Tyler v Custom Credit Corp Ltd
[2000] QCA 178
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- Unreported Judgment
- Appeal Determined (QCA)
- Tyler v Custom Credit Corp Ltd[2000] QCA 178
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Tyler v Custom Credit Corp Ltd[2000] QCA 178
Tyler v Custom Credit Corp Ltd[2000] QCA 178
SUPREME COURT OF QUEENSLAND
CITATION: | Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178 |
PARTIES: | DOUGLAS KEITH TYLER (respondent) v CUSTOM CREDIT CORPORATION LIMITED (appellant) BREENS (a firm) (first third party) GADENS RIDGEWAY (a firm) (second third party) |
FILE NO/S: | Appeal No 9466 of 1999 SC No 4944 of 1986 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane |
DELIVERED ON: | 19 May 2000 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 24 March 2000 |
JUDGES: | McMurdo P, McPherson JA, Atkinson J Joint reasons for judgment of McMurdo P and McPherson JA; separate reasons of Atkinson J, concurring as to the order made. |
ORDER: | Appeal dismissed with costs. |
CATCHWORDS: | PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – PRINCIPLES APPLICABLE – RELEVANT CONSIDERATIONS Uniform Civil Procedure Rules 1999, r 389 Birkett v James [1978] AC 297, considered Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells, Vic SC (Appeal Div), No 4901 of 1989, 9 September 1994, considered and distinguished Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered Cooper v Hopgood & Ganim [1999] 2 QdR 113, applied Dempsey v Dorber [1990] 1 QdR 418, considered Hoy v Honan CA No 4058 of 1996, 19 August 1997, considered Jeogla v ANZ Bank [1999] NSWSC 563, considered Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992, considered Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) NSW 405, considered |
COUNSEL: | G A Thompson SC for the appellant R G Bain QC for the respondent |
SOLICITORS: | Mallesons Stephen Jaques for the appellant Crouch & Lyndon Solicitors for the respondent Allen Allen & Helmsley for the first and second third parties |
- McMURDO P AND McPHERSON JA: We agree with the reasons of Atkinson J, which we have had the advantage of reading. The appeal should be dismissed with costs.
- ATKINSON J: 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.[1] These include:
- how long ago the events alleged in the statement of claim occurred[2] and what delay there was before the litigation was commenced;
- 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;
- how far the litigation has progressed;[9]
- 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.[10] 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;[12] and
- whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.[13]
- 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[14] 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.[15]
- Unnecessary delay in proceedings has a tendency to bring the legal system into disrepute and to decrease the chance of there being a fair and just result. The futility and self-perpetuating nature of some litigation was viciously satirised by Charles Dickens in Bleak House. In referring to a case (fortunately fictional)[16] in the Chancery Division of the Courts in London called Jarndyce v Jarndyce, Dickens wrote:[17]
“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.
Jarndyce and Jarndyce has passed into a joke.”
- When proceedings have been prosecuted by a plaintiff in a dilatory way, the Court may dismiss a proceeding for want of prosecution or impose a sanction as to costs.
- The onus is on the applicant for striking out the plaintiff’s action for want of prosecution to show that the matter should be struck out.[18] On an application for leave to proceed, the applicant for leave must “show that there is good reason for excepting the particular proceedings from the general prohibition” in a case in which three years have elapsed from the time when the last proceeding was taken.[19] The rationale of the rule requiring leave to proceed after a long delay is to prevent abuse of process.[20] The Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay.[21]
- This action arose out of a loan of $1.17 million made by the appellant to the respondent in May 1984 when the property was valued at $1.3 million. The loan was secured by, inter alia, a bill of mortgage over land near Roma comprising a rural property known as “Toarki” (“the land”) and a stock mortgage over cattle depastured on that property. The respondent defaulted on the loan in August 1985. In August 1984, the respondent had granted another stock mortgage in favour of Dalgety Farmers Ltd and Dalgety Rural Finance Ltd (“Dalgetys”).
