- Notable Unreported Decision
- Appeal Determined (QCA)
Allianz Australia Insurance Limited v Corowa  QCA 170
ALLIANZ AUSTRALIA INSURANCE LIMITED
Appeal No 12771 of 2015
DC No 82 of 2012
Court of Appeal
Application for Leave s 118 DCA (Civil)
District Court at Mackay – Unreported: 19 November 2015
21 June 2016
1 June 2016
Morrison JA and North and Henry JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1. Application for leave to appeal dismissed.
2. The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COURT SUPERVISION – WANT OF PROSECUTION OR LACK OF PROGRESS – where the applicant made an application to dismiss proceedings for want of prosecution under r 280 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant seeks leave pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld) to appeal the decision below refusing the application – where the respondent claims damages for personal injury and loss suffered in consequence of the unlawful battery or alternatively negligent driving by the driver who was insured by the applicant – where the proceedings were characterised by prolonged periods of delay – where neither party was diligent in proceeding with litigation expeditiously – where the driver of the vehicle subsequently died and other witnesses memory has faded or cannot be located – where the applicant claimed the delay in advancing litigation, the death of the driver, fading memory and difficulty in locating witnesses prejudiced its defence – where contemporary signed witness statements admissible pursuant to s 92(1) of the Evidence Act 1977 (Qld) are available – whether the resultant delay and prejudice justified dismissing the claim and refusing the application – whether an appeal is necessary to correct a substantial injustice – whether there is a reasonable argument that there is an error to be corrected
District Court of Queensland Act 1967 (Qld), s 118
Evidence Act 1977 (Qld), s 92
Justices Act 1886 (Qld), s 110A
Motor Accident Insurance Act 1994 (Qld), s 37, s 41, s 51A, s 51B
Uniform Civil Procedure Rules 1999 (Qld), r 5, r 169, r 211, r 214, r 280, r 444, r 547
ACI Operations Pty Ltd v Bawden  QCA 286, cited
Grehan v Kann  QWN 40, cited
Pickering v McArthur  QCA 294, cited
R v Ogawa  2 Qd R 350;  QCA 307, cited
Rodgers v Smith  QCA 353, cited
Tyler v Custom Credit Corp Ltd & Ors  QCA 178, applied
G F Crow QC, with V Keegan, for the applicant
A Philp QC, with P W Moore, and R Armstrong for the respondent
Moray & Agnew for the applicant
Eureka Legal Pty Ltd for the respondent
 MORRISON JA: I have read the reasons of Henry J and agree with those reasons and the orders his Honour proposes.
 NORTH J: I agree with the orders proposed by Henry J for the reasons given by his Honour.
 HENRY J: The applicant insurer seeks leave to appeal a District Court Judge’s refusal of its application to dismiss a personal injuries action for want of prosecution.
 The decision below involved an unremarkable exercise of discretion and gave rise to no substantial injustice warranting the granting of leave.
 The respondent plaintiff’s case is that on 14 September 2009 he was walking on a footpath in suburban Slade Point, Mackay, when the first defendant Mr Winner intentionally drove his Commodore at the respondent and ran over the respondent’s right foot, causing serious injury to it. The respondent claims damages for personal injury and loss suffered in consequence of the unlawful battery or alternatively negligent driving of Mr Winner, as well as aggravated and exemplary damages for unlawful battery.
 The applicant, the second defendant insurer of Mr Winner, largely admits the act of driving at the respondent but pleads that in doing so Mr Winner acted in self-defence of himself and his family. Those family members were his grandmother, Joy Winner, and his then de facto, Erin Jaenke.
 There were delays in advancing the litigation, particularly after the filing of the claim. This was in part because the respondent, who has a lengthy criminal history, was in custody. In the meantime Mr Winner died, Joy Winner’s memory faded and there were difficulties in locating Erin Jaenke.
The application below
 The application below was brought pursuant to r 280(1) of the Uniform Civil Procedure Rules (“UCPR”) which provides:
(a) the plaintiff or applicant is required to take a step required by these rules or comply with an order of the court within a stated time; and
(b) the plaintiff or applicant does not do what is required within the time stated for doing the act;
a defendant or respondent in the proceeding may apply to the court for an order dismissing the proceeding for want of prosecution.”
