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  4. Rabvue Pty Ltd v Malcolm Douglas Consultants Pty Ltd - [2010] QDC 150

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Rabvue Pty Ltd v Malcolm Douglas Consultants Pty Ltd[2010] QDC 150

Rabvue Pty Ltd v Malcolm Douglas Consultants Pty Ltd[2010] QDC 150

DISTRICT COURT OF QUEENSLAND

CITATION:

Rabvue P/L & Anor v Malcolm Douglas Consultants P/L & Ors [2010] QDC 150

PARTIES:

RABVUE PTY LTD ACN 010 425 582

(First Plaintiff)

and

ROY MAXWELL BOWD and SUSAN BERYL BOWD

(Second Plaintiff)

v

MALCOLM DOUGLAS CONSULTANTS PTY LTD ACN 010 767 058

(First Defendant)

and

WAYNE WHITTAKER

(Second Defendant)

and

DANIEL TONINO

(Third Defendant)

and

GOONBUNGEE INVESTMENTS PTY LTD(formerly M&S STEEL BUILDINGS PTY LTD) ACN 010 233 306

(Fourth Defendant)

and

KEITH GRANT FABRICATIONS PTY LTD ACN 084 149 333

(Fifth Defendant)

FILE NO/S:

BD5030 of 2002

DIVISION:

Civil applications

PROCEEDING:

Plaintiffs’ application for declarations.

Plaintiffs’ application for leave to proceed pursuant to UCPR rule 389(1) or (2).

Fourth defendant’s application that the plaintiffs’ amended claim and statement of claim be dismissed for want of prosecution pursuant to UCPR rule 280.

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

20 April 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

22 May 2009

JUDGE:

Andrews SC DCJ

ORDER:

On the plaintiffs’ oral application for leave to amend their application to apply for 3 further declarations order that the plaintiffs have leave to amend

The plaintiffs’ applications for seven declarations are refused

The plaintiffs’ application for leave to proceed against the first, second, third, fourth and fifth defendants is refused

On the fourth defendant’s application order  that the proceeding be dismissed for want of prosecution is allowed

CATCHWORDS:

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – where claim amended without leave – where amendment to statement of claim not relevant to causes of action against 4th and 5th  defendants – whether service of the amended claim and amended statement of claim on 4th or 5th defendants a step in the proceeding – where plaintiffs proposed mediation and names of mediators – whether a step in the proceeding

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PRACTICE – PROCEDURE BEFORE TRIAL – Application pursuant to r 389(2) UCPR to take a step after two year delay – factors relevant to court’s discretion to grant leave  – where striking out plaintiffs’ claim would conclude litigation – where plaintiffs’ delay caused partly by plaintiffs’ solicitor – where prejudice to one defendant from loss of memory –  

PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURTS – CIVIL JURISDICTION – PROCEDURE BEFORE TRIAL – WANT OF PROSECUTION – Application pursuant to r 280(2) UCPR and inherent jurisdiction to dismiss proceeding for want of prosecution.

Uniform Civil Procedure Rules 1999, r 5, r 168(1), r 165(2), r 214(1)(a), r280, r 320, r321, r 377(1)(c), r384(1), r 389(1), r 389(2) and 389(3).

Concord Park Pty Ltd v Allied Organik Limited [2003] QDC 420

Paradise Grove P/L v Stubberfield [2000] QSC 214

Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592

Boyd v State of Queensland [2008] QDC 208

Smiley v Watson [2002]1QdR 560

Tyler v Custom Credit Corp Ltd [2000] QCA 178

C&E Pty Ltd v Corrigan [2006] QCA 47

Valleyfield Pty Ltd v Primac [2003] QCA 339

Page v The Central Queensland University [2006] QCA 478

Quinlan v Rothwell and Anor [2008] QSC 143

Vlies v Commonwealth of Australia [2004] QSC 404

Cummins v Davis [2001] QCA 293

Porcuzek v Toowoomba District Health Services [2007] QSC 177

Cooper v Hopgood and Ganim [1999] 2 Qd R 113

COUNSEL:

Codd for plaintiffs

Sweeney for first, second and third defendants

S Rees Solicitor for fourth defendant

No appearance for fifth defendant

SOLICITORS:

Sawford Voll Lawyers for the plaintiff

Carter Newell for the first, second and third defendants

Reeslaw for the fourth defendant

  1. [1]
    These applications involve disputes as to whether the plaintiffs should have leave to proceed or have their proceeding dismissed for want of prosecution. The plaintiffs orally applied for leave to amend their application to seek declarations on the hypothesis that steps in the proceeding were taken in November and December 2007. The activities which the plaintiffs seek to have characterised as steps are the plaintiffs’ solicitors proposal of three mediators to defendants’ solicitors for their consideration and provision of an amended claim for which leave to amend had not been obtained and an amended statement of claim whose amendments had been made 7 months before and were not relevant to the claims against the defendants who received them. On the hypothesis that the plaintiffs are unsuccessful in so establishing those activities to be recent steps in the proceeding the plaintiffs seek a declaration that a step was taken by them on 30 April 2007. They also apply pursuant to Uniform Civil Procedure Rules 1999 (“UCPR”) r 389(2) for an alternative order permitting them to take a new step in the proceeding notwithstanding that more than two years have elapsed since a step in the proceeding was taken.  The fourth defendant has a cross-application pursuant to UCPR r 280 that the plaintiffs’ amended claim and statement of claim be dismissed for want of prosecution. It is supported by the other defendants.
  1. [2]
    The plaintiffs’ application[1] seeks orders for:

(a) Declarations that:

 (i) the last step in the proceeding as between the plaintiff and the first, second and third defendants was taken on 30 April 2007;

 (ii) the last step in the proceeding as between the plaintiff and fourthdefendant was taken on 30 April 2007;

 (iii) the last step in the proceeding as between the plaintiff and the fifth defendant was taken on 27 November 2007;

 (iv) the plaintiffs provided effective notice under Rule 389(1) of the Uniform Civil Procedure Rules 1999 of their intention to take a step in the proceeding to each of the defendants by the filing and serving of this application in its original form before 30 April 2009.

Further and/or in the alternative:

  1. (b)
    An order that the first and second plaintiffs have leave to proceed against                              the first, second, third, fourth and fifth defendants pursuant to Rule 389(2)                                           of the Uniform Civil Procedure Rules 1999.
  1. [3]
    The first, second, third and fourth defendants appeared before me to resist those applications. The fifth defendant did not appear but by letter advised that the fifth defendant was not responding to the plaintiffs’ application but supports any application to dismiss the plaintiffs’ claim for want of prosecution.[2]

Plaintiffs’ late application to amend their application

  1. [4]
    During the course of oral submissions, counsel for the plaintiffs implied that he was considering whether to resile from the plaintiffs’ contention that the last step in the proceeding as between the plaintiffs and the first, second, third and fourth defendants was taken on 30 April 2007. He did not resile from the contention before completing his submissions. Next followed submissions on behalf of the first, second and third defendants. During those submissions counsel for the first, second and third defendants consented to the making of the declaration sought by the plaintiffs in their filed application that the last step in the proceeding as between the plaintiff and the first, second and third defendants was taken on 30 April 2007. The solicitor for the fourth defendant then made submissions. No one appeared for the fifth defendant. Counsel for the plaintiffs, while making submissions in reply, applied for leave to amend the plaintiffs’ application so as to apply for further or alternative declarations that:
  1. (a)
    the last step in the proceeding as between the plaintiffs and the first, second                             and third defendants was taken on or about 6 December 2007;
  1. (b)
    the last  step in the proceeding as between the plaintiffs and the fourth                             defendant was taken on 7 December 2007;
  1. (c)
    the last step in the proceeding as between the plaintiffs and the fifth                                           defendant was taken on or about 27 November 2007.
  1. [5]
    The plaintiffs’ application for leave to amend to seek the further or alternative declarations was opposed by counsel for the first, second and third defendants. He submitted that the matter began as an application for leave to proceed pursuant to Rule 389(2) and that a premise for such an application is acceptance by the applicants that no step had been taken for two years. It was submitted for the first, second and third defendants that, on that premise, their counsel had not prepared submissions on what amounts to a “step in a proceeding”. It was submitted that this would lead to prejudice to the first, second and third defendants if leave were granted to the plaintiffs to amend.
  1. [6]
    With respect to matters of prejudice arising out of the plaintiffs’ late application for leave to add an alternative set of declarations there are two matters to note. Firstly, so far as the fifth defendant is concerned, the declaration concerning the fifth defendant is practically identical with the form of declaration for which the plaintiffs sought leave to bring an amended application. There is no prejudice obvious to the fifth defendant. Secondly, the fourth defendant made no submissions.
  1. [7]
    I accept that the first to third defendants are prejudiced by the late application to amend because they were not in a position to make researched oral submissions. Notwithstanding the leisurely pace of the litigation and that the matter was to be reserved there was no application by experienced counsel for the first to third defendants to supplement his submissions in writing to avoid any prejudice. Counsel was aware that he was at liberty to request time to supplement submissions. The plaintiffs’ oral application raises no new factual issues which might require further evidence. The prejudice to the first to third defendants was within their power to avoid by supplementary submissions, was slight and is not sufficient in the circumstances of this application to deny the plaintiff of the opportunity to amend. As against all defendants, I allow the oral application for leave to amend and will determine the issues as if the amendment had been made.

      Relevant Rules of Court

  1. [8]
    The UCPR rules invoked by the parties provide, so far as is relevant:

“5 Philosophy – overriding obligations of parties and court

  1. (1)
    The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
  1. (2)
    Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
  1. (3)
    In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
  1. (4)
    The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

280 Default by plaintiff or applicant

  1. (1)
    If—
  1. (a)
    the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and
  1. (b)
    the plaintiff or applicant does not do what is required within the time stated for doing the act;

a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.

  1. (3)
    The court may dismiss the proceeding or make another order it considers appropriate….

…

320 The court may also refer a dispute in a proceeding for mediation … –

  1. (a)
    On application by a party; or
  1. (b)
    if the proceeding is otherwise before the court.

321 Subject to an order of the court, if a dispute in a proceeding is referred to an ADR process, the dispute and all claims made in the dispute are stayed until 6 business days after the report of the ADR convenor certifying the finish of the ADR process is filed with the registrar.

389 Continuation of proceeding after delay

  1. (1)
    If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.
  1. (2)
    If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.
  1. (3)
    For this rule, an application in which no order has been made is not taken to be a step.”

          Steps in the proceeding in April, November or December 2007?

  1. [9]
    The submissions of the parties were limited on the merits of the seven declarations applied for by the plaintiffs.
  1. [10]
    There were no submissions as to whether a step in the proceeding against one defendant was to be regarded as a “step in the proceeding”. The wording of the declarations sought by the plaintiffs presupposes that a proceeding against one defendant is treated differently from the proceeding against another. There was no submission as to the correctness of the wording of the declarations.
  1. [11]
    There were no submissions as to whether the plaintiffs are at liberty to seek declarations if they have not taken steps for more than two years. There were no submissions as to whether the court has the power[3] to declare these conclusions as if it were declaring the rights of the parties. I assume that the making of the declarations sought is no more significant for the parties than findings of fact in terms of the declarations sought. If two years passed from the time the last step was taken the consequence would be that the plaintiffs need leave of the court to take a new step. However, I will consider the merits of the plaintiffs’ application for declarations in the wording applied for.
  1. [12]
    Counsel for the plaintiffs and for the first to third defendants and the solicitor for the fourth defendant each submitted that a step in the proceeding was taken on 30 April 2007 without argument or explanation. Counsel for the first to third defendants went further and consented to the declaration initially sought against them that “the last step in the proceeding as between the plaintiff and the first, second and third defendants was taken on 30 April 2007”. I note the evidence is that the plaintiffs gave notice of their intention to proceed on 2 March 2007 to only the first to third defendants when r 389(1) required that they give notice to every other party. There was no argument as to whether it could amount to a step in the proceeding in that circumstance. The plaintiffs made no submissions as to why a step in the proceeding occurred on 30 April 2007. If a finding about a step in the proceeding as between the plaintiff and the first, second and third defendants affected only those four parties I would find that it had been taken as that is consistent with their submissions or concessions. However, it may also affect the fifth defendant.
  1. [13]
    The plaintiffs’ counsel did make submissions as to why effort to organise mediation was a step in the proceeding. No party made a submission as to why service of an amended claim or three pleadings in November and December 2007 were or were not steps in the proceeding.

