Fairview Farming Co Pty Ltd v Cairns City Council [2008] QSC 122

1 [2008] QSC 122 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J No 117 of 1996 FAIRVIEW FARMING CO PTY LTD Plaintiff and CAIRNS CITY COUNCIL Defendant CAIRNS ..DATE 16/05/2008 JUDGMENT -- 1 of 9 -- 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: Before me are two applications. The first is by the plaintiff seeking a declaration that its action was not barred by the provisions of rule 389 of the Uniform Civil Procedure Rules or, if necessary, leave to proceed with the action pursuant to sub rule 2 of that rule. The second application is by the defendant for an order that the plaintiff's action be dismissed for want of prosecution. If the Court finds, as the plaintiff contends it should, that the service of a supplementary list of documents made on 29 September 2006 is a step in the proceeding, then the plaintiff must succeed in its primary action, and the defendant's application, though still ongoing, would lose some force. The plaintiff commenced this action on the 27th of September 1996. By it, the plaintiff alleges that the defendant imposed on the plaintiff company water and sewerage headworks charges in excess of the amount permitted under the relevant statute regulations and bylaws. The charges related to a staged subdivisional development of land described as Portions 60, 80 and 504, County of Nares, Parish of Cairns, between the period of July 1988 and September 1992. The plaintiff claims a repayment of those excess payments, as moneys they had and received, or as restitution of the amounts by which the defendant has been unjustly enriched. The defendant asserts that the charges were not quantified by it, but rather by consulting surveyors to the plaintiff, and that the defendant simply agreed in those calculations. The -- 2 of 9 -- 3 JUDGMENT 1 10 20 30 40 50 60 plaintiff did not challenge the imposition of the agreed charges as conditions of the subdivision. Further, the defendant claims that it has budgeted on the basis of the receipt of those moneys, has made provision for subsequent headworks and reliance on the payments, and has expended the money in accordance with those budgets. In other words, that it has changed its position. The defendant asserts that the plaintiff meanwhile has benefited from the approvals, made profits, and passed on charges to the purchasers of the parcels of land emerging from the subdivision. The defendant counsel disputes also the calculations relied on by the plaintiff to determine the amount of the excess of the claims, but nothing really turns on that point in this hearing. There is no advantage either in canvassing any of the further issues thrown up in the dispute. After the initial pleadings were exchanged there were interlocutory proceedings which ended with an order of the Court of Appeal on 23 February 1998, although the ensuing costs argument continued until 1999. Thereafter, there was a new round of pleadings and amended pleadings which occupied a period between September 2000 and September 2003. Since then, there have been issues between the parties about disclosure. The plaintiff initially contended that the defendant has not yet made proper disclosure and that is the reason why the matter has not proceeded, although before me today Mr Fraser of Queens Counsel, on behalf of the plaintiff, has indicated -- 3 of 9 -- 4 JUDGMENT 1 10 20 30 40 50 60 that the plaintiff is now satisfied with disclosure and is ready to proceed with the action. The plaintiff filed and served a list of documents on 13 October 2004. The defendant has prepared and delivered a list of documents on 29 November 2004. After these steps there was an exchange of correspondence between legal representatives which continued until 9 August 2005, at which point activity between the legal representatives ceased for a period. On 29 September 2006 the plaintiff served, but did not file, a supplementary list of documents. Since that time there has been something of a stand-off between the parties, the plaintiff asserting that the service of the supplementary list of documents was a step in the action and that the defendant contending that it was not, thereby claiming that the plaintiff is in a position of having to seek leave to proceed. The plaintiff, as I mentioned, now states that there is no further disclosure required. The defendant contends that the supplementary list of documents was unnecessary and self- serving, perhaps to overcome the plaintiff's inactivity. The defendant argues that such a document cannot be a step in the proceeding if it is to no purpose. The only effective new document that was disclosed in that list was that of a letter from consulting surveyors indicating that they had disclosed relevant material in response to a notice delivered by the defendant. As there is no purpose to the filing of the supplementary list of documents and as it did not advance the -- 4 of 9 -- 5 JUDGMENT 1 10 20 30 40 50 60 action. Thus, the defendant argues, it was not in truth a step. The service of a list of documents does, in my view, create obligations for the party doing so, and rights for the benefit of the other party. For example, the party served can require the production of those documents disclosed. The party has the right to tender any of the documents, in so far as the authenticity of the documents is established by the delivery of the list. Further the disclosing party has established that, to it, the documents are relevant. So it is not an insignificant step, though it might be seen as self-serving. The defendant did not challenge the service of the supplementary list of documents or seek to have it set aside. The question