Written by Peter CarterMay 12, 2011
The plaintiff claimed her massage therapist had misrepresented his qualifications as to “counselling”, had inappropriately advised her on personal relationships and engaged in sexual behaviour & massage during a period from 1995 to 1999.
Seven claims and a state prosecution were started in 2002. The other civil proceedings were eventually struck out and the Supreme Court criminal proceedings were withdrawn. In this claim, the plaintiff’s lawyers failed to take any step in the matter in the 12 months after December 2007 and did not seek to leave to take a further step – the filing of a supplementary list of documents – in June 2009.
The defendant – now resident in Canada – applied to have the claim struck out. The chronology reveals several changes of solicitors, delays in obtaining medical evidence and waiting on the outcome of other proceedings to which she was also a party and which also affected the same defendant.
Was this a satisfactory explanation for the delay?
In considering the various issues to be weighed up his honour concluded: “the long period during which little was done by the plaintiff to progress the proceeding, the unfairness of the trial based so heavily on the plaintiff’s memory of events rendered unreliable through the passage of time since the mid-1990s, the plaintiff’s irregular steps, the plaintiff’s breach of the implied undertaking in rule 5 and that no blame for delays attributed to the defendant are together sufficient to satisfy me that the defendant’s application should succeed.”
In ruling that the claim should be struck out, his honour also noted that “prima-facie, the case appears to be a difficult one to win”.