Drabsch v The Public Trustee of Queensland [2012] QSC 217

SUPREME COURT OF QUEENSLAND CITATION: Drabsch v The Public Trustee of Queensland [2012] QSC 217 PARTIES: SHANE ARTHUR DRABSCH (plaintiff) AND THE PUBLIC TRUSTEE OF QUEENSLAND as Administrator of the Estate of Lloyd Arthur Drabsch, deceased (defendant) FILE NO/S: 6913 of 2009 DIVISION: Trial division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 20 August 2012 DELIVERED AT: Brisbane HEARING DATE: 27 July 2012 JUDGE: Atkinson J ORDER: 1. The application to have the proceedings dismissed for want of prosecution be dismissed; 2. The application for leave to proceed be allowed; 3. The plaintiff pay to the Public Trustee of Queensland the sum of $25,268.21, being $11,324.06 for compliance costs due to the Gold Coast City Council, $10,971.27 for rates due to the Gold Coast City Council and $2,972.88 for water and wastewater charges due to Allconnex Water, in relation to the Burleigh Heads property and any other such amounts as they become due and owing; and 4. The proceeding be referred to the Supervised Case List. CATCHWORDS: PROCEDURE — COURTS AND JUDGES GENERALLY — COURTS — DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION — where defendant applied for proceeding to be dismissed for want of prosecution — where no step taken for three years — whether proceeding should be -- 1 of 11 -- 2 dismissed for want of prosecution PROCEDURE — SUPREME COURT PROCEDURE — QUEENSLAND — PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS — TIME — DELAY SINCE LAST STEP IN PROCEEDING — where no step had been taken for three years — where plaintiff applied for leave to proceed — whether leave should be granted Public Trustee Act 1978 (Qld) s 134 Succession Act 1981 (Qld) s 36A(5) Supreme Court of Queensland Act 1991 (Qld), s 85 Uniform Civil Procedure Rules 1999 (Qld), s 389(2) Tyler v Custom Credit Corp Ltd [2000] QCA 178, followed and applied COUNSEL: The applicant appeared for himself LJ Nevison for the respondent SOLICITORS: The applicant appeared for himself Official Solicitor to the Public Trustee for the respondent [1] On 27 October 2008, Lloyd Arthur Drabsch died intestate leaving five living children, Stephen Lloyd (45), Troy Edwin (44), Darren Wayne (42), the plaintiff Shane Arthur (39) and Tracey Renaee (34). The Public Trustee of Queensland (―the Public Trustee‖) was appointed administrator of his estate on 4 February 2009. In the normal course, the estate would be distributed on intestacy in equal shares to each of the five children.1 [2] On 30 June 2009, Shane Drabsch commenced this proceeding claiming ―a declaration that the Plaintiff is legally and/or beneficially entitled to the dwelling house and real property situated at and known as 30 Lemana Avenue, Burleigh Heads in the State of Queensland, being land described as Lot 34 on Registered Plan 129767, County of Ward, Parish of Gilston, Title Reference 14645095 (‗the Burleigh Heads property‘)‖ or in the alternative that he was ―legally and/or beneficially entitled to an interest in the Burleigh Heads property‖ in an amount determined by the court. The claim was supported by a statement of claim. Both were filed by solicitors acting on his behalf. He had lodged a caveat over the Burleigh Heads property on 1 May 2009. [3] On 19 August 2009, the Public Trustee filed a conditional notice of intention to defend, an application for an order under r 16(g) of the Uniform Civil Procedure Rules 1999 (Qld) (―UCPR‖) that the proceeding be stayed and an originating application (9103/09) for directions pursuant to s 134 of the Public Trustee Act 1978 (Qld) that the Public Trustee should, inter alia, be registered as the personal 1 Succession Act 1981 (Qld) s 36A(5). -- 2 of 11 -- 3 representative of the Burleigh Heads property, which was the principal asset of the estate of Lloyd Drabsch. [4] On 14 September 2009, P Lyons J of this court ordered in proceeding 9103/09 that the Public Trustee be registered as personal representative on the title of the Burleigh Heads property prior to being required to defend this proceeding. The order was made upon the undertaking of the Public Trustee to retain the Burleigh Heads property pending the determination of this proceeding or further earlier order. A notice that Shane Drabsch was acting in person in this proceeding was filed on that date. Following the