Aleckson v Greenland[2003] QDC 433

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff in this proceeding applies for leave to proceed, there not having been a step taken in the action for more than two years.  The claim and counterclaim were filed on 4^th May 2000 and relate to circumstances alleged to have occurred in about June 1998.  The original statement of claim has been amended six times, the seventh such pleading having been filed on 15^th October 2003.  However, between 4^th May 2000 and the filing of the amended claim on 27^th May 2003 the only action taken by or on behalf of the plaintiff was the filing on 21^st February 2002 of a notice that the plaintiff was acting in person.

2. [2]
   The plaintiff swears in his affidavit filed in support of the application that his decision to act on his own behalf was due to financial constraints, and a period of impecuniosity, for which the defendant is directly responsible.  He claims that the delay in the progress of the action is attributable to both parties, a claim that is contested by the affidavit of Christopher Terence Coyne for which leave to file and read was given on the morning of the hearing of this application.  The plaintiff further alleges that the defendant is responsible for his period of impecuniosity because it occurred as a direct consequence of his professional negligence in failing to act for the plaintiff in a proper manner.  He swears also that the litigation between himself and the defendant will not be concluded by striking out of the plaintiff’s claim as it is not statute barred.  He claims further that the delay has not resulted in prejudice to the defendant leading to an inability to ensure a fair trial because all parties, witnesses and documents are presently available and documentary evidence concerning the conduct of the defendant and the relevant transactions have been preserved and are available for tender at the trial of the action.  The plaintiff also alleges that the only prejudice that might be suffered by the defendant is occasioned by the necessity to file an amended defence.

3. [3]
   The plaintiff also claims that informal disclosure of documents has been undertaken and that formal lists of documents could be exchanged, once pleadings are concluded, if his application succeeds.  Mr Coyne, on behalf of the defendant, denies receiving any list of documents from the plaintiff or any indication as to when such a list might be received, nor has the plaintiff provided any substantial disclosure.

4. [4]
   As to prejudice, Mr Coyne swears that since the commencement of the action, and particularly since the plaintiff has acted on his own behalf, his firm has fielded numerous enquiries both by telephone and in written correspondence made on behalf of the plaintiff.  The defendant has been put to very considerable expense in answering these enquiries and in considering and addressing each successive statement of claim offered by the plaintiff.  Mr Coyne complains as to the lack of progress made in the action to date and says, “Accordingly I am concerned that if leave is granted to the plaintiff to proceed that this action will continue in the same manner, and that the defendant continue to be put to unnecessary and unreasonable cost and expense.”.  While those considerations do amount to financial prejudice they are disadvantages that can be compensated for and in any event are the type of disadvantage suffered by any litigant in the course of an action which proceeds with expedition.  In any event, what Mr Coyne has sworn to is no answer to, and is countered by, the allegations contained in paragraphs 25 and 26 of the plaintiff’s affidavit where he swears that he has now made financial arrangements sufficient to allow him to have enough funds to complete the trial of the action which he anticipates can take place within six months.  He says that he intends instructing solicitors upon leave being given to proceed with this action and has made preliminary enquiries with a firm of solicitors prepared to accept his instructions.

5. [5]
   Thus the gist of the application is that although there has been delay in proceeding with the action there is a reasonable explanation for the delay, the limitation period has not run and there is no irremediable prejudice suffered by the defendant as a result of the delay.

6. [6]
   There is no doubt that while the Court has a wide discretion whether or not to grant leave to proceed, that discretion must be exercised within the aegis of the overriding principles enunciated in the UCPR and in recognition that the Courts represent a valuable public resource that must be utilised efficiently by the public.  (See Quinlan v Rothwell (2002) 1 Qd R 647 at 657-8 per Thomas JA; Queensland Carpet Mills Proprietary Limited v Dupont (Aust) Limited (2002) QSC 196 at para 15.  The factors relevant to the exercise of the Court’s discretion to grant leave to proceed were compiled by Atkinson J in Tyler v Custom Credit Corp Ltd (2000) QCA 178 at para 2.  Mr Tucker for the defendant argues, inferentially, that because the defendant is a solicitor who conducted transactions on behalf of many clients his memory of the events which occurred five years ago is likely to be less “vivid” than that of the plaintiff ; therefore, he has alleged, both the plaintiff and the defendant may have “innocently” lost true and accurate recall of the events in question.  He cites in support of that argument Queensland Carpet Mills Proprietary Limited v Dupont (Aust) Ltd (supra).  That is as close as Mr Tucker comes to alleging prejudice caused to the defendant as a result of the delay in the progress of the action.

7. [7]
   In his oral submissions he relied in particular on the judgment of McGill DCJ in Bendeich v Clout (2003) QDC 305.  There his Honour considered three relatively recent decisions of the Court of Appeal and said at paragraph 55:

“In these circumstances, it seems to me by no means certain that as the law stands now in Queensland, the fundamental proposition on which the decision in Burkitt v James was based, namely that when one action by a plaintiff to enforce a course of action has been dismissed for want of prosecution, a second action by the same plaintiff against the same defendants to enforce the same course of action is not an abuse of process, is no longer part of the law of Queensland.”

I don’t know if his Honour meant to express himself in the way that he did but if it is to be the law of Queensland that the commencement of a second action within the limitation period, to replace one struck out for want of prosecution or for breaches of specific rules of practice amounts to an abuse of process, then Courts may be reluctant to strike out actions at all while the limitation period is still running.  There is no need to determine that question because quite clearly Bendeich v Clout (supra) is easily distinguishable.  The grounds for Judge McGill’s decision are summarised in paragraph 59 where he said:

“(T)his is a case where there has been substantial and wholly unjustified delay which is likely to make it, to a significant extent, difficult for there to be a fair trial of the plaintiff’s claim, and is therefore likely to result in significant prejudice to the defendant’s ability properly to defend the action and (to a lesser extent) effectively to pursue the third party claims.  The delay has been so substantial, and the time since the relevant facts occurred has been so great, that in my opinion it would be unjust to expose the defendant and the third parties to the continued pursuit of this claim.”

8. [8]
   To the extent that Mr Tucker also relied upon the Court of Appeal decision in Cooper v Hopgood & Ganim (1999) 2 Qd R 113, which he described as a case “much like the present”, the grounds for the decision appear quite clearly in the judgment of Pincus JA at p 121 where it is reported as follows:

“To my mind the factors which would suggest that the order made by the primary Judge was a proper one are principally the following:

1. The case is, or at least has to date been pleaded as, one of considerable complexity, the resolution of which will depend in substantial part upon deciding what people said to each other 10 years ago;
2. Not having begun the action until long after the last relevant event had occurred, the appellant by his solicitors showed no inclination to move it quickly towards a trial; at the outset, there was a delay of nearly a year in serving the writ;
3. When the matter came before the primary Judge, one year and eight months had elapsed since the time when under the rules, a statement of claim should have been delivered.  (Even now there is no proper statement of claim ready for delivery);
4. There are a number of failures to comply with intimations or promises as to immediate delivery of a statement of claim, and the failure to comply with an order of Byrne J of 10^th April 1997 for delivery of a statement of claim;
5. When following the striking out of the second statement of claim Byrne J on 12^th June 1997 afforded the appellant a further opportunity to deliver a statement of claim: that was not done.”

9. [9]
   There is little basis for the assertion that the circumstances in this proceeding are similar to those in Cooper v Hopgood & Ganim (supra).  I give leave to the applicant plaintiff to proceed in the action.  I order that the costs of each party of and incidental to this application be costs in the cause.