Goldsmith v AMP Life Ltd[2024] QCA 184

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  For the reasons given by Dalton JA, I joined in the making of the orders on 27 August 2024 dismissing both appeals with costs.
2. [2]
   BOND JA:  For the reasons given by Dalton JA, I joined in the making of the Court’s orders on 27 August 2024.
3. [3]
   DALTON JA:  Two appeals were heard together on 27 August 2024.  The first was from a decision of Crowley J on 17 February 2023 and the second from a decision of Wilson J on 23 February 2024.  At the conclusion of the hearing the Court ordered that both appeals be dismissed with costs.  These are my reasons for joining in those orders.

Factual Background

4. [4]
   The appellants ran a newsagency at Mt Ommaney through a company, Gold Tip (News) Pty Ltd from 2004 until 2012.  This business ended unhappily with Gold Tip being put into liquidation due to its insolvency.  The appellants no doubt suffered considerable financial loss as a result of the failure of Gold Tip’s business and they blame the respondents who owned and operated the shopping centre where the newsagent was situated, and leased the premises from which Gold Tip ran the newsagency.  As a result, the appellants have commenced four separate proceedings against AMP over time.  All of those proceedings, two in the District Court and two in the Supreme Court have been unsuccessful.  At times lawyers have acted for the appellants, at other times, including on this appeal, they have acted for themselves.  The result is a very complicated litigation history, which must be understood in order to understand the present appeals.  I am grateful to be able to use the part of the judgment of Crowley J (17 February 2023) which deals with the necessary factual background:

3. “[7]
   In 2004, Goldtip purchased a newsagency and discount bookshop ... The business was known as Mt Ommaney News. It occupied and operated from leased premises within the [Mt Ommaney Shopping] Centre (‘First Shop’).
4. [8]
   As part of the acquisition of the business, on 11 October 2004, Goldtip was assigned the registered lease (‘First Lease’) … in respect of the First Shop.
5. [9]
   The First Lease between Goldtip and [the respondent] expired on 10 July 2006. Thereafter, the First Lease was purportedly extended on two occasions by amendments made to the expiry date of the lease (‘Amended Leases’). The Amended Leases were not registered. Following the expiry of the Amended Leases, Goldtip continued to occupy the First Shop, with the approval of [the respondent], on an unregistered holding over until 3 February 2010.
6. [10]
   In June 2008, AMP commenced a major renovation and expansion of the Centre (‘Works’). … As part of, and during, the final stage of the Works, Goldtip was required to permanently relocate its newsagency business to new premises within the Centre (‘Second Shop’) and to enter into a new lease (‘Second Lease’). Goldtip conducted its business from the Second Shop, under the terms of the Second Lease, from 4 February 2010.
7. [11]
   The Parties entered into the Second Lease following a series of negotiations, which occurred during the currency of the Works, between September 2008 and about June 2009.
8. [12]
   [The appellants] allege that during these negotiations, Goldtip informed [the respondent] that [the respondent’s] proposals were for a shop that was larger than required, at a level of rent not indicative of the market rate for a shopping centre newsagency in Brisbane and, if accepted, might endanger the commercial viability of Goldtip’s business.
9. [13]
   [The appellants] further allege that [the respondent] made false or misleading representations to Goldtip during the Second Lease negotiations. In particular, [the appellants] claim that [the respondent], through one of its agents, a Mr Nagel, falsely represented that it held signed and unconditional offers from other newsagents, on terms more advantageous to [the respondent] than those proposed to Goldtip, and that unless Goldtip accepted [the respondent’s] proposed terms, Goldtip would be replaced as the Centre’s newsagent (‘Misrepresentations’).
10. [14]
    [The appellants] assert that Goldtip signed the Second Lease, induced by and acting in reliance upon the Misrepresentations. [The appellants] further assert Goldtip suffered detriment as a result of entering into the Second Lease. [The appellants] claim Goldtip spent some $430,000 fitting out the Second Shop and were required to pay considerably higher rent under the Second Lease. They contend the costs and expenses associated with the Second Lease and the move to the Second Shop contributed significantly to Goldtip’s eventual demise.

…

3. [16]
   Goldtip’s financial difficulties were such that on 14 December 2011, the company was placed into voluntary administration. Subsequently, on 27 February 2012, Goldtip’s creditors, save for [the respondent], voted for Goldtip to continue trading under a Deed of Company Arrangement (‘DOCA’). It was hoped that Goldtip would be able to trade out of its financial difficulties or be sold. However, neither hope came to fruition.
4. [17]
   On 28 March 2012, [the respondent] terminated the Second Lease, causing the DOCA to end. On 30 March 2012, Goldtip was placed into liquidation. Ultimately, the company was deregistered.
5. [18]
   On 22 November 2013, Goldtip (by its liquidators) entered into a Deed of Assignment with [the appellants], pursuant to which the right to take action against [the respondent] is said to have been assigned to [the appellants]. It is on this basis that they sue [the respondent].

