Brocx v Hughes

[2009] WASC 60

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   BROCX -v- HUGHES [2009] WASC 60

CORAM:   MASTER SANDERSON

HEARD:   3 MARCH 2009

DELIVERED          :   3 MARCH 2009

PUBLISHED           :  25 MARCH 2009

FILE NO/S:   CIV 2490 of 2008

BETWEEN:   MARGARET BROCX

Plaintiff

AND

RAYMOND WILFRED HUGHES as executor of the estate of DAVID HERBERT HUGHES
Defendant

Catchwords:

Practice and procedure - Application to strike out action as an abuse of process - Turns on own facts

Legislation:

Nil

Result:

Action struck out

Category:    B

Representation:

Counsel:

Plaintiff:     Mr G A Rabe

Defendant:     Mr C S Gough

Solicitors:

Plaintiff:     Stables Scott

Defendant:     Minter Ellison

Case(s) referred to in judgment(s):

Brocx v Hughes [2008] WASC 34

Cox v Journeaux [No 2] (1935) 52 CLR 713

Hunter v Chief Constable of the West Midlands Police [1982] AC 529

Rogers v R (1994) 181 CLR 251

Walton v Gardiner (1993) 177 CLR 378

1. MASTER SANDERSON:  This was an application by the defendant for an order striking out the plaintiff's action on the ground that it was an abuse of process.  After hearing argument, I indicated to the parties that I would make the order sought by the defendant.  I indicated I would publish reasons for that decision at a later date.  These are those reasons.

2. It is convenient to begin with the plaintiff's statement of claim.  The late David Herbert Hughes was the proprietor of the Rest Point Caravan Park located near Walpole.  As the name suggests, a tourist accommodation business was conducted on the site.  In or about December 1991, the plaintiff met and formed a relationship with John David Hughes, who was the son of David Hughes.  Soon after the plaintiff and John Hughes started living together, the plaintiff resigned from her position as a laboratory technician at Murdoch University and returned to study at that university with the aim of completing a Bachelor of Science degree. 

3. In December 1992, the plaintiff and John Hughes agreed that they would spend the summer assisting David Hughes to run the caravan park business.  It was the intention of the plaintiff and John Hughes that the plaintiff would return to Perth in March 1993 to continue her studies.  That did not occur.  Instead, the plaintiff and John Hughes remained in Walpole and worked in the business.  It is alleged by the plaintiff that they did this because of certain promises to them by David Hughes.  This is pleaded in par 15 of the statement of claim, which is in the following terms:

   In return for Margaret Brocx and John David Hughes agreeing to stay on and joining in the Business David Herbert Hughes promised to:

   (a)transfer an interest in the Rest Point land to Margaret Brocx and John David Hughes;

   (b)to share the profits of the business with them;

   (c)to build a house by way of extension to an existing building on the Rest Point land as Margaret Brocx and John David Hughes's home; ("the Promise").

4. It is not entirely clear when this promise was made but it seems to have been in 1993.  The pleading alleges that the promise was repeated on a number of occasions but when and in what terms is not particularised.  In any event, the plaintiff alleges that she kept her part of the bargain.  Moreover, she alleges that she sold a property she had in Perth and committed funds to relocating to Walpole.

5. It appears that in August 1997, David and John Hughes fell out.  There was a reconciliation but the relationship soured again in June 2000.  In August 2000, the plaintiff and John Hughes separated.  The plaintiff, who up until that time had been working in the business, then returned to Perth.  The plaintiff says that at least part of what she was promised in 1993 has not been passed on to her - in particular, she has received no interest in the business and she has not received a share of the profits.  Her claim is based upon an estoppel having arisen, such that she is now entitled to receive from the estate of David Herbert Hughes what she was promised back in 1993.

6. Two points can be made about the plaintiff's pleaded case.  The first, evidence as to what transpired in 1993 between the plaintiff, John Hughes and David Hughes, is central to the cause of action.  That means that evidence will be required of events that occurred some 16 years ago in circumstances where one of the parties to the discussions is now deceased.  Asking witnesses to recall events which occurred some time in the past is never easy.  But asking witnesses to recall events which occurred 16 years ago has about it an air of unreality.

