CATCHWORDS
JUDGMENTS AND ORDERS - conditional order for summary dismissal of proceedings - power to dismiss proceedings - O 10 r 7 Federal Court Rules - conditional upon failure of party to comply with an order of the court directing the party to take a step in the proceedings - delay so great that wrong to vary orders - action of applicant demonstrated a lack of genuine intention to bring matter to trial
BANKRUPTCY - Bankruptcy Act 1966, ss 60(4), 116(2)(g) - bankrupt may continue an action commenced before becoming bankrupt in respect of personal injury or wrong only - defamation claim for special damage caused to business or professional practice may only be prosecuted by trustee
DEFAMATION - dishonouring of a cheque - defamation requires publication - no extrinsic facts pleaded - importance of words endorsed on cheque - applicant adequately to specify statement alleged to have been made about him
PRACTICE AND PROCEDURE - interlocutory orders and requirement of leave to appeal - review of decision as to practice and procedure - whether decision erred in principle and worked a "substantial injustice" to one of the parties - error in exercise of discretion - fact that defamation action could be continued in applicant's own name was a material consideration not taken into account
Bankruptcy Act 1966, ss 60(4), 116(2)(g)
Federal Court Rules, O 10 r 7, O 32 r 2
Practice and Procedure
Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Carr v Finance Corporation of Australia Ltd (No1) (1981) 147 CLR 246
Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196
Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388
Defamation
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Raafbye Corporation Pty Ltd and ors v Westpac Banking Corporation Ltd (Levine J, Supreme Court of NSW, 21 October 1994, unreported)
Bankruptcy
Fuller v Beach Petroleum NL (1993) 43 FCR 60
Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 73 FLR 88
MICHAEL VINCENT BOURKE, L&M HOLDINGS PTY LTD, LRA RESTAURANTS PTY LTD, HUNTER DEVELOPMENT CO PTY LTD, EMAS PTY LTD, BONOTO PTY LTD, KRYS PROPERTIES PTY LTD, AVITO PTY LTD and TERENCE MARCELLIN BOURKE v STATE BANK OF NEW SOUTH WALES
Beaumont, Einfeld and Whitlam JJ
Sydney
4 August 1995
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 471 of 1994
) NG 516 of 1994
GENERAL DIVISION )
IN EACH INSTANCE, ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: MICHAEL VINCENT BOURKE
L & M HOLDINGS PTY LTD
LRA RESTAURANTS PTY LTD
HUNTER DEVELOPMENT CO PTY LIMITED
EMAS PTY LTD
BONOTO PTY LTD
KRYS PROPERTIES PTY LTD
AVITO PTY LTD
TERENCE MARCELLIN BOURKE
Appellants
AND: STATE BANK OF NEW SOUTH WALES
Respondent
Coram:Beaumont, Einfeld and Whitlam JJ
Place: Sydney
Date: 4 August 1995
MINUTE OF ORDER
THE COURT ORDERS THAT:
1. Appeals dismissed with costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 471 of 1994
) NG 516 of 1994
GENERAL DIVISION )
[In each case] On appeal from a single Judge of the Federal Court of Australia
MICHAEL VINCENT BOURKE
L & M HOLDINGS PTY LTD
LRA RESTAURANTS PTY LIMITED
HUNTER DEVELOPMENT CO PTY LIMITED
EMAS PTY LIMITED
BONOTO PTY LIMITED
KRYS PROPERTIES PTY LIMITED
AVITO PTY LIMITED
TERENCE MARCELLIN BOURKE
Appellants
STATE BANK OF NEW SOUTH WALES
Respondent
Coram:Beaumont, Einfeld and Whitlam JJ
Place: Sydney
Date: 4 August 1995
THE COURT
REASONS FOR JUDGMENT
Introduction
These two appeals have been heard together. One appeal is from an order made by Wilcox J on 15 June 1994. The other is from an order made by Davies J on 7 July 1994. Each of those orders was made in the same proceeding.
The proceeding in question was commenced in 1988 by Michael Vincent Bourke ("Mr Bourke"), his brother Terence Bourke and seven companies of which Mr Bourke was a director ("the corporate applicants"). These parties may conveniently be referred to collectively as the applicants. The respondent was the State Bank of New South Wales ("the bank").
