Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1991] QSCFC 59 [1992] 1 Qd R 592

IN THE SUPREME COURT ft OF QUEENSLAND FULL COURT Writ No. 2860 of 1980 BETWEEN : AND: AND: CITICORP AUSTRALIA LIMITED (Plaintiff) Respondent METROPOLITAN PUBLIC ABATTOIR BOARD (First Defendant) THE QUEENSLAND MEAT INDUSTRY ORGANISATION AND MARKETING AUTHORITY (Second Defendant) Appellant MCPHERSON SPJ RYAN J DOWSETT J Reasons for judgment delivered by McPherson SPJ on 20 June 1991. Ryan & Dowsett JJ agreeing with the reasons of McPherson SPJ and with the orders proposed. "APPEAL ALLOWED WITH COSTS INCLUDING THE COSTS OF THE PROCEEDINGS BEFORE BOTH THE JUDGE AND MASTER. ORDER THAT PROCEEDINGS ON THE PLAINTIFF'S SUMMONS DATED 16 JANUARY 1990 BE STAYED UNTIL LEAVE TO PROCEED IS GRANTED ON AN APPLICATION MADE FOR THAT PURPOSE. FURTHER ORDER THAT THE SECOND DEFENDANT RECOVER AGAINST THE PLAINTIFF ITS COSTS TO DATE OF ITS SUMMONS DATED 22 FEBRUARY 1990." [1991] QSCFC 59 -- 1 of 9 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2860 of 1980 Before the Full Court Mr Justice McPherson S.P.J. Mr Justice Ryan Mr Justice Dowsett BETWEEN : CITICORP AUSTRALIA LIMITED (Plaintiff) Respondent - and - METROPOLITAN PUBLIC ABATTOIR BOARD (First Defendant) - and - THE QUEENSLAND MEAT INDUSTRY ORGANISATION AND MARKETING AUTHORITY (Second Defendant) Appellant JUDGMENT - MCPHERSON S.P.J. Delivered the Twentieth day of June 1991 CATCHWORDS Practice - Time - Lapse of three years - Discovered documents being inspected for three years - Whether a "proceeding" - R.S.C. 0.90, r.9. Counsel: E. Lennon Q.C. with R. Holt for the Appellant R. Gotterson Q.C. with D. Fraser for the Respondent Solicitors: Chambers McNab Tully & Wilson for the Appellant Henderson Trout for the Respondent Hearing Date: 23 March, 1991 -- 2 of 9 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT No. 2860 of 1980 BETWEEN : CITICORP AUSTRALIA LIMITED (Plaintiff) Respondent - and - METROPOLITAN PUBLIC ABATTOIR BOARD (First Defendant) - and - THE QUEENSLAND MEAT INDUSTRY ORGANISATION AND MARKETING AUTHORITY (Second Defendant) Appellant JUDGMENT - MCPHERSON S.P.J. Delivered the Twentieth day of June 1991 The record in this appeal tells a sorry tale of delay. The action, which was begun by the plaintiff as a claim for moneys alleged to be due by the first defendant in 1976 under guarantees of a contract for construction of an abattoir, was instituted by writ issued on 18 July 1980. With what now appears as unwarranted optimism, the writ was specially indorsed. Since then the first defendant has been abolished and the proceedings have been amended to include the second defendant. The defence in its amended form was delivered on 5 November 1981. Affidavits of documents were filed and exchanged in late 1982. There was a request for particulars of the amended defence that was made on 6 December 1985. With the exception of inspection (to which reference will be made), nothing much at all seems then to have happened until the plaintiff issued a summons on 16 January 1990. It sought a -- 3 of 9 -- 2 response to the request for particulars given over three years before, and that the response be provided within 28 days. By 0.90, r.9 of the Supreme Court Rules, when three years have elapsed from the time when the last proceeding was taken in a cause, no fresh proceeding is to be taken without the order of a Court or Judge. Concluding that the plaintiff's summons was a "proceeding" in the action that was taken more than three years after the time of the last proceeding before it, the second defendant issued its own summons seeking an order that the plaintiff's summons dated 16 January 1990 be set aside for irregularity. Master Horton acceded to the application and set aside the plaintiff's summons with costs. Derrington J. upheld an appeal against that decision and dismissed the second defendant's summons, but gave leave to appeal to this Court. Hence this appeal, in which, it may be observed, the notice of appeal, like so many others of its kind, fails to comply with the direction given by this Court in Mclver Bulk Liquid Haulage Ptv. Ltd, v. Fruehauf Australia Ptv. Ltd . [1989] Qd.R. 577, 580-581. Before his Honour the plaintiff relied and succeeded upon a submission that between October 1983 and 23 March 1987 the plaintiff was engaged, if discontinuously , in inspecting documents discovered by the second defendant. That activity, if it