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Kelly v Director-General, Department of Transport


[2004] QSC 177








Application – Leave to Proceed and Dismissal of Action for Want of Prosecution



18 June 2004




17 June 2004


Holmes J


1. Application for leave to proceed dismissed.

2. Proceeding dismissed for want of prosecution.


PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – TIME – DELAY SINCE LAST PROCEEDING – where the plaintiff in a personal injuries action had taken no steps in seven years – whether the plaintiff should be granted leave to proceed pursuant to r 389 Uniform Civil Procedure Rules 1999 – whether the proceedings should be dismissed for want of prosecution

Uniform Civil Procedure Rules 1999, r 389

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered
Tyler v Custom Credit Corporation Ltd & Ors [2000] QCA 178, applied


R A Myers for the plaintiff
K Phillipson for the first and second defendants
C K Conaghy for the third defendants


Crowley and Greenhalgh for the plaintiff
Crown Solicitor for the first and second defendants
Australian Government Solicitor for the third defendants

[1] There are three applications before me. The first, filed in January of this year, is an application by the first and second defendants, the Director General, Department of Transport and State of Queensland for dismissal of the plaintiff’s action for want of prosecution; the second, filed in June, is an application by the plaintiff for leave to proceed pursuant to rule 389 of the Uniform Civil Procedure Rules; and the third is an application by the third defendant, Commonwealth of Australia, also filed in June, and also seeking dismissal for want of prosecution.

The history of the action

[2] The plaintiff was injured on 27 May 1991, when the vehicle he was driving on the Cunningham Highway collided with a horse that was loose on the roadway.  On 25 May 1994, just before the end of the limitation period, a writ was issued. It was served on the first and second defendants on 1 August 1994, and they duly filed an entry of appearance. In September 1994, the statement of claim was served on the second defendant, which then filed and served a defence. In April 1995, the writ and statement of claim was served on the third defendant, which entered an appearance on 10 May 1995. That is the last step in the proceeding.

[3] The statement of claim pleaded that the Cunningham highway at Swanbank was a limited access road constructed by the first or second defendants on behalf of the third defendant. There was, it alleged, a duty on the defendants to maintain along the road’s boundary a ‘type B’ fence so as to prevent the intrusion of livestock onto the highway.  However, at some unspecified time certain panels of the fence were removed, allowing livestock onto the road.  The essence of the negligence or breach of statutory duty pleaded against the defendants is the failure to maintain the fence with panels intact.

[4] The plaintiff suffered very significant injuries in the accident.  Apart from a number of fractures, he sustained a serious head injury, and, not surprisingly, has no recollection of the collision. Testing in the twelve months after the accident showed that he suffered from concentration and memory loss, dysphasia, slowed information processing and difficulties in problem solving.  The last in time of the reports on the plaintiff’s progress is a social worker’s report on 16 December 1992. According to that report, the plaintiff’s wife had had to take over management of their business and financial affairs because of his multiple deficits.  Those medical and other reports emanate from the Workers’ Compensation Board; they appear to have been obtained in connection with a workers’ compensation claim determined in 1993.

[5] The plaintiff initially instructed the firm of Stephens & Tozer to act on his behalf.  That firm obtained a loss adjuster’s report from a Mr Walker in December 1993.  According to Mr Smith, the present solicitor for the applicant, Mr Walker told him that he had been unable to locate the relevant report. However, the detail contained in his affidavit suggests that he must at least have the original notes on which it was based.

[6] Mr Walker spoke to the police officer who investigated the accident, a Constable G J Williams. Nothing is now known of Constable Williams’ whereabouts. He identified the location of the accident for Mr Walker. Mr Walker says that, as at 1993, about 100 metres east of the accident site, there was a recreational motor cycle track, with a crossing from north to south across the highway. At that point the fence on both sides of the highway had been cut. The break would allow animals access to the highway. His observations, he says, indicated that ‘the track had been in existence for a very long time’. He had, at the time, had some enquiries made of motor cycle riders, who said the track had been in existence for some time prior to the construction of the highway in 1984. He had spoken to an engineer of the Department of Main Roads who described the type of fence he had observed as a ‘type B fence’. At the time of his inspection, Mr Walker took a number of photographs. He also obtained an aerial photograph from the Department of Lands and copies of construction plans from the Department of Main Roads for the relevant section of the road. He has not retained copies of any of those photographs and plans.

