Plenty & Plenty v Pattinson, Hodby & Hodby No. Scgrg-82-1230 Judgment No. S6695

[1998] SASC 6695

PLENTY & PLENTY V PATTINSON, HODBY AND HODBY

Civil

LANDER J

The Application

This is an application by the plaintiffs in this action for me to disqualify myself from the further hearing of any interlocutory matter of the trial of these proceedings.

The application was made orally but was supported by an affidavit of the male plaintiff together with a further affidavit from the female plaintiff simply confirming the contents of the affidavit of her husband.

The application was that I disqualify myself on the ground that there exists a reasonable apprehension of bias.

I think the procedure adopted by the plaintiffs in making the application orally and not bringing it in a formal written application is appropriate. 

No order is sought from me asking me to disqualify myself but merely a request that I should desist hearing.  It would not be appropriate for me to enter an order determining that I should not hear the matter so in those circumstances it would not be appropriate to bring in a formal application.  An oral application of the kind brought by the plaintiffs seems to me to be the appropriate procedure in the circumstances; Barton v Walker (1979) 2 NSWLR 740 and Rajskiv v Wood (1989) 18 NSWLR 512.

The affidavit in support of the application requests me to disqualify myself on the ground “that there exists a reasonable apprehension of bias”.

Before going to the particulars in the affidavit I must mention some background information.

Case Management

Prior to 1995 Mr and Mrs Plenty were involved as plaintiffs in a number of cases in this Court.  In 1995 I was asked by the Chief Justice to assume the management of this action and a number of other actions in which Mr and Mrs Plenty were plaintiffs, for the purpose of dealing with any outstanding interlocutory matters and ensuring that the matter was ready for trial and hearing the trial of this and those other actions.

I first assumed management of these actions on 1 August 1996.  I am not exactly sure in how many actions Mr and Mrs Plenty were then involved but I think it was probably in the order of eight actions.  I have attempted to manage this action and those other matters to this point.  Some of those other actions have now been resolved.  One has been heard by a Master pursuant to a direction of the Full Court of this Court.  The remaining actions are still to be heard.  I have not yet heard any trial in which Mr and Mrs Plenty are involved.

I have heard a number of interlocutory applications in these proceedings and other proceedings.  I have given judgments and directions in relation to those interlocutory matters.

I have had in mind in the management of these proceedings, as I suppose every judge does in the management of any proceedings, the purpose of the Supreme Court Rules.

Rule 2.01 of the Supreme Court Rules provides:

“These Rules are made for the purpose of establishing orderly procedures for the conduct of litigation in the Court and of promoting the just and efficient determination of such litigation.  They are not intended to defeat a proper claim or defence of a litigant who is genuinely endeavouring to comply with the procedures of the Court, and are to be interpreted and applied with the above purpose in view.”

I have also had regard to the system of case flow management, a principle which underlies the 1987 Rules.  The objects of case flow management are provided for in r2.02 which itself provides:

“With the object of:
                  (a)     promoting the just determination of litigation;
                  (b)     disposing efficiently of the business of the Court;

(c)maximising the efficient use of available judicial and administrative resources; and

(d)facilitating the timely disposal of business at a cost affordable by parties;

......... actions in the Court will be managed and supervised in accordance with a system of positive case flow management.  These Rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the above objects.”

Those two Rules identify the principles which underlie the Rules Of Court and the law of procedure.

The Rules of course are made for the benefit and the protection of the parties.  They benefit the parties by providing a system whereby the parties can proceed in an orderly fashion to the trial process.  In the litigation process they protect parties from surprise, breaches of natural justice, delay and cost.

There are two competing principles in the law of procedure.  The first is that the Rules Of Court are promulgated for the purpose of providing an expeditious and relatively cheap method of litigation.  To that end the Rules Of Court must be obeyed because if they are not obeyed then opposing parties will be put to cost, expense and delay which they ought not to suffer.

Whilst the Rules Of Court ought to be obeyed that gives rise to tension with the second principle which is identified in r2.01, namely that ordinarily the procedures of the Court ought not be promoted in such a way as to defeat a proper claim or defence of a litigant especially for those who are genuinely endeavouring to comply with the procedures of the Court.

The fact of the matter is that in the management of proceedings neither principle can be absolute.  In some cases the first principle must give way to the second and in others the second must give way to the first.  It depends upon the circumstances; Costellow v Somerset County Council (1993) 1 All ER 952 at 959.

I have attempted to manage these matters and especially this matter in accordance with those principles.

The management of this matter has not been made easier by the fact that from time to time Mr and Mrs Plenty have been unrepresented.  For the purpose of this application and other applications made recently they have been represented but from time to time they have conducted these proceedings themselves.  They have also from time to time had disputes with former solicitors which have interfered with the progress of this matter.

There is no doubt that the conduct of litigation for an unrepresented party is difficult.  It is difficult to understand the procedures and it is often difficult to understand how the procedures are applied both by the opposing party and by the Court. 

It must be difficult for unrepresented litigants to appear in circumstances where they are seeking to enforce their rights where the opposing party and court have a familiarity with the procedures which they do not enjoy. 

However, the Rules Of Court must also be obeyed by an unrepresented litigant.  It is not permissible for a party to simply claim that a lack of representation should put the opposing party to greater cost, expense and delay.  Usually unrepresented parties are given assistance by the Court and are given latitude not enjoyed by persons who are represented by competent legal practitioners.  But it is still the case that an unrepresented party must do the best that he or she can to ensure that he or she complies with the procedures of the Court.

Further, in circumstances where a represented party becomes in dispute with their legal advisers that party must still ensure as best as that party can that the matter proceeds so that the opposing party is not put to cost, expense and delay. 

It is not only the party seeking to enforce their rights who are entitled to justice in the courts.  All parties are.  A defendant is entitled to justice the same as a plaintiff.  Moreover, a defendant is entitled to expect that the court will ensure that the plaintiff will conduct the proceedings in an orderly and expeditious fashion so that the defendant is not put to greater expense and delay than he or she otherwise would.

From time to time it is necessary for a court to comment upon interlocutory procedures.  This is especially so when the proceedings are judge managed.  It is necessary for directions to be given by the court to parties and in giving those directions sometimes it is necessary for the court to indicate its disapproval of the way in which the litigation has been conducted.

It is unfortunately almost commonplace that a court will be called upon to admonish a party for a party’s delay in the conduct of proceedings and in a party’s responses to directions of the court.  In judge managed litigation this happens frequently.  The reason why it occurs is because often the parties and their legal advisers are under pressures which do not allow them to respond as readily as they should to orders and directions of the court. 

The court however does not take the view that simply because there has not been a response within the time prescribed to a particular direction that that parties’ substantive rights must be foregone.  That would be to fail to balance those two competing principles to which I have referred.  Instead of ruling that a party’s substantive rights are foregone it may be necessary for the judge or the master who has management of the action to admonish the party for the failure to comply with the direction and in some cases to punish that party by mulcting that party in costs.  That is all part of the management of litigation to trial.

It does not mean that because a master or judge has commented adversely on a party’s conduct in the litigation to trial that the court or the judge has reached a conclusion that that party is a party without credit or without credibility.

The court has an obligation to manage litigation so that both parties receive justice in the interlocutory stages.

Plenty and Plenty v Seventh Day Adventist Church

Before I move to this particular litigation there is one other relevant matter I should address.  The plaintiffs are also plaintiffs in an action against the Seventh Day Adventist Church.  They commenced those proceedings against the Church on 28 June 1982 seeking a declaration and claiming damages against the defendant.  It is not necessary for the purpose of these reasons to have any understanding of those proceedings.

Those proceedings have also been subject to my management.  Those proceedings have also not yet reached trial.  It is enough to notice in respect of those proceedings that they have been extant nearly sixteen years without having been heard.

A particular procedural matter came before the Court in relation to those proceedings which was heard on 18 December 1986.  During argument I gave leave to the plaintiffs, who were unrepresented, to tender a written argument in response to an argument put by counsel for the defendant.

In purported pursuance of that leave they claimed in their written outline that I had shown bias in the proceedings.  They did not put the argument that it was a perception of bias, but that I had exhibited bias in the conduct of the proceedings.  I make no criticism of that because it would be difficult for an unrepresented party to understand the difference between a perception of bias and bias. 

In any event after receiving the written response I indicated to them that if they wished to apply for me to disqualify myself they ought to make such an application.  They made an application and I allowed the plaintiffs to supplement their application by oral argument.

I will not detail in these reasons the matters which were raised in support of that application.  Principally there were two matters.  The first was that I had previously appeared as counsel in the action.  The second reason was that there were some things that I had said during argument to interlocutory matters which evidenced, so it was argued, bias on my part.

On 29 April 1997 I ruled on that application and refused to disqualify myself from the further hearing of the matter; Plenty and Plenty v Seventh Day Adventist Church (1997) 190 LSJS 1. The reasons for judgment in that matter are relied upon as evidence of an attitude on my part which might give rise to a perception of bias. I will return to these reasons.

History Of These Proceedings

On 12 May 1982 the plaintiffs commenced these proceedings by writ of summons.  The defendants identified in the writ are Keith William Pattinson, Ross D Hodby and Associates and Hodby Nominees Pty Ltd.  Annexed to the Writ of Summons is a Statement of Claim.

The plaintiffs’ claim, as pleaded, is that they were the mortgagees by virtue of a registered memorandum of mortgage over certain property at 31-33 Park Terrace, Salisbury.  They say that they granted that mortgage to the mortgagors Graham John Besson and Paul Leon Smith in June 1979 in reliance upon a report given by the first defendant of the full and fair market value of the property.  It is alleged that the first defendant offered the opinion in that report that the value of the property was $185,000 when in fact it was $125,000.  They took the property as security for a loan of $123,000.

It is claimed that the first defendant was negligent in the preparation of the report.

It is further claimed that the second named defendant owed a duty to exercise due care, skill and diligence in carrying out its duties as agents of the plaintiffs.  It is alleged that the second named defendant was negligent in the carrying out of its duties as agents of the plaintiff and failed to advise the plaintiffs of matters of which it was aware, namely: that the report was inaccurate; that the value of the property was not greater than $125,000; and that the property was inadequate and insufficient security for the loan of $123,000.