The present proceeding

3. [19]
   By the claim filed on 28 June 2022, [the appellants] claim reasonable compensation and/or damages for alleged losses to Goldtip, said to result from its entry into the Second Lease on uncommercial terms brought about because of [the respondent’s] Misrepresentations and alleged unconscionable conduct. [The appellants] also seek reasonable compensation and/or damages for losses resulting from the unlawful termination of Goldtip’s lease and Goldtip’s subsequent winding up and liquidation, each of which are alleged to have been a consequence of [the respondent’s] Misrepresentations and unconscionable conduct.
4. [20]
   To date, [the respondent] has not filed a notice of intention to defend the proceedings. It has, however, sought leave to file and proceed upon the present application, by which it seeks that the claim be set aside or the proceeding stayed, either pursuant to rr 16(e), (g) or (i) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) or in the exercise of the Court’s inherent jurisdiction to prevent an abuse of its processes. Alternatively, [the respondent] seeks that [the appellants’] statement of claim be struck out, without leave to replead, pursuant to rr 171(1) (a), (b), (d) and/or (e) of the UCPR or in the exercise of the Court’s inherent jurisdiction to prevent an abuse of its processes.

The previous proceedings

The first District Court proceeding

3. [21]
   [The appellants] commenced the first District Court proceeding by a claim filed on 2 February 2016.
4. [22]
   By the terms of a further amended claim, filed 9 May 2017, [the appellants] claimed compensatory damages for loss of profits due to alleged significant business disruption and for breach of implied terms of both the First Lease and the Second Lease, between 1 July 2008 and 27 March 2012. The claim covered the losses said to have been incurred as a result of the Works and their after effects. [The appellants] claimed [the respondent] breached implied terms of the leases, arising under ss 43(1)(b) and (c) of the [Retail Shop Leases Act 1994 (Qld) (RSLA)], which entitled them to claim reasonable compensation for business disturbance. [The appellants] further claimed [the respondent] breached an express term of the leases, by which Goldtip was entitled to occupy and use the premises without interference. Finally, [the appellants] claimed in the alternative that the impacts of the Works and its ongoing effects derogated from the grant under the Second Lease.
5. [23]
   The alleged loss and damage suffered by Goldtip was the significant disruption to trade of the business and a reduction in the profitability of the business.
6. [24]
   [The respondent] denied [the appellants] were entitled to the relief sought on a number of bases, including that [the appellants’] claim was statute barred because the relevant limitation period for the alleged breaches of contract under each of the First Lease and the Second Lease was six years and it had expired before the claim was filed. [The respondent] also raised issues of standing and jurisdiction by way of defence. Further, [the respondent] brought its own counterclaim against [the appellants], seeking to set-off outstanding rent, outgoings and other amounts that had not been paid by Goldtip under the terms of the Second Lease.
7. [25]
   In their further amended reply and answer, filed 12 November 2019, [the appellants] asserted that the six-year limitation period did not apply to any cause of action being pursued by [the appellants] because each cause of action was not one based on simple contract but on a speciality. Therefore, they contended, the relevant limitation period was 12 years from the date the cause of action arose. [The appellants] also contended that [the respondent] was not entitled to set-off any amounts in respect of the unpaid rent and other amounts as claimed.
8. [26]
   A trial of the matter took place before his Honour Judge Porter QC from 5 to 13 May 2020.
9. [27]
   His Honour dismissed each of [the appellants’] claim and [the respondent’s] counterclaim. In doing so, his Honour concluded that [the appellants] were entitled to reasonable compensation for disruption of Goldtip’s business as a result of the Works carried out during the time it occupied the First Shop, but not during the period it occupied the Second Shop. However, his Honour also found that [the respondent] was entitled to an equitable set-off of the compensation claim by reason of the amounts owed to it by Goldtip under the Second Lease. As his Honour determined the amount of [the respondent’s] set-off claim exceeded the amount of compensation payable to [the appellants], the claim and counterclaim were each dismissed.
10. [28]
    In terms of the Limitation Point, Porter DCJ referred to the terms of s 10 of the Limitation of Actions Act 1974 (Qld), which relevantly provides:

3. [29]
   His Honour then described [the appellants’] argument on the Limitation Point as follows:

3. [30]
   After considering the terms of ss 18, 42 and 43 of the RSLA and relevant clauses of the First Lease, his Honour concluded:

3. [31]
   Fundamental to his Honour’s reasoning was the conclusion that the terms of the tenancy at will were contained in the registered First Lease.
4. [32]
   [The appellants] applied to the Court of Appeal for leave to appeal Porter DCJ’s decision. [The respondent] filed a notice of contention in respect of his Honour’s conclusion on the Limitation Point.

