Borthwick-Coleman v Lonergan [1992] QSC 411 [1993] 2 Qd R 517

! I IN THE SUPREME COURT , I OF QUEENSLAND No. 2967 of 1989 Brisbane Before Mr. Justice Derrington BETWEEN: GLENDIN BORTHWICK-COLEMAN AND: BRIAN L. LONERGAN and KAY MARILYN LONERGAN Plaintiff First Defendants CALTEX OIL AUSTRALIA PTY. LIMITED Second Defendant JUDGMENT - DERRINGTON J. Delivered this 26th day of November 1992 CATCHWORDS: Practice. Discontinuance of action. Notice filed and not served on defendants. Defendants orally notified by plaintiff of filing as part of negotiations. Whether effective. Whether court can set aside discontinuance. Practice Renewal of writ. Served on defendant but not served on W/C Board within prescribed time. Counsel: Solicitors: Mr. de Plater for the plaintiff P.A. Hastie for the first defendants W.A. Martin for the second defendant Thynne & Macartney, Town Agents for Primrose Couper & Rudkin, for the plaintiff Cleary & Hoare for the first defendants Quinlan Miller & Treston for the second defendant Hearing date: 26th October 1992 -- 1 of 11 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: GLENDIN BORTHWICK-COLEMAN BRIAN L. LONERGAN and KAY MARILYN LONERGAN No. 2967 of 1989 Plaintiff First Defendants AND: CALTEX OIL AUSTRALIA PTY. LIMITED Second Defendant JUDGMENT - DERRINGTON J. Delivered this 26th day of November 1992 The applicant is the plaintiff in an action against her former employers for damages alleged to have been caused by their negligence. Prima facie there would seem to be an arguable case against them in some respects. She does not wish to pursue her action against the second defendant. On her account she seems to have been poorly served by some of her former legal advisers although she consulted the first of them at an appropriately early stage. The writ was not issued until 1st September 1989, almost three years after her injury. It was then served on the first defendant but not on the Workers 1 Compensation Board. The Workers 1 Compensation Act, both before and after the 1990 amendment, requires that the writ be served upon the Board within twenty-eight days after service upon the employer: s. 9A(2) -- 2 of 11 -- 2 (s. 10.3 of 1990 Act). The Board has indicated that it will be taking the point. After a further change of solicitors, her then solicitors advised her that counsel was of the opinion that this action could not proceed because the Board's point was fatal to it, that she had a good cause of action in negligence against her former solicitors for failing to serve the Board in time, and that she should therefore discontinue this action. Her then solicitor ~· noted that she was happy to do so and in the circumstances and given the advice proffered to her this is highly probable. She I ~. says that she did not understand what this was all about, but her claim itself in these circumstances and the absence of any reasonable explanation are far from convincing. However she clearly acted upon the advice which she was given. A Notice of Discontinuance was then filed but not formally served on the first defendants but because she is now advised that service can be rectified by reservice of the writ on the defendants followed by service of it .upon the Board within ·~. twenty-eight days thereafter, she seeks to have the discontinuance struck out so that the action may continue. Ancillary to this, she also asks that the service on the defendants be struck out and that the writ be renewed. It would seem that if the opportunity is given her, the former defect in service may be cured in the way adumbrated: Hullock v. Roderick (unreported C.A. 129/92 19th November 1992) As to the first request, there are three issues. The first is whether there has been a discontinuance; the second is whether the court has jurisdiction to set aside any discontinuance; and -- 3 of 11 -- ':I '' : i I I 3 the third is whether, if there is such jurisdiction, the court should do so. Order 30 r. 1 of the Rules of the Supreme Court requires that for a discontinuance in this way there must be notice in writing. It is not enough that the party should simply express the wish or intention that the action should be terminated: Nichol v. Fearby (1923) 1 K.B. 480, 502; Moon v. Dickinson (1890) 63 L.T. 766. Where relevant the rule reads: "The plaintiff _/ . . . may, at any time before receipt of the defence of any defendant . ., by notice in writing wholly discontinue his ~, action .• against such party . and thereupon he shall pay such party costs of the action . 11 . . . In Metropolitan Permanent Building Society v. McClymont (1983) Qd.R. 160 at 169, McPherson J. (as he then was) said:- "There is no express requirement that a notice withdrawal under 0. 30 r. 1 served at all; but assuming that it must be served it is not in terms required to be served personally." The assumption as well as the observation are, with respect, correct ~' to the extent that it means that the plaintiff must somehow bring it to the attention of the defendant; but it is unlikely that his Honour meant that there must be some service in a formal way, which would be contrary to the authorities. A notice would seem to lack its essential ingredient if it were not brought by the party giving it to the notice of the party to whom it is addressed, either actually or constructively: cf. B. & J. Engineering Pty. Ltd. (in Liq.) v. Daroczy (1984) 73 F.L.R. 15; (1984) 4 F.L.R. 524. All of the authorities dealing with the point predicate this while making it clear that the service need -- 4 of 11 -- 4 not be in any formal terms or served personally upon the addressee: cf. The Pommerania (1879) 4 P.D. 195; Spincer v. Watts (1889) 23 Q.B.D. 350; The Salybia (1910) P. 25; Orbell v. Bundaleer Lodge Nursing Home Pty. Ltd. (1988) Qd.R. 152. The position may be compared and contrasted with that under 0. 