Dover v Mercantile Mutual Insurance (Aust) Ltd & Ors [2005] QDC 160

DISTRICT COURT OF QUEENSLAND CITATION: Dover v Mercantile Mutual Insurance (Aust) Ltd & Ors [2005] QDC 160 PARTIES: BRIAN JOHN DOVER Plaintiff v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD First Defendant and GREGORY JAMES McCOSKER Second Defendant and STATE OF QUEENSLAND Third Defendant FILE NO/S: BD1004/2002 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 10 June 2005 DELIVERED AT: Brisbane HEARING DATE: 19 May 2005 JUDGE: McGill DCJ ORDER: Applications dismissed. CATCHWORDS: PRACTICE – Want of prosecution – delay - whether breach of implied undertaking to proceed expeditiously UCPR r.5(4). COUNSEL: A J Macklin for the plaintiff R C Morton for the second defendant M J Burns for the third defendant SOLICITORS: Keith Scott and Associates for the plaintiff McInnes Wilson for the second defendant Crown solicitor for the third defendant. [1] In this matter there are two applications, by the second and third defendants, to dismiss the plaintiff’s action for want of prosecution. Both applications are based -- 1 of 11 -- 2 on r 5, and are seeking the exercise of the power in r 5(4) to impose appropriate sanctions if a party does not comply with the implied undertaking to proceed in an expeditious way. It was submitted that the plaintiff had failed to comply with that implied undertaking. [2] There is a specific statutory power in this court to dismiss an action for want of prosecution if two years have passed since the last step.1 Neither defendant sought to rely on this power, on the basis that there had been, less than two years ago, a mediation pursuant to an order of the court, which was the last step in the action. On 28 April 2003 I ordered, by consent, that the parties proceed to participate in and act reasonably and genuinely in a mediation, in the usual form. The date fixed was 19 June 2003. On 23 June 2003, the mediator appointed by that order filed a certificate that the procedure had finished and the parties had not resolved their dispute. My order of 28 April 2003 provided among other things that the proceeding was stayed until six business days after the mediator’s certificate was filed or further earlier order. I am content to proceed on the basis that in those circumstances the mediation was a step in the proceeding for the purposes of s 85(2), and accordingly the power conferred by that section is not available. [3] It was not submitted on behalf of the plaintiff that, in the light of the express terms of s 85, this court did not have power under the UCPR to dismiss for want of prosecution unless there had been a period of two years since the last step was taken. There is authority that the power in r 5(4) extends to dismissal of a proceeding.2 That matter concerned a proceeding in the Supreme Court, but it has subsequently been said that this power of dismissal is also conferred on the District Court.3 On the other hand, it was also pointed out in that case that the rules are not an end in themselves, and “do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences.”4 In all the circumstances I accept that there is a power to dismiss for want of prosecution under r 5(4), but consider that that power is one which should not readily be exercised, and that indeed it ought to be less readily exercised than the express power in s 85.5 History of the matter [4] To some extent the history of this action is recorded in my reasons delivered on 20 December 2002 for substantially dismissing applications to strike out the amended statement of claim: [2002] QDC 345. Briefly the action was commenced on 12 November 1999. In response to a threat to strike out the statement of claim an amended statement of claim was filed on 7 March 2001, which was struck out but with liberty to replead on 18 April 2002, and the third statement of claim was filed on 7 May 2002. That was the statement of claim which was challenged in the 1 Supreme Court of Queensland Act 1991 s 85. 2 Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455 per de Jersey CJ at [22], with whom the other members of the court agreed. 3 Quinlan v Rothwell [2002] 1 Qd R 647 at 658 per Thomas JA at [30]. 4 Ibid at [29]. 5 No case was cited to me where a court has actually dismissed a proceeding under r 5(4), and I am not aware of any. In Grenning v Ware [2005] QSC 82 Helman J declined to dismiss for want of prosecution under this rule. -- 2 of 11 -- 3 applications which I decided on 20 December 2002. Essentially I decided that, although there was much that was unsatisfactory about the statement of claim (and it was not one which should find its way into anyone’s precedent book) it was not so defective as to justify striking it out, except in relation to one subsidiary claim. [5] The cause of action pleaded is for malicious prosecution. In February 1994 the plaintiff and two other people were arrested and charged with offences in relation to a fire alleged to have occurred on or about 15 August 1993. The plaintiff was subsequently committed for trial, but following a voir dire the prosecutor entered a nolle prosequi in respect of the indictment. [6] The basis of the claim was that the second defendant was instrumental in securing the provision by a person to police of information which it was alleged falsely implicated the plaintiff, and which it was alleged the second defendant knew to be false. It is a case in substance, against the second defendant, that he had misled the police by bringing before them a witness who he knew was lying about the involvement of the plaintiff to support a charge which the second defendant knew to be false, in circumstances where the evidence of the witness was crucial to the prosecution of the plaintiff. It