In their statement of claim the applicants pleaded causes of action under the Trade Practices Act 1974 and in negligence, contract and defamation. On 21 December 1988 Wilcox J held that the Trade Practices Act had no valid application to the matters alleged. Accordingly, his Honour struck out the relevant paragraphs of the statement of claim, together with certain other paragraphs on a pleading point. The judgment is reported: 22 FCR 378. The High Court dismissed an appeal against that decision: Bourke v State Bank of New South Wales (1990) 170 CLR 276.
Case Management in a Judge's Directions List
After the judgment of the High Court had been entered, the bank requested that the proceeding be re-listed for directions. By the date fixed for directions 5 December 1991, there had been two significant developments: the solicitor for the applicants had ceased to act, and creditor's petitions under the Bankruptcy Act 1966 had been presented against Mr Bourke and Terence Bourke. Mr Bourke appeared for the applicants at the directions hearing before Wilcox J. In view of the pending hearing of the creditor's petitions, his Honour fixed a further directions hearing for 5 March 1992.
By that date sequestration orders had been made against the estates of Mr Bourke and Terence Bourke. Mr Bourke again appeared for the applicants. However, since an appeal had been lodged against the sequestration orders, Wilcox J fixed a further directions hearing for 12 May 1992.
On that date Wilcox J gave directions that (1) a further directions hearing be fixed for 26 June 1992, (2) any motion by the bank for orders that the proceeding be dismissed for want of prosecution or that the applicants provide security for costs, be fixed for that date, (3) any notice of such motion be filed and served by 15 June 1992, together with affidavits in support, and (4) any affidavits for the applicants be filed and served by 22 June 1992. Mr Bourke appeared for the applicants at this hearing.
The bank did file on 15 June 1992 notice of such a motion and an affidavit in support. The applicants filed no affidavits. However, at the next directions hearing and on a further six occasions the hearing of the bank's motion was adjourned by Wilcox J in order to await the determination of the appeal against the sequestration orders. Mr Bourke appeared for the applicants at each adjournment. On 8 December 1993 the appeal against the sequestration orders was dismissed: Bourke v Beneficial Finance Corporation Limited (1993) 47 FCR 264.
At a hearing on 10 December 1993 Wilcox J gave directions
with respect to the giving of evidence at the trial of the proceeding. Mr Bourke appeared for the applicants. An order was made that the evidence of
witnesses in chief be given by affidavit subject to their attendance for
cross-examination. A timetable was fixed,
including a direction
that affidavits for the applicants be filed and served by 11 February
1994. The applicants failed to comply
with that order, and the bank applied, pursuant to liberty reserved, to have
the proceeding re-listed. Mr Bourke then
filed five affidavits.
On 2 March 1994 the matter was listed before Wilcox J. Mr Bourke appeared for the applicants. His Honour made orders that the applicants have leave to amend their statement of claim by filing and serving a fresh document not later than 14 March 1994 and that they file and serve any further affidavits upon which they intended to rely by 14 March 1994. The other steps in the timetable fixed on 10 December 1993 were vacated. The bank's motion was adjourned for hearing on 30 March 1994 and directions were given as to the filing of affidavits in relation to that motion. Subsequently, on 7 March 1994, Mr Bourke filed one further affidavit of a witness to be relied upon at trial.
The hearing date of 30 March 1994 fixed for the bank's motion was vacated. A further directions hearing was then held before Wilcox J on 29 April 1994. This time Mr J.T. Svehla of counsel appeared for the applicants. An order was made that any amended statement of claim be filed and served by 27 May 1994. His Honour gave detailed directions with respect to the bank's motion, which he fixed for hearing on 15 June 1994. Any affidavits for the applicants in respect of the motion were to be filed and served by 27 May 1994. In addition, the solicitors for the applicants were to file and serve by 27 May 1994 a letter from the trustee of the estates of Mr Bourke and Terence Bourke indicating what course he proposed to take in connection with the matter. Any affidavits in reply for the bank were to be filed and served by 3 June 1994.