It is claimed also that as a consequence of the second defendant’s negligence the sum of $123,000 was lent. 

It is also claimed that the third defendant was negligent in carrying out its duties as agents of the plaintiffs.  The particulars of negligence alleged against the third defendant are the same as those alleged against the second defendant.

It is not entirely clear how it is said that the second and third defendants are alleged to have become the agents of the plaintiff and indeed how it is that a tortious duty of care arose.  Presumably it arose out of some contractual arrangement between the plaintiff and the second and third defendants but that is not pleaded.

The statement of claim discloses that the plaintiffs ultimately realised the sum of $99,008.71 after selling the property as a consequence of the default of the mortgagors.  The plaintiffs claim damages.

The statement of claim does not quantify the plaintiffs’ damages.  The plaintiffs claim damages for negligence against each of the defendants but the Statement of Claim does not mention the amount which is claimed.  It may be assumed that the amount claimed is the difference between the amount advanced and the amount realised together with any consequential expenses and I suppose Hungerford v Walker damages, although no claim is made under that head.  The plaintiffs do claim interest and costs.

The Statement of Claim is still in the same form as it was in 1982.  There has been a recent application to amend the statement of claim but I have not ruled upon that application because this application overtook that previous application.  In the event that I disqualify myself then, of course, some other Judge or Master will have to hear the plaintiffs’ application to amend their Statement of Claim.  In the event that I do not disqualify myself then I will be in a position to deliver my judgment in respect of that matter.

The first defendant entered an appearance on 28 June 1982 and filed a defence on 2 July 1982.  A reply was filed to that defence on 28 September 1982 simply putting in issue the matters raised in the defence.

On 6 September 1982 a certificate was filed that no appearance had been entered for and on behalf of the second and third named defendants.  Interlocutory judgment was obtained against only the second defendant on 1 October 1982.  On 28 October 1982 an application was made to set aside that interlocutory judgment.  On 11 January 1983 Master Teasdale Smith ordered that the judgment against the second named defendant be set aside and leave be given to that defendant to file and deliver a defence within twenty-eight days of that order.

On 10 February 1983 defences were filed by the second and third named defendants.

On 14 June 1983 a contribution notice was exchanged between the second and third named defendants on the one hand and the first named defendant on the other hand.

During this period of time the parties filed various lists of documents.

The Plaintiffs’ First Solicitors

Sometime in about the middle of 1983 the plaintiffs brought an action against a partner of the firm of solicitors which was then acting for the plaintiffs in these proceedings.  They claimed that the partner had been guilty of illegal and unprofessional conduct, attempted fraud and claimed damages and an order that the partner be struck from the role of practitioners.  The solicitors for the plaintiffs advised the plaintiffs that in those circumstances it would be inappropriate for them to act for them.  However the plaintiffs refused to allow the solicitors to cease to act claiming that it was for them to terminate their instructions and that they refused to do so.  On 28 September 1983 the solicitors issued a summons seeking a declaration that they had ceased to be the solicitors acting for the plaintiffs in the within action.

That application was opposed and the plaintiffs filed a number of affidavits in opposition to the application and as a consequence a number of affidavits were filed by the solicitors seeking a declaration that they had ceased to act.  The matter was heard by Master Lunn QC (as he then was) and on 13 August 1984 he made an order that “the solicitors have ceased to act as solicitors for the plaintiffs herein”.

At the same time he gave the plaintiffs an extension of time within which to appeal.  The plaintiffs took up that opportunity and on 17 October 1984 the appeal was heard by Matheson J.  He dismissed the appeal and ordered that the plaintiffs pay the solicitors’ costs.

More than a year was taken in resolving the argument as to whether the plaintiffs’ solicitors could cease to act.

During this time the only thing that had occurred in relation to the proceedings themselves was that, on 12 October 1984, the second and third named defendants filed and served a statement of claim on their contribution proceedings directed to the first named defendant.

The plaintiffs were also dissatisfied with the decision of Matheson J and they sought leave to appeal from that Judge to the Full Court.  On 23 November 1984 his Honour gave leave to appeal to the Full Court and consequent upon that leave the plaintiffs filed a notice of motion to appeal to the Full Court.

The matter was not set down until 1 April 1985.  On 10 April 1985 the matter came before Jacobs, Legoe and O’Loughlin JJ.  The Full Court dismissed the appeal and ordered the plaintiffs pay their solicitors’ costs.

History Continued

On 18 June 1985 the plaintiffs filed a notice that they were acting in person.

On 5 August 1985 the plaintiffs made an application to strike out the first defendant’s defence.  The application was made upon the basis that the first defendant had not filed “a formal Discovery of Documents”.

The fate of that application is not entirely clear but I have supposed that application was dismissed because in fact Mr Pattinson had filed his List of Documents on 8 November 1982. 

In September 1985 the first defendant filed a defence to the second and third defendants’ statement of claim on the contribution notice.  In October 1985 the plaintiffs filed interrogatories directed to the second and third defendants and on 14 November 1985 the second and third defendants filed interrogatories delivered to the plaintiffs.  The plaintiffs objected to some of those interrogatories.  The third named defendant answered the interrogatories delivered to him.

At the request of the second and third defendants the plaintiffs were required to give further and better particulars on 27 March 1986.  On the same date the second and third defendants were given leave to deliver amended interrogatories directed to the plaintiffs.

A number of applications were made by different parties in relation to interrogatories during late 1985 and early 1986 and applications and arguments in relation to interrogatories continued throughout 1986 and into 1987.

In November 1986 the plaintiffs appealed against an order for costs made by Master Bowen Pain on one of those interlocutory applications.  That appeal was dismissed by Olsson J.

On 26 August 1987 the plaintiffs applied for an order, pursuant to r31.02, that the Official Receiver be added as an additional defendant to the action.  The application was supported by an affidavit sworn by Mr and Mrs Plenty.  The basis of the application was that as at 3 June 1974 the second defendant, a business name, had four proprietors, Ross Daniel Hodby, Helen Elizabeth Hodby, Dean Francis Hodby and Elizabeth Joan Hodby.  They deposed that on 30 June 1979 Helen Elizabeth Hodby and Elizabeth Joan Hodby, the wives of the two male proprietors, Ross Daniel Hodby and Dean Francis Hodby had ceased to carry on the business.  It was further asserted that on 24 September 1980 Dean Francis Hodby had also ceased to carry on in the business. It was said that the business changed to Domitix Pty Ltd.  It was therefore asserted that Ross Daniel Hodby had remained the single proprietor of the business name after 24 September 1980.  Those dates are not irrelevant.  The allegation is that the moneys were lent in June 1979 and on the strength of a report dated 30 April 1979.  Indeed it was asserted in this affidavit “that the relevant date of the claim of negligence is on or about April-May.”

It was claimed in an affidavit in support of this application that on 2 June 1986 Ross Daniel Hodby ceased to carry on the business.

It was also claimed that the third named defendant was formed “on or about the 8th day of May 1975 in the names of Ross Daniel Hodby and Dean Francis Hodby”.  I think it is meant that Ross Daniel Hodby and Dean Francis Hodby were the shareholders and possibly the directors of the third defendant.  The plaintiffs deposed that on 1 September 1980 Dean Francis Hodby resigned and that Helen Elizabeth Hodby became a director and secretary of the third defendant.

Lastly it was claimed that Ross Daniel Hodby had become a bankrupt and therefore the plaintiffs sought leave of the Court pursuant to “Order 31.02 of the Supreme Court Rules (1987) that the Official Receiver be added as an additional defendant to this action.”

On 1 October 1987 Master Bowen Pain refused the plaintiffs’ application to add the Official Receiver as a defendant to the action.  He extended the time within which an appeal might be lodged from his decision by fourteen days.

On 16 October 1987 the plaintiffs filed an application seeking orders.

“2That pursuant to Rule 36.04 of the Supreme Court Rules 1987 the abovenamed second defendant be directed to file an Appearance in the names of the individual partners.

3Or, that in the alternative, Rule 53.03 be brought into operation to amend the Appearance filed.”

On 3 December 1987 the application was adjourned until 21 January 1988.  On that day the application appears to have been adjourned sine die.  The note to the fiat reads:

“There being no appearance for the plaintiffs and on the advice of the solicitors for the second named defendant that they only have instructions to enter an appearance on behalf of three members of the partnership order:-

1.I adjourn in further consideration of the plaintiff’s application for further directions.”

The Plaintiffs’ Second Solicitors

On 30 November 1987 Messrs Mollison Litchfield filed a notice of acting on behalf of the plaintiffs.          On 15 January 1988 the plaintiffs complained to the Legal Practitioners Complaints Committee concerning the conduct of a solicitor employed by Mollison Litchfield.  The complaint included a claim of fraud.  On 17 February 1988 Messrs Mollison Litchfield advised Mr and Mrs Plenty that they were no longer prepared to act on their behalf.  On 19 March 1988 they applied for an order declaring that they had ceased to act as solicitors for the plaintiffs.

The plaintiffs opposed an application for a declaration that Messrs Mollison Litchfield had ceased to act and filed an affidavit in opposition to that application.  In the affidavit they said that no good cause had been shown for the solicitors to be allowed to cease to act.

On 21 April 1988 Master Bowen Pain gave reasons for allowing those solicitors to have a declaration that they have ceased to be the solicitors acting for the plaintiffs in the matter.  He ordered the plaintiffs pay the solicitors’ costs.

By notice of appeal dated 5 May 1988 the plaintiffs appealed from the decision of the Master.

In the meantime while all of this was occurring a notice of change of address for service was filed by Dean Francis Hodby, Elizabeth Joan Hodby and Helen Elizabeth Hodby being three of the four persons who at the material times were the proprietors of the second named defendant.  They instructed Mr Kemp of Kemp & Co.

On 26 May 1988 the plaintiffs sought a stay of the proceedings pending the determination of the appeal from Master Bowen Pain.

In an affidavit sworn in support of the application for a stay the plaintiffs deposed.

“4..... This is the second time that this Court has granted our solicitors in this matter such a declaration, without a proper “good cause”, and further, this Court has also granted such declarations for other solicitors in other matters we have before this Court without a proper “good cause”, leaving us in an absurd and iniquitous situation, and destroying any meaningful and decipherable, solicitor/client contract, to protect the interests of the parties.

