New South Wales Supreme Court CITATION : Huntington v Saunders [1999] NSWSC 812 revised - 16/08/99 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 13587/90 HEARING DATE(S) : Wednesday 4 August 1999 JUDGMENT DATE : 4 August 1999 PARTIES : Leonard Malcom Huntington v Thomas Earl Saunders JUDGMENT OF : Simpson J at 1 COUNSEL : G. Lucarelli G. Bateman SOLICITORS : G.H. Healey & Co. Booth Mather Blackmore CATCHWORDS : Personal Injury; application for order to strike out statement of claim for want of prosecution dismissed; plaintiff in default in complying with orders; plaintiff failing to prosecute with due despatch; prejudice to parties evaluated; justice in refusing to make order; future conduct of matter subject to strict directions. ACTS CITED : Supreme Court Rules DECISION : Notice of motion dismissed. Plaintiff to pay the defandants costs. By consent the applicant Janice Huntington is to be substituted as the plaintiff in these proceedings. The defendant has liberty, on two days notice to the plaintiff, to list this matter before me at any time. - 5 - THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION 13587/90 SIMPSON J WEDNESDAY 4 AUGUST 1999 LEONARD MALCOLM HUNTINGTON v THOMAS EARL SAUNDERS JUDGMENT 1 HER HONOUR: These proceedings were commenced by statement of claim filed on 28 June 1990. The nominated plaintiff, Leonard Malcolm Huntington, claimed damages for personal injuries allegedly sustained on or about 5 May 1988 in a motor vehicle collision. 2 The plaintiff was represented by solicitors. It is not clear what took place during the next four years or five years or so. However, the present application is brought by the defendant who seeks an order that the statement of claim be struck out for want of prosecution. The defendant relies upon SCR Pt 33 r 6(2) which provides that: "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 party or on its own motion, stay or dismiss the proceedings." 3 The defendant relies upon both limbs of the sub-rule, that is failure to comply with an order or direction as to the conduct of the proceedings, and failure to prosecute the proceedings with due despatch. 4 The defendant relies on two affidavits sworn by Craig Douglas Blackmore, the first sworn on 29 July 1999 and the second on 4 August 1999. In the first of those affidavits Mr Blackmore sets out a history of the proceedings, commencing on 8 June 1995 when the proceedings were listed for directions before a Registrar. The affidavit discloses a sorry history of representation of the plaintiff. There are instances of the plaintiff's representatives failing to appear, failing to notify the defendant's solicitors of orders that had been made in the absence of the defendant and failing to comply with orders and directions as to the conduct of the proceedings. 5 Although the plaintiff continued to be represented by the same firm of solicitors, it appears that there were regular changes of the solicitor handling the matter. During the course of the correspondence between the solicitors, the defendant's solicitors were advised, I think in about the middle of 1998, that the plaintiff had died on 21 December 1997. Subsequent to that date, but before being advised of the plaintiff's death, the defendant's solicitors had arranged for medical examinations of the plaintiff in Sydney. I should add that the plaintiff was resident in Queensland at the time. 6 Thereafter a side issue arose as to the substitution of the plaintiff's wife for the plaintiff. The plaintiff's solicitors sought the consent of the defendant's solicitors for substitution of the plaintiff's wife in her role as executrix of the estate. It subsequently became apparent that although she was named as executor of the estate in the plaintiff's will, probate had not been sought, and although it was at some stage intended to seek probate, eventually it was decided that no such application would be made. That issue appears to have taken up some of the time of the solicitors during 1999 at least. 7 In the second affidavit sworn by Mr Blackmore he deposes that a report prepared by Mr R Stewart-Smith, who I was told during the course of the hearing is a traffic expert of some kind, had been served. The report was dated 2 June 1999 and was served on 23 July 1999. Directions as to the service of any such report had been made on 1 October 1998 and required service by 30 October 1998. The report was, therefore, many months outside the time permitted by the directions. 8 Mr Blackmore further deposed that he, as solicitor for the defendant, had, after receipt of that report, attempted to locate the defendant but had been unsuccessful in doing so. 9 Also in evidence was a copy of the police report of investigation into the collision which itself shows that it is likely that there will be a very serious issue as to liability. As far as I can see, the competing contentions are that the plaintiff failed to stop at a "Give Way" sign, but he alleges that the defendant was driving without his headlights illuminated. 10 The inability of the defendant's insurer to locate the defendant is, prima facie, a matter which would possibly cause considerable prejudice to the defendant, should the matter proceed. On the other hand, I was told that the defendant's solicitors are in possession of a statement made by the defendant. Another matter of relevance is that it is not clear to me what issues arise as a result of Mr Stewart-Smith's report, since that report is not in evidence before me. 11 On behalf of the plaintiff reliance was placed upon an affidavit of Miss Margaret McCue and one of Mr Chidiac, each of whom has been the solicitor for the plaintiff at some stage. These affidavits do not explain in any way the inordinate delay that has taken place in these proceedings. One is left to infer what may be the true explanation, but in the absence of clear evidence, I forebear to comment on the reasons for what is plainly a most unsatisfactory state of affairs. 12 There is undoubtedly presumptive prejudice to the defendant in the circumstances disclosed. The defendant has established that the plaintiff has defaulted on many occasions in compliance with orders and directions of the court and has established that the proceedings have not been prosecuted with due despatch. That does not automatically result in an order to stay or dismiss the proceedings. 13 While I can perceive that prejudice might exist, and indeed has been demonstrated, in relation to the inability to locate the defendant, that prejudice is, to some extent, ameliorated by the possession in the defendant's insurers of his statement. 14 Counsel for the plaintiff also relied upon a certificate of partial compliance which purports to show that directions given by the court have been complied with. What it demonstrates is that some documents, of which service was required, have been served, although invariably months later than the date required by the directions, and that the final direction has not been complied with at all. 15 In the end, it seems to me that I have to balance the prejudice to the parties. It was agreed between the parties that should the notice of motion be dismissed the defendant will consent to the substitution of the plaintiff's widow as plaintiff, and the proceedings can continue. It was put to me that there is not a great deal that remains to be done in order to prepare the matter for hearing. 16 Were I to stay or dismiss these proceedings, the proposed substitute plaintiff would be deprived of any right at all by reason of the passage of time, other than perhaps any right she may have against an alternative defendant. 17 An order under Pt 33 r 6(2) is discretionary, and as I say may be made after a balancing of the demonstrated or presumed prejudice to the respective parties. Despite my profound misgivings about the manner in which the proceedings have been conducted on behalf of the plaintiff to date, it seems to me that in the end justice lies with refusing to make the order and the giving of strict directions for the future conduct of the matter. I would add that counsel for the plaintiff, very properly, conceded that the plaintiff would have to pay the defendant's costs of this application, and I propose to make such an order. 18 The orders I make are that the notice of motion is dismissed. The plaintiff is to pay the defendant's costs. If there is any default in compliance with subsequent directions, even minor default, I give the defendant leave to approach me directly for the purpose of whatever application the defendant might wish to make. 19 By consent I order pursuant to Pt 8 r 1(b) of the SCR that the applicant, Janice Huntington, be substituted as the plaintiff in these proceedings. I will note that the order as to costs encompasses all orders that are before me today. I will dismiss the plaintiff's notice of motion dated 9 October 1998. 20 The defendant has liberty, on two days notice to the plaintiff, to list this matter before me at any time. 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