- By Writ No 1617 of 1986 filed on 18 April 1986, the appellant sought recovery of possession of the land. Affidavits sworn in June 1986 by Ronald Brown, the branch manager of Primac Association Limited (“Primac”) in Roma, Ross Golledge, the appellant’s credit manager for New South Wales, William Walmsley, the State Property Manager for Primac, and Robert Desmarchelier, the appellant’s operations manager for Queensland in the property finance division, were filed in that action on behalf of the appellant. The respondent also filed an affidavit in the action. The appellant obtained a default judgment for possession of the property and on 20 May 1986 the appellant entered into possession of the land. At that time there were, according to the affidavit sworn by the respondent, 2,278 cattle depastured there comprising commercial cattle and some Hereford stud bulls having a total value of approximately $632,500.00. Primac then valued the cattle at $373,460.00. On 12 June 1986, Herron Todd prepared a valuation for the appellant, valuing the land at $840,000.00.
- On 26 June 1986, the judgment for possession was set aside. Mr Brown was appointed on the same date, however, as receiver to manage the property and to muster and sell the cattle.
- On 27 June 1986, the appellant’s solicitors wrote to the respondent’s solicitors advising that “the representations made by Custom Credit Corporation Limited through its employees and agents, deposed to in the affidavit of your client sworn 13 June 1986, are not conceded to be true”. This shows that from 13 June 1986, the appellant was on notice that the respondent was alleging that representations had been made to him by its servants or agents.
- By way of Originating Summons No 474 of 1986 filed on 8 July 1986, Dalgety Farmers Ltd and Dalgety Rural Finance Ltd applied under O64 r1BB of the Rules of the Supreme Court for the determination of a question of law arising under a Bill of Sale registered pursuant to The Bills of Sale and Other Instruments Act 1955. On 18 August 1986, McPherson J held in Ex parte Dalgety Farmers Ltd[22] that the stock mortgage granted in favour of the appellant was insufficiently particularised to be valid against third parties although it was likely to be valid in equity inter partes.
- Approximately half the herd of 2,278 cattle had been sold by the appellant between June and August 1986 because the property, which was in the grip of a drought, was heavily overstocked. The remaining cattle were sold with the property at auction on 15 October 1986. The total price obtained for the land, improvements and the cattle was $1,020,000.00.
- On 14 October 1986, by Writ No 4291 of 1986, the respondent sought a declaration that the appellant was not entitled to sell the land and an injunction to restrain the auction sale. That injunction was refused. In that action, affidavits sworn by Mr Walmsley and the respondent on 14 October 1986, were filed. Mr Walmsley’s affidavit set out a very detailed response to the complaints made by the respondent in his letter of 13 October 1986. No further action was taken on that writ.
- On 15 October 1986 the respondent’s solicitors wrote to the appellant putting it on notice that if market value was not reached at the auction any deficiency in value would be the result of inaccurate advertising and therefore the respondent would hold the appellant liable in damages. The respondent repeated his assertion that the sale of the cattle was also wrongful. Two days before the auction the respondent’s then solicitors, Drake Walker and Leahy, wrote to the appellant setting out in detail what they claimed were a number of deficiencies in the appellant’s advertisement for the auction and including a claim that almost all the cattle were Devoncourt line bred.
- On 4 November 1986, the respondent wrote to the appellant advising that in his opinion the appellant had failed in its duty in exercising its power of sale under the mortgage of the land to take reasonable care to ensure that the property was sold at the market value and that the appellant was responsible for the loss suffered and referring to the defects in the advertising and the stock mortgage.
- On 28 November 1986 the respondent commenced the present action by writ of summons. His solicitors were then Drake Walker and Leahy. In the statement of claim delivered on 27 February 1987, the plaintiff claimed damages for conversion of the cattle or in the alternative that the cattle were sold at under value. The claim for conversion was said to be for $231,348.15 being the difference between the sale price obtained for the cattle by the respondent and the market value of the cattle in fact. On 9 April 1987 the appellant delivered a defence and counterclaim for moneys owing under the bill of sale/stock mortgage and/or loan agreement and both parties served notice requiring discovery on each other. The appellant’s solicitors were then Breens.
