New South Wales Supreme Court CITATION : CLARKE v GARLING & GENEV & 1 OR [2002] NSWSC 968 FILE NUMBER(S) : SC 12825/93 HEARING DATE(S) : 14 October 2002 JUDGMENT DATE : 17 October 2002 David Graham Clarke (Plaintiff) PARTIES : Jonathon Garling and Sarah Genev (First Defendants) Pambula Pty Limited (Second Defendant) JUDGMENT OF : Hulme J at 1 LOWER COURT Supreme Court (Master) JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Master Harrison JUDICIAL OFFICER : Mr LM Morris QC with Mr KP Smark COUNSEL : (First Defendants) Mr IG Harrison SC (Second Defendant) SOLICITORS : Abbott Tout (First Defendants) Wotton & Kearney (Second Defendant) DECISION : Appeal dismissed. - 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HULME J Thursday, 17 October 2002 No: 12825/93 DAVID GRAHAM CLARKE v JONATHAN GARLING AND 2 ORS JUDGMENT 1 HULME J: These Reasons arise out of an appeal against a decision of Master Harrison refusing to dismiss, on the grounds of want of prosecution, the First Defendant's Cross-Claim. 2 According to the Plaintiff's claim he was injured on 26 April 1992 while a visitor at residential premises owned by the Second Defendant, Pambula Pty Ltd and leased to the First Defendants, Jonathon Garling and Sarah Genev. These parties cross-claimed against each other seeking indemnity and contribution. 3 In October 1997 the hearing of the Plaintiff's claim, or the taking of evidence of commission in relation thereto, commenced in London, before Justice Levine. A week later, the Plaintiff's claim was settled on terms which involved, so I was informed, the First Defendants and the Second Defendant contributing equal amounts to the Plaintiff but on terms that their rights to prosecute their Cross-Claims against each other were reserved. On 20 November 1997 consent orders reflecting the settlement were entered in Sydney. 4 There followed, between March and June 1998, six letters between the Solicitors for the Defendants, five from the Solicitor for the Applicant and one from the Solicitors for the Respondent. There was agreement, at least in principle, to discovery and interrogatories. The last two letters were from the Solicitor for the Applicant. On 30 April 1998 he wrote consenting to interrogatories and discovery and seeking answers to a request for interrogatories which had been submitted in mid March. On 30 June, he wrote saying, inter alia,:- "Our client considers that it is imperative that the Cross-Claims proceed without further delay. As we have an agreement that mutual discovery will take place and that interrogatories will be exchanged and answered between our respective clients, we enclose a Consent Order for signature by you. Would you please return this document to us at your earliest convenience so that we can arrange for filing." 5 The letter was met with a deafening silence. Both sides did nothing. In about January 2001, the current Solicitor for the Respondent was instructed to brief Counsel to advise in relation to the Cross-Claims which advise was forthcoming on 29 August 2001. It was not until 28 September 2001 over three years since the last communication, that the Solicitors for the Respondent wrote to the Solicitors for the Applicant indicating that there were now instructions on the Respondent's side to seek to have the Cross-Claims listed. 6 On 22 March 2002 the application to dismiss the proceedings for want of prosecution was filed. 7 It is, I think, unnecessary for me to refer, other than very briefly, to some further matters which are recorded in the judgment of the Master. Both parties had fully prepared their cases for hearing in London in 1997 and there are photographs of the premises taken a few weeks after the accident which were marked as exhibits in that hearing. The memories of a significant number of those who could give evidence as to events are recorded in the form of statements or evidence given in the London proceedings. There seemed to have been some records made in 1991 and June and July 1992 as to the condition of the premises or the relevant part thereof. 8 There is in addition evidence that a Elsa Hill, a Director of the Second Defendant is now too ill to give evidence but there is nothing to suggest that her evidence would be of any particular significance. There is no other evidence of prejudice occurring due to the passage of time or events since the commencement of proceedings, the hearing in London, or 30 June 1998. 9 In the course of her Reasons, the Master observed:- "If the First Defendant's Cross-Claim is dismissed, the First Cross Defendant will be prejudiced as it will have no right to indemnity and contribution should the Second Defendant decide to pursue its claim. The Second Defendant's Cross-Claim, which arises from the same facts and circumstances, would proceed yet the First Defendant would be denied its rights under their Cross-Claim." 10 It was common ground before me that during the course of the hearing before the Master, the Second Defendant had agreed that if its application to have the First Defendant's Cross-Claim dismissed was successful, the Second Defendant would abandon its own Cross-Claim. This concession means that the Master's decision was influenced by a misapprehension. Thus if it is necessary before I can exercise the Court's discretion de novo, that I be satisfied that the Master's was affected by error, I am so satisfied. 11 However, the principal difficulty which the Second Defendant faces lies in the principles by which the discretion to dismiss proceedings for want of prosecution has been exercised. The Second Defendant did not suggest they were not adequately summarised for present purposes in the decision of Hoser v Hartcher [1999] NSWSC 527 from which the Master quoted at some length. Except possibly where a defaulting party's conduct has been far grosser than the conduct here, the Court looks principally to the question of prejudice which the moving party may have suffered from the want of prosecution. Furthermore, the power to dismiss must be considered against the background that "the object of courts is to decide the rights of parties, and not to punish them for mistakes they make in the conduct of their cases" – Cropper v Smith (1884) 26 Chancery Division 700 at 710 and "that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim" – Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146 at 154. 12 In the proceedings before me but not, as I understand it, before Master Harrison, the Second Defendant sought to pray in aid the terms of Part 1 Rule 3 of the Supreme Court Rules, a Rule which did not exist when the principles applicable to applications such as this were first laid down. The Rule provides:- "The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such proceedings." 13 I do not deny that in applications such as this some weight should be given to that Rule. That was the approach of the Court of Appeal in Securum Finance Limited v Ashton & Anor (2001) Chancery 291 in the case of a rule which, though in different terms, was clearly inspired, at least in part, by similar aims. The difficulty from the Second Defendant's point of view is that in addition to the "quick and cheap" reference the Rule still contemplates the Court trying to do justice. The considerations which had led the courts over the years to exhibit reluctance to dismiss proceedings for want of prosecution are inspired by what is seen as injustice in dismissing claims other than on their merits merely because a claimant has been dilatory unless that dilatoriness has imposed significant injustice on the opposing party, if the claim were allowed to proceed. 14 While I deprecate the delay of which the First Defendant was guilty and, were they allowed to intrude, considerations of general deterrence against such delay would argue strongly in favour of allowing this appeal, the proper application of the principles relevant in this area means that the Second Defendant's application should be dismissed. 15 Costs were not argued. The Master made costs of the application before her, costs in the cause but given that the proceedings before me are an unsuccessful appeal, it seems to me that, subject to any arguments which may be put, the proper order is that the Second Defendant pay the First Defendants' costs of the proceedings before me. ******************************************************************* Last Modified: 10/31/2002 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.