Jessup v Pope[2009] QDC 44

[2009] QDC 44

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

Nos 241 of 2006

 253 of 2003

BRISBANE

DATE 30/01/2009

ORDER

HIS HONOUR:  I found this a difficult decision to make because it seemed so close to the borderline, but in the end I refuse the defendant's application in 241 of 2006 to set aside the decision of the Registrar to renew the claim for 12 months under Rule 24.  The case for setting aside the order gains almost compelling support from The IMB Group Pty Ltd (in liquidation) v ACCC [2006] QCA 407 where in the leading judgment at paragraph [53], for example, one reads:

"[53]  Rule 24(2) facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiffs. A party who deliberately chooses to refrain from serving a claim will rarely be able to show good reason to warrant the renewal of the claim."

Paragraph [54] follows:

"No case was cited to this Court in which rule 24(2) or its analogues has been held to authorise a renewal of a claim in favour of a party who deliberately chooses not to serve a claim where the facts of the case sufficient to enable the case to be pleaded are known to the plaintiff. Whatever the position may have been in that regard in the absence of a provision such as rule 5(3) of the UCPR, the presence of rule 5(3) means that the approach pursued by the plaintiffs in the present case should not be vindicated by the court. "

In that case the Court of Appeal refused to interfere with a primary Judge's granting relief of the kind sought by the defendant, Mr Pope.  In IMB there had been years of extensions before the ACCC was finally served, including an extension or extensions after the conclusion of protracted related proceedings in the Federal Court, favourably to the plaintiffs and unfavourably to the ACCC, which understandably was seen in the IMB Camp a highly favourable outcome from the point of view of the Supreme Court proceeding. 

Mr Jessup is an accountant who claims that he took over the administration of a bankrupt estate on the basis of enjoying the indemnities that the Insolvency Trustees Service of Australia which had previously been administering the estate had available.  When he instituted a proceeding against a number of parties he expected to be responsible in proceeding 253 of 2003 in the Cairns Registry, he was confronted by denials of liability.  Doubtless fortified by the bringing in of a solicitor, Mr Gillan, as the third party, he had Mr Gillan joined as a seventh defendant, Mr Gillan being a solicitor who was said to be complicit in advice that the indemnities et cetera relied on would be available if Mr Jessup took up the appointment which he did.  Mr Gillan joined a barrister, Mr Pope, as fourth party in 253 of 2003, but Mr Jessup chose not to make him a defendant. 

I don't have any difficulty in accepting Mr Clark's statement from the Bar table that considerations of their personal relationship may have made Mr Jessup loath to proceed against Mr Pope himself.  What he did do once Mr Pope had been brought into the existing proceeding was start 241 of 2006.  There's evidence in affidavit form and further oral evidence today from Mr Dobinson, the solicitor of conduct of the matter, explaining the deliberate decision made not to progress the new proceeding in terms of entertaining hopes for settlement of the earlier one arising from what he calls a formal offer of May 2007.  Achieving a settlement involving so many parties was likely to be a drawn-out affair.  He had until the 14th of September 2007 to serve the proceeding on Mr Pope.  It's speculation whether matters were left to slide at the end given the failure of settlement to eventuate.  Upon what the parties have treated as the last day "service" by facsimile upon Mr Pope at his chambers in Southport, following "service" in similar location the day before at the offices of his solicitors in 253 of 2003 in Brisbane, was attempted. 

One can understand Mr Dobinson's taking the view that Mr Pope might be amenable to accepting service in either of those relatively discreet forms, but he was to be disappointed Mr Pope does not deserve to be criticised in the slightest on that account.  The covering letter which went to his chambers contained the following:

"I note the claim expires this afternoon pursuant to rule 24 of the Uniform Civil Procedure Rules 1999.  If you do not accept service of the claim by way of this facsimile, I'll apply to the Registrar of the Cairns District Court to renew the claim on Monday morning and to arrange for it to be personally served.  We look forward to hearing from you by the close of business today." 

It's difficult to know when the Registrar was approached, but it may not have been done as promptly as foreshadowed.  Regrettably, the Court file copy of the claim containing the appropriate endorsement has a hole punched through it which defaces the endorsement of the Registrar to the effect that the claim was renewed for a further period of 12 months.  The Acting Registrar signed the endorsement on the 4th of October 2007.  There would have been available the affidavit of Mr Watson-Ferreira, which was filed on the 4th of October.  So it may be that, whenever arrangements were made to see the Registrar, it was on the 4th of October that what was probably treated as a formality of extending the claim occurred. 

