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Antonio Perez v Transfield (Qld) Pty. Ltd.

 

[1979] FC 45

IN THE SUPREME COURT OF QUEENSLAND

No. 9 of 1979

FULL COURT

BEFORE:

Mr. Justice Lucas

Mr. Justice Hoare

Mr. Justice Kelly

BRISBANE, 29 JUNE 1979

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

-----

BETWEEN:

ANTONIO PEREZ

(Plaintiff) Respondent

- and -

TRANSFIELD (QLD) PTY. LTD.

(Defendant) Appellant

- and -

EAGLE STAR INSURANCE COMPANY LIMITED and STATE GOVERNMENT INSURANCE OFFICE (QUEENSLAND)

Third Parties

JUDGMENT

MR. JUSTICE LUCAS: In my opinion the appeal should be dismissed with costs. I publish my reasons.

MR. JUSTICE HOARE: In my opinion the appeal should be dismissed with costs. I publish my reasons. I also agree with the reasons of my brother the presiding judge.

MR. JUSTICE KELLY: In my opinion the appeal should be dismissed with costs. I agree with the reasons published by my brother the presiding judge and also with the reasons published by my brother Hoare.

MR. JUSTICE LUCAS: The order of the court is that the appeal is dismissed with costs.

-----

 

Appeal No. 9 of 1979

BETWEEN:

ANTONIO PEREZ

(Plaintiff) Respondent

AND:

TRANSFIELD (QLD) PTY. LTD.

(Defendant) Appeallant

AND:

EAGLE STAR INSURANCE COMPANY LIMITED and STATE GOVERNMENT INSURANCE OFFICE (QUEENSLAND)

Third Party

_______________

LUCAS J.

HOARE J.

KELLY J.

_____________________

Reasons for Judgment delivered by Lucas J. and Hoare J. on the 29th June, 1979. Kelly J. concurring.

_____________________

“APPEAL DISMISSED WITH COSTS.”

IN THE SUPREME COURT OF QUEENSLAND

Appeal No. 9 of 1979

BETWEEN:

ANTONIO PEREZ

(Plaintiff) Respondent

- and -

TRANSFIELD (QLD) PTY. LTD.

(Defendant) Appellant

- and -

EAGLE STAR INSURANCE COMPANY LIMITED and STATE GOVERNMENT INSURANCE OFFICE (QUEENSLAND)

(Third Parties)

JUDGMENT - LUCAS J.

I have had the advantage of reading the judgment prepared by Hoare J. and I agree with his reasoning and conclusions. I wish only to add a word upon the interaction between the second sentence of O. 90 r. 9 and O. 93 r. 17. Until 1965 O. 93 r. 17 was in the following form:—

“Non-compliance with any of these rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court or a judge so directs; but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the court or judge may think fit.”

The corresponding English rule, O. 70 r. 1, and later, O. 2 r. 1, was in the same form, subject to a verbal change (“shall so direct” instead of “directs”), until 1st October 1964 (for the date, see the judgment of Payne J. in Brady v. Barrow steel Works Ltd. (1965) 2 QB 182 at p. 188).

Under a rule in this form, it was important to determine whether proceedings which did not comply with the rules were irregularities or nullities; if the former, they could be cured by applying O. 93 r. 17; if the latter, they could not.

In In re Pritchard deed. (1963) Ch. 502 an originating summons was issued on behalf of a widow claiming provision out of her husband's estate under the English legislation corresponding with Part V of the Succession Act 1867-1977. That legislation provided the same time limit for such an application as does the Queensland legislation; six months from the date of probate. The summons was issued out of a district registry whereas, under the rules it should have been issued out of the Central Office. Unfortunately it was issued on the day before the six-months period expired. The majority of the Court of Appeal held that nothing could be done about the matter, for the purported issue of the originating summons had been a nullity. It is said that it was because of that decision that the rule was changed. In England, as I have said, the new rule came into force on 1st October 1964; when the Queensland rules were revised in 1965 O. 93 r. 17 was repealed and a new rule was substituted, taking effect from 12th February 1966, in precisely the same terms as the English rule (except that where the English rule uses the expression “the court” the Queensland rule uses “the court or a judge”). The Queensland rule is as follows:—

“(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.”

It is not necessary to set out the contents of rules 2 and 3.

In Harkness v. Bell's Asbestos & Engineering Ltd. (1967) 2 QB 729 Lord Denning M.R. said (at p. 735):—

“This new rule does away with the old distinction between nullities and irregularities. Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice.”

The other two members of the court do not appear to have gone quite so far, and it may be, as my brother Hoare has said, referring to the note to the English O. 2 r. 1 in the Annual Practice, that the failure to comply with a statutory requirement, or the taking of a step which could be regarded as a serious impropriety, would render the proceedings a nullity. We are not in this case, however, called upon to define precisely the ambit of O. 93 r. 17.

In Campbell v. United Pacific Transport Pty. Ltd. (1966) Qd. R 466, a judge in chambers granted the plaintiff leave to proceed in an action in which no step had been taken between 4th December 1957 and 17th December 1965, the date of the application for leave to proceed. The plaintiff appealed to the Pull Court, and the defendant argued that he obtained some assistance from O. 93 r. 17 in its new form; it was said that the delay in proceeding with the action should itself be regarded as a failure to comply with the rules and be treated as a mere irregularity. Gibbs J. said (at p. 475):—

“In my view the respondent derives no assistance whatsoever from the provisions of O. 93 r. 17. If that rule applied, as it no doubt would if a statement of claim had been delivered without the necessary order, it would still be necessary for the court to decide whether the delivery of the statement of claim should be set aside and what order it would be just to make in relation to the matter. In making that decision the court would have regard to the provisions of O. 90 r. 9 and would only make an order permitting the action to proceed if good reason had been shown for departing from the prohibition imposed by the second sentence of O. 90 r. 9.”

Neither of the other members of the court specifically referred to the argument. The question did not arise in that case, for no step at all had been taken in the action for more than six years.

The question does, however, directly arise in this case, by reason of the fact that the respondent entered the action for trial and gave notice of trial on 15th October 1976, more than three years after the last step had been taken. The argument for the respondent was that the entering of the action for trial, notwithstanding that it was done after the expiration of more than three years after the last step, was to be treated as an irregularity only. Since no application had been made within a reasonable time to set aside the entry of trial (see O. 93 r. 18) it stood. It followed that the judge in chambers really only had before him in this case an application by the defendant for dismissal of the action for want of prosecution; he could not be said to have been wrong in refusing that relief.

I can see no escape from the argument. The taking of a step in a proceeding, without leave, notwithstanding that more than three years has elapsed since the last step was taken, comes literally within the wording of O. 93 r. 17(1), for in taking such a step “there has been, in the course of proceedings, by reason of a thing done, a failure to comply with the requirements of these rules in respect of time”. All these words are taken from the rule, and it follows that the failure is to be treated as an irregularity.

I would not have written at such length about this aspect of the matter had I not been of the opinion that this result is not in accordance with the intention disclosed in O. 90 r. 9. As a member of the committee which was responsible for the revision of the rules in 1965, I must take a share of the blame.

If a party takes a step out of time without leave, it will henceforward be necessary for the other party to apply promptly to have the step set aside, and this should be given the widest publicity within the profession. I am quite satisfied that it was not the intention of O. 90 r. 9 to require the other party to assume such a burden. If it is found that parties are ignoring the requirements of O. 90 r. 9 with any frequency, consideration should in my opinion be given to amending that rule.

I should add, since William Crosby & Co. Pty. Ltd. v. The Commonwealth (1963) 109 C.L.R. 490 has been regarded as a binding authority in the application of O. 90 r. 9, that the High Court Rules have not adopted the amendments to O. 93 r. 17 made in Queensland and in England (See O. 60 r. 12(2) and O. 64 r. 1).

In my opinion the appeal should be dismissed.

IN THE SUPREME COURT OF QUEENSLAND

Appeal No. 9 of 1979

BETWEEN:

ANTONIO PEREZ

(Plaintiff) Respondent

- and -

TRANSFIELD (QLD) PTY. LTD.

(Defendant) Appellant

- and -

EAGLE STAR INSURANCE COMPANY LIMITED and STATE GOVERNMENT INSURANCE OFFICE (QUEENSLAND)

Third Parties

JUDGMENT - HOARE J.

This is an appeal from a decision of the Central Judge granting leave to proceed to the respondent plaintiff and dismissing an application by the appellant defendant that the action be dismissed for want of prosecution.

