Litz v State of Qld

IN THE SUPREME COURT
OF QUEENSLAND

Appeal No. 173 of 1994
Brisbane

Before Ambrose J.

[Litz v. State of Qld & Ors ]
BETWEEN:

HORST WILHELM LITZ
Plaintiff

AND:

STATE OF QUEENSLAND
First Defendant

AND:

COLIN GEORGE BRADY AND RUTH BRADY
Second Defendants

CATCHWORDS: CIVIL LAW - application by the plaintiff under R.S.C. O. 22 r.21 - application by defendant under R.S.C. O. 90 r. 9 - no step by either party within three years.

Limitation of Actions Act 1974 (Qld)
R.S.C. O. 90 r.9
R.S.C. O. 22 r.31

Counsel:Mr F. Harrison Q.C. for the applicant/plaintiff
Mr D. Campbell for the respondent/defendant

Solicitors: Grasso Scarles Romano for the applicant/plaintiff
Crown Solicitor for the respondent/defendant

Hearing Date: 21 August 1998
REASONS FOR JUDGMENT - B.W. AMBROSE J.

Delivered the 2nd day of November 1998

This is an application by the plaintiff made on 30 July 1998 to have a defence and counter claim delivered by the first defendant struck out as an abuse of the process of the Court and for liberty to enter judgment against the first defendant in default of an effective delivery of a defence. Presumably the application was brought pursuant to R.S.C. O. 22 r. 31.
This application was heard with an application by the first defendant made on 8 July 1998 for leave to deliver the defence and counter claim which the plaintiff seeks to have struck out. This application is made pursuant to R.S.C. O.90 r.9.
By arrangement between the parties both matters came on for hearing on 4 August 1998 when they were adjourned to be heard on 21 August 1998.
Some of the factual issues in dispute between the parties occurred more than 20 years ago.
I will not endeavour to analyze all factual matters in issue between the parties. It suffices to say that each of the plaintiff and the first defendant commenced an action against the other in 1990. Those actions have never proceeded to final judgment.
Stated shortly it is the case for the plaintiff - contained in the Statement of Claim in this action (commenced by the plaintiff ‘s Writ of Summons of 31 October 1994) which was delivered on 5 April 1995 that he was induced to take a transfer of a lease of Crown land on a tropical island from the second defendants (who have not been served in this action) upon the undertaking of officers of the first defendant that when that lease expired after about ten years the Crown would either renew it or grant a new lease for a period of 30 years.
It is the contention of the plaintiff that had it not been for this undertaking he would never have purchased the interest of the second defendants in that Crown lease because he did so with the intention of spending a good deal of money re-developing a tourist facility on that island. It is his case that had it not been for the representation that he would get a renewal of the lease or a fresh lease he would never have taken the transfer and certainly never have spent the time, money and effort that he did over the following ten years conducting and improving the tourist resort.
The plaintiff has taken no proceeding in this action since delivery of the Statement of Claim on 3 April 1995. It is therefore more than three years since he took his last proceeding.
The first defendant entered an appearance in this action on 4 November 1994. Subsequent to the delivery of the Statement of Claim the defendant sought an extension of 21 days within which to deliver a defence. The plaintiff agreed to this request.
Thereafter there seems to have been great delay. There is an attempt to explain the first defendant’s delay on the basis that its solicitor was kept waiting for accurate information thought necessary to prepare a proper defence and counter claim to the plaintiff’s Statement of Claim rather than one which might be described as a merely “holding” pleading requiring amendment when the requisite information came to hand.
In fact a draft defence and counter claim was eventually prepared and forwarded to a State department on 8 May 1996 with a request for instructions sufficient to finally settle that pleading. Thereafter there was some bureaucratic tooing and froing between different departments - principally it seems with respect to the nature and extent of the Crown land affected by the lease which the plaintiff had acquired in 1978 and the amount of rental which the plaintiff should have paid to the Crown had the lease been renewed. This information was sought to formulate precisely the amount of “mesne profits” which it was the intention of the first defendant to claim by way of counter claim.
Factually it seems not to be in dispute that the lease which the plaintiff had acquired in 1978 expired in November 1988. Upon its expiry the Crown decided not to extend the lease by renewal or to grant to the plaintiff a fresh lease for 30 years.
It seems therefore that the plaintiff has occupied this Crown land on a “holding over” basis for the best part of ten years without paying to the Crown any rental or making any other payment.
