SUPREME COURT OF QUEENSLAND
PARTIES: | THE I.M.B. GROUP PTY LTD (IN LIQUIDATION) ACN 050 411 946 (first plaintiff/first appellant) LOGAN LIONS LIMITED (IN LIQUIDATION) ACN 060 338 758 (second plaintiff/second appellant) DAVID JOHN IVERS (third plaintiff/third appellant) GLENN JAMES IVERS (fourth plaintiff/fourth appellant) JOHN LINDSAY IVERS (fifth plaintiff/fifth appellant) LUKE VINCENT IVERS (sixth plaintiff/sixth appellant) MICHAEL JOHN McLEAN (seventh plaintiff/seventh appellant) LANCE THOMAS STONE (eighth plaintiff/eight appellant) SAMSON NEALE BACKO (ninth plaintiff/ninth appellant) WILLIAM ANTHONY MUSGRAVE (tenth plaintiff/tenth appellant) v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION (FORMERLY CALLED THE TRADE PRACTICES COMMISSION) (defendant/respondent) |
FILE NO/S: | |
Court of Appeal | |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 20 October 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 September 2006 |
JUDGES: | McMurdo P, Keane JA and Cullinane J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDER: | 1. Appeal dismissed 2. No order for costs in favour of the Australian Competition and Consumer Commission |
CATCHWORDS: | PROCEDURE - SUPREME COURT PROCEDURE - QUEENSLAND - CLAIM - Rule 24(2) of Uniform Civil Procedure Rules 1999 (Qld) - appellants filed claim and statement of claim against respondents in Supreme Court of Queensland in September 1999 - claim renewed by Registrar at roughly six monthly intervals from September 2000 - claim not served until September 2004 - respondent applied to Supreme Court to set aside Registrar's final renewal of the claim - learned primary judge granted respondent's application - whether appellants had shown that there was good reason to renew the claim Uniform Civil Procedure Rules 1999 (Qld), r 5, r 24 Australian Broadcasting Commission v Industrial Court (SA) (1985) 159 CLR 536, cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited Collins v Cootes [2000] QSC 332; SC No 4897 of 1996, 29 September 2000, cited Fink v Fink (1946) 74 CLR 127, cited Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers & Ors [2006] QCA 335; Appeal No 5994 of 2005, 5 September 2006, cited MacDonnell v Rolley & Ors [2000] QSC 058; SC No 9901 of 1996, 21 March 2000, cited Main v Main (1949) 78 CLR 636, cited Major v Australian Sports Commission [2001] QSC 320; SC No 3667 of 1999, 4 September 2001, cited Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513; Appeal No 8805 of 1999, 10 December 1999, considered Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, cited Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337, considered William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490, cited |
COUNSEL: | J L Saunders (sol) for the first, second, third, fifth, sixth, seventh, eighth, ninth and tenth appellants The fourth appellant appeared on his own behalf K D Dorney QC for the respondent |
SOLICITORS: | Shand Taylor Lawyers for the first, second, third, fifth, sixth, seventh, eighth, ninth and tenth appellants The fourth appellant appeared on his own behalf Australian Government Solicitor for the respondent |
[1] McMURDO P: I agree with Keane JA.
[2] KEANE JA: The appellants are the plaintiffs in an action against the Australian Competition and Consumer Commission ("the ACCC") in which it is alleged that the Trade Practices Commission ("the TPC") engaged in various forms of misconduct in the exercise of its functions under the Trade Practices Act 1974 (Cth) ("the TPA"). The TPC was the statutory predecessor of the ACCC.
[3] The plaintiffs' claim and statement of claim were filed in the registry of the Supreme Court of Queensland on 16 September 1999. The plaintiffs sought declarations that the TPC had contravened s 52 of the TPA, breached a duty to take reasonable care in the exercise of statutory power, and breached a duty to observe the rules of natural justice. At the hearing of the appeal, the Court was informed that these declarations are no longer sought. Originally, the plaintiffs also claimed damages for malicious prosecution, abuse of process, and unlawful interference with contractual relations. The plaintiffs also sought damages against a number of individual defendants.
[4] The claim and statement of claim were not served by the plaintiffs on the defendants until 15 September 2004. In the meantime, the plaintiffs had obtained renewals of their claim ex parte from the Registrar at roughly six monthly intervals from September 2000. The last renewal by the Registrar was on 4 February 2004. In August 2004, the Registrar refused further renewal.
[5] On 30 November 2004, the individual defendants applied to have the action dismissed against them. On 15 December 2004, the plaintiffs were given leave to file an amended statement of claim, and the individual defendants' application was adjourned. The plaintiffs filed an amended statement of claim on 7 February 2005.
