Aqwell Pty Ltd v BJC Drilling Services Pty Ltd
[2012] QSC 413
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- Unreported Judgment
- Appeal Determined (QCA)
- Aqwell Pty Ltd v BJC Drilling Services Pty Ltd[2012] QSC 413
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Aqwell Pty Ltd v BJC Drilling Services Pty Ltd[2012] QSC 413
Aqwell Pty Ltd v BJC Drilling Services Pty Ltd[2012] QSC 413
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 20 December 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 November 2012 |
JUDGE: | Applegarth J |
ORDER: | The proceeding against the second, third and fourth defendants is dismissed. |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – DISMISSAL FOR WANT OF PROSECUTION – where the second, third and fourth defendants apply for judgment against the plaintiff for want of prosecution following the plaintiff’s failure to comply with an order – where the plaintiff contends that agreement was reached between the parties on 31 May 2012 to withdraw the application and as a result the application is an abuse of process – where the plaintiff failed to comply with an order requiring it to instruct an expert by 29 November 2011 – where the proceeding is characterised by delay and a history of non-compliance by the plaintiff – where the plaintiff’s solicitors have conducted the proceeding in a dilatory manner – whether dismissing the proceeding for want of prosecution is in the interests of justice Uniform Civil Procedure Rules 1999 (Qld), rr 5, 280, 444, 445 Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140, cited Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors [2009] QCA 281, cited Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2012] QCA 272, cited Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299, cited Cooper v Hopgood and Ganim [1999] 2 Qd R 113, cited Field v Luxor Products Pty Ltd [2009] QSC 218, cited Hollyander Pty Ltd v Mike O'Regan & Associates [2011] QSC 164, cited Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, cited Mango Boulevard Pty Ltd v Spencer [2010] QCA 207, cited Moga v Australian Associated Motor Insurers Ltd [2008] QCA 79, cited National Benzole Co Ltd v Gooch [1961] 3 All ER 1097; [1961] 1 WLR 1489, cited Page v The Central Queensland University [2006] QCA 478, cited Quinlan v Rothwell [2002] 1 Qd R 647, cited Quinlan v Rothwell [2008] QSC 143, cited Spencer v Nominal Defendant [2008] 2 Qd R 64, cited Tyler v Custom Credit Corp [2000] QCA 178, followed |
COUNSEL: | M D Butler for the respondent/plaintiff B J van de Beld for the applicants/second, third and fourth defendants |
SOLICITORS: | Lillas & Loel for the plaintiff Crilly Lawyers for the second, third and fourth defendants |
[1] This proceeding was commenced more than ten years ago. In 2008 a judge stated:
“... the justice of the case does call for the plaintiff being given one and only one more chance to demonstrate that it is capable of complying with the spirit and the letter of the rules of court and directions made by this Court.”[1]
The following year another judge stated:
“The history of this matter shows that the plaintiff has been dragged along by the defendants who, not unreasonably, wish to see this matter concluded. They have had to bring a number of applications to have the matter progress.”
The same year, the Court of Appeal concluded that the plaintiff “has been responsible for gross delays”. Chesterman JA, who agreed with the reasons of Muir JA, additionally stated that the plaintiff’s “opportunity to prosecute its action should be closely controlled.”[2]
[2] More than three years after the Court of Appeal’s decision, the matter is still not ready for trial. The plaintiff is alleged to have failed to comply with orders made by Douglas J on 11 October 2011 and, as a result, the second, third and fourth defendants seek an order pursuant to r 280 of the Uniform Civil Procedure Rules 1999 (“UCPR”) dismissing the proceeding for want of prosecution.
The issues
[3] The plaintiff raises as a preliminary issue an argument that the application is an abuse of process because in May 2012, just after the first defendant went into liquidation, the second, third and fourth defendants agreed to seek an order that the application be dismissed “as against the Second to Fourth Defendants” and be adjourned to a date to be fixed in relation to the first defendant. The Court declined to make the order dismissing the application “as against the Second to Fourth Defendants”, and the second, third and fourth defendants later sought and obtained directions for its hearing in the Civil List. Despite this, the plaintiff contends that the Court should exercise its discretion to dismiss the application so as to give effect to the agreement reached in May 2012.
[4] The plaintiff disputes that it breached paragraph 6 of the orders of Douglas J of 11 October 2011. Its solicitor admitted in correspondence that it failed to provide instructions to the sole accounting expert by 29 November 2011, as required by paragraph 6 of the order, and that “this was not done as the matter was simply overlooked by the Plaintiff’s solicitor”. The plaintiff’s solicitor later said that this was not true, and that instructions were given during a telephone conversation on 24 November 2011. The accountant to whom the instructions were allegedly given that day has no recollection or record of them having been given. The plaintiff’s solicitor has no record of them being given. It will be necessary to resolve the issue of whether those instructions were given.
[5] If the plaintiff failed in one or more respects in complying with the order of 11 October 2011 within the time stated in that order, then r 280 is engaged and the Court may dismiss the proceeding for want of prosecution. The factors that may be taken into account in determining whether it is in the interests of justice for a case to be dismissed for want of prosecution have been established by a number of leading authorities. The second, third and fourth defendants (who I shall refer to as “the defendants”) argue that a number of factors justify the exercise of the power. These include the contention that the plaintiff “is either unwilling to co-operate in having the matter ready for trial in an acceptable period, or, for some reason, is unable to do so”, and this arises against a history of non-compliance and delay on its part. It points to the history of delay that is attributable to the plaintiff, as summarised in the findings of the Court which I have earlier quoted.
[6] The plaintiff’s claim against the first defendant has been stayed by its liquidation and there has been no leave to proceed against it. The counterclaim is by the first defendant only and it is not being litigated. Therefore, the defendants submit that dismissal of the proceeding against the second, third and fourth defendants will bring an end to the litigation involving those parties.
[7] The defendants submit that the matter is still not ready for trial. More than five years after Daubney J made an order for the appointment of a joint accounting expert, the expert is yet to be instructed to complete her report. The plaintiff has previewed further amendments to its pleading, but the contents of the amendments are unknown. It has yet to brief counsel to prepare those amendments. Directions for the trial of the proceeding including the delivery of witness statements, witness summaries or affidavits have not been made.
[8] Insofar as delays by the plaintiff are attributable to its solicitors, the defendants submit that the plaintiff cannot escape responsibility for them, since it took the extraordinary step of re-engaging that firm despite the plaintiff having previously encountered problems in the firm’s conduct of its claim. The defendants submit that the plaintiff knew, or should have known, that history was likely to repeat itself. The dilatoriness by its solicitors should be “sheeted home” to the plaintiff.[3] Finally, the defendants submit that there has not been a satisfactory explanation for the delay.
