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- Notable Unreported Decision
- Appeal Determined (QCA)
Kleeman v The Star Entertainment Group Limited QCA 119
SUPREME COURT OF QUEENSLAND
Kleeman v The Star Entertainment Group Limited & Anor  QCA 119
THE STAR ENTERTAINMENT GROUP LIMITED
ABN 85 149 629 023
THE STAR ENTERTAINMENT QLD LIMITED
ABN 78 010 741 045
Appeal No 1024 of 2021
SC No 12236 of 2018
Court of Appeal
Application for Extension of Time/General Civil Appeal
Supreme Court at Brisbane –  QSC 332 (Ryan J)
5 July 2022
20 July 2021
Sofronoff P and Fraser and Mullins JJA
Application dismissed with costs.
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – where the applicant brought a personal injury claim against the respondents claiming to have suffered a permanent physical injury – where the applicant appeared for himself throughout the proceedings – where the trial judge granted the respondents’ application to dismiss the proceedings, with costs, after the applicant failed to appear on the second, third and fourth days of trial or to comply with directions to appear or supply an adequate explanation for his failure to appear – where the applicant seeks a re-trial and the order of the primary judge be set aside as the orders were made in the absence of the applicant– where the defendants have a general law entitlement to dismissal where a plaintiff who bears the onus of proving a claim withdraws from the trial without having fulfilled that onus – where there is no substantive explanation for the applicant’s failure to appear at the subsequent days of trial or for the delay in appealing – where the incontrovertible evidence showed that no different outcome for the applicant would result from a re-hearing on the merits – whether there was a miscarriage of justice
Personal Injuries Proceedings Act 2002 (Qld)
Uniform Civil Procedure Rules 1999 (Qld), r 370, r 476, r 667
Armour v Bate  2 QB 233;  UKLawRpKQB 106, cited
Mango Boulevard Pty Ltd v Spencer  QCA 207, cited
The applicant appeared on his own behalf
B F Charrington and D M Cormack for the respondents
The applicant appeared on his own behalf
Moray and Agnew Solicitors for the respondents
- SOFRONOFF P: I agree with Fraser JA’s reasons and with his proposed orders.
- FRASER JA: On 29 October 2020 the trial judge (Ryan J) ordered the dismissal of the applicant’s claim against the respondents for damages for personal injuries, with costs. The applicant appeared for himself throughout the proceedings. The orders were made after the applicant failed to appear at any of the second, third and fourth days of the trial of his claim or to comply with directions made by the trial judge that he appear or supply medical evidence that adequately explained his failure to appear.
- The time for appealing from those orders expired on 27 November 2020, 28 days after they were pronounced. Two months later, on 28 January 2021, the applicant filed an affidavit which exhibits a draft notice of appeal seeking an order for a re-trial. The substantive content of the draft notice of appeal accords with the content of an application he filed on the same day seeking an extension of time “due to medical reasons” and the admission of new evidence in the proposed appeal. The application also states “Err in judgment (rule 667 sub-rule 2(a) the orders was made in the absence of a Party”, it contends the applicant had been incapacitated because of “Extreme Medical reasons”, and it contends it is in the interests of justice to set aside the orders.
- The basis of the proposed appeal is set out in the applicant’s outline of argument filed on 20 April 2021. The applicant elaborated upon that outline in oral argument. The applicant contends he was denied natural justice and the conduct of the trial was unfair, because, as a result of his becoming ill whilst in the witness box, his evidence in chief was not completed and he was unable to present his case. He contends his material adequately explains why he did not attend the trial after the first day and it is in the interests of justice to allow the appeal.
- In order to address the applicant’s application for an extension of time within which to appeal and his reliance upon Uniform Civil Procedure Rules 1999 (“UCPR”) r 667(2), it is necessary to refer in some detail to the course of proceedings in the Trial Division.
Proceedings in the Trial Division
- In August 2016 the applicant gave a notice of claim under the Personal Injuries Proceeding Act 2002 in which he alleged he was injured in an incident at Jupiters Casino on the Gold Coast on 15 November 2015. In 2018 the applicant filed a claim for damages for personal injury against the respondents. He went to trial in October 2020 on an amended statement of claim.
- That statement of claim pleads allegations to the following effect:
- (a)On 15 November 2015 the applicant and Miss Jackson arrived by car at a hotel then called Jupiters Hotel & Casino Gold Coast.
- (b)The first respondent was the owner and operator of the property and the second respondent was the occupier and Casino License Holder for the property.
- (c)The applicant moved a nearby luggage trolley to the rear of his vehicle. The applicant engaged the trolley footbrake. He and Miss Jackson started to unload their luggage onto the trolley. Employees of the respondents arrived. They saw the large amounts of luggage in the car. The applicant and one employee assisted in unloading the remaining luggage.
- (d)The applicant then went to the front driver’s side door to check he had his wallet, Miss Jackson was waiting at the rear of his car, and she loaded another suitcase onto the trolley.
- (e)“I walked to the rear of the vehicle and the luggage trolley brake failed to secure its load on the uneven descending slope at main entrance of the Hotel. The trolley then rolled off and it’s wheels tip over gutter and smashed into my body and vehicle.”
