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James v Commonwealth Bank of Australia


[2003] QCA 304



James & Anor v Commonwealth Bank of Australia Bo’s Demolitions Pty Limited v Commonwealth Bank of Australia [2003] QCA 304



Court of Appeal


General Civil Appeals



25 July 2003




2 May 2003


de Jersey CJ, Williams JA and Helman J  

Separate reasons for judgment of each member of the Court, each concurring as to the orders made


Appeals dismissed with costs


PROCEDURE – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – where length of delay excessive – whether inadequate explanation for delay – whether respondent suffered loss of opportunities with respect to witnesses


K Fleming QC, with A Lyons, for the appellants  

K Barlow for the respondent


Astills Lawyers for the appellants

Freehills for the respondent


[1]  de JERSEY CJ:  I have had the advantage of reading the reasons for judgment of Helman J  I agree with the orders proposed by His Honour, and with his reasons.

[2]  WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Helman J  I agree with the orders proposed by his Honour and with his reasons.

[3]  HELMAN J: On 14 October 2002 Moynihan J had before him two applications by the respondent, both filed on 4 October 2002.  In each the respondent sought an order that an action against it be dismissed for want of prosecution: that of Mr Robert James and Mrs James, no. 9640 of 1996, and that of Bo’s Demolitions Pty Limited, no. 9641 of 1996.  His Honour dealt with the applications together because the proceedings had their origin in the same events.  After delivering extemporaneous reasons his Honour made the orders sought by the respondent.  With the concurrence of the parties the appeals against those orders were heard together. 

[4] I should mention here that on or about 19 August 1998 Mr and Mrs James gave written notice to the respondent that Mrs James had assigned her interest in their claim to Mr James. 

[5] The business of Bo’s Demolitions Pty Limited, of which Mr James was the sole director, was primarily the demolition of commercial buildings.  It was one of a group of associated companies called ‘Bo’s Group’ and had demolished a number of buildings in Brisbane including the Canberra Hotel, the Inns of Court, and two bank buildings in which the respondent had carried on business.  Parts of the demolished buildings, including such things as sets of escalators, windows, doors, timber, steel and other hardware, were taken to land at Geebung (the Geebung Transport Depot) and later sold.  Between 1988 and 1991 the respondent provided financial accommodation to Bo’s Group.  Securities were granted to the respondent by members of the Group and Mr and Mrs James including registered charges, real property mortgages, and bills of sale.  On or about 15 November 1990 the respondent, alleging default in performing obligations provided for under the security documents, made formal demands on the grantors for payment of sums outstanding.  The respondent then took possession of various assets of Bo’s Demolitions Pty Limited and Mr and Mrs James.  Those assets included chattels allegedly owned by Bo’s Demolitions Pty Limited and other members of the Bo’s Group and the land at Geebung.  The debts owed to the respondent were discharged on 12 June 1991.

[6] We were told that if the appeal relating to Mr James’s claim is allowed the statement of claim would be amended to delete certain items, but the following would remain:


1.A claim of loss because the respondent failed to return unsold chattels and caused damage to other chattels;


  1. A claim in respect of damage to the Geebung Transport Depot caused when it was in the respondent’s possession;  and


  1. A claim to an account in respect of two categories of expenses unreasonably incurred. 

[7] The list of chattels the subject of claim no. 1 covered a large variety of goods, most of which were described in general terms, including laser alignment equipment, furniture, a wetsuit, a water ski, radios, filters, spare parts for trucks and other machines, tools, workshop equipment, aerials from two-way radios, and D10 tracks.

[8] Mr James makes claim no. 2 alleging that at all material times prior to 16 December 1992 he was the registered proprietor of an estate in fee simple in the Geebung Transport Depot, that it was in the respondent’s possession from on or about 15 November 1990 to 12 June 1991, and that while the Depot was in the respondent’s possession it suffered damage as a result of the respondent’s breaches of duty for which the respondent is liable to Mr James. 

