Marvon Nominees Pty Ltd v Reeves-Saunders
[2000] QDC 245
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- Marvon Nominees Pty Ltd v Reeves-Saunders[2000] QDC 245
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Marvon Nominees Pty Ltd v Reeves-Saunders[2000] QDC 245
Marvon Nominees Pty Ltd v Reeves-Saunders[2000] QDC 245
DISTRICT COURT | No 164 of 1994 |
CIVIL JURISDICTION
JUDGE SAMIOS
MARVON NOMINEES PTY LTD | Respondent (Plaintiff) |
and
RALPH REEVES-SAUNDERS AND KATHRYN ANNE REEVES-SAUNDERS | Applicants (Defendants) |
MACKAY
DATE 11/08/2000
ORDER
HIS HONOUR: This is an application by the defendants in the proceedings for an order that the plaintiff's action be dismissed for want of prosecution.
The events in issue in this action are alleged to arise from a loan of $247,500 made in November 1982 by Building Society Resources Limited to the plaintiff and Plaistow Nominees Pty Ltd.
The plaintiff alleges the defendants guaranteed the obligation of Plaistow to Building Society Resources. It is to be noted that the plaintiff was a borrower not a guarantor. The plaintiff claims that by a written agreement dated 8 September 1983 between the plaintiff and Plaistow, it was agreed that Plaistow was liable to Building Society Resources for 73.26 per cent of the money advanced pursuant to the loan agreement and guarantee together with interest thereon in costs and expenses associated therewith. Further that on 20 November 1984 the plaintiff paid the sum of $270,580.34 to Building Society Resources being the total amount then due and owing pursuant to the deed of loan and guarantee.
The plaintiff pleads section 4 of the Mercantile Acts 1867, as entitling it to stand in the place of Building Society Resources and to enforce the deed as against the defendants. The plaintiff claims amounts totalling $156,594.67 from the defendants made up of two components. The first component being an amount of $48,227.16 calculated as 73.26 per cent of $270,580.34 less the value of half interest in a practice and premises assigned to the plaintiff to which the plaintiff in the action has assigned $150,000 leaving the total of $48,227.16. The second component is an amount of $108,367.51. That is claimed to be made up of legal costs of proceedings against Plaistow and repaying the loan to Building Society Resources in a sum of $66,028.51. To that is added a claim for interest for loss of use of the money of $42,339 making a total of $108,367.51.
The defendants have defended the action on a number of bases. Firstly that the deed of 6 November 1982 conferred no right on the plaintiff to be indemnified by the defendants. Secondly that they and two other persons jointly and severely guaranteed the obligations of the plaintiff and Plaistow under the deed. Thirdly, that payment discharged any obligation of the guarantors under the deed or at law. Fourthly that section 4 of the Mercantile Act does not entitle the plaintiff as principal debtor to seek contribution from the defendants as guarantors and fifthly, that in any event the plaintiff is estopped by virtue of a compromise reached in February 1986 of other related proceedings from pursuing its claim against the defendants in this proceeding.
In the course of these proceedings, besides other issues, one issue could be the nature and value of the assignment referred to in paragraph 7 of the plaint That is the plaintiff claims to set off the value of a half interest in a practice and premises assigned to the plaintiff in a sum of $150,000. That allegation is in issue. Another issue in the proceedings is the nature and extent of the legal work on which the costs claimed in paragraph 8 of the plaint were incurred. The third claimed in paragraph 8 of the plaint were incurred. The third issue would be the circumstances surrounding the alleged compromise of the related proceedings.
The proceedings were commenced by a plaint filed in this Court on 3 October 1994. On the face of the plaint, the plaintiff's cause of action arose on 20 November 1984 when it paid Building Society Resources. Hence it was just short of 10 years later that the proceedings were commenced when the plaint was filed herein on 3 October 1994. The defence was filed on 2 February 1995.
Mr Paterson, a solicitor of the firm Macrossan & Amiet, having the conduct of the action on behalf of the defendants, sets out a chronology of steps that have occurred after the entry of appearance and defence was filed. The evidence shows that the plaintiff gave a notice of intention to proceed at the expiration of one month on 16 October 1996. The next step was that on 11 August 1997 the plaintiff delivered further and better particulars of the plaint in response to a request delivered by the defendants on 1 February 1995.
On 11 August 1997 the defendants delivered a notice requiring discovery on oath to the plaintiff. Hence, apart from giving the notice of intention to proceed on 16 October 1996, nothing happened for more than two and a half years to progress the action.
Then one year and nine months later on 26 May 1999 the plaintiff again gave a notice of intention to proceed after the expiry of one month. The letter accompanying the notice from the solicitors for the plaintiff to the defendants' solicitors dated 26 May 1999 stated:
“Please appreciate however that for reasons which are not immediately clear and have to do with staff departures, there is no-one presently au fait with this file and it will be necessary for one of our solicitors (in this case Eugene White) to come to grips with the file and then of course your client's proper request for discovery will be complied with. We will of course be forwarding a notice requiring discovery to you after the one month period and give you notice in that regard. Whilst we appreciate that this matter has some considerable history, there may be some benefit in discussing the matter once the respective files are reactivated in both offices.”
