Regina v George Alfred McLeod [1999] NSWSC 78 (19 February 1999)

Last Updated: 25 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Regina v George Alfred McLEOD [1999] NSWSC 78

CURRENT JURISDICTION: Criminal Division

FILE NUMBER(S): 0009/97

HEARING DATE{S): 5/2/99

JUDGMENT DATE: 19/02/1999

PARTIES:

REGINA v GEORGE ALFRED McLEOD

JUDGMENT OF: Sully J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

R. Thompson - Crown

Applicant - in person

SOLICITORS:

Crown Solicitor

CATCHWORDS:

ACTS CITED:

DECISION:

In lieu of sentence of 3.7.90 - aggregate sentence of 17 years, comprising minimum term of 12 years and additional term of 5 years. Minimum term will commence on 20.7.89 and expire on 19.7.2001. Additional term will commence on 20.7.2001

JUDGMENT:

SUPREME COURT OF

NEW SOUTH WALES

CRIMINAL DIVISION

SULLY J

17 February 1999

L9/97 - Regina v George Alfred McLEOD

ON SENTENCE

1 HIS HONOUR: This is an application brought pursuant to section 13A of the Sentencing Act 1989 (NSW), ["the Act"], by Mr. George Alfred McLeod, ["the applicant"]. The application seeks to have determined into the form of a minimum term and an additional term a sentence of life imprisonment imposed upon the applicant by Lusher AJ on 3 July 1990. The application was heard on 5 February instant; the applicant then appearing unrepresented.

2 The material facts are within a small compass.

3 On Thursday 20 July 1989, the applicant went to the Surry Hills Police Station and there informed a police officer that he had killed on the previous day a young woman named Heidi Virag; and that he had so killed her by hitting her over the head with a metal bar. Immediate police investigations ensued, and they resulted in the applicant's being charged with the murder of Miss Virag. The applicant first appeared in custody on that charge on 20 July 1989, and he has remained in custody ever since that day. In due course, and on 20 June 1990, the applicant was indicted before Lusher AJ and in connection with the alleged murder of Miss Virag. The applicant pleaded that he was not guilty, and he was put, accordingly, upon his trial. The trial continued until 25 June 1990, on which day the jury, after a retirement of about 2 hours, returned a verdict of guilty of murder. In due course, and on 3 July 1990, the applicant stood for sentence before Lusher AJ; and he was thereupon sentenced to penal servitude for life, that sentence to date from 20 July 1989. A subsequent appeal to the Court of Criminal Appeal was dismissed; but the appeal concerned only matters going to the applicant's conviction, and not to his sentence; and nothing turns for present purposes upon the decision of the Court of Criminal Appeal.

4 The essential facts surrounding the killing appear, sufficiently for present purposes, from the following extract taken from a recorded interview between the applicant and investigating police, which interview commenced at 9.25 a.m. on 20 July 1989, being a time within an hour or so after the applicant had first reported the killing to the police:

"Q. What can you tell me about the injuries Heidi received?

A. About midday yesterday, she came over to my room, she knew it was my pension day, so we had sex and after that she put it on me for one hundred dollars, I just went berserk and that was it.

Q. What do you mean you went beserk?

A. I got real angry and I picked up the iron bar which is kept near my bed and hit her.

Q. How many times did you hit her?

A. I can't remember but it was more than once.

Q. Did you hit her with the iron bar?

A. Yes.

Q. On what part of her body did you hit her?

A. On the head.

Q. Why do you keep the iron bar next to your bed?

A. I had a couple of attempts of breaking into my room and kept it for self protection.

Q. Why did you hit Heidi with the iron bar?

A. Because she asked me for money.

Q. Had she asked you for money in the past?

A. Never.

Q. Do you know why she wanted the money?

A. Yeah, for sex.

Q. Did she ask you for the money before or after you had sex with her?

A. After.

Q. Where was she when you hit her with the iron bar?

A. Sitting on the bed.

Q. How long after having sex with her did she ask you for the money?

A. Straight away, she never even put her clothes back on.

Q. About what time was it when you hit her with the iron bar?

A. About fifteen minutes after she came in.

Q. Apart from asking you for money, did Heidi do anything else that provoked you?

A. No, I don't think so.

Q. Did you have an argument with her about the money she asked for?

A. We argued a little and I told her that she hadn't asked me for money before and I called her every name under the sun and after that I hit her.

Q. Did you assault her with your hands?

A. No just the iron bar."

5 At the trial before Lusher AJ the defence raised provocation as an issue proper to be considered by the jury. Lusher AJ was persuaded to leave the issue of provocation to the jury. The verdict of the jury necessarily entails that the jury rejected the defence contentions as to provocation.

6 In addition to the issue of provocation, the issue of the applicant's alleged intoxication, in the relevant legal sense, was raised as a matter of substance at the trial before Lusher AJ. This issue, also, Lusher AJ left to the jury. The verdict of the jury necessarily entails that the jury rejected the substance of the defence contentions on this issue.

7 Lusher AJ, in his Honour's remarks on sentence, described the killing as "a particularly brutal murder". I would say, with respect, that my own view of the objective gravity of the killing is to the same effect. On the view of the facts most favourable to the applicant, he was asked unexpectedly to pay for a sexual encounter with a young woman with whom he had previously been carrying on for some time a clandestine sexual affair; and he was so enraged by the request and by what he saw as its effrontery and unreasonableness, that he simply picked up an iron bar and struck the young woman a series of blows that undoubtedly inflicted upon her fatal injuries. The evidence at trial was to the effect that the iron bar must have been wielded with, at least, a significant degree of force in order to have caused the particular injuries that were found upon post-mortem examination of the victim.

8 In applying section 13A of the Act to the applicant's case, it is necessary to have particular regard to sub-sections (4A), (9) and (10A) of section 13A. I shall deal in turn with each of those sub-sections.

Sub-section 4(A)

The sub-section is in the following terms:

"In considering such an application, the Supreme Court is to have regard to all the circumstances surrounding the offence for which the life sentence was imposed, and all offences, wherever committed, of which the person has been convicted at any time (so far as this information is reasonably available to the Supreme Court )."

9 The applicant, when he stood for sentence before Lusher AJ, had a not inconsiderable criminal history. That history comprised eleven particular items, and some of the items involved multiple offences. Five of the itemised matters dealt with offences of breaking, entering and stealing; a further three items involved charges of stealing; one item involved a minor offence of dishonesty; one item involved proceedings in respect of a breach of recognisance; and the remaining item, by far the most serious, involved an offence of malicious wounding with intent to do grievous bodily harm, a matter in respect of which the applicant was sentenced to a substantial period of imprisonment.

10 In connection with these criminal antecedents of the applicant, Lusher AJ said, in his Honour's remarks on sentence:

"For completion, it will be noted that on this question of culpability and mitigation, I have had no regard whatever to the criminal record of the prisoner, which included, as I have stated earlier, a daylight street shooting on his wife some years ago and for which he was appropriately punished.

