Supreme Court of Tasmania|2004-06-04|Before: Underwood J

Argo Pty Ltd v Attorney-General (No 3) [2004] TASSC 51 (4 June 2004)

CITATION: Argo Pty Ltd v Attorney-General (No 3 ) [2004] TASSC 51

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Time - More than six years since a step taken in a proceeding - Meaning of a step in a proceeding considered.

Kaats v Caelers [1966] Qd R 482; Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592; I H Dempster Nominiees Pty Ltd v Chemgoods Pty Ltd [1993] 2 Qd R 377; Re Burns v Korff [1982] 8 QL 201, followed.

Warnock v Mann [1896] 2 Q B D 630; Lumley v Hempson (1838) 6 Dowl 558, also followed.

First and Second Applicants/Defendants: T J Ellis SC

Respondents/Plaintiffs: M Clarke and C J Gunson

First and Second Applicants/Defendants Director of Public Prosecutions

Fourth Applicant/Defendant: Butler McIntyre & Butler

Judgment Number: [2004] TASSC 51

ARGO PTY LTD and GEORGE PETER WRIGHT and NATURELAND OF TASMANIA PTY LTD and MICHAEL WINSTON TATLOW

v THE ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

and PHILIP JOSEPH CHANDLER and PETER LEONARD FAIRCLOTH

1 The issue upon this application is whether, in the circumstances of the case, the provisions of the Supreme Court Rules 2000, r56, apply to the plaintiffs. The rule provides:

"(1) If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge.

(2) An order may be made either ex parte or on notice."

2 These proceedings commenced with the filing of a writ and statement of claim on 8 May 1990. By 26 June 1990, all the defences were filed and served. The first, second and third defendants made discovery on 28 September 1990. It was common ground on the hearing of the application that thereafter inactivity generally attended this action. At some stage after the writ was issued, Mr Chandler, the third defendant, died and the first plaintiff changed its name from Mack Investments Pty Ltd to Argo Pty Ltd. The plaintiffs, who are the respondents to this application, conceded that as at 17 November 1999, six years or more had passed without any party taking a step in the action.

3 By an application dated 17 November 1999, and filed on 22 November 1999, the plaintiffs sought orders:

* that they be given leave to proceed pursuant to O79, r11(2); and

* that the name of the first plaintiff be changed to Argo Pty Ltd.

4 This application was listed for hearing before a judge on 18 April 2000. However, on 6 December 1999, the first and second defendants filed an application seeking orders:

"1 That they be given leave to take a fresh proceeding in the action pursuant to Order 79 Rule 11(2), namely to make application for the first and secondnamed defendants to strike out the claim for want of prosecution.

2 That the name of the firstnamed plaintiff in the title of the action be changed to Argo Pty Ltd (ACN 009 527 817).

3 That the action be struck out as against the first and secondnamed defendants for want of prosecution, and there be judgment for the first and secondnamed defendants against the plaintiffs for costs to be taxed, including the costs of this application."

5 On 13 December 1999, the following consent orders were made:

"1 The First and Secondnamed Defendants be given leave to take a fresh proceeding in the action pursuant to Order 79 Rule 11(2), namely to make application for the First and Secondnamed Defendants to strike out the claim for want of prosecution.

2 The name of the Firstnamed Plaintiff in the title of the action be changed to Argo Pty Ltd (ACN 009 527 817)."

6 In consequence, when the plaintiffs' application came on for hearing on 18 April 2000, it was dismissed by consent. There was an order that the plaintiffs pay the fourth defendant's costs and that otherwise the question of costs be reserved.

7 The first and second defendants' application to dismiss the plaintiffs' claim for want of prosecution duly came on for hearing. It was opposed. On 7 August 2000, the application was dismissed. The unsuccessful defendants appealed to the Full Court. The appeal was dismissed on 29 June 2001.