[9] Claim no. 3 is a claim for repayment of money based on an allegation in relation to the moneys claimed by the respondent for costs, charges, and expenses incurred by it arising out of the steps it took to enforce payment of the moneys it claimed from Mr and Mrs James and the members of Bo’s Group.  Mr James claims that those costs etc., have not been properly accounted for and that they included costs etc., that were not reasonably and properly incurred by or on behalf of the respondent.  The claim for repayment is now confined to two categories of payments:  those in relation to the retention of security guards to attend at the Geebung Transport Depot from on or about 15 November 1990 to on or about 12 June 1991, and commissions and expenses paid to Peter J. Strophair & Associates Pty Ltd, auctioneers and valuers engaged by Mr Desmond Knight, chartered accountant, the receiver appointed by the respondent.

[10]  The essence of the action begun by Bo’s Demolitions Pty Limited is a claim to conversion of three escalators, a safe, and ‘demolition materials’. 

[11]  The appellants’ claims have moved at a snail’s pace.  There have been lengthy periods of inactivity.  The appellants’ then solicitors, in a letter dated 11 March 1991 to the respondent, and in a letter dated the following day to the respondent’s solicitor, threatened legal proceedings, but nothing happened until 13 November 1996 when these actions were begun.  Nothing further happened until 7 November 1997 when the respondent was served with the writs of summons.  The respondent entered appearances on 14 November 1997.  The statements of claim were not delivered until 19 August 1998, after orders were made in this court on 17 July 1998 that they be delivered on or before 7 August 1998.  The respondent’s solicitors had asked for the statements of claim on 2 June 1998, and then the respondent had applied for orders that the proceedings be struck out for want of prosecution.  That was refused, and the delivery of the statements of claim ordered.    There was then some delay for which the respondent may be partly responsible until 31 May 1999 when defences were delivered.  On the same day the respondent’s solicitors requested particulars of the statements of claim and on 8 September 1999 partial particulars were delivered.  In May 2000 lists of documents were exchanged.  On 14 June 2000 the appellants’ solicitors inspected the respondent’s disclosed documents, and on 13 July 2000 the respondent’s solicitors inspected the appellants’ documents.  The respondent made its applications in early October 2002.

[12]  In Moynihan J’s reasons there was first reference to the steps taken by the appellants in pursuing their claims.  His Honour noted that the actions were not begun until a day before the expiration of the relevant limitation period, and that the issues raised on the pleadings were described – not without some justification, as his Honour said – as being difficult to comprehend.  His Honour then referred to the provision of particulars and disclosure, noting that the respondent’s position was that disclosure had been completed ‘some years ago’ – a reference no doubt to the provision of lists of documents and inspection of documents in 2000, as I have related.  His Honour then referred to unsuccessful efforts the appellants’ solicitors had made in August 2000 to recover the books and records of a company the affairs of which his Honour said were at the heart of the actions. That was a reference to Bo’s Plant Hire Pty Ltd, one of the companies in Bo’s Group.  His Honour noted that the events in issue had occurred a long time before, so that it would not be possible to identify what opportunities had been lost by the respondent to identify and call evidence.  There was evidence, his Honour said, that some potential witnesses had no relevant recollections, or that, for example, memories of the quality of equipment seized and sold were clouded because of the effluxion of time.  His Honour considered, he said, that there was nothing before him to indicate that the appellants had any comprehension of the need to proceed with expedition and his Honour said that the probability was that notices of intention to proceed would be required.  The appellants’ explanation for their delays was inadequate, his Honour found.

[13]  Moynihan J summarized his conclusions as follows:


By way of summary, when one bears in mind the relevant considerations this is the 14th October 2002;  the events to which the actions refer took place the best part of 10 years ago.  The actions were not instituted until one day before the expiration of the limitations period, the statements of claim were not delivered until approaching two years later and then only after an application had been brought to strike out for want of prosecution.


By the effluxion of years the plaintiffs appear to have lost the opportunity of giving complete discovery.  The defendant’s position that it had satisfied its obligations as to discovery ought to have been apparent to the plaintiffs for some time now.  No steps were taken to have recourse to the coercive powers of the Court to deal with that.


There is reason to conclude that some, at least of the witnesses evidence or their ability to give evidence will be diminished by the effluxion of time.  There is the risk that the opportunity to identify and utilise evidence has been lost.  It is extremely difficult to make any judgment as to the prospects of the plaintiffs’ success on the material now available.  The plaintiffs’ explanation for the delay is, as I have said, unsatisfactory.


