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  • Unreported Judgment

Quinlivan v Konowalous

 

[2019] QSC 285

SUPREME COURT OF QUEENSLAND

CITATION:

Quinlivan v Konowalous & Ors [2019] QSC 285

PARTIES:

MICHAEL WILLIAM QUINLIVAN

(plaintiff)

v

ANDREW KONOWALOUS

(first defendant)

SPECTRUM IMAGING PTY LTD

ACN 143 919 395

(second defendant)

NICHOLAS MACZYSZYN

(third defendant)

ANTHONY GOLLE

(fourth defendant)

MARK ILLGUTH

(fifth defendant)

FILE NO/S:

2726 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

22 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

21 February 2019

JUDGE:

Davis J

ORDERS:

1. The order of the Registrar extending the period for service of the Claim for 12 months from 17 March 2018 is set aside;

2. The Claim is dismissed;

3. The parties may file and serve written submissions on costs by 4.00 pm on 29 November 2019;

4. The question of costs will be determined on any written submissions received and without oral hearing.

CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Commencing proceedings – Time for service of originating process and renewal – where the plaintiff commenced proceedings against the defendants for defamation, injurious falsehood and tortious conspiracy – where the Claim and Statement of Claim were not served, and after 12 months the Registrar renewed the claim for a further 12 months – where the Claim and Statement of Claim were ultimately served some 10 months subsequent to the granting of the extension – where the second defendant made application to have the order of the Registrar extending the period for service of the claim for 12 months set aside – whether there was a good reason to renew the claim

Defamation Act 2005 (Qld), s 14, s 30

Health Practitioner Regulation National Law (Queensland), s 140, s 142, s 190A, s 237

Limitation of Actions Act 1974 (Qld), s 10AA, s 32A

Uniform Civil Procedure Rules 1999 (Qld), r 5, r 16, r 22, r 24, r 150, r 667

Aon Risk Services Australia Limited  v Australia National University (2009) 239 CLR 175, cited

Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104, cited

Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287, followed

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256, cited

Battersby v Anglo-American Oil Co Ltd [1945] 1 KB 23, cited

EDIS Service Logistics Pty Ltd v PKF East Coast Practice and Ors [2018] QSC 262, cited

Expense Reduction Analysis Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 253 CLR 303, cited

Hightop Pty Ltd & Anor v Kay Sheila Lawrence trading as Kay Lawrence Accountancy & Ors [2010] QCA 270, followed

IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148, followed

Jones v Jebras and Hill [1968] Qd R 13, cited

King v Gunthorpe & Ors [2018] QSC 1, followed

McIntosh & Anor v Maitland & Ors [2016] QSC 203, followed

Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513, followed

Pell v Hodges [2007] NSWCA 234, cited

Ramsay v Madgwicks [1989] VR 1, cited

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, cited

UBS AG v Tyne (2018) 360 ALR 184, followed

Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337, cited

Victa Limited v Johnson (1975) 10 SASR 496, cited

COUNSEL:

M Luitingh for the Plaintiff

S R Grant for the First and Second Defendants

C K George for the Third, Fourth and Fifth Defendants

SOLICITORS:

Noble Law for the Plaintiff

Hall & Wilcox for the First and Second Defendants

Meridian Lawyers for the Third, Fourth and Fifth Defendants

 

  1. [1]
    An application was brought by the second defendant seeking orders:
  1. Setting aside the order of the Registrar extending the period for service of the claim for 12 months from 17 March 2018;
  1. Dismissing the claim;
  1. Other relief, including an order for costs.
  1. [2]
    Each of the first, third, fourth and fifth defendants supported the application of the second defendant.

Background

  1. [3]
    The plaintiff is a radiographer.  The first defendant is a director of the second defendant whose business was to provide radiological services to the patients of chiropractors.  This was achieved by the second defendant employing radiographers to work in rooms operated by the second defendant within the chiropractic practices serviced by the second defendant.  Each of the third, fourth and fifth defendants are chiropractors to whom the second defendant supplied radiology services. 
  2. [4]
    The plaintiff alleges that in September 2014, he drew to the attention of the various defendants’ practices that they were undertaking which were either wasteful or not in the interest of the patients.
  3. [5]
    On about 7 October 2014, the first defendant received an email from the fourth defendant.  That email forwarded on an email that had been received by the fourth defendant from the mother of children who were the fourth defendant’s patients who had been x-rayed by the plaintiff.  In the email, the patients’ mother alleged that the plaintiff had acted sexually and inappropriately towards her in the course of x-raying her children.  Although the plaintiff’s inappropriate conduct occurred while he was x-raying the complainant’s children, the complainant herself was also a patient having previously been x-rayed by the plaintiff.
  4. [6]
    The first defendant swore in his affidavit that there had been previous allegations of alleged sexual misconduct of the plaintiff.  He said those allegations were not investigated because they lacked detail.
  5. [7]
    The first defendant then directed one of the second defendant’s employees, Donna Hobbs, to conduct an investigation.  After that investigation, the plaintiff’s employment with the second defendant was terminated.  That occurred on 8 October 2014.  The letter of termination was, relevantly, in these terms:

“Further to various discussions today between you and Donna Hobbs I am writing to you to advise that your employment with Spectrum Imaging is terminated forthwith.

Your employment has been terminated because management has determined that you engaged in serious misconduct and behaviour likely to cause damage to the company’s reputation and profitability.

You were suspended from all duties yesterday pending an investigation into allegations made by a patient about inappropriate behaviour towards her in front of her children at the company’s Carrara site.

Spectrum regards this behaviour as being contrary to professional codes of conduct and management cannot trust a radiographer who engages in such behaviour.”[1]

  1. [8]
    On about 15 October 2014, the second defendant notified the Office of the Health Ombudsman (OHO) of the complaint that had been made by the fourth defendant’s patient.  The notification included:

“On 8/10/2014, the day after Spectrum became aware of a serious incident involving one of our radiographers Michael Quinlivan we terminated his employment for serious misconduct.  The notes below detail the incident and provide the basis for Spectrum’s belief that he engaged in Notifiable Conduct.

In summary, the incident involved the radiographer Michael Quinlivan:

  1. Making sexual comments and advances in a patient/carer environment
  2. Asking the patient for a date (done in front of her kids)
  3. Having a history of unverified similar behaviour
  4. Breaching AHPRA[2] and AIR[3] codes of conduct
  5. Damaging Spectrum’s reputation, business and profitability
  6. Asking for the patient’s contact details as he wants to initiate legal action against her

On 17/9/2014 patient [redacted] of [redacted] (tel [redacted]) presented at Spectrum Imaging’s Carrara clinic for an x-ray.  The procedure was conducted without incident.

On 25/9/2014 the same patient [redacted] presented at the same clinic with her children, [redacted] and [redacted] who both needed x-ray procedures.

During the second visit the patient claims the radiographer Michael Quinlivan made inappropriate sexual advances, brushed against her chest and suggested they go on a date in front of her children.

An email from the patient was relayed to Spectrum’s management via the patient’s referrer [redacted].  It is reproduced below:”

  1. [9]
    The email which was received from the complainant and which is reproduced in the email to OHO is:

“On Tue, Oct 7, 2014 at 4:14 PM, [redacted][4] wrote:

Dear [redacted],

During my kids recent xrays, the Radiographer (Michael) who had also xrayed me the week before, made several Inappropriate double entendre type of comments towards me and concluded the visit suggesting that we ‘get together sometime’ - all of this in front of my children.