 The steps the respondent should have but did not take within the time stated by the rules were delivery of a list of documents and service of a written statement of loss and damage, each required within 28 days of the close of pleadings, pursuant to rr 214 and 547 respectively.
 Proof of such non-compliance is sufficient to trigger an application pursuant to r 280 but will not of itself compel the exercise of the discretion to dismiss for want of prosecution.
 The applicant’s complaint below went generally to the circumstances of the respondent’s delay in advancing his litigation (“the delay issue”) and specifically to the prejudice occasioned in the meantime to the applicant’s defence (“the prejudice issue”) by:
(a) the death of Brenton Winner,
(b) the fading memory of witness Joy Winner, and
(c) difficulty in locating witness Erin Jaenke.
 The learned District Court Judge considered the matters raised in connection with the delay issue and prejudice issue did not justify dismissing the claim and refused the application. He ordered the respondent to deliver his list of documents and statement of loss and damage within 21 days.
 To appeal the decision below the applicant must seek the leave of this court, pursuant to s 118(3) District Court of Queensland Act 1967 (Qld).
 The circumstances under which the discretion to grant leave ought be exercised are not circumscribed by s 118(3) and ultimately the discretion to grant or refuse leave is exercisable according to the nature of the case. However leave will usually only be granted where necessary to correct a substantial injustice to an applicant and there is a reasonable argument there is an error to be corrected.
 If granted leave, the applicant seeks to agitate ten grounds, which go in various ways to the two main issues agitated below and or the reasons given in respect of them below. It is sufficient, in assessing whether there is any substantial injustice to correct, to consider the substance of those two main issues and the reasons given below in respect of them.
The nature of the discretion below
 Before doing so it is necessary to say something of the nature of the discretion that fell to be exercised below. In Tyler v Custom Credit Corp Ltd & Ors Atkinson J, with whom the President and McPherson JA agreed, listed 12 factors of potential relevance in considering an application to dismiss for want of prosecution (“the 12 factors”). The applicant submits it was necessary for the judge below to make specific findings of fact in respect of each of the 12 factors.
 However, in Tyler v Custom Credit Corp Ltd & Ors, after listing the 12 factors inclusively, Atkinson J went on to observe the discretion whether to dismiss a claim for want of prosecution is not fettered by rigid rules and requires consideration of all the relevant circumstances of the particular case. The relevant circumstances of some cases may require consideration of factors additional to the 12 factors and or render some of the 12 factors of such neutral significance as to not require discussion of them. The applicant’s submission the judge below was required to make findings on each of the 12 factors is therefore unsustainable.
 It is unnecessary for another judgment of this court to repeat the 12 factors in Tyler v Custom Credit Corp Ltd & Ors and sufficient for present purposes to note they prompt consideration of the progress and prospects of the action, the nature and extent of the delay, the reasons and responsibility for the delay and the consequences of it, including whether it “has resulted in prejudice to the defendant leading to an inability to ensure a fair trial”. They are all matters the judge below had regard to. As will become apparent from discussion of the two main issues below, there is no cause for concern that the judge failed to take any materially relevant circumstance of this case into account.
The delay issue
 The respondent filed his notice of accident claim form on 8 March 2010, within the time required by s 37 Motor Accident Insurance Act 1994 (Qld) (“the Act”). After a problem with deficiencies in the notice, the applicant eventually sent its notice denying liability in full on 13 October 2010, pursuant to s 41 of the Act.
 A compulsory conference was not held pursuant to s 51B of the Act until 27 August 2012, two years and five and a-half months after notice was given of the claim. The applicant made much of this delay below but gave no explanation for its failure to have called the conference earlier or applied for a court order fixing the time and place for the conference earlier, as it could have under s 51A. In the absence of such explanation the obvious inference is that it suited the applicant’s purposes to not advance the matter.
 Subsequent to the compulsory conference there was a timely filing of the statement of claim on 13 September 2012 and the defence on 12 October 2012. The pleadings closed on 26 October 2012. The respondent’s list of documents and statement of loss and damage would have been due to be served on 23 November 2012. They were not served by then, indeed they still had not been served by the hearing of the application below.