On the afternoon of 26 May 1994 Keith S McConnell, solicitor, sent the following fax to Wilcox J's associate:
"We refer to the orders made by his Honour on 29 April 1994 in relation to the abovementioned matter.
We advise that Mr. Julian Svehla of counsel has been suffering from acute bronchitis for the past three weeks and has not been able to draft and settle the Applicants' Amended Statement of Claim and affidavits. We will therefore not be in a position to file and serve these documents tomorrow in accordance with his Honour's order.
We request that leave be given to file and serve these documents by Thursday, 2 June 1994 with the respondent's reply to be filed and served by Thursday, 9 June 1994."
Summary Dismissal without a Hearing on the Merits
On Wednesday 15 June 1994 the bank's motion came on for hearing before Wilcox J. At the commencement of the hearing Mr Svehla announced his appearance for the corporate applicants only. Later in the morning he explained that he was not appearing for Mr Bourke or Terence Bourke "today" because the evidence indicated that the trustee of their estates was "deemed to have made an election not to continue with proceedings". Mr Svehla said "just given that fact alone, I am not in a position and my instructing solicitor is not in a position to appear for the Bourkes personally". Mr Bourke and his brother were not present in the courtroom. There was accordingly no appearance for these parties on the hearing of the motion.
Counsel for the bank read the affidavit of a solicitor employed by the bank. Amongst other things, this evidence showed that, as long ago as 7 December 1990, the bank had invited the applicants to amend their statement of claim in the light of the High Court's order affirming the decision of Wilcox J to strike out several paragraphs. It also showed that on 16 March 1992 the bank had given notice of the proceeding to the Bourkes' trustee who had made no election under s 60(2) of the Bankruptcy Act.
Mr Svehla adduced no evidence. He did say that "last Thursday" he had settled an amended statement of claim and affidavits to be made by Mr Bourke and Terence Bourke. He also said that "those documents were forwarded to the clients on Thursday", but that the affidavits had not been sworn and his instructing solicitor had not received instructions to file the amended pleading.
In relation to the application for security for costs, Mr Svehla conceded that the corporate applicants would be unable to pay an order for costs made against them. Nor did he contend that the amount of $40,000 requested by the bank was unwarranted.
Wilcox J then made the following orders:
"1. Order that the proceedings stand dismissed unless not later than Friday 1 July 1994 the applicant companies:
(a) file and serve an amended statement of claim;
(b) file and serve all affidavits on which they propose to rely at the trial in respect of issues of liability;
(c) provide security in the sum of $40,000 either by cash deposit with the Registrar or by payment into a bank account under the joint control of the solicitors for the applicant companies and the respondent or such other form as the solicitor for the respondent may agree in writing.
2. Order that the proceedings insofar as they are brought in the names of Michael Vincent Bourke and Terence Bourke be dismissed forthwith.
3. Order that the applicant companies pay the costs of the notice of motion filed on 15 June 1992."
Application to Vary Conditional Order for Summary Dismissal
Late on the afternoon of Friday 1 July 1994 Davies J heard an ex parte application by the corporate applicants. They sought a stay of the self-executing order made by Wilcox J which was about to come into operation that day. Mr Svehla again appeared. He filed in court notice of a motion to vary that order, which Davies J then suspended until 5pm on 8 July 1994. Mr Svehla was also prepared to file in court the corporate applicants' amended statement of claim and an affidavit of Mr Bourke sworn 1 July 1994. Davies J noted this fact.
The motion to vary was heard by Davies J on 7 July 1994. It sought to extend the time for filing and serving the corporate applicants' affidavits on liability to 2 September 1994 and also to alter the time and manner of giving security for costs. In support of the motion Mr Svehla filed and read the affidavit of Mr Bourke sworn 1 July 1994, two affidavits of John Winter and an affidavit of Mr Bourke's wife. This evidence was admitted over objection by counsel for the bank, who cross-examined Mr Winter but otherwise adduced no evidence.
