Allan and GDA Plumbing Pty Ltd v Townsley
[2005] TASSC 81
•26 August 2005
[2005] TASSC 81
CITATION: Allan and GDA Plumbing Pty Ltd v Townsley [2005] TASSC 81
PARTIES: ALLAN, Geoffrey David
GDA PLUMBING PTY LTD
v
TOWNSLEY, Wilfred Asquith
HOCKING, Anthony
TILLEY, Raymond Francis
FADER, Geoffrey Clement Francis
COLLINS, Rex Joseph
TUNNEY, Joy Augustine
LUCK, William John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 840A/1984
DELIVERED ON: 26 August 2005
DELIVERED AT: Hobart
HEARING DATE: 4, 15 August 2005
JUDGMENT OF: Hill AJ
CATCHWORDS:
Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Other matters arising before trial – Discontinuance – Leave given to discontinue – Notice of discontinuance not filed – Whether leave effects discontinuance.
Rules of the Supreme Court 1965 (Tas), O29, r1.
Chugg and Chalke v Dwyer A72/1993, followed.
Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13; Tasmanian Outstanding Property Investments Pty Ltd & Anor v Dickenson [2000] TASSC 167; Ainsworth v Wilding [1896] 1 Ch 673; Cooper v Williams [1963] 2 QB 567, referred to.
Aust Dig Procedure [277]
REPRESENTATION:
Counsel:
Plaintiffs: P W Tree SC
Defendants: T J Ellis SC
Solicitors:
Plaintiffs: FitzGerald and Browne
Defendants: Director of Public Prosecutions
Judgment Number: [2005] TASSC
Number of paragraphs: 26
Serial No 81/2005
File No 840A/1984
GEOFFREY DAVID ALLAN and GDA PLUMBING PTY LTD v WILFRED ASQUITH TOWNSLEY, ANTHONY HOCKING, RAYMOND FRANCIS TILLEY, GEOFFREY CLEMENT FRANCIS FADER, REX JOSEPH COLLINS, JOY AUGUSTINE TUNNEY and WILLIAM JOHN LUCK
REASONS FOR JUDGMENT HILL AJ
26 August 2005
By letter of 22 December 2004, the solicitors for the plaintiffs wrote to the Registrar of the Supreme Court in the following terms:
"This action went to trial in 1991, before Mr Justice Slicer and a jury. The case was settled with the plaintiffs being given leave to discontinue. A notice of discontinuance was never filed. The plaintiffs have now come into possession of a significant quantity of material that constitutes fresh evidence. They take the view that the settlement in 1991 has been vitiated.
The plaintiffs ask that the action be listed for directions so that they can apply for the following orders:
1That the plaintiffs be given leave to proceed pursuant to rule 56(1).
2That the plaintiffs have leave to use an affidavit on the hearing of this application."
Mr Tree SC and Mr Ellis SC, who appeared for the plaintiffs and defendants respectively at the hearing of the application for leave to proceed, agreed that the relevant rule for consideration was the Rules of the Supreme Court 1965, O29.
The main action has a long history which seems to have culminated on Monday 21 October 1991 when Mr Gunson, then counsel for the plaintiffs (the applicants) had the following exchange with Slicer J, the trial judge:
"MR GUNSON: Your Honour, I am pleased to be able to advise the Court that this action has now been settled and I would seek to announce to the Court the terms of settlement. They require in the first instance the exercise of your Honour's discretion pursuant to the provisions of Order 29, Rule 1, to enable the plaintiffs to discontinue that right of course is a right up until a certain stage of proceedings and thereafter an action can only be discontinued with. leave of the Court or the Judge hearing the matter and pursuant to that rule I seek leave on behalf of the plaintiffs to discontinue this action against each of the defendants. My learned friend Mr Bale will indicate to your Honour that its part of the terms of the settlement that none of the defendants seek their costs of the action against the plaintiffs, and my learned friend will also seek leave to read to the Court a statement that is in terms that have been agreed between the parties and subject to your Honour making those orders and granting the relevant leave that will be the conclusion of this case.