 The respondent had been sporadically incarcerated in the interim, in March 2013, June to July 2013, November 2013 to January 2014 and 21 May 2014 to 28 February 2015. His incarceration would inevitably have made the taking of instructions and compliance with the rules more difficult and inconvenient. However it did not alleviate his obligation to comply with them. Moreover there were periods when the respondent was not in custody and still failed to maintain regular contact with and respond to attempted contacts by his solicitor. He had entirely fallen out of contact with his solicitor in the lead up to the application, apparently only making contact again on the eve of the application.
 The respondent’s failure to have complied with the rules and advance the litigation for such a prolonged period was a significant consideration below. It was identified as such by the learned District Court Judge, who described the respondent’s approach as “casual in the extreme”.
 There is no doubt the respondent’s dilatory conduct was unacceptable. Considered in isolation it had the potential to justify a conclusion the claim ought be dismissed for want of prosecution. However it was not such as to make such a conclusion inevitable. In any event, the dilatoriness of the respondent did not fall for consideration in a vacuum, without regard also to the applicant’s historically ambivalent attitude to the pace of the litigation. The applicant’s conduct was relevant in that, pursuant to r 5 UCPR, all parties to litigation carry the obligation to proceed expeditiously.
 It was not until 29 July 2014, one year and eight months after the respondent’s list of documents and statement of loss and damage would have been due to be served that the applicant requested their delivery. This request was repeated the very next day in a letter from the applicant’s solicitor to the respondent’s solicitor, sent pursuant to r 444 UCPR, demanding service of the outstanding statement of loss and damage and list of documents within 14 days.
 The applicant’s inaction in not having taken such a course earlier in the intervening year and eight months again suggests it suited the applicant’s purposes to not advance the matter.
 The applicant’s initiation of activity on the file did at least continue for a few months. On 5 August 2014 the applicant’s solicitor sent a further email to the respondent’s solicitor seeking the outstanding statement of loss and damage and list of documents. On 6 August 2014 the applicant served its list of documents and statement of expert and economic evidence on the respondent.
 On 26 August 2014 the respondent’s solicitor advised the draft statement of loss and damage and draft list of documents had been prepared and would be delivered by 8 September 2014. That did not occur. On 9 September 2014 the respondent’s solicitor advised the applicant’s solicitor the signed statement of loss and damage and list of documents would be provided by 10 September 2014, but again that did not occur. On 12 September 2014 the applicant’s solicitor emailed the respondent’s solicitor advising a statement of loss and damage and list of documents were still outstanding. Still the applicant chose not to make an application to the court, despite its r 444 letter already having paved the way for an application to be made.
 On 2 October 2014 the first defendant Mr Winner died unexpectedly. It was not until nearly a year later that the application for dismissal for want of prosecution was filed, on 29 September 2015.
 It did not escape his Honour’s notice that the applicant had also been lax in its pursuit of the litigation. His Honour said:
“I note that six years has elapsed since the relevant accident occurred. However, the first three years of that period were occupied by the pre-court procedures required by the legislation. Since that time, it seems to me that neither party can be said to have been particularly diligent in trying to move the matter along towards trial. Indeed, as is pointed out by the respondent plaintiff, it was only in the course of preparation for the hearing of this application that the defendants disclosed to the plaintiff an investigative report which had apparently been in the defendant’s possession since July of this year. Having considered all of those matters, I do not think there is anything in them that would justify striking out the plaintiff’s action.”
 The above reference to the disclosure of an investigative report was an irrelevant consideration in that the report merely went to investigations as to the whereabouts of the witness Erin Jaenke, an issue relevant to the application rather than to an allegation in issue in the pleadings, per r 211. However that was an inconsequential error in the use of an example and the court will not ordinarily grant leave to correct error of only academic interest. A better example would have been that the applicant waited until 6 August 2014 to serve its list of documents and statement of expert and economic evidence on the respondent. In any event the above outlined history of the applicant’s historical ambivalence towards the pace of the litigation amply supported his Honour’s conclusion the applicant had not been particularly diligent in trying to advance the litigation.
 The applicant’s inaction during extended periods held a somewhat greater than ordinary significance in this case, particularly given its complaint as to prejudice.
