De Barse v Weldon[1996] QDC 280

TRANSCRIPT OF PROCEEDINGS

CHAMBERS

JUDGE McGILL SC

and

and

and

BRISBANE

DATE 25/10/96

ORDER

HIS HONOUR: I have before me an application to dismiss the plaintiff's action for want of prosecution, or in the alternative for an order that the action be certified for speedy trial, and an order that the plaintiff give security for costs. An order is also sought in those circumstances that the pleading of fraud be deleted from the amended pleading.

This action was commenced when a writ was filed in the Supreme Court on 9 October 1991. It was endorsed with a claim against the first defendants for damages for loss incurred as a result of fraudulent, negligent or innocent misrepresentation. There were also two other parties.

A statement of claim filed with the writ alleged that the first defendants had on 6 January 1989 contracted to sell certain land to the plaintiff for $292,000 and that completion of that contract was induced by fraudulent answers on or about 11 January 1989 to requisitions on title.

No duty of care was alleged nor any facts alleged which are said to have given rise to a duty of care. It seems to me that in point of pleading the plaintiff's case is one of fraud or nothing.

Clearly, no such claim should have been made unless the plaintiff was in a position to lead evidence to support it: see Associated Leisure Limited v. Associated Newspapers Limited [1970] 2 QB 450 at 456.

As a pleading in fraud, the statement of claim suffers from the difficulty that the matters alleged in paragraph 7 of the statement of claim as demonstrating that the representations were false and untrue do not on their face falsify the representations alleged in paragraph 5. Some of them on their face had nothing to do with the representations alleged but at most they claim that certain conditions were imposed by the Ipswich City Council as conditions for granting approval to proposed subdivision applications.

They do not demonstrate that circumstances arose under which there was such an obligation on the first defendants as to fall within the descriptions of the matters the subject of the requisitions on title. It may be, however, that that is a matter which could be cured by amendment.

All defendants had entered appearances by 13 November 1991. The first defendants delivered their defence on 8 December 1991. On 10 March 1992 the first defendants applied for an order that the plaintiff make discovery, which was so ordered by Master White (as Her Honour then was) on 16 March 1992.

On 16 June 1992 an amended statement of claim was filed but the amendment did not affect the claim against the first defendant. On 10 November 1992 the third defendant applied for an order for particulars which was so ordered by Lee J on 16 November 1992, the plaintiff not appearing to resist the application.

On 2 December 1992 the third defendant again applied, this time to dismiss the action for failure to comply with the order of 16 November 1992 and on 9 December Shepherdson J made a self-executing order requiring the particulars to be provided within seven days; presumably they were.

The first defendants' affidavit of documents was filed on 26 August 1993 and the plaintiff's answers to interrogatories delivered on behalf of the first defendant were filed on 24 June 1994. At the same time a supplementary affidavit of documents by the plaintiff was filed.

On 16 September 1994 a notice of discontinuance of the action against the second defendant the Ipswich City Council was filed. On 29 May 1996 the first defendants applied by summons to dismiss the action for want of prosecution. This came before White J on 17 June 1996 at the same time as a like summons filed by the third defendant.

Her Honour did not then dismiss the action for want of prosecution, but gave a time-table for the action which required it to proceed thereafter with reasonable expedition. One of the matters which Her Honour ordered was that the plaintiff supply particulars of his claims for damages to each of the first and third defendants on or before 12 July 1996.

That step was not complied with by the plaintiff and an application was made before Moynihan J on 19 July 1996 (presumably pursuant to the liberty to apply reserved in the order of 17 June 1996) on which His Honour ordered that the further particulars referred to in paragraph 5(a) thereof (to which I have just referred) be delivered by 4 p.m. on Friday, 26 July 1996 and went on:

Paragraph 5(b) of the order of Justice White provided that where such claims, that is relevantly the plaintiff's claims for damages against the first defendants, involve the evidence of experts, the plaintiff was to deliver to each defendant a precis of the evidence to be given by such expert on or before 28 July 1996. There is nothing to suggest that that step has been taken.

