PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS –
DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – NON-COMPLIANCE
WITH
COURT ORDER – DELAY OF MORE THAN THREE YEARS – LEAVE TO PROCEED
Source
Original judgment source is linked above.
Catchwords
PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS –DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – NON-COMPLIANCEWITHCOURT ORDER – DELAY OF MORE THAN THREE YEARS – LEAVE TO PROCEED– where the plaintiffs in two separate butrelated proceedings were indefault of a court order to file and serve statements of claim – wherethe plaintiffs otherwisetook no steps to progress the proceedings for overthree years – where there was no satisfactory explanation fornon-compliancewith the order or for the subsequent delay – where theplaintiffs adduced no evidence as to their capacity to prosecute theirclaims to
a judicial determination in a timely way – whether there should be a grant
of leave to proceed – whether the
plaintiffs had shown cause why an order
should not be made against them – whether the proceedings should be
dismissed for want
of prosecution
Corporations Act 2001 (Cth), s
444E
Limitations of Actions Act 1974 (Qld), s 38(1)(c)
Uniform
Civil Procedure Rules 1999 (Qld), r 5, r 280, r 374, r 389
Aon
Risk Services v Australian National University [2009] HCA 27
Dealquip Australia Pty Ltd v 33 Electra Pty Ltd (No. 2)
(2013) 31 ACLC 13-049
[2013] NSWSC 1382, cited
Johnson v Public Trustee
of Queensland as executor of the will of Brady (decd) [2010\ QCA 260,
cited
Lenijamar Pty Ltd v AGC (Advances) Ltd [1990] FCA 520
(1990) 27 FCR 388,
followed
Lilyville Pty Ltd v Colonial Mutual Life Assurance Society Ltd
[1999] QSC 372, cited
Quinlan v Rothwell [2001] QCA 176
[2002] 1 Qd R 647,
cited
SMN v WEM [2017] QSC 242, cited
Thomas v St George Bank
[2013] QCA 136, cited
Tyler v Custom Credit Corp Ltd & Ors
[2000] QCA 178, followed
Judgment (70 paragraphs)
[1]
14 February 2024; joint supplementary written submissions dated 23 February 2024
[2]
(a) The proceeding is dismissed;
(b) The plaintiffs' cross-application filed on 1 February 2024 is dismissed;
(c) The plaintiffs shall pay the first defendant's costs of the proceeding (including the costs of the first defendant's application) to be assessed on the standard basis.
[3]
(d) The proceeding is dismissed;
(e) The plaintiff's cross-application filed on 1 February 2024 is dismissed;
(f) The plaintiff shall pay the fourth defendant's costs of the proceeding (including the costs of the fourth defendant's application) to be assessed on the standard basis.
[4]
PROCEDURE - COURTS AND JUDGES GENERALLY - COURTS - DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION - NON-COMPLIANCE WITH COURT ORDER - DELAY OF MORE THAN THREE YEARS - LEAVE TO PROCEED - where the plaintiffs in two separate but related proceedings were in default of a court order to file and serve statements of claim - where the plaintiffs otherwise took no steps to progress the proceedings for over three years - where there was no satisfactory explanation for non-compliance with the order or for the subsequent delay - where the plaintiffs adduced no evidence as to their capacity to prosecute their claims to a judicial determination in a timely way - whether there should be a grant of leave to proceed - whether the plaintiffs had shown cause why an order should not be made against them - whether the proceedings should be dismissed for want of prosecution
Tyler v Custom Credit Corp Ltd & Ors[2000] QCA 178, followed
[22]
S S Monks, for the plaintiffs in BS 6866 of 2020 and the sole plaintiff in BS 6869 of 2020
[23]
J P Hastie, for the first defendant in BS 6866 of 2020 and the fourth defendant in BS 6869 of 2020
[24]
Mahoneys Lawyers, for the plaintiffs in BS 6866 of 2020 and the sole plaintiff in BS 6869 of 2020
[25]
Coves & Co, for the first defendant in BS 6866 of 2020 and the fourth defendant in BS 6869 of 2020
[26]
[1] The applications in these separate, but related, proceedings were heard together. One of the defendants common to both proceedings applied for orders dismissing the proceedings for want of prosecution or, alternatively, for failure on the part of the plaintiffs to comply with orders of the court. Both applications were met with cross-applications for leave to proceed.
[2] For the reasons which follow, leave to proceed is refused and both proceedings will be dismissed with costs.