The evidence shows that a notice requiring discovery was not forwarded by the plaintiff's solicitors after the one month period. Also for reasons that I will give, I find on the evidence before me that the defendants' request for discovery has not been complied with.
Then after a period in excess of six months, the plaintiff's solicitors by letter dated 2 December 1999 sought production of documents referred to in the defendants' entry of appearance and defence and the defendants provided copies of those documents requested on 7 February 2000. On 23 March 2000 the defendants delivered the defendants' list of documents.
By the defendants' solicitors' letter to the plaintiff's solicitors dated 23 March 2000, the defendants' solicitors noted that they had served on the plaintiff a notice requiring discovery on oath on 11 August 1997 and asserted that they had never received any affidavit of documents nor had they received any list of documents, nor were they aware of any attempt by the plaintiff to comply with the obligations of disclosure pursuant to the Uniform Civil Procedure Rules.
In that same letter the defendants' solicitors intimated that if they had not received the plaintiff's list of documents within 21 days, they would receive instructions to make an application to the Court for the action to be dismissed for want of prosecution. The following day, 24 March 2000, the defendants' solicitors again wrote to the plaintiff's solicitors. The defendants' solicitors noted that some further and better particulars had been provided by the plaintiff on or about 11 August 1997. The defendants' solicitors stated in this letter dated 24 March 2000 that as the plaintiff had indicated, an intention to proceed with the matter, the file had been reviewed by the defendants' solicitors.
Regarding the particulars which refer to the total amount of legal costs claimed as relating to the Mackay Supreme Court Writ No 38 of 1985, the defendants' solicitors state their understanding that that action had been consolidated with Mackay Action No 73 of 1985. They asked for confirmation that the plaintiff accepted that was so.
The defendants' solicitors asked to be advised if the costs of which particulars had been provided related to the consolidated action.
The defendants' solicitors stated that unless the plaintiff abandoned that part of its claim relating to the legal costs, the defendants would require further particulars of those costs. It was accepted that some further particulars may be provided in the process of disclosure of documents, however, the defendants' solicitors noted that if the plaintiff wished to maintain its claim for legal costs they would require particulars of the following matters:
- How each of the amounts particularises legal fees charged had been calculated by reference to the work performed.
- Whether the legal fees charged had been calculated by reference to a Court scale and if not the basis of their calculation.
- Whether the plaintiff entered into written agreements with respect to payment of costs with: Henderson & Lahey; Smith & Fitzgerald; Crosby Brosnan & Creen; Williams & Williams.
- Particulars in relation to each of the counsel's fees as to how the amounts claimed have been calculated.
- Particulars of the nature of services provided by C Curtis and G Brown and the method of calculation of the amount paid.
- Particulars of the legal costs of re-paying Building Society Resources Limited including how the amount of $23,500 had been arrived at.
The defendants' application to have the proceeding dismissed for want of prosecution was filed herein on 4 July 2000.
Mr Paterson's affidavit sworn on 4 July 2000 states that the letter from the plaintiff's lawyers, Baker Johnson Lawyers of 26 May 1999 was the first contact he had from the plaintiff's solicitors since 11 August 1997 when the further and better particulars were provided. Further, he had not heard from the plaintiff's solicitors since their letter of 8 March 2000.
In a further affidavit from Mr Paterson filed hereon on 4 August 2000, he produces further correspondence passing between the solicitors. However, before referring to that correspondence I should refer to a letter from the plaintiff's solicitors to the defendants' solicitors dated 5 July 2000. In part this letter states:
“We apologise for not having reverted to you earlier but unfortunately the file went into something of a hiatus. Instructions have been provided for, and indeed, a draft list of documents have been prepared but upon that solicitors departure and the coincidental departure on extended leave of another solicitor, the matter has been overlooked”.
The plaintiff's solicitors go on to say that with respect to the substantive issues raised in the defendants' solicitor's letters of 23 and 24 March, they would respond to them subject to their client's instructions as to the defendants' offer. This letter dated 5 July 2000 is Exhibit A to the affidavit of Mr Baker, a member of the firm of Baker Johnson Lawyers, having charge of the action on behalf of the plaintiff.
The plaintiff's list of documents was provided under cover of a letter of 18 July 2000. An examination of the list of documents which is Exhibit 21 to Mr Paterson's second affidavit on its face makes no reference to any documents relating to legal costs. It has not been suggested on the hearing of this application otherwise.
Furthermore, with respect to the defendants' solicitors request for further and better particulars, the letter from the plaintiff's solicitors to the defendants' solicitors dated 18 July 2000 has this to say about it:
“With respect, the further and better particulars provided to you are properly constituted and require no further elaboration. They indeed, respond to the particulars requested by yourselves. This does not of course vitiate the argument that you are raising on your client's pleading but on the issue of particulars we do not consider that your client is entitled to further at this stage”.
In the same letter the plaintiff's solicitors have this to say:
“As you are aware from our other open letter our client instructs us to set the matter down for trial, so rather than allow the issue of particulars to delay that, could you please advise as to why particulars provided in response to your request are now inadequate”.