I therefore in each case dismiss the actions for want of prosecution.

[14]  I am not persuaded that his Honour’s discretion miscarried.  His decision was based on the appellants’ inordinate delay, without any satisfactory explanation, in the prosecution of the actions.  There was a delay of five years and eight months between the letters of March 1991 and the institution of proceedings.  Then followed another year before service of the respondent, and another nine months before delivery of statements of claim.  Particulars of the statements of claim took over three months to formulate and even then were not complete.  After the inspection of documents was completed in July 2000 little further happened until the applications before his Honour were made.  That history of inaction, particularly when one bears in mind the inaction following the fate of the earlier applications to dismiss the actions for want of prosecution, provides a sure foundation for a conclusion that the actions would be unlikely to continue at a faster rate if not brought to an end at the stage they had reached in October 2002. 

[15]  The evidence before his Honour showed that while some relevant documents have survived since these long-ago events others have not, for example the file of Peter J. Strophair & Associates Pty Ltd and that of Mr Knight.  As importantly, people who might have been able to give evidence on behalf of the respondent either cannot be found, or, if they have been found, cannot remember relevant matters in sufficient detail to be able to give cogent evidence.  The issues inherent in the appellants’ claims require the examination of a large number of matters of detail, memories of which have now been lost.  The predicament for the respondent created by the appellants’ delay in instituting the proceedings was bad enough at the time when the appellants were ordered to deliver their statements of claim, but the delays since – for which the appellants are chiefly responsible – have aggravated that predicament.

[16]  On behalf of the appellants it was argued that the respondent’s inaction was the cause of any loss of evidence.  That argument cannot withstand scrutiny in my view.  There has been some delay that may be attributed to the respondent, in particular in delivering its defences – although as his Honour observed, the complexity of the issues may justify the delay.  That delay is, however, insignificant compared with the appellant’s delays, and in particular, the delay of six years and eight months between the letters of March 1991 and service of the respondent.  It would be reasonable for a recipient of such letters in those circumstances to conclude that any claims had been abandoned.  Furthermore, it should be borne in mind that the time that elapsed from the letters of March 1991 to notice to the respondent of the formulation of the appellants’ cases in their statements of claim was seven years and five months. 

[17]  Another submission made on behalf of the appellants that, with respect, I think lacks merit was that the learned judge erred in failing to take into account available evidence.  In the first place, there is no reason to conclude that his Honour overlooked the available evidence, but secondly, the focus of applications of the kind before his Honour must inevitably be upon that which has been lost.  In this case, the loss of the files of the auctioneers and valuers and the receiver is of great importance, as may be seen from the affidavit of Mr Stewart Edmiston, former employee of Peter J. Strophair & Associates Pty Ltd, filed on 4 October 2002 and that of Mr Knight filed on the same day. 

[18]  Submissions were made to us as to when the last steps had been taken in the actions before 14 October 2002.  On behalf of the appellants 3 May 2001, when the respondent produced documents mentioned in its lists of documents, was contended for, whereas May 2000, when lists of documents were served, was put forward on behalf of the respondent.  There is nothing to be gained by pursuing that debate further since even on the view more favourable to the appellants there was a delay of seventeen months.

[19]  It is possible that his Honour inadvertently exaggerated the relevance of the books and records of Bo’s Plant Hire Pty Ltd when he said that its affairs were at the heart of the actions.  It was submitted – perhaps correctly, although the absence of the documents make a determination of the matter difficult – that those documents were not relevant to the action by Bo’s Demolitions Pty Limited. That possible error and the proposed amendments to Mr James’s statement of claim do not alter my conclusion as to the correct outcome of these appeals, which should be dismissed with costs.              


Editorial Notes

  • Published Case Name:

    James & Anor v Commonwealth Bank of Australia; Bo's Demolitions Pty Ltd v Commonwealth Bank of Australia

  • Shortened Case Name:

    James v Commonwealth Bank of Australia

  • MNC:

    [2003] QCA 304

  • Court:


  • Judge(s):

    de Jersey CJ, Williams JA, Helman J

  • Date:

    25 Jul 2003

Litigation History

No Litigation History

Appeal Status

No Status