Baylin Pty Ltd v Tricon Industries Pty Ltd
[1997] QCA 376
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- Unreported Judgment
- Appeal Determined (QCA)
- Baylin Pty Ltd v Tricon Industries Pty Ltd[1997] QCA 376
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Baylin Pty Ltd v Tricon Industries Pty Ltd[1997] QCA 376
Reported at [1998] 2 Qd R 551
Baylin Pty Ltd v Tricon Industries Pty Ltd[1997] QCA 376
Reported at [1998] 2 Qd R 551
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 10318 of 1996.
Brisbane
[Tricon Industries Pty Ltd v Abel Lemon & Company Pty Ltd (No 2)]
BETWEEN:
BAYLIN PTY LTD
(ACN 009 864 680)
(Second Respondent) First Appellant
AND:
TRICON INDUSTRIES PTY LTD
(ACN 010 021 940)
(First Plaintiff) Second Appellant
AND:
ABEL LEMON & COMPANY PTY LTD
(ACN 004 083 023)
(First Defendant) Respondent
Pincus J.A.
McPherson J.A.
Shepherdson J.
Judgment delivered 24 October 1997
Separate Reasons for Judgment of each Member of the Court, all concurring as to the order made.
APPEAL DISMISSED WITH COSTS
CATCHWORDS: CIVIL - appeal against order striking out action for want of prosecution - action begun in 1983 - beginning in 1987 action substantially "went to sleep" for over 9 years - whether reasonable excuse was given for the delay - whether delay was shown to have caused a risk that the issues could not be fairly tried - delay primarily caused by difficulty in agreeing who should bear the burden of costs and in what proportions.
House v. The King (1936) 55 C.L.R. 499
Birkett v. James [1978] A.C. 297
Department of Transport v. Chris Smaller (Transport) Ltd [1989] A.C. 1197
Grovit v. Doctor [1997] 1 W.L.R. 640
Counsel: Mr I Callinan QC, with him Mr P J D Favell, for the appellants.
Mr J Griffin QC, with him Mr R B Dickson for the respondent.
Solicitors: O'Mara Patterson & Perrier for the appellants.
Murrell Stephenson for the respondent.
Hearing date: 21 August 1997.
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 24 October 1997
This is an appeal by two of the parties to an action, which was begun in 1983, against an order of White J striking out the action for want of prosecution. The case concerns a fire which destroyed an industrial building at Kedron in December 1982. The first appellant, Baylin Pty Ltd, is the second defendant in the action and had let part of the building to the second appellant, Tricon Industries Pty Ltd, which was the first plaintiff in the action and which eventually became the sole plaintiff. The respondent, Abel Lemon & Company Pty Ltd, the first defendant in the action, was sued by Tricon and others on the basis that the fire in the building was caused by the ignition of chemicals stored by Abel Lemon in the building and that this was Abel Lemon’s fault. The expression "Tricon" will be used in these reasons as including, when there were more plaintiffs than one, the other plaintiffs.
The form of the order against which the appeal is brought indicates that Tricon’s and Baylin’s actions against Abel Lemon were to be struck out for want of prosecution. In truth there is only one action; the intended effect of the order was to strike out the whole action, which included a claim made by Baylin against Abel Lemon, the essence of which was that Baylin sought damages for the destruction of the building, which was owned by Baylin, and also indemnity against the claims made against it by the plaintiffs in the action.
The action, begun at the end of 1983, proceeded without any significant delay for two years, when a judgment of the Privy Council was given resolving a legal point in the case. Then for about another year various applications were made, the details of those not being in the record.
But, beginning in January 1987, a period of over 9 years went by during which very few steps were taken by the appellants in the action; from the appellant’s point of view the action substantially "went to sleep" for almost a decade. At the end of that period the appellants attempted to obtain certain orders and the respondent countered by applying, successfully, to have the action struck out for want of prosecution. The essential point in the appeal is whether this long delay from the end of 1986 to mid-1996 was one for which a reasonable excuse was given and whether it was shown to have caused a risk that the issues could not be fairly tried.
