[2007] 1 Qld Rep 148
Tolcher v Gordon [2005] NSWCA 135
Source
Original judgment source is linked above.
Catchwords
(1996) 186 CLR 541
CDJ v VAJ [1998] HCA 76[2007] 1 Qld Rep 148
Tolcher v Gordon [2005] NSWCA 135
Judgment (4 paragraphs)
[1]
Judgment
HER HONOUR: This matter first came before me in the duty list on 6 February 2019, on which occasion Senior Counsel appearing for the plaintiff (Mr Paul Michael Barrett), Mr White SC, sought an extension of time for service of the statement of claim in these proceedings. It was not the first such application (as I explain in due course). Mr White informed me that his instructions were limited to the making of the extension application and "possibly" a cross-vesting application (as to which see further below at [19] and [21]). He sought an extension of the time for service of the statement of claim "probably until sometime in late March" (see T 1.25).
On that occasion, with no little hesitation having regard to the matters to which I will refer shortly, I extended the time for service of the statement of claim in these proceedings up to and including 11 March 2019; and I listed the matter before me at 10am on 11 March 2019. I indicated that in the event that the statement of claim was not served on or before 11 March 2019 Mr Barrett should show cause as to why the proceedings ought not be dismissed forthwith, and that I would address that issue, at the same time as any further application that might be made by Mr Barrett for an extension of time for the service of the statement of claim, when the matter came back before me. I indicated my concern that no notice had been given to the named defendants (the State of New South Wales, the New South Wales Land and Housing Corporation and Darlinghurst Area Rental Tenancy Co-Operative Limited) of the commencement of these proceedings and no attempt had been made to serve the statement of claim since it was filed in 2015 (see T 16.8ff).
The matter then came back before me on 11 March 2019. On that occasion I was advised by Mr White that the concerns I had expressed on 6 February 2019 had been conveyed to Mr Barrett and that Mr Barrett had done nothing further in relation to these proceedings. An application was again made orally by Mr White for an extension of time (relying on an affidavit that Mr Barrett had made in December 2017 in support of an earlier extension application).
For the reasons that follow, I am of the opinion that no further extension of time for the service of the statement of claim should be granted and that the proceedings should therefore be dismissed (the statement of claim now being stale). Since no step has been taken by the defendants in these proceedings (unsurprisingly, since they have never been served), it is not necessary to make any order as to costs.
[2]
Background
The background leading up to and history of these proceedings, as gleaned from the submissions made by Mr White (including a chronology helpfully prepared by Mr White) and material on the Court file, can be summarised as follows. It should be noted that I make no findings of fact in this summary.
Mr Barrett was born with a congenital disability which I am informed has worsened over time and inhibits, at least in a practical sense, his ability to provide instructions in relation to these proceedings.
In 1997, Mr Barrett was a public housing tenant, in receipt of a disability rental subsidy from the Department of Housing. On 27 July 2001, Mr Barrett commenced anti-discrimination proceedings in the Federal Court against the New South Wales Department of Housing (now the New South Wales Department of Family and Community Services). Those proceedings were settled in 2002 by a Deed of Release dated 21 May 2002, pursuant to which Mr Barrett was to have a lease of premises in respect of which works were to be carried out (effectively to fit out the premises for him) and certain payments were to be made to him ($2,000 and then a payment of $8,000 when the premises became available). His rental subsidy was to cease when the premises were available to him.
On 24 July 2003, the then NSW Office of Community Housing terminated the agreement to renovate the premises. I do not know the basis on which the agreement was terminated.
In December 2014, Mr Barrett's disability rental subsidy ceased.
On 23 July 2015 (the day before the 12 year limitation period for claims under the Deed of Release expired), Mr Barrett commenced these proceedings by filing a statement of claim. In his statement of claim he alleges breach of contract by the defendants who "continually persistently refused, neglected or failed to carry the Agreement into execution" with the consequence that Mr Barrett "suffered and continues to suffer loss and damage" (statement of claim at [19]). Mr Barrett seeks relief, including a declaration that the agreement (in the Deed of Release) ought be acted upon and carried into execution and for equitable damages.
No steps apparently were (or have ever been) taken to serve that statement of claim. On 29 November 2017, by which time the period within which the statement of claim was required to be served had already lapsed, the matter came before Registrar Walton, who made directions for Mr Barrett to file a notice of motion for an extension of time and affidavit in support and for that motion to be made returnable on 20 December 2017.