Despite the plaintiff's solicitors seeking to explain their position in a letter to the defendants' solicitors dated 18 July 2000, the defendants' solicitors responded that the application to seek to have the action dismissed for want of prosecution would proceed on 8 August 2000.
Without setting out the contents of that letter dated 18 July 2000, the effect overall was that the plaintiff's solicitors asserted that the matter could be proceeded with and be set down for trial. The plaintiff's solicitors maintained that, subject to being provided with copies of documents, the request for a trial date could be signed.
Without conceding the plaintiff's entitlement to proceed with the action, the defendants' solicitors, by a letter dated 26 July 2000 to the plaintiff's solicitors, provided a copy of the deed of loan and guarantee which had been sought, noting that after almost six years after the proceedings were instituted the plaintiff's solicitors sought to impose upon the defendants' solicitors a time limit of some six working days to provide the documents. In this letter dated 26 July 2000, the defendants' solicitors again referred to the need to undertake disclosure of documents referred to in the plaintiff's list of documents and, if the matter was proceeding, the defendants would require the further and better particulars as outlined by the defendants' solicitors on 24 March 2000.
The defendants' solicitors also raised a concern about the plaintiff's financial circumstances in the context of being able to meet an order for costs if one were made in the action.
In the defendants' solicitor's letter to the plaintiff's solicitors dated 27 July 2000, the defendants' solicitors set out the basis on which the further and better particulars regarding legal costs claimed in the plaint were sought. The defendants' solicitors in this letter set out what the defendants' solicitors claim the particulars that had already been disclosed and how those particulars provided were inadequate.
Throughout the course of the proceedings before me since the application was filed, the plaintiff has not demonstrated what the defendants' solicitors have claimed in the letter dated 27 July 2000 is incorrect. On the contrary, I find, on the evidence before me, that the particulars are rightly sought and have not been provided.
In a letter from the plaintiff's solicitors to the defendants' solicitors dated 28 July 2000 the plaintiff's solicitors invited the defendants' solicitors to withdraw this application and claimed that despite what might be raised regarding previous delays, the matter was back on track and could be brought to trial expeditiously. It was suggested that if there was a concern that perhaps directions or a timetable allowing the matter to be listed was an appropriate way to proceed.
An opportunity arose that may have permitted this application, instead of being heard on 8 August, to have it heard in the previous week. Of course the application's return date was 8 August 2000.
The further correspondence between the parties deals with the invitation to see if the matter could be brought on in the week before 8 August 2000 so that Mr Hack of counsel who appeared on behalf of the defendants in this application, who was already committed to be in Mackay, may not therefore have had to return to Brisbane to come back on the Tuesday for the hearing of this application.
It is certainly understandable, as it appears from the correspondence that if Mr Baker had other commitments in that he was out of town since 31 July and was not scheduled to return to Brisbane until late on 4 August, that would make it difficult to complete an affidavit to be used in these proceedings. However, it is to be noted that the application was served on the plaintiff's solicitors on 7 July with the return date 8 August.
When the matter did come on for hearing before me on 8 August the plaintiff relied upon an affidavit from Mr Baker filed in this Court on 7 August 2000. Mr Baker's affidavit refers to the action having been commenced in 1994 through Craig Stephen Bax who was previously a partner of the firm of Baker Johnson.
Mr Baker says that while the plaintiff came to his firm through Mr Bax the principal of the plaintiff, Dr Marshall Godsall, had looked to Mr Baker to be in charge of the matter and whilst Mr Baker retained a formal interest and certainly during 1994 to 1996 letters had his initials on those letters. Mr Bax nevertheless was effectively in charge of the file.
He says that it has only been on a review now, in light of the application that it became apparent that whilst Mr Bax on occasions gave instructions there were different solicitors and he did not follow through with maintaining momentum of the action. He refers to Mr Bax in 1996 being the subject of the Queensland Law Society disciplinary proceedings which were dealt with by the Solicitors Complaints Tribunal in July 1997 upon which the Queensland Law Society and the Attorney General for the State of Queensland appealed in August 1997. He notes that on 12 May 1998 Mr Bax was struck off the role of solicitors by the Queensland Court of Appeal.
While Mr Bax was provided dispensation in order to remain with the firm from the date of the striking off with a view to assisting the handing over of files upon his departure, Mr Baker has noted Mr Bax made virtually no notes on files as to the current status and it ultimately became clear that Mr Bax rarely kept proper file notes of attendances which apart from any costs implications in due course also made it extremely difficult to assess what occurred on files.
He says that upon Mr Bax's file departure two already busy senior associates attended to Mr Bax's files and it was only then it was discovered that his entire practice of literally many hundreds of files was in complete disarray and there was no re-submit or bring up system in place. Urgent demands by increasingly frustrated clients meant that unfortunately matters were dealt with on a reactive rather than a proactive basis. Compounding that difficulty Mr Bax appeared to have failed to close inactive files and a very large number of hours were engaged in perusing files which in fact were completed and should have been put away in the months after his departure. In the months following Mr Bax's departure there were numerous client complaints which generated into complaints directed at the Queensland Law Society.
