SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 2 February 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 November 2005 |
JUDGE: | Helman J. |
CATCHWORDS: | Application for leave to appeal against decisions of Registrar to renew the claim in this action – where plaintiffs’ claim filed in 1999 and not served until 2004 – where plaintiffs’ claim was renewed eight times – where ninth application for renewal was refused pursuant to rule 24(4) Uniform Civil Procedure Rules 1999 – where plaintiffs deliberately withheld service for five years, effectively granting themselves a stay – whether good reason to renew the claim Trade Practices Act 1974 (Cth) Competition Policy Reform (Transitional Provisions) Regulations 1995 (Cth) Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 (Cth) Uniform Civil Procedure Rules 1999 MQF v. Corry [2000] QSC 416 Farrell v. Delaney (1952) 52 S.R. (N.S.W.) 236 Van Leer Australia Pty Ltd v. Palace Shipping KK (1981) 180 C.L.R. 337 Muirhead v. The Uniting Church in Australia Property Trust (Q) [1999] QCA 513 MacDonnell v. Rolley [2001] QCA 32 The Beach Club Port Douglas Pty Ltd v. Page [2005] QSC 195 and [2005] QCA 475 Butler v. Simmonds Crowley & Galvin [2002] 2 Qd. R. 252 Little v. Law Institute of Victoria [1990] V.R. 257 |
COUNSEL: | Mr K.N. Wilson S.C. for the applicant Messrs A. Vasta Q.C. and T.J. Bradley for the respondents |
SOLICITORS: | Australian Government Solicitor for the applicant-defendant Shand Taylor Lawyers for the respondent-plaintiffs |
[1] This is an application by the sole remaining defendant, originally the first defendant, for leave to appeal against decisions of the Registrar to renew the claim in this action and for orders that the decisions of the Registrar be set aside and for other, alternative, relief. It will be convenient to give the details of the orders sought later.
[2] The plaintiffs’ claim was filed on 16 September 1999. In addition to seeking relief against this defendant, the plaintiffs then sought relief against four other defendants, officers of the defendant. The plaintiffs claimed declarations that the defendant had improperly exercised judicial power, breached its duty to observe the rules of natural justice, damages, interest, and costs. The damages they sought were: against the defendant for breach of duty to observe the rules of natural justice, malicious prosecution, abuse of process, and unlawful interference with contractual relations; against the second defendant for misfeasance in public office and unlawful interference with contractual relations; and against the third, fourth, and fifth defendants for misfeasance in public office. The damages sought in each case included punitive, exemplary, and aggravated damages.
[3] The plaintiffs’ claims arise from events in 1993 and applications to the Court of Australia filed in the Queensland District Registry. On September 1993 the defendant’s predecessor, the Trade Practices Commission, began application no. G155 of 1993 but that application was discontinued on September 1993. Then, on 28 October 1993, the Trade Practices Commission began application no. G175 of 1993, the trial of which was heard by Drummond J. (The transitional provisions following the establishment of the defendant and the abolition of the Trade Practices Commission are to be found in the Policy Reform (Transitional Provisions) Regulations 1995 (Cth).) The plaintiffs were, with others, respondents to both applications.
[4] In application no. G155 of 1993 the defendant sought injunctions, orders pursuant to ss. 80A(1)(a) and (b) of the Trade Practices Act 1974 (Cth), orders that the respondents pay to the Commonwealth a pecuniary penalty, and, other, ancillary relief. In application no. G175 of 1993 similar relief was sought. The applications concerned the first plaintiff’s marketing a scheme under which it solicited, as agent for insurers, policies and other ‘products’ related to a scheme for the development of a sporting entertainment and recreational centre in Logan City associated with a rugby league football team to be known as the Logan Lions. The dates of hearing before Drummond J. were: 7-9, 14-17, 22-24 September 1998; 1 October 1998; 22-25 February 1999; 1-4, 8-11, and 24 March 1999; 13-15, 20-23, and September 1999; 4, 14, and 18 October 1999; and 10 December 1999. His Honour received written submission on: 17 December 1999, 24 January 2000; December 2000; 4 and 24 April 2001; and 17 May 2001. His Honour’s judgment was given on 5 April 2002. The defendant was only partially successful before his Honour: declarations were made that on a number of occasions the plaintiffs engaged in conduct that contravened s. 52 of the Trade Practices Act. Appeals and a cross-appeal were heard by the Full Court of the Federal Court on 12-15 November 2002. On 20 February 2003 the declarations to which I have referred made by Drummond J. were set aside and in lieu thereof it was ordered that the application before him be dismissed with costs. The defendant was ordered to pay the plaintiffs’ costs of the appeals.