- Then on 12 June 1987 the respondent delivered an amended statement of claim asserting that Brown, an employee of Primac, made an oral representation or an oral agreement to the effect that the appellant would not sell or attempt to sell any cattle on the property if the respondent gave up possession, and giving extensive particulars of the value of the cattle sold. The appellant filed an affidavit of documents in the same month.
- The file shows that the respondent was granted legal aid on 6 May 1988. On 14 June 1988, the plaintiff served on the appellant a notice of assistance under the Legal Aid Act. This suggests that he was impecunious at that time. On 8 November 1988 the respondent filed a notice of intention to proceed and then on 6 December 1988 filed an affidavit of documents. On 24 January 1989 the appellant delivered an amended defence and counter claim, denying the new allegations. Inspection of documents followed during the first half of 1989.
- On 28 May 1990 the respondent filed a second notice of intention to proceed and on 29 November 1990 delivered a reply and answer to the amended defence and counter claim. On 29 November 1990, the respondent’s then solicitors wrote to the appellant’s then solicitors requesting particulars of the cattle sold with the property, details of the apportionment made by the appellant in the sale price of the land, chattels and cattle at “Toarki”. They repeated this request by letter on 16 January, 15 April, 6 December 1991 and 19 February 1992 and by telephone on 30 April, 17 June, 18 June, 19 November, 3 December 1991, 14 January, 23 January, 7 February and 10 February 1992. On 15 July 1991, the appellant’s solicitors wrote to the respondent’s solicitors saying that Mr Masters of their office would attend to the particulars on his return from annual leave on 22 July 1991. A notice to produce the Form F was served by the respondent on 14 February 1992. The Form F was then produced.
- On 6 January 1992, the respondent served a notice requiring further and better particulars which were provided by the appellant on 14 and 21 February 1992. It was not until 21 February 1992 that the appellant’s solicitors provided a copy of the Form VG1, Notification of Change of Ownership, which indicated the apportionment of the sale price on which an apportionment of $640,000.00 was made in respect of the land and improvements. The appellant’s solicitors also provided some particulars of the cattle sold with the property.
- On 14 October 1992, without filing a notice of intention to proceed, the respondent delivered a second amended statement of claim. This statement of claim alleged for the first time in the pleading that the appellant sold Toarki at an undervalue and in breach of its obligations under s 85 of the Property Law Act 1974 causing a loss of $480,000 to the respondent. This claim was made only a few days before expiry of the relevant period of limitation. In spite of the appellant’s writing to the respondent telling him he needed the leave of the court to amend his statement of claim, the respondent did nothing more to pursue his action.
- On 1 February 1994, the appellant was placed in voluntary liquidation. On 9 December 1994, the appellant applied to dismiss the respondent’s action for want of prosecution. On 13 January 1995, Fryberg J dismissed the application but gave directions for further steps to be taken in the action. The respondent was given leave to amend his statement of claim in accordance with the second amended statement of claim. Consequential directions were given including orders for the appellant to deliver an amended defence and counter claim within 14 days after delivery of the amended statement of claim, and for the respondent to deliver an amended reply and answer within seven days of the delivery of the amended defence and counter claim, and for both parties to give further discovery, if any, within 28 days of the delivery of his reply and answer and inspection within a further seven days.
- On 16 January 1995, the respondent delivered a third amended statement of claim which was in slightly different terms from the statement of claim he had been given leave to deliver. It merely renumbered the paragraphs of the statement of claim in a more logical way and corrected arithmetical errors. He also appointed Ebsworth & Ebsworth as his solicitors. The appellant delivered a second amended defence and counterclaim on 6 March 1995. Gadens Ridgeway were then acting for the appellant. The appellant now sought in its counter claim:
- a Declaration that on the proper construction of the Bill of Sale and Stock Mortgage dated 19 May 1984, the appellant was entitled to sell the livestock referred to in paragraph 11 of the amended statement of claim;
- in the alternative, an order that the Bill of Sale and Stock Mortgage dated 19 May 1984 be rectified so as to embody the agreement made between the respondent and the appellant or their true intentions at the time.
