Concord Park Pty Ltd v Allied Organik Ltd & Anor [2003] QDC 420

DISTRICT COURT OF QUEENSLAND CITATION: Concord Park Pty Ltd v Allied Organik Ltd & Anor [2003] QDC 420 PARTIES: CONCORD PARK PTY LTD (ACN 007 361 159) Plaintiff v ALLIED ORGANIK LTD (ACN 075 920 393) First Defendant BECKPORT INVESTMENTS PTY LTD (ACN 010 187 676) Second Defendant FILE NO/S: 3915/1998 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 21 November 2003 DELIVERED AT: Brisbane HEARING DATE: 10 November 2003 JUDGE: McGill DCJ ORDER: Application dismissed with costs. CATCHWORDS: PRACTICE – Want of Prosecution – step in the proceeding – includes serving list of documents. Supreme Court of Queensland Act 1991 s 85(2) Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592 – applied. Kanyilmaz v Nominal Defendant [2000] QSC 180 – followed. Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214 – followed. Raabe v Brisbane North Regional Health Authority & Ors [2000] QSC 257 – not followed. Smiley v Watson [2001] QCA 269 – applied. COUNSEL: D L K Atkinson for the plaintiff P W Hackett for the defendants SOLICITORS: Phillips Fox for the plaintiff John M O’Connor & Co for the defendants -- 1 of 5 -- 2 [1] This is an application to dismiss an action for want of prosecution. The action was commenced by plaint filed on 9 September 1998, in which the plaintiff claimed damages for breach of contract against the first and second defendants, or quantum meruit against the first defendant. The plaintiff is not applying for leave to proceed under r 389, and submitted that there was no need to do so, as there has not been a period in excess of two years during which no step has been taken. The defendants submitted that the last step was the service of the reply and answer on 14 August 2001. The plaintiff however submitted that there had been other steps subsequent to this, and, although there had been a period of delay, it was not long enough to give jurisdiction to dismiss for want of prosecution. In the alternative, no such order was justified in the circumstances of this case. When was the last step? [2] Two things happened after the reply and answer was filed and served; on 1 October 2001 a list of documents was served on behalf of the plaintiff, and on 1 November 2001 a list of documents was served on behalf of the defendants.1 Nothing which might amount to a step happened thereafter until an amended list of documents was served on behalf of the plaintiff on 2 October 2003, after a notice of intention to proceed had been given on 29 August 2003.2 [3] The defendants submitted that service of a list of documents was not a step for the purposes of r 389, because under r 210 “disclosure is the delivery or production of documents in accordance with this part” and no documents had been delivered or produced, so there had not been disclosure as required by the rules. The defendants also relied on comments by McPherson J in Citicorp Australia Ltd v Metropolitan Public Abattoir Board [1992] 1 Qd R 592. His Honour there said at p.594: “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 action forward. That is particularly so where the act in question has, so far as the other party or the court is aware, no readily discernable 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 O 90 r 9. The process of inspecting documents, although in this context is 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.4 to 17 and rr.19 and 22 of O.35 have in contemplation.” 1 The affidavit of Mr Bell filed 23 October 2003 para 15 refers to these documents having been filed, they do not appear on the Court file, and are not required to be filed under the Rules, and I will treat this as evidence that they were served on those days. Mr Daniel in his affidavit agreed with the chronology in Mr Bell’s affidavit in this respect. 2 The affidavit of Mr Daniel filed by leave indicates that there were things being done to prepare the action for trial, but nothing that might amount to a step. -- 2 of 5 -- 3 [4] It is necessary to bear in mind that his Honour’s remarks were in a context where a very large number of documents had been produced for inspection, and inspected at various different times between October 1983 and March 1987. If that inspection was a step, there was no need for an order under O 90 r 9, the precursor of r 389, although it spoke of a period of three years before leave to proceed was required. It also used the term “proceeding”3 rather than the word “step”, although the term “step” was commonly used in practice to describe something which would amount to a “proceeding” for the purposes of O 90 r 9.4 His Honour’s conclusion at the foot of p.594 was that production of documents for inspection is, but inspection itself ordinarily is not, a proceeding for the purposes of O 90 r 9. Hence when inspection takes the form, as it often does these days, of the provision of photocopies, that was regarded as a proceeding under those Rules: Wright v Ansett Transport Industries Ltd [1990] 1 Qd R 297. His Honour did not decide that serving5 an affidavit of documents was not a proceeding for the purpose of that rule. [5] In my opinion Citicorp is authority that production for inspection of documents, or delivery of copies and requested documents, is a step in the action, and mere preparation of an affidavit of documents is not. It follows that preparation of a list of documents would not be a step, but the decision does not say that delivery of an affidavit or list of documents is not a step in the action. [6] That decision was cited by White J in Paradise Grove Pty Ltd v Stubberfield [2000] QSC 214 where it was held that the preparation and filing of a list of documents was not a step for the purposes of r 389, although delivery of the list of documents did constitute a step in the action. That was because r 214 requires the list of documents to be delivered to the other parties rather than filed in the court. I respectfully