[5] Although the plaintiffs’ claim and statement of claim were filed on September 1999 they were not served on the defendant until 15 September 2004. A letter accompanying those documents, from the third plaintiff, included the following: ‘It is our intention to file and serve an amended statement of claim with detailed particulars in the near future. Given this fact the Plaintiffs would not require the Defendants to file a defence at this stage’. The third plaintiff added that the plaintiffs proposed to have the amended statement of claim and particulars finalized by 30 November 2004 and asked that the defendants agree to withhold any further action in the matter until then, or earlier if the amended statement of claim and particulars were complete before 30 November 2004.
[6] On applications made ex parte to Deputy Registrars under rule 24 of the Civil Procedure Rules 1999 the plaintiffs’ claim was renewed eight times: on 12 September 2000 for six months from 16 September 2000, on 9 March 2001 for six months from 16 March 2001, on 23 August 2001 for six months from September 2001, on 11 March 2002 for six months from 16 March 2002, on September 2002 for six months from 16 September 2002, on 12 March 2003 for six months from 16 March 2003, on 29 August 2003 for six months from September 2003, and on 4 February 2004 for six months from 16 March 2004. The details of those orders appear on the order sheet which is part of the court file in this action.
[7] The principal reason advanced on behalf of the plaintiffs for the first four renewals was that they were awaiting the outcome of the trial of application no. G175 of 1993. In an affidavit filed on 12 September 2000 in support of the first application, Mr John Saunders, solicitor of the firm then (and now) acting for the plaintiffs, swore:
8.In September 1999 when the claim was issued, my instructions from the plaintiffs were to issue the claim in order to avoid the possibility of a statute of limitations problem in respect of the claims arising out of the first Federal Court proceedings (which had been discontinued on 21 September 1993) and to put the claim on hold and not effect service until after the outcome of the second Federal Court proceedings was known.
9.On my instructions, there was a reasonable expectation at that time, namely September 1999, that the trial of the second Federal Court proceedings would be concluded by the end of that year (and in fact they were concluded in December 1999 as deposed to above) and further, that judgment would be handed down before 16 September 2000, namely before the one year anniversary of the commencement of the claim.
10.My instructions are to amend the claim upon the outcome of the second Federal Court proceedings, to add in further claims against the current defendants arising out of the second Federal Court proceedings so that all claims arising out of both sets of Federal Court proceedings, which are very closely related, can be heard and determined together in the one set of proceedings at the same time.
11.Further, on my instructions, there are likely to be many findings of fact in the second Federal Court proceedings which will have a direct bearing on matters concerning the commencement and discontinuance of the first Federal Court proceedings being matters already the subject of the claim, thus making if preferable that the claim be put on hold pending the handing down of a decision in the second Federal Court proceedings.
12.In my submission, it will be in the best interests of all parties if the proposed claims of the plaintiffs against the defendants in relation to the second Federal Court proceedings are heard and determined at the same time and in the same proceeding as the present claim resulting from the outcome of the first Federal Court proceedings and accordingly, there is a good reason for renewing the claim for a period of one (1) year from 16 September 2000 to allow time for the handing down of a decision by Justice Drummond in the second Federal Court proceedings.
