Supreme Court New South Wales Medium Neutral Citation: Templar v Britton (No 2) [2014] NSWSC 587 Hearing dates: 6 May 2014 Decision date: 07 May 2014 Before: McCallum J Decision: Plaintiffs' claim against first and second defendants dismissed; parties to consult as to further directions to be made in proceedings against third defendant and as to costs. Catchwords: PROCEDURE - application to have proceedings dismissed for breach of directions or for failure to prosecute claim with due despatch - where barrister accepting full responsibility for recent breaches against lengthy history of delay Cases Cited: Bi v Mourad [2010] NSWCA 17 D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1 Hoser v Hartcher [1999] NSWSC 527 Templar v Britton [2013] NSWSC 1827 Category: Interlocutory applications Parties: Stephen Templar (plaintiff) Audametrics Pty Ltd (second plaintiff) Paul Britton (first defendant) Bradley Laughlan (second defendant) State of New South Wales (third defendant) Representation: Counsel: L Goodchild (plaintiffs) D R Sibtain (defendants) Solicitors: City Attorneys (plaintiffs) Hicksons Lawyers (defendants) File Number(s): 2012/393936 Publication restriction: None Judgment 1HER HONOUR: Before the Court is an application brought by the defendants to have these proceedings dismissed on the grounds of a series of failures to comply with directions of the Court and, alternatively, for failure to prosecute the proceedings with due despatch. 2The determination of the application requires a detailed consideration of the course of the proceedings to date. The first plaintiff, Mr Stephen Templar, is an audiometrist and the sole director and controller of the second plaintiff, Audametrics Pty Ltd. In early 2012, Mr Templar was in contact with parents at Berkeley Vale Primary School canvassing the prospect of administering hearing tests to children at the school. The topic of those tests arose at a meeting of the Parents and Citizens Association of the school. Mr Templar's claim arises from remarks allegedly made at that meeting. Specifically, it is alleged that the principal of the school, Mr Paul Britton, who is the first defendant in the proceedings, spoke the following words: A man, Stephen Templar, has approached the school about conducting hearing tests for kids. I have discovered it is a scam. There are no details on the brochures. The company is Audametrics. 3A separate claim is made in respect of an email allegedly sent by the second defendant, Mr Bradley Laughlan, who is a Student Support Coordinator. The third defendant to the proceeding is the State of New South Wales, which is alleged to be vicariously liable for the conduct of the first and second defendants as their employer. The terms of the email sent by Mr Laughlan were as follows: I have been advised that a small number of schools on the Central Coast have been approached by Audametrics Pty Ltd to advertise Hearing and Vision tests to be conducted during school hours for a small fee. Concerns have been raised by Central Coast Area Health Services regarding the accuracy, and validity of the results of this testing. The Hunter Central Coast Region Department of Education and Communities advises that it has not and does not, in any way endorse this service. 4Each of those publications is alleged to have occurred in around May 2012. The proceedings were commenced by statement of claim filed on 19 December 2012 and apparently served on 24 December 2012. The original statement of claim attempted to plead causes of action "in defamation, contract, equity and in the general law of tort" (an amended statement of claim filed on 22 January 2013 did no more than to correct the name of the third defendant). 5The history of the prosecution of the claim since that time has been unhappy. Details of the steps taken in the proceedings up to August last year are set out in the affidavit of the solicitor for the defendants, Mr Christopher Moore, sworn 1 August 2013. In short, as at March 2013, issues raised as to the form of the pleading had not been resolved. The defendants were directed to provide an outline of their objections to the amended statement of claim in contemplation of argument in the defamation list on 6 May 2013. The plaintiffs did not serve their response to the defendants' objections until the Friday before the commencement of that list. 6After hearing argument, Nicholas J ordered the plaintiffs to file a further amended statement of claim by 4pm on 24 May 2013. A further amended statement of claim was filed and served in accordance with that order but the defendants maintained concerns in respect of the form of the pleading. The matter was listed in the defamation list again on 4 June 2013 on which occasion substantial parts of the pleading were struck out. The plaintiffs were again granted leave to file and serve an amended pleading. 7On 1 July 2013 Rothman J extended the time for that to occur and the proceedings were stood over to the defamation list on 5 August 2013. On that occasion the proceedings came before me. The plaintiffs again sought an extension of the time within which the amended pleading could be served. The defendants opposed that application, relying on the content of Mr Moore's affidavit to which I have referred. 