Amos v Barbi
[1997] QDC 146
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- Amos v Barbi[1997] QDC 146
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Amos v Barbi[1997] QDC 146
Amos v Barbi[1997] QDC 146
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 4104 of 1991 |
BETWEEN
EDWARD AMOS | Plaintiff |
AND
NOEL RONALD BARBI | Defendant |
REASONS FOR JUDGMENT
Delivered the 18th day of June 1997
Catchwords: | Leave to proceed r.377 District Court Rules. Unsatisfactory explanation for delay. Lapse of 11 years from events complained of. Death of important witness. |
Counsel: | Brewer for Plaintiff (23 May) Collinson for Plaintiff (18 June) Applegarth for Defendant |
Solicitors: | Keller, Nall and Brown for Plaintiff Clayton Utz for Defendant |
Hearing Date(s): | In the District Court at Brisbane on before His Honour Judge Boyce on 3rd April and on 23 May and 18 June 1997 before His Honour Judge Boulton |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 4104 of 1991 |
BETWEEN
EDWARD AMOS | Plaintiff |
AND
NOEL RONALD BARBI | Defendant |
REASONS FOR JUDGMENT
Delivered the 18th day of June 1997
On 20 March 1997 the defendant filed an application seeking the removal from the file of a certificate of readiness. This certificate had been signed by the solicitors for the defendant on or about 26 June 1992 and returned to the plaintiff. No action was taken upon it at that time as further matters arose. There was then a long period of inaction where it would seem the last step taken in the action occurred on 3 June 1993 when the defendant's solicitors provided certain documents for inspection. On 9 October 1996, the plaintiff's current solicitors filed the same certificate of readiness. They then wrote to the defendant's solicitors on 13 November 1996 indicating an intention to have the matter remitted to the Magistrates Court. On 18 November 1996 the defendant's solicitors replied, reminding the plaintiff's solicitors that more than three years had passed since a step had been taken in the action and joining issue with the plaintiff's proposals.
On 27 March 1997, the plaintiff filed an application seeking to have the action remitted to the Magistrates Court. This application and the earlier application came before Judge Boyce on 3 April 1997. His Honour gave the plaintiff leave to amend his application to seek leave to proceed and this was done. Both matters then came on for hearing before me on 23 May 1997.
Past History
It is desirable to set out a brief history of the matter while recognising that there are notable conflicts as to what occurred at certain vital stages.
The plaintiff, Mr. Amos, is a real estate agent, and it would seem that on 23 August 1985 he entered into a written contract to purchase a residential property at Banyo from a Lillian Blanche Ryan. Problems rose and on 2 December 1985, Mrs. Ryan failed to settle.
Mr. Amos commenced a specific performance action against Mrs. Ryan. His solicitor in that action was Mr. Barbi, the defendant in the present action. A summary judgment application came before the Supreme Court on 2 June 1986. It would seem that Mr. Boughen of counsel, appeared on behalf of Mr. Amos, and Mr. Reid of counsel, for Mrs. Ryan. The application failed. Mrs. Ryan was given leave to defend. A copy of the order is Exhibit EA12 to the affidavit of Mr. Amos filed 12 May 1997. Significantly, that order makes mention of affidavits of Sandra Lillian Burton, Michael Edward O'Connor, John Raymond Bowles and Raymond Bertram Farrer, all filed on 30 May 1986 which were read by Mr. Reid.
What happened on 2 June 1986 is absolutely crucial to the present proceedings. Some or all of the abovementioned affidavits referred to Mrs. Ryan's mental incapacity at or about the date of contract. It seems that the summary judgment application failed because these affidavits raised a triable issue. Following the unsuccessful application, it seems that Mr. Boughen conveyed to Mr. O'Connor who was the solicitor for Mrs. Ryan, an offer to settle the proceedings. According to Mr. O'Connor that offer was rejected out of hand. Mr. O'Connor's recollection is fortified by a contemporaneous letter written by him to the Public Trustee notifying him of the offer to settle and its rejection. The plaintiff, Mr. Amos, claims that the abovementioned affidavits were not drawn to his attention until a pre-trial conference took place in 1988 involving Mr. Boughen, Mr. Barbi and himself. He claims that if he had known of this material at an earlier stage he would have discontinued the action which was gravely weakened by this material. He claims not to have been present at the summary judgment application on 2 June 1986 and not to have authorised any offer to settle the proceedings on that day.
It seems that Mr. Barbi's office was represented by an articled clerk, Mr. Van de Graaff. Mr. de Graaf's recollections are vague. Mr. O'Connor cannot recall whether or not the plaintiff, Mr. Amos, was present at the hearing. Mr. Coyne deposes to the fact that in May 1992, Mr. Boughen said that he had a vague recollection of the plaintiff being present at the chamber application. Mr. Amos deposes to the fact that Mr. Boughen said to him that his recollections didn't assist either party. Mr. Boughen had been briefed with documentation surrounding the dispute but died in mid-1985 before he could respond in more detail.
