Citation: Hartigan v International Society for Krishna Consciousness Incorporated [1999] NSWSC 57
Court: Supreme Court of New South Wales, Equity Division
Date: 15 February 1999
Judge(s): Bryson J
Background
The plaintiff commenced proceedings in August 1994 seeking to set aside a deed of gift she had executed in late 1988, by which she transferred a rural property at Rosebery Creek in the Kyogle Shire to the defendant. The property had been her home and her only significant asset. She alleged the gift was made under undue influence, arising from her membership of the Hare Krishna movement, of which the defendant was the property-holding entity. The defendant, for its part, asserted it had already sold the property for $83,000 in August 1989.
By 1998, the proceedings had been on foot for nearly four years with limited progress. The defendant filed a Notice of Motion seeking dismissal for want of prosecution under SCR Part 33 r 6(2), on the basis that the plaintiff had not prosecuted the proceedings with due dispatch. Master Macready upheld that application and ordered the proceedings dismissed, with costs against the plaintiff.
The plaintiff appealed to a judge of the Equity Division. On appeal, Bryson J received fresh evidence, including an affidavit from the plaintiff and her oral evidence under cross-examination, which had not been before the Master.
Legal Issues
- Whether the proceedings should be dismissed under SCR Part 33 r 6(2) for failure to prosecute with due dispatch.
- Whether the delays were inordinate and inexcusable so as to warrant the exercise of the court's discretion to dismiss.
- Whether the defendant suffered sufficient prejudice from the delay to justify dismissal, having regard to the availability of key witnesses.
- Whether the Master's order should be set aside on appeal, given that the evidentiary foundation had materially changed.
Decision
Bryson J accepted that the proceedings had not been conducted with due dispatch, describing the delay as "inordinate" and "far out of the usual order for effective conduct of legal business." However, his Honour found that inordinate delay alone does not compel dismissal. The question is whether the delay was also inexcusable, and whether it reflected an abandonment of the claim.
The plaintiff's evidence, received for the first time on appeal, provided explanations for the delays. Critically, her lack of financial resources was intertwined with the very nature of her case: her claim was that the gift had stripped her of all her significant assets, leaving her without the means to fund litigation. Bryson J held this connection between the cause of action and the reason for delay meant the delay could not properly be characterised as inexcusable.
On prejudice, the court accepted that the defendant's position had been weakened by the passage of time. However, the two central figures in the transaction, the solicitor who prepared the documents and the president of the Murwillumbah Temple who had dealt directly with the plaintiff, remained available as witnesses. Their ongoing availability limited the weight attributable to prejudice as a reason to dismiss.
Bryson J also noted that the defendant itself had contributed to delay to some extent, and that the nature of the transaction was such that those involved could reasonably have anticipated a legal challenge from the outset. Weighing all discretionary factors, his Honour set aside the Master's order and dismissed the defendant's Notice of Motion.
Orders Made
- The appeal was allowed and Master Macready's order of 29 June 1998 was set aside.
- The defendant's Notice of Motion of 23 April 1998 was dismissed.
- The plaintiff was ordered to pay the defendant's costs of the Notice of Motion up to and including 29 June 1998.
- The defendant was ordered to pay the plaintiff's costs of the appeal.
Key Takeaways
- Inordinate delay in prosecuting proceedings does not, by itself, justify summary dismissal. The delay must also be inexcusable and suggestive of abandonment before the court's discretion to dismiss will be exercised.
- Where a plaintiff's financial hardship is directly caused by the very transaction being challenged, courts may treat that hardship as a relevant excuse for delays in funding and advancing litigation.
- Prejudice to a defendant arising from delay carries less weight when the principal witnesses to the impugned transaction remain available and were, from the start, in a position to anticipate a challenge.
- On appeal by way of re-hearing under s 75A(7) of the Supreme Court Act 1970, a judge may admit fresh evidence not before the original decision-maker, and must then reconsider the discretionary question on that new evidential basis.
- A finding of a strong prima facie case, as the court identified here in respect of undue influence, is a relevant discretionary consideration in resisting dismissal for want of prosecution.
Legislation and Cases Referenced
Legislation:
- Supreme Court Act 1970 (NSW), s 75A(7)
- Supreme Court Rules (NSW): Part 33 r 6(1), (2), (3), (4); Part 5 r 12; Part 40 r 8(1); Part 1B r 9
Cases:
- Stollznow v Calvert [1980] 2 NSWLR 749
- Witten v Lombard Australia Limited (1968) 88 WN (Pt 1) (NSW) 405
- Southern Cross Exploration NL and Others v Fire & All Risks Insurance Co Ltd and Others (1986) 4 NSWLR 491
- Birkett v James [1978] AC 297 (House of Lords)
- Cohen v McWilliam and Another (1995) 38 NSWLR 476