In affidavits relied on in support of the following three applications reference was made to Mr Saunders’s affidavit and reliance placed on its contents. In addition, it was asserted that in the course of the proceedings before Drummond J. in late 1999 it was made known to the defendant that this claim against the five defendants had been commenced. I shall refer later to that assertion, which was correct.
[8] In an affidavit filed on 4 September 2002 and relied on on the fifth application for renewal, reliance was again placed on the contents of Mr Saunders’s affidavit. The deponent, the fourth plaintiff, also referred to Drummond J.’s having delivered judgment on 5 May 2002 – actually it was 5 April 2002, but nothing turns on that discrepancy - but added that the ‘matter’ was the subject of an appeal and appeal scheduled for hearing in late November 2002 and that it was expected that once judgment had been handed down by the Full Court the claim might require substantial amendment. Reference was again made to the defendant’s having some notice of the claim in late 1999.
[9] In an affidavit filed on 12 March 2003 and relied on on the sixth application for renewal, reliance was again placed on the contents of Mr Saunders’s affidavit. Reference was made to the delivery of the judgment of the Full Court delivered on 20 February 2003: ‘In light of the judgement of the Full Court, the plaintiffs in this action are presently in the process of determining the quantum of costs which they will seek in the second Federal Court proceedings’, the deponent, again the fourth plaintiff, swore. ‘Once these costs are received it is intended that legal advice will be sought with a view to amending the Claim in these proceedings’, he added. Reference was again made to the defendant’s having some notice of the claim in late 1999.
[10] In an affidavit filed on 29 August 2003 and relied on on the seventh application for renewal, reliance was again placed on the contents of Mr Saunders’s affidavit. The costs of the Federal Court proceedings were again referred to by the deponent, the third plaintiff. Paragraph 5 of his affidavit was as follows:
5.Since the Judgement of the Full Court, the plaintiffs in this action have been in the process of determining the quantum of costs which they will seek pursuant to the cost order made in the second Federal Court proceedings. Due to the time period and number of legal practitioners involved in the case we have not yet finalized this process, however it is nearing completion. Once these costs are received it is intended that legal advice will be sought with a view to amending the Claim in these proceedings.
Reference was again made to the defendant’s having some notice of the claim in late 1999.
[11] In an affidavit filed on 2 February 2004 relied on on the eighth application for renewal, reliance was yet again placed on the contents of Mr Saunders’s affidavit. The costs of the Federal Court proceedings were again referred to by the deponent, again the third plaintiff. Paragraphs 4 and 5 of his affidavit were as follows:
4.Since our last affidavit we have finalized our submission as to costs and are negotiating settlement of the costs with the ACCC at present. The ACCC have agreed to pay $85,000 in settlement of our outlays for Solicitors and Barristers, however we have had some difficulties with obtaining the authority of Logan Lions Limited in liquidation to accept this offer. We expect this difficulty to be resolved within the next month, however this will not give us sufficient time to brief Counsel and have the Statement of Claim re-pleaded prior to 16 March 2004.
5.We are prepared to brief Counsel immediately upon receipt of payment by the ACCC for these costs.
Reference was again made to the defendant’s having some notice of the claim in late 1999.
[12] A ninth application for renewal of the claim, for three months from September 2004, was made on 30 August 2004 and refused by the Registrar who noted that 16 September 2004 would be the fifth anniversary of the filing of the claim and that rule 24(4) required the court’s leave before a claim might be renewed.
