DISTRICT COURT OF QUEENSLAND

1. [1]
   I will deal with the applications in the same order in which they were argued before me on Thursday, 11 May 2000. The first application, filed on behalf of the plaintiff on 27 April 2000, seeks orders that a stay on a notice of non-party disclosure issued to Messrs Macrossan & Amiet Solicitors be lifted.

2. [2]
   The second application was filed on 28 March 2000. The defendants applied for orders, pursuant to Rule 293 UPCR, that the plaintiff's claim be dismissed. The ground on which the application is based is that a notice of termination, dated 18 February 2000, was a valid notice terminating the contract and therefore the plaintiff's claim discloses no reasonable cause of action and/or the defendants have a complete defence to the proceedings.

3. [3]
   The third application is also made on behalf of the plaintiff. On 8 May 2000 the plaintiff applied (pursuant to Rule 223 UCPR) for orders for further disclosure of documents set out in the defendants' list of documents, in respect of which a claim for legal professional privilege is maintained. This application also seeks an order that the defendants' application for summary judgment be adjourned to a date to be fixed.

BACKGROUND

4. [4]
   The plaintiff's claim is for specific performance of a contract for sale and purchase of Lot 89, Nautilus Parade, Royal Sands Estate, Bucasia for $49,750 and for damages. The contract is dated 19 October 1999, and, for present purposes, is subject to a special condition clause 8 which provides:

ΑThis contract is subject to the purchasers entering into and executing an unconditional contract of sale as vendors with respect to the dwelling-house situated at 3 James Cook Drive, Nindaroo on or before the 21/11/99 and settlement of that sales (sic) being completed by a date no later than the 13/12/99.  This sale shall be settled contemporaneously with the settlement of the purchasers' own property sale.  Should the purchasers not secure a contract as aforesaid, the purchasers shall forthwith give notice in writing thereof the vendor (sic) and this contract shall be at an end and all moneys paid by the purchasers shall be refunded without deduction.

5. [5]
   The plaintiff's material establishes that various extensions were sought and granted and, for present purposes, I will proceed on the basis that a final extension, to the 18 February 2000, was agreed to for settlement of this contract. The defendants were initially represented by Statewide Conveyancing Shop which is apparently a division of McKays, Solicitors of Mackay. On or about 10 February 2000, Macrossan & Amiet were retained to act for the defendants in lieu of Statewide. The defendants allege in their defence that a number of extensions granted on their behalf by Statewide were given without their authority.

6. [6]
   On 21 January 2000, the defendants entered into a contract for the sale of their house property at 3 James Cook Drive, Nindaroo to Mr and Mrs Rackemann. The Rackemanns were represented by Beckey Knight and Elliott, Solicitors of Mackay. The contract was subject to a number of conditions. It is accepted by all parties that by 31 January 2000, all but one of those conditions had been satisfied. The condition that is now said to have remained unsatisfied as at 18 February 2000 is in the following terms:

ΑThis contract is subject to and conditional upon the seller being permitted to rent the subject property for a period of six months from the settlement date.  The seller agrees to enter into a lease agreement with the rental of $180 per week.≅

7. [7]
   On 7 February 2000, Statewide wrote to S R Wallace & Wallace, Solicitors for the plaintiff, seeking, in effect, to substitute a contract for the purchase of Lot 86 for the contract for the purchase of Lot 89. This request was refused. The letter from Statewide does not raise any legal concerns about the contract, nor does it suggest that the contract was no longer in existence. Quite to the contrary, the letter could only be read as assuming the existence of a valid enforceable contract at that time. This request was refused.

8. [8]
   On 10 Febraury 2000, Macrossan & Amiet wrote to S R Wallace & Wallace. After referring to special condition 8 of the contract, the solicitors said:

“We note that correspondence between your office and the then solicitors for the buyer extended the date for entering of the contract a special condition 8 to 27 January 2000.  Time was to remain of the essence. As at 27 January 2000 (the agreed date for extension) our clients have not entered into an unconditional contract of sale as required by special condition 8.  Accordingly, as time was of the essence and the contract precondition was not met the contract is now finished.  We note that no extension of the agreed date of 27 January 2000 for special condition 8 was sought within time nor was any given.

