Bryan, Allan v Maloney, Judith Anne

[1998] TASSC 149

149/1998

PARTIES:  BRYAN, Allan
  v
  MALONEY, Judith Anne

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  FCA 44/1996
DELIVERED:  2 December 1998
HEARING DATE/S:  20 November 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Procedure - Courts and judges generally - Courts - Dismissal of proceedings for want of prosecution - Whether the applications of the defendant should be dismissed for want of prosecution.

Muto v Faul [1980] VR 26, applied.
Bankruptcy Act 1966 (Cth), s60.
Aust Dig Procedure [33]

REPRESENTATION:

Counsel:
           Plaintiff:  R E Grueber
           Defendant:  W M Hodgman QC
Solicitors:
           Plaintiff:  Jennings Elliott
           Defendant:  Howard Piggott

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  149/1998
Number of pages:  3

Serial No 149/1998
File No FCA 44/1996

ALLAN BRYAN v JUDITH ANNE MALONEY

REASONS FOR JUDGMENT  COX CJ

2 December 1998

This is an application by Mrs Maloney ("the plaintiff") to strike out for want of prosecution or as a consequence of the operation of the Bankruptcy Act 1966, s60, an application for an extension of time to appeal and an application for leave to appeal instituted by Mr Bryan ("the defendant"). The history of the matter prior to the filing of the lastmentioned applications is that in 1987 the plaintiff sued the defendant for damages for negligence in the construction of a house in 1979 which he had erected pursuant to a contract with the plaintiff's predecessor in title. The plaintiff had acquired the property in 1986 from an intermediate owner. The learned trial judge found in favour of the plaintiff and on 29 May 1992 entered judgment for her against the defendant for $34,000 together with costs. From this judgment the defendant appealed to the Full Court disputing his liability in tort. His appeal was dismissed with costs on 6 October 1993. From that decision he appealed to the High Court of Australia, which likewise dismissed his appeal on 23 March 1995, holding that the defendant, as builder, owed the purchaser/plaintiff a duty to take reasonable care in the construction of the house and was liable to her in damages for an amount equal to the decrease in its value resulting from the inadequacy of the footings and its consequences as found by the trial judge ((1994 - 1995) 182 CLR 609).

In consequence of this litigation, the plaintiff became judgment creditor of the defendant to the extent of $70,739 for damages and costs.  On 4 August 1995, a bankruptcy notice was taken out by the plaintiff and served on the defendant seeking payment of that debt.  Following non-compliance with it, a creditor's petition was filed by the plaintiff on 14 September 1995 petitioning the Federal Court of Australia for a sequestration order.  There were difficulties in effecting service and in March 1996 the Federal Court made an order for substituted service.  The terms of the order for substituted service were complied with and the petition deemed to have been served on the plaintiff on 26 March 1996.  The return date of the creditor's petition in the Federal Court was 16 April 1996.  At that return, counsel for the defendant indicated that he intended to file an application to the Full Court of the Supreme Court for an extension of time to appeal and for leave to appeal the judgment.  The hearing of the plaintiff/creditor's petition was adjourned to 30 April 1996 to enable the defendant to file the applications to the Full Court.  On 30 April 1996, these applications had not been filed and the Federal Court adjourned the hearing of the creditor's petition until 14 May 1996.  On 13 May 1996, the defendant filed the applications to the Full Court relying on the grounds that there was now fresh evidence not in the possession of the defendant at the time of the trial and which could not, with proper diligence, have been obtained by the defendant before the termination of the trial, and that the fresh evidence contradicted and negatived certain evidence given by the principal expert witness called on behalf of the plaintiff, whose evidence had been preferred by the learned trial judge.  The defendant sought the setting aside of the judgment and a direction that there be a retrial of the action.  On 14 May 1996, the defendant sought a further adjournment of the creditor's petition to enable him to pursue his applications.  The Federal Court adjourned the hearing to 3 September 1996.  On the latter date, the Federal Court ordered that the date for lapse of the creditor's petition be extended to twenty-four months from 19 September 1995.  On 1 July 1997, in view of the pending lapse of the creditor's petition on 19 September 1997, the Federal Court, when granting a further adjournment to the defendant, directed that he take all possible steps to list the appeal for hearing and to draw the attention of the Supreme Court to the date for lapse of the creditor's petition.  On 17 September 1997 a sequestration order against the estate of the defendant was made by the Federal Court.  The Official Receiver was appointed trustee of the bankrupt defendant's estate.  On 8 October 1997 the defendant filed an application for review in the Federal Court.  On 10 December 1997 the Federal Court adjourned the application for review sine die because the Federal Court does not have jurisdiction to annul a sequestration order on an application for review.  At the hearing of the application for review, counsel for the defendant advised the court that the defendant would apply for an annulment of the sequestration order.  He did not, however, do so.  On 25 August 1998, the Federal Court brought the application for review back on and dismissed it. 