[9] The plaintiff submits that there are five factors in favour of allowing it to proceed to trial, namely:
1. The matter is almost ready for trial;
2. Dismissing the plaintiff’s claim will not conclude the litigation between the parties as the Court will still need to resolve the defendants’ counterclaim;
3. The plaintiff’s solicitor has provided sworn evidence that he complied with paragraph 6 of Douglas J’s orders of 11 October 2011, and even if that evidence is not accepted, any breach of those orders is attributable to the plaintiff’s solicitors and not the plaintiff;
4. A fair trial is possible;
5. There was no delay in the commencement of these proceedings.
Background
[10] In 2001, the plaintiff sold three rotary drills to the first defendant, which were used for drilling and blasting holes in open cut mines. The plaintiff alleges three agreements, the last being a joint venture agreement made on or about 30 April 2012. The arrangement was for the first defendant to complete its purchase of the drills on a date nominated by it after 1 October 2004, but no later than 1 October 2007. In the meantime, the parties were to operate the drills as joint venturers, sharing the profits equally, with the first defendant having the day-to-day management of the drills.
[11] On 27 August 2002 the plaintiff purported to terminate the joint venture agreement. This proceeding, which was started on 16 August 2002, began as an application for an order for the appointment of receivers and managers to the joint venture. Receivers were appointed on 19 September 2002. The receivership was terminated by consent order on 9 October 2003.
[12] Pleadings and amended pleadings were filed in the following years.
[13] On 27 May 2004 an order was made that on or before 10 June 2004 the plaintiff provide security for costs in the amount of $60,000. Security was not provided until 16 September 2005.
[14] On 4 April 2006 a request for trial was filed.
[15] On 2 March 2007 the plaintiff applied for leave to add a new cause of action, to add parties and to further amend its pleadings. On 1 June 2007 Helman J granted orders that included orders for the joinder of the second, third and fourth defendants (who had been directors of the first defendant) on the basis that they were alleged to be accessories to the first defendant’s breaches of fiduciary duty.
[16] The plaintiff required an extension of time to file its amended statement of claim, and its third amended statement of claim was filed on 31 August 2007.
[17] On 12 October 2007 Daubney J made orders for the appointment of Ms Lisa Bundesen as joint accounting expert and also made an order that “if the Plaintiff fails to comply with any part of this order then the Defendants have liberty to apply to strike out the Plaintiff’s claim on the basis of undue delay and failure to comply with the Order of the Court.”
[18] The plaintiff’s solicitors, Lillas & Loel, failed to progress matters in late 2007 and early 2008. They failed to follow instructions, and the solicitor with the day-to-day conduct of the matter misled the plaintiff’s director, Mr Rogers. She took the reprehensible step of fabricating an order dated 11 March 2008 and sending a copy of the fabricated order to the plaintiff. Her conduct was exposed and her name was removed from the roll by order made on 21 August 2008.
[19] On 7 May 2008 the defendants applied for judgment due to the plaintiff’s failure to comply with orders previously made by Daubney J. On the hearing of the application on 14 May 2008 discussion centred on whether it was a case of “three strikes”. Counsel for the plaintiff at the time submitted that the plaintiff had two strikes and “one more and that’s three and that’s the end of your innings”. Daubney J declined to strike out the plaintiff’s claim that day, but made self-executing orders. One order provided that if the plaintiff failed to take any step in the proceeding as required by the order, then it would stand dismissed and there be judgment for the defendants. Other orders included an order that the plaintiff and the defendants were each to pay one half of the estimated cost of the expert’s report within seven days of receiving the estimate of costs.
[20] On 5 February 2009 the defendants applied for judgment, alleging that the plaintiff had failed to comply with the orders made by Daubney J. Martin J concluded that there had been such a non-compliance on two grounds. The first was that the plaintiff had failed to pay one half of the costs of the jointly appointed expert accountant. This was based upon BDO’s second fee estimate. The second ground was that Mr Rogers had failed to file a personal guarantee for security for costs within the time specified in an order dated 30 October 2008. On that day Daubney J had ordered that an application for security for costs be adjourned for 21 days to permit the lodgement of an irrevocable guarantee by the sole director of the plaintiff.
[21] The plaintiff appealed from the decision of Martin J, and engaged a new solicitor in lieu of Lillas & Loel. An affidavit sworn by Mr Rogers on 12 August 2009 disclosed his knowledge of various failures by Lillas & Loel to properly conduct the proceeding, including a failure by Mr Loel to seek instructions and Mr Loel acting without instructions.
[22] The appeal turned on an issue of construction, namely whether the May order contemplated that there would be only one fee estimate. The Court of Appeal favoured the plaintiff’s argument concerning the proper construction of the order, and allowed the appeal. It was highly critical of the plaintiff’s past conduct of the proceeding, and made clear the need for the proceeding to be “taken in hand and promptly brought to a conclusion”.
[23] The Court of Appeal delivered its decision on 18 September 2009. The matter was placed on the Supervised Case List on 23 October 2009. On 25 November 2009 orders were made for the proceeding to be set down for a four day trial, limited to the issue of liability, commencing on 8 March 2010. On 2 March 2010 Daubney J made orders, among other things, vacating the trial. At subsequent reviews orders were made for the delivery of amended pleadings and for further disclosure.
[24] On 7 October 2010 Lillas & Loel Lawyers filed a notice of change of solicitors and resumed the conduct of the proceeding. In November 2010 orders were made in relation to disclosure.
[25] On 27 September 2011 the plaintiff filed an application for an order for leave to amend its claim, and on 11 October 2011 Douglas J made consent orders which relevantly provided:
“1.The plaintiff be given leave to file and serve an Amended Claim and Statement of Claim in the form of Annexure A to the Amended Application within 2 business days.
2.The defendants be given leave to file a further Amended Defence and Counterclaim by 25 October 2011.
3.The plaintiff be given leave to file any further Amended Reply and Answer by 1 November 2011.
4.The parties make any further necessary disclosure as a result of the amendments referred to in paragraphs 1, 2 and 3 above by 15 November 2011.
5.The matter be listed for review on the first available date after 15 November 2011.
6.The parties are to appoint Lisa Bundesen of PPB as sole accounting expert in this matter. By 29 November 2011 the parties are to instruct her to complete the joint expert report commenced by her when she was in the employ of BDO Kendalls (“PPB Report”). The instruction to the joint expert shall include the matters raised in the then current pleadings.
7.The plaintiff and the defendants are to each pay half the costs of completing the PPB Report to PPB. When providing the instruction referred to in paragraph 6 to PPB, the parties shall request that PPB provide an estimate, by 9 December 2011, of the costs of completing the PPB Report. The plaintiff and the defendants are to each pay their share of that estimate to PPB by 23 December 2011.”