Much of the evidence was relevant to the security for costs aspect of the motion. In the light of the reasons given by Davies J for refusing the motion, that evidence need not be summarized. The only evidence touching on the applicants' past defaults was given by Mr Winter. He was a consultant on waste water treatment and was to provide the security for cost moneys out of his consulting fees. He had been a director of the corporate applicants since 16 January 1993. Mr Winter apparently attended, together with Mr Bourke, at the hearing on 15 June 1994, but they did not arrive until just before 11am as Wilcox J was pronouncing his orders. He said that prior to that date Mr Bourke had been authorized to represent the corporate applicants in the proceeding, but that he had since taken over its complete care and control. No costs had, however, yet been paid to the companies' solicitors who were owed, as at 22 June 1994, just under $10,000. Annexed to one of Mr Winter's affidavits were medical certificates that Mr Bourke was unfit for his usual work from 12 June 1994 to 17 June 1994 inclusive and from 1 July 1994 until 8 July 1994. It emerged in cross-examination that Mr Winter was not aware that the applicants had failed to comply with the directions of Wilcox J with respect to filing and serving their affidavits for the hearing on 15 June 1994.
As we have already mentioned, the corporate applicants' motion was refused. After setting out the history of the matter, Davies J said:
" By 1 July, the applicants were in the position to file an amended statement of claim and an affidavit by Mr Bourke but the other affidavits upon which the applicants intended to rely at the trial had not been prepared. I am now informed by Mr Svehla that there will be a large number of people in the Maitland area to interview, that these people have not been interviewed and that several months will be required for the preparation of affidavits. That really means that the preparation of the case is at a very early stage. Relevant witnesses have not been interviewed.
The security for costs is not a matter which would trouble me very much if that were the only problem. Mr Winter, who is the director of some of the applicant companies, has deposed that he can raise $10,000 within 7 days and can pay a further $5000 a month until the $40,000 is paid off. I would see no reason not to make some appropriate order with respect to security for costs. I think that this is a minor matter in the case.
But the question is now whether, after all this time, his Honour's orders should be varied so as to permit this case to proceed in the light of the fact that, after six years, the case is still at a preliminary stage. Although the applicants are ready to file a statement of claim and have filed an affidavit of Mr Bourke, the applicants still have to investigate other witnesses to ascertain what the case is about and how to prove it.
... Despite the thickness of the file, the applicants are not ready to present their case. The question that I have to ask myself is whether this matter should now be allowed to proceed notwithstanding all efforts Wilcox J has made to have the matter prepared or whether the time has come to bring to an end a matter which has not been prosecuted.
One of the factors that I have to take into account is the absence of an affidavit from the applicants' solicitor deposing to the fact that his firm is in funds. Indeed, at the present time, it appears that the firm has not been remunerated for the work done to date. Moreover, there is no affidavit from the solicitor setting out a program as to what is going to happen or, for that matter, explaining why all the delays have occurred in the past.
The affidavits on which Mr Svehla relies are principally the affidavits of Mr Winter, the director, who proposes to put up the money for the security for costs. He has deposed that Mr Bourke has had the conduct of the litigation to date, and that Mr Bourke has not been well. That might be so, but Mr Winter himself has been a director since January 1993. So he, like the other persons connected with the applicants, has had responsibility for the matter.
In my view, the delay has been so great that it would be wrong at this point of time to vary the orders made by Wilcox J."
Interlocutory Orders and Requirement of Leave to Appeal
On 7 July 1994 Mr Bourke and his brother Terence Bourke
filed a notice of appeal from the orders made by Wilcox J. On 25 July 1994 the corporate applicants
filed a notice of appeal from the orders made by Davies J. On 22 August 1994 (the date of the
appointment to settle the papers in respect of the second appeal) Mr Bourke purported
to file an amended notice of appeal naming all the applicants as appellants
to that appeal. On 26 August 1994 Keith
S McConnell filed notice of ceasing to act for the corporate applicants in the
second appeal.
A Full Court differently constituted (Beaumont, Einfeld and Beazley JJ) subsequently held that the self-executing order made by Wilcox J and the order made by Davies J were interlocutory orders and that, accordingly, leave was required in order to appeal from those orders. Upon the hearing before this Court counsel for the bank submitted that the order made by Wilcox J dismissing the proceeding insofar as it was brought in the names of the Bourkes was also an interlocutory order.
The submission was developed by reference to O 32 r 2 of the Federal Court Rules. Rule 2(2) provides:
"Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial an order is made, the Court, on motion by that party, may set aside or vary the order, and may give directions for the further conduct of the proceeding."