The Court of Appeal

3. [33]
   The Court of Appeal refused [the appellants’] application for leave to appeal.
4. [34]
   In his judgment, Morrison JA summarised the Limitation Point raised by the notice of contention as follows:

3. [35]
   It is to be noted that, because of the findings by the trial judge, the issue raised on appeal by the notice of contention only concerned the First Lease.
4. [36]
   His Honour noted the Limitation Point argument raised by [the appellants] depended upon acceptance that the Amended Leases were simply extensions of the registered First Lease and not new leases.
5. [37]
   Morrison JA rejected that argument. His Honour concluded that the effect of the two amendments to the First Lease created new leases, neither of which was registered in accordance with the Land Title Act 1994 (Qld) (‘LTA’). …
6. [38]
   The primary reason Morrison JA rejected [the appellants’] argument was because when the holding over commenced on 1 July 2008, Goldtip had been occupying the premises under an unregistered lease and continued to do so until it entered into the Second Lease. …

Application for special leave

3. [39]
   On 16 March 2021, [the appellants] filed an application in the High Court of Australia, seeking special leave to appeal from the judgment of the Court of Appeal.
4. [40]
   On 5 August 2021, the High Court dismissed the application.

The second District Court proceeding

3. [41]
   On 18 March 2022, [the appellants] commenced a further proceeding in the District Court, seeking to set aside the first decision of Porter DCJ and obtain an order for a retrial on the basis that the trial was affected by actual fraud.
4. [42]
   On 24 May 2022, upon [the respondent’s] application, his Honour Judge Barlow QC ordered that [the appellants’] statement of claim be struck out and the claim permanently stayed.

The first Supreme Court proceeding

3. [43]
   The first Supreme Court proceeding was commenced by a claim filed on 23 March 2018. The same general factual basis as that alleged in the District Court proceeding underpinned the claim. However, this time, [the appellants] claimed reasonable compensation and/or damages for:

3. [44]
   As with the allegations made in the present proceeding, the claim was premised upon the Misrepresentations said to have been made by [the respondent] during the course of the negotiations for entry into the Second Lease. Unlike the District Court proceeding, it appears that the implied terms relied upon by [the appellants] were said to be implied by reason of s 43AA of the RSLA in respect of alleged false or misleading statements or misrepresentations made by the lessor, and s 46A of the RSLA in respect of the alleged unconscionable conduct engaged in by the lessor.
4. [45]
   Although the claim was filed in March 2018, [the appellants] did not take any steps to serve the claim on [the respondent] until nearly four years later.
5. [46]
   Rule 24 of the UCPR provides for the duration and renewal of a claim. It states:

3. [47]
   Pursuant to r 24(2) of the UCPR, [the appellants] obtained ex parte renewals of the claim by order of the Registrar on 20 March 2019 and again 20 March 2020. On 31 March 2021 and 1 June 2021, further applications for renewal were refused by the Registrar. On 16 September 2021, an ex parte application for renewal pursuant to r 24 was heard by Daubney J. Mr Goldsmith appeared on his own behalf for [the appellants].
4. [48]
   In written submissions relied upon by [the appellants] in support of their application, the following express submission was made:

3. [49]
   During the hearing of the application [before Daubney J], Mr Goldsmith made the following submission in response to a question raised by his Honour with respect to the relevant limitation period:

‘... Under the Retail Shop Leases Act there would be, normally, six years, which was why the – which was why the claim was filed when it was, which was just short of the- of the six-year limit ...’

3. [50]
   His Honour then raised whether the misleading and deceptive conduct claim had in fact already been dealt with by the proceeding in the District Court. In response, Mr Goldsmith explained the difference in these terms:

‘... the District Court claim was based on trading losses. And the Supreme Court action is based on capital losses ...’

3. [51]
   A further discussion then ensued regarding the District Court proceeding and the decision of the Court of Appeal. In the course of that further exchange, Mr Goldsmith submitted:

‘What we argued in front of Judge Porter in the District Court was that the – the period of limitation being a registered lease, it’s a deed and therefore a speciality and...therefore, s 10(3) of the Limitation of Actions Act applies, which gives you twelve years.’

3. [52]
   His Honour replied:

‘... that’s nonsense ... that’s just patently wrong.’

3. [53]
   Thereafter, the applicable limitation period was not further discussed and the exchange between Mr Goldsmith and his Honour moved on to the apparent deficiencies with the claim and statement of claim, with his Honour remarking:

‘... I mean, frankly, I’m tempted to refuse leave on the basis that the claim is nonsense. The only reason I wouldn’t do that is...because to do so...would deprive you of the limitation.’

3. [54]
   Ultimately, his Honour allowed the application and ordered a further renewal of the claim for 12 months from 23 March 2021. In the course of his Honour’s ex tempore reasons, his Honour stated:

‘In the circumstances that have been described to me by [the appellants], Mr Goldsmith, who appeared for himself, I am persuaded, but only just persuaded, that it is in the interest of justice to permit a further renewal of the claim.

The claim was filed to preserve [the appellants’] interests from the intervention of relevant limitation periods....

...

None of these matters give me any great confidence in the merits of the claim which [the appellants] say they wish to pursue in this court, but that point alone is not sufficient to persuade me that I should completely close [the appellants] out from even the prospect of pursuing remanent claims...’

