Renton v Bressington[2000] QCA 225

COURT OF APPEAL

de Jersey CJ

McMURDO P

DUTNEY J

Appeal No 10122 of 1999

ALLAN RENTON and

BEVERLEY LOW Appellants (Plaintiffs)

and

KENNETH PATRICK BRESSIGNTON

(BRESSINGTON & PARTNERS) First Respondent

 (First Defendant)

and

COUNCIL OF THE CITY OF ROCKHAMPTON Second Respondent

 (Second Defendant)

BRISBANE

DATE 17/05/2000

JUDGMENT

THE CHIEF JUSTICE:  When the matter first came before the learned Central Judge on 26 July last year, the male appellant appeared without legal representation.  The Judge adjourned the matter then.  When it next came on on 6 September last year the appellants were represented by a solicitor, appearing albeit it on an honorary basis.  Substantial material was then put before the Judge.

Now on appeal the appellants seek to rely in addition on a mass of other documentation collected together in a volume provided to us entitled, “Record of Proceedings – Disputed Documents”.  The appellants must seek the leave of the Court before they may now rely on such additional material.

It is accepted that leave should ordinarily not be granted in such circumstances unless the appellants could not, with reasonable diligence, have presented the material at the primary hearing and unless, if then presented, it would likely have, in this case, led to the dismissal of the application for dismissal for want of prosecution.

This material was available at the time of the first hearing. It may not have been in the physical possession of the appellants but there were steps which could have been taken by the appellants to place it before the learned Judge.  As to the second matter, as Mr Forde conceded, most of the material covers, if in greater detail, matters already covered by material before the learned Judge.  It seems that it would be difficult, therefore, to conclude that this additional material, even if admitted, would likely have produced a different result.

Neither prerequisite for the granting of leave is therefore satisfied and I have the authority of the other Judges constituting this Bench to announce therefore that leave is not granted.

. . .

THE CHIEF JUSTICE:  The appellants appeal against the learned Judge’s order that the action, in which the appellants are the plaintiffs, be dismissed for want of prosecution.  The respondents are respectively the appellants’ former solicitors and the Rockhampton City Council.

The first respondent solicitors acted for the appellants in their purchase of a block of flats.  The appellants entered into the contract on 13 September 1990 and completed it on 26 October 1990.  Claims in negligence against the respondents revolve about alleged deficiencies in the property affecting its registrability as flats.

In broad terms, the appellants contend that the first respondent solicitors, made aware by the relevant council inspector of subsidence especially, failed prior to settlement to alert the appellants to that circumstance and of an arguable right to terminate the contract because a Certificate of Registration has not been furnished; and the council, aware months before settlement of deficiencies in the property, failed to advise the appellants accordingly in response to their inquiry.

The matters of complaint are broader than that may suggest but for the purpose of determining this appeal, I need not now go into more detail.  The appellants issued the writ on 13 October 1993.

In dismissing the action on 14 October 1999 the learned Judge was influenced by a collection of circumstances, including these:  that the claim concerned events which by then were about nine years old;  that the appellants’ prosecution of their claim had been dilatory with no adequate explanation for the delay; that the prospect of securing a fair trial had been reduced because memories had faded and potential reference material had been lost;  that the prospects of success were not substantial anyway, and that there was no indication that the appellants were even then in a position to prosecute the action expeditiously.  The Judge mentioned other factors but those I have listed were apparently the more significant. 

The first ground of appeal is that there was no application for dismissal of the claim as against the first respondent and that the Judge therefore erred in dismissing the entire claim, that is as against both respondents.  The summons filed by the second respondent in terms sought dismissal of the whole action, not just that part of the action involving the appellants’ claim against the second respondent.

The second respondent was entitled to seek that relief.  It had a real interest in the dismissal of the whole action because of contribution claims between the respondents.  On 26 July the learned Judge made it clear to the appellants, through the male appellant, that both respondents sought dismissal of the action.  That followed confirmation from the first respondent’s solicitor that the first respondent supported the second respondent’s application.

The appellants apparently proceeded thereafter on the basis that the entire claim was in jeopardy.  They relied on an affidavit by the male appellant which addressed the issue of the strength of the case against the first respondent, a matter of principal relevance only to the claim against the first respondent.  In all of these circumstances this ground of appeal is seen to be without substance.

Another ground of appeal is that the learned Judge should have disqualified himself because of a perception of bias.  At the hearing on 26 July the male appellant asked the judge to consider disqualifying himself because of what the male appellant had been told was the Judge’s close association with the first respondent.  The judge did not rule expressly on this and it would have been better had he done so.

Following the adjournment of the hearing, the appellants did not, through their legal representatives, raise the issue again on 6 September.  The answer made to the prima facie significance of that by Mr Forde, who appeared for the appellants, is that the objection had already been determined against the appellants.  It is not entirely clear to me that it was addressed.

A current difficulty is that the point, frankly, was not sufficiently raised and pursued.  The end point, I believe, is this:  the Judge knew that the first respondent was Kenneth Patrick Bressington;  the Judge was aware of the extent of any relationship he had had over the years with Mr Bressignton as a Rockhampton legal practitioner.

It must be taken that the Judge considered that there was no ground for disqualifying himself.  That, I believe, is a sufficient answer at this stage to this particular point now taken.  That leaves the challenge to his Honour’s exercise of discretion which falls to be assessed by reference to the approach discussed in House v The King (1936) 55 Commonwealth Law Reports 499 at 504-4.