It may be argued that one of the circumstances of the incident to be considered when looking at whether or not there are mitigating circumstances is the type or disposition of the person whose culpability is being considered. Be that as it may, however, as I have said, I have not taken his record into account whatsoever and it has not entered into my considerations. I intimated as much to both counsel when they addressed on sentence."

11 Sub-section (4A) does not enable this Court to adopt Lusher AJ's approach with regard to the applicant's criminal antecedents. It is necessary, therefore, to consider more particularly the evidence that is before the Court as to those criminal antecedents.

12 As matters stand, there is no evidence touching upon the substance of any of the matters in the applicant's criminal antecedents, save only the offence of malicious wounding with intent to do grievous bodily harm. As to that particular matter, there is a considerable body of evidence: it will be found in documents forming annexures B, C, D, E and F to the statement of facts that forms exhibit A on the present application.

13 It appears from that material that the applicant met, in the early part of 1970, a lady named Judith Ann Speed. She was then the mother, and the sole carer, of two young children. She and the applicant began a de facto relationship. In due course a baby boy was born to them. Immediately after the birth, and without reference to, or knowledge on the part of, the applicant, Miss Speed put the child up for adoption, and the child was in fact adopted out. Shortly thereafter the applicant discovered what had happened; and he and Miss Speed contracted what they both described as a marriage of convenience, in the hope that by so doing, they would be able to reverse the adoption of their child and recover custody of the child for themselves. In the events which happened, it was not possible to achieve this reversal of the adoption process.

14 Thereafter, and until about March 1972, the applicant and his then wife continued in a fairly stormy, volatile, marital relationship. Early in 1972, Mrs. McCleod, being then aware that she was again pregnant to the applicant, procured without prior reference to, or any prior knowledge on the part of, the applicant, an abortion; and she underwent, in conjunction with the abortion, surgical procedures designed to ensure that she would not again become pregnant.

15 The applicant and his then wife did not thereafter live together. For some time thereafter the applicant himself was in prison serving sentences dating from 2 March 1972 and entailing, put simply, his incarceration until about March 1973.

16 On 10 September 1974 the applicant accosted Mrs. McCleod outside the apartment building in which she was then living. He told her that he had come for the purpose of shooting her. He produced thereupon a sawn-off shotgun and fired a number of shots into her. She was not killed, but she was very severely injured. This appalling crime was committed in broad daylight; and was, even on the applicant's own contemporaneous version of events, a premeditated and carefully planned crime.

17 The applicant took part in a recorded interview with investigating police; and during the course of that interview he was asked the following questions and gave the following answers:

"Q35. Can you tell us why you fired the shots at your wife?

A. Over both children.

Q.36 Do you hate your wife?

A. Yes.

Q.37 Do you feel that she has deprived you of the children?

A. Yes.

Q.38 When you were told by your mother-in-law about your wife not having the child. Did that set off a chain of events in your mind?

A. Yes about the second child.

Q.39 Did you formulate any plan?

A. Yes to shoot her in the leg, but I was too drunk, I got drunk waiting for her to come out so I just fired haphazardly.

Q.40 We have been informed by your wife that after she was shot in the mouth she fell and that she was then shot in the rear part of her body. Can you tell us anything about this?

A. Well it just happened so quick. I shot her and then ran."

18 In respect of this crime, the applicant stood for sentence in the District Court at Sydney on 16 December 1974. He was then sentenced to penal servitude for 12 years; and a non-parole period was fixed so as to expire on 16 February 1978.

19 In fact, the applicant was not released to parole until 1 June 1982. It is clear from the material constituting Exhibit D on the present application, that the reason why the applicant was not released to parole at the expiration of the non-parole period fixed by the sentencing Court, was a view held by the Parole Board that his history and previous record "........ together with the attitudes towards rehabilitation he has shown during current sentence ........." made it appear "...........unlikely that he would comply with the conditions of a Parole Order". When the applicant was eventually released, he was given the benefit of some slight remissions of sentence. The superintendent of the facility in which the applicant was last detained before release, made, in connection with the release of the applicant, a brief report dated 13 March 1982. Parts of it are, I think, of some importance for present purposes. The report reads as follows:

"McLeod was transferred to Oberon on the 5.4.78, serving a sentence of 12 years, during the full period of this time he has been employed in the Laundry, where he has carried out his work in an excellent manner, he is employed and paid on a five day per week basis, but has always worked seven days, and has done this without any supervision, when he completes his work in the laundry he always finds himself something else to do in the flower gardens or lawns, he can be relied upon to collect all dirty linen and issue clean linen for the other inmates. Although this man is a very erotic type of person, and it is considered by other people that he could be of some danger when released, I believe that I must be guided by his attitude and conduct whilst at this institution and recommend that he be granted 28 Days Special Remission, making him due for release on the 1stJune 1982."

20 Given the background of which I have been speaking, it is, in my opinion, important to take care in applying sub-section (4A). It is clear that the Court is to have regard, for present purposes, to those antecedent offences in so far as credible information about them is available to the Court. What is not clear is the way in which Parliament intends that the Court should "have regard to" those antecedent matters. That being so, and in the absence of some clear and imperative statutory requirement to the contrary, I consider that sub-section (4A) should not be construed and applied in any way that runs counter to the fundamental principles of sentencing that are expounded by the High Court of Australia in Veen v The Queen (No. 2) [1988] HCA 14; 1988 (164 CLR 465). It is sufficient for present purposes to note the principles in the terms of their summary in the headnote, which is to the following effect:

"(1) A sentence should not be increased beyond what is proportionate to the crime to extend the period of protection of society from the risk of recidivism by the offender, but it is permissible for the sentencing discretion to be exercised having regard, amongst other matters, to the protection of society.

(2) The previous criminal history of an offender may be taken into account in determining a sentence, but it cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence. The history is relevant to show whether the offence is an uncharacteristic aberration or whether in it the offender has manifested a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may indicate that a more severe penalty is warranted. It is legitimate to take account of the previous history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or a need to impose condign punishment to deter him and other offenders from committing similar offences."

21 In applying to the present case the requirements of sub-section (4A) as conditioned by the Veen principles, it is necessary to keep carefully in mind that it would be an egregious denial of justice to the applicant to treat him now in a way that entailed, effectively, punishing him further for the 1974 offence. The applicant has paid in full the penalty that a just application of the law required him to pay in respect of that earlier offence.

22 That said, it remains the case, in my opinion, that the 1974 and 1989 offences, although by no means identical, have certain circumstantial similarities that are, in my opinion, troubling.

23 It is true that the 1974 shooting appears to have been a more coldly calculated crime than the 1989 killing. It is, nevertheless, the case that both offences proceeded from an episode of irrepressible, violent rage triggered by a perception on the part of the applicant that he had been affrontingly mistreated by somebody with whom he had an established and intimate emotional and sexual relationship.