In an elaborate judgment, the primary judge determined to bring the action to an end and Mr Callinan QC, who led Mr Favell for the appellants, while conceding the difficulty of upsetting a discretionary judgment, contended that there are a number of considerations which combine to show that the primary judge erred in the exercise of her discretion; this amounted to saying that the test set out in House v. The King (1936) 55 C.L.R. 499 at 505 was satisfied:
"It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
There were only four significant steps taken by the appellant during the period of delay from 1986 to 1996 which I have mentioned. They were that in July 1989 Tricon delivered interrogatories to be answered by Abel Lemon; that in November 1993 Tricon gave Abel Lemon particulars in response to a request made in 1991; that in the same month Baylin filed further affidavits of documents; and that in August 1994 Baylin replied to a request for particulars made by Abel Lemon in 1991. Apart from these four steps the only other formal step taken by the appellants in that period was that the action was entered for trial in 1993; but as was contended by Mr Griffin QC, who led Mr Dickson for the respondent, that was an empty gesture, the matter not being ready for trial. Mr Griffin made the plausible suggestion that the notice of entry for trial was filed simply with a view to taking some other easy step in the action, which was then somnolent.
The evidence as to the cause of this long delay is to be found in an affidavit of Mr B C Smith, a member of the firm of Messrs O'Mara Patterson and Perrier who act for the appellants. Mr Smith says delays occurred as a result of the appellants "being impecunious and having to make detailed arrangements for funding the action". It appears that Mr Charles Seymour, who had the carriage of the action on behalf of Baylin, died in September 1987 and following that Baylin’s insurer required that the litigation be handled by O'Mara Patterson and Perrier on behalf of Baylin. There were then difficulties in making an agreement between Baylin’s directors and the insurer "relevant to the ongoing carriage of the action". Those difficulties, it appears from the context, had to do with funding and they were not resolved until September 1989. But from that point another similar dispute arose involving Tricon and the insurer, and it had to be resolved. Its resolution must have been difficult, for nearly seven further years elapsed, after O'Mara Patterson and Perrier received the file from Mr Seymour’s firm, until an agreement was made, in July 1996, in relation to the funding of the action on behalf of Tricon. It appears from correspondence annexed to Mr Smith’s affidavit that one problem (perhaps not the only one) was that a Mr Taylor desired the difference between solicitor/client and party/party costs to be treated in a certain way, as between the insurer I have mentioned and Tricon, which is described as Mr Taylor’s company; the insurer found that unacceptable.
The full details of the disputes about costs, involving the appellants and the insurer, do not appear from Mr Smith’s affidavit and they hardly matter; it seems clear enough that it was these disputes which were the substantial cause of the lack of activity from 1986 to 1996. I emphasise this because it is contended for the appellants that lack of money on the appellants’ side was a cause of the delay. That is not established by the evidence. There is no evidence as to the financial position of Tricon; there is evidence that neither Baylin itself nor Mrs Seymour, whose family has a one-sixth share in Baylin, was able to fund the action. It appears that a number of persons on the appellants’ side - how many is unclear - had a financial interest in the outcome of the action: the two companies Baylin and Tricon, their shareholders and the insurer. That not all of these persons were, individually, in a position to fund the action hardly supports the proposition that impecuniosity was a cause of the delay. The essential problem appears to have been that those interested, perhaps unsurprisingly, found difficulty in agreeing who should bear the burden of costs and in what proportions.
The primary judge referred to the statement of Lord Diplock in Birkett v. James [1978] A.C. 297 at 318 as being the most quoted exposition of the circumstances in which an action will be struck out; for present purposes it is enough to say that the statement would require proof of inordinate and inexcusable delay on the part of the appellants or their lawyers and of a substantial risk that it is impossible to have a fair trial of the issues, or that the delay is likely to cause or have caused serious prejudice to the respondent.