12 r. 3 of the Rules requiring the giving of notice of Appearance which has been entered by filing an Entry of Appearance in the Registry. This shows the difference between the procedures of filing and giving notice and is consistent with the above analysis. However that rule prescribes ways of giving ~ notice, which does not occur in the procedure for discontinuance, but that provision does not detract from the point. indeed it shows that the giving of notice requires steps taken by the giver to that end, and that those steps are directed to bringing the matter to the attention of the other party. Although a form of Notice of Discontinuance is set out in the schedule to the rules, it might be observed that the rule does not require, nor does the form suggest, that the notice should be filed in the court. This is in contrast with, for > example, the position in Victoria and New South Wales where the comparable rule requires the filing in the court of a Notice of Discontinuance and the service of it upon the other parties on the same day. It is however desirable in Queensland, and perhaps required, that it should be filed, but the point is that the filing of the notice is not the primary feature of the process. It is true that the form of notice in the Rules is not addressed to any person, and it is argued that this implies that it need not be sent to any person. This has some force, but it -- 5 of 11 -- I '""" 5 is not enough to outweigh the connotation of the word "notice" to the contrary. The rule makes it clear that the notice is to be given to "any defendant" in respect of whom the plaintiff wishes to "discontinue his action ... against such party". It follows from the foregoing that the mere filing of the notice in the court in the present case without service of it on the party to whom it should be given could not constitute a valid discontinuance. Equally the subsequent provision of information as to the existence of the notice which has been given to the solicitors for the first defendants in respect of this application cannot itself amount to notice. Disclosure of the applicant's intention to set it aside cannot amount to the giving of Notice of Discontinuance for on the contrary the message indicates that the action was not to be discontinued: cf. Moon v. Dickinson {supra). Although the notice need not be formal, the telephonic communication of the filing of the notice made by the applicant's solicitors to the respondents' solicitors cannot alone amount to the requisite notice which the rule requires to be in writing. However this message had ramifications outside its bare bounds and it and its consequences deserve detailed description. On 18th December 1991 and prior to any suggestion of setting the discontinuance aside, in the above telephone conversation made pursuant to discussion as to settlement with threats by the solicitor for the respondents to apply to the court to have the action struck out for want of prosecution, the solicitor for the applicant said that he had on his file a Notice of Discontinuance which had been filed in respect of the respondents, as a search -- 6 of 11 -- 6 of the Registry confirmed; and that there was not much point in an application by the respondents for a dismissal of the action were already discontinued. The solicitor for the respondents then had the filing of the Notice confirmed by search. The implications of this are serious. As the authorities cited above indicate, there is no prescribed form for the notice other than that it be in writing. More particularly, there is no requirement of service of the written notice on the defendant. Where then through their respective solicitors the appellant filed the Notice in the Registry and told the respondents of it in support of a feature of her case, and by implication invited them to see it, and they did so, it is difficult to say that she did not give them notice in writing in an informal way. Such an invitation must be implied by the reference to and reliance upon it. In principle it is the same as leaving the notice with a neighbour in the addressee's absence and later telling him by telephone: "I have left with your neighbour a document which I intend to rely on in our litigation.". This must amount to an invitation to search it up, read it, and treat it as effective. If that is done, surely there is a giving of notice of the contents of the document, albeit indirect. The applicant was not, as her counsel argues, passive in the matter. it is also because of this activity that B. & J. Engineering Pty. Ltd. (in Lig.) v. Daroczy (supra) should be distinguished. All of the required elements are fulfilled and all of their purposes are met. While perhaps it may not have been enough if the respondents had fortuitously stumbled across the -- 7 of 11 -- 11 7 discontinuance in the Registry files because it is arguable whether the appellant had done the act necessary to constitute the giving