[6] On 27 May 2005, the Registrar's last decision to renew the plaintiffs' claim was set aside as against the individual defendants, and the plaintiffs' action against those individual defendants was dismissed.[1]
[7] On 26 October 2005, the plaintiffs delivered a second amended statement of claim. This pleading reflected the deletion from the proceedings of the individual defendants.
[8] In November 2005, the ACCC applied to the Supreme Court to set aside the decision of the Registrar of 4 February 2004 renewing the appellants' claim. On 2 February 2006, the learned primary judge granted the ACCC's application.[2] The primary judge's decision was based on the view that, under r 24(2) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"), the plaintiffs had not shown that there was "good reason to renew the claim".[3]
[9] The plaintiffs now appeal against the decision of the primary judge asserting that his Honour erred in failing to appreciate that, under r 24(2) of the UCPR, there was "good reason to renew" the plaintiffs' claim. A brief summary of the plaintiffs' claim and the circumstances of the renewals of the claim is necessary to facilitate an understanding of the decision below and of the plaintiffs' arguments on appeal.
The circumstances of the plaintiffs' claim
[10] In 1993, the plaintiffs were associated in a project to enter a rugby league team to be known as "The Logan Lions" in the national rugby league competition. The team would be owned by the second plaintiff. The shares in the second plaintiff were to be issued to members of the public. The project, which had by 1993 been in preparation for three years, involved the sale to members of the public of savings investment plans. These plans were sold by the first plaintiff on behalf of National Mutual Life Association of Australia Ltd ("National Mutual") and, later, Legal and General Life of Australia Limited ("Legal and General").
[11] In July 1993, the TPC was concerned that the plans were being sold on the basis that the purchase of a plan was a precondition of an entitlement to shares in the second plaintiff. The TPC queried the first plaintiff and Legal and General as to whether aspects of the first plaintiff's conduct in the promotion of the project contravened the TPA. Discussions ensued between officers of the TPC, the first plaintiff and Legal and General.
[12] The project was officially launched on 15 September 1993, but, on 17 September 1993, the TPC commenced proceeding QG155 of 1993 in the Federal Court of Australia against Legal and General and the present plaintiffs alleging that the sale of the savings plans contravened provisions of s 47 and s 52 of the TPA. Further negotiations ensued between Legal and General and the TPC. In those negotiations, it was asserted by the TPC that the sale of investment plans on the basis that only purchasers of plans would be eligible to acquire shares in the second plaintiff contravened the third line forcing provisions of s 47 of the TPA, and that the plaintiffs had contravened s 52 of the TPA by their assurances to members of the public that the project had the approval of the Australian Rugby League ("the ARL"), the Logan City Council and financiers. The TPC reached an agreement with Legal and General. The plaintiffs were not privy to the negotiations preceding this agreement. The effect of the agreement was to give all investors the opportunity to cancel their savings plans. The TPC and Legal and General agreed that investors would be informed of this agreement by a letter which said that the first plaintiff had made misrepresentations in relation to the investment scheme. Legal and General also directed the first plaintiff to cease the sale of investment plans. On 21 September 1993, proceeding QG155 of 1993 was discontinued without being served on anyone other than Legal and General.
[13] On 28 October 1993, the TPC instituted proceeding QG175 of 1993 ("QG175") in the Federal Court against the plaintiffs seeking substantially the same relief as had been sought in QG155 with the addition of an order for the implementation of a trade practices compliance program.
[14] Later in November 1993, National Mutual sent a similar letter, the terms of which had also been settled in consultation with the TPC, to investors.
[15] The plaintiffs assert that the letters from Legal and General and National Mutual caused many investors to cancel their savings plans. More importantly, the plaintiffs assert that the TPC's dealings with Legal and General caused the collapse of the project by reason of Legal and General's direction to the first plaintiff to cease the sale of investment plans and Legal and General's disparaging letters to investors.
[16] The plaintiffs' project failed and the two corporate plaintiffs went into liquidation. All the plaintiffs claim in the present action that they suffered losses as a result of the TPC's intervention in the business of the first and second plaintiffs, that intervention having led to the collapse of what was a financially responsible and socially worthwhile venture.
[17] The trial of the action QG175 began on 7 September 1998. It was still proceeding, albeit fitfully, in September 1999. As has been mentioned, the plaintiffs commenced their proceedings in the Supreme Court on 16 September 1999. The plaintiffs were unrepresented in the proceedings in the Federal Court. They did have, from time to time, the benefit of professional legal advice. It was pursuant to such advice that the proceedings were commenced in the Supreme Court.