repeated failure by Shane Drabsch to remove the caveat on the Burleigh Heads property, Douglas J ordered its removal on 16 December 2009, and ordered Shane Drabsch to pay the Public Trustee‘s costs on an indemnity basis. [5] Shane Drabsch has continued to occupy the Burleigh Heads property with his family, including his seven children. The Gold Coast City Council (―the council‖) has issued various notices and sent various letters with regard to contraventions of local by-laws since that time. The correspondence was sent to the Public Trustee as personal representatives of Lloyd Drabsch. The Public Trustee in turn sent all of the correspondence on to Shane Drabsch as occupier of the Burleigh Heads property. [6] On 6 April 2010, the council issued a notice to remedy an unkempt property. On 13 April 2010, the council issued notices regarding the public health risk from the swimming pool, which was or was likely to become a breeding ground for mosquitoes, and from overgrown vegetation and an accumulation of waste materials which had potential to harbour or provide breeding grounds for rats or mice. On 21 April 2010, the council issued a notice of further work required to achieve compliance to remedy an unkempt property. [7] On 18 May 2010, the council issued an enforcement notice with regard to the failure to fence the swimming pool. On 15 July 2010, the council issued a follow up notice with regard to the failure to fence the pool. This was followed by a solicitor‘s letter on 30 November 2010. On 8 March 2011, the council‘s solicitors sent a letter regarding a complaint in relation to the swimming pool from the Queensland Police Service who advised that the residence was unsafe for habitation by children. On 8 March 2012, the council advised that because of the continuing breach it had arranged for the installation of a complying pool fence at a cost of $11,324.06. [8] From 27 May 2010, the Public Trustee suggested to Shane Drabsch that he vacate the Burleigh Heads property because of the problems with upkeep and maintenance of the property. By 9 January 2012, unpaid rates and charges had reached $10,971.27 and by 31 January 2012 unpaid water charges had reached $2,972.88. [9] On 27 March 2012, the Public Trustee filed an application seeking orders that this proceeding be dismissed for want of prosecution pursuant to s 85 of the Supreme Court of Queensland Act 1991 (Qld) and that Shane Drabsch deliver up possession of the Burleigh Heads property. In the alternative, if leave to proceed were granted, -- 3 of 11 -- 4 the Public Trustee sought directions as to the future conduct of the proceedings and for orders that Shane Drabsch: ―(i) pay to the Public Trustee of Queensland the sum of $25,268.21 within 14 days of the date of Order, being $11,324.06 for compliance costs due to the Gold Coast City Council, $10,971.27 for rates due to the Gold Coast City Council and $2,972.88 for water and wastewater charges due to Allconnex Water, in relation to the Burleigh Heads property; (ii) indemnify and pay to the Defendant within 14 days of demand having been made, all amounts due for all statutory charges, including rates and water charges, insurance and maintenance while the Plaintiff continues in occupation of the Burleigh Heads property.‖ [10] Section 85(2) of the Supreme Court Act provides that ―if two years have passed since the last step was taken in a proceeding, the court may dismiss the proceeding‖. Under section 85(3), ―an application on which no order was made is not taken to be a step‖ in the proceeding. The Public Trustee‘s application for a stay of this proceeding was adjourned by Daubney J in this court on 13 October 2009 until 11 December 2009. No further order was made in this proceeding. Accordingly, it can be seen that no step had been taken in this proceeding since 19 August 2009 when the Public Trustee filed a conditional notice of intention to defend. [11] Section 389(2) of the UCPR provides: ―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 earlier with or without notice.