Haddad v Torbey[2005] QSC 261

SUPREME COURT OF QUEENSLAND

[1] HOLMES J: The defendant in this proceeding seeks to have it struck out for want of prosecution.  He does not contend that the plaintiff has failed to take any step required by the Uniform Civil Procedure Rules 1999, nor that he has failed to comply with any court order.  Instead, he brings his application in the court’s inherent jurisdiction, with reliance on rule 5 which emphasises the need for expeditious resolution of the issues in proceedings.

Background

[2] In the proceeding, the plaintiff alleges negligence against the defendant, a solicitor, who acted for him on a lease agreement. (The defence was not read on this application, but I infer that any negligence is denied.) The plaintiff claims that a term in an agreement to lease, the importance of which he had emphasised to the defendant, was not included in the lease which he ultimately signed. He proposed to use the leased premises for a take-away food outlet, and the term (the “exclusivity provision”) was to the effect that no other take-away would be allowed to open in the shopping centre. His business suffered when a competitor opened up in adjacent premises. 

[3] In his amended statement of claim, the plaintiff advances alternative scenarios, in which, if the lessor had agreed to the inclusion of the exclusivity provision, the business would have run without competition; or if the provision had been refused, the plaintiff would have obtained other premises; or if such premises were not available, he would have given up the idea of running a business and returned to computer programming studies with a view to a career in that field.  (In fact, having sold his business in 1997, he did take that path.)  Those scenarios raise complexities for the assessment of quantum, so that the parties have needed to obtain expert accounting evidence. That has been, it would seem, one of the primary causes of delay in this case.

[4] In Cooper v Hopgood & Ganim[1] McPherson JA provided this non-exhaustive list of factors relevant to the exercise of the discretion to dismiss an action for want of prosecution: 

“the duration of the time lapse involved;  the cogency of any explanation for delay;  the probable impact of procrastination on fading recollection;  the death or disappearance of critical witnesses or records;  costs already or likely in future to be expended or thrown away;  the apparent prospects of success or otherwise at a trial of the action;  and the progressively growing problem of effectively hearing  and determining questions of fact arising out of events that have taken place many years before.”[2]

The history of the litigation

[5] The premises were leased in 1994.  The writ of summons and statement of claim were served in January 1997, and an entry of appearance and a defence were filed within the required time frames.  In September 1997 the defendant requested particulars of the plaintiff’s claim, which were not supplied until March 1998, after the defendant obtained an order for their provision. Lists of documents had been exchanged by January 1998 and the parties turned their attention to obtaining expert accounting reports.  In October 1998 the defendant sought certain financial information from the plaintiff in order to obtain an accountant’s report and followed that request in November 1998 with a request for the plaintiff’s expert accountant report.  That material was not forthcoming.  In March 1999 the defendant’s solicitors wrote again to ask for it.  In June 1999, a set of four reports from Wests Accountants, a firm of chartered accountants which the plaintiff had used in his ordinary affairs, was provided.  Those reports bore various dates in 1996 and 1998.  Other details, of the plaintiff’s career and income, were also furnished.

[6] A without prejudice meeting had been mooted in 1998 but was not held because of the delay in exchanging expert reports.  On 1 February 2000, a mediation was held, with the defendant providing his accountant’s report very shortly before it. The claim was not resolved.  It appears that both sides then lapsed into inertia for a period.  In October 2000, the defendant’s solicitors asked the plaintiff’s solicitors to set out their proposal for advancing the proceeding but did not receive a response.  The defendant delivered a request for trial date in November 2000, and, in December, a r 444 letter requesting execution and return of the request for trial date by 5 January 2001.  Those steps produced no initial response; but by a letter of 2 February 2001 the plaintiff’s solicitors indicated they were expecting instructions within the next 14 days. 

[7] However, all was then silence until November 2001, when the plaintiff’s solicitor served another expert report from Economic Associates Pty Ltd, a company which apparently specialises in advice, from an urban planning perspective, on shopping centre viability and related topics. The plaintiff’s solicitor, Mr Leach, explains that counsel had, after the mediation, advised him to obtain such a report. Accordingly, in June 2000, once “funding was confirmed”, he engaged Economic Associates Pty Ltd to report. It did not complete its report until July 2001, and did not supply it until October 2001 when the plaintiff was able to pay for it. 

[8] In February 2002 the plaintiff’s solicitors indicated they were to be delivering another expert accountant’s report within the next fortnight.  For the next year and a half, nothing arrived. On 13 November 2003 the plaintiff delivered a further report from Wests Accountants, dated 9 September 2003, an unsealed amended statement of claim and a supplementary list of documents.  The proposed amended statement of claim has yet to be filed.  The amendments to the statement of claim are to do with quantum and were said by the plaintiff’s solicitors to arise out of the most recent accountant’s report. On 26 November 2003 the defendant’s solicitors wrote a letter advising that the plaintiff ought to have provided one month’s notice of his intention to proceed, given that no step had been taken since November 2001.  That does not seem to have produced any response.  Nor do the defendant’s solicitors seem to have been anxious to follow it up. 