I found this behaviour highly inappropriate and unprofessional.

Before my next appointment I felt very uncomfortable about running in to him again.

Regards”

  1. [10]
    The notification form went on to describe how Ms Hobbs collected more information from the complainant about the complaint.  Ms Hobbs’ notes of her investigations, a copy of which were sent to OHO are:

“Incident.

07/10/14: 11:04am (Melb time) 10:04am QLD time

An email from a patient was forwarded to myself, Andrew[5] and [redacted] a complaint about Michael Quinlivan.

I spoke to [redacted] [redacted] requesting the patient’s name so I could call her to verify the complaint.

Tuesday 07/10/14 7:53pm (Melbourne time, 6:53pm QLD time)

I called [redacted] [redacted] to verify the complaint she had emailed to [redacted] [redacted].

No answer.

I left a voice message saying who I was and asked that she call me back.

Wednesday 08/10/14 10:34am  I left another message for [redacted] to call me when it was convenient.

Wednesday 08/10/14 10:45am [redacted] called me

Conversation:

I told [redacted] who I was and I asked her to tell me what had happened.

She said she didn’t expect anything to go any further than the email she sent. She emailed [redacted] to say what had happened and pass it on.

She didn’t give permission for anyone to pass on her phone number.

[Redacted] said that when she came for an x-ray (17/09/14 from our records) Michael[6] was a very friendly person, everything was good. She came back one week later (25/09/14) to have her children x-rayed. He was a bit too friendly and everything he said had a double meaning.

A comment was made about how good the children are and she responded that she is very lucky to have 2 good kids.

Michael commented that you do have 2 good ones (implying her breasts)

[Redacted] went behind the console while an x-ray was being taken and he brushed up against her chest. She said she didn’t think much of it at the time but then Michael said to her ‘they would have to get together sometime, don’t you agree?

[Redacted] felt it was inappropriate and she felt weird afterwards. She said she isn’t a flirty person and a man in her life isn’t in her radar and Michael is 12yrs older than her.

She had gone back to work and told her colleagues about it and they commented to her how inappropriate it was.

[Redacted] comment was that someone in this type of job should not be saying things like that. She felt icky. She commented that she was being xrayed by him last week just in a gown and felt weird thinking about it.

She said she is happy not to go back to the centre.

I apologised to [redacted] about her experience in x-ray and told her I appreciate the feedback. It’s important that we are told these things so we can take the appropriate action.

I told her I will be following our procedure on how we deal with this situation. I asked her if she would like me to contact her with how we have handled the situation and she said she was happy to stay out of it.

[Redacted] said she didn’t want anyone fired over this but felt something needed to be said as this should not happen when in a medical environment. There are a set of standards that should be followed.

I once again thanked her for her feedback.”

  1. [11]
    A little later, on or about 21 October 2014, the plaintiff wrote to OHO about the practices of the defendants.  Each of those complaints were dismissed in the sense that OHO decided to take no further action on them.  Each letter advising of that decision contained the following:

“In assessing this complaint issue, I have reviewed all the information and have relied on the following:

  • The written complaint from the complainant, which states, among other things:
  • ‘They provide no clinical notes or clinical notes note related to the examination requested’.
  • The submission from the health service provider which states, among other things:
  • The complainant previously worked for Spectrum Imaging Pty Ltd as a radiographer at various diagnostic imaging sites throughout Queensland.
  • Numerous female patients made complainants about the practitioner making inappropriate comments to them.
  • The complainant was dismissed from his employment at Spectrum Imaging when one of these patients was able to provide enough evidence for Spectrum Imaging to take action against him.
  • It is not a coincidence that the complainant has made this complaint soon after he was dismissed from his employment.
  • The complaint is virtually incomprehensible and does not detail who is being accused of what conduct, nor the basis upon which the accusations are being made.
  • The complaint appears to demonstrate an account of the complainant’s failure to adequately perform his own profession.
  • The health service provider rejects the complaint in its entirety.”
  1. [12]
    On 22 October 2014, the first defendant was advised by OHO that the complaint against the plaintiff had been referred to the Australian Health Practitioner Regulation Agency (AHPRA).[7]
  2. [13]
    On or about 30 March 2015, the plaintiff brought proceedings in the Fair Work Commission against the second defendant claiming unfair dismissal.  Those proceedings were dismissed on 14 July 2015.[8]
  3. [14]
    In late March 2016 each of the defendants wrote to OHO in response to OHO asking for comment as to the plaintiff’s complaints about the defendants.  The defendants’ responses referred to the complaints made against the plaintiff.
  4. [15]
    On 31 August 2016, AHPRA told the plaintiff that a performance and professional standard’s panel had been assigned to consider the complaints about him.  On 21 November 2016 the plaintiff’s solicitor wrote to the first defendant and Ms Hobbs, setting out the plaintiff’s views of the history of the matter and flagging proceedings:

“The purpose of this letter is to advise that our client intends to commence proceedings for economic loss arising out of an injurious falsehood and or damages for defamation which has resulted in our client suffering a significant economic loss as our client has been excluded from the radiography profession as a result.”[9]

  1. [16]
    The letter explained the claims against the defendants in some detail and then:

“It may be that our client would be compelled to take action in order to prevent that claim expiring ahead of any limitation provisions. Our client will ask the Court to hold over that action until such time as the QCAT enquiry has been completed.”

  1. [17]
    The plaintiff had a right[10] to have the complaint referred to the Queensland Civil and Administrative Tribunal (QCAT) and on 6 January 2017, the matter was referred to QCAT by AHPRA.[11]
  2. [18]
    The current proceedings were commenced on 16 March 2017.
  3. [19]
    The Claim and Statement of Claim were not served.  On or about 9 March 2018, the Registrar, upon application of the plaintiff, renewed the claim for 12 months from 17 March 2018.
  4. [20]
    In May 2018, solicitors for the Board indicated that the Board did not wish to proceed further with the complaint against the plaintiff and would be asking that the QCAT proceedings be dismissed.  That took some time to process and QCAT on 22 November 2018 accepted that the proceedings should be dismissed, and did so. 
  5. [21]
    The Statement of Claim was amended on 18 December 2018.
  6. [22]
    The Claim and the Amended Statement of Claim were served on the registered office of the second defendant on 7 January 2019.

