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  • Unreported Judgment

Taylor v Gorski

 

[2005] QSC 43

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Taylor v Gorski and Ors [2005] QSC 043

PARTIES:

PATRICK JOSEPH TAYLOR
(plaintiff/respondent)
v
RICHARD GORSKI
(first defendant)
SUEANN GORSKI
(second defendant)
RENATA KYROLOS
(third defendant/applicant)
PA DENTAL SERVICE
(fourth defendant)
MARK WILKINSON
(fifth defendant)
COMPLETE DENTAL SERVICE
(sixth defendant)
SLOBODANKA KONCAR
(seventh defendant)
KAROL KARETA
(eight defendant)
LAPLEX PTY LTD
(ninth defendant)
COMPLETE DENTAL SERVICE
(tenth defendant)
MARK LOGAN
(eleventh defendant)
S.G. DENTAL SERVICES
(twelfth defendant)

FILE NO/S:

S1696/94

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 December 2004

JUDGE:

McMurdo J

ORDERS:

1.The claim against the third defendant is struck out for want of prosecution

2.Subject to further submission the plaintiff is ordered to pay the third defendant’s costs of and incidental to the proceedings to be assessed on a standard basis

3.The plaintiff has leave to discontinue against the first, fifth, seventh, eight, ninth, eleventh and twelfth defendants on the basis that there is no order as to costs

4.The plaintiff has leave to discontinue against the second, sixth and tenth defendants on the terms that he pay such defendants their costs (if any) of the proceedings

CATCHWORDS:

PROCEDURE – COURTS AND JUDGES GENERALLY – COURTS – DISMISSAL OF PROCEEDINGS FOR WANT OF PROSECUTION – claim for damages for professional negligence and breach of contract – where claim only pursued against third defendant – where delay of twelve years from relevant events – where third defendant died prior to litigation – where pleadings amended after death of third defendant – whether absence of third defendant would prejudice case

Rules 3, 72, 280 and 372 of the Uniform Civil Procedure Rules 1999 (Qld)

Cooper v Hopgood & Ganim [1999] 2 Qd R 113, applied 

COUNSEL:

J McDougall for the applicant

F Dawson for the respondent

SOLICITORS:

Flower & Hart for the applicant

Bennett & Philp for the respondent

 

  1. McMURDO J:  This is a claim for damages for professional negligence and breach of contract which the plaintiff wishes to pursue only against the third defendant.  She is the executrix under the will of her late husband, Dr Kyrolis, and she was substituted for him as the third defendant by an order made late last year.  The plaintiff’s case is that the late Dr Kyrolis, a practising dentist, provided services to the plaintiff which were negligent and in breach of contract.  The plaintiff claims that he has suffered pain, distress and loss of amenities and that he has required and will require further dental treatment and care and assistance.  By his proposed Further Amended Statement of Claim, he would claim damages totalling approximately $105,000.00.  He seeks orders whereby the proceedings against the other defendants would be discontinued and his claim against the third defendant would be transferred to the District Court. 
  1. The third defendant applies to strike out the proceeding for want of prosecution. Her application relies upon the Court’s inherent power rather than rules 5, 280 or 371 of the Uniform Civil Procedure Rules 1999 (Qld).  If the plaintiff’s claim is not to be struck out, the orders he seeks would be appropriate.  The question is then whether the claim should be dismissed for want of prosecution. 