As presently pleaded, the counterclaim would still continue in this case even if the plaintiff’s claim were to be struck out which would mean that the issues raised about the bill of sale and stock mortgage would have to be litigated in any event.
- On 4 April 1995, the respondent delivered an amended reply and answer. On 7 April 1995, the respondent filed a supplementary affidavit of documents. In breach of the order made by Fryberg J, no further discovery was given by the respondent within 28 days after the delivery of the reply and answer. On 5 September 1995, Mallesons Stephen Jacques advised the respondent that they had been appointed to act for the appellant and requested further and better particulars. On 4 December 1995, the respondent delivered further and better particulars of the third amended statement of claim.
- On 1 February 1996, the appellant made an application for further and better particulars of paragraph 15 of the third amended statement of claim or, alternatively, that the respondent deliver a fourth amended statement of claim; that the respondent produce for inspection certain documents discovered by him; and that he file and serve a supplementary affidavit of documents.
- On 12 February 1996, Williams J ordered by consent that the respondent:
- file and serve a supplementary affidavit of documents by 21 February 1996;
- give further and better particulars of the third amended statement of claim by 19 February 1996; and
- produce certain documents for inspection or file and serve a further affidavit of documents with regard to those documents showing that they were no longer in his power or possession.
His Honour also ordered that the respondent pay the appellant’s costs of the application.
- The documents of which the plaintiff was ordered to give inspection included those relevant to:
- the market prices of cattle in northern New South Wales and Roma and the transport costs for cattle referred to in paragraphs 17(a)(i) and 17(b)(ix)(A) and (B) of the third amended statement of claim – this would include any valuers’ reports or any records (public or private) of sales;
- generally any documents relating to the value of the cattle;
- any documents (including valuation reports) relating to the market value of the property referred to in paragraph 23 of the third amended statement of claim; and
- any other records or documents relating to the damages alleged by the respondent.
The appellant had requested certain other significant documents by letter, being full breeding and other records of the cattle on the property, relevant to the allegation in paragraph 17(b)(iii)(D) that many of the cattle on the property were of Devoncourt breeding, and any documents relating to the value of such cattle. However these were not sought in the summons and were therefore not subject to the consent order.
- The respondent filed a supplementary affidavit of documents on 14 February 1996. On 20 February 1996, rather than give further and better particulars, the respondent withdrew part of his claim by delivering a fourth amended statement of claim. This was the order that had been sought in the alternative by the appellant. Subsequently, letters passed between the respondent’s then solicitors and the appellant’s solicitors in relation to the costs order made by Williams J. The appellant has not pleaded to the fourth amended statement of claim.
- On 4 April 1996, the appellant, after gaining leave from the court, delivered third party notices to Breens and Gadens Ridgeway which were supported by statements of claim on 15 April 1996 alleging breach of duty in preparation of the stock mortgage. The defendants to the third party notices entered appearances in April and May 1996. The appellant has done nothing further to progress those actions nor its counterclaim against the respondent.
- The respondent says that he was told by his then solicitor, Mr Chambers of the firm Murphy Schmidt, in March 1996 that the appellant was suing its former solicitors and that he must wait until the action between the appellant and its former solicitors settled prior to progressing further with his matter and that the respondent could expect a settlement similar to that obtained by the appellant against its former solicitors. The respondent says that he lives near Dorrigo in New South Wales and his only contact with Mr Chambers was by telephone, apart from personal visits to see him some time in December 1995 and November 1998 and in July 1999 when he decided to terminate his services as his solicitor.