- The statement of claim pleads in very general terms that the respondents breached their duty of care to the applicant by “not providing a safe entry”, “not fully completing work tasks expected by hotel patrons”, “failing to act to see a foreseeable risk of causing injury”, “providing unsafe equipment”, “lack of effective control for the work environment”, and “failure to its guests within the areas of work responsibility”.
- The only facts pleaded as support for those conclusions are:
- (a)Neither employee “checked that the trolley brake was in satisfactory working order to prevent a foreseeable risk of the trolley rolling off its brake and down a sloping entry that may cause injury or harm to a Hotel patron or person”.
- (b)The respondents did not warn the applicant “that foyer entry had an uneven slope descending to the Kerb gutter and road entry where my vehicle was parked” and neither employee “checked the distance of the trolley to the sloping kerb gutter”.
- The statement of claim pleads that “As a result of the impact of the trolley into my body I suffered permanent physical damage to Spine and Disc L5/S1, past and future economic Loss due to chronic back pain and unable to work due to impact from the trolley.”
- The pleaded case depends upon the allegations about a defective brake set out in (e) and (a). Nothing of substance is added by the allegations set out in (b) above. Those allegations are not supported by any pleaded fact that might justify a finding that the alleged failure to warn or the alleged failure to check the distance was a separate cause of the trolley’s collision with the applicant.
- Making some implications in the applicant’s favour, the applicant’s pleaded case was as follows:
- (a)The trolley brake was defective.
- (b)The area on which the trolley stood sloped down towards the kerb.
- (c)In consequence of the defect in the trolley brake it did not prevent the trolley from rolling down the slope to the kerb and into collision with the applicant.
- (d)As a result, the applicant suffered permanent physical damage to his spine and disc L5/S1, with consequential past and future economic loss and pain.
- (e)The respondents were vicariously liable for the applicant’s loss and damage because the movement of the trolley down the slope into collision with the applicant was caused by the negligent failure of the respondents’ employees to ensure the trolley brake was in working order.
- The respondents’ amended defence denies the first respondent was the owner and operator of the hotel and admits the second respondent was the occupier and casino license holder for the premises. As to the incident pleaded by the applicant, the defence pleads:
- (a)There was no uneven slope between the hotel entrance and the kerb.
- (b)The applicant declined the assistance in unloading his car offered by an employee of the second respondent. When the trolley was apparently completely loaded, the employee of the second respondent was advised by the applicant that he had arranged valet parking. That employee then left to obtain a valet parking ticket for the applicant.
- (c)During the period of 30 seconds whilst that employee was absent, Miss Jackson took a large item from the car and attempted to load it into the full trolley, which caused the trolley to swing towards the passenger side of the car. At that time the applicant was not in the path of the trolley. When he saw the trolley start to swing, he moved from the rear of the car into the path of the trolley.
- (d)The brakes on the trolley were applied when the incident occurred. The cause of the incident was not the trolley “rolling off its brake”. It was Miss Jackson attempting to load a large item onto the full trolley during the short period when the second respondent’s employee was obtaining the valet parking ticket for the applicant.
- The defence:
- (a)Denies the applicant suffered an incident related spine and disc L5/S1 injury.
- (b)Denies the applicant had suffered any past or future economic loss because of the incident.
- (c)Alleges the applicant was not employed when the incident occurred, he was then a carer for Miss Jackson, and after the incident he continued to act as Miss Jackson’s carer and to perform all daily domestic duties at their shared residence.
- (d)Alleges the applicant was responsible for driving and household maintenance, he cooked seven meals per week, he performed all general cleaning, vacuuming and cleaning the bathroom at their shared residence, and he undertook all grocery shopping for himself and Miss Jackson.
- In the course of the proceedings in the Trial Division, the respondents identified and asked the applicant to remedy inadequacies in the applicant’s statement of claim. Various orders were made requiring the applicant to amend his pleading and extending time for that purpose, on 29 May 2019, 24 June 2019, 24 July 2019 and (in relation to the amended claim and statement of claim filed on 2 August 2019) 13 March 2020, and 11 June 2020. In mid-July 2020 the matter was listed for trial commencing on 26 October 2020. That occurred despite the applicant’s failure to amend his statement of claim to rectify pleading deficiencies in it. When listing the matter for trial Boddice J again extended time for the applicant to amend.
- At a pre-trial review before the trial judge on 2 October 2020, it was submitted for the respondents that the applicant’s pleadings were deficient and he had insufficient evidence to establish his claim for damages. The applicant confirmed he would not be calling any witnesses in relation to his claim for damages.
- On the first day of the trial, 26 October 2020, the respondents objected that the applicant’s amended statement of claim remained non-compliant with the relevant procedural rules, especially insofar as it asserted loss and damage. The trial judge accepted the respondents’ contention that the applicant’s case was irregularly pleaded but was prepared to treat the applicant’s statement of loss and damage as his pleading of that element of the claim and allowed the applicant to open his case and give evidence.
