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- Unreported Judgment
Wall's Sand and Gravel Pty Ltd v Mattiazzi QDC 87
DISTRICT COURT OF QUEENSLAND
Wall’s Sand and Gravel Pty Ltd v Mattiazzi  QDC 87
WALL’S SAND AND GRAVEL PTY LTD (ACN 109 284 488)
DAVID MATTIAZZI AS TRUSTEE FOR THE DAVID MATTIAZZI FAMILY TRUST
1544/19 and 3721/15
21 May 2019, ex tempore
21 May 2019
Williamson QC DCJ
CIVIL PRACTICE & PROCEDURE – QUEENSLAND CIVIL PROCEDURE – Application for leave to proceed under r. 389(2) of the Uniform Civil Procedure Rules 1999 – where no step taken in the proceeding for over three years – whether the Court’s discretion to grant leave should be exercised in the facts and circumstances of the case.
Mr W.F. Brown for the Plaintiff/applicant
Mr P. Travis for the Defendant/respondent
CW Hooper & Hooper for the Plaintiff/applicant
Cornwalls for the Defendant/respondent
- This is an application for an order pursuant to rule 389(2) of the Uniform Civil Procedure Rules 1999 (UCPR). The order, if granted, would permit a new step to be taken in this proceeding. This is in circumstances where no step has been taken in this proceeding since 27 April 2016, being a period of some three years and three weeks.
- This proceeding was commenced by Claim and Statement of Claim in the Supreme Court. It was filed on 11 April 2012. It was transferred to this Court in September 2015. The most recent version of the Statement of Claim is the Second Further Amended Statement of Claim filed on 4 August 2015. A review of that pleading reveals the proceeding concerns a contractual dispute between the parties. The claim was based on two alleged contracts, one of which is written and dated 31 August 2005. The second, which is referred to as ‘the second contract’, is said to be partly oral, and partly written. The facts which are relied upon to establish this contract are alleged to have occurred on 3 and 4 October 2005. The subject matter of the contracts involves the applicant constructing civil works for a subdivision.
- It was uncontroversial that in an application such as this, it is necessary to have regard to the Court of Appeal’s decision in Tyler v Custom Credit Corp Ltd & Ors  QCA 178. Atkinson J, with whom McMurdo and McPherson JA agreed, identified 12 factors the Court would take into account in determining the central issue for consideration. The central issue for determination can be stated as: whether the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay. The onus rests with the applicant.
- The submissions advanced on behalf of the applicant urge 3 of the 12 considerations identified in Tyler as being the most important. They are: (1) the prospects of success; (2) whether there is a satisfactory explanation for the delay, and (3) whether there is prejudice to the respondent. I accept that these matters, having regard to Tyler, are relevant to the exercise of my discretion.
- The applicant submits it has good prospects of success in the proceeding. To establish this, it relies upon two matters. First, it relies upon the contents of an affidavit sworn by its solicitor, Ms Wardle, to the effect that the plaintiff has obtained counsel’s advice, and that advice reveals it enjoys good prospects of success. Second, I was referred to the Court file and the history of the proceedings, which demonstrates the proceeding has been the subject of two strikeout applications, which have not enjoyed success.
- I am not satisfied that the proceeding enjoys good prospects of success by reason of the affidavit of Ms Wardell. The affidavit, and the particular aspect relied upon to establish this proposition, is no more than a bald assertion. The affidavit does not disclose the substance of the advice, nor the reasons in support of it. As a consequence, I accept the submission made by Mr Travis that the assertion is irrelevant hearsay about an opinion that is said to be held by an anonymous person.
- The second aspect of the submission, in relation to prospects of success, has some superficial appeal. The fact that two strikeout applications have not succeeded may be an indicator of the proceeding’s prospects, but it is no more than that. There are many reasons why a strike out application may be advanced by a party. There can be many reasons why such an application fails. If it is to be relied upon as an indicator of success, it needs to be examined and explained, to tease out why it is that that is an appropriate indicator to establish that a proceeding enjoys good prospects. That did not occur by way of submission before me. I was not taken to the strikeout application or supporting material to establish why it was an indicator the proceeding enjoyed good prospects.