 It will be recalled the applicant admitted that Mr Winner intentionally collided into the respondent but pleaded that was done in self-defence or aiding in self-defence. Those are defences under the Criminal Code (Qld), either of which, if applicable, would be a complete defence to the respondent’s action, pursuant to s 6(1) Criminal Code Act 1899 (Qld). In a civil action the onus of proving such a defence lies upon the defendant. The applicant knew it was facing litigation in which it carried an onus of proof.
 It is well known in litigation that the passage of time makes it more difficult to prove facts if and when a trial eventually occurs. Memories fade. Witnesses may die, become incapable of testifying or no longer be able to be found. Here the applicant complains such problems have now manifested themselves yet it well knew it had the onus of proving self-defence or aiding in self-defence. It well knew there was a risk that delay might make it more difficult for it to discharge its onus of proof. That, armed with that knowledge, the applicant elected not to be more proactive in earlier advancing the litigation, detracts from the force of its argument that the respondent’s delay was the cause of the prejudice of which the applicant now complains.
 For example, the applicant did not put its own house in order by serving its list of documents and statement of expert and economic evidence on the respondent until 6 August 2014. It was therefore in no position to even begin agitating for the listing of the trial until then, which was only two months prior to Mr Winner’s death. It is unlikely, even if the respondent was ready for trial, that once the applicant finally complied with its disclosure obligation on 6 August 2014 it would have secured a trial listing so that the trial would have been heard prior to Mr Winner’s death on 2 October 2013. This illustrates the weak causal connection between the respondent’s delay and the prejudice flowing from Mr Winner’s death.
Discussion: the prejudice issue
 Further to that weakness, the prejudice said to flow from the respondent’s delay is also not as serious as contended for. Understanding the true extent of the prejudice requires an appreciation of the helpful extent to which the accounts of Mr Winner, Joy Winner and Erin Jaenke were recorded in signed statements by them.
 Mr Winner’s collision with the respondent was investigated by police who, on the day of the episode, took a signed nine-page witness statement from Mr Winner, endorsed by him with an acknowledgement as to its truth under s 110A of the Justices Act 1886 (Qld). The effect of that statement is as follows. Mr Winner, then 21, lived with his de facto partner, Erin Jaenke, and their baby daughter at the home of his grandmother, Joy Winner, at Slade Point. Earlier on the afternoon of the collision, when Mr Winner reversed his vehicle from the premises, three men nearby, one of whom was the respondent, took exception to how close the vehicle had gone to them. They proceeded to strike Mr Winner’s car, threaten him with violence, enter the Winner’s yard, abuse and threaten Ms Jaenke and assault Mr Winner. They eventually departed, throwing rocks at the house and saying they would be back. The police arrived and left. Later, when Mr Winner went to a local shop, the three men again threatened they were going to get him and threw a bottle at his car, damaging it. Mr Winner reported this to the police and returned home. A short time later, when Joy Winner was putting rubbish in a bin outside and Mr Winner was moving his car, the three men arrived and the respondent started assaulting Joy Winner with something in his hand. Mr Winner manoeuvred and revved the car threateningly but to no avail. He saw the respondent continue to assault his grandmother and also Ms Jaenke who had also come outside. The other two men armed themselves with fence palings and entered the fray, motioning as if to hit the women. The respondent again appeared to be striking at Joy Winner, wielding something that Mr Winner by this point thought was an axe. Mr Winner manoeuvred his car threateningly towards and away from the respondent who continued assaulting Joy Winner, still wielding an object up and down towards her. It was at this point that Mr Winner drove his car at the respondent and struck his foot. The respondent limped away, the other two men ran off and the police attended.
 Two days later, on 16 September 2009, Joy Winner provided a signed witness statement to police. Her description of events when the men returned to the house focussed principally upon what was done to her. She apparently did not witness Mr Winner’s car strike the respondent. She stated she at first thought an object in the hands of an assailant, who was likely the respondent, was a rock but later in the episode she thought it was a gun. Mr Winner had not stated the object was a gun in his statement to police.
 The applicant’s investigator took signed witness statements from Mr Winner, Joy Winner and Erin Jaenke on 27 September 2010.