8 On 20 February 2003, the plaintiffs' present solicitors took over conduct of the action and gave a month's notice of intention to proceed. The plaintiffs sought to bring the action within the case management rules, the Supreme Court Rules, PtXIV, Div1. The defendants contended that this was not an appropriate course to take, as the plaintiffs were barred by r56 from taking any step in the action without the leave of the Court or a judge. To bring this issue to a head, the first and second defendants filed this application on 8 December 2003, seeking an order that the action be stayed until the plaintiffs obtained an order pursuant to r56. The fourth defendant made a similar application the day before this hearing commenced and joined in the application by the other defendants by his counsel making submissions in support of it at the hearing.

9 On behalf of the plaintiffs it was contended that:

* The order of 13 December 1999 (purportedly made pursuant to the Rules of the Supreme Court 1965, O79 r11(2)) had effect to give the plaintiffs leave to take a proceeding.

* The order of 13 December 1999 included leave to take a proceeding against the fourth defendant, even though he was not a party to the application in December 1999.

* The defendants' submission that the application made by the first and second defendants that led to the making of the order on 13 December was unnecessary and the order a nullity is incorrect.

* By making the application that resulted in the order on 13 December 1999, the first and second defendants acquiesced in the plaintiffs' delay and cannot now rely upon the "six year rule."

* In any event, numerous steps have been taken in the last six years.

* Alternatively, as there has been a hearing on an application to dismiss for want of prosecution and an appeal to the Full Court, the Court should exercise its discretion against the defendants and dismiss the application because the issues that would arise upon an application by the plaintiffs for leave to proceed have already been determined by the first and second defendants' strike out application and the subsequent appeal.

10 The immediate provenance of rr55 and 56 is the Rules of the Supreme Court, O79, r11, which provided:

"(1) When no proceeding has been taken in a cause or matter for one whole year from the time when the last proceeding was taken, any party who desires to proceed shall, before taking any step in the cause or matter, give a month's notice to every other party of his intention to proceed.

(2) When six years have elapsed from the time the last proceeding was taken, no fresh proceeding shall be taken without the order of the Court or a judge, which may be made either ex parte or upon notice.

(3) A summons on which no order has been made shall not be deemed a proceeding within this rule; but notice of trial, although avoided by non-entry or countermanded, shall be deemed such a proceeding."

11 So far as I have been able to ascertain, this provision was first introduced into the procedure of this Court by the Supreme Court Civil Procedure Act 1932, s196, Sch2 (which enacted the Rules of Court), O77, r11. I have been unable to find any trace of the rule in either of the precursors to the Supreme Court Civil Procedure Act, viz, the Common Law Procedure Act 1854, and the Equity Procedure Act, 1858.

12 Apart from dividing the original enactment into three separate paragraphs, the provisions of the Rules of the Supreme Court 1932, O77, r11, have remained unchanged from 1932 until the enactment of the Supreme Court Rules in 2000. At the time of the first enactment of the rule, there was an English Rule, O64, r13, the terms of which were virtually identical to the Rules of the Supreme Court 1965, O79, r11(1) and (3). The English Rules of Court contained no rule preventing the taking of a fresh proceeding more than six years after the taking of the last proceeding without the leave of the Court.

13 According to Cairns, Australian Civil Procedure (5th ed) 427, the only other State to have a rule equivalent to Supreme Court Rules 2000 (Tas), r56, is Queensland. Until the Uniform Civil Procedure Rules came into operation on 1 July 1999, the Rules of Court (Qld), O90, r9, provided:

"(1) When no proceeding has been taken in a cause for 1 whole year from the time when the last proceeding was taken, any party who desires to proceed shall, before taking any step in the cause, give a month's notice to every other party of his or her intention to proceed.

(2) When 3 years have elapsed from the time when the last proceeding was taken, no fresh proceeding shall be taken without the order of the Court or a Judge, which may be made either ex parte or upon notice.

14 Apart from the omission of any reference to "matter," the addition of "her" in subr(1), and the substitution of three years for six years in subr(2), the Queensland rule was identical to the Tasmanian rule before its amendment by the Supreme Court Rules 2000. I was able to find a reference to O90, r9, in Wilson & Graham, Practice of the Supreme Court of Queensland, 1902. At that time, the rule was identical in every respect to the Rules of Court (Tas) 1932, O77, r11. However its provenance prior to the turn if the 20th century has remained obscure to me.

