Citation: Gill v Eatts & Anor; Gill v ABC & 2 Ors [1999] NSWSC 1056
Court: Supreme Court of New South Wales, Common Law Division (Defamation List)
Date: 27 October 1999
Judge(s): Levine J
Background
The plaintiff was a medical practitioner associated with Chelmsford Private Hospital. He commenced two defamation actions in 1986: one against a journalist and a newspaper publisher arising from an article in The Weekend Australian, and another against the Australian Broadcasting Corporation and associated individuals. Both actions concerned allegations that an inquest had found a prima facie case of criminal negligence against him in connection with a patient's death.
The actions proceeded through their early stages with some regularity. However, in 1989 the plaintiff made a deliberate decision to stand the proceedings out of the Defamation List pending the outcome of the Royal Commission into Deep Sleep Therapy. The Royal Commission concluded in late 1990, and some correspondence between solicitors followed into August 1991. After that point, the actions lay dormant for approximately six years and eight months, until the Supreme Court's Registry listed them in a Dormant Causes callover in April 1998.
The defendants applied to dismiss both actions for want of prosecution. The plaintiff opposed the applications, relying on affidavit evidence from his solicitor and his own affidavit, and was cross-examined on the latter.
Legal Issues
- Whether the plaintiff's delay in prosecuting the two defamation actions was inordinate and inexcusable.
- Whether that delay caused, or was likely to cause, serious prejudice to the defendants.
- Whether the actions should be dismissed for want of prosecution.
Decision
Levine J found that the delay from August 1991 to April 1998 was both inordinate and deliberate. The plaintiff had made conscious tactical choices not to prosecute the defamation proceedings, seeking to avoid forensic risks that active prosecution might have created in parallel proceedings, including criminal matters, disciplinary proceedings, the Royal Commission, and other civil actions.
His Honour did not accept the plaintiff's oral evidence that he had genuinely intended to prosecute the actions and would have done so independently of the Dormant Causes callover. The court found the plaintiff's explanations for the delay not credible, and characterised his conduct as a series of deliberate choices to secure tactical advantages across multiple sets of proceedings.
On prejudice, Levine J acknowledged that the defendants' prejudice was not to a very great degree. However, he found that whatever prejudice existed as at 1989 had been further aggravated by the prolonged, deliberate inactivity that followed, and was not ameliorated by the plaintiff's response to the defendants' complaints about access to documents and records, which was described as "curiously equivocal."
The court also noted, without deciding the point, that the plaintiff's conduct could amount to an abuse of process consistent with the principles discussed by the House of Lords in Grovit v Doctor & Ors (1997) 1 WLR 640. Taken together, the inordinate and inexcusable delay, the deliberate tactical choices, and the resulting prejudice were sufficient to warrant dismissal of both actions.
Orders Made
- Both defamation actions dismissed for want of prosecution.
- The plaintiff ordered to pay the defendants' costs of the actions and of the applications.
- Exhibits returned to the second defendant (Nationwide News Pty Limited).
Key Takeaways
- Deliberate tactical decisions to suspend prosecution of proceedings, made to avoid forensic risk in parallel litigation, will not excuse prolonged inactivity when a court later considers a want-of-prosecution application.
- A gap of nearly seven years between the last steps taken in proceedings and any revival of activity is likely to be treated as inordinate delay warranting scrutiny of the plaintiff's bona fides.
- Where a plaintiff cannot give credible evidence of a genuine ongoing intention to prosecute, the court may decline to accept explanations for delay based solely on affidavit assertions.
- Prejudice to defendants need not be extreme or overwhelming; even moderate prejudice, aggravated by the passage of time caused through deliberate inactivity, can be sufficient to support dismissal.
- Without deciding the point, Levine J noted that deliberately withholding prosecution for tactical advantage across multiple sets of proceedings may in appropriate cases amount to an abuse of process, consistent with Grovit v Doctor & Ors.
Legislation and Cases Referenced
Cases:
- Grovit v Doctor & Ors (1997) 1 WLR 640 (House of Lords)
Legislation:
No specific legislation was cited in the judgment text provided.