Mr Baker states that reactive and urgent activity was often required to ensure that actions did not become barred pursuant to Rule 389 of the Uniform Civil Procedure Rules. He says the difficulties with Mr Bax's practice were ongoing to the extent that even at the date of swearing his affidavit there are files which are causing difficulty as a result of his inaction.
He states the firm has suffered grave embarrassment, expended substantial amounts of money in addressing Mr Bax's mismanagement and lost considerable good will. He states that in this matter the case only became reactivated upon inquiry from the plaintiff in mid-1999. He states that although he had some initial interest in the file, the file was handled by Mr Bax and although he wrote some letters on the file effectively from 1996 onwards Mr Bax had the file and essentially forgot about it. Immediately upon a cursory review of the file a solicitor in the employ of the firm, Eugene Henry White, attended to issuing a notice of intention to proceed and procured a junior solicitor to undertake a review of the file and that review showed that no full statement had been taken from the client by Mr Bax.
Because of the urgency that had arisen lengthy telephone statements had to be taken from Dr Godsall. Over the last week of November 2000, I take that to be an error and is meant to be 1999, he states that the statement was finalised in early 2000 and that Dr Godsall now wished that Mr Baker take an active role with respect to the conduct of the file.
He then deals with how steps were taken to bring the matter forward to trial. However because of circumstances within the firm steps could not be taken until they were taken, that is, one solicitor who had prepared the plaintiff's list of documents had left the employ of Baker Johnson. Mr White who had been assisting Mr Baker in the conduct of the matter went on extended leave. Upon Mr Bax's departure from the firm Mr Baker took over responsibility for administering the Gold Coast office which had hitherto been in Mr Bax's domain. Mr Baker now spends four days a week at the Gold Coast office. Some correspondence from the defendants' solicitors in March 2000 did not reach the file and it appears it ended up at the Gold Coast office.
Further that the plaintiff's file was found in the corner of a room previously utilised by another solicitor which was a room not used by anyone on a fulltime basis and therefore went unnoticed when the correspondence in March was married up with the file. Then on 5 July 2000 Mr White wrote that letter to the defendants' solicitors as to which I have referred to earlier. Mr Baker states that it remains the plaintiff's instructions to proceed with the action notwithstanding what had been delays and the recent ones arising from a regrettable and embarrassing confusion in his office. Mr Baker states that nevertheless the substantive matter involved in these proceedings is legal argument rather that factual disputes and given the process of disclosure is virtually complete but for the production of some documents requested by the plaintiff's solicitors from the defendants the matter is in a position to be set down for trial. He says subject to counsel's advice and evidence it is anticipated that the plaintiff's only witness would be Dr Godsall who is available. He states the plaintiff is willing to have specific directions by way of a timetable for the further conduct of the action up to trial. The plaintiff is prepared to have the action certified as a speedy trial. He refers to advice from the plaintiff's counsel and believes that there are several sittings available for the year 2000 and if the trial would be scheduled in that time the plaintiff is happy to have the matter set down.
During the course of argument when the matter was heard by me on Tuesday 8 August 2000 Mr Hack of counsel in one of his submissions pointed to there not being any evidence from the plaintiff regarding the delays that have occurred and what the plaintiff may have or have not done regarding to progressing the action. I expressed my agreement with Mr Hack that on the evidence before me there was no affidavit from the plaintiff.
With that, Mr Land sought an adjournment of the application. Because of the circumstances of these proceedings and the application, I granted the adjournment but only on the basis that the plaintiff produce any further evidence by 9.30 the following morning. That was done. That evidence was in the form of an affidavit from Dr Godsall. For the record, page 2 of Dr Godsall's affidavit, for which I gave leave, was not sworn in the form intended. That is, some of the paragraphs had been omitted from the affidavit as prepared. I accepted the affidavit with the additional page 2 and have had that placed in the affidavit with what I might describe as the old page 2 behind the new page 2.
I also received as an exhibit, a facsimile transmission from the plaintiff's lawyers to Mr Land dated 9 August 2000 and marked that as Exhibit 1. Dr Godsall's affidavit, which he swears in his capacity as director of the plaintiff and on behalf of his wife who is the other director of the plaintiff, refers to the history of this matter. He states in approximately December 1983, the plaintiff engaged Messrs Smith & Fitzgerald, solicitors of Brisbane. He states this firm had been engaged in relation to partnership disputes between the plaintiff and the defendants.
Then he says in approximately September 1984, the plaintiff repaid the whole of the loan to Building Society Resources. Soon after that repayment, Smith & Fitzgerald were also engaged by the plaintiff to advise whether or not 73.26 per cent of the moneys paid together with costs and other outgoings could be recovered by the plaintiff from the defendants. He states this aspect of the plaintiff's retainer of Smith & Fitzgerald was not handled promptly and by approximately 1986 no advice had been provided in this respect, notwithstanding any inquiries made in relation to the provision of such advice, and as a result and because the plaintiff felt that it was getting nowhere it was decided to terminate the retainer of Smith & Fitzgerald who by that time had become Williams & Williams.
