Lenijamar Pty Ltd and Ors v A.G.C. (Advances) Ltd
[1990] FCA 271
•06 JUNE 1990
Re: LENIJAMAR PTY LTD and DOMENICO and MARGARET ANNE PICONE
And: A.G.C. (ADVANCES) LTD
No. Qld G309 of 1988
FED No. 271
Practice and Procedure
22 FCR 364/96 ALR 197
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J.(1)
CATCHWORDS
Practice and Procedure - motion to strike out proceedings for want of prosecution - principles which apply in dismissing proceedings for want of prosecution under the Federal Court Rules
Federal Court Rules O. 10 r. 7
Birkett v. James (1978) AC 297
Department of Transport v. Chris Smaller (Transport) Ltd. (1989) AC 1197; (1989) WLR 578
United Bank v. Maniar (1988) Ch D 109
HEARING
BRISBANE
#DATE 6:6:1990
Counsel for applicant: Mr. D. Savage
instructed by: Chambers McNab Tully and Wilson, town agents for Wilson Ryan and Grose.Counsel for respondent: Mr. J. Sheahan
instructed by: Feez Ruthning
ORDER
1. Proceedings No. G 309/1988 be dismissed.
2. The applicants pay the respondent's costs, including reserved costs, to be taxed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.
JUDGE1
This is yet another notice of motion by the respondent in the principal proceedings, A G C (Advances) Limited ("the respondent"), that the claim by the first applicant, Lenijamar Pty. Ltd., and the second applicants, Domenico Picone and Margaret Anne Picone ("the applicants"), be dismissed. It raises the question of whether the principles in Birkett v. James (1978) AC 297 apply to proceedings in the Federal Court.
In Birkett v. James (supra), the House of Lords, per Lord Diplock at 318 held:
"The power (to dismiss an action for want of prosecution) should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party."
It has been submitted here by counsel for the respondents that the want of prosecution on behalf of the applicants is such as properly to be described as intentional and contumelious. As a detailed consideration of the events will demonstrate there is much force in this submission. Without necessarily finding that the want of prosecution was deliberately embarked upon for the purpose of frustrating the hearing of these proceedings by the court, it seems to me that the want of compliance with the directions of the court has been flagrant and properly deserving opprobium; it is impossible to escape the conclusion that the obligations to the court of the applicant or his solicitor or both, have been persistently flouted in serious respects. On the view I take of the matter, it would be competent for the court to proceed on the basis of the first limb of the power referred to in Birkett v. James (supra).
However, the primary submission on behalf of the respondent as to why the claims of the applicants should be dismissed was that the procedure for the conduct of the litigation in the Federal Court was such that it would be proper to dismiss the application pursuant to the provisions of the rules of the Federal Court, notwithstanding the circumstances referred to in Birkett v. James were not present.
By O.4 of the Federal Court Rules, proceedings in the court are ordinarily commenced by filing an application: O.4 r.1(1). The application is to specify the relief claimed by the applicant (r.3). It is to contain the name and address of the applicant; where a party sues or is sued in a representative capacity, a statement of that fact; where the applicant sues by a solicitor, the name, address and telephone number of the solicitor and, where the applicant sues by a solicitor and that solicitor has another solicitor as agent for him in the proceedings, the name, address and telephone number of the agent and an address for service (r.4). The application is to bear a note that:
" (a) if there is no attendance before the Court by the respondent or his counsel or solicitor at the time and place stated in the application, the proceeding may be heard and the respondent will be liable to suffer judgment or an order against him; and
(b) before any attendance at that time the respondent must enter an appearance in the registry." (r.5)
The applicant is to file and serve with the application either an affidavit or a statement of claim, whichever is appropriate (r.6).
O.7 r.1 provides for service of the originating process. O.7 r.1(3) provides:
"Where a respondent to any originating process files an unconditional appearance, the originating process shall be taken to have been served on him personally on the date of which his notice of appearance is filed or on such earlier date as may be proved."