[26] The plaintiff was late in filing its amended reply and answer, which was filed on 9 November 2011.
[27] In November 2011 there was extensive correspondence exchanged between the parties about instructing the joint expert. There is no dispute that the defendants gave the instructions required by 29 November 2011. Whether or not the plaintiff gave the instructions required by paragraph 6 of Douglas J’s order is now in dispute, and I later address that issue. It is sufficient for present purposes to observe that in early December 2011 the defendants’ solicitors corresponded about the matter and complained about the plaintiff’s failure to issue the required instructions. They did not receive any correspondence or contact from the plaintiff or the plaintiff’s solicitors between 21 November 2011 and 7 February 2012.
[28] On 2 February 2012 they wrote a letter pursuant to r 444 to the plaintiff’s solicitors complaining about the plaintiff’s failure to comply with the orders made by Douglas J on 11 October 2011, including its failure to instruct Ms Bundesen on or before 29 November 2011. The failure to instruct her had resulted in a delay in the provision of her report, and the payment of a share of her estimated costs. By letter dated 8 February 2012 the plaintiff’s solicitors admitted that instructions had not been provided to Ms Bundesen by 29 November 2011. This was said to be the result of the matter having been “simply overlooked by the plaintiff’s solicitor”.
[29] On 9 February 2012 P Lyons J ordered that the orders made by Douglas J be suspended until further order.
The application filed 16 February 2012
[30] All of the defendants applied on 16 February 2012 for an order pursuant to r 280 that the claim be dismissed and judgment be entered for the defendants against the plaintiff. The application was supported by an affidavit of the sole director of the first defendant, Mr Weber, who swore that the first defendant had incurred legal fees of approximately $900,000 in defending the proceedings. His evidence, which is not contested, referred to “the pattern of delay on the part of the Plaintiff and the significant passage of time since the commencement of the proceedings”. He was concerned that the matter would not be expeditiously progressed. He swore:
“4.This litigation has created significant uncertainty and interfered with my ability to plan BJC Drilling Services’ business affairs and my own personal affairs for a period in excess of nine (9) years.
5.In particular, the litigation has created obstacles to the hiring of staff, purchase and finance of new equipment and ability to commit to long term contracts.
6.The constant interlocutory applications caused by the Plaintiff’s failure to adequately comply with directions of the court have been a significant burden on BJC Drilling Services and the company’s cash flow.
7.The threat of the litigation and its consequences has become an impediment to attempts by BJC Drilling to refinance and obstructed the profitability and efficiency of BJC Drilling Services’ business significantly.
8.The uncertainty of a trial has made budgeting for these proceedings difficult and budgets have repeatedly proved inadequate due to the dilatory prosecution of the matter by the Plaintiff.”
The winding up of the first defendant
[31] Mr Weber’s concerns about the cost of the plaintiff’s dilatory prosecution of the proceeding and its consequences were not misplaced. On or about 30 April 2012 the first defendant was placed in voluntary administration. On 30 May 2012 liquidators were appointed to it as a result of a winding up application brought by the Deputy Commissioner of Taxation.
The adjournment of the application as a result of the winding up of the first defendant
[32] After the application was filed the defendants’ solicitors proposed that it be adjourned. This was because the first defendant was a primary defendant to the proceeding and the party providing instructions in relation to its conduct, the appointment of an administrator had stayed the proceeding against the company and the administrator had not provided consent for the application to proceed. On 30 May 2012 the defendants’ solicitors sent the plaintiff’s solicitors a form of Request for Consent Order and a draft consent order which provided for the application, which was due to be heard on 1 June 2012, to be adjourned to a date to be fixed. The letter of 30 May 2012 stated:
“We confirm that the Second, Third and Fourth Defendants withdraw from the application and that the Plaintiff accepts that position.”
[33] On 30 May 2012 the plaintiff’s solicitors advised that the plaintiff would consent to orders that the application filed 16 February 2012 be dismissed with costs reserved. The defendants’ solicitors indicated that those proposed orders were not consistent with what they had earlier indicated, which was for the adjournment of the application “as it relates to the First Defendant”. They noted that the “withdrawal relates only to the Second, Third and Fourth Defendants”. In an email sent at 5.30 pm on 30 May 2012 the plaintiff’s solicitors indicated that the plaintiff would consent to the following orders:
1. The application is dismissed as against the second to fourth defendants;
2. The application is adjourned to a date to be fixed in relation to the first defendant;
3. Costs reserved.
They requested that the defendants’ solicitors submit a consent order so that the List Manager could be informed and the need for an appearance avoided.
[34] On 31 May 2012 the defendants’ solicitors sent to the plaintiff’s solicitors a signed form of Request for Consent Order of Registrar and a draft consent order which provided for the three orders which the plaintiff’s solicitors had proposed. The application was delisted. But the Registrar declined to make consent orders in the form proposed.
The hearing on 27 August 2012
[35] Due to the unavailability of Peter Lyons J and the plaintiff having been deregistered by ASIC on 8 July 2012, the matter was not reviewed until 27 August 2012. By that time, the orders which the parties had requested the Court to make on 31 May 2012 still had not been made. In addition, the liquidator for the first defendant had indicated that it wished to proceed with the application filed 16 February 2012. I was told that at the review hearing on 27 August 2012 the parties proposed various forms of order including orders that the application be dismissed as against the second to fourth defendants. However, Peter Lyons J declined to make such an order. Instead, he made directions for the plaintiff to notify the defendants whether it intended to apply for leave to proceed under s 471B of the Corporations Act 2001 and adjourned the matter to be reviewed on 20 September 2012.
The hearing on 20 September 2012
[36] The plaintiff did not give notice of its intention to bring an application for leave to proceed against the first defendant or file any application for leave to proceed in accordance with the orders of Peter Lyons J. On 20 September 2012 the defendants’ solicitors wrote to the plaintiff’s solicitors, noting that Peter Lyons J on 27 August 2012 had declined to make an order dismissing the application as against the second, third and fourth defendants and contending that, as a result, the Request for a Consent Order of Registrar signed and dated 31 May 2012 no longer had any effect and could not be relied upon. If, however, this view was wrong, the defendants’ solicitors contended that they were entitled to withdraw their consent to having an order made in those terms and did so. It proposed draft orders to be made at the forthcoming review.
[37] On 20 September 2012 Peter Lyons J made an order that the application filed 16 February 2012 as far as it relates to the second, third and fourth defendants be set down on the Civil List for a one day hearing on 29 November 2012.