[13] On 30 November 2004 the second, third, fourth, and fifth defendants filed an application in which they sought leave to have the decisions of the Deputy Registrars on the eight occasions when applications for renewal of the claim were successfully reheard pursuant to rule 791 and orders that the claim not be renewed and the action be dismissed with costs. Other, alternative relief was sought. On 23 February 2005 the plaintiffs filed an application seeking, inter alia, an order that leave be granted to renew the claim as against the second defendant. Both applications were heard by Holmes J. on 24 February 2005, and on 27 May 2005 her Honour determined them when she made an order setting aside the decision of the Deputy Registrar made in February 2004, refused renewal of the claim, and dismissed the plaintiffs’ action as against the second, third, fourth, and fifth defendants: [2005] Q.S.C. 139 (As I interpret her Honour’s first-mentioned order, it applied only so far as the decision applied to the claims against the second, third, fourth, and fifth defendants.) On 24 June 2005 the plaintiffs filed a notice of appeal against her Honour’s decision, but the appeal was discontinued by consent on 1 September 2005.
[14] On 7 February 2005 an amended statement of claim was filed, and on October 2005 a second amended statement of claim. In the latter the plaintiffs’ claims are confined to damages (including punitive, exemplary, and/or aggravated damages) of $1,250,000 for malicious prosecution and/or abuse of process, and of $10,000,000 for inducing breach of contract and/or interference with trade or business by unlawful means. Interest and costs on the indemnity basis are also sought. In the amended statement of claim damages for defamation, misfeasance in public office, and negligence had also been sought but those claims have now been deleted from the latest formulation of the plaintiffs’ case. Some relief sought in the original statement of claim was deleted in the amended statement of claim.
[15] On this application the defendant seeks the following orders:
1.Leave be granted to the first defendant to appeal the decisions of the Registrar to renew the claim made on or about 16 September 2000, 16 March 2001, 23 August 2001, 16 March 2002, 16 September 2002, 16 March 2002, 29 August 2003 and 4 February 2004 pursuant to rules 791 and 792 of the Uniform Civil Procedure Rules.
2.The decisions of the Registrar on or about 16 September 2000, 16 March 2001, 23 August 2001, 16 March 2002, 16 September 2002, 16 March 2002, 29 August 2003 and 4 February 2004 be set aside on the basis that the plaintiffs did not establish a good reason to renew the claim pursuant to rule 24 of the Uniform Civil Procedure Rules.
3.In the alternative to the orders sought in paragraphs 1 and 2, the plaintiffs’ claim against the first defendant be struck out on the basis that it does not disclose a cause of action, is vexatious and is an abuse of process.
4.In the alternative to the orders sought in paragraphs 1 and 2, and 3:
a)paragraphs 84A-85A and paragraph (e) on page 34 of the amended statement of claim be struck out on the basis that a cause of action in negligence was added as a new cause of action by the amended statement of claim, and was not joined within the limitation period.
b)paragraphs 81A-81J of the amended statement of claim be struck out on the basis that a cause of action for misfeasance in public office was added as a new cause of action by the amended statement of claim, and was not joined within the limitation period;
c)paragraphs 77A-77L, 81A-81J and paragraph (b) on page 34 of the amended statement of claim be struck out on the basis that the plaintiffs have no cause of action against the first defendant for misfeasance in public office;
d)paragraphs 39A-39E, 75A-77F and paragraph (a) on page 34 of the amended statement of claim be struck out on the basis that defamation was added as a new cause of action by the amended statement of claim, and was not joined within the limitation period;
f)paragraphs 52A, 62-65, 83A-83B and paragraph (d) on page 34 of the amended statement of claim be struck out on the basis that a cause of action for inducing breach of contract/interference with trade or business by unlawful means was added as a new cause of action by the amended statement of claim, and was not joined within the limitation period;
e)paragraphs 77E and 77F of the amended statement of claim be struck out on the basis that:
(i)contravention of s. 52 of the Trade Practices Act 1974 was added as a new cause of action by the amended statement of claim, and was not joined within the limitation period;
(ii)to the extent that any damages are sought with respect to that alleged conduct, it is pleaded out of time.
5.In the alternative to the orders sought in paragraphs 1 and 2, 3 and 4:
a)Within 14 days of the date of this order, the plaintiffs provide security for the costs of the first defendant up to the close of pleadings in the sum of $45,000;
b)The plaintiffs’ claim be stayed until further order if there is any default of this order for provision of security;
c)Within 14 days of the date of this order, the plaintiffs further amend their statement of claim so as to comply with Rule 155(1) of the Uniform Civil Procedure Rules.