8I determined that application in favour of the plaintiffs, for the reasons set out in my ex tempore judgment published that day. As the judgment reveals, I was under the impression that Mr Baran of counsel, who then appeared for the plaintiffs, would be briefed to settle the amended pleading, since he had informed me of the steps he had taken to bring the pleadings into good order. That was a factor in my granting the extension sought. That may be an assumption I made without adequate foundation. In any event, I extended the time within which an amended pleading could be filed to 26 August 2013 and further ordered that, if the plaintiffs failed to file and serve the amended pleading by that date, the proceedings be dismissed. 9An amended pleading was filed and served on 26 August 2013 in accordance with those orders. The letter under cover of which the amended pleading was served on the defendants stated that the pleading had been settled by Mr Roger Rasmussen of counsel. On 8 October 2013 the proceedings were re-listed in the defamation list on the application of the plaintiffs. On that occasion there was no appearance for the defendants. In their absence and on the strength of Mr Rasmussen's representation that they had been contacted and informed of the re-listing and were "absenting themselves" and that, so far as Mr Rasmussen was aware, they had taken no objection to the amended pleading, I directed the defendants to file a defence within 14 days. 10On 10 October 2013 Mr Sibtain, who appears for the defendants, appeared on an application to have that direction vacated. He explained that the defendants had been given no notice of the re-listing on 8 October 2013. An examination of the correspondence which resulted in the proceedings being re-listed confirms that contention. The order made on 8 October 2013 was set aside on that basis (over Mr Rasmussen's objection) and a timetable was put in place providing for the defendants to have an opportunity to raise objection to the pleading served on 26 August 2013. 11In due course the defendants provided detailed objections to the amended pleading. Those objections were initially set out in a letter dated 22 October 2013 in accordance with the orders made by me on 10 October 2013. They were expanded upon in careful written submission prepared by Mr Sibtain. The argument as to the objections was heard by me on 2 December 2013. Mr Sibtain did not appear on that date but the argument proceeded by reference to his written submissions. 12I determined the application on 4 December 2013: Templar v Britton [2013] NSWSC 1827. Mr Rasmussen was not present when the judgment, which was given orally, was published. The orders made on that occasion were as follows: 1. Pursuant to rule 14.22 (2) of the Uniform Civil Procedure Rules, that the Second Further Amended Statement of Claim filed 26 August 2013 be verified in accordance with the rules in Division 4 of Part 14 of the Rules. 2. That the plaintiff provide particulars of the republication pleaded in paragraph 8 of the pleading in accordance with these reasons. 3. That the plaintiff provide particulars of the republications pleaded in paragraphs 12 and 13 of the pleading in accordance with these reasons. 4. That the plaintiff provide particulars of the other claims in the proceedings in response to the complaints made in paragraphs 23 to 37 of the defendants' written submissions. 13The judgment reveals that Mr Camilleri appeared on behalf of the plaintiffs on that occasion. It may be seen that order 4 required attention to Mr Sibtain's written submissions to which I have referred. Paragraphs 23 to 37 of those submissions dealt with proposed claims for misleading and deceptive conduct and unconscionable conduct. The reason for framing the order in those terms was that, as the judgment records at [27], the defendants' complaints in respect of that part of the pleading had not been addressed in any detail in oral submissions and had not been responded to by Mr Rasmussen. 14On 20 January 2014 the plaintiffs wrote to the defendants in purported compliance with those orders. As to orders 2 and 3, the letter said: 2. In so far as particulars of the re-publication pleaded in paragraph 8 of the SFASOC are required we advise: (a) attached herewith is a schedule of the audience to whom the re-publication was made. The contact details of the persons set out in the schedule is within the knowledge of the first and third defendants. The plaintiff is not aware of the contact details of the persons on the schedule. (b) In so far as the contents of the re-publication are required attached hereto is a copy of the documents constituting the re-publication. 