24 It is true, further, that the applicant appears to have been law-abiding between the date of his release in 1982 and the date of the killing in 1989. There is, of course, a sense in which that fact stands to the applicant's credit. It is, however, the case that, even after a period of some 7 years of law-abiding life in the general community, the underlying disposition of the applicant was still so fragile and so volatile as to be capable of being triggered by a sordid but not obviously significant incident into an outburst of, literally, murderous rage.

25 I do not think that it could be contended reasonably that the case of the applicant is identical with that of Mr. Veen. I think, however, that there are some broad similarities; and that they indicate that sub-section (4A), correctly construed and fairly applied, require that, if the present application is to be granted, then the aggregate sentence fixed by the Court should be a substantial one. The subsequent need to apportion such a sentence as between a minimum term and an additional term raises other considerations with which it will be convenient to deal later in this judgment.

Sub-section (9)

26 The sub-section is in the following terms:

"(9) The Supreme Court, in exercising its functions under this section, is to have regard to:

(a) The knowledge of the original sentencing Court that a person sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900 and of the practice relating to the issue of such licences; and

(b) Any report on the person made by the Review Council and any other relevant reports prepared after sentence (including, for example, reports on the person's rehabilitation), being in either case reports made available to the Supreme Court; and

(c) The need to preserve the safety of the community; and

(d) The age of the person (at the time the person committed the offence and also at the time the Supreme Court deals with the application),

and may have regard to any other relevant matter."

27 As to (a), it is not possible for this Court to say much that is useful. I think that it can be accepted readily enough that the present applicant would have been considered, under the old regime, for release on licence after he had served some significant period of imprisonment. How long he would have been required to serve before being so considered for release on licence, it is not possible for this Court to say. The available statistical base is narrow, and the cases embraced by it cover a very wide range of individual circumstances and periods of imprisonment actually served. I think that it is probable that the present applicant, given his criminal antecedents as I have previously canvassed them, would have been required to serve a comparatively longer, rather than a comparatively shorter, period of imprisonment before being considered for release on licence.

28 As to (b), it is convenient to begin by citing the following conclusions reached by the Review Council in its report dated 13 November 1997:

"Throughout the whole term of his current imprisonment McLEOD has not been a management problem. Of concern however is his refusal to accept the seriousness of his alcohol problem and his consequent reluctance to accept assistance to deal with it. The SORC will continue to monitor his progress in prison and will encourage him to utilise the services provided by inmate development staff.

Should McLEOD'S life sentence be re-determined, the SORC will arrange the preparation of a Management Plan, designed to equip him for eventual return into the community as a law abiding citizen.

It is appreciated, of course, that his age and medical disabilities will reduce the range of options available, however the SORC will work in close co-operation with the Parole Service to ensure the inmate's needs are appropriately met."

29 The proposition that the applicant has not been a management problem, while literally correct, gives a very incomplete picture of his progress in fact during the years throughout which he has been imprisoned. Throughout the whole of that time, the applicant has made serious, substantial and consistent attempts to rehabilitate himself and to equip himself to re-enter the general community as a law-abiding and useful citizen. His prison reports have been consistently favourable. He has no prison demerits of any kind recorded against him, something which in my opinion tells very strongly in favour of his present application. He has completed a large number of courses designed to improve and to develop in various ways his natural skills and capacities. Included among the materials that have been placed before the Court in that latter regard, is a certificate given on 13 August 1997 by the head supervisor of International Cable Manufactures Pty Ltd. It reads, formal parts omitted, as follows:

"............ (the applicant) commenced employment at International Cable Manufactures on 19-7-1996 up to the present day he has always worked diligently, efficiently, conscientiously, he has never refused to do anything that he has been asked. (The applicant) has the unique title of any person, civilian or prisoner, of never taken a `sickie' since the day he started working here. In the quality control department, he is regarded as a whiz. I have never had any complaint against him. I will be very sorry if I ever lose him. I wouldn't hesitate to recommend him to anyone."

30 This type of endorsement is representative of the way in which the applicant's work supervisors have consistently evaluated his capacity, diligence and reliability.

31 The expressed concern of the Review Council concerning the applicant's "alcohol problem" causes me some difficulty. This particular aspect of the application was the subject of some evidence given at the hearing by Mr. M. K. Saxby, the Secretary of two Review Council sub-committees having to do with the management of high security inmates and with the management and supervision of pre-release leave. I raised with Mr. Saxby the question of the applicant's supposed "alcohol problem", and Mr. Saxby gave the following particular evidence.

"Q. The notion that he has refused to accept the seriousness of his alcohol problem raises, could I suggest for your comment, if you can make any useful comment, a number of questions. First is the proposition of fact that he does still now have an alcohol problem. Can you point me in the direction of something that warrants that conclusion of fact? I can understand readily a conclusion that he had in the past an alcohol problem. From what little of this material I have looked at in any detail thus far, I couldn't quite get a grip of anything that was suggestive of the fact that he still has a serious alcohol problem, indeed, an alcohol problem at all.

A. I can only point you to Helen Hayward's report from 1997 where there is a discussion of Mr. McLeod's alcohol use and he has stated he has not touched a drink whilst in gaol. He asserts he has no desire to drink and questions the assertion by drug and alcohol workers that he is an alcoholic. I am not in a position to be able to say that Mr. McLeod does have an alcohol problem but I think if he were to avail himself of alcohol and other drug services then some kind of opinion could be gathered from them.

Q. But is the Council to be understood as saying that it's present view is that if Mr. McLeod for reasons that seem good to him does not want to become involved with drug and alcohol counsellors and psychiatrists and so forth that the Council will see that as something mitigating against his fitness to be released back into the general community, is that the inference I am asked to draw from that portion of the report?

A. Yes, it is. The Council relies on the opinion of expert psychologists and alcohol and other drug workers and given the nature of the circumstances of the crime, there was a great deal of alcohol consumed on the day, they would need to have some indication of his feelings about alcohol now and some opinion about whether he is likely to take that behaviour up again if he was released into the community so they would be very concerned without having any professional advice and that's what I think they mean there. They are voicing their concern. A professional opinion has not been able to be formed about his ability to cope in the community without alcohol.

THOMPSON: Without alcohol counselling.

HIS HONOUR: Yes, without alcohol counselling. I understand."

32 The 1997 report of which Mr. Saxby makes mention is annexure G to Exhibit B. It contains the following clinical observations:

"While Mr. McLeod reports a high dependence on alcohol in the community, he asserts that he has not "touched a drink" while in gaol. He further asserts that he has no desire to drink and questions the assertion by Drug and Alcohol workers that he is an alcoholic. However, he does agree that his previous alcohol usage may have contributed to his current memory, attention and concentration deficits. Consultant Psychologist W. John Taylor, in an assessment dated 1.11.89, reports low performances in specific sub-tests of the Wechsler Adult Intelligence Scale which are sensitive to brain damage, which may be related to Mr. McLeod's chronic alcoholism. Further, results from the clinical syndrome scales of the Minnesota Multiphasic Personality Inventory reveal a significant elevation of the alcohol dependence scale. Personality tests results indicate that Mr. McLeod has a personality disorder with schizotypal characteristics. This would/may account for some transient psychotic symptoms with accompanying perceptual experiences and impairment of self control which may explain the feeling of foreboding Mr. McLeod reported on the day of the assault on Ms. Virag in 1989. However, there is no evidence or report by Mr. McLeod of any such psychotic or aberrant perceptual experiences in the recent past and he reports coping well in his current environment. Mr. McLeod does report some social isolation in JCC, however does have "some friends who I trust".