6.The plaintiffs pay the first defendant’s costs of the action, including the costs of an incidental to this application, to be taxed if not agreed.
7.Such further or other orders as this Honourable Court shall deem fit.
(I note that 4(f) and 4(e) are not in alphabetical order.) The orders sought in paragraphs 4(a), 4(b), 4(c), 4(d), and 4(e) are no longer relevant in consequence of the amendments made in the second amended statement of claim.
[16] The renewal of the claim was made in each instance under rule 24 of the Uniform Civil Procedure Rules which is as follows:
24(1)A claim remains in force for 1 year starting on the day it is filed.
(2)If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.
(3)The claim may be renewed whether or not it is in force.
(4)However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the 5th anniversary of the day on which the claim was originally filed.
(5)Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed.
(6)Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.
[17] Relying on rules 16, 667 and 791, the defendant seeks to have the decision of the Deputy Registrars set aside. Under rule 16(d) the court may set aside an order extending the period of service of an originating process and under 16(f) may set aside service of an originating process; under rule 667(2)(a) the court may set aside an order at any time if the order was made in the absence of a party; and under rule 791(1) a party to an application who is dissatisfied with a decision of a judicial registrar or registrar on the application may, with the leave of the court, have the application reheard by the court. It may be that rule 791 does not apply to ex parte applications (see MQF v. Corry [2000] Q.S.C. 416 at paras 11 and 12), but the other rules to which I have referred may clearly be relied on by the defendant. In any event the court has an inherent jurisdiction to consider and review an ex parte determination: MQF v. Corry para. 9. In doing so, the court will consider evidence not before the original decision-maker: Farrell v. Delaney (1952) 52 S.R. (N.S.W.) 236 at p. 238.
[18] In Van Leer Australia Pty Ltd v. Palace Shipping KK (1981) 180 C.L.R. 337 Stephen J. considered a rule to the same effect as rule 24, and in Muirhead v. The Uniting Church in Australia Property Trust (Q) [1999] Q.C.A. 513 Pincus J.A., with whom Davies J.A. agreed, summarized the views applied by Stephen J. as follows:
(1)There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.
(2)The discretion may be exercised although the statutory limitation period has expired.
(3)Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
(4)There is a wide and unfettered discretion and there is ‘no better reason for granting relief than to see that justice is done’. (para. 4)
Williams J.A. – with whose reasons, subject to the remarks made by Pincus J.A., Davies J.A. also agreed – observed that the general principle is that it is for the applicant for renewal of a claim to establish ‘some good reason why the case should be excepted from the general rule that the court will not exercise its jurisdiction in favour of renewal’ (para. 29).
[19] The philosophy of the Uniform Civil Procedure Rules and the overriding obligations of parties and the court should not be overlooked. Rule 5 provides:
(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.
(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.
(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.
(4)The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.
[20] There being no suggestion that the plaintiffs made any attempt to serve the defendant before 15 September 2004, the question for determination is whether there was ‘another good reason to renew the claim’. The defendant seeks to have all renewals reviewed on this application, but it may not be necessary to go that far if it is concluded that the last order for renewal should not have been made. I have therefore directed my attention primarily to the decision made on 4 February 2004. By then the first anniversary of the final determination of application no. G175 of 1993 was just over a fortnight away. The chief reason advanced after that determination was that the plaintiffs were waiting for the payment of costs to which they were entitled. Impecuniosity allegedly brought about by the actions of the defendant and its officers was not explicitly relied on on the successful applications though it may be implied in what was put before the Deputy Registrars. It is certainly now relied on, but how impecuniosity relevant to future commitments was to be relieved by payments which would have merely enabled the plaintiffs to discharge some existing liabilities is not made clear.