[7] After service upon it of the written statement of claim in May 1995, a solicitor for the Commonwealth spoke to Stephens & Tozer asking for an extension of time to enable it to carry out some investigations.  On 11 May 1995 Stephens & Tozer responded by saying this:

‘We request that you take no further action in this matter until we complete full discovery with the other defendant, namely the State of Queensland.’

That was the last the third defendant heard of the matter.

[8] On 2 July 1997, Stephens & Tozer filed and served a Notice of Intention to Proceed on the Crown Solicitor, acting for the first and second defendants.  Nothing more happened at that stage.  The plaintiff, however, appears to have had it in mind as early as April 1996 to change solicitors.  A letter from the firm of Purcell Chadwick & Skelly written at that time refers to the plaintiff’s intention to collect the file from Stephens & Tozer and deliver it to that firm.  The writer, Mr Skelly, says that nothing can be done until the files are obtained, and, in particular, points out that if no step has been taken in the action for three years, the permission of the court is required.

[9] In mid-1997 the plaintiff sought to retrieve his file from the firm of Stephens & Tozer.  According to a letter from Stephens & Tozer, Purcell Chadwick & Skelly had asked for the file but it was not handed over until outstanding fees were paid by the plaintiff in person; with the implication that he was personally given the file.  The plaintiff himself says that he has no recollection of obtaining any paperwork from the solicitors and now cannot find any document associated with the accident, apart from a few letters from Stephens & Tozer, inconsequential for present purposes.

[10] In January 1998, the Crown Solicitor contacted Mr Skelly, who indicated that he did not hold instructions regarding the claim, and that he had only just received the file and needed to review it.  Mr Skelly, in a letter, now says that he has no record of having received the file.  He had a limited number of documents, received from the plaintiff while acting for him in his matrimonial matters, consisting of counsel’s opinion and the Workers’ Compensation Board medical reports already referred to.  In whosever hands it last was, the plaintiff’s file is now lost.

[11] It does not seem that anything more was done until August 2000, when the Crown Solicitor’s office wrote to Mr Skelly asking to be advised of the plaintiff’s intentions.  Some months later Mr Skelly indicated that he did not know if the firm was still acting for the plaintiff.  That appears to have been the last communication from any solicitor to the Crown Solicitor in connection with the matter.  On 23 May 2002 the Crown Solicitor’s office wrote to Mr Skelly offering to settle the claim on the basis of discontinuance, but there seems to have been no response.

Factors in granting leave to proceed

[12] The factors relevant in considering whether leave to proceed should be granted were listed in Tyler & Custom Credit Corp Ltd & Ors [2000] QCA 178 as including: the lapse of time since the events giving rise to the proceeding; delay in its prosecution, and the reasons for it; the prejudice likely to be occasioned to the defendants should the matter proceed; the applicants’ prospects of success; how far the action has progressed; and whether the litigation would be ended if leave were refused.


[13] It is now 13 years since the accident giving rise to the action occurred.  The writ was not served until the very end of the limitation period; but I think that considerable allowance has to be made in that regard for the severe and disabling injuries suffered by the plaintiff.  After 1995, the information available suggests that the plaintiff’s solicitors were not doing a great deal to advance the action; one can infer that this may have been the reason he sought to retrieve his file.  After that, what occurred is something of a mystery.  There is contradictory evidence as to whether Purcell Chadwick and Skelly received the file or not.  At all events, they plainly took no further steps of any kind. 

