Citation: Gerlach v Meares & 3 Ors [1999] NSWSC 835
Court: Supreme Court of New South Wales, Common Law Division
Date: 18 August 1999
Judge(s): Master Harrison
Background
The plaintiff commenced proceedings in June 1994 against four defendants, including a medical practitioner and a hospital, alleging negligence arising from the insertion and subsequent removal of a breast implant. Two of the defendants were manufacturers of the implant and were also involved in a global class action settlement being administered through the American courts. The plaintiff had been waiting on that overseas settlement process before actively pursuing her local claim.
By April 1999 the plaintiff had obtained leave to discontinue against the two implant manufacturer defendants, leaving the proceedings on foot only against the first defendant, a medical practitioner. No medical or expert reports had been served in the five years since filing, and particulars had only been answered after a four-year delay.
The first defendant filed a notice of motion in June 1999 seeking dismissal of the statement of claim for want of prosecution. The plaintiff's solicitor had not responded to three separate letters sent between November 1998 and April 1999 asking whether the plaintiff intended to continue the proceedings.
Legal Issues
- Whether the statement of claim should be dismissed for want of prosecution under Part 33 r 6(2) of the Supreme Court Rules
- Whether the delay in prosecuting the proceedings was inordinate and inexcusable, and whether it gave rise to a substantial risk that a fair trial was impossible
- Whether the balance of justice as between the plaintiff and the first defendant favoured dismissal
Decision
Master Harrison set out the governing legal principles, drawn primarily from Birkett v James and Stollznow v Calvert. Dismissal for want of prosecution is warranted only where the plaintiff's default has been intentional and contumelious, or where inordinate and inexcusable delay by the plaintiff or their lawyer has created a substantial risk that a fair trial is no longer possible due to serious prejudice to the defendant. The discretion is not confined by rigid rules and must be exercised on the particular facts of each case by striking a balance between the parties.
Applying those principles, Master Harrison accepted that the plaintiff had not pursued her claim with appropriate diligence. Five years had elapsed since filing, no expert reports had been served, and the plaintiff's solicitor had failed to respond to the first defendant's correspondence. However, the court found a contextual explanation for the inactivity: the plaintiff had been awaiting the outcome of the American settlement proceedings, had undergone further surgery in 1998, and had experienced a period of illness.
Critically, the first defendant was unable to demonstrate actual prejudice. Master Harrison accepted that presumptive prejudice arose from the passage of time, but noted that hospital records had been subpoenaed and were available. The plaintiff was by then ready to file particulars and had arranged medical examination. In those circumstances, the court held that justice required the proceedings to continue to trial rather than be dismissed.
On costs, the court took a different view. The plaintiff's solicitor had ignored three written requests from the first defendant asking whether the proceedings would continue, and it was only after the motion was filed that the plaintiff moved to prepare the matter. Master Harrison exercised the discretion to order the plaintiff to pay the costs of the motion, reflecting that the motion need not have been filed had the solicitor responded.
Orders Made
- The first defendant's notice of motion filed 1 June 1999 was dismissed.
- The plaintiff was ordered to pay the first defendant's costs of the motion.
- The matter was transferred to the District Court Sydney Registry.
Key Takeaways
- Dismissal for want of prosecution requires either intentional and contumelious default, or inordinate and inexcusable delay creating a substantial risk that a fair trial is impossible due to serious prejudice to the defendant.
- Presumptive prejudice from delay is relevant but will not, on its own, compel dismissal where the defendant cannot establish actual prejudice.
- The discretion under Part 33 r 6(2) is exercised by balancing the interests of both parties on the specific facts; no single category of fact or circumstance carries a fixed weight.
- A contextual explanation for delay, including reliance on parallel overseas settlement proceedings and a period of serious illness, can weigh against dismissal even where the overall conduct of the case has been inadequate.
- Costs orders can be made against a plaintiff even where the dismissal application fails, particularly where the plaintiff's solicitor's failure to respond to correspondence was a direct cause of the motion being filed.
Legislation and Cases Referenced
Legislation
- Supreme Court Rules (NSW), Part 33 r 6(2)
Cases
- Birkett v James [1977] 2 All ER 801; AC 297 at 318
- Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 411
- Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (1986) 4 NSWLR 491
- McKenna v McKenna [1984] VR 665
- Stollznow v Calvert [1980] 2 NSWLR 749