- The respondent says that he was in frequent contact with Mr Chambers by telephone following the successful application by the appellant to join its solicitors to ascertain what was happening in the matter. He rang Mr Chambers initially once a week or fortnight, and subsequently about once a month. He became concerned that the matter did not appear to be progressing further and coming on for hearing. He says he recalls Mr Chambers saying to him on one such occasion that he was not to worry, the solicitors were running the show and they would ring him when they wanted him. The longest period over which he did not contact Mr Chambers was in early 1997 when the respondent contracted Q fever and was too sick to contact his solicitor for over three months. He contacted Mr Chambers enquiring about the progress of the action “at least half a dozen times” during 1998.
- In November 1998, the respondent engaged Daryl Johnston, an agribusiness consultant, to conduct a review of the evidence in support of his action to ensure that all witnesses were properly proofed and to consult with experts. Mr Chambers told Mr Johnston that there was not any problem that the respondent’s claim would be struck out for lack of action. Mr Johnston then reviewed the file in February 1999 and in May 1999 interviewed a number of witnesses and carried out inspections in the district where the property and cattle sales took place. On 24 May 1999, Mr Johnston told Mr Chambers that he had seen an affidavit and overheard conversation which suggested the appellant’s solicitors were preparing to attempt to strike out the respondent’s claim.
- On 25 May 1999 the respondent filed a notice of intention to proceed. Mr Chambers wrote to the respondent on 10 June 1999 advising him that it would be necessary to make an application to court for leave to proceed if he was “determined to proceed with [his] action, notwithstanding [the solicitor’s] advice on [his] prospects”. This might suggest that the respondent has poor prospects of success. The respondent’s counsel has however referred this Court to Jeogla v ANZ Bank[23] with regard to the duties of a mortgagee exercising the power of sale over real property and livestock to show that the respondent has reasonable prospects of success. The appellant had joined two third parties based on its analysis of the respondent’s prospects.
- On 12 August 1999, the respondent instructed Mr Scott of Crouch & Lyndon to take over the conduct of the action on his behalf. He says that he was concerned that the matter did not seem to be progressing towards a trial date. On 6 September 1999, the respondent filed an application seeking leave to proceed. On 22 September 1999, the appellant filed an application to dismiss the proceeding for want of prosecution and the costs of the appellant and the third parties of the application and the proceeding. Mr Scott deposes that all interlocutory steps have been completed and “with some fine tuning”, the matter is ready to proceed to trial.
- On 24 September 1999, the learned Chamber judge granted the plaintiff leave to proceed under r 389 of the UCPR which provides:
[r 389] Continuation of proceeding after delay
389(1)If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.
(2)If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
(3)For this rule, an application in which no order has been made is not taken to be a step.
(4)Until the end of 30 June 2000, subrule (2) applies as if the reference to 2 years were a reference to 3 years.
(5)Subrules (4) and (5) expire on 1 July 2000.
This was an exercise of discretion by the Chamber judge and it is therefore necessary for the appellant to show error in the exercise of the judge’s discretion.[24]
- The appellant submitted that the learned Chamber judge erred in the exercise of his discretion firstly because there was no basis on which he could have been satisfied that the plaintiff had provided a satisfactory explanation for the delay. In coming to the conclusion that he had, the appellant submitted that the learned Chamber judge appears to have focussed only on the period after 20 February 1996. Secondly, it was submitted that his Honour discounted the significant prejudice likely to be suffered by the appellant because of the inordinate delay in the prosecution of his action.
Delay
- In this case, the writ was issued shortly after the events in question but a new cause of action was added by a second amended statement of claim just days before the expiry of the relevant six year limitation period. Although this does not impose a special duty to proceed with expedition[25] as all cases must be prosecuted with expedition, it is a relevant factor[26] to be considered particularly if the progress of the litigation has been characterised by further delay.
- This litigation has been characterised by long periods of delay as has been set out. Not all of the delay, however, was caused by the respondent. The appellant took some 15 months between November 1990 and February 1992 to respond to a very simple request for particulars. The matter has been progressing, albeit very slowly, to trial and is now virtually ready for trial. Both parties have failed to comply with a number of court orders. The respondent failed to deliver a reply and answer and to make further discovery within the times specified by Fryberg J; but then the appellant also failed to deliver an amended defence and counterclaim within the time specified by Fryberg J. The respondent failed to comply with the orders made by Williams J with regard to further discovery. The learned Chamber judge took the delays into account in reaching his decision.