The affidavit deposes to what happened on the 14th of December 2007; it includes, as Exhibit 6, a communication from Mr Pope's secretary which effectively acknowledges receipt of the facsimile of 14th of September 2007.  The communications with Mr Pope's solicitors in 253 of '03 to similar effect were all dated the day before.  Thus there was before the Registrar information to the effect that the facsimile transmissions had been effective and the Registrar was justified in thinking that the proceedings had at least come to Mr Pope's notice by the time the Registrar was asked to act. 

It's accepted that on this application to a Judge, additional material may be placed before the Court.  Mr Clark has relied on the affidavit of Mr Burns, who's Mr Pope's solicitor, in paragraph 12 where one reads: 

"The defendant was notified of these second proceedings when they were purported to be served on him under cover of a letter forwarded by facsimile on 14 September 2007, one year later (than the filing of the claim)."

Mr Clark may have taken too much from that paragraph from the point of view of Mr Pope's personal knowledge.  The same affidavit goes on to depose to Mr Burns' firm not having had instructions to accept service of 241 of 2006 and service of the renewed claim on Mr Pope on or about the 13th of November 2007.  Rule 24(2) now has to be approached on the strict basis indicated in the IMB Group Case and on the basis that: "the days of litigating at leisure are over" (per Atkinson J in Arc Holdings Pty Ltd v Riana Pty Ltd [2008] QSC 191 at paragraph 4.) 

There are tensions between a regime which expects litigants to progress their proceedings with expedition and the avoidance of costs being incurred which might have been avoided if the parties' efforts were devoted instead in other directions, for example in exploring settlement.  Mr Dobinson's evidence indicates he was acutely aware of not incurring costs unnecessarily. 

It appears to me that the decisions mentioned and the terms of rule 24(2) make it clear that the Registrar's power to make an order renewing a claim depends not only on the plaintiff's asking for that, which it seems to me traditionally used to be enough under earlier rules, but on the Registrar's being satisfied either that reasonable efforts have been made to serve the defendant or that there was an adequate reason to renew the claim.  Some efforts were made to serve the defendant here, but it would be difficult to describe them as reasonable, occurring, as they did, at the death and being, as they were, of the nature of informal notification of the claim, rather than conventional personal service. 

Mr Clark relied on the facsimiles that went out as reasonable efforts.  I'm not sure he's entitled to do that, but I think that may be regarded, given that they were effective in bringing matters to the defendant's notice, from the point of view of providing "another good reason to renew the claim".  At that time the claim against Mr Pope wasn't statute barred. There is the unsatisfactory aspect (much stressed by Mr Collins) that the claim against him depends on a single conversation years ago; that's a very focussed matter for the parties to concentrate on, however.  Mr Clark stated that he is now in a position to give pretty precise particulars of the occasion. 

Mr Clark made reference in this connection to rule 117 which, it seems to me, and the parties accepted in the end, would potentially be available as a fallback for the plaintiff if Mr Pope's application today succeeded.  The Court might be persuaded on an appropriate application that the claim had been served by a copy coming into Mr Pope's possession at some particular time.  In reliance on Rule 42, Mr Clark sought to make an oral application under Rule 117.  I don't think the Court ought to entertain such an application today, on that basis.  Mr Collins would be entitled to notice of it and appropriate evidence could be marshalled then as to when the relevant copy came into Mr Pope's possession.  The Rule 117 aspect of it may indirectly have some bearing on the decision to be made under Rule 24(2). 

For the abovementioned reasons, I'd refuse the defendant's application under 248 of 2006 filed on the 23rd of December last year.  The dimensions of delay here which could be characterised as deliberate and/or unjustified are miniscule compared with those in IMB.

...

HIS HONOUR:  I accept from Mr Collins that UCPR Rule 5 may give the Court a jurisdiction independently of rule 280 to strike out for delay but I wouldn't be inclined in the unusual circumstances of this claim to do that (in either proceeding - assuming that Mr Pope as Fourth Party in 253 of 2003 for standing to apply.)  I've declined in the absence of a specific application for directions by Mr Clark to give directions for the further conduct of the matters either separately or together in particular to consolidate them.

MR CLARK:  Your Honour pleases.

MR COLLINS:  Your Honour, there's a question then of costs. 

...

HIS HONOUR:  I'm going to make all the costs costs in the cause.

MR CLARK:  As your Honour pleases.

MR COLLINS:  That's all that's necessary, I think, your Honour, unless my friend has anything further?

MR CLARK:  No, your Honour.  Thank you, your Honour.