant and the court must decide whether or not, in all the circumstances, justice requires that the proceedings should be dismissed: Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411; Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491; McKenna v McKenna [1984] VR 665. 4 In Stollznow v Calvert [1980] 2 NSWLR 749 Moffitt P held that the discretion to dismiss proceedings for want of prosecution is to be exercised for each case upon its own facts by deciding whether, on striking a balance between the plaintiff and the defendant, justice demands that the action should be dismissed. The judgment makes it clear that the discretion is not confined and that authority does not and cannot establish the weight to be given to particular classes of facts or circumstances. 5 Applications of this kind recurringly return attention to particular kinds of considerations, namely that the conduct of a plaintiff himself and his contribution to delay is considered separately from conduct, contribution and defaults of his solicitor, but it is not the law that a litigant has no involvement in his solicitor's shortcomings or that they are not relevant. It is not the responsibility of a litigant to ensure that his opponent is adequately represented or to point out steps which his opponent's representatives ought to take to advance the claim against him. In relation to delay, the longer it continues the more difficult becomes the determination of factual issues because dim memories and unavailable witnesses render the elucidation of the truth more difficult to ascertain. Prejudice both actual and presumed should be considered. 6 On 10 June 1994 the plaintiff filed a statement of claim against the four defendants namely Allan Meares as first defendant, Western Suburbs Hospital as second defendant, Dow Corning Australia Pty Limited as third defendant and Dow Corning Wright as fourth defendant for negligence arising out of the insertion and subsequent removal of a breast implant. In June 1994 a settlement proposal was made as part of the global settlement for people affected by Dow Corning implants but it had to be approved by the American courts. There were difficulties in the global settlement and the plaintiff has still not received any moneys from that settlement. The proceedings remain on foot as between the plaintiff and the first defendant. 7 However, the plaintiff has also been named as a plaintiff in proceedings against the third and fourth defendants. On 4 April 1999 the plaintiff was given leave to discontinue these proceedings against the third and fourth defendants. Now there are no longer duplicate proceedings involving the third and fourth defendants. The plaintiff is now in a position to file Part 33 particulars and is being medically examined on 7 September 1999. 8 The plaintiff is desirous of bringing her proceedings to finality. Although the cause of action arose in 1991 and the statement of claim was filed over five years ago her reason for not prosecuting these proceedings was as she was waiting on the American courts to approve settlement of her claim and pending the outcome of those proceedings she may not have pursued these proceedings. I take into account that if this claim is dismissed the plaintiff still may obtain compensation for the American proceedings although this is not certain. No medical or experts reports have been served as yet notwithstanding that five years have elapsed since the proceedings were instituted. Particulars were answered after four year delay. In 1998 the plaintiff had further surgery and has had a period of illness. The defendant has not shown that it suffers from actual prejudice although I accept that there is presumptive prejudice. Hospital records have been subpoenaed and are available although it is appreciated these records do not tell the whole story. While the plaintiff has not pursued her claim as diligently as she should have it is my view that justice require that the plaintiff case not be dismissed. It should be permitted to go to trial. 9 In relation to costs, in 1998 the first defendant's solicitor was advised that the plaintiff may not be pursuing this claim. On 2 November 1998, 23 February 1999 and 12 April 1999 the first defendant wrote to the plaintiff and asked whether the plaintiff wished to continue with these proceedings. The plaintiff was advised that if they need no response, this motion would be filed. The plaintiff's solicitor did not respond to any of these letters. It was only after the motion was filed that the plaintiff started to prepare the matter for trial and advised the first defendant's solicitor that the plaintiff wished to pursue these proceedings. Costs are discretionary and in these circumstances it is my view that the plaintiff should pay the costs of the motion. 10 The first and second defendants consent to the matter being transferred to the District Court. 11 The orders I make are: