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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Mulvey v Brisbane Roar Football Club Pty Ltd  QDC 239
MICHAEL JOHN MULVEY
BRISBANE ROAR FOOTBALL CLUB PTY LTD
District Court at Brisbane
29 November 2019
District Court at Brisbane
26 November 2019
CIVIL PROCEDURE – APPLICATION – STEP IN ACTION – DELAY – EXPLANATION FOR DELAY – NO STEPS TAKEN – PREJUDICE – PROSPECTS OF SUCCESS – where applicant plaintiff seeks leave to take step in action where no step has been taken in proceeding for more than two years – where delay since the last step is now almost four years – where action arises out of applicant’s contract of employment.
Tyler v Custom Credit Corp Ltd  QCA 178
UCPR r 389(2)
R J Anderson QC for the applicant
S C Russell for the respondent
McBride Legal for the applicant
Mills Oakley for the respondent
- This is an application pursuant to r 389(2) of the UCPR for leave to the applicant plaintiff to take a step in the action between he and the respondent defendant, in circumstances where no step has been taken in the proceeding for more than two years.
- The action between the applicant and the respondent arises out of the applicant’s employment as head coach of the Brisbane Roar football team.
- The applicant commenced employment as the coach of the Brisbane Roar from December 2012. He remained in that employment until his contract was terminated in November 2014. After proceedings were commenced the action initially proceeded expeditiously. A claim and statement of claim was filed in September 2015, a further amended statement of claim (FASC) on 2 November 2015, a defence was filed on 19 November and a reply on 9 December 2015. It is accepted by the applicant that was the last step in the action. Consequently the period of delay since the last step is now almost four years.
- In Tyler v Custom Credit Corporation Limited 2000 QCA 178 Atkinson J set out a non-exhaustive list of factors to be taken into account on an application such as this. Her Honour said at paragraph 2 of the reported judgment:
“When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules (“UCPR”) r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. These include:
- (1)how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
- (2)how long ago the litigation was commenced or causes of action were added;
- (3)what prospects the plaintiff has of success in the action;
- (4)whether or not there has been disobedience of Court orders or directions;
- (5)whether or not the litigation has been characterised by periods of delay;
- (6)whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
- (7)whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
- (8)whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
- (9)how far the litigation has progressed;
- (10)whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
- (11)whether there is a satisfactory explanation for the delay; and
- (12)whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.
The court’s discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.” [citations omitted]
- In his submissions before me counsel for the applicant (who I note was not the counsel who settled the FASC, to which I shall later refer) submitted that the critical factors from that list applicable in this matter are:
- that the applicant has, he submitted, strong prospects of success in the action;
- that there is a satisfactory explanation for the delay; and
- that the respondent has not been significantly prejudiced, and it is unlikely it will be unable to have a fair trial of the matter.
- Other matters addressed in her Honour’s list were referred to, in particular in counsel’s written submissions but it appears to me that those are the critical considerations.
- Counsel for the respondent submitted that to characterise the applicant’s prospects of success as strong was to overstate the real position. He submitted than in reality the applicant was able to demonstrate only a prima facie case. He also submitted the applicant had given a wholly inadequate explanation of the long delay in the matter. He further submitted that the overall impression that would be gleaned from a consideration of the applicant’s material and from his own affidavit in particular, is that he did not take his obligation to advance the litigation in an expeditious manner seriously and that there was a need for careful consideration of his explanation for delay. He submitted that by reason of his delay the respondent was prejudiced in its conduct of the action.
- It is common ground that from December 2012 the applicant was engaged as coach of the Brisbane Roar Football Club, and received a salary of $191,000 per annum (see paragraph 3 of the FASC, and paragraph 2 of the defence, together with the employment agreement exhibited at pps 1-22 of the certificate of exhibit to the affidavit of the applicant, especially clause 5.1(b) thereof which sets out the applicant’s salary of $191,000 per annum.) In May 2014 the Brisbane Roar won the premier league grand final. One of the consequences of its doing so was that, pursuant to the terms of the employment contract to which I have just referred, the applicant’s employment was extended to 30 April 2017. Under that initial employment agreement Brisbane Roar was entitled, pursuant to clause 9.2 thereof, to end the applicant’s employment “at any time by giving written notice”. The period of written notice required was the lesser of 3 months or the remaining period of the term.
- Pursuant to that clause the respondent was entitled to either pay the applicant’s salary, (described as total employment cost) in lieu of the notice period or require the applicant to work for part of the notice period or pay his total employment cost in lieu of the balance of the period.
- The applicant’s pleaded case is that on or about 18 June 2014 at a meeting between he and Sean Dobson, who it is admitted was the managing director of the respondent at all relevant times, met and agreed upon a variation of the contract of employment. It is unnecessary to consider all of the terms of the varied contract at this stage, other than to say that the applicant alleges he was to be paid a salary of $250,000, to take effect from 9 May 2014, together with a $100,000 “sign-on fee” and then annual salaries of $300,000 for the second and third years of the employment contract. Furthermore pursuant to that varied agreement the applicant says he was to receive an 18 month payout if his contract with the club was terminated by the respondent.
- The applicant further contends that in September 2014 the agreement was further varied by agreement between he and Mr Dobson. In Mr Mulvey’s affidavit it is said that the remuneration was varied such that the applicant was to receive $275,000 in the first year of his contract, $325,000 in the second year and $350,000 in the third year of his contract together with bonuses which are irrelevant for present purposes. There was no sign on fee. Thus the contemplated total remuneration of the 3 year contract was the same, but arranged differently.
- On 23 November 2014 the respondent gave the applicant written notice ending his employment, and he ceased employment with the defendant at that time.
- In the further amended statement of claim the applicant seeks $286,500 “in accordance with clause 9.2 of the second variation”. For present purposes it is necessary to note only that the terms of the second variation, in respect of the salary to be paid are not pleaded in the FASC.
- It appears to me upon consideration of the case that issues of credit between the applicant and Mr Dobson might very well be strongly influenced by consideration of the salary actually paid to the applicant. As I have said, the applicant alleges that he was to be paid, from 9 May 2014, pursuant to an agreed variation of 18 June 2014 at the rate of $250,000 per annum, rather than the $191,000 earlier agreed. Pursuant to the alleged second variation, he alleges his salary was further varied to $275,000 per annum.
- It appears to me that the applicant’s actual wages in the period from mid-2014 until his termination in November 2014 might be strong objective evidence of the terms of his employment contract. Whether payments over that period were at the annual rate of $191,000, or $250,000 (or indeed $275,000) per annum, might be strongly supportive of the evidence of, on the one hand, the applicant and the other, Mr Dobson.
- There is however an unusual aspect of the matter. Indeed, I am reminded of:
“‘Curiouser and curiouser!’ cried Alice (she was so much surprised that for the moment she quite forgot how to speak good English)”. (Alice’s Adventures in Wonderland by Lewis Carroll, Chapter 2)
- In the FASC the applicant seeks $286,500 which, it seems to me, is 18 months’ salary, consistent with the notice period required under the alleged varied agreement, but calculated at the rate of $191,000 per annum, which is the salary under the initial agreement. As I said earlier I do note that counsel who appeared before me was not the counsel responsible for drawing the FASC and in any case, it does not seem to me to undermine the potential objective importance of the applicant’s wage records which no doubt will be available to the parties. In making that comment I am cognisant of the content of the affidavit of David Pourre, the current Chief Executive Officer of the respondent. In his affidavit he refers to the fact that at the time of the termination of the applicant’s employment the respondent used an email server to store all electronic correspondence, but has since changed from a server type storage system to a cloud based storage system, known as Telstra Box. He says he has been informed by an IT consultant who works from time to time with the respondent that the task of identifying and retrieving emails and documents relevant to the proceedings could be delayed, for a period from between several weeks to several months, because of that change.
- I interpose that in my view, a delay of that nature, and in circumstances where it is not said that this will lead to significantly increased costs (or indeed to any increased cost) could not be said to be materially prejudicial to the respondent leading to an inability to ensure a fair trial.
- In his affidavit Mr Pourre also says that on 11 May 2015, so about six months after the applicant’s termination, Mr Dobson himself resigned from his role as managing director of the respondent, and since about December 2015, has had no contact with the respondent. Furthermore, Mr Pourre deposes that in May 2017 Mr Dobson commenced proceedings against the respondent in the Federal Circuit Court of Australia in respect of his employment with the respondent. Those proceedings were settled on confidential terms in November 2018. Mr Pourre further deposes that he nor anyone else involved with the respondent is aware of Mr Dobson’s current location or contact details. He says that it is unlikely Mr Dobson will be willing to voluntarily assist the respondent in the proceedings brought by the applicant. He asserts:
“Had the claim by Mr Mulvey been active and/or had been further progressed by Mr Mulvey come the time of negotiation of the settlement terms with Mr Dobson, I would have ensured that those terms included an obligation upon Mr Dobson to assist [the respondent] in defending this proceedings. Whilst this possibility was known to me and discussed at the time with the lawyers acting for [the respondent], given the then current status of this proceeding (i.e. where no step had been taken for in excess of two years at the time of the negotiations to finalise Mr Dobson’s court action), and the dynamics of the settlement discussions, I made a strategic decision to not press for such a term to be included as part of the settlement.”
- It is in essence asserted that the respondent’s principal witness will in such circumstances be less accessible, and less amenable to assist the respondent in the subject litigation, a loss of opportunity brought about as a result of the applicant’s delay. Whilst, as counsel for the applicant submitted, the decision not to seek to have Mr Dobson agree to a term requiring him to assist the respondent with the subject litigation was a decision made by the respondent, it does seem to me relevant to consideration of the issue of prejudice to understand that Mr Dobson might be less inclined to assist the respondent than he would have been, at least prior to his own termination of employment in December 2015. This is of course not the same thing as saying that Mr Dobson’s evidence cannot be obtained or that he would not give honest evidence.
- The assertion that neither Mr Pourre nor anyone at the respondent is aware of Mr Dobson’s whereabouts is met by an affidavit of Gerard Murphy, a solicitor with McBride Legal, the applicant’s solicitors, that he has been informed by Mr McBride, the principal of that firm, and verily believes that during the last week Mr McBride has been in contact by telephone with Mr Dobson who confirmed that he currently resides and works in Brisbane. In that circumstance it seems that the potential prejudice which might be suffered by the respondent is limited to the circumstance that since December 2015 Mr McBride’s employment with the respondent has been terminated, and he has instituted proceedings against the respondent arising from that termination, proceedings which have now been resolved.
- The applicant’s counsel submits that the applicant’s significant periods of unemployment, the demands of his job when employed, and his financial circumstances are together reasons which explain his not taking a step in the action between December 2015 and now. I do not think that those reasons can be said to be directly responsible for that failure. It seems to me that the first two of those reasons are in some ways mutually inconsistent. That is, if he has always been too busy, when employed, to provide appropriate instructions to his solicitor, then he had ample time when unemployed to do so. His failure to attest as to what steps he might have taken, or intended to take, but did not do so because of any lack of financial resources operates in my view against the notion that his financial circumstances are a reason for his failure to take a step.
- In my view the real reason for his not taking a step was his ignorance of the requirement that he do so. He simply did not know he had to, and failed to maintain contact with his solicitor. He says in his affidavit that he did not prosecute the proceedings since late 2015 because:
“My former solicitors did not ensure I take a ‘step’ in the two years following the close of pleadings, nor did they advise me that if a step is not taken for two years that leave of the court is required before any further step can be.”
- He also says that notwithstanding that he has experienced financial difficulty over the past few years, because he had not been properly paid out by the respondent (which I take to mean, in accordance with what he asserts is the agreement) he “would have done whatever I could to ensure that period of time did not elapse without a step being taken, had I been aware of it”. He also refers to the fact he has sought employment opportunities overseas, and in New South Wales and his absence from Australia, and from Brisbane and the high intensity of the coaching roles “made it difficult to give appropriate attention to my case”.
- Whilst I accept such matters in practice may have distracted him from giving attention to his case, I conclude that the real reason for his failing to take a step was his ignorance of the requirement that he should do so. I accept his statement that his then solicitors did not advise him that if no step was taken for two years then leave of the court was required before any step could be taken. His conduct is in my view most explicable in such circumstances. I accept that if he had known of the requirement he would have taken an appropriate step because of his view that his contract has not been properly paid out.
- I also accept that the applicant’s then solicitors ought have both advised him of that requirement, and, additionally, ought to have taken steps to avoid the need for an application under r 389.
- In saying that I do not absolve the applicant of all criticism. A party ought, even if not advised by his solicitors, anticipate that there is a need to litigate with reasonable diligence. But the delay in my view is at least significantly due to the conduct of the applicant’s lawyers, only some of which should be sheeted home to the applicant.
- I should add that in coming to the factual conclusion I have, I do so for the purposes of resolving this application between the applicant and the respondent. I am conscious of the fact that I have not had the benefit of any evidence from the applicant’s then solicitors as to what they say they might have told the applicant.
- Before me counsel for the respondent referred to that the fact that:
- the applicant’s then solicitors had provided an affidavit of documents to the respondent’s solicitors in February 2018, and in response the respondent’s solicitors advised no step had been taken for over two years and consequently that an order pursuant to r 389 would be required; and
- Redchip Lawyers had served a notice of change of solicitors in April 2019.
- He submitted both these matters supported an inference that the applicant since at least early 2018 knew of the requirement to obtain leave to proceed did not take his obligation to proceed expeditiously seriously. It was submitted that the applicant ought to be required to explain his failure to take a step from December 2015 in greater detail before any order should be made giving leave to proceed.
- In response counsel for the applicant advised me that the applicant had provided instructions that the receipt of the affidavit of Mr Wright, in which those matters were raised, and which was filed by leave before me, was the first the applicant knew of any of those matters.
- It was said that he had not had an opportunity to swear an affidavit to that effect but had provided instructions about that issue. The respondent’s counsel, when I asked, did not object to counsel for the applicant advising me of those matters in that way.
- Those matters in my view confirm my impression that the real cause was of the applicant’s failure to take a step in the action for almost four years was his ignorance of the requirement that he needed to do so.
- Ultimately I have concluded that it is appropriate to grant the application by giving the applicant leave to continue the proceedings. Consistent with the applicant’s counsel’s draft order I will also order the applicant to file and serve a list of documents. Presumably that list will be generally in accord with the list earlier provided on 22 February 2018, and which provoked the response from the respondent’s then solicitors pointing out that no step had been taken for more than two years and that leave of the court was require.
- In determining to do so, I am particularly influenced by my view that:
- To a significant degree it is likely that the determination of credit as between the applicant and Mr Dobson will depend upon objective evidence as to the salary that was in fact paid to the applicant from mid-2014.
- Any prejudice to the respondent in the way described by Mr Pourre, is minimised because Mr Dobson is living in Brisbane and will be able to be subpoenaed to give evidence at the trial and my assumption that, if he does so, consistent with his oath, he will be required to give evidence honestly, and in circumstances where the issue of any dispute between Mr Mulvey and Mr Dobson and the respondent may well be significantly determined by consideration of the objective evidence of the salary actually paid.
- Whilst the delay of four years is significant, it is not unusual that litigation which may depend upon recollection of conversations some years previously is not unusual, and is in any case likely to be in part significantly influenced by the objective evidence I have referred to.
- The applicant’s prospects of success are at least significant, and, if the objective evidence of a change in salary from $191,000 to $250,000, or indeed $275,000 is confirmed, might be described as strong.
- There has been no disobedience of court orders or directions but mere non-compliance with the obligation to litigate in accordance with the implied undertaking under r 5 of the UCPR but in accordance with the rules.
- The applicant’s delay, whilst significant, is explained by his absence of knowledge of the requirements of the rules, caused by his then lawyers being both dilatory, and disobedient of the obligation to inform the applicant of his need to proceed expeditiously.
- In the circumstances and generally consistent with the submissions of the applicant’s counsel I will order that:
- Pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999, the applicant is granted leave to continue the proceedings.
- By 3 December 2019 the applicant shall file and serve a list of documents.
- Having regard to my observations about the pleadings, it is probably also appropriate that the applicant’s counsel gives serious consideration as to whether or not the current pleadings, including the sum claimed, appropriately reflect the applicant’s claim in the proceedings. I shall not however make any orders in respect of any amendments to pleadings.
- Before me counsel for the applicant submitted that if he was successful, it should not automatically follow that the respondent be entitled to its costs of opposing the application. He submitted that even though the applicant’s delay had brought about the need for the application, it was appropriate, in the circumstances, for the respondent not to have opposed the application.
- I do not accept that to be so. In my view the respondent, though unsuccessful before me, raised real questions for consideration. In my view it is unrealistic to think that, after a delay of four years, and in circumstances where the respondent’s principal witness is now not employed by them, that they ought to have conceded the merits of the claim.
- I order that the applicant pay the respondent’s costs of and incidental to the application to be assessed on a standard basis.
- Published Case Name:
Michael John Mulvey v Brisbane Roar Football Club Pty Ltd
- Shortened Case Name:
Mulvey v Brisbane Roar Football Club Pty Ltd
 QDC 239
29 Nov 2019