The Statement of Claim and the Amended Statement of Claim

  1. [23]
    The Statement of Claim was filed in support of the Claim which sought the following relief:

“1. General Damages for defamation; and or

  1. Damages for pure economic loss; and or
  1. Damages for loss of business reputation due to injurious falsehoods;
  1. Aggravated damages;
  1. Furthermore Interest pursuant to statute;
  1. Costs;
  1. Such further Orders as the Court deems appropriate.”
  1. [24]
    The Statement of Claim alleges that it was the defendants who were engaging in bad practices and that was pointed out by the plaintiff to the defendants.  It is then pleaded that there were publications of defamatory statements by each of the defendants about the plaintiff.  There are six of these.  They are particularised in the Statement of Claim and are called:
    1. “The First Konowalous/Spectrum Publication” published on 15 October 2014;
  1. “The First Konowalous/Spectrum Publication” republished in late March 2016;
  1. “The Second Konowalous/Spectrum Publication” published in late March 2016;
  1. “The Maczyszyn Publication” published in late March 2016;
  1. “The Golle Publication” published in late March 2016; and
  1. “The Illguth Publication” published in late March 2016.
  1. [25]
    Each of the publications, except the Second Konowalous/Spectrum Publication, concern statements made by the various defendants to the OHO.
  2. [26]
    The First Konowalous/Spectrum Publication concerns the report made by the first and second defendants to OHO on 15 October 2014.  The other publications (except for the Second Konowalous/Spectrum Publication) all arise from responses by the second, third, fourth and fifth defendants to OHO in answer to the allegations made by the plaintiff.  It is pleaded that the First Konowalous/Spectrum Publication was republished in late 2016 in answer to OHO’s letter concerning the plaintiff’s complaints against the defendants.
  3. [27]
    The Health Practitioner Regulation National Law (Queensland) imposes obligations upon health practitioners to notify the Health Ombudsman of “notifiable conduct”.  The relevant section here is s 142.  It provide as follows:

“142 Mandatory notifications by employers

  1. (1)
    If an employer of a registered health practitioner reasonably believes the health practitioner has behaved in a way that constitutes notifiable conduct, the employer must notify the health ombudsman of the notifiable conduct.

(2) If the health ombudsman becomes aware that an employer of a registered health practitioner has failed to notify the health ombudsman of notifiable conduct as required by subsection (1), the health ombudsman—

  1. (a)
    must notify the National Agency; and
  1. (b)
    may—
  1. (i)
    refer the matter to the employer’s licensing authority; or
  1. (ii)
    refer the matter to another appropriate entity in this jurisdiction or another jurisdiction; or
  1. (iii)
    advise the responsible Minister of the matter.
  1. (3)
    In this section—

employer, of a registered health practitioner, means an entity that employs the health practitioner under a contract of employment or a contract for services.

licensing authority, of an employer, means an entity that under a law of a participating jurisdiction is responsible for licensing, registering or authorising the employer to conduct the employer’s business.” (editors notes omitted)

  1. [28]
    Section 140 defines “notifiable conduct”.  Section 140 is in these terms:

140 Definition of notifiable conduct

In this Division—

notifiable conduct, in relation to a registered health practitioner, means the practitioner has—

  1. (a)
    practised the practitioner’s profession while intoxicated by alcohol or drugs; or
  1. (b)
    engaged in sexual misconduct in connection with the practice of the practitioner’s profession; or
  1. (c)
    placed the public at risk of substantial harm in the practitioner’s practice of the profession because the practitioner has an impairment; or
  1. (d)
    placed the public at risk of harm because the practitioner has practised the profession in a way that constitutes a significant departure from accepted professional standards.” (emphasis added)
  1. [29]
    Section 237 provides:

237 Protection from liability for persons making notification or otherwise providing information

  1. (1)
    This section applies to a person who, in good faith—
  1. (a)
    makes a notification under this Law; or
  1. (b)
    gives information in the course of an investigation or for another purpose under this Law to a person exercising functions under this Law.
  1. (2)
    The person is not liable, civilly, criminally or under an administrative process, for giving the information.
  1. (3)
    Without limiting subsection (2)
  1. (a)
    the making of the notification or giving of the information does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct; and
  1. (b)
    no liability for defamation is incurred by the person because of the making of the notification or giving of the information.
  1. (4)
    The protection given to the person by this section extends to—
  1. (a)
    a person who, in good faith, provided the person with any information on the basis of which the notification was made or the information was given; and
  1. (b)
    a person who, in good faith, was otherwise concerned in the making of the notification or giving of the information.”
  1. [30]
    Accepting it seems, that privilege may attach to the publication to the OHO, the plaintiff has pleaded in relation to each of those publications that they were made with malice and in bad faith. 
  2. [31]
    As to the Second Konowalous/Spectrum Publication, this was pleaded in the Statement of Claim as follows:

“26. On or around October/November 2014 the plaintiff sought employment through an employment agency.

  1. On or around October/November 2014 the employment agent telephoned Spectrum Imaging for a reference in relation to the plaintiff’s work history, qualification and or skills.
  1. The plaintiff has not been able to find employment by any imaging company as a radiographer.”
  1. [32]
    The injurious falsehood plea in the Statement of Claim was in these terms:

INJURIOUS FALSEHOOD

  1. Further or in the alternative, the plaintiff has suffered special and or aggravated damage in that the:

a. First and Second Konowalous/Spectrum Imputations; and

b. Maczyszyn Imputations; and

c. Golle Imputations; and

d. Ilguth imputations imputations [sic] as pleaded herein were false statements concerning the plaintiff’s business and or reputation as a radiographer and published by all defendants and was actuated by malice on the part of the defendants was done wilfully and intentionally without just cause or excuse and calculated to induce others not to deal with the plaintiff causing him financial harm and other losses referred to paragraph 40;[12] and

e. the plaintiff suffered actual damage as a result of the publication as the plaintiff was unemployable as a result.”

  1. [33]
    The plea in the Statement of Claim in support of the claim “for pure economic loss” is a plea based on a breach of an alleged duty.  That plea was in these terms:

DAMAGES PURE ECONOMIC LOSS

  1. The defendants all owed the plaintiff a legal duty to investigate claims and not to disseminate information about him in the employment capacity which was incorrect and false and which may adversely affect him.
  1. It was foreseeable that if the defendants published allegations which were adverse, unsubstantiated or false that the Plaintiff would suffer economic loss.
  1. The defendants all breached the duty by not properly investigating the facts set out in which were inaccurate and or incorrect.
  1. The Defendants all failed to meet the requisite standard of care owed by them to the plaintiff.
  1. As a result the defendants breached their duty of care owed to the plaintiff.
  1. The plaintiff suffered a material injury as a result of the breach as set out in herein.”
  1. [34]
    Various amendments were made by the Amended Statement of Claim.  Significantly, the claims for injurious falsehood and pure economic loss were reformulated in these terms:

DAMAGES FOR INJURIOUS FALSEHOOD AND PURE ECNOMIC LOSS

  1. In the alternative to the special damages referred to ion para 40.  The defendants all owed the plaintiff a legal duty conduct failed to verify the accuracy of the allegations and or to investigate claims and not to disseminate information about him in the employment his professional capacity as a radiographer, which was incorrect and false and which may adversely affect him.
  1. It was foreseeable that if the defendants published allegations which were adverse, unsubstantiated or false that the Plaintiff would suffer economic loss.
  1. The defendants all breached the duty by not properly investigating the facts set out in which were inaccurate and or incorrect.
  1. The Defendants all failed to meet the requisite standard of care owed by them to the plaintiff.
  1. As a result the defendants breached their duty of care owed to the plaintiff.
  1. been gravely injured in his character and reputation both personally and as a radiographer in his trade and profession and as a result he is no longer able to render his services as a radiographer and The plaintiff suffered a material injury as a result of the breach as set out in herein.”[13]
  1. [35]
    The Amended Statement of Claim added a new claim based on a “tortious conspiracy”.  It is necessary to set out the paragraph which alleges the conspiracy and the first three paragraphs of the particulars:

TORTIOUS CONSPIRACY

  1. Further or in the alternative to the claims for damage for defamation with aggravation, injurious falsehoods and pure economic loss, the plaintiff claims the first, third, fourth and fifth defendants conspired together with the mutual intention to carry out a common purpose namely to unlawfully and falsely fabricate allegations of serious professional misconduct against the plaintiff and to file a false notification to the OHO to injure the plaintiff whereupon the plaintiff suffered damage and pecuniary loss as a result.