of whether a disclosure process involves a step in a proceeding, (or under earlier cognate rules of the Supreme Court, a "proceeding in the action" - order 90 rule 9) was considered by the Full Court in Citicorp Australia Limited v. Metropolitan Public Abattoir Board [1992] 1 Qd R 592. McPherson SPJ (Ryan & Dowsett JJ agreeing) said at p.594: "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. Caelers [1966] Qd R 482, at 489, be 'some step taken toward the judgment or relief sought in the action'." By contrast, his Honour found that the preparation of an affidavit or list of documents achieves nothing, if it not delivered. He concluded, and I quote: -- 5 of 9 -- 6 JUDGMENT 1 10 20 30 40 50 60 "The conclusion I draw from all of this is that production of documents for inspection is, but inspection itself ordinarily is not, a proceeding for the purpose of order 90 rule 9. Of course, the two processes often take place simultaneously over a period of time; but it remains the act of production not inspection that qualifies as the 'proceeding' in terms of the rule." That reasoning was apparently followed by Justice White in Paradise Grove Pty Ltd v. Stubberfield, Number 7852 of 1996. She said at page 2 of her reasons, and I quote: "When the list of documents was served in accordance with the requirements of rule 214 of the UCPR under cover of the letter of 27 October 1999 this constituted a step in the action. It matters not that the defendants neither asked for nor wanted the list." The same approach was adopted by McGill DCJ in Concord Park Pty Ltd v. Allied Organik Ltd [2003] QDC 420. In Kanyilmaz v. Nominal Defendant, Number 2136 of 1989, Justice Muir relied upon the delivery of a supplementary affidavit of documents which was out of time, but was not objected to, as being a step in the action. He relied upon Perez v. Transfield Pty Ltd (1979) Qd R 444 to treat the late delivery of the documents as an irregularity unless it was set aside. It seems to me in reliance of those authorities that I must regard the supplementary list of documents as a step in the proceeding. I do not accept that it was an action of no purpose, and there is insufficient material before me to suggest that it was self-serving in the sense of it being an abuse of process. Had that been the case, the onus would have -- 6 of 9 -- 7 JUDGMENT 1 10 20 30 40 50 60 been on the defendant to seek to have the delivery of that document set aside, and this has not been done. In coming to that view, I therefore find that the plaintiff is not barred from proceeding in the action by reason of not having taken a step in the action for a period of two years. Notwithstanding that finding, the defendant seeks to have the action struck out for the want of prosecution. Mr Philp of senior counsel for the defendant points to the considerable delay which has attended this particular action. Allowance has to be made for the fact that there was an interlocutory appeal to the Court of Appeal and that new amended pleadings were exchanged. None of this fully explains the extent of the delay which remains quite serious. There has been an attempt to explain part of the recent delay between the year 2000 and the delivery of the supplementary list of documents in September 2006, based upon discussions said to be held between the deputy mayor of Cairns and the plaintiff's representatives. I do not place much reliance upon those discussions. It is offered by the defendant as an explanation for his delay or the delay of his legal representatives, but it is not in my view a complete justification. But against that there has to be balanced what has been achieved, even though it has taken a long period of time. The disclosure problems that have existed in 2005 and perhaps in -- 7 of 9 -- 8 JUDGMENT 1 10 20 30 40 50 60 2007 are no longer of importance. The point has been abandoned by the plaintiff. The action is substantially ready to proceed to trial. It can be entered for trial with, I anticipate, very little further work. There is nothing in the material that ought to have given the defendant a sense that the defendant had abandoned its claim, or that it had formed an irrevocable intent not to go on with it. There was simply no action for a period of time when the plaintiff was in serious negotiations with the council about another project. I am satisfied that whilst there is some prejudice to the defendant simply by reason of the delay, and also by the difficulty of locating documents which may have been disturbed by reason of other proceedings of a like nature, that is not so serious as to suggest that a fair trial cannot be had now as to justify a denial to the plaintiff of his cause of action. The defendant has raised positive defences as far back as the earlier pleadings in early 2000. One would have expected that it would have garnered the evidence to support those positive defences which it raised then and continues to raise. A recent affidavit filed by leave today shows that many of the council officers who made contributions to the decision-making are still resident in Queensland and one assumes available to give evidence. Their evidence, whilst might be somewhat -- 8 of 9 -- 9 JUDGMENT 1 10 20 30 40 50 60 impaired, will be refreshed by reference to documents in these and other cases. On balance, I am not satisfied that the prejudice to which the defendant adverts is such as to lead to the likelihood that there cannot be held a fair trial. In those circumstances, I would dismiss the defendant's application. Question of costs? ... HIS HONOUR: I order that the defendant pay the applicant's costs of and incidental to each application, to be assessed on the standard basis. ----- -- 9 of 9 --