‖ [12] Shane Drabsch appeared on the Public Trustee‘s application to strike out the proceeding for want of prosecution on 3 April 2012. The court ordered that he bring an application pursuant to r 389(2) of the UCPR by 30 May 2012; that if no such application were brought, his claim be dismissed for want of prosecution; and that the Public Trustee‘s application for recovery of the Burleigh Heads property be adjourned to a date to be fixed. [13] At the court‘s request, the Public Trustee provided Shane Drabsch with information about pro bono legal assistance provided by the Queensland Public Interest Law Clearing House Incorporated (―QPILCH‖) to self-represented litigants. This service is known as the Self-Representation Service (Courts) and helps self-represented parties to prepare their case for civil litigation in the Supreme Court (both Trial Division and Court of Appeal) as well as in other courts and tribunals. This valuable service is independent of the courts and government and helps litigants without legal representation to take the practical steps necessary to have their case fully heard and determined. By providing free legal advice, the service also assists those whose claim or defence is likely to be successful to prepare for trial or alternate dispute resolution and those whose claim or defence is unlikely to be -- 4 of 11 -- 5 successful to understand that continuing the proceeding may not be in their interests. [14] The Public Trustee also sent to Shane Drabsch a transcript of the hearing of 3 April 2012, and directed him to a copy of the rates and charges owing to council on the Burleigh Heads property of $22,808.82 and water charges of $2,972.88, exhibited to an affidavit which had been served on him on 28 March 2012. [15] In compliance with the order made on 3 April 2012, Shane Drabsch filed an application for leave to proceed on 30 May 2012. In his affidavit filed with the application he said that he received assistance from QPILCH‘s self-representation service in April 2012 but otherwise had not received any legal advice since his previous legal representation had ceased to act for him in 2009, shortly after the claim was filed. [16] The applications came on for hearing on 26 July 2012. Similar factors are considered by the court on an application for leave to proceed after a delay of more than two years and an application to strike out an action for want of prosecution. These factors were comprehensively set out in Tyler v Custom Credit Corp Ltd [2000] QCA 178 at [2] – [5]: ―[2] When the Court is considering whether or not to dismiss an action for want of prosecution or whether to give leave to proceed under Uniform Civil Procedure Rules (―UCPR‖) r 389, there are a number of factors that the Court will take into account in determining whether the interests of justice require a case to be dismissed.2 These include: (1) how long ago the events alleged in the statement of claim occurred3 and what delay there was before the litigation was commenced; (2) how long ago the litigation was commenced or causes of action were added;4 (3) what prospects the plaintiff has of success in the action;5 (4) whether or not there has been disobedience of Court orders or directions;6 (5) whether or not the litigation has been characterised by periods of delay;7 (6) whether the delay is attributable to the plaintiff, the defendant or both the plaintiff and the defendant;8 2 Cooper v Hopgood & Ganim [1999] 2 Qd R 113 at 119. 3 Department of Transport v Chris Smaller (Transport) Ltd [1989] 1 AC 1197 at 1207-1208 per Lord Griffiths; Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells, Supreme Court of Victoria, Appeal Div No 4901 of 1989, 9 September 1994 at 22, 23; Hoy v Honan CA No 4058 of 1996, 19 August 1997 at 4; Cooper v Hopgood & Ganim (supra) at 120, 121.. 4 Cooper v Hopgood & Ganim (supra) at 120 per Pincus JA. 5 Keioskie v Workers’ Compensation Board of Queensland CA No 46 of 1992, 15 September 1992 at 2-3 per McPherson J; Cooper v Hopgood & Ganim (supra) at 124. 6 Cooper v Hopgood & Ganim (supra) at 121; 7 Birkett v James [1978] AC 297 at 322-323; Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells (supra) at 27; Cooper v Hopgood & Ganim (supra) at 119, 120, 124. 