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Supreme Court 4 August 1999

Huntington v Saunders

[1999] NSWSC 812

Other
PERSONAL INJURY PREJUDICE TO PARTIES EVALUATED JUSTICE IN REFUSING TO MAKE ORDER

Citation: Huntington v Saunders [1999] NSWSC 812
Court: Supreme Court of New South Wales, Common Law Division
Date: 4 August 1999
Judge(s): Simpson J

Background

The original plaintiff commenced proceedings in June 1990 claiming damages for personal injuries arising from a motor vehicle collision in May 1988. The matter dragged on with minimal apparent progress for several years, marked by repeated failures on the part of the plaintiff's representatives to comply with court orders and directions.

Matters were further complicated when it emerged, around mid-1998, that the plaintiff had died on 21 December 1997. His solicitors had not promptly notified the defendant's solicitors of the death, and the defendant's insurer had in the interim arranged medical examinations for a plaintiff who was no longer alive. Subsequent months were consumed by questions around whether probate would be sought and who would be substituted as plaintiff, ultimately settling on the plaintiff's widow.

The defendant brought a notice of motion seeking to strike out the statement of claim for want of prosecution. By the time of the hearing, the plaintiff's side had still not fully complied with directions, including serving an expert traffic report some nine months after the date required by court directions.

  • Whether the statement of claim should be struck out or the proceedings stayed under SCR Pt 33 r 6(2) on the grounds that the plaintiff had defaulted in complying with orders and directions, and had failed to prosecute the proceedings with due despatch
  • How to weigh the prejudice to both parties in exercising the discretion to dismiss or stay proceedings
  • Whether the proposed substitution of the deceased plaintiff's widow as plaintiff should be ordered by consent

Decision

Simpson J accepted that the plaintiff had plainly defaulted in complying with multiple court orders and directions, and had failed to prosecute the proceedings with due despatch. Both limbs of SCR Pt 33 r 6(2) were established. However, the court noted that satisfying either limb does not automatically produce a dismissal or stay: the power remains discretionary.

The court assessed the prejudice to each party. On the defendant's side, there was presumptive and demonstrated prejudice, most notably the insurer's inability to locate the defendant at the time of the hearing. That concern was partially offset by the fact that the defendant's solicitors held a statement from the defendant. The court also had regard to the fact that the expert report served late was not before it in evidence, making it difficult to assess what further prejudice, if any, flowed from that delay.

On the plaintiff's side, the court observed that dismissing the proceedings would extinguish the proposed substitute plaintiff's rights entirely, given that any limitation period had long passed. The court weighed this consequence heavily in the balance.

Ultimately, Simpson J concluded that justice lay in refusing the order, but accompanied that refusal with strict conditions. The court made clear that any future default, even minor, would entitle the defendant to approach the court directly for whatever application it wished to make. Costs of the application were awarded against the plaintiff, a concession properly made by the plaintiff's counsel.

Orders Made

  • The notice of motion was dismissed
  • The plaintiff is to pay the defendant's costs of the application
  • Any default in compliance with subsequent directions, including minor default, entitles the defendant to approach the court directly for any application it may wish to make
  • By consent, Janice Huntington is substituted as plaintiff in the proceedings pursuant to SCR Pt 8 r 1(b)
  • The plaintiff's notice of motion dated 9 October 1998 is dismissed
  • The defendant has liberty, on two days' notice to the plaintiff, to list the matter before Simpson J at any time

Key Takeaways

  • Establishing both limbs of SCR Pt 33 r 6(2), namely default in complying with orders and failure to prosecute with due despatch, does not automatically result in a stay or dismissal. The power remains discretionary and requires a balancing of prejudice to each party.
  • Where dismissal would extinguish the substitute plaintiff's rights entirely due to the expiry of any limitation period, that consequence weighs significantly against making the order.
  • Demonstrated prejudice to a defendant, such as an inability to locate that defendant, may be ameliorated by countervailing factors. Here, the defendant's insurer held a statement from the defendant, which reduced the weight of that concern.
  • In refusing the strike-out application, the Supreme Court attached conditions that placed the defendant in a strong procedural position going forward: any further default, however minor, gave the defendant direct access to the court for further relief.
  • An unexplained and prolonged history of non-compliance with court orders and directions will attract a costs order against the defaulting party, even where the ultimate application to dismiss is refused.

Legislation and Cases Referenced

Legislation:
- Supreme Court Rules (NSW), Part 33 rule 6(2) (want of prosecution)
- Supreme Court Rules (NSW), Part 8 rule 1(b) (substitution of parties)

Cases cited: No cases were cited in the judgment.