The Plaintiff’s Claim

  1. The plaintiff pleads that in late 1991 and early 1992 he received dental treatment from a practice carried on by the first named defendant, Mr Gorski, at premises at Buranda. He alleges that this treatment was provided by Mr Gorski himself, although he was a dental technician and not a qualified dentist, and by the fifth defendant, Dr Wilkinson, who was a qualified dentist. The treatment he received from these two men at Buranda is described in his pleading as “the first dental treatment”. He says that it was negligent treatment and left him with significant pain and discomfort. As I have mentioned, he no longer pursues Mr Gorski and it seems that he has never prosecuted this proceeding against Dr Wilkinson. Mr Gorski disappeared on Moreton Bay at some time prior to his being sued in this proceeding and has not been seen since. The third defendant and her solicitors are unaware of the whereabouts of Dr Wilkinson.
  1. The first dental treatment is relevant to the case against the estate of Dr Kyrolis in that he was treated by Dr Kyrolis allegedly for the purpose of rectifying the problems caused by it. He says that in September 1992 he went back to Mr Gorski’s surgery at Buranda and had some further work performed before he attended Mr Gorski’s surgery at New Farm in October and November 1992. It is common ground that at the New Farm surgery he received some treatment from Dr Kyrolis although, as I will discuss, there is and always has been a substantial contest as to what that treatment was. One of the plaintiff’s complaints is that Dr Kyrolis failed to do what a competent dentist would do to correct the work of Mr Gorski and Dr Wilkinson. The plaintiff pleads that Dr Kyrolis well knew everything which Mr Gorski and Dr Wilkinson had done in the first dental treatment and knew that “the plaintiff required proper re-preparation and re-undertaking of the first dental treatment”. That allegation has always been denied.
  1. The plaintiff alleges that he contracted with Dr Kyrolis, apparently upon the basis that Dr Kyrolis was a partner of Mr Gorski and provided his services to the plaintiff in that capacity. The Kyrolis Defence has always denied that allegation, apparently contending that Dr Kyrolis was effectively a sub-contractor of Mr Gorski.
  1. There is a substantial contest as to what work was performed by Dr Kyrolis. Until the provision of the plaintiff’s proposed Further Amended Statement of Claim in December 2004, the plaintiff’s pleaded case was that there were three occasions in October and November 1992 when he was seen by Dr Kyrolis. By the proposed pleading, the plaintiff would now allege that there were seven such occasions. If this case proceeds, that allegation of seven occasions would be denied.
  1. Quite apart from this new issue as to the number of times on which Dr Kyrolis saw the plaintiff, the pleadings have always shown a substantial issue as to what treatment was in fact provided. According to the plaintiff’s case, the Kyrolis treatment involved work on certain teeth which according to the Kyrolis’ Defence were not the subject of any such work by him. On the Kyrolis case, the only “substantive work” which he performed was to prepare a certain four teeth for veneers, which he did on 18 November 1992. It is said that he was not given any opportunity to “try in the veneers” because, in effect, the plaintiff angrily stormed out of his surgery on a subsequent visit (25 November 1992) before Dr Kyrolis was allowed to finish what was required. On the third defendant’s case then, Dr Kyrolis’ work was far from complete, and Dr Kyrolis had not purported to provide the necessary treatment at the time when the plaintiff chose not to return for it. But on the plaintiff’s case, Dr Kyrolis had purported to provide a complete treatment for his complaints, and he had done so in breach of contract and negligently.