5. We had decided to engage a solicitor in this matter for the second time, in the light of Master Lunn Q.C.’s Commentary on the new Supreme Court Rules, 1987, which has left some “daylight” for clients, in that a solicitor is required to have a “good cause” to be eligable (sic) for a declaration from the Court.

6...... But the decision of Master Bowen Pain has left the new Supreme Court Rules impracticle (sic) and unworkable to have legal representation.”

The stay was sought so that the plaintiffs could appeal from a decision of a Master declaring that their solicitors had ceased to act.

It was a matter, of course, which did not concern the defendants.

On 15 June 1988 acting Master Teasdale Smith made an order staying the action until 31 August 1988 and adjourned a further hearing of the matter until 1 September 1988.  On 1 September 1988 the matter was further adjourned to 2 February 1989 and then further adjourned until 15 June 1989.  I cannot find any order setting aside the stay but it would appear that the parties treated the action as stayed until about 15 June 1989.

History Continued

On 14 June 1988 Messrs Herriman, Gilchrist and Connell sought a declaration that they had ceased to be the solicitors for the third known defendant.

Mr Peter Herriman (as he then was) swore an affidavit in support of the application.  In that affidavit he said:

“3..... I have received written instructions from HELEN ELIZABETH HODBY, a Director of the third defendant company to cease to act, a copy of which is now produced to me and marked with the letters “PAJH1”.

4.     I have on the 8th day of May 1988 caused a search to be made of the defendant company and that search discloses its registered office remains at 24 Divett Place, Adelaide and that its directors are Helen Elizabeth Hodby and Ross Daniel Hodby (who is now, to my knowledge, a bankrupt).

5...... I am informed and do verily believe there is no current office of the company nor is there any Director or other office of the third named defendant company capable of instructing me in the defence of this action.”

Annexed to Mr Herriman’s affidavit was a document headed “Instructions to Solicitor”.

That document is an instruction from Helen Elizabeth Hodby on behalf of Hodby Nominees Pty Ltd instructing Mr Herriman and his firm to cease to act for the company and informing him:

“(a).. The only shareholders of the Company are me and the Official Receiver as trustee of the estate of my husband Ross Daniel Hodby;

(b)... I am informed by Solicitors acting for me in the proceedings in my personal capacity that the Official Receiver is not prepared to become concerned in the action;

(c)... I have been advised that no injustice will befall the defendants “Ross D Hodby and Associates” by virtue of the Company not being represented in the proceedings;

(d)... The Company’s liability substantially exceed its assets.”

On 8 July 1988 Master Lunn QC made a declaration that Messrs Herriman, McEvoy and Gilchrist “have ceased to be the solicitors acting for the third named defendant in the action.”

The Appeals In Relation To The Plaintiffs’ Second Solicitors

On 14 July 1988 Bollen J dismissed the appeal from the Master.  On 26 July 1988 the plaintiff made an ex parte application for leave to appeal to the Full Court for the dismissal by Bollen J of the appeal.  On 18 August 1988 his Honour gave leave.

On 21 August 1988 the plaintiffs filed a notice of appeal to the Full Court.

The second defendant was given leave to amend its defence on 18 May 1990. 

The plaintiffs’ appeal came on before the Full Court consisting of Jacobs ACJ, Mohr and Duggan JJ on 1 May 1989 and the Full Court dismissed the plaintiffs’ appeal.

History Continued

On 20 February 1990 the plaintiffs made an application that an order made by Master Boehm on 19 April 1988 be revoked or varied and that an order be made prohibiting and/or barring the first, second and third named defendants from raising any issue in their defence or at trial in regard to the plaintiffs failing (sic) to mitigate their damages in relation to the mortgagors of the memorandum of mortgage.

On 27 April 1990 the defendant sought to amend their defences to plead that the plaintiffs had failed to mitigate their damages by failing to seek recovery from the mortgagors Besson and Smith.

On 18 May 1990 Master Bohem allowed the first and second defendants to amend their defences to plead a failure on behalf of the plaintiffs to mitigate their damages.

The plaintiffs appealed from that decision.  At the same time they also sought an extension of time within which to appeal from previous decisions given by the Master in relation to pleadings on 11 June 1987 and 19 April 1988.  Those further orders were appealed against because they were related to the appeal against Master Bohem’s orders of 18 May 1990.

A notice of appeal was lodged on 18 July 1990.  The matter came before Mullighan J on 22 February 1991.  He dismissed the appeal.  On 6 March 1991 the plaintiffs sought leave to appeal from the decision of Justice Mullighan. 

On 12 July 1991 the second defendant made an application that the matter be dismissed for want of prosecution.  Among the complaints made by the second defendant was a failure on the part of the plaintiffs to proceed with an appeal from the decision of Mullighan J.  Further it was complained that Messrs Mellor Olsson had advised that they were acting for the plaintiffs but had not provided any notice they were acting.

On 23 July 1991 Messrs Mellors advised that they were now acting for the plaintiffs. 

Nothing much seems to have happened until an affidavit was filed by Mr Plenty on 22 June 1992 in which he deposed to various communications between the plaintiffs and their solicitor Mr Mellor of Mellor Olsson and in relation to an action brought by the plaintiffs against Messrs Besson and Smith.

Again nothing much happened for a year until on 29 June 1993 a further affidavit was sworn by Mr and Mrs Plenty.  In that affidavit they complained about the decision of Mullighan J and communications again they had had with their solicitors.

They asserted in that affidavit:

“This matter has plagued this action now since November, 1988, to where the respective damages have increased approximately another $292,156 to this date, and the present situation is allowing the defendants to defeat the course of justice, in not allowing us to bring them to account for the real question of their negligence, when pursuant to the rules of mitigation, we were never under any obligation to embark upon any alternative litigation to protect the defendants from their own negligence.”

During this time apparently the plaintiffs were proceeding against Messrs Besson and Smith pursuant to an arrangement with the defendants that they should first exhaust all rights that they had against those other parties before proceeding with this matter.

On 31 September 1993 Mr Mellor swore an affidavit exhibiting a deed made between the plaintiffs, the first defendant and three of the four proprietors of the second defendant.  The third defendant was not a party to the deed.  The deed in its recitals shows that the defendants desired that the plaintiffs take action against Messrs Besson and Smith and to that end had indemnified Mr and Mrs Plenty in respect of the costs of such an action.  The indemnity was to the extent of $5,000 up until the date of trial.

Action had been brought by the plaintiffs against Messrs Besson and Smith on 28 January 1993 and the proceedings had been served on Mr Besson on 12 March 1993.  Mr Smith was never served.

Mr Besson appeared and contended that he had a good defence upon the basis that the proceedings had not been brought within the time prescribed by the Limitations Of Actions Act.  He further asserted, that in any event, he was completely without funds and unable to meet any judgment recorded against him.

Mr Mellor advised the solicitors acting for the defendant of those matters and on 29 July 1993 the solicitors acting for the first defendant advised Messrs Mellor Olsson that they required further efforts to be made to locate Mr Smith.  It was also put that the first defendant believed that the financial positions of Messrs Besson and Smith could not be adequately ascertained other than by way of bankruptcy proceedings following upon a judgment.

Mr Mellor further deposed that Mr Smith attended an interlocutory hearing.  He said that he had made an application on behalf of the plaintiffs to renew the summons and extend time for the service of the summons upon Mr Smith.  He had also made application to the Court for the determination of the preliminary point on the Limitations Of Actions Act.

The Plaintiffs’ Third Solicitors

However the next application is an application by Messrs Mellor Olsson was supported by an affidavit of Mr Timothy Mellor of the firm seeking a declaration that Mellor Olsson have ceased to act for the plaintiffs. 

The facts leading up to the application are contained in my reasons for judgment in Plenty and Plenty v Seventh Day Adventist Church (Unreported, Supreme Court 1 August 1996, Judgment No. S5762).

In those reasons I said:

“A conflict arose between Mr and Mrs Plenty and their solicitors either in late December of 1995 or in early January of 1996.   As a result of that conflict Mr and Mrs Plenty wrote to their solicitors by letter dated 3 January 1996.  That letter contained a number of assertions and allegations relating to the conduct of the solicitors and junior counsel who had been retained by those solicitors. 

On 21 February 1996 proceedings were commenced in this court in action number 480/96 in which Mr and Mrs Plenty, acting for themselves were plaintiffs, and their solicitors, Mellor Olsson, were defendants.  Those proceedings, which were not and have not been served, sought a number of declarations in relation to the conduct of their solicitors to that point of time.   It is clear enough from those proceedings that at that time, February 1996, there was a matter of dispute between Mr and Mrs Plenty and their solicitors.”

In support of the proceedings in relation to Messrs Mellor Olsson, Mr and Mrs Plenty swore an affidavit dated 20 February 1996.  The affidavit discloses that they complained about their solicitors to the Legal Practitioners Complaints Committee and that they maintained the complaints that they made about their solicitors in their letter of 3 January 1996.  They also detail other complaints in relation to the solicitors’ conduct in relation to the specific actions.

Notwithstanding that the proceedings were not served the fact of the proceedings was brought to the attention of Mr Mellor, who was the partner acting for Mr and Mrs Plenty, at a conference which he had with them on 26 February 1996.  About a week later Mr and Mrs Plenty made a complaint to the senior partner of the firm of solicitors’ in relation to the conduct of their affairs by that firm.

That complaint was answered by the senior partner, Mr Olsson, who suggested they ought to have addressed their specific complaints to the partner in charge, and the solicitor who had the day to day management of their litigation.

Further correspondence was exchanged between Mr and Mrs Plenty and their solicitors, which culminated in a letter of 15 April 1996 from Messrs Mellor Olsson to them, in which those solicitors said:

“We propose now to make application to the Court to be removed as the solicitors acting in these matters.”

The reasons for the application were set out in the letter itself, but I will not repeat those reasons here.

It is clear enough that at least after 15 April and probably earlier than that, Messrs Mellor Olsson refused to act for Mr and Mrs Plenty in respect of any of the matters for which they had been engaged.  Their refusal to act was further evidenced by the application to the Court for a declaration that they had ceased to be the solicitors of the plaintiffs in the action.

On 13 June 1996 Judge Anderson, a Master of this Court, made a declaration that Messrs Mellor Olsson had ceased to be the solicitors acting for the plaintiffs in this and other matters.

