Benz & Anor v Clough

SUPREME COURT OF QUEENSLAND

CITATION: Benz & Anor v Clough [2008] QCA 125

PARTIES: ELIZABETH MINA BENZ (first applicant/first appellant) JOHN CAMPBELL HOWARD / (second applicant/second appellant) v PAUL HENRY CLOUGH (respondent)

FILE NO/S: Appeal No 248 of 2008 / SC No 9511 of 2002

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 30 May 2008

DELIVERED AT: Brisbane

HEARING DATE: 21 May 2008

JUDGES: de Jersey CJ, Keane JA and White J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – TIME – where the appellants filed a claim and statement of claim in the Supreme Court on 16 October 2002 for damages allegedly suffered as a result of professional negligence of the respondent – where the claim was not served on the respondent – where the claim was renewed annually from 2003 to 2006 – where the appellants applied for leave to renew the claim pursuant to r 24(4) of the Uniform Civil Procedure Rules 1999 (Qld) – whether there is good reason to grant leave to renew the claim / Uniform Civil Procedure Rules 1999 (Qld), r 5, r 24(4) / Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, [1996] HCA 25, applied / The IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, [2006] QCA 407, applied

COUNSEL: The second appellant appeared on his own behalf and on behalf of the first appellant / The respondent appeared on his own behalf

SOLICITORS: The second appellant appeared on his own behalf and on behalf of the first appellant / The respondent appeared on his own behalf

1. de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Keane JA. I agree that the appeal should be dismissed for those reasons.

2. KEANE JA: On 16 October 2002 the plaintiffs filed a claim and statement of claim in the Supreme Court seeking damages from the respondent for loss allegedly suffered by them in 1996 as a result of the professional negligence of the defendant. The claim was not served on the respondent, and the plaintiffs renewed the claim on an annual basis from 2003 to 2006. On 12 December 2007 the plaintiffs applied ex parte for leave to renew the claim pursuant to r 24(4) of the Uniform Civil Procedure Rules 1999 (Qld) ("the UCPR"). That application was refused by the learned primary judge.

3. The learned primary judge summarised the circumstances of the earlier renewals as follows:

"The material indicates that in 2003 renewal was obtained on the basis of an affidavit filed by the plaintiffs deposing to them being handicapped persons who had health complications and who were seeking pro bono assistance in relation to their claims and were applying to QPILCH for assistance. On that occasion the claim was renewed by the registrar.

In 2004 the claim was again renewed, apparently on the basis of an affidavit filed in the matter and sworn to by Mr Keller. That affidavit indicated that Mr Keller's firm was assisting the plaintiffs at that stage; that is, in late 2004 on a pro bono basis.

The writ was renewed again in 2005. On that occasion an affidavit was filed by the plaintiffs again deposing to their health difficulties and financial difficulties. It was indicated in that affidavit:

'We can now say that we have been able to obtain the services of solicitor and counsel pro bono who now require discovery to all relevant documents and a chronology of events. We are using our best efforts to pursue these matters.'

On 16 October 2006 the writ was again renewed. On that occasion an affidavit was filed again deposing to the health difficulties suffered by the plaintiffs and the supporting documentation was annexed to the affidavit concerning those health difficulties. An application was filed in the registry on 22 October 2007 seeking further renewal of the claim. On that occasion an affidavit was filed by the plaintiffs deposing essentially to the same health issues that had been the subject of previous affidavits and before the Court the male applicant indicated that there had been discussions with the solicitor in relation to that solicitor assisting on a pro bono basis."

4. In the course of the hearing before the learned primary judge, it was suggested by the plaintiff, Mr Howard, who spoke for himself and Ms Benz, that the Counsel who the plaintiffs believed had agreed to act for them was Mr A J H Morris QC. As it happened, Mr Morris QC was in the back of the courtroom when his involvement in the matter was mentioned, and her Honour asked Mr Morris QC if he could offer any assistance in relation to the position. Mr Morris denied that he had been approached to act for the plaintiffs in the matter.