[38] The plaintiff’s solicitor, Mr Loel, swears that he was not aware that consent orders in the form proposed on 31 May 2012 had not been made until he conferred with counsel on 24 August 2012. However, the plaintiff acknowledges that it cannot point to any prejudice arising out of its misunderstanding in this regard. For example, the plaintiff does not allege that it did anything between 31 May 2012 and 24 August 2012 that it would not have done had it known that consent orders had not been made by the Court or that it omitted to do anything during that period which it would have done had it known consent orders had not been made, as requested.
[39] The plaintiff does not allege that the second, third and fourth defendants failed to seek orders from the Court in accordance with the request dated 31 May 2012. Both parties did. However, the Court declined to make those orders and there has been no appeal from its decision.
The plaintiff’s abuse of process argument
[40] The plaintiff submits that the application is an abuse of process and should not be allowed to proceed because the parties signed the Request for Consent Orders on 31 May 2012 seeking an order that the application be dismissed “as against the Second to Fourth Defendants”. Its argument is that although no order was made following that request, what it describes as the “consent order of 31 May 2012” amounts to an interlocutory order, and that bringing a second application where there has been no change of circumstances amounts to an abuse of process.
[41] The principles governing re-litigation of applications are not in doubt.[4] Even in interlocutory matters, a party cannot fight over again a battle which has been fought, unless there has been some significant change of circumstances, or a party becomes aware of facts which it could not reasonably have known, or found out, in time for the first encounter.[5] Where a consent order operates both as a contract and an order of the Court it may be possible to set it aside, but this depends on the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it.[6]
[42] An immediate problem for the plaintiff’s abuse of process argument is that no consent order was made on 31 May 2012 or on any later date. The Registrar refused to make the orders that were requested, and Peter Lyons J declined to make those orders when requested to do so on 24 August 2012. Since no consent order was made, one is not concerned with the principles that arise in a case in which a consent order embodies a contract[7] and the circumstances under which it might be appropriate to vary or set aside such an order.[8]
[43] This is not a case of proposed consent orders which the Court failed to formally enter through an oversight. The Court declined to make the orders sought, when requested.
[44] The plaintiff relies upon National Benzole Co Ltd v Gooch[9] in which the defendant agreed to abandon his appeal and a document was drawn up requesting that the appeal which was set down for hearing be dismissed and struck out of the list, with no order as to costs. The document was signed by the solicitors for both parties and initialled by the President of the Court, but no order was drawn up. Later, the defendant, having changed his legal advisers, wished to restore the appeal. The English Court of Appeal held that the appeal remained on foot until a formal order was drawn up and entered, and until that point was reached the Court had a discretion to withdraw its previous instructions in relation to the order and make such orders as it thought fit. The Court addressed the question of whether the defendant ought to be allowed to continue his appeal. On that point, the consent of the parties was found to reflect a contract between them, the consideration for which was that there should be no order as to costs. It was not alleged that the agreement was either void or voidable. The Court declined to exercise its discretion to allow the defendant to continue with the appeal. In circumstances in which the agreement was not impeached and in which there was consideration sufficient to support a contract by way of compromise, the Court declined to do so. The defendant’s application for a direction that no order should be drawn up so that he could proceed with the appeal was dismissed. The Court was not prepared to exercise its discretion to allow a party to go on with an appeal after having entered into a binding contract for good consideration not to do so.
[45] In that case, the Court, through oversight, failed to initially act on the parties’ request to order that the appeal be dismissed and subsequently gave effect to their agreement. The position in this case is different. When asked to give effect to the parties’ agreement the Court declined to do so. The Court having declined to make the requested order, both when the Registrar declined to do so and when Peter Lyons J declined to do so on 27 August 2012, the plaintiff, in effect, seeks to re-litigate the matter that was before the Court on 27 August 2012, contrary to the principles of finality upon which it relies.
[46] If the Request for a Consent Order dated 31 May 2012 constituted or reflected a binding agreement for which consideration was given, then the second, third and fourth defendants did what was required of them in carrying out the agreement. They performed their part of the contract and it is at an end. The defendants did not promise that a consent order would be made by the Court. They agreed to seek an order, and did so.
[47] The issue remains as to whether I should exercise my discretion to dismiss the application so as to give effect to what the parties agreed on or about 31 May 2012, but which the Court declined to order on a previous occasion. I am not inclined to do so. To do so would be to re-litigate a matter which the Court considered on 27 August 2012. The Court declined to give effect to the parties’ agreement by making a consent order. It preferred to await developments in respect of the first defendant, which also had applied to dismiss the plaintiff’s proceeding. When it became apparent that the adjourned application would not be prosecuted by the first defendant, the second, third and fourth defendants assumed its conduct. The plaintiff can point to no prejudice that it suffered by reason of its false and unfounded assumption that the application had been dismissed as against the second, third and fourth defendants. The second, third and fourth defendants performed their part of the agreement reached in late May 2012. The fact that they made such an agreement is relevant to my discretion. However, in all the circumstances, including the fact that the agreement was performed by them and the Court declined to make orders upon their request, I decline to exercise my discretion to dismiss the application on the basis of the May agreement. I do not regard its further prosecution as an abuse of process. The bringing of a further application for the same relief in the absence of changed circumstances would have been an abuse of process if the Court had made consent orders that embodied a binding contract between the parties. However, this did not happen, and the application should be decided on its merits.
Relevant principles
[48] Tyler v Custom Credit Corp Ltd[10] considered the power to dismiss proceedings for want of prosecution. Atkinson J, with whom McMurdo P and McPherson JA agreed, stated that there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed. These include:
“(1)how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
(2)how long ago the litigation was commenced or causes of action were added;
(3)what prospects the plaintiff has of success in the action;
(4)whether or not there has been disobedience of Court orders or directions;
(5)whether or not the litigation has been characterised by periods of delay;
(6)whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
(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;
(8)whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;
(9)how far the litigation has progressed;
(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 advisers;
(11)whether there is a satisfactory explanation for the delay; and
(12)whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.”[11]
The Court’s discretion is not fettered by rigid rules and it should take into account all the relevant circumstances of the particular case. These were said by the Court in Tyler to include “the consideration that 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.”[12]
[49] In Quinlan v Rothwell, it was said that “r 280 is an express and untrammelled statement of the power of all three courts in Queensland to dismiss a proceeding for want of prosecution.”[13] Thomas JA, with whom the other members of the Court concurred, stated that the rules are “a clear indication of the change in attitude that has independently taken place in courts throughout Australia. They suggest that courts will now be less tolerant of delay and that the expedition of proceedings should be encouraged to a greater extent than was formerly the case.”[14] The Court of Appeal in that case overturned a decision to dismiss for want of prosecution, and did so assuming that the matter would come quickly on for trial. It illustrates the proposition that it is a strong thing to deny a plaintiff a trial in a case where it appears to have reasonable prospects of success, preparation of the matter is well advanced and the delay does not mean that a fair trial cannot be ensured.[15]
[50] I shall concentrate on the factors stated in Tyler which feature in the parties’ submissions. The factors listed by Atkinson J in Tyler arise for consideration under r 280. I adopt the observation of Daubney J in Hollyander Pty Ltd v Mike O'Regan & Associates[16] that r 280 applies in the context provided by r 5. Under r 5, a party impliedly undertakes to the Court and the other parties to proceed in an expeditious way.