The incident out of which the action was instituted occurred on 25th July, 1968. The writ was issued out of the Central District Registry on 9th July, 1971. It was duly served on State Government Insurance Office. This service was effected on the basis that it was alleged that the plaintiff was employed by the defendant and was injured in the course of his employment in consequence of the defendant's negligence or breach of duty and State Government Insurance Office was the insurer of the defendant under a policy of accident insurance within the meaning of the “Workers' Compensation Acts” of Queensland. However, it is also alleged by the plaintiff that the defendant was negligent in allowing a mobile crane which it owned, to be operated by an employee who was unskilled and/or unqualified and through its servant or agent failed to use reasonable care in the operation of the mobile crane whereby injury was caused to the plaintiff. It appears that the mobile crane was insured under a policy of insurance within the meaning of “The Motor Vehicles Insurance Acts” of Queensland with Eagle Star Insurance Company Limited. The writ was not served on Eagle Star Insurance Company Limited until the expiration of more than one year from its issue. However, due service was admitted in the defence. Counsel for the defendant concede that nothing now hinges on this late service.

In April, 1973 the Solicitors for the defendant caused the issue of third party notices on State Government Insurance Office and on Eagle Star Insurance Company Limited. In May, 1973 the plaintiff delivered his Statement of Claim and in June, 1973 the defendant delivered its Statement of Claim to the third parties and defences of each of the third parties were delivered in June and July of 1973.

Then followed a long delay which indisputably was caused by the failure of the plaintiff's solicitor to take steps to press on with the litigation. It appears from the solicitor's Affidavit that he was greatly overworked and for a time was unable to obtain professional assistance. He suffered a breakdown in health. However, it is clear that there was a delay of nearly two years in prosecuting the action (from 1973 to 1975) and this delay was the responsibility of the plaintiff's solicitor. As he could not attend to the matter himself his duty was to so advise the plaintiff who would have been at liberty to engage another solicitor had he thought that course appropriate in the circumstances. It would appear that no such advice was given to the plaintiff.

Eventually the solicitor obtained the services of a solicitor to assist him in his practice and on 10th September, 1975 notice of intention to proceed was served on the solicitors for the defendant and for the third parties. Shortly afterwards the solicitors for the secondnamed third party wrote to the plaintiff's solicitor asking that the plaintiff submit to medical examinations. Then followed a protracted series of communications between the solicitors for the secondnamed third party and the plaintiff's solicitor in relation to medical examinations. Various appointments were made and changed from time to time, sometimes at the request of the plaintiff although in at least one case, at the instance of a medical practitioner.

On 18th March, 1976 the solicitor for the secondnamed third party wrote inter alia to the solicitor for the plaintiff “Eagle Star Insurance Co. Limited has instructed us to make application .... to have the matter struck out for want of prosecution unless the matter is brought forward for hearing and/or settled at an early date.” Following this intimation new appointments for medical examinations were made.

It appears that the plaintiff's solicitor formed the incorrect impression that the solicitors for Eagle Star Insurance Company Limited had the carriage of the action on behalf of the defendant.

On 15th October, 1976 the plaintiff's solicitor gave notice of trial to the defendant and purported to enter the action to trial. On 8th November, 1976 the defendant's solicitors wrote to the plaintiff's solicitor inter alia as follows

“So far as we are aware no step has been taken in this action since we delivered our client's reply to the defence of the third party, Eagle Star Insurance Company Limited on 21st, August, 1973.

If this is correct then pursuant to Order 90 rule 9 of the Supreme Court Rules your client is obliged to obtain the leave of a court or a judge before the action can proceed.

We are aware of the fact that you served a notice of intention to proceed on 15th September, 1975 but in our view this does not constitute a step in the action.”

No action was taken by the plaintiff's solicitor in response to this letter but medical examinations were arranged, in due course, between the solicitors for the secondnamed third party and the plaintiff's solicitor. I note that there was a long delay in the solicitors for the secondnamed third party obtaining a copy of one report. It is not clear to what extent the plaintiff himself was responsible for these delays but it has not been shown that he bore no personal responsibility in this respect. The secondnamed third party was actively pursuing the possibility of a settlement of the action until about six months before the application to dismiss for want of prosecution was made by the defendant.