In July 1990 the first defendant took proceedings against the plaintiff to recover possession of the Crown land the subject of the expired lease. Summary judgment was obtained on 7 August 1991. However, this judgment was upset upon appeal on the basis that the plaintiff had an arguable case to support his retaining possession of the land.
On 11 February 1993 a delegate of the Minister for Lands heard evidence and argument as to whether a new lease for the land then occupied by the plaintiff should be granted. The plaintiff provided written and oral submissions. On 23 December 1993 the delegate of the Minister recommended against the granting of a further lease to the plaintiff and he was advised to this effect.
On 20 March 1994 the first defendant gave to the plaintiff Notice of Intention to Proceed with its 1990 action to recover possession of the Crown land then occupied by the plaintiff. However no further steps were taken in that action.
It was not until 28 March 1998 that the State departments involved finally provided all the material thought necessary to complete the Statement of Defence and Counterclaim which was then delivered on 28 April 1998.
There has been in my view inordinate delay by both the plaintiff and the first defendant in this action. That delay perhaps simply reflects the delay on the part of both parties in their earlier actions commenced in June and July 1990 canvassing the same issues in dispute but which but were not ever pursued to a final determination.
In my view both the plaintiff and the first defendant need liberty under R.S.C. O.90 r.9 before they may take further proceeding in this action to claim the relief which they seek. The plaintiff has not attempted to explain his delay and has not formally made any application under R.S.C. O.90 r.9. I have reservations about the claim by the plaintiff to have the defence and counter claim delivered by the first defendant on 28 April 1998 struck out “as an abuse of process of the Court”. It seems to me that at the most the delivery was simply of no effect because leave had not been obtained pursuant to R.S.C. O.90 r.9 prior to taking that proceeding in the action. No material has been filed by the plaintiff suggesting any basis for such relief. However in my view, the plaintiff may not take any proceeding in his action against the first defendant directed to obtaining judgment in it unless he also obtains leave under R.S.C. O.90 r.9.
I have considered the affidavit material filed by both parties and there are very serious allegations made by the plaintiff as to ministerial impropriety and abuse of administrative power by officers of the State.
Undoubtedly the delay that has occurred will result in some prejudice to both parties; however they have only themselves to blame for that.
There is no statutory time limitation which would operate to prevent either the plaintiff or the defendant from commencing fresh proceedings to claim relief which the plaintiff now seeks to obtain in his Statement of Claim and which the defendant now seeks to achieve by its defence and counter claim.
In my view it is a matter of importance both to the plaintiff and to the State that all the matters and issues canvassed in the three actions instituted in this Court over the last eight years by both the plaintiff and the first defendant be resolved as openly and as speedily as possible.
It would be quite unsatisfactory to give one party liberty to take a fresh proceeding in the action while at the same time refusing the other party such liberty. Liberty given to one ought be conditional on similar liberty given to the other.
In my view the Limitation of Actions Act 1974 has no application at the present time to the relief claimed by either the plaintiff or the first defendant; it would be open to both parties to simply institute fresh proceedings claiming the relief which they seek to pursue in the present action. A proper exercise of discretion requires that each party be given liberty to take a fresh step in this action to avoid yet further delay and the incurring of yet further legal costs by the institution of yet another action to obtain the relief sought by both in this action.
I therefore give the first defendant leave pursuant to R.S.C. O.90 r.9 to deliver a defence and counter claim in the terms of that delivered on 28 April 1998. I make that order nunc pro tunc.
I give the plaintiff liberty under that same Rule to make his application on 30 July 1998 nunc pro tunc. This will obviously enable the plaintiff to deliver a further pleading as well as to proceed upon the application to enter judgment on any basis upon which he may be advised; it will enable the application under R.S.C. O.22 r. 31 to strike out the defence and counter claim delivered on 28 April 1998 to proceed if the plaintiff be so advised.
I make no order for costs in respect of either application.
This is a matter which might well benefit from a case appraisal. I give each party liberty to apply for a reference to case appraisal upon notice to the other upon these applications.

[1998] QSC 235

2 November 1998