was also alleged against the third defendant that it knew the plaintiff had not committed the offence, and that the information provided by the informer was false, or that at least it had reason to believe that it was false. [7] There was also a separate claim that the proceeding had been continued maliciously. This presupposed the proceeding was started properly, but subsequently additional information became available to the defendants as a result of which the continuation of the proceeding became malicious. It is unnecessary to deal with this in any detail, because I was satisfied that the particulars provided were clearly incapable of sustaining that alternative basis of liability, and those parts of the statement of claim which raised the issue of continuing a proceeding were struck out. [8] It did occur to me at the time when I was dealing with that matter that the action had already taken a long time, and had not made very much progress. I said in the reasons that I delivered that I proposed to case manage the action, and foreshadowed some directions dealing with pleadings and particulars, and further review. When delivering judgment I directed that any further amendment to the statement of claim in response to the reasons be filed and served within six weeks, that any consequential amendment occur within 14 days thereafter (which was intended to deal with amendments to the defences), that any request for particulars be delivered within 14 days thereafter and those particulars be provided within 14 days thereafter. The matter was to be listed for mention again before me in the week of 31 March 2003. [9] In formulating those directions, I certainly expected that the plaintiff would deliver a further amended statement of claim. In the event that did not occur. The matter was mentioned again before me on 9 April 2003, when counsel for the plaintiff announced that there had been no more pleadings, which meant that the pleadings had closed. I was told then that the parties were proposing mediation, and listed the matter for mention on 30 April if no referring order had been filed prior to 28 April. -- 3 of 11 -- 4 On 28 April however I was sent a consent for an order for ADR signed on behalf of all parties, and on the basis of that consent made an order that day for ADR.6 [10] Unfortunately following the mediation there was no other active case management of this matter. It did not come back before the court again until the return of the applications to dismiss for want of prosecution. Apart from participating in the mediation, the plaintiff essentially has done nothing to carry the action forward since the filing of the amended statement of claim on 7 May 2002. [11] The explanation given by the plaintiff, an affidavit filed 27 April 2005 in response to these applications, is simply that he has been unable to proceed with the litigation expeditiously because of lack of funds.7 He swore that that had now been resolved, and that he had placed his solicitor in funds “today”, that is 26 April 2005. His solicitor in an affidavit filed the same day stated that the action had not been progressed because of lack of funds, although his firm remained on the record, but referred to something the plaintiff did outside the action, an application under the Freedom of Information Act in September 2004, said to be an attempt to obtain documents relevant to the action. The application was said to have been unsuccessful. It is not clear just what that means in the present context. [12] In a further affidavit filed 17 May 2005, the plaintiff provided a little more information about his financial position. He explained that he still lacks the funds to pursue the litigation, and that after the unsuccessful mediation his lawyers were no longer willing to fund the progress of the action themselves. He has however arranged to borrow some money from an employer, on an urgent basis, to enable him to respond to those applications. He obtained employment in March 2004 as a project manager with a company, of which he was made a director on 20 April 2005. He is being paid a salary of $75,000 per annum gross. He has been anticipating receiving a loan from his employer to fund the action, but apparently the full amount necessary to fund the action has not yet been advanced. He provides otherwise no information as to his financial position, or as to what expenses he has to meet and whether he has to support anyone else out of his salary, or as to his financial position prior to March 2004. Authorities and principles [13] In Cooper v Hopgood & Ganim [1999] 2 Qd R 113 the Court of Appeal concluded that exercising the court’s discretion to dismiss for want of prosecution should not be fettered by rigid rules, but required a decision to be reached on a balance of the relevant circumstances. Pincus JA, with whom Derrington J agreed generally, at p.118 quoted with approval a passage from the judgment of Walsh JA in Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) NSW 405 at 412: “Everything must depend upon the circumstances disclosed in each particular case. It is, of course, proper to consider whether any explanation or excuse has been offered for the delay, and whether any explanation or excuse that has been offered is credible and satisfactory. It is proper to consider whether or not there is evidence of particular prejudice to the opposing party by reason of the delay. When all relevant factors 6 That order which was filed on 6 May 2003 is incorrectly dated 10 April 2003; it ought to be dated 28 April 2003. 