Prior to deciding to terminate the retainer, a recommendation had been made by the plaintiffs' accountants that the plaintiff's contact a Brisbane firm of solicitors, Messrs Crawfords, and in particular, Mr Bax. The recommendation was that he was a smart young solicitor who would be able to progress the matter. Therefore in approximately 1987/1988, Crawfords, and in particular, Mr Bax, was engaged to provide the advice which had earlier been sought from Smith & Fitzgerald. There was some time taken up for the file to be transferred from Smith & Fitzgerald to Crawfords and then in April 1999 (which I take to be 1989) the plaintiff engaged and conferred with Mr Hampson QC in relation to the plaintiff's desire to seek recoupment of what it had paid of 73.26 per cent of the loan costs and outlays from the defendants.
In approximately 1990, although Mr Bax left Crawfords and went to Baker Johnson, the plaintiff continued to retain Crawfords. Dr Godsall states as time unfolded, the plaintiff did not receive any advice or assistance from Crawfords and the plaintiff did not get any response to letters, faxes and phone calls made by the plaintiff (mainly Dr Godsall's wife) endeavouring to find out what was going on.
In approximately 1991, the plaintiff ascertained Mr Bax was now with Baker Johnson. Because of the lack of service that had been provided by Crawfords and because the plaintiff was satisfied with the service that had been provided by Mr Bax, the plaintiff decided to engage Baker Johnson and in particular, Mr Bax. Then followed great difficulty in getting the file from Crawfords to Baker Johnson. Instructions were given to Mr Bax to obtain the file. Crawfords were not releasing the file and this lead to the intervention on the plaintiff's behalf of the Queensland Law Society. This problem then continued until approximately 1992 when Dr Godsall believed the whole of the file was handed over to Baker Johnson.
In 1994 Mr Callinan QC was engaged on behalf of the plaintiff to provide advice in relation to the recoupment of the moneys referred to. Following advice provided by Mr Callinan QC, instructions were given to commence proceedings. Dr Godsall states, “At long last the matter seemed to be under control.” He says that the plaintiff provided to Baker Johnson, and in particular, Mr Bax, whatever assistance he required. His wife flew to Brisbane on at least three to four occasions for the purpose of going to the office of Baker Johnson to assist them to go through boxes of files that were relevant to the action. Dr Godsall also flew down for this purpose on 17 November 1995. Dr & Mrs Godsall's children have been at the university in Brisbane for the last eight years. His wife has flown down at examination times in the middle of the year and in October of each year to be with the children at exam time.
He has been informed by his wife and verily believes that on these occasions she has gone to the office of Baker Johnson to enquire what is going on in relation to the progress of the action. Her report to Dr Godsall has been that she was invariably told with words to the effect that everything was under control, that it was a complex case and the file was voluminous and it took time to work through them. Mrs Godsall was led to believe that Mr Bax and other persons who came to handle the file were on top of it and were steadily progressing through it.
Dr Godsall states that while the file has been with Baker Johnson, a number of persons have handled the file. These persons included Mr Baker, Mr Bax. The plaintiff was not aware of the problems concerning Mr Bax and only became aware when they read about it in the newspaper. Further, Dr Godsall states that he received a letter from Messrs Berck & Associates, solicitors on or about 23 January 1998. When this letter was received this was the first time the plaintiff was aware that the file handed over by Crawfords to Baker Johnson was not complete and the plaintiff gave instructions to Berck & Associates for the outstanding documents to be provided to Baker Johnson.
He states that in spite of the slow progress with Baker Johnson the plaintiff was loath to take the file elsewhere as that was the third firm of solicitors involved and the plaintiff was not certain from its previous experience if it could find any solicitor who could handle the matter more expeditiously.
Further, the plaintiff was always led to believe certainly up until more recent times that the solicitors were on top of the file and it was very complex and they just had to be patient or words to that effect. He states that the plaintiff has always been anxious to bring and prosecute the proceedings. The plaintiff has done whatever it has been asked to do in relation to providing assistance and resources.
Then followed the great difficulty of getting the file from Crawfords to Baker Johnson. He refers to those problems and those problems continued until approximately 1992 when he believed the whole file was handed over. He wrote a letter to Baker Johnson dated 20 October 1999. He refers to the delays in this letter and the inquiries that he and his wife had made about the progress of the matter. Apparently an implication had been made by Baker Johnson to Dr Godsall that sometimes clients are not enthusiastic about their cases. Dr Godsall took issue with that pointing out that it was Baker Johnson that had to advise how enthusiastic it is, and if not, why not? He expresses his disquiet and concerns. He claims that from 1984 they have been the recipients of inadequate, inappropriate and erroneous legal advice. He notes that the matter has been dragged on by Mr Baker's firm for more than five years.
Dr Godsall states that following that letter detailed telephone instructions and statements were provided by himself to Baker Johnson and these were completed in about February 2000. These statements were provided by hours of teleconference. He states the plaintiff wishes to proceed with this action and that has always been its wish. The plaintiff had been unaware of what was going on and in particular the problems concerning Mr Bax. He states, “This is the case notwithstanding many attendances both personally, telephone and fax made on the various solicitors in Baker Johnson who have handled the matter.”
Exhibit 1 contains a list of notes of entries to be found in the file. Certainly on the face of it it shows that from time to time some aspects of progressing the action have taken place. After the plaint was filed and there was confirmation the plaint had been filed by the agents, there was a telephone attendance upon Mrs Godsall on 1 February 1995, “demanding a quick report re conduct of action”.