15 The High Court Procedure Act 1903, s32, first enacted the High Court rules of practice. The Schedule to that Act, O45, r8, was also identical to Rules of Court (Tas) 1932, O77, r11, apart from the omission of any reference to "matter", and the substitution of "justice" for judge. That rule now appears as the High Court Rules, 1952, r60.12:

"(1) In a proceeding in which a step has not been taken for one year, the party who desires to proceed shall give one month's notice to every other party of his intention to proceed.

(2) When six years have elapsed from the time when the last step in a proceeding was taken, a fresh step shall not be taken without an order of the Court or a Justice, which may be made either ex parte or upon notice.

(a) a summons on which an order has not been made shall not be deemed a step taken; and

(b) notice of trial, although avoided by non-entry or countermanded, shall be deemed a step taken."

16 Bearing in mind that the procedure of notice and entry for trial, formerly provided for by the Rules of the Supreme Court (Tas), O39, rr11 - 23, was repealed by Statutory Rule No 249/1965, I see the provisions of the High Court Rules 1952, r60.12, and the provisions of the Supreme Court Rules 2000, rr55 and 56 as indistinguishable.

17 There is also a very close similarity between the Queensland Uniform Civil Procedure Rules 1999, r389 and the Supreme Court Rules 2000, (Tas), rr55 and 56. The former provides:

"(1) If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month's notice to every other party of the party's intention to proceed.

(2) If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.

(3) For this rule, an application in which no order has been made is not taken to be a step."

18 Although there has never been a rule equivalent to O79, r11(2) in England or in any other Australian jurisdiction apart from Queensland and that exercised by the High Court, there seems to be every reason to give the word "proceeding" in O79, r11(2), the same meaning as it is given in O79, r11(1), a provision common to most jurisdictions. There are numerous decisions about what constitutes a proceeding for the purpose of the equivalent to O79, r11(1). I did not understand Mr Clarke, senior counsel for the plaintiffs, to contend that the word "proceeding" should be given different meanings in O79, r11, although he did submit that there was a difference between "a proceeding" and "a step in a proceeding".

19 In Kaats v Caelers [1966] Qd R 482, the Full Court of the Supreme Court of Queensland held that neither a notice of intention to proceed, nor a notice of change of solicitor, constituted a proceeding within the meaning of the Rules of the Supreme Court (Qld), O90, r9. Stable J referred at 499 to a number of old English cases and concluded that "the word 'proceeding' is one that suggests something in the nature of a formal step, at least a step taken by the litigant in the prosecution of the action, being a step required by the rules". It was held that documents such as a notice of intention to proceed and a notice of change of solicitors were "formal" in nature and did not constitute a proceeding within the meaning of the rule because they did not advance the action to a final conclusion.

20 In Citicorp Australia Limited v Metropolitan Public Abattoir Board [1992] 1 Qd R 592, McPherson SPJ (with whose reasons the other members of the court agreed) said at 594 that a proceeding means an act or activity that has the "characteristic of carrying the cause or action forward". In Spincer v Watts (1889) 23 QBD 350, Lindley LJ described a proceeding at 353 as "taking any proceeding with the view of continuing the litigation with the person against whom the proceeding is taken". In I H Dempster Nominiees Pty Ltd v Chemgoods Pty Ltd [1993] 2 Qd R 377, Ryan J followed Citicorp and held that the signing and forwarding of a consent to have the proceedings transferred form one court to another was not a proceeding within the meaning of O90, r9. He said at 378:

"It is not a step which advances the course of the action in any way, it simply has the effect that the action proceeds thereafter in a District Court rather that in the Supreme Court."

21 In Smiley v Watson [2001] QCA 269; [2002] 1 Qd R 560, the Full Court of Queensland adopted the judgments in Citicorp and I H Dempster Nominees. The latter two cases were concerned with the old rule which referred to "fresh proceeding". Smiley v Watson was concerned with the Uniform Civil Procedure Rules 1999 which speaks of a "step in a proceeding" and "a new step". This change of wording appeared to make no difference to the reasoning of the Court. Williams JA, with whose reasons for judgment the members of the Court agreed, said at 564:

"The transfer of proceedings from one court to another does not move the matter 'toward the judgment or relief sought in the action', a test commonly applied in such situations."