33 The clinical observations are followed by this summary:

"Mr. McLeod has been in JCC for approximately 12 months. On his own report, he is coping well and enjoying his work and leisure activities. It is anticipated that Mr. McLeod will participate in a therapeutic group to address his alcohol dependence and he has expressed willingness to do so. Such a therapeutic environment would also provide a forum to address Mr. McLeod's limited understanding of his offending behaviour."

34 (The reference to "JCC" is a reference to the Junee Correctional Centre.)

35 Having both seen and heard from the applicant during the course of the recent hearing, I think that a fair assessment of his present disposition is that he would acknowledge fairly readily having had an excessive recourse to alcohol at various times during his past life. In that sense, I think that the applicant would agree readily enough that he had in the past "an alcohol problem". But the relevant present question, surely, is not whether he has had an alcohol problem in the past but whether he has one now. As to that, I can but say that on the whole of the evidence available to me, I would not see any basis upon which I could reasonably find as a fact that the applicant does now have "an alcohol problem".

36 That said, I would think that it is obviously in the applicant's own present interests that he cooperate with the Correctional authorities at least to the extent of making proper contact with the alcohol counselling service available to him in his present custody. I think that it would be very much in the applicant's present interests to engage, not in any profound psychological examination and assessment, but in a simple and sensible programme of advice and encouragement designed to ensure that if and when he is released back into the general community, he will adhere to his declared intention of not again developing "an alcohol problem".

37 As to (c), I consider that this is a matter calling, self-evidently, for the careful consideration of this Court. The question is, of course, one of balance, having regard to the totality of the available evidence. Certainly, the fixing of any aggregate determinate sentence, and its subsequent apportionment between minimum and additional terms, will need to have carefully in mind the imperative need to protect the community against any further incident of violence at all, let alone violence of the kind manifested in 1974 and in 1989.

38 As to (d), the applicant was born on 1 July 1939. On 19 July 1989, the date of the relevant killing, he was aged slightly more than 50 years. He is now aged, in broad terms 59-1/2 years.

39 As to "any other relevant matter", there are, in my opinion, a number of matters to be noticed.

40 First, it is to be observed that the applicant has a clear and repeatedly expressed aversion to professional psychologists and psychiatrists. This aversion, as best I can judge from the available evidence, derives from the applicant's perception that the psychiatric assessments that were put before the Court at trial and sentence did not do justice to his true position. The applicant has a profound and abiding sense of grievance about what he sees as having been egregious inadequacies in his professional representation at trial and on sentence. The applicant has a continuing sense of indignation, even of affront, about what he perceives as persistent attempts by people to make him admit to the existence of problems that he does not see as existing.

41 I have approached the determination of the present matter upon the basis that it is pointless to suppose that the applicant is going to undergo some Pauline conversion in connection with these deeply rooted perceptions. All that can be done, I think, is to note the facts as they appear from the evidence; and to factor in to present considerations the need for somebody concerned with the management of the applicant to find some way of offering the applicant a prudently sympathetic opportunity to have appropriate pre-release counselling designed to minimise any post-release risks of the recurrence of past personal problems.

42 Secondly, I have regard to the evidence concerning the applicant's health. The applicant is diabetic, although he is not at present insulin-dependent. He has cardio-vascular problems which, - so far as I can judge from the available evidence such as it is, - are even now not insignificant, and might well call for surgery in the near future.

43 Thirdly, and related to the present and likely future condition of the applicant's health, is the fact, - and I am satisfied that it is the fact, - that the applicant has responded to his health problems by devising, and by adhering strictly to, a programme of diet and of exercise designed to ensure that his general physical condition is kept under some proper control. The evidence is sparse, but it suggests that the applicant's diet and exercise programmes are in fact keeping him in reasonable general health. To the extent that such is the case, the fact reflects, I consider, very favourably on the applicant's present capacity, given only the requisite motivation, for intelligent self-discipline.

Sub-Section (10A)

44 The sub-section provides:

"The Supreme Court, in exercising its functions under this section:

(a) Must have regard to and give substantial weight to any relevant recommendations, observations, and comments made by the original sentencing Court when imposing the sentence concerned, and

(b) Must give consideration to adopting or giving effect to their substance and the intention of the original sentencing Court when making them, and

(c) Must, to the extent that it declines to adopt or give effect to those matters, state its reasons for doing so."

45 I have read and considered the entirety of Lusher AJ's remarks on sentence. There do not seem to me to have been any relevant recommendations. There were certainly relevant observations and comments made by his Honour; and they were to the effect, put briefly, that his Honour did not accept the applicant as a witness of credit in respect of matters crucial to the determination, which it fell to his Honour to make, concerning the existence of any circumstances appropriate to mitigate the sentence, otherwise mandatory, of imprisonment for life.

46 Accepting, as I think I must do, that Lusher AJ's findings in that respect were plainly open to his Honour; I do not think that it follows that this Court must now deal with the applicant upon the basis that what he now says cannot be safely relied upon.

47 I think that the applicant is intelligent and resourceful. I think that he is articulate and confident in his own opinions about the material aspects of his present situation. It is clear from the evidence that the applicant has had a sad and deprived upbringing, and a disadvantaged adult life that has prevented his making a good and useful life out of his personal qualities of intelligence and resourcefulness. I think that the evidence discloses that he has made real efforts, and with substantial success, towards his ultimate rehabilitation. I think that he is conscious of the moral and legal culpability of what he did, both in 1974 and in 1989. I do not think that it makes sense to deal with the applicant upon the basis that there do not remain any circumstances in which an affront of sufficient perceived gravity would draw from him a very sharp response; but I do not think it fair to infer that his present disposition is such that any response of that kind would necessarily be violent, let alone murderously violent as in 1974 and 1989.

48 Thus, although I do not see any basis upon which I could differ from Lusher AJ's findings as his Honour made them in 1990, I do not see that sub-section (10A) requires me to give effect to those findings in a way that displaces my own assessment, as I have summarised it, of the applicant.

The Determination of the Present Application

49 Having regard to the whole of the foregoing considerations, I have come to the conclusion that it would be proper to grant the present application. I am encouraged in that view by the stated position of the Crown that the application is not simply opposed.