7 Funds for the mediation were obtained from his father. -- 4 of 11 -- 5 have been taken into account, a decision is then to be reached as to the manner in which the discretionary power should be exercised.” [14] Some of the factors said to be relevant to the exercise of the discretion were referred to by McPherson JA at p.124: “Matters such as the duration of the time lapse involved; the cogency of any explanation for delay; the possible impact of procrastination on fading recollection; the death or disappearance of critical witnesses or records; costs already or likely in future to be expended or thrown away; the apparent prospects of success or otherwise at a trial of the action; and the progressively growing problem of effectively hearing and determining questions of fact arising out of events that have taken place many years before. The list is not, and is not intended to be, exhaustive; and it takes no account of another factor that is often likely to be material, which is that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated.” [15] In Quinlan v Rothwell [2002] 1 Qd R 647 de Jersey CJ at p.652 said: “The discretion to dismiss for want of prosecution may these days confidently be exercised, in appropriate cases, with more robustness than would previously have been considered appropriate.” His Honour went on to refer to r 5 and the implied undertaking it contains to proceed in an expeditious way. At p.657 Thomas JA said: “It is a noteworthy feature of recent cases that courts appear more ready than before to infer that substantial delays will substantially reduced the chance of a fair trial.” His Honour went on to refer to a change in attitude about the extent to which litigation could be allowed to languish. His Honour also said at p.658: “The former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended.” His Honour also cited with approval the passage from the judgment of McPherson JA in Cooper quoted above. On the other hand, both their Honours went on to qualify those statements with a warning that the discretion should only be exercised to dismiss for want of prosecution in appropriate cases. [16] Another list of factors which a court would take into account in applications of this nature was given in the judgment of Atkinson J, with whom McMurdo P and McPherson JA agreed, in Tyler v Custom Credit Corp Ltd [2000] QCA 178 at [2]. Those various factors apply in the present case as follows. Relevant factors [17] The events alleged in the statement of claim largely occurred in 1993 and 1994, and the cause of action was complete on or about 31 May 1995 when the prosecution of the plaintiff in the District Court was discontinued. The proceeding was not commenced until four and a half years after the cause of action was complete. No causes of action have been subsequently added. I will for the moment defer consideration of the plaintiff’s prospects of success in the action. There is no example of disobedience of court orders or directions; although I was hoping for a further pleading from the plaintiff, to reflect better the claim which I found to be arguable, the plaintiff was not actually ordered or directed to do so, so it remained open for him not to do so. The litigation has been characterised by periods of delay, -- 5 of 11 -- 6 particularly after December 2002 when I delivered my earlier judgment. The delays are attributable to the plaintiff; the defendants have sent a number of letters at different times trying to chase up the plaintiff and encouraging further action.8 The impecuniosity of the plaintiff has been responsible for the pace of litigation. There is however no material before me to demonstrate that the defendants were responsible for that impecuniosity, even assuming that the allegations the plaintiff makes in the statement of claim are true. I note that the statement of claim did not claim economic loss as a head of damages. The litigation between these parties would be concluded by striking out the plaintiff’s claim. [18] The litigation has not progressed far at all; indeed, it could hardly be said that the pleadings are in order, since the statement of claim remains in my opinion unsatisfactory, even though most of it has survived a strike out application. I expected that following an amendment to the statement of claim that there would be a further request for particulars; evidently that has not yet occurred. Following the failure of the mediation, the defendants have been essentially waiting for some indications from the plaintiff that he was proposing to pursue the litigation. Disclosure has taken place,9 but it is not clear that there are no further interlocutory steps required. The action does not look as though it will be ready for trial soon. [19] This is not a case where the delay is attributable to the plaintiff’s lawyers rather than the plaintiff. The explanation for the delay is simply that the plaintiff has been unable to fund the litigation. That is an explanation, but it is obviously not an excuse. The obligation in r 5 is not qualified by the financial capacity of the parties; otherwise the courts would rapidly become clogged with litigation which was not progressing because no one could afford to progress it. I do not doubt that there are many wrongs which are suffered by people in the community which are not the subject of litigation simply because the victims cannot afford to seek to enforce their rights through the courts. That is unfortunate for them, but is a commonplace occurrence and not something which justifies any departure from the ordinary obligation on those who want to litigate to do so without undue delay.10 [20] The final issue is in relation to prejudice. There are two aspects of prejudice, specific prejudice and general prejudice arising from the effect of passage of time on the ability of people to recollect matters. No specific prejudice was alleged by either of the defendants. In relation to the question of general prejudice however, such a period of time has elapsed since the relevant events that it would be unsurprising that people involved in them would now have difficulty in recalling the details of what had occurred. In this regard, it is relevant to consider the extent to which the case will turn on the recollection of individuals, rather than undisputed facts or the contents of contemporaneous documents. [21] The basis of the plaintiff’s case was analysed in some detail in my earlier judgment. Crucial to the plaintiff’s case is the state of knowledge of the second defendant about the truth of what was being said by the crucial witness for the prosecution, and the state of knowledge of the second defendant of the plaintiff’s actual 8 Affidavit of Jasinski filed 12 April 2005. 