15The terms of the letter were plainly nonresponsive as to orders 2 and 3 made on 4 December 2013. There was no response or attempted compliance with order 4 whatsoever. The defendants wrote in response to that letter to complain of the purported compliance with my orders. Ultimately, the proceedings came before BeechJones J in the February defamation list when his Honour made orders in contemplation of any application the defendants may see fit to bring being determined in the March list. 16In the March defamation list BeechJones J heard the defendants' application to have the proceedings dismissed. His Honour made the following orders: 1. Paragraphs 14 to 20 and the claim for the particulars of exemplary damages in paragraph 21 of the second further amended statement of claim be struck out. 2. Order the plaintiffs to file and serve a third further amended statement of claim consistent with order 1 and verified by them within 21 days. 3. Extend the time for compliance by the plaintiff with order 2 made by McCallum J on 4 December 2013 a further 21 days. 4. Order the plaintiffs to provide any further particulars including particulars of the calculation of damages specified under the heading "General Actual and Special Damages" in paragraph 21 of the Second Further Amended Statement of Claim, within 21 days hereof. 5. The plaintiffs pay the defendants' costs of the application determined today. 6. The plaintiffs file and serve within14 days any affidavit material they wish to rely on in response to the application that those costs be payable forthwith. 7. The parties exchange outlines of submissions on the question of when those costs should be paid within 21 days, such submissions to be longer than two pages. 8. The parties have liberty to apply to fix a time for brief oral submissions on the question as to when those costs are payable. 17Extraordinarily, orders 2 and 4 were not complied with and my order 2 was not complied with within the extended time allowed under order 3 made by his Honour. 18Section 61(3) of the Civil Procedure Act provides: (3) If a party to whom such a direction has been given fails to comply with the direction, the court may, by order, do any one or more of the following: (a) it may dismiss the proceedings, whether generally, in relation to a particular cause of action or in relation to the whole or part of a particular claim, (b) It may strike out or limit any claim made by a plaintiff, (c) it may strike out any defence filed by a defendant, and give judgment accordingly, (d) it may strike out or amend any document filed by the party, either in whole or in part, (e) it may strike out, disallow or reject any evidence that the party has adduced or seeks to adduce, (f) it may direct the party to pay the whole or part of the costs of another party, (g) it may make such other order or give such other direction as it considers appropriate. 19The defendants submit that the plaintiffs have breached directions of the Court as follows. First, it is submitted that by filing a defective pleading the plaintiffs failed to comply with my order made 5 August 2013. I do not accept that submission. In my view, the order was complied with in terms. However, I would accept that the deficiencies later found by Beech-Jones J and the matters dealt with in my December judgment are relevant to an assessment of the despatch with which the plaintiffs have prosecuted their claim. 20Secondly, it is submitted that there has been a breach of my directions 1 to 4 made on 4 December 2013. The first order required the plaintiffs to verify the pleading. In terms, the order required verification of the whole of the pleading. The terms in which the pleading was verified were as follows: I, Stephen Templar, hereby affirm: 1. I am the first plaintiff and a director of the second plaintiff. 2. I believe that the allegations of fact set out in paragraphs 6 in the second further amended statement of claim filed 26 August 2013 are true. 3. The basis for my belief is that following the meeting referred to in paragraph 6 of the said second further amended statement of claim it was reported to me that a person who had been present at the said meeting identified me personally by name and referred to the second defendant as being "his company" (referring to Audametrics Pty Ltd). 4. With respect to the balance of the second further amended statement of claim the basis for my belief is the contents of documents which I have examined, conversation with members of the Berkeley Vale Public School community, my knowledge of what occurred prior to the said meeting and cancellations of testing sessions arranged prior to the said meeting. 21In terms, the verification was directed only to paragraph 6 of the statement of claim and, technically, that was not a complete compliance with my order. However, as observed by Beech-Jones J in his Honour's judgment given 5 March 2014, the breach is of no moment and it could be understood that the plaintiffs would have apprehended the order to be directed specifically or most importantly to paragraph 6 of the pleading. 22Further, as the form of the verification set out above reveals, the content of the affidavit was directed to the correctness or truth of the whole of the pleading, although in terms the prefatory words of the verification were not. I would accordingly regard any breach of my order 1 as being of no continuing significance. 23As to order 2, there is no doubt that the particulars provided on 20 January 2014 did not comply with the order and plainly misapprehended the import of that part of my judgment. That has now been rectified in the form of the pleading served after midnight yesterday. 