can properly be so described, occupied the period ending in the penultimate week of March 1987. It was said to constitute a "proceeding" within 0.90, r.9, which, having been taken within three years before the summons issued on 16 January 1990, displaced the consequence attached by that rule to a failure to proceed . -- 4 of 9 -- 3 There was a very large number of discovered documents in the present case, and inspecting them took an inordinately long time. In more detail, what happened is that in October 1983 the plaintiff commenced its inspection of documents of the second defendant at the premises of the latter at Cannon Hill. For this purpose the second defendant's boardroom was used. That arrangement evidently proved inconvenient to both parties and, after inspection by the plaintiff had been underway there during the first year, something was done about it. In April 1984 it was arranged that some of the documents produced by the second defendant should be removed to the plaintiff's solicitors' office and inspected there. The process of inspection then went on at the new location from 1984 to 1987. According to the plaintiff's solicitors' affidavit, they "ultimately completed inspection of the documents retained at their office in late March 1987, and returned those files to the second defendant's solicitors in January 1990". Many of the documents collected and inspected in 1984 had been returned to the second defendant early in 1989. The substantial question before us on appeal is whether the process of inspecting documents in the circumstances in which it was carried on by the plaintiff constituted a "proceeding" in the cause or action within 0.90, r.9. His Honour held that it did, reasoning that "an informal inspection in the form of receipt and perusal of copies of documents is regarded as a proceeding, for the Rules provide for such a step which is in substance directed towards the progress of litigation". He also considered it "a distinctive step in contrast for example with informal letters between the solicitors for the parties" . -- 5 of 9 -- 4 Notwithstanding the careful analysis of the authorities undertaken by his Honour, I find myself in respectful disagreement with his conclusion in this matter. It may I think be accepted that to constitute a "proceeding" the act or activity must have the characteristic of carrying the cause or action forward. It may, as Stable J. described it in Kaats v. Coelers [1966] Qd.R. 482, 489, be "some step taken toward the judgment or relief sought in the action"; or "taken with a view to continuing the litigation between the parties to it" : Spencer v. Watts (1889) 23 Ch.D. 350, 358, per Lindley L.J. The word "is one that suggests something in the nature of a formal step in the prosecution of an action..." : see Mundv v. Butterlv Co. (1932) 102 L.J.Ch. 23, 26. It need not be a step taken or act done in a court or its registry. Holding a compulsory conference in conformity with 0.39, r.30A(4)(e) of the Rules constitutes a proceeding within 0.90, r.9 : see Russell v. Mihalievic & Anor (unrep. Full Court 24 June 1982); likewise, the production to the other party of a signed certificate of readiness pursuant to 0.39, r.30A(5) has been held to be a proceeding : ibid, per Kelly J.; aliter if the certificate has not been signed by either party : see Wright v. Ansett Transport Industries Limited [1990] 1 Qd.R. 297, 299. All these, and many other authorities besides, were referred to by his Honour below or in the course of submissions before us. I am, however, unable to accept that acts done in the recesses of a solicitor's office partake of the character of a proceeding simply because they may, from the standpoint of the party for whom that solicitor is acting, be supposed to carry the -- 6 of 9 -- 5 action forward.