3. [55]
   On or about 25 February 2022, [the appellants] served the claim and a further amended statement of claim on [the respondent].
4. [56]
   On 29 April 2022, [the respondent] applied to set aside the order of Daubney J. The premise of the application was [the appellants’] apparent non-disclosure of material circumstances relevant to the exercise of his Honour’s discretion to allow a further renewal of the claim. [The respondent] also sought to have the claim dismissed, as [the appellants] had not shown ‘another good reason to renew the claim’.
5. [57]
   [The respondent’s] application was heard by Wilson J on 26 May 2022.
6. [58]
   On 30 May 2022, Wilson J gave judgment, allowing the application and ordering that the renewal of the claim on 16 September 2021 be set aside and that the proceeding be dismissed.
7. [59]
   [The appellants] did not appeal Wilson J’s orders of 30 May 2022. Instead, on 28 June 2022, they commenced the present proceeding by filing a new claim together with a statement of claim.
8. [60]
   [The appellants] accept that the present claim is, in all material respects, indistinguishable from the previous claim dismissed by Wilson J.” (footnotes omitted).

First Application before Wilson J

5. [5]
   The above narrative ends with the application before Wilson J which she determined on 30 May 2022.  That is not the decision which is the subject of the current appeal.  In fact, as noted by Crowley J, there has never been any appeal from the decision of Wilson J of 30 May 2022.  This current appeal is from a decision of Wilson J in February 2024 refusing to reopen her decision of 30 May 2022.
6. [6]
   I will add a little detail as to the first application decided by Wilson J.  She first decided that there had been material non-disclosure by the appellants on their ex parte appearance before Daubney J.  On that occasion the male appellant appeared for both the appellants.  He told Daubney J that, “This dispute is based entirely on documentary evidence and does not rely on the recollections of individuals”.  This was in train of a submission that the respondent could not be prejudiced by the delay of the appellants in serving the Supreme Court proceedings which they had filed.  Wilson J found that statement to be untrue, and it is plainly untrue; the claim depended upon oral conversations.  On appeal, the male appellant told us that what he meant was that the claim had good prospects of success because, in his view, there were documents to support the representations he said had been made.  This of course is an entirely different thing to what he told Daubney J (and in fact this Court at some stages of the appeal).
7. [7]
   The other matter which Wilson J relied upon to find that there had been material non-disclosure before Daubney J was that to make out the claim which they had filed in the Supreme Court, the appellants acknowledged it would be necessary to apply for Gold Tip to be reinstated as a company.  What they did not tell Daubney J was that in the District Court proceedings, which were then still underway, they defended the respondent’s counterclaim on the basis that it was properly a counterclaim against Gold Tip, and that company was in liquidation.
8. [8]
   These two misrepresentations to Daubney J were the basis upon which Wilson J set aside the order of Daubney J.  She then considered whether there was any basis before her to renew the claim.  Argument as to this aspect of the application concerned whether the limitation time in respect of the Supreme Court proceeding had run.
9. [9]
   Before Wilson J the appellants’ written submissions contained the following paragraph:

3. “13.
   The current proceedings is [sic] not an abuse of process as:

1. it has not been commenced for an improper purpose (i.e. for an ulterior or collateral purpose) because:

1. the current proceeding was filed on 23 March 2018 for the perfectly legitimate reason of preserving the claim in the face of a looming limitation date…

…

5. the prejudice [to the Appellants] from any summary determination of the current proceeding outweighs any prejudice to [the respondent] because if the proceeding is summarily determined:

1. [the Appellants] will be shut out from pressing their good and proper case..”

10. [10]
    Before Wilson J, on the first application, the male appellant swore an affidavit saying that the first Supreme Court claim was filed in early 2018 because he was aware of the approaching limitations deadlines.^[1]
11. [11]
    Counsel before Wilson J attempted to persuade her to renew the claim on the basis that:

“MR UPTON: Just with one thing with respect to prejudice, your Honour. If the claim is not renewed, or the orders of Justice Daubney are set aside, then the respondent would be summarily shut out from pursuing what I say is a – in my submission, is a maintainable course of action. The respondents are 60 year old – 60 years old. They’re impecunious. They’ve poured their life savings into the newsagency, the subject of the proceedings. In my submission, to summarily shut them out would cause them an irreparable prejudice, and that prejudice, in my submission, would plainly overtop or overweigh any inconvenience that might be visited upon AMP.”

12. [12]
    That submission was, in my view, a plain reference to the fact that if their claim was not renewed it would be statute-barred.  That was what the male appellant had told Justice Daubney – see [48] and [49] in the factual background taken from Crowley J’s judgment above.
13. [13]
    At the first hearing before Wilson J, the respondent relied upon written submissions which characterised their position based upon what they had told Daubney J namely:

3. “47.
   Fourthly, the [appellants’] position is that the claim was filed shortly before the relevant limitation periods expired. That may not be correct for at least some of the claimed loss, but in any event, the [appellants] accept that the limitation periods expired after they filed.”