[27]
[3] The applicant defendant - The Proprietors of Couran Cove Resort - Lagoon Lodges GTP 106808 (Lagoon) - is a subsidiary body corporate for a residential precinct in a mixed-use development scheme known as the Couran Cove Resort on South Stradbroke Island. It is the first defendant in proceeding BS 6866 of 2020 and the fourth defendant in proceeding BS 6869 of 2020. Lagoon is comprised of 48 residential lots at the resort, not all of which have been developed.
[4] The overall scheme for the resort is layered. The parent body corporate is the first defendant in proceeding BS 6869 of 2020 - Couran Cove Resort Community Body Corporate MCP 106751 (CBC). The second defendant - The Proprietors of Couran Cove Resort - Eco Lodges GTP 106783 (Eco Lodges), the third defendant - The Proprietors of Couran Cove Resort - Marine Apartments GTP 106784 (Marine Apartments) - and the fifth defendant - The Proprietors of Couran Cove Resort - Broadwater Villas GTP 106807 (Broadwater Villas) - in that proceeding are, like Lagoon, each a subsidiary body corporate for a distinct residential precinct within the resort. Eco Lodges, Marine Apartments, Lagoon and Broadwater Villas are each a member of CBC.
[5] The first plaintiff in proceeding BS 6866 of 2020 and the sole plaintiff in proceeding BS 6869 of 2020 - Island Resorts (Developments) Pty Ltd (IRD) - is the owner of several developed and undeveloped residential lots in the resort including lots in Lagoon and Eco Lodges. It is also a member of CBC. The other plaintiff in proceeding BS 6866 of 2020 - CCH Developments No 1 Pty Ltd (CCH) - does not own any property in Lagoon but its sole shareholder is IRD. At the time of the hearing, CCH was subject to a deed of company arrangement. Lagoon was not, however, precluded by s 444E of the Corporations Act 2001 (Cth) from pursuing dismissal of proceeding BS 6866 of 2020 for want of prosecution without leave of the court. This is because such an application is essentially defensive in character and therefore not a "proceeding against a company" within the meaning of that expression as it is used in that provision. That said, where in these reasons I mention IRD and CCH together, they shall be collectively referred to as the plaintiffs.
[28]
[7] In May 2020, Lagoon commenced proceedings against IRD for the recovery of body corporate levies alleged to be owed to it. They were commenced in the District Court at Southport (for the recovery of the sum of $620,576.42) and in the Magistrates Court at Southport (for the recovery of the sum of $104,662.82). IRD filed a defence in each proceeding in which it was alleged that the contributions Lagoon was seeking to recover were "void as a matter of law as being ultra vires of (Lagoon)". The subject proceedings were then commenced by the filing of originating applications about a month later.
[8] In proceeding BS 6866 of 2020, the plaintiffs claim relief against Lagoon and Eco Lodges on account of allegedly invalid levies imposed on them as members of those bodies corporate and, in proceeding BS 6869 of 2020, IRD claims relief against CBC, and ancillary relief against Eco Lodges, Marine Apartments, Lagoon and Broadwater Villas, on account of allegedly invalid levies imposed on it by CBC. At the heart of both proceedings is the question whether CBC had power to enter into a particular infrastructure service agreement and, if so, whether contributions struck in respect of charges under that agreement were lawful. There is then an allied question whether there should be an accounting of those contributions. From at least the points of view of the plaintiffs, the answers to these questions would appear to largely turn on provisions of the Mixed Use Development Act 1993 (Qld) and the Building Units and Group Titles Act 1980 (Qld), various by-laws of the development scheme and the proper construction of the infrastructure service agreement. In both proceedings, the plaintiffs seek various forms of relief including declarations, orders that would relieve them of the liabilities that the various bodies corporate have imposed on them and restitution for the levies previously paid. A substantial sum, submitted to be nearly $20 million, was said to be at stake.
[9] On 22 July 2020, Williams J ordered that these proceedings be heard together and listed them for final hearing on 12 and 13 October 2020. That listing was later vacated by her Honour and fresh trial dates set for 30 November and 1 December 2020.
[29]
[13] On 3 December 2023, Lagoon filed applications for orders dismissing both proceedings for:
[30]
(a) want of prosecution under UCPR r 280; or
(b) failure to comply with the order of Martin J pursuant to UCPR r 374.
[31]
[14] On 1 February 2024, the plaintiffs filed applications for orders to:
[32]
(a) grant them leave to take a step in the proceedings pursuant to UCPR r 389(2);
(b) grant them an extension of time to comply with Martin J's order of 24 November 2020; and
(c) strike out the proceedings if they did not file and serve a statement of claim within the period of the extension, if granted.