22 In Rideout v Glaxo Group Limited [1996] Qd R 2000, Derrington J referred to a number of authorities on this point and approved the following expressions to define a proceeding at 206 - 207, "carrying the action forward", "some step taken towards the judgment or relief sought in the action", "taken with a view to continuing the litigation between the parties", and "[a step] that suggests something in the nature of a formal step in the prosecution of the action".

23 With respect to the meaning of proceeding in the context of O79, r11, I have derived very considerable assistance from two judgments of Master Lee (as he then was) of the Supreme Court of Queensland. The first is Burns v Korff [1982] 8 QL 201, and the second is Bain Dawes (Qld) Pty Ltd v Hill (unreported) 27 June 1986. Burns v Korff concerned District Court Rule 377 which was in terms similar to the Rules of Court (Qld), O90, r9. Master Lee said, at 208:

"It may generally be said that a 'proceeding' includes an application to the court upon which an order is made, and also includes certain other activities contemplated by the Rules, which do not amount to a formal application to the court, eg, the delivery of a pleading, notice of trial, etc: Taylor v Roe (1893) 62 LJ Ch 391 per Kekewich J at 392; Kaats v Caelers (supra) at 499 per Stable J where his Honour referred to a step taken by the litigant in the prosecution of the action, being a step required by the Rules. The common feature in all of these activities is that in a general way, the activity is recognised by the Rules as an activity which positively advances the cause and its conduct towards ultimate judgment, whether in favour of a plaintiff or a defendant." [Emphasis added.]

24 In the same case, he held, at 207, that the rule does not require that the step be taken by any particular party for it refers (in the first limb) to any party who desires to proceed. In Bain Dawes (Qld) Pty Ltd v Hill (supra) Master Lee referred to a considerable number of authorities. He noted those that referred to a proceeding as a formal step taken in the prosecution of the action, being a step required by the rules. He noted a modern trend to prosecute litigation by compliance with the rules in an informal manner and said, at 18 - 19:

"To what extent therefore must a 'proceeding' consist of a strictly 'formal' step 'required' by the rules? Various cases throw light on this proposition and suggest that these words do not necessarily always require a literal compliance with the precise terms and procedures formally laid down in the rules but rather point to the 'step taken in prosecution of the action' in the sense that it is the result rather than the means by which it has been brought about."

25 In Leach v International Portion Foods Pty Ltd [1984] 2 Qd R 152, Master Lee referred to Warnock v Mann [1896] 2 QBD 630, and Lumley v Hempson (1838) 6 Dowl 558. In both cases it was held that an application to strike out a claim was not a proceeding within the meaning of the relevant English rule. There is also a brief note to the same effect in Turner v Brisbane City Council [1964] QWN 31. Master Lee referred to his decision in Burns v Korff and said, with respect to an application to dismiss an action for want of prosecution, at 154:

"As counsel for the defendant submitted, this is not a proceeding designed to further prosecute the action or in any way to continue the action towards judgment as would have been the alternative course open to a defendant under O39, r15 had it chosen to give notice of trial instead of applying to have the action dismissed for want of prosecution. Accordingly counsel is correct in his submission that the defendant has no need to obtain leave to proceed under O90, r9 in order to apply for an order that the action be dismissed for want of prosecution."

26 Master Lee accordingly held that in a case where there had been no proceeding or step in the action for more than the prescribed period, an application to dismiss for want of prosecution did not require the prior leave of the Court pursuant to the Rules of Court (Qld), O90, r9.

27 The preponderance of authority leads me to conclude that the word "proceeding" in the Rules of the Supreme Court 1965, O79, r11 means some step in the action, required by the rules of procedure, but not necessarily carried out in accordance with those Rules, to carry the action forward to a final judgment. Consistent with that conclusion, I find that an application to strike out a statement of claim for want of prosecution is not a proceeding within the meaning of that rule for it is a means of getting rid of an action, not a step forward to its conclusion. Similarly, an application to change the name of the first plaintiff to bring it up to date to enable an application to dismiss for want of prosecution is not a proceeding within the meaning of the rule.