It is true that the plaintiff's solicitor was not entitled to regard the solicitors for the secondnamed third party is having the conduct of the action. However, it is quite common for solicitors for an insurance company which is by statute legally liable to meet a judgment for personal injuries sustained by a plaintiff arising out of or in consequence of an accident to a meter vehicle, to negotiate a settlement of the action. In the present action the secondnamed third party had reserved its rights against the defendant in consequence of an asserted breach of the policy conditions. Thus, it is submitted on behalf of the appellant that the appellant had a very real interest in the proceedings. It is submitted in effect that the fact that negotiations had continued for a long period with this particular third party was not a circumstance which should be regarded as excusing the plaintiff from either pressing on with his action or obtaining the acquiescence of the defendant to the delays which attended the medical examinations and reports sought by the secondnamed third party. There is merit in such a submission but on the other hand there is no material to suggest that the defendant was prejudiced in any way other than the prejudice likely to arise from the long delay which has occurred.

Another matter which should be mentioned is that the plaintiff is a migrant, born in Spain, with a limited knowledge of English. No doubt this circumstance led to some communication problems.

In the circumstances I do not deem it necessary to analyse in very close detail the various delays which have occurred. It is sufficient to say that, having regard to the delays at all stages of the action, including the fact that the writ was not issued until nearly three years alter the incidents said to give rise to the course of action, had the learned judge ordered that the action be dismissed for want of prosecution, in my opinion it would have been impossible to demonstrate that such an order was beyond the limits of a soundly exercised discretion. However, it does not follow that a discretion exercised to allow the action to continue was necessarily wrong.

The learned judge gave no reasons for his decision. The duty of magistrates to give reasons has been stressed in many cases. The duty applies to all courts from which an appeal lies. In Carlson v. King (1947) 64 W.N. (N.S.W.) 65, at p. 66, Jordan C.J. said:

“It has long been established that it is the duty of a Court of first instance, from which an appeal lies to a higher Court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal. This includes not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision. The duty is incumbents, not only upon magistrates .... and District Courts, but also upon this Court, from which an appeal lies to the High Court and the Privy Council ....

In Pettitt v. Dunkley (1971) 1 N.S.W.L.R. 376, at pp. 387, 388, .... I said: ‘... there is as much a duty or judicial obligation or an obligation imposed by law to give reasons in an appropriate case as there is otherwise a duty to act judicially, such as to hear arguments of counsel and hear evidance and admit relevent evidance of a witness. The reason why the judicial obligation to give reasons in an appropriate case exists, is that, where an appeal is provided, the trial at first instance does not exhaust the rights which parties may have ...’”

These observations were cited with approval by Moffitt P. in Wright v. Australian Broadcasting Commission (1977) 1 N.S.W.L.R. 697 at pp. 701, 702. Class J.A. agreed with these reasons. In my opinion these observations on the requirement to give reasons are undoubtedly correct. There would be much to commend a proposition that the absence of reasons for a particular decision which should be made in the exercise of a discretion, should change the basis on which an appellate court acts on an appeal. However, as I understand the law, the absence of such reasons does not alter the basis on which an appellate court should act. These principles have been stated in a number of cases including Evans v. Bartlam (1936) A.C. 473 at pp. 480, 481 (per Lord Atkin) and at pp. 486, 487 (per Lord Wright).

One important matter canvassed by counsel for the respondent plaintiff relates to the effect of R.S.C. O. 93 R. 17(1). Counsel submit that in the present case the entry of the action for trial although it was contrary to the provisions of O. 90 R. 9, was nevertheless a mere irregularity and not a nullity. Counsel submit that the remedy available to the appellant defendant would have been to apply to the court under the provisions of O. 95 R. 17(2) and such an application must be made within a reasonable time (O. 93 R. 18). No such application was made within a reasonable time. Thus it is submitted that the entry of trial was not a nullity but was a mere irregularity and no application having been made by the defendant the entry of trial has, as it were, been validated. Counsel submit that this being so the application to dismiss the action for want of prosecution, being one in which the action has actually been entered for trial and the only subsequent delays of any consequence relate to attempts to settle the action, was one which was almost bound to fail.

If the argument of counsel for the respondent as to the effect of O. 93 R. 17 is soundly based then it offers much support for the exercise of a discretion in the way it was exercised by the Chamber Judge.

It should be noted that the present O. 93 R. 17 follows 30 2 R. 1. The English rule was introduced in 1964 following the decision of the court of appeal in Re Pritchard Deceased (1963) Ch. 502. Had the present problem arisen while the previous O. 93 R. 17 (which was identical with the then EO 70 R. 1) was in force, then without any doubt any step taken in the action contrary to the provisions of O. 90 R. 9 would have been treated as a nullity. It is clear that the solicitors for the defendant in this case so regarded the purported entry of trial.

