British and Malayan Trustees Ltd, Imani Pty Ltd and Dalabor P/L v Browne

[1992] QCA 354

IN THE COURT OF APPEAL

[1992] QCA 354

SUPREME COURT OF QUEENSLAND

No. 970 of 1990

BETWEEN:

BRITISH & MALAYAN TRUSTEES LIMITED

(Plaintiff) First Respondent

AND:

IMANI PTY. LTD.

(Second Plaintiff) Second Respondent

AND:

DALABOR PTY. LTD.

(Third Plaintiff) Third Respondent

AND:

NORMAN ALFRED STANLEY BROWNE

and PETER JOHN EDWARDS

(First Defendants)

AND:

ESTATE OF LEONARD JOHN VANN, GEORGE WILLIAM DEED, ROSS JOHN GRAINGER-SMITH, GEOFFREY NICOLL HARLEY, PHILIP KEITH BERNAYS, PAUL HERMAN HENRI CORBIERE, JOHN DAVID ELLIOTT, RALPH DOUGLAS PRAEGER, PETER JOHN GUTTORMSEN, ARTHUR BRADLEY VANN, DAVID STEWART RATHIE, JOHN CARL PETRIE and BRUCE RATHIE

(Second Defendants) Appellants

AND:

HUSSEIN AHMED SALIM BIN TALIB, KAMAL BIN

SALIM TALIB and MUSTAFA BIN MOHSIN TALIB

(Third Defendants) Appellants

JUDGMENT OF THE COURT

Delivered the Sixteenth day of October 1992

This is an appeal from an order of de Jersey J. refusing to strike out or stay an action. The plaintiffs, now respondents, first sued in February 1987, claiming relief relating to a trust created in 1933. The endorsement on the first writ sought damages and other relief on the basis of allegations of negligence, breach of duty, breach of trust and the like. They issued a second and rather similar writ on 25 June 1990 and the application which failed before de Jersey J. related to this second action. The principal difference between the two writs was that the earlier complained of wrongdoing in the years 1981 and 1984;

the latter related only to 1984.

Although issued on 4 February 1987, the first writ was not served on any of the defendants until nearly three years later, on 29 January 1990. Orders for renewal of the writ were made on 1 February 1988, 2 February 1989 and 2 February 1990. After service of that writ, an application was made to a Master to set aside the three renewal orders, but that was refused. However, on appeal from the Master, de Jersey J. set aside the three renewal orders. In substance, his Honour held on that occasion that, although no specific prejudice arising from delay in service was shown on the part of the defendants (now appellants), no good reason had been shown for renewal of the writs. He noted that the events founding the cause of action took place, in one case six years and in the other about three years, before the writ was issued, but service was not effected for about three years after the writ was issued; that the long delay by the plaintiffs was deliberate and engaged in to serve their own interests; that the plaintiffs gave no notice to the defendants of the proceedings between the issue of the writ and service; that the passage of time would probably have adversely affected the prospect of a fair trial; and that the renewing of the writs probably deprived the second defendants of a limitation defence.

Unknown to de Jersey J. and of course to the appellants, the second defendants in both actions, the second writ had been issued as a precaution well before the judgment just mentioned was given. The unsuccessful application with which the Court is presently concerned was an attempt to strike out the action begun by the second writ, as an abuse of process. On the hearing of that application, de Jersey J. took the view that the substantial question was whether the respondents' non-disclosure of the second writ made its issue an abuse of process. His Honour held that it had not had that effect, remarking:

"If the second writ had been the only one issued, the applicants would have been just as disadvantaged by the lack of fore-knowledge of the claim as they now are".

The judge noted that it was not argued that the second writ was out of time. His Honour was invited to and did decide the application on the assumption that there was no time bar, from which it followed that the appellants were, at least substantially, in no worse position than if there had never been a first action.