of the notice, that is not so here. Her solicitor's reference to it as a factor supporting her proposition was an implied invitation to the respondents to search it on the public record. Their reference to the written document in those circumstances amounted to notice to them in writing by the appellant: cf. Pino v. Presser & Hassan (1976) V.R. 835, 839; Detford v. Temby (1990) 26 F.C.R. 72, 77. Consequently there has been discontinuance in accordance with the Rules and the action ~ no longer exists. That is not necessarily the end of the matter. For example if there were some serious cause similar to that which would enable a subrogated insurer to set aside a judgment obtained by the insured for a trivial sum against a defendant which would defeat the insurer's subrogated right to recover a much larger sum by way of the injury to the insured for which indemnity has been provided (cf. Buckland v. Palmer [1984] 1 W.L.R. 1109 [C.A.]), then the action may have been revived: cf. Bailey v. Marinoff (1971) 125 C.L.R. 529, 530, 531. Similarly the court may set the discontinuance aside in the case of fraud, abuse of process, etc.: Castanho v. Brown and Root (U.K.) Ltd. (1981) A.C. 557, 571; or as it may do if the action is merely stayed: Cooper v. Williams (1963) 2 Q.B. 567 per Lord Denning M.R. at 580. However none of such special circumstances exists in the present case, and so the court has no jurisdiction to interfere with the effect of the discontinuance described above. -- 8 of 11 -- 8 The next serious question which however is now academic, is whether the writ should have been renewed if the action were still alive. The provisions of 0. 9 r. 1 give the court a discretion if it is "satisfied that reasonable efforts have been made to serve such defendant, or for other good reason". As the relevant defendants have already been served, the only other question is whether there is "other good reason". Prima facie this expression is limited only by the ordinary meaning of the words which it contains; but contextually it might be thought to predicate the absence of service upon the defendants so that it '...._, reads in a way that would cause the court to look for other good reason for the applicant's having failed to serve them. However, il such a construction imposes an unnecessary restriction upon the intended breadth of the discretion invested in the court. The question is analogous to that which arises under 0. 90 r. 9 as to whether there is good reason for allowing a fresh proceeding to be taken after three years: Jones v. Jebras & Hill (1968) Qd.R. 13 by Gibbs J. at 23. The plaintiff's position in the present case is reasonably meritorious. The first defendants were served in time and they and the Board all became aware of the action reasonably soon after the issue of the writ. The present action is required only because of the technical failure of the plaintiff's solicitors to effect service on the Board within the limited period. It is not suggested that if the writ had been renewed then there could not have been reservice upon the defendant and then service upon the Board within the prescribed time so that the action may have proceeded in the ordinary way. -- 9 of 11 -- 9 It is true that if the writ had not been renewed then the plaintiff's claim against the first defendants could not have been taken further. However it would have been unjust to deprive the plaintiff of this right when as a matter of substance all the relevant parties have already been well acquainted with the existence of the action from the time when the writ was still alive. It is difficult to see, and no argument has been advanced, how there could be any prejudice to the first _/ defendants or the Board from the passage of the intervening period since the writ became stale. The position here is much \ the same as that where renewal was approved in Hullock v. Roderick (supra). Accordingly had the court had jurisdiction it should have been renewed but of course limited to the action against the first defendants. In summary, in respect of the relief prayed in the summons, no order can be made setting aside the Notice of Discontinuance. I \ Leave therefore cannot be granted to renew the writ. No order would have been necessary in respect of the service of the writ already effected upon the first defendants or for the further service of it upon them. When judgment was first to be given in this matter, by way of preliminary introduction it was mentioned that it was significant that there was no evidence that the respondents had any knowledge of the filing of the Notice of Discontinuance until they had notice that the plaintiff did not intend to discontinue the action. Learned counsel for the respondents then obtained an adjournment, without objection by the applicant, in order to lead evidence on the point and make further submissions. This was allowed with protection of the -- 10 of 11 -- I i i I~ I i 'i ! ! 10 applicant's rights to respond, and the judgment is given with the benefit of this evidence on the vital events. The first defendants should have had their costs, having been brought to answer the summons except that the application would have gone against them but for the reopening of the matter and the production of vital evidence as judgment was about to be pronounced. Accordingly there will be no order as to costs. -- 11 of 11 --