     Steps as against the fifth defendant

  1. [14]
    As between the plaintiffs and the fifth defendant an issue is whether a step in the proceeding was taken by the plaintiffs on 27 November 2007. Plaintiffs relied in submissions upon service of the amended statement of claim as the step. The evidence does not support the submission that the amended statement of claim was served on the fifth defendant. I infer that, as against the fifth defendant, if the plaintiffs could not successfully rely upon service of the amended statement of claim they would also have relied upon their attempt to organize mediation and also on service of the amended claim.
  1. [15]
    On 27 November 2007 the plaintiff’s former solicitor wrote to solicitors for the fifth defendant, so far as is relevant:

“We … enclose …:

  1. Copy of the Amended Claim …

  …

Our clients wish to proceed by way of mediation conference, subject to hearing your client’s position.  A mediation conference has been proposed and we understand that the first, second and third defendants are prepared to attend.  We are proposing that the mediation be conducted … by one of the following mediators”

There followed the names of three mediators.  The plaintiffs submitted that the step taken on this date was the service of an amended statement of claim on the fifth defendant.  That submission is inconsistent with the letter.  The letter refers to an amended claim while the submission refers to an amended statement of claim.  It was deposed in the affidavit of RV Ensbey[4] that on or about 27 November 2007 an amended claim and statement of claim were served on the fifth defendant. Mr Ensbey was not the plaintiffs’ original solicitor and deposed that his information came from the documents received from the file. He could not have known by reading the letter of 27 November that a statement of claim was enclosed. The letter did not purport to enclose an amended statement of claim. There is reason to conclude that the plaintiffs’ solicitor deliberately chose to send only an amended claim and chose not to include the amended statement of claim.

  1. [16]
    The amended claim and attached amended statement of claim on the court file[5] reveal various amendments concerning various defendants. Only one amendment related to the proceeding against the fifth defendant. It deleted from the claim a reference to a claim by the second plaintiff against the fifth defendant for damages for breach of contract. It was not permitted to be made without leave.[6] There was no corresponding amendment to delete the parts of the statement of claim which relate to the cause of action for breach of contract against the fifth defendant or the claim for damages against the fifth defendant. Accordingly the amended statement of claim retained the claim against the fifth defendant for damages for breach of contract. The amendment to the claim by deletion of the words “fifth defendant” is as consistent with error as with a considered amendment. If it was a considered amendment, the statement of claim should have been amended to delete the facts material to the claim for breach of contract and to delete the prayer for relief by way of damages for breach of contract. It was not. The amendments in the amended statement of claim concerned only the first to third defendants. The amended claim and statement of claim were served on the first to third defendants on 30 April 2007. There is an issue as to whether there was service in April 2007 on the fourth defendant[7] but service on the fifth was not bothered with before 27 November 2007. For the purpose of this application, I prefer the evidence of Mr Mathieson that the fourth defendant was not served with the amended statement of claim until 7 December 2007. Delaying service on the fourth and fifth defendants is consistent with the practices then shown by the plaintiffs’ former solicitor of treating the fourth and fifth defendants differently from the first to third defendants. I find the plaintiffs’ solicitor’s conduct in April 2007 to be consistent with an intention not to proceed expeditiously with the plaintiffs’ claims against the fifth defendant but to focus instead on the claims against the first to third defendants.
  1. [17]
    In substance, the proceeding against the fifth defendant would not have been progressed by service of the amended claim, whether or not it was accompanied by the amended statement of claim. The service would have caused confusion rather than progress. The absence of leave to amend the claim is a separate obstacle for the plaintiffs. Without that leave they may not rely upon service of the amended claim as a step in the proceeding as between the plaintiff and the fifth defendant.
  1. [18]
    Further, the plaintiffs had an obligation pursuant to UCPR r 384(1) to serve amendments to the statement of claim on all parties as soon as practicable after being made. The obligation is not expressed to be dependent upon the amendment affecting the party to be served. There was no argument as to whether the plaintiffs’ tardy performance of this obligation was a feature which would have advantaged the plaintiffs by making the hypothetical service in December 2007 of the amended statement of claim on the fifth defendant a step in the proceeding either against the fifth defendant or generally.
  1. [19]
    If service of an amended pleading upon all the other parties as soon as practicable after being made is the duty imposed by r 384(1), the timely performance of that duty may be a step in the action complete upon service upon all other parties. I need not decide that hypothetical question though it is arguably so by analogy with the reasoning that delivery of a list of documents is a step.[8] Service on only three of five other parties as soon as practicable is not performance the duty imposed by r 384(1). Service on the other two parties seven months after it was practicable is not performance of the duty pursuant to r 384(1). The plaintiffs would not take one step in the proceeding in April 2007 by partly performing the duty imposed by r 384(1) and take further steps by serving late another party in November and another in December 2007. The performance of the duty imposed by r 384(1) is arguably completed only one time and cannot be completed twice. I need not decide these matters in respect of the fifth defendant as I find that the amended statement of claim was not served on the fifth defendant in November 2007 as the evidence goes no further than to show that the amended claim was served. If the amended statement of claim had been served I would not have regarded that service as a step in the proceeding in the particular circumstances of this proceeding. It neither advanced the proceeding nor amounted to performance of a duty imposed under the UCPR.
  1. [20]
    The significance of service of the amended claim and amended statement of claim so far as the fifth defendant would have been concerned was that on 27 November it would have learned that amendments had been made seven months earlier to the statement of claim reducing the issues between the plaintiff and the first to third defendants. It could have deduced that any trial involving all defendants should be shortened as issues between other parties had reduced. There was no need for the fifth defendant to plead to the amendments made to the statement of claim as they were not relevant to the claims against it. The amendments had been made and the amended documents filed and served on the affected first to third defendants on 30 April 2007.
  1. [21]
    I do not accept that service of an amended statement of claim which contained no amendments relevant to the claim against the fifth defendant would be a “step in the proceeding as between the plaintiff and the fifth defendant” within the wording of the declaration applied for. Further, I do not accept that service of an amended statement of claim on the fifth defendant would complete the duty of the plaintiffs to serve all parties as the fourth party was still to be served.
  1. [22]
    For reasons which follow I do not accept that efforts to arrange mediation were a step in the proceeding against the fifth defendant or generally.
  1. [23]
    I do not find the last step in the proceeding as between the plaintiff and the fifth defendant was taken on or about 27 November 2007. I do not find the last step in the proceeding was taken on or about 27 November 2007. I decline to make the declaration sought against the fifth defendant.

      Steps against the first to third defendants on 6 December 2007

  1. [24]
    An issue as between the plaintiffs and the first to third defendants is whether a step in the proceeding within the meaning of r 389(1) was taken by the plaintiffs on 6 December 2007. On 6 December 2007 the plaintiffs’ former solicitor wrote to the solicitors for the first to third defendants advising that he had written to solicitors for the other defendants concerning their participation in a mediation conference and he proposed the same three mediators and observed:

“If you have any other suggestions for the mediator we are happy to consider those and put them forward, depending on availability.”

No mediation was arranged by that letter. 

  1. [25]
    Were steps in the proceeding taken by the plaintiffs’ former solicitor attempting to organize mediation by suggesting the names of three mediators? Counsel for the first to third defendants conceded that mediation was a step in the proceeding. Plaintiffs’ counsel used that concession as the basis for a submission. Since the process of disclosure involves a stage whereby the disclosing party provides a list of documents to the other party and since the provision of that list is a step in the proceeding[9] while subsequent inspection of documents may not be[10] a step in the proceeding, plaintiff’s counsel submitted by analogy that organizing a mediation was a step in the proceeding.  The argument implies that provision of a list of documents is only one intermediate step of several steps in the process of achieving disclosure but is classed as a step in the proceeding and the argument implies that trying to organise mediation should be classed as a step in the proceeding though it is only one of several intermediate steps in the process of achieving mediation. The argument is not persuasive.  Not every act performed by a party or its lawyer in the course of litigation is a step in the proceeding. Some steps in the proceeding may have the characteristic of performing a duty identified in the UCPR or of advancing the proceeding for example by creating an obligation under the UCPR on another party to do an act. It is not necessary for me to attempt a definition and especially where no party argued for one. Delivery of a list of documents to another party is a method by which one party partly performs its duty of disclosure[11]. Thereafter the recipient of the list is at liberty to request copies, whereupon the disclosing party assumes another duty identified in the UCPR to deliver copies. Writing a letter suggesting the names of mediators for another party’s consideration is not an act specifically required by the UCPR. It does not have the character of requiring another party to perform a duty imposed by the UCPR or to do an act identified in the UCPR. It does not necessarily progress or force the progress of the litigation. It does not force the parties to mediate or even to reply. I reject the plaintiffs’ submission. I am fortified by the judgment of Wall QC, DCJ in Boyd v State of Queensland [2008] QDC 208 where his Honour held that the plaintiff’s proposal of mediation to defendants was not a step in the proceeding for the purposes of r 389(2). Plaintiffs’ counsel referred to UCPR r 320 and r 321 as somehow supporting his submission. I find that they do not.
  1. [26]
    I do not find that the last step in the proceeding generally or as between the plaintiffs and the first, second and third defendants was taken on or about 6 December 2007. On that basis I decline to make the declaration.
  1. [27]
    Further, I am not satisfied that the plaintiffs are entitled to apply for a declaration where no step has been taken in the proceeding in the prior two years before filing their application. They made no arguments in support of their liberty to apply for it or as to why it has any more utility than a finding.
  1. [28]
    The UCPR refers to a “step in the proceeding” and to a “step in a proceeding” but not to a step in the proceeding as between particular parties. The concept of a step between particular parties is not expressly acknowledged in the UCPR. The cases are inconsistent with such a concept. Instead, the cases suggest that if one party takes a step in the proceeding which affects only one other of multiple parties any party may rely on the step taken for the purpose of calculating the time that has passed since the last step in the proceeding.[12] A declaration about a step between particular parties lacks utility and on that further basis should not be made. If I had found that a step in the proceeding had been taken the plaintiffs would have suffered no disadvantage from my refusal to go further and declare it a step as between the plaintiffs and the first to third defendants.