Whether or not there has been disobedience of court orders or directions
[51] The history of the matter discloses lengthy periods of delay attributable to the plaintiff and disobedience of court orders. The plaintiff in its submissions in reply accepts that there have been delays, even gross delays, in the conduct of the litigation. It does not contest the fact that throughout the history of the matter, it has failed to comply with orders and directions of the Court. However, apart from the alleged breaches of Douglas J’s orders of 11 October 2011 (to be addressed below), it submits that there have been only a few breaches by it of court orders since 2008. One was the late filing of a reply. Another was the late filing of material in March 2012 which led to a hearing being adjourned. During the hearing on 14 May 2008 Daubney J stated that the plaintiff was to be “given one and only one more chance to demonstrate that it is capable of complying with the spirit and the letter of the Rules of Court and directions made by this Court.” The plaintiff submits that it has not “spent” the final chance that Daubney J considered was due to it.
[52] The relevance of a history of non-compliance, and the cumulative effect of a party’s defaults is explained by the Full Court of the Federal Court in Lenijamar Pty Ltd v AGC (Advances) Ltd.[17] The Court remarked that it is undesirable to make any exhaustive statement of the circumstances under which the power granted to dismiss a proceeding for failure to comply with the rules will appropriately be exercised. It continued:
“... two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases – whatever the applicant’s state of mind or resources – in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant’s defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.”[18]
[53] These principles have been followed in this Court.[19] They will be engaged when a plaintiff is either unwilling to co-operate in having the matter ready for trial in an acceptable period, or, for some reason, is unable to do so. This will be so where there has been a persistent failure to comply with directions, the absence of any genuine explanation for default and an unwillingness to take control of the action to enable it to be heard within a reasonable time.
Did the plaintiff fail to comply with the orders of Douglas J?
[54] The plaintiff accepts that it failed to comply with paragraph 3 of the orders made by Douglas J on 11 October 2011. It was eight days late in filing its amended reply and answer. It submits that the amendments were minor in nature, and that the defendants have not identified any prejudice that flowed from this delay.
[55] The contested issue concerning compliance with the orders of Douglas J relates to paragraph 6 of those orders, which required the parties to instruct Ms Lisa Bundesen as sole accounting expert by 29 November 2011 to complete the joint expert report.
[56] On 21 November 2011 the plaintiff’s solicitor, Mr Loel, obtained copies of the instructions that had previously been given to Ms Bundesen. In Ms Bundesen’s absence he spoke to Mr Steve Lord, a Senior Manager at PPB Advisory (“PPB”) who had the conduct of communications of behalf of PPB with both the plaintiff’s lawyers and the defendants’ lawyers. Various communications followed and on 28 November 2011 the defendants’ solicitors requested Mr Loel’s firm to sign and return instructions to Ms Bundesen. They did not do so. On 29 November 2011 the defendants’ solicitors sent Ms Bundesen relevant instructions, but noted that their instructions were conditional on the plaintiff providing similar instructions to her. This was because the plaintiff was required to bear half the costs of the report. A copy of the letter to Ms Bundesen was sent to the plaintiff’s solicitors on 5 December 2011. This did not prompt any response, for example, an assertion by the plaintiff’s solicitors that they had given the instructions.
[57] On 13 December 2011 the defendants’ solicitors again wrote to the plaintiff’s solicitors and addressed issues in relation to disclosure. The letter noted that they did not consider any issue in relation to disclosure “to be a valid or reasonable excuse for the plaintiff’s failure to provide instructions to Lisa Bundesen of PPB by 29 November 2011.” Mr Loel says that, for reasons that he cannot adequately explain, this letter did not come to his attention until after receipt of a letter written by the defendants’ solicitors pursuant to r 444 dated 2 February 2012. The UCPR r 444 letter of 2 February 2012 set out in great detail the history of the matter and complained about the plaintiff’s failure to instruct Ms Bundesen on or before 29 November 2011 to complete the joint expert report.
[58] Paragraph 27 of Mr Loel’s affidavit filed 5 March 2012 states that he replied to that letter on 8 February 2012. The following paragraph of that letter, which was written pursuant to r 445, assumes particular importance:
“Of course, your clients are correct in stating that instructions should have been provided to Ms Bundesen by 29 November 2011. However, this was not done as the matter was simply overlooked by the Plaintiff’s solicitor.”
This amounted to a clear admission of a failure to comply with paragraph 6 of the orders of Douglas J.
[59] In a later affidavit Mr Loel attempted to resile from this admission. He stated that he did not sign the letter dated 8 February 2012 because he was not in the office that day. The affidavit continued:
“Since early December 2011 I have been assisted by Jeff Perkins Solicitor who did sign the letter. He did so without the opportunity to review the voluminous material exchanged between the parties since October 2011 and what he says in that letter regarding ‘this was not done as the matter was simply overlooked by the Plaintiff’s solicitor’ is not true.”
Mr Loel swore that after he received an email from Mr Lord on 24 November 2011 he telephoned Mr Lord and told him that he was satisfied with the material that he had received and that PPB ought to proceed with the preparation of the expert report.
[60] Mr Lord swore in an affidavit that he did not specifically remember a telephone call with Mr Loel on 24 November 2011 and that he did not have a file note in respect of any such telephone call. As far as Mr Lord was aware, at no time on or before 29 November 2011 did PPB receive any sort of written or verbal instruction from the plaintiff’s solicitors or the plaintiff to the effect that it should proceed with the preparation of the joint expert report. Notably, Mr Lord kept file notes of conversations that he had with Mr Loel and also of conversations with the defendants’ solicitors in relation to the preparation of the expert report. I infer that it is his practice to make file notes of instructions to proceed with a report. In any event, the absence of a file note or any other record of a conversation with Mr Loel on 24 November 2011 is significant. I also place some significance on the fact that on 12 December 2011 Mr Lord spoke to Mr Loel by telephone. Mr Lord’s file note says that he spoke to Mr Loel “to confirm we should not be working on the matter until we had received instructions from them ...”. The file note tends to confirm that PPB had yet to receive instructions from the plaintiff’s solicitors as at 12 December 2011.
