New South Wales Supreme Court CITATION : Khalifeh & Anor v RSPCA & Ors [2000] NSWSC 247 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 13197/94 HEARING DATE(S) : 16 March 2000 JUDGMENT DATE : 31 March 2000 Christian Khalifeh (First Plaintiff) Norelle Khalifeh (Second Plaintiff) Royal Society for the Prevention of Cruelty to Animals (First Defendant) Jennifer Richardson (Second Defendant) Andrew Yeo (Third Defendant) Charles Meader (Fourth Defendant) David Butcher (Fifth Defendant) Steve Coleman (Sixth Defendant) Stewart Deaves (Seventh Defendant) PARTIES : Jeff Fairbrother (Eighth Defendant) Malcom Gett (Ninth Defendant) John Foran (Tenth Defendant) Graham Hall (Eleventh Defendant) Shirley Holmes (Twelfth Defendant) Deborah Vitlin (Thirteenth Defendant) Douglas Webb (Fourteenth Defendant) Debbie Williams (Fifteenth Defendant) Peter Nicholl (Sixteenth Defendant) JUDGMENT OF : Master Harrison Mr C Khalifeh (First plaintiff in person) Mr R Lovas COUNSEL : (Second Plaintiff) Mr Branson QC with Mr Todd (Defendants) Mr Angelo D'Angelo (Second Plaintiff) SOLICITORS : Ms Zoey Mikus of Ebsworth & Ebsworth (Defendants) LEGISLATION CITED : Supreme Court Rules - Part 33 r 6; Part 13 r 5; Part 20 r 5 CASES CITED : 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; 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; Air Services Australia v Zarb (NSWSC unreported, 26 August 1998); Dey v Victoria Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; Webster & Anor v Lampard (1993) 177 CLR 598 DECISION : See para 20 12 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 31 MARCH 2000 13197/94 - CHRISTIAN KHALIFEH & ANOR v ROYAL SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS (RSPCA) & ORS JUDGMENT (Summary judgment - dismissal for want of prosecution) 1 MASTER: By notice of motion filed 6 September 1999 the defendants seek an order that the proceedings be dismissed for want of prosecution pursuant to Part 33 r 6 or alternatively that proceedings be dismissed pursuant to Part 13 r 5 of the Supreme Court Rules (SCR). The defendant relied on the affidavit of Zoey Mikus sworn 1 October 1999. The first and second plaintiffs who are husband and wife respectively appeared separately. Mr Lovas appeared for the second plaintiff. Mr Khalifeh the first plaintiff appeared unrepresented. 2 I turn to consider whether the proceedings should be dismissed for want of prosecution. Part 33 r 6 of the SCR relevantly reads as follows: "(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 Court may not make an order under subrule (2) without giving the plaintiff a reasonable opportunity to be heard." 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 A short history of the matter is as follows. (1) On 10 December 1994 the proceedings were originally commenced by way of summons. On 31 November 1995 Dowd J ordered the plaintiff to file a statement of claim. On 13 February 1995 an amended statement of claimed was duly filed. The statement of claim pleaded defamation, assault, illegal entry, malicious prosecution and property settlement. The gravamen of the plaintiffs' concern is that they have been prosecuted by the defendants in relation to the care of some mares. The plaintiffs are seeking damages for the loss of the animals and for the personal injury. (2) On 16 March 1995 the defendants requested very lengthy particulars (43 pages). These were answered in detail on 30 March 1995. No defence was filed. (3) On 29 May 1995 Master Greenwood delivered judgment on a strike out application. The Master ordered the paragraphs relating to defamation be struck out and granted leave to the plaintiffs to file a fresh statement of claim limited only to the question of defamation. The plaintiffs were to file and serve a fresh statement of claim accompanied by fresh DCM documents within 28 days. At page 2 of the judgment it appears that Master Greenwood intended to allow at least the tort of malicious prosecution to proceed to trial. Master Greenwood stated: "…Regrettably that is not abundantly clear from the statement of claim in the form in which it is. It may well be also that the defendants have a proper defence to the allegations made against them by the plaintiffs but it is difficult for the defendants to frame a proper defence until such time as the statement of claim in proper form has been filed. In so far as the claims by the plaintiffs against the defendants for defamation are concerned it is my view that they have no place in a claim for relief on the basis of the various torts committed by the defendants. I therefore strike out those paragraphs of the present statement of claim which go to the question of defamation." (4) On 10 November 1995 the amended statement of claim was filed. Between 10 November 1995 and 9 July 1997 there was regular correspondence between the parties. (5) On 9 July 1997 Master Malpass struck out the amended statement of claim and ordered that any further amended statement of claim be filed by 22 August 1997. (6) On 