[9] Apart from a telephone conversation on 17 March 2004, when Mr Leach advised that he was getting a report from Vincents Chartered Accountants, who were slow in delivering it, the next sign of life is a r 444 letter, dated 1 December 2004, from the defendant’s solicitors to the plaintiff’s solicitors, advising of an intention to have the claim struck out for want of prosecution.  Finally the defendant filed this application on 11 August 2005.  The matter was set down for hearing on 2 September; a report from Vincents miraculously arrived on 31 August. 

 The parties’ submissions

[10] The plaintiff’s argument is essentially one of impecuniosity, although he does not seek to link it to the defendant’s negligence.  According to his solicitor, Mr Leach, the need to obtain expert evidence on economic loss has caused delays because of the plaintiff’s limited funds.  The report from Economic Associates Pty Ltd was delayed in its delivery in 2001 while payment for it was arranged. For a period the plaintiff sought to rely on the reports of his own accountants, but it seems that it became apparent that forensic accounting assistance was needed, and Vincents Chartered Accountants were approached.  Although the need for their report was apparent from November 2003, it was not until September 2004 that both funds and documentation were available; and even in the ensuing period, Vincents were requesting further information which, it seems, was intermittently provided by the plaintiff.   

[11] The defendant did not identify any specific prejudice arising from the delay but pointed out the obvious difficulty for witnesses in giving evidence as to events occurring 11 years ago.  Counsel suggested that that effect was likely to be more adverse for the defendant than the plaintiff, and drew an analogy with the circumstances in MacDonnell v Rolley & Ors,[3] in which Byrne J canvassed the difficulties of a medical specialist trying to remember what from his perspective was a routine matter, compared with the patient for whom the conversation about surgery had special meaning.

[12] The delay was, it was also submitted, oppressive to the defendant, left in the unpleasant position of having a professional negligence action hanging over his head for many years. He should, his counsel said in written submissions, “be able to arrange his affairs and utilise his resources with some level of certainty regarding this claim”.

[13] The plaintiff’s solicitors assert that he is now ready to proceed to trial. The defendant’s counsel differed. Further amendments would, counsel said, be needed to the statement of claim, both to reflect the content of the Vincents report, and properly to particularise the allegations of negligence. The further amended statement of claim would produce the need for an amended defence, and it was possible that further expert evidence would have to be obtained by the defendant in response to the Vincents report. If, on the other hand, the action were now dismissed, the limitation period having expired and there being no ancillary proceedings, the action would be conclusively resolved.

  Explanation for the delay

[14] This proceeding has been inexcusably protracted. The plaintiff’s explanation for the delay is not satisfactory. One can accept that the want of means has been a drag on the litigation, because of the need for expensive expert reports, but no attempt has been made to explain how entire, lengthy periods of delay can be attributed to specific funding lacks. The plaintiff cannot provide money he does not have, but it seems that he has not been swift with the provision of information which he does presumably have. On the other hand one could not say that the defendant had exerted himself significantly to have the matter resolved, by, for example, seeking directions.

 Prejudice

[15] I accept that the delay in this case produces a risk of an indefinable prejudice, of the sort discussed by McHugh J in Brisbane South Regional Health Authority v Taylor.[4] I am not convinced, however, that the defendant’s comparison of the circumstances of this case with MacDonnell v Rolley & Ors[5] bears close examination.  Here, the defendant is a solicitor against whom the allegation is that he failed to follow instructions.  One would expect him to have recorded his instructions – whether or not they did include the alleged exhortation to include the exclusivity provision – in a way in which one would not necessarily expect a medical specialist to record conversation during a consultation.  But it is true that the lapse of time is liable to affect at least the witnesses’ recall of matters surrounding the relevant dealings. However, while accepting that there are likely to be at least some ill-effects of delay in this case, I do not think they are such as to preclude a fair trial.

[16] There can be no question that it is undesirable that the defendant should, for a protracted period, have to endure the prospect of a pending negligence action.  I am less convinced by the concern expressed as to the defendant’s ability to “arrange (his) affairs and utilise (his) resources”, a reference taken from a different context: one of McHugh J’s rationales for limitation periods in Taylor.[6] There is no evidence to suggest that the defendant is labouring under any difficulty in arranging his affairs or utilising his resources, and one rather supposes his insurer has the matter in hand in any event.

 Readiness for trial

[17] It is true that there is a prospect that the pleadings will require further amendment and it is conceivable that the defendant will obtain a further expert report, but on the whole the matter is close to readiness for trial.  It is noteworthy that the defendant has not thus far felt any pressing need for further particulars of the negligence alleged.  In fact, the lack of complaint probably stems from paragraph 8 of the statement of claim which, while not expressly articulated in terms of negligence, seems to encapsulate what is said to be the negligent conduct.

 Other matters

[18] It was not suggested that this was a case in which the plaintiff’s prospects of success were poor.  And, as the plaintiff’s counsel pointed out, there is no suggestion of non-compliance with court orders.

 Conclusion

[19] If the proceeding were dismissed the plaintiff would lose his action when its end is at least within sight.  Weighing all the factors I have discussed – the delay, the reasons advanced for it, and its effect - I do not think the circumstances warrant that step.  The better course is to permit the proceeding to continue with a firm timetable.

[20] The application is dismissed. I will hear the parties as to directions and as to costs.