No attempt was made, in the present case, to suggest that the continuing application of this doctrine should be given consideration, but I note that the House of Lords has twice discussed that subject. In Department of Transport v. Chris Smaller (Transport) Ltd [1989] A.C. 1197, Lord Griffiths, with whom the other members of the House of Lords agreed, quoted at length views held in the Court of Appeal about the effect of the decision in Birkett v. James, including the following:
"By far the major part of all delays stems solely from the way in which litigation is conducted. In this connection our law needs to be changed, both in substance and procedurally. The principles laid down in Birkett v. James are unsatisfactory and inadequate. They are far too lenient to deal effectively with excessive delays. Moreover they then breed excessive further delays and costs in their application . . . the regime of Birkett v. James should be replaced by a system of rules which are much stricter, more effective and simple to apply". (1204)
In that case the House of Lords rejected the invitation to revise the doctrine of Birkett v. James, favouring rather a "radical overhaul of the whole civil procedural process and the introduction of court controlled case management techniques . . ." (1207). Recently a similar event occurred, when the House of Lords considered the appeal in Grovit v. Doctor [1997] 1 W.L.R. 640. Lord Woolf, with whose reasons the other judges agreed, referred to what had happened in the 1989 case, to the fact there had not been any improvement in the "problems caused by delay in the conduct of civil proceedings" since Lord Griffiths’ speech, that a "crude remedy" involving automatic strike-out had been introduced in the County Court and that ". . . there is now on the horizon the introduction of the sort of process of reform to the rules of procedure which Lord Griffiths thought was required". Lord Woolf remarked:
"In this situation it is at least open to question whether it is not preferable to await the outcome of the implementation of the new rules before making a substantial inroad on the principles endorsed by Lord Diplock in Birkett v. James [1978] A.C. 297"
The lack of enthusiasm for the effect of the decision in Birkett v. James, manifested in the United Kingdom, did not encourage Mr Griffin QC to suggest that perhaps its application in this State should be reconsidered by this Court. But I feel obliged to say that the circumstance that a period of nearly 10 years was allowed to go by while the lawyers for the parties other than the respondent debated who should bear the costs in the present case is symptomatic of an approach which may have been engendered, or continued, by the barriers erected in Birkett v. James against applications to strike-out for want of prosecution. In a time when complaints of delay in the disposition of legal proceedings are legion, one may question whether principles which can encourage delay and which have been said to have failed in their country of origin should continue to be applied in this State. The argument advanced on behalf of the appellants here gave the impression that there may be an idea abroad that, as long as an action is kept "ticking over" by ensuring that something is done in every three year period, even very long delays will ordinarily be treated as excusable.
In the reasons of the primary judge, her Honour said she arrived with "little doubt" at the conclusion that the delay was inordinate and that is clearly right. With respect to the question of whether the delay was excusable, her Honour remarked:
"The explanation for the periods of delay is that Tricon and Baylin were not fully insured in respect of their losses and were unable to reach a satisfactory agreement with the insurer, who was the same for both, as to the companies’ contribution to the costs of the action. Baylin’s solicitor who had a small interest in the company died in about 1987. These are not adequate excuses."
I respectfully agree. It is perhaps repetitive to say so, but the problem was not that all those with a financial interest in the fate of the action on the respondent’s side were shown to have no money; whether, if that were so, the delay from 1986 to 1996 would have been excusable need not be considered.
The primary judge regarded the question of prejudice as the critical issue and concluded, after a thorough review of the evidence on that point, that "there will be prejudice to Abel Lemon if the matter is to proceed to trial such that a fair trial may not be had after a period of 14 years since the date of the fire". It is unnecessary, for present purposes, to review in detail the evidence which was referred to by the primary judge as supporting that conclusion, but two points should be noticed. The plaintiffs’ statement of claim in its original form set out that the fire was caused by a spontaneous ignition of chemicals stored by Abel Lemon on its premises; a similar allegation was made in Baylin’s statement of claim delivered to Abel Lemon. One of the applications before the primary judge was for leave to amend Baylin’s statement of claim by setting up that in 1982 Abel Lemon stored calcium hypochlorite outside the building in question, that because this substance was rained on, or because of the way it was wrapped, condensation formed on the inside of the wrapping and, to put it simply, these matters caused the fire. The application to amend in this way is no longer pressed, but its significance is that the case does not appear to be seen by Baylin as one in which the basic cause of the fire, or even whether it started inside or outside the building, is now known.