7. Second, the relief claimed by the plaintiff throws up matters of some complexity.  The plaintiff seeks a declaration that the defendant holds an unspecified portion of the Walpole property on trust for her.  No doubt such an order can be made but it will be no easy matter to decide what portion of the land, if any, is held on trust for the plaintiff.  Further, the plaintiff seems to claim an interest in the profits of the business from 1993 onwards.  That, I assume, is what is meant by the claim for 'equitable damages'.  That means, considerable accounting evidence would need to be produced to enable an assessment to be made of the plaintiff's claim.  Once again, these are matters of some complexity.

8. This is the second action brought by the plaintiff in relation to these matters.  The first action was brought to an end when the plaintiff failed to comply with orders made by Master Newnes (as his Honour then was) on 13 December 2006.  In those proceedings, the plaintiff applied to set aside the judgment entered against her.  That application was heard by Johnson J and her Honour published detailed reasons for refusing the application:  see Brocx v Hughes [2008] WASC 34. In the course of her judgment, her Honour detailed the history of that action [3] ‑ [30]. It is unnecessary for me to repeat or to even summarise the unhappy sequence of events which led to Master Newnes making a springing order. It is suffice to say that there was a lengthy list of defaults, most of which the plaintiff sought to blame on her former solicitor.

9. It is important to note that in her judgment, Johnson J was concerned with the question of whether it was appropriate to extend time to comply with the springing order.  To that extent, the issues considered by her Honour were different to those which were raised in this case.  However, there are a number of matters which her Honour considered which, in my view, are relevant to this present application.  One was the question of the effect of the plaintiff's delay in progressing the litigation.  Her Honour put the position this way:

   It was further submitted that the only consequence to the defendant of an extension of time was the continuance of the litigation, subject of course to the defendant being compensated in costs.  I do not accept that continuation of the litigation is the only prejudice.  The delay itself can have an adverse impact on the litigation and hence on the defendant's interests.

   In relation to the defendant's assertion that prejudice arises from the fact that the age and health of witnesses may lead to an unfair trial, the plaintiff submitted that there was nothing inherently unusual or difficult about a person over 70 years old (the age of the relevant witness or witnesses) giving evidence.  It was further submitted that there was no evidence of life threatening illness or health conditions.

   …

   In this case, however, there is no direct evidence of any health conditions of a relevant witness which might, as a result of the delay, be exacerbated or deteriorate to the point of impacting adversely on the giving of evidence.  Neither is there any evidence to suggest that, due to the delay in progressing the litigation, a witness is no longer available.

   In my view the real prejudice, and the real injustice, arises from the fact that, as a result of this action, the defendant's estate has not been fully distributed to the beneficiaries who have now already been deprived of that benefit for approximately three years. [65] ‑ [66], [68] ‑ [69]

10. Her Honour then went on to deal with the reasons provided by the plaintiff for her failure to comply with the springing order.  Her Honour noted that there was no real or satisfactory explanation for the delay.  Her Honour also noted that the plaintiff provided no real information as to how the action might be progressed.  Her Honour also noted that judgment was entered on 8 February 2007 and the application to set aside the judgment was not filed until 5 October 2007 - some eight months later.  Her Honour saw that delay as a factor going against the setting aside of the judgment.

11. What emerges from her Honour's decision is conduct of the plaintiff's litigation in a way which was unacceptable.  The action had been commenced in 2003.  Judgment was entered in early 2007.  In almost four years the proceedings had made minimal progress.  Even when judgment was entered, it took months for the plaintiff to take any steps to set the judgment aside.  When that application was made, it was found seriously wanting.  While some allowance can be made for the fact that it would appear that the plaintiff's then solicitor did not progress the proceedings in a proper and appropriate manner, it nonetheless remains the case that the plaintiff's action was glacial in its progress.