[18] The last hearing date in QG175 was 10 December 1999 (written submissions were received subsequently). After the decision in QG175 was reserved, the plaintiffs first sought renewal of their claim in the Supreme Court on 12 September 2000, on the basis that the Federal Court had not yet given judgment in QG175. The plaintiffs' application was supported by an affidavit to the effect that the findings in QG175 would have a bearing on the matters at issue in the appellants' proceedings in the Supreme Court. At this stage, the plaintiffs and their advisers probably anticipated, perhaps not unreasonably, that judgment would be delivered within a few months. Unfortunately, that expectation was not met. Further applications for renewal were made. The second application for renewal was made in March 2001 on substantially the same basis as the first. It was said, in addition, that the ACCC had been made aware of the Supreme Court proceedings in the course of the proceedings in the Federal Court. The third and fourth renewals, in August 2001 and March 2002 respectively, followed on the same basis.
[19] On 5 April 2002, judgment was given by the Federal Court in QG175.[4] The ACCC was only partially successful; but declarations were made that, on a number of occasions, the plaintiffs had engaged in conduct which contravened s 52 of the TPA. From this judgment, there was an appeal and a cross-appeal.
[20] In September 2002, the plaintiffs' fifth application for renewal was supported by an affidavit which stated that judgment had been given in QG175 in the Federal Court on 5 May 2002, but that the judgment was subject to an appeal and cross-appeal. It was said that, once the decision on appeal was given, the claim in the Supreme Court might need substantial amendment.
[21] On 20 February 2003, the Full Court of the Federal Court gave judgment in the appeal.[5] The declarations made by the trial judge were set aside. The ACCC's application against the plaintiffs was dismissed. The plaintiffs' defence of the ACCC's proceedings was vindicated after more than nine years. The ACCC was ordered to pay the appellants' costs of the action and of the appeal.
[22] The plaintiffs' claim in the Supreme Court was subsequently renewed by ex parte applications on three further occasions. In an affidavit filed on 12 March 2003, on the occasion of the sixth application for renewal, it was said that the plaintiffs were "presently in the process of determining the quantum of costs which they will seek" in QG175. It was said that "[o]nce these costs are received it is intended that legal advice will be sought with a view to amending the Claim in these proceedings". This statement was repeated on the seventh renewal application in September 2003.
[23] In February 2004, on the eighth successful application for renewal, the plaintiffs relied upon an affidavit to the effect that the ACCC had offered to pay $85,000 in respect of the plaintiffs' costs but that there were difficulties amongst the plaintiffs in that the liquidators of the second plaintiff had not agreed to accept that offer. It was said that it was expected that this difficulty would be resolved within "the next month" but that this would not allow:
"sufficient time to brief Counsel and have the Statement of Claim re-pleaded prior to 16 March 2004 … We are prepared to brief Counsel immediately upon receipt of payment by the ACCC for these costs."
[24] Unfortunately, the plaintiffs' predictions proved unduly optimistic; and, on 30 August 2004, a ninth application for renewal was made for three months from 16 September 2004. This application was refused by the Deputy Registrar, who noted that 16 September 2004 would be the fifth anniversary of the filing of the claim in the Supreme Court and r 24(4) of the UCPR required the leave of the court before the claim might be renewed. It was then that the plaintiffs served their statement of claim on the ACCC.
The relevant provisions of the UCPR
[25] Rule 24 of the UCPR provides:
"(1) A claim remains in force for 1 year starting on the day it is filed.
(2) If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.
(3) The claim may be renewed whether or not it is in force.
(4) However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the 5th anniversary of the day on which the claim was originally filed.
(5) Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed.
(6) Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed."
[26] It will be noted that r 24(1) establishes the general proposition that a claim is to be in force for the purpose of service for one year. The principal purpose of r 24(1) is obviously to afford a plaintiff ample opportunity to effect service upon the defendant. Rule 24(2) makes provision for renewal in cases where there is good reason for renewing the claim even though it has not yet been served on the defendant. Rule 24(2), in turn, is subject to the qualifications in r 24(4) and r 24(5).
[27] Importantly for the present case, it must be borne in mind that the discretion conferred by r 24(2) of the UCPR falls to be exercised in a context which includes r 5 which states the philosophy of the UCPR. Rule 5 of the UCPR provides:
"(1) The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
(2) Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
(3) In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
(4) The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court."
