Supreme Court New South Wales Medium Neutral Citation: Christopher George Murtough v State of New South Wales [2015] NSWSC 158 Hearing dates: 5 March 2015 Date of orders: 05 March 2015 Decision date: 05 March 2015 Jurisdiction: Common Law Before: Wilson J Decision: Orders made as per paragraph 19 Catchwords: APPLICATION FOR DISMISSAL – want of prosecution – plaintiff's ill health Category: Procedural and other rulings Parties: Christopher George Murtough (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: No appearance for the Plaintiff Stewart (Defendant) File Number(s): 2009/20043 Ex TEMPORE JudgmenT 1. On 10 February 2006 an interim apprehended violence order was issued ex parte against the plaintiff, Mr Murtough, by a Local Court magistrate. That apprehended violence order was issued for the protection of the plaintiff's wife and her children, one of whom was a minor at the time. On that same day and having been served with a copy of the interim apprehended violence order, the plaintiff is alleged to have breached it and was subsequently arrested and charged by police. It is that incident that gives rise to all that followed and the proceedings now before the Court. 2. Between 10 February 2006 and 18 March 2008 there were a further three occasions on which the police alleged that the plaintiff had breached the apprehended violence orders against him and which resulted in his arrest. The plaintiff contends that the arrests were unlawful and this represents part of his complaint against the State. 3. Although the Local Court magistrate had made orders in relation to the non-publication of material which could identify the protected person, there were articles in the Daily Telegraph concerning the plaintiff's arrest and the circumstances of it, and the plaintiff appears to lame police for providing the information to the media which was subsequently published. The plaintiff contends that the publication was defamatory. and that has resulted in his action concerning defamation before the Court. 4. On 11 February 2009 Mr Murtough filed a statement of claim, at least part of which appears to refer to defamation actions which were statute barred. The statement of claim was supported by fairly detailed particulars alleging the harm that Mr Murtough says he has suffered at the hands of the police, and seeking damages for that harm. 5. Since filing the originating process and the material in support, there has been no evidentiary material placed before the Court by the plaintiff with respect to the substantive claims and no serious action has been taken by him to move the matter through the court system and to have his claims determined. 6. It appears that the failure to prosecute the claim is related to the plaintiff's ill health. There is some material before the Court, by no means comprehensive and by no means capable of addressing his failure to prosecute his claims, but there is some material which substantiates the fact that Mr Murtough suffers from stage 4 chronic lymphocytic leukaemia together with a serious melanoma condition. There is some medical evidence and some correspondence which suggests he has been repeatedly hospitalised during the period in which these proceedings have been before the Court and has repeatedly had to undergo surgery and other debilitating treatment for his conditions. 7. The defendant does not dispute the plaintiff's ill health and I do not doubt, on the material before the Court, inadequate as it is, that the plaintiff is in fact very seriously ill and his conditions would have at least a significant impact on his ability to prosecute these proceedings. 8. The medical evidence does not satisfy me that it prevents him from prosecuting the proceedings. The orders from the Registrar that the plaintiff file and serve medical evidence going to his capacity to appear before the court and prosecute the matter have been repeatedly breached and no such material has ever been filed. There is some correspondence with the court file which suggests that the plaintiff had on occasion sought to provide such material but it has not been provided to the Court or the defendant. 9. There have been many, many listings of the matter before the Court. At an early stage the plaintiff was represented by a firm of solicitors and subsequently by a second firm of solicitors, but he has for some time been unrepresented, it would appear since October 2011, and since that date that there has generally been no appearance before the Court from Mr Murtough. 10. Since October 2011 nothing has really happened in these proceedings other than the matter being mentioned by the State appearing as defendant but with no appearance of the plaintiff and no satisfactory explanation for his failure to attend. Some medical evidence has been provided which suggests that as at March 2014 the opinion of those treating the plaintiff, one being Professor Dodds, was that the plaintiff had a life expectancy of about twelve months. Life expectancy is, of course, notoriously difficult to predict with any accuracy and is no more than, at best, an informed guess. 11. Ms Stewart fairly advises the Court from the bar table that she has been in communication with the plaintiff and that, notwithstanding the prognosis from Professor Dodds, the plaintiff himself believes that he will be well enough to prosecute this case and that he is vehemently opposed to the matter being dismissed. 12. The defendant has been in communication with Mr Murtough to advise him of its intention to seek a dismissal of his claim today if he did not attend and take steps to prosecute it or to provide some suitable medical evidence for his failure to do so. 13. Neither of those things has occurred and the defendant, therefore, asks that this claim, which has now been idle since October 2011 and which has not progressed at all in any real sense since 11 February 2009, be dismissed. It is an inordinate period of time for a matter such as this to be before the Court and be outstanding and particularly for nothing of any substance to have been done to advance the determination of the claim before the Court. 14. Although there is, on the basis of all the evidence, a solid basis on which to dismiss the plaintiff's claim, I am loathe to do so in circumstances where his ill health is made out and his incapacity to attend today appears, at the very least, to be highly likely to be true. 15. Ms Stewart, for the defendant, has made available to the Court some copies of email correspondence between herself and the plaintiff (MFI 2) in which the defendant advised Mr Murtough of its intention to seek a dismissal of his claim today. Mr Murtough responded, and that information is before the Court as part of the email correspondence. It is clear that Mr Murtough wishes to pursue his claim and he objects to his claim being determined in his absence. He relies upon his extreme ill health in explanation of his failure to prosecute his claim. 16. Indeed, Mr Murtough has advised the defendant that he was scheduled for surgery for cancer on 4 March 2015 at St Vincent's Hospital, that surgery requiring him as an in‑patient at the hospital for some period thereafter until perhaps 12 March 2015. He explains his failure to appear today by reference to that surgery. 17. What I propose to do is to simply adjourn the matter for an extended period and I would expect in that period that Mr Murtough's health status will become clear one way or another. Either, in accordance with Professor Dodds' prognosis, the plaintiff's condition will deteriorate as predicted, or, as the plaintiff contends, he will recover to a sufficient extent to be able to prosecute this matter. 18. Plainly, as I have said, there is an option to dismiss this claim and it is solely because of the plaintiff's very poor health condition that I don't take that step today but, should the plaintiff, having defied Professor Dodds' prognosis, fail to take steps to prosecute this matter in readiness for the next mention before the Court, I think there would be no option but to dismiss this claim for want of prosecution. 19. Accordingly, the orders that I make are these: 1. The defendant's application for the dismissal of the claim with costs against the plaintiff is refused. 2. I stand the matter over to 29 March 2016 for mention before the Registrar at 9 am on that date. Essentially, that will be something of a watch and mention to see what is happening with the plaintiff's health. My intention in giving such a lengthy adjournment is to avoid the necessity for the defendant to continue to incur costs by repeatedly coming to court and then being sent away again with nothing having occurred. 3. I make no order in relation to costs today. That can be a matter determined at the conclusion of the proceedings. ********** 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: 05 March 2015