[61] Neither Mr Loel nor Mr Lord was required for cross-examination. I am required to decide the issue of whether instructions were given by Mr Loel to Mr Lord on 24 November 2011 to proceed with the preparation of the expert report. I take account of the seriousness of a finding that Mr Loel has given false evidence. I also take account of the possibility that Mr Lord cannot recall instructions that were given to him by Mr Loel on 24 November 2011, failed to record a note of their conversation and also failed to act upon the alleged instructions.
[62] Instructions from Mr Loel to Mr Lord to proceed with the report would have been an important matter. One would expect Mr Lord to take a note of such instructions. One also would expect him to proceed in accordance with them. One would also expect him to correct the defendants’ solicitors when they wrote to PPB on 7 December 2011 asserting that the plaintiff had failed to provide instructions.
[63] The letter which Mr Loel wrote (but did not sign) dated 8 February 2012 contains a clear admission that instructions were not provided by 29 November 2011 because the matter was simply overlooked by the plaintiff’s solicitors. If Mr Loel had in fact instructed Mr Lord on 24 November 2011 such an admission would not have been made. The fact that the letter of 8 February 2012 was signed by another solicitor in Mr Loel’s absence counts for very little. Paragraph 27 of Mr Loel’s affidavit filed 5 March 2012 indicates that he replied to the UCPR r 444 letter in the form of the letter dated 8 February 2012. Mr Loel does not say that the 8 February 2012 letter was drafted by anyone else, such as Mr Perkins. Mr Perkins did not swear an affidavit about any role that he played in the drafting of the 8 February 2012 letter. I infer that his evidence would not have assisted the plaintiff in this regard, and that the letter was in fact written by Mr Loel. I conclude that the letter of 8 February 2012 correctly states the facts.
[64] Mr Loel produces no file note or other record in support of the contention that he spoke to Mr Lord on 24 November 2011.
[65] I conclude that he did not.
[66] Ms Bundesen was not instructed, via Mr Lord, to complete her report. No such instruction was given on 24 November 2011. The plaintiff failed to instruct her by 29 November 2011 to complete the report. As a result, it breached paragraph 6 of Douglas J’s order.
[67] The breach of paragraph 6 of the order meant that preparation of the report was not progressed. Joint instructions were not received. When the defendants’ solicitors ascertained that the plaintiff had failed to provide the instructions they wrote to PPB about the problem. When PPB raised the matter with Mr Loel on 12 December 2011 he did not belatedly give it instructions to proceed. According to Mr Lord’s file note of 12 December 2011 Mr Loel spoke about finding out how much it would cost and the timing. Although he said he did not have an issue with the instructions, he thought that PPB needed more material. Instructions were not subsequently given by the plaintiff or its solicitors. As a result, Ms Bundesen did not start work on the expert report.
[68] I conclude that there has been disobedience of court orders and directions by the plaintiff, including its failure to instruct Ms Bundesen by 29 November 2011. This has further postponed the much-delayed provision of an expert report. Directions for the appointment of a joint expert had been made on 12 October 2007.
[69] This non-compliance by the plaintiff in November 2011 and in the months that followed comes against a history of delay. It suggests an unwillingness to co-operate in having the matter ready for trial within an acceptable period or an inability to do so.
Whether or not the litigation had been characterised by periods of delay and whether the delay is attributable to the plaintiff, the defendants or both
[70] The plaintiff does not contest the fact that there have been lengthy periods of delay attributable to it during the course of the litigation. I quoted the observations of members of the Court at the start of this judgment.
[71] Some of the delay has been caused by the plaintiff’s solicitors being dilatory. I take account of the affidavits filed by Mr Rogers about the instructions that he has given at various times to Mr Loel to pursue the plaintiff’s claim.
[72] In 2009 after Mr Rogers, the sole director of the plaintiff, was aware of what he described in an affidavit as “the Plaintiff’s lawyers’ delay, misconduct or negligence”, he instructed a new solicitor to act for the plaintiff and to advise it about its rights in relation to recovering certain costs from Lillas & Loel. Mr Rogers’ affidavit sworn 12 August 2009 complained about the failure of Mr Loel to seek instructions from him in relation to the settlement of the defendants’ claim for costs arising out of certain orders. He thought that he had a claim against Lillas & Loel.
[73] Despite the problems that the plaintiff had encountered as a result of Mr Loel and/or Lillas & Loel, in October 2010 it re-engaged the firm. The defendants submit that the plaintiff should have known that history was likely to repeat itself and that, rather than entertain an attempt by the plaintiff to blame its solicitors, the dilatoriness of its solicitors should be “sheeted home” to the plaintiff.
Whether there has been a satisfactory explanation for the delay
[74] The plaintiff’s delay has not been satisfactorily explained. I take account of Mr Rogers’ affidavit about the costs that the plaintiff has incurred in these proceedings. However, neither he nor Mr Loel explained the failure to engage Ms Bundesen in accordance with the Court’s directions, the failure to amend the plaintiff’s pleading or the failure to bring the matter on for an early trial in the three years since the matter was before the Court of Appeal as due simply to a lack of funds. If the plaintiff’s failure to comply with court orders, its delay in readying the matter for trial and its apparent inability to prepare the matter for trial is due to a lack of funds then this should have been frankly stated in an affidavit which also addressed the plaintiff’s ability to comply with future directions and its ability to have the matter ready for trial in an acceptable period.
[75] Mr Loel explained that the reason that the plaintiff was late in filing its amended reply and answer was that it had not paid outstanding legal fees to his firm and as soon as those fees were paid, the amended reply and answer was settled and filed on 9 November 2011. Mr Rogers says that he has instructed Lillas & Loel to pursue the matter expeditiously to trial, having spent approximately $500,000 in legal fees on the matter as at March 2012. However, his affidavit does not address the extent to which past delay and past disobedience of court orders was due to the impecuniosity of the plaintiff, and whether or not the plaintiff has the capacity to prepare the matter for trial and conduct a trial.
[76] I turn to the five factors which the plaintiff submits favour allowing it to proceed to trial.
Is the matter almost ready for trial?
[77] The plaintiff submits that the matter is “almost ready to proceed to trial”. Its written submissions add the caveat that the expert report is yet to be completed, and that the plaintiff needs to amend three paragraphs of its pleading which allege that the defendants were knowingly accessories to the first defendant’s breaches of fiduciary obligations in connection with the joint venture.
[78] In September 2009 the Court of Appeal expressed in the clearest possible terms the need for directions to ensure an early hearing, and to avoid the possibly unnecessary expense involved in preparing for trial on issues of quantum. Muir JA concluded that the plaintiff had been responsible for “gross delays” and that the proceeding had been “lurching along for years with lamentable consequences for both sides.” His Honour stated, and the other members of the Court agreed, that “the proceeding must be taken in hand and promptly brought to a conclusion.” Chesterman JA remarked about the costs associated with the finalisation of an accountant’s report and observed that the parties seemed unsure what function the accountant’s report was to play at the trial. If the report was not to authoritatively determine the plaintiff’s loss as though it were the report of a referee, there appeared to be scope for “further confusion, delay and expense”. White J (as her Honour then was) agreed with Muir JA and Chesterman JA that directions should be sought to determine issues of liability between the parties in advance of quantum.