- The respondent appears to have endeavoured to push the action along but, like the plaintiff in Kieoskie v Workers Compensation Board of Queensland, he was apparently offered false assurances by his solicitors.
- As already noted, even if the respondent’s claim were struck out, on the present state of the pleadings, the appellant’s counter claim would continue. The trial of the issues raised by the counterclaim would inevitably traverse many of the facts in dispute in the claim. Striking out the respondent’s claim would not put an end to this litigation.
Prejudice
- The appellant has been in liquidation since 1 February 1994. The liquidator has a duty to gather in the defendant’s assets for distribution. This litigation is one of the matters delaying finalisation of liquidation. The events from which this action arises occurred in 1986 and as a consequence those persons who had an involvement in the matter at the time will have a considerably diminished recollection of the relevant events than would have been the case had the plaintiff expeditiously prosecuted his action.
- On the other hand the appellant has been able to identify the relevant witnesses and has affidavits from them.[27] Robert Brown, a registered valuer, was a branch manager with Primac in 1986, whose job was to muster and brand the cattle and to organise sales of cattle on the property. He cannot locate his diary which contained information about the cattle and the muster. He does not say when he lost it. He has no independent recollection of the material contained in it. He recalls having several conversations with the respondent about his property but says he does not recall ever telling the respondent that if he gave up possession of the property and the cattle that the cattle would not be sold.
- Roger Desmarchelier was operations manager for the appellant in Queensland. He recalls that his role was to arrange for the receiver to take possession of the property. Geoffrey Duggan was the regional manager for south-west Queensland for Primac. He took possession of the property. Ronald Jensen mustered and sold cattle on the property to Primac. William Walmsley was the manager, Rural Properties and Real Estate, for Primac, who advised the appellant on how the property should be marketed. His affidavit sworn 14 October 1986 gives detailed explanations of the advertising and marketing of the land, improvements and the cattle. Ross Golledge was the appellant’s state credit manager in New South Wales who went with Mr Desmarchelier and Mr Walmsley to inform the respondent that the appellant had appointed Primac to take possession of the property on its behalf.
- All attest to fading memories but none to no independent recollection at all of what occurred. Some refer to the keeping of diaries or note books which have been lost or destroyed but there is nothing to suggest the reason why those notebooks or diaries, which must have been in existence at the time of commencement of the action in 1986, were not retained. Those that were in the possession, power or control of the appellant are clearly discoverable. A party cannot easily say he is prejudiced by his disposal of discoverable documents after commencement of the litigation. It would not have been difficult, as the Chamber judge observed, for the defendant to have taken steps to secure these documents.
- A number of the relevant witnesses swore affidavits about some of the matters in issue not long after the events in question in earlier litigation between the parties. The litigation, which was commenced in 1986, should have meant that the appellant both retained and prepared its evidence. In addition, the appellant has no doubt retained its file about the sale of the property and the cattle.
- The prejudice caused by the passing of time may be as insidious as it is subtle in that the parties cannot demonstrate what it is that they have forgotten.[28] It is necessary to remember however that the inevitable disadvantage to all parties of delay does not necessarily mean that the relevant issues cannot be fairly tried[29] particularly where, as here, the case will for the most part be determined by contemporaneous documents. For some parts of the claim there is no documentary proof but these parts of the claim have been fully particularised in the statement of claim since June 1987.
- The learned Chamber judge applied the correct test to the question of prejudice, namely whether the plaintiff has satisfied the onus of showing that any prejudice the defendant may suffer is not such as to cause injustice to the defendant should the action be permitted to continue.
- In all circumstances, there is in my view insufficient reason to interfere with the exercise of the Chamber judge’s discretion and the appeal should be dismissed with costs.
Footnotes
[1]Cooper v Hopgood & Ganim [1999] 2 QdR 113 at 119.