9 Affidavit of Jasinski filed 12 April 2005, page 4. 10 Hoffmann v Queensland Local Government Superannuation Board [1994] 1 Qd R 369 at 373; Renton v Bressington [2000] QCA 225 at p.10. -- 6 of 11 -- 7 involvement in the fire, namely that the plaintiff was not responsible for the fire. Details of the prosecution and court proceedings will be documented, and documents will be available to show what occurred there. The statement of claim also refers to a written agreement with the crucial witness. But the statement of claim also refers to various conversations, a conversation in September 1993 between the second defendant and an individual described as a suspended police detective; a meeting in September 1993 between the witness, the second defendant and the police officer; a meeting in September 1993 between the witness, the police officer and the suspended detective; and a meeting in September 1993 between the second defendant and two police officers. There was then a meeting in October between the second defendant and the witness, which was apparently tape recorded. It was also alleged that the second defendant did not hold an honest belief of the guilt of the plaintiff and that the second defendant knew or ought to have known that the witnesses’ evidence could not support the charges against the plaintiff. [22] It was alleged that the prosecution of the plaintiff was malicious, being to assist the first defendant in civil proceedings commenced in February 1994 in the Supreme Court against the plaintiff and others, to recover payment of an amount paid on an insurance claim as a consequence of a fire, which proceedings were allegedly discontinued in October 1995. It was also alleged that the third defendant did not hold an honest belief that the evidence against the plaintiff was sufficient to place him on trial or obtain a conviction, and that it was acting on the basis of information provided by the witness which it knew or had reason to believe was false, and that it knew the plaintiff had not committed the offence. Overall in my opinion the trial is likely to involve a number of issues which will turn on oral evidence rather than contemporaneous documents. [23] In view of the passage of time difficulties associated with fading memories would not necessarily impact only on the defendants. But the ability of the defendants, and perhaps the witnesses, to explain events that can be shown to have occurred at the time, or perhaps to explain contemporaneous documents, would undoubtedly have been diminished by the passage of time. In my opinion it is likely that the delay in bringing the matter to trial, particularly coming on top of the substantial delay in commencing proceedings in the first place, will have significantly prejudiced the possibility of a fair trial of the action being now had. [24] Returning to the question of the plaintiff’s prospects of success, it seems to me that some of the matters being alleged by the plaintiff are inherently unlikely to be made out. I think it is unlikely that the plaintiff would be able to show that the third defendant knew the plaintiff had not committed the offence, or indeed that the second defendant knew the plaintiff had not committed the offence. The plaintiff was committed for trial, so presumably there was at least some evidence available against him, even if that was only the evidence of the crucial witness. Given that the matter ultimately did not proceed, the plaintiff may well be able to show that it ought to have been apparent at least to the third defendant at some point that it was not appropriate to pursue the prosecution, but it is necessary for a plaintiff to show far more than that in order to prove that the prosecution was malicious. [25] I am wary about attributing too much significance to what can only be an initial impression of the plaintiff’s prospects, essentially based on the pleading, and I am -- 7 of 11 -- 8 also conscious of the fact that the pleading is not well drafted and is unlikely to present the plaintiff’s case in the best possible light anyway. Nevertheless, insofar as I can make any assessment of the plaintiff’s prospects at the present time, my assessment is that his action is unpromising. This is not the sort of case where it appears clear that the plaintiff has a good cause of action and the only issue at a trial will or is likely to be one of quantum. On the other hand, it is not a case where the plaintiff’s action is obviously doomed. In either of those cases the plaintiff’s prospects may well be a significant feature in the exercise of the discretion. In the present case I think it is a relevant feature, but not one which deserves a substantial amount of weight. [26] Most of the matters referred to by McPherson JA in Cooper are covered in that list. Two matters referred to by his Honour which are not are the question of costs of the action, and the psychological burden of the continuing threat of