Cooper & Graeme Cooper Holdings Pty Ltd v Hopgood & Ganim [1997] QSC 155

State Reporting Sc {Pl//ss- 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 CHAMBERS FRYBERG J No 1743 of 1994 RALPH DUNCAN COOPER and GRAEME COOPER HOLDINGS PTY LTD and HOPGOOD & GANIM (A FIRM) BRISBANE .. DATE 21/08/97 JUDGMENT ·1111 Fillllr, Tile L:l\v COllrts, (;t'lIq~t' Sln:d, Brishallc, Q. ··lOOO 1 REVISED COPIES ISSUED State Reporting Bureau ,/' Date)':::, / Plaintiffs Defendant TclcphorJt': (07) .1247 4.\()O F:1X: (07) ,\2-17 55,\2 -- 1 of 7 -- 210897 T01/IK29 M/T 918/97 (Fryberg J) HIS HONOUR: This is an application by the defendant for an action to be struck out. The defendant is a firm of solicitors. Notwithstanding the heading on the documents, there is only one defendant in the action. The basis of the application for striking out is that the plaintiff is in breach of an order of the Court for delivery of a statement of claim. The applicant relies upon the inherent jurisdiction of the Court and also upon order 31 of the rules of the Court. The history of the matter is of some significance. The writ was issued on 2 November 1994 and was endorsed with a claim for damages for negligence, damages for breach of contract, interest and costs. It was not served until 1 November 1995. When it was served there had been no letter before action. An appearance was entered within a week. A month later an extension of time for delivery of the statement of claim of 14 days was sought. No statement of claim was delivered that year nor was one delivered in 1996 despite a number of letters from the solicitors for the defendant which concluded with a threat to apply to strike out the action for want of prosecution. In November 1996 the plaintiff's solicitor asserted that the statement of claim should be available for delivery within 10 days. It was not delivered within that period. Further correspondence took place and on 24 December 1996 there was a purported delivery of a statement of claim which purported to add a party and which contained allegations going beyond the endorsement on the writ of summons. 2 JUDGMENT 10 20 30 40 50 -- 2 of 7 -- 210897 T01/IK29 M/T 918/97 (Fryberg J) In February 1997 detailed complaints were made by letter by the defendant regarding that statement of claim. These complaints elicited from the solicitor for the plaintiff a response that a further statement of claim would be delivered within 30 days from 7 February. That did not happen. There 10 was further correspondence but no action from the plaintiff to fix the statement of claim. On 21 March 1997 a summons to strike out the statement of claim was taken out, and on 10 April Justice Byrne made an order by consent that the statement of claim be struck out. By consent it was further ordered that a fresh statement of claim be delivered on or before 15 April 1997. That order was not complied with. On 22 April 1997 a further summons was taken out by the defendant seeking an order that in default of delivery of a statement of claim by 16 May the action be struck out. That summons was returnable on 8 May. The day before it was returnable a further statement of claim was delivered. That statement of claim aroused objections from the defendant and the matter came on before Justice Byrne again on 12 June. On that day His Honour ordered that the statement of claim delivered on 7 May be struck out but granted leave to deliver a further statement of claim on or before 26 July. That order of the Court was not complied with. On 4 August the present application was filed. No application was made by the plaintiff for an extension of time for 3 JUDGMENT 20 30 40 50 -- 3 of 7 -- 210897 T01/IK29 M/T 918/97 (Fryberg J) delivery of the statement of claim pursuant to the order of Justice Byrne until late in the course of the hearing before me. Counsel for the plaintiff orally applied for such an extension. The plaintiff then sought a further two weeks from today. An examination of the affidavits filed on the plaintiff's behalf discloses that the only explanation offered for the failure to comply with the latest order of the Court is that on the day when compliance was due, that is 28 July - 26 July having been a Saturday - counsel's computer developed a problem which apparently destroyed whatever version of the statement of claim was then in existence. It is worth noting that when that happened the plaintiff did not seek a further extension of time for this reason and that the material before me does not depose to the extent of the delay which the computer problem caused. I cannot imagine that the computer problem could have caused more than a day or two's delay. Indeed, if proper backups had been kept it would not have even caused that much delay. But in response to that proposition it was submitted on behalf of the plaintiff that while that may be so, the reason that nothing was done between early August and now was that the defendant had rendered further delivery of a statement of claim otiose by