- In opening the case at the trial, the applicant identified the witnesses he would call as himself, Miss Jackson and Mr Smith. The applicant initially proposed to tender an audio recording taken after the incident of statements made by an employee of one of the respondents, Mr Smith, and the applicant and Miss Jackson. In the course of submissions, however, the applicant acknowledged the audio recording was hearsay upon hearsay. The trial judge ruled that this evidence was inadmissible. The evidence the applicant intended to adduce from Mr Smith appears to have been a statement by him concerning something uncontroversial he saw on CCTV footage of the incident disclosed by the respondents and evidence verifying the inadmissible audio recording. The trial judge upheld the respondents’ objection to the admission of Mr Smith’s evidence. None of these rulings is in issue in this Court.
- The applicant did not in his opening give any description of the incident in which he claimed to have been injured despite being asked three times to open what he was going to say in evidence about it. The respondents made it clear they would be relying upon the CCTV footage of the incident in their case. At one point the applicant said the CCTV “shows the incident from an advantage side of the defendants, in terms of editing and modifying” but, after the respondents’ counsel sought clarification of that comment, the applicant acknowledged the CCTV portrayed everything the applicant wanted the court to see, the angle would be obvious to the trial judge, and the trial judge would be able to see any obvious modifications. The applicant accepted that the CCTV footage represented the relevant incident and opened that it would be evidence in his own case.
- The applicant opened that he did not decline any assistance (from the employees of the hotel in unloading his car), but he also stated he offered to take out some of the heavier boxes, he “thought I was assisting them with some of the heavier items and, on the [CCTV] footage, it will show that they actually did help and did unload at certain points”.
- Notwithstanding that the respondents had made clear before the trial their contention that the applicant had insufficient evidence to establish his claim for damages, and consistently with the applicant’s stance at the pre-trial review, the applicant did not open any witness capable of giving expert opinion evidence about the existence, cause, or consequences for the appellant of the only injury he pleaded was caused by the collision, the alleged permanent physical damage to his spine and disc L5/S1.
- The applicant was sworn and gave the following evidence. After arriving at the hotel by car, he took a trolley to the rear of the vehicle to start unloading it, Miss Jackson went to look for assistance. The concierge or doorman or valet parking attendant came to their assistance. The applicant explained there was a lot of luggage in the car. The applicant said he (the applicant) would get the “heavy stuff” and asked the doorman to get “the other stuff”. One of the hotel representatives asked the applicant if he required valet parking. The applicant said he did. The hotel representative said, “I got a ticket” or something and he went to do something. The applicant then went to the front of the vehicle to get something out. He then went to the rear of the vehicle to check what else was in there, and “all of a sudden, I was just – the trolley just came flying out…I had…a millisecond to work out what was happening…and…my foot was wedged between the gutter…I put my arm up to protect…then the whole trolley with his its full weight smashed into both parts here and the…front wheels landed on top of my foot…I was quite stunned”. The applicant described him blocking the trolley with his left shoulder, and the trolley impacting with his lower left side, between the shoulder and the elbow (leaving an abrasion) and around the hip area or perhaps a little higher than the hip.
- The applicant gave evidence he was stunned, he felt pins and needles in his feet, tingling in his left arm, and a very pulsating and sharp discomfort in his back area. When the plaintiff referred to having a CT scan about 10 days afterwards, counsel for the respondents objected to him giving evidence about the contents of radiological reports. Counsel for the respondents argued that neither that nor any of the other documents the applicant sought to tender to prove his case were admissible, because none of the witnesses responsible for the documents were to be called by the applicant. The trial judge referred the applicant to the objection to the admissibility of opinions about causation or damage in medical reports the applicant sought to tender and explained that the author of the content of the particular document needed to be called as a witness. The applicant told the trial judge that he hadn’t disclosed the other documents he sought to tender because he had “only just come across them”.
- It then emerged that the applicant did not even have in court many of the reports he wished to tender or copies of them. He stated he could arrange copies of the reports to be at court on the following day. He did not identify a basis upon which any of the medical reports might be admissible in evidence.
- The applicant gave evidence of having suffered extreme pain after the incident, from which he could get relief only by lying flat on a floor. He referred to many activities in which he said he could no longer participate. When the applicant was asked how he calculated his claim of past economic loss ($493,178.40) he referred to tax returns and notices of assessment. He said he did not have the documents with him but he could produce them on the following morning. He gave similar evidence about his claim for future economic loss of about $1,380,000.00. He was unable to give any meaningful explanation of how he had calculated his claim for pain and suffering.
- By this time the trial was obviously going very badly for the applicant. The trial judge summarised the case in the following terms:
“…the plaintiff had made no attempt to obtain even a rudimentary understanding of the way in which to prosecute his claim.
Notwithstanding voluminous, regular and patient correspondence from the defendants’ solicitors to the plaintiff, pointing out what he needed to prove and the gaps in his pleading and his evidence, it was obvious from the plaintiff’s opening and his evidence-in-chief that he had no idea of the elements of his cause of action; no idea of the evidence which he would require to establish each of those elements of his cause of action; and no idea of the way in which a party may place evidence before a court.”
- After giving the evidence I have outlined, the applicant asked for an adjournment so that he could go to the toilet. When the applicant returned to the courtroom, he said he was not feeling well and he felt a bit of nausea. He sought and was granted an adjournment for the balance of the day.