50 I have come to the conclusion that it would be appropriate to determine an aggregate sentence of penal servitude for 17 years. I consider that it would be a just apportionment of such a sentence to provide a minimum term of 12 years and an additional term of 5 years. In fixing the minimum term of 12 years, I proceed upon the basis that the applicant has been in custody for 9 years and 7 months in round terms. The proposed minimum term will entail, therefore, that the applicant will serve a further 2 years and 5 months in custody.

51 The present application is, accordingly, granted. In lieu of the sentence of imprisonment for life that was passed upon the applicant on 3 July 1990, there is substituted a sentence of penal servitude for 17 years. That sentence is apportioned between a minimum term of 12 years and an additional term of 5 years. The minimum term will commence on 20 July 1989 and will expire on 19 July 2001. The additional term will commence on 20 July 2001.

52 It is, I think, neither necessary nor appropriate for this Court to embark upon the making of elaborate recommendations as to the future management of the applicant. I think, however, that it would be fair to express a general recommendation of the Court that the applicant's future classification(s) and management should proceed upon the basis that the applicant has achieved significant progress towards ultimate rehabilitation; and that nothing should be done that discourages the applicant from building further upon what he has thus far achieved.

1 Exhibit C may be returned to the Crown. The certificates and testimonials forming part of Exhibit 1 may be returned to the applicant. All other exhibits will remain in Court pending further order.

SUPREME COURT OF

NEW SOUTH WALES

COMMON LAW DIVISION

SULLY J

19 February 1999

14401/92 - Patricia LAMOND v George ARTINIAN & ors

JUDGMENT

1 HIS HONOUR: By a Notice of Motion filed on 15 December 1998 Mr. Phillip Lamond seeks the following relief:

"1. That the Order made on 4 June, 1998 dismissing the Statement of Claim and striking out the proceedings be set aside.

2. That Phillip Lamond as legal personal representative of the Estate of the Late Patricia Lamond be substituted as Plaintiff.

3. That these proceedings be transferred to the District Court of NSW.

4. That the costs of this application be costs in the cause."

2 The relevant factual background is best explained in the form of the following chronology:

15.8.90 - Mrs. Lamond sees Dr. Artinian. She complains of pain of such a kind and so located as to cause Dr. Artinian to take a Pap smear.

24.8.90 - Mrs. Lamond sees Dr. Artinian in connection with the results of the Pap smear of 15.8.90. Dr. Artinian tells her that the Pap smear is "atypical". He does not diagnose cancer, but suggests a follow-up test in not less than 5 weeks' time.

8.10.90 - A repeat Pap smear is taken from Mrs. Lamond.

15.10.90 - Dr. Artinian tells Mrs. Lamond that the results of the second Pap smear are "negative".

November 1991 - Mrs. Lamond has further tests done at another clinic. They return positive results. She is told by Professor Houghton, to whom she has been referred, that he cannot believe that the cancerous cells found by the latest test had not been present 15 or 16 months previously, that is to say in August and in October of 1990.

28.8.92 - Mrs. Lamond, by her then solicitors, files a statement of claim in which she proceeds against four defendants. Dr. Artinian is the first defendant. Professor Peter Russell, who was concerned with the analysis of the Pap smears, is the second defendant. An incorporated clinic connected, as I understand the fact, with Dr. Artinian, is the third defendant. A corporate clinical laboratory connected with Professor Russell is the fourth defendant. The cause of action, put simply, is that the first and second defendants failed negligently to detect, and to advise the plaintiff in connection with, a condition of cervical cancer from which she was suffering when they treated her professionally in August and in October 1990; and that the third and fourth defendants are, variously, vicariously liable for such negligence.

4.9.92 - The statement of claim is served upon the first and second defendants.

[It is not clear when, precisely, the statement of claim was served upon the third and fourth defendants; but I think it is reasonable to infer that it was at or about the same time as service upon the first and second defendants. Nothing turns upon this particular detail for the purposes of the present notice of motion.]

8.9.92 - The solicitors acting for the first and second defendants request extensive further and better particulars.

15.9.92 - Mrs. Lamond dies

29.9.92 - Mr. Rodney Kent, the then solicitor for Mrs. Lamond, telephones the solicitor for the first and second defendants, communicating the fact of Mrs. Lamond's death, and indicating that the further and better particulars previously requested by the first and second defendants will be provided in due course.

About October 1992 - Mr. Lamond contacts Mr. Kent consequent upon the death of Mrs. Lamond. The affidavit evidence of Mr. Lamond, which was not challenged and which I accept, is to the following effect:

"7. Approximately one month or so after Patricia died I telephoned Rodney Kent, the Solicitor retained by Patricia. I recall that he said to me words to the following effect:

Matters like this have to be heard in the Supreme Court and there is a five (5) year waiting list. There would be a series of actions, on behalf of the Estate of the Late Patricia Lamond and an action by yourself, Kara and Nicole against the Pathology Laboratory and the G.P.

I understood that there would be eight different actions pursued in court.

8. Thereafter I spoke to Rodney Kent who acted for me in relation to a number of matters, many times in the next five years and I was always given to believe that the actions had been started. I understood that the actions were chugging along and were still in the list of cases to be heard.

10. In about late 1994 Rodney Kent phoned me on a Sunday and said to me words to the following effect:

"The actions will be over by Christmas."

I then heard nothing further from Rodney Kent and in about March, 1995 I telephoned him and was told words to the following effect:

"No, it's not going to happen, it's still on the list."

This did not cause warning bells to ring in my mind because I understood that there was a five (5) year waiting list."

11. Approximately eight (8) months ago I was informed by a friend Jan that matters like this can be run in the District Court. Over the next few months I placed about four (4) calls to Rodney Kent but he did not return my call."

12. I then received a telephone call from an associate of Rodney Kent who said to me words to the following effect:

"Rodney, a Barrister and another Solicitor would like to meet with you to discuss the claims."

17. At no time was I aware that there was a failure to prosecute the proceedings which had been commenced by Patricia in her own right. I understood that my Solicitor, Rodney Kent, had matters in hand and would undertake all steps which needed to be taken. I was not aware that the delay which I experienced in those claims coming to court was untoward. I believe it was the usual delay inherent in such matters."

3.2.93 - Two letters are written by the solicitor for the first and second defendants to Mr. Kent as Mrs. Lamond's solicitor. One of these letters notes that further and better particulars have not been supplied and presses for their supply. There is no further correspondence between Mr. Kent, on behalf of Mrs. Lamond, and the solicitor for the first and second defendants, between this date in 1993 and 1998.

24.4.98 - A notice issues from the Principal Registrar of this Court.

[There is particular evidence of such a notice addressed to the solicitors for the first and second defendants. I think it is reasonable to infer, and I do infer accordingly, that an identical notice was sent to the solicitor then acting for Mrs. Lamond; and to the solicitors on record for the third and fourth defendants.]

The notice, formal parts omitted, is in the following terms:

"The above proceedings will be listed for call-over on Thursday 4 June 1998 before The Honourable Justice Wood, CJ at CL.