litigation and its consequences hanging over the defendants. As to the former, if the plaintiff has been in the past unable to fund the progress of the litigation, and is now able to do so only with borrowed money, that suggests that in the event of the litigation being unsuccessful the plaintiff would be unlikely to be able to meet any order for costs against him. That means that if the litigation proceeds it will place the defendants in an invidious position of choosing between spending potentially a lot of money in defending a claim with effectively no prospect of recovering that cost from the plaintiff if they succeed, or paying the plaintiff money which he does not deserve if he does not have a good claim, just to get him to go away. That I think is perhaps more particularly a matter of concern in the case of the second defendant than the third defendant, which is in a better position to defend a bad claim on principle, but in either case this to some extent tells against allowing the matter to continue. The second of these considerations, the psychological effect, is obviously only relevant to the second defendant, but is I think a matter of some significance in his case, particularly given the nature of the allegations against him, and the fact that aggravated and exemplary damages are sought.11 Is the plaintiff’s claim bad or insubstantial? [27] It was further submitted on behalf of the third defendant that the plaintiff’s case as currently pleaded was doomed, following the striking out of paragraph 22. The submission was that that paragraph was critical to the plaintiff’s case, and that the plaintiff having elected not to pursue it, the statement of claim disclosed no cause of action. I do not agree. For reasons I set out in more detail in my earlier reasons for judgment, what paragraph 22 pleaded was really an alternative case to the allegation that the prosecution was instituted without reasonable and probable cause. It alleged that the prosecution was continued without reasonable and probable cause and in pursuance of an improper purpose or malice. If the prosecution was improperly instituted, then whatever happened thereafter was actionable. The claim in paragraph 22, that the prosecution was improperly continued, was really an alternative claim, because it becomes relevant only if the prosecution was properly instituted, but the continuation of it then became improper. It is not necessary in my 11 The third defendant submitted that aggravated and exemplary damages were not available against it because of the Police Service Administration Act 1990, s 10.5(2). It is unnecessary to decide whether this is correct. -- 8 of 11 -- 9 opinion for a plaintiff who has established that the institution of a prosecution was improper to go on to prove that the continuation of it was also improper. [28] In supplementary submissions, on behalf of the third defendant, it was submitted that the damages would fall to be assessed by reference to the fact of the institution of the prosecution and no other circumstances, and the fact of the continuation of the prosecution after its institution should be disregarded. But no authority was cited for that proposition, and I do not accept it. It may well be that a prosecution may be instituted without necessarily reaching a stage at which damage to the plaintiff results.12 But so long as a prosecution which was instituted maliciously does reach a stage at which damage results, it is not necessary in my opinion for the plaintiff to go further and prove that the continuation of the prosecution, as distinct from its institution, was malicious. [29] Those submissions also address the question of whether and to what extent the kind of damage which may be recovered in an action for malicious prosecution is confined. It was however conceded that, given the nature of the charge in the indictment which was presented against the plaintiff, there would be a presumption that he had suffered sufficient damage in at least one of those kinds to satisfy the requirement of proof of damage as an essential element of the tort. I do not accept that it follows from this that the plaintiff is necessarily confined to nominal damages if he can show that the prosecution really was instituted maliciously. Overall I am not persuaded that, if the plaintiff were to succeed against the third defendant, the damages would necessarily be nominal or quite small, so that there is really no point in allowing the action to proceed against the third defendant. [30] Recently in Seabrook v Allianz Australia Insurance Ltd [2005] QCA 58, McPherson JA said at [10] in relation to an action for malicious prosecution: “Some feelings of hurt and loss of self-esteem are common to all of those who suffer unwarranted reflections on their reputation, and may readily be assumed or inferred on slight evidence in all or most cases of this kind. They form the proper subject of an award of ordinary compensatory damages.” [31] In relation to the second defendant, it was submitted that the present statement of claim does not actually plead the arguable case identified in my earlier reasons, the existence of which justified my refusal to strike out the statement of claim against the second defendant. However, what I actually said in paragraph [36] was that it “does not clearly make that case. It is only by gathering together various primary facts from different particulars and different allegations in the pleading that it is possible to identify a potentially valid case that the plaintiff has against the first and second defendants.” [emphasis added] Strictly speaking, this was not a situation where I was deciding that, although the present pleading was insufficient to disclose a cause of action, I would not strike it out without liberty to replead. What I was deciding was really that, if one put together the various material facts which were scattered about the pleading, they were the basis of a cause of action which was at least arguable, even though the cause of action on that basis was not clearly articulated in the pleading. 