-''^That is particularly so r-where S the hact iin question has, so far as the other party or the court ;is aware, u no readily discernible impact on the progress of the action. Time and effort expended on preparing an affidavit of documents achieves nothing if the affidavit is never delivered. Taking instructions from the client or proofs from witnesses are necessary activities if the action is to be brought to trial. None of them can however fairly be described as a "proceeding" in the cause as that expression is used in 0.90, r.9. The process of inspecting documents, although in this context perhaps more debatable, seems to me to fall outside ordinary conceptions of a "proceeding". It is to be borne in mind that, although common usage sanctions reference to an "inspection" of documents taking place between the parties, what is really being spoken of is production for inspection. That is the particular step that rr.14 to 17 and rr.19 and 22 of 0.35 have in contemplation. Under those rules the Court may if necessary compel production of documents by one party for inspection by another. Having done so, it goes no further. It makes no attempt to compel that other party to inspect, in the sense of look at, read, or examine, the documents so produced. History confirms this view of the matter. In a suit in Chancery, where discovery and inspection originated, a defendant was initially obliged to set out the material documents in his answer or pleading. Later he was permitted simply to describe them, whereupon the plaintiff would apply to Court for their production for inspection. Production was effected by depositing the documents in the Chancery office. It was only later still, and -- 7 of 9 -- 6 in the interests of convenience, that a practice evolved of permitting production at the office of a party's solicitor : see Curlex Manufacturing Ptv. Ltd, v. Carlinqford Australia General Insurance Limited [1987] 2 Qd.R. 335, 337. The conclusion I draw from all this is that production of documents for inspection is, but inspection itself ordinarily is not, a proceeding for the purpose of 0.90, r.9. Of course, the two processes often taken place simultaneously over a period of time; but it remains the act of production not inspection that gualifies as the "proceeding" in terms of the Rule. That is, in my respectful opinion, the explanation of the decision of Dowsett J. in Wright v. Ansett Transport Industries Limited [1990] 1 Qd.R. 297, where it is noteworthy that, in posing the "broad question" to be resolved, his Honour asked himself whether the provision of copies as it occurred was part of the discovery process in the action as contemplated by 0.35, r.14. Providing copies of discovered documents is simply a further and convenient modern refinement of the discovery process; but it is because it is one that relates to the aspect of production for inspection that it may properly be considered a "proceeding" . In the present case production for inspection took place at the second defendant's office at Cannon Hill in late 1983. It may be proper to regard such production as having taken place or continued as late as April 1984 when it was arranged that the documents be removed to the plaintiff's solicitors' office. It is not possible to consider production for inspection as having continued until the week commencing 27 March 1987, when the last of the documents was perused at the solicitors' office; and -- 8 of 9 -- 7 certainly not as late as January 1989 when those ^documents were returned. In my view, therefore, no proceeding was taken in the cause or action within the period of three years specified in 0.90, r.9. The plaintiff accordingly had no right to issue or serve the summons dated 16 January 1990 without obtaining the leave of the Court or Judge under that rule. Logically, the summons ought therefore to be set aside. It would not follow, however, that if leave were now to be duly sought to proceed in the action it would necessarily be refused. An application in that behalf ought nevertheless to be properly made, so that the Court, Judge or Master can on sufficient material determine whether on established principles the action is one that ought to be exempted from the general prohibition in 0.90, r.9, and be permitted subject to appropriate conditions to proceed to trial. Pending the making of such an application and its determination, and with a view to avoiding unnecessary further wastage of costs, I would order a stay of proceedings on the plaintiff's summons dated 16 January 1990, with power to lift the stay in the event that leave to proceed is granted on an application made for that purpose . The appeal should therefore be allowed with costs including the costs of the proceedings before both the Judge and the Master. Proceedings on the plaintiff's summons should be stayed on the terms I have specified. The second defendant has substantially succeeded on its own application, and so should also have the costs to date of its own summons dated 22 February. -- 9 of 9 --