Murishun Pty Ltd v Townsville Broadcasters Pty Ltd
[2004] QDC 88
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- Murishun Pty Ltd v Townsville Broadcasters Pty Ltd[2004] QDC 88
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Murishun Pty Ltd v Townsville Broadcasters Pty Ltd[2004] QDC 88
Murishun Pty Ltd v Townsville Broadcasters Pty Ltd[2004] QDC 88
DISTRICT COURT OF QUEENSLAND
CITATION: | Murishun Pty Ltd –v- Townsville Broadcasters Pty Ltd [2004] QDC 088 |
PARTIES: | MURISHUN PTY LTD Plaintiff (Applicant) Against TOWNSVILLE BROADCASTERS PTY LTD Defendant (Respondent) |
FILE NO: | 377/98 |
PROCEEDINGS: | 1. Application for leave to proceed 2. Application for proceedings to be dismissed for want of prosecution |
DELIVERED ON: | 29 April 2004 |
DELIVERED AT: | Townsville |
HEARING DATE: | 22 March 2004 |
JUDGE: | CF Wall QC |
ORDERS: | 1. Pl given leave to proceed with action. 2. Def’s applcn dismissed. 3. Pl to pay the def’s costs on both applications to be assessed on the standard basis. |
CATCHWORDS: | PRACTICE – leave to proceed – dilatoriness by pl’s solicitors – not attributable to pl. Legislation cited: Uniform Civil Procedure Rules: rules 389 (1) (2); 280; 245(1) Cases cited: Kaats v Caelers (1966) Qd R 482 (FAA) Tyler v Custom Credit Corporation Limited (2000) QCA 178 (FAA) |
COUNSEL: | Mr L. Middleton – Plaintiff Mr R. Quirk - Defendant |
SOLICITORS: | Mr Stevenson (Stevenson & McNamara)- Plaintiff Mr Neunhoffer (Suthers Taylor) - Defendant |
REVISED COPIES ISSUED
State Reporting Bureau
Date: 30 April, 2004
DISTRICT COURT
CIVIL JURISDICTION
JUDGE C.F. WALL QC
No 377 of 1998
MURISHUN PTY LTD ACN 011 004 069 | Plaintiff |
and | |
TOWNSVILLE BROADCASTERS PTY LTD ACN 008 631 678 | Defendant |
TOWNSVILLE
DATE 29/04/2004
JUDGMENT
HIS HONOUR: There are two applications here, the first by the plaintiff for leave to proceed under rule 389(2) of the Uniform Civil Procedure Rules, and the second by the defendant for an order that the proceeding be dismissed for want of prosecution under rule 280. The second application is based on the plaintiff's default which is why leave to proceed is sought in the first application.
The plaintiff's action is for damages for breach of contract, the breach occurring on about the 8th of March 1998 and damages for misleading and deceptive conduct under the Trade Practices Act related to representations made between October 1995 and October 1996.
The chronology appears to be as follows:
16.11.98 Plaint issued.
24.11.98 Entry of appearance and defence filed. The defence was amended on the 16th of February 2000 but an Amended Defence has not yet been filed. I have, though, been provided with a copy of it.
22.03.99 Plaintiff's affidavit of documents filed.
23.02.00 Interlocutory application by the plaintiff filed.
07.03.00 Notice of Change of Solicitor filed, Creswick Middleton to Dickinson Simeoni and Robins.
21.03.01 Interlocutory application by defendant filed.
06.04.01 Amended list of documents by the plaintiff filed.
09.04.01 Order made on application filed 21st of March 2001.
24.07.01 Defendant served on plaintiff a Notice to Admit Facts.
13.08.01 Plaintiff served on defendant the defendant's Admission of Facts.
05.12.01 Application by plaintiff for costs assessment filed.
21.12.01 Objections by defendant to costs statement filed.
25.02.02 Notices of Non-Party Disclosure filed, one directed to Austereo Proprietary Limited and Austereo MCM Entertainment, and the other to Club X Proprietary Limited.
