IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT DARWIN
A/S 69 of 1984	BETWEEN:
KENNETH REX SIMPSON
Plaintiff
and
NORTHERN TERRITORY OF AUSTRALIA, ROY PTY LTD and
THE COMMONWEALTH OF AUSTRALIA
Defendants

MASTER COULEHAN: REASONS FOR DECISION
(Delivered 10 February 1994)
,
On	9	December	1993,	the	Master	held	a	Status

Assessment Meeting. solicitors attended,

Neither the plaintiff nor his although notice had	been duly

given. The plaintiff's claim was dismissed on the application of the first and third defendants solicitors.

The Master's order  was  made  pursuant  to O.48.22(1) (a) "for want of  prosecution".  No reasons were recorded and it is not known to what extent, if at all, the Master took into account matters other than the failure to appear.

The plaintiff has now applied pursuant to 0.24.06 to have the order set aside. The  application  is opposed by the first and third defendants. It  appears that the second defendant has ceased  to carry on business and is not taking an interest in the proceeding.

In exercising the discretion vested in the Court by provisions such as O.24.06(a) consideration needs to be given to the requirements of justice as between the parties. The parties should be allowed an opportunity to put their case unless their conduct of the proceeding has caused prejudice to other parties. (See Pagett v Davies 70 ALR 793, 799 and
White v Northern Territory 9 KVR 306, 309).

Although  this is not an application	for dismissal for want of prosecution, similar considerations are relevant.	The principle is that where there has been inordinate	and	inexcusable	delay such that a party has suffered prejudice and a fair trial is no longer possible, the proceeding may be dismissed. (See Patsalides v Maqoulias 29 NTR 1).

It may be seen that in both instances the prejudice suffered by other parties is an important consideration.

The cause of action is a motor vehicle accident which occurred near Warrabri, N.T., on 11 July 1978. The plaintiff alleges he was driving the vehicle in the course of his employment by the Bush Fires Council when he lost control and the vehicle overturned.

The plaintiff alleges that in mid June 1978 he requested the second defendant to rectify the steering on the vehicle and that its failure to do so properly was the cause of the accident.

The plaintiff also alleges that the first and second defendants had a duty to ensure that the vehicle was in a fit and proper condition. The  issues involving the defendants is complicated by the

transfer of responsibility following self-government in the Northern Territory which occurred on 1 July 1978.

The plaintiff's explanation for the delay is that he instructed solicitors to proceed in mid 1980.
Thereafter he relied upon them to pursue his claim. He lived in Tennant Creek and spent much of his time away from home.	He was not able to explain why the writ was not issued until 11 July 1984.

In 1988 his injuries deteriorated and he attempted to get information as to the progress of his claim from his solicitors. He became concerned and instructed Mr Cole to act on his behalf.

Mr Cole received the file in February 1990. From time to time the plaintiff received assurances from Mr Cole that his action was proceeding. He was not aware of the Status Assessment Meeting on 9 December 1992.

In fact, there had been very little progress. The statement of claim was not filed until 18 September 1990, following an application by the  third defendant for the dismissal of the claim for want of prosecution. The application  was  withdrawn following the delivery of the statement of claim.

Defences have been filed and the third defendant has filed a list of documents. The proceeding was transferred to Darwin from Alice Springs by Order dated 6 August 1992.

Notice of the Status Assessment Meeting was given to the parties on 17 November 1992. Mr Cole does not dispute receiving the notice. He sent the file to

David Francis and Associates in Darwin.

Mr Francis received the file with a request to take over conduct of the proceeding but was not advised

as to the meeting. locate the notice.

A subsequent search failed to

Mr Francis did not peruse the file for several weeks. He says that he was informed in early March 1991, by an employee whom he requested to attend to the file, that the claim had been dismissed.

There is evidence that Mr Cole was advised by letter dated 22 December 1992 that the application had been dismissed and that the solicitor for the third defendant had discussed an application for reinstatement with an employee of David Francis and Associates on 26 February 1993.

This application was not commenced until 24 August 1993. Mr Francis appears to have left it to his employee until 25 June 1993 when the employee left his employ. There is no explanation for  the failure to take action earlier.

It may be seen from the foregoing that the delay both before and after 9 December 1992 has been

inordinate and inexcusable. other matters to be considered.

There are a number of

The plaintiff's evidence is that he relied on his solicitors. Apart from changing  his solicitors when he became concerned about the lack of progress he appears to have accepted the delay. It is difficult to understand why he allowed this state of

affairs to continue. for cross-examination.

He was not required to attend

The conduct of the defendants is relevant in this context. While they are not required to take action, their inaction over many years deprives their arguments of some force, especially in the face of impending prejudice. (See Patsalides v Magoulias p. 6) •

As to the prejudice suffered by the parties, it is clear that the plaintiff is prevented by the Limitations Act from bringing fresh proceedings.
He may, however, be able to recover damages from his solicitors.

The defendants argue that they have suffered prejudice. In particular, Mr Duncan Townsley, an inspector, who provided a report on the vehicle died in about 1983.

His report may have been of assistance to the plaintiff, as it refers to the condition of the steering. If this is admissible, the defendants may be at a disadvantage because they will not be able to cross-examine him.

However, this prejudice occurred prior to the issue of the writ and has little weight unless compounded by the subsequent delay (eg. Goldie v Johnston (1968) VR 651, 654).

Apart	from	this	evidence,	there	is	no	reliable evidence as to unavailability of witnesses or as to fading memories.		In the absence of such evidence I have some difficulty in concluding that a fair trial is no longer possible despite the inordinate delay. (See Patsalides v Magoulias pp.5-6).

The circumstances of the dismissal are also relevant. The plaintiff's solicitor had no opportunity to explain his absence or argue against dismissal of the claim for want of prosecution.

Nothwithstanding the inordinate and inexcusable delay, I consider that the justice of the case requires the setting aside of the Order of the Master dated 9 December 1992 and I order accordingly.