Bryant, Adrian Cecil v Australia and New Zealand Banking Group Ltd

[1998] FCA 735

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 610 of 1994

BETWEEN:

ADRIAN CECIL BRYANT
APPLICANT

AND:

AUSTRALIAN & NEW ZEALAND BANKING GROUP LIMITED (ACN 005 357 522)
FIRST RESPONDENT

RAYMOND LUMLEY
SECOND RESPONDENT

JOHN B HAJJE
THIRD RESPONDENT

JUDGE:	LINDGREN J
DATE:	22 JUNE 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)
(motion to set aside order of dismissal)

The applicant, Mr Bryant, moves for an order that an order of dismissal which I made on 11 May be set aside.

The third respondent, Mr Hajje, moved by notice of motion filed on 22 April 1998 for an order  that Mr Bryant’s proceeding against him be dismissed for non-prosecution pursuant to Order 30, rule 5.  On 11 May I made that order, ordered Mr Bryant to pay Mr Hajje’s costs, directed that the order of dismissal not be entered of 21 days from 11 May, and reserved liberty for Mr Bryant to apply for an order setting aside the order of dismissal by notice of motion supported by affidavit, returnable within that period of 21 days.  In fact, Mr Bryant came before me on the 21st day, 1 June and, in order to accommodate the circumstances to the order of 11 May, by consent, I made the motion returnable instantly.

It is necessary that I say something of the background, but I do not think it necessary to give a full account of the long history of this matter.  The proceeding arises out of a dispute between Mr Bryant and the first respondent bank which was the mortgagee of certain rural properties owned by Mr Bryant.  In early 1995, I granted Mr Bryant leave to join his former barrister in the proceeding, Mr Lumley, as second respondent, and Mr Hajje, who had been his solicitor in the proceeding, as third respondent.  Mr Bryant filed a second further amended statement of claim on 19 April 1995 pleading, relevantly, his cause of action against Mr Hajje.  In summary, this was that Mr Hajje had not protected Mr Bryant’s interests by failing to bring certain matters to the attention of the Court and to attend to correspondence, and by leaving the conduct of the proceeding largely to Mr Lumley.  Mr Bryant’s case seems to be that his defeat in the proceeding as against the Bank is somehow attributable to the shortcomings of his solicitor at the time, Mr Hajje, and his barrister at the time, Mr Lumley.

Mr Hajje’s solicitor filed a notice of appearance on 9 May 1995 and a defence on 23 October 1995.  Mr Hajje filed a notice of motion seeking dismissal pursuant to Order 30, rule 5, on 23 September 1996.  That motion was returnable on 2 October 1996.  It was supported by an affidavit of Peter John Moran which annexed correspondence demonstrating failures by Mr Bryant to comply with Court directions.  As well, for example, there was annexed a letter dated 17 April 1996 from Mr Hajje’s solicitors to Mr Bryant’s then solicitors, Burt and Allen, to which there had been no reply as at the time of the filing of the notice of motion some five months later.

In the event, Mr Hajje’s earlier motion for dismissal did not come to hearing.  By consent, on 2 October 1996 certain directions were made which resulted in the filing of the second further amended application and statement of claim, and a standing over of the proceedings to 29 November 1996.  On 29 November 1996 further directions were made by consent including an order standing over the proceeding to 10 February 1997.  On 10 February 1997 again there were directions made by consent.  No order has ever been made actually disposing of the first motion for dismissal for non-prosecution, but clearly the parties have treated it as having fallen by the wayside.

The second motion by Mr Hajje for dismissal for non-prosecution was, as I noted earlier, brought by notice of motion filed 22 April 1998.  It was supported by affidavits again by Peter John Moran sworn 8 April and 7 May 1998.  Again the affidavits put in evidence correspondence.  For example, the last annexure to Mr Moran’s affidavit of 8 April is a letter dated 10 December 1997 from Mr Bryant’s new solicitors, John McEncroe & Company, to Mr Hajje’s solicitors, Colin Biggers and Paisley.  That letter advised that John McEncroe & Company were instructed by Mr Bryant to reinstate the proceeding against Mr Hajje and advised that they expected to file the necessary application before Christmas, that is, before Christmas 1997.  Nothing had happened by the time of the filing of Mr Hajje’s notice of motion on 22 April 1998, some four months later.

In support of his present motion, Mr Bryant has sworn an affidavit dated 5 June 1998.  In summary, this affidavit gives a short history and makes the point that Mr Bryant was having difficulty locating Mr Lumley and had located him as a result of seeing a newspaper advertisement in January 1998 which suggested that Mr Lumley was employed by the New South Wales Department of Agriculture.  According to Mr Bryant’s affidavit, some four months later, after the order of dismissal made on 11 May, Mr Bryant made an inquiry of that Department at Orange and located Mr Lumley, who, he says, was served with the third amended application by virtue of service on Mr Lumley’s wife on 26 May 1998.

It has been put in submissions that the difficulty in locating Mr Lumley explains the delay in prosecuting the case against Mr Hajje.  What is submitted, as I understand it, is that Mr Lumley is an essential witness in Mr Bryant’s case against Mr Hajje.  I am not persuaded that this is so at all.  There is no affidavit evidence demonstrating that it is so and it is not self evident that it is.  In my view, Mr Bryant was always able to prosecute his case against Mr Hajje with the benefit of discovery by Mr Hajje.  In any event, Mr Bryant saw the newspaper advertisement last January and took no step to locate Mr Lumley until after the order of dismissal was made.  It is difficult to avoid the impression that Mr Bryant has been following a course of becoming active only to defeat attempts to have this proceeding dismissed, and has no interest in prosecuting it to conclusion.  This is one of those rare cases where the inactivity has been so gross as to warrant dismissal of the proceeding, at least as against Mr Hajje.   I can deal with the present motion only on the evidence before the Court.  That evidence does not persuade me that a case is made out for an order setting aside the order of dismissal.

Accordingly, the motion brought by notice of motion filed 1 June 1998 is dismissed with costs. 

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             25 June 1998

Counsel for the Applicant (applicant on the motion):	Mr M  Abdul-Karim
Solicitor for the Applicant (applicant on the motion):	John McEncroe & Company
Counsel for the Third Respondent (respondent to the motion):	Mr I G  Harrison SC
Solicitor for the Third Respondent (respondent to the motion):	Colin Biggers & Paisley
Date of Hearing:	19 June 1998
Date of Judgment:	22 June 1998