The appellants' submissions complained of the judge's having "proceeded to apply as a sole test whether the Defendants were any worse off because the present writ was a second writ". They contended that he should have had regard to conduct of the respondents as causing prejudice to them and to the risk that it would not be possible to have a fair trial.

To some extent, the appellants sought to resile, before this Court, from a concession they made at first instance. They then invited the Court to decide the matter on the assumption that the second action was brought in time. In arguing the appeal, however, counsel for the appellants suggested that there was an onus upon the respondents to establish that the second writ was issued in time, which onus had not been discharged. This is plainly not a point which should be allowed to be taken on appeal; having had a decision given against them on the basis of the concession just mentioned, the appellants cannot now withdraw the concession. It does not involve a purely legal point, for if there had been a dispute about time limitation below, the facts might well have been more elaborately placed before the Court. It should be added that, on the face of it, the second writ appears to have been issued within time, but it is not in the circumstances necessary to elaborate on that aspect of the matter.

The leading case is Birkett v. James [1978] A.C. 297 which is authority for the view that an action should not be dismissed for want of prosecution within the limitation period if it seems likely that the plaintiff would simply issue a further writ after the dismissal. It is also authority for the related rule that if an action is dismissed for want of prosecution during the limitation period, then the plaintiff is entitled to commence and pursue a second action within that period. Each rule is not absolute but is subject to the possibility of exceptions, at present not completely defined. It was argued for the appellants here that the application of these principles may lead to a loosening of the Court's control of matters pending before it and that must be so in some cases, as is illustrated by the present circumstances. It seems anomalous that the Court expended or rather wasted its time in dealing with the first suit, which was never seriously pursued and even more anomalous that de Jersey J. had to decide the fate of the first suit without knowledge of commencement of the second.

Birkett v. James was applied by the Full Court of the Supreme Court of Queensland in Madden v. Kirkegard Ellwood and Partners [1983] 1 Qd.R. 649, which dealt with a situation somewhat similar to the present. In Madden's case there were two successive suits of which the first, in effect, came to an end (under the provisions of O.90 r.9) because of inaction on the part of the plaintiff; when the O.90 r.9 proceedings were heard, with respect to the first suit, the existence of the second was not been disclosed. The second action was struck out as an abuse of process, but that decision was reversed by the Full Court which said that:

"Where an action has been discontinued or dismissed for want of prosecution and a second action in the same court between the same parties seeking the same relief and based on the same grounds as in the earlier action is then commenced within the limitation period, that action should not for that reason alone be stayed or dismissed as an abuse of process" (p.652 per Kelly J., Lucas and Hoare JJ. agreeing).

The consequences of these decisions were further explored by the Full Court in Williams v. Zupps Motors Pty. Ltd. [1992] 2 Qd.R. 493, where the plaintiff was in such a situation that there was no statutory time bar applicable. Previous proceedings having been dismissed for want of prosecution, a further writ was issued more than 22 years after the events complained of. Those proceedings were stayed, but the Full Court reversed the stay order, holding that the institution of further proceedings was not an abuse of process. Thomas J. was not prepared to hold that "the cumulative effect of further delay, wasted proceedings or other vexatious or other oppressive conduct" would necessarily be insufficient to found a successful application to stay (495). Ambrose J., however, with whom Connolly J. agreed, said:

"In essence the respondents seek that the Court exercise its 'inherent power' to stay the action ... I am unpersuaded that there is any power in this Court whether under its inherent jurisdiction or otherwise to impose upon the appellant a limitation of time within which he must commence his action" (499).

It may be that there is a logical difficulty in characterising a pristine action, not itself affected by any misconduct on the part of the plaintiff, as an abuse of process on the ground of the plaintiff's dilatory conduct in a previous suit or suits. It does not appear that the present case is one in which it is necessary to discuss this problem or the scope of the exceptions to the Birkett v. James rules, for here it seems plain that the exercise of discretion by the primary judge was correct. There was no exceptionally contumelious conduct on the part of the respondents, nor any remarkable delay. The second action, although partly similar in scope to the first, was not identical; it complained only of events which occurred in 1984 and not, as did the first, of events in 1981 also. There was before the primary judge no dispute about the time limitation period; the judge was entitled, having regard to the arguments advanced, to treat it as not having expired.