15.03.02 Application by defendant for reconsideration of assessment of costs filed.
22.03.02 Reply to application of 15th of March 2002 filed.
28.03.02 Response by Registrar to application for reconsideration filed.
16.07.03 Notice of Change of Solicitor filed, Dickinson Simeoni and Robins to Mark Stevenson, who is the current solicitor for the plaintiff.
25.02.04 Present application by plaintiff filed.
15.03.04 Present application by defendant filed.
On the 16th of July 2003 the plaintiff's solicitor also gave the defendant's solicitors the one month's notice required by rule 389(1) but thereafter delayed in filing the present application.
The reason given for not taking any step in the proceeding for at least two years is difficulties before and after the 16th of July 2003 in obtaining disclosure of documents from the non-parties.
By letter dated the 5th of March 2002 the solicitors for MCM Entertainment objected to producing the documents referred to in the Notice of Non-Party Disclosure; see rule 245(1). Such objection operated as a stay of the notice; rule 246. The onus was then on the plaintiff to apply to the Court within seven days for a decision about the objection; rule 247(1). No such application has ever been made.
Club X Proprietary Limited does not appear to have responded in any way to the Notice of Non-Party Disclosure served on it. Mr Stevenson wrote to Club X on the 8th of September 2003 and received a reply from its solicitors dated the 25th of September 2003 asking for a copy of the notice. Until the 8th of September 2003 no steps appear to have been taken by the plaintiff to pursue non-party disclosure by Club X. The company does not appear to have at any stage objected to producing the documents and was, therefore, required to produce them within 14 days after service of the notice on it. No application has been made to the Court to compel Club X to produce the documents.
Austereo Proprietary Limited, like Club X, does not appear to have responded to the Notice of Non-Party Disclosure. The solicitors acting for MCM Entertainment do not say they also act for Austereo Proprietary Limited. The plaintiff has also taken no further steps in this respect.
The defendant says that the last step in the proceeding was the service of the defendant's Admission of Facts on the 13th of August 2001. Mr Middleton for the plaintiff submitted that the filing of the Notices of Non-Party Disclosure on the 25th of February 2002 was the last step.
The issue of non-party disclosure notices in the circumstances of this action could, I think, be said to be an act having the characteristic of carrying the action forward, see Kaats v. Caelers (1966), Qd.R. 482 at 499. Whilst not required by the rules in the sense of being something a party has to do, it is allowed by the rules.
The plaintiff says those parties had an involvement in the defendant's breach of contract sued upon. The involvement of Club X is pleaded, paragraph 9 of the Plaint (see also paragraph 14 of the Amended Defence) but not that of the other two non-parties.
For the purposes of this application I will proceed on the date most favourable to the defendant, namely the 13th of August 2001.
Mr Stevenson commenced acting for the plaintiff almost a month before the two years period referred to in rule 389(2) expired but because of rule 389(1) he was not able, before the expiration of that period, to proceed further with the action.
The present application by the plaintiff should have been made a month or so after the 16th of July 2003 which was the date he gave the rule 389(1) notice.
The previous solicitors for the plaintiff should have pursued the plaintiff's rights under the rules in relation to non-party disclosure. Their failure to do so has not been satisfactorily explained. Notwithstanding the view of the defendant and MCM Entertainment, the documents are said by the plaintiff to be important to prove its claim and Mr Edwards, on behalf of the plaintiff, himself expressed concern about the inactivity of those solicitors.
Those previous solicitors gave the defendant's solicitors a rule 389(1) notice on the 14th of November 2002 but thereafter, in fact, took no further step in the action.
Bogged down by issues of non-party disclosure, as they both appear to have been, the plaintiff's solicitors, past and present, seem to have taken no step since possibly the 13th of August 2001 to progress the action against the defendant.
It is somewhat difficult to conclude, as the plaintiff contends, that non-party disclosure is essential to a progression of the proceeding in circumstances where no adequate steps have been taken to resolve outstanding issues of non-disclosure.
However, I am prepared to give the plaintiff the benefit of the doubt on this issue. Mr Middleton in his outline of argument says that once non-party disclosure is obtained the matter will effectively be ready to proceed. The problem with this is that no real attempts have been made to obtain non-party disclosure.