HIS HONOUR: So I will take in a moment an undertaking from Mr Bale as to the costs before I grant leave. The second term you wish to have noted in what form, that the defendant will lead – sorry.
MR GUNSON: Well Mr Bale will simply read to the Court a statement by Professor Townsley that is made on behalf of all defendants.
HIS HONOUR: Right. And the terms of that are known to you and are acceptable to you?
MR GUNSON: The terms of that are known to me and I have a copy signed by Professor Townsley and no doubt a copy can form part of the Court record should the Court wish it to do so.
HIS HONOUR: Stay with that. How would that form part of the record of the Court?
MR GUNSON: Oh, we're not troubled whether it forms part of the record because it is in the transcript, your Honour.
HIS HONOUR: You're content with that?
MR GUNSON: Oh, yes.
HIS HONOUR: So that any order I make pursuant to Order 29(1) should be conditional or should I go through the process of the other two matters before granting leave?
MR GUNSON: Yes.
HIS HONOUR: Thank you for that. Mr Bale?
MR BALE: Yes well as to that, your Honour, I am surprised any order would be conditional because I would have thought that what ‑ the course is that my learned friend needs leave to discontinue.
HIS HONOUR: Yes.
MR BALE He seeks that leave and so far as he is concerned that becomes the end of it. But what I do your Honour is indicate that so far as the Crown is concerned, (1) it does not oppose the application; secondly the Crown undertakes that that consequent upon the filing of a Notice of Discontinuance by the plaintiffs against all defendants that none of the defendants will pursue orders for costs against any of the plaintiffs.
HIS HONOUR: Yes."
Mr Bale QC then read the statement referred to and Slicer J said, at 1182 of the transcript:
"Well pursuant to Order 29, Rule 1, leave is granted to discontinue. I note the undertaking of Counsel for the defendants and the letter read forms part of the Court record and there are no other further orders that I need make. From a personal point of view, I think the parties have chosen the proper and appropriate course."
The applicants seek leave, pursuant to the Supreme Court Rules 2000, r56, to take a step in the action. Rule 56 provides:
"(1) If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge.
(2) An order may be made either ex parte or on notice."
The basis of the application is to be found in par3 of the applicants' submissions and I set that out:
"3 The plaintiff's say that leave ought be granted here because the reason they have taken no step in the action since 1991, is that they then settled the action as they were induced to believe they would fail, in substance because there had been inadequate discovery of documents by the defendants relevant to a critical issue in the case. Had the documents been discovered then, they would not have believed they would fail and would not have settled."
Mr Tree submits "No notice of discontinuance was filed. The order of Slicer J was never perfected."
Mr Ellis, for the defendants (respondents to the application), has submitted for determination the preliminary question of whether the applicants can make this application as he submits, in effect, that the proceedings have been discontinued. He submits the applicants ought make application for a new trial and that this Court is being asked to set aside what another judge has done and that can only properly be done by an appellate process.
It was agreed that this point ought to be determined as a preliminary matter. The relevant rule at the time was O29, which provided as follows:
"29 ¾ 1(1) The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any other proceedings in the action (save any interlocutory application) by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2) The costs referred to in sub-rule (l) of this rule shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.
(3) Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court or a judge, but the Court or a judge may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.
(4) The Court or a judge may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn or struck out, but it shall not be competent for a defendant to withdraw his defence or any part thereof without such leave."
It is clear that the applicants required leave to discontinue pursuant to O29, r1(3). Leave was granted. The defendant undertook not to claim costs.
It is common ground that a notice of discontinuance was not filed.
Order 29, r1(3) makes no mention of filing a notice, if leave is granted, the action is "ordered" to be discontinued. Obviously in this case the respondents were aware of the applicants' intention to make the application for leave to discontinue. The respondent had no intention of claiming costs. Any notice to discontinue, if one had been required, it could be said was unnecessary as all parties before Slicer J seemed to be of the view that the matter was at an end.
The question is, were the proceedings at an end for all purposes?