A notice of motion was filed on 19 December 2017 together with an affidavit of that date from Mr Barrett in support of the motion.
On 20 December 2017 the matter came again before Registrar Walton, who granted an extension for Mr Barrett to serve the statement of claim on the defendants to 31 March 2018. The matter was subsequently stood over to 16 April 2018; and again to 25 June 2018. On 25 June 2018, Deputy Registrar Hedge adjourned the matter to 16 July 2018, directing that any further adjournment application be by affidavit.
On 16 July 2018, Registrar Walton listed the matter before the duty judge on 14 August 2018 to consider dismissing the proceedings.
On 14 August 2018, the matter came before Rein J. His Honour extended the time for service of the statement of claim to 25 September 2018. As I understand it, his Honour on that occasion ordered that if the statement of claim was not served by 25 September 2018 the proceedings would be automatically dismissed and relisted the matter before the Registrar on 26 September 2018 (presumably for formal orders to be made, as contemplated, in the event that the statement of claim had not been served by them) (see email of 20 September 2018 from Mr White to the chambers of Rein J, seeking a re-listing of the matter at short notice before a judicial officer on 25 September 2018 "so that Mr Barrett can have a solicitor with whom he is in discussions attend the Court and advise what that solicitor is now doing to assist Mr Barrett, and to advise that Mr Barrett's application for a termination certificate in the Human Rights Commission proceedings concurrently on foot is still in progress").
The matter was listed before the duty judge on 25 September 2018 and the time for service was again extended to 19 November 2018. On 19 November 2018, the matter came before Lindsay J in the duty list. His Honour extended time for service of the statement of claim until 8 February 2019 and listed the matter before the duty judge on 6 February 2019 for directions, which is when the matter came before me.
The position, as explained to me on that occasion (and to which Mr Barrett deposes in his December 2017 affidavit) is that Mr Barrett (though he had pro bono legal representation at the time the statement of claim was prepared and filed) has had difficulty obtaining legal representation here or (as I understand it) in the United Kingdom, despite efforts to secure such representation. He has apparently had the benefit of advice from a retired solicitor (and has also had the benefit of Mr White appearing on a pro bono basis on at least the two extension applications made before me).
Mr Barrett currently has on foot an anti-discrimination complaint against the Department of Housing in the Human Rights Commission. I am informed that Mr Barrett has the benefit of representation from members of the Victorian Bar in relation to that complaint. I am also informed that that complaint relates to the same event as that which founded the Federal Court proceedings that were settled back in 2002 (and in respect of which settlement the present proceedings relate) (see T 6/2/19; 2.41-4.50).
Mr White informed me that "in recent times" Mr Barrett has been seeking to terminate his complaint in the Human Rights Commission, following which he intends to commence proceedings in relation to the matters the subject of that complaint in the Federal Court (and then to make an application to cross-vest the proceedings in this Court to the Federal Court to be dealt with as part of that, yet to be commenced, set of proceedings) (see T 3.39).
When the matter came before me on 6 February 2019, I was informed by Mr White that, since Lindsay J made orders in November 2018, Mr Barrett "has been attempting to put out bush fires in the Human Rights Commission", with the help of Senior Counsel in Melbourne, "in order to ensure that he can get [his] complaint properly terminated"; that Mr Barrett had been devoting all of his time to that; and that this was the reason that nothing further had happened in the proceedings in this Court (see T 46.4ff).
Mr White accepts that the proceedings in this Court do not need to await the determination of the complaint in the Human Rights Commission and/or the commencement of any proceedings in the Federal Court; and that they are completely separate proceedings. He also appeared to accept that if Mr Barrett wishes to prosecute these proceedings he should do so in accordance with the mandate provided under the Civil Procedure Act 2005 (NSW) for the just, quick and cheap resolution of the real issues in dispute in the litigation. However, he made clear that (at T 5.31ff):
… What Mr Barrett wishes to do is he wishes to commence his Federal Court proceedings in relation to the discrimination complaint and then cross‑vest these proceedings into the Federal Court so they can be all dealt with together and that is why he is trying to have the complaint in the Commission terminated properly so that these two proceedings can then end up together in the Federal Court. That is what he wishes to do.
[3]
Determination
The application for a further extension of the time for service of the statement of claim is made pursuant to r 1.12 of the Uniform Civil Procedure Rules 2005 (NSW). The principles applicable to the exercise of the discretion to extend time for service of originating process have been considered in a number of decisions (see, in particular, Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 (Buzzle); Agricultural & Rural Finance Pty Ltd v Kirk [2010] NSWCA 132 (Agricultural & Rural Finance); Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433 at first instance and on appeal (Weston v Publishing and Broadcasting Ltd [2012] NSWCA 79) (Weston)).