[79] The plaintiff has not obtained trial directions. The parties have persisted with progressing the joint expert report although its preparation has been placed on hold pending the present application.
[80] Although orders were made on 25 November 2009 for the trial to be one on liability only, no trial dates have been obtained. Directions have not been sought or obtained as to whether the evidence of witnesses is to be in the form of affidavits, witness statements or witness summaries. No other trial directions have been made in recent times.
[81] The defendants’ solicitor estimated in February 2012 that they would incur costs of between $100,000 and $150,000 in preparing for trial and at trial on the basis that there would be no further delays in the prosecution of the matter. Mr Loel thought the figure was more likely to be in the range of $100,000 to $120,000. He did not estimate the plaintiff’s own costs in preparing for trial, and conducting the trial, or address the capacity of the plaintiff to bear those costs.
[82] The plaintiff’s assertion that the matter is almost ready to proceed to trial is undermined by its acknowledgment that it needs to amend its pleading. The amendments were described as being in the nature of particulars. Amendments are necessary because the relevant allegations against the second, third and fourth defendants are pleaded in the most general terms. One would think that material facts in support of such general allegations should be pleaded, not simply particularised. In any event, the plaintiff has not amended its pleading. It has not provided a copy of its proposed pleading to the defendants or sought directions or leave in relation to the filing and service of such an amended pleading. It emerged during the hearing that counsel has not even been briefed to draft the necessary amendments.
[83] Confident expectations that a matter will come on for an early trial may prove misplaced.[20] In this matter one can have no confidence that the matter will be ready for trial in the near future. The plaintiff’s failure or inability to finalise its own pleading provides no basis to assume that the plaintiff will be able to prepare the matter for trial. I do not accept the plaintiff’s contention that the matter is almost ready for trial.
Will dismissing the plaintiff’s claim conclude the litigation?
[84] The plaintiff submits that dismissing its claim will not conclude the litigation because the “Defendants’ counterclaim would remain on foot”. This is not correct. The counterclaim is by the first defendant only and it is not being prosecuted. The plaintiff is not prosecuting its claim for breach of fiduciary duty or any other claim against the first defendant. It was given the opportunity to apply for leave to proceed against the first defendant and it failed to seek such leave. Accordingly, this is not a case in which the matter will proceed to a trial against the party whose breach of fiduciary duty the second, third and fourth defendants are alleged to have assisted. Dismissing the proceeding against the second, third and fourth defendants will conclude the litigation.
Has the plaintiff breached Douglas J’s orders?
[85] The plaintiff submits that it did not breach Douglas J’s orders. However, I have found that it did. The plaintiff next argues that the failure to provide instructions to Ms Bundesen is attributable to its solicitor and that Mr Rogers, the plaintiff’s sole director, told Mr Loel on 21 November 2011 to instruct PPB by 29 November 2011. The first that Mr Rogers heard about that matter was on 15 February 2012 when the defendants’ solicitors’ letter dated 2 February 2012 was read to him by a secretarial service. The plaintiff submits that the fact that it was not personally responsible for the breach is a factor in favour of the Court not exercising its discretion to dismiss the proceeding.
[86] In Tyler the Court identified the need to consider whether delay has been caused by the plaintiff’s lawyers being dilatory. It observed that such dilatoriness will not necessarily “be sheeted home” to the client, but it may be. The present issue of responsibility for failure to comply with a court order and consequential delay arises against a background of gross delay by the plaintiff. I accept the defendants’ submission that the plaintiff must accept some responsibility for the dilatoriness of its solicitors because it took the extraordinary step of re-engaging the firm, knowing of the problems that the firm’s conduct of the matter had previously created.
Is a fair trial still possible?
[87] The plaintiff submits that there is no evidence from the defendants that a fair trial is not possible. It has not submitted that any potential witnesses the defendants may wish to call have died or are otherwise unavailable. Whether or not the delay has resulted in prejudice to the defendants leading to an inability to ensure a fair trial is a relevant factor. In Tyler the Court of Appeal remarked that the prejudice caused by the passing of time may be as insidious as it is subtle in that the parties cannot demonstrate what it is they have forgotten.[21] The Court also observed that unnecessary delay in proceedings has a tendency to bring the legal system into disrepute and it decreases the chance of there being a fair and just result.[22] The inevitable disadvantage to all parties of delay does not necessarily mean that the relevant issues cannot be fairly tried.[23] Still, as Keane JA observed in Page v The Central Queensland University:
“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.”[24]
The defendants submit that the substantial delays in this matter are likely to have resulted in a fair trial no longer being possible. There is a risk that the defendants will have been prejudiced to such an extent that the trial will be unfair. However, I am not persuaded that a fair trial is impossible.
Delay in the commencement of proceedings
[88] The plaintiff submits that there was no delay in the commencement of these proceedings. It commenced proceedings in August 2002 by applying to the Court for appointment of receivers.
[89] The defendants respond that although the plaintiff may have commenced its proceedings against the first defendant in August 2002, it did not commence its proceeding against the second to fourth defendants until June 2007 when it obtained leave to join them as parties.[25] Its delay in doing so is not adequately explained. Even if it was adequately explained, the late commencement of the proceedings against the second to fourth defendants obliged the plaintiff to prosecute the proceeding with some dispatch. It has failed to do so. It has still not properly pleaded its case against them.
The interests of justice
[90] The factors pointed to by the parties in their submissions are matters which must be taken into account in determining whether the interests of justice justify the exercise of the discretion under r 280 to dismiss the proceeding for want of prosecution.
[91] Mr Rogers, the sole director of the plaintiff, is deserving of some sympathy. His company has invested a large amount of legal fees in prosecuting this proceeding. It is a serious matter to dismiss a proceeding and thereby deprive a plaintiff of the opportunity to have its claim determined at trial. However, the plaintiff gave an implied undertaking to the Court and to the defendants to proceed in an expeditious way. It has failed to do so. This proceeding has been characterised by periods of gross delay and disobedience of court orders. Whilst lack of funds may have been responsible for the pace of the litigation at some stage, I am not satisfied that the defendants were responsible for the plaintiff’s impecuniosity. The plaintiff does not make such a contention in its submissions.