6 November 1997 the further amended statement of claim was filed. This was just over two months outside the time period stipulated by Master Malpass. The further amended statement of claim was drafted by Mr Morris of counsel. (7) On 2 June 1998 a conference was held with Mr D'Angelo, Mr Todd (defendants' counsel) and Mr Morris (counsel who drafted the further amended statement of claim for the plaintiffs). Mr Morris was to further redraft parts of the amended statement of claim. The plaintiffs requested extensions of time to file the further amended statement of claim and those were acceded to. The further amended statement of claim was redrafted by 14 October 1998. On that day the second plaintiff's solicitor was advised by the Registrar that it could not be filed as the defendants' consent was required. (8) On 14 October 1998 the second plaintiff's solicitor wrote to the defendants' solicitor seeking consent to the filing of the further amended statement of claim. On 19 October 1998 a follow-up letter was sent. On 1 February 1999 a further follow-up letter was forwarded to the defendants' solicitor as no reply had been forthcoming. On 11 February 1999 and 24 February 1999 the defendants' solicitor wrote to the second plaintiff's solicitor stating that they were awaiting advise from Mr Todd. On 12 March 1999 the second plaintiff's solicitor wrote a further reminder letter concerning the outstanding consent to the further amended statement of claim. The letter also warned the defendant that if the plaintiffs did not receive consent, the second plaintiff would file a notice of motion seeking the court's leave to do the same. (9) On 10 May 1999 a notice of motion seeking leave to file the further amended statement of claim was filed. On 10 May 1999 Acting Prothonotary Irwin directed that the plaintiffs file and serve any further affidavit annexing a proposed further amended statement of claim complying with the Supreme Court Rules by 28 May 1999. On 27 May 1999 the plaintiffs served an amended statement of claim. (10) On 31 May 1999 no formal direction was made by Acting Prothonotary Irwin, although he again indicated to the plaintiffs that the proposed further amended statement of claim should be prepared as to comply with the Supreme Court Rules and be intelligible to the reader. The plaintiffs relied on the pleading served on 27 May 1999. This motion was returnable before Acting Prothonotary Irwin on 28 June 1999. (11) On 5 August 1999 the plaintiffs served a further proposed amended statement of claim dated 2 August 1999 which was essentially the same document that was served on 27 May 1999 but with parts of the document crossed out and underlined. (12) On 9 August 1999 Acting Prothonotary Irwin stood over the plaintiffs' notice of motion to 6 September 1999. The plaintiffs relied on the pleading dated 2 August 1999. (13) On 6 September 1999 Acting Prothonotary Irwin ordered that the plaintiffs' notice of motion filed 2 July 1999 be stood over or until after the defendants' application was determined to strike out or until further order. 7 The defendants submitted that the plaintiffs have had a contumelious disregard for the rules. They also submitted prejudice by the delay. On 6 August 1994 Mr John Foran (the tenth defendant) was involved in an accident which has rendered him brain damaged and a quadriplegic. Further, the defendants submitted they have already expended in excess of $50,000 in legal costs and disbursements to date. 8 From the foregoing history and examination of the correspondence passing between the parties there has not been any inordinate or contumelious delay on behalf of the plaintiffs. There has been delay on behalf of the defendants' camp particularly in responding to the plaintiffs' request for their consent to the filing of a further amended statement of claim. On 14 October 1998 the defendants consent was sought to the filing of the further amended statement of claim and the plaintiffs sent numerous reminder letters. They waited until May 1999 (some 7 months) before filing the notice of motion seeking leave to file a further amended statement of claim. This motion had already been on foot for some months prior to the defendants took the step of filing the motion currently before the court. In relation to prejudice, Mr Foran is one of many defendants. He was a director and board member and was sued in that capacity. The importance of his evidence is not known, nor whether he would have been able to give any evidence relevant to the proceedings before his unfortunate accident. Also in relation to costs , the defendants have elected to run the litigation in a certain manner and this has incurred extra costs. For example instead of stalling the plaintiffs' attempts to proceed with the litigation it may have been more productive for them to make a decision as to whether they would consent to the amendments. It is my view that the proceedings should not be struck out for want of prosecution. The law in relation