The plaintiffs appealed.  That appeal came before me and on 1 August 1996 I gave ex tempore reasons for my order dismissing the appeal; Plenty and Plenty v Seventh Day Adventist Church (supra).

Management Since August 1996

Apart from the appeal relating to the solicitors ceasing to act the matter first came before me on 2 October 1996.  The parties explained to me at that time that following upon the decision of Mullighan J, which had been given on 22 February 1991, the plaintiffs and the defendants had entered into a deed, whereby the defendants had financed the plaintiffs to the extent of the sum of $5,000, whereby they had agreed that the plaintiffs would bring proceedings against Messrs Besson and Smith for recovery of the difference between the amount advanced and the amount realised on sale.  The defendants suggested that this action needed to await the disposal of the claim brought by Mr and Mrs Plenty against Besson.

Mr Plenty advised me, at that time, that they were having a little trouble in trying to negotiate with the solicitor acting for Mr Besson.  He said that it was claimed that Mr Besson had suffered a nervous breakdown and the break up of his marriage by reason of these proceedings.

After some further discussion in relation to the action against Messrs Besson and Smith and the prospects of that matter being settled, I said this:

“It needs to be done urgently.  It is not fair to the parties that they wait whilst matters drift on and it becomes expensive for all of the parties and most unsatisfactory.”

The other matter mentioned at that directions hearing was a failure by the plaintiffs to answer an interrogatory pursuant to an order made on 21 October 1987. 

Shortly after that directions hearing Mr and Mrs Plenty filed an affidavit in which they said:

“9.In March, 1991 our solicitors, Mellor Olsson, took over the conduct of this action, and because of Mullighan J’s judgement of February 22nd, 1991 and on the advice of our solicitors, we once again pursued an agreement with the abovenamed defendants in regard to the protection of this action in pursuing their indemnity offer, and through no fault of our own, it was not until the 29th July, 1992, that this agreement was finalized.

10.... On 28th January, 1993, Mellor Olsson commenced an action in the Supreme Court against the mortgagors  Mr Besson and Mr Smith.

11.... The end result of that prosecution to this point of time is that:-

......... [1]     Mr Smith is a bankrupt and;

[2]Mr Besson is allegedly impecunious, in illhealth and has gone through a divorce, (which he is stating has been caused by the action against him, namely Supreme Court Action No. 118 of 1993).

12.... The over all end result of the prosecution against Mr Besson and Mr Smith is a total injustice to ourselves in that:-

[1]the abovenamed defendants amendments to their respective defences filed on the 23rd May, 1990, are res inter alios acta, and cannot be pleaded in mitigation, and are therefore illegal;

[2]the abovenamed defendants have abused the process of the Court in that

(a)they never pleaded how and to what extent we failed to mitigate our damages against them;

(b)they have misled the Court and ourselves as to the mortgagors being men of substance, and;

(c)failed in their undertaking regarding the indemnity, and/or, their property to Mr Eaton.

[3]the Court processes has failed to protect us from the injustice, the prejudice and the potential prejudice to the prosecution of this action, inter alia, by delay, embarrassment, costs, unrecognizable costs to ourselves, multiplicity of actions, being forced to waive legal professional privilege material and rights, solicitors wanting to “double dip”, being subjected to unconscionable, harsh, oppressive and unjust etc., “treatment”, and oppressively and contemptuously treated by the Court, even in the answering of this interrogatory in the first instance by Master Bowen pain, and Judge Mullighan, (after we had competently argued our case to them both, with the correctness of our argument being revealed by the end result.”

The matter next came on on 12 November 1996 when the solicitor for Mr Besson was also present. 

He reported that his client had provided the plaintiffs and the defendants in this action with a statutory declaration from his client as to his financial position.  Mr Besson also had provided the parties with a statement from his bank.  In addition his client had provided the parties with a report from a psychiatrist in relation to his health.

I raised with the defendants whether, in those circumstances, they were prepared to abandon the point they had raised that the plaintiffs had failed to mitigate their damage by failing to take proceedings against Messrs Besson and Smith for the shortfall.

Whilst they were prepared to concede that at that time the plaintiffs had no prospects of any recovery from either of those two persons they were not prepared to abandon an argument that the proceedings ought to have been brought at an earlier time.

There was a further exchange with the parties and during that exchange I advised Mr Plenty that I intended to list the matter for hearing some time in 1997. 

The only other matter raised was the question of whether or not the appearance of the second defendant was inappropriate form.

On 9 December 1996 the plaintiffs filed replies to the amended defences of the first and second defendants describing the second defendants by name in terms:

“Dean Francis Hodby, Elizabeth Joan Hodby and Helen Elizabeth Hodby being three of the four members of the above named firm Ross D Hodby and Associates.”

The matter came before me again on 12 December 1996. Mr Black, Mr Besson’s solicitor, was again present.  He advised the Court that his client had been admitted to Glenside Hospital suffering from a nervous condition. 

Again I raised with the defendants whether in those circumstances they wished to abandon their claim of a failure to mitigate.  I was advised that their clients had some reservations about doing that.  I advised those acting for the defendants that they had to get instructions in relation to this aspect of the claim because the action against Messrs Besson and Smith was precluding this action going forward.

I adjourned the matter for six days to allow the defendants to get instructions in relation to that matter.

Before I adjourned the matter Mr Plenty again raised the question of the appearance of the second defendant.  There followed the following exchange in relation to that matter and the third defendant.

“MR CHRISTOU:...... I’ve filed a notice of acting on behalf of the individual partners who formally traded under the registered firm name.  If the appearance has to be amended, if I have to file an individual appearance then the pleadings must be amended, I presume.

HIS HONOUR:.......... No.  The rules require appearance in a particular form when there are partners of a firm sued.  I think that’s what Mr Plenty is talking about.

MR PLENTY:............. Yes.  They have defended in their individual names yet only given an appearance in the firm name.

HIS HONOUR:.......... You want them to enter appearances in their individual names.

MR PLENTY:............. Yes.

HIS HONOUR:.......... Is that with both defendants.  Both business names?

MR CHRISTOU:........ No, the third defendant I understand has been liquidated.  I don’t act for the third defendant

HIS HONOUR:.......... Who is the third defendant?

MR CHRISTOU:........ Hodby Nominees Pty Ltd in the next pleading.

HIS HONOUR:.......... You acted for?

MR CHRISTOU:........ Ross D Hodby and Associates, second defendant.

HIS HONOUR:.......... There are partners of Ross D Hodby are there?

MR CHRISTOU:........ Ross D Hodby and Associates no longer exist.  They did at the time.

HIS HONOUR:.......... Who have you entered an appearance for?

MR CHRISTOU:........ Ross D Hodby and Associates, in the personal names of each of the partners formally carrying on business as Ross D Hodby and Associates.

HIS HONOUR:.......... Did you enter an appearance?

MR CHRISTOU:........ Just a notice of acting.

HIS HONOUR:.......... Can I ask you to give consideration to the rule which requires the partners to individually appear.

MR PLENTY:............. 3604 I think it might be.

HIS HONOUR:.......... ‘Where persons are sued as partners ... in the name of the firm.’  I think the idea of the rule is so the plaintiff can identify who the partners were at the time for the purposes of execution.  Could you give consideration to that?

MR CHRISTOU:........ Yes.

HIS HONOUR:.......... That doesn’t affect Mr Fricker’s clients, does it?

MR PLENTY:............. No.

HIS HONOUR............ If you can give consideration to that Mr Christou before next Wednesday if you wouldn’t mind.”

In response to that request on 17 December 1996 Mr Christou filed an appearance in the following terms:

“ENTER an appearance in this action for DEAN FRANCIS HODBY, ELIZABETH JOAN HODBY whose residential address is Lot B, Blacktop Road, One Tree Hill and HELEN ELIZABETH HODBY whose residential address is 12 Stafford Street, Clearview, (being three of four members of the abovenamed defendant firm ROSS D HODBY & ASSOCIATES) whose address for service is C/- L.P. Christou of Level 24, Santos House, 91 King William Street Adelaide Sa 5000.”

The appearances clearly show that Mr Christou was acting for only the three proprietors of the firm and did not purport to enter an appearance on behalf of Ross D Hodby himself.

On 18 December 1996, Mr Fricker, on behalf of the first defendant, advised the Court that his instructions were to abandon the defence based on a general failure to mitigate as then pleaded and to plead in lieu that the plaintiffs had failed to mitigate in failing to bring proceedings within a reasonable time.  I asked Mr Fricker and Mr Christou, who made a similar application, to bring into Court an application to amend the defence.  I said in answer to a question from Mr Fricker as to whether that would delay the matter:

“I think not, because, as soon as that is done, I would ask Mr and Mrs Plenty to discontinue against Mr Black’s client, if that is what they wish.  That would then get the pleadings in order, and then the matter can then be considered for trial. 

Mr and Mrs Plenty would want to see the amendment, I think, before they want the matter to go any further.”

Mr Plenty then suggested that perhaps he and Mrs Plenty might want costs against Mr Besson.  I suggested that that would be an unlikely result but in any event their costs were being met by the defendant.  I suggested they approach Messrs Mellor Olsson and ensure that they would not be rendering an account in excess of $5,000.  If that was the case Mr and Mrs Plenty would have no liability for costs and would not need to seek costs from Mr Besson.

The defendants sought to amend their defences to restrict the claim of a failure to mitigate to a defence that the plaintiffs did not take reasonable steps to mitigate any loss within a reasonable time following the sale of the property.  In particular it was claimed the plaintiffs failed within a reasonable time to seek to recover from Messrs Besson and Smith as mortgagors by legal action or otherwise the balance of the principal sum and any interest due.

When the matter was next called on Mr Black attended on behalf of his client Mr Besson.  He inquired of the position in relation to his client.

The following exchange took place between Mr Plenty and myself in relation to that matter and also the question of costs.

“HIS HONOUR:......... What is the position in relation to Mr Black’s client.

MR PLENTY:............. By the fact of the notice for amendment, I think that probably compounds the situation back to the untenableness of us being able to release Mr Besson on that basis.

HIS HONOUR:.......... I thought you were previously prepared to do that?  Previously you had indicated, subject to being satisfied on a couple of things, you were prepared to do that.