 Mr Winner’s statement to the insurer’s investigator described the episode in similar though not identical terms as his police statement. He described how each time he drove his car towards the respondent threateningly, the respondent would try and get into the car. Immediately prior to the car striking the respondent Mr Winner stated the respondent had actually chased after his car and was pointing a handgun at him. According to this statement, that was when Mr Winner realised the respondent was holding a handgun, not an axe. He stated he drove at the respondent intending to hit him, thinking that was the only way he could defend himself, Ms Jaenke and his grandmother.
 Joy Winner’s statement to the insurer’s investigator was in generally similar terms to her police statement. In it she described the gun as a little handgun.
 Erin Jaenke’s statement to the insurer’s investigator confirmed two of the assailants were armed with fence palings and the respondent was wielding a handgun during the episode. She described him swinging it above her head in a chopping motion as if he was going to hit her. On her account the Commodore struck the respondent at a time when the respondent was running around it trying to smash its windows. She stated the respondent would not have been injured if he had not been running around the car trying to smash its windows.
 The existence of this helpful array of signed witness statements is significant because of s 92 Evidence Act 1977 (Qld). Pursuant to s 92(1) such statements are admissible if their maker is called as a witness and pursuant to s 92(2) such statements are admissible without the need to call the person who made them if, inter alia:
“(a)the maker or supplier is dead, or unfit by reason of bodily or mental condition to attend as a witness; or …
(c)the maker or supplier can not with reasonable diligence be found or identified; or
(d)it can not reasonably be supposed (having regard to the time which has elapsed since the maker or supplier made the statement, or supplied the information, and to all the circumstances) that the maker or supplier would have any recollection of the matters dealt with by the statement the maker made or in the information the supplier supplied; …”
 It follows by reason of Mr Winner’s death that both of his statements are admissible. That is, despite Mr Winner’s death, the applicant will still be able to place his account of events into evidence by tendering his statements.
 The learned District Court Judge correctly described those statements as “detailed accounts”. His Honour went on to observe:
“[C]ounsel for the defendant says that the defendant would be at a significant disadvantage by reason of being unable to take instructions from the first defendant during the course of the trial. It seems to me that the plaintiff might complain equally that he has lost the opportunity to cross-examine the first defendant, which he might usefully have taken advantage of having regard to some obvious inconsistencies that exists between the two statements that the deceased man provided.
So it is arguable that there is a disadvantage to the tribunal of fact consequent upon the first defendant’s death, but I do not think it can be concluded that it is all one way or that it makes the prospect of a fair trial impossible, nor does the death so prejudice the prospect of a fair trial as to lead me to think that the action should be struck out now.”
 His Honour’s above reference to the “disadvantage to the tribunal of fact consequent upon the first defendant’s death” involved some infelicity of expression in what were orally delivered reasons. It is clear from the broader content of his remarks that his Honour properly considered the disadvantage likely to be occasioned to the applicant at trial by the death of Mr Winner.
 The applicant emphasised it is inevitable some disadvantage will flow against a party at trial in consequence of the pre-trial death of that party’s main witness. However that is to say nothing of whether the disadvantage to that party is of such a degree, in the particular circumstances of the case, as to preclude a fair trial. The disadvantage will obviously be greater in a case where the main witness has not given an admissible account of events than in a case such as the present where the main witness provided two detailed witness statements, tenderable under the Evidence Act.
 Moreover the circumstances of the case may be such that the death of a party’s main witness also carries some advantage for that party and or disadvantage for an opponent. For instance, in the present case there is an obvious inconsistency between Mr Winner’s statements as to whether he observed the respondent wielding a gun. The respondent would inevitably expose that inconsistency at trial. It is true Mr Winner’s death will deprive the applicant of a chance for Mr Winner to explain that inconsistency. However it will also deprive the respondent of a chance to cross-examine Mr Winner about the inconsistency, an inconsistency he may have struggled to sensibly explain in the witness box. It will also leave the applicant’s counsel with the forensic freedom in submissions to formulate and advance considered hypotheses for the inconsistency.
 In the circumstances of this case the conclusion below that Mr Winner’s death did not prejudice the applicant’s prospect of a fair trial to such a degree as to justify dismissing the claim was uncontroversial.
 As to the supposed prejudice relating to the other two witnesses, there was simply no substance to those complaints.