Our client now formally terminates the contract of purchase of Lot 89, Nautilus Parade because of the non-satisfaction of special condition 8 as extended to 27 January 2000.

9. [9]
   The material discloses that on 27 January 2000, Statewide, with the ostensible authority of the defendants, wrote to S R Wallace & Wallace in these terms:

“We confirm our clients have entered into a conditional contract for the sale of their existing property.  The settlement date on that contract is 18 February 2000.  Accordingly, presuming our clients' sale proceeds to completion, to enable both contracts to complete on the same day we are instructed to request an extension of time to settlement up to Friday 18 February 2000 on the basis time is to continue to remain the essence of the contract.”

10. [10]
    Paragraph 6(c) of the defendant's defence acknowledges that the plaintiff agreed to an extension of time to complete to 18 February 2000 by a letter dated 28 January 2000.

11. [11]
    On 17 February 2000 S R Wallace & Wallace advised that the plaintiff did not accept the notice of termination contained in the letter from Macrossan & Amiet, dated 10 February 2000 and called for transfer documents, advising that their client was ready, willing and able to settle on 18 February 2000. On the same day Macrossan & Amiet wrote disputing that the time for settlement had been extended and requesting proof of such an extension.

12. [12]
    As I have noted, the defendants now say that the letter from Statewide, dated 27 January 2000, was written without their authority. The amended defence contends that the requests for extension of time made after 29 November 1999 were made without the authority of the defendants, and, therefore, as clause 8 had not been satisfied on or before 29 November 1999, the contract came to an end on that date. However, it is apparent that thereafter the defendants, through their agent and/or solicitor Statewide, appeared to act so as to affirm the existence of a valid contract; and a resolution of this issue as to the absence of authority to act may have important implications, particularly for credit, if there is a trial.

13. [13]
    The evidence discloses that on 18 February 2000, Macrossan & Amiet sought and were granted an extension of time to settle the contract of the sale to the Rackemanns until Monday 21 February 2000. This evidence comes from Kerry Ann Berroen, a legal secretary with Becky, Knight and Elliott, solicitors for Mr and Mrs Rackemann. She was cross-examined by Mr Hack on her affidavit, sworn 5 May 2000, and conceded that she was not in a position to say whether or not the Αrental condition≅ had been satisfied by 18 February 2000.  This was because she had left the negotiation of the lease agreement to be sorted out by the real estate agent directly with the defendants.  The female defendant swore an affidavit for the purposes of the defendants’ application, supported by an affidavit of Susan Davis of Mackay Rentals.  Neither deponent was cross-examined by Mr Land on behalf of the plaintiff.  Ms Davis acted as agent for the Rackemanns.  She states that at 4.30 p.m. on 18 February 2000, Mrs Durelli indicated (and I infer for the first time) that she wished to have a specific requirement that they (the defendants) have the right to terminate the lease agreement from the Rackemanns on the giving of two weeks notice rather than the usual six months notice contained in the standard form of lease agreement.  Not surprisingly, Ms Davis needed time to obtain instructions from the Rackemanns.  This could not be done until Monday, when the instructions were obtained and the lease agreement signed.  It can be inferred that this was the reason for Macrossan & Amiet requesting an extension of time until 21 February 2000, on 18 February 2000.  The letter, Exhibit 1, from Becky, Knight and Elliott, dated 21 February 2000, to Mackay Rentals does suggest by implication that the contract was in fact settled prior to the signing of the lease agreement.

14. [14]
    On 18 February 2000, Macrossan & Amiet, on behalf of the defendants, sent another letter to the plaintiff's solicitors purporting to again terminate the contract but this time on the basis that the contract with the Rackemanns had not been completed on 18 February 2000.

15. [15]
    On 24 February 2000 the plaintiff commenced these proceedings. The plaintiff's statement of claim alleged, inter alia, that the defendants had ‘deliberately delayed’ settlement of the sale to the Rackemanns. This allegation was abandoned by amendments to the pleading on 10 April 2000, pursuant to rule 378 UCPR. The defendants filed a notice of intention to defend on 14 April 2000 taking issue with this allegation, this pleading was then amended as a response to the plaintiff's amendments. A reply delivered during the course of the hearing on 11 May 2000 again raises this issue. On 16 May 2000, Mr Land provided to me a copy of an Amended Reply in the form required by the Rules.