      Step as against the fourth defendant in December 2007

  1. [29]
    The issue as between the plaintiffs and the fourth defendant is whether a step in the proceeding was taken by the plaintiffs on 7 December 2007. Plaintiffs’ counsel relied upon the plaintiffs’ solicitor’s attempt to organize mediation and his provision of four documents being the amended claim and amended statement of claim and the first to third defendants’ defence and the plaintiffs’ reply to that defence.
  1. [30]
    On 7 December 2007 the plaintiff’s former solicitor’s letter dated 27 November 2007 was received by the solicitor for the fourth defendant. The letter[13] suggested three mediators for a mediation of the matter. No mediation was arranged by that letter. The letter included copies of the amended claim, the defence of the first to third defendants filed 20 April 2005 and the reply filed 4 May 2005 to the defence of the first to third defendants. The letter did not purport to enclose an amended statement of claim. The plaintiffs’ counsel’s written submission was that the letter enclosed the amended statement of claim. The evidence as to this was inconclusive. The fourth defendant’s solicitor who appeared and made submissions for his client did not submit that his client had not received an amended statement of claim with the letter. For that reason I proceed on the basis that the amended statement of claim was enclosed.
  1. [31]
    The effect of the amended claim and amended statement of claim was as confusing and inconsistent for a reader concerned to understand the proceeding against the fourth defendant as it would be for a reader seeking to understand the proceeding against the fifth defendant which is to say that the amendment to the claim suggested that the first plaintiff’s claim for damages for breach of contract was deleted though the amendments to the statement of claim did not delete the passages which supported the claim for breach of contract and did not delete the prayer for damages for breach of contract.
  1. [32]
    The fourth defendant’s solicitor submitted that the last step in the proceeding was on 30 April 2007 though he did not identify what the step was or why it was a step. I infer that he was implying that the step was constituted by service of an amended claim and amended statement of claim on the first to third defendants. There were no submissions from plaintiffs’ counsel or from the solicitor for the fourth defendant touching upon why service of documents by the letter received on 7 December 2007 did or did not involve a step in the proceeding. Though one of the amendments made to the claim on 30 April 2007 may arguably have been intended to affect the proceeding against the fourth defendant it was not then served on it. If the amendment to the claim by deleting reference to a claim for damages for breach of contract was a considered amendment, the statement of claim should have been amended to delete the facts material to the claim for breach of contract and to delete the prayer for relief by way of damages for breach of contract. It was not. The amendments relating to the fourth defendant are as consistent with error as with a considered amendment. If they were considered amendments then the failure to serve the fourth defendant with such a significant amendment until seven months later is consistent with a decision not to proceed expeditiously against the fourth defendant and instead to focus on the part of the proceeding relating to the first to third defendants.
  1. [33]
    I do not accept that service of an amended claim on the fourth defendant where leave to amend was necessary[14] but not obtained can be a step in the proceeding. Obtaining leave would have been problematic as the amended claim was inconsistent with the amended statement of claim as the amended statement of claim retains a claim for breach of contract. Secondly, service of the amended claim and amended statement of claim did not progress the proceeding against the fourth defendant. It created a riddle as to whether the first plaintiff was abandoning the claim for breach of contract or not and it created a need to apply to strike out parts of the statement of claim which were inconsistent with the claim. In substance, receipt by the fourth defendant of the amended statement of claim and amended claim did not advance the proceeding. Service of them without leave to amend the claim was also non-compliance with r377(1).
  1. [34]
    I do not accept that service of an amended statement of claim, where the amendments to it do not affect the fourth defendant, was a “step in the proceeding as between the plaintiff and the fourth defendant”. Service on that party did not advance the proceeding generally.
  1. [35]
    If there was a step in the proceeding arising from the plaintiffs’ service of an amended statement of claim it arguably occurred upon performance of the duty pursuant r 384(1) to serve amendments to the statement of claim on all parties as soon as practicable after being made. No party argued to support or oppose the submission that the delivery of an amended statement of claim in the letter to the fourth defendant’s solicitor was a step in the proceeding. Fulfilment of the duty pursuant r 384(1) to serve that particular amended statement of claim can occur only once. It could not occur in April and December 2007. If service in April 2007 is ignored because it was not service on all the parties and only service on the last party in December 2007 is considered the plaintiffs are not assisted. Firstly, it was not compliance with the requirement of r 384(1) that it be served as soon as practicable after being made. Secondly there was non-compliance with r 389(1). For service on the fourth defendant to be considered effective as a step in the proceeding in December 2007 the plaintiffs should have complied with r 389(1) by giving one month’s notice of intention to proceed to the fourth defendant. On 2 March 2007 the plaintiffs gave such a notice to only the first to third defendants and not to the fourth and fifth defendants. That was not compliance with the r 389(1) and the fourth defendant remained entitled to receipt of a month’s notice in December 2007.
  1. [36]
    I find that delivery of a copy of the amended statement of claim to the fourth defendant on 7 December 2007 was not a step in the proceeding.
  1. [37]
    The defence included with the plaintiffs’ solicitor’s letter dated 27 November 2007 was the defence of the first to third defendants filed 20 April 2005 and there was no obligation upon the plaintiffs to serve it. It is not suggested that the first to third defendants had failed to serve a copy on the fourth defendant months earlier. It was not relevant to the plaintiffs’ pleading against the fourth defendant. The reply included with the letter must have been the plaintiffs’ reply to the defence of the first to third defendants. It is not relevant to the plaintiffs’ claim against the fourth defendant. The plaintiffs’ counsel made no argument by reference to these specific enclosures to support his submission that the letter and its enclosures amounted to a step in the proceeding.
  1. [38]
    In summary, I do not regard the attempt to organise mediation with the fourth defendant as a step in the proceeding for the same reasons as I explained with respect to the first to third defendants. I do not regard the service of an amended claim as a step as it required leave which was not sought. The service of the amended statement of claim contained no amendments relevant to the claim against the fourth defendant and so it was not “a step in the proceeding as between the plaintiff and the fourth defendant”. If service seven months late of the amended statement of claim on the last party could be compliance with r 384(1) and thus a step in the proceeding then the plaintiffs were remiss in failing to give one month’s notice to the fourth defendant pursuant to r 389(1). For those reasons it does not qualify.   
  1. [39]
    I decline to find or declare “that the last step in the proceeding as between the plaintiffs and the fourth defendant was taken on 7 December 2007” and decline to find that a step in the proceeding occurred on 7 December 2007.

      Declaration as to a step in the proceeding on 30 April 2007

  1. [40]
    The plaintiffs seek declarations against the first to third defendants and separately against the fourth defendant that the last step taken against them was on 30 April 2007.
  1. [41]
    Counsel for the first to third defendants consented to the declaration sought against them. That declaration would be that the last step in the proceeding as between the plaintiffs and the first, second and third defendants was taken on 30 April 2007. On that date the plaintiffs filed an amended claim which affected all parties and amended statement of claim which affected the first to third defendants but served only the first to third defendants. The failure to seek leave to amend the claim was a breach of r 377(1) (c). The failure to serve all defendants with the amended statement of claim as soon as practicable after making the amendment was a breach of r 384(1).
  1. [42]
    The solicitor for the fourth defendant submitted that a step in the proceeding was taken on 30 April 2007 by the filing of an amended claim. I reject that the filing of the amended claim without service was a step in the proceeding and especially where leave had not been obtained for the amendment. The plaintiffs’ counsel made no submissions as to why events occurring on 30 April 2007 were a step in the proceeding save to draw attention to an apparent concession to that effect in the chronology prepared by counsel for the first to third defendants.[15]That concession is likely to have been made without awareness that the plaintiffs had failed to serve the fourth and fifth defendants. 
  1. [43]
    I will accord a benefit to the plaintiffs in accordance with the concessions of the first to fourth defendants. However, for several reasons I decline to make the declaration sought “that the last step in the proceeding as between the plaintiff and the first, second and third defendants was taken on 30 April 2007”. Firstly, I am not satisfied that it has utility for the reason which I have already expressed about the use of wording “as between the plaintiff and” some of the other parties. Secondly, the plaintiffs remain disadvantaged in that they are unable to point to a step in the proceeding for the two years before this application was argued. The filing of their application on 11 May 2009[16] is not itself a step in the proceeding.[17]It follows that a declaration about a step at a time as early as 30 April 2007 has little forensic benefit for the plaintiffs. Thirdly, I am not satisfied that the plaintiffs are entitled to apply for a declaration where no step has been taken in the proceeding in the two years before filing their application for declarations.
  1. [44]
    While I do not propose to make the declaration, I accept the first to third defendants’ concession that a “step in the proceeding against the first to third defendants” was taken on 30 April 2007. The amendments deleted some claims against all defendants and some allegations against the first to third defendants. The small forensic benefit it gives to the plaintiffs is to reveal that the plaintiffs were focussing on some deficiencies in their claims against the defendants and the plaintiffs acted as if they were allowing the proceeding to rest dormant against only the fourth and fifth defendants while they focussed on administration of the claims against the first to third defendants. Whether that characteristic made it a “step in the proceeding” was not argued. While arguably, service of the amended statement of claim on the first to third defendants would be a step in the proceeding though it was not then served, as required by r 384(1) on the fourth and fifth defendants no party made or contested the argument before me.
  1. [45]
    My refusal to make the declaration sought about a step in the proceedings on 30 April 2007 is not based on its wording and its lack of utility and the plaintiffs’ failure to comply with the requirements of r 377 (1) (c) and r 384(1) and 389(2). Another and separate obstacle for the plaintiffs in seeking to establish a step in the proceeding on 30 April 2007 was their incomplete compliance with the requirement of r 389(1) when the plaintiffs gave notice to only 3 of the 5 defendants of their intention to proceed in a month. The plaintiffs gave on 2 March 2007 one month’s notice of intention to proceed to the solicitors for first to third defendants. I accept the evidence of Mr Mathieson for the fourth defendant that the fourth defendant was not served with the plaintiffs’ notice of intention to take a step in the proceeding. There is no evidence of service of a notice of intention to proceed against the fifth defendant. If notices of intention to take a step in the proceeding were required to be served one month prior to 30 April 2007 pursuant to r 389 (1) because no step had been taken in the proceeding for a year the notices were required to be given by the plaintiff to every other party. No party made submissions as to whether notices were required to be given on 2 March 2007 though the fourth defendant submitted a notice was required to be given to it before the court could consider the fourth defendant’s receipt of documents from the plaintiffs in December 2007 to be a step in the proceeding.
  1. [46]
    The plaintiffs also applied for a declaration that the last step in the proceeding as between the plaintiffs and fourth defendant was taken on 30 April 2007. I decline to make such a declaration on the same bases for declining to make a similar declaration relating to the first to third defendants.

     Declaration that the plaintiffs provided effective notice under Rule 389(1)

  1. [47]
    The plaintiffs seek a declaration that the plaintiffs provided effective notice under Rule 389(1) of the Uniform Civil Procedure Rules 1999 of their intention to take a step in the proceeding to each of the defendants by the filing and serving of this application in its original form before 30 April 2009. The reference to the application “in its original form” is something I infer to be a reference to the fact that the file reveals that the plaintiffs filed an application for leave under r 389(2) on 2 April 2009 though they substituted it with a subsequent application for similar relief and for declarations filed on 11 May 2009.
  1. [48]
    The plaintiffs made no argument in support of the merits of this declaration or its utility. I decline to make the declaration.

      UCPR r 389 and r 280

  1. [49]
    When considering whether to dismiss an action for want of prosecution or whether to give leave to proceed under r 389, it has been held[18] that the court’s discretion is not fettered by rigid rules though the factors which a court will take into account include:
  1. (1)
    How long ago the events alleged in the statement of claim occurred and what delay there was before the litigation commenced;
  1. (2)
    How long ago the litigation was commenced or causes of action were added;
  1. (3)
    What prospects the plaintiff has of success in the action;
  1. (4)
    Whether or not there has been disobedience of court orders or directions;
  1. (5)
    Whether or not the litigation has been characterised by periods of delay;
  1. (6)
    Whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
  1. (7)
    Whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;
  1. (8)
    Whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
  1. (9)
    How far the litigation has progressed;
  1. (10)
    Whether or not the delay has been caused by the plaintiff’s lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisors;
  1. (11)
    Whether there is a satisfactory explanation for the delay; and
  1. (12)
    Whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

          How long ago did the events alleged in the Statement of Claim occur?