- Before 10 am on the second day of the trial (27 October 2020), the trial judge’s associate received an email from the applicant in which he stated he was still unwell and he was unable to attend the trial that day. He apologised for the inconvenience and stated he would seek medical help. The trial judge excused the plaintiff from attending court at 10.00 am that day.
- The trial judge also directed the applicant to produce medical evidence which explained his absence, by 4.30 pm on the afternoon of that day and directed the applicant to appear at 10.00 am on the following, third day of the trial. The applicant was informed of those directions by an email sent to him shortly after 10.30 am on the second day of trial. The email communicated the respondents had given notice that if the applicant failed to provide evidence of a valid medical reason for his absence from court that day or failed to attend court on the third day of the trial, the respondents would apply for judgment and would have witnesses available to give evidence if required.
- During the afternoon of the second day of the trial the applicant sent to the trial judge’s associate an email which stated “As directed by Her Honour,” and a reference to an attached certificate signed by Dr White. The certificate stated the applicant “Is suffering from a medical condition and will be unfit to continue their usual occupational duties for the period 27/10/20 to 28/10/20 inclusive”. Also enclosed was a copy of what appears to be a screenshot from “Doctors on Demand” (referred to in the heading of Dr White’s certificate) advising that Dr White had sent the applicant’s script by fax and email to a chemist.
- The primary judge inferred that on the strength of an online consultation, Dr White was prepared to sign a proforma document which purported to be a medical certificate. The trial judge considered the medical certificate, or document purporting to be a medical certificate, was a completely inadequate response to her direction.
- The document does not describe the applicant’s “usual occupational duties”, his “medical condition”, or any effect upon him of such condition. Nor is the question whether the applicant could perform “usual occupational duties” the relevant question. In the context of the extensive public and private resources invested in a four day trial in the Supreme Court, I agree that this document did not adequately explain the applicant’s absence from the trial.
- That is not to say that it would have been appropriate for the trial judge forthwith to refuse an adjournment and proceed upon the basis that the plaintiff had failed to appear. The trial judge did not adopt such an approach. Instead, shortly before 4.30 pm on the same day, the trial judge’s associate sent an email to the applicant, informing him that the trial judge had given him leave to appear by telephone, if he was not able to appear in person. The email explained how the applicant could telephone the court to appear at 10.00 am on the following day.
- At 8.13 am on the morning of the following day, 28 October (the third day of the trial), the applicant sent an email to the trial judge’s associate which referred to the trial judge’s direction and stated the applicant was “not in a position to communicate today”. The applicant did not dial into the courtroom before or after the court resumed at 10.00 am in the presence of the respondents’ legal representatives. At 11.14 am on the same day, the trial judge’s associate sent an email to the applicant confirming court would reconvene at 11.30 am and informing him the telephone line would be open for him to dial into court. About 10 minutes later the applicant responded by email, “I have gastro. As I said I can’t communicate”. That email included a screenshot of a prescription for the drug Ondansetron.
- Clearly enough, the applicant had not by this time supplied any medical evidence explaining his absence at the trial. He did not do so thereafter.
- The respondent’s counsel foreshadowed to the trial judge an application to dismiss the proceeding under rule 370 of the (UCPR). At 12.50 pm on the same day, the Civil List Manager informed the applicant of the trial judge’s directions that the applicant provide to the court (by way of email to the trial judge’s associate) and to the respondents’ solicitors by way of email “a medical certificate that adequately explains his absence from court yesterday, 27 October 2020 and today, 28 October 2020, by 4.00 pm today”, and the applicant was directed to attend at Court in person or by telephone at 10.00 am on the following day, 29 October 2020 (the fourth day of the trial). The email notified the applicant that if there were non-compliance with either of those directions the court would entertain an application under UCPR rule 370(2)(b) at 10.00 am on 29 October 2020. The applicant did not appear by telephone or otherwise at 10.00 am on the fourth day of the trial, 29 October 2020, or at any time before judgment was given at 12.54 pm.
- In this Court it was submitted for the respondents that the applicant had not applied for an adjournment of the trial. I would accept that upon the evidence before the trial judge there were substantial grounds for scepticism about the genuineness of the applicant’s suggested inability to communicate with the court even by telephone. I would also accept it was open to the trial judge to infer that by the time the applicant left the courtroom after giving evidence he must have appreciated that his case was going very badly. But the applicant had not communicated that he did not wish to pursue the claim he had pursued for some years up to that point. In this context, although the applicant did not use the word adjournment, his assertions to the effect that he was too ill to participate in the trial amounted to applications for an adjournment. The trial judge did not grant an adjournment.
- The trial judge then entertained and ultimately granted the respondents’ application for an order under rule 370 dismissing the applicant’s proceeding. Rule 370 is in Chapter 10 of UCPR, which is entitled “Court supervision”. It provides:
- “(1)This rule applies if a party—
- (a)after receiving notice of a hearing for directions, does not attend a hearing for directions; or
- (b)fails to comply with a direction, including a practice direction.