[92] Just as one has sympathy for Mr Rogers and the financial and personal consequences to him of this litigation, one must balance that against the cost and consequences of the litigation to the defendants. As Martin J stated in 2010, “the history of this matter shows that the plaintiff has been dragged along by the defendants who, not unreasonably, wish to see this matter concluded. They have had to bring a number of applications to have the matter progressed.” The litigation and its slow progress imposed a large financial burden upon the first defendant and, indirectly, upon its shareholders. The first defendant has been wound up. The personal consequences for defendants who are subject to a proceeding which is not properly prosecuted should be taken into account. McPherson JA in Cooper v Hopgood and Ganim observed:
“... 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.”[26]
[93] The weight that should be accorded to the plaintiff’s opportunity to litigate its claim against the second, third and fourth defendants to trial is lessened by its own decision to re-engage its former solicitors who had not properly progressed the proceeding before the plaintiff parted company with it. Mr Rogers’ own affidavit demonstrates his awareness of that firm’s shortcomings and the failure of Mr Loel to either follow instructions or obtain instructions. As a result, the plaintiff should bear some responsibility for recent delays and disobedience of court orders that are attributable to its solicitors.
[94] Mr Loel failed to carry out the plaintiff’s instructions to instruct Ms Bundesen on or before 29 November 2011. Another breach of Douglas J’s order was due to the plaintiff’s failure to place its solicitors in funds. That breach had no significant consequences. The failure to instruct Ms Bundesen in accordance with paragraph 6 of Douglas J’s order caused additional delay and unnecessary costs.
[95] Mr Loel in his letter of 8 February 2012 admitted that the failure to comply with the order by providing instructions to Ms Bundesen by 29 November 2012 was the result of the matter being “simply overlooked by the Plaintiff’s solicitor”. His attempt to resile from that admission has been rejected. Mr Loel’s conduct in not following instructions and then attempting to resile from the admission that he made does him no credit. It also provides one with no confidence that the proceeding will be competently and properly progressed to an early trial.
[96] The plaintiff’s failure to even draft foreshadowed amendments to its pleading against the second, third and fourth defendants is unexplained. Again, it gives one no confidence that the plaintiff is either willing or able to co-operate with the Court and the defendants in having the matter ready for trial within an acceptable period.
[97] The plaintiff’s non-compliance with the orders of Douglas J are not minor matters which have been adequately explained by a litigant who has otherwise conducted a proceeding in accordance with its obligations and the orders of the Court. It comes against a history of unacceptable delay and non-compliance. On 14 May 2008 the plaintiff was given the chance to demonstrate its capacity to comply with the rules and directions made by the Court. Despite Court intervention to get the matter ready for trial, the trial of the proceeding was vacated in March 2010. The plaintiff accepts that there have been gross delays in the conduct of the litigation. Its submission that it has not “spent” the final chance that it was given in May 2008 should not be accepted. However, the resolution of this application does not depend upon a final chance having been spent. Ultimately, it involves weighing many factors and determining whether the most recent non-compliance, taken together with the cumulative effect of the plaintiff’s delay and past disobedience of court orders, indicates that it is unable or unwilling to co-operate with the Court and the other parties in having the matter ready for trial within an acceptable period.
[98] I have considered the factors which the plaintiff submits favour allowing it to proceed to trial. I have reached the conclusion that the factors that favour allowing the plaintiff to proceed to trial are outweighed by other factors. The events to which the proceeding relates occurred long ago. The proceeding against the second, third and fourth defendants was commenced only many years after their alleged conduct occurred. The claims against them have yet to be properly pleaded some five years after the proceedings against them were commenced and more than ten years after the proceeding itself was commenced. The litigation has been characterised by periods of gross delay. Whilst the impecuniosity of the plaintiff may have been responsible for the slow pace of the litigation at some stages, I am not satisfied that the defendants are responsible for the plaintiff’s impecuniosity. The claim against the first defendant has been stayed, and no application for leave to proceed against it has been made. Dismissing the proceeding against the second, third and fourth defendants would conclude the litigation, since they do not bring any counterclaim. The proceeding is still not ready for trial. Although the plaintiff has been poorly served by the lawyers which it re-engaged in October 2010, the delay that has been caused by the plaintiff’s lawyers being dilatory and not complying with paragraph 6 of Douglas J’s order should be sheeted home to the plaintiff, which took the exceptional step of re-engaging those lawyers with knowledge of their failings. The plaintiff’s delay has prejudiced the defendants. It jeopardises a fair trial of the proceeding, although I am not satisfied that a fair trial is impossible. The defendants should not be unnecessarily vexed by proceedings which have been characterised by such delay and disobedience. Ultimately, the plaintiff’s inability or unwillingness to co-operate with the Court and the other parties in having the matter ready for trial within an acceptable period, and the other circumstances which I have identified, persuade me that it is in the interests of justice to exercise my discretion to dismiss the proceeding against the second, third and fourth defendants under r 280. No other order seems appropriate in the circumstances.
[99] The proceeding against the second, third and fourth defendants is dismissed. I will hear the parties in relation to the costs of the application and the costs of the proceeding against those defendants.
Footnotes
[1] Defendant’s submissions, para 21 citing e-Court document 216.
[2] Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors [2009] QCA 281 at [30].
[3] Tyler v Custom Credit Corp [2000] QCA 178 at [2].
[4] Mango Boulevard Pty Ltd v Spencer [2010] QCA 207 at [16] – [17].
[5] Ibid.
[6] Spencer v Nominal Defendant [2008] 2 Qd R 64 at 68 [13].
[7] As to the distinction between a consent order which embodies the terms of a contract between the parties and a consent order based on a party’s willingness to submit to an order on certain terms, see Moga v Australian Associated Motor Insurers Ltd [2008] QCA 79 at [44].
[8] cf Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299 at 306-311 [31] – [40].
[9] [1961] 3 All ER 1097; [1961] 1 WLR 1489.
[10] Supra.
[11] Ibid at [2], footnotes omitted.
[12] Ibid.
[13] [2002] 1 Qd R 647 at 658 [30].
[14] Ibid.
[15] Artahs Pty Ltd v Gall Standfield & Smith (a firm) [2012] QCA 272 at [77] in the context of whether leave should be granted under r 389.
[16] [2011] QSC 164 at [21].
[17] (1990) 27 FCR 388 at [36].
[18] Ibid.
[19] See, for example, Field v Luxor Products Pty Ltd [2009] QSC 218 at [59] [60].
[20] See, for example, Quinlan v Rothwell [2008] QSC 143.
[21] Supra at [45].
[22] Ibid at [3].
[23] Ibid at [45].
[24] [2006] QCA 478.
[25] See Aqwell Pty Ltd v BJC Drilling Services Pty Ltd [2007] QSC 140.
[26] [1999] 2 Qd R 113 at 124.