At the call-over, consideration will be given to:-

(a) Whether the proceedings would more appropriately be heard in the District Court;

(b) Removal of the proceedings from the list of active matters;

(c) Dismissal of the proceedings; or

(d) The making of a direction that DCM apply to these proceedings."

4.6.98 - Call-over before Wood CJ at CL. The following orders are made:

"1. That these proceedings be struck out.

2. That the parties have leave to restore on 14 days' notice."

All defendants are represented. There is no appearance by or for the plaintiff in the principal proceedings.

18.6.98 - The orders of 4 June 1998 are formally entered.

15.6.98 - Mr. Lamond sees in conference counsel instructed by Mr. Kent's firm. Mr. Kent himself is not in attendance. A different particular solicitor instructs on the conference. Mr. Lamond confirms instructions that he wishes to proceed with his late wife's claim and with associated claims on his own behalf and on behalf of his two daughters.

16.6.98 - Mr. Lamond instructs a new, (and his present), solicitor.

21.8.98 - The plaintiff's new solicitor receives from the former solicitor the relevant file in respect of the principal proceedings.

11.9.98 - A conference is held with Mr. Lamond and his further instructions are taken.

9.10.98 - The solicitor newly instructed by Mr. Lamond seeks to file a formal Notice of Appearance. This leads to:

12.10.98 - It is first brought to the attention of the new solicitor that orders, in the terms noted previously herein, had been made on 4 June 1998.

13.10.98 - Mr. Lamond learns of the orders of 4 June 1998.

13.10.98 - The new solicitor puts in train steps to obtain affidavit evidence to ground an application to restore the principal proceedings to the list in accordance with the leave in that behalf granted by the orders of Wood CJ at CL.

4.11.98 - Mr. Lamond swears his affidavit in support of the present Notice of Motion.

14.12.98 - The present Notice of Motion is signed by Mr. Lamond's solicitor, and:

15.12.98 - The present Notice of Motion and supporting affidavit of Mrs. Lamond are filed.

3 Given the foregoing sequence of events, I think that the following conclusions are fairly available:

4 1. It is completely clear that the progress of the principal proceedings which were commenced by Mrs. Lamond has been marked by what the relevant authorities describe as inordinate delay.

2. That inordinate delay is wholly unexplained except to the extent that it was clearly attributable to a manifest failure on the part of the solicitor originally retained by Mr. and Mrs. Lamond, to pursue with proper professional diligence and efficiency the prosecution of the principal proceedings.

3. If the evidence of the Mr. Lamond in support of the present application be accepted, - and, as earlier indicated, I do accept it, - then it has not been shown that either Mr. Lamond or his late wife was in any way responsible for the inordinate delay to which I have referred.

4. It must be a matter of obvious concern on the present occasion that Mr. Lamond did not appear at, and was not represented at, the call-up before Wood CJ at CL. There is, however, no evidence to suggest that Mr. Lamond himself had any idea that such a call-up had issued from the Court; or that it entailed, at the very least, a real risk that the principal proceedings might be struck out of the active list.

5 The evidence at present available does not enable this Court to make a finding as to what exactly it was that caused Mr. Lamond's former solicitor to do either little or nothing in the proper and diligent prosecution of his client's case. The Court has not heard from Mr. Kent, the previous solicitor. The Court has not seen any material derived from Mr. Kent's files or other relevant records. It might very well prove to be the case that a proper examination of Mr. Kent's conduct with respect to the prosecution of the principal proceedings would indicate the appropriateness of some proper professional disciplinary proceedings being taken against him. There might be other forms of redress seen as appropriate upon such enquiry. All this Court can say is that it is not in a position to make any concluded findings about those matters. The relevant finding which this Court can make, on the evidence before it, is that it has not been shown that Mr. Lamond or his late wife were at fault in connection with the failure diligently to prosecute the principal proceedings.

6 In connection with point 4, it is convenient to notice a particular submission put for the defendants. The particular submission is put succinctly in the following extract from the written submissions put in for the first and second defendants:

"Based on the matters referred to in the affidavit of Phillip Lamond sworn 4 December 1998 it is strongly submitted that an alternative course of action against another person is available to the plaintiff; see R v Birks (1990) 19 NSWLR 677, and that this would be a more just and fair method of disposing of the plaintiff's claim."

7 That submission, put another way, is that Mr. Lamond should be relegated to such rights as he might have in civil proceedings for negligence brought by him against Mr. Kent, the former solicitor for Mr. Lamond and his late wife.

8 The reference made by this submission to the decision of the Court of Appeal in Birks is, in my respectful opinion, misconceived. Birks had to do, not with a civil action, but with a criminal trial. It turned upon the question whether there might not be, in a particular case, incompetence of the accused's representative at trial, so flagrant as to constitute, without more, a miscarriage of justice calling for appellate intervention by the Court of Criminal Appeal. That question was answered in the affirmative; but with the obvious qualification that such cases cannot be defined with academic precision, each alleged case of such flagrant incompetence having to be looked at on its own merits, and corrected in a proper case.

9 There is, however, directly on point a decision of the Court of Appeal of this Court: Morrision and anor. v Judd, unreported, 10 October 1995. Kirby P, (Meagher and Powell JJA concurring), having surveyed the relevant authorities, both in Australia and in the United Kingdom, expresses as follows the governing principle:

"The availability of an action against a negligent legal representative is relevant because common sense says that it is so. It means that the litigant, who may be wholly or mainly innocent, is not put out of court without some chance of redress, however difficult that chance may be to enforce. To that extent an injustice, which might otherwise occur to the litigant, may be capable of being avoided. However, precisely because of the kind of difficulties which Smith J listed in Scardamaglia, it is a consideration which `cannot carry much weight'. See per Kirby P at p.11.

10 I propose to adopt that approach in connection with the present application.

11 What has been said thus far entails that the focus of the present application now shifts to two distinct, but related, questions. The first question is whether, if the principal proceedings are restored to the active list and permitted to proceed to trial, a trial can be held that will be just to all the interested parties. The second question is whether, if the principal proceedings are so restored and permitted to proceed to trial, there will be occasioned to the defendants, or any one or more of them, prejudice of so manifest, and manifestly unfair, a kind as would entail, in a real and practical sense, injustice.

12 The present application is, of course, an application made by Mr. Lamond; and it is, therefore, for him to demonstrate that in the end result it would be just to give him the substance of the relief which he seeks in his Notice of Motion. That does not mean, however, that Mr. Lamond bears in a simple and absolute sense the evidentiary burden of proof as to any and every issue that has to be decided in the course of coming to a reasoned conclusion upon that ultimate question.