agree with the reasoning of this decision, and applying it means that service of each list of documents in the present case amounted to a step for the purposes of r 389. It follows that, according to the material before me, the last step before the delay was taken on 1 November 2001. [7] Less than three years after that step, an amended list of documents was served on 2 October 2003. The rules relating to disclosure do not specifically contemplate the delivery of an amended list of documents, once one list of documents has already been provided, at least without a court order or direction to that effect. In these circumstances, it is not beyond dispute that doing so does amount to a step for the purposes of r 389. However, in Kanyilmaz v Nominal Defendant [2000] QSC 180 Muir J treated delivery of a supplementary affidavit of documents as a step in the action, and in the circumstances I am prepared on the basis of that decision to treat the amended list of documents delivered on 2 October 2003 as also a step in the action. The contrary was not specifically argued on behalf of the defendants; the argument was that no list of documents was a step. 3 RSC O 90 r 9(2): “When three years have elapsed from the time when the last proceeding was taken, no fresh proceeding shall be taken without the order of the court or a judge, which may be made either ex parte or upon notice.” 4 The term was used in two of the quotes from earlier decisions on p.594 of Citicorp (supra), for example. 5 Or for that matter filing, which was required of an affidavit of documents at one time under O 35, or if discovery by affidavit was required under the District Court Rules: r 184(2). -- 3 of 5 -- 4 Is a “step” different from a “proceeding”? [8] I should mention one argument advanced by counsel for the plaintiff in relation to the question of what was a step for the purposes of r 389. He relied on the decision in Raabe v Brisbane North Regional Health Authority & Ors [2000] QSC 257, where Holmes J said at para [9], after referring to the change in terminology from “proceeding” in O 19 r 9 to “step” in r 389: “While the substitution of the expression ‘step … in a proceeding’ for ‘proceeding’ suggests that something less formal may suffice, it also conveys a necessary quality of constituting an advance in the action.” On the basis of this decision, counsel submitted that something could be a step without being a formal step under the UCPR. The argument assumes that a “step” for the purposes of s 85 of the Supreme Court of Queensland Act 1991 is the same as a “step” for the purposes of r 389, which I accept. [9] With respect to her Honour, I do not agree that the change in terminology in the UCPR was intended to produce some change in the substance of the applicable law. The change is explicable in order to avoid confusion with the word “proceeding” which is used in the UCPR as a generic term for any lis pendens. It superseded the terms “action” and “matter”, among others.6 The preservation of the word “proceeding” in the sense in which it was used in O 90 r 9 would have required r 389 to refer to a “proceeding in the proceeding,” which would have been at least inelegant, if not ambiguous. In these circumstances, and bearing in mind the common usage of the term “step” to refer to a “proceeding” for the purposes of O 90 r 9 under the old Rules, it was natural for the term “step” to be substituted in the new Rules. However this was no more than a change of language. [10] That seems to be supported by the decision of the Court of Appeal in Smiley v Watson [2001] QCA 269. In that case Williams JA, with whom the other members of the Court agreed, referred to a number of authorities including Citicorp (supra), and said at para [12], apropos non-party disclosure: “It is not a step necessarily required to be taken by the rules before the matter could be said to be ready for trial.” Because of this, and because the proceeding between the parties had not been advanced, his Honour concluded that it was not a step in the proceeding. His Honour also went on to consider the question of whether an order transferring a matter from the Magistrates Court to the District Court was a step in the action, and concluded, approving earlier authority under the former rules, that it was not. [11] There was no suggestion in this judgment that the term “step” in the UCPR implies any reduced formality by comparison with the former rules. Bearing in mind that Mr Justice Williams has been the chairman of the Rules Committee since its establishment, it is I think likely that, if the change in terminology had been intended to produce a change in substantive law, his Honour would have mentioned that in his reasons for judgment. [12] In these circumstances I do not regard as correct what may perhaps be fairly described as a passing comment by her Honour on this point. I mention this, not out of any desire to be gratuitously disagreeable, but because twice in the last week counsel have cited her Honour’s judgment to me as authority for the proposition that the change in terminology did produce a change in the law as to what was required to constitute a step. I do not agree. 6 See Supreme Court of Queensland Act 1991 s 130(1). -- 4 of 5 -- 5 Conclusion [13] In these circumstances it is not the case that there was a period of two years or more during which no step was taken. Accordingly there is no jurisdiction under s 85 of the Supreme Court of Queensland Act 1991 to dismiss for want of prosecution. No other basis of jurisdiction was relied on on behalf of the defendants, whose counsel frankly conceded that, unless the filing and serving of the reply was the last step taken, his application must fail.7 In the circumstances therefore the defendants’ application is dismissed with costs. 7 In these circumstances it is unnecessary for me to discuss the interesting argument that the limitation period for the claim has not yet run. -- 5 of 5 --