By letter dated 11 February 1998, notice of the applications to the Full Court was given by the plaintiff's solicitors to the Official Receiver pursuant to the Bankruptcy Act, s60. No election has been made by the Official Receiver to prosecute or discontinue the appeal and the plaintiff claims that by virtue of subs(3) of that section, the Official Receiver is now deemed to have abandoned the defendant's "action" which it is submitted includes these applications. In this Court, little progress has been made towards disposing of the defendant's applications. The most recent dealing on the Court file was a note by the Deputy Registrar dated 7 October 1996 concerning the settling of the appeal books. On that date the appointment to settle the appeal books was adjourned without the contents having been settled. The plaintiff has received none of the judgment debt and it is common ground that the defendant has no assets and no dividend can reasonably be expected from his estate. The plaintiff now seeks to cut her losses and at least free herself from the risk of further litigation in which, even if she is successful, she will have no prospects of recovering any costs.

I think, irrespective of the plaintiff's argument based on the provisions of the Bankruptcy Act 1966, that this is clearly a case for dismissal for want of prosecution. I respectfully adopt as correct the following statement of the Full Court of the Supreme Court of Victoria in Muto v Faul [1980] VR 26 at 30:

"It is well established that any court possesses an inherent jurisdiction to stay or dismiss cases brought before it which are frivolous or vexatious or an abuse of the process of the Court.  This inherent power must extend, as this Court said in Duncan v Lowenthal [1969] VR 180 at p 182, to purging the Court list of cases which have not been reasonably prosecuted. This inherent power is of course very sparingly exercised but it is an essential power in the administration of justice."

There is all the more reason to dismiss an application to set aside a judgment at first instance, already reviewed on appeal by the Full Court and the High Court of Australia, when such application is delayed without justification.  Since May 1995, when the defendant claimed to be in possession of fresh evidence justifying his application for an extension of time in which to seek leave to appeal, he has done virtually nothing to ensure that the matter was advanced in the Full Court.  The bankruptcy proceedings in the Federal Court were delayed many months on the basis that the application was yet to be determined.  I was told from the Bar table that the appeal books could not be finalised because one of the appeal books prepared for the earlier appeal to the Full Court had been mislaid for some time, but it appears that it was located well before the sequestration order was made and yet no action before his bankruptcy was taken by the defendant to bring the matter on for hearing.

Counsel for the defendant submits that the plaintiff cannot complain that the defendant, who is now bankrupt, cannot continue the proceedings because she forced him into bankruptcy.  She is "hoist on her own petard" in his submission.  However, the bankruptcy notice issued in August 1995 was a legitimate and appropriate way of enforcing her rights and may well have been the only effective way she had of endeavouring to recover the judgment debt which was undoubtedly due and owing to her at that stage.  It had been five months since the High Court pronounced judgment confirming it and it was nearly nine months later before the defendant did anything to reopen the case.  Thereafter, it was a further sixteen months before she was finally able to procure a sequestration order and for a further twelve months after that there has been no action by the defendant, or his trustee in bankruptcy, towards having the matter listed for hearing.  Irrespective of any deemed abandonment of the action by the trustee pursuant to the Bankruptcy Act, s60 there is no justification for allowing this long protracted litigation to drag on any longer. The judgment of the learned trial judge has been upheld by the Full Court and the High Court of Australia, the defendant has shown no willingness to advance his challenge to it, the plaintiff's costs continue to mount without prospect of being paid and the matter should be put to rest. The defendant's applications of 13 May 1996 are dismissed for want of prosecution.