It is clear that the test to be applied on such an application is no longer one formulated by reference to the existence of a broad discretion that may be exercised "for any good reason" (such a test having been said to be inadequate and incomplete; and capable of leading to error - see Buzzle per Ipp JA from [27]). Rather, the test requires consideration and balancing of a number of relevant factors, including: the attempts that have been made at service; the length of the delay; the reasons for the delay; whether the delay was deliberate; whether notice was given to the defendant; the conduct of the parties generally; the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it; the requirements of ss 56 to 59 of the Civil Procedure Act 2005 (NSW); and, if not already encompassed in the above, the policy underlying the statutory limitation periods and the rules in relation to service of an originating process (see Buzzle at [43], as confirmed by the Court of Appeal in Agricultural & Rural Finance).
That this is so can be seen by reference to what was said in in Buzzle. There, Ipp JA (with whom Tobias and McColl JJA agreed), having referred to what was said in CDJ v VAJ [1998] HCA 76; (1998) 197 CLR 172 per Gaudron J (at [53]-[54]) and by way of illustration to the approach in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 (per McHugh J at 554 and Kirby J at 564-565) (Brisbane Health) and in The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2006] QCA 407; [2007] 1 Qld Rep 148 per Keane JA, as his Honour then was), made clear (at [28]) that although the rule "requires the exercise of a judicial discretion, not fettered by inflexible prescriptions", the discretion is not at large; and said that it is to be exercised "in the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context) and in accordance with principles developed by judicial decisions", including, in this jurisdiction, ss 56 to 59 of the Civil Procedure Act 2005 (NSW) (see Ipp JA at [36]); and the policy behind the applicable limitation statute (Ipp JA noting at [37] what had been said by Hodgson JA in Tolcher v Gordon [2005] NSWCA 135; 53 ACSR 442 (at [3])) (Tolcher v Gordon); as well as in accordance with principles encompassed within the doctrine developed by judicial decisions.
On the extension application before me, no real focus was placed on any of those factors. Rather, so far as I could glean from the oral submissions, the sole basis for the application for yet another extension of time for service of the statement of claim is that Mr Barrett wishes to conduct these proceedings in a particular way (by having them cross-vested at some future time to the Federal Court to be dealt with when his Human Rights Commission complaint is terminated and proceedings are then commenced in the Federal Court).
Turning to the factors identified in the authorities as relevant matters for consideration on an application such as this, I note the following.
As to attempts at service, there is no evidence of any attempt at service of the originating process. Although the 20 September 2018 email to the chambers of Rein J did suggest that there may have been some attempt (stating that "[t]he position is that Mr Barrett has not been able to have the process served"), Mr White acknowledged on 6 February 2019 that no step had been taken to serve the pleading since it was filed in 2015 (see T 8.1). The fact that Mr Barrett is largely confined to his home is no basis for concluding that he could not have arranged through process servers to have the statement of claim properly and promptly served. The position is simply (as is evident from the submissions made on his behalf) that he does not wish to do so at this stage.
As to the length of delay, which relevantly should be calculated from the time of filing of the statement of claim, it has now been nearly four years. Of course, when considering the question of prejudice arising from the delay, it should be noted that it is now some 16 years from the alleged breach of the Deed of Release.
As to the reasons for the delay, although Mr Barrett points to the difficulty in obtaining legal representation, the real reason for the delay (at least now, if not earlier) seems to be the desire of Mr Barrett not to prosecute these proceedings until after termination of his Human Rights Commission complaint and commencement of Federal Court proceedings in relation to the same event the subject of the present proceedings.
As to whether the delay has been deliberate, it must be concluded that it has (at the very least from the time that applications for an extension of time for service were made, since by then Mr Barrett has been squarely on notice of the risk that the proceedings would be dismissed if service was not effected in accordance with the orders made extending the time for service).
As to whether notice was given to the defendants, it is acknowledged that none has been given (notwithstanding that at least one of the defendants is apparently a respondent to the Human Rights Commission complaint).
As to the conduct of the parties generally, Mr Barrett has deliberately delayed effecting service of the originating process in order to conduct the proceedings as he chooses (and, in so doing, has in effect arrogated to himself the right to decide the time at which the originating process should be served). There is nothing before me to suggest that any conduct by any of the named defendants has contributed to the delay in service of the originating process or is otherwise relevant on this application.