16. [16]
    The plaintiff sought summary judgment on its claim but abandoned its application on receipt of the notice to defend and the application was dismissed on 30 March 2000.

17. [17]
    On 5 April 2000, the solicitors for the plaintiff issued a notice of non-party disclosure to Macrossan & Amiet seeking disclosure of their file relating to the Durelli sale to the Rackemanns. Macrossan & Amiet, by letter dated 14 April 2000, under the hand of the senior partner of that firm, Mr Ghusn, raised objections to the notice. Relevantly Mr Ghusn advised the plaintiff's solicitors that in the normal course of events the defendants had an obligation to make disclosure after the pleadings had closed. He observed that at that stage neither party had made disclosure. In fact the time for pleadings had not then expired.

18. [18]
    Mr Ghusn also raised the requirements of rule 243(1)(c) of the Uniform Civil Procedure Rules, which is in these terms;

‘243(1) A notice of non-party disclosure must –

...

(c) Include a certificate signed by the applicant's solicitor ...

Stating that there is not available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document; ...’

As Mr Ghusn noted, the plaintiff's solicitors had so certified on the notice, pursuant to rule 243(1)(c), that there was not available to the requesting party another reasonably simple and inexpensive way of proving the matter sought to be proved by the documents sought by the notice.

19. [19]
    On 19 April 2000, pursuant to rule 245(4) UCPR, Macrossan & Amiet objected to the production of the documents sought relying on the above grounds and that the documents were subject to a claim of legal professional privilege.

Pursuant to rule 247 UCPR, service of the objection constitutes a stay of the notice, subject to challenge by a requesting party.

The plaintiffs thereupon gave voluntary disclosure, and for present purposes I accept that the list of documents filed on the 18 April 2000 was not delivered to the defendant's solicitors until or about the 28 April 2000.  There appears to be good reasons for this, not the least of which being the intervention of an extended Easter public holiday period.

THE APPLICATIONS

1. Application for non-party disclosure

20. [20]
    This application can be disposed of quickly. On the 11 May 2000, I formally dismissed the plaintiff's application on the basis that I would publish reasons by the end of this circuit. During the submissions relating to costs which followed, Mr McMeekin, on behalf of Macrossan & Amiet, sought indemnity costs pursuant to rule 704 UCPR and I allowed Mr Land until Tuesday, the 16 May 2000 to make further written submissions on this point only. He did not take this opportunity.

21. [21]
    The application was ill-conceived and inappropriate. The litigation has been on foot since the 24 February 2000. Before filing the application, the plaintiff solicitors knew that legal professional privilege would be claimed and they must have known that the privilege is that of the client not the solicitor. They also must have known that in due course there would be disclosure between the parties, and that the defendants were obliged to disclose all relevant documents pursuant to Rule 211 UCPR. Prior to the issue and service of the notice of non-party disclosure, there had been no notice at all by the plaintiff's solicitors to Macrossan & Amiet. I agree with Mr Ghusn that it is an inappropriate course to adopt in proceedings in which the solicitors act for a party to those proceedings. Rule 242(2) UCPR is in clear terms:

1. “(2)
   The applicant may not require production of a document if there is available to the applicant another reasonably simple and inexpensive way of proving the matter sought to be proved by the document.”

The importance of this rule is re-inforced by the requirement contained in rule 243(1)(c) of the Uniform Civil Procedure Rules, that the notice must include a certificate signed by the applicant's solicitors stating that such another way is not available.  This was done by the plaintiff's solicitors in relation to this notice.

22. [22]
    The good sense and utility of rule 242(2) is demonstrated by the fact that the very issue raised by the plaintiff's further application, filed less than two weeks later on 8 May 2000, that is, a disputed claim of privilege, is one of the main bases for the objection raised in the notice of objection delivered by Macrossan & Amiet. At the very least, upon receipt of the list of documents voluntarily provided on the 28 April 2000 by the defendant's solicitors, the plaintiff's solicitors should have informed Macrossan & Amiet forthwith that the application would not proceed. Mr Land fairly conceded that this should have been done and it was not. In any event, all of these issues were clearly raised by Mr Ghusn in his letter to Messrs S R Wallace & Wallace, dated the 14 April 2000. In that letter he made it perfectly clear that the firm regarded the matter very seriously and would brief senior counsel to settle the objection and represent the firm. This was re-affirmed in Mr Ghusn's letter, dated the 18 April 2000, in which he advised that Mr McMeekin SC had been briefed.

