Case: Newcastle City Council v Batistatos [2005] NSWCA 20
Outcome: applied
for permanent stay based on effluxion of time appear to be rare (note comments of Bryson JA in Newcastle City Council v Batistatos [2005] NSWCA 20 at 56). The issue has however been the subject of comment by the High Court of Australia in the context of criminal proceedings ( Jago ), in relation to tribunal deliberations ( Walton v Gardiner ), and recently in relation to civil proceedings ( Batistatos ). As the Court of Appeal of New South Wales pointed out ([2005] NSWCA 20 at [13]): &#8226; grounds (i) and (iii) were the same in substance, as there was no suggestion that the proceedings in Batistatos were an abuse of process other than because the defendants were irretrievably prejudiced by reason of the delay in the proceedings being brought; and &#8226; ground (ii) indicated reliance by the defendants on the power of the Court to summarily dispose of proceedings in Pt 13 r 5, the test for which was whether the case was so clearly untenable that it could not possibly succeed (Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; [1964] 112 CLR 125 at 129-130). Hoeben J at first instance rejected the submissions of the defendants in relation to ground (ii) that the plaintiff's claim was so obviously untenable that it could not possibly succeed or so manifestly faulty that it did not admit of argument ([2004] NSWSC 796 at [26]). Accordingly, his Honour declined to make an order summarily dismissing the plaintiff's claim. The conclusion of Hoeben J on this issue was endorsed by the NSW Court of Appeal ([2005] NSWCA 20 at [48]). That particular aspect of the decision of the Court of Appeal was not appealed to the High Court. In delivering the lead judgment of the Court of Appeal, Bryson JA noted that, notwithstanding that the relevant limitation periods applicable to the plaintiff had not expired, it was nonetheless competent for the Court to entertain an application for a permanent stay on the proceedings due to effluxion of time ([2005] NSWCA 20 at 51-52, 57, citing McHugh JA in Herron v McGregor (1986) 6 NSWLR 246 at 253-255). Although Hoeben J was persuaded by the plaintiff's location of three additional witnesses who had recollections of the road and the events which had happened in 1965, and affidavits of those witnesses, that the defendants had not taken steps reasonably open to them to identify and locate other persons with similar information, the Court of Appeal was not similarly influenced. Bryson JA considered that the information in the affidavits of the three 'new' witnesses was 'extremely slight and goes no real distance at all to establishing in any concrete way the state of affairs in which the accident happened in 1965... These three affidavits illustrate, to my mind rather fully, the process of degradation of the availability and quality of evidence where there are long delays' ([2005] NSWCA 20 at [65]). Accordingly, the Court of Appeal considered that Hoeben J erred in concluding that the defendants had not taken steps reasonably open to them to elicit knowledge and evidence of what the position then actually was ([2005] NSWCA 20 at [67]). In the view of the Court of Appeal: 'the simple and overwhelmingly clear position is that no useful evidence is available upon which to conduct a trial into the question whether the plaintiff's injuries were caused by the negligence of the defendants, and no further search or inquiry is in any way likely to locate any such evidence; so that a trial of the proceedings could not rise above a debate about the effect of scraps of information, and it is impossible to inform the debate with any realistically useful information.' [[2005] NSWCA 20 at [79]] Further, in the view of the Court: '...it would manifestly be quite unjust to allow these proceedings to go to what would in form be a trial but in substance would be only a ceremonial enactment of an opportunity to establish whether or not the plaintiff has the rights he claims.' [[2005] NSWCA 20 at [81]] Accordingly, the Court of Appeal allowed the appeal from the decision of Hoeben J, and ordered that the proceedings be permanently stayed. The majority judgment was that of Gleeson CJ, Gummow, Hayne and Crennan JJ. Their Honours observed that the appeals before them concerned abuse of process as understood in the exercise of the 'inherent jurisdiction' of superior courts to stay proceedings (at [5]).