[28] The learned primary judge proceeded under r 16(d) of the UCPR, which provides that the court may set aside an order extending the period of service of an originating process, and r 667(2)(a), which provides that the court may set aside an order at any time if the order was made in the absence of a party.[6]
The decision below
[29] The learned primary judge held that:[7]
"the plaintiffs failed to establish why the case should be excepted from the general rule that the court not exercise its jurisdiction in favour of renewal. It is unfortunate for the plaintiffs that this should be the result, but they took the course they did deliberately."
[30] At this point, it should be noted that at the hearing before the learned primary judge the plaintiffs were represented by Senior Counsel and Junior Counsel. The decision to file the claim and statement of claim in the Supreme Court in September 1999 was taken on legal advice to avoid the limitation periods which would otherwise bar their claims for damages. It seems that the initial decision to seek renewal of the claim, while the parties were waiting for the judgment of the Federal Court, rather than to serve it, was taken on legal advice. It is not clear whether all the later decisions to seek renewal, and, in particular, the renewal of 4 February 2004, were taken on the basis of legal advice. In any event, it is clear that the learned primary judge was right to describe the decision to seek renewal rather than to serve the claim as one which was "deliberately" taken, whether or not the plaintiffs appreciated the risk that the renewal obtained ex parte might be set aside.
[31] In setting aside the renewal of 4 February 2004, the learned primary judge applied r 24(2) in accordance with the approach sanctioned by this Court in Muirhead v The Uniting Church in Australia Property Trust (Q).[8] In that case, Williams J (as his Honour then was), with whom Davies JA agreed, said that the plaintiffs must establish "some good reason why the case should be excepted from the general rule that the court will not exercise its jurisdiction in favour of renewal".[9]
[32] The primary judge also adverted to the observations in Muirhead v The Uniting Church in Australia Property Trust (Q) by Pincus JA,[10] with whom Davies JA also agreed. Pincus JA summarised the views of Stephen J in Van Leer Australia Pty Ltd v Palace Shipping KK[11] in the following propositions:
"(1) There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.
(2) The discretion may be exercised although the statutory limitation period has expired.
(3) Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
(4) There is a wide and unfettered discretion and there is 'no better reason for granting relief than to see that justice is done'."
[33] The learned primary judge took into account r 5 of the UCPR, including the proposition in r 5(3) that "[i]n a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way".[12]
[34] His Honour rejected the plaintiffs' contention that good reason for their delay and, therefore, for renewal, was shown by their impecuniosity. His Honour concluded in this regard that:
"[t]he progress of the claim to the inexpensive step of service on the defendant was not … prevented by impecuniosity, but rather by the [plaintiffs'] determination to proceed at their own, slow, pace contrary to the undertaking imposed upon them by rule 5(3)."[13]
[35] The learned primary judge did not accept that the ACCC had sufficient notice of the plaintiffs' claims against it to prevent any prejudice to its prospects of a fair trial as a result of the plaintiffs' delay in serving their proceedings.
[36] The learned primary judge did not accept the plaintiffs' contention that the "public interest" in the determination of this proceeding on the merits afforded good reason to renew the plaintiffs' claim. In this regard, his Honour did not regard the consideration of this aspect of the public interest as sufficient to outweigh the public interest in the timely disposition of litigation reflected in r 5(3) of the UCPR.[14] Further, his Honour regarded some of the plaintiffs' claims as beset by substantial difficulties.[15]
The arguments on appeal
[37] It was not said by the plaintiffs on the appeal that the learned primary judge failed to advert at all to any consideration relevant to the determination of the question before him. Nor was it said that his Honour mistook the facts of the case. Rather, before this Court, the plaintiffs sought to complain that his Honour failed to appreciate that the discretion was "wide and unfettered", and that there is "no better reason for granting relief than to see that justice is done".[16] It will be necessary to address the detail of the plaintiffs' arguments in this regard; but it must be said immediately that his Honour was clearly mindful of these points.[17] In truth, his Honour was simply not persuaded that the plaintiffs had shown that there was "good reason" to except the plaintiffs from the general rule having regard to the period of delay in serving the claim, the possibility of prejudice to the ACCC's prospects of a fair trial, and the deliberate nature of the plaintiffs' failure to comply with the obligations imposed on them by r 5(3). His Honour's approach to the issue was orthodox.[18] In reaching his conclusion on a balance of the relevant considerations, the learned primary judge did not fall into error as the plaintiffs asserted in argument in this Court. I turn now to address the particular contentions advanced by the plaintiffs.