History of the Proceeding

  1. The Writ of Summons was issued on 27 October 1994, but it was not served on Dr Kyrolis until nearly a year later on 5 September 1995. The Statement of Claim was delivered on 23 January 1996. Dr Kyrolis delivered his defence and a request for particulars on 14 March 1996, and at the same time advised the plaintiff that he held no relevant documents other than copies of clinical records. After amending his Statement of Claim in respects which were relevant to the case against Mr Gorski, the plaintiff provided further particulars in November 1996.
  1. According to the chronology submitted on behalf of the third defendant, the plaintiff provided a list of documents and affidavit of privilege in February 1997, although Dr Kyrolis is said to have requested disclosure from the plaintiff when providing his list of documents in November 1997. This probably means that Dr Kyrolis then sought some further disclosure. In December 1997 the plaintiff served his Statement of Loss and Damage and an expert’s statement. Nothing further happened until September 1998 when the plaintiff delivered interrogatories directed to Dr Kyrolis. After some correspondence, Dr Kyrolis agreed to answer them without an order, which he did in April 1999. In June/July 1999 there was some correspondence in which the plaintiff unsuccessfully sought the original clinical records from Dr Kyrolis who, it now seems clear, did not hold them. The plaintiff provided some further particulars in September 1999 and some further disclosure in October and November 1999.
  1. After a further seven months or so, the plaintiff delivered a Further Amended Statement of Claim in June 2000. Dr Kyrolis delivered an updated list of documents in September that year and made some additional disclosure in October. In December 2000 the plaintiff disclosed a then recent expert’s report.
  1. In January 2001 the plaintiff was examined by a specialist at Dr Kyrolis’ request and that person’s report was served in March 2001. On 8 March the plaintiff proposed mediation. Dr Kyrolis’ solicitors responded to the effect that they required complete information as to certain dental treatment received by the plaintiff after Dr Kyrolis’ involvement. Three months later (August 2001) Dr Kyrolis’ solicitors received the relevant information and records. In September 2001 Dr Kyrolis advised that he would attend a settlement conference but that was not held until 22 November 2001. The respective chronologies handed up in argument indicate that Dr Kyrolis was somewhat unresponsive to the suggestion of mediation, but that he was willing to engage in the settlement conference once he had that information about subsequent treatment.
  1. In April 2002 the plaintiff delivered a draft consent order to remit the case to the District Court and a signed request for a trial date. At that stage, the plaintiff’s case included a claim for impaired earning capacity which is now abandoned. Dr Kyrolis then (April 2002) requested disclosure of the plaintiff’s income tax records. He made a further request for that disclosure in August 2002 and at the same time he served an expert’s report.
  1. The plaintiff served an expert’s report in January 2003. After a further six months, the plaintiff took the step of serving a Notice of Discontinuance against all defendants except Dr Kyrolis. At the same time he again sought Dr Kyrolis’ consent for the case to be remitted to the District Court. After some correspondence as to the appropriate terms for the proposed orders, Dr Kyrolis signed the proposed consent order in November 2003. Nevertheless, for reasons which are not entirely apparent, the case remained in this court.
  1. On 3 January 2004, Dr Kyrolis, died. Later that month the third defendant’s solicitors said that they would be representing the executors of his estate. In March 2004, the third defendant’s solicitors advised that the plaintiff needed leave to proceed with the action pursuant to rule 72 of the Uniform Civil Procedure Rules.  In response to the plaintiff’s inquiries, the solicitors advised that the executrix was Mrs Kyrolis and that there was no insurer with an interest in this proceeding.  Eventually, in November 2004, the plaintiff served an application for the substitution of Mrs Kyrolis as third defendant together with his application for leave to discontinue against the other defendants.  Mrs Kyrolis’ application to strike out the proceeding was made returnable on the same date (3 December 2004).  On that day, Fryberg J made an order substituting Mrs Kyrolis as the third defendant and otherwise adjourned the application. 
  1. It is now more than twelve years since the events in question and more than nine years since the service of the writ upon the late Dr Kyrolis. The case is not especially complicated. Understandably, there were some difficulties caused by the disappearance of Mr Gorski and the fact that the clinical records held by his practice, insofar as they might relate to Dr Kyrolis’ treatment of the plaintiff, are of doubtful authenticity. Only a copy is available and Dr Kyrolis at no time held the original. A specialist who has subsequently treated the plaintiff and provided expert reports suggested in one of them that the clinical records appeared to have been re-written after the event. The uncertainty in relation to these records would provide an explanation for some delay, but the unavailability of uncontroversial records is also important to the question of whether there can now be a fair trial. The third defendant holds no relevant records apart from that copy of the clinical reports which came from Mr Gorski’s papers.
  1. I am unable to see how the plaintiff could have had any substantial difficulty in recalling in substance what treatment he received from Dr Kyrolis. At least when he commenced these proceedings, he was likely to have had some recollection of the number or approximate number of occasions on which he saw Dr Kyrolis and to have known in substance what treatment he received. It was then a matter of obtaining expert opinion on whether that treatment was appropriate and properly performed. I do not understand why this case was not tried within three or four years of its commencement if the plaintiff was always intending to prosecute it to judgment. There are more serious examples of delay than this case, but in my view the plaintiff’s failure to progress this case to a hearing well justifies a conclusion that he has failed to duly prosecute it. In particular, he has not proceeded in an expeditious way as required by UCPR rule 5.