8 Holmes v Civil & Civic Pty Ltd CA No 15 of 1992, 14 September 1992; Lewandowski v Lovell (1994) 11 WAR 124; Hoy v Honan (supra) at 5. -- 5 of 11 -- 6 (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;9 (8) whether the litigation between the parties would be concluded by the striking out of the plaintiff‘s claim; (9) how far the litigation has progressed;10 (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.11 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;12 (11) whether there is a satisfactory explanation for the delay;13 and (12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.14 The court‘s discretion is, however, not fettered by rigid rules but should take into account all of the relevant circumstances of the particular case15 including the consideration that ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them.16 [3] Unnecessary delay in proceedings has a tendency to bring the legal system into disrepute and to decrease the chance of there being a fair and just result … [4] When proceedings have been prosecuted by a plaintiff in a dilatory way, the Court may dismiss a proceeding for want of prosecution or impose a sanction as to costs. [5] The onus is on the applicant for striking out the plaintiff‘s action for want of prosecution to show that the matter should be struck out.17 On an application for leave to proceed, the applicant for leave 9 Hoy v Honan (supra) at 3 per Derrington J; at 7 per Fitzgerald P. 10 Keioskie v Workers’ Compensation Board of Queensland (supra) at 10 per Thomas J. 11 Campbell v United Pacific Transport Pty Ltd [1966] Qd R 465 at 473, 475; Kaats v Caelers [1966] Qd R 482 at 497; Tate v McLeod [1969] Qd R 217 at 224-225; Collingwood v Calvert CA No 3028 of 1996, 6 December 1996 at 5, 7, per Fitzgerald P; Cooper v Hopgood & Ganim (supra) at 124. 12 Gleeson v Brick [1969] Qd R 361 at 369; Keioskie v Workers’ Compensation Board of Queensland (supra) per Thomas J at 7. 13 Campbell v United Pacific Transport Pty Ltd (supra) at 473-474; Witten v Lombard Australia Ltd (1968) 88 WN (Pt1) NSW 405 at 412; Dempsey v Dorber [1990] 1 Qd R 418 at 420; Keioskie v Workers’ Compensation Board of Queensland (supra) per Thomas J at 4; Cooper v Hopgood & Ganim (supra) at 124. 14 Witten v Lombard Australia Ltd (supra) at 412; Dempsey v Dorber (supra) at 420; Keioskie v Workers’ Compensation Board of Queensland (supra); Bishopgate Insurance Australia Ltd (In liquidation) v Deloitte Haskins and Sells (supra) at 24-25; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 554-555 per McHugh J; Cooper v Hopgood & Ganim (supra) at 118, 124. 15 Witten v Lombard Australia Ltd (supra) at 412; Stollznow v Calvert [1980] 2 NSWLR 749; Norbis v Norbis (1986) 161 CLR 513 at 538; Cooper v Hopgood & Ganim (supra) at 118-119, 124. 16 Cooper v Hopgood & Ganim (supra) at 124 per McPherson JA. 17 Cooper v Hopgood & Ganim (supra) at 121. -- 6 of 11 -- 7 must ‗show that there is good reason for excepting the particular proceedings from the general prohibition‘ in a case in which [two] years have elapsed from the time when the last proceeding was taken.18 The rationale of the rule requiring leave to proceed after a long delay is to prevent abuse of process.19 The Court must be satisfied that the continuation of the proceedings would not involve injustice or unfairness to one of the parties by reason of delay.20‖ [17] I shall consider each of the factors set out in [2] as they apply to this proceeding. How long ago the events occurred [18] The statement of claim filed on 30 June 2009 asserts that in 1984, Lloyd Drabsch, who had inherited a property at 7 Pelican Road, Chinchilla known as ―Nudley‖, had conversations at his residence at Chinchilla with his five children saying that he would gift ―Nudley‖ in subdivided blocks to them with the dimensions and area of each subdivided block to be agreed between them. They agreed that Lot 4 would be for Stephen, Lot 5 for Darren, Lot 6 for Troy, Lot 7 for Shane and Lot 8 for Tracey. The subdivision occurred and the lots as agreed were transferred to Stephen (Lot 4), Darren (Lot 5) and Troy (Lot 6). Lots 7 and 8 were subdivided but held by Lloyd on trust for Shane and Tracey as they were then under 18 years old. In 1998, Lots 7 and 8 were sold for $300,000 and, with the proceeds, the Burleigh Heads property was purchased for $144,000 together with properties at 64 Condamine Highway, Kogan and 66 Condamine Highway, Kogan for approximately $122,000. [19] The plaintiff alleged that in 1998, during discussions between himself, Lloyd and Tracey, Lloyd gifted to Tracey and Shane: ―(a) The Burleigh Heads property to the Plaintiff with Lloyd to retain the legal ownership thereof but with the Plaintiff to hold the beneficial ownership in relation thereto; (b) 66 Condamine Highway, Kogan to the Plaintiff but with the legal ownership thereof to be held in the joint names of the Plaintiff and Lloyd with the beneficial ownership thereof residing with the Plaintiff; and (c) 64 Condamine Highway, Kogan to Tracey with the legal ownership thereof in the joint names of Tracey and Lloyd with the beneficial ownership thereof residing with Tracey.