23. [23]
    For these reasons the application is dismissed. As I have noted it should never have been made. I accede to the submission made by Mr McMeekin SC and I will order, pursuant to rule 704(1) UCPR, that the plaintiff applicant pay the costs of Macrossan & Amiet of and incidental to the application filed 27 April 2000 on an indemnity basis, and I certify for senior counsel if that is necessary.

2. Application for further disclosure.

24. [24]
    In the list of documents delivered the 28 April 2000, the defendants claim privilege in relation to a number documents set out in part 2 of the list of documents. A large number of documents from the file the subject of the first application were disclosed and made available for inspection. The applicant seeks to dispute the claim of privilege in relation to documents marked items 1 to 14, 41, 49, 50, 52 and 68 to 89 inclusive. I think it is necessary to reproduce verbatim in my reasons an affidavit sworn by Mr David O'Connell who is the solicitor who has carriage of the action on behalf of the defendant respondents. Mr O'Connell's affidavit was sworn 11 May 2000 and filed by leave at the start of the hearing. I take this unusual course because Mr O'Connell sets out succinctly a description of each document and the basis for the claim of privilege in each case. I take this course also because Mr Land has strongly urged me to examine the documents myself and to make up my own mind, rather than accepting Mr O'Connell's description and the basis of the claim in each case. This would be a serious step to take with potentially significant implications for the solicitors' branch of the profession, particularly as Mr O'Connell was not challenged in any way. He was in Court throughout the hearing and was not required for cross-examination. His affidavit is in the following terms:

“I, DAVID JOHN O'CONNELL of c/- 55 Gordon Street, Mackay, Queensland states on oath:

1. I am the Solicitor with the conduct of the file for the Defendants.  In respect of the claim for privilege the Defendants claim privilege from disclosure of the documents detailed in Part 2 of the Defendants List of Documents.  I am familiar with the facts giving rise to the Claim.

2. In relation to the plaintiffs challenge (for certain numbered items) the Defendants claim for privilege from disclosure is as follows:-

Document Numbered

P1

This document is a handwritten note to file of instructions from the Defendants.  At the time of the documents creation the female Defendant had informed me that there was a dispute which would lead to litigation, in relation to these parties or the defendants and their former solicitors, in relation to a conveyance the Plaintiff and Defendants were involved in and the dispute was of such gravity that the Defendants were transferring their file from their former Solicitor to this office.

P2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14

These documents are as described in the List of Documents and are related to the claim made for P1.

P41

This is an internal document created by the Solicitors for the Defendants which was created after this litigation had commenced and relates to this litigation.

P49

This is a letter regarding an enquiry to a potential witness in this litigation.

P50 &52

These are telephone notes of a discussion regarding discussions with a potential witness.

P68

This is a diary note of this firm of a telephone discussion with the Defendants which relates to the progress of resolution of the dispute.

P69

This is a file note of this firm of a discussion with the Defendants mortgagee which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P70

This is a file note created by this office and is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P71

This is a file note created by this office and is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P72

This is a document written to the Defendants by this office and is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P73

This is a letter written to the client by this office and is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P74

This is a file note of a telephone discussion by this office and is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P75

This is a file note created of discussions with the client and is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P76

This is a letter written by this office to the client following settlement of the sale to Rackemann and is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P77

This is a letter written by this office to the client.  This is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P78

This is a telephone discussion with the client which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P79

This is a file note written by the Defendants then solicitors and is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P80

This is a letter written by the Defendants then Solicitors which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P81

This is a letter written by the Defendants then Solicitors.  After having considered the claim for privilege and discussing the matter with counsel my instructions are to disclose this document and to the extent necessary the client waives the claim for legal professional privilege to it.  A copy of this document has been forwarded to the Plaintiff's solicitor.