A number of named persons have been identified as likely to be able to give evidence relevant to these matters. Some of them have given statements and this is a factor which tells against the correctness of the order which the primary judge made; but her Honour took it into account in concluding that there would be prejudice to Abel Lemon caused by the delay and it seems clear enough that this is so. The case is one in which it is not possible, at present, to know what will turn out to be the critical factual questions in the case, but the very length of the delay in my opinion took the respondent some considerable distance towards success on the issue of prejudice. In an action in the Supreme Court of Victoria, in which 15 years had elapsed since the events in question reached the court it was said that:
"If such a delay occurs, it takes little to satisfy a court that there is a real risk, or as it is sometimes called, a substantial risk that, at the eventual trial of issues, justice could not be done." (Shire of Myrtleford v. Bowater Scott Ltd (1985) 62 L.G.R.A. 314 at 317)
The primary judge referred to the reasons of McHugh J. in Brisbane South Regional Health Authority v. Taylor (1996) 70 A.L.J.R. 866. Speaking of the general perception that "[w]here there is delay the whole quality of justice deteriorates", his Honour said:
"Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists . . . it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose".
Very little was said in argument by way of direct criticism of the detailed reasoning of the primary judge which seems, with respect, to be convincing. But it was contended that for a number of reasons this Court should disagree with her Honour’s conclusion. There were argued to be special circumstances which would justify reversal of the decision attacked.
First, said Mr Callinan, there was the fact that the Privy Council’s decision was somewhat surprising. It is not clear to me what bearing this, if correct, could have upon the question before the primary judge. No complaint is or could be made of any delay prior to the decision of the Privy Council, which was given in December 1985.
Second, two deaths said to have affected the progress of the action were mentioned, that of Mr Seymour, referred to above and that of a Dr Geraghty, who was a shareholder in Baylin. Mr Seymour’s death presumably would have held the action up only fairly briefly, were it not for the fact that there was a dispute as to the terms on which O'Mara Patterson and Perrier would take over the conduct of the matter. There is no evidence that Dr Geraghty’s death had an effect upon the progress of the action. A third "special circumstance" relied on by Mr Callinan was impecuniosity, which has already been discussed.
A fourth was that there is no action available against solicitors; Mr Callinan explained that there was no evidence that any solicitors were negligent. Reliance was placed upon discussion by Diplock L.J. in Allen v. Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229 at 257, about the position of a blameless party who may have an action against a negligent solicitor for delay. This is not relevant to the present problem; there is no principle that if inexcusable delay occurs but (the assumption made by Mr Callinan) the delaying party’s solicitors are not at fault, that is a matter which goes in favour of the delaying party, on an application to strike out.
The fifth matter relied on was the possibility of tendering witnesses’ statements or other documentary evidence, under s. 92 of the Evidence Act 1977; the submission was in effect that the primary judge did not give enough weight to this. Her Honour expressed the opinion that "those statements are of little use if the witnesses cannot recall what is in them". With respect, that may be somewhat too broad, but it is in my opinion true that often statements tendered under the provision I have mentioned will not advance a tendering party’s case, if the maker denies any memory of the matters spoken of in the statement.
Lastly, Mr Callinan relied upon participation by Abel Lemon in recent events relating to the action, in particular correspondence concerning a certificate said to evidence Abel Lemon’s right under statute law to store chemicals on the premises in question. It was argued for the respondent that it is difficult to see what the certificate could have to do with the case, where there is no allegation of breach of any statute. Further, Mr Griffin contended that, as was asserted by the respondent, the certificate was very difficult to locate and if it was thought to be of any importance an attempt could have been made to obtain it from the relevant government department. These contentions appear to be sound; although the fact that there was some correspondence about the certificate in 1994 and 1995 assists the appellants, it does not appear to me a point of any great significance. It was certainly not any problem about locating a storage licence which held the action up.
The case is one in which recollections would matter. No doubt there are circumstances in which an action depending on recollection which has been allowed to lie fallow for almost a decade will be allowed to be revived, but it is my opinion that a court should be reluctant to allow that to occur and should fairly readily infer that such a long delay would prejudice a fair trial of the action. The appeal seeks to upset, as having reached an unreasonable conclusion, the result of the exercise of a discretionary judgment which has not been shown to be incorrect. It should be dismissed with costs.
REASONS FOR JUDGMENT - McPHERSON J.A.
In my opinion, the appeal should be dismissed with costs. I agree with the reasons of Pincus J.A.
REASONS FOR JUDGMENT - SHEPHERDSON J.