Thereafter one can see entries in 1995 of contact between the firm and Mrs Godsall and bearing out that other persons were handling the file and inquiries being made by those persons to Dr Godsall and Mrs Godsall.
There is another entry on 30 May 1996 regarding a telephone message from Dr Godsall which notes that he is quite anxious as well as agitated in that although he has phoned, left messages to have his call returned, he has not spoken to anyone about it since December. There is also a reference to Mrs Godsall chasing a letter as promised by the firm. On 9 December 1998 there is a phone message apparently from Mrs Godsall stating, “She has not heard from us since March 1998. She wants to know what is going on.” Similar sentiments are expressed in other entries.
The principles to be applied on this application have recently been reviewed by the Court of Appeal in Tyler v. Custom Credit [2000] QCA 178. In the judgment of Atkinson J, with whom McMurdo P and McPherson JA agreed, her Honour stated that when the Court is considering whether or not to dismiss an action for want of prosecution, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed.
Her Honour then sets out those factors. Her Honour states in the judgment in paragraph 2:
“The Court's discretion is however, not fettered by rigid rules but should take into account all of the relevant considerations of the particular case including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.”
Her Honour also noted in paragraph 3:
“Unnecessary delay in proceedings have a tendency to bring the legal system into disrepute and to decrease the chance of there being a fair and just result”.
The onus is on the applicant for striking out the plaintiff's action for want of prosecution to show that the matter should be struck out. See Cooper v. Hopgood & Ganim (1999) 2 Queensland Reports 113 at 121.
The Court must be satisfied that the continuation of proceedings would not involve injustice or unfairness to one of the parties by reason of delay, per Atkinson J page 4. Mr Justice Chesterman in Cummings and Anor v. Davis and Anor (2000) QSC 158 said regarding the approach on an application of this kind:
“The decision is to be made after a process in which the factors relevant to the particular case have been identified and where they point in different directions balanced.”
I also consider it relevant on this application to bear in mind the observations of McHugh J in Brisbane South Regional Health Authority v. Taylor (1996) 186 CLR 541 at 551 and 552 where his Honour deals with the impact of delay and observed that where there is delay the whole quality of justice deteriorates. He also made the observation regarding prejudice that may exist without parties or anybody else realising that exists and states, “What has been forgotten can rarely be shown”.
He also observed that the longer the delay in commencing proceedings the more likely it is that the case will be decided on less evidence than was available to the parties at the time that cause of action arose.
Therefore, dealing with the factors identified by the Court of Appeal in turn.
Firstly, how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation commenced. The most recent event in the plaint seems to be the payment to Building Society Resources in November 1984. There was a delay thereafter of just under 10 years before the action was commenced.
Secondly, how long ago the litigation was commenced. The litigation as I have said was commenced on 3 October 1994, almost six years ago and on my findings on the evidence before me on this application the plaintiff has only just provided incomplete disclosure and has failed to provide further and better particulars required for the defendants to be fully and fairly informed of the allegations being made with respect to the claim for legal costs.
Thirdly, what prospects the plaintiff has of success in the action. I cannot conclude that the plaintiff would not succeed in the action, however, there appears to be a reasonable basis for the defendants to claim there is doubt about the prospects of success. The plaintiff relies on Section 4 of the Mercantile Act.
I was not addressed with authorities dealing with what is meant by a surety. Mr Hack submitted that on its proper construction, the section is limited to a surety, however, in my opinion for the purposes of this application only consider there might be doubt about that. Nevertheless having stated what I have just said in addressing Mr Hack's submission still leaves some doubt about its operation in the circumstances of this case. Although, it was not addressed to me by Mr Hack as a submission when considering this application since I adjourned the matter for my decision in my opinion it still may become an issue in the proceedings whether the agreement alleged by the plaintiff that Plaistow would be responsible for 73.26 per cent of the payment that in any way might vitiate the guarantee provided by the defendants. Again, I express no concluded opinion. I can not come to a concluded opinion.
There is already the question mark raised over the claim for legal costs as to which further and better particulars have not been provided. Finally, I should now address the question of the compromise pleaded by the defendants. I cannot come to a final conclusion on that. However, as I have said, there is a reasonable basis for the defendants to say there is doubt about the prospects of success. Mr Paterson has exhibited telex messages and a consent order made by Justice Demack in proceedings between the parties.
Again on this aspect I have some doubt that the parties have fully particularised the allegations. That is, the defendant relies on an agreement to compromise and says that that compromise is recorded in certain documents.
One of the submissions made by Mr Land was that this is a case where the proceedings are likely to be conducted on documents, therefore, the concern that in a case where oral evidence may form a part or a significant part of the action does not apply in this case.
Mr Hack submitted and I agree with him that if this is simply a documents case then it seems contrary to that that in recent times the plaintiff's solicitors have spent such a considerable time in taking the statement from Dr Godsall. Further, why have no documents relating to the claim for legal costs not been produced to date? Further, why have the further and better particulars not been provided to date?