[21] The effect of the renewal of 4 February 2004 was to permit effective service of the claim as late as five years from the original filing date. That is what happened, so that, faced with complying with the ordinary timetable as to service of a claim implicit in the Uniform Civil Procedure Rules but facing no difficulty in serving the defendant, the plaintiffs deliberately withheld service for five years. By so doing they granted themselves a stay of their claim they may or may not have been granted had they applied to the court for it on notice to the defendant.
[22] It may be that so far as the plaintiffs’ claim arises from application no. G175 of 1993 a stay of the claim until after the conclusion of that proceeding would have been granted, but so far as the claim arises from application no. G155 of 1993, which was discontinued four days after it was filed, their case for a stay was not nearly as strong. At all events, instead of serving their claim timeously, thus permitting the defendant to be heard in the court adjudicating upon an application for a stay, they chose to act in a way that precluded the defendant’s advancing any opposition it might legitimately have to such a stay.
[23] The plaintiffs seek to rely on their lack of funds. The cost of service of the claim on the defendant could not have been great, but that appears not to have been the plaintiffs’ concern. Their concern was for meeting professional costs arising from a reformulation of their claim, but had they served their claim and statement of claim timeously after 20 February 2003 they could have expected some response from the defendant pointing to any alleged deficiencies in the claim and statement of claim, which could have assisted their reformulation, and, if they were having funding or other difficulties, those difficulties would have been considered by the court. A reasonable timetable for further steps in the action would have been made the subject of directions made after the court had considered the legitimate concerns of the plaintiffs and the defendant. Here again the plaintiffs elected to take matters into their own hands, deliberately excluding the defendant again from any setting of a timetable.
[24] In determining whether the plaintiffs established a good reason for renewing the claim on 4 February 2004 one may then properly have regard to the history of previous renewals, the reason advanced in February 2004, and the obvious alternative course of action open to the plaintiffs. That alternative course of action was of course to serve the defendant according to the timetable implicit in rule 24(1), thus acting in accordance with the undertaking provided for in rule 5(3) and seeking the court’s approval for any proposed departure from the ordinary timetable after it had considered the concerns of the plaintiffs and the defendant.
[25] It should be noted that there is an important distinction to be drawn between an application made by a plaintiff on the ground that reasonable efforts have been made to serve a defendant on the one hand and an application made on the ground that there is another good reason to renew the claim on the other hand. In the first case, if the plaintiff has made reasonable efforts to serve the defendant and those efforts have proved fruitless there is usually no alternative course open to the plaintiff. In a case like this where no efforts were made to serve the defendant and service was deliberately delayed there was an alternative course open to the plaintiffs, and so the question whether a good reason was shown for the renewal of the claim must be considered in the light of that alternative course.
[26] As I have related, in the third plaintiff’s affidavit filed on 2 February 2004 he swore that immediately on receipt of the $85,000 he mentioned the plaintiffs were prepared to brief counsel. Although the defendant’s offer to pay the $85,000 had been made on 26 November 2003 by way of response to an offer by the plaintiffs dated 23 October 2003, it was not accepted until 5 May 2004. The agreed sum was paid on 19 May 2004, but then followed a lengthy delay before an amended statement of claim was filed, on 7 February 2005. The history of the plaintiffs’ claim up to 4 February 2004 revealed that the plaintiffs had been guilty of considerable delay in the conduct of the claim, and the suggestion that their lack of funds justified their delaying further the step of service of the claim cannot survive scrutiny. The progress of the claim to the inexpensive step of service on the defendant was not, I think, prevented by impecuniosity, but rather by the plaintiff’s determination to proceed at their own, slow, pace contrary to the undertaking imposed upon them by rule 5(3). The history of the claim subsequent to February 2004 does nothing to dispel the impression of dilatoriness conveyed by the plaintiffs’ inaction before then.