I have read the reasons for judgment in draft prepared by Pincus JA. I propose to address the question of prejudice regarded by the primary judge as the critical issue and her conclusion that “there will be prejudice to Abel Lemon if the matter is to proceed to trial such that a fair trial may not be had after a period of 14 years since the date of the fire”.
The evidence on this question placed before Her Honour by the respondent, came in part from the affidavit of Robert John Luxton a solicitor and an associate of the firm of solicitors acting for the respondent. His affidavit included hearsay evidence from John Julian Tenison-Woods and Gary Fisher. Tenison-Woods was the administration manager for Abel Lemon at the time of the fire and Fisher, at that time, was manager of the pool chemical division of Abel Lemon. In para. 7 of his affidavit (R248) Luxton said:-
“On or about 5th September 1996 I spoke on the telephone to a person who informed me and I verily believe that his name was John Julian Tennison (sic)-Woods. He further informed me and I verily believe that he was an administration manager for Abel Lemon at the time of the fire. He was responsible for storing, warehousing and movement of goods. He said that apart from any independent recollection as to the position in which large drums of chlorine were stored his memory concerning the disposition of chemicals in the warehouse at the time of the fire is hazy. He is currently 70 years of age and turns 71 in the week commencing 9th September 1996.”
In para.8 Luxton swore:-
“On or about 6 September, 1996 I had a telephone conversation with a person who informed me and I verily believe that he was Gary Fisher and that at the time of the incident that is the subject of this claim he was manager of the Pool Chemical Division of Abel Lemon & Company Pty Ltd in Brisbane. He informed me and I verily believe in that he was responsible for the attainment of budgeted sales within the branch and that he had responsibilities with regard to pool chemicals at the plant although John Julian Tenison-Woods as Administration Manager, had a primary responsibility for the way in which the pool chemicals were stowed (sic). Gary Fisher further informed me and I verily believed that although he can recall drawing diagrams showing the distribution of chemicals, he no longer has an independent recollection of such facts.”
Later in his affidavit Luxton set out a number of reasons why he said he was concerned that delay in prosecution of the action had given rise to a substantial risk that a fair trial would not be possible and to serious prejudice to the respondent Abel Lemon. One of these reasons was:-
“The Administration Manager of the first defendant’s premises Mr John Julian Tenison-Woods was the person responsible for the storage warehousing and movement of goods within the first defendant’s premises. His evidence will be necessary to refute any allegation that the goods were not stored with proper care. Although Mr Tenison-Woods has been located, he is now 71 years of age and he says that his independent recollection of details concerning the storage of goods within the premises has faded and although he can remember the whereabouts of various items he no longer has a detailed recollection of the disposition of the chemicals within the building.”
Luxton then went on to mention Fisher and said:-
“Mr Fisher says that he is not able from his own memory to recall the disposition of chemicals or the state of the premises at the time of the fire.”
The summary by Luxton of Tenison-Wood’s evidence does not in my view accurately accord with what Luxton had deposed to in the above quoted paragraph 7 of his affidavit.
I turn now to the detailed reasons for judgment of the primary judge. She mentioned a number of potential witnesses identified by the solicitors for Abel Lemon as necessary to Abel Lemon’s case. When it came to Tenison-Woods Her Honour said:-
“Mr John Woods was an Administration Manager for Abel Lemon in Brisbane at the time of the fire. He was responsible for storing warehousing and the movement of the chemicals. He has told Mr Luxton a solicitor for Abel Lemon that he is aged 71 years and apart from being able to recall the position of large drums of chlorine at the time his memory concerning the disposition of chemicals in the warehouse is now hazy. Mr Griffin QC submits that his evidence would be necessary to refute any allegation that the goods were not stored with proper care.”
Her Honour next mentioned Mr Fisher and his limited recollection and said - “He has said that although he had a lot to do with sales Mr Woods was primarily responsible for the storage of the chemicals.”
It is apparent that Tenison-Woods will be an important witness for the defendant on the issue of liability. Her Honour considered other evidence including a report on the fire prepared by the Metropolitan Fire Brigade’s Boards Fire Prevention Department. She gave some details from the report and noted that it concluded that spontaneous ignition by the intermixing of reactive chemicals was the most likely cause of fire but that incendiarism could not be ruled out. Her Honour mentioned the fact that in 1986 Abel Lemon had retained two international experts on the combination of chemicals. Their reports appear not to have been put before Her Honour but she said:-
“Their reports will be dependent upon factual evidence including how the chemicals were stored, the conditions inside the warehouse and the path of the fire.”