Prejudice

  1. There are substantial issues between the parties for which the evidence of the late Dr Kyrolis was critical. Most importantly, there is the substantial dispute as to what work was actually performed by him and whether he was given a reasonable opportunity to perform such further work as he proposed to do to produce a satisfactory result. If the case is now to be tried, the third defendant will have to rely upon such statement or statements as her solicitors took from him. The plaintiff’s submission is that those statements will enable the third defendant’s case to be fairly put to the trial judge and will facilitate a fair trial. I cannot accept that submission. The contest as to the dealings between the plaintiff and Dr Kyrolis, and as to what treatment was performed by him, is one for which both the reliability and the credibility of the accounts of those two persons would have been relevant. A trial judge would have to consider those matters without the opportunity of hearing from Dr Kyrolis. The plaintiff’s submission is that, if anything, the third defendant would be advantaged by that circumstance because the Kyrolis version would not be subjected to cross-examination. That suggests that the course of cross-examination usually leads a court away from an acceptance of the testimony of a witness rather than towards it. But a further difficulty in that submission is that it assumes that if he were alive, Dr Kyrolis would have nothing more to offer in his evidence, regardless of what evidence was presented in the plaintiff’s case and otherwise emerged at the trial.
  1. One example of the potential for something to arise which would require particular instructions is the recently proposed amendment that the plaintiff was seen by Dr Kyrolis not on three occasions, but on seven occasions. According to an affidavit of the third defendant’s solicitor, his firm did not obtain instructions from Dr Kyrolis as to his whereabouts on each of the seven occasions now pleaded by the plaintiff. This is questioned by the plaintiff’s argument in which it was submitted that I should infer that instructions had been taken as to whether Dr Kyrolis was involved on each of these occasions, or that I should conclude that they should have been taken on that matter. Reliance is placed on a chronology sent by the third defendant’s solicitors to an expert witness in February 2002, in which there are comments against the dates in question which would seem to represent the then instructions from Dr Kyrolis. The third defendant’s case would be that Dr Kyrolis saw the plaintiff on 7, 18 and 25 November 1992, but not on the other occasions which the plaintiff would now allege to have been on 30 October and 2, 11 and 17 November 1992. The plaintiff argues that the notations in the chronology against at least 11 November 1992 and perhaps 30 October 1992 indicate that the solicitors had taken instructions from Dr Kyrolis to enable a fair response to the new case that Dr Kyrolis personally treated the plaintiff on those dates. As I read the notations on this chronology, the solicitors are likely to have taken instructions as to what Dr Kyrolis could remember doing and on what dates in relation to the plaintiff. That was in the context of the pleaded case against him being that he saw the plaintiff on but three occasions. Now that the plaintiff proposes to allege that there were seven occasions, matters of detail such as Dr Kyrolis’ whereabouts on particular dates would assume an importance which they did not previously have. I see no reason to doubt the evidence of the defendant’s solicitor that he did not take instructions on such matters and nor do I see that he should have done so. The plaintiff points out that in his amended statement of loss and damage, he foreshadowed a case of seven consultations, and that this statement was delivered in July 2003 some six months before Dr Kyrolis’ death. But that was not his pleaded case. Ultimately it is the plaintiff’s fault, by the undue prosecution of this case and this very late amendment to it, that no instructions as to what I have described as those matters of detail were obtained.
  1. I have mentioned the suggestion of some alteration of the clinical records. It is possible that a trial might involve some investigation of the timing of the alterations and of who was responsible for them. In that context, the absence of Dr Kyrolis could prejudice the third defendant’s case.
  1. In summary the position is that the third defendant would now have to contest a case in which much of the work which is said to have involved negligent treatment is not work which Dr Kyrolis said that he performed and in which the allegations of negligence are strongly disputed, all without the benefit of Dr Kyrolis’ participation at the trial either as a witness or as an instructor. And this is in a context where credibility is likely to be decisive. The third defendant’s case would not be at this disadvantage had this proceeding been prosecuted with any reasonable expedition. In my view, the interests of justice are best served by dismissing this claim for want of prosecution.
  1. The authorities indicate that this is a broad discretion for which there are many potentially relevant considerations: see eg those mentioned by McPherson JA in Cooper v Hopgood & Ganim [1999] 2 Qd R 113 and 124.  The relevance and relative importance of particular matters will vary of course from case to case.  As to such other factors it seems to me that there is no good explanation for the plaintiff’s delay, although in his favour is the fact that the case is relatively close to being ready for trial.  Indeed, that is a feature of the plaintiff’s delay here, because the case has been almost ready for trial for some years now.  I am unable to assess the relative strength of the plaintiff’s case which would greatly depend upon what the plaintiff could prove as to the extent of Dr Kyrolis’ involvement. 
  1. I conclude that the claim should be ordered to be struck out for want of prosecution. Subject to any further submission the plaintiff should be ordered to pay the third defendant’s costs of and incidental to the proceedings to be assessed on a standard basis.
  1. Against the other defendants, the plaintiff seeks to discontinue the proceedings. The fourth and eighth defendants have agreed to the proceedings being discontinued against them and no leave is required in their case. For the first defendant, the Public Trustee has advised that subject to there being no costs orders against it, it has no objection to the proceedings against the first defendant being discontinued without any further order. The fifth, seventh, eighth, ninth, eleventh and twelfth defendants were not served with the writ. The plaintiff should have leave to discontinue against each of them and against the first defendant on the basis that there be no order as to costs. That leaves the second, sixth and tenth defendants against whom the plaintiff will have leave to discontinue but on terms that he pay to such defendants their costs (if any) of the proceedings.
Close

Editorial Notes

  • Published Case Name:

    Taylor v Gorski and Ors

  • Shortened Case Name:

    Taylor v Gorski

  • MNC:

    [2005] QSC 43

  • Court:

    QSC

  • Judge(s):

    McMurdo J

  • Date:

    10 Mar 2005

Litigation History

No Litigation History

Appeal Status

No Status