The particulars which were provided claim that the plaintiff suffered damage consisting of the cost of a besser block retaining wall, the cost of fill, engineers' costs, some additional building costs and additional draining work. The claim pleaded against the first defendants is for damages, relevantly damages for fraud, and in paragraph 12 of the statement of claim it is alleged that the land purchased by the plaintiff was worth much less than the price which the plaintiff was induced by the representations to pay and did pay for the same, by reason of there being constructed upon the said land a stormwater drain subsequent to the completion of the contract. It is not apparent to me how the supposed further and better particulars document dated 23 July 1996 can give particulars of that claim for damages.

I should give a little bit more about the history of these proceedings. On 2 March 1994 the plaintiff delivered a certificate of readiness for trial, which at that stage was not signed by the defendants. On 8 August 1994 the plaintiff delivered a further certificate of readiness for trial, which the first defendants signed and returned on 14 September 1994. The action was shortly thereafter discontinued against the second defendant, but there was difficulty with the third defendant until proceedings against the third defendant were discontinued by a notice dated 2 August 1996 filed in the Supreme Court.

On 8 August 1996 the solicitors for the first defendants signed a certificate that all interlocutory steps were completed, which was a certificate contemplated by paragraph 6 of the order of White J. That certificate was signed by the solicitors for the plaintiff on 19 August 1996 and apparently returned since it was filed by the solicitors for the first defendants on 22 August 1996.

Pursuant to that certification the Deputy Registrar made an order on 29 August 1996 remitting the action to the District Court. The plaintiff's solicitors were advised by the Registry of this Court that the matter had been transferred by a letter which they received on 5 September 1996. It seems to me at that point there was nothing to prevent the plaintiff from entering the action for trial.

It may be that the matter would not have been placed on the callover list pursuant to rule 149 until a Certificate of Readiness had been filed, but the structure of rule 149 does not require that the Certificate of Readiness be filed first. This matter originally came on before me yesterday and when I indicated that I was giving serious consideration to dismissing the matter for want of prosecution, counsel for the plaintiff sought an adjournment. I indicated that I would be interested in finding out what had occurred to carry the action forward since the matter was last before the Court, particularly before Mr Moynihan J.

This morning an affidavit by the plaintiff's solicitor was read, which gives some detail as to the history of the matter, but does not contain any indication that the plaintiff has done anything since the matter was before the Supreme Court on 19 July to carry it forward, except comply with the self-executing order which His Honour made, and contains no explanation for his failure to take further steps.

I pointed out this deficiency to counsel for the plaintiff this morning and the matter was stood over until after lunch to give him the opportunity of placing further material before me. Another affidavit from the plaintiff's solicitor was read which provides some further information as to the history of the matter, makes reference to correspondence involving the Queensland Law Society which I do not regard as relevant to this application, demonstrates that the certificate which was filed in the Supreme Court was filed at the instance of the first defendants' solicitors, but again does not either explain what the plaintiff has done since the matter was last before the Court to carry the action to trial or provide any explanation for the plaintiff's lack of activity.

The first affidavit contains a statement that the solicitor is instructed by the plaintiff to proceed to trial and that there has been no deliberate intention of the plaintiff to delay the prosecution of his claim. Nevertheless, there is no indication of why the fairly obvious and relatively simple step required to give effect to that instruction has not been taken.

In the affidavit filed this afternoon, there is a statement:

It seems to me that if that is an accurate description of the plaintiff's present condition, it represents a fairly dramatic change from his position during most of the years since 1991 when this action was commenced.

It will have been apparent from the time table that I gave earlier that the progress of the action has been extremely slow and that there have been long periods during which the only action taken was action being taken on behalf of the defendants.

It does appear that there were occasions when the plaintiff did make some sporadic attempts to carry the action forward but it seems strange that, for example, the plaintiff's attempt in August 1994 to obtain certification of readiness for trial petered out without leading to an application to the Court either to dispense with the certificate of readiness or to give directions for the future conduct of the matter.

I think it is also significant that on two occasions the Supreme Court has made self-executing orders against the plaintiff. These orders are not made lightly by Courts and they were in each case made in circumstances where the plaintiff had failed to comply with earlier orders.

The Rules of Court are to be complied with and orders of Courts are to be complied with. It is not good enough for a party to litigation merely to say that when actually subjected to a self-executing order the required step has been taken.