24As to order 3, the judgment of Beech-Jones J given in March 2014 reveals that his Honour heard argument about the need for compliance with that order. His Honour recorded that Mr Rasmussen expressed "puzzlement" at the order. His Honour made certain observations about that submission to which I would add these. First, it is plain from my judgment given in December that if the position was thought to be clearly stated in the form of pleading then under consideration, that clarity was certainly not brought home to me by Mr Rasmussen's submissions made in December. Secondly, as BeechJones J has observed, if the plaintiffs wished to contend that my order was unnecessary because the position was always clear, they had only to say so. The difficulty arises from the fact that the plaintiffs never engaged with the terms of the oral judgment, the order made or the correspondence from the defendants in respect of the failure to comply with the order. It is that failure to engage with the processes of the court which represents the real vice of the breaches in this case. 25As to order 4, it is plain that there was never any compliance by the plaintiffs and it was for that reason Beech-Jones J struck out those claims (the claims in misleading or deceptive conduct and unconscionable conduct) when his Honour considered the defendants' application in March of this year. 26As to the orders of Beech-Jones J the defendants contend, and there is no dispute, that there has been a breach of order 2 requiring the plaintiffs to serve the third further amended statement of claim within 21 days and a breach of order 4 requiring the provision of particulars of the special damages claim. Order 3 made by his Honour did not in terms direct the plaintiffs to do anything but only extended the time for compliance with my order 2 made in December 2013. As already explained, that order was not complied with within the further time allowed but the particulars ordered have now been provided. 27It follows that there have been some breaches of directions of the Court and, accordingly, the power under s 61(3) is enlivened. As already noted the present application is brought on the alternative basis of r 12.7, which provides: 12.7 Dismissal of proceedings etc for want of due despatch (1) If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit. (2) If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit. 28Mr Sibtain submitted that whereas r 12.7 requires the Court to balance the interests of the parties and to pay close attention to any prejudice to a plaintiff of removing the possibility of prosecuting a viable claim, the power under s 61(3) is enlivened by a breach on the part of the plaintiff for which the section provides specific sanction. It may be doubted whether in practice, however, there is much difference in the proper approach to the exercise of those two separate powers. As Mr Sibtain readily acknowledged, the Court is always required to have regard to the mandatory considerations set out in that part of the Act most importantly including the requirement under s 58 to seek to act in accordance with the dictates of justice. 29It is necessary to give consideration to the explanation offered by the plaintiffs for the breaches to which I have referred. 30Mr Rasmussen swore an affidavit yesterday in advance of the determination of the application. Having regard to the importance of his explanation I think it is necessary to set the terms of the affidavit out in full, as follows: 1. I am counsel instructed by the solicitors for the plaintiffs. 2. Between the afternoon of the 18 December 2013 and 18 January 2014 I was on leave and did not check my emails or correspondence or chambers' telephone messages. 3. I did not send to my instructing solicitors the written submissions which were given to me at the hearing of argument before Justice McCallum on 2 December 2014 until 4 March 2014 because I could not find them. 4. I appeared on behalf of the plaintiffs before his Honour Justice Beech-Jones in the March 2014 Defamation List in respect of this matter and was present when his Honour delivered reasons for judgment and made orders. 5. Notwithstanding the orders made on 5 March 2014 I did not attend to the re-drafting of the plaintiffs' claim because of pressure of work. 6. The non-compliance with the orders made by the Court on 5 March 2014 was not the fault of the plaintiffs, or my instructing solicitors, but mine. 31The plaintiff's solicitor, Mr Williams, also swore an affidavit directed to the explanation for the breaches. Mr Williams's affidavit speaks to further history of the proceedings, importantly including the fact that the end of the involvement of the first barrister involved in drafting pleadings, Mr Harkin, was due to the fact that he did not renew his practising certificate beyond 30 June 2013. It was in those circumstances that Mr Baran was briefed. 32As to more recent events Mr Williams notes several matters. One is that the proceedings were not listed in the November or December 2013 "Directions List". That is a confusing statement in light of the fact that, as I have already recorded, the proceedings were before me in the December Defamation List and the fact that, during that week, I determined the defendants' objections to the fifth iteration of the pleadings. 