Bayliss v Cassidy, Harper, Sturgess & State of Queensland [1998] QSC 142

3398 , Sc 98/142 State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MUIR J No 4786 of 1988 PETER JOHN BAYLISS and ROBERT BERNARD CASSIDY and NEVILLE JOHN HARPER and DESMOND GORDON STURGESS and STATE OF QUEENSLAND BRISBANE .. DATE 16/06/98 CONTINUED FROM 15/06/98 ORDER 5 tilt 1'111111', Tire l,:m Courts. Cl'lIq~l' Stn~ct. Brish:lIll'. 0 ..WIlO REVISED COPIES ISSUED State Reporting 8ureau Date Applicant/Plaintiff First Respondent/Defendant Second ,Respondent/Defendant Third Respondent/Defendant Fourth Respondent/Defendant -- 1 of 8 -- 160698 ajb (Muir J) HIS HONOUR: The application is for leave to amend the statement of claim by inserting allegations of misfeasance in public office and collateral abuse of process against the second and third defendants. The allegations are centred around a memorandum dated 17 May 1985 written by the third defendant, then Director of Prosecutions Queensland, addressed to the second defendant, then Minister for Justice and Attorney-General. The action was commenced on 22 December 1988. The allegations in the statement of claim concern events surrounding the arrest of the plaintiff in May 1985 on a charge of conspiring to unlawfully use force with intent to procure the miscarriage of women. I will not go into the 10 20 details of the allegation in the pleading. They and the 30 principles of law relevant to them have been discussed in a number of earlier interlocutory judgments. For example, that of White J delivered 21 May 1993, that of Moynihan SJA delivered 24 October 1986 and that of the Court of Appeal delivered 11 March 1998. Mr Dutney QC, who appeared for the applicant, submits that although the amendments seek to raise the same causes of action as those sought to be raised by an amendment refused by Moynihan SJA on 24 October 1996, the scope of the allegations now are much narrower than those before His Honour and different considerations prevail. In particular, it is submitted that: 6 40 50 60 -- 2 of 8 -- 160698 ajb (Muir J) (a) The proposed claims are based exclusively on the memorandum of 17 May 1985; (b) No additional oral evidence is intended to be called by the plaintiff and no additional witness will be required by the defendants; (c) The trial dates will not be put at risk if the amendments are allowed; (d) The length of the trial will not be affected; (e) No further particulars can reasonably be required; 10 20 (f) The claim could not have been made sooner because 30 the claim is dependant on the memorandum and the memorandum was not discovered until the necessity for its discovery was brought home to the defendants by the judgment of the Court of Appeal on 11 March 1998; (g) The proposed new causes of action arise substantially out of the same facts already in issue. The principles which should be applied on applications to amend such as this were recently the subject of discussion by the High Court in State of Queensland & Anor v. J L Holdings .Pty Ltd (1997.) 189 CLR 146 (p.7). 7 40 50 60 -- 3 of 8 -- 160698 ajb (Muir J) In my view, the justice of this case requires that the amendment be disallowed. There are a number of matters which lead me to this conclusion. 10 It was common ground that on any view of the matter the claims became statute barred in 1991. ;Nevertheless, I have power under order 32 rule 1 of the Rules of the Supreme Court to permit such an amendment. The rule imposes no fetter on the exercise of the Court's discretion (Adam v. Shivon (1995} 1 20 QdR 1) but nor does it give rise to a right to a favourable exercise of discretion on the part of the applicant. It can hardly be doubted that factors such as the expiration of a limitation period and the length of time by which such period has expired are considerations relevant to the exercise of 30 the discretion. In Lynch v. Keddell (No 2) 1990 1 QdR 10 at 12 Macrossan CJ, with whose reasons McPherson J agreed, said: ~ "'It had become established that an addition of parties or an amendment of proceedings 40 setting up a new cause of action will not ordinarily be ordered if the effect is to deprive a person of an accrued right to plead the statute of limitations." The role of limitation periods has been. thk, subject of recent discussion by the High Court in Brisbane South Regional Health Authority v. Taylor 1997 186 CLR 541, particularly'-·_~. in the judgment of McHugh J, with whose reasons Dawson J 8 50 60 -- 4 of 8 -- '080~98 D.Turnajb (Muir J) agreed. I will refer to those reasons in a little more detail shortly. The extent to which an effluxion of time may have acted to the