  1. [50]
    The events alleged in the statement of claim occurred 17 to 20 years ago. Repairs and rectification alleged must have been done more recently. I infer that any which were done were done after 2001. The amended statement of claim notably alleges more causes of action than appear in the amended claim. Allegations significant to the claims in the amended claim include:
  • August 1989 to August 1990: Contract between first plaintiff “Rabvue” and first defendant made partly orally by telephone conversation between Mr Bowd for Rabvue and Mr Whitaker for the first defendant.  The contract was for the first defendant for $7,000 to design two Rabvue buildings, prepare design drawings, supervise construction to ensure they were built according to drawings and in a workmanlike way, conduct inspections including a final inspection to ensure the buildings were built according to drawings and in a workmanlike way and to provide any necessary certifications.  The first defendant, Mr Whitaker and the third defendant, (“Mr Tonino”), were engineers who then knew and ought then to have known that Rabvue would rely on their skill while the first defendant performed the first defendant’s contractual obligations and the three of them ought then reasonably to have foreseen that if the first defendant failed to carry out its contract Rabvue would suffer rectification costs and loss of profits.  Rabvue was then dependant on the three of them and in a position of vulnerability. Mr Tonino prepared the design drawings for the buildings and Mr Whitaker checked them. Mr Tonino and Mr Whitaker and the first defendant failed to exercise reasonable skill as the drawings should have but failed to indicate a need for and positions for cyclone washers for parts of the roof to meet wind load requirements. The washers were required to meet an Australian Standard. Mr Whitaker personally inspected and supervised construction of the two Rabvue buildings and kept Rabvue advised as to progress of construction. Mr Whitaker and the first defendant failed to properly supervise and ensure construction in that roof sheeting was not provided in single lengths as shown in the drawings but was end lapped about half way and was either not sealed or inadequately sealed and the roof purlins were too widely spaced for lapped sheeting and thus failed to exercise reasonable skill. Mr Whitaker and the first defendant submitted the drawings to council and thereby represented that if the buildings were constructed in accord with the drawings the Rabvue buildings would withstand the most adverse combination of loads and that was false because of the washers and the roof sheeting. In August 1990 construction of the two Rabvue buildings was completed. Upon completion, Mr Whitaker and the first defendant certified to council and thereby represented that the buildings had been supervised and inspected by the first defendant and Mr Whitaker and completed in accordance with approved plans and normal building practice and were structurally sound. This certificate was false because of the absent washers and the overlapping and inadequately sealed roof sheeting. The first defendant, Mr Whitaker and Mr Tonino knew Rabvue would rely on their skill when the drawings were submitted to council and when certifying to council completed work.
  • January to August 1990: Rabvue and a builder, the fourth defendant, made an oral contract for the fourth defendant to supply and fix all materials for steelwork and the roof of the Rabvue buildings in accordance with drawings prepared by the first defendant and Mr Tonino. The builder knew Rabvue relied on its skill to prevent loss and the builder had control over the roofing works. The builder breached a contractual and general duty to exercise reasonable care and skill in supplying and fixing the materials. Instead of single length roof sheets it provided shorter sheets and overlapped them half way along without adequately sealing them and the roof purlins were too widely spaced for this.
  • Late 1991 to September 1992: the second plaintiffs, the Bowds, and the first defendant by Mr Whitaker made a contract which was partly oral that the first defendant would design the Bowd building, prepare design drawings, supervise construction to ensure it was built according to drawings and in a workmanlike way, conduct inspections including a final inspection to ensure the building was built according to drawings and in a workmanlike way and to provide any necessary certifications. The first defendant and Mr Whitaker then knew and ought then to have known that the Bowds would rely on their skill while the first defendant performed the first defendant’s contractual obligations and the both of them ought then reasonably to have foreseen that if the first defendant failed to carry out its contract the Bowds would suffer rectification costs and loss of profits. The Bowds were then dependant on both of them to perform the contracted services with reasonable care and were in a position of vulnerability. Mr Whitaker was involved in preparation of the design for the Bowd building. Mr Whitaker and the first defendant failed to exercise reasonable skill as the drawings should have but failed to indicate a need for and positions for cyclone washers for parts of the roof to meet wind load requirements. The washers were required to meet an Australian Standard. Mr Whitaker personally inspected and supervised construction of the Bowd building and kept the Bowds advised as to progress of construction. Mr Whitaker and the first defendant failed to properly supervise and ensure construction in that roof sheeting was not provided in single lengths as shown in the drawings but was end lapped about half way and was inadequately sealed as only one bead of sealant was used in the sheeting lap to prevent moisture penetration and the roof purlins were too widely spaced for lapped sheeting and thus failed to exercise reasonable skill. Mr Whitaker and the first defendant submitted the drawings to council and thereby represented that if the building was constructed in accord with the drawings the Bowd building would withstand the most adverse combination of loads and that was false because of the washers and the roof sheeting. In September 1992 construction of the Bowd building was completed. Upon completion, Mr Whitaker and the first defendant certified to council and thereby represented that the building had been supervised and inspected by the first defendant and Mr Whitaker and completed in accordance with approved plans and normal building practice and was structurally sound. This certificate was false because of the absent washers and the overlapping and inadequately sealed roof sheeting. The first defendant and Mr Whitaker knew the Bowds would rely on their skill when the drawings were submitted to council and when certifying to council completed work.
  • August to September 1992 the Bowds and another builder, being the fifth defendant, made a partly oral contract that the fifth defendant would supply and fix all roofing works for the Bowd building in accordance with drawings prepared by the first defendant. The builder knew the Bowds relied on its skill to prevent loss and the builder had control over the roofing works. The builder breached a contractual and general duty to exercise reasonable care and skill in supplying and fixing the materials. Instead of single length roof sheets it provided shorter sheets and overlapped them half way along inadequately sealing them with single bead sealant and the roof purlins were too widely spaced for this.
  • March 2001: Though not alleged in the pleading it is material to an argument as to limitation periods that Mr Bowd noticed one roof “was oxidising which in turn was causing water penetration. All of the industrial sheds have the same problem”.[19]By April 2001 he had engaged a solicitor, Mr Kerwin, to advise in respect of a potential claim against the engineer or builders or suppliers that worked on the roofs.
  1. [51]
    The claims included by the plaintiffs in the amended claim are against the first defendant, Mr Whitaker and Mr Tonino for damages for negligence and negligent misstatement, and against the fourth defendant for damages for negligence. The second plaintiffs by the amended claim, claim against the first defendant and Mr Whitaker damages for negligence and for negligent misstatement, and damages against the fifth defendant for negligence. By the amended statement of claim other causes of action are pleaded and claims in respect of them are made. However, counsel for the plaintiffs without conceding that the plaintiffs were confining themselves to the claims in the amended claim did confine his submissions with respect to prospects of success to the causes of action for negligence and negligent misstatement.

     How long ago was the litigation commenced?

  1. [52]
    Proceedings commenced against all five defendants on 24 December 2002 being 13 years after the oral contract with Mr Whitaker relating to the Rabvue buildings and 12 and a half years after their construction, 11 years after the oral contract with Mr Whitaker relating to the Bowd building and 10 years after its construction and 21 months after discovering roof problems in March 2001.

     What are the plaintiffs’ prospects of success in their actions?

  1. [53]
    The plaintiffs’ counsel first submitted that because defects in the buildings are not seriously contested the plaintiff must have significant prospects of successfully establishing liability in some of the defendants. If the submission was intended to imply that proof of defects is sufficient to establish liability against at least one party I reject it. In this proceeding the existence of duties of care, breaches of duty of care and causation of damage are live issues which are not surmounted by the plaintiffs’ proof of defects. In support of his submission plaintiffs’ counsel referred to the affidavit of his instructing solicitor Mr Ensby who deposed that after reviewing documents relevant to the claim and experts’ reports he holds the view that the plaintiffs have an arguable claim against all of the defendants and reasonable prospects of succeeding with their claim.  Mr Ensby did not identify a defendant against whom he held the view that prospects were reasonable. Despite Mr Ensby’s litigation experience, the opinion that prospects are reasonable is unpersuasive because Mr Ensby did not seek to explain how he came to it. His basis may be as unpersuasive as plaintiffs’ counsel’s first submission.
  1. [54]
    Plaintiffs’ counsel in his oral reply made a further submission on prospects. He placed significant reliance on a certificate dated 11 June 1992 as showing good prospects against some of the first to third defendants. The certificate was signed by Mr Whitaker acting for the first defendant. It was provided to the council. The certificate provided:

“We hereby certify that the construction of the above building has been inspected by the undersigned.  The completed work has been constructed in accordance with the approved drawings and good building practice and is structurally sound.”

The merit in the submission cannot be seen without analysis. Plaintiffs’ counsel did not elaborate as to how the certificate created prospects.