It was said that the hearing on 15 June 1994 before Wilcox J proceeded in the absence of Mr Bourke and his brother and that, in those circumstances, they could have applied to set aside the order affecting them. Accordingly, it was submitted that the legal effect of the order was not finally to determine their rights: Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; Computer Edge Pty Ltd v Apple Computer Inc (1984) 54 ALR 767.
However, the bank's submission cannot be accepted. Wilcox J's order was not made at, or at the conclusion of, a "trial." The order was made at a specially fixed interlocutory hearing. The order is final in its terms and effect. It may only be set aside on appeal.
Mr D.B. Milne QC appeared for the applicants on the hearing of these appeals. Notwithstanding that the corporate applicants required leave to appeal, a notice of motion for that purpose had not yet been filed. Since Mr Milne had evidently been retained directly by his clients, the Court was informed that Mr Bourke would file such a notice. On that basis the Court permitted the appeals to be heard as though an application for leave to appeal were being heard concurrently. In the event no such notice has been filed by Mr Bourke, although he did file on 7 June 1995 an "application for leave to appeal" by him personally from the orders of Wilcox J and Davies J.
Appeal from Wilcox J
In their notice of appeal Mr Bourke and his brother state the grounds relied upon as follows:
"2. That the health of Michael Vincent Bourke, the First Applicant in these proceedings, precluded him from instructing and attending on behalf of himself and his companies.
3. That Michael Vincent Bourke, the First Applicant in these proceedings, was unable to provide information because of his health.
4. That the Applicant Companies in these proceedings were unable to provide information because of the health of Michael Vincent Bourke.
5. Security in excess of the amount ordered was already held by the State Bank of New South Wales, the Respondent in these proceedings, by way of property detained and converted over which no legal right was held.
6. That [Mr Bourke and Terence Bourke] had a right to prosecute the proceedings pursuant to Section 116(2)(g)(i) of the Bankruptcy Act 1966."
It will be recalled that the bank's motion had been heard and disposed of on 15 June 1994 in the absence of the Bourkes. There had been no evidence before Wilcox J as to either Mr Bourke's health or any security held by the bank. Grounds 2-5 are plainly unarguable.
In written submissions filed after the hearing Mr Bourke accepts, in effect, that his actions for defamation comprise the only "right" relevant to ground 6. All the other causes of action pleaded by him and his brother have vested in their trustee and are deemed to have been abandoned. Indeed, Mr Bourke can only appeal to this Court in respect of the s 116(2)(g) right: Fuller v Beach Petroleum NL (1993) 43 FCR 60. This means that the appeal by Terence Bourke is incompetent.
The causes of action for defamation are pleaded in the applicants' statement of claim in the following paragraphs:
"28) On 4th November, 1986 the [bank], having agreed to give [one of the corporate applicants] an overdraft limit of $13,446.05, placed [that applicant's] overdraft account in reduction without notice and thereby dishonoured a series of cheques drawn on the account.
54) Further, the [bank] dishonoured cheque
No. 127185 even though the account on which it was drawn was a Trust
Account styled "Michael Bourke & Associates" of [Mr Bourke] in
his capacity as an accountant and even though there were sufficient funds in
the account to meet the said cheque.
55) Further, by reason of the wrongful dishonour of the cheques by the Bank alleged in paragraphs 28 and 54 [Mr Bourke] has been defamed."
The limitation period for the causes of action pleaded in paragraph 28 had obviously expired when Wilcox J made his order on 15 June 1994. The position in relation to the cause of action pleaded in paragraph 54 does not appear from the facts alleged. However, let it be assumed in Mr Bourke's favour that the time within which that claim might be brought had also expired. Then, in respect of all these causes of action, if Wilcox J's discretion miscarried, his decision would work a "substantial injustice": Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. Accordingly, it is desirable to consider first, on Mr Bourke's appeal, whether his Honour's discretion miscarried.
