Argo Pty Ltd v Attorney-General (No 3) - [2004] TASSC 51

[2004] TASSC 51

CITATION: Argo Pty Ltd v Attorney-General (No 3 ) [2004] TASSC 51

PARTIES: ARGO PTY LTD

WRIGHT, George Peter
NATURELAND OF TASMANIA PTY LTD
TATLOW, Michael Winston
v
ATTORNEY-GENERAL FOR THE STATE
OF TASMANIA (THE)
TASMANIAN DEVELOPMENT AUTHORITY (THE)
CHANDLER, Philip Joseph
FAIRCLOTH, Peter Leonard

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  570/1990
DELIVERED ON:  4 June 2004
DELIVERED AT:  Hobart
HEARING DATES:  30 March 2004
JUDGMENT OF:  Underwood J
CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Practice under Rules of Court – Time – More than six years since a step taken in a proceeding – Meaning of a step in a proceeding considered.

Supreme Court Rules 2000 (Tas), r56.
Kaats v Caelers [1966] Qd R 482; Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592; I H Dempster Nominiees Pty Ltd v Chemgoods Pty Ltd [1993] 2 Qd R 377; Re Burns v Korff [1982] 8 QL 201, followed.
Warnock v Mann [1896] 2 Q B D 630; Lumley v Hempson (1838) 6 Dowl 558, also followed.
Aust Dig Procedure [283]

REPRESENTATION:

Counsel:
             First and Second Applicants/Defendants:          T J Ellis SC
             Fourth Applicant/Defendant:  R E Hudson
             Respondents/Plaintiffs:  M Clarke and C J Gunson
Solicitors:
             First and Second Applicants/Defendants           Director of Public Prosecutions
             Fourth Applicant/Defendant:  Butler McIntyre & Butler
             Respondents/Plaintiffs:  Phillips Taglieri

Judgment Number: [2004] TASSC 51
Number of Paragraphs: 45

Serial No 51/2004
File No 570/1990

ARGO PTY LTD and GEORGE PETER WRIGHT and NATURELAND OF TASMANIA PTY LTD and MICHAEL WINSTON TATLOW
v THE ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
and THE TASMANIAN DEVELOPMENT AUTHORITY
and PHILIP JOSEPH CHANDLER and PETER LEONARD FAIRCLOTH

REASONS FOR JUDGMENT UNDERWOOD J

4 June 2004

The issue

The issue upon this application is whether, in the circumstances of the case, the provisions of the Supreme Court Rules 2000, r56, apply to the plaintiffs. The rule 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."

A history of relevant events

These proceedings commenced with the filing of a writ and statement of claim on 8 May 1990. By 26 June 1990, all the defences were filed and served. The first, second and third defendants made discovery on 28 September 1990. It was common ground on the hearing of the application that thereafter inactivity generally attended this action. At some stage after the writ was issued, Mr Chandler, the third defendant, died and the first plaintiff changed its name from Mack Investments Pty Ltd to Argo Pty Ltd. The plaintiffs, who are the respondents to this application, conceded that as at 17 November 1999, six years or more had passed without any party taking…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] TASSC 51
Decision Date: 4 June 2004

CaseChat Overview and Summary

The case of Argo Pty Ltd v Attorney-General (No 3) involved Argo Pty Ltd, a Tasmanian company, and the Attorney-General of Tasmania. The dispute arose under the Supreme Court Rules of Tasmania, specifically concerning the procedural aspect of a time limit for taking steps in a proceeding. The crux of the matter was whether the period of more than six years that had elapsed since a step was taken in the proceeding constituted a breach of the rules.

The central legal issue before the court was the interpretation of the term 'step in a proceeding' as it pertains to the time limit imposed by the rules. Argo Pty Ltd argued that the six-year period should not apply to their case, while the Attorney-General contended that the rules were clear and the period had indeed expired.

The court examined the relevant provisions of the Supreme Court Rules and considered the ordinary meaning of the term 'step in a proceeding.' It held that the term encompasses any action taken within the proceeding that progresses it in some way. The court found that a significant period had elapsed without any procedural steps being taken, which amounted to a breach of the rules. Consequently, the court dismissed Argo Pty Ltd's application on the grounds that the procedural time limit had been exceeded.

Orders