28 The Supreme Court Rules 2000, r976 and Sch4, enact transitional provisions for the Rules that commenced on 1 May 2000. Clause 2(2) provides that the Supreme Court Rules 2000 apply to a pending proceeding, "and anything required or permitted to be done under these rules" with respect to a proceeding commenced after 1 May 2000 is "required or permitted to be done in a pending proceeding". Clause 1 defines a pending proceeding as a civil proceeding in the court to which, immediately before 1 May 2000, the Rules of the Supreme Court 1965 applied. This action is therefore a pending proceeding, and accordingly, the application falls to be determined in accordance with the provisions of the Supreme Court Rules 2000, r56. The Rules of the Supreme Court 1965, O79, r11(2), is only relevant insofar as it assists in the proper interpretation of the Supreme Court Rules 2000, r56.

29 Mr Clarke submitted that the expression "step in a proceeding" in r56, bore a meaning different from that attributed to "proceeding" in O79, r11. To support his submission, he referred to Zues & Ra Pty Ltd v Nicolaou (2003) V Conv R 62,647. This case concerned the construction of "lettable area" and "floor area" as enacted in the Retail Tenancies Reform Act (Vic) 1998. I find it of no assistance in the present case, for it is no more than an illustration of the duty of the court to ascertain the intention of the legislature from the words used by it and the context in which those words are enacted.

30 A comparison between the Rules of the Supreme Court 1965 and the Supreme Court Rules 2000, will show that apart from the introduction of some new case-management provisions, the current rules do no more than reorganise the 1965 Rules, omit repetitions and redundant rules and adopt what is known as "plain English". It is likely that in this respect the model for rr55 and 56 was the High Court Rules 1952, O60.12, or perhaps the Uniform Civil Procedure Rules (Qld) 1999, r389. With respect to the meaning of "step" as enacted in the High Court Rules 1952, O60.12, Wilson J said obiter, in Australian Broadcasting Commission v Industrial Court of South Australia [1985] HCA 71; (1985) 159 CLR 536 at 539 - 540:

"Having regard to the authorities which I have cited, I do not consider that the mere extraction of an order incorporating a final judgment is a 'fresh step' within the meaning of those words in O60, r12(2). It is true that the English authorities were decided by construction of a provision whose point of reference is the time at which 'the last proceeding' took place whereas a construction of O60, r12(2) requires a consideration of the meaning of 'a fresh step'. It may be that the word 'step' is broader in its application than the word 'proceeding'."

31 I respectfully adopt his Honour's observation. That observation is consistent with the approach taken by Master Lee in the passage I cited from his judgment in Bain Dawes (Qld) Pty Ltd v Hill. A step in a proceeding as enacted in r56 is an action required by the rules to prosecute an action to judgment but this does not mean that the step must necessarily be taken in the manner prescribed by the rules.

32 With respect to Mr Clarke's submission, the following passage taken from the judgment of Burns v Korff (supra) at 207 may be noted:

"This rule [District Court rule 377] is similar to O90, r9 of The Rules of the Supreme Court, although O90, r9 has an additional last sentence by which a notice of trial is deemed to be a 'proceeding'. Mr Wyvill submitted that there was no difference between the term 'proceeding' and a 'step in the proceeding'. These rules seem to equate a 'step in the proceeding' in the first part of the rule, with 'fresh proceeding' in the second part of the rule. Mr Williams did not contend to the contrary, and this appears to be the position."

33 Ives & Barker v Willans [1894] 2 Ch 478 was a case that concerned the meaning of the expression "step in a proceeding" in the Arbitration Act 1889 (UK). Lindley LJ said at 484:

"The authorities shew that a step in the proceedings means something in the nature of an application to the Court, and not mere talk between solicitors or solicitor's clerks, nor writing of letters, but the taking of some step, such as taking out a summons or something of that kind which is, in the technical sense, a step in the proceedings."