[33]
[15] Each of Eco Lodges, Marine Apartments[2] and Broadwater Villas offered their consent to the orders sought on behalf of Lagoon. Despite being served through its solicitors with the applications, CBC gave no advance indication of its attitude to it and nor was it represented at the hearing. As for the Lot Owner Defendants, after service was effected in accordance with an order made by Williams J on 22 July 2020, no notices of address for service were filed and none of those defendants took an active role in that proceeding. By later order made by Bradley J, the parties were relived of the obligation to serve any of the material filed in the proceeding on them.
[34]
[16] UCPR r 280 confers an unfettered discretion on the court to dismiss a proceeding for want of prosecution,[3] and its exercise is often seen to be informed by the implied undertaking of parties under UCPR r 5 to proceed in an expeditious way.[4] It applies where a plaintiff is obliged to take a step required by the rules[5] or comply with an order of the court within a stated time but fails to do so within that time. In any such case, the court may dismiss the proceeding or make such other order as it considers appropriate. The onus is on the applicant for dismissal to make good the proposition that the proceeding should be terminated or otherwise dealt with in accordance with the rule.[6]
[17] In a case like this where the alleged want of prosecution takes in non-compliance with an order of the court, UCPR r 374 covers similar ground to UCPR r 280. UCPR r 374 applies where a party does not comply with an order to take a step in a proceeding. In such a case, another party who is entitled to the benefit of the order may, by application, require the party who has not complied with it to show cause why an order should not be made against it including the entry of judgment against the defaulting party. The power to do so does not require "intentional default or contumelious conduct", although the attitude of the defaulting party to the default and the court's judgment as to whether that party "genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule".[7] As with UCPR r 280, the exercise of the discretion conferred by UCPR 374 must take account of the purpose of the rules, that is to say, to "facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense" and that of course is the rationale for the implied undertaking under UCPR r 5.[8] When the rule is pressed into service by a party with the benefit of an order, it is for the defaulting party to show cause why an order should not be made against it. In that regard, although it is not possible to exhaustively state the circumstances under which the power to dismiss a proceeding for failure to comply with the rules will appropriately be exercised, in a passage from which was later followed by Applegarth J in , the Full Court of the Federal Court observed:
[35]
"... two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding."
[36]
(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.
[37]
(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.
[38]
(3) For this rule, an application in which no order has been made is not taken to be a step."
[39]
[19] Here, the plaintiffs seek leave to proceed under UCPR r 389(2). The discretion conferred by that sub-rule is to allow a case to proceed despite the general prohibition against it continuing where no step has been taken for two years from the time the last step was taken. Whether there is a satisfactory explanation for the delay in the prosecution of the case and whether the opposing party or parties will suffer prejudice if the case proceeds are always relevant factors.[11] The applicant for leave to proceed must satisfy the court the grounds exist for exercising the discretion in its favour.
[20] More broadly, in a case such as this where the court is considering whether to dismiss a case for want of prosecution or whether to give leave to proceed, recourse is more often than not had to the non-exhaustive list of factors that the court may take into account in determining whether the interests of justice require the case to be dismissed which were set out in Tyler v Custom Credit Corp Ltd,[12] as follows:
[40]
"(1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation was commenced;
[41]
(2) how long ago the litigation was commenced or causes of action were added;
[42]
(3) what prospects the plaintiff has of success in the action;
[43]
(4) whether or not there has been disobedience of Court orders or directions;
[44]
(5) whether or not the litigation has been characterised by periods of delay;
[45]
(6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;
[46]
(7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff's impecuniosity;
[47]
(8) whether the litigation between the parties would be concluded by the striking out of the plaintiff's claim;
[48]
(10) whether or not the delay has been caused by the plaintiff's lawyers being dilatory. Such dilatoriness will not necessarily be sheeted home to the client but it may be. Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisers;
[49]
(11) whether there is a satisfactory explanation for the delay; and
[50]
(12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial."[13] [References omitted]
[51]
The explanation advanced for non-compliance and delay
[52]
[21] In addition to what can be gleaned from the exchange of correspondence in late 2021 and early 2022 to which I earlier referred (at [12]), the only evidence relied on by the plaintiffs at the hearing to explain their failure to comply with the order made by Martin J on 24 November 2020 or otherwise to progress the proceedings came in the form of an affidavit affirmed by the plaintiffs' solicitor, Mr Mahoney, and an affidavit affirmed by the sole director of the plaintiffs, Mr McIntosh. It is convenient to refer to that evidence now.
