Voyka v Jacko[2006] QSC 99

SUPREME COURT OF QUEENSLAND

[1] Before me are two applications.  In the first, the defendant seeks to have the proceedings struck out for the want of prosecution pursuant to r 280 of the Uniform Civil Procedure Rules (“UCPR”) and in the second the plaintiff seeks leave to proceed pursuant to r 389.  The determination of each application gives rise to similar considerations.

[2] In the six years since its inception on 29 March 2000, the proceeding has not progressed very far.  An Amended Statement of Claim was filed on 12 January 2001, and that was the last step.

[3] In the Amended Statement of Claim the plaintiff alleges that the defendant, a solicitor, was negligent in his performance of the plaintiff’s retainer to defend Family Court proceedings brought by the plaintiff’s wife for adjustment of matrimonial property.  In essence, the breaches complained of related to alleged failures –

• To plead in accordance with the plaintiff’s instructions;
• To compel the wife to disclose documents;
• To advise on offers of settlement;
• To take steps to compel the wife to disclose the quantity of precious stones held by her; and
• To obtain proper evaluations of house, motor vehicles and precious stones.

[4] By reason of these matters the plaintiff claims he has suffered loss in the sum of $2 million.  The trial in the Family Court was apparently heard over 11 days, commencing in 1995, but the giving of instructions commenced in November 1992.[1]

[5] Apparently, the defendant had no notice of this intended claim until advised by his professional indemnity insurer in January 2001.[2]  So it is observed that this action was commenced shortly before the expiration of the period of limitation.

[6] On 5 March 2001 the defendant made a request for particulars of some 24 of the allegations set out in the Amended Statement of Claim.  Despite many requests to do so the plaintiff has yet to provide those particulars in a satisfactory way.

[7] Various reasons have been given for this failure.  Firstly, the plaintiff sought disclosure of documents held by the defendant.  The volume of documents exceeded 3,000 pages.  Consequently the identification of the relevant documents was dependent upon the claim being adequately particularised.  The plaintiff purported to deliver particulars dated 19 June 2003 but did so without making an application pursuant to r 389(2) of UCPR, no step having been taken in the preceding two years.  There was some argument as to whether the delivery of certain documents in June 2001 was a “step in the action” but it is clear enough that it was not.  In any event that dispute is not of much relevance given subsequent delays. Though the defendant was insisting upon the application for leave to proceed being made before receiving the particulars he nonetheless asserted that the particulars were inadequate.[3]

[8] On 8 August 2003 the defendant filed an application for a stay of the proceedings until particulars were delivered and for an order that the particulars be delivered.  Then followed a series of consent adjournments of that application.  The relevant dates were 30 September 2003, 9 October 2003, 15 October 2003, 21 November 2003, 19 February 2004, 23 March 2004 and finally 7 November 2005 when the application was finally adjourned to the Registrar.  These adjournments were at the request of the plaintiff because during this period, bankruptcy proceedings had been taken against him and he was contesting those proceedings.  That contest extended over a period of time with action being taken in the Administrative Appeals Tribunal disputing claims of indebtedness to the Australian Taxation Office, the petitioning creditor for bankruptcy.

[9] The bankruptcy petition was ultimately withdrawn on 13 October 2004.[4]  But apparently proceedings between the respondent and the Australian Taxation Office continued before the Tribunal.  As well, the plaintiff alleges there have been threats of criminal proceedings being instituted against him but to date no charges have been laid.

[10] The plaintiff argues that whilst the bankruptcy proceedings were unresolved it was not appropriate for him to pursue this claim.  Thereafter the threat of criminal proceedings also have discouraged his pursuit of the action.

[11] The defendant, whilst consenting to the adjournments of its application for these reasons, did so on the basis that it did not excuse the delay and would refer to the delay in pursuing its rights to have the action stayed or struck out.

[12] Whilst there is force in the plaintiff’s submission about bankruptcy, the suggestion of continuing threat of criminal proceedings is less persuasive. There is no material before me as to the nature of allegations whether there is in fact any ongoing investigation and if so, what are the prospects of charges being laid.  I can infer from the respondent’s conduct that if charges are laid he will defend them.  But on present material no estimate can be made as to how long the threat, or the reality, of criminal proceedings is likely to endure.  In circumstances of such uncertainty the effect of past delays becomes more sharply focussed.