She went on:-
“District Officer O'Brien’s evidence as to where the fire appeared to have started and how it progressed would be of considerable importance. The statement in the report attributed to him, presuming that it would be admitted into evidence is brief. There is the evidence of MacFarlane and Sparks as to where the fire appeared to commence but there is no indication as to whether those witnesses would be available to give evidence or the state of their memories. Mr Gary Fisher now has only a hazy recollection of the layout of the warehouse and the storage of the chemicals. He does recall that he did draw the diagrams which are exhibited to the interrogatories. Mr Probert seems to have a clear recollection of the events. Mr Woods now has a hazy recollection about storage matters. He was the employee in charge of storage and the like and his loss of memory must be considered as quite serious. Whilst Mr Fisher’s diagrams would deal with the general layout and storage nonetheless Mr Woods might have been expected to know of any particular changes or differences from those diagrams on the Saturday before the fire. In any event Mr Fisher did not swear the interrogatories relating to these matters. There is real prejudice in a forensic sense to a litigant whose witnesses are unable of their own recollection to given evidence about the matters for which he or she has been called but merely to agree that he or she drew a diagram or answered an interrogatory in a particular way.”
On the next page of her reasons for judgment, after referring to an extract from the judgment of McHugh J in Brisbane South Regional Health Authority re Taylor Her Honour went on:-
“Here there are some witnesses who say they have a good recollection of the events of the night and I particular refer to Mr Probert. However there are a number of important witnesses particularly Mr Wood who was in charge of the disposition and storage of chemicals within the warehouse who have but a hazy recollection of those matters now. Mr Fisher’s recollection is similarly limited. The first fire officers on the scene are unable to give evidence or have no recollection.”
With respect, the statement that Mr Woods has “but a hazy recollection of those matters now” - obviously referring to disposition and storage of chemicals within the warehouse - did not accurately reflect what, according to Luxton, Mr Tenison-Woods had told him in his telephone conversation on 5 September 1996.
After Her Honour had decided “on a consideration of all of the evidence” that there had been such an inordinate delay that she inferred there would be prejudice to the respondent if the matter were to proceed to trial such that a fair trial might not be had after a period of 14 years since the date of the fire, and that the actions should be struck out, Her Honour considered certain amendments which had been sought by the present appellant. In the course of considering these amendments Her Honour considered a submission by counsel for the present appellant that how the chemicals were stored had always been a central issue. She recognised that that was so and shortly after said this:-
“It is 14 years since the fire and both Mr Woods and Mr Fisher, the relevant witnesses, have at best a very hazy recollection of where the chemicals were stored.”
Again, in my respectful view this statement does not accurately reflect what according to Luxton, Tenison-Woods and Fisher had told him on 5 and 6 September 1996 respectively - Tenison-Woods recall has gone from “hazy” to “very hazy”.
I mention these aspects of the reasons for judgment because I am concerned that the learned chamber judge in her considered reasons appears to have concluded that the recall of Mr Tenison-Woods in particular was more hazy and in effect worse than Mr Luxton had reported in his affidavit and that that hazy recollection extended into areas not borne out by Luxton’s report of his conversation with Mr Tenison-Woods. The appeal to this Court is brought from the exercise of a discretion. The matter has proceeded at a snail’s pace for many years. Other evidence before the learned primary judge showed that Mr Tenison-Woods had been involved in the action as early as 31 May 1984. On that day he, as administration manager of Abel Lemon & Company Pty Ltd swore an affidavit of documents on behalf of the first defendant. This affidavit in schedule 1 part 2 mentioned (without any identification) proof of evidence.
