New South Wales Supreme Court CITATION : Queanbeyan Leagues Club Ltd v Poldune Pty Ltd & Ors [2000] NSWSC 216 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 3418/96 HEARING DATE(S) : 7 March 2000 JUDGMENT DATE : 7 March 2000 Queanbeyan Leagues Club Limited (P) Poldune Pty Limited (D1) Government Insurance Office of NSW (D2) Peter Michael Bowen & partners named in Schedule D practising as Gadens Ridgeway (D3-13) PARTIES : M J Armstrong (D14) GIO Life Limited (D15) Australia and New Zealand Banking Group Limited (D16) Marshall Marks Kennedy (XD1) John Landerer practising as Landerer & Company (XD to 2nd XC) JUDGMENT OF : Hamilton J G C Lindsay SC and A Ridley (P) No appearance (D1) G Colman (D2 & 15) COUNSEL : No appearance (D3-13) J Timbs QC and I Bailey (D14) No appearance (D16) M T McCulloch (XD1) No appearance (XD to 2nd XC) Colquhoun Murphy (P) Kemp Strang (D1) Barker Gosling (D2 & 15) SOLICITORS : Mallesons Stephen Jaques (D3-13) Tress Cocks & Maddox (D14) Norton Smith & Co (D16) Phillips Fox (XD1) Minter Ellison (XD to 2nd XC) CATCHWORDS : PROCEDURE [745] - Miscellaneous matters - Declarations - Requirement that all matters in controversy be determined - Whether that requirement should preclude making of declarations where in negligence claim in multi party proceedings issues of duty of care and breach between two particular parties finally determined on hearing of separate questions. LEGISLATION CITED : Supreme Court Act 1970, s 75 CASES CITED : Young on Declaratory Orders (2nd Ed, 1984) Zamir and Woolf, The Declaratory Judgment (2nd Ed, 1993) DECISION : Declarations should be made. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 7 MARCH 2000 3418/96 QUEANBEYAN LEAGUES CLUB LIMITED v POLDUNE PTY LIMITED & ORS JUDGMENT His Honour: 1 I delivered a judgment dealing with a number of the issues in these complex proceedings on 17 December 1998. The factual framework dealt with in the proceedings is set out at paragraphs [1] to [14] of that judgment and in [15] and [16] I summarised the nature of the various claims and cross claims. The first cross claim was made by the parties (the second and 15th defendants) collectively referred to in that judgment as "the GIO" against Marshall Marks Kennedy, solicitors ("MMK"), for negligence. In that judgment I found that MMK was guilty of a breach of a duty of care owed to the GIO: [54], [55]. This did not lead to the conclusion that a cause of action in negligence had been made out by the GIO against MMK, because MMK denied that the GIO suffered any damage as a result of its conduct, even if negligent, and that issue remains to be tried along with other issues relating to damages generally in the proceedings. Other results of my judgment were that the GIO was found guilty of breach of contract at the suit of the plaintiff. Mr Armstrong (the 14th defendant), a law stationer, was found to have acted in breach of a duty of care to the plaintiff in the lodgment of the caveat, although again the issue as to the existence of any relevant damage remains outstanding in this case also. The damages for breach of contract also remain to be assessed. That trial is expected to take place late this year or early next year. The fact that it is to take place at some considerable time after the delivery of the original judgment arises from matters relating to the preparation of that trial, which I need not go into here, save to say that it involves issues that are in themselves multifarious and complex. Furthermore, another firm of solicitors, Elrington Boardman Allport, has now been sued by both the present plaintiff and by Mr Armstrong in relation to the subject matter of the proceedings. This will raise the same questions of damages as are raised by the other outstanding claims in these proceedings. 2 Because an issue remains outstanding in the first cross claim, the decision of which is necessary to a finding of negligence, no formal judgment was entered or order made by me relating to the first cross claim after the delivery of my judgment. However, I am now asked to grant declaratory relief as between the GIO and MMK incorporating my findings as to the existence of a duty of care and that a breach occurred of that duty of care. The reason that is assigned for this application is that MMK desires to seek leave to appeal to the Court of Appeal against my findings and to obtain, if it can, an expedited hearing of that appeal. This is so that, if successful, it will be able to escape from the trial of the balance of the proceedings. The further trial will be of some length and will involve considerable time and expense. Furthermore, I am told that a final resolution of the question of whether MMK will in the ultimate result be liable to contribute to any damages awarded in favour of the plaintiff could assist the final settlement of the proceedings without the necessity for a further trial, which would be desirable not only from the parties', but also from the Court's, point of view, if it could be achieved. 3 Although the case is large and complex, the decision of the issues between the GIO and MMK turns upon a body of evidence which is both discrete and quite small. Counsel for the other parties, upon enquiry by me, could not put forward any way in which the decision one way or the other of this cross claim is intertwined with or will affect the decision of other matters in this case. Indeed, the only objection raised by any party against my making declaratory orders as sought was the fear that MMK, if it were permitted to appeal, would then apply for the further trial of the matter to be delayed so that its appellate process could proceed to finality. MMK, however, has indicated through its counsel that it will not take that course. It has done so to the extent of offering by counsel an undertaking to the Court that it will not seek the delay or adjournment of the further trial by reference to the pendency of any appellate proceedings brought by it. 4 My first inclination was to refuse to follow the course sought on the basis that the grant of declaratory relief as to elements of the cause of action before the cause of action could be fully adjudicated upon was in itself an unusual and undesirable course and one which threatened further fragmentation of already complex proceedings. It was put to me on behalf of MMK that, as these findings had been made by me, it was entitled upon request to have declarations made in its favour. This proposition is not correct. The declaration is always a discretionary judgment and one to be granted with care. This is inherent in s 75 of the Supreme Court Act 1970; and see Zamir and Woolf, The Declaratory Judgment (2nd Ed, 1993) Ch 4; and as to the Australian situation, Young on Declaratory Orders (2nd Ed, 1984) Ch 4, esp [401], [402] and [404] - [407]. However, in view of the discrete nature of these issues and the lack of opposition by other parties on the basis that the undertaking which MMK proffers to the Court will overcome the only disadvantage to other parties (and to the orderly conduct of the trial) which has been put forward, I have come to the conclusion that I ought accede to the application. 5 This will enable MMK to take what course of action it may be advised with respect to an appeal. The making of the orders will give it this opportunity. However, it must be understood that I am not to be taken as expressing any view as to what course may or should be taken, or as to what the Court of Appeal ought or may in the conduct of its business do in relation to any application that is made to it. 6 There has been some debate since the end of the trial as to the appropriateness of the particular companies that are the second and 15th defendants as representatives of the GIO interests in these proceedings. That has occurred since the end of the first trial. I should say that the trial was conducted by all parties on the basis that those companies were the appropriate parties. I understand that, after discussion, all parties have again come to a conclusion as to the appropriate entity or entities to represent the GIO. As soon as this is made clear to me and any amendment that is necessary is made I shall make appropriate declarations in respect of the issues the subject of these reasons for judgment. …oOo… Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.