It is convenient to mention at once two suggested factual errors made by his Honour.  These were raised in the appellants’ written material.  It is said first, that the Judge incorrectly held that the property was registered as at 15 October 1990.  The appellants rely for that on his Honour’s reference to answers to requisitions on title. 

The Judge was not,however, in his judgment vouching for the accuracy of the answer and the point taken involves a misconception of what he held in his reasons for judgment.  Second, there is complaint about his Honour’s reference in assessing the strength of the claim to a diary note of the first respondent dated 25 October, which was the day before the completion of the contract, in which, having referred to communicating problems about the property to the male appellant, the first respondent records the appellant’s observation that he, the appellant, did not see that there was a problem and that he was happy he had got a good deal.

The appellants contend that this note, which is at page 231 of the record, relates to a conversation between the respondents and not, as the Judge considered, between the first respondent and the male appellant.  That is plainly wrong.  The note records, for example, as the other party to the communication the male appellant’s  Christian name, which is different from that of the relevant council officers, and otherwise the document compellingly reads as referring to a conversation between the male appellant and the first respondent.

The rest of the challenge concerns the way the learned Judge balanced competing considerations.  It was submitted, for example, that the Judge placed too much emphasis on the delay and the explanation for delay;  too much emphasis on lost potential reference material or evidence and the impact of fading recollections;  and that he wrongly assessed the prospects of success of the claims as not being great.

The essential challenge was as to the weight placed on various factors.  That was, of course, largely for the Judge.  He is not shown to have erred in principle.  It could not, for example, be said that he apparently let any particular circumstance overwhelm his judgment to the exclusion of other relevant considerations.  He has approached the assessment in an orthodox way consistent with, for example, Cooper v Hopgood & Ganim (1999) 2 Queensland Law Reports 113.

Our task on this appeal is not to re-hear the matter and substitute our own order, if different.  This Court’s approach to an appeal against the exercise of a discretion is necessarily much more constrained, as the authorities clearly confirm.

Mr Forde particularly submitted that the learned Judge ignored the extent to which the claim against the first respondent had been admitted;  for example, the solicitors failure to advert to the absence of a Certificate of Registration in advices to the appellants. The learned Judge has not referred to that, presumably because he has focused on the application primarily brought by the second respondent,  but even with respect to aspects as prima facie cut and dried as that, issues arise the resolution of which may well depend on memories.  For example, if informed of that deficiency, would the appellants still have gone ahead with the transaction?

On one reading, the memorandum of 25 October may suggest that they would have.  Whether that would be a correct reading may, however, depend on oral evidence of the witness’ recollections.  The learned Judge did expressly refer to that memorandum.  Mr Forde also sought to identify aspects of the claim which would not potentially be affected by current dimmed memories and submitted that the claim should have been struck out, if at all, in part only.  It suffices to say that such a submission was not made before the primary Judge and it is difficult to see how it could therefore be ventilated now.

There was, in my view, inordinate delay in the appellants’ prosecution of their claim.  The last effective step was the filing of the appellants’ affidavit of documents on 4 July 1995.  An application to dismiss for want of prosecution had been threatened from as early as 13 April 1995.

The appellants sought to blame their solicitors for the delay but without giving any compelling particulars of the solicitors’ suggested fault.  Significantly, as the Judge pointed out, on 14 August 1998 the male appellant instructed the appellants’ solicitors to put the action on hold.  On no view therefore could the subsequent substantial delay be blamed on the solicitors.

For reasons explained by the learned judge, fading memories of events, by then nine years old, could be expected to prejudice the prospect of a fair trial at that stage.  The first respondent’s diary note of 25 October would now, for example, carry great potential significance but who could at this stage independently recall reliably the detail of the conversations to which it refers?

Importantly also, the Judge was left without real assurance that were the action kept alive the appellants would not proceed expeditiously.  Their past approach to the case left open the issue whether they would have had the resources and initiative to do so.  As the Judge pointed out, the appellants said before him that they were without financial resources.

Other matters of detail were raised in the written material. It is not necessary to go into them here.  They could not be considered as of such significance as to imperil the exercise of the Judge’s discretion.  The right to litigate is in this modern era increasingly acknowledged as carrying corresponding obligations.  Launching a claim in the Court against someone else exposes that person or entity to stress and potential liability including as to costs.

Ordinary concepts of responsibility mean that claims, if launched, should be dealt with expeditiously.   Where a claimant fails in that respect, a properly managerial Court should ask why the claim should be allowed to subsist, and so Courts in these situations traditionally address the issues of delay as such, explanations for it and consequent possible prejudice to the fair trial of claims.

Where limitation periods have expired especially, the discretion is broad and unfettered and its exercise robustly should, particularly in the current managerial climate, act as an incentive to litigants to proceed expeditiously and not oppressively to respondents.  The Court should not, in short, proceed on the basis that a claimant has some virtually inviolable right to proceed at its or his or her own pace, lest some worthwhile claim otherwise be lost.  There is in the end a balance to be struck in all of this.

I would dismiss the appeal with costs, including reserved costs to be assessed.

THE PRESIDENT: I agree.

DUTNEY J: I agree.

THE CHIEF JUSTICE:   Those are the orders made.

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