When dismissing the proceeding insofar as it was brought
in the names of the Bourkes, Wilcox J did not advert to the defamation
claims. The affidavit in support of the
bank's motion did show that the questions of law involved in the proceeding
included the circumstances in which the dishonouring of a cheque constitutes
defamation. But counsel for the bank
(who also appeared below) concedes that the question whether Mr Bourke's defamation actions might be
continued in his own name was not mentioned in submissions. (Indeed, as appears from Mr Svehla's
announcement of the reason for the altered basis of his appearance on 15 June
1994, the view appears to have been
taken by Mr Bourke's legal advisers that their retainer to act in any way for
him in the proceeding had been withdrawn by operation of the Bankruptcy Act.)
Section 60 of the Bankruptcy Act relevantly provides:
"(2) An action commenced by a person who subsequently becomes a bankrupt is, upon his becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3) If the trustee does not make such an election within 28 days after notice of the action is served upon him by a defendant or other party to the action, he shall be deemed to have abandoned the action.
(4) Notwithstanding anything contained in this section, a bankrupt may continue, in his own name, an action commenced by him before he became a bankrupt in respect of:
(a) any personal injury or wrong done to the bankrupt, his spouse or a member of his family; or
(b) the death of his spouse or of a member of his family.
...
(5) In this section, "action" means any civil proceeding, whether at law or in equity."
Wilcox J plainly had regard to s 60 (2) and (3) in
adjourning in 1992 and 1993 the bank's motion pending the disposition of the
appeals against the sequestration orders and also in framing on 29 April 1994
the specific direction about the trustee.
But the language of the order actually made suggests two things: first,
that it was designed to protect the position of the trustee (bearing in mind
that the applicants' solicitors had not filed a letter from him in compliance
with the direction given on 29 April 1994); and, secondly, no separate
attention was paid to the position of Mr Bourke, whose defamation
actions could only be continued (at least to the extent that he did not claim
special damages) in his own name by virtue of s 60(4). It must be concluded that his Honour
overlooked the possible effect of s 60(4) on the defamation actions. It might have been different if Mr Bourke had
not been absent from the hearing, especially if he had been represented. The question whether Mr Bourke's defamation
claims might be continued in his own name was a material consideration which,
since his Honour gave no reasons for his orders, appears not to have been taken
into account. Accordingly, there was an
error in the exercise of the discretion, which now may be exercised afresh by
this Full Court.
Mr Bourke submits that his actions should not be summarily dismissed because his conduct cannot be classified as contumelious. He extracts this test from the judgment of Sir Nicolas Browne-Wilkinson V-C in Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 at 1202-1203. That case was concerned with an application for leave to amend a defence in circumstances where the defendants had failed to comply with an earlier peremptory order of the court. Nonetheless, his Lordship relied upon English authorities which Wilcox and Gummow JJ have said "afford little assistance" in relation to the summary dismissal of proceedings in this Court: Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 at 394.
The power to dismiss the proceeding is conferred by O 10 r 7 of the Federal Court Rules. The scope of that power and the principles applicable to its exercise were expounded in Lenijamar by Wilcox and Gummow JJ (at 395-397):
" It is to be noted that the power given by this rule is conditioned on one circumstance only: the failure of a party to comply with an order of the Court directing that party to take a step in the proceeding. There is no requirement of intentional default or contumelious conduct, although the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period will usually be important factors in weighing the proper exercise of the discretion conferred by the rule. There is no requirement of "inordinate and inexcusable delay" on the part of the applicant or the applicant's lawyers, although any such delay is likely to be a significant matter. There is no requirement of prejudice to the respondent, although the existence of prejudice is also likely to be significant. And it must be remembered that, in almost every case, delay adversely affects the quality of the trial and is an additional burden upon the parties.
...
The discretion conferred by O 10, r 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
In
the second of the two situations we postulate, a significant continuing
default, it does not really matter whether there have been earlier omissions to
comply with the Court's directions. Ex
hypothesi the default is continuing and is imposing an unacceptable burden on
the respondent. But the continuance of
the non-compliance is of the essence of this situation. If, when the Court looks at the matter, the
direction has already been complied with, the defaulting applicant may
be ordered to pay any wasted costs; but it would be difficult to justify the
dismissal of the proceeding solely because of that default."