  1. [55]
    I infer the argument to be based on assumptions that the prospects are good of proving that the roof of at least the building so certified was not constructed according to the design and was not sealed in accordance with good building practice and that this ultimately led to loss of rental income and a need for repair and resheeting with longer single lengths. I will assume those facts though I must do so without the benefit of evidence. I infer the submission would proceed that the certificate was false as it implied that the roof “has been constructed in accordance with the approved drawings and good building practice”. I will assume that for the purpose of the analysis. The amended statement of claim does not allege that the certificate was a representation made to the plaintiffs or that it was relied upon by a plaintiff. It does not plead how the certificate, if false, caused loss to the plaintiffs. There was no submission as to why the cost of repairing the roof or altering it to conform to design drawings was a loss caused by the engineers’ false certificate. The certificate was created after the roof had been built. If the provision to council of a false certificate upon completion of the building was a breach of a duty of care owed by the first and second defendants to a plaintiff it is difficult to accept that the damage caused by that breach is the cost of repair or replacing of the roof sheets to conform to design drawings. The consequence of such a breach may be that the relevant plaintiff remained unaware until 2001 of the failure to build according to plan and to properly seal the roof joins. The false certificate would not have caused the need for repair or replacement of roof sheets. The certificate, assuming it to be false, does not create good prospects of success in either plaintiff of a claim for the damages alleged. There was no evidence put before me by the plaintiffs which would allow me to consider the strength of the plaintiffs’ prospects of successfully proving the disputed issues that the first, second or third defendants agreed with the plaintiffs to inspect the roof of each building so as to determine whether the roof sheeting had been applied in accordance with design drawings and, if it had not, that it had been properly sealed. There was no evidence put before me by the plaintiffs which would allow me to consider the strength of the plaintiffs’ prospects of successfully proving the disputed claim allegation that the first and second defendants agreed to supervise construction. I proceed on the basis that the plaintiffs have an arguable claim against the first to third defendants. I do not proceed on the basis more favourable to the plaintiffs that they have good prospects of recovering the damages claimed against the first to third defendants with respect to the Rabvue 1 and 2 buildings or against the first and second defendants with respect to the Bowd building.
  1. [56]
    The prospects of success of the claims against Mr Tonino in respect of the Rabvue 1 and 2 buildings were not distinguished by the plaintiffs in argument from their prospects against the first and second defendants. In correspondence from the plaintiffs’ former solicitor the first and second defendants were at times from as early as December 2004 singled out to the fourth and fifth defendants as the parties against whom the plaintiffs were proceeding.[20] The prospects against Mr Tonino are different from the prospects of the other engineers being the first defendant and Mr Whitaker. The case against Mr Tonino appears to be based upon the allegations that he did design drawings for the Rabvue 1 and 2 buildings but not for the Bowd building. The design of the Rabvue 1 and 2 buildings were allegedly inadequate for failing to specify a need for and position of cyclone washers. That was the last alleged involvement of Mr Tonino. After his involvement, it is alleged that the designs were not followed by the alleged builder of those two buildings being the fourth defendant or Don Lawson Constructions Pty Ltd; that the alternative designs used resulted in overlapped sheets instead of single sheets; that this was compounded by inadequate sealing or no sealing of the joins and that this led to roof leaks and a need for repair. The damage caused by the failure to specify cyclone washers would seem to be Mr Tonino’s only potential breach of duty. How that breach entitled the plaintiffs to damages for the alleged repair and rectification expenses of the Rabvue 1 and 2 buildings is not obvious and was not the subject of submissions.
  1. [57]
    I proceed on the basis that there is an arguable claim against Mr Tonino for breach of duty of care but with poor prospects of success of establishing against him for damages either the amount claimed or any lesser amount as the pleading does not distinguish an amount attributable to his alleged breach of duty. Prospects against him may depend upon proof that his breach caused a need for repairs which have been done or increased costs of repair. There is no pleading, submission or evidence to suggest that the plaintiffs have devoted any resources to identifying what loss, if any, is attributable to Mr Tonino’s alleged breach of duty.
  1. [58]
    With respect to the prospects of success against the fourth defendant builder, it relates to a claim in respect of the Rabvue 1 and 2 buildings. The fourth defendant alleges that the building work was completed by an independent building company, Don Lawson Constructions Pty Ltd which is not a party. The fourth defendant alleges that there was a contract between that independent building company and the plaintiffs and that it is supported by five invoices disclosed by the plaintiffs being invoices from that independent company. The fourth defendant put evidence before me of its former director, Mr Mathieson. Mr Mathieson’s evidence evolved from his first to second affidavits. His first affidavit was to the effect that the fourth defendant agreed either to supply a plaintiff a shed in kit form which was to be erected by Don Lawson Constructions Pty Ltd or alternatively the fourth defendant sold the kit to Don Lawson Constructions Pty Ltd which then supplied and erected the building for a plaintiff. Mr Bowd deposed that he received a quote from Don Lawson Constructions Pty Ltd and contacted Mr Mathieson and told him to proceed with the works and that Mr Mathieson instructed Mr Bowd to make payments for the work directed to Don Lawson Constructions Pty Ltd. After works were done Mr Bowd subsequently spoke to Mr Mathieson about additional works being carried out to the buildings including installation of skylights. On about 18 January 1990 Mr Mathieson gave Mr Bowd a further quote from Don Lawson Constructions Pty Ltd. Mr Bowd deposed that he proceeded on the basis that the agreement he had was with the fourth defendant and that Don Lawson Constructions Pty Ltd were carrying out the construction as builders for the fourth defendant. I note that Mr Bowd’s honest opinion that he had an agreement with the fourth defendant is not relevant in law to determine whether that party owed him a duty to take care with the construction of the building. After deposing to these matters the plaintiffs supplied copies of invoices from 1990 to the solicitors for the fourth defendant. Perusal of the documents caused Mr Mathieson to depose in a further affidavit that the fourth defendant’s sole role was as supplier of building materials to Don Lawson Constructions Pty Ltd. No submission was made by the plaintiffs to explain how these facts create an arguable case of negligence against the fourth defendant save that the plaintiffs referred to C&E Pty Ltd v Corrigan [2006] QCA 47 at [11] affirming Valleyfield Pty Ltd v Primac [2003] QCA 339. Plaintiffs’ counsel submitted that Valleyfield was authority for the proposition that a supplier which supplied pursuant to a sub contract to a contractor which then supplied pursuant to a contract to a purchaser owed a duty of care in tort to the purchaser. I do not regard Valleyfield as authority for that unqualified proposition. The duty in tort owed in Valleyfield did not arise because a party was a subcontractor. The liable party was designer of a defective watering system for the plaintiff. On the evidence before me I can not find that the prospects of success against the fourth defendant in the action for negligence alleged in the amended statement of claim are good. In respect of any building built by Don Lawson Constructions Pty Ltd the prospects against the fourth defendant appear poor. I do not determine that the plaintiffs’ prospects are unarguable.
  1. [59]
    No party made any specific submissions with respect to the prospects of success against the fifth defendant. The amended claim suggests that the claim is for about $70,000 and interest against the first and second defendants and further or alternatively against the fifth defendant builder for negligence as the alleged builder of the Bowd building. The plaintiffs relied upon the general submission that, as there were reasonable prospects of proving defects in the building, they must have reasonable prospects of success against one of the named defendants. The plaintiff relied upon no evidence save for the unexplained opinion of Mr Ensby. I am unable to make a finding as to the strength or weakness of the prospects of success against the fifth defendant. I proceed on the basis that an arguable claim exists against the fifth defendant.

Has delay resulted in prejudice to the defendants leading to an inability to ensure a fair trial?

  1. [60]
    The first to third defendants identify a particular prejudice as having arisen because of the delay. The memory of a witness for those defendants, Mr Whitaker, has faded with time. Further, in 2007 he underwent chemotherapy. Since that treatment his memory of events prior to 2007 has become increasingly vague.
  1. [61]
    The plaintiffs argued that if delay attributable to them makes them responsible for prejudice suffered by the first to third defendants as a result of Mr Whitaker’s memory loss from 2007 that prejudice should be distinguished from problems the first to third defendants had with their defence before 2007. Essentially, the plaintiffs submitted that Mr Whitaker’s memory was poor about material allegations from the commencement of the litigation and that the plaintiffs are not responsible for that difficulty faced by the first to third defendants. They argued in support of that submission that they included certain material allegations in the statement of claim filed in 2002, that the allegations are supported by documentary evidence, that the defendants in 2005 did not deny the allegations when they filed their defence but pleaded that the allegations were not admitted because the defendants had not completed their investigations, that the defendants did not in the following 2 years until Mr Whitaker’s chemotherapy in 2007 amend their defence either to deny the allegations or plead another explanation for the non-admissions, that there was an obligation imposed upon defendants by UCPR rule 166(6) to make further enquiries that may be reasonable and, if the results of the enquiries make possible the admission or denial of an allegation to amend the pleading appropriately, that the defendants did not amend, that the failure by the defendants to amend their defence means Mr Whitaker’s instructions between April 2005 and 2007 were not such as to provide an explanation which would permit a plea that Mr Whittaker believed the allegations to be untrue or that he believed the allegations could not be admitted, that it follows Mr Whitaker had no useful instructions to give prior to 2007 on the certain material allegations before his memory became increasingly vague after chemotherapy.
  1. [62]
    What were those material allegations to which the first to third defendants pleaded that the allegations were not admitted because the defendants had not completed their investigations? The allegations are to the effect that the first defendant engineering company agreed by Mr Whitaker that it would inspect the works and that the works impliedly included the roof of each building and agreed that it would provide any necessary certifications.
  1. [63]
    The plaintiffs did not make these submissions in writing or orally until, at the end of the day’s oral argument, plaintiffs’ counsel raised them in reply. The submission was made when, by convention, only matters of law should be raised. It took counsel for the first to third defendants by surprise and his submission in rebuttal was understandably more general and less helpful than it would have been with notice. The first to third defendants essentially responded that Mr Whitaker would have given evidence on many more issues than those few related to the issue of the certificates. In particular it was submitted that he could have given evidence as to the date when damage to the buildings would have been obvious and that would have assisted to show whether the claim in tort was statute barred; that the plaintiff’s reply repeated facts alleged in the amended statement of claim and so Mr Whitaker’s evidence could be led on the allegations of fact raised in the reply. It was submitted that the taking of Mr Whitaker’s instructions on certain amendments to the defence was postponed to await the plaintiffs’ response to requests for particulars of whether one or both of the buildings were certified. To understand the merits of the plaintiffs’ and defendants’ submissions requires an analysis of the pleadings and the rules not done in submissions.
  1. [64]
    Mr Whitaker is the second defendant and at all material times he was a director of the first defendant authorised to act on the first defendant’s behalf and he was a registered professional engineer. The first defendant was a registered professional engineering company. The plaintiffs alleged that the contract between the first plaintiff and the first defendant, insofar as it was made orally, was made on behalf on the first defendant by Mr Whitaker. The first to third defendants filed their defence on 20 April 2005. The defence was prepared and filed two years before Mr Whitaker’s chemotherapy affected his memory. The first to third defendants admitted that Mr Whitaker had telephone conversations concerning a contract but did not admit that Mr Whitaker made the contract “because they have not yet completed their investigations”.[21] 
  1. [65]
    The plaintiffs alleged[22] that material oral terms of the contract included terms that the first defendant would (so far as is relevant): 

“6(b)(i) design the buildings;

…

  1. (v)
    supervise the construction of the buildings to ensure that they were properly built in accordance with drawings and specifications and otherwise in a proper and workmanlike manner;

…

  1. (vi)
    provide any necessary certifications for the work;
  1. (vii)
    inspect the work at various stages including final inspection, to ensure the above matters were carried out …”
  1. [66]
    To the allegation that there were those terms agreed, the first to third defendants by their defence at par 6(f) denied statement of claim par 6(b)(v) because:

“(i) The role of the first defendant was not to supervise, either as alleged or at all;

  1. (ii)
    The first defendant was engaged to design the Rabvue buildings;
  1. (iii)
    The plaintiff’s and/or their builder/project manager supervised the construction.”
  1. [67]
    The denial of par 6(b)(v) does not necessarily imply that there was no engagement of the first defendant to provide necessary certifications or to conduct inspections. One need not be engaged to supervise in order to inspect and certify. As to that issue the first to third defendants pleaded in April 2005 that they did “not admit 6(b)(vi) and 6(b)(vii) because they have not completed their investigations”.
  1. [68]
    The plaintiffs further alleged, so far as seems relevant to the question of Mr Whitaker’s memory:

“9. Further:

…

  1. (b)
    The first, second and third defendants knew or ought to have known that the first plaintiff would rely on their skill and judgment in carrying out the Rabvue Engineering Services;
  2. (c)
    The first, second and third defendants could reasonably foresee or ought reasonably to have foreseen, and knew that if the Rabvue Engineering Services were not properly carried out the first plaintiff could suffer loss and damage …
  3. (d)
    The first, second and third defendants had control over the performance of the Rabvue Engineering Services and/or assumed the responsibility and liability therefore;
  4. (e)
    The first plaintiff was dependent on the first, second and third defendants to carry out the Rabvue Engineering Services with reasonable care;
  5. (f)
    The first plaintiff … relied on the first, second and third defendants to exercise reasonable care in carrying out the Rabvue Engineering Services;

…

                      (h) Further, the second defendant at all times;

                         (i) Personally inspected and supervised the                       construction of the Rabvue 1 and 2 buildings …

                          (ii) Personally … signed certification to the Council of the City of Hervey Bay … at the completion of the work.”

  1. [69]
    To those allegations at statement of claim 9(b) to (f) the first to third defendants pleaded reliance on their paragraph 6 which was in effect that the first defendant was engaged to design but not to construct or supervise and also pleaded:

“In respect of paragraph 9, the defendants:

…

  1. (f)
    In relation to paragraph 9(h)(i), they:

…

  1. (iv)
    Say the second defendant did not inspect the “Hold down bolts” as this is the responsibility of the steel fabricator.
  2. (v)
    Say the second defendant did not and was not obliged to inspect the roofs of the buildings by climbing on top of them;
  3. (vi)
    Say the second defendant’s visits were never for the purpose of supervising the construction of the Rabvue Buildings.

