Palmer v Palmer

[1987] TASSC 111

Serial No B41/1987
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Palmer v Palmer [1987] TASSC 111; B41/1987

PARTIES:  PALMER, Brian
  v
  PALMER, George

FILE NO/S:  726/1980
DELIVERED ON:  6 October 1987
JUDGMENT OF:  Cox J

Judgment Number:  B41/1987
Number of paragraphs:  9

Serial No B41/1987
List "B"
File No 726/1980

BRIAN PALMER v GEORGE PALMER

REASONS FOR JUDGMENT  COX J

6 October 1987

1. This is an application for leave to proceed, pursuant to Rules of the Supreme Court, O79 r11(2), in an action commenced by interstate writ dated the 11 April 1980 and in respect of which the last step taken was the delivery of a defence by the defendant/respondent on the 11 June 1980. The defence was accompanied by a letter requesting further and better particulars and suggesting that discovery of documents be put in train without delay.

1. The litigation involved allegations by the applicant/plaintiff that he and the defendant, who is his brother resident in Sydney, had entered into an oral agreement in 1977 to develop certain properties in Tasmania and to share certain expenses such as fees for engineering and architectural advice and that the defendant had failed to pay his share; that the plaintiff had in 1977 at the defendant's request paid certain monies due on a mortgage to the Public Trustee of Tasmania to the defendant's use and had not been repaid; that the plaintiff had agreed to guarantee a further loan from the Public Trustee to the defendant and had been forced to meet the defendant's debt without being indemnified by the latter; that by another oral agreement in 1979 the plaintiff had agreed to sell to the defendant some shares in a company for $13,000, had transferred them to his brother but had not been paid the purchase price; and that by written agreement in 1979 the defendant had agreed to sell one of the aforementioned properties to the plaintiff, but thereafter repudiated the contract causing the plaintiff a loss on his bargain and leaving him with certain expenditure associated with his possession of the property before repudiation. An affidavit by the applicant in support of this application stated that the claim as instituted amounted to approximately $60,000.

1. In 1982, nothing further having happened in the proceedings since June 1980, the respondent issued a writ of summons out of the Supreme Court of New South Wales seeking recovery from the applicant of money allegedly lent by the respondent to him and for other money allegedly paid at his request. The loans were claimed to amount to $26,000 and the other monies to nearly $23,000. The latter monies were said to have been paid by the respondent to meet commitments of the applicant in respect of dealings by him both in New South Wales and in Tasmania from October 1976 to January 1979. It appears that this writ was served on the applicant in 1982, but neither party took any step in either proceedings until August 1986 when the respondent filed an amended statement of claim in the New South Wales action. On the 2 October 1986 the applicant filed a defence which was confined to a denial of the allegations in the amended statement of claim.

1. In February 1987 the respondent moved the New South Wales court seeking entry of judgment in his case or, alternatively, seeking that the defence be struck out. The Supreme Court of New South Wales ordered the applicant to file and serve an amended defence, and on the 26 March 1987 an "Amended Defence and Cross Claim" was filed therein. The allegations in the statement of claim were traversed in more detail, which it is unnecessary to relate, and by way of set–off and counterclaim the applicant pleaded in substance all the allegations which he had initially raised in the Tasmanian proceedings. Thus, all matters in issue between the parties have been pleaded in the proceedings before the New South Wales court. Since that time the respondent's New South Wales solicitors sought from the applicant's solicitors in that State further and better particulars of the allegations of the applicant and a list of documents, but despite several letters neither request has yet been complied with.

1. The applicant seeks leave to proceed on the basis that his own inactivity since 1980, and that of his brother between 1982 and August 1986, evidences a mutual understanding, albeit tacit, to leave matters in abeyance indefinitely and that as the respondent has chosen to resurrect his New South Wales action it is just and equitable that the applicant should be permitted to proceed with his action in Tasmania. Furthermore, he submits that although he has raised as issues in the New South Wales proceedings those the subject of the Tasmanian litigation he may suffer prejudice if he is required to confine his pursuit of those issues to the action in New South Wales and is denied the opportunity of using the action in this State as a vehicle for pursuing them. This prejudice is said to lie in the fact that much of the evidence relevant to those issues may derive from Tasmanian sources which it may be more convenient to place before a Tasmanian forum, the possibility that the New South Wales court may not regard itself as having jurisdiction to try some of the issues raised and in the possibility that some special defence, for example a statute of limitations, may be available to the respondent in that State, but not in this State.

1. There is in my view no sound basis for concluding that there was any such mutual understanding. The applicant instituted his proceedings in April 1980 and, on being met with a request for further and better particulars and discovery in June of that year, simply failed to respond. When his brother took the initiative of issuing the New South Wales writ some two years' later the applicant still did nothing. It is true that the respondent lapsed into inactivity for four years thereafter, but I would not be prepared to infer that his inactivity emanated from any intention on his part that he should thereby encourage the applicant to proceed no further with the litigation. Still less can I infer any understanding between them to let sleeping dogs lie.

1. Is it just and equitable to allow this stale litigation to proceed in this State in the present circumstances? All the issues between the parties have been raised in the New South Wales action. On the face of it there appears no reason why they should not be resolved in that action. No argument was advanced why any issue should not be cognizable in the Supreme Court of New South Wales, nor was any reason advanced for supposing that any issue raised by the applicant might be met by a defence unique to New South Wales. On the other hand, prima facie, it would seem undesirable that two lots of litigation involving the same issues should proceed in separate States of the Commonwealth.

1. It is said that there is potential for prejudice in that much of the evidence may have to come from Tasmanian sources and that as the applicant has not had a detailed reply to his counterclaim he does not at this stage know to what extent he would be put to proof of his allegations. The kind of evidence referred to in argument appeared to me to a considerable extent to be of a relatively formal nature (eg, the dealings with the Public Trustee), and I would have thought that a notice to admit would encourage the admission of that kind of evidence and reduce the likelihood of prejudice. If there is controversial evidence not likely to be thus admitted, I would have thought that could even now be foreseen and identified. As it is, this potential for prejudice is almost wholly speculative. Obviously, direct evidence of the dealings between the parties will be required and it will be more inconvenient for the one resident outside the State where the action proceeds than for the other, but nothing concrete has been demonstrated why it is just that the applicant should have that advantage rather than the respondent. On the contrary, an affidavit filed by the respondent detailing certain health problems from which he suffers would, as matters stand, tip the scales in his favour to my mind.

1. I accept the submission of Mr Cranswick QC for the respondent that a ruling adverse to the applicant does not have the effect of terminating these proceedings, as would be the case if they had been struck out for want of prosecution. If circumstances change so that real prejudice to the applicant can be identified, he can again apply for leave to proceed. On the material put before me, however, I am not prepared to grant him leave on this application.