Citation: "AN" v State of NSW [2003] NSWSC 100
Court: Supreme Court of New South Wales (Common Law Division)
Date: 3 March 2003
Judge(s): Master Harrison
Background
The plaintiff commenced proceedings against the State of New South Wales in 1992, filing a statement of claim that alleged defamatory statements had been made by officers of the Department of Community Services. The alleged statements, said to have been made between 1984 and 1992, included oral communications to a journalist from the ABC's "Four Corners" programme describing the plaintiff in damaging terms.
Over the following decade, the proceedings progressed very slowly. Much of the plaintiff's attention during this period was consumed by separate proceedings (No 11844/1993) in which he acted as tutor for his son in a negligence claim against the State, a matter that ran for approximately 80 hearing days before Studdert J. By 2001, Adams J had struck out most of the statement of claim in the current proceedings, leaving only three paragraphs on foot relating to the alleged oral defamatory statements and resulting damage to reputation.
The defendant filed a notice of motion in February 2002 seeking dismissal or a stay of the remaining proceedings for want of prosecution. The plaintiff did not appear at the hearing, instead sending a fax on the morning of the hearing stating he was severely depressed and requesting a further six-month adjournment, without attaching any supporting medical certificate.
Legal Issues
- Whether the remaining balance of the amended statement of claim should be dismissed for want of prosecution under Part 33 r 6 of the Supreme Court Rules
- Whether the plaintiff's non-compliance with court orders and failure to advance the proceedings over approximately ten years justified dismissal
- Whether a fair trial remained possible for the defendant given the passage of time
Decision
Master Harrison found that the proceedings had stalled to an unacceptable degree. Despite repeated direction hearings and timetabling orders made over many years, the plaintiff had failed to comply with basic procedural requirements, including providing particulars requested as recently as December 2001 and filing an affidavit explaining his non-compliance with earlier orders. There was also no evidence of what steps, if any, the plaintiff had taken after being referred to the court's Pro Bono scheme.
On the question of the plaintiff's health, Master Harrison acknowledged the psychiatric report from Dr Peter Anderson, dated May 2001, which diagnosed the plaintiff with chronic post-traumatic stress disorder and depression. However, the Master concluded that this evidence did not establish that the plaintiff was incapable of prosecuting his claim, particularly given the symptoms were said to have been present for some 20 years.
Master Harrison accepted the defendant's submission that after ten years it still did not know the case it had to meet. The claims that remained on foot turned on oral statements allegedly made as far back as 1984 and 1986, and the passage of 10 to 15 years since those events would adversely affect the quality of the available evidence. The plaintiff had offered no proposed timetable and had taken no steps demonstrating readiness to proceed to trial.
The Master concluded that the defendant could no longer be afforded a fair trial and that, despite sympathy for the plaintiff's personal circumstances, justice was best served by dismissing the remaining claims.
Orders Made
- The balance of the amended statement of claim filed 10 February 1993 is dismissed
- The plaintiff is to pay the defendant's costs of the motion and of the proceedings
Key Takeaways
- Master Harrison held that ten years of minimal progress, combined with repeated non-compliance with court orders, satisfied the threshold for dismissal for want of prosecution under Part 33 r 6 of the Supreme Court Rules.
- Medical evidence of a plaintiff's psychiatric condition will not necessarily prevent dismissal for want of prosecution; the court found that chronic depression and PTSD of 20 years' standing did not, on the evidence, demonstrate an incapacity to prosecute the claim.
- Where alleged defamatory statements were made 10 to 15 years before the hearing, the capacity of the defendant's witnesses to recall relevant conversations is a material factor weighing against the possibility of a fair trial.
- A plaintiff's failure to provide particulars, comply with directions, offer any proposed timetable, or take demonstrable steps to advance proceedings can collectively justify dismissal even where some sympathy exists for the plaintiff's personal circumstances.
- Costs followed the event: the unsuccessful plaintiff was ordered to pay the defendant's costs of both the motion and the proceedings as a whole.
Legislation and Cases Referenced
Legislation:
- Supreme Court Rules (NSW), Part 33 r 6
- Limitation Act 1969 (NSW), ss 57, 58, 60
Cases:
- Hoser v Hartcher [1999] NSWSC 527
- Gill v Eatts & Ors (1999) Aust Torts Reports 81-529