Citation: Clarke v Garling & Genev & Anor [2002] NSWSC 604
Court: Supreme Court of New South Wales (Common Law Division)
Date: 8 July 2002
Judge(s): Master Harrison
Background
In April 1992, the plaintiff suffered head injuries after falling from an access bridge at premises in North Sydney. The owner of the premises was a company (the second defendant), and the tenants of the property were the first defendants. After the plaintiff's claim against the defendants was settled, the litigation continued solely as between the owner and the tenants, each of whom had cross-claimed against the other seeking indemnity and contribution.
By March 2002, ten years after the accident, the matter had not progressed to trial. A significant period of inactivity, approximately three and a half years, had elapsed during which neither party took meaningful steps to advance the cross-claims.
The second defendant (the owner) applied by notice of motion to have the first defendants' cross-claim dismissed for want of prosecution under Part 33 r 6(2) of the Supreme Court Rules.
Legal Issues
- Whether the first defendants' cross-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 cross-claim caused sufficient prejudice to the second defendant to justify dismissal
- How responsibility for the period of inactivity should be allocated between the parties
Decision
Master Harrison applied the principles set out in Hoser v Hartcher [1999] NSWSC 527, which frame the ultimate question as whether, on balancing prejudice to each party, justice demands dismissal. The discretion to strike out is to be exercised only in clear cases where dismissal is manifestly warranted.
The court acknowledged that the cause of action was ten years old and that witness memories would inevitably have faded. However, it noted that much of the relevant evidence had been preserved: photographs of the premises were taken shortly after the accident, an engineer had inspected the site in July 1992, and a transcript existed from a hearing in London in 1997 that ran for over ten days. Key witnesses also remained available.
Critically, the court found that both parties had been inactive for the same period of three and a half years. The second defendant had not responded to the first defendants' solicitors' correspondence in 1998 requesting that consent orders be signed, and nothing further happened until late 2001. A defendant who stands by without taking steps to prompt progress runs the risk that its own inactivity will count against it on a dismissal application.
Dismissing the motion, the court concluded that justice was best served by allowing both cross-claims to remain on foot. It noted that striking out the first defendants' cross-claim would prejudice them by removing their right to indemnity and contribution, while the second defendant's own cross-claim (arising from the same facts) would continue.
Orders Made
- The notice of motion filed 22 March 2002 is dismissed.
- Costs are costs in the cause.
- The matter is to be listed for a status conference, with the court to notify the first and second defendants of the date and time. The plaintiff is not to be notified, as the plaintiff's claim against the defendants has been settled.
Key Takeaways
- The governing test on a want-of-prosecution application is whether, balancing prejudice to each party, justice demands dismissal. The discretion is reserved for clear cases where dismissal is manifestly warranted.
- A defendant who stands by without taking steps to prod the opposing party into action, or who fails to respond to correspondence seeking to advance proceedings, runs the risk that this inactivity will weigh against a strike-out application.
- Where both parties contributed equally to a period of delay, that shared inactivity is a significant factor against dismissal of one party's claim.
- Preserved evidence, including contemporaneous photographs, expert inspection reports, and hearing transcripts, can reduce the weight of prejudice otherwise presumed from the effluxion of time.
- Dismissing one cross-claim while allowing a related cross-claim arising from identical facts to continue would itself produce prejudice, a consideration that supported keeping all cross-claims on foot.
Legislation and Cases Referenced
Legislation
- Supreme Court Rules (NSW), Part 33 r 6(2) and (3)
Cases
- Hoser v Hartcher [1999] NSWSC 527
- Gill v Eatts & Ors (1999) Aust Torts Reports 81-529
- Stollznow v Calvert (1980) 2 NSWLR 749 (cited within Hoser v Hartcher)