‖ [20] Shane Drabsch alleged that Tracey remains the owner of 64 Condamine Highway, Kogan and that he sold 66 Condamine Highway, Kogan in 2008 for $200,000 and that he received the whole of those proceeds to the exclusion of Lloyd. 18 William Crosby & Co Pty Ltd v The Commonwealth (1963) 109 CLR 490 at 496; Australian Broadcasting Commission v Industrial Court of South Australia (1985) 159 CLR 536; Dempsey v Dorber (supra) at 420; Keioskie v Workers’ Compensation Board of Queensland (supra) per Thomas J at 4. 19 Hoy v Honan (supra) at 5. 20 Walton v Gardiner (1993) 177 CLR 378; Brisbane South Regional Health Authority v Taylor (supra). -- 7 of 11 -- 8 [21] Shane Drabsch alleged that since 1998, he had, with Lloyd‘s agreement, treated the Burleigh Heads property as his own and had resided in the property from time to time with his family, paid all council rates, electricity and outgoings and maintained and improved the property. He therefore alleged in paragraphs 18 and 19 of the statement of claim: ―18. In the premises, pursuant to the said gift by Lloyd to the Plaintiff, the Plaintiff is entitled to the legal and beneficial interest in the Burleigh Heads property. 19. In the alternative, in the premises, pursuant to a resulting, constructive or implied trust, the beneficial interest in the Burleigh Heads property resides with the Plaintiff.‖ [22] The events referred to in the statement of claim occurred in 1984 and 1998, although it appears that there was no occasion for Shane Drabsch to litigate to endeavour to establish his interest in the Burleigh Heads property until his father died intestate in 2008 and the Public Trustee was made administrator of his estate in 2009. There was accordingly no relevant delay in commencing the litigation. How long ago the litigation was commenced [23] The litigation commenced just over three years ago on 30 June 2009. Plaintiff’s prospects of success [24] Shane Drabsch swore in his affidavit filed on 30 May 2012 that he lived with and provided full-time care to his father at Shane‘s residence at Chinchilla from approximately 1991 until his death on 27 October 2008 in the Chinchilla Hospital. His sister, Tracey, assisted with care of their father. The Burleigh heads property was a beach house and not Shane‘s primary place of residence until late 2008 when Shane‘s Chinchilla residence burnt down. He does not say whether this was before or after his father‘s death. He deposed that he had paid all rates and expenses for the Burleigh Heads property until his father died. He has not been able to make any further payments since because of his difficult financial position. He swore, without further details, that his father gifted him the Burleigh Heads property in 1998. [25] This affidavit does not support all of the allegations in the statement of claim. On its own, it would not be sufficient to establish Shane‘s claim. Other material held by the Public Trustee further undermines the plaintiff‘s claim. A declaration by Michael Kyle of Adamson Bernays Kyle & Jones exhibited to the affidavit of Jennifer Waldon of the Public Trustee shows that they acted as solicitors for Lloyd Drabsch on the purchase of the Burleigh Heads property. The Certificate of Title for the property was collected from the solicitors‘ office on 5 June 1998 by Troy Drabsch. On 20 July 2009, in the course of Public Trustee‘s investigations of what steps the Public Trustee should take with respect to proceeding 6913/09, Troy Drabsch produced to the Public Trustee a copy of the Certificate of Title he held for the Burleigh Heads property and a form of Transfer to him of the Burleigh Heads property, apparently signed by Lloyd Drabsch on 7 November 2003. That transfer -- 8 of 11 -- 9 had not been lodged for registration and was signed by Troy Drabsch on 20 April 2009. The consideration for the transfer from Lloyd Drabsch to Troy Drabsch was expressed to be ―BY WAY OF GIFT‖. The copy of the Transfer showed that on 1 May 2009, an amount of $7,000 was paid to the Office of State Revenue as