The history of this matter is a very sorry and unsatisfactory one, but there is one further fact which I regard as significant and aggravating, that is that in a letter dated 22 April 1996 the solicitors for the plaintiff advised the solicitors for the first defendant that the plaintiff had instructed them that he was impecunious and that even if their clients, that is the first defendants, were successful, they may not be able to recover any award of costs.

That letter or the statement I have referred to is in the paragraph which commences:

An objection has been taken on behalf of the plaintiff to my reference to that letter on that basis. It seems to me that there are two answers to that objection. The first is that a copy of the letter has been exhibited not only to an affidavit filed on behalf of the first defendants, but also exhibited as Exhibit GWM12 to an affidavit filed on behalf of the plaintiff in the Supreme Court on 14 June 1996.

The privilege associated with a without prejudice letter is the both privilege of both the sender and the receiver, but in circumstances where both parties have placed the letter before the Court it seems to me that both parties have waived the privilege.

The other answer is that the cloak of without prejudice correspondence cannot, in my opinion, be used to mask or to conceal an abuse of the Court's process. The situation here is the plaintiff who has not made any serious effort to pursue his action for some years and has generally only taken a step to carry the action forward under threat of a guillotine order, and thus demonstrated that he has no real interest in pursuing it, is seeking to put the defendants in the position where they will be forced to incur the cost of preparing the matter for trial and, indeed, it was suggested even incurring the costs of entering the matter for trial in order to be rid of it.

It has been argued that the delay in these proceedings has not been sufficiently serious to amount to inordinate and inexcusable delay and it has been argued that there is not a substantial risk of a fair trial as a result of that delay nor is there evidence of serious prejudice to the defendants.

That might be an important consideration in the circumstances where a plaintiff is genuinely trying to bring the action to trial. My concern in this case is that this plaintiff is not genuinely trying to bring the action to trial. The plaintiff has had plenty of opportunity to do so and even after an application to dismiss the action for want of prosecution was made, and I gather renewed before another judge in the Supreme Court, once the matter was referred to this Court at a time when all the interlocutory steps were complete and it was a simple matter for the plaintiff to enter for trial, the plaintiff has not done so.

I take it from the fact that no good reason has emerged from the affidavits that there is no good reason for the plaintiff having failed to do so and I draw the inference that the plaintiff has not done so because the plaintiff has no wish to pursue the action.

The action is one of fraud. That is a serious allegation to make against someone. If a person is prepared to commence an action for fraud, that person should be prepared to carry it through. The defendants are entitled not to have an action of that nature hanging over their heads indefinitely and be humbugged by a plaintiff who flaunts his impecuniosity as a basis for forcing the defendants to abandon what may well be a very good claim for costs.

On the face of the pleadings, the plaintiff has no action because on the face of the pleadings their claim is not made out. The defendants have undoubtedly incurred substantial costs in defending this action, and I do not see why they should be put in the position of having to incur further costs to prepare the action for trial on the off chance that the plaintiff may turn up and may at that stage want to do something to pursue what seems to me to be a fairly tenuous claim. In making that comment, I am taking into account both the terms of the particulars provided and the terms of the statement of claim pleaded.

There are two matters to which I should refer in relation to jurisdiction.

There is some authority, in Body v. Mearns (1973) 1 QL 274, for the proposition that this Court has no jurisdiction to dismiss an action for want of prosecution.

Demack DCJ as he then was, in deciding that case, had reference to some authorities including the decision of Stevens v. Truan and Anor [1968] QdR 411 where the Full Court quoted with approval a passage in another judgment at page 417:

His Honour did not appear to avert to the provision of rule 4(1) of the District Court rules which picks up provisions of the Supreme Court rules in respect of remedies, procedures or powers where such matters are not provided for in the District Court rules.

One such matter which is provided for in the Supreme Court rules is order 39 rule 15 which provides that if the plaintiff does not give notice of trial within six weeks after the plaintiff's being first entitled to do so, the defendant may apply to the Court or a Judge to dismiss the action for want of prosecution. That was a rule which was invoked along with the inherent power of the Court before White J.

It seems to me that that rule still applies, that the power to dismiss under that rule is picked up by rule 4(1) of the District Court rules and the conditions for the exercise of the dismissal in the formal sense still apply because of the same default. The fact that one application is made at one time and refused does not mean that no application can subsequently be made or that any application subsequently made is bound to fail.