bringing the application to have the action struck out and by making it clear that it was not willing by itself to grant further time. That proposition has only to be stated for its ridiculousness to be seen. It was carried to 4 JUDGMENT 10 20 30 40 50 -- 4 of 7 -- 210897 T02-3/LZG14 M/T 918/97(Fryberg J) the point that even when the application came on before me the plaintiff did not come to Court with a statement of claim prepared, and it is now over three weeks since the time for delivery of the statement of claim expired, and nearly two and a half months since Justice Byrne's order was made. Then it was said on the plaintiff's behalf that the task of formulating the statement of claim was complex because of the very complex facts, and my attention was drawn to the affidavit of Ralph Duncan Cooper referring to those facts. was urged from the Bar table that the day before the It application came on senior counsel was engaged for the plaintiff. Apparently I was to infer from this submission that there was now hope that things were looking up for the plaintiff. I note that before me, two counsel appeared for the plaintiff, albeit both relatively junior counsel, and I infer that considerable effort ought to have been able to be devoted to the task of preparing the statement of claim. I cannot believe that it was beyond counsel to have prepared a statement of claim if they were properly instructed. The only conclusion which I can draw is that either the claim is incapable of rational formulation or the plaintiff has been guilty of intentional and contumacious disregard of the order of the Court in not providing proper instructions to his counsel upon which to formulate the claim. I use the word "contumacious" for the reasons given by Lord Justice Megaw in Re: Jokai T Holdings Limited (1993) 1 All England Reports 630 5 JUDGMENT 10 20 30 40 50 60 -- 5 of 7 -- 210897 T02-3/LZG14 M/T 918/97(Fryberg J) at page 641 where His Lordship distinguished that word .from "contumelious" . I should add at this point that I have not dissected the affidavit of Ralph Duncan Cooper to try myself to distil a statement of claim from it. It is not the function of the Court to do this for a litigant. The plaintiff submitted that I should not strike out the action because he was able to begin again if the action were struck out. I am not sure that this is so, but in any event, in circumstances where two previous statements of claim have been struck out on the basis just described and where there has been such failure as has occurred here in obedience to the orders of the Court, it is likely that any further action would be stayed unless the defendant's costs were paid and possibly security for costs was given. Then it was urged on the plaintiff's behalf that if the action is struck out it will be effectively stifled because costs ordered to be payable at the determination of the action will fall due and I was told from the Bar table the cost of meeting such orders will prevent the plaintiff from pursuing any further action. That was only half true in the sense that while one order for costs already made has the enforcement of the costs stayed until final judgment, the order made on 12 June contains no such limitation. It was asserted on behalf of the plaintiff from the Bar table that that order is defective and does not reflect what 6 JUDGMENT 10 20 30 40 50 60 -- 6 of 7 -- 210897 T02-3/LZG14 M/T 918/97(Fryberg J) occurred. That was not common ground. It does not matter. Let it be assumed that the costs would not become payable until the conclusion of the action. The position effectively is that the defendant has been put to expense by a litigant who has not complied with orders of the Court and has conducted his action in disregard of the rules of the Court. Citizens do not have a right to put others to expense and involve them in litigation in disregard of the rules and orders of this Court. The difficulty suffered by defendants in such cases is exacerbated where one may infer that the plaintiff will not be able to pay the costs if he is unsuccessful. Finally, it was submitted that I should not strike out the action because the defendant has not shown any prejudice as a result of the non-compliance with the order of Justice Byrne. It is probably true that the delay since 28 July cannot be said to have significantly aggravated the defendant's position or caused significant additional prejudice. It does not seem to me that that is a factor of any great consequence. There has already been prejudice suffered by the defendant. The plaintiff is, as I have already concluded, either incapable of formulating a statement of claim or unwilling to do so. It is, in my view, time to put an end to the misery. In my judgment the application should be allowed. I order that the action be struck out and the plaintiff pay the defendant's costs of and incidental to it including the costs of this application and any reserved costs to be taxed. 7 JUDGMENT 10 20 30 40 50 -- 7 of 7 --