14. [14]
    At the first hearing before Wilson J, counsel appearing for the appellants did not contradict that submission and himself made the submission extracted at [11] above.  In my view, there was no doubt that counsel representing the appellants asked Wilson J to assume that there was a six year limitation period which had expired shortly after filing of the first Supreme Court claim.  That was certainly what she understood:

“Having already commenced the proceeding, the [appellants’] position was preserved. This could actually have been a circumstance warranting the prompt service of the claim in order to see whether the [respondent] called up a defence based on limitation of action. The [appellants’] position is the claim was filed shortly before the relevant limitation periods expired and there is just some dispute about limitation periods, but the [appellants] accept the limitation periods have expired after they have filed.”

15. [15]
    In any event, Wilson J did not renew the claim at the first hearing.  Instead she made an order dismissing the claim.

Appeal Against Decision of Crowley J 17 February 2023

16. [16]
    As the narrative taken from Crowley J’s judgment above states, there was never any appeal from the first decision of Wilson J.  Instead, the appellants simply filed a new identical claim in the Supreme Court.  That led to an application by the respondent to have this second Supreme Court claim set aside or permanently stayed on the basis that the proceeding was an abuse of process.  That was the application heard by Crowley J in October 2022.  In February 2023 he permanently stayed the appellants’ second Supreme Court claim.  One of the present appeals is from that decision.
17. [17]
    The grounds of appeal are:

3. “(a)
   the learned Supreme Court Justice erred in:

1. finding as a fact the Appellants had taken contrary positions on the applicable limitation period when it suited them to do so; and

2. determining the commencement and continuation of [the second Supreme Court proceeding] would bring the administration of justice into disrepute and is therefore an abuse of process; and

2. if the errors identified above had not been made, the learned Supreme Court Justice would not have permanently stayed the Proceeding.”

18. [18]
    I will deal with each of these two grounds in turn.

Contrary Positions on Applicable Limitation Periods

19. [19]
    As already set out, the appellants’ position before Daubney J and before Wilson J on the first application was that there was an imperative reason to renew their claim, namely, if it was not renewed, the limitation period had run and they would lose their rights.  On both these applications they told the Court that the limitation period was six years.
20. [20]
    In submissions to this Court, the appellants said that it was Daubney J who told them that the limitation period was six years.  That is plainly not the case.  However emphatic his Honour’s rejection of the 12 year limitation period was, the appellants in their written and oral submissions put their position on the basis that the limitation time was six years.  As can be clearly seen from Daubney J’s reasons, his decision to renew the claim was very much based on the fact that otherwise the appellants’ rights would be irretrievably lost.
21. [21]
    In a similar way, the appellants submitted on the hearing of this appeal that it had been the respondent who had informed Justice Wilson that the limitation period for their claim was six years, not them.  As is plain from the discussion above, that is simply not true.
22. [22]
    Having recorded the position which the appellants took before Daubney J and Wilson J on the first application, Crowley J’s judgment continued:

3. “[111]
   Despite this, [the appellants] now contend that the applicable limitation period is actually 12 years, that the claim initiating the present proceeding has been filed within time, and that the pleaded causes of action are not statute barred. I consider this to be clearly inconsistent with the position [the appellants] took before Wilson J.
4. [112]
   It is most curious that the point now taken with respect to the asserted 12-year limitation period was not raised by [the appellants] before her Honour. That is particularly so where Mr Goldsmith has now deposed in an affidavit read by [the appellants] at the hearing of this application that they, in fact, became aware some time before 12 November 2019 that the 12-year limitation period applied.
5. [113]
   To put in plainly, the timing of this apparent realisation is such that [the appellants] must necessarily have believed a 12-year limitation period applied:

1. the second time they sought [an] order from the Registrar to renew the claim;

2. the third time they sought an order from the Registrar to renew the claim;

3. when Daubney J heard the ex parte application for an order for renewal of the claim; and

4. when Wilson J heard the [respondent’s] application to set aside the renewal order and dismiss the proceeding.

3. [114]
   I do not accept [the appellants’] submission that their position with respect to the limitation period point has remained consistent. Regardless of whether the submissions made by Mr Goldsmith to Daubney J might be construed as consistent with maintaining a belief in a 12-year limitation period, the simple fact is that no such interpretation can be given to the submissions made to Wilson J. The clear and unambiguous effect of [the appellants’] submissions to her Honour was that the relevant limitation period had expired. [The appellants] urged her Honour to determine the application on a basis they accepted, yet they now seek to resile from.
4. [115]
   In my opinion, the position [the appellants] now take with respect to the applicable limitation period, even if correct as a matter of law, does give the distinct impression that a party may advance arguments, including arguments of law, based on what is expedient rather than what is correct.
5. [116]
   In the hearing before Wilson J, [the appellants] were content to proceed on the basis that the relevant limitation period was six years and had expired shortly after they had served the previous claim. I conclude that is suited [the appellants] at that time to maintain that position so that they could argue to her Honour that they would suffer the ‘irreparable prejudice’ of being ‘shut out’ of their claim if it was dismissed. In other words, it was to their advantage. To my mind, there can be no other rational explanation.
6. [117]
   Now, [the appellants] argue that they have commenced the present proceeding in time, and they therefore have a right to have their claim determined on its merits. They seek to proceed this way in circumstances where they have not given a satisfactory explanation given as to why her Honour was not informed that this was their position at the time the dismissal application was heard.
7. [118]
   Parties are generally bound by the way they conduct their cases. As the High Court observed in Metwally v University of Wollongong:

‘It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so…’

3. [119]
   I reject [the appellants’] argument that even if they have adopted an inconsistent position, it is an inconsistent position with respect to the law and therefore they are not bound by it. I am not concerned here with whether, as a matter of law, a party should be held to a previous position or concession. The question I am concerned with is whether, in all the circumstance, the filing of the new claim and the commencement of the present proceeding is an abuse of process. That being so, the fact that a party has deliberately taken successive inconsistent positions with respect to a matter of law, to suit their own convenience, is entirely germane and to be taken into account.
4. [120]
   As the principles I have set out earlier confirm, an abuse of process may arise where a party seeks to raise an issue for determination which ought reasonably to have been raised in an earlier proceeding, but which was not. Similarly, in my view, an abuse of process may arise where a party seeks to proceed on a legal basis different to that which they intentionally advanced in earlier proceedings. Of course, a mere change of position is not necessarily sufficient. It is necessary to consider the conduct of the party in question having regard to the entirety of the circumstances.” (footnotes omitted)

23. [23]
    Before Crowley J the appellants argued that the appeal decision^[2] only applied to the first lease Gold Tip had from the respondent, and not to the second lease.  That was accepted by Crowley J.  The appellants then contended that the reasoning of the Court of Appeal did not apply to the second lease for, predominantly at least, the reasons of Morrison JA were based on the fact that while the first lease was registered, once it expired the appellants remain in possession of the tenancy under new unregistered leases.  The appellants took the position before Crowley J that the second lease was registered, thus overcoming the problem identified by the Court of Appeal decision, so that their case in the Supreme Court, based on the second lease, not the first lease, was subject to a 12 year, not six year, limitation period.  This was an argument in answer to part of the respondent’s case before Crowley J, namely that the proceeding should be struck out because it was filed out of time.
24. [24]
    Before Wilson J the male appellant swore that he filed the first Supreme Court claim in 2018 because he was aware of the approaching six year limitation deadline.  By the time the matter was before Crowley J, Mr Goldsmith swore that he was aware “sometime before 12 November 2019 that it was a 12 year limitation period which applied”.  In submissions made by Mr Goldsmith before this Court the position had changed again.  He said, “However, the [appellants’] legal theory on [a 12 year] limitation [period] had not been tested in court.  As a precaution against a possible adverse finding that six years was the applicable period, the [appellants] filed the claim on 23 March 2018 shortly before what would be the expiry of a six‑year limitation period.”  Of course, the appellants’ submissions were not sworn, but they do mark a further change of position to one where even before filing the first Supreme Court proceeding the appellants believed the limitation period to be 12 years but were just acting on a precautionary basis in filing the first proceeding.
25. [25]
    Further in his written submissions filed in this Court, Mr Goldsmith said that the appellants had never claimed or admitted that the limitation period was six years and have never accepted that the position was that the limitation was six years.  These statements are simply false.  On occasions when it has been in the appellants’ interest to do so – before Daubney J, and before Wilson J on the first application – they have claimed that the limitation period was six years.  I note these false statements are particularly problematic given that Mr Goldsmith qualified as a lawyer two years ago and appeared as a lawyer on behalf of the appellants on the appeal before us.
26. [26]
    In  my view, the finding of Crowley J that the appellants have taken contrary positions on the applicable limitation period was plainly made out.  Not only that, but their different positions suited the arguments which they wished to make on the various occasions they were before the Court.  That is, the positions taken can be seen to be in accordance with their interests.  This was a very relevant matter when considering whether or not to permanently stay the second proceeding as an abuse of process.  This ground of appeal must fail.

Administration of Justice Brought into Disrepute

27. [27]
    At [121] below Crowley J said, “I do consider [the respondent] is again being vexed with the same claim as that which was dismissed by Wilson J.  In my view, it is unfair to [the respondent] to again be faced with the prospect of this litigation.”  He referred to the fact that the events said to give rise to the claim occurred more than 15 years ago and that there had already been substantial litigation in the District Court; an appeal to the Court of Appeal, and an application for special leave to the High Court.  He referred to the fact that the second Supreme Court proceeding required a factual examination and factual determinations on many of the same issues which were considered and decided in the District Court.  He referred to authority dealing with the Court’s recognition of the effect of delay on litigants, including as to the quality of justice; stress on litigants; costs, and the overall burden on the judicial system.  He then referred to authority to the effect that in modern times the Court takes a more pro‑active role when faced with delay and burdensome litigation, and to r 5 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).  He referred to the finding by Wilson J that the appellants had misled Daubney J and deliberately failed to comply with r 5.  He referred to his finding that the appellants had asserted contrary positions as to the limitation period applicable to their action “when it suited them to do so”.  He concluded:

3. “[130]
   The Court cannot permit its processes to be invoked and employed in circumstances where the commencement and continuation of proceedings undermines or erodes public confidence in the fair and consistent administration of justice, or where it is seriously and unfairly burdensome to a party. In my opinion, each are the effects of the present proceeding.
4. [131]
   Having regard to the conduct of the [appellants] in the proceedings before Daubney J and Wilson J, and their taking of deliberately contrary positions on the applicable limitation period, I consider that to permit the continuation of the present proceeding would bring the administration of justice into disrepute.”