MR PLENTY:............. Of course that would have been on the preface that the question of mitigation would be going.  I think that was clearly made apparent by yourself that as long as the question of mitigation remains on foot then we certainly wouldn’t be in a position to release the action against Mr Besson.

HIS HONOUR:.......... You are not prepare to release it now?

MR PLENTY:............. I believe our position would be untenable to do so.

HIS HONOUR:.......... First, tell me what you are prepared to do, and then we will work out why perhaps, because there will be a question of costs, that is all.

MR PLENTY:............. I think the question of costs, because of the situation of the matter of the indemnity of $5,000, my former solicitors gave an undertaking that they would do it for the $5,000.  However, they are no longer here to say where the position goes to for my liability.  Certainly, in addition to that, this present amendment seems to me to regurgitate the whole matter anyway as far as the whole question of mitigation.

HIS HONOUR:.......... Let us deal with it in stages.  The position was, I think, that you were going to make inquiries in relation to the action against Mr Black:  (a) as to your liability to your own solicitors for costs; and (b) as to the liability to Mr Black’s client, if any, as to costs.  Is that right?

MR PLENTY:............. It may be that suggestion there, however, it certainly would be fruitless to seek some undertaking from solicitors of what they’re going to do, because that is a matter that I can’t bind them to, what they are going to do, or what they are not going to do over their own costs.  That is a matter that would be in the offering.

HIS HONOUR:.......... Of course, that’s right, but you were going to make those inquiries, I think, were you not?

MR PLENTY:............. There hasn’t been an opportunity to do so, but I would consider it to be fruitless anyway to make such an inquiry.

HIS HONOUR:.......... The matter was adjourned for you to do that; is that right?

MR PLENTY:............. There was a whole host of matters that the matter was adjourned for.  It was adjourned while the defendants’ application was made.

HIS HONOUR:.......... I appreciate that.  The adjournment was to enable Mr Drikas and Fricker to make the application now presently being made.  But in the matter relating to Mr Black’s client, it was adjourned for you to make inquiries of Mellors in relation to costs.  Do you agree that is right.

MR PLENTY:............. There is a lot of things happened since that date.  I am not fully aware -

HIS HONOUR:.......... Do you not remember?

MR PLENTY:............. No, I don’t remember.

HIS HONOUR:.......... You have not made any inquiries, is that the case?

MR PLENTY:............. No.

HIS HONOUR:.......... You have done nothing to ascertain any liability you have for costs in relation to this appeal?

MR PLENTY:............. No, there has been nothing.

HIS HONOUR:.......... What do you want to do in relation to Mr Black’s client.

MR PLENTY:............. It certainly would appear that the issue at the present time by the present application certainly regurgitates the whole question of resolution over the mitigation, that this goes right back to - goes to the very heart of Mr Besson’s liability.  Certainly I cannot release Mr Besson while that matter is hanging over our head.

HIS HONOUR:.......... Do I understand then that you wish to continue with that action?

MR PLENTY:............. I am certainly not in a position to release Mr Besson from it while the present - because we wish to oppose the present application here.

HIS HONOUR:.......... To amend?

MR PLENTY:............. Yes.

I then said to Mr Black:

“There is your answer.  Your clients will have to stay in the proceedings for the time being.  Is your client in a position to defend these proceedings.”

........................................................ Mr Black complained that the delay was exacerbating his client’s psychiatric condition.  He said that his client was still in hospital receiving intensive care in relation to the psychiatric condition, which his client claimed was as a result of these proceedings.  He asked for an adjournment for six weeks to obtain instructions from his client.

........................................................ I then raised with Mr Fricker and Mr Drikas (who appeared in lieu of Mr Christou on this application) whether they wished to persist with their application to amend their defence to plead a failure to mitigate within a reasonable time.  I pointed out to both parties that if they persisted in that application Mr and Mrs Plenty would oppose it.  In the event both parties indicated they would not persist with the application to amend the defence.

........................................................ The directions hearing concluded with me saying this to the defendants:

“Unless Mr and Mrs Plenty disagree I propose to adjourn it to 12 March at 4.30, indicating at that stage the defendants must state what their position is in relation to mitigation argument and are either prepared to abandon the present plea without amendment in relation to mitigation or inform me that they will press the mitigation argument and that will have repercussions for Mr Black’s client.  You abandoned it entirely or alternatively the case against Mr Black’s client will have to go on.”

I asked Mr Plenty again to ascertain from his former solicitors whether or not they were seeking any amount in excess of the amount for which the plaintiffs were entitled to be indemnified.

On 6 March 1997 Messrs Mellor Olsson wrote to my associate advising her that their claim for costs from Mr and Mrs Plenty was limited to $5,000 for which the defendants were liable by reason of the indemnity under the deed.  They further advised that they would not seek any further costs.

When the matter came on on 12 March 1997 Mr Christou, on behalf of the second defendant, applied to amend his defence by deleting all reference to any failure to mitigate.  On the other hand Mr Fricker, on behalf of the first defendant, initially persisted in his application to amend his defence to limit the failure to mitigate to a period within a reasonable time after the sale of the property subject to the mortgage.  Mr Plenty then advised that if Mr Fricker persisted in his application and wished to maintain a mitigation argument he and his wife would not release Mr Besson from the action which they had brought against him.  After some discussion Mr Fricker withdrew his application to amend. 

After Mr Fricker made that announcement Mr Plenty sought an adjournment to consider his position because he said he had come to Court upon the assumption that the application was being pursued.  Mr Plenty indicated that as the amendment was now not being pursued he might apply to strike out the existing pleading in relation to mitigation.  Instead on 21 March 1997, Mr and Mrs Plenty filed an application to amend their statement of claim to include a claim in the following terms:

“26.Since the commencement of this action the first named defendant has caused the plaintiffs to suffer damages by abuse of process, and/or, by breach of agreement within this action.

They then set out particulars which related to the plea of mitigation and the deed which had been entered into, the argument before Justice Mullighan and his judgment.  The proposed pleading then referred to the claim which had been brought by the plaintiffs against Messrs Besson and Smith.

The plaintiffs’ proposed pleading included the following:

“41.While the action against the mortgagors proceeded, this action was held in abeyance, in the delayed list of this Court for all of 1995 up until October, 1996, and adjourned for long periods of time previously since the commencement of the action against the mortgagors in 1993.”

The proposed pleading then went on to refer to the proposed amendments to which I have already referred brought into Court by the defendants.  It then referred to the abandonment by the second defendant of any claim for mitigation and the persistence of the first defendant in its defence of failure to mitigate.

It concluded in the following term:

“50.The firstnamed defendant, (and the Hodby defendants), compelled, and/or, induced, and/or, persuaded the plaintiffs to bring an action which they alleged would assist the plaintiffs in offsetting the defendants’ allegations that the plaintiffs had failed to mitigate their loss; and that the prosecution of such an action would be a full and final determination of any issue of failure to mitigate, when in fact the action against the said mortgagors has served only to:-

50.1.create coercion, and/or, duress upon the plaintiffs to be an accessory and/or, victims, to harm and to continue to harm another person, namely Besson; to force him to the laws of insolvency and/or bankruptcy, and to harm his health and well being in breach of their own moral ethics and principles;

50.2.create expense, work, emotional distress, worry, trauma, hardship, persecution, frustration, oppression, and embarrassment etc., for the plaintiffs; and

50.3.create enormous delay to the prosecution of this action to a minimal cost to the firstnamed defendant, (and the Hodby defendants), and to the firstnamed defendant’s benefit, (and the Hodby defendants), (if interest on the plaintiffs’ claim against the defendants be not to run while the action against the mortgagors proceeds to a conclusion).

50.4.pervert and defeat the course of justice to the prejudice of the plaintiffs.

51.... By reason of the firstnamed defendant’s refusal to formally withdraw paragraph 9 of his Amended Defence:-

51.1.He has breached the implied terms of the said Deed; that in the plaintiffs carrying out the terms therein, that would be the full and final determination of any issue of failure to mitigate;

53.2.he has caused the plaintiffs to be coereced, to be put under duress to continue to be an accessory to, and/or, the victims of harming and to continue to harm another person namely Besson, to force him to the laws of insolvency, and/or bankruptcy, and to harm his health and well being by placing them in the position of not being able to release Besson from liability and accountability to them in their own protection against the allegations against them in paragraph 9 of the first named defendants’ Amended Defence.

53.3.he has perverted, and defeated the course of justice and prejudiced the plaintiffs; and

53.4.had the plaintiffs known, the circumstances of sub-paragraphs 53.1. 53.3. herein, they would not have entered into such an agreement within the said Deed.

54.... The enducement by the firstnamed defendant to the plaintiffs to instigate and prosecute an action against the mortgagors when the same had little, or no provable chance of success, and his refusal to formally withdraw paragraph 9, of the Amended Defence in breach of the implied terms of the said Deed that the plaintiffs prosecution of such an action would be the full and final determination of any issue of failure to mitigate amounts to, and is, an abuse of process, and/or, is vexatious, and scandalous.

55.    The plaintiffs state that the abuse of process by the firstnamed defendant is deliberate as can be determined by the conduct of the first named defendant in relation to:-

[1]his conduct of the defence to this action, in that he did not allege a failure to mitigate until 1988;

[2]the omission from any List of Documents filed on his behalf of documents providing that the mortgagors were men of substance, and thus the failure to produce any such documentary proof;

[3]his conduct in negotiations with the plaintiffs as to the wording of and execution of the said Deed; and in particular:-

(a)his refusal to negotiate with Christopher Eaton, solicitor for the plaintiffs between the month of June 1989 and the month of January, 1990.

(b)his delay in negotiations between June 1991 and June 1992 with the plaintiffs solicitors Mellor Olsson; and

[4]his refusal to withdraw paragraph 9 of his Amended Defence in good faith of the implied terms of the said Deed, as aforesaid.

[5]his apparent failure to indemnify accounts forwarded to him by the plaintiffs former solicitors Mellor Olsson.