13 This is, I think, a matter of some practical significance in the consideration of the present application. The evidence put forward, both by Mr. Lamond and by the defendants, on the related issues of unfair prejudice and prospects of a fair trial, is fairly thin. This makes it important, in my opinion, to be clear that there are some issues arising in connection with the present application as to which it is fair to hold the defendants, rather than Mr. Lamond, to the evidentiary burden of proof. It is, perhaps, permissible to approach the question of evidentiary burden of proof by an alternative path and as discussed by Dixon CJ in Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371-372. In the present particular case, I do not think that, in the end, a great deal turns on how, as between those two suggested alternative approaches, one deals with the practical question of identifying the party or parties upon whom the burden rests of demonstrating unfair prejudice or inadequate prospects of a fair trial. What does need to be established clearly, in my opinion, is that in a case such as the present one, the defendants cannot simply take the view that it is, in a peremptory sense, for the plaintiff to establish affirmatively, and on evidence led by him, that a fair trial can be had; and that there is no unacceptable prejudice entailed to the defendants, or any of them, by the restoration to the active list of the principal proceedings.

14 Against that background, it is appropriate to turn, next, to three decisions of the English Court of Appeal.

15 The first decision is that of Hornagold v Fairclough Building and anor: (1993) TLR 316. This was a case in which a District Judge had struck out an action for want of prosecution. A Divisional Judge had dismissed an appeal from that primary decision. A Court of Appeal comprising Glidewell and Roch LLJJ allowed an appeal and reinstated the particular action. The report in the Times Law Reports concentrates on the judgment of Roch LJ. The following passages are relevant:

"His Lordship said that the conclusion that he had reached, having regard to the authorities, was that to succeed in such an application a defendant had to produce some evidence either that there had been a significant addition to the substantial risk that there could not be a fair trial caused by the post-commencement of proceedings period or by periods of inordinate and inexcusable delay or that there had been a significant addition to the prejudice to a defendant.

By saying that he did not say that inference had no part to play in the process of resolving the issue of "more than minimal additional prejudice", or that the court could not draw inferences from evidence contained in affidavits.

But there had to be more than the bald assertion that the delay had prejudiced the defendants or that it had created a substantial risk that a fair trial would not be possible or that it had added to existing prejudice or to the existing risk that a fair trial would not be possible.

There had to be some indication of the prejudice, for example that no statement was taken at the time of the material events so that a particular witness who would have been called on a particular issue had no means of refreshing his memory, or that a particular witness who was to be called on a particular issue was of an advanced age and no longer wished to give evidence or had become infirm and unavailable in the period of the further inordinate and inexcusable delay.

Turning to the present case, what was contained in the affidavits was insufficient.

As the judge had said, the defendants did not identify the particular witnesses nor the particular respects in which their evidence had been impaired.

Where his Lordship differed from the judge was that it was incumbent on defendants always to identify a particular witness or a particular respect in which their evidence had been impaired or a particular reason why they said that there was a substantial risk that there could no longer be a fair trial of the issues.

Were the mere assertion of prejudice to be sufficient, then that would in effect transfer the burden of proof on that issue to the plaintiff, a submission that was expressly rejected by the House of Lords in Department of Transport v Chris Smaller Ltd ( [1989] AC 1197).

16 The second decision is that of the Court of Appeal Rowe v Glenister and ors. (1995) TLR 463. The note of the decision is very brief and is in the following terms:

"LORD JUSTICE WAITE said that it was not enough for the defendant to show merely that memories must have grown fainter during the period of post-writ delay.

He had to establish that in some specific respect particular witnesses had become disabled, by reason of the lapse of time during the period of culpable delay, from giving evidence as cogent and complete as they would have been in a position to give had the trial been held without the delay."

17 The third decision is that of the Court of Appeal in Slade v Adco Ltd: (1995) TLR 650. It is relevant to quote the following observations of Auld LJ. His Lordship was in dissent as to the outcome of the particular appeal; but the passages to be quoted do not propound principles to the contrary of anything said in the two majority judgments.

"The judge's reasoning raised again, and in an acute form, the question as to how the courts should determine the existence of a likelihood of serious prejudice to a defendant where there was no evidence of prejudice other than that of the delay itself. The authorities suggested two different answers.

The first was that the court might infer simply from the length of a delay that it was likely to have dimmed or distorted the memories of witnesses.

The second was that there must be some evidence, other than that of the delay itself, from which a court might draw that inference. The debate also involved a difference of judicial opinion as to whether memory faded earlier or later.

His Lordship agreed with the analysis of the Court of Appeal in Rowe v Glenister & Sons Ltd (The Times August 7 1995: [1995] TLR 463) which was essentially the same as that of Lord Justice Roch in Hornagold v Fairclough Building Ltd ([1993] PIQR 400) and was consistent with the broader statement of Lord Justice Glidewell in that case of the same principle.

It was that there must normally be some evidence from which the likelihood of serious prejudice to the defendant could be inferred. It was important to cling to that principle while the rule in Birkett v James ([1978] AC 297) stood, for if it was lost there was no basis, other than one of "feel", for distinguishing between a double presumption of impairment of memory and of consequent serious prejudice merely because of long culpable delay, from a reasoned inference in the particular circumstances of a case that such serious prejudice was likely to result from culpable delay.

In his Lordship's judgment, the judge wrongly inferred from the length of delay without more than the plaintiff's and Mr. Garlick's memories were likely to have been impaired by the plaintiff's culpable delay and that it was likely seriously to prejudice the defendant's defence. His Lordship could see no evidential or other basis for such an inference.

The mere identification of the witnesses and of the importance of the evidence that they were to give did not, in his Lordship's view, satisfy the test.

Something more was required, some evidence or circumstances from which it could be inferred that the delay had caused some specific problem for one or both of the witnesses, as distinct from a general impairment of memory from the passage of time, and that it was likely to seriously prejudice the defendant."

18 It is also relevant for present purposes to notice the following observations of Neill LJ:

"LORD JUSTICE NEILL, agreeing with Lord Justice Glidewell, said that the onus of proving prejudice or the impossibility of a fair trial rested on the person who asserted it.

It was clear that in order to establish prejudice it was not enough merely to assert that in the nature of things memories would have dimmed with the passage of time.

There was less certainty, however, as to the precise nature and the degree of particularity of the evidence which the court would require before the onus was discharged.

In reaching a conclusion on that difficult point it was necessary to take into account some other factors.

1. The quality of oral evidence was likely to fall away much more rapidly in the early months and years rather than at a later stage. On the other hand there was great difficulty in attributing a dimming of memory to any particular period of time.

2. Account must also be taken of the fact that delay might create difficulties for a defendant when he sought to test by way of cross-examination the reliability of the plaintiff and his witnesses.

His Lordship had come to the conclusion that it was unwise to try to lay down any strict guidelines for the exercise of the judge's discretion in the individual case. The onus was on the person asserting prejudice or a substantial risk to a fair trial to establish it.

He would have to show that the prejudice or risk had been caused by the inordinate and inexcusable delay since the issue of the writ. A mere assertion was not enough.

But, in his Lordship's view, the individual judge should be left to assess the prejudice and the risk and the adequacy of the evidence in the light of the individual circumstances of the case.