…

  1. [70]
    To an allegation in the Amended Statement of Claim at paragraph 9(i) that the first, second and third defendants each owed the first plaintiff a duty to carry out engineering services with reasonable care, skill and diligence those defendants pleaded, among other things, the matters above and also reliance on paragraph 8(g) of their Defence which pleaded, so far as is relevant to this issue:

“(g) Deny paragraph 9(h)(ii) because:

…

  1. (ii)
    The plaintiffs were in control of the construction …and engaged contractors to assist with the construction;
  2. (iii)
    The defendants were not retained to supervise, project manage or otherwise oversee the progress of the construction;
  3. (iv)
    The defendants did not have any contact with the contractors engaged to construct the Rabvue Buildings and were not required to do so;

…

  1. (v)
    The plaintiffs … managed and/or instructed others to manage the construction of the Rabvue Buildings.”
  1. [71]
    In their reply, the plaintiffs averred in pleading a denial that the scope under which the first defendant was retained was as set out in paragraph 6(b) of the statement of claim.[23]The first to third defendants submitted that Mr Whitaker’s evidence could be led on the allegations of fact raised in the reply. No rule was referred to. If that submission were correct it would follow that the averment in the reply meant that the first to third defendants were at liberty to lead evidence from Mr Whitaker on the issue of whether he agreed to inspect and certify roofs and or buildings as part of a contractual agreement, even though the non-admission to statement of claim paragraph 6(b)(vi) and(vii) would arguably have precluded Mr Whittaker’s giving such evidence.
  1. [72]
    I reject the submission that Mr Whitaker’s evidence could be led on the allegations of fact raised in the reply merely by reason of the fact that the allegations were again there made. The effect of UCPR r 168(1) and r 165(2) is that the first to third defendants were relieved of the obligation to plead to the reply but by failing to plead to the averment they are deemed to have not admitted it with the consequence that they may not give or call evidence in relation to the averment unless it relates to another part of their pleading.
  1. [73]
    Despite that limitation on the evidence which may have been led from Mr Whitaker he is a person who should have had evidence and instructions to contribute on many factual matters related to disputed issues where bases for denials or non-admissions were pleaded. I accept that Mr Whitaker would have given evidence on many more issues than those few related to the issue of the certificates.
  1. [74]
    The plaintiffs did not argue that the first to third defendants were not prejudiced by Mr Whitaker’s memory loss on matters unrelated to the certificates or that Mr Whitaker’s memory loss would not prejudice his ability to give evidence about denials or non-admissions where bases were directly explained by the first to third defendants in their defence. Mr Whitaker, with memory unimpaired, would have been a significant witness on numerous issues. Examples are whether the agreement was that the first defendant was not to supervise or oversee the progress of roof construction; whether by the terms of the agreement or otherwise the first defendant was obliged to or relied upon by the plaintiffs to inspect the roofs of completed buildings by climbing on them; whether the plaintiffs or their builder/project manager supervised roof construction or relied upon the first to third defendants for matters related to roof construction.
  1. [75]
    It was submitted for the first to third defendants that the taking of Mr Whitaker’s instructions on certain amendments to the defence was justifiably postponed to await the plaintiffs’ response to requests for particulars of whether one or both of the buildings were certified. The issues of whether Mr Whitaker agreed to inspect each roof and to provide necessary certifications could have been the subject of full instructions without first clarifying particulars. If the litigation had proceeded expeditiously the delay in taking Mr Whitaker’s instructions would have been inexcusable. Having regard to the apparent tardiness on the part of the plaintiffs to 2007 I accept that it was reasonable to postpone calling Mr Whitaker in to give fuller instructions on the defence to the amended statement of claim until after requests for particulars had been responded to by the plaintiffs. I do not find that Mr Whitaker would have had no more instructions to give capable of providing a basis for not admitting or for denying an agreement to inspect each roof and to provide necessary certifications and whether that amounted to agreement to ensure that the roof sheets were fixed in accordance with the drawings or were properly sealed. It is plausible that more instructions may have existed to provide the required basis as the first to third defendants had pleaded elsewhere that the sheeting was installed contrary to their design and that they were not responsible for supervision of construction or for deviation from their design and were not obliged to inspect roofs.
  1. [76]
    For reasons given with respect to prospects, I do not regard the issue of the giving of certificates by Mr Whitaker as being of central significance in a claim by the plaintiffs for damages for the cost of repair and reroofing. The allegations which are likely to be a basis for a claim that those costs are damages caused by a breach of duty by the first and second defendants are the allegations that the first defendant twice agreed by Mr Whitaker to supervise construction of a building and the plaintiffs relied upon the first second and third defendants to supervise construction. These seem to be more important allegations for the plaintiffs. It is likely that Mr Whitaker would have been a central witness for the first to third defendants with respect to those allegations.
  1. [77]
    I find that the delay has resulted in a particular prejudice for the first and second defendants and to a lesser extent the third defendant because of the impairment of memory suffered by Mr Whitaker since 2007. The prejudice is significant as Mr Whitaker appears likely to have been the most material witness for the first and second defendants. The prejudice to those defendants who depend upon the evidence of Mr Whitaker is such as to lead to an inability to ensure a fair trial.
  1. [78]
    The principal witness for the fourth defendant would be Mr CK Mathieson. His memory of the events of about 1990 is impaired by the passage of time. The fourth defendant company was sold before proceedings commenced. Former staff were not retained. The former sales manager died in 2008. Mr Mathieson once had a good and useful relationship with a research engineer of a large roofing supply company and would have been able to obtain valuable and free help in preparation for defending the plaintiffs’ claim against the fourth defendant. Delay has meant that the opportunity is lost.
  1. [79]
    Mr Mathieson’s instructions that the fourth defendant had no contract with the plaintiffs and that Don Lawson Constructions erected the building were conveyed to the plaintiffs’ solicitor on 9 January 2003 being the day the claim and statement of claim were served on the fourth defendant. That led the plaintiffs’ solicitor to confirm that he would not require a defence from the fourth defendant without giving reasonable notice. The fourth defendant, in view of that confirmation, instructed its solicitors not to take any further steps. They sought and obtained further confirmations from the plaintiffs’ solicitor in 2003, 2004, and 2005 that no defence was required from it. The fourth defendant was not asked for a defence again. It is fair that the fourth defendant may raise the whole of the prejudice caused to it by any loss of witnesses, documents and memories until the plaintiffs’ application was filed in 2009. That loss is likely to be significant and to result in unfairness to it.
  1. [80]
    It is not essential that parties point to particular prejudice such as the acute memory loss of Mr Whitaker. This is not a case primarily concerned with documentary evidence of historical events. Resolution of many important issues, for example about the terms of agreements, content of advices given, degree of plaintiffs’ reliance, the extent of defendants’ supervision of construction, who supervised construction and who performed various building tasks will depend upon oral testimony. When 19 years have passed, where memories of events are to be the basis of evidence, even honest witnesses will be providing a reconstruction of important events rather than a recollection of them. The process of presenting reliable evidence in a trial of this proceeding will be impeached by the long delay. It was observed by Keane JA as his Honour then was in Page v The Central Queensland University [2006] QCA 478 at [24]:

     While it is true to say that the court will be reluctant to deny a litigant with an arguable case the opportunity for a fair trial of his or her claim, it must be emphasised that the opportunity in question is the opportunity for a fair trial. The court is not in the business of preserving the opportunity to conduct solemn farces in which parties and witnesses are invited to attempt to reconstruct recollections which have long since disappeared. Such a trial would not be fair for either party.

  1. [81]
    The fifth defendant filed a defence on 5 February 2003. It made no specific submissions as to its prejudice. Its defence includes allegations that it did was not required to install the roof sheets and that it believes Mr Bowd decided to cut roof sheets in two to cut transport costs. The long delay is likely to cause some prejudice to it because of the impaired memory of relevant witnesses about important events.

           Disobedience of court orders or directions?

  1. [82]
    There has been disobedience of a court order. The plaintiffs have failed to comply with an order for particulars in favour of the first to third defendants made 17 February 2004.

          Has the litigation has been characterised by periods of delay?

  1. [83]
    The plaintiffs discovered the defects in March 2001, and became aware of the extent of them and their alleged causes in May 2002. A claim and statement of claim were filed on about 24 December 2002.
  1. [84]
    The litigation has been characterised by periods of delay which were primarily the responsibility of the plaintiffs and their former solicitor.
  1. [85]
    The plaintiffs or their former solicitors were persuaded soon after commencing proceedings to concentrate their efforts on the first and second defendants.[24] In letters of 7 December 2004[25] the plaintiffs’ solicitor explained to the solicitor for the fourth defendant and to the solicitor for the fifth defendant that the matter “has been proceeding against the First Defendant and Second Defendant”.
  1. [86]
    As a consequence the proceedings against the fourth and fifth defendants were practically dormant from January 2004 as the attached chronology reveals. I find that the parties proceeded as the chronology records. Where greater detail appears elsewhere in these reasons it is intended that in the event of inconsistency the greater detail in these reasons prevails.
  1. [87]
    Plaintiffs’ counsel was particularly critical of the fourth defendant’s conduct and submitted that the plaintiffs would prima facie be entitled to apply for default judgment against it after a notice dated 30 April 2007. The submission must be rejected. The fourth defendant has not filed a defence because it has not been required by the plaintiffs to do so. The explanation appears to be likely to begin with the fourth defendant’s solicitor’s letter dated 9 January 2003 querying whether there had been a contract with the fourth defendant relating to any relevant building. The delay in filing a defence is difficult to criticise having regard to the plaintiffs’ solicitor’s letters dated 15 January 2003, 7 December 2004[26] and 7 January 2005[27] assuring the fourth defendant that no defence was required from it and that the plaintiffs had no intention to take steps detrimental to its interests without reasonable written notice. Though the plaintiffs’ solicitors served a copy of their clients’ list of documents on the fourth defendant by letter dated 5 January 2005 it should be noted that, firstly, the first to fourth defendants had not served defences and a list of plaintiffs’ documents could not have been properly compiled without a consideration of the issues between the plaintiffs and the first to fourth defendants, and secondly they advised the fourth defendant that “once we have a defence from the First and Second Defendant we will let you know the position with respect to your client.”  It was reasonable for the fourth defendant to infer that from 15 January 2003 that the proceeding against the fourth defendant was dormant from the plaintiffs’ point of view. The fourth defendant has not been served with one month’s notice of intention to proceed. The identity of the notice dated 30 April 2007 to which the plaintiffs’ counsel referred is not obvious. If it is a letter allegedly sent that day by the plaintiffs’ former solicitor purportedly enclosing a copy of an amended claim and amended statement of claim removing the number of alleged causes of action I have found that the letter was not then sent to the fourth defendant. Another letter enclosing those two inconsistent documents was received by the fourth defendant’s solicitor in December 2007 with a proposal that the parties select mediators from a panel of three.
  1. [88]
    The fifth defendant filed a notice of intention to defend and defence on 5 February 2003. The correspondence between the plaintiffs and the fifth defendant has not been put in its entirety into evidence. The plaintiffs’ solicitors wrote on 7 December 2004 that the plaintiffs had no intention to take steps detrimental to its interests without reasonable written notice. The plaintiffs filed no reply to the defence of the fifth defendant. They served a copy of their clients’ list of documents on the fifth defendant by letter dated 5 January 2005 advising “once we have a defence from the First and Second Defendant we will let you know the position with respect to your client.” When the plaintiffs gave a month’s notice of intention in March 2007 to take a step in the proceeding they did not give it to the fifth defendant. When they amended the claim in April 2007 to delete some causes of action relevant to the fifth defendant they did not serve it on the fifth defendant and did not trouble to amend the related parts of the statement of claim. The amended claim was eventually served without an amended statement of claim on 27 November 2007 as part of a letter proposing mediation with all parties. It was reasonable for the fifth defendant to infer that from 7 December 2004 that the proceeding against the fifth defendant was dormant from the plaintiffs’ point of view.
  1. [89]
    The chronology reveals that the proceeding against the first to third defendants was not dormant. It has been characterised by the first to third defendants’ consistent requests to the plaintiffs’ former solicitor. There were requests for particulars, requests for the plaintiffs to abandon statute barred claims and amend accordingly, requests for updates as to the status of the proceeding and suggestions for mediation. The activity was primarily by the first to third defendants.