AND THE PLAINTIFFS CLAIM:-

1.[1]     damages against the firstnamed defendant for negligence in the preparation of the said valuation report;

[2]damages against the second named defendant for negligence in the carrying out of its duties as agent for the plaintiffs;

[3]damages against the third named defendant for negligence in the carrying out of its duties as agent for the plaintiffs;

[4]     damages against the first named defendant:-

(a)for pecuniary loss experienced by the plaintiffs by reason of the abuse of process, and/or, breach of contract;

(b)for pain, suffering and loss of enjoyment of life associated with worry, persecution emotional distress, trauma, hardship, frustration oppression and embarrassment etc., physical demands of travel, paper work, etc., associated with litigation against the mortgagors, and this action.

(c)aggravated and/or exemplary damages.

2.Interest against the defendants.

3.Costs against the defendants.

4.Such further or other order as may seem just.”

The matter was called on on the same day.  Mr and Mrs Plenty advised that they wished to amend their pleadings in accordance with the proposed amendment and that they would not pursue an application to strike out the first defendant’s defence.

Both defendants indicated that they opposed the amendment.

During a discussion in relation to the hearing of the plaintiffs’ application to amend, Mr Plenty said that the amendment was aimed at trying to resolve the issues. 

There was then some discussion about Mr Fricker’s previous application to amend which would have limited his defence.  I attempted to advise Mr and Mrs Plenty of the effect of the amendment to which they had previously objected.  I then explained in some detail to Mr Plenty the position taken by Mr Fricker’s client.

Mr Plenty asked for a further time to consider his position and I said:

“Alright.  I would look to move the matter on.  I’m happy to give you time.  I would like to move the matters on, all of these directions are costing a lot of money to whoever is going to lose the case.  The attendants and lawyers on each occasion, whoever is going to lose the case, is going to be unfortunately left with considerable expense.”

A little later there was a further exchange in the following terms:

“MR CHRISTOU:      I’m just worried, just as a thought, that at some stage when all of these pleadings hopefully are in order that your Honour is going to contemplate setting this matter down for trial.  I notice from the file that I have got and it’s a couple of big boxes of it, that at no stage during the course of these things has anyone from the bench directed that there should be a genuine attempt to attempt to resolve this issue if possible.  I’m just wondering whether, bearing that in mind, whether we can, at some stage down the road, have a period set down where Mr and Mrs Plenty can tell us exactly what they re after and we can notify the court as to what our indication is there.  I’m putting that forward from instructions from the second defendant only I don’t know what Mr Fricker is going to say.  We seem to be getting nowhere and costs are mounting.

HIS HONOUR:  I agree unfortunately.

MR FRICKER:  Did your Honour intend to hear all these cases?

HIS HONOUR:  Yes.

MR FRICKER:  It’s not desirable for your Honour conciliate or arbitrate?

HIS HONOUR:  No, I wouldn’t do that.  I think if the parties wish to have any conciliation, arbitration or mediation it will have to be done by someone else.

Well again Mr and Mrs Plenty you heard Mr Christou, he invites you to tell him what you want by way of damages so that his client can consider it.  It’s a matter for you whether you wish to do that.  In due course the parties may wish, as Mr Christou has indicated to have a pre trial conference.  If there is any suggestion of mediation, I won’t act as the mediator.  It wouldn’t be appropriate for me to know the figures that are being passed around.  Do you have any objection to Mr Christou being released from the next hearing?

MR PLENTY:    That’s appropriate your Honour.

HIS HONOUR:  You’re released from the next hearing.  I’ll adjourn the matter until 9 a.m. on Friday, 4 April 1997.”

On 16 April 1997 I was advised by Mr Black that he had been handed a notice of discontinuance in Mr and Mrs Plenty’s action against Mr Besson.  The parties in that action agreed that there would be no order as to costs.

Mr Plenty then advanced his application to amend the statement of claim to include the further cause of action to which I have referred.

During his address I raised with him whether r46.08 precluded the amendment being made.  I also raised with him the absence of any particulars of the damage alleged to be suffered.  As his address proceeded I raised with him further matters including rr46.18 and 53.01.

After raising those matters Mr Plenty sought an adjournment of the application for seven days.  Mr Manuel who appeared on behalf of the first defendant opposed the adjournment because, as it was put, an adjournment was pointless and would only lead to a further waste of the Court’s time and further costs to the parties.

It was put by Mr Manuel on behalf of the first defendant:

“From what I have read, and again today, it was mentioned once by Mr Plenty, there seems to be talk all the time about all these things happening, getting ready for trial, but with respect, looking at the history of this matter, there doesn’t seem to be any great rush by the plaintiffs to actually want a trial at all.  Meanwhile, Mr Fricker’s client, and the other clients, I’d assume, in a matter rising on fifteen years in two weeks’ time, 15 years ago, are just being drained, are just bleeding away quietly, waiting for something which they don’t even see happening. (Transcript Page 25 Wednesday 16 April 1997).”

Notwithstanding Mr Manuel’s submissions I allowed the adjournment and in doing so I said the following:

“HIS HONOUR:         Again, I don’t want to be seen to have in any way made up my mind about these matters but can I tell you what may be the difficulties about your pleadings.

MR PLENTY:             I appreciate that.

HIS HONOUR:  The first is that it’s 15 years late and it is most unusualo (sic) to allow a pleading to be amended to introduce a cause of action so late.  Secondly, it’s a cause of action that has arisen 14 or 15 years after the original cause of action.  Thirdly, it will inevitably delay the trial of the matter.  Fourthly, the pleading raises fraud which is ordinarily not allowed by way of amendment late in the piece.  Fifthly, the pleading lacks particularity in a number of respects, not only damages but also in relation to representations made from time to time and most importantly it is not easy to identify from the pleading exactly how it is that the cause of action arises.

..................................... You may be able to persuade me that I’m wrong, that all of those matters are matters of no moment but that’s a matter for you.

..................................... I’ve not done any more than brought those matters to your attention so as to allow you to consider your position and to amend the proposed pleading if you wish or do whatever you wish.

You don’t resist an order for costs?

MR PLENTY:             No.”

Before the next hearing the plaintiffs advised the defendants that they did not intend to pursue their application to amend their statement of claim.  Instead they advised the defendants that they would seek to amend their reply to include some of the matters in the proposed amendment in the statement of claim.  In the concluding paragraph of the reply the plaintiffs, after referring to the defendants’ pleas of mitigation and in particular the first defendant maintaining that defence, plead:

“The plaintiffs’ action against the mortgagors has only served to create for the plaintiffs:-

(a)undue influence, and/or, duress upon the plaintiffs to be an accessory, and/or, victims to harm another person, namely Besson; causing the plaintiffs grief and embarrassment;

(b)personal expense in terms of:-

travelling costs between Port Pirie and Adelaide;

time costs in travelling; and preparation of material for their solicitors;

telephone costs from Port Pirie to Adelaide;

material costs, e.g. paper,

(c)work, inconvenience, emotional distress, worry, trauma, hardship, persecution, frustration, oppression, depression, and embarrassment;

(d)enormous delay in the prosecution of this action, to the benefit of the defendant when the plaintiffs were ready to go to trial at about November, 1986, at which time, after all interlocutory matters were at an end, the defendant filed for the first time, interrogatories for the plaintiffs to answer;

(e)a perverting and defeating of the course of justice, and/or, an an (sic) abuse of process, to the plaintiffs’ prejudice.”

It can be seen that in the Reply filed on 2 May 1997 the plaintiffs’ claim that they were ready for trial in November 1996.

I dismissed the plaintiffs’ application to amend their statement of claim and there being no objection I gave leave to the plaintiffs to amend their reply. 

On the previous occasion Mr Manuel had asked for indemnity costs in relation to the proposed adjournment.

In respect of that I said on this occasion:

“... I have further considered the question of indemnity costs since the last occasion.  Having regard to the fact Mr and Mrs Plenty are unrepresented and could not have the familiarity of the rules a practitioner would have, unless you can convince me otherwise I think costs ought to be only on the ordinary scale.” 

(Transcript 29 April 1997 Page 34)

Mr Manuel then applied for the costs of the application generally.  That was resisted by Mr and Mrs Plenty.

Mr and Mrs Plenty argued that the whole question of mitigation had been raised in the judgment of Mullighan J and in due course it would have to be determined by the trial Judge whether or not such a plea could ever have been appropriate.  In those circumstances they argued that I ought to reserve the question of costs to the trial Judge.  I acceded to their argument and made an order reserving the question of the costs of the application to amend the statement of claim to the trial Judge.

At the conclusion of that matter I asked the parties whether there was any reason why the matter could not be listed for trial.  Mr Plenty said at that stage that the legal advisers would now be seeking to instruct solicitors and retain counsel.  He believed that the legal advisers would find it necessary to give advice on evidence and take over the handling of the matter generally.

I advised the parties that because of my commitments it would be impossible to hear the matter in 1997 but that I would wish to hear it as early as possible in 1998.  I indicated I would have one further directions hearing before the hearing of the matter.      I sought an assurance from the parties that there were no further interlocutory matters.  Mr Plenty on behalf of the plaintiffs advised me that there was none of which he was aware.

I asked all the parties to make inquiries of the availability of their legal advisers and their witnesses so that a date could be set for hearing.

I asked the parties whether there were any expert reports held by any of the parties.  Mr Plenty told me that there was a valuation which had been obtained in 1980 or 1983/84 but he was not able to say whether it had been exchanged under r38.  I asked him to check before the next hearing whether that had been supplied to the defendants as required by r38.  I said to him that he would have to consider whether or not he wished to update that expert’s report.

The matter was adjourned for six weeks for the purpose of the parties indicating their availability for trial.

The directions hearing resumed on 17 June 1997.  At that time Mr Carr appeared on behalf of the plaintiffs.  He told me that on 7 May 1997 he had been approached by Mr and Mrs Plenty for the first time and had received instructions to act.  He said that he had retained Mr Wells QC, who had agreed to provide advice and act in the matter. He told me that he had only been able to get a brief to Mr Wells in the past few days and that most of the matters to which I had adverted on the previous occasion had not been attended to.  He said he had been provided with a copy of transcripts from the previous directions hearings.

He asked me whether in those circumstances his client could have a further adjournment of the directions hearing for six weeks to attend to those matters.

Mr Carr said that in the meantime he would be able to make discovery and produce for inspection his clients’ expert’s report.  I made an order that the parties make continuing discovery in accordance with r58.06 within four weeks.  I ordered that the defendants give inspection within eight weeks of any further discovered documents.  I raised with the parties the need to consider a notice to admit in order to shorten the trial.  I said at that time that I expected the hearing of the matter to be in February or March 1998. 