In view of the obvious importance of Mr Tenison-Woods as a witness (as demonstrated in Her Honour’s reasons) one has to ask oneself - at the time of the application to strike out did the respondent have a proof of evidence signed by Mr Tenison-Woods and if so when was it obtained and what did it say? The respondent, as applicant to strike out bore an onus of proving the prejudice on which it relied. If indeed it did have signed statements from Tenison-Woods and/or Fisher then in my view it should have disclosed that fact or those facts. In Naylor v. Preston Area Health Authority (1987) 1WLR 958 Sir John Donaldson MR in giving his judgment said (at p. 967):-
“Although the English courts adhere in the main to what is known as an adversarial procedure, we have moved far and fast from a procedure whereby tactical considerations which did not have any relation to the achievement of justice were allowed to carry any weight. This is as it should be. Justice is not achieved by a war of attrition in which survival is a prize to be awarded to the party with the greatest determination and longest purse. Nor is justice normally achieved by the surprise attack, although it can be. Quite different examples of this are (a) the use of ex parte Anton Piller and Mareva orders, and (b) the concealment of rebutting evidence until the trial, where there are real grounds for doubting the initial bona fides of one of the parties or for suspecting that the revelation of the opposing party’s evidence will lead to dishonest “trimming” of that party’s evidence. But nowadays the general rule is that, whilst a party is entitled to privacy in seeking out the “cards” for his hand, once he has put his hand together, the litigation is to be conducted with all the cards face up on the table. Furthermore, most of the cards have to be put down well before the hearing. This is not the product of a change of fashion or even of a recognition that professional judges approach their duties on the basis of mental equipment, training and attitudes of mind which are far removed from those of juries. It is the product of a growing appreciation that the public interest demands that justice be provided as swiftly and as economically as possible.”
In my view the sentiments in this extract should be applied and should have been applied in the present case. One of the cards to be placed face up on the table by the respondent was any statement by Tenison-Woods (if it existed) - his evidence appears to be more important than that of Fisher. I thought Luxton’s affidavit on which the respondent relied appeared unreliable in a number of respects. For instance, Luxton swore that on or about 6 September 1996 he attempted without success to locate Kerry Phillip Probert a patrol officer then employed by Metropolitan Security Services as at the date of the fire. His chain of enquiries has been detailed in his affidavit even to the point of exhibiting a copy of a page from 1996 Telstra White Pages for Brisbane. Brian Charles Smith the solicitor acting for the present appellant, in an affidavit sworn on 30 September 1996 said he had been able to locate Probert and he gave details of a conversation he had with him on 18 September 1996. Furthermore, he gave evidence of a conversation with Fisher in which, according to Smith, Fisher recalled greater details concerning the storage and manner of storage of calcium hypochlorite. Luxton’s affidavit mentioned an employee named Longhurst “who he understood to be living somewhere in Sydney”. Smith in his affidavit identified Longhurst’s place of residence and a conversation which he had since had with him.
Smith also mentioned other persons to whom he had spoken and which were not referred to in Luxton’s affidavit.
I mention these particular matters because at the end of the day the learned chamber judge was left with Luxton’s version of conversations which he said he had had with Tenison-Woods and Fisher. In a matter such as the present where a court was being asked to terminate summarily the plaintiff’s action it is my view that the material placed before the court should be in such a form that the judge can confidently rely on the accuracy of that material. In the present case for reasons to which I have referred, that evidence, particularly in so far as concerns Tenison-Woods appears to be unsatisfactory and was such that in my view the evidence from Tenison-Woods should have been obtained in affidavit or signed statement form. Although hearsay evidence is admissible on such occasions (Order 41 rule 3) nevertheless, because of the extreme seriousness of striking out an action it is my view that evidence in which prejudice is said to arise should if possible be placed before the court either in signed statement form or in affidavit form.
It is true to say the learned primary judge considered prejudice in other areas, and a reading of her reasons discloses that the recall of Mr Tenison-Woods was important to her conclusion that if the matter proceeds to trial there will be prejudice to Abel Lemon such that a fair trial may not be had. Despite my views concerning the manner in which the learned primary judge has treated Luxton’s evidence reporting his conversation with Mr Tenison-Woods, and the quality of Luxton’s reporting, there is no doubt that Mr Tenison-Woods does have a hazy memory of the disposition of chemicals inside the warehouse. The disposition of the chemicals will be an important issue at trial. Add to that the problems concerning witnesses as to the path of the fire and the lapse of some 14 years since the fire and the correctness of the exercise of Her Honour’s discretion becomes apparent.
I agree that the appeal should be dismissed.