Amos v Brisbane TV Ltd [1994] QSC 205

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND f' CIVIL JURISDICTION DERRINGTON J No 3653 of 1987 EDWARD AMOS and BRISBANE TV LIMITED BRISBANE .. DATE 24/08/94 JUDGMENT Jlo'l ,.... 1 REVISED COPiES ISSUED State Repoitlng Burauu Dale S/ Plaintiff Defendant -- 1 of 11 -- 240894 lu (Derrington J) HIS HONOUR: The defendant's application to dismiss the application for want of prosecution is dismissed with costs to be taxed. The plaintiff is granted leave to proceed with the action. He is ordered to pay the defendant its costs of and incidental to 10 the application, that is his application, to be taxed. I publish my reasons. 20 30 40 50 60 JUDGMENT 2 -- 2 of 11 -- IN THE SUPREME COURT OF QUEENSLAND No. 3653 of 1987 [Amos and Brisbane TV Ltd] BETWEEN: EDWARD AMOS Plaintiff AND: BRISBANE T.V. LIMITED Defendant JUDGMENT DERRINGTON J. DELIVERED: 24/08/1994 CATCHWORDS: Practice. Striking out action for want of prosecution. Application for leave to proceed. Delay excusable. Prejudice not properly shown. Leave to proceed granted. COUNSEL: The Plaintiff in person Mr Horneman-Wren for the Defendant SOLICITORS: Freehill Hollingdale & Page for the Defendant HEARING DATE: 18 July 1994 -- 3 of 11 -- IN THE SUPREME COURT OF QUEENSLAND No. 3653 of 1987 BETWEEN: EDWARD AMOS Plaintiff AND: BRISBANE T.V. LIMITED Defendant JUDGMENT DERRINGTON J. Delivered the 24th day of August 1994 This is a case of cross-applications in an action for defamation, the defendant seeking ·to have the action struck out for want of prosecution, and the plaintiff seeking leave to proceed because no step has been taken in the action for three years and upwards. The statements alleged to be defamatory were broadcast by the defendant on 28th September 1987. The following is a short chronology:- 30th September 1987 6th October 1987 27th October 1987 11th August 1989 9th October 1989 9th November 1989 Writ issued Entry of Appearance Notice by plaintiff under s. 117A of and Television Act record of programme Statement of Claim to defendant Broadcasting to preserve Amended Statement of Claim Statement of Claim against second defendant struck out -- 4 of 11 -- 7th December 1989 8th December 1989 15th January 1990 15th January 1990 21st February 1990 21st February 1990 28th March 1990 21st May 1990 16th August 1990 18th September 1990 2 Action against second defendant discontinued Amended Statement of Claim Defence Defendant's particulars request Particulars delivered Reply delivered Plaintiff's documents Defendant's documents affidavit affidavit for of of Plaintiff's particulars transfer of Court request and action for further answer on to District Defendant's supplementary affidavit of documents No step has been taken in the action since the last item. This constitutes serious delay. Equally, although the writ was issued almost immediately, there was some significant delay before the delivery of the first statement of claim, but after that steps in the action were taken by the plaintiff reasonably promptly. This might be compared with the promptness with which the action was begun. Conversely, it might also be noted that the defendant was a little slow in service of its affidavit of documents, and it was also obliged to serve a supplementary one after complaint by the plaintiff. Further, and perhaps more importantly, the defendant has never replied to the plaintiff's request for certain particulars and for an answer to his proposal for the transfer of the action to the District Court. -- 5 of 11 -- 3 On 6th June 1994 the defendant's solicitors wrote to the plaintiff's solicitors foreshadowing an application to strike out the action for want of prosecution unless it were discontinued. The plaintiff's solicitors replied on 14th June foreshadowing an application for leave to proceed. The defendant then instituted its application followed by the plaintiff's application. The plaintiff seeks to explain away his delay between the issue of the writ and the delivery of the statement of claim by reference to a dispute which he undoubtedly had with his then solicitor concerning alleged negligence by the solicitor in another matter. He says that the solicitor declined to act further for him and refused to release his papers, but the dispute does not appear to have arisen until May 1 989, and even then the solicitor indicated his preparedness to cooperate in order to avoid prejudice to the plaintiff in this matter. In respect of the delay since September 1990, the plaintiff claims that it is partly due to his incapacity from injury sustained in an accident on 22nd January 1990 and partly due to impecuniosity. The latter., he says, was caused by losses sustained in his business, some of them attributable to his injuries, and by the high cost of education of his children. Any problems which he had in this respect were enlarged because his then solicitors, who had agreed to expect no payment of their fees until the end of the action, were forced by economic circumstances to review that policy and -- 6 of 11 -- 4 sought from him payment of costs already incurred and suitable funding during the further progress of the action. In respect of his excuse relating to injuries, the uncontradicted and unchallenged evidence seems to support his claim that in such an accident he suffered injuries which affected his back and legs, causing restrictions upon his mobility and capacity to stand. While the action continued to progress from the time of his accident in January until September of that year, this does not detract from the thrust of his claim. Much of the activity in this period, such as it was, came from the defendant and the legal representatives on both sides. The medical reports which he has tendered do not