          Whether the delay is attributable to particular parties or lawyers?

  1. [90]
    The delay by the fourth and fifth defendants is not attributable to them for the reasons given above. The first to third defendants have consistently pursued the plaintiffs’ former solicitors. Such delays as may be attributable to the first to third defendants seem reasonable in the context of this proceeding.
  1. [91]
    The plaintiffs allege matters against their former solicitor which, if accurate, would relieve the plaintiffs of responsibility for a year’s delay after 13 December 2007 because of positive deception of the plaintiffs by their solicitor. For the first five years after litigation commenced the plaintiffs suggest no deception of them and give no relevant explanation for the dormancy of the proceedings against the fourth and fifth defendants or for their failure to act expeditiously against the first to third defendants. I proceed on the basis that the plaintiffs are to be excused for that year of delay. Despite the apparent failings of their former solicitor, the plaintiffs bear much responsibility for the delay until December 2007. When they commenced proceedings the plaintiffs gave an implied undertaking to the court and to all defendants to proceed expeditiously.[28]The plaintiffs’ breach of that undertaking was substantial until December 2007. A plaintiff may be held responsible for a tardy lawyer if the plaintiff should have insisted that the case be prosecuted.[29] The plaintiffs provide no evidence which adequately explains or justifies their breach of their implied undertaking and their responsibility is a relevant matter in the exercise of my discretion.

          Whether plaintiffs’ impecuniosity has been responsible?

  1. [92]
    Impecuniosity has not been a cause of the delays on the plaintiffs’ part.

          Whether the litigation would be concluded by the striking out?

  1. [93]
    Litigation between these parties would conclude if the claims are struck out as the limitation periods have expired. I take this feature into account in the plaintiffs’ favour.[30]

          How far the litigation has progressed?

  1. [94]
    An amended claim has been filed and served on all parties by December 2007. An amended statement of claim containing related amendments appropriate to the first to third defendants has been served on the first to fourth defendants by December 2007. The amended statement of claim requires further amendment with respect to the claims against the fourth and fifth defendants. The fourth defendant has not filed a defence. The plaintiffs’ provision of a list of documents can be regarded as related only to the proceeding against the first to third defendants. The first to third defendants need to amend their defence. Disclosure will be required after pleadings close. Expeditiously pursued, the litigation should have reached this stage by the end of 2003. Pleadings have not closed.

Application for leave to proceed

  1. [95]
    In summary of the above, the demonstration of only arguable as opposed to good prospects of success, the unlikelihood that the first and second defendants can now achieve a fair trial because of Mr Whitaker’s particular memory loss, the unlikelihood that any party can now achieve a fair trial because of the effect of fading memory on so many important issues involving matters from 19 years ago, the existence of a particular prejudices to the fourth defendant and the dubious prospects against it, the fact that the plaintiffs are partly responsible for these prejudices and the fact that the defendants bear so little responsibility for these prejudices are significant matters in this case. Also relevant are the undoubted psychological effects on the parties in this matter.[31]
  1. [96]
    I refer to the compendious collection of relevant authority referred to and the observations by Chesterman J as his Honour then was in Quinlan[32] where it was observed:

““[44] It is apt to recall the often quoted remarks of McHugh J in Brisbane South RegionalHealth Authority v Taylor (1996) 186 CLR 541 at 552:

‘The effect of delay on the quality of justice is no doubt one of the most                             important influences motivating a legislature to enact limitation periods for                             commencing actions. But it is not the only one. Courts and commentators                                           have perceived four broad rationales for the enactment of limitation                                           periods. First, as time goes by, relevant evidence is likely to be lost.                                           Second, it is oppressive even “cruel”, to a defendant to allow an action to                                           be brought long after the circumstances which give               rise to it have passed.                                           Third, people should be able to arrange their affairs and utilise their                                           resources on the basis that claims can no longer be made against them.                                           Insurers, public institutions and businesses, particularly limited liability                                           companies, have a significant interest in knowing that they have no                                           liabilities beyond a definite period.’ Although those remarks were made in                             a case involving an application for leave to commence an action out of time                             they are equally apposite to an application to strike out for want of                                                         prosecution, or for leave to proceed. [45] The remarks of Justice Keane in                                           Page are apposite in this regard also.               His Honour said: ‘The court is not in                                           the business of preserving the opportunity to conduct solemn farces in                                           which parties and witnesses are invited to attempt to reconstruct                                                         recollections which have long since disappeared. Such a trial would not                                           be fair for either party.’

[46] There is also the point that the continuation of the action is causing the                             first defendant a degree of inconvenience, and I think embarrassment, and                                           disruption to the conduct of his own affairs. In this regard it is appropriate                                           to recall the remarks of McPherson JA in Cooper v Hopgood and Ganim                                           1999 2 Qd R 115 at 124 ‘… ordinary members of the community are                                           entitled to get on with their lives and               plan their affairs without having the                                           continuing threat of litigation and its               consequences hanging over them. The                             psychological as well as the commercial effects of such a state of affairs                                           ought not to be underestimated.’

  1. [97]
    I refuse the plaintiffs’ application for leave to proceed.
  1. [98]
    The fourth defendant applied by reference to r 5, r 280 and the inherent jurisdiction of the court for an order that the proceeding be dismissed for want of prosecution. The other defendants supported the application.
  1. [99]
    If r 280 is relied upon, the discretion seems to require that a party has failed to take a step required by the rules. The defendants did not make submissions as to the step which the plaintiffs failed to take or address the nice question whether failure to comply with the implied undertaking arising from r 5(3) is a “failure to take a step required” by the rules within the meaning of r 280. Arguably, the defendants could have relied upon the plaintiffs’ breach of an order for delivery of particulars or the several failures in 2007 to take actions as failures to take a step or steps required by the rules. I refer to the plaintiffs’ failure in March 2007 to give notice to the fourth and fifth defendants of their intention to take a step in the proceeding by amending and serving the writ or the statement of claim and to their failure in April 2007 to obtain leave to amend the claim and their failure in April 2007 to serve the amended claim and statement of claim on the fourth and fifth defendants as soon as practicable after the amendments were made and their failure to amend the statement of claim to delete claims and immaterial allegations against the fourth and fifth defendants so as to reconcile the statement of claim with the amended claim and their failure at any time to serve the fifth defendant with an amended statement of claim. In the absence of submissions about that basis for considering the exercise of discretion under r 280 I will consider also the submission about inherent jurisdiction.
  1. [100]
    In Quinlan at [53] Chesterman J relied upon the court’s inherent power to dismiss a proceeding for want of prosecution. With respect to the District Court, its jurisdiction is created by statute and it does not have the same inherent jurisdiction as the Supreme Court. In the case of the District Court it may not be correct to refer to its inherent jurisdiction to dismiss for want of prosecution. I refer instead to the court’s implied power to control its own processes which includes a power to dismiss this proceeding for want of prosecution. The plaintiffs’ failures to take the actions in 2007 to which I referred and those other matters to which I referred when considering that leave should not be granted to proceed persuade me that the proceeding should be dismissed for want of prosecution.


Chronology

Date

Event

March 2001

Plaintiff first discovered defects and first became aware of the extent and cause of defects in May 2002.

April or May 2001

4th defendant director discussed corrosion issue with 2nd plaintiff.

September 2002

4th defendant sells its business of manufacture and supply of building materials.

24 December 2002

Claim and Statement of claim filed.

9 January 2003

4th defendant served with claim and Statement of Claim.

4th defendant solicitors write to plaintiffs solicitors querying claim

15 January 2003

Plaintiffs solicitors advise that plaintiffs do not require a defence from the 4th defendant

31 January 2003

4th defendant solicitors  write to plaintiffs inviting “without prejudice” conference.

5 February 2003

Defence of 5th  defendant filed and served.

6 March 2003

Request by the 1st, 2nd, 3rd defendants for further and better particulars from the plaintiffs.

2 April 2003

Documentation requested by defendants.

10 April 2003

Defendants require the particulars be provided by 23 April 2003.

8 May 2003

Rule 444 letter. 1st, 2nd and 3rd defendants require the particulars within 7 days.

12 May 2003

4th defendants solicitors write to plaintiffs’ solicitors enquiring about progress.

19 May 2003

Plaintiffs respond (working on particulars). Documents requested being arranged for delivery.

2 June 2003

Plaintiffs respond (still working on particulars).

10 November 2003

Rule 444 Letter – 1st, 2nd and 3rd defendants require particulars within 14 days.

28 November 2003

1st, 2nd and 3rd defendants require the particulars by Friday 5 December 2003.

7 December 2003

Plaintiffs respond - particulars will be provided by 10 December 2003.

26 December 2003

Plaintiffs respond – particulars will be provided by 17 January 2004.

6 February 2004

Application in the proceeding.

1st, 2nd and 3rd defendants Application for particulars returnable 6 March 2003.

10 February 2004

Plaintiffs respond. Consent to the orders that particulars be provided by 27 February 2004.

17 February 2004

Consent order for provision of particulars.

Orders that particulars be provided by 27 February 2004.

27 February 2004

Plaintiff breaches Consent Order. Particulars not provided.

11 March 2004

1st, 2nd and 3rd defendants require the particulars be provided by 19 March 2004.

12 March 2004

Order CFI #7.

12 March 2004

Consent order of the registrar in respect to further and better particulars as requested 6 March 2004.

19 March 2004

Further particulars of the plaintiff.

22 March 2004

Plaintiffs provide 17 pages of particulars to request dated 6 March 2003.

23 March 2004

1st , 2nd  and 3rd  defendants delivered 2nd request for particulars

Request arise out of particulars delivered

29 April 2004

1st, 2nd and 3rd defendants require outstanding documents and particulars.

18 May 2004

1st, 2nd and 3rd defendants require outstanding documents and particulars, and advise that failure to respond was prejudicing the investigation being undertaken.

20 August 2004

1st, 2nd and 3rd defendants ask if plaintiffs’ solicitors are still retained.

31 August 2004

1st, 2nd and 3rd defendants advise that 24 June and 20 Aug 2004 queries remain unanswered.

30 November 2004

Disclosure by 1st, 2nd and 3rd defendant .

(No disclosure to the 4th & 5th defendants r214)

7 December 2004

Letter from the plaintiffs’ solicitor to the 5th defendant’s solicitor undertaking not to take any step without giving reasonable notice.

Letter from the plaintiffs’ solicitor to the 4th defendant’s solicitor undertaking not to take any step without giving reasonable notice.

Plaintiffs solicitors write to 4th defendant solicitors again confirming that plaintiffs did not then require a defence from the 4th defendant.

16 December 2004

Mutual inspection of documents by plaintiffs and 1st, 2nd and 3rd defendants.