- The explanation for the delay of three years and three weeks was provided by way of an affidavit by the applicant’s solicitor, Ms Wardle. It is tolerably clear from her evidence that no step was taken during the period of February 2018 to December 2018. This was explained by reference to a dispute the applicant had with an earlier solicitor, who refused to transfer the file until outstanding fees had been attended to. This matter ultimately resolved itself with the file being delivered to the applicant’s solicitor in December 2018. The evidence also establishes that no step was taken during the period of December 2018, up to the filing of this application, which was in May 2019. The reason given for this delay was due to the applicant’s solicitor, rather than the applicant. The relevant part of the evidence, in this regard, is paragraph 9 of Ms Wardle’s affidavit, which was sworn on the 20 May 2019. It states:
“The delay between receipt of the file in December 2018 and the filing of the Application is attributable to inaction on my part, which is the result of being overwhelmed by the demands of other files, and which I humbly ask the Court to excuse.”
- The affidavit material provides an explanation for the period February 2018, to May 2019. As to the balance of the period of inaction, I was referred to the Court file for an explanation. The Court file reveals that notices of non-party disclosure were filed in the period 5 July 2016 to 23 March 2017. These notices do not constitute a step for the purposes of r.389, but are evidence of the applicant’s activity in pursuing this proceeding.
- Having regard to the evidence, I was not satisfied the applicant has provided a satisfactory explanation for the delay. The total period of delay is essentially three years. The evidence, even if accepted on its face, explains only part of this period. The explanation that is offered, in any event, is not compelling.
- The affidavit material reveals that the applicant’s solicitor was put on notice about the need to seek leave to take a further step in the proceeding in August 2018. This application was not filed until May 2019. Whilst I have some sympathy for the applicant, given the file was not received by its solicitor until December 2018, the length of time is such that a more detailed explanation was required. For example, it was not, in my view, sufficient for the applicant’s solicitor to explain the delay on her part, by reference to work commitments, without detailing precisely how those commitments impeded her from obtaining instructions from the applicant, and to advance the application which is before the Court. This is not to suggest that Ms Wardle’s explanation was one that was other than honestly given and genuine. The circumstances of this case required more. The circumstances of this case are, as Mr Travis correctly submitted, characterised by delay, and it was this characterisation which called for greater attention to detail in the affidavit material.
- The third matter relied upon as being important in the exercise of the discretion was the issue of prejudice. It was accepted by Mr Brown that the prejudice to the defendant was an issue to be addressed by his client. The prejudice that I have considered applicable here was helpfully summarised by Mr Travis in his outline of submissions at paragraphs 24 to 29. I accept those submissions as being a fair characterisation of the potential prejudice.
- In response to the prejudice raised, a submission was made by Mr Brown that it could be dealt with, or substantially removed, by a proposed amendment to the pleadings. At paragraphs 6 to 8 of his written submissions he said:
“6. In their letter dated 31 January 2019, the Defendant’s solicitors point to a conversation between the parties’ representatives alleged to have taken place on 4 October 2005 (refer paragraph 17B of the Second Further Amended Statement of Claim). The conversation is referred to in the particulars to support the existence of a ‘Second Contract’ which was partly oral and to the extent it was oral comprised the conversation. In the 6th Amended Defence, the Defendant denies that a meeting took place as alleged.
7. The applicant proposes to amend its pleading to remove the reference to the conversation at paragraph 17B. The amendment is proposed to be affected within 14 days of the date of the hearing of the application.