The notes to the White Practice under EO 2 R. 1 state the effect of the rule as follows “... under it the ... distinction between nullity and mere irregularity disappears (see Harkness v. Bell's Asbestos & Engineering Limited (1967) 2 Q.B. 729 at p. 735, C.A.) at any rate in regard to ‘a failure to comply with the requirements of those rules,’ though it may still be that there are other failures to comply with statutory requirements or other improprieties so serious as to render the proceedings in which they occur, and any order made therein, a nullity.” I should think that an order made in breach of a statute would, generally speaking, be void. However, it does not necessarily follow that a step taken in an action in breach of O. 90 R. 9 should be similarly regarded. I agree with respect with the observations of Lord Denning M.R. in the Harkness case (supra) at p. 735-736 “Every omission or mistake in practice or procedure is henceforward to be regarded as an irregularity which the courts can and should rectify so long as it can do so without injustice.” It is interesting that Lord Denning further observed “It can at last be asserted that it is not possible for an honest litigant in Her Majesty's Supreme Court to be defeated by any mere technicality, any slip, any mistaken step in his litigation.” An earlier observation by Bowen L.J. was not borne out. (du Pontin v. Wood (1962) 1 Q.B. 594 per Holroyd Pearce L.J. at p. 609).

I see no valid reason why the provisions of O. 93 R. 17 should be read down in such a way that the provisions do not apply to proceedings referred to in O. 90 R. 9. A litigant should observe the requirements of the Rules including O. 90 R. 9. Should he fail to do so then the onus is on the other side to apply to the court under the provisions of O. 93 R. 17(2). Such an application must be made within a reasonable time, (O. 93 R. 18) otherwise that party will lose his rights under Order 93 R. 17(2). So understood the effect of O. 90 R. 9 will generally remain unimpaired. A prudent litigant will continue to make application to the court as required by the rule. Should he fail to do so the onus is on the other side to make the application. It is only if he fails to make the application within a reasonable time that the party loses his rights to rely on the provisions of O. 90 R. 9.

It seems to me that O. 90 R. 9 should be regarded as a procedural provision. It is true that in its earlier form when the time prescribed was six years, this period coincided with most statutory periods of limitation and in its present form coincides with many such periods of limitation, nevertheless it does not purport to operate as a bar to the bringing of a fresh action. Thus while I appreciate that the underlying reason for such a provision (See William Crosby & Co. Pty. Ltd. v. The Commonwealth (1963) 109 C.L.R. 490 at p. 496) affords an argument for treating the rule differently from other procedural provisions nevertheless it is a procedural provision and I am not satisfied that there is justification for “reading down” the provisions of O. 93 R. 17(1).

Having taken this view as to the effect of O. 93 R. 17 it seems to me that the purported entry of trial was not a nullity but was an irregularity. As the defendant's solicitors did not make an application to the court within a reasonable time they, in effect, have waived the irregularity. I see no sufficient reason why an irregularity of this nature cannot be waived by the party for whose benefit the provision would operate. For example a defendant might know that a plaintiff would in any event commence a new action which would not be statute barred. In such circumstances a defendant could well decide to waive the benefits of the rule.

It is ture that before the present action can be heard other steps are necessary including filing certificates of readiness (O. 39 R. 30A). Also, after the action was entered for trial (albeit wrongly) the secondnamed third party was actively pursuing the possibility of settlement of the action until about six months before the application was made by the defendant to dismiss the action for want of prosecution. This is an important circumstance even after making full allowance for the many delays which had occurred in relation to the late issue of the writ and the many delays which had occurred thereafter. Viewing the proceedings overall, I am not persuaded that the order of the Chamber Judge refusing the appellant defendant's application to dismiss the action was one which lay outside the limits of a sound discretion. In my opinion the appeal should be dismissed. I have read the reasons for judgment of Lucas J. in draft form and I agree with his reasons.

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Editorial Notes

  • Published Case Name:

    Antonio Perez v Transfield (Qld) Pty. Ltd.

  • Shortened Case Name:

    Antonio Perez v Transfield (Qld) Pty. Ltd.

  • MNC:

    [1979] FC 45

  • Court:

    QSC

  • Judge(s):

    Lucas, J., Hoare, J., Kelly, J

  • Date:

    29 Jun 1979

Litigation History

No Litigation History

Appeal Status

No Status