P82

This is a diary note created by the Defendants then Solicitors which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not  have been included in the list of documents.

P83

This is a diary note created by the Defendants then Solicitors which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P84

This is a diary note created by the Defendants former Solicitors which records legal advice given by those solicitors to the client and steps taken by those solicitors consequential to that advice.  On reflection it should not have been included in the list of documents.

P85

This is a diary note created by the Defendants former Solicitors which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P86

This is a diary note created by the Defendants former Solicitors which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P87

This is a diary note created by the Defendants former Solicitors which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P88

This is a diary note created by the Defendants Solicitors which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

P89

This is a ”with compliments” slip created by the Defendants former Solicitors which is not directly relevant to an allegation in issue in the Claim.  On reflection it should not have been included in the list of documents.

All the facts and circumstances above deposed to are within my own knowledge save such as are deposed to from information only and my means of knowledge and sources of information appear on the face of this my Affidavit.

SWORN by DAVID JOHN O'CONNELL on:  11th May, 2000 at Mackay.”

25. [25]
    A number of points need to be made about the affidavit. In relation to documents marked P60-P80, 82, 83, 85-89, Mr O'Connell states that the document is not relevant to an allegation in issue in the claim and it should not have been included. This relates to the plaintiff's amended statement of claim which deleted the allegation of “deliberate delay”. In the reply delivered on 11 May 2000, after Mr O'Connell's affidavit had been sworn, the issue is re-pleaded and, as Mr Hack observed during submissions, this may lead to a re-appraisal of the relevance of those particular documents to that issue. That would make no difference to the conclusion that I have reached in relation to the claim made by the defendants. The claim in relation to document P81 has been withdrawn and a copy of that document has been provided to the applicant solicitors.

26. [26]
    Mr Land accepts that the “dominant purpose” test is now the proper test to apply in determining a claim of legal professional privilege. In Esso Australia Resources Limited v. The Commissioner of Taxation (1999) HCA 67 (21/12/99), a majority of the High Court (Gleeson CJ; Gaundron and Gummow JJ, Callinan J agreeing, but for different reasons) so held, so that the “sole purpose” test approved by the majority of the same Court in Grant v. Downes (1976) 135 CLR 674, is no longer the appropriate test. In their joint judgment the Chief Justice and Gaundron and Gummow JJ quoted with approval from the judgment of Barwick CJ in Grant v. Downes (in what is sometimes erroneously referred to as a dissenting judgment by the Chief Justice) in which his Honour described the “dominant purpose” test in these terms (at 667):

“A document which was produced or bought in to existence either with the dominant purpose of its author, or the person or authority under whose direction, whether particular or general, it was produced or bought in to existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.”

27. [27]
    As I apprehend the submission made by Mr Land on behalf of the applicant, he does not contend that any of the documents in Mr O'Connell's affidavit are not privileged in this sense. Rather he has advanced what can only be described as an ingenious argument, that the documents fall within an accepted exception to the above-stated rule. He further argues that there has been a formal waiver of privilege by reason of the conduct of the defendant. For the first part of his argument he relies on a passage from the judgment of Murphy J in Baker v Campbell (1983) 153 CLR 52 at 86, in which His Honour said (in relation to the exceptions to the rule):

“It is not available if a client seeks legal advice in order to facilitate the commission of a crime or fraud or civil offence (whether the advisor knows or does not know of the unlawful purpose)  (See Reg v Cox & Railton (1884) 14Q.B.D.153; Bullivant v Attorney-General (Vict.)  (1901) A.C.196; R v Smith (1915) 11Cr.App.R.229, at page 228.)”

Murphy J was the only member of that Court to refer to a “civil offence” in this context.  Mr Land specifically disavows any suggestion of fraud or criminality, he contends rather that the notion of a “civil offence” should be construed widely and should capture the conduct of the defendants alleged here.  I agree with Mr Hack that a “civil offence” properly contemplates “offences” which attract pecuniary penalties but  not criminal sanctions, and which are conducted as civil proceedings subject to the appropriate civil standard of proof, such as the proceedings contemplated under statutory schemes such as that included in the Customs Act (1914) (Cth). 