8. The amendment should remove or substantially reduce any prejudice to the Respondent.”
- The submission set out above refers to paragraph 17B of the Second Further Amended Statement of Claim, which contains the following statement of particulars:
“The terms of the Second Contract were partly written and partly oral. To the extent they were written, they were contained in a letter from the Plaintiff to David and Memo Mattiazzi dated 4 October 2005. To the extent they were oral, they were concluded in a conversation between Terry Keogh, Memo Mattiazzi and the Plaintiff on 3 October 2005 at the property located at Folkestone Street, Stanthorpe (Property).”
- It is implicit in Mr Brown’s oral and written submissions that there is the potential for the order his client seeks to prejudice the defendant. The prejudice, in my view, is plain. The proceedings, as presently pleaded, put in issue a conversation between a Mr Memo Mattiazzi and a representative of the plaintiff, which is denied. The conversation is said to have occurred on 3 October 2005, more than 13 years ago.
- Mr Mattiazzi is 75 years old. The affidavit material suggests he is in good health but, in the last few years, has suffered some heart difficulty. Unsurprisingly, given the passage of time, his recollection of the events is fading. It is this recollection that will be relied upon by the defendant to resist the Claim and Statement of Claim. The delay in commencing the Claim and Statement of Claim, coupled with its slow prosecution, impacts upon the defendant’s ability to conduct its defence. It does so by impacting upon the extent to which the witness can accurately recollect the circumstances of 3 October 2005. The question for me is whether that prejudice can be addressed in the manner contended by Mr Brown, which involves a mooted amendment to the pleading. I am not satisfied that the prejudice can be addressed in this way.
- As a starting point, neither the Court nor the defendant was provided with a draft pleading to examine the true impact of the amendment. Even on Mr Brown’s own submissions, he was prepared to accept that the amendment may result in further consequential amendments which are presently unidentified. This, in my view, is troubling. If an amendment is proposed to meet the prejudice, a draft pleading should have been provided and examined to ensure the prejudice could be met, particularly in the circumstances of this case. There is a genuine prospect that the amendment could give rise to a further contest about the pleadings, which may, in turn, not necessarily result in Mr Mattiazzi’s involvement in the proceeding being reduced.
- Ultimately, the impact that any amendment might have on further arguments between the parties and, indeed, consequential matters is a matter of speculation. It is inappropriate for me to speculate on such matters, rather, the point I wish to make is that it is demonstrative of the point that the amendments may not address the prejudice. The paragraph of the pleading which is sought to be withdrawn is a matter which has involved controversy between the parties. It seeks to explain the terms of the second contract, in part, by reference to a conversation. If that conversation is abandoned as a basis to establish the second contract, the pleading, as it presently stands, does not otherwise disclose the basis for the contract. The absence of this, given the history of the proceeding, is likely to result in more delay, rather than progress the matter to hearing.
- In light of the above, I am not satisfied that the applicant has established it has (1) good prospects of success; (2) a sufficient explanation for the delay; and (3) the prejudice arising from the order it seeks being addressed by an amendment to the pleading.
- The central issue to be examined is as stated in Tyler v Custom Credit at paragraph 5 above. With the last sentence of that paragraph in mind, I am not satisfied that the continuation of the proceeding would not involve injustice or unfairness to the defendant by reason of the delay. The evidence falls well short of this mark. This was in circumstances where the proceeding turns on events that occurred more than 13 years ago and the proceedings themselves were commenced in 2012, just prior to the expiration of the limitation period. The background is such that the applicant has had ample opportunity to advance its Claim. It has not done so in a way that is consistent with its obligations under rule 5 of the UCPR. In this context, I have little confidence that an order of the kind the applicant seeks would not result in injustice or unfairness to the defendant.
- Accordingly, the applicant has not discharged the onus. The application will be dismissed. I will hear from the parties about costs and the form of other appropriate orders.
- Published Case Name:
Wall's Sand and Gravel Pty Ltd v David Mattiazzi as trustee for the David Mattiazzi Family Trust
- Shortened Case Name:
Wall's Sand and Gravel Pty Ltd v Mattiazzi
 QDC 87
21 May 2019