Prejudice to the plaintiffs: the plaintiffs' prospects of success in the action
[38] The plaintiffs asserted that the learned primary judge erred in not coming to a view that the plaintiffs had a strong case on the merits against the ACCC, and in not acting on that view to conclude that there was good reason for their claim to be renewed. But an application for renewal or an application to set aside a renewal is not an occasion for a determination of the merits of a claim. Often, it will be difficult to come to a reliable view that a plaintiff's claim is so strong that a serious injustice would result if it were not allowed to proceed. That is the position in the present case. It is to be emphasised that, while one can readily sympathise with the plaintiffs, whose position was vindicated by their successful defence of the proceedings brought against them by the ACCC, the claims which the plaintiffs seek to pursue against the ACCC are not simply the converse of the claims brought by the ACCC against the plaintiffs in the Federal Court. The claims for malicious prosecution and inducing breach of contract are obvious examples of this point. They raise issues relating to the state of mind of the ACCC's decision makers and the causes of the loss suffered by the plaintiffs by reason of the collapse of the project.
[39] Mr Glenn Ivers made oral submissions on his own behalf (and which were adopted by the other plaintiffs) on the hearing of the appeal. His submissions were put with conspicuous ability. He placed great emphasis on the point that there never was a sufficient evidentiary basis to warrant the ACCC's allegations that the plaintiffs had engaged either in third line forcing, or in misrepresenting the level of support which the project enjoyed from the ARL, the Logan City Council and prospective financiers. Mr Ivers submitted that the ultimate failure of the ACCC's case against the plaintiffs demonstrated that the ACCC had never had a case against them, and that this circumstance demonstrated the strength of the plaintiffs' causes of action against the ACCC for malicious prosecution and intentional interference in the contractual relations between the first plaintiff and Legal and General. Mr Ivers submitted that the learned primary judge failed to recognise the strength of the plaintiffs' case in this regard, and, as a result, failed to appreciate the real prejudice suffered by the plaintiffs as a result of being denied the opportunity to have their claims determined on their merits.
[40] It must be said that the plaintiffs' deep sense of grievance at having been vexed for many years by litigation which ultimately proved to be without sufficient foundation is readily understandable. Nevertheless, the circumstance that the ACCC's proceeding against the plaintiffs failed does not, of itself, establish that the proceedings were brought or pursued without any arguable basis, much less that they were brought or pursued maliciously. None of the Federal Court judges involved in the case at first instance or on appeal gave any support in their reasons to the suggestion that the ACCC's claim was so groundless that the pursuit of the proceeding was so unreasonable as to be explicable only on the basis of malice on the ACCC's part towards the plaintiffs. Furthermore, it is, to say the least, doubtful whether the ACCC's proceedings against the plaintiffs constituted a "prosecution" for the purposes of the tort of malicious prosecution. In this regard, the learned primary judge said:[19]
"In the first place it was contended against the plaintiffs that the proceedings complained of were civil proceedings and there is no cause of action available for the malicious prosecution of civil proceedings. In supplementary written submissions in response dated 25 November 2005 it was pointed out on behalf of the plaintiffs that the statement of claim in application no. G155 of 1993 alleged contraventions of ss. 53 and 55A of the Trade Practices Act and that contraventions of those sections are criminal offences punishable by fine. In written submissions in reply on behalf of the defendant dated 29 November 2005, it was pointed out that although at the times the applications were commenced in the Federal Court (i.e., before s. 78 was amended by the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 (Cth)) allegations of contraventions of ss. 53 and 55A could have been relied on in criminal proceedings, they were not so relied on in those applications and that the only relief sought for the alleged contraventions was civil in character: injunctions and orders pursuant to ss. 80A(1)(a) and (b). The only pecuniary penalties sought were in respect of acts or omissions constituting contraventions of Part IV of the Trade Practices Act. By operation of s. 78 criminal proceedings could not be brought for such contraventions of Part IV although such proceedings could then be brought for contraventions of Part V. On behalf of the defendant reliance was placed in particular on the recent decision of the Court of Appeal (29 November 2005) in The Beach Club Port Douglas Pty Ltd v. Page [2005] Q.C.A. 475 for the proposition that an action for damages for malicious prosecution is available only if the proceedings brought against a complainant are criminal and not if they are 'simply penal, administrative or disciplinary': see the analysis by McPherson J.A., with whom Jerrard J.A. and Chesterman J. agreed, at paras. 12-14. See also Butler v. Simmonds Crowley & Galvin [2002] 2 Qd. R. 252 at p. 258. It may be noted, however, that, as the primary judge observed at para. 9 of his reasons in The Beach Club Port Douglas Pty Ltd v. Page ([2005] Q.S.C. 195), there is a debate about whether the tort of malicious prosecution is available in respect of the prosecution of civil proceedings: see e.g. Little v. Law Institute of Victoria [1990] V.R. 257. It may be that civil proceedings of the kind instituted by the defendant as a regulatory authority seeking pecuniary penalties could be regarded as in a special category permitting the relief of damages for malicious prosecution, but in Queensland the authorities are against that proposition."