Order 9 provides for an appearance by the respondent. The respondent may enter an appearance or may defend a proceeding by a solicitor or in person (O.9 r.1(1)) but the leave of the Court or a Judge is necessary for a corporation to enter an appearance or defend any proceeding except by a solicitor r.1(3). O.9 r.2 provides that, subject to the rules, a respondent shall enter an appearance before the date appointed for a directions hearing and before filing any document. By r.3, an appearance is to be entered by filing a notice of appearance which by r.4 has to show, inter alia, an address for service.
I mention somewhat tediously this regime to indicate the position the court has in the management of cases before it. In the Federal Court, litigation is not left to the whim of the parties but is subject to a system of case management.
The central function of the directions hearing to a proceeding in the Federal Court appears from O.10. O.10 r.1 provides that on a directions hearing, the court shall give such directions with respect to the conduct of the proceedings it thinks proper, and the nature of the directions that the court may order is instanced in r.1(2). Under O.10 r.3(2), if no applicant appears before the court on a directions hearing, the court may dismiss the application or make any other order which it thinks proper, and by r.3(3):
"If no respondent appears before the court on a directions hearing,the court may give such directions as it thinks fit."
By r.4(1), a party may move for an order under O.20 r.2, (which deals with summary disposal of proceedings) at the directions hearing, if notice of the motion is served on all other parties to the proceeding not less than three days before the directions hearing. By r.4(2) the court may dispense with service under r.4(1).
Order 10 r.7 importantly provides:
"(1) Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice -
(a) if the party in default is an applicant - for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceeding;
(b) if the party in default is a respondent - for judgment or an order against him; or
(c) for an order that the step in the proceeding be taken within the time limited in that order.
(2) The Court may make an order of the kind mentioned in sub-rule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just.
(3) This rule does not limit the powers of the Court to punish for contempt."
The central feature of a system of court controlled case management is the power in the court to stay or dismiss a proceeding for default of directions ordered by the court.
This power is to be contrasted with the power to give summary judgments. This latter power is found in O. 20 r. 1(1):
"Where, in relation to the whole or any part of the applicant's claim for relief, there is evidence of the facts on which the claim or part is based, and -
(a) there is evidence given by the applicant or by some responsible person that, in the belief of the person giving the evidence, the respondent has no defence to the claim or part; or
(b) the respondent's defence discloses no answer to the applicant's claim or part; the applicant may move on notice for such judgment for the applicant on that claim or part and the Court may pronounce such judgment and make such orders as the nature of the case requires." Order 20 r.2 provides:
"(1) Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding -
(a) no reasonable cause of action is disclosed;
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court,
the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.
(2) The Court may receive evidence on the hearing of an application for an order under sub-rule
(1)."
Order 20 r.5 provides:
"A party applying for an order that a proceeding be stayed or dismissed or for judgment in his favour under any provision of these Rules, shall make the application by motion upon notice."
Order 30 r.5, to which counsel for the respondent referred to, is in these terms:
"(1) Where an applicant does not prosecute the proceeding with due despatch, the Court may stay or dismiss the proceeding or make such other order as the Court thinks fit."
It was submitted on behalf of the respondent that the provisions of O.30 r.5 are of general application and were not restricted to circumstances where a notice of trial has been given. That rule appears in a rule dealing with the setting down of matters for trial. It seems to me that the more general power referred to in O. 10 r. 7 is the appropriate order in the present circumstances.
The thrust of the submissions for the respondent for dismissal of the proceedings appears to have been a matter of concern to the House of Lords in Department of Transport v. Chris Smaller (Transport) Ltd. (1989) AC 1197; (1989) 2 WLR 578. In that case, the House of Lords applied the principles of Birkett v. James (supra), but there are observations in their Lordships' judgment which suggest that where there is in existence court controlled case management techniques designed to ensure the efficient disposition of litigation, and where there has been default in complying with those procedures, then a proper exercise of the Court's powers ought not be inconsistent with the basic philosophy of that system. In that case, after the plaintiffs had failed to set down the action for trial and the defendants had taken out a summons to strike the action out for want of prosecution, Lord Griffith, with whom the other Lords agreed, said at 1202-3, 581:
"The master struck out the plaintiffs' claim. The judge allowed the plaintiffs' appeal. He held, applying the principles in Birkett v. James (1978) AC 297, that the plaintiffs had been guilty of inordinate and inexcusable delay for a period of 13 months but that there was no real risk that there could not be a fair trial of the issues and the defendants had failed to show that they would suffer more than minimal prejudice as a result of the post writ delay.