There is no mention in the material before me of the other counsel, Mr. Reid, having any worthwhile recollections of Mr. Amos. He was opposing Counsel. Apart from the obvious significance of Mr. Boughen's evidence - whatever it may have ultimately been - concerning the attendance or non-attendance of the plaintiff at the summary judgment hearing, there are also the interesting questions as to whether Mr. Boughen would have made an offer of settlement without clear instructions to do so, whether these involved the client and/or Mr. Barbi, and whether before or following the failed summary judgment application, he gave any explanation to Mr. Amos concerning the significance of the affidavits which related to Mrs. Ryan's mental health.
Mr. Boughen's recollections of the conference in 1988 when the plaintiff said he first became aware of the above-mentioned affidavits would also seem to have great potential significance.
In Wilson v. Bynon (1984) 2 Qd.R. 83 at 86, Thomas J. reviewed the authorities concerning the significance of adequate explanation for delay and held as follows:
“In my view, McFaddon's case clearly holds that the provision of a satisfactory explanation for delay is not to be considered as a condition precedent to the granting of leave to proceed. A similar approach has recently been taken by the New South Wales Court of Appeal in Stollznow v. Calvert (1980) 2 N.S.W.L.R. 749, where the undesirability is recognised of fettering the discretion with rigid formulae”.
The significance of delay and a satisfactory explanation was further discussed by the Full Court in Dempsey v. Dorber (1990) 1 Qd.R. 418 in the judgment of Connolly J. at page 420. After referring to the abovementioned cases, His Honour went on to say:
“This, however, is not to say that a satisfactory explanation for the delay is not a relevant circumstance. On an application for leave to proceed under O.90 r.9, the applicant for leave must ‘show that there is good reason for excepting the particular proceedings from the general prohibition’ of the taking of a fresh proceeding without the order of a court or a judge in a case in which three years have elapsed from the time when the last proceeding was taken. See William Crosby & Co Pty Ltd v. Commonwealth (1963) 109 C.L.R. 490 at 496. This test was reaffirmed by the High Court in Australian Broadcasting Commission v. Industrial Court of South Australia (1985) 159 C.L.R. 536. The question whether there is good reason for making such an order obviously involves the consideration of all relevant matters and the question whether there was reasonable excuse for the delay is unquestionably a relevant matter...In my judgment, the proper approach to a question such as this is to identify the relevant factors, assess the weight to be given in the circumstances of the case to each of them, and then to determine whether, on balance, there is good reason for making the order.”
In his affidavit filed 16 April 1997 the plaintiff deposes to financial difficulties, the effects of personal injury and the distractions of other litigation by way of explaining the delay which occurred in his prosecution of the action.
The personal injuries referred to in the reports of Dr. Tony Blue dated 29 June 1993, and Dr. John Pentis, dated 30 June 1994, would have beer unlikely to affect his physical capacity at times relevant to the present proceedings. He was being treated conservatively. There were limitations on his ability to walk distances and to engage in strenuous exercise.
He makes reference to Magistrates Courts proceedings against G.I.O. which were unsuccessful at trial and on appeal, a District Court action against F.C.A. which was settled, another against Craig Builders Pty Ltd which was successful, another against Citibank Limited which was unsuccessful at trial and on appeal, and a Supreme Court action against Brisbane T.V. Limited for defamation which would seem to remain unresolved. These do not afford a cogent explanation for a failure to take a step in the action over a long period.
In paragraph 13 of the abovementioned affidavit, he deposes:
“I have experienced great financial hardship over the past six years, and I have been trading at a loss.”
He goes on to speak of school fees and of losses of income in the period 1991-1995 inclusive.
He made similar claims in an affidavit filed in the Supreme Court on 14 July 1994 in his action against Brisbane T.V. Limited relating to an application for leave to proceed. He claimed at paragraph 25 of that affidavit to have experienced great financial hardship over the past five years. It is difficult to reconcile the abovementioned statements - which fail to disclose substantial assets - with other statements from the relevant period.
In an affidavit filed on 28 April 1995 in his appeal against Citibank Limited, he deposed at paragraph 7:
“I verily believe a stay of execution of the said judgment would not harm the respondent by reason of my own financial position as I have real estate assets to satisfy a judgment.”
I note that the relevant judgment included a monetary amount of $111,219.46.
At paragraphs 12 and 13 he deposed to the fact that he owned numerous freehold properties (five of them unencumbered) and at paragraph 16 deposed:
“16. I believe my real and personal assets exceed any liabilities by about $3 million.”
He went on to claim liquidity problems.
Under cross-examination by Mr. Applegarth he agreed that he told the District Court in July 1994:
“My bankers always told me I can have whatever amounts of money I want.”