Mr Baker claims that Dr Godsall would be the only witness. One must question how Dr Godsall will prove the claim regarding legal costs. It may be argued that all he needs to say is that these are the bills received. I doubt that that would be sufficient.
Having stated these matters, I consider it shows there is a reasonable basis for saying there is doubt about the prospects of success of the action. That is not to say the plaintiff would not succeed in the action. I am not deciding that. I am merely pointing out that on the evidence before me, there is a reasonable basis for the defendants to say there is doubt about the prospects of success. One of the telex messages talks in terms of bringing to an end all matters between the parties. Whether that in fact occurred, I cannot decide and would not decide on this application.
Fourthly, whether or not there has been disobedience of Court orders or directions, that does not apply. In fact this is not an application brought pursuant to Rule 280 of the Uniform Civil Procedure Rules. Both parties agreed that there is available the inherent jurisdiction to dismiss the action for want of prosecution if the circumstances warrant my doing so after the balancing exercise I have referred to above.
Fifthly, whether or not the litigation has been characterised by periods of delay. This element is plainly satisfied. Although some things have happened, they could not realistically be said to be progressing the action from time to time. If those things that I have referred to were taken out of it, one would see that from 2 February 1995 to 11 August 1997, there is a period of two and a-half years. From 11 August 1997 to 2 December 1999, a period of two and a-third years, and then from 7 February 2000 to 18 July 2000, a period of five months.
Sixthly, whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant. Mr Hack, quite properly, in his submissions, pointed out that there is a delay by the defendants' solicitors in providing the documents. That was a period of about two months from 2 December 1999 to 7 February 2000. In the overall picture of these proceedings, that is of absolute no consequence other than to acknowledge Mr Hack's preparedness to make that concession.
Otherwise, the delays are entirely attributable to the plaintiff. A submission Mr Land made was that the defendant could have sought to take some action to progress the matter. I do not think that is an answer to the delay that has occurred. The defendants would have been, in my opinion, in the difficult position of seeking to promote an application to dismiss the action for want of prosecution at an earlier stage, that bringing an application at that stage was premature or for one reason or another ought not to have been brought.
It is the plaintiff that wishes to make the claim and it is the plaintiff that has the capacity to progress the claim. However, Mr Land submitted that the delay here is demonstrably the fault of the plaintiff's solicitors. He submitted I should not bring that home against the plaintiff. However, the plaintiff, represented by Dr Godsall, is not an inexperienced plaintiff. Dr Godsall could not be characterised, in my opinion, as inarticulate or lacking in resources. I should note that Mr Land offered on behalf of Dr Godsall, his undertaking on behalf of the plaintiff to meet any costs of the action. He submitted that was a factor I should take into account and I do take into account.
However, Dr Godsall showed he was prepared to terminate the retainer of solicitors in the early 1980's. He also was prepared to terminate the retainer of another firm of solicitors and move to where he thought the plaintiff's interests were best served. I can concede it is understandable that going through three firms of solicitors, a lay person could make the decision to stay with the solicitors they find themselves with in the circumstances of this matter.
However, I do not accept that concession is an acceptable explanation on this application for the file being left with Baker Johnson. That is because the length of time that has transpired since 1984. If Dr Godsall was desirous of progressing the matter I do not accept he would have left the file with Baker Johnson for as long has he has.
Further, the difficulty in this matter is that the solicitors that Dr Godsall has chosen to stay with have not been prepared to accept that disclosure of documents is incomplete or provide a satisfactory explanation regarding that aspect of the matter. Further, they have not been prepared to accept that further and better particulars, that are proper to give, have not been given and should be given. It may be that Dr Godsall and his wife are victims of the lawyers that they have engaged.
However, the defendants also are victims in that context. I should hasten to say that I acknowledge the evidence before me of Dr Godsall's frustration in his contact with the solicitors. However, in the circumstances of this matter, in my opinion, the responsibility must rest with Dr Godsall. They have been his solicitors. They are the solicitors who assert to me on this application, that there is very little else to be done in this matter and the matter can be listed for a trial. If the proceedings remain with those solicitors, the only conclusion I can draw is that it is more likely than not that the litigation, if it continues, will suffer from more of the same delay and disputation about interlocutory matters.
It may also be that the position adopted by the plaintiff's solicitors regarding disclosure of documents and the further and better particulars, simply implies that the plaintiff is unable, because of the passage of time, to provide the documents and the further and better particulars. While this application has been on foot since it was served on the plaintiff's solicitors on 7 July 2000, up until even this morning, there has been no attempt to address these issues.
In my opinion if the plaintiff is ready for a trial as Mr Baker claims it is, then in my opinion the documents and further and better particulars could have been provided to the defendants. That has not been done. If the documents and the particulars cannot be provided, perhaps Mr Baker should tell Dr Godsall that very thing about the plaintiff's case.
It would be unfair in my opinion to the defendants to expect that they must go to trial with these aspects outstanding. It is doubtful those outstanding aspects can be addressed as they have not been addressed to date. I also do not accept that this is a matter that is limited to documents for the reasons I have mentioned earlier.
Seventhly whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity. Neither of these matters has been put forward by the plaintiff as the cause of the delay.