- (2)The court may do any of the following—
- (a)give the further directions the court considers appropriate;
- (b)dismiss the application or proceeding;
- (c)make another order dealing with the proceeding the court considers appropriate.
- (3)In deciding whether to dismiss the application or proceeding, the court must have regard to the principle that the interests of justice are paramount.”
- The trial judge concluded the applicant’s communications to the court did not persuade her that the applicant was genuinely ill or genuinely unable to communicate by way of telephone. The trial judge considered that to allow the proceedings to remain on foot and to be revived at the whim of the plaintiff would be to allow unexplained and unacceptable delay amounting to an abuse of process.
- The trial judge took into account a variety of other matters: “the plaintiff’s cavalier approach to this litigation from the beginning; the inadequacy of his pleadings; his obvious lack of comprehension of that which is required to successfully prosecute a claim for $2.2 million in the Supreme Court; his obvious lack of preparation for trial; his disrespectful response to the directions of the Court and his failure to communicate to the Court, or to the defendants, his intentions or plan insofar as this trial is concerned, bearing in mind that the trial was listed to conclude today”.
- In addition, the trial judge referred to “an obvious concern about the veracity of the plaintiff’s claim”, “the strength of the evidence presented by the defendants”, and “the paucity of the evidence [the applicant] had available to him” (at the trial). The evidence presented by the respondents to which the trial judge referred was contained in affidavits filed by the respondents in support of their application under r 370. The trial judge explained that she approached this evidence with caution and a consciousness that it included evidence of potential witnesses which could not be tested.
- In a different context I will refer to some of the evidence adduced by the respondents. It is not necessary to set out the evidence the trial judge took into account. In my respectful opinion the trial judge erred in applying rule 370 to dismiss the applicant’s claim in these circumstances. Submissions in this Court were made upon the question whether that rule authorised the trial judge to dismiss the proceeding for the applicant’s failure to comply with the trial judge’s directions that the applicant appear at the trial or provide medical evidence explaining why he could not appear. It is not necessary to decide that question. I have serious reservations about the appropriateness of the trial judge’s direction to the applicant to appear, but it is also not necessary to discuss that question.
- Whatever may be the scope of a trial judge’s powers in those respects, nothing in rule 370 suggests that an order dismissing a plaintiff’s claim upon a defendant’s application for such an order may be made in the absence of a plaintiff who has not been served either with the application or with affidavits relied upon by the defendant. Furthermore, whilst the trial judge discounted the value of that evidence upon the ground that the applicant had no opportunity to meet it, the trial judge took all of that evidence into account. In my respectful opinion, the way in which r 370 was applied in this case involved a denial of procedural fairness to the applicant.
- It does not necessarily follow that the order dismissing the applicant’s proceeding should be set aside. Orders have frequently been made dismissing a plaintiff’s claim after the plaintiff failed to appear at or had withdrawn from the trial of the proceeding. Upon the findings in  of these reasons, such an order was appropriate. The applicant was not granted the adjournment of the trial he had sought. The trial therefore continued. The applicant failed to appear. In the civil jurisdiction the adversarial system operates upon the basis that, subject to limited exceptions (such as where summary judgment is appropriate), the necessary opportunity for the parties to be heard in support of or in opposition to a plaintiff’s claim will be afforded at the trial of that claim. Furthermore, in this case the onus of proving the only claim at the trial lay entirely upon the applicant. It follows that the respondents were entitled to an order dismissing the applicant’s claim simply because the applicant failed to fulfil his onus of proving his claim at the trial.
- It is not necessary to identify any other source of power for the order made by the trial judge, but the conclusion I have expressed is consistent with rule 476(2) of UCPR, which is in Ch 13 Part 3 (“Trial”) Division 2 (“Proceedings at trial”). Rule 476 provides:
- “(1)If a defendant does not appear when the trial starts, the plaintiff may call evidence to establish an entitlement to judgment against the defendant, in the way the court directs.
- (2)If the plaintiff does not appear when the trial starts, the defendant is entitled to dismissal of the plaintiff’s claim and the defendant may call evidence necessary to establish an entitlement to judgment under a counterclaim against the plaintiff, in the way the court directs.
- (3)Despite subrule (2), the defendant may submit to judgment if the plaintiff does not appear when the trial starts.
- (4)The court may set aside or vary any judgment or order obtained because of subrule (1) on terms the court considers appropriate.”
- The reference in r 476(2) to the plaintiff not appearing “when the trial starts” does not deprive a defendant of its general law entitlement to dismissal of a claim where a plaintiff who bears the onus of proving a claim at the trial withdraws from the trial without having fulfilled that onus. Rather, the rule confers upon the defendant an entitlement to dismissal of a plaintiff’s claim merely upon the ground of the non-appearance of the plaintiff, regardless of where the onus of proof would lie at the trial. That was established by Armour v Bate, a case in which a plaintiff’s claim was dismissed under an indistinguishable rule although the onus of proof at the trial lay upon the defendant.