33It is not entirely clear from Mr Williams' affidavit the extent to which he is aware of the events of that week. It is plain from his letter dated 20 January 2014 that he was aware that orders were made which required steps to be taken by the plaintiffs. Mr Williams further states: 20. Since being instructed in April, 2013 the plaintiffs have attempted to provide pleading acceptable to the defendants. I am informed by Mr Rasmussen that the plaintiff's claim and particularisation of damages is complex and raises many issues. 21. I am reliant upon counsel to amend the pleadings. 34Whilst those statements do not provide any satisfactory explanation for the plaintiff's failure to comply with the orders of the Court they do tend to reveal that Mr Williams was, whether reasonably or otherwise, heavily relying on Mr Rasmussen in respect of the conduct of the proceedings. 35Mr Sibtain submitted that the explanations provided were inadequate and that the absence of any reasonable explanation for the failure to comply with the orders of the Court is a matter militating in favour of granting the relief sought by the defendants. He submitted that there was an absence of any evidence from which I could confidently conclude that part of the responsibility for the breaches does not lie at the feet of either the solicitor, Mr Williams, or the plaintiffs themselves. 36I accept without equivocation that the explanations are inadequate. However, the material to which I have referred has led me to two conclusions of fact which are important in the present application. The first is that it is plain that Mr Williams was relying on Mr Rasmussen in respect of the conduct of the proceedings. The second is that, after considering the material carefully, I am not persuaded that there is any basis for apprehending that any real responsibility for the default lies at the feet of the clients. 37Ms Goodchild, who appears for the plaintiffs on present application, submitted that the breaches of the orders of the Court should not be regarded as contumelious. She noted that term entails a notion of deliberate rudeness or contemptuous disregard for the processes of the Court. Whether or not contumely is the right label for the conduct I have outlined there has, in my view, been a wholesale failure to engage with the processes of the Court which reveals an arrant disregard for the importance of doing so. 38The affidavit sworn by the barrister read in the context of the other material before me reveals the following. After appearing for the plaintiffs to resist an application to have parts of the pleading drafted by him struck out, the barrister did not appear on the occasion of publication of the judgment determining that application. It is not compulsory for counsel to appear for the purpose of taking judgment. But plainly the barrister needed to inform himself of the content of the judgment and the orders made on that occasion in order to give proper advice to Mr Williams, so as to enable Mr Williams to comply with the orders of the Court. That is particularly so in circumstances where, as I have observed, the evidence reveals that Mr Williams was relying on Mr Rasmussen for that purpose. 39The ex tempore judgment I gave was sent to the parties on 11 December 2013. Mr Rasmussen's affidavit states that he was away and did not check emails or other forms of correspondence between 18 December 2013 and 18 January 2014. The affidavit does not explain why within the week before he went away Mr Rasmussen did not explain to Mr Williams what needed to be done in order to comply with the orders of the Court. 40As already noted the orders of the Court in terms required the plaintiffs to attend to the content of Mr Sibtain's written submissions. Mr Williams did not have the submissions for the simple reason that Mr Rasmussen "could not find them". No other steps, so far as the evidence reveals, were taken to enable compliance with orders of the Court. The evidence accordingly establishes that, at the time Mr Rasmussen went on leave, failure to comply with the orders of the Court appeared inevitable. 41There is no evidence as to any explanation to the solicitor as to how to comply with orders 2 and 3. Order 2 reflected the determination of a point which, whilst well-known to defamation practitioners, entails a concept of relative complexity to a person who does not practice regularly in that field, namely, the importance of identifying how it is said that a person not named in a defamatory publication was in fact defamed by that publication and how such a claim is to be properly pleaded. 42I have already recorded my views in respect of Mr Rasmussen's puzzlement as to how to comply with order 3. The short point is that he never engaged with the need to comply with that order. 43Mr Rasmussen's affidavit asserts that the explanation for the failure to comply with the orders of Beech-Jones J was "pressures of work". However, as has been submitted ably and with some force by Ms Goodchild, compliance with those orders was not a large task, leaving aside order 4 (the failure to comply with which has already been dealt with by Beech-Jones J). 