28. [28]
    There were many considerations leading to the conclusion which the appellants challenge.  They challenge none of them except the finding that they had changed their position on the limitation period, and they have failed to establish that.
29. [29]
    Although neither party referred to it in argument, I decide this appeal on the basis that the principles in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore^[3] apply to Crowley J’s decision.  That is, I must be satisfied that he reached the correct decision, rather than properly exercised his discretion within the terms of House v The King.^[4]
30. [30]
    In my view the decision of Justice Crowley was correct for the reasons he gave.  The arguments made by the appellants on appeal fail to come to terms with the gravamen of his reasons.  They submitted that Justice Wilson’s first decision was interlocutory, not final; that is, it did not determine the merits of their claim.  That must be accepted.^[5]  However, contrary to the plaintiff’s submissions, it was not necessary that the first Supreme Court action be heard on its merits before the second could be described as an abuse of process.  One need go no further than the High Court decision in Batistatos v Road & Traffic Authority of New South Wales^[6] to see that that is so.
31. [31]
    Allied to this submission, the appellants say that it was not open to Crowley J to find that the second Supreme Court proceeding was an abuse of process because the appellants were entitled to have their claim heard and determined on its merits.  Again, this submission is simply not correct at law.  The conduct of the appellants in asserting their rights in the Supreme Court can be a basis for striking out their proceeding as an abuse of process.  This is particularly so when very closely allied factual questions have been the subject of a proceeding and trial in the District Court (with an appeal to the Court of Appeal).
32. [32]
    The other argument which the appellants make is that Crowley J substantially based his decision on his understanding of Justice Wilson’s first decision, which in turn was flawed for the reasons they advance in their appeal against her second decision.  First, I do not accept the submission that Crowley J’s decision was substantially based on findings by Wilson J in her first decision.  It was, so far as the limitation period point is concerned, based upon the written submissions which the appellants provided to Justice Wilson, and the oral submissions which their counsel made to Justice Wilson.  Secondly, there is nothing in the idea that the first hearing before Justice Wilson was flawed in some way; that is, there is nothing in the appellants’ appeal against Justice Wilson, see below.
33. [33]
    The appellants contend that Crowley J “did not include delay as a factor in his abuse of process finding”.  In fact he did.  However, the appellants’ submissions continue that their delays were justified, because Justice Daubney said that they had “occurred in a context where there was some justification for adopting that course of action” and because the delays were caused by the refusal of the respondent to file a defence in either Supreme Court proceeding, but to instead file applications aiming at ending the second Supreme Court proceeding.  These arguments cannot succeed.  Justice Daubney’s comments were made years ago in the course of determining an ex parte application where he was not told all the matters relevant to the appellants’ application.  They have no meaningful application to the situation now.  In accordance with r 135 of the UCPR, the respondent has sought and received leave to attack the first and second Supreme Court proceedings, rather than file a defence.  No appeal has been made from the decisions to grant leave, and I cannot see any sensible ground upon which such an appeal could be made.  Fundamentally, it is the appellants who have delayed by not bringing all the claims they wish to bring in an orderly way soon after the events which they claim caused them and Gold Tip damage.

Appeal Against the Decision of Wilson J

34. [34]
    After the decision of Crowley J, the appellants filed another application in the trial division of the Supreme Court to be heard by Wilson J.  The application purported to be made pursuant to r 668(1)(a) of the UCPR; alternatively, orders were sought in the Court’s inherent jurisdiction.  This application asserted that because Crowley J acknowledged in his reasons for judgment that the Court of Appeal decision did not apply to the second lease, and gave his opinion that in relation to the second lease, “At present, it seems to me that the relevant limitation period has not expired and the proceedings that have been commenced by the filing of the new claim are within time”,^[7] there was a new fact which had arisen since the hearing of the first application before Wilson J which entitled the appellants to have the orders she made that day set aside.  Alternatively, they asked that the orders made by Wilson J after the first application be set aside because they were “obtained as the result of material misrepresentations made by the respondent”.  Further, their second application before Wilson J was for the reinstatement of the orders made by Daubney J on 16 September 2021.
35. [35]
    In my view, the second application before Wilson J was quite misconceived.  She dismissed it, and was correct to do so.  Her reasons put the dismissal on a certain basis.  The grounds of appeal in relation to this decision were limited.  There was no notice of contention on this appeal.  In all these circumstances, I proceed simply to determine the grounds of appeal raised by the appellants and not express any opinion on any wider or more fundamental issues.  I make this express because, in these circumstances, the decision in this case is not an authority on the scope or application of r 668 of the UCPR, or the Court’s inherent jurisdiction to set aside orders once they are made.