- The potential for a miscarriage of justice in the case of a dismissal under r 476(2) or a dismissal under the general law is ameliorated by the inherent power of the Supreme Court to set aside an order that occasioned a miscarriage of justice: a miscarriage of justice will “ordinarily” be established “if a person has suffered an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a re-hearing or that a re-hearing would work an irremediable injustice to the other side”. Before discussing that topic I will consider the proposed appeal.
Application for an extension of time to appeal
- The time for appealing from the orders made on 29 October 2020 expired 28 days after those orders were pronounced, namely, on 27 November 2020. The applicant did not file the documents by which he sought to commence an appeal until two months and one day later, on 28 January 2021.
- For an extension of time of that magnitude, the court ordinarily will require the applicant to provide a satisfactory explanation for the delay and the court will usually also have regard, in a general way, to the applicant’s prospects of succeeding in the appeal for which the extension of time is sought.
- By way of explanation for the delay in appealing, the applicant seeks to rely upon a report by Dr Jassat dated 30 October 2020. According to Dr Jassat’s report, he first saw the applicant on that date. Dr Jassat described the applicant’s “Relevant Past Medical History” as “Nil”. The report records that on 30 October 2020 the applicant was then suffering from vomiting/diarrhoea, tinnitus, depression and coughing. Upon the strength of that examination and diagnosis Dr Jassat expressed the opinion that “she/he was unfit for work/school from 30/10/2020 to 30/11/2020 inclusive, due to Medical” and that “she/he will be able to resume work/school on 01/12/2020.”
- The applicant also seeks to rely upon Sunshine Coast University Hospital “Mental Health Services Progress Notes” dated 2 November 2020. That document refers to the applicant reporting that he was stressed on 30 October 2020. It also refers to what appears to have been increasing stress suffered by the applicant on 31 October 2020, ultimately resulting in the applicant being taken by police from his mother’s house to hospital that day. There is a list of “stressors”, the first of which is “Court trial”. The document does not convey that the applicant remained in hospital or would continue to be unwell after 2 November 2020.
- The report by Dr Jassat and the hospital notes do not explain why the symptoms to which Dr Jassat referred justified a certificate of unfitness for as long as one month. The respondents took that point. Putting that aside, the hospital notes do not explain any of the delay in appealing, and Dr Jassat’s report is capable of explaining only the first few days of delay in appealing after expiry of the period for appealing on 27 November 2020. It is therefore unnecessary to consider the respondents’ objection to the admissibility of those documents.
- In the result, there is no explanation in the evidence for the applicant’s delay in appealing of about two months.
- The prospects of success of the proposed appeal ultimately depend upon the question whether the trial judge erred in not granting the applicant an adjournment for each of the second, third and fourth days of the trial. The circumstances of most relevance to that issue are described in  –  of these reasons. The trial judge’s findings of most significance are those which are set out in  and  of these reasons, the most important of which are the trial judge’s findings that the applicant was not genuinely ill or genuinely unable to communicate with the court by way of telephone. If those findings are sustained, it could not be said that the trial judge should have exercised the discretionary power to adjourn the trial.
- Those findings are supported by various matters: the available inference that by the time the applicant left the court room on the first day of the trial he must have appreciated that his case was going very badly; the circumstance that the apparently healthy applicant then first complained of ill health; the circumstance that, despite it being clearly explained to the applicant that he was required to obtain medical evidence explaining why he could not appear at the trial, he did not supply the court with any medical evidence that purported to give such an explanation and the circumstance that he was able to communicate with the court by email. On the other hand, the applicant lacked the benefit of legal representation, it is possible that the illness of which he complained on the first day of the trial was itself caused by the stress of him appearing or by his appreciation that the trial was going badly, and his failure to obtain persuasive medical or other evidence explaining his failure to appear on subsequent days of the trial arguably might itself have been attributable to the illness he asserted.
- Full weight must be given to the fundamental requirement of procedural fairness that a party must be given the opportunity of being heard in opposition to an order sought against that party. Even so, and particularly having regard to the circumstances that the applicant was afforded the opportunity of appearing at the trial by telephone, the material he supplied to the court did not even approach an explanation of why he could not appear by telephone, he appeared able to communicate by email, and the trial judge had the advantage of seeing and hearing the applicant open his case and give evidence on first day of the trial, I am not persuaded that the applicant has a strong case that the trial judge erred by not exercising the discretion to grant an adjournment.
- I proceed upon the footing that the appeal is fairly arguable. Taking that into account, but also having regard to the absence of any explanation for the applicant’s delay in bringing the appeal, I would not exercise the discretion to extend time by the period of some two months required by the applicant. One matter which supplies strong support for that conclusion is that evidence upon which the respondents relied at the hearing of the application in this Court demonstrates that there is no merit in the applicant’s pleaded claim. My reasons upon this topic are given under the next heading.
UCPR Rule 667(2)(a) and the inherent power
- The applicant implicitly invoked the inherent power of the Supreme Court to set aside a judgment given against a person who failed to appear where that failure is adequately explained and it is not apparent that no different result would be reached from a re-hearing or that a re-hearing would work an irremediable injustice to the other side. In addition, the applicant expressly invoked UCPR rule 667(2)(a), which empowers a court to set aside an order at any time if “the order was made in the absence of a party”.