The Court of Appeal dismissed the defendants' appeal and your Lordships gave leave to appeal so that they might re-examine the principles that have governed applications to strike out for want of prosecution since the decision of this House in Birkett v. James in the light of criticisms as to the effectiveness of those principles expressed in certain judgments in the Court of Appeal. The principles upon which the jurisdiction to strike out for want of prosecution is exercised were settled by the Court of Appeal in Allen v. Sir Alfred McAlpine and Sons Ltd. (1968) 2 QB 229, and approved by the decision of this House is
(sic) Birkett v. James. The power should be exercised only where the court is satisfied either
(1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party."
His Lordship later said at 1203-4, 582:
"It was hoped that the initiative taken by the Court of Appeal in Allen v. Sir Alfred McAlpine and Sons Ltd. (1968) 2 QB 229 to strike out actions for want of prosecution and the endorsement of those principles by this House in Birkett v. James would be a sufficient deterrent to ensure that all plaintiffs' solicitors would in future pursue litigation with reasonable despatch rather than face an action against them by their clients when the action was struck out. Unfortunately, this has not proved to be the case."
He referred to the unreported comments of Kerr L.J. in Westminster City Council v. Clifford Culpin and Partners, where Kerr L.J. said in a postcript to his judgment:
"There are constant complaints about delays in our legal processes and suggestions for reforms, such as the current 'Civil Justice Review' by the Lord Chancellor's Department: Civil Justice Review, Report of the Review Body on Civil Justice (1988) (Cmnd 394). But no changes in the organisation or administration of the courts would make any material difference to cases such as the present. By far the major part of all delays stems solely from the way in which litigation is conducted. In this connection our law needs to be changed, both in substance and procedurally. The principles laid down in Birkett v. James are unsatisfactory and inadequate. They are far too lenient to deal effectively with excessive delays. Moreover they then breed excessive further delays and costs in their application. The long line of decisions concerned with striking out applications, both reported and unreported, demonstrate that the regime of Birkett v. James should be replaced by a system of rules which are much stricter, more effective and simple to apply. And it is highly questionable whether plaintiffs should be allowed the benefit of the full periods of limitation, with virtual impunity, where the facts are known and there is no obstacle to the speedy institution and prosecution of claims. The present system provides insufficient sanctions for those responsible for the dilatory and inefficient conduct of litigation, and it is frequently unfair to litigants."
At 1205-6, or 584, Griffiths L.J. continued: "The defendants, relying upon these passages, have invited your Lordships to depart from Birkett v. James (1978) AC 297 and to hold that inordinate and inexcusable delay occurring after the expiration of the limitation period should be a sufficient ground to strike out an action even if there can still be a fair trial of the issues and even if the defendant has suffered no prejudice as a result of the delay."
He noted:
"...limitation periods are set by Parliament and not by the courts,..."
His Lordship declined to depart from the principles in Birkett v. James, but he said in a matter of considerable relevance to the present problem, at 1206, 585-6:
"To extend the principle purely to punish the plaintiff in the illusory hope of transforming the habits of other plaintiff solicitors would, in my view, be an unjustified way of attacking a very intractable problem. I believe that a far more radical approach is required to tackle the problems of delay in the litigation process than driving an individual plaintiff away from the courts when his culpable delay has caused no injustice to his opponent. I, for my part, recommend a radical overhaul of the whole civil procedural process and the introduction of court controlled case management techniques designed to ensure that once a litigant has entered the litigation process his case proceeds in accordance with a time table as prescribed by Rules of Court or as modified by a judge: see the Civil Justice Review, Report of the Review Body on Civil Justice
(1988) (Cmnd 394)."