[22] Mr Mahoney deposed that, on 22 April 2020, senior and junior counsel were retained on behalf of the plaintiffs with respect to the dispute that gave rise to the commencement of both proceedings. There was an orthodox division of work; junior counsel was retained to, amongst other things, "draw court documents" and senior counsel was retained to "settle and finalise" those documents. Following the hearing before Martin J on 24 November 2020, the plaintiffs' solicitors (including Mr Mahoney) discussed with both counsel who "would be responsible for the next steps in the proceeding". Mr Mahoney's understanding of that discussion was that it was agreed junior counsel would prepare a draft statement of claim and, once prepared, it would be settled by senior counsel.
[23] The junior barrister failed to produce a draft statement of claim for either proceeding. This was despite several telephone calls from Mr Mahoney to the barrister during which he sought "updates" and no less than 11 emails to the same effect sent to the barrister between 22 February 2021 and 22 September 2021 by either Mr Mahoney or his supervising principal. Two months later, on 24 November 2021, Mr Mahoney telephoned the barrister to advise that his "client [could not] delay any further and [wanted] the brief sent to" other counsel. That duly occurred and a draft statement of claim for proceeding BS 6869 of 2020 was furnished to Mr Mahoney by the new barrister on 18 January 2022.
[24] That was all Mr Mahoney deposed. As a matter of reasonable inference, the draft must not have been provided to senior counsel for settling but Mr Mahoney did not, for example, attempt to explain why that did not happen or, indeed, why no further step was taken to progress the proceedings at any time in the ensuing two-year period before the filing of Lagoon's applications. I hasten to add, however, that on the hearing of these applications, counsel for the plaintiffs, Mr Monks (who was not the junior originally retained to draft the statement of claim or his replacement), did not suggest that Mr Mahoney or anyone else at the plaintiffs' solicitors was responsible for this subsequent delay. That delay, he submitted, was all due to the plaintiffs' impecuniosity and, to support that submission, he relied on Mr McIntosh's affidavit.
[53]
[30] It is useful to deal at the outset with some preliminary issues that go to the exercise of the court's discretion.
[31] First, at least for the purpose of these applications, it was accepted that the plaintiffs have an arguable case to advance in these proceedings. It was also common ground that the final determination of the issues may very well engage disputed questions of fact which will need to be resolved. So far as any prejudice to Lagoon is concerned if leave to proceed is granted, no particular prejudice could be identified, although Lagoon relied on what is sometimes referred to as general prejudice which may be presumed to arise through the effluxion of time.
[32] Second, joint supplementary submissions were advanced after the hearing on the question whether any of the claims in either proceeding would, or could be, statute-barred. That may, of course, be a factor against terminating the proceedings if fresh proceedings could be commenced by the plaintiffs,[15] assuming that the court is otherwise satisfied that the plaintiffs are able to do so and, just as importantly, are able to prosecute those proceedings with expedition. To that end, the nature of the claims brought by the plaintiffs, and their origin in time, were analysed. However, although it is possible to state that any claims for restitution with respect to levies which were paid more than six years prior to the commencement of the proceedings may be statute-barred, that will not be so if the plaintiffs can successfully call in aid s 38(1)(c) of the Limitations of Actions Act 1974 (Qld). By that provision, where there is an action "for relief from the consequences of mistake", the limitation period does not begin to run until the plaintiff has discovered the "mistake or could with reasonable diligence have discovered it". Here, the plaintiffs contend that the levies in question were paid because of a mistake of fact or law, that is to say, that the levies had been validly imposed when, on their case, they were not. Their mistake, it was submitted on instructions, was not discovered until May 2019 and, for that reason, they contend that time did not commence to run until then. On the other hand, Lagoon rightly pointed to the absence of any evidence on this point or on the question when the mistake could, with reasonable diligence, have been discovered. In the end, on the material before the court, no definitive conclusion could be reached about whether any of the plaintiffs' claims will, if fresh proceedings were commenced, be the subject of a time bar.
[54]
"If the plaintiff's failure to comply with court orders, its delay in readying the matter for trial and its apparent inability to prepare the matter for trial is due to a lack of funds then this should have been frankly stated in an affidavit which also addressed the plaintiff's ability to comply with future directions and its ability to have the matter ready for trial in an acceptable period."