- The inherent power, like the rule, allows an application to set aside a judgment to be made to the court which gave the judgment. The applicant did not make any such application in the Trial Division. Instead, the applicant seeks to have the Court of Appeal exercise the power as at first instance. If the Court otherwise might exercise the power, the unexplained delay in applying is a factor opposed to that unconventional course.
- The new evidence the applicant seeks to adduce comprises four affidavits. The affidavits exhibit documents, including “medical certificates”. The applicant was on notice of the trial judge’s criticisms of the medical reports upon which he had relied at trial. He was also on notice of the respondents’ objection in this application to the admission in evidence of similar, unproved documents. Yet, subject to one exception I will discuss, in none of the applicant’s affidavits does he state that he was too ill to participate in the trial and he again seeks to rely instead upon unproven documentary evidence.
- A certificate signed by Dr Vasquez dated 8 September 2020 includes the opinion that “the patient is/has been unfit for work/study from 01/09/2020 to 01/12/2020”. This unpersuasive document suffers from the particular weaknesses that it was signed a long time before the trial, the applicant did not seek an adjournment of the trial upon the strength of this evidence, and he appeared on the first day of the trial. In the affidavit sworn on 25 February 2021 to which this certificate is exhibited, the applicant simply refers to its contents and states that it “was to be presented as part evidence and was in court room bar table at the time of trial.”
- Similarly, in an affidavit sworn by the applicant on 24 March 2021, the applicant refers to exhibited documents but does not verify the truth of statements made by the applicant recorded in those documents. For present purposes the relevant document is the “Sunshine Coast University Hospital Mental Health Services Progress Notes” dated 2 November 2020. I have already mentioned that this document indicates that the applicant was admitted to hospital on 31 October 2020 following a “stress related event”. The notes also include a section “Events proceeding hospitalisation”. This sets out information the applicant must have given to hospital staff about earlier events, including events between 26 and 29 October 2020:
- (a)26/10: the notes refer to the applicant representing himself in the four day trial. Notably, there is no reference to the applicant being ill on the first day of the trial.
- (b)27/10: the notes refer to the applicant having gastroenteritis, to his being required to supply evidence to the court of his medical condition, and to his sending a photograph of a medical certificate and the prescription for nausea/vomiting. There is a note, “No longer taking Ondansetron”.
- (c)28/10: the notes refer to the applicant’s gastroenteritis continuing and him being “unable to attend court and they proceeded without him.” Notably, there is no reference to the question whether or not the applicant could have made a telephone call to the court.
- (d)29/10: the notes refer to the applicant recovering from the gastroenteritis, the trial concluding in a way which was severely disadvantageous to the applicant, and the applicant having developed tinnitus and having rung a home doctor’s service.
- The applicant’s own statements recorded in that document about his condition up until when judgment was given against him on 29 October 2020 do not constitute an adequate explanation for his failure to appear on any of the last three days of the trial in person or by telephone. As the respondents objected, those statements are not admissible evidence of their truth. The applicant did not seek to overcome that difficulty by the simple expedient of including in one of his four affidavits a statement verifying the truth of what he told hospital staff.
- The only evidence by the applicant about his health at any time is his statement in an affidavit sworn on 28 January 2021, with reference to an exhibit about “Ondansetron side effects”, that “This Medication caused serious effects that intensified and created more illness’s that led to myself as to be incapacitated or to comprehend any directions given by Her Honour Ryan J”. This statement, which is not supported by any medical or other evidence, does not identify the date or dates upon which the applicant suffered any such side effects. Given that the hospital’s progress notes record a statement by the applicant that he ceased to take the drug on 27 October 2020, without further evidence it could not be inferred that he continued to suffer from the stated side effects on 28 or 29 October. This single statement on oath is not an adequate explanation of the applicant’s failure to appear on each of the second, third and fourth days of the trial.
- Putting that aside, I have also considered the question whether the discretion under rule 667(2)(a) or the inherent power of the Supreme Court should not be exercised in the applicant’s favour upon the footing that, as the respondents submitted, the trial of the applicant’s pleaded claim would inevitably result in judgment for the respondents. For the following reasons I accept the respondents’ submission.
- I have already mentioned that the applicant opened that the CCTV footage would be evidence in his case. At the hearing of the application in this Court, the applicant was on notice of the respondents’ argument that the CCTV footage was plainly inconsistent with the applicant’s pleaded case.
- The CCTV footage does not include audio. I will set out what the footage shows.
- (a)The plaintiff selects a trolley from a trolley bay. He disengages the rear brake on the trolley. The plaintiff wheels the trolley to near the passenger side of his car. He positions the trolley parallel to his car and depresses the brake with his foot. The brake end of the trolley is near to the rear of the car. The front (unbraked) end of the trolley is closer to the front passenger side door of the car.
- (b)Within about 10 seconds a hotel staff member (Mr Markovitch) walks over to the applicant. The applicant immediately commences loading the trolley. Mr Markovitch walks to the rear of the applicant’s car to load luggage and the applicant subsequently intervenes to prevent him. A second hotel staff member (Mr Lowe) walks over to assist Mr Markovitch and the applicant. Mr Markovitch communicates something to Mr Lowe. Mr Lowe and Mr Markovitch remain near the trolley.