As to the recommendation by Lord Griffiths for the introduction of court controlled case management techniques, that is the procedure presently applicable in the Federal Court and, in my opinion, in relation to Federal Court litigation, the circumstances in which an application can be dismissed for want of prosecution are not restricted to the principles expounded by the House of Lord in Birkett v. James and Department of Transport v. Chris Smaller (Transport) Ltd. There is the express power referred to in O. 10 r. 7. In my opinion, the exercise of the discretion for which that rule calls does not fall to be examined only in the circumstances postulated in Birkett v. James. The discretion has, of course, to be exercised judicially, but is otherwise unfettered. Such a view is consistent with the underlying philosophy of the case management techniques espoused by the rules of the Federal Court.
There is a single judge decision of Millett J. in United Bank Ltd v. Maniar (1988) ChD 109 which supports this view. In that case, Millett J. distinguished Birkett v. James, holding that the principles therein relating to the striking out of an action for want of prosecution had no application to proceedings begun by originating summons which was subject to the provisions of the R.S.C., O.28 r.10. He said that it was sufficient in accordance with r.10 to show that the plaintiff had failed to prosecute a proceedings with due despatch, in order to dismiss the plaintiff's originating summons.
Having concluded that the principles laid down by the House of Lords in Birkett v. James had no application to proceedings begun by originating summons, his Lordship continued at p 111-2:
"Originating summons procedure provides an expeditious means for the speedy resolution of cases where there is no, or no substantial, dispute of fact. The procedure is governed by the provisions of R.S.C., Ord. 28, which lays down a strict timetable for the steps to be taken in the proceedings, including the filing of evidence. It is intended to be subject to the control of the master at each stage, and to be completed by his adjournment of the proceedings to the judge as soon as the evidence is complete. The timetable is meant to be strictly complied with. Where it is not possible to comply with the timetable laid down, an application can always be made to the master for an extension of time, and the timetable is subject to his control throughout. The sanction for failure to comply with the procedure laid down is provided by Ord. 28, r. 10: '(1) if the plaintiff in a cause or matter begun by originating summons makes default in complying with any order or direction of the court as to the conduct of the proceedings, or if the court is satisfied that the plaintiff in a cause or matter so begun is not prosecuting the proceedings with due despatch, the court may order the cause or matter to be dismissed or may make such other order as may be just...(3) Where, by virtue of an order made under rule 8, proceedings in a cause or matter begun by originating summons are to continue as if the cause or matter had been begun by writ, the foregoing provisions of this rule shall not apply in relation to the cause or matter after the making of the order.' Ord. 28, r. 10 gives the court power to deal, inter alia, with a laggard plaintiff. It provides that the proceedings may be dismissed where the court is satisfied that the plaintiff is not prosecuting the proceedings with due despatch. That is in stark contrast to the requirement in actions begun by writ that the plaintiff should have been guilty of inordinate and inexcusable delay."
The parallel between R.S.C., O. 28 r. 10, and O. 10 r. 7 and O. 30 r. 5 of the Federal Court Rules is clear.
Millett J. commented at 112:
"The provisions of rule 10 are not supplemental to the inherent jurisdiction of actions begun by writ, but provide a separate and distinct code for the originating summons procedure. There is no requirement that the plaintiff should have been guilty of inordinate and inexcusable delay; there is no requirement that the defendant shall have been prejudiced by the delay; nor, in my judgment, is the latter prejudice to be imported by analogy. The presence or absence of prejudice to the defendant must be a relevant consideration, but it cannot be decisive. Nor will the fact that the plaintiff is free to issue a fresh originating summons (the limitation period not having expired) be conclusive. Proceedings begun by originating summons are rarely subject to the Limitation Act 1980 and, even where subject to it, frequently enjoy an extremely long limitation period. In the present case it is 12 years."
Millet J. considered at p 113 that the only question in that case was whether:
"...in the events which have happened,the originating summons ought to be dismissed with costs, allowing the plaintiff to issue a fresh originating summons, or whether the application to strike out should be dismissed, but upon terms that the plaintiff should pay the defendants' costs of that application, and that those costs should be taxed and paid forthwith as a condition of proceeding with the originating summons."
That seems to be the question which must also be answered here.
His Lordship continued (at 113-4): "...the dismissal of the originating summons would not be futile. It would help to vindicate the timetable laid down by the rules for the speedy despatch of originating summons procedure, and it would be in accordance with the policy that I take to be underlying that procedure, as well as the modern policy of the courts towards plaintiffs who are guilty of delay."