[41] While it is possible that it may be authoritatively stated at some time in the future that proceedings of the kind pursued against the plaintiffs by the ACCC can found a cause of action for damages for malicious prosecution, the current state of the law means that the learned primary judge did not err in proceeding on the footing that the plaintiffs' claim for malicious prosecution was beset by "considerable obstacles".[20]
[42] The learned primary judge also observed that the plaintiffs' claim for damages for unlawful interference with trade or business and for inducing breach of contract arising from the ACCC's dealings with National Mutual was statute-barred when it was added to the plaintiffs' statement of claim by the amendments of 7 February 2005.[21] Mr Ivers criticised this aspect of the judge's reasoning on the basis that this aspect of the plaintiffs' claim was of little importance having regard to the circumstance that the major damage to the plaintiffs had been caused by the ACCC's dealings with Legal and General in September 1993. Those dealings had effectively destroyed the first plaintiff's business and doomed the project, so that the later dealings between the ACCC and National Mutual were of little moment so far as the damage inflicted upon the plaintiffs was concerned. There are several points to be made here.
[43] The first is that the learned primary judge cited the plaintiffs' difficulties with their claim relating to National Mutual as but one example of the "difficulties confronting the plaintiffs' case".[22]
[44] Secondly, the plaintiffs' cause of action against the ACCC for damages for interference with contractual relations or inducing breach of contract depends on proof that Legal and General were induced to sever their connection with the project by the ACCC's misconduct rather than as a result of its own assessment of the situation. Such an assessment was one which Legal and General was clearly well placed to make on the basis of its own understanding of the facts and the advice which it took in that regard. Legal and General's decision to sever its connection with the project was one which it made in its own interests. It is not obvious that Legal and General's commercial judgment was materially affected by wrongful conduct on the part of the ACCC. The plaintiffs' difficulty in establishing a causal nexus between the misconduct with which it charges the ACCC and the decision of Legal and General to sever its connection with the project affects the plaintiffs' prospects of recovering damages for any of the loss suffered by any of the plaintiffs as a result of the collapse of the project.[23]
[45] Thirdly, so far as the plaintiffs' cause of action for damages against the ACCC for inducing a breach of contract by Legal and General is concerned, the agency contract between Legal and General and the plaintiff was not in evidence. It is true, as Mr Ivers observed, that the plaintiffs were not obliged in the proceedings before the learned primary judge to establish their cause of action by the level of proof which would be given at trial. The absence of the agency contract, however, meant that there was an absence of a prima facie case that Legal and General breached its contract with the first plaintiff by directing it to cease issuing savings plans and by writing to plan members in terms of the letter settled between Legal and General and the ACCC.
[46] Fourthly, it emerged for the first time in the course of oral argument on the appeal that the plaintiffs have instituted proceedings for damages for breach of contract against Legal and General. That is significant. In terms of the prejudice which the plaintiffs seek to demonstrate by the loss of the opportunity for relief against the consequences of Legal and General's breach of contract, if the plaintiffs succeed in their action against Legal and General, then they will have relief for that loss. If the plaintiffs are unable to establish their claim for breach of contract against Legal and General, then they would necessarily fail to establish their cause of action against the ACCC for inducing Legal and General to breach its contract with the first plaintiff. Mr Ivers sought to avoid this dilemma for the plaintiffs by arguing that the plaintiffs' action against Legal and General may itself face procedural difficulties, but there is no evidence of the nature and extent of such difficulties.
[47] Finally on this point, it must be said that even if it be accepted that the substantive obstacles to the ultimate success of the plaintiffs' claims might be overcome so that the loss of the opportunity to pursue those claims is not illusory, as Williams J said in Muirhead v Uniting Church,[24] that "circumstance alone could never constitute 'good reason' for purposes of … an application" pursuant to r 24(2). Denial of the ability to pursue an apparently worthwhile action:
"is a feature which will be present in every case where recourse is had to r 24, at least where the relevant limitation period has expired. For that reason that circumstance alone can never in law constitute sufficient 'good reason'."[25]
Prejudice to the ACCC
[48] An apparently worthwhile action is, of course, a factor favouring the positive exercise of the court's discretion where the action can proceed without prejudice to the defendant. As the plaintiffs argued in this Court, the "question of prejudice is central to any review of a Registrar's decision under r 24 of the UCPR". The plaintiffs contended that, because the ACCC became aware of the plaintiffs' claim well before it was served, it was, therefore, able to take such steps as were necessary to enable it to defend itself against the plaintiffs' claims. The plaintiffs were unable, however, to sustain this contention before this Court.