 The prejudice raised in respect of Joy Winner was said to be evidenced by the following passage in the affidavit of the applicant’s solicitor:
“I have spoken to Mrs Joy Winner personally by telephone and she told me the following –
(i) she is now 74 years of age; and
(ii) she is unable to recall independently the sequence of events leading to the plaintiff’s injury although she does recall the events generally of the day.”
 It is hardly surprising that a witness of any age when spoken to by telephone some years after an event might indicate she has a general recollection of the event but has difficulty as to the sequence of it. When such a witness is given the time and advantage of refreshing her memory from her two witness statements, as she presumably will when properly conferred with in pre-trial conference, it is likely her memory will be refreshed. Moreover, as long as she is called at trial, s 92(1) would permit the tender of her statements.
 As to Erin Jaenke, the assistance she would bring to the applicant’s case if called is doubtful. True it is she confirms the wielding of a gun but her account of events in the immediate lead up the collision is inconsistent with Mr Winner’s. In any event it is not even apparent that she cannot with reasonable diligence be found.
 The applicant’s solicitor deposed to “extreme difficulty” in locating her. No particularity was given of that difficulty other than asserting a report from Brooksight Investigations demonstrates that Ms Jaenke “either cannot be located or wishes not to be located.” That report was exhibited to a later affidavit by the applicant’s solicitor. It falls well short of showing Ms Jaenke cannot be located or wishes not to be located.
 On the face of the report the investigator was tasked with obtaining a statement from Ms Jaenke as a person known to live at an address in Dysart and was not tasked with undertaking comprehensive searches to locate Ms Jaenke on the basis her whereabouts were unknown. The investigator apparently did not attempt to speak to Ms Jaenke’s mother at Dysart and, other than liaising with police at Dysart, the only additional enquiry into Ms Jaenke’s whereabouts was via Facebook. The report provides no basis to conclude Ms Jaenke cannot with reasonable diligence be found. That conclusion is fortified by extracts from Ms Jaenke Facebook obtained by the respondent’s solicitor.
 His Honour observed of the alleged problems in respect of Joy Winner and Erin Jaenke:
“It is to be noted that there are some eyewitnesses available to give evidence about the facts. There may be some difficulty contacting them. It may be that, to some extent, their recollection will be found to have been dulled by the passage of time. That, however, it seems to me, is a feature of modern litigation when matters are often tried years after the relevant events occurred.”
 Given the evidence of supposed prejudice relied upon in connection with Joy Winner and Erin Jaenke was so obviously deficient it was unnecessary for his Honour to deal with either in any greater detail.
 His Honour encapsulated the true merit of the issues below with this concluding observation:
“In short, it seems to me that neither party has been diligent in pressing the matter forward and there is not significant prejudice to either side in allowing the matter to continue now.”
 The decision below involved a sound exercise of discretion, free of material error and there is no injustice to correct. The application for leave to appeal should be dismissed.
 The respondent sought costs. Nothing was advanced to suggest costs should not follow the event. The respondent should have its costs.
 I would order:
- Application for leave to appeal dismissed.
- The applicant pay the respondent’s costs of and incidental to the application to be assessed on the standard basis.
 ACI Operations Pty Ltd v Bawden  QCA 286.
 Pickering v McArthur  QCA 294, Rodgers v Smith  QCA 353 .
  QCA 178.
 Ibid .
 AR 70-75.
 AR 76.
 AR 77.
 R 169 UCPR.
 R 214 UCPR.
 AR 107.
 AR 249 L40.
 AR 250.
 R v Ogawa  QCA 307, .
 Sections 271, 273.
 Grehan v Kann  QWN 40.
 AR 50-58.
 AR 59-63.
 AR 180-183.
 AR 64-69.
 AR 38.
 AR 38-39.
 AR 193-194.
 AR 166-170.
 AR 251.
 The applicant did not pursue a complaint about a failure to take into account the applicant’s purported inability to find another witness, Tricia Hodge.
 AR 251.
- Published Case Name:
Allianz Australia Insurance Limited v Corowa
- Shortened Case Name:
Allianz Australia Insurance Limited v Corowa
 QCA 170
Morrison JA, North J, Henry J
21 Jun 2016
- White Star Case:
|Event||Citation or File||Date||Notes|
|Appeal Determined (QCA)|| QCA 170||21 Jun 2016||-|