[55]
[38] The plaintiffs have not discharged the onus on them to make good their case for leave to proceed, and leave will accordingly be refused. Nor have they shown cause for the purposes of UCPR r 374 why an order should not be made against them. Instead, I was persuaded by Lagoon that this was an appropriate case for an order dismissing both proceedings for want of prosecution. Despite the passage of over three years, the plaintiffs failed to comply with an order of this court to take a particular step in the proceedings. It was open to the plaintiffs at any time during the currency of that order to approach the court to either seek an extension of time to comply with it or be relieved from it. They did neither. Similarly, if it was the plaintiffs' preference to negotiate rather than progress their claims, the court should have been informed. As just discussed, no satisfactory explanation for their default was provided and, of the evidence which does exist on that topic, I am satisfied the plaintiffs were either unwilling to progress their cases to trial within an acceptable period or were unable to do so.
[56]
[39] It follows that both proceedings must be dismissed with costs and the cross-applications refused.
[2] The solicitor for Marine Apartments, Mr Tseng of Enyo Lawyers, appeared at the hearing but, after informing the court his client supported the orders sought by Lagoon and was content to abide the order of the court, he took no further part in the hearing and was excused.
[4] See, for example, Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors[2012] QSC 413, [50]. And see Aon Risk Services v Australian National University[2009] HCA 27; (2009) 239 CLR 175, 229.
[61]
[5] As to which, see Citicorp Australia Ltd v Metropolitan Public Abattoir Board[1992] 1 Qd R 592.
[6] Lastly, the second and fourth defendants in proceeding BS 6866 of 2020 are the balance of lot owners in Lagoon and Eco Lodges at the time when that proceeding was commenced (Lot Owner Defendants).
[10] On 24 November 2020, the proceedings came before Martin J (as his Honour then was) for review. His Honour vacated the trial listing. Orders were also made in each proceeding which, inter alia, required the plaintiffs to file and serve a statement of claim by 11 December 2020. That date came and went. A statement of claim was not filed or served, and this was still the position at the time when Lagoon's applications were heard over three years later. Indeed, no steps were taken by the plaintiffs to progress either proceeding in that time.
[11] Nothing happened about this until late 2021 when there was a brief exchange of correspondence between some of the parties.
[12] Initially, on 12 November 2021, the solicitors for Marine Apartments sent a letter pursuant to UCPR r 444 complaining about the failure of IRD to comply with the order made on 24 November 2020 and demanding that it do so. On 20 December 2021, Lagoon's solicitors sent correspondence in similar terms about the default in both proceedings. Then, on 10 January 2022, the solicitors for the plaintiffs responded. Their correspondence conveyed something of an explanation - "counsel has informed us that he only recently was provided with a full version of the brief" - as well as an assurance that a statement of claim would be filed on 20 January 2022. On that date, further correspondence was sent to the effect that a statement of claim in proceeding BS 6869 "had been drawn", a statement of claim in proceeding BS 6866 was "advanced" and that senior counsel had been engaged to settle those pleadings. It was then promised that the statements of claim would be filed on 28 January 2022. Plainly, this did not occur.
[25] Mr McIntosh accepted the plaintiffs failed to comply with the order made on 24 November 2020 and otherwise "delayed in filing a statement of claim". This was due, he deposed, to: (1) "delays experienced by [his] solicitors with counsel"; (2) the "impact of COVID-19 on [the plaintiffs'] business operations"; (3) the "impact of the suspension of services" at the resort; and (4) the "attempts undertaken to negotiate a resolution of the proceedings".
[26] As for (1), Mr McIntosh did not elaborate, referring instead to the affidavit affirmed by Mr Mahoney.
[27] As for (2), Mr McIntosh explained that, in addition to ownership of lots in Eco Lodges and Lagoon, the plaintiffs and "associated entities own a further 80 or so individual lots" at the resort. They were used by his "entities for short and long-term holiday letting" and this generated the plaintiffs' "only revenue". Bookings began to reduce in February 2020 in consequence of the COVID-19 pandemic and associated travel and movement restrictions to the point that, by around May 2020, all developed lots under the plaintiffs' control were vacant. Significant expenses were still being incurred in "maintaining the properties" but the plaintiffs' "main source of income had disappeared". By around December 2021, when restrictions eased, Mr McIntosh "began seeing some bookings". The plaintiffs, Mr McIntosh deposed, "did not reach 100% occupancy until at least December 2022".
[28] As for (3), Mr McIntosh pointed to what became a substantial dispute between CBC and others with a third-party service provider.[14] This culminated in the suspension of power and sewerage services to the resort in February 2023. Although supply was reinstated a short time later, the services were again suspended in April 2023 and that remained the position at the date of affirming his affidavit. This, Mr McIntosh deposed, "effectively eliminated [his] ability to earn revenue" because the "properties have sat vacant" since then.