Grounds of Appeal

36. [36]
    The grounds of appeal against the decision of Justice Wilson made 23 February 2024 are as follows:

3. “(a)
   The Honourable Supreme Court Judge erred in finding:

1. the Appellants were not taken by surprise at the hearing held on 26 May 2022 (Original Hearing);

2. the Appellants have not shown that, without accident or fault on their part, they have not been heard on a relevant matter; and

3. there are no relevant matters on which the Appellants have not been heard;

2. Through no fault of their own, at the Original Hearing, the Appellants:

1. did not know the case put against them;

2. were unable to prepare to meet the case put against them;

3. were taken by surprise; and

4. were denied procedural fairness.

3. If not corrected, a substantial injustice will be done.”

37. [37]
    The male appellant conceded at the hearing that the points raised at subparagraph (b) above were really argument, rather than independent grounds of appeal.  The subject matter of (c) is conclusory.  I will not deal separately with either ground (b) or (c).
38. [38]
    On the second application before Wilson J, the appellants submitted that they were not heard as to relevant matters on the first application, so that the first application should be re‑opened and they should have the chance to make submissions about the matters which they did not have at the first application.  Wilson J rejected these arguments, and in my view, was correct to do so.
39. [39]
    The appellants’ arguments begin around 25 February 2022 when they finally served the claim and statement of claim in the first Supreme Court proceeding, shortly after Daubney J’s orders.  On 29 April 2022 the respondent made the application which was the first application heard by Wilson J.  The relief claimed was as follows:

3. “1
   Pursuant to Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 16(d) and/or r 667(2)(a), that paragraph 1 of the order of Daubney J dated 16 September 2021 renewing the originating process filed on 23 March 2018 (Claim) be set aside.
4. 2
   Further, pursuant to the Court’s inherent jurisdiction, the proceeding be dismissed.
5. 3
   Alternatively to paragraph 2, pursuant to UCPR:

1. r 16(e), that the Claim be set aside.

2. r 16(g), that the Proceeding be permanently stayed.

3. 3A
   Leave pursuant to r 135 UCPR to take a step in the form of this application.”

40. [40]
    On 7 April 2022 the respondent’s solicitors wrote to the appellants demanding they withdraw the claim which they had served because: 1) the appellants had delayed in serving the claim in breach of r 5 of the UCPR, and 2) the claim offended the rule in Port of Melbourne Authority v Anshun Pty Ltd.^[8]
41. [41]
    The appellants engaged counsel to represent them at the first hearing before Wilson J.  They said that at 8.00 pm on the night before the first application was to be heard by Wilson J, the respondent provided written submissions which relied upon matters that had not previously been raised with the appellants, that is, matters which were outside the terms of the letter of 7 April 2022.  These new grounds included allegations that the appellants had made material non-disclosures at the hearing before Daubney J.  In these circumstances, the appellants submit on this appeal that they “had not been advised previously of the New Grounds and had been given no opportunity to prepare arguments or submit evidence to contest them”.
42. [42]
    In her reasons for making the decision under appeal, Wilson J noted that the appellants were represented by counsel at the first hearing before her.  That hearing commenced at 12.24 pm and was adjourned at 1.00 pm.  The hearing resumed at 2.30 pm.  The appellants did not seek an adjournment at any time prior to, or during, the hearing.  I would add that the appellants’ counsel at that hearing addressed Wilson J about the matters which the appellants now say they were not heard on.
43. [43]
    The appellants put no evidence before Wilson J from their counsel as to why he did not seek an adjournment.  They put on no evidence themselves as to these matters; they were present during the first hearing before Wilson J, instructing counsel.  Further, they did not try to introduce any such evidence on the hearing of this appeal.
44. [44]
    Wilson J directed her attention to the High Court’s observations in Metwally v University of Wollongong:^[9]

“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so…”

45. [45]
    Having regard to these legal propositions, Wilson J decided that in the case before her the appellants did have the opportunity to make submissions in relation to the issues raised against them by the respondent.  Indeed, she noted that they did so.
46. [46]
    There is no reason at all not to apply the principles in Metwally here.  If it were the case that the appellants and their counsel were taken by surprise at the first hearing before Wilson J, they could and should have asked for an adjournment.  They did not.  To the contrary, they made submissions about the “new” points raised by the respondent.  There was plenty of time between the receipt of the respondent’s written submissions, and the start of the hearing of the application, before Wilson J for the appellants and their counsel to decide whether or not to take the course of asking for an adjournment.  They chose not to.  They cannot now seek to re-argue the application on a basis that contradicts that choice.  They were not denied procedural fairness, they had every opportunity to run their case either as they did, or at an adjourned hearing.  There is nothing in this ground of appeal.