28. [28]
    It has been accepted since 1985 in Australia that the exception is not confined to cases of crime and fraud, but extends to anything that might be described as a “fraud on justice”: per Gibbs CJ in A-G (NT) v Kearney (1985) 158 CLR 500 at 514. It could hardly be said that the defendants' conduct, even taken at its highest and accepting that they deliberately delayed settlement of the sale contract to Rackemanns, could constitute a “fraud on justice” in any sense, and this submission must fail.

29. [29]
    Mr Land's second submission relating to waiver, as I understood it, is advanced on two bases. In relation to the first he relies on the judgment of Derrington J in Wardrope v Dunne (1996) 1 Qd.R.224 at 225 in which his Honour, after referring generally to the authorities on waiver, said:

“They show that when the context of a privileged communication becomes a genuine issue in the action, then the privilege is lost because of the need for full enquiry as to the issue”.

In that case, the legal advice given to the defendants leading up to a negotiated compromise which was then challenged by the defendants on the grounds of fraud, was clearly a legitimate and reasonable issue directly raised in the litigation such that the privilege was deemed to be waived.  Mr Land specifically disavows any suggestion that Macrossan & Amiet were in any way instrumental in giving advice to the defendants that they should act to deliberately delay the settlement to the Rackemanns.  It is difficult to see, therefore, how the contents of such advice and other documents from the solicitor's file could be regarded as the “subject of a legitimate and reasonable issue” in the litigation.  As is noted in the joint judgment of Gleeson CJ, Gaudron and Gummow JJ in Esso (Supra) the search for a test sets out to strike a balance between two competing issues of public policy - the first reflected in the privilege itself, and the second being that in the administration of justice and investigative procedures, there should be unfettered access to relevant information.  In Wardrop v Dunn (Supra) the second aspect of public policy prevailed.  In this case there is simply no basis to reach that conclusion.  The application could be fairly categorised as an attempt to find some other evidence to support the plaintiff's claim of deliberate delay.

30. [30]
    The second aspect of the argument relating to waiver, seeks to rely on the High Court's decision in Attorney General (NT) v Maurice (1986) 161 CLR 475, and particular the judgment of Mason and Brennan JJ (as their Honours then were) at pages 487-8, in which their Honours explained the doctrine of implied or imputed waiver of privilege in the following terms:

“An implied waiver occurs when, by reason of some conduct on the privilege holder's part, it becomes unfair to maintain the privilege.  The holder of the privilege should not be able to abuse it by using it to explain an inaccurate deception of the protected communication”.

Professor Whitmore explains: 

“When this conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not.  He cannot be allowed after disclosing as much as he pleases, to withhold the remainder”. 

31. [31]
    For the same reasons, the conduct imputed to the defendants here falls well short of such behaviour and for these reasons the plaintiff's application for further disclosure must be dismissed. It is not an appropriate case, as no allegation of impropriety is levelled at the plaintiff's solicitors, for me to go behind the unchallenged description of each document given by Mr O'Donnell in his affidavit. To do so would be inappropriate for that reason alone. In the absence of any challenge at all to Mr O'Donnell's propriety there is no reason at all for me to see the documents. The plaintiff/applicant will pay the defendant/respondents costs of and incidental to the application to be agreed or assessed on the standard basis.

3. Defendant’s application for summary judgement

32. [32]
    The defendants apply for summary judgment, pursuant to rule 293 UCPR. The rule is in the following terms:

“293 (1) The defendant may at any time apply to the Court under this part for judgment. 

3. (2)
   Also, the Court may give any judgment or make any other order the Court considers appropriate if satisfied-

1. (a)
   no reasonable cause of action is disclosed; or

2. (b)
   the proceeding is frivolous, vexatious or an abuse of the process of the Court; or

3. (c)
   the defendant has a defence to the proceeding.”

This right was not open to a defendant under the previous rules, although it has been available in other jurisdictions.