As to the consideration that there would be no bar to the present applicants proceeding with at least part of their claim in fresh proceedings, I note Bailey v. Bailey (1983) 1 WLR 1129. The Court of Appeal there held that, since the first action was dismissed for want of prosecution but was not struck out for disobedience of a peremptory order of the court, the issue of the second writ within the limitation period did not constitute an abuse of the process of the court and, therefore, the plaintiff was entitled to proceed with the second action.
In Janov v. Morris (1981) 1 WLR 1389, there had been an order by the Master ordering that the action be struck out unless the plaintiff served his summons for directions by a specified date. That order was not complied with and no explanation for the delay in prosecuting the action was offered. The Master then gave judgment for the defendant on the defendant's counter-claim. On a second writ being issued, the Court of Appeal held that, pursuant to the rules, the court had a discretion to strike out an action as an abuse of the process of the court where there had been a failure by a litigant to comply with a peremptory order of the court in a previous action. They held that, in the circumstances, the court should uphold the principle that peremptory orders were made to be complied with and not to be ignored and, in the absence of any explanation for the plaintiff's conduct or assurance as to his conduct of the present action, the court, in the exercise of its discretion, would order that the action be struck out.
While, therefore, it is clear that dismissal of an action for want of prosecution does not necessarily mean that the institution of further proceedings within the limitation period would constitute an abuse of process of the court, it was submitted on behalf of A.G.C. that it may constitute an abuse of process if proceedings have been dismissed for want of prosecution, not once but twice, as in the facts of the present case. Such a contention is at least arguable, but the question does not fall for determination at present.
I turn now to the facts of this case. The full history of these proceedings and those which preceded it appears in the material before me, but I will tersely summarise its main features.
Proceedings similar to the present were commenced in the Federal Court in 1987 by Application No. G20 of 1987. There was some delay in relation to the prosecution of that proceeding, and on 31 March 1987 the applicant sought time to deliver an amended statement of claim. I acceded to that request and ordered that the applicants file and serve an amended statement of claim by 4 p.m. on Friday, 10 April 1987. In default of so doing, the proceeding commenced as G20 of 1987 were to be struck out with costs, to be taxed or otherwise agreed.
An amended statement of claim was duly filed, and on 12 May 1987 a request for further and better particulars was delivered by the respondent. On 11 June 1987, I ordered that further and better particulars be supplied within 14 days - that is, on or before 25 June 1987. The applicants did not file and deliver the further and better particulars by that time. Accordingly, on 2 July 1987 Mr. Justice Wilcox made an order, by consent, that Application No. G20 of 1987 be struck out and that the applicants pay the costs of and incidental to the principal action and of the motions, including all reserved costs, to be taxed or agreed between the parties.
The current proceedings, No. G309 of 1988, were commenced by an application and statement of claim filed on 12 August 1988, that is to say, about 13 months after the consent order made by Mr. Justice Wilcox dismissing proceedings No. G20 of 1987. On 12 September 1988, the respondent entered an appearance. On 28 September 1988, an amended statement of claim was delivered. A request for further and better particulars was delivered by the respondent on the following day, and those further and better particulars of the amended statement of claim were furnished on 12 October 1988, and even further particulars were delivered on 15 December 1988. On 19 December, the matter was mentioned before me and on that day the court ordered, by consent, inter alia:
"Each party give mutual discovery of documents by list on or before 28 February 1989, and that inspection take place on or before 9 March 1989."
The defence was delivered on 8 February 1989 and the reply on 21 March 1989. Discovery was later than the time table envisaged: a list of documents was delivered by the applicants on 12 April 1989, and by the respondent on 17 April 1989. A supplementary list of documents was then delivered by the applicants on 3 May 1989.
The matter was then mentioned before me again on 31 May 1989. I made quite elaborate directions, including the following:
" 3. Leave be granted to the respondent to amend its defence and enter a counter-claim within two weeks of today.
4. The respondent pay the costs occasioned by any need to re-plead.
5. The applicants file and serve a defence to the cross-claim and any reply to the amended defence within a further two weeks.
