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Supreme Court 10 December 2001

Metal Manufactuers v Nautitech P

Other

Citation: Metal Manufacturers Limited v Nautitech Pty Limited & 2 Ors [2001] NSWSC 1128
Court: Supreme Court of New South Wales, Common Law Division
Date: 10 December 2001
Judge(s): Master Harrison

Background

The plaintiff, a supplier of electrical equipment for industrial and mining applications, commenced proceedings against three defendants: a research and development company and two individual defendants. The plaintiff alleged breaches of contract, negligence, and contraventions of the Trade Practices Act, the Sale of Goods Act, and the Fair Trading Act 1987, arising from four agreements entered into between 1996 and 1998.

The statement of claim was filed in July 2000 but was not served. An amended statement of claim was filed and served in late June 2001. After the defendants sought particulars and the plaintiff took several months to respond, the defendants moved to dismiss the proceedings for want of prosecution before the scheduled Not Ready Callover could take place.

The defendants filed their motion on 30 October 2001, ahead of a callover listed for 13 November 2001, and later filed an amended motion on 14 November 2001. The application sought dismissal under two rules of the Supreme Court Rules, as well as indemnity costs.

  • Whether the proceedings should be dismissed pursuant to Part 32A r 2(1) of the Supreme Court Rules (no step taken in proceedings for one year)
  • Whether the proceedings should be dismissed pursuant to Part 33 r 6(2) of the Supreme Court Rules (want of prosecution or failure to prosecute with due despatch)
  • Whether indemnity costs should be awarded against the plaintiff
  • Whether a disputed subpoena should be set aside

Decision

Master Harrison declined to dismiss the proceedings on either ground. The Part 32A r 2(1) application had already been abandoned by the defendants before the hearing, and rightly so: the plaintiff had filed an amended statement of claim in June 2001, meaning a step had been taken in the proceedings within the preceding year and that rule was plainly unavailable.

On the Part 33 r 6(2) application, Master Harrison applied the principles from Birkett v James, noting that dismissal for want of prosecution requires either intentional and contumelious default or inordinate and inexcusable delay creating a substantial risk of an unfair trial through serious prejudice to the defendants. Neither condition was satisfied. The plaintiff had not breached any order or rule of court, and the defendants had never requested expert reports prior to filing their motion.

Master Harrison found the defendants' application to be entirely unnecessary. The very directions the defendants sought could have been obtained through the ordinary Not Ready Callover process, which the defendants themselves had pre-empted by filing their motion early. The court also noted that the defendants could have filed their own DCM documents (case management documents) at any time following service of the amended statement of claim, which would have triggered a status conference.

On costs, Master Harrison awarded ordinary costs against the defendants, describing their application as unnecessary. Although the Master acknowledged it was a borderline case, indemnity costs were refused in the exercise of discretion.

Orders Made

  • Paragraph 3 of the amended notice of motion filed 14 November 2001 (relating to the subpoena) stood over generally, to allow the parties to resolve any dispute about the scope of the subpoena
  • The defendants to file and serve a defence on or before 14 January 2002
  • The plaintiff to file and serve DCM documents and expert reports on or before 29 March 2002
  • The defendants to pay the plaintiff's costs (on the ordinary basis; indemnity costs refused)

Key Takeaways

  • Dismissal for want of prosecution under Part 33 r 6(2) requires either intentional and contumelious default or inordinate and inexcusable delay giving rise to a substantial risk that a fair trial is impossible; delay alone, without demonstrable prejudice, is insufficient.
  • Filing a step in proceedings (such as an amended statement of claim) within the preceding year takes a matter outside the automatic dismissal mechanism under Part 32A r 2(1), even where overall progress has been slow.
  • Where the relief sought by a motion could have been obtained through the court's ordinary case management processes, the motion may be characterised as unnecessary and attract an adverse costs order.
  • A party cannot base a want of prosecution argument on the absence of expert reports where that party never requested those reports before filing the motion.
  • Courts balance the interests of both parties when considering dismissal applications; the procedural history as a whole, including the moving party's own conduct, is relevant to that exercise of discretion.

Legislation and Cases Referenced

Legislation
- Supreme Court Rules (NSW), Part 32A r 2(1) and Part 33 r 6(2)
- Trade Practices Act 1974 (Cth), s 52
- Sale of Goods Act (NSW), s 19
- Fair Trading Act 1987 (NSW), ss 42 and 44

Cases
- Birkett v James [1977] 2 All ER 801; AC 297
- Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405
- 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
- Grovit v Doctor [1997] 2 All ER 417
- Securum Finance Ltd v Ashton [2001] Ch 291