Particulars of conspiracy

a. between 7 October 2014 and 15 October 2014 the first, second and or fourth defendants conspired intentionally to falsely fabricate allegations of serious professional misconduct against the plaintiff and to file a false notification to the OHO referred to as the first Konawalous publications, part one and two, as set out in schedule 1 herein; and

b. between 7 October 2014 and 15 October 2014 and or between 17 March 2016 and 24 March 2016 the first, (for and or on behalf of the second), third, fourth and fifth defendants conspired intentionally to falsely fabricate allegations against the plaintiff and to file a false notification to the OHO relating to complaints of serious professional misconduct referred to as the Maczyszyn, Golle and Illguth publications, as set out in schedules 2 to 4 respectively herein;

c. The said complaints were unsubstantiated, baseless and did not constitute notifiable conduct to warrant a mandatory report under the National Law in the circumstances where there was no evidence to support the complaints of serious professional misconduct as pleaded in paragraphs 37A to 37E herein.”

  1. [36]
    The allegations concerning the Second Konowalous/Spectrum Publication were re-pleaded in part.  That now appears as follows:

The Second Konowalous/Spectrum Publication

  1. On or around October/November 2014 the plaintiff sought employment through an employment agency.
  1. On or around October/November 2014 the employment agent telephoned Spectrum Imaging for a reference in relation to the plaintiff’s work history, qualification and or skills.
  1. The Plaintiff found it difficult to find employment by any imaging company as a radiographer, after providing the employment agent with his previous employment history whereupon Spectrum was contacted for a reference and details of the defamatory allegations against him were divulged with malice sufficient to cause the plaintiff damage to his reputation.

28A. The allegations in the First and Second Konowalous publications conveyed imputations that were false and defamatory of the Plaintiff and conveyed or was understood to convey, it its l and or ordinary meaning the plaintiff:

a. Had a history of inappropriate sexual behaviour with clients of the defendants or of the first defendant;

b. Was incompetent as a radiographer;

c. Was grossly unprofessional;

d. Had damaged Spectrum’s reputation as a result;

e. Had breached all professional codes of conduct.”

Problems with the claims

  1. [37]
    It seems clear that a complaint was made to the fourth defendant (and then investigated by the first and second defendants) by a woman who attended upon the plaintiff with her children who were x-rayed.  Largely,[14] the publications consist of repetition of her complaint.
  2. [38]
    The woman’s complaint is detailed in the response to OHO which is attached as a schedule to the Statement of Claim.[15]  There is no specific plea that the woman did not make the complaint in the terms alleged in the report.  The allegation clearly constitutes “notifiable conduct”.  The publication attracts privilege if made in good faith.
  3. [39]
    The pleading in the Statement of Claim of the Second Konowalous/Spectrum Publication did not disclose a cause of action.  The plaintiff’s case is, no doubt, that some employee of the second defendant told the employment agent engaged by the plaintiff of the allegations that had been made against him by the fourth defendant’s patient.  That is not directly pleaded and the facts that were pleaded do not give rise to an inference that such a thing occurred.  All that is pleaded is that the employment agent telephoned seeking a reference and the plaintiff has been unable to find employment.  As a matter of law, no inference is open from those two facts that the plaintiff was defamed.
  4. [40]
    In the Amended Statement of Claim, it is pleaded that when the employment agent telephoned the second defendant, “details of the defamatory allegations against [the plaintiff] were divulged…”.  The “defamatory allegations” are not identified.  It is unclear whether they are “the defamatory Konowalous allegations” as defined in paragraph 24.  There is a lack of particularity as to:
  1. (i)
    the identity of the employment agent;
  2. (ii)
    the identity of the employee of Spectrum who made the statements;
  3. (iii)
    the content of what was said;
  4. (iv)
    the facts upon which the allegation of malice is based.[16]
  1. [41]
    Injurious falsehood differs from defamation:

“In some respects, injurious falsehood bears a marked resemblance to defamation.  Both involve a false and harmful imputation concerning the plaintiff, made not to him directly but to a third person.  They differ, however, in this respect that the law of defamation protects an interest in personal reputation, while injurious falsehood protects an interest in the disposability of one’s property, products or business.  Hence, if a statement charges the plaintiff with discreditable conduct in the plaintiff’s business and involves a reflection on the plaintiff’s character, it is libel; if it disparages the plaintiff merely in respect of the plaintiff’s property, as by casting an aspersion on the nature of the plaintiff’s business or the quality of the plaintiff’s merchandise as such, it is injurious falsehood. Although the line of demarcation may sometimes be rather thin, it is attended by significant consequences.  Defamation is mostly actionable without proof of damage, falsehood is presumed, and liability is strict; whereas in an action for injurious falsehood the plaintiff must prove that actual economic loss was sustained, and that the offensive statement was false and made with intent to cause injury without lawful jurisdiction.”

And further:

“Injurious falsehood, then, consists in the publication of false statements, whether oral or in writing, concerning the plaintiff or his property, calculated to induce others not to deal with him.”[17]

  1. [42]
    The first publication of the First Konowalous/Spectrum Publication was made at least ostensibly in satisfaction of a statutory obligation.  It is difficult to see that as an actionable injurious falsehood. 
  2. [43]
    The Second Konowalous/Spectrum Publication is one that could be said to disparage the plaintiff in his professional or business capacity.  However, as previously observed, the allegations are completely lacking in particularity. 
  3. [44]
    As previously observed, all other publications[18] are made to OHO responding to the allegations made by the plaintiff against the second, third, fourth and fifth defendants.  OHO was not in a position to employ the plaintiff.  OHO did not receive the letters in the course of an investigation into the conduct of the plaintiff.  It is difficult to see how the plaintiff could establish the requisite intention of the defendants in order to make out his injurious falsehood case. 
  4. [45]
    The plea in the Statement of Claim alleging injurious falsehood is cast in terms of a “duty” and a “standard of care” “to verify the accuracy of the allegations…” which are the allegations made by the woman who complained.  The source of that duty is unclear. 
  5. [46]
    The tortious conspiracy plea in the Amended Statement of Claim alleges not one but two conspiracies.  The first is one between the first, second, and it seems fourth defendant, to fabricate allegations of professional misconduct and to file a false notification to the OHO.  The overt act performed pursuant to that conspiracy is the sending of the First Konowalous/Spectrum Publication.
  6. [47]
    The second conspiracy is between all defendants with the overt acts, being the sending of the Maczyszyn, Golle and Illguth Publications.  Notwithstanding the clear plea of two separate conspiratorial agreements, the pleading then concerns “the conspiracy”.  It is then pleaded that but for the conspiracy, “the plaintiff’s employment would not have been terminated in October 2014”.  The difficulty in pleading that as a result of the conspiracy is that the termination of the plaintiff’s employment occurred in October 2014.  All but one of the publications relied upon as part of that conspiracy post-dated the termination of employment.
  7. [48]
    The tortious conspiracy plea also does not come to grips with the fact that the First Konowalous/Spectrum Publication was, in large, a repeat of allegations made by a patient.  Much of the material contained in the later publications are also a repeat of, or made in reliance upon, that complaint.  There is no plea that:
  1. the complainant is a party to either of the two conspiratorial agreements; or that
  1. the complaint was not made by the complainant.