6. All parties deliver such supplementary lists of documents as are necessary within five weeks of today, and inspection of documents take place within a further two weeks;
7. The parties communicate with the Registrar within ten weeks of today for the purpose of having the matter set down for trial;
8. The applicants deliver proofs of the evidence of the witnesses on which they wish to rely at trial 21 days before the date fixed for trial.
9. The respondent deliver proofs of the evidence of the witnesses on which it wishes to rely at trial 14 days before the date fixed for trial.
10. The parties exchange proofs of the evidence of any expert witnesses they wish to rely on at trial on the 14th day prior to the date fixed for such trial.
11. The parties compile a bundle of agreed documents. Any contentious documents be found together in separate bundles."
On 14 June 1989, the respondents delivered a draft defence and cross-claim to the applicants' solicitors, but that document was not filed under O.13 r. 6 of the Federal Court Rules. Counsel for A.G.C. on 9 March 1990 indicated that "Any leave that there might have been for the respondent to file a cross-claim has now lapsed. There is no cross-claim in these proceedings..." Apart from this, a long period of delay occurred after that directions hearing on 31 May 1989. A facsimile letter relating to the question of the discovery of the applicants dated 30 May 1989 had been sent by the then solicitors for the respondents to the solicitors for the applicant. That letter said, in part:
"We refer to your facsimile transmission of 29 May 1989 and wish to address two issues as follows:-
1. The allegation contained in your facsimile message that our client's discovery is incomplete;
2. Your clients' failure to give full and adequate discovery...
In relation to your own clients' discovery in these proceedings, we note as follows:-
1. We are of the view that all of your clients' financial records including tax returns from 1984 to the present are discoverable. It appears from our perusal of the lists of documents that the tax returns that have been discovered are confined to the year ending 30 June 1986. Although there are some financial records for the period 30 June 1984 to 30 June 1986 there are no financial records for the period subsequent to 30 June 1986 and we require those to be discovered.
2. Your client has discovered only 5 leases. Copies of leases in relation to all security properties should be discovered, that includes the shopping centre and the residential properties.
3. The rental statements appear to be only for the period 1986. Rental statements for the security properties including the residential properties and the shopping centre, should be discovered for the period 30 June 1984 to the present.
4. All of your clients' bank statements for the period 30 June 1984 to the present should be discovered.
5. Your client has not discovered its solicitor's file concerning the establishment of the loan facility.
6. There are no diary notes or indeed a diary of Mr. Picone or Mrs. Picone.
7. There are no file notes by Mr. Finter.
8. We note that the document discovered by our as AGC File 1, Document No. 69 which is a letter from AGC to Westpac Banking Corporation requests the bank to forward copies of its bulletins to the applicants. There are no Westpac Banking Corporation bulletins discovered. If such bulletins were received, but have subsequently been lost then a reference to this fact should be contained in the list of documents."
No answer was received to this facsimile.
On 29 November 1989, the solicitors for AGC wrote to the Registrar of the Federal Court seeking to have the matter relisted. The matter ultimately was listed for mention on Friday, 2 March 1990. On 28 February 1990, the solicitors for AGC wrote to the applicants' solicitors, requesting that the question of outstanding discovery be resolved and inquiring of the timetable which was to be suggested by the applicants. No reply to that letter was received. On 2 March 1990, there was no appearance on behalf of the applicants. I adjourned the matter for a week and, on 9 March, heard the parties, and after some anxious consideration, I dismissed a motion on behalf of AGC (Advances) Ltd. that the application be struck out. That decision was influenced by the circumstance of the delivery of a defence and cross-claim on 14 June 1989. I ordered that the costs of the motion, as well as the costs of the appearance by the respondent on 2 March 1990, be paid by the applicants. I ordered that, if the costs were not paid within four weeks either of the certificate of taxation being delivered or of agreement as to those costs, then the principal proceedings would stand dismissed. I further ordered that each party make further and better discovery within four weeks of that date and that inspection take place within a further two weeks.