It should be added that during the hearing there was some discussion of the question whether or not it was right, in view of the principles of Birkett v. James, to renew the first writ, but it is unnecessary to deal with that question.

The appeal must be dismissed with costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 970 of 1990

Before the Court of Appeal
The President
Mr. Justice Pincus

Mr. Justice Derrington

BETWEEN:

BRITISH & MALAYAN TRUSTEES LIMITED

(Plaintiff) First Respondent

AND:

IMANI PTY. LTD.

(Second Plaintiff) Second Respondent

AND:

DALABOR PTY. LTD.

(Third Plaintiff) Third Respondent

AND:

NORMAN ALFRED STANLEY BROWNE

and PETER JOHN EDWARDS

(First Defendants)

AND:

ESTATE OF LEONARD JOHN VANN, GEORGE WILLIAM DEED, ROSS JOHN GRAINGER-SMITH, GEOFFREY NICOLL HARLEY, PHILIP KEITH BERNAYS, PAUL HERMAN HENRI CORBIERE, JOHN DAVID ELLIOTT, RALPH DOUGLAS PRAEGER, PETER JOHN GUTTORMSEN, ARTHUR BRADLEY VANN, DAVID STEWART RATHIE, JOHN CARL PETRIE and BRUCE RATHIE

(Second Defendants) Appellants

AND:

HUSSEIN AHMED SALIM BIN TALIB, KAMAL BIN

SALIM TALIB and MUSTAFA BIN MOHSIN TALIB

(Third Defendants) Appellants

JUDGMENT OF THE COURT

Delivered the Sixteenth day of October 1992

MINUTE OF ORDER:	The appeal is dismissed with costs.
CATCHWORDS:	PRACTICE - DISMISSING ACTION - Appeal from refusal to strike out or stay action - whether any exceptionally contumelious conduct by respondents or remarkable delay - whether exercise of discretion by primary jduge correct.
Counsel:	E.J. Lennon Q.C., with him, R. Bain for the Second Defendants/Appellants R.N. Chesterman Q.C., with him, P.D. McMurdo for the Respondent
Solicitors:	McCullough Robertson for the Second Defendants/Appellants Clarke & Kann for the Respondent
Hearing Date(s):	21 May 1992

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

No. 970 of 1990

BETWEEN:

BRITISH & MALAYAN TRUSTEES LIMITED

(Plaintiff) First Respondent

AND:

IMANI PTY. LTD.

(Second Plaintiff) Second Respondent

AND:

DALABOR PTY. LTD.

(Third Plaintiff) Third Respondent

AND:

NORMAN ALFRED STANLEY BROWNE

and PETER JOHN EDWARDS

(First Defendants)

AND:

ESTATE OF LEONARD JOHN VANN, GEORGE WILLIAM DEED, ROSS JOHN GRAINGER-SMITH, GEOFFREY NICOLL HARLEY, PHILIP KEITH BERNAYS, PAUL HERMAN HENRI CORBIERE, JOHN DAVID ELLIOTT, RALPH DOUGLAS PRAEGER, PETER JOHN GUTTORMSEN, ARTHUR BRADLEY VANN, DAVID STEWART RATHIE, JOHN CARL PETRIE and BRUCE RATHIE

(Second Defendants) Appellants

AND:

HUSSEIN AHMED SALIM BIN TALIB, KAMAL BIN

SALIM TALIB and MUSTAFA BIN MOHSIN TALIB

(Third Defendants) Appellants

_______________________________________________

The President
Mr. Justice Pincus

Mr. Justice Derrington

_______________________________________________

Judgment of the Court delivered on 16th

October, 1992.

_______________________________________________

APPEAL DISMISSED WITH COSTS.

_______________________________________________