Statutory context

  1. [49]
    Rule 22 of the Uniform Civil Procedure Rules 1999 (UCPR) provides for the issue of a claim.  Rule 24 provides that the claim remains in force for one year.  That rule is in these terms:

24  Duration and renewal of claim

  1. (1)
    A claim remains in force for 1 year starting on the day it is filed.
  1. (2)
    If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end.
  1. (3)
    The claim may be renewed whether or not it is in force.
  1. (4)
    However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed.
  1. (5)
    Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed.
  1. (6)
    Despite subrule (1), for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.”
  1. [50]
    The present application seeks to overturn the decision of the Registrar who renewed the claim.  There are three sources of power to review the decision; r 16(d), r 667(2)(a) and the inherent jurisdiction of the court.[19]  Rules 16 and 667 are in these terms:

16 Setting aside originating process

The court may—

  1. (a)
    declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or
  1. (b)
    declare that an originating process has not been properly served; or
  1. (c)
    set aside an order for service of an originating process; or
  1. (d)
    set aside an order extending the period for service of an originating process; or
  1. (e)
    set aside an originating process; or
  1. (f)
    set aside service of an originating process; or
  1. (g)
    stay a proceeding; or
  1. (h)
    set aside or amend an order made under rule 126(1) or 129G(1); or
  1. (i)
    make another order the court considers appropriate.[20]

(emphasis added)

“667  Setting aside

  1. (1)
    The court may vary or set aside an order before the earlier of the following—
  1. (a)
    the filing of the order;
  1. (b)
    the end of 7 days after the making of the order.
  1. (2)
    The court may set aside an order at any time if—
  1. (a)
    the order was made in the absence of a party; or
  1. (b)
    the order was obtained by fraud; or
  1. (c)
    the order is for an injunction or the appointment of a receiver; or
  1. (d)
    the order does not reflect the court’s intention at the time the order was made; or
  1. (e)
    the party who has the benefit of the order consents; or
  1. (f)
    for a judgment for specific performance, the court considers it appropriate for reasons that have arisen since the order was made.
  1. (3)
    This rule does not apply to a default judgment.”[21]
  1. [51]
    An application to renew the claim is not an appeal.  The relevant principles are:
  1. (i)
    the court hears the merits de novo;[22]
  2. (ii)
    the onus is upon the plaintiff to demonstrate that the order for renewal ought to have been made.[23]
  1. [52]
    Rule 5 states the philosophy of the UCPR.  That is in these terms:

5  Philosophy—overriding obligations of parties and court

  1. (1)
    The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.
  1. (2)
    Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.
  1. (3)
    In a proceeding in a court, a party impliedly undertakes to the court and to the other parties to proceed in an expeditious way.
  1. (4)
    The court may impose appropriate sanctions if a party does not comply with these rules or an order of the court.

Example—

The court may dismiss a proceeding or impose a sanction as to costs, if, in breach of the implied undertaking, a plaintiff fails to proceed as required by these rules or an order of the court.”

  1. [53]
    The Limitation of Actions Act 1974 contains two provisions relevant to the current application.  They are ss 10AA and 32A which are in these terms:

10AA Defamation actions

An action on a cause of action for defamation must not be brought after the end of 1 year from the date of the publication of the matter complained of.

32A  Defamation actions

  1. (1)
    A person claiming to have a cause of action for defamation may apply to the court for an order extending the limitation period for the cause of action.
  1. (2)
    A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 10AA to a period of up to 3 years from the date of the publication.
  1. (3)
    A court may not order the extension of the limitation period for a cause of action for defamation other than in the circumstances specified in subsection (2).
  1. (4)
    An order for the extension of a limitation period, and an application for an order for the extension of a limitation period, may be made under this section even though the limitation period has already ended.”

The application

  1. [54]
    Rule 22 provides two bases upon which the court may set aside the renewal:
  1. (i)
    where “reasonable efforts” to serve the claim before expiry have failed; and
  2. (ii)
    “another good reason to renew the claim” exists.
  1. [55]
    Here, it is not suggested that there were any attempts to serve the claim before it expired.  Therefore, reliance by the plaintiff is upon identification of “another good reason to renew the claim”.  It is not suggested that the scope for relief which is available under r 16(d) and 667(2)(a) or the inherent jurisdiction of the court is wider than that identified by r 24.  It is not suggested that the exercise of the inherent jurisdiction would not be informed by the contents of r 5 of the UCPR.
  2. [56]
    Before the Registrar, the plaintiff relied upon his affidavit sworn and filed on 7 March 2018.  He there identified six reasons why the claim was not served before it expired.  The plaintiff swore:

“9. I have not served the defendants for the following reasons:

a. Due to the nature of the allegations the QCAT hearing should be first in time;

b. It was not envisaged that the Board would take so long to issue the referral notice to QCAT;

c. The QCAT hearing may widen the plaintiff’s cause of action once disclosure and or investigations are complete;

d. The enquiry in QCAT may also resolve the dispute between the parties and this action may be averted and therefore save the court and all the parties considerable time and expense;

e. The plaintiff is a radiographer and has a right to protection of his reputation against such allegations.  It would therefore disadvantage the plaintiff not to renew the claim for another 12 months;

f. The defendants are not prejudiced by the delay as they are fully aware the matter has been referred for a full QCAT hearing in which the defendants will be named as third parties.”

  1. [57]
    In submissions, the plaintiff added the following:
  1. The delay was not significant;
  1. The plaintiff acted on legal advice in not serving the claim;
  1. Further investigation of the claim was required, especially because documents which had been disclosed were heavily redacted and it was thought that documents and information could be obtained through the QCAT proceedings;
  1. There was futility in not renewing the claim because:
  1. (i)
    some of the causes of action were not statute barred and proceedings for those causes of action could be recommenced;
  1. (ii)
    only the second defendant brought the application and “the other defendants… may concede liability”.
  1. There are public interest considerations being an interest in the plaintiff’s allegations of malpractice by the defendants being investigated.  There is a public interest in that investigation because, in particular, Medicare funded what is alleged to be over servicing;
  1. Because “the plaintiff’s entire career has been destroyed by reckless and unsubstantiated… allegations of [sexual misconduct]” it is in the interest of justice that the case proceed.
  1. [58]
    The second defendant submitted:
    1. By the time of the filing of the claim, the limitation period for commencing defamation proceedings had expired apart from the publications which occurred in March 2016;
    2. By the time of the renewal the limitation period for commencing proceedings for all the publications had expired;
    3. There are difficulties with the defamation action in that the claim is met by a claim for absolute privilege;
    4. There is no substance in the alternative causes of action;
    5. There is prejudice;
      1. (a)
        in general; and
      2. (b)
        specifically in that the second defendant sold its radiology business and “the second defendant may well be prejudiced in defending the case”.  This is because the employees of the business (potential witnesses) have dispersed.
    6. The first knowledge of the second defendant of the claim comes from the letter of 21 November 2016 which was not a concerns notice under the Defamation Act 2005[24] and did not identify specific allegations;
    7. The decision not to serve the claim but to await resolution of the QCAT proceedings is illogical as the issues in the QCAT proceedings are different from those raised by the claim;
    8. The plaintiff made a conscious decision to not serve the claim.