In any event, a further six weeks have elapsed since the time when the action was remitted to this Court and the requirement of order 39 rule 15 has been satisfied again since then.

Counsel for the plaintiff has relied on the adoption by the Full Court in Bruce Pye and Sons Pty Ltd v. Mannering [1987] 1 QdR 304 of the approach adopted by the House of Lords in Berkett v. James [1978] AC 297, to the effect that the power to dismiss for want of prosecution should be exercised only where the plaintiff's default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his lawyer's part giving rise to a substantial risk that a fair trial would not be possible or to serious prejudice to the defendant.

That approach was also endorsed by the Full Court in Dempsey v. Dorber [1990] 1 QdR 418. The approach of Courts to the question of delay is one which has fluctuated from time to time. For example, in Tait v. McLeod [1969] QdR 217 at 224 Lucas J delivering what was in effect the judgment of the Full Court and speaking in the context of an application for leave to proceed under order 90 rule 9 expressly endorse the robust approach which the Court of Appeal in England was then adopting to problems of that kind. His Honour referred to a number of statements and cases in the 1960s in that Court.

Under the, in my view, unfortunate influence of Berkett v. James the view in the 1970s and 1980s swung the other way to the point where it became very difficult to dismiss an action for want of prosecution under any circumstances.

In my view that approach is not consonant with the times. In the latter part of the 1990s Courts have abandoned the idea the litigation is something which parties can if they wish conduct at their leisure. It is not good enough to say that a plaintiff having once issued a writ or a plaint out of a Court is thereafter entitled to delay as much as he likes, and as long as the delay cannot be said to be intentional or contumelious or inordinate and inexcusable according to the standards of the 1980s then he can take as long as he likes to bring his action to trial. Those days are gone.

Plaintiffs these days are expected to proceed with expedition in the conduct of litigation. It is very common in most Courts for them to be required to adhere to strict timetables in cases in those Courts where there are not firm directions about timetables, nevertheless there are rules which require prompt action. It is not acceptable nowadays for a plaintiff to drag out proceedings, year after year, doing little or nothing and then come along and resist an application to dismiss for want of prosecution on the ground that things have not really got bad enough yet to justify the exercise of the power.

A detailed timetable was ordered on 17 June 1996. The only thing that the plaintiff had to do to give effect to that timetable in the immediate sense was comply with the requirements of paragraph 5, and they were not complied with in accordance with the timetable.

In my opinion there is prejudice to the defendant arising out of three circumstances here. The first is the nature of the action, the fact that this is a claim for fraud and that they have had a claim for fraud hanging over their head for years; that is prejudice.

The second is that there is evidence before me that the female defendant is not in good health and there is medical evidence that suggests that the dragging on of these proceedings has had an adverse effect on her health, in that a general practitioner has expressed the opinion that he would urge that the pending legal proceedings be resolved as speedily as possible so as not to aggravate her medical condition. I think that is also prejudice.

The third fact is the mere fact of delay. The notion that delay in itself can amount to prejudice is one which did not during the 1980s, perhaps in the last 20 years, receive as much emphasis as it used to. But the importance of it has recently been referred to by Justice McHugh in Brisbane South Regional Health Authority v. Taylor, a judgment delivered by the High Court on 2 October 1996, with whom two of the other four members of the Court agreed. His Honour there, admittedly in a somewhat different context, referred to the significance of fading memories and pointed out, as had been expressed in a decision of the United States Supreme Court:

The same may be said of delay in pursuing proceedings.

It seems to me that perhaps the best way to accommodate the right practice for the 1990s with the authorities of the 1980s is to say that the standard of what amount to inordinate and inexcusable delay are now much stricter than they used to be. In any event I am satisfied that there has been inordinate and inexcusable delay on the part of the plaintiff in this action. Taking into account the whole course of litigation as I have outlined it, I do not think it is an answer to say that when another application was made in June to another Judge, Her Honour was not so satisfied. More has happened since then, there has been more delay since then and it seems to me the plaintiff's reluctance to pursue the action has been better exposed since then.

In my opinion it would be quite unjust to the remaining defendants for the action against them to be now allowed to continue and for the reasons that I have given, I order that the action be dismissed for want of prosecution. I order the plaintiff to pay the defendant's costs of and incidental to the action, including this application and any reserved costs, to be taxed.