12 Amin v Bannerjee [1947] AC 322 at 331. -- 9 of 11 -- 10 [32] Perhaps I am setting too low the standard required for an acceptable pleading. I would certainly not like to encourage the belief that it is sufficient to plead a mass of unconnected facts in the hope that it is possible for the court to find lurking within them sufficient facts to amount to an arguable cause of action, and thereby preserve the pleading from a successful strike out application. Nevertheless, I did conclude on the previous occasion that it was not appropriate to strike out the pleading. Neither party appealed against that decision. I do not intend now to revisit it, to conclude that the pleading as it stands does not plead a good cause of action against the second defendant, so that the plaintiff, by declining to file an amended statement of claim, has elected to go to trial on a pleading which is inadequate. Although I would prefer to see a new and better pleading, the plaintiff is entitled to go to trial against the second defendant on the current pleading. Analysis and conclusion [33] In summary, this is an action concerning events which occurred over ten years ago, where there has been little real progress made in the action since it commenced, and where there have been substantial periods where the plaintiff has done nothing to advance the action, in particular the period between December 2002 and the mediation, and the period after the mediation. In addition, the action was commenced well after the facts which gave rise to it occurred. The explanation for the delay does not provide any excuse, or any great confidence that the action will proceed more expeditiously in the future, and means that the defendants are exposed to the risk that if they are successful in the action they will be unable to recover any order for costs. The action is one where there will be as significant features oral evidence and the recollection of individuals about events over ten years ago. I have difficulty in seeing how there can be a fair trial of those issues after so long a delay, and I think that the delay is bound to have caused some prejudice to the defendants in their defence of the claim. Insofar as I am able to assess it, the plaintiff’s action is not a particularly promising one. [34] On the other hand, the delay since the last step in the action has not yet reached the two year point, which is significant, both in terms of the statutory jurisdiction to dismiss for want of prosecution, and r 389. This is not a case where the delay is so great that the plaintiff is prima facie prohibited from proceeding further with the action. The plaintiff is not in breach and has not ever been in breach of any orders of the court. It occurs to me that, so far as the action against the third defendant is concerned, there may be a public interest in having a claim of malicious prosecution litigated, because, if the plaintiff has a good case against the third defendant for malicious prosecution, the litigation of it may help to discourage other police officers in the future from involvement in malicious prosecution. Perhaps there is some similar interest in the case of insurance assessors, although I would think that if there were it would be less significant. I am also concerned that to some extent the delay since the failure of the mediation is attributable to my failure to continue to case manage the action, as I said I would do in my earlier reasons. It may be that, if I had listed the matter for further review following the failed mediation, the situation would have been brought to a head well before now. [35] Finally, I am concerned that, although there is authority that the court may in an appropriate case dismiss an action under r 5(4), there is no guidance in the cases as -- 10 of 11 -- 11 to the circumstances under which it would be appropriate to do so. It occurs to me that it would be unlikely that it would be appropriate to do so in circumstances where the court had not previously made any orders or given any directions in relation to the conduct of the matter by the plaintiff, with which the plaintiff had failed to comply, and the two year period specified in s 85 had not yet run. [36] If that two year period had run, and the question were whether I should exercise the statutory discretion to dismiss for want of prosecution, on the basis of the considerations referred to earlier I would dismiss the action against both defendants for want of prosecution. I think that the case for dismissing the action would be stronger in the case of the second defendant, because of the additional considerations referred to in Cooper, the burden of being exposed to substantial costs of defending the action successfully, and the psychological impact of the continuation of the litigation, which are significant for the second defendant. But on balance I think the third defendant would also have made out a sufficient case for dismissal for want of prosecution if the two year time limit had run. But I am not persuaded that the same approach should be applied under r 5(4) when the two year period has not run out, and, bearing in mind the other factors to which I have referred, I am not prepared to make an order dismissing the action for want of prosecution under that rule. [37] Accordingly both applications are dismissed. I will hear submissions in relation to the question of costs. -- 11 of 11 --