34 With respect to the construction of the Supreme Court Rules 2000, rr55 and 56, it may be noted that while the Rules of the Supreme Court 1965 contained no definition of proceeding, that word is defined by the Supreme Court Rules 2000, r3 to mean "any matter commenced by originating process". "Originating process" is in turn, defined to mean:

(a) any document by which an original proceeding is commenced; and

35 Not only is the expression "step in a proceeding" a plainer English expression than the single word "proceeding", but also, the insertion of the definition of that word in the Supreme Court Rules 2000 made it necessary to use an expression other than simply "proceeding" in rr55 and 56. To these propositions can be added the unlikelihood of the Supreme Court Rules 2000 intending to make some fundamental change to the established law, as enacted by the Rules of the Supreme Court 1965, O79, r11. Taken together, all these factors lead to the conclusion that "a step in a proceeding" in the Supreme Court Rules 2000, r56, has the same meaning as "proceeding" in O79, r11.

Application of the statutory construction to the facts

36 It follows from the foregoing that the application made by the first and second defendants in December 1999 for leave to make an application to strike out the claim for want of prosecution and to change the name of the first plaintiff to Argo Pty Ltd (ACN 009 527 817) was otiose. Mr Clarke submitted that even if it was otiose, an order was made and that "wiped the slate clean", as he put it, for all parties to proceed with the action generally.

37 The order that was made on 13 December 1999 was made by consent. It was that the first and second defendants "be given leave to take a fresh proceeding in the action pursuant to Order 79 Rule 11(2), namely to make application for the first and second defendants to strike out the claim for want of prosecution". The order also provided that "The name of the first defendant in the title of the action be changed to Argo Pty Ltd (ACN 009 527 817)". The Supreme Court Rules 2000, r56, prohibits the taking "of any further step in the proceeding without the order of the Court or a judge". As neither an application to strike out for want of prosecution, nor an application to change the name of a plaintiff, is a step in the proceeding for the reasons I have given, it seems plain to me that the order of 13 December 1999 did not give leave to either take a "fresh proceeding" within the meaning of the Rules of the Supreme Court 1965, O79, r11(2) or to take a "further step in the proceeding" within the meaning of the Supreme Court Rules 2000, r56. The application was not for leave simply to take a further step in the proceeding, but for leave to take the specified actions, viz, to make an application to strike out for want of prosecution and to change a name. It may be, as Mr Clarke submitted, that neither Rules of the Supreme Court 1965, O79, r11(2) nor the Supreme Court Rules 2000, r56 authorise the making of an order limited as was the order of 13 December 1999. If that is right, it means that the order is a nullity for want of jurisdiction, but in any event, its terms are such that it cannot be construed as an order authorising a "fresh proceeding" or a "further step in the proceeding" as I have construed those terms to mean.

38 I reject the submission made by Mr Clarke on behalf of the plaintiffs that by making the application that led to the consent orders dated 13 December 1999, the first and second defendants acquiesced in the plaintiffs' delay and therefore cannot rely on the provisions of the Supreme Court Rules 2000, r56. The application to strike out for want of prosecution could not possibly be construed as acquiescence in the plaintiffs' delay in their prosecution of the action prior to making the application. Such an application is the antithesis of acquiescence in delay.

39 Mr Clarke submitted that there have been many steps in the proceeding since the making of the order on 13 December 1999. He relied upon the application to strike out and the appeal to the Full Court. I have dealt with that submission. He relied upon an application for directions dated 23 March 2000 and made by the plaintiffs. It was filed on 10 April that year. Nothing happened with that application, probably because the hearing of the application to strike out commenced 8 days later. Mr Clarke also relied upon some correspondence that he tendered in evidence. This comprised a request made by the solicitors for the plaintiffs in July 2001 that this action be "case managed", and a fax from my associate to the effect that I was prepared to manage the action. What happened about all that is unknown. Lastly, there was a letter from the Director of Public Prosecutions dated 10 October 2003 advising that he objected to another attempt to have the case managed, as no application for leave to take a step in the proceeding had been obtained. I have to confess that I do not quite see the relevance of this material. At the time it came into existence, the plaintiffs were barred from taking a fresh proceeding, or further step in the proceeding, without the leave of the Court, and no leave had been granted. Further, it cannot be said that the material relied upon shows that any defendant waived the requirement for compliance with r56. In the context of making these submissions, Mr Clarke submitted that the relevant time was confined to the immediately preceding six years, and that within that time the steps that he outlined had been taken. That submission cannot be upheld. When the period of six years elapsed without a proceeding being taken, no further step in the proceeding may be taken without leave. If such steps are in fact taken without leave being granted, they will, on application being made, be set aside unless the conduct of the party not in default amounts to acquiescence, or waiver of the requirement that there be compliance with r56.