- (c)Miss Jackson appears to request help. Mr Markovitch loads an item onto the trolley. Mr Markovitch’s hand is on the trolley. Mr Lowe walks away. The applicant walks towards the trolley, from the rear of the car, with an item of luggage. The applicant moves items on the trolley which are hanging on hooks to make room for the item. At that time the unbraked part of the trolley moves. Mr Markovitch holds the trolley, which ceases to move. Mr Markovitch loads some items onto the trolley whilst the applicant holds the trolley.
- (d)Mr Lowe returns and Mr Markovitch walks away for a moment. The applicant and Miss Jackson load smaller items onto the trolley whilst Mr Lowe stands beside the trolley. Miss Jackson closes the boot of the car. The applicant, with assistance from Mr Lowe, places a large item onto the trolley. The applicant removes a “carry on” bag from the passenger rear door, places his outreached hand on the extended handle of the bag and talks to Mr Lowe. At this time the trolley seems to be fully loaded.
- (e)Mr Lowe walks away. During the following period of less than a minute, the applicant pushes down the luggage with the extended handle onto the ground, takes an item from Miss Jackson, and walks to the side and then to the rear of his vehicle.
- (f)At about the same time, Miss Jackson picks up with both hands an apparently heavy item of luggage from the ground, walks to the side of the trolley furthest from the kerb, and attempts to place that luggage on top of the loaded trolley. Whilst doing so, Miss Jackson pushes the item of luggage into the trolley towards the kerb, and the unbraked end of trolley swings towards the kerb whilst it pivots on the stationary, braked end of the trolley.
- (g)When the trolley starts swings towards the kerb:
- Mr Lowe is in view, returning to the car.
- The applicant is well away from the path of the trolley, at the rear of the car on the side furthest away from the trolley.
- (h)After the trolley has swung much of the distance towards the kerb:
- The place on the trolley upon which Miss Jackson had attempted to place the item of luggage has become out of her reach, and she drops that item of luggage on the ground whilst the trolley tips over the kerb towards the car.
- The applicant looks towards the swinging trolley, moves quickly into its path, and extends his arm in an apparent attempt to stop the trolley colliding with his vehicle.
- One reason why the applicant could not succeed at trial is that the CCTV footage contradicts the applicant’s pleaded case that the trolley’s brake failed. The braked end of the trolley did not roll towards the kerb. At the critical time the CCTV shows, not that Miss Jackson had put a bag on the trolley as the applicant pleaded, but that she persistently but unsuccessfully tried to push the bag onto items distant from the braked end of the apparently full trolley. She thereby pushed the unbraked end of the trolley towards the kerb whilst the braked end remained stationary until the trolley ultimately tipped over.
- The applicant argued that it could be seen on the CCTV footage that there was a slope between the trolley and the kerb. I could not see a slope. If there was a slope, it plainly did not cause the trolley to move when no external force was applied to the trolley. Whatever might be said about the presence or absence of a slope, the CCTV footage contradicts the applicant’s pleaded case in fundamental respects.
- The applicant obviously had the opportunity of viewing the CCTV footage before the trial, he admitted it, and he opened it as part of his own case. The applicant nevertheless did not seek to amend his statement of claim to bring it into line with that footage. That may have been because the applicant could not formulate a case that the respondents were negligent in a way that was consistent with the CCTV footage. Whatever is the reason, it would not be appropriate to set aside the order dismissing his claim merely to enable him to apply for leave to make any such amendment for the purpose of litigating his claim at a future date. Some five years had elapsed between the date of the accident and the date of the trial. The applicant had ample time to formulate his claim. He had ample time to formulate any amendments he may have wished to make to his statement of claim before the trial. He opened his case and commenced to give evidence without seeking to make any amendment. Even by the time of the hearing in this Court, the applicant had not proposed, much less formulated, any amendments to his statement of claim. There is no reason to think he could or would formulate a viable amendment in the future.
- The CCTV footage does show that the trolley collided with the applicant. Although my perception is that the CCTV footage does not show that the applicant was injured as a result of the collision, it is not clear to me that such an injury necessarily would be apparent on the CCTV footage. In this context, I note that one of the documents the applicant seeks leave to adduce in the application is a report by Dr Ratnam under the title “Home Doctor Service”. This report records that Dr Ratnam saw the applicant at the Jupiters Casino Hotel on 15 November 2015. The report gives clinical details, including a diagnosis of neck strain, lumbar strain, and soft tissue injury to the applicant’s right forearm. There is also a note, “Lumbar Radiculopathy? Disc prolapse/protrusion”.
- Another of the documents the applicant seeks leave to adduce as evidence in this application is a report dated 26 November 2015 by Dr Majeed, which refers to an examination on that date. This is, I think, the CT scan report which the applicant sought to tender at the trial and to which the respondents objected. The report states that there is “No acute fracture, dislocation or destructive bony lesion”. It refers to “a pars defect demonstrated L5 with associated grade 1 anteriolisthesis of L5 relative to S1”, the consequences of which are said to possibly account for some of the applicant’s symptoms.
