Peter A Clarke

Justice Byrne can turn a phrase when he has the mind to. Quite lyrical in fact. He can also be brutally blunt as he picks his way through the entrails of barrister’s pleadings.  Hydedale Pty Ltd & Anor v Robert Luxmoore Pty Ltd & Ors is a fairly straightforward, if anything about a property development partnership can be so described.  Most of the relevant evidence is oral and the book work is a mess.  In my experience that is the handiwork of the knockabout developer.  Where the case is is useful is the comments His Honour made about the role of counsel and how the pleadings should relate to the way barristers should run their case:

The relevant comments are at:

The Limitations Defences

93 It is at this point that I raise my voice in a cry of complaint. In their defence, the defendants plead the Limitations of Actions Act in respect to a number of paragraphs of the statement of claim.

94 The defence does not identify the cause of action which is said to be statute barred nor when it arose. The pleas are in similar terms to that of which para 3 is an exemplar:

3.2 further, they say that insofar as paragraph 3 thereof contains any cause of action founded upon the allegation that the Plaintiffs would be entitled to 35% of earnings made or received by or on behalf of the Plaintiff and/or the Defendants (including any profits or earnings received by or through any related or associated entity of the Defendants or any investment vehicle of the Defendants), then such cause of action is statute-barred by virtue of the operation of the provisions of the Limitation of Actions Act 1958); and (Vic

3.3 further, they say that insofar as paragraph 3 thereof contains any cause of action founded upon the allegation that the Plaintiffs would be entitled to 50% of earnings made in respect of the Malvern Mews project, then such cause of action is statute-barred by virtue of the operation of the provisions of the Limitation of Actions Act 1958 (Vic).

The proceeding was initiated on 11 May 2001 so that, assuming a limitation period of 6 years, a cause of action arising before 11 May 1995 would be barred.

95 The plaintiffs in their reply merely assert that the writ was issued within six years after each cause of action arose and further, that time began to run from the date of the amendment of the statement of claim.[35]

96 At trial, apart from intermittent references to the fact that claims were “subject to the statutory limitations”, nothing positive was said about these defences by counsel for the defendants. In his final address on the last day, counsel for the plaintiffs observed that nothing had been said about these defences but that, since passing references to them had been made during the trial, he took it that they had not been abandoned. He then asserted three answers to them.

• The cause of action in respect of the distribution of fees received by Luxmoore did not arise until the fees were agreed and received by Luxmoore.
• The statute has no application to claims for breach of fiduciary duty.
• There is “a written acknowledgement of that debt” in the witness statement of Ms Hamill. It is not clear where this is made and what debt is acknowledged.

These matters were not pleaded and no argument was addressed for or against them. Counsel for the defendants, having some days previously said that he would say something about these defences, made no mention of them in his final address other than to observe on occasions that the defence was raised, or at all in his address in reply.

97 My complaint is that, in adversarial litigation in this court, it is for the parties to identify and argue the contentions which they want the court to decide. While the pleadings should, and do, identify the issues, it so often happens that they contain a large number of matters which turn out not to be pressed. Such was the case with the plaintiffs’ claims in this case. In the defence the limitations pleas were expressed in general terms and did not specify the provision relied on, the cause of action which is said to be barred or the facts relied on. It is for counsel to highlight, develop and present submissions as to fact and law on the issues that they consider important; it is not for the judge to conduct an enquiry into matters which the parties do not choose to deal with. It may be that, in a given case, they do not do so by agreement or for some other good reason. In this case, for example, there is something to be said for the contention that the cause of action in contract arose on 15 May 1995 when the 1991 agreement was repudiated. I could well imagine, too, an argument which fixes this date as the date of receipt of the fees by Luxmoore or on the date that Hydedale invoiced Luxmoore for its share. It may be that there is something to be said for the proposition that, in the circumstances of this case, time runs from the amendment. I express no view about these matters. On any of these views the defence would not succeed. The difficulty is that the pleas in the defence do not make it clear how the defence is put and this deficiency was never remedied by oral argument, or otherwise. If this was because counsel took the view that the defence had no prospect of success, it was clearly his responsibility to make this clear; if not, he should have presented argument in support of it.

98 In the circumstances, I decline to entertain the defences based on the Limitation of Actions Act.

Justice Byrne hits with plain language the conundrum of modern litigation.  There is often pressure for plaintiff’s counsel to plead whatever causes of action the facts can sustain.  The problem becomes running a trial addressing each of those causes.  A judge will often focus on the best points so why press the weaker points.  But then the risk is that a written judgment may make reference to not pressing those latter points.  His Honour makes a good point of expecting Counsel to set out in detailed submissions that which he wants to make.  Just pleading a cause of action or defence is not enough.