33. [33]
    Neither counsel was able to refer me to any decision of the Supreme Court of Queensland in which the application of this rule has been considered since the introduction of the Uniform Civil Procedure Rules. My own Internet search of the Queensland Courts home page and data base discovered a judgment of his Honour Senior Judge Skoien in Campak Constructions Pty Ltd (Applicant/Defendant) v. Ank Pty Limited (Respondent/Plaintiff) (unreported, District Court of Queensland, No 4202 of 1999, 17.12.99) in which the applicant/defendant successfully applied for summary judgment pursuant to Rule 293 UCPR. In that case, the plaintiff had sued for breach of contract and the defendant successfully argued that the relevant action had been settled by a properly executed deed of compromise between the parties. His Honour noted (at page 4) that [the]:

“... application is akin to an action to strike out and so should be exercised with caution and only in a clear case: see General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 1235 at 1289.”

34. [34]
    The learned authors of the Laws of Australia Volume 5.5, at paragraph 43, state (by reference to the power contained in the rules of other jurisdictions):

“In exercising this jurisdiction the Court acts on the same principles as under the inherent jurisdiction to strike out an action or defence.”

See:  Commercial Co of Sydney Ltd v. Cooper (1980) 30 ACTR 11.

35. [35]
    The learned authors of Laws of Australia Civil Procedure Volume 5.2 at para 72, state, by reference to extensive authority, that a Court will only strike out a pleading and enter judgment in the most obvious case and even then with the greatest of care.

36. [36]
    In Campak Constructions (supra) Senior Judge Skoien referred in passing (at page 9 of his judgment) to the need for a plaintiff “to set up a triable issue” in order to resist an application under Rule 293. This is terminology commonly associated with cases dealing with the principles underpinning an application by the plaintiff for summary judgment: see Samuel Alan & Sons Limited v. McCloy (1928) Qd.R 296; Bunning v. Waugh (1933) QWN 7; Commonwealth Dairy Produce Equalisation Committee v. Hansen (1944) Qd.R 95 at 98. It has also been expressed in terms that summary judgment should not be granted unless the Judge is fully persuaded that there is no real question to be tried, that is, no facts have been shown such as would lead to the inference that, at a trial, the defendant might be able to establish a defence to the plaintiff's claim: Australia and New Zealand Banking Group Ltd v. Barry (1992) 2 Qd.R 12.

37. [37]
    The wording of Rule 293 may suggest a slightly lower standard than that applied to a summary judgment application, however, that may be more relevant to cases in which the defendant is relying on a statutory defence such as that provided under the Limitation Act 1974. Given the significant consequences to a plaintiff of a successful application by a defendant under Rule 293, it is appropriate, in my view, to approach this application, as did Senior Judge Skoien in Campak, with caution and care, and the defendant should not succeed unless it is a clear case and unless I am fully persuaded that there is no real question to be tried and that no facts have been shown such as would lead to an inference that, at trial, the plaintiff might be able to establish a claim based on a failure of the defendants to act reasonably and expeditiously to complete the sale contract to the Rackemanns.

38. [38]
    Mr Hack submits that this is such a clear-cut case. He submits that the special condition contained in clause 8, to the effect that the “sale shall be settled contemporaneously with the settlement of the purchasers' own property sale”, was not satisfied by 18 February 2000, as the sale to Rackemanns was not completed on that day. His submission is that it was not completed on that day for the reasons set out in the affidavits of the female defendant and the real estate employee Susan Davis, which meant that the special condition 2 in the contract of sale to the Rackemanns was not satisfied on the 18 February 2000. Neither of these persons were cross-examined on their affidavit. Mr Hack submits that it is a very clear case in which the defendants will certainly succeed, on the basis that the contract was validly terminated by notice given on 18 February 2000, and it is, therefore, incapable of specific performance. He submits, and I accept, that the utility and purpose of Rule 293 is the same as that underpinning the rights given to a plaintiff to apply for summary judgment, that is, to provide a fast track to a (defendant) where there is no proper justification for a trial, and to clear the court lists of matters that would unnecessarily occupy the time of the court and the parties if they proceeded through the defended list. In this submission Mr Hack is correctly adapting the words of Thomas J (as his Honour then was) in Queensland Truss and Frame Pty Ltd v. Grenadier Constructions No 2 Pty Ltd (1992) 2 Qd.R 428 to an application under Rule 293.