transfer duty. [26] It cannot be said on the basis of this evidence that the plaintiff has strong prospects of success. However, it is not possible to determine on an application of this kind that the plaintiff‘s claim has no real prospects of success. It has not been suggested that the statement of claim does not plead facts sufficient to give rise to a cause of action. Disobedience of court orders [27] There is no disobedience of court orders or directions in this proceeding as the plaintiff failed to take any steps after filing his claim. However, the Public Trustee was required to return to court to obtain an order in proceeding 9103/09 that the plaintiff‘s caveat on the Burleigh Heads property be removed after the repeated failure by the plaintiff to allow the Public Trustee to be registered as personal representative on the title of the Burleigh Heads property. Litigation characterised by periods of delay [28] This litigation has been characterised by complete inaction by the plaintiff since the filing of the original claim. Responsibility for the delay between the parties [29] The plaintiff has been entirely responsible for the delay. He has sworn that he thought that by lodging a caveat he had done all that was necessary to protect his interest in the property. He has not had legal representation after September 1999 and did not receive any legal advice until he received assistance from QPILCH‘s self-representation service in April 2012. Impecuniosity of the plaintiff [30] The plaintiff has provided evidence of impecuniosity. He has been unemployed since 2009. He says he suffers from a back complaint and is dependent on Centrelink Benefits for support for himself and his large family. He was educated to year eight level and classifies himself as partially illiterate. Conclusion of the proceedings -- 9 of 11 -- 10 [31] This proceeding would be concluded if it were struck out for want of prosecution but that would not resolve the question of the ownership of the Burleigh Heads property nor indeed whether it forms part of the estate of Lloyd Drabsch. How far the litigation has progressed [32] The matter has not progressed. Whether the plaintiff’s lawyers are responsible [33] As a self-represented party, the plaintiff bears all the responsibility for the delay. Prejudice to the defendant [34] The prejudice to the Public Trustee arises because of his inability to distribute the estate and because of the plaintiff‘s failure to pay any of the charges and rates owing in respect of the property. Conclusion [35] Because there remains a real dispute at the heart of this proceeding, I am not inclined at this time to strike it out for want of prosecution. I will give the plaintiff leave to proceed but strict directions are required which must be complied with if the matter is to proceed. The matters which will have to be attended to include: (1) The plaintiff or the Public Trustee making any application to join Troy Drabsch as a party to the proceeding; (2) Time for filing a defence by any defendants; (3) Disclosure of relevant documents; (4) An alternative dispute resolution plan, including for example, a date for filing of a consent order for mediation and the date by which it is to occur and who should be present; (5) A procedure by which the plaintiff will pay monies owing with regard to the property and, if necessary, an occupation rent pending determination of the proceedings or failing that a procedure for delivery up of the property and its sale to pay those debts; (6) The consequence of non-compliance with any of the directions. -- 10 of 11 -- 11 The matter needs the intensive and strict supervision that it will have if it is put on the supervised case list and I will refer it to the supervised case list. Orders 1. The application to have the proceedings dismissed for want of prosecution be dismissed; 2. The application for leave to proceed be allowed; 3. The plaintiff pay to the Public Trustee of Queensland the sum of $25,268.21, being $11,324.06 for compliance costs due to the Gold Coast City Council, $10,971.27 for rates due to the Gold Coast City Council and $2,972.88 for water and wastewater charges due to Allconnex Water, in relation to the Burleigh Heads property and any other such amounts as they become due and owing; and 4. The proceeding be referred to the Supervised Case List. -- 11 of 11 --