However I agreed to adjourn the matter as requested by Mr Carr until 4 September 1997.

On 3 September 1997, the day before the next directions hearing, the plaintiffs filed a notice that Mr Carr was acting on behalf of the plaintiffs and a supplementary list of documents.  On the resumption of the directions hearing Mr Carr apologised for his clients failing to give further and better discovery until the previous day.  He advised me that he had sent the plaintiffs’ expert’s reports given by a valuer Mr Birgden in 1981 and 1982 to the defendants.  

He said he had received instructions to obtain a further expert’s report from a Mr Brook of Brook Taylor.  He asked for a further adjournment for a period of eight weeks for that purpose and because Mr Wells, who had been retained, was reviewing the pleadings and preparing an advice on evidence.

The following exchange took place:

“HIS HONOUR:         For what purpose?

MR CARR:For the obtaining of that second valuation, and compliance with rule 38 in that, and to ensure that there are no final applications in relation to pleadings from the plaintiff’s point of view, having obtained Mr Wells’s advice, and at that time determining whether we can finally set the matter for trial.

HIS HONOUR:  Is there any reason why I can’t set it down for trial now?

MR CARR:I would be happy if you reserved a date.  I take it it would be in the new year anyway, so I would have no problems with that at all.”

During that directions hearing the following exchange took place with counsel:

“MR FRICKER: Perhaps this is a convenient time to speak of the extraordinary delays in this matter.  The first of the Birgden valuations is dated 27 March 1981, nearly sixteen and a half years ago, and we received it some time after 4 p.m. yesterday, 3 September 97.  We had been seeking these documents literally for years.  We still don’t have a formulated claim, and in addition to that these documents disclose that the plaintiffs loaned $123,000 and recovered gross $103,000 on the sale of the property, a difference of only $18,000 and, of course, there would have been expenses and no doubt interest, but we still have faced a situation where the parties would have spent well in excess of the sums of money we are talking about, and I wonder why it’s in the Supreme Court in 1997, 1998.  The Adelaide Magistrates Court civil could deal with the thing.  It’s quite extraordinary, now we have these documents, which I repeat, are sixteen and a half years old.  So before I would consent to any notice to admit, I would on this occasion like to see the document, and I would ask that your Honour, while I’m on my feet, consider directing that a formulated claim must be delivered within a certain period of time.

HIS HONOUR:  Dealing with the notice to admit first, Mr Carr is only asking me to give him leave to serve one, so that you would have still all your rights of objection to the contents of it Mr Fricker.

MR FRICKER:   For these purposes, could it be recorded that I don’t consent to the leave being granted?

MR CHRISTOU:        I merely adopt what Mr Fricker said.

HIS HONOUR:  Mr Carr, I will give you leave to file and serve any notice to admit within one month of today.  But make it clear that the defendants have reserved to them any proper objections to the notice to admit in its form.  Mr Fricker, I don’t think I have power to require them to formulate a claim, but I must say I’m concerned by what you have said that if this is a claim for $20,000 it is extraordinary it has taken 15 years for it to come this far, and it’s more extraordinary if it is the case, and, of course, I accept what you say, that this was the first time that your client was aware of the extent of the claim, and your client could have made a commercial decision to pay the money, even if your client has denied liability.”

The documents filed in Court on 3 September 1997 and Mr Fricker’s comments made it clear that really nothing much was done in the period of the adjournment to that date to advance the matter and to ensure that the matter was ready for trial in early 1998.

There was then some discussion about the extent of the plaintiffs’ claim and whether it would be more appropriate to have the matter heard in the District Court.  The further following exchange took place in relation to that matter:

“MR CHRISTOU:      No, the only other thing that worries me is if this matter does get transferred, we don’t want to lose any place in the list.

HIS HONOUR:  I won’t transfer it.  It’s probably not a matter, if the expert’s report identifies a loss of $20,000, it’s probably not a matter for this court, but in fairness to the parties I will hear it.  It would be quicker to be heard here than be transferred out with the problems of costs.

MR CHRISTOU:        Then you have got the problem of costs in the Magistrates Court unless it’s treated as a complex action.

During the hearing of this application I asked Mr White QC, who appeared on this application on behalf of the plaintiffs, whether it was permissible for me to have regard to the transcript of the proceedings of the application of 18 September 1996 which gave rise to the comments which I made in my ex tempore reasons.  He agreed it would be appropriate for me to have regard to that transcript.

First it may be said that the quotation referred to in paragraph five of the affidavit accurately records what I said at the time I dismissed Mr and Mrs Plenty’s application.  However it is probably best to put the statement in its context.  I said:

“I cannot depart from this matter without making a comment in relation to the proceedings before me this morning.

I allowed Mr and Mrs Plenty as much time as they wished for the purpose of providing to me written submissions.  I also allowed Mr Plenty to make whatever submissions he wished to make, in furtherance of his application to set aside the order for costs made by the Master and in opposition to the application made by Mr Mellor this morning.

I have appreciated during this hearing and previous hearings that Mr and Mrs Plenty are unrepresented and that they are concerned that, because they are unrepresented, they may not obtain from the courts all of the relief to which they might otherwise be entitled.  I have tried to make it plain to them on other occasions and again this morning that I am concerned that they obtain all of the rights to which they are entitled at any time they appear before me and, in particularly, I am concerned that they would always leave the court believing, even if they are unsuccessful, that they have had justice in that the court has heard all that they wished to say and given it appropriate consideration.

During the argument this morning, whilst I thought I was trying to help Mr Plenty, he threw his papers across the bar table.  He does his case no good by behaviour of that kind in the court.  He would best serve himself in the future, if he brings as much objectivity as he can to what is a subjective matter so any displays of anger are not brought before the court.  If he wishes to put all his submissions without any aid from the court, then I will accede to that request.  At the time he became upset, I was trying to help him to put his argument in a form, which might appeal to the court for the purpose of the determination of the issues.  If, however, he feels that any interruption is likely to interfere with his rights, then he can put his arguments, of course, unaided and without the benefit of any assistance of whatever legal training the court might itself have.

The incident to which I referred took place on 18 September 1996.  Mr Plenty says, in his affidavit, that he disputes that he threw papers across the bar table or displayed any anger.  That is not my recollection now and was not my contemporaneous observation. 

I have had regard to the transcript of that application.  I think the transcript bears out my recollection.

During Mr Plenty’s submissions in opposition to an order for costs being made against him and his wife in relation to an application which had failed, I put to him that the application did not need to be made.  The following exchange took place:

“MR PLENTY:   I was forced to argue on a full front.

HIS HONOUR:. You weren’t.  You elected to, but you weren’t forced to.

MR PLENTY:... You have to do what you have to do over it.

HIS HONOUR:. Mr Plenty.

MR PLENTY:... Yes.

HIS HONOUR:. When I ask a question and put propositions to you, it is in an effort to aid you.  If I disagree with you on anything, that’s no reason for you to become upset about it.

MR PLENTY:... I’m sorry.  I’m rather tired.

HIS HONOUR:. It is my earnest wish that anybody who comes into my Court will obtain justice.  I’m endeavouring to help you as much as I can consistent with my not delivering an injustice to Mr Mellor.  I understand that you are unrepresented.  In those circumstances, I understand that it is much more difficult for you to present and argue to the Court than it is for Mr Mellor.  I am trying to assist you.  If I don’t agree it doesn’t mean that I’m not understanding what you are trying to put.  Anything else you want to put?”

Mr Plenty became upset at the same time as he said:

“You have to do what you have to do over it.”

As the transcript shows I immediately mentioned that he had become upset.  He acknowledged that by saying he had become rather tired and he apologised.

I drew his attention to the matter again:

“HIS HONOUR:......... Is there anything else you want to say, Mr Plenty, you became upset before?  I don’t want to stop you in anything you want to say.

MR PLENTY:............. I don’t think there is anything more I can say.”

Shortly after and within a few minutes I gave my ex tempore reasons.  It was in those reasons that I said what Mr Plenty now complains about.

The transcript discloses that he did not complain about my admonition.  Nor did he seek to explain that he had not thrown his papers.

There is no doubt that the transcript confirms that he became upset and my recollection of his actions are as I have described them in my ex tempore reasons.  Moreover I still have a recollection of the events and it accords with what I said at the time. 

Further there are two references in the transcript to his being upset.  There is no reference to his complaining about my description of his actions at that time.

Mr and Mrs Plenty asked me to disqualify myself in that action.  That application was made in January 1997.  A number of circumstances were relied upon in support of the applications that I disqualify myself for bias.  Mr and Mrs Plenty did not rely upon the statement which I made in those ex tempore reasons.

One would have thought that if they saw that as being factually incorrect they would have relied upon it because it arose in the very action in which they were asking me to disqualify myself.

Those remarks in those ex tempore reasons amount to a mild reprimand to an unrepresented litigant who had become upset during an argument.  The transcript of the argument shows that I was sympathetic to him because he was unrepresented.  The transcript also shows that I tried to assist him in teasing out whatever argument he had in relation to their opposition to the claim for costs.  The ex tempore reasons also show that in due course I made a very modest order for costs against the plaintiffs.

Mr and Mrs Plenty have tendered sworn evidence disputing that Mr Plenty threw his papers across the bar table or displayed any anger.  They say to have said otherwise indicates unfair criticism of Mr Plenty.  They rely on that as evidence supporting their application that I disqualify myself.

I do not resile in any way from what I said in my ex tempore remarks.

Mr Plenty did become upset and did throw his papers.

The facts, as I know them to be do not support their application.

However the fact that I know that Mr and Mrs Plenty are wrong about their assertions in their affidavits gives rise to other results to which I will return.

I move to the last matter of complaint which involves my reasons for judgment in the application for me to disqualify myself for bias in the matter of Plenty and Plenty v Seventh Day Adventist Church.

It is not sensible to reiterate all of my reasons for my refusal to disqualify myself in that application.  Put shortly Mr and Mrs Plenty objected to me further hearing any interlocutory matter or the trial of  that action because I had previously been involved as counsel on behalf of the defendant.