detriment of the defendants is a matter relevant to my consideration. Mr Dutney QC makes the point that the memorandum directly and near~y concerns the same factual matters as those already raised by the allegations in the statement of claim. I accept the general accuracy of those submissions, but it does not follow that because a defendant is already suffering the disadvantage of having to ventilate matters long since stale in respect of one cause of action, that the defendant should be subjected to- the same evils in respect of yet another cause of action. The memorandum was written some 13 years ago. It is to be the critical focus of the new claims. It was considered and endorsed by the then Crown Solicitor and the then Solicitor-General. The former has since died. There is. every reason to expect that even if he had survived he would have little detailed recollection of the events surrounding the memorandum. That comment, of course, applies to other persons involved in the events in question. In Brisbane South (supra), McHugh J said at 556, having earlier discussed in some detail the question of prejudice which arises from delay: II Besides the proved prejudice, the long delay gave rise to a general presumption of prejudice." Those sentiments, of course, are not new. Another form of prejudice discussed in His Honour's judgment at 552 was the prejudice which arises from permitting an action to be 9 t 10 ~o 30 40 60 -- 5 of 8 -- 160698 ajb (M~ir J) brought against a defendant long after the circumstances which gave rise to it passed. In that regard, it is relevant to consider that the second defendant is now 72 years of age and that the third defendant is 67 years of age and in ill health. I have not overlooked the fac~ that the memorandum was initially undiscovered and that discovery of it was given only after the applicant took the question of legal professional privilege to the Court of Appeal. " Mr Hampson QC, who appeared with Ms Atkinson for the respondents, submitted that the respondent's approach to discovery, iri ~ffect, had been approved or at least supported by interlocutory determinations by single.judges, including that of White J.on 21 May 1993. I doubt that that submission is completely accurate, but it does not appear to me to be particularly relevant. The privilege which the Court of Appeal found to be waived was waived as a result of the' delivery. of answers to interrogatories. The waiver thus did not take place until well after the expiration of any relevant limitation period. Further, there is no suggestion that the respondents acted in any improper way to conceal the memorandum or any other relevant document. Finally, I take into account the fact that the action has been on foot for now around 10 years. Not all of the delay over that period can be attributable to the conduct of the applicant by any means. The action has been hard fought. 10 t 10 20 30 ,.' " 40 50 60 -- 6 of 8 -- 160698 ajb (Muir J) That is hardly unexpected having regard to the allegations made by the applicant, but the applicant has certainly been responsible for considerable periods of delay. For example, answers to interrogatories were delivered by the fourth respondent on 7 March 1994, the first respondent on 11 May 1994, the second respondent on 16 May 1994, and the third 10 respondent on 12 May 1994. ~heapplication to inspect the documents the subject of the claim for legal professional privilege made in those answers was not brought until 6 March 1997. A delay of some three years thus elapsed. I now turn to the question of costs. The applicant has brought the application and has failed, but in the circumstances it seems appropriate to me to make the costs of and incidental to this application (and in that include the application for delivery of further answers to interrogatories) the parties' respective costs in the cause. I gave reasons for that proposed course y~sterday. I take into account the fact that the applicant's conduct cannot be described as unreasonable and that part of the blame, if that is the correct word, for the application is the conduct of the respondents in failing to make disclosure as lawfully required to do. If timely disclosure had been made of the memorandum, the applicant's prospects of success on an application such as this would doubtless have been enhanced. Whether the applicant would have been successful or not I cannot say. I therefore order that the application be dismissed, that the 1 1 20 30 , . 40 60 -- 7 of 8 -- 160698 ajb (Muir J) costs of and incidental to the action be the parties' costs t in the cause. 10 20 30 40 50 60 12 -- 8 of 8 --