Maldone Pty Ltd v McMahon[2000] QDC 425

CIVIL JURISDICTION

JUDGE McGILL SC

and

BRISBANE

DATE 13/10/2000

ORDER

HIS HONOUR: This is an application for leave to proceed in circumstances where the plaintiff has failed to take any step in the action since December 1995 in the strict sense when there was mutual inspection although subsequently a writ of non-party discovery was issued on behalf of the plaintiff and steps were taken in relation to the taxation of costs pursuant to an order made by the present Chief Judge on 11 August 1995.

The director, or one of the directors of the plaintiff company, said that since May 1996 the plaintiff has not taken any steps in the action for two reasons. Firstly, the plaintiff learned that the defendants were no longer residing in Australia and, secondly, that the plaintiff did not have the funds to proceed.

In 1995 the application in which Her Honour made the order for costs was an application for security for costs which was ultimately not persisted with in view of evidence that the plaintiff company had a significant amount of money in its bank account at that time. Evidently by May 1996 that situation had changed.

Mr Koning, having waited almost four and a half years, decided in August that they have now the funds to proceed with the action and intends to take a new step in the action.

The action is a commercial dispute, the plaintiff suing on an oral agreement alleged to have been made between a partnership consisting of the plaintiff and another company and the defendants in August 1993.

The agreement was for the plaintiff and the other company to perform certain services in the form of soliciting the conversion of mobile phone customers from Telecom services to Optus services.

The defence disputes that the agreement was made with the defendants and asserts that any agreement was made with a company or in the alternative that the agreements were not made with the plaintiff company but with individuals and in the further alternative that any oral agreement was subject to the agreement being formalised in writing.

The plaintiff alleges that various work was done and that under the agreement, the terms of which seem to be markedly complex for an oral agreement, there was some ongoing obligation to pay in respect of services which were converted from Telecom services to Optus services.

The exercise would involve apparently a minute examination of the subsequent history of each of the connections because it seems that the entitlement to receive commission in respect of ongoing revenue was dependent upon the telephone services not being subsequently disconnected.

It would be necessary to examine whether some thousands of these telephone connections had subsequently been disconnected which I suspect would have been a formidable task even if the action had proceeded to trial fairly promptly in 1995.

The matter is further complicated by the fact that in April 1994 the partnership between the plaintiff and another company was dissolved. It is alleged that it was agreed that any ongoing income would be paid, one-half to the plaintiff and the other half to the other company. It is not identified in the plaint who were parties to that agreement, and in particular whether the defendants were parties to that agreement.

The defendants also assert that the agreement was determined because of misconduct and improper practice on the part of the plaintiff or the plaintiff's director. Particulars of that improper conduct were given in December 1995. The whole thing strikes me as quite complicated.

The defendants say that they have never been out of Australia and it is not suggested that they are not available to give evidence. They refer to the fact that they had lost touch with a particular individual who is referred to in their further and better particulars as having been a party to the conversation but that individual has now been located by the plaintiff's solicitor. Whether he in fact has good recollection of the relevant conversations after seven years may be another matter.

There is no more specific evidence of prejudice as a result of the passage of time but, given the nature of the issues in dispute in the action as it appears from the pleadings, I think that it would be inevitable that the parties would suffer prejudice as a result of the passage of time in circumstances where an important issue is going to be as to the terms of an oral agreement apparently made in August 1993.

I have been referred to a number of cases where delays as long and longer than this have arisen but leave to proceed has been granted.

The common feature of all, or at least most, of these cases is that they involve action for damages for personal injury.

Although this is not a matter which has ever been explored in any of the authoritative judgments, it is an obvious observation that Courts seem to be much more willing to give leave to proceed in cases involving a claim for damages for personal injury than in other cases.

Even in relation to personal injury claims there has been some change over the years. It seems to me that these days there has been a change in favour of requiring a greater degree of promptness and efficiency in terms of disposing of litigation without undue delay.

This is reflected to some extent in some of the more recent decisions of the Court of Appeal and in the uniform civil procedure rules which have now been in operation for over 15 months.

One of the provisions of those rules is rule 5(3) which provides that in a proceeding in a Court a party impliedly undertakes to the Court and to the other parties to proceed in an expeditious way. It is not what the plaintiff has done in this case.

Another aspect of the rules which manifested this change in approach was that the period after which leave to proceed was required was reduced under the rules from three years to two years. That change became operative in July this year although the amendment by which that change was made was present in the rules from the time they were introduced in July last year. There was therefore ample notice of the change in approach.

The basic principle, that it is necessary for an applicant for leave to show good reason for excepting the particular proceedings from a general prohibition on the taking of a fresh step when the period has elapsed, has not, I think, changed as a result of those alterations and that the basic rule identified in Dempsey v. Dorber [1990] 1 QdR 418 remains good law.

It seems to me, however, that the other changes require a greater degree of expedition in proceeding with actions and that it is appropriate that the Courts be less willing than in the past to grant leave to proceed when there has been substantial delay essentially for the reason that the plaintiff has chosen not to proceed with the action, no doubt for reasons which from the plaintiff's point of view were good ones.

An attitude that the plaintiff can dictate the pace of litigation, can simply forget about the action or at least leave the action lying dormant for years and years and then revive it after such a lapse because it now suits the plaintiff to proceed with the action, is in my view not one which should be tolerated any further, particularly in an action of this nature.

In my opinion the plaintiff has not shown good reason for exempting this action from the general prohibition contained in the rules and the plaintiff's application is dismissed.

It follows that it is appropriate, to give effect to the defendants' application, that the action be dismissed for want of prosecution.

I will order the plaintiff to pay the defendants' costs of the action and the plaintiff's application to be assessed. There should not have been any costs of the defendants' application; it was filed late so I will not make any separate order in respect of that.