12. The plaintiff lodged an appeal against Johnson J's decision.  That appeal progressed but, some two weeks before the appeal was to be heard, it was abandoned.  These proceedings were then issued.  It is the defendant's position that, in the light of earlier proceedings, the conduct of the plaintiff in those proceedings and the length of time that has now passed since the alleged cause of action arose, to allow this action to continue would be an abuse of process.

13. There was no dispute between the parties as to the principles to be applied when a stay of an action is sought on the basis that the action is an abuse of process.  In Walton v Gardiner (1993) 177 CLR 378, 392 ‑ 393, Mason CJ, Deane and Dawson JJ observed that the inherent jurisdiction of a superior court to stay its proceedings on the grounds of an abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Their Honours identified the following as one instance as an abuse of process:

    [P]roceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.  The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police as 'the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right‑thinking people'. (393) (footnotes omitted)

14. In Rogers v R (1994) 181 CLR 251, 256, Mason CJ observed that the decisions in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 and Walton v Gardiner indicated that there were two aspects to the abuse of process question.  First, there was the aspect of vexation, oppression and unfairness to the other party or parties to litigation.  Second, there was the fact that the matter complained of would bring the administration of justice into disrepute.  McHugh J agreed (286) and added a further category of cases where the court's procedures were invoked for an illegitimate purpose. 

15. Finally, there is the often quoted decision of Dixon J in Cox v Journeaux [No 2] (1935) 52 CLR 713, where his Honour said:

    The inherent jurisdiction of the Court to stay an action as vexatious is to be exercised only when the action is clearly without foundation and when to allow it to proceed would impose a hardship upon the defendants which may be avoided without risk of injustice to the plaintiff.  The principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed.  A litigant is entitled to submit for determination according to the due course of procedure a claim which he believes he can establish, although its foundation may in fact be slender.  It is only when to permit it to proceed would amount to an abuse of jurisdiction, or would clearly inflict unnecessary injustice upon the opposite party that a suit should be stopped. (720)

16. In my view, this is a clear case where to allow this matter to continue would be oppressive to the defendant and would be likely in the minds of fair‑minded people to bring the administration of justice into disrepute.  In reaching that conclusion, I have had regard to a number of factors.  First, the events said to give rise to this cause of action date back to 1993.  To prove matters which go so far back into history will be very difficult.  The position is compounded by the fact that one of the chief protagonists, David Herbert Hughes, is now deceased.  It may be that the cause of action arose sometime around 2000.  Even if that is so, the cause of action is some eight years old.  This matter could not possibly get to trial within the next two years.  Taken in the overall, the delay is too long.  That delay has about it two aspects.  The first is that to allow the action to continue would be oppressive to the defendant.  The estate of the late David Hughes has had this action hanging over it for at least five years.  It is simply unfair to allow it to continue on.  Second, no fair‑minded person could say a cause of action of this nature, built as it is on a slender foundation, should be allowed to endure after such a delay.

17. There is also the plaintiff's conduct of the earlier proceedings.  Even accepting her then solicitor conducted the proceedings in a less than appropriate manner, the fact remains those proceedings were on foot for almost five years and progressed hardly at all.  It is difficult to justify allowing the plaintiff to take further steps when there is no reason to believe that these proceedings will be progressed with dispatch. 

18. Finally, no fair‑minded person could regard it as appropriate, for a party who has had an action struck out, simply to rekindle the action and try again.  True it is that the earlier proceedings were struck out consequent upon a failure to comply with a procedural direction.  But the fact remains judgment was entered against the plaintiff in that action.  To simply say that judgment can be put to one side and the plaintiff can try again would, in my view, be seen by the general public as unfair and likely to bring the operation of the law into disrepute. 

19. Against all of those considerations, I have carefully weighed the right of the plaintiff to bring her suit before the court.  It is no light matter to deny an individual a right to judicial determination of what she says is her entitlement.  As always in these matters, it is a balancing exercise.  But even allowing for the serious consequences for the plaintiff, I am satisfied that the interests of justice require that these proceedings be dismissed as an abuse of process. 

20. It is for these reasons that I indicated I would make the orders sought by the defendant.  The plaintiff should pay the costs of this application including the reserved costs and the costs of the action.