39. [39]
    Mr Land submits that the contract of sale contains an implied obligation on the purchasers to do all things reasonable to fulfil their obligations under the contract: see Perri & Anor v. Coolangatta Investments Pty Ltd (1982) 149 CLR 537; and Nominees Pty Ltd v. Burrawong Credits Ltd (1985) 3B.P.R. 9558 at 9567. As I understand Mr Land's submission he argues that by an accumulation of facts and circumstances, the Court could, or at this stage to use the language of the Full Court in ANZ v. Barry (supra) might, draw an inference that the defendants have not fulfilled their obligation by acting deliberately to delay the completion of the sale of their property from 18 February 2000 to 21 February 2000. He argues that a Court may ultimately more readily be able to draw that inference in circumstances in which the defendant does not call evidence to the contrary. The difficulty with that submission is that the defendants have placed evidence before me in the form of affidavits by Mrs Durelli and Susan Davis which presently remain unchallenged. Against that there is an accumulation of facts based on the evidence presently before the Court and which can be stated in summary in brief terms as follows:

1. (a)
   On 7 February 2000, the defendants by their ostensible agent and/or solicitor, were requesting a transfer of the existing contract for the purchase of Lot 89 to a new contract for the purchase of Lot 86, this request was refused by the plaintiff.  At that time there was no suggestion that the earlier contract was not a valid enforceable contract.

2. (b)
   On 10 February 2000, the plaintiff's new solicitors (Macrossan & Amiet) wrote purporting to terminate the contract on the basis that by 27 January 2000 the defendants had not entered into an unconditional contract for the sale of their property, which it was said was the agreed extended date for completion of the contract.  I can infer that Macrossan & Amiet were not then aware of the apparent agreement reached between Statewide and the plaintiff's solicitors to extend until 18 February 2000.

3. (c)
   On 18 February 2000 Ms Berroen, who worked for Becky, Knight and Elliott, solicitors for the Rackemanns and who handled the conveyance, received a request for an extension, for no apparent reason, from Macrossan and Amiet,  which was granted.  The reason is probably that deposed to in the affidavit of Mrs Durelli and Ms Davis.

4. (d)
   On 18 February 2000, the defendants, through their solicitors, purported to terminate the contract again, this time on the basis of the contemporaneous settlement condition within the special condition 8 not being satisfied.

5. (e)
   Dealings in relation to special condition 2 of the contract for sale to the Rackemanns have been left by Ms Berroen to be sorted out directly between Mackay Rentals Pty Ltd (Ms Davis) and the defendants.

6. (f)
   The terms  of clause 2 are wide indeed and do not include any specification of the terms of the lease agreement, apart from a requirement that it be for six months from settlement at $180 per week.

7. (g)
   Apparently it was not until 4.30 p.m. on 18 February 2000 that Mrs Durelli raised any concern about the time prescribed for termination of the lease agreement.

8. (h)
   On 21 February 2000, Mr and Mrs Durelli attended at the offices of Mackay Rentals at around 12.30 p.m. and, I infer, they then executed a lease agreement.

1. (i)
   I infer that they were still then in possession of the property at 3 James Cook Drive. 

10. (j)
    On 21 February 2000, at a time I am unable to determine, Ms Berroen wrote to Mackay Rentals on behalf of Becky, Knight and Elliott in these terms:

“We refer to the above matter and confirm that settlement has now occurred.

We shall be pleased if you would attend to necessary lease documentation at your earliest convenience.”

The letter was tendered by Mr Land through Ms Berroen and is Exhibit 1 in these proceedings.  The inference is at least open that settlement took place before the lease had been finalised.

40. [40]
    In my opinion, those facts and circumstances taken together might reasonably give rise to an inference that the defendants did not act in accordance with their obligation to do all things reasonable to complete the sale of their property to the Rackemanns by the due date, that is, 18 February 2000. I am not satisfied that this is such a clear cut case in which I should, in effect, dismiss the plaintiff's claim without a full trial. The application is refused. This was not a frivolous or baseless application, the issues were finely balanced. A trial Judge will be in a better position than I to decide where the costs should fall, as the merits including issues of credit which may be important will be clear at that stage. In those circumstances I intend to order that costs be reserved. As a consequence the costs will follow the event at trial unless the trial Judge otherwise orders: Rule 699 UCPR.