Colin John Donkin v Australian Guarantee Corporation Ltd

[1991] FCA 891

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JUDGMENT NO. ........ ....... . ........ .. -.*

IN THE FEDERAL COURT OF AUSTRA~IA )	No. QG 93 of 1991
QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: COLIN JOHN DONKIN AND HEATHER KAYE DONKIN

Applicants

AND: AUSTRALIAN GUARANTEE CORPORATION LIMITED

Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	PINCUS J.
DATE OF ORDER:	2 0 NOVEMBER 1991
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

1.    Order number 2 made 24 October 1991 be varied so as to allow until 2 December 1991 for filing and serving the amended statement of claim.

2.    The matter be adjourned for further mention on Wednesday 4 Decenber 1991 at 9.30 a.m.

3.    Costs of today's hearing be paid by the applicants.

NOTE:	Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

IN THE F E D E ~ COURT OF AUSTRALIA 1 NO. QG 93 of 1991

QUEENSLAND DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN: COLIN JOHN DONKIN AND HEATHER KAYE DONKIN

Applicants

AND: AUSTRALIAN GUARANTEE CORPORATION LIMITED

Respondent

m: PINCUS J.

PLACE: BRISBANE

DATES 20 NOVEMBER 1991

EX TEMPORE REASONS FOR JUDGMENT

In this matter, the statement of claim is one which

needs attention, for reasons which have been discussed

previously. The difficulty is that M r Donkin, one of the

applicants, who is not a lawyer, is attempting to conduct the
litigation himself. Although he is obviously a person with
some ability, his ability does not include an ability in

pleading, which is not a skill that he has learnt.

What the statement of claim says in essence now is

that, in May, the applicants were negotiating to sell the
vessel in question, and in June, the vessel was taken and had
since been laid up. Paragraph 20 says the seizure of the
vessel caused loss. Paragraph 21 says -

"The seizure of the Vessel...and the failure of Respondent to carry on the ferry business is in

breach of its statutory duty . . . [ and] its duty	as mortgagee with respect to the preservation
of the Vessel".

Paragraph 21 seems to me to have some difficulties, but I do not elaborate on those. Paragraph 23 says that:

"The Respondent has failed in its duty to take
reasonable care to ensure that the ferry

business is sold at its proper market value",

- and the pleading goes on to discuss advertisement. The fact

is that the vessel has now been sold, and it is perfectly
clear that for that reason, if for no other, the statement of
claim needs to be amended to plead the sale, and say what was

wrong with it, if anything.

The order which was made some weeks ago (on 24

October) contemplated that these matters would be attended to. In fact, nothing has been done, and as it seems to me, no very satisfactory excuse has been advanced, except for the

circumstance which I mentioned earlier: that Mr Donkin is not

a lawyer and he has to obtain help from a lawyer friend of

his, which has not yet been forthcoming.

M r Eliadis, on behalf of the respondent, says that

the proceeding should be struck out, but I do not propose to
do that. It would not be, as it seems to me, an orthodox
course to strike out proceedings because of breach of one
interlocutory order fixing the date for a pleading; such
breaches occur very often, of course, and sometimes are

repeated. Ultimately the Court will not tolerate any further

delay, but one breach of an order, particularly when it does

not seem to cause any hardship to the respondent, is plainly

not enough for a striking out order.

The other matter which Mr Eliadis raises is the

question of unsatisfied orders for costs made in July.	It is
because the quantum of the costs has not yet been fixed. What	not, as it seems to me, necessary to say anything about that an amended statement of claim. Mr Donkin says he can have it done next week; I propose to give him until the week after,
which would take us to Monday, 2 December. If the statement
of claim is not in proper form by then, there may be a more receptive ear bent towards a striking out application. That is, I vary order number 2 made on 2 4 October, so as to allow until 2 December for the filing and serving of an amended statement of claim.

The matter will be adjourned for further mention on

Wednesday, 4 December at 9 . 3 0 a.m. The costs of today's

hearing are to be paid by the applicants. I certify that this and the
two preceding pages are a
true copy of the reasons
for judgment herein of his
Honour Mr Justice Pincus

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Associate

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