[49] The plaintiffs were able to show that, from late 1993 onwards, they had made public their view that the ACCC had wrongly caused the failure of the project, and that they intended to seek damages from those responsible. But the plaintiffs' case against the ACCC is, as has been seen, not merely the converse of the case made unsuccessfully against them by the ACCC.
[50] As the learned primary judge noted, the plaintiffs' second amended statement of claim made allegations of oral representations made by an unnamed officer of the ACCC to National Mutual in August 1993.[26] This allegation was first made in the amended pleading delivered in 2005. The learned primary judge accepted that the ACCC would now experience a real difficulty in marshalling evidence to defend itself against this allegation. Having regard to the lapse of time since the events in question, it is difficult to disagree with that view.[27] On the hearing of the appeal, Mr Ivers indicated that the plaintiffs no longer sought to pursue this allegation. But that adroitness in argument in this Court does not render his Honour's reasoning erroneous.
[51] More importantly, it does not answer the general prejudice that may be presumed to flow from the lapse of time, particularly bearing in mind the relevance of evidence from former officers of Legal and General in relation to the plaintiffs' causes of action against the ACCC.[28] It is to be emphasised that the ultimate objective of the UCPR is the facilitation of a judicial determination of a dispute fairly and justly on its merits. This objective cannot be achieved if, by reason of the lapse of time, it is no longer possible for each party to have a fair opportunity to present its case. If there is reason for concern that the lapse of time is a real impediment to the fair presentation of a party's case, that is a deficit in the case of an applicant for the grant of an indulgence in the form of an exemption from the operation of "the general rule that a court will not exercise its discretion in favour of renewal".
[52] The course taken by the plaintiffs denied the court the opportunity to discharge its essential function of ensuring that litigation is conducted fairly to all parties. The plaintiffs having deliberately conducted themselves as to put at risk the prospects of a fair trial of their action, the court can hardly be expected to lend its aid to facilitate the continuation of proceedings towards a trial concerned with events which occurred so many years before that real doubts as to the prospects that a fair trial could be achieved cannot be dispelled.[29]
Reasons for delay
[53] Rule 24(2) facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiffs. A party who deliberately chooses to refrain from serving a claim will rarely be able to show good reason to warrant the renewal of the claim.
[54] No case was cited to this Court in which r 24(2) or its analogues has been held to authorise a renewal of a claim in favour of a party who deliberately chooses not to serve a claim where the facts of the case sufficient to enable the case to be pleaded are known to the plaintiff. Whatever the position may have been in that regard in the absence of a provision such as r 5(3) of the UCPR, the presence of r 5(3) means that the approach pursued by the plaintiffs in the present case should not be vindicated by the court.
[55] In Major v Australian Sports Commission,[30] it was accepted that a legitimate reason to defer service may arise where the imminent expiry of a limitation period necessitates the commencement of proceedings, but further investigation of the circumstances of the claim is necessary to be able properly to plead so that the action would not be vulnerable to a strike out application. That reason for delay is not available to the plaintiffs in this case. At no stage has it been suggested by the plaintiffs that they were unable to serve their claim until September 2004 because of the need for further investigation by them of its factual basis.
[56] To the extent that the plaintiffs argue that they were constrained to delay the final pleading of their case until the outcome of the proceedings in the Federal Court, for example, in relation to their claim of malicious prosecution, it is simply wrong to say that the delays in the Federal Court prevented the formulation of the case which the plaintiffs wished to pursue against the ACCC and the service of that claim upon it. While the outcome of the proceedings in the Federal Court would be likely to have had a real bearing on the likelihood that the plaintiffs' claims would succeed, the plaintiffs, as they well understood, were not dependent on the success of the defence of the ACCC's proceedings to be able either to plead the case which they wished to advance against the ACCC or to serve that pleading. In any event, this consideration was irrelevant after the judgment of the Full Court of the Federal Court was given on 20 February 2003. It cannot be prayed in aid to support the renewal of the claim on 4 February 2004.