That approach was in accordance with the guidance given by the House of Lords in Roebuck v Mungovin ([1994] 2 AC 224)."

19 At the hearing of the present application, no reference was made to any of the foregoing three decisions; but, equally, no reference was made to any authority to the contrary of what is there propounded. It suffices to say for present purposes that, with one particular exception to which I shall come presently, I am not satisfied by the whole of the evidence adduced at the hearing of the present application, that there has been demonstrated in the requisite particular way, unfair prejudice and unacceptable prospects of a fair trial.

20 The one exception of which I have spoken is derived from paragraph 11 of an affidavit sworn by Miss Tricia Hobson, the solicitor having the practical carriage of the present application on behalf of the fourth defendant. That paragraph is in the following terms:

"11. If this matter were to proceed to trial, it is anticipated that all employees of the fourth defendant who were involved in the screening of each of the two pap smears, may need to be called as witnesses. I am instructed that there were four or possibly five such employees. Of these, three cannot currently be located. They are no longer employed by the fourth defendant. Attempts are currently being undertaken to locate these potential witnesses by another employee of the fourth defendant but at the time of swearing this affidavit, they had not been located."

21 I recognise that this paragraph at least attempts to come to grips with the practical requirements of which I have earlier been speaking. I do not think, however, that it is sufficient to carry the day for the fourth defendant, let alone for all four defendants. It is to be kept in mind that, so far as concerns the fourth defendant, its liability is said to arise vicariously by reason of the actionable negligence of the second defendant. It is, as I understand the case to be made against the fourth defendant, essentially by reference to what the second defendant did or failed to do, that it is to be decided whether or not the fourth defendant is answerable in damages in the present proceedings. Quite apart from that consideration, I would think it necessary for the fourth defendant to have given the Court, in connection with the present application, at least some idea of what had been done to trace the relevant records of the fourth defendant, and with what practical results and practical consequences.

22 I should note, also, a submission put for the defendants and to the effect that it is relevant to the exercise of the Court's discretion in connection with the present notice of motion, that the defendants have been kept, and are being kept, at risk. Reliance is placed in that connection upon a decision of Waddell J: Southern Cross Exploration NL and ors. v Fire and All Risks Insurance Co. Ltd and ors. (1986) 4 NSWLR. Put shortly, the relevant principle there established is that: ".........the fact that a defendant is being kept at risk is relevant to the exercise of the Court's discretion to dismiss proceedings for want of prosecution as a matter distinct from prejudice in the conduct of the action". The point is further examined in the decision of the House of Lords: Department of Transport and Chris Smaller (Transport) Ltd (1989) AC 1197. Five Lords of Appeal Ordinary concurred in the following statements of principle appearing in the speech of Lord Griffiths at 1209 F-1210A:

"I would, however, express a note of caution against allowing the mere fact of the anxiety that accompanies any litigation being regarded as of itself a sufficient prejudice to justify striking out an action. [Counsel] did not seek to argue that the anxiety occasioned by the extra 13 months in this case should be regarded as a sufficient ground of prejudice to justify making a striking out order. There are, however, passages in some of the judgments that suggest that the mere sword of Damocles, hanging for an unnecessary period, might be a sufficient reason of itself to strike out. On this aspect I repeat the note of caution I expressed in the Court of Appeal in Eagil Trust Co Ltd v Pigott-Brown (1985) 3 All ER 119, 124, where I said

"Any action is bound to cause anxiety, but it would as a general rule be an exceptional case where that sort of anxiety alone would found a sufficient ground for striking out in the absence of evidence of any particular prejudice. Biss's case is an example of such an exceptional case, the action hanging over for 11-1/2 years, with professional reputations at stake."

23 I accept, of course, the principle established by the foregoing decisions. I recognise, of course, the prima facie analogy between the particular facts of the present case and the particular facts, as noted by Lord Griffiths, of Biss v Lamberth Southwark and Lewisham Area Health Authority (Teaching) (1978) 1WLR 382. I do not perceive, however, any evidence on the present application, which is so cogent with regard to this element of personal and professional prejudice as would, so to speak, cancel out the other considerations of which I have spoken.

24 For the whole of the foregoing reasons, I am satisfied that it would be just to give the Mr. Lamond the substance of the relief that he seeks in the first three paragraphs of his Notice of Motion. In that connection I make the following particular orders:

1. That proceedings numbered 14401 of 1992 in the Common Law Division of this Court be restored to the active list of that Division.

2. That Phillip Lamond, the husband of the late Patricia Lamond, be substituted as plaintiff in such restored proceedings.

3. That, not later than 7 days from the date of publication of this judgment, a copy of the order giving effect to Order 2 above be served upon each of the four defendants to the principal proceedings. In default of such service on any defendant, then the principal proceedings will stand, by virtue of SCR Pt. 8 R. 12(1)(b), dismissed as against that defendant. I direct that service by facsimile transmission will be sufficient compliance with this order.

4. That the proceedings be transferred not later than 21 days after the date of publication of the present judgment into the District Court of New South Wales.

25 The Notice of Motion seeks an order that the costs of the application, if the application be successful, be costs in the cause. All four defendants submitted that, even were the application successful, the plaintiff should be ordered to pay their costs of the present application. The first, second and third defendants seek also, in such event, their costs of the call-over before Wood CJ at CL.

26 As at present advised, I would think that there is a strong prima facie case for the making of an order that Mr. Rodney Kent personally pay the costs of all parties to the present application, and the costs, also, of the first, second and third defendants in connection with the call-over before Wood CJ at CL. I think that SCR Pt. 52A R4 (5)(e) confers the necessary power in that behalf. I think, however, that such an order could not properly be made without first giving Mr. Kent a fair opportunity to be heard upon the question. That course, were it to be followed, would entail even further delay and expense in the present proceedings.

27 I will, therefore, order formally that the substituted plaintiff, that is to say Mr. Lamond, pay the costs of all four defendants of the present Notice of Motion. In that connection, and for the assistance of any assessment of those costs, I note that the solicitor appearing for the first and second defendants made submissions upon which the third and fourth defendants were content to rely without addition. I note, also in that connection, that the solicitor appearing for the third defendant did no more at the hearing of the Notice of Motion than, in effect, to hold a watching brief. I note, also and finally in connection with any assessment of costs, that the solicitor appearing for the fourth defendant read her own affidavit and otherwise held, effectively, a watching brief.

28 With regard to the costs of the call-over before Wood CJ at CL, I think it just that the substituted plaintiff pay the costs of the first, second and third defendants of that appearance. The fourth defendant, as earlier noted, does not seek costs in respect of that particular hearing.

29 The formal order as to costs therefore will be:

5. That the plaintiff pay the costs, as agreed or assessed, of all four defendants of the present Notice of Motion; and the costs of the first, second and third defendants, of the call-over on 4 June 1998 before Wood CJ at CL.

LAST UPDATED: 24/02/1999