44I would accept, as submitted by Mr Sibtain, that the barrister's approach to compliance with the orders reveals an attitude of aiming to complete tasks before him in accordance with his own timetable leaving any temporal intersection with the orders of the Court to coincidence. It should go without saying that that is not an acceptable approach to compliance with the orders of the Court. 45However, the difficulty with the present application is that, as I have already noted, there does not appear to be any basis for laying the responsibility for those events at the feet of the plaintiffs. 46The parties were not in dispute as to the principles to be applied in determining the present application. They are summarised in the judgment of Simpson J Hoser v Hartcher as follows: It seems to me that the following principles are relevant to the exercise of the discretion to strike out for want of prosecution. The list is not intended to be exhaustive: (1) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed: Stollznow v Calvert (1980) 2 NSWLR 749 at 751F (Court of Appeal); Razvan v Berechet unreported Court of Appeal, 23 February 1990; Vilo v John Fairfax and Sons Ltd unreported, 19 November 1995, per Sperling J; (2) the discretion should be exercised only in a clear case where it is manifestly warranted; Razvan per Kirby P; as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: Stollznow v Calvert at 751 D; (3) any explanation offered by the plaintiff for the delay in proceeding must be considered: Burke v TCN Chennel Nine Pty Ltd unreported, 16 December 1994, per Levine J; (4) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant: Stollznow, p73. (5) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. It the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complin of the plaintiff's earlier inactivity: Calvert v Stollznow, 1 April 1980, Ritchie's Supreme Court Procedure, (NSW) Vol 2, para 13, 022, per Cross J (at first instance); and in the Court of Appeal per Moffit J, p753; Vilo, p10; McBride v Australian Broadcasting Corporation unreported 6 November 1998, per Levine J; Bass v TCN Channel Nine Ltd unreported 25 July 1997, per Levine J; Hart v Herron unreported, 3 June 1993, Court of Appeal per Priestly JA; (6) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor: Calvert v Stollznow, per Cross J; Burke v TCN. But in my view, this circumstance must be treated with some caution. The weight that can be accorded to that delay is limited. Where an action is commenced within the period provided for by an applicable statute of limitations, it would not ordinarily be appropriate to take that period into account. However, if a plaintiff has delayed significantly in the commencement of the proceedings and that delay is followed by further lethargy in the advancement of the proceedings, the effect of the initial (but permissible) delay is compounded. The real question is not the length of the delay, but the impact that delay has upon the defendant's capacity to properly to defend the plaintiff's claim. That will be a question of fact in each case. While there may be some prejudice presumed by reason of the passage of time, much will depend upon the nature of the proceedings, and the identification of the issues involved in the litigation. Where, for example at the close of pleadings it can be seen that there are disputed questions of fact dependent upon the oral evidence of witnesses, or their recollections, the prejudice will plainly be greater than in cases that depend essentially upon the application of legal principle to largely undisputed facts, or upon disputed questions of fact that will be resolved by reference to documentary or other objective evidence not likely to be affected by the effluxion of time; (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or deaths of witnesses, the fading of their recollections, or destruction of records, are some obvious examples of the kind of prejudice that might arise; (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case: Burke, supra. Such an inference may be contra indicated by explanatory evidence; in this regard the plaintiff's personal responsibility for the delay is an important factor as is any explanation provided for the delay: McBride v ABC unreported, 6 November 1998, per Levine J; (9) what the defendant has (or has not) done by way or preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice cause or presumed by reason of delay: McBride v ABC unreported, 6 November 1998, per Levine J; (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out: Razvan, per Kirby P; (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: Razvan, per Kirby P. The ultimate aim of a court is the attainment of justice: Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146. To adapt the words of the High Court in that case, discretions such as that presently invoked ought not to be used to supplant the overall aim of the attainment of justice. 47As more recently noted by the Court of Appeal, since the date of that decision Part 6 of the Civil Procedure Act has come into force and it is necessary to pay close attention to the terms of the Act: Bi v Mourad [2010] NSWCA 17. 