[14] The plaintiff must bear some responsibility for the ensuing seven years of inaction.  He was alerted by Mr Skelly’s letter that there was a need to apply to the court if no steps had been taken for three years. There is no contemporary evidence as to the plaintiff’s health which would lead to the conclusion that any disability has restricted his capacity to instruct solicitors. Certainly he has been able to do so for the purpose of this application and to swear an affidavit.  In the absence of any evidence, I do not think I can infer that the delay in failure to take steps on his side of the action is entirely attributable to incapacity.  I do, however, consider that some allowance should be made for what I am prepared to infer is a likely degree of diminution in his capacities to manage his affairs, due to the residual effects of his head injuries.

[15] I do not think blame can be attributed on the defendants’ side.  The first and second defendants made sporadic, although ineffectual, attempts to have the matter resolved.  The third defendant was told by the plaintiff’s solicitors to do nothing further and complied.  The plaintiff is in no position to make any complaint of that.

Prospects of Success

[16] The applicant’s prospects of success in the action do not look strong.  There is no evidence, contemporary with the accident, as to the state of the fence.  On the material presently available, the plaintiff will have to invite a court to infer, from the evidence of Mr Walker as to the state of the fence in 1993 and the appearance of the motor cycle track as having been there ‘for a very long time’, that the same break in the fence line apparent to Mr Walker in 1993 existed in 1991. The inference required to establish any breach goes further: not only that the panels were missing as at May 1991, but that they had been removed at a sufficient time before then to warrant a discovery of their absence on reasonable inspection by the first and second defendants. Then the plaintiff will have to invite the court to draw a further inference: that this was the means by which the horses got onto the highway.  The difficulties are obvious.  One cannot feel a strong sense of confidence in an outcome in the plaintiff’s favour.

Progress of litigation and effect of refusing leave

[17] The action, it is self-evident, had not gone beyond the very earliest stages.  Discovery had not occurred, no particulars had been given, no interrogatories answered.  And, plainly enough, if the plaintiff were now refused leave to proceed, that would bring the matter to finality.


[18] Mr Myers, for the plaintiff, submitted that the defendants were not prejudiced by the delay, because the necessary enquiries could and should have been made by them as long ago as 1995. But there are difficulties with that contention.  Firstly, the statement of claim gave no more precise detail of the location of the accident than that it was somewhere on the Cunningham highway, presumably at Swanbank, since there was a reference to the road being located there. Secondly, nothing was pleaded about any motor cycle track.  It seems improbable that any very detailed investigation could have been undertaken on that information; although of course the defendants could have sought further and better particulars.  The third defendant was actively dissuaded from investigating the matter. 

[19] Apart from the more general prospect of prejudice through the effluxion of time, dealt with by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551, the defendants identified particular difficulties. Mr Gary Power, a solicitor in the employ of the Australian Government Solicitor says that he is informed that file records, with details of road funding submissions from the State, and priorities and approvals relating to the highway from the relevant time have been destroyed or archived.  Officers in the administration of the relevant highway programs during the period have moved on or retired.  The Commonwealth no longer holds details of any maintenance proposals submitted by the State Government.

[20] The material relied on by the first and second defendants includes a facsimile from an officer of the Mains Roads Department concerning enquiries made by an engineer, a Mr Slader, in the department.  He was unable to locate any staff with knowledge of the particular accident or any documentation.  He knew nothing of the fencing.

[21] It seems to me that the prospects of the defendants’ being able to establish the state of the fencing 13 years ago, or the respective responsibilities for it, are extremely slight.  It is most uncertain as to whether any relevant documents exist or can be located. The prospects of any individual now having any recollection of conditions or arrangements at the relevant time are minimal.  I do not think there is any real prospect of the defendants now having a fair trial of this action.


[22] Having regard to the factors I have identified I conclude that leave to proceed ought not to be granted in this case.  I dismiss the plaintiff’s application.  The proceeding is dismissed for want of prosecution.


Editorial Notes

  • Published Case Name:

    Kelly v Director General, The Director General, Department of Transport & Ors

  • Shortened Case Name:

    Kelly v Director-General, Department of Transport

  • MNC:

    [2004] QSC 177

  • Court:


  • Judge(s):

    Holmes J

  • Date:

    18 Jun 2004

Litigation History

No Litigation History

Appeal Status

No Status