to summary judgment 9 Part 13 r 5 says: "(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) no reasonable cause of action is disclosed; (b) the proceedings are frivolous or vexatious; or (c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings." 10 In a recent decision, Air Services Australia v Zarb (NSWSC unreported, 26 August 1998) Rolfe AJA found it useful to remind himself of the highly demanding test imposed on a party seeking summary judgment. His Honour referred to Dey v Victorian Railway Commissioners (1948-49) 78 CLR 62; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Webster & Anor v Lampard (1993) 177 CLR 598. I have reproduced some of the passages quoted in Zarb. 11 In General Steel Barwick CJ, who heard the application alone stated: "Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed." 12 Barwick CJ also said: "It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of cause of action - if that be the ground on which the Court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; 'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; be manifest that to allow them' (the pleadings) 'to stand would involve useless expense." 13 In Webster Mason CJ, Deane and Dawson JJ reinforced the rigorous testing stating, at p 602: "The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried."' 14 According to Rolfe AJA in Zarb: "The demanding nature of the test is in no way lessened in circumstances where there are the potential for difficult factual and legal issues to arise. Rather, as the decision in Webster made clear, it is heightened: see also Wickstead & Ors v Browne (1992) 30 NSWLR 1 and Esanda Finance Corporation Limited v Peat Marwick Hungerfords (1997) 188 CLR 241." 15 The defendants submitted that the statement of claim offends almost all the known principles of pleading. Counsel for the defendants was asked to point to some. None were elicited. I have carefully examined the statement of claim, and am unable to agree with the defendants' view. The defendants submitted that some of the causes of action are statute barred. That may be so but that is a matter which will be taken into consideration when the issue of whether leave should be granted to file the further amended statement of claim is dealt with. Clearly some of the causes of action pleaded in the further amended statement of claim are not statute barred. 16 The defendants relied on Part 20 r 5 of the SCR which states: "Duration of leave or consent (1) Subject to Part 2 r 3 (which relates to the extension and abridgment of time), where the Court makes an order giving a party leave to amend a document, then, if the party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, before the expiration of 14 days after the date on which the order is made, the order shall cease to have effect. (2) Subject to Part 2 r 3, where, at the request of a party, each other party gives consent to amend a document, then, if the requesting party does not amend the document in accordance with the consent or consents before the expiration of 14 days after the date on which the consent or the first of the consents is given, the consent or consents shall cease to have effect." 17 The defendant submitted that when the statement of claim was struck out firstly by Master Greenwood and later when Master Malpass struck out the amended statement of claim there were no proceedings on foot. Rather what was left was only a "husk or shell". According to the defendants, as the further amended statement was filed just over two months out of time the order of Master Malpass ceased to have effect. 18 The action for malicious prosecution remained on foot. It is debatable whether they were struck out by Master Malpass. Those paragraphs of the statement of claim were never struck out by Master Greenwood. The plaintiff relied on Part 1 r 12 SCR to avoid the consequences of failing to comply with a time requirement. Part 1 r 12 provides that "The court may dispense with compliance with any of the requirements of the rules, either before or after the occasion for compliance arises." It is my view that in accordance with Part 2 r 3, the plaintiff should be granted a further extension of time in which to file the statement of claim and I grant an extension to file the further amended statement of claim up to and including 6 November 1997. The case should proceed on its merits. It is my view that the time for filing the further amended statement of claim should have been extended up to an including 6 December 1997 pursuant to Part 2 r 3 of the SCR. 19 The notice of motion is dismissed. Costs are discretionary. Costs should follow the event. The defendants are to pay the plaintiffs' costs. The plaintiffs should now proceed with their motion to further amend the amended statement of claim. 20 The orders I make are: (1) The defendants' notice of motion filed 6 September 1999 is dismissed. (2) The defendants are to pay the plaintiffs' costs. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.