In Chugg and Chalke v Dwyer A72/1993, Underwood J (as he then was) was considering an application for an order extending time for the filing of a motion to review. Earlier Cox J (as he then was) had been asked to make an order giving the applicants "leave to withdraw a motion to review", and he did so. As Underwood J said at 2:
"Central to the determination of the application for an extension of time is a proper construction of the order made by Cox J on 22 April 1992 that the applicants have 'leave to withdraw' the appeal. If the appeal has been withdrawn, there are no existing proceedings, and no order extending time should be made. If the proceedings to review the order of the learned magistrate made on 1 July 1991 are still afoot however, then consideration will have to be given to the matters relevant to the proper exercise of the discretion, conferred by statute."
The situation is similar here. Underwood J continued:
"The order made by Cox J stands and is binding unless set aside on appeal or, as it has not yet been perfected, withdrawn by his Honour."
He continued:
"What then is the proper meaning of the order granting leave to withdraw the appeal? No step was taken following the making of the order. No step is prescribed by statute, rule or practice. "
That was a criminal case. His Honour made some observations on the civil situation as follows, at 3:
"The concept of withdrawal of a proceeding, pleading or admission is well known to both the civil and criminal law. … With respect to the civil practice see, for example, Rules of Court, O24(1)(3)(b), O29, O34, r4(3) and O51, r(10). In some instances leave to withdraw is required and in others withdrawal is of right. In none of the rules referred to is there any procedure prescribed following the making of the order."
He concluded:
"It seems to me that in the absence of any requirement that a procedural step be taken following the grant of leave, the proper construction of the order of Cox J is that the appeal was withdrawn at the time leave was granted. Although the terms of the order refer only to leave to withdraw, as no further step needed to be taken, such order encompassed actual withdrawal in the sense referred to in the primary definition of 'withdraw' in the Shorter Oxford English Dictionary, namely, 'to take back or away (something that has been given, allowed, possessed, experienced, or enjoyed)'."
He concluded there were "no current proceedings" to be the subject of the application being made.
I think, with respect, that his Honour's comments are relevant here.
Mr Tree submitted that the parties expressly contemplated that a notice of discontinuance would be filed and that it was intended a notice would be filed, although he did say that "the action settled because the plaintiffs thought they would fail".
The applicants rely on the suggested interpretation of what Mr Bale said to the trial judge as to costs, submitting that that statement contemplated the filing of a notice of discontinuance. I do not however interpret the statement that way. The only way the defendants could have obtained their costs in the circumstances was by an order of the trial judge as a condition of the grant of leave, (O29, r1(3)), or with the consent of the plaintiffs. Mr Bale indicated, in effect, in my view, that the respondents were foregoing any right they had as to costs and that in reality no notice was required.
A number of other authorities were referred to, but, in my view, dealt mainly with matters going to the discretion if the application were to proceed further. I am conscious the applicants are not relying on fraud as the basis of the application. I think the situation in Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691 (the setting aside of a consent judgment) and Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 (the setting aside of a consent order) deal with somewhat different issues than the present case and I note in passing that the Rules of the Federal Court referred to (O22, r5) specifically refer to discontinuance by notice when discontinuing pursuant to O22, rr2,3 and 4.
Cox J in Tasmanian Outstanding Property Investments Pty Ltd & Anor v Dickenson [2000] TASSC 167 was considering an application for the variation and setting aside of a consent order upon the ground of duress. At 2, his Honour, after referring to Spies (supra) and Ainsworth v Wilding [1896] 1 Ch 673, accepted that the "established practice" in setting aside judgments on the basis of fraud was by way of a fresh action. In addition to the factors of conflicting viva voce evidence and cross-examination, he added the undertaking of orderly discovery and interrogation in a separate action as matters which had to be considered. However in the light of my findings I need not examine that argument any further.
A discontinuance ends the proceeds (see Cooper v Williams [1963] 2 QB 567 at 580, per Denning MR). In summary, therefore, as I see it, a plaintiff may discontinue without leave by filing a notice. Nowhere in O29, r1(3), is a notice referred to. In my view, a notice is not necessary in these circumstances. With respect, I adopt the reasons of Underwood J in Chugg and Chalke v Dwyer (supra). Once leave is given, in my view, the action is discontinued and it seems to me proceedings are, as Mr Ellis submits, at an end. I think a fresh action is required.
I dismiss the application.
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