Consideration

  1. [59]
    The plaintiff’s submission that it is futile to effectively curtail the claim by disallowing the renewal because defendants other than the second defendant may admit liability[25] ought to be rejected.  All defendants supported the application brought by the second defendant.  There is no basis upon which it could be inferred that the defendants, other than the second defendant, may admit liability.
  2. [60]
    The strength of the plaintiff’s causes of action are relevant in two ways.[26]  Firstly, the plaintiff says that new proceedings can be commenced upon the injurious falsehood and tortious conspiracy claims as they are not out of time.  Secondly, a relevant consideration is whether the causes of action are “worthwhile”.[27]
  3. [61]
    It is not appropriate to reach any final conclusions as to the strength or otherwise of the plaintiff’s claims.  However, for the reasons I have expressed, all causes of action as presently pleaded face obvious problems.  In particular, the publications were arguably made pursuant to statutory duty and are the subject of privilege.  The injurious falsehood claim seems misconceived as presently pleaded dependent upon some duty.  The tortious conspiracy case is unparticularised, vague at best, and confusing.  I am not convinced that either the injurious falsehood claim or the tortious conspiracy claim are worthwhile and should reasonably be brought if the claim is not renewed and the defamation case cannot be recommenced.
  4. [62]
    I also reject the plaintiff’s submission that there is some public interest in his claim proceeding so that the conduct of the defendants can be investigated.[28]  Medical professionals are highly regulated and those in charge of that regulation have statutory powers of investigation.  Here the complaints were investigated.  There is no public interest need for the plaintiff’s claims to proceed in order to identify any alleged misconduct of the defendants.
  5. [63]
    I reject the plaintiff’s submissions that further investigation was required before his case could proceed.[29]  With the exception of the Second Konowalous/Spectrum Publication, the plaintiff knew the particulars of all the publications before the claim was filed.  The Second Konowalous/Spectrum Publication is an event which the plaintiff inferred had occurred as I discussed earlier.  It may be that the Second Konowalous/Spectrum Publication could not be fully particularised at the time the claim was filed but that would not necessarily be fatal to the pleading and in any event, the other four publications could be particularised.
  6. [64]
    I reject the plaintiff’s submission that the prospects that the QCAT proceedings may widen the plaintiff’s causes of action[30] is a legitimate consideration in making any decision as to not serving the claim.  If material emerged from the QCAT proceedings which could be utilised in the present proceedings then, subject to considerations relating to the implied undertaking not to use the material obtained from one proceeding in another, amendments could be made to the Statement of Claim and other issues case managed.
  7. [65]
    The plaintiff’s submissions that the QCAT proceedings may lead to the resolution of the dispute as a relevant consideration[31] ought to be rejected.  The issues in the QCAT proceedings were as to the substance of the complainant’s complaint against the plaintiff.  Whether that complaint had substance or not would not necessarily determine or help determine the issues in the civil proceedings.  Even if there was no substance in the complaint, the defendants may still have defences of absolute privilege under the National Law or other defences under the Defamation Act.[32] 
  8. [66]
    I accept the plaintiff’s submissions that the allegations which are raised against him are serious and have impacted upon his livelihood[33] and that if his claim is not renewed, his defamation claim is lost.[34]
  9. [67]
    It is unlikely that the defendants have suffered any particular prejudice.[35]  While the second defendant has sold his radiology business and therefore does not have direct daily contact with previous employees, there is no evidence that they are lost as witnesses.  The defendant’s prejudice is restricted to the general prejudice which is recognised as flowing from delay.  The claim was served over four years after the October 2014 publication and almost three years after the March 2016 publications.
  10. [68]
    I accept the plaintiff’s submission that the defendants were generally aware of the defamation claim and the broad particulars of that claim from 21 November 2016.[36]
  11. [69]
    All the other discretionary considerations which are raised[37] all relate, directly or indirectly, to the plaintiff’s conscious decision not to serve the claim but to await the outcome of the QCAT proceedings.  The plaintiff took it upon himself to decide that the best course was not to serve the claim, rather than to serve it and seek orders facilitating the hearing of the QCAT claim before the civil claim if the court found that to be appropriate.
  12. [70]
    The deliberate choice of the plaintiff not to serve the claim, and the fact that the limitation period has now expired, are relevant and important considerations.
  13. [71]
    In 1975, Bray CJ, sitting in the Full Court of the Supreme Court of South Australia hearing an appeal concerning the renewal of a writ, made this general observation:

“I think too that there is discernible in this, as in cognate branches of the procedural law, a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.”[38]

  1. [72]
    That observation was adopted and followed in Van Leer Australia Pty Ltd v Palace Shipping KK.[39]
  2. [73]
    In McIntosh & Anor v Maitland & Ors,[40] Jackson J, in setting aside a Registrar’s decision to renew a claim which was not served within a year of being issued, reviewed modern authorities decided after the introduction of rules like r 5 of the UCPR and then said this:[41]

“In my view, it can no longer be said in this court that, in cognate branches of the procedural law, there is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.  That would be inconsistent with a number of the statutory rules, concepts, principles and practices that are now recognised and incorporated into our modern laws of civil procedure.”

  1. [74]
    His Honour’s remarks are, with respect, well supported by statements of the High Court in Aon Risk Services Australia Limited v Australia National University[42] and Batistatos v Roads and Traffic Authority (NSW).[43]  Recently, in UBS AG v Tyne,[44] a case concerning a stay based on an abuse of process, Kiefel CJ, Bell and Keane JJ observed:

“It is to hark back to a time before this Court’s decisions in Aon and Tomlinson[45] and the enactment of s 37M[46] of the FCA to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation.”[47]

  1. [75]
    In the same case, Gordon J said:

“This appeal raises important issues about the way in which litigation is conducted in the 21st century.  Over the last 20 years, there has been a ‘cultural shift’ in the conduct of civil litigation. The legal system has faced, and continues to face, great challenges in providing appropriate mechanisms for the resolution of civil disputes.  Cost and delay are long-standing challenges.  The courts and the wider legal profession have an obligation to face and meet these and other challenges.  Failure to respond creates (or at least exacerbates) hardship for litigants and potentially results in long-term risks to the development, if not the maintenance, of the rule of law.”[48] (citations omitted)

  1. [76]
    Rule 5 of the UCPR forms part of the statutory context against which the discretion conferred by r 24(2) is to be exercised.[49]
  2. [77]
    Viewed against the implied undertaking of all parties, including the plaintiff, to proceed in an expeditious way,[50] the taking of a deliberate and calculated decision not to serve the claim within the year period stipulated by the UCPR, is a significant consideration weighing against the renewal of the claim.
  3. [78]
    In IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission,[51] Keane JA (as his Honour then was) said:

“Rule 24(2) facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiffs.  A party who deliberately chooses to refrain from serving a claim will rarely be able to show good reason to warrant the renewal of the claim

No case was cited to this court in which r 24(2) or its analogues has been held to authorise a renewal of a claim in favour of a party who deliberately chooses not to serve a claim where the facts of the case [are] sufficient to enable the case to be pleaded are known to the plaintiff.  Whatever the position may have been in that regard in the absence of a provision such as r 5(3) of the UCPR, the presence of r 5(3) means that the approach pursued by the plaintiffs in the present case should not be vindicated by the court.” (citations omitted and emphasis added)

  1. [79]
    Here, at the time the Claim and Statement of Claim were filed, the plaintiff knew of the publications which formed the basis of the defamation case.  He also knew of some facts against which the other two causes of action could be framed.
  2. [80]
    In McIntosh, Jackson J observed:

“The plaintiffs do not submit that they were unable to formulate their claims against the first, fourth or fifth defendants until the outcome of the voidable transaction proceedings was known.  The amount of the plaintiff’s loss may have been affected by the outcome of the voidable transaction proceedings.  However, that alone was not a sufficient reason, in my view, to justify the plaintiffs arrogating to themselves, in effect, the benefit of a stay of the present proceeding.  The correct procedure would have been to serve the claim and to make an application for directions.  The court has power to grant a stay or other relief if the ascertainment of loss in one case depends on the outcome of a case in another court.  The defendants would have been entitled to be heard on any such application.”[52] (citations omitted)

  1. [81]
    As long ago as 1945 in Battersby v Anglo-American Oil Co Ltd,[53] Lord Goddard, considering the renewal of a writ of summons where a party had elected not to serve a proceeding while some related case was being concluded, said:

“Ordinarily, it is not a good reason that the plaintiff desires to hold up the proceedings while some other case is tried or to await some future development.  It is for the court and not for one of the litigants to decide whether there should be a stay, and it is not right that people should be left in ignorance that proceedings have been taken against them if they are here to be served.”[54]

  1. [82]
    A similar approach was taken in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq),[55] Pell v Hodges,[56] Ramsay v Madgwicks,[57] and EDIS Service Logistics Pty Ltd v PKF East Coast Practice and Ors.[58]  In some circumstances, though discretionary considerations will still weigh in favour of renewing the claim.
  2. [83]
    The plaintiff relied significantly on the judgement of Burns J in King v Gunthorpe & Ors.[59]  Of that case, the plaintiff said:

“7.1.6 In King & Ors v Gunthorpe & Ors [2018] QCS] para 69-.72 Burns J declined to follow the obiter remarks of Keane JA (in IMB) and cited a host of cases which are not reconcilable with the sentiments expressed by Keane JA ie Hightop Pty Ltd & Anor Sheila Lawrence trading as ‘Kay Lawrence Accountancy’ [2010] QCA 270.  And, Bray CJ in Victa Limited v Johnson, approved by Stephen J and Van Leer Australia Pty Ltd v Palace Shipping KK and Mason J in Foxe v Brown; Victa Limited v Johnson Culliton CJ in Simpson v Saskatchewan Government Insurance Office.

7.1.7 Burns J put perspective to the Judgment of Keane JA (in IMB at para 51) when quoting him as follows;

‘If there is reason for concern that the lapse of time is a real impediment to the fair presentation of a party’s case, that is a deficit in the case of an applicant for the grant of an indulgence in the form of an exemption from the operation of the general rule that a court will not exercise its discretion in favour of renewal.’

7.1.8 There must be a deficit in the case which is insurmountable.  No complaint has been made that documents have been lost or destroyed (King Supra at 83 ).  No complaint has been made that any case has been prejudiced.

  1. [84]
    That submission misunderstands the judgments in both King and IMB.
  2. [85]
    Keane JA did not, in IMB, identify a legal principle that a case must be rare to attract a renewal where the decision made was not to serve the claim. What his Honour did decide was that, given the terms of r 5 and the principles explained by his Honour, a plaintiff who deliberately chose not to serve a claim will rarely be able to show “good reason” such as to warrant renewal of the claim.  Obviously though, each case turns on its own merits. 
  3. [86]
    The observation of Keane JA that I have mentioned was thought to be correct by Jackson J in McIntosh & Anor v Maitland & Ors[60] and by the Court of Appeal in Hightop Pty Ltd & Anor v Kay Sheila Lawrence trading as Kay Lawrence Accountancy.[61]  It was also accepted as correct by Burns J in King.[62]
  4. [87]
    Burns J did cite the earlier cases including Muirhead v The Uniting Church in Australia Property Trust (Q)[63] but did so to explain how r 5 impacted upon the exercise of discretion.  His Honour said:

“[69]  In Muirhead v The Uniting Church in Australia Property Trust (Q), Pincus JA (with whom Davies JA agreed) provided the following summary of the views expressed by Stephen J in Van Leer Australia Pty Ltd v Place Shipping KK as to the principles to be applied in applications such as this:

‘(1) There is a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties.

  1. (2)
    The discretion may be exercised although the statutory limitation period has expired.
  1. (3)
    Matters to be considered include the length of delay, the reasons for it, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing renewal or to the defendant by granting it.
  1. (4)
    There is a wide and unfettered discretion and there is ‘no better reason for granting relief than to see that justice is done’.’

[70] As to the first of the principles summarised by Pincus JA, it is now well-established that the discretion to renew must be exercised in the context of, and by reference to, the other provisions of the UCPR and, in particular, r 5.” (citations omitted, emphasis added)

  1. [88]
    His Honour then went on to consider IMB, Hightop and McIntosh.  His Honour referred to the submission of the defendant there that “a forensic choice to delay service for the plaintiff’s benefit is the antithesis of a ‘good reason’ to permit renewal”.  Of submission, his Honour said:

“[86] In support of this argument, the defendants placed considerable reliance on what was said by Keane JA in The IMB Group. As earlier discussed (at [70]), his Honour observed that a party who ‘deliberately chooses to refrain from serving a claim will rarely be able to show good reason to warrant the renewal of the claim’ and went on to record that no case had been cited to the Court in which r 24 or its analogues had been held to authorise the renewal of a claim in favour of a party who deliberately chooses not to serve it ‘where the facts of the case sufficient to enable the case to be pleaded are known to the plaintiff’. Importantly, his Honour then said:

‘Whatever the position may have been in that regard in the absence of a provision such as r 5(3) of the UCPR, the presence of r 5(3) means that the approach pursued by the plaintiffs in the present case should not be vindicated by the court.’

[87] Similar remarks were of course made by White JA in Hightop where her Honour said:

‘Thus any conduct of proceedings by a party which entails unexplained or inexcusable delay cannot expect to be vindicated by a court (or the registrar) exercising the discretion granted in r 24(2).’