[2]Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1207-1208 per Lord Griffiths; Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells, Supreme Court of Victoria, Appeal Div, No 4901 of 1989, 9 September 1994 at 22, 23; Hoy v Honan CA No 4058 of 1996, 19 August 1997 at 4; Cooper v Hopgood & Ganim (supra) at 120, 121.
[3]Cooper v Hopgood & Ganim (supra) at 120 per Pincus JA.
[4]Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992 at 2-3 per McPherson J; Cooper v Hopgood & Ganim (supra) at 124.
[5]Cooper v Hopgood & Ganim (supra) at 121;
[6]Birkett v James [1978] AC 297 at 322-323; Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells (supra) at 27; Cooper v Hopgood & Ganim (supra) at 119, 120, 124.
[7]Holmes v Civil & Civic Pty Ltd CA No 15 of 1992, 14 September 1992; Lewandowski v Lovell (1994) 11 WAR 124; Hoy v Honan (supra) at 5.
[8]Hoy v Honan (supra) at 3 per Derrington J; at 7 per Fitzgerald P.
[9]Keioskie v Workers’ Compensation Board of Queensland (supra) at 10 per Thomas J.
[10]Campbell v United Pacific Transport Pty Ltd [1966] QdR 465 at 473, 475; Kaats v Caelers [1966] QdR 482 at 497; Tate v McLeod [1969] QdR 217 at 224-225; Collingwood v Calvert CA No 3028 of 1996, 6 December 1996 at 5, 7, per Fitzgerald P; Cooper v Hopgood & Ganim (supra) at 124.
[11]Gleeson v Brick [1969] QdR 361 at 369; Keioskie v Workers’ Compensation Board of Queensland (supra) per Thomas J at 7.
[12]Campbell v United Pacific Transport Pty Ltd (supra) at 473-474; Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) NSW 405 at 412; Dempsey v Dorber [1990] 1 QdR 418 at 420; Keioskie v Workers’ Compensation Board of Queensland (supra) per Thomas J at 4; Cooper v Hopgood & Ganim (supra) at 124.
[13]Witten v Lombard Australia Ltd (supra) at 412; Dempsey v Dorber (supra) at 420; Keioskie v Workers’ Compensation Board of Queensland (supra); Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells (supra) at 24-25; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554-555 per McHugh J; Cooper v Hopgood & Ganim (supra) at 118, 124.
[14]Witten v Lombard Australia Ltd (supra) at 412; Stollznow v Calvert [1980] 2 NSWLR 749; Norbis v Norbis (1986) 161 CLR 513 at 538; Cooper v Hopgood & Ganim (supra) at 118-119, 124.
[15]Cooper v Hopgood & Ganim (supra) at 124 per McPherson JA.
[16]The fictional case is reputed to be loosely based on Re Jennens, Willis v Earl of Howe (1880) 50 LJ Ch 4: see Hurst, G. (1949) Lincoln’s Inn Essays, Constable & Co Ltd at p 116-118.
[17]at p20.
[18]Cooper v Hopgood & Ganim (supra) at 121.
[19]William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496; Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536; Dempsey v Dorber (supra) at 420; Keioskie v Workers’ Compensation Board of Queensland (supra) per Thomas J at 4.
[20]Hoy v Honan (supra) at 5.
[21]Walton v Gardiner (1993) 177 CLR 378; Brisbane South Regional Health Authority v Taylor (supra).
[22][1987] 2 QdR 481.
[23][1999] NSWSC 563.
[24]House v The King (1936) 55 CLR 499 at 504-505; Gronow v Gronow (1979) 144 CLR 513; Cooper v Hopgood & Ganim (supra) at 117.
[25]cf Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells (supra).
[26]Cooper v Hopgood & Ganim (supra) at 120 per Pincus JA.
[27]Cf Collingwood v Calvert (supra) at 7.
[28]Brisbane South Regional Health Authority v Taylor (supra) at 551 per McHugh J.
[29]Smith v Harvey-Sutton CA No 6188 of 1997, 21 August 1998 at 16.