Eighthly whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim. The claim undoubtedly would now be statute barred.
Ninthly how far the litigation has progressed. Whilst the pleadings have closed as I have said on the findings I make the plaintiff's disclosure is incomplete and the plaintiff is yet to provide proper particulars of its claim for legal costs.
Again I acknowledge Dr Godsall's evidence which may provide an explanation that part of the file had been apparently retained by Crawfords and only recently sent on recently in 1998. Further the file has been sitting in a room unused and that various solicitors have been involved in handling the file.
I must say that on the evidence before me that there is a question to be asked here. Why is it to be expected if this action is not dismissed for want of prosecution that Dr Godsall's affairs will be promoted over and above that of any other client in Mr Baker's office? What incentive is there to do so? One incentive might to be to avoid a claim from Dr Godsall if the action were dismissed for want of prosecution. I can understand that Dr Godsall would be concerned that if the action were dismissed for want of prosecution what would he do next? Having been through what he has been through would he take on again litigation?
While I am concerned about these matters I must also be concerned about the defendants' position. While it may be because of what has happened documents are not available and particulars can not be provided that must rest in terms of responsibility with the plaintiff. That can not be a reason to force upon the defendants having to defend an action in those circumstances.
While Mr Baker's evidence shows that fault rests with his firm for the most part at the hands of Mr Box (whom it should be said has not been heard for his explanation), nevertheless I do not accept that fault is solely that of the solicitors. It may be that Dr Godsall has been too patient and it is understanding he would be reluctant to go elsewhere. However those choices were available and having exercised those choices the responsibility in the end must, in my opinion, remain with the plaintiff.
Eleventhly whether there is a satisfactory explanation for the delay. There is an explanation however I do not accept that it is a satisfactory explanation or a proper explanation in the circumstances. The evidence reflects poorly on the firms of solicitors handling the plaintiff's affairs that does not in my opinion turn the balance in the plaintiff's favour. As I have said the plaintiff has some responsibility and even at the date of this application, the hearing of this application has exercised its choice. I can appreciate that Dr Godsall would not in the circumstances he has found himself in take pre-emptory action while this application is being heard, however I can not assume he would change solicitors.
What I see is that even if he did change solicitors because of those outstanding interlocutory matters I have mentioned more of the same would continue to be the way this litigation would progress.
Finally whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial. I have mentioned the particulars and the incomplete disclosure. Certainly it has not been suggested by the defendants that there are missing witnesses, however since the payment made upon which the plaintiff's claim arose there has been 16 years characterised by extraordinary delays and even as I give these reasons there is incomplete disclosure, further and better particulars are outstanding, there is an assertion that the matter would be based on just documents and that the plaintiff through Dr Godsall would provide an undertaking to meet the costs of the plaintiff.
I do not accept the submission of Mr Land that the matter is so close to a trial that it would be unjust if I were to accede to the application for the reasons I have mentioned. I am concerned that the defendants have been placed in a position now that they may not know, what it is they do not know, they may be unable to provide instructions regarding the issues, and in that respect I have a doubt that the issues have been defined in these proceedings and that is an observation not only with respect to the plaintiff's claim but also the defendants' defence.
Therefore, when I balance all these factors in the exercise of my discretion I consider that the action must be dismissed for want of prosecution. If the action were to continue, it is more likely than not that there would be more delay and more disputation about interlocutory matters. There is doubt on a reasonable basis regarding the prospects of success of the action. While the actions of the firms of solicitors handling the matter from time to time have not been in the best interests of the plaintiff I do not accept that the plaintiff is blameless because the responsibility for what has occurred through the conduct of those firms of solicitors must remain the plaintiff's responsibility.
I am concerned that through the delay, as in my opinion there will be to some extent oral evidence at a trial, there is likely to be prejudice to the defendants. In my opinion after this length of time the defendants must be entitled to get on with their lives and not have this litigation hanging over their heads. I am satisfied the defendants have satisfied the onus upon them and have showed that the matter must be dismissed for want of prosecution.
If the matter proceeded in my opinion it would involve injustice and unfairness to the defendants by reason of the delays that have occurred and the circumstances as they exist at the present time.
Therefore the order is that the action is dismissed for want of prosecution.
...
HIS HONOUR: On the question of costs, it was submitted by Mr Hack in writing that I award costs on an indemnity basis and his reasons are set out in Exhibit 3. I have not given a judgment in the action. This has been an application to have the action dismissed for want of prosecution therefore I do not consider the offer to settle provisions apply. Alternatively, I do not consider that there is any particular feature of the action or the application that justifies indemnity costs and therefore decline to order costs beyond an indemnity basis. Therefore the order with respect to costs will be that I order the plaintiff to pay the defendant's costs of the action and this application, including reserved cost, to be assessed on the standard basis.
If on 8 August, when this matter was first heard, I did not at that point in time when adjourning the proceedings to the following day, order that the costs of the adjournment be reserved, I do so now with the intent that those reserved costs be included in my order for costs and to make absolutely sure I will include at the end of my order these words, “Including the costs thrown away by the adjournment on 8 August 2000”, hoping that that covers all outstanding aspects then.
THE COURT ADJOURNED AT 11.30 A.M.