Case: Newcastle City Council v Batistatos [2005] NSWCA 20 (2005) 43 MVR 381
Outcome: followed
Counsel for the respondent was able to refer me to Newcastle City Council v Batistatos [2005] NSWCA 20 (2005) 43 MVR 381, in which the New South Wales Court of Appeal upheld the dismissal of a proceeding simply because of excessive delay before it was instituted, even though there appears to have been no difficulty about statutory limitation periods. The delay in that case was gross, as were the physical injuries suffered by the person who had commenced the proceeding. Nonetheless, the New South Wales Court of Appeal took the view that the proceeding should be dismissed as an abuse of the court's processes. In the course of the reasons for judgment of Bryson JA, with whom Mason P and Giles JA agreed, at [56] and [57], there appear the following remarks: The observations in Walton v Gardiner confirm the availability of the court's power in civil proceedings, and its availability in cases where there is not, as well as where there is intended abuse of the powers and procedures of the court. My researches suggest that the use of this power on the basis of delay in instituting proceedings in civil cases must be rare. Norman v Howarth (2003) 180 FLR 1; [2003] FamCA 1284 is an instance. A circumstance which has probably restricted applications for and exercise of the power in civil cases, is the availability of statutory time limits for the institution of civil proceedings. Such statutes typically do not operate by conferring authorisation to delay, but simply prevent effectual institution of proceedings, irrespective of merits, after a period determined by the legislature, and they appear to give an authorisation of a kind to allow most of whatever period the statute allows to pass, so long as proceedings are instituted within that period. Observations of McHugh JA in Herron v McGregor at 253 illustrate the difficulty of concluding that there has been an abuse of process where this apparent authorisation exists. A similar difficulty presents itself in a different context where the court is asked to dismiss proceedings which have been commenced in due time but have not been conducted in accordance with time scales prescribed by Rules of Court; there has been a strong general reluctance to dismiss proceedings in such circumstances where the statutory time limits have not expired and it remains open to a plaintiff to commence fresh proceedings: see Birkett v James [1978] AC 297 ; [1977] 2 All ER 801 and Stollznow v Calvert [1980] 2 NSWLR 749. However, I am unable to see any reason in principle why the power should not be exercised in a proper case. The existence of apparent authorisation in a statute of limitation is not in principle a reason why great delay may not be an abuse of process, or a reason why the power of the court may not be exercised. 14 On the basis of that authority, I am not able to say that the federal magistrate in the present case could not have concluded that there was an abuse of process in bringing the proceeding in the Federal Magistrates Court, even though it fell within the statutory time limit. Her Honour took into account the very long delays that had occurred in finalising the latest proceeding in the Human Rights and Equal Opportunity Commission and it appears that she was justified in doing so. Her Honour also took into account material placed before her by the respondent, to the effect that a number of possible witnesses, who might have been called in any proceeding commenced earlier, were no longer available to the respondent as witnesses. Accordingly, it seems to me that there would be no basis on appeal for overturning her Honour's judgment that the filing of the application in the Federal Magistrates Court amounted to an abuse of the process of that court. 15 Having reached this conclusion now, I ought to conclude that I would not grant leave to appeal and therefore that I would not grant to the applicant the extension of time that he requires to seek such leave. In doing so, I do take into account both what was said in the applicant's affidavit in this Court and what he has told me in more expanded terms about his situation. I consider that, to a significant extent, the delay of more than four years in making the application for leave to appeal was explained by the applicant's situation. The applicant is serving a sentence of imprisonment and does suffer mental illness. He told me, and I accept, that his mental illness causes him to put his head in the sand and hope that things will go away and this is in part an explanation for the sporadic nature of the efforts he has made to pursue his claim of sexual discrimination over the years. I also accept that he has had great difficulty in finding legal representation in relation to this matter, representation that he did have at the time when the Federal Magistrates Court proceeding was on foot, but that he has not been able to obtain since. 16 It is not for the reason of unreasonable delay that I dismiss his application for an extension of time. It is because I regard the grant of leave to appeal, and the institution of any appeal, as futile for the reasons that I have given. 17 Accordingly, the orders that I make are as follows: 1. The title to the proceeding be amended by substituting "OneSteel Reinforcing Pty Limited" for "B.H.P North Altona Melb" as the name of the respondent. 2. The application for leave to appeal be dismissed. 3. The applicant pay the respondent's costs of the proceeding. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 18 June 2008 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: J Firkin Solicitor for the Respondent: Blake Dawson Date of Hearing: 3 June 2008 Date of Judgment: 3 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/923.html