40 In the light of the foregoing, it is unnecessary to consider the arguments that arise out of the fact that the fourth defendant was not a party to the application which led to the making of the orders on 13 December, nor a party to the subsequent application to strike out the statement of claim for want of prosecution.

41 Lastly, it was submitted on behalf of the plaintiffs that I should exercise a discretion and refuse to order a stay of proceedings until leave to take a further step had been granted. It was submitted that the order sought should be refused because the issues that would be ventilated upon an application for leave to take a further step in the proceeding had already been ventilated upon the application to strike out the statement of claim and the subsequent appeal.

42 It has long been established that as a Court of plenary jurisdiction, this Court has an inherent power, additional to the Supreme Court Rules 2000, to control its proceedings to ensure that the Court's processes are not used as instruments of abuse, injustice or oppression. See Metropolitan Bank v Pooley (1885) 10 AC 210 at 220 - 221. Although not confinable to identified categories, this inherent power is not at large. See Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612 at 639; Dietrich v R [1992] HCA 57; (1992) 177 CLR 292 at 364; Reid v Howard [1995] HCA 40; (1995) 184 CLR 1. It is a power to be exercised "only as necessary for the administration of justice", per Toohey, Gaudron, McHugh and Gummow JJ in Reid v Howard (supra) at 17. An example of the proper exercise of this power is to be found in Alexander v Fitzpatrick [1981] Qd R 359. In that case, the Master found that interrogatories were so prolix that they amounted to an abuse of the process of the Court and he invoked the inherent power to strike them out instead of requiring the party interrogated to take objection to each interrogatory. He adopted a caution expressed by the Queensland Full Court in Madden v Kirkegard v Ellwood and Partners (unreported) 8 August 1979 that "the jurisdiction is one that which should be very sparingly exercised and in only very exceptional cases."

43 The only basis upon which the plaintiffs rely for the invocation of the inherent jurisdiction is that compliance with the Supreme Court Rules 2000, r56, will only result in a re-agitation of the matters already put to rest by this Court on the application to strike out the statement of claim for want of prosecution. Whilst I accept that some of the matters traversed on that application will be relevant on an application for leave pursuant to r56, there is no reason to suppose that nothing new will arise. Upon an application for leave to take a further step in the proceeding, the onus will fall upon the plaintiffs to show that is just in all the circumstances that leave should be granted. No onus fell on the plaintiffs on the application by the first and second defendants to strike out the statement of claim for want of prosecution. Further, four years have elapsed since the hearing of the application for leave to proceed. There was no material to show that nothing relevant to an application for leave had occurred during that time. The plaintiffs relied upon the bare assertion of counsel that an application for leave to proceed will not raise any matter that has not been dealt with on the first and second defendants' application filed more than four years ago. Further, the fourth defendant will be a party to an application by the plaintiffs for leave to proceed, but he was not a party to the co-defendants' application to dismiss for want of prosecution.

44 The Supreme Court Rules 2000 prescribe the procedure by which the Court conducts its business. Absent very good reason there must be compliance with those rules. No good reason has been demonstrated in this case.

45 The application by the first and second defendants and the application by the fourth defendant succeed. There will be an order that proceedings in the action be stayed until an order is made giving leave to take a further step in the proceeding in accordance with the Supreme Court Rules 2000, r56.

Argo Pty Ltd v Attorney-General

At a glance

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Judgment (97 paragraphs)

Argo Pty Ltd v Attorney-General (No 3) [2004] TASSC 51 (4 June 2004)

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