[13] Once the bankruptcy proceedings were withdrawn, there was no real basis for any further delay on the part of the plaintiff.  At the very least, he should have identified the ambit of his claim.  Despite the lapse of 18 months since that withdrawal, the claim still remains unparticularised.  Moreover in the course of disclosure, some documents were said to be missing but the plaintiff has not identified the documents or class of documents thus referred to. I am satisfied that the delays, both in instituting the proceeding and in the prosecution of the claim thereafter, have been almost entirely of the plaintiff’s creation.

[14] Turning then to the usual considerations which impact on my discretion in applications of this kind[5], I make the following observations. 

Delay

[15] The events upon which the claim is based apparently occurred in the period between 1992-1995.  I say apparently, because the plaintiff has filed no material and given no particulars which allow a proper assessment to be made of the timing of the conduct complained of.  For the same reason it is not possible to gauge the strength of the plaintiff’s allegations or the prospects of his claim being successful.  The plaintiff has not sworn any affidavit in support of his application nor in opposition to the defendant’s.  No explanation has been given for the plaintiff’s failure to provide any factual material grounding his claim.

[16] Further the periods of delay between the conduct giving rise to the claim and its institution and thereafter to the present application have been quite significant.  Having waited until almost the expiration of the limitation period to commence the action, there has been no indication of any willingness to progress it.  There has been no effective progress in the action in the five years since the filing of the Amended Statement of Claim in January 2001.

[17] The plaintiff points to his involvement in other proceedings to explain the delay.  As I have indicated above that may have had some force until withdrawal of bankruptcy proceedings in October 2004 but thereafter there was an obligation on the plaintiff to pursue the claim with some celerity.  This is particularly so in the light of the significant concessions made by the defendant in withholding his application for court orders.  I do not consider that the defendant has contributed to the delay to any appreciable extent.  Nor is there any suggestion of delay on the part of the plaintiff’s present solicitors who have acted for him since the institution of the action.

Impecuniosity

[18] There is no direct evidence as to whether the plaintiff is impecunious and whether his financial state has contributed to his inability to progress the claim.  The only affidavit filed on his behalf identifies that the claim against him by the Australian Tax Office was for the sum of $5,000,000.[6]  There is also reference to a summary judgment having been obtained but the amount of that judgment is not identified.[7]  There is reference also to the fact that the plaintiff has “had to substantially cease operating a metal fabrication business”.[8]  There is a further reference to the fact that the plaintiff’s involvement in the Administrative Appeals Tribunal has taken up his “time and resources”.[9]

[19] Whilst it may be the case that other proceedings have competed, and continue to compete, with these proceedings for the plaintiff’s financial resources, the scale of those proceedings and the sums of money involved do indicate that the plaintiff ought at least to have had the capacity to formulate the claim and to provide particulars of it in the subject proceedings.  The failure to do so over a period of five years cannot, in my view, be explained by lack of resources to undertake, at least, this step in the action.

Prejudice

[20] On behalf of the plaintiff it was submitted that there is no likelihood of prejudice to the defendant by reason of the delay.  It was submitted that as most of the allegations will have some documentary record, then recourse to the records will allow a more ready determination of the facts.  The defendant points to a delay which is now spanning a 14 year period and which must ultimately test the recollections of the defendant of conversations and instructions over a five year period.  The defendant himself was made bankrupt and his records and business affairs were administered by others.

[21] Given the nature of the allegations to the extent that they can be gleaned from the Amended Statement of Claim, I am satisfied that there is a very high likelihood of substantial prejudice being occasioned to the defendant after a delay of this duration.  The remarks of McHugh J in Brisbane South Regional Health Authority v Taylor[10] are most apposite in this regard.

[22] From all that has been placed before me, particularly in circumstances where the plaintiff continues to be engaged in litigation with the Australian Tax Office before the Administrative Appeals Tribunal I have little confidence that if the plaintiff were given leave to proceed that the action would progress with any higher level of celerity than has been demonstrated in the past.  But of most significance is the fact that the resolutions of conversations between, and credibility of, the parties.  After the lapse of some 14 years since these events and the plaintiff’s failure to particularise his claim over a five year period, I have come to the view that a fair trial could not be had on this claim.  In these circumstances and having regard to the philosophy of the UCPR and the overall obligations on the part of litigants I have taken the view that the action ought to be struck out.

Orders

1. I order that this action be struck out for the want of prosecution.

2. The plaintiff pay the defendant’s costs of and incidental to the proceeding to be assessed on a standard basis.