Corporation of the Roman Catholic Diocese of Toowoomba v Leadlights Pty Ltd, Myles & Myles [1996] QCA 356

1 [1996] QCA 356 COURT OF APPEAL MACROSSAN CJ DAVIES JA de JERSEY J Appeal No 286 of 1995 THE CORPORATION OF THE ROMAN CATHOLIC DIOCESE OF TOOWOOMBA Plaintiff/Appellant and LEADLIGHTS PTY LTD First Defendant/First Respondent and ROBERT MYLES Second Defendant/Second Respondent and WARREN MYLES Third Defendant/Third Respondent BRISBANE ..DATE 04/09/96 JUDGMENT -- 1 of 5 -- 040996 TI/JAP/11 M/T COA 207/96 2 JUDGMENT DAVIES JA: This is an appeal from an order of a Chamber Judge on 5 December last refusing the plaintiff/appellant leave to proceed and, in consequence of that, striking out his action for want of prosecution. The action was one for damages for breach of contract made between the plaintiff and the first defendant on 15 June 1983. It was common ground between the parties that there was a contract made between them on or about that date. However, there was a dispute between them which is relevant to the question the learned Chamber Judge had to decide as to whether that contract was wholly in writing or partly oral and partly in writing and if it was oral as to the oral terms. The plaintiff asserted a written contract, the defendant contended that it was partly oral and partly written. The action was commenced by plaint in the District Court on 27 August 1990. This was almost six years after the completion of the work by the first defendant in respect of which the plaintiff claims damages for breach of contract. Service was not effected on the defendant until 20 August 1991. Shortly prior to that on 16 August the action had been transferred to the Supreme Court. The last proceeding in the action was on 7 April 1992. The summons seeking an order pursuant to Oorder 90 rule 9 for leave to proceed was issued on 23 November 1995. It was opposed on two grounds. The first was that the plaintiff had not given any satisfactory explanation for the delay and the second was -- 2 of 5 -- 040996 TI/JAP/11 M/T COA 207/96 3 JUDGMENT that the defendants would suffer prejudice in consequence of the death of a potential witness, Mrs Mitchell. The learned primary Judge found it unnecessary to determine the first of these questions, finding against the appellant on the basis that the defendants had demonstrated sufficient prejudice as a result of the delay to preclude the making of an order. Mrs Mitchell was about 75 years of age when the relevant conversations alleged by the respondents to form the oral part of the contract took place. She died in 1995 aged 87 and no statement of evidence was obtained from her. The relevance of Mrs Mitchell's evidence was as follows. The respondent's case was that she was a witness to a conversation which took place between the second respondent and Father Sheeran on behalf of the plaintiff on or about 15 June 1993 which formed an essential part of the contract because it relevantly limited the scope of the defendants' obligations. Mrs Mitchell herself told the respondent that she was present at that conversation, something which the second respondent said he had forgotten, and that she had heard a conversation in the terms generally alleged by the respondents and consequently supporting the respondents' case. Mr Williams QC for the appellant submits that that is not -- 3 of 5 -- 040996 D.1 T10/VT9 M/T COA207/96 4 JUDGMENT sufficient to show prejudice, that it is necessary to go further and show that the evidence was probative. This seems to involve some assessment of Mrs Mitchell's evidence against that of Father Sheeran; in other words, to require some assessment to be made of the cogency of her evidence. In my view that is unnecessary. There can be no doubt that the defendants have been denied the prospect of evidence supporting their version of the contract from an apparently independent witness whose death has left them, it now seems, with a difficult issue of credit between the second defendant, who may be seen to have an interest in the result, and Father Sheeran. In my view, that was sufficient to show sufficient prejudice to justify the result which the learned primary Judge reached. On the other hand, I should say, there is little in the way of explanation, let alone justification, for the delay which, as I have already mentioned, ran from about 1984 when the work was completed. Nothing much at all is said to explain the long delay before the proceedings were commenced and as to the delay after proceedings were commenced, in particular the period between 7 April 1992 and 23 November 1995. The only explanations appear to be that the plaintiff was revising details of a SCOT schedule and obtaining or pursuing experts' reports. These do not show a satisfactory explanation, in my view, for the delay. In those circumstances, in my view, the appellant has entirely failed to show that the learned primary Judge -- 4 of 5 -- 040996 D.1 T10/VT9 M/T COA207/96 5 JUDGMENT wrongly exercised his discretion not to exempt the appellant's action from the prima facie prohibition against its continuation. It follows that I think the appellant accepts from the correctness of His Honour's order in that respect, that the action was also properly struck out. In my view the appeal should be dismissed. THE CHIEF JUSTICE: I agree. de JERSEY J: I also agree. THE CHIEF JUSTICE: Costs. The respondent is to have the costs of the appeal. ----- -- 5 of 5 --