20 December 2004

List of documents provided by the plaintiffs to the 1st, 2nd and 3rd defendants

7 January 2005

List of documents provided by the plaintiffs to the 4th and 5th defendants. Letter implies the proceedings dormant against them until further notice.

20 April 2005

Defence of the 1st, 2nd & 3rd defendants filed and served.

1st, 2nd and 3rd defendants request:

  • response to the request for particulars dated 23 March 2004
  • copies of other defendants list of documents

4 May 2005

Reply to the defence of the 1st, 2nd and 3rd defendants served.

2 June 2005

1st , 2nd  and 3rd  defendants require outstanding particulars and documents by 16 June 2004.

16 June 2005

1st 2nd  and 3rd  defendants require outstanding particulars and documents by 23 June 2004.

25 August 2005

4th defendant solicitors write to plaintiffs’ solicitors requesting advice as to plaintiffs’ intentions.

7 October 2005

Rule 444 Letter

1st , 2nd  and 3rd  Defendants require outstanding particulars and documents requested on 23 March 2004 by 12 October.

12 October 2005

Particulars not provided by plaintiffs.

27 February 2006

Rule 444 Letter

1st, 2nd  and 3rd  defendants require barred claims be abandoned.

27 March 2006

Plaintiffs’ response.

Counsel who drew SC [B Kellher] has retired.

Hope to deliver an amended claim shortly.

4 May 2006

1st , 2nd  and 3rd  defendants require amended claim be filed.

15 May 2006

Plaintiff serves unsealed amended claim and statement of claim 1st, 2nd and 3rd  defendants.

No particulars provided.

22 June 2006

1st , 2nd  and 3rd  defendants point out deficiencies in amended statement of claim.

14 September 2006

Rule 444 Letter from 1st, 2nd and 3rd  defendants.

Notice of intended strike out of statute barred claims.

1 March 2007

Last possible date for filing of tort claim under Limitations Act.

2 March 2007

Notice of Intention to proceed served by the plaintiffs on the 1st, 2nd & 3rd defendants (not the 4th and 5th).

30 April 2007

Amended Claim and Statement of Claim filed and served on the

1st, 2nd and 3rd defendants.

3 May 2007

1st , 2nd  and 3rd  defendants require advice as to status of the proceedings

No Response

22 May 2007

1st , 2nd  and 3rd  defendants require advice as to status of the proceedings

No Response

18 June 2007

1st , 2nd  and 3rd  defendants require advice as to status of the proceedings

No Response

10 July 2007

1st , 2nd  and 3rd  defendants oral request for an update on the status of the proceedings

Paul Kerwin said he would review request and shortly respond

2 August 2007

1st , 2nd  and 3rd  defendants oral request for an update on the status of the proceedings

Paul Kerwin said he would review request and respond by 6 August 2007

7 August 2007

1st , 2nd  and 3rd  defendants oral request for an update on the status of the proceedings

Paul Kerwin said he had dictated a letter which would be sent today.

No Letter

14 August 2007

1st , 2nd  and 3rd  defendants require advice as to status of the proceedings

No Response

4 September 2007

1st, 2nd and 3rd defendants propose mediation

28 September 2007

Kerwin Solicitors advise plaintiff would participate in mediation, making further enquiries

11 October 2007

4th defendants solicitor write to plaintiffs solicitor requesting that they serve a copy of the amended SOC and enquiring as to plaintiffs’ intentions.

1st , 2nd and 3rd defendants’ oral request for an update.

Paul Kerwin said he would contact other defendants about mediation today.

24 October 2007

1st , 2nd  and 3rd  defendants call Kerwin Solicitors.

Paul Kerwin was not available.

25 October 2007

1st , 2nd and 3rd  defendants complain regarding delays.

12 November 2007

1st , 2nd  and 3rd  defendants oral request for an update.

Paul Kerwin said he was waiting to hear back from the other parties regarding mediation.

27 November 2007

Service of the Amended Claim on the 5th defendant.

5 December 2007

1st , 2nd  and 3rd  defendants’ oral request for an update.

Kerwin said that he had written to the other parties in July/August 2007, and again last week

6 December 2007

Nomination of a preferred mediator by the plaintiffs to the 1st, 2nd and 3rd defendants.

7 December 2007

Nomination of a preferred mediator by the plaintiffs to the 4th defendant.

Plaintiffs serve amended claim and Statement of Claim on 4th defendants solicitors under cover of letter dated 27 Nov 2007, that letter also invited mediation.

11 December 2007

1st, 2nd and 3rd defendants’ oral request for an update.

Kerwin said that the 4th defendant was seeking their client’s instructions.

13 December 2007

The Plaintiffs attended their solicitor for a mediation only to be informed at the last minute that the mediation was not proceeding.

4th defendant’s solicitor telephones plaintiffs’ solicitor regarding prejudice caused by delay and desire to avoid unnecessary costs.

19 December 2007

4th defendants solicitor write to plaintiffs’ complaining about the plaintiffs’ delays and reserving right to apply to strike out claim for want of prosecution

23 January 2008

4th defendants solicitors write to plaintiffs’ solicitors requestion response to letter of 19 December 2007.

22 February 2008

Defendants’ oral request for an update – Paul Kerwin not available. End of Communications

27 May 2008

4th  defendants solicitors write to plaintiffs’ solicitors requesting advice as to whether they continued to hold instructions and indicating desire to close the file.

18 July 2008

The plaintiffs attended Brisbane for a hearing in the matter at the behest of their solicitor when no hearing was listed.

13 October 2008

The plaintiffs attended Brisbane or a hearing in the matter at the behest of their solicitor when no hearing was listed.

30 November 2008

The plaintiffs attended Brisbane or a hearing in the matter at the behest of their solicitor when no hearing was listed.

3 December 2008

Plaintiffs retain new solicitors.

2 April 2009

Application pursuant to rule 289 UCPR filed and served by the plaintiffs.

Plaintiffs’ application for leave to proceed (r 389 UCPR) filed for hearing 5 May.

Plaintiffs have not responded to request for particulars dated 23 March 2004.

Footnotes

[1]  Document 23 filed 11 May 2009.

[2]  Exhibit 8

[3]          District Court Act s 69(2)(a)

[4]  Document 12 paragraph 3(r)

[5]           Document 10

[6]           UCPR 377(1)(c)

[7]           Contrast RVE-7 with evidence of Mr Mathieson that the fourth defendant was served on 7 December 2007

[8]           Concord Park Pty Ltd v Allied Organik Limited [2003] QDC 420 per McGill SC, DCJ at [6] following Paradise Grove P/L v Stubberfield [2000] QSC 214 per White J

[9]  Concord Park P/L   op. cit

[10]          Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 at 594

[11]  UCPR 214(1)(a) and Concord Park P/L  op. cit. at [6]

[12]          Smiley v Watson [2002]1QdR 560 at [9] and the cases there cited

[13]          File document 22  affidavit CK Mathieson  at exhibit “CKM 10”

[14]         r 377(1)(c)

[15]           Exhibit 5

[16]           or the earlier application filed on 2 April 2009 which was replaced by the application filed 11.5.09

[17]           r 389(3)

[18]          Tyler v Custom Credit Corp Ltd [2000] QCA 178

[19]         Doc 13 affidavit RM Bowd par11

[20]          Doc 12 affidavit R V Ensby exhibits RVE-1 to  RVE-4

[21]  Defence of the first, second and third defendants par5(c).

[22]          Statement of claim par 6(b) and amended statement of claim par 6(b)

[23]         Reply par 5

[24]           CKM-1, CKM-2, CKM-6, CKM-7, CKM-8

[25]            RVE-1 and RVE-2

[26]           CKM-6

[27]           RVE-4

[28]          UCPR r 5(3) and Quinlan v Rothwell and Anor [2008] QSC 143 at [51] per Chesterman J as his Honour then was

[29]          Vlies v Commonwealth of Australia [2004] QSC 404 at [20] per McMurdo J

[30]          Cummins v Davis [2001] QCA 293 [20] followed in Porcuzek v Toowoomba District Health Services [2007] QSC 177 [38]

[31]          Cooper v Hopgood and Ganim [1999] 2 Qd R 113 at 124 per McPherson JA

[32]          Op.cit at [44]

Close

Editorial Notes

  • Published Case Name:

    Rabvue Pty Ltd & Anor v Malcolm Douglas Consultants Pty Ltd & Ors

  • Shortened Case Name:

    Rabvue Pty Ltd v Malcolm Douglas Consultants Pty Ltd

  • MNC:

    [2010] QDC 150

  • Court:

    QDC

  • Judge(s):

    Andrews DCJ

  • Date:

    20 Apr 2010

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Boyd v State of Queensland [2008] QDC 208
2 citations
Jump To
Cite 1 - [2008] QDC 208
Cite 2 - [2008] QDC 208
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
1 citation
Jump To
Cite 1 - (1996) 186 CLR 541
C & E Pty Ltd v Corrigan[2006] 2 Qd R 399; [2006] QCA 47
2 citations
Jump To
Cite 1 - [2006] QCA 47
Cite 2 - [2006] QCA 47
Citicorp Australia Limited v Metropolitan Public Abattoir Board[1992] 1 Qd R 592; [1991] QSCFC 59
2 citations
Jump To
Cite 1 - [1992] 1 Qd R 592
Cite 2 - [1992] 1 Qd R 592
Concord Park Pty Ltd v Allied Organik Ltd [2003] QDC 420
3 citations
Jump To
Cite 1 - [2003] QDC 420
Cite 2 - [2003] QDC 420
Cite 3 - [2003] QDC 420
Cooper v Hopgood & Ganim[1999] 2 Qd R 113; [1998] QCA 114
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 113
Cite 2 - [1999] 2 Qd R 113
Cummings v Davis [2001] QCA 293
2 citations
Jump To
Cite 1 - [2001] QCA 293
Cite 2 - [2001] QCA 293
Page v Central Queensland University [2006] QCA 478
2 citations
Jump To
Cite 1 - [2006] QCA 478
Cite 2 - [2006] QCA 478
Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214
2 citations
Jump To
Cite 1 - [2000] QSC 214
Cite 2 - [2000] QSC 214
Porzuczek v Toowoomba District Health Services [2007] QSC 177
2 citations
Jump To
Cite 1 - [2007] QSC 177
Cite 2 - [2007] QSC 177
Quinlan v Rothwell [2008] QSC 143
3 citations
Jump To
Cite 1 - [2008] QSC 143
Cite 2 - [2008] QSC 143
Cite 3 - [2008] QSC 143
Smiley v Watson[2002] 1 Qd R 560; [2001] QCA 269
2 citations
Jump To
Cite 1 - [2002] 1 Qd R 560
Cite 2 - [2002] 1 Qd R 560
Tyler v Custom Credit Corp Ltd [2000] QCA 178
2 citations
Jump To
Cite 1 - [2000] QCA 178
Cite 2 - [2000] QCA 178
Valleyfield Pty Ltd v Primac Ltd [2003] QCA 339
2 citations
Jump To
Cite 1 - [2003] QCA 339
Cite 2 - [2003] QCA 339
Vlies v Commonwealth of Australia [2004] QSC 404
2 citations
Jump To
Cite 1 - [2004] QSC 404
Cite 2 - [2004] QSC 404

Cases Citing

Case NameFull CitationFrequency
Bradley v Bradley [2023] QSC 69 1 citation
Brose v Baluskas (No 8) [2020] QDC 982 citations
LK Smith Holdings Pty Ltd v FJA Holdings Pty Ltd [2025] QSC 182 1 citation
1

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