In the present case the first thing to be noticed is that the pleading of the defamation counts was seriously defective. Defamation requires publication. Here none was alleged. There was no indication of when, to whom or how publication was made. Nor was there any allegation as to the words published. In the case of cheques, any words endorsed on them may assume exquisite importance: see, for example, Raafbye Corporation Pty Ltd and ors v Westpac Banking Corporation Ltd (Levine J, Supreme Court of New South Wales, 21 October 1994, unreported). It may also be fairly guessed that the count in paragraph 28 of the statement of claim would need to have been pleaded by Mr Bourke as a true innuendo. This would have required the pleading of extrinsic facts. Ordinary principles of pleading also require a plaintiff adequately to specify the statement which he says was made about him: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 per Gleeson CJ at 136-137. Only when the defamatory meanings upon which a plaintiff relies have been specified can a defendant have a fair opportunity to defend the action. In the case of a bank there may well, of course, be defences of qualified privilege available.
There is an additional complication, which we touched on
earlier in the context of the material considerations for Wilcox J. Mr Bourke is entitled to continue in his own
name under s 60(4) of the Bankruptcy Act that part of his defamation
actions in which he claims damage for injury to his credit, character and
reputation. However, insofar as the
actions may relate to injury caused to his business or professional practice,
such a
claim may only be prosecuted by his trustee: see Holmes v Goodyear Tyre
& Rubber Co (Aust) Ltd (1984) 73 FLR 88.
The bank adduced no evidence of prejudice suffered in its ability to defend Mr Bourke's defamation claims. It could hardly do so on the present state of the pleadings. However, the discussion above should be sufficient to indicate the impossible situation in which the bank would have been placed had it been required to defend defamation counts based on unknown facts antedating 1988 where the relevant imputations had not yet been alleged.
Mr Bourke had declined to amend the statement of claim since the bank first invited him to do so three and half years earlier on 7 December 1990. If he had always intended to pursue his defamation actions, the proper pleading of such claims did not need to abide the outcome of his appeal against the sequestration order. Any costs incurred by him need not have been wasted.
By 11 February 1994 the applicants were in default. They had failed to file any evidence for trial. It could not be gainsaid that Mr Bourke had exhibited in his carriage of the proceeding on behalf of the applicants to that point an unwillingness or inability to get it ready for an early trial. Subsequently he twice failed to avail himself of leave to amend the statement of claim. It should be noted that on 1 July 1994 Mr Svehla sought to file in court an amended statement of claim solely on behalf of the corporate applicants. Further, the affidavit of Mr Bourke sworn 1 July 1994 was subsequently filed as evidence of the facts on which the corporate applicants' claim was based.
The pleading of the defamation actions was, as has been pointed out, defective. Twice Mr Bourke had been given leave to amend the statement of claim. His failure to do so occurred against the background of his continuing non-compliance with orders to file his evidence. Had he filed all his evidence on the defamation actions, it might have been possible to argue that the bank's preparation of its defence had not been impeded. But, taken with the opaque and uninformative pleading, this default must be found to manifest a lack of genuine intention to bring the defamation actions on for trial. The conclusions we have reached fit both of the situations postulated by Wilcox and Gummow JJ for the exercise of the Court's power and require that Mr Bourke's defamation actions be summarily dismissed.
It is not altogether clear from their notice of appeal whether Mr Bourke and his brother also purport to appeal on behalf of the corporate applicants from the self-executing order of Wilcox J. If they do, such an appeal is incompetent. Leave to appeal has not been granted, and notice of a motion applying for such leave has not been filed.
Appeal from Davies J
Leave to appeal from the order of Davies J is also required. No application for leave has been made. Since the appeal was heard as if such an application was being heard concurrently, it may be said that, in our view, the decision of Davies J to refuse the corporate applicants' motion was appropriate in the circumstances for the reasons given by his Honour. The appeal is, however, incompetent.
Order
In each matter the appeal will be dismissed with costs.
I certify that this and the preceding nineteen pages are a true copy of the reasons for judgment herein of the Court
Associate:
Date: 4 August 1995
Counsel for the appellants: D.B. Milne QC
Counsel for the respondent: D.J. Russell
Solicitor for the respondent: P.W. Kearns
Date of hearing: 18 May 1995