48The foregoing history reveals that, as submitted by Ms Goodchild, the recent breaches in themselves are not serious. I am not persuaded that those breaches of orders in themselves warrant dismissal of the proceedings. However, when the whole of the history of the plaintiffs' prosecution of their claim is considered, in my view there has been a failure to prosecute the action with due despatch which would, but for one concern, warrant dismissal of the proceedings. 49It might be said against Mr Templar that, having regard to that wholly unacceptable history, the time has come for him to be cut out of the present claim and to have his remedy, if any, against any relevant lawyers whose involvement in the proceedings has contributed to the delay. 50However, as the history I have recited shows, the delay is the result of a complex combination of events. Mr Rasmussen has very properly accepted responsibility for the recent breaches, but the significance of those breaches in the present application must be considered in the context of a complex history. Mr Rasmussen has been involved in the proceedings only since August 2013. 51A further difficulty is that, in respect of the involvement of any of the barristers to whom I have referred, there may be no cause of action that Mr Templar or the second plaintiff could prosecute, having regard to the fact that theirs is the conduct of barristers in connection with the preparation for proceedings. So far as I am aware it has not been determined whether conduct of a barrister in failing to take the steps necessary to enable his or her client to comply with a direction of the Court so as to trigger the Court's power to dismiss proceedings is protected by the immunity discussed by the High Court in D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1. But the short point is that I do not think it would accord with the dictates of justice to visit the burden of bringing forward that interesting dispute on the plaintiffs in the present case. 52Conversely, I consider that the position has been reached where the individual defendants to the plaintiffs' claims should no longer have to endure the interminable delay they have faced to date even to bring the matter to the stage of having been a properly pleaded claim against them. As already noted, the proceedings were commenced in December 2012 and there is do not a properly articulated claim on the Court file. That is a matter which undoubtedly would subject them to stress and other forms of unhappiness. Ms Goodchild noted that there is no evidence on that issue but, in my view, none is required. It is contemplated by the provisions of the Civil Procedure Act and the rules that defendants will have the allegations made against them brought forward for determination with due expedition at the suit of the plaintiff. It is expressly contemplated that a plaintiff who fails to do so may risks losing the opportunity to have the claim determined on the merits. The delay in the present case is in my view unacceptable. I acknowledge that the defendants are all jointly represented but that is not the point. The need to obtain legal representation is not the only burden of pending litigation. 53For those reasons I am satisfied that it is appropriate to dismiss the plaintiff's claims as against the first and second defendants. As against the third defendant, the State of New South Wales, the personal considerations to which I have referred do not apply and I do not think it would accord with the dictates of justice to dismiss the plaintiff's claims against it, particularly in circumstances where the defamation claim would now be time-barred. 54Regrettably what follows from that determination is that there is the need for potentially another round of argument in respect of the pleadings served after midnight yesterday. I will ask the parties to consult as to the directions that should be made to prepare for the determination of any objection to that pleading. 55I will visit upon Ms Goodchild the burden of explaining to her instructing solicitor and her clients the following matters. First, it is the responsibility of the plaintiffs and the solicitor also to prosecute the claim with due despatch, even if reliance is reasonably being placed on a barrister for that to occur. That means the plaintiffs, the solicitor and the barrister involved must all plan ahead to complete tasks as ordered by the Court. It should further be explained that the plaintiffs must be under no misapprehension that any further breach of orders of the Court will be regarded as falling at their feet and will almost certainly precipitate another application of this kind. ADDENDUM: 56I should have noted in this judgment that it is not suggested that the Court was misinformed by Mr Baran at any stage. Since publishing these reasons I have been reminded that, after he had appeared for the plaintiff on 5 August 2013, his instructions were withdrawn (contrary to his expectation) and the matter was briefed to Mr Rasmussen. Mr Baran informed my Associate of that circumstance shortly after the judgment dated 5 August 2013 was published. ********** Amendments 16 May 2014 - Typographical error Amended paragraphs: 46 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. Decision last updated: 16 May 2014