5. The learned primary judge went on to conclude:

"It seems to me, in the circumstances, that no good reason has been shown for the failure to serve the proceedings over a 5 year period.

There are clearly concerns when proceedings are issued in relation to events which are alleged to have occurred many, many years before the proceedings are served on a defendant. That would appear to be the case that will eventuate if renewal is granted. I do not consider that any other good reason has been shown for the renewal of the proceedings, and as I indicated, I cannot accept that any good reason has been shown for the failure to serve the claim of the period since it was last renewed.

Essentially the reason put forward by the applicants is that they were seeking legal representation and they have been of ill health, but I cannot accept that as an appropriate explanation in the circumstances, and particularly given the long history of renewal of the claim."

6. On the appeal, the plaintiffs pointed to affidavit material which showed that, in 2004, they had approached a solicitor, Mr Richard Keller, to act for them in the matter and that Mr Keller had spoken to Mr Morris QC on their behalf. It seems from documents in the record that, in 2004, Mr Morris QC indicated a willingness to act on the plaintiffs' behalf. It is hardly surprising, however, that Mr Morris QC did not recall this brief contact three years later. It must also be said that Mr Howard had not spoken to Mr Keller in 2007, and was even unable to say that he had spoken to Mr Keller about the matter in 2006.

7. While one can understand a failure of memory on Mr Morris' part, one can also understand the plaintiffs' concern that the suggestion to the learned primary judge that Mr Morris had not agreed to act on their behalf, a suggestion not borne out by the material in the record, might have led the learned primary judge to take an adverse view of their credibility. In this Court, Mr Howard, speaking on behalf of Ms Benz as well as on his own behalf, expressed the plaintiffs' concern that their reputations had been damaged by the course of the hearing before the learned primary judge. In this regard, one can say immediately that the plaintiffs should not be concerned that their reputations have suffered as a result of Mr Morris' suggestions to the learned primary judge. Her Honour expressed no adverse view of the plaintiffs' honesty or probity; and, in my respectful opinion, there was no reason why any adverse view should be taken of the plaintiffs' honesty or probity.

8. The important point, so far as the decision of the learned primary judge is concerned, is that whatever arrangements may have been made in 2004 for the plaintiffs to receive legal assistance, it is abundantly clear that those arrangements never reached the stage where the plaintiffs were able to proceed with their action. Three years later, the plaintiffs' position has not materially improved. The plaintiffs have failed to comply with their obligation under r 5(3) of the UCPR "to proceed in an expeditious way". So far as the evidence before the learned primary judge was concerned, the plaintiffs did not appear to be in a position to do so even at that time.

9. This Court's decision in The IMB Group Pty Ltd (In Liq) v Australian Competition and Consumer Commission¹ emphasised that an applicant for leave under r 24(4) of the UCPR must show some good reason for the grant of leave. This was the issue which the learned primary judge addressed.

10. Many years have elapsed since the events in respect of which the plaintiffs wish to sue. The defendant would inevitably be prejudiced by such a delay as McHugh J explained in Brisbane South Regional Health Authority v Taylor. And there was no basis for her Honour to expect that the plaintiffs would be able to proceed with their claim within any reasonable timeframe. One may have every sympathy with the plaintiffs by reason of their age, infirmity and impecuniosity; but these matters do not afford any reason to conclude that their claim can, or will, now proceed fairly to all parties, and in an expeditious way. The courts should not be astute to promote a position whereby a plaintiff can hold the Damoclean sword of litigation over an unsuspecting defendant in respect of stale complaints, growing ever more stale, for an indeterminate time while doing nothing actually to prosecute that litigation.

Footnotes

¹ [2007] 1 Qd R 148.

² (1996) 186 CLR 541 at 551 – 552, 555 – 556.

Footnotes

1. [2007] 1 Qd R 148. ↩ ↩²

2. (1996) 186 CLR 541 at 551 – 552, 555 – 556. ↩ ↩²