[27] On behalf of the plaintiffs it was submitted that the fact that the defendant had notice of the claim before it was served was a point in their favour. That may be accepted as correct, but it is, I think, not decisive. On 4 October 1999, in the course of the trial before Drummond J., mention was made of the plaintiffs’ claim during the cross-examination by the defendant’s counsel of the then liquidator of the first and second plaintiffs. An affidavit sworn by Ms Sarah Grenfell, an employee of the solicitor for the defendant, and filed in the Federal Court on 11 November 2002, the day before the hearing of the appeal before the Full Court began, shows that on November 2002 Ms Grenfell undertook a search of the file in this action at the registry of the Supreme Court and obtained a copy of the claim and statement of claim. The claim was then stamped with the court’s seal showing the five renewals that had been made to then.
[28] In Van Leer Australia Pty Ltd v. Palace Shipping KK Stephen J. referred to the absence of notice to the defendant in that case, adding that the giving of notice ‘may sometimes mitigate the prejudice which a defendant may otherwise suffer through delay in actual service of process’ (p. 350). In this case there was considerable – inordinate, I think – delay before service, and, although the defendant had notice in general terms of the claim from soon after it was filed and then in November 2002 had specific notice of the contents of the filed claim and statement of claim, that notice was of little utility because service was not effected until nearly another two years had elapsed, and even then the plaintiffs’ claim had not been formulated to their satisfaction. Nearly five months were to go by before the amended statement of claim was filed - and then a further, extensively amended, formulation appeared more than eight months later. The mitigation of prejudice to the defendant effected by notice of the plaintiffs’ claim was thus substantially diminished.
[29] It is said on behalf of the plaintiffs that if the renewal of the claim is set aside, thus entitling the defendant to have service on it set aside, the plaintiffs will suffer loss of rights. Such was the case in Van Leer Australia Pty Ltd v Palace Shipping KK in which Stephen J. observed:
But this seriously prejudicial consequence will be present whenever renewal of a writ is in question after a limitation period has run its course; and in the present case the prejudice is self-inflicted in the sense that Palace Shipping did nothing to induce delay in service or to encourage a belief that the claim against it might be settled without recourse to litigation. (p. 351)
Any prejudice of the kind relied on on behalf of the plaintiffs is of course inflicted in this case.
[30] In an affidavit sworn on 23 September 2005 by Ms Christine Runnegar, solicitor employed by the solicitor for the defendant, filed on 23 September 2005 there are set out particulars of the prejudice the defendant will suffer if this case is to proceed. In para. 65 there is reference, by way of illustration, to para. 39B of the second amended statement of claim in which allegations of oral representations made to National Mutual Life Assurance of Australia Ltd by an officer of the defendant in August 1993. That allegation, Ms Runnegar asserts, would require the defendant to investigate an allegation first pleaded in 2005 of a conversation or conversations a former employee had with an unnamed person employed by National Mutual almost twelve years before. In para. 78 of Ms Runnegar’s affidavit there is further reference to the difficulty of finding people with the relevant knowledge and recollection of events that occurred ‘more than 10 years ago’.
[31] On behalf of the plaintiffs it was submitted that delay by the defendant in making this application was a factor that tells against its case. But the defendant was not obliged to take any step until it was served, and after it was served it was in my view justified in awaiting the outcome of the application by the other defendants, who were represented by the defendant’s present solicitor at a time when they made their application and the defendant was represented by other solicitors. The latter made it very clear to the plaintiffs in a letter to the third plaintiff dated 14 December 2004 that no concessions were made on behalf of the defendant, but that it awaited receipt of the amended statement of claim by 31 January 2005. This application was filed on 23 September 2005, shortly after the appeal from Holmes J.’s decision was discontinued.
[32] It was submitted on behalf of the plaintiffs that there is ‘an important element of public interest in this proceeding continuing to a final determination.’ There may be some force in that suggestion, but there appears to me to be an equally weighty public interest in the timely disposal of legal proceedings.