The Plaint (paragraph 12) and the Amended Defence (paragraphs 14 and 15) specifically refer to Club X which has not objected to non-party disclosure, but as I mentioned the plaintiff has not pursued disclosure from Club X. Realistically, the action has hardly proceeded at all since being commenced.
The limitation period for the Trade Practices Act claim is three years which has long expired, and for the contract claim six years which expired in March this year. The plaintiff concedes that this limitation period has "now (only just) expired".
Fresh proceedings claiming damages for breach of contract could have been instituted until then as a matter of prudence. The present application by the plaintiff was filed shortly before the limitation period expired but apparently oblivious of a possible adverse result on the present application.
The plaintiff itself is not at fault but its solicitors, particularly its previous solicitors, clearly are and they, not the plaintiff, are to blame for not progressing the action. For present purposes I will accept the assertion of Mr Middleton that the plaintiff has at least reasonable prospects of success, recognising that questions of credit are involved, certainly in relation to the Trade Practices Act claims.
The litigation has certainly been characterised by a long period of delay since August 2001. An initial rule 389(1) notice was not followed up. No sufficient or satisfactory explanation at all is forthcoming for not taking the steps provided in the rules for pursuing non-party disclosure. Mr Middleton conceded they should have formally pursued non-party disclosure.
To the extent that the action is dependent on the oral representations pleaded and any other oral evidence there could be some prejudice accruing to the defendant by the mere effluxion of time, but this is relatively non-specific. No doubt, statements have been obtained from relevant witnesses including at least those persons named in the plaint and the Amended Defence. No blame appears to be attributable to the defendant other than an apparent lack of interest in progressing the matter.
On the plaintiff's application the onus is on the plaintiff to demonstrate that there is good reason why the action should be permitted to proceed.
Some of the relevant considerations are listed by Justice Atkinson in Tyler v. Custom Credit Corporation Limited (2000), Q.C.A. 178 at paragraph (2) and I have already dealt with most of those which are of particular relevance here.
The matter which concerns me most is that the plaintiff itself does not appear responsible for the delay, in fact, Mr Edwards seems to have sought to progress the matter. See his letter dated the 19th of February 2002 to his previous solicitors which is exhibited to the affidavit of Mr Stevenson filed on the 25th of February 2004. This was not the first time he had sought details from his solicitor about the progress of the matter. See paragraph 9 of Mr Stevenson's affidavit.
This letter also refers to an offer to settle by the defendant which is not irrelevant to the issue of the plaintiff's prospects of success. On the 6th of March 2002 Mr Edwards told his solicitors that their services were no longer required. The solicitor handling the file was changed but the new solicitor appears to have been as inactive as the old, except that he or she did file and serve the Notices of Non-party Disclosure. On the 15th of March 2003 the plaintiff asked for his file, collected it on the 15th of May 2003 and retained Mr Stevenson on the 16th of July 2003.
In the present case I do not think it would be fair to the plaintiff to attribute dilatoriness on the part of its solicitors to it. I am satisfied that the plaintiff is not responsible for that state of affairs.
In all of the circumstances I am satisfied that good reason has been demonstrated why the action should be permitted to proceed.
If the date the last step in the action was taken was the 25th of February 2004 as opposed to the 13th of August 2001 the plaintiff is still, albeit only just, outside the two years period and what I have said would still apply to the application except that, on the plaintiff's case, non-party disclosure could have been formally pursued immediately after the one month notice given by Mr Stevenson expired and, if there was any doubt or contest about the date, an application such as the plaintiff now makes should have been timeously made.
The orders I make are these:
- On the plaintiff's application filed on the 25th of February 2004 leave will be given under rule 389(2) of the Uniform Civil Procedure Rules to the plaintiff to proceed with the action.
- On the defendant's application filed on the 15th of March 2004 that application will be dismissed.
The plaintiff has asked for an indulgence. The defendant is not responsible for the state of affairs resulting in the plaintiff's application. The defendant's application involved no more time and merely sought a consequential order should the plaintiff fail in its application. In these circumstances I order that the plaintiff pay the defendant's costs of each application to be assessed on the standard basis.
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