As to the hardship or prejudice caused to Mr Barrett by the Court refusing the extension (or to the defendants by granting it), the prejudice to Mr Barrett is that his claim based on the Deed of Release will no longer be able to be pursued and the proceedings dismissed. However, he is apparently contemplating fresh proceedings against at least one of the named defendants arising out of the very same events. I was informed that there has been no suggestion made in the Human Rights Commission that any such claim would be an abuse of process or otherwise liable to be defeated by reference to the earlier Federal Court proceedings. If the claim in these proceedings is dismissed, it has not been demonstrated that this will have any prejudicial effect on the claim sought to be brought in the Federal Court. On the other hand, the prejudice to the named defendants if there is yet another extension is obvious. The prejudicial effect of delay on the quality of justice has been well recognised (see Brisbane Health per McHugh J (at 552-553); Tolcher v Gordon per Hodgson JA (at [2]-[3]), and the authorities to which I referred in Weston including Buzzle and Agricultural & Rural Finance, to name but a few examples). In the present case, the termination of the agreement comprised in the Deed of Release occurred back in 2003. Mr White quite fairly conceded that it could not be said that there would be no prejudice to the Department of Housing (arising from the delay) in those circumstances (see T 8.25).
As to the requirements of ss 56 to 59 of the Civil Procedure Act, suffice it to note that the manner in which these proceedings have been left unprosecuted over some four years is antithetical to the manner in which litigation in this Court should be conducted in accordance with the statutory mandate there prescribed (and Mr White did not attempt to suggest otherwise).
As to the policy behind limitation statutes in general, in Tolcher v Gordon, Hodgson JA noted (at [3]) that:
Although the three-year period is a limit for the commencement of such proceedings, not service of the proceedings, in my opinion an important aspect of the public policy behind the limitation period is that potential defendants should be made aware of claims against them within a reasonable time; so that in my opinion, delay in service of such proceedings, in contravention of the rules, is particularly serious if it occurs after the expiration of the three-year limitation period. A liquidator who does not commence proceedings until just before expiry of the limitation period should in my opinion be especially diligent in pursuing prompt service of the proceedings. [emphasis per original]
I accept that in the present case Mr Barrett is not a liquidator. However, the situation is that proceedings were commenced one day before the expiry of a 12 year limitation period and the originating process has still not been served almost four years later.
Finally, as to the principles to be discerned from other cases, it is relevant to note that, as adverted to above, it is not for a plaintiff to arrogate to itself the decision as to the period in which the originating process is to be served (see Buzzle per Ipp JA at [81]-[82], his Honour there citing Lord Goddard in Battersby v Anglo American Oil Co Limited [1945] KB 23 (at 32) in a passage cited with approval in Kleinwort Benson Ltd v Barbrak Ltd [1987] AC 597 at 617 and by Lord Browne-Wilkinson in Dagnell v Freedman & Co [1993] 1 WLR 388 at 394). Here, the seeming insistence by Mr Barrett on pursuing his own time frame for service of the statement of claim is redolent of such an approach. It should not, in my opinion, be encouraged or rewarded by yet another extension.
Balancing the above factors, I am of the view that they point firmly against the grant of a further extension of time to serve the statement of claim. Mr Barrett has had ample time to effect service if he wished to prosecute the claim made in these proceedings and, as a litigant in this Court, it is incumbent on him to conduct proceedings in accordance with the overriding statutory mandate for the just, quick and cheap resolution of the real issues in dispute. This is not a case where he has not had the benefit of legal assistance. It is clear that he has had the benefit of advice as to whether, in the face of the concerns I expressed in February 2019 (and earlier, when orders were made by Rein J in August 2018 which contemplated automatic dismissal of proceedings if the statement of claim was not served within the extended time frame), to give instructions for the service of his originating process. He has chosen not to give those instructions. So be it. In all the circumstances I am not persuaded that, on a principled exercise of the discretion to extend time for service of the originating service, a further extension should be granted.
Accordingly, I make the following orders:
1. Refuse leave for a further extension of time for the service of the statement of claim.
2. To the extent that it remains extant, dismiss the plaintiff's notice of motion dated 19 December 2017.
3. Dismiss the proceedings.
4. Make no order as to costs.
As this will have the effect of finally disposing of the proceedings, the Court file will be closed.
[4]
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Decision last updated: 20 March 2019