[29] Lastly, as for (4), Mr McIntosh deposed that the scheme had "been involved in a disproportionate volume of litigation over the past five years" and that, over the preceding six months, he "had numerous conversations with various stakeholders where he attempted to reach a resolution" of the proceedings. He remained "hopeful that a resolution [could] be reached".
[33] Those matters made clear, I return to the explanation for the plaintiffs' non-compliance with an order of the court and subsequent delay which was advanced through the plaintiffs' counsel. Over the three-year period under consideration, the first year of inaction was submitted to be primarily due to the failure of junior counsel to produce draft pleadings and the balance of that period was submitted to be solely due to the plaintiffs' impecuniosity.
[34] The latter submission about impecuniosity was argued to arise as a matter of inference from the affidavit evidence of Mr McIntosh. Indeed, it was submitted this was "the only reasonable inference to draw".[16] However, the problem with that submission is not merely that Mr McIntosh did not expressly depose to impecuniosity on the part of the plaintiffs as the reason for their default, what he actually deposed hardly justifies the drawing of such an inference to the exclusion of all other reasonably available inferences. Although the account he gave to the effect that the revenue generated by the plaintiffs was adversely affected and then completely stalled by the events he described went unchallenged, Mr McIntosh said nothing about the presence or otherwise of any accumulated cash reserves (or external sources of finance) to fund what was needed to be done to either approach the court to be relieved of the burden of the order made on 24 November 2020 or to comply, however belatedly, with that order through the filing and service of settled pleadings. In fact, his affidavit was completely silent about the actual financial position of either plaintiff. The material otherwise discloses nothing about any request from Mr Mahoney or his firm for funds from the plaintiffs to progress the case or that any such request went unanswered.
[35] Furthermore, even if it were to be accepted that the plaintiffs were impecunious, no evidence was advanced through Mr McIntosh or anyone else to the effect that the plaintiffs could in some way fund the proceedings to their conclusion if leave to proceed was granted. In this regard, at the time when the order was made by Martin J for the plaintiffs' cases to be pleaded, the proceedings were still at an early stage. Trial dates had already been twice allocated but vacated when early thoughts the hearing could be accommodated in a short and streamlined way appear to have been revised, if not abandoned. But, despite this, nothing was deposed to offer any support for a conclusion that the plaintiffs had the financial wherewithal (or some external source of financial assistance) to plead their cases, move through the necessary interlocutory processes and proceed to the conclusion of a trial.
[36] The omission to do so, although not necessarily decisive of the way in which the discretions invoked by these applications should be exercised, was significant. After all, although a brace of factors was submitted by the plaintiffs' counsel to favour a grant of leave to proceed - including, in addition to those already mentioned, that some of the events in issue were "very recent" and many "have occurred since the proceedings were commenced", that the plaintiffs' prospects of success rest on questions of law that are "clearly arguable", that the plaintiffs' default was with respect to a "single failure to comply" as opposed to a protracted period of disobedience, that the defendants had not sought to raise the plaintiffs' non-compliance with the court until three years later, and that there had been "a single period of delay, from soon after the litigation was commenced" as distinct from a case where it had been "stop start throughout" - the submission was then made that the proceeding should be permitted to continue "subject to strict supervision to ensure that they are concluded quickly and without further delay". This submission must have been premised on the unspoken assumption that the plaintiffs had the ability to do so, but there was no evidence to support such a conclusion. To the contrary, the inference urged by their counsel on the court (which I have of course not drawn) was to precisely the opposite effect. In addition, although the applications to dismiss for want of prosecution were filed and served on the plaintiff over two months before the hearing took place, nothing in the way of settled statements of claim were produced by the time of the hearing. Instead, all that was offered up was a proposal that the plaintiffs would submit to an order to do so in the near future, with guillotine consequences if they did not.
[37] In the result, not only has the plaintiffs' non-compliance with an order of the court and subsequent delay not been satisfactorily explained, their capacity to prosecute their claims to a judicial determination in a timely way was not touched on at all. If anything, their capacity to do so is attended by considerable doubt. A favourable exercise of the discretion to grant leave to proceed is not simply there for the asking. It must be positively supported by evidence that justifies such an outcome, and here it was not. As Applegarth said in Aqwell Pty Ltd v BJC Drilling Services Pty Ltd & Ors:[17]