He went on in his 1994 evidence to refer to the Fortitude Valley branch of the National Australia Bank and commented:
“Well, they said they always said to me I could draw whatever cheques I wanted to. If I wanted to buy more property I could, and whatever amount of money I wanted more or less was there for me.”
He explained this before me by saying:
“Well, at one stage we had a very good relationship where - the banks are peculiar. When you don't need money they want to lend you money, and when you do need money, they don't want to lend you money.”
He agreed with Mr. Applegarth that in mid-1995 Citibank attempted to take possession of his Jaguar motor vehicle. He borrowed $115,000 from GPS Mortgage Securities Pty Ltd, in order to retain it.
In re-examination he was asked by his counsel Mr. Brewer:
“Were you ever in a position to prosecute this action with funds at the time that's been mentioned?-- The money was needed for more important, urgent matters.”
The chronology, Exhibit 4, discloses that the defendant's solicitors handed over a signed certificate of readiness to the plaintiff in person on 26 June 1992. In the year that followed, there was extensive correspondence relating principally to the issue of the defendant's discovery. Following the attendance of the plaintiff at the offices of the defendant's solicitors on 3 June 1993, there were further invitations to the plaintiff to complete inspection and to deliver any interrogatories. Matters had reached this stage on 24 February 1994 when activities ceased altogether in the action.
It is not without significance that the plaintiff was no stranger to litigation. He was conducting the litigation on his own behalf. The steps remaining in the action would seem to have been fairly straight forward and not particularly expensive in the circumstances. Furthermore, in or about mid-1994, the plaintiff was involved in a leave to proceed application in the Supreme Court and was aware of the consequences of delay in prosecuting an action.
I was less than impressed with the plaintiff's explanation of delay on financial and other grounds. It follows that I am far from satisfied with the explanations put forward for delay.
There is, of course, the length of the delay from the events giving rise to the action. As I have pointed out, the central failure alleged against the defendant is that he failed to notify the plaintiff of the affidavits concerning Mrs. Ryan's mental condition which had been filed and served on 30 May 1986. I note with interest that the affidavit of the plaintiff which was filed in support of the summary judgment application and sworn by Mr. Amos on 13 May 1986, almost three weeks before the crucial hearing on 2 June (Exhibit EA7 to the affidavit of Mr. Amos filed 12 May 1997) contains reference to correspondence between Mr. Amos and Messrs Gabriel Ruddy & Garrett, Mrs. Ryan's solicitors. Paragraph 14 of Mr. Amos' affidavit of 13 May 1986 was as follows:
“14. Now produced and shown to me and marked with the letter ‘K’ is a true copy of a letter dated 26 November 1985, forwarded by certified mail to me from Messrs Gabriel, Ruddy and Garrett. This letter noted that I had exercised my right to extend the date for completion of the abovementioned contract by 30 days. It also advised me that Mrs. Ryan was at that date a patient at the Prince Charles Hospital, Chermside, Brisbane in the State of Queensland. The letter also purported to make the said contract of sale void or voidable on the grounds that Mrs. Ryan was unstable of body and mind since her late husband's death in October, 1984. The letter also invited me to have the contract property transferred back to Mrs. Ryan at my own cost, such cost to include the legal costs of Messrs Gabriel, Ruddy and Garrett. I was also advised that Messrs. Gabriel, Ruddy and Garrett intended to institute proceedings for appropriate declarations against me within 14 days from the date of the letter. (my underlining).
The death of Mr. Boughen in 1995 has removed a potentially most important witness in the proceedings. It is idle to speculate now as to what the extent of his recollections might have been when he refreshed his memory from the available material. Leaving aside the issue as to whether or not Mr. Amos was physically present at Court on 2 June, there are other questions. Having regard to the abovementioned letter of Gabriel Ruddy and Garrett referred to by Mr. Amos, it could have come as no great surprise to Mr. Boughen that a triable issue would arise concerning mental capacity. Could he not be expected to discuss this with the client or arrange to have it brought to his attention? Did he make an offer of settlement? Would he not take steps to ensure that any offer of settlement had the approval of the client? If Mr. Amos claimed in 1988 to be surprised at the affidavits concerning Mrs. Ryan's mental health and claimed to have been misled by Mr. Barbi, would he not remember such a conflict? What would he have done in such a situation? These and other questions will never be answered. The defendant has lost the opportunity of pursuing these and other lines of inquiry.
The prejudice to a fair trial of the action caused by the death of Mr. Boughen is the predominant reason, though not the only reason for my finding that leave to proceed should not be granted in this matter.
The application for remitter to the Magistrates Court does not arise for determination in the circumstances. It is not necessary either to make an order concerning the removal from the file of what was a stale certificate of readiness, but the defendant should have his costs of that application.
I dismiss both applications. I order that the plaintiff pay the defendant's costs of and incidental to both applications to be taxed.