They claimed in their application for me to disqualify myself that I had not advised them of my previous involvement.  They swore in an affidavit that a statement which I had made in Court in relation to my previously having advised them that I had appeared as counsel, was untrue.  The statement which I made was:

“It was the case that I announced - when I first was assigned to this - and Judge Anderson announced that I had appeared on behalf of the Seventh Day Adventist Church on the application before Justice Bollen I mentioned it when it first was listed when I gave you an opportunity to object to it.  You didn’t and I didn’t see a problem with my properly determining the matter.  Now, you have raised it as a reason why I might not hear it.”

Mr and Mrs Plenty swore an affidavit denying that I had ever disclosed to them that I had previously appeared before Bollen J and I had ever said that they could object to my hearing the matter.

The transcript shows that on the first occasion in which I heard any application in relation to that matter I said:

“HIS HONOUR:         You’re Mr Plenty, of course?

MR PLENTY:             Yes.

HIS HONOUR:          And Mrs Plenty?

MR PLENTY:............. Yes.

MR MELLOR:........... I appear for Mellor Olsson, the firm which applied for an order under rule 11, before Judge Anderson.

HIS HONOUR:.......... Mr and Mrs Plenty, can I just mention two things before you start?

..................................... The first is you might remember that I appeared for the Seventh-Day Adventist Church in an application before Bollen J.  It was in this Court, actually, in opposition to, or at the time, seeking an order striking opposition to, or at the time, seeking an order striking out the state of your claim (sic) which was successful, but became unsuccessful on appeal.

MR PLENTY:............. Yes.

HIS HONOUR:.......... I should declare to you I’m the same person who is appearing. (sic)

MR PLENTY:............. Yes, I’m aware of that.

HIS HONOUR:.......... I think Judge Anderson told you that.

..................................... The second matter I should bring to your attention is I noticed in the papers you make some complaint about the Legal Practitioners Complaints Committee, and the Legal Practitioners Tribunal, I think to a lesser extent.

..................................... Can I tell you this: I used to be Chairman of the Legal Practitioners Complaints Committee.  I can’t remember the years, I think it was about 1986 or so, to about 1991, 1992.

..................................... I was also a member of the Legal Practitioners Disciplinary Tribunal.

MR PLENTY:............. Yes.

MR PLENTY:............. Yes.

HIS HONOUR:.......... I just tell you that in case it affects what you want to do.

MR PLENTY:............. I think we can count on your impartiality in the matter.

HIS HONOUR:.......... You can have that.  I guarantee impartiality.

..................................... I can’t remember, just to take the last mentioned matter up further, ever seeing a complaint from you about any solicitor.

MR PLENTY:............. No.”

Their claim that I did not disclose my previous involvement was wrong.

They also made a number of other allegations which I will not set out.  They accused me of displaying lack of diplomacy, lack of “judiciousness”, lack of commonsense.  They made a number of remarks which were insulting.  Of course I think it to be an insult to have suggested that what I said in Court was “untrue”. 

The affidavits upon which they relied and the submissions which they made in support of their application speak for themselves.

I said, in conclusion, in those reasons:

“I have reached the conclusion therefore that I ought not to disqualify myself from the hearing of these interlocutory matters and the trial of this matter upon the grounds raised by the plaintiffs.

The submissions which have been put and the affidavits which have been filed contain much strident criticism of myself.  As I have already said some of that criticism could be read as being gratuitously insulting.  The application made by the plaintiffs has necessarily required me to examine those submissions and affidavits for the purpose of understanding the plaintiffs state of knowledge at any given time.  I have reached conclusions which I have expressed throughout these reasons on those matters.

It must be said that because the plaintiffs have been so stridently critical of myself that I could no longer bring an impartial or unprejudiced mind to the proceedings.

That is not in fact the case, but as well I think that argument must be resisted, because otherwise a party would be entitled to obtain the relief which that party sought, namely the disqualification of the judicial officer by tailoring and colouring the application to that judge.  It would be inappropriate to allow the very extravagance of the application to be the reason for allowing the application.  That would only be to encourage procedural unfairness and to allow for procedural abuse.  It therefore will not disqualify myself by reason of the criticism that has been made by these plaintiffs.

In those circumstances it appears to me that it would be inappropriate for me to disqualify myself and indeed in the circumstances of this case would be an abdication of my judicial responsibility.

These proceedings have now been going for fifteen years.  They involve a consideration of facts which occurred more than seventeen years ago.  It is in the interests of everyone that these matters are disposed of expeditiously.  The defendant is anxious to have the matter disposed of as soon as possible.  Indeed the defendant has been abandoning points in an endeavour to cut through the interlocutory matters os that this matter may be disposed of as soon as possible.  It would be unfair to the defendant to abdicate my judicial responsibility unless I was satisfied that there was a real apprehension of bias on my part.  For the reasons I have already concluded I do not believe that the plaintiff has made that out.”

The male plaintiff claims in his affidavit in support of this application that he considers there is a real apprehension that I may not bring a fair and unprejudicial mind to the trial of this action.  His affidavit also speaks of his wife’s concerns about statements I have made and questions I have asked.  She has filed an affidavit confirming the contents of the male plaintiff’s affidavit.

Conclusion

A judge should not sit to hear and determine a matter if the parties or the public might entertain a reasonable apprehension that he or she might not bring an impartial and unprejudiced mind to the resolution of the matter:  Reg v Watson; Ex parte Armstrong (1976) 136 CLR 242 at 258-263; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293.

In this matter it is not said that anything I have said or done establishes bias but that statements made and questions asked would cause the parties or the public to entertain a reasonable apprehension that I might not bring an impartial and unprejudiced mind to the resolution of the matter.

The test, of course, is not that I will or am likely to decide the case adversely to the plaintiffs but that there is a reasonable apprehension that I will not decide the case impartially and without prejudice. Re JRL; Ex parte CJL (1986) 161 CLR 342 per Mason J at 352.

The reasonable apprehension of bias is to be judged by a lay observer.  That reasonable lay observer will not have the knowledge that the parties or the court has.  The reasonable lay observer will approach the matter upon the basis that the presiding judge, whose character and ability is unknown to the lay observer, would ordinarily act to ensure both the appearance and substance of fairness and impartiality.  However the lay observer would not reject the possibility of bias or pre-judgment: Livesey v New South Wales Bar Association at 299.

If there is a possibility that anything I have said might lead to a reasonable apprehension of pre-judgment then I should refrain from sitting.

However it must be firmly established or there must be “strong grounds” that there is a reasonable apprehension of prejudgment: Re JRL; Ex Parte CJL (supra) per Mason J at 352, per Wilson J at 359.

The plaintiffs claim that I should disqualify myself because of my reasons for not disqualifying myself previously.  In those reasons I pointed out that an allegation they made about me was factually incorrect.  They also ask me to disqualify myself because I wrongly chastised Mr Plenty.  Lastly it is said I have been critical of them for delaying this litigation.  It is said that the first and second matters are findings on credit and the third matter requires a finding on credit.

Having on the first occasion found against them on credit, it is said I should not hear any other matter, particularly where their credibility is in issue.

It is true that I decided in the first application that the allegation that I had not done something was factually incorrect.  The transcript established that the plaintiffs’ allegation was wrong.  That application failed because it was based on incorrect facts.

I have also criticised them in interlocutory proceedings about the delay in these proceedings.  This application has required me to examine the litigation and examine the delay.

There is nothing in the application itself, in my opinion, which would give rise to a need for me to disqualify myself.  I do not think that anything I have said or done, for the reasons already mentioned, would lead a lay observer to conclude that there is a reasonable apprehension of pre-judgment on my part.

However the application itself has required me to make findings which reflect on Mr and Mrs Plenty.  In particular I have had to find that their assertion that Mr Plenty did not throw his notes across the bar table is not correct.  To that extent that is a finding which reflects on their credibility.  Indeed it goes further.  I know that Mr Plenty threw his notes across the bar table.  I know that their allegations in this application are incorrect.

I have also had to examine the proceedings to explain why it is that I have been critical about their delay in this matter.

There is, as I say, nothing in the application itself which would give rise to a reasonable apprehension of bias.  However the decision dismissing the application does require me to disqualify myself.

It would not be appropriate having determined a matter adverse to Mr and Mrs Plenty’s credibility for me to further determine matters in which they were involved.  I must assume that in this matter and the other matters which I have been managing, their credibility will be an issue.  It seems to me that will inevitably occur, particularly if they recover an award of damages and a question of interest on damages is raised.

I do not think it would be appropriate for me having reached the adverse conclusion which I have in this judgment to therefore sit on the trial of this action.  I think also having regard to the comments which I have had to make in answer to the application brought, in relation to their delay in these proceedings, it would be inappropriate for me to sit on an application to dismiss for want of prosecution.  I think it would be fairly said that my comments indicate that I have formed a view that they have been guilty of inordinate delay.  In those circumstances it would not be appropriate for me to determine whether or not the matter ought to be dismissed for want of prosecution.

Mr and Mrs Plenty have been keen for me to disqualify myself from the hearing of any of their matters for a length of time.  I think that is because I have indicated on a number of occasions that these matters must go to trial and must be resolved.  For some reason which I simply cannot understand they do seem not to want to have the matters go to trial. 

They have achieved their aim of having me disqualify myself not because of anything done but because of the application itself.  They have required me to make a finding on a factual matter which I witnessed.  By doing so they have achieved a result to which they would otherwise not be entitled.  It is a bizarre result, in my opinion, but made necessary because it is important to uphold the integrity of the Court.

My disqualifying myself will deliver a further injustice to the defendants who will now suffer further delay.  That delay will have been caused by this application.  The application should not have been made but because it was made in the terms in which it was the defendants have been further disadvantaged.  It is a matter of regret that the defendants will suffer that further disadvantage.

In any event for the reasons given I do not intend not to hear any further interlocutory matters or the trial of this action or any other interlocutory matters or the trial of any other action in which Mr and Mrs Plenty are parties.

I had reserved my judgment on the application to amend the statement of claim.  In view of this decision I do not intend to give judgment on that application.  The matter will have to be re-argued before some other Judge.

In disqualifying myself I am mindful of the injunction of the High Court that a judge ought not too readily disqualify himself or herself from the hearing of a matter but I think it is important for the integrity of the Court in this case that I desist from hearing any further aspects of this matter.