F B Kane Pty Ltd v Webber & Anor [1991] QSC 337

,, •,••.· -:.•··.'. .... ·,•. ·•.:~:l_f •. ·.·.•.·,· .. ·. (Copyright in this transcript :.be ·made or sold without . the ·Bureau.).· }3:i}:,;J;a,EME COfjRT OF. QUEENSLAND ·J\(;Itt±~ri JURisDicTioN }j.'.)n:LIAMS •J ·. (Hfr No 1~3 pt. 1987 . . ., . . . .... •' ._·j~\\-:::::\··~ _:·_B:. 'KANJ{ .PTY. LTD . . : i.-.· .:and ! 'y(.::,-:•-:, ... ··: \~':· .. State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBAAc. 0. 4000 Tel. (07) 227.4360 .act 111 the Crovrn. Copies thereof must not t1 0 ·nr of the Director, State Reporting au 1 n!.J Plaintiff -RP.BERT.· JAMES WEBBER and jENNIFER FAYE WEBBER Defendants . -·· ••,/:•· 0~/11/91 11.20 A.M. 1 -- 1 of 5 -- (.,,--.._ . l 10 20 30 HIS HONOUR: On the basis that three years has elapsed since the last proceeding in the ~ction was taken, the plaintiff seeks leave to proceed pursuant to Order 90 Rule 9 of the Rules of the Supreme court. The action is one in which the plaintiff claims an account of profits derived by the defendants in breach of their fiduciary duty to the plaintiff; damages for breach of contract and an injunct,ton. It appears from the pleadings that the conduct of the defendants giving rise to the cause of action commenced with the defendants starting a business in Innisfail on or about 1 April 1986. It is necessary to set out something of the chronology of the action. The Writ was issued on 14 October 1987. Prior to commencingthe action the plaintj.ff had instructed_ t".{o firms of. aolicitors and the Writ was issued by a firm in Cairns. Thereafter the matter appears to have progressed with reasonable expedition.· Pleadings closed and discovery was had. The plaintiff filed its affidavit of documents on 20 April 1988. It does seem 10 20 30 40 40 50 60 that the plaintiff was dissatisfied with its original solicitors conduct of the matter, but it'does see~ that. the male director of the pl2.in:t:.iff initiated mos:: contact with them. It is . not entirely clear whether it was in 1988 or 1989 that Francis Brian Kane, the principal director of the plaintiff, developen Ross River Fever, but that certainly debilitated him for a significant period and affected his ability to have control of the proceedings. In 1989 the file was taken away from the firm who had • -Govt. Printer, Qld. 2 50 60 -- 2 of 5 -- !O 20 30 40 50 60 ,vlll91 D.l JUDGMENT commenced the proceedings. Nothing was done until August 1 ~9.e~ Kane delivered the file to a solicitor in the employ, in fact, of the solicitors for the defendants. This was a couple of months before it was realised that they were in that embarrassing position and the file was returned. There was then a period of delay until August this year when the file was taken to the present solicitors for the plaintiff. There are two matters which, in my view, are of significance when it comes to the question of the exercise of my discretion. Firstly, on 5 December 1988 the then solicitor for the plaintiff wrote a letter requesting copies of certain documents referred to in the defendants' affidavit of documents 2.nd requesting further inspection of material referred to therein. Without deciding whether or not a formal request for inspection, or indeed actual. inspection of documents} by the p1pintiff Ut1der and in accordance with the rules would be a proceeding, it seems to me that this is not a case where there has been total inactivity for a period of three years prior to the application being brought. What transpired in December 1988 was a significant step _in the progress of the action towards trial and it cannot, in my view, be ignored. The other matter is that the limitation period has not expired. As I mentioned, the conduct on the part of the defendants giving rise to the alleged cause of action commenced on 1 April 1986 when it began the business in question. Clearly a six year limitation period applies to · Govt. Printer, Old. 3 10 20 30 40 50 60 -- 3 of 5 -- 10 20 30 40 50 60 011191 D.l JUDGMENT an action of tM.s type . The fact that the l.i.;:;__:;_-~at.ion period has not ~A-pired has a~Nays been regarded as a relevant matter on such 0 ; o,w • an application. I would refer to Madden v. Kirkegaard Ellwood & Partners (1983) 1 Qd. R. 649 and Birkett v. James (1978) A.C. 297. Further, I am not satisfied that the delay on the part of the plaintiff could be described as contumelious. I am a little concerned as to the delay from October 1990 to August 1991, but, to an extent, that is explicable by the plaintiff's disillusionment with the tr8atment it had received from prior solicitors. and ~ane's illness to which_ I have _ already referred. Bearing in mind what occurred in December 1988 and the fact that the limitation period has not expired, the question of delay is not of as great importance as it might otherwise have been. Further, I am not satisfied that there has been any significant prejudice established b? the material. Again in so concluding I have had regard to the fact that another action could be commenced by the plaintiff based on the same clause of action if this current proceeding was laid to rest. It seems to me that in view of the fact that there has already been discovery in this action, and the pleadings have closed, it is far better to allow this action to proceed to trial. However, it should be said that the nature of the clause of action is such that the action should be prosecuted diligently henceforth. It seems to me that any delay in the future could well be of much greater significance than any delay which has occurred to date. · Go'lt. Printe,, Old. 4 10 20 30 40 50 60 -- 4 of 5 -- , 011191 D.1 JUDGMENT In the circumstances I grant leave to proceed. I order that the plaintiff pay the respondent's costs of and incidental to the application to be taxed. 10 10 20 20 30 30 40 40 50 50 60 60 · Govt. Printer, Qld. 5 -- 5 of 5 --