[33] On behalf of the defendant it was accepted that the merits of a claimant’s action constitute a factor to be weighed in the balance in determining whether there is good reason to renew the claim: see MacDonnell v. Rolley [2001] Q.C.A. 32 per J. with whom Pincus J.A. and Cullinane J. agreed, at para. 12. Assessing those merits for that purpose is not an easy task in this case. The claims against the defendant are of serious misconduct by a regulatory agency and it is not possible to reach more than the most tentative conclusion about them. What is clear, however, is that the plaintiffs face a number of considerable obstacles in pursuing their claims, even as they are now framed. On behalf of the defendant, those obstacles were elaborated at some length. Some of them may be regarded as points of pleading of some moment, but I do not think it necessary that I pronounce upon them on this application. I shall however give two striking examples of the difficulties confronting the plaintiffs’ case.
[34] In the first place it was contended against the plaintiffs that the proceedings complained of were civil proceedings and there is no cause of action available for the malicious prosecution of civil proceedings. In supplementary written submissions in response dated 25 November 2005 it was pointed out on behalf of the plaintiffs that the statement of claim in application no. G155 of 1993 alleged contraventions of ss. 53 and 55A of the Trade Practices Act and that contraventions of those sections are criminal offences punishable by fine. In written submissions in reply on behalf of the defendant dated 29 November 2005, it was pointed out that although at the times the applications were commenced in the Federal Court e., before s. 78 was amended by the Treasury Legislation Amendment (Application of Criminal Code) Act (No. 1) 2001 (Cth)) allegations of contraventions of ss. 53 and 55A could have been relied on in criminal proceedings, they were not so relied on in those applications and that the only relief sought for the alleged contraventions was civil in character: injunctions and orders pursuant to 80A(1)(a) and (b). The only pecuniary penalties sought were in respect of acts or omissions constituting contraventions of Part IV of the Trade Practices Act. By operation of s. 78 criminal proceedings could not be brought for such contraventions of Part IV although such proceedings could then be brought for contraventions of Part V. On behalf of the defendant reliance was placed in particular on the recent decision of the Court of Appeal (29 November 2005) in Beach Club Port Douglas Pty Ltd v. Page [2005] Q.C.A. 475 for the proposition that an action for damages for malicious prosecution is available only if the proceedings brought against a complainant are criminal and not if they are ‘simply penal, administrative or disciplinary’: see the analysis by McPherson J.A., with whom Jerrard J.A. and Chesterman J. agreed, at paras. 12-14. See also v. Simmonds Crowley & Galvin [2002] 2 Qd. R. 252 at p. 258. It may be noted, however, that, as the primary judge observed at para. 9 of his reasons in Beach Club Port Douglas Pty Ltd v. Page ([2005] Q.S.C. 195), there is a debate about whether the tort of malicious prosecution is available in respect of the prosecution of civil proceedings: see e.g. Little v. Law Institute of Victoria [1990] V.R. 257. It may be that civil proceedings of the kind instituted by the defendant as a regulatory authority seeking pecuniary penalties could be regarded as in a special category permitting the relief of damages for malicious prosecution, but in Queensland the authorities are against that proposition.
[35] Secondly, the claim for damages for unlawful interference with trade or business and for inducing breach of contract arising from dealings with National Mutual was statute-barred when it was added to the plaintiffs’ statement of claim in the amended statement of claim filed on 7 February 2005.
[36] It may be that some at least of the obstacles I have referred to may be overcome, but it is not necessary for me to consider them further because taking the plaintiffs’ case at its highest I conclude that a review of the relevant circumstances of the case in more detail than was possible on the ex parte application before the Registrar on 4 February 2004 reveals that there was no good reason to renew the claim then: the plaintiffs failed to establish why the case should be excepted from the general rule that the court not exercise its jurisdiction in favour of renewal. It is unfortunate for the plaintiffs that this should be the result, but they took the course they did deliberately.
[37] The defendant will therefore have the principal relief it seeks in relation to the Deputy Registrar’s decision of 4 February 2004, and it is not necessary for me to consider further the alternative orders sought.