[88] The premise for the remarks made by both justices was an established breach by the party seeking renewal of their implied undertaking to the court and the other parties to ‘proceed in an expeditious way’, but the same premise is not present here. To the contrary, as appears from the steps that were taken over the period in question which I earlier summarised at some length (at [17]-[58]), the plaintiffs did proceed in an expeditious way. The investigation undertaken by the plaintiffs’ solicitors to determine whether the claim was a viable one was by no means straight-forward. Mr King had no direct knowledge of, or involvement with, his father’s financial affairs prior to his death and the same may be said of Mrs King. Mr King was particularly reliant on Mr McCormack and Mr Nutter to meet his solicitors’ requests for relevant information and documents and, then, on Mr Green as well as the counsel retained by his solicitors to come to a concluded view about prospects. That all took some time and, although some steps along the way might have been taken more quickly, and some may have been strictly unnecessary, my overall impression of this case is not one of ‘calculated inactivity’, to borrow a phrase from Byrne J in MacDonnell v Rolley. Nor is this a case where a deliberate choice was made not to serve the claim, such as was seen to have been made by the plaintiffs in The IMB Group, the investment group in Babcock & Brown and the trustees in McIntosh. In the first place, the plaintiffs here at all times acted in accordance with the legal advice that was provided to them and, secondly, the pace at which the plaintiffs were able to proceed was dependent on the successful gathering of a considerable body of information and documents as well as the receipt of the opinions to which I have referred. Once the long-awaited, and pursued, opinions from Mr Green were received on 28 July 2016, the revised claim and statement of claim that had been finalised on the previous day was promptly filed and served. As it was, that all occurred within four months of the claim becoming stale and within one month of the claim being renewed. As Keane JA said in The IMB Group, r 24 UCPR ‘facilitates the preservation of proceedings which might otherwise become stale through no fault of the plaintiffs’. I think that is the position here; the claim became stale through no fault of the plaintiffs.” (citations omitted)

  1. [89]
    His Honour did not establish any principles different to, or inconsistent with what was said in IMB, Hightop or McIntosh.  His Honour weighed the relevant considerations and renewed the claim.  His Honour, after stating that he found good reason established to renew the claim, explained the factors which were balanced by him in that exercise:

“The delay in serving it has been satisfactorily explained. The implied undertaking to proceed expeditiously has not been breached and the plaintiffs are not otherwise at fault. The claim is apparently worthwhile and hardship might result if the plaintiffs are shut out from their pursuit of it. These factors, supporting as they do the renewal of the claim, outweigh those that are in favour of setting aside the renewal, that is to say, the specific and general prejudice earlier identified and the likelihood that the defendants will be deprived of a limitation defence.”

  1. [90]
    Here there has been a breach of the implied undertaking in r 5. The plaintiff took it upon himself to decide that the claim should not be served within time.  He could have pleaded and delivered the claim and sought directions from the court as to how the matter should proceed in light of the QCAT proceedings.  He chose not to.
  2. [91]
    Taking into account the plaintiff’s deliberate choice not to serve the claim, and all the other factors as I have identified them both in favour of, and against renewing the claim, no good reason to renew the claim has been shown.
  3. [92]
    The parties have indicated a preference for costs to be determined on written submissions without oral hearing.  I will make orders accommodation that preference.
  4. [93]
    I make the following orders:
    1. the order of the Registrar extending the period for service of the Claim for 12 months from 17 March 2018 is set aside;
    2. the claim is dismissed; and
    3. the parties may file and serve written submissions on costs by 4.00 pm on 29 November 2019;
    4. The question of costs will be determined on any written submissions received and without oral hearing.

Footnotes

[1] Affidavit of Robyn Margaret Bourne CFI 8 exhibits page 75.

[2] Australian Health Practitioner Regulation Agency.

[3] Australian Institute of Radiography.

[4] The patient making the complaint.

[5] A reference to the first defendant.

[6] A reference to the plaintiff.

[7] First defendant’s affidavit paragraph 14.

[8] Affidavit of Sean Anthony Sullivan exhibit “SAS 2”.

[9] Affidavit of Robyn Margaret Bourne exhibits page 105.

[10] Section 190A of the Health Practitioner Regulation National Law Act (Qld) 2009.

[11] Affidavit of Robyn Margaret Bourne paragraphs 21-25.

[12] Paragraph 40 contains allegations of damage being suffered.

[13] Reproduced exactly as it appears.

[14] But not totally. 

[15] And the Amended Statement of Claim.

[16] Rule 150(i)

[17] Sappideen and Vines; Fleming’s The Law of Torts 10th Edition at 796 - 797

[18] Including the March 2016 republication of the First Konowalous/Spectrum Publication.

[19] Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287.

[20] The note is omitted.

[21] The note is omitted.

[22] Babcock & Brown Pty Ltd v Arthur Andersen [2010] QSC 287 at [55].

[23] Muirhead v Uniting Church in Australia Property Trust (Q) [1999] QCA 513 at [31].

[24] Section 14.

[25] Paragraph [57] point 4 (ii).

[26] Paragraph [57] point 4 (i) and [58] points 3 and 4.

[27] Hightop Pty Ltd & Anor v Kay Sheila Lawrence trading as Kay Lawrence Accountancy & Ors [2010] QCA 270 at [11].

[28] Paragraph [57] point 5.

[29] Paragraph [57] point 3.

[30] Paragraph [56] point c.

[31] Paragraph [57] point d.

[32] Section 30 for instance.

[33] Paragraph [57] point 6.

[34] Paragraph [56] point e and paragraph [57] point 6; there has been no application brought under s 32A of the Limitation of Actions Act 1974. 

[35] Paragraph [57] point 1, paragraph [56] point f and paragraph [58] point 4.

[36] Paragraph [56] point f.

[37] Paragraph [56] point a, paragraph [56] b, paragraph [57] points 1 and 2 and paragraph [58] point 8.

[38] Victa Limited v Johnson (1975) 10 SASR 496 at 502.

[39] (1981) 180 CLR 337 at 343 - 344.

[40] [2016] QSC 203.

[41] At [34].

[42] (2009) 239 CLR 175 at [98].

[43] (2006) 226 CLR 256.

[44] (2018) 360 ALR 184.

[45] A reference to Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507.

[46] An equivalent to r 5 of the UCPR. 

[47] At [45].

[48] At [125], and see also Expense Reduction Analysis Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 253 CLR 303 at [51].

[49] IMB Group Pty Ltd (in liq) v Australian Competition and Consumer Commission [2007] 1 Qd R 148 at [27].

[50] Uniform Civil Procedure Rules 1999 r 5(3).

[51] [2007] 1 Qd R 148.

[52] At [75].

[53] [1945] 1 KB 23.

[54] At 32, followed in Jones v Jebras and Hill [1968] Qd R 13 at 20.

[55] [2009] NSWCA 104.

[56] [2007] NSWCA 234.

[57] [1989] VR 1.

[58] [2018] QSC 262 at [12].

[59] [2018] QSC 1.

[60] [2016] QSC 203.

[61] [2010] QCA 270.

[62] King & Ors v Gunthorpe & Ors [2018] QSC 1 at [70] and [71].

[63] [1999] QCA 513.

Close

Editorial Notes

  • Published Case Name:

    Quinlivan v Konowalous & Ors

  • Shortened Case Name:

    Quinlivan v Konowalous

  • MNC:

    [2019] QSC 285

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    22 Nov 2019

Litigation History

No Litigation History

Appeal Status

No Status