[57] I am also of the view that his Honour correctly rejected the plaintiffs' suggestion that their decision to seek another renewal in February 2004 is explicable by their impecuniosity. The decision not to serve their claim on the ACCC in February 2004 cannot be explained by impecuniosity on the part of the plaintiffs. The costs involved in serving the claim would have been minimal as the learned primary judge observed.[31] The plaintiffs assert, however, that the cost of properly formulating their claim would have been substantial, and that the primary judge should have had regard to the burden upon the plaintiffs of meeting the cost of prosecuting the claim in the Supreme Court while at the same time defending the proceedings in the Federal Court. But the plaintiffs' assertions ignore the fact that, after February 2003, the proceedings in the Federal Court had been finally determined. Furthermore, the plaintiffs' argument assumes that it would have been beyond the power of the Supreme Court to ensure that they were not subjected to any intolerable burden in dealing with both pieces of litigation simultaneously. That assumption was unsound, having regard to r 366 and r 367 of the UCPR; but whether or not the plaintiffs should have been advised to serve their claim and then apply for appropriate directions from the court, what the plaintiffs were plainly not entitled to do was unilaterally to arrogate to themselves the benefit of a stay of proceedings in the Supreme Court in defiance of r 5(3) of the UCPR.
[58] Next, the plaintiffs contend that the ACCC itself contributed to the delay which occurred. This contention cannot be accepted. Nothing the ACCC did or did not do constrained the plaintiffs to decide not to serve their claim.
[59] The plaintiffs urge that the ACCC's delay in applying to have the renewal of February 2004 set aside until after the success of the individual defendants is also a matter which should have tended against the setting aside of that renewal. The delay was not such as to have been apt to enure to the prejudice of the plaintiffs in any substantial way, save in relation to the incurring of a second set of costs on the ACCC's application. This prejudice can, I think, be sufficiently recognised, albeit in a somewhat rough and ready way, by refusing the ACCC the order for its costs of the appeal which would otherwise be made in its favour on the basis of its success on the appeal.
The public interest
[60] The plaintiffs urged that it was very much in the public interest that their claims against the ACCC be heard and determined on their merits. There is, however, no reason, as a matter of public interest, to accord the claim by these plaintiffs against this defendant to recover monetary compensation a position of privilege over other categories of litigation. It is a fundamental aspect of the rule of law that all those who come before the courts are treated equally. The rules of procedure, including r 5 of the UCPR, apply equally to all parties to proceedings. And there is a strong public interest reflected in the terms of r 5(3) of the UCPR.
Conclusions and orders
[61] In my respectful opinion, the plaintiffs have not shown that the learned primary judge erred in his conclusion that good reason had not been shown for the renewal of the claim on 4 February 2004, or that his Honour had erred in setting aside that renewal.
[62] The appeal should be dismissed. For the reasons indicated above, I do not consider that there should be an order for costs in favour of the ACCC.
[63] CULLINANE J: I have had the opportunity of reading the reasons for judgment of Keane JA in this matter.
[64] I respectfully agree with those reasons and that the appeal should be dismissed without any order as to costs.
[1] The IMB Group Pty Ltd (In liquidation) and Ors v ACCC and Ors [2005] QSC 139.
[2] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012.
[3] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [36].
[4] ACCC v IMB Group Pty Ltd (in liq) [2002] FCA 402.
[5] ACCC v IMB Group Pty Ltd [2003] FCAFC 17.
[6] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [17].
[7] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [36].
[8] [1999] QCA 513; Appeal No 8805 of 1999, 10 December 1999.
[9] [1999] QCA 513; Appeal No 8805 of 1999, 10 December 1999 at [29].
[10] [1999] QCA 513 at [4].
[11] (1981) 180 CLR 337 at 343, 344, 345 and 346.
[12] See The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [19].
[13] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [26].
[14] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [32].
[15] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [34] - [35].
[16] Cf Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [4].
[17] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [18].
[18] Main v Main (1949) 78 CLR 636 at 643; William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496; Australian Broadcasting Commission v Industrial Court (SA) (1985) 159 CLR 536 at 541; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547; Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [29].
[19] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [34].
[20] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [33].
[21] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [35].
[22] The IMB Group Pty Ltd (in liquidation) & Ors v Australian Competition and Consumer Commission [2006] QSC 012 at [33].
[23] Fink v Fink (1946) 74 CLR 127 at 143; Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 367 - 368; Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers & Ors [2006] QCA 335 at [284].
[24] [1999] QCA 513 at [13].
[25] [1999] QCA 513 at [13].
[26] [2006] QSC 012 at [30].
[27] Cf MacDonnell v Rolley & Ors [2000] QSC 058, SC No 9901 of 1996, 21 March 2000; Collins v Cootes [2000] QSC 332, SC No 4897 of 1996, 29 September 2000.
[28] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 550, 555 - 556.
[29] Muirhead v The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [8] and [31].
[30] [2001] QSC 320; SC No 3667 of 1999, 4 September 2001 at [71].
[31] [2006] QSC 012 at [23].