support his claim of physical incapacity for attending to his responsibilities in claim that he was documentary support the litigation, but they do support his incapable of working; and there is for his assertion that he suffered a seriously reduced income. In addition, he tried to sell one of his properties, which would have put him in funds, but the progress of the sale was delayed by litigation, in which he was successful, and the proceeds of the disposal of the property have only recently been received. funds to obtain legal He claims that he now has sufficient representation again, though he represented himself on these applications. In summary, on the uncontested evidence, the plaintiff has established a reasonable if not totally convincing explanation for his delay. It can be attributed, at least in -- 7 of 11 -- 5 a substantial part, to personal misfortunes that probably impeded his pursuit of the action and at least seriously distracted him after he had shown reasonable regard for his responsibilities. That however is not the complete answer. The defendant claims prejudice as the result of the delay. It is said that the memory of witnesses has deteriorated due to the passage of time, and particularly that of the journalist responsible for researching, preparing and presenting the relevant report. This claim appears to be selectively phrased, and it is not suggested that there are no statements from which their memories could be refreshed. Relevant statements should have been obtained from them at an early stage so that, among other things, their memories could later be refreshed if necessary. It is also said that the reporter's notes of his research in preparation for the report are no longer in his possession. It is not said that they are not in the possession of the defendant or its legal representatives, nor even is it said that they are lost. Even if they were lost, it· is not said that copies of them had not been taken for the purposes of litigation, as would be expected. Moreover, even at the worst, it is not shown that this situation has been due to the plaintiff's delay or that the defendant is in any worse position than it would have been if the action had proceeded at a proper pace. Finally it is suggested that attempts to contact potential witnesses by mail have been unsuccessful. It is difficult to understand the purpose behind the evidence led of -- 8 of 11 -- 6 attempts to locate two persons called Ettershank and Irwin, because they have apparently responded. Further, the evidence concerning the former's statements appears to be irrelevant. As to the other persons, the extent of the inquiry has been minimal and cannot support the proposition that they cannot be found by reasonable inquiry. Further there is no explanation as to why an attempt was not made to locate them at a much earlier time than shortly before this application, that is, more than four years after delivery of the Defence. In summary, the defendant has not advanced evidence upon which it can reasonably be found that there is any serious prejudice. It is likely that the memories of witnesses have diminished with the passage of time, but it is far from certain that this is more than would have occurred if the plaintiff had reasonably pursued his action, for the delay ordinarily experienced in litigation usually has some such effect. In addition, the defendant has not been entirely free of blame, particularly in its failure to respond to the plaintiff's request for particulars. While it may be arguable whether it was bound to provide them, it could at least have stated its position. Moreover, it did not respond to the reasonable suggestion that the matter be transferred to the District Court. Of course, none of this contributed to the plaintiff's delay, which would have occurred whether this lack of cooperation on the defendant's part had occurred or not; but the defendant's own conduct is a relevant factor. -- 9 of 11 -- 7 While the defendant is not required to have provoked the plaintiff into proceeding timeously, and it was entitled to allow the matter to go to sleep without attempting to wake it, it is not in as strong a position in contesting these applications as it would have been had it tried to move the action along: Stolznow v. Calvert (1980) 2 N.S.W. L.R. 749, 754. If the plaintiff's excuses for his delay, such as they are, are taken into account with the prejudice which the defendant will experience, such as it is, then on the principles laid down by the usual authorities, the plaintiff should be allowed to proceed. It follows from the matters supporting that view that the application to strike the action out for want of prosecution should fail. In any case the defendant has not demonstrated that intentional and contumelious default of the plaintiff or serious risk to a fair trial for itself which would justify an order to strike the matter out: cf. Birkett v. James (1978) A.C. 297. Costs Although the plaintiff was successful, his application was made necessary because of his own default, and it was reasonable for the defendant to contest it. Therefore the plaintiff should pay the defendant its costs of and incidental to his application. On the other hand the defendant failed on its application for want of substance. the plaintiff's intention to seek It had been warned of leave to proceed, but -- 10 of 11 -- 8 persisted with its application, and failed. plaintiff his costs of that application. Orders It should pay the The defendant's application to dismiss the action for want of prosecution is dismissed with costs to be taxed. The plaintiff is granted leave to proceed with the action. He is to pay the defendant its costs of and incidental to the application to be taxed. 6, -- 11 of 11 --