On 12 April 1990, the matter was again before me. On that occasion, there was a further application that the claim be dismissed. Again I expressed to the solicitor who appeared on behalf of the town agents for the applicants' solicitors, the disquiet of the court as to the conduct of these proceedings on behalf of the applicant. I ordered that further and better discovery be made by the applicants within fourteen days by filing a further verified list of documents by 4 p.m. on Thursday, 26 April; such affidavit to address the documents which were listed in the letter dated 30 May 1989 from the then solicitors for AGC to the applicant's solicitors. I ordered that, in default of compliance with that order, the proceedings be dismissed and that the applicants were to pay the costs of that motion. At that hearing on 12 April there was filed, on behalf of the solicitor for the applicants, an affidavit sworn on that same day. It had not been filed prior to that date. In part, that affidavit says:
"3. On the Monday afternoon this week (the ninth day of April) our Brisbane Agents, Chambers McNab Tully and Wilson, faxed to Wilson Ryan and Grose a copy of the application brought by the Solicitors for the respondent and returnable today, together with the affidavit of Mr. Rankin and the list of documents of the respondent. Those documents which were faxed came to my attention on Tuesday morning this week. On Tuesday I was involved in a Family Court matter which involved a client from Western Queensland who was only in Townsville for the day and involved the preparation of lengthy affidavit material. Yesterday I instructed Counsel in the Supreme Court before Mr. Justice de Jersey, who is visiting Townsville at present and who heard a matter in which I was involved for the plaintiff.
4. I have not been able to have Mr. Picone attend at my office in relation to the list of documents provided by the respondent. I do wish to have Mr. Picone attend at my office and take instructions from him in relation to the list of documents, so that consideration of the discovery of the respondent may be given...
5. Since the last hearing of this matter, Mr. Picone has instructed me that there are no other documents at all held by him to be discovered and that all documents in his possession or control have been discovered by way of the affidavit sworn in this action last year. He has instructed me that he does not believe his former solicitors hold any further documents. Accordingly, on my instructions, both the first and second applicants have made full discovery."
As to the last claim, I made the order requiring further discovery by 26 April 1990. A supplementary list of documents was filed by the applicants on that day.
What has happened between 12 April and today, 6 June, is as follows.
On 12 April, the solicitor for AGC, Messrs. Feez Ruthning, wrote to the applicants' solicitors advising that the documents listed in AGC's affidavit of documents delivered on 6 April 1990 were available for inspection. The letter requested inspection of the documents listed in the applicants' supplementary affidavit of documents by Wednesday or Thursday of the following week. No reply was received to this letter and a further letter was sent on 20 April in these terms:
"...Further to our letter of 12th April 1990, despite the fact that today is the day designated for the completion of inspection by the Honourable Mr. Justice Spender, we have not heard from you in relation to the making of your client's documents available for inspection. Would you please arrange for them to be made available at your town agent's offices immediately.
In relation to the orders concerning discovery made by the Honourable Mr Justice Spender on 12th April 1990, if your clients fail to comply with those orders, we are instructed to execute His Honour's order without further reference to you."
Then on 24 April 1990, solicitors for the applicants wrote in these terms:
"We are forwarding to Chambers McNab Tully and Wilson the original and service copies of our clients' further list of documents. They will be filed and served on Thursday.
We shall forward to Chambers McNab Tully and Wilson the documents for your inspection and ask that you to (sic) liaise with them in relation to the inspection. Similarly, we have asked Chambers McNab Tully and Wilson to liaise with you in relation to inspection of the respondent's documents."
Then on 27 April, Messrs. Feez Ruthning wrote to the town agents for the applicants and said:
"With reference to the above matter, your principals Messrs. Wilson Ryan and Gross (sic) have advised us that they will be forwarding documents discovered by their clients to you for inspection by us. Would you please advise us immediately the documents arrive so that we can arrange a mutually convenient time for inspection."
On 18 May, a letter to the applicants' solicitors was in these terms:
"Further to your letter of 24 April, 1990 we were informed by your town agents that they have not received any of your clients' documents for inspection by us. Please be advised that unless the documents have been received by your town agents by 4.00 pm on 21 May, 1990 we are instructed to make a further application to strike our (sic) your clients' application for want of prosecution."
On 21 May by facsimile transmission the applicants' solicitors wrote to Messrs. Feez Ruthning as follows:
"We advise that our client has now brought in to us the documentation we were awaiting from him in relation to discovery and same is being packed up to be forwarded to Chambers McNab Tully and Wilson. Accordingly, we expect that they will have it in the next day or two to produce to you for inspection."
Notwithstanding that correspondence, a solicitor in the employ of Messrs. Chambers McNab Tully and Wilson, the town agents for Messrs. Wilson Ryan and Grose, solicitors for the applicants, indicated in a letter to the respondents' solicitors that the relevant documents were not delivered until 5.30 pm on Tuesday, 5 June. In relation to this extraordinary sequence of events, Mr. Christopher John Bowrey, who has sworn a number of affidavits on behalf of the applicants in relation to the question of discovery, deposes in a further affidavit filed by leave today that, in respect of the material already filed in the action and, in particular, the further list of documents filed at the end of April:
"I obtained information from various sources to enable me to compile the list of documents. I obtained some of those instructions from my client Mr. Picone, one of the applicants, although at the time of the preparation of the list of documents he had not actually provided me with the documents."
Mr. Bowrey indicates that, because of a head injury suffered by Mr. Picone in a motor vehicle accident some years ago, he, i.e. Mr. Bowrey, has had difficulty in ascertaining what documents have been held by Mr. Picone to ensure a complete list could be filed in this court. He baldly says that he has assembled and forwarded to Messrs. Chambers McNab Tully and Wilson the documents referred to in the list and instructed them to contact the solicitors for the respondent so that inspection can take place. That affidavit concludes:
"I am conscious of the delays in this matter. My instructions are however that the applicants wish to continue with the proceedings against the respondent."
A further affidavit of Mr. Bowrey before me, at the moment only in facsimile form, says in part:
"In my affidavit sworth (sic) the 12th April 1990 I deposed to advice from my client that no other documents at all were held by him to be discovered and that all documents in his possession or control have been discovered. Since then I have had a number of discussions with Mr. Piccone (sic) and his present accountant.It is as a result of those discussions that the supplementary list of documents was prepared and filed in this Court at the end of April."
I interpolate to say that on 12 April 1990 I had made a guillotine order relating to discovery which included documents referred to in the letter of 30 May 1989 and that required a supplementary list to be filed.
Mr. Bowrey continues in his affidavit:
"At the time of the preparation of that supplementary list of documents I obtained some of the documents referred to in it, from KPMG Hungerfords, the applicants' present accountants. Mr. D. Picone brought into this office following my discussions with him, various other documents which I have assumed he held at home. I belive
(sic) that the last of those documents were delivered into my office when I was at Court on last Monday the 28th May. They were dropped in in a plastic shopping bag. Because of other Court matters in Townsville last week, I was not able to tag and despatch the documents to my Brisbane Agents."
The claim of delivery of documents on 28 May sits awkwardly with the contents of the facsimile transmission to Messrs. Feez Ruthning of 21 May.
As those events show, there has been persistent non-compliance with the directions of the Federal Court by the applicants or by those acting on their behalf. It is difficult to say whether the fault, at least to such a significant degree, is solely the fault of the solicitor having the carriage of the action on behalf of the applicants. It is impossible to allocate with precision the degree of blame for this inexcusable scenario. The repeated explanations or attempts at explanations border on contempt of the obligations of a solicitor to this court. What I regard as inordinate patience has been demonstrated in this case. On repeated occasions the court has, through those who appeared before it on behalf of the applicants, urged compliance with the obligations of the court's directions to the applicant. These urgings have been consistently rebuffed.
Given the history of the earlier proceedings, and given the history of the persistent and inexcusable tardiness or default demonstrated by the events prompting the three motions to dismiss the application for non-compliance with the court's orders, I feel that I ought, in the proper exercise of the discretion given to the court, and consistent with the role of the court in the efficient and fair management of the business of parties before it, grant the relief sought in the most recent notice of motion. To do otherwise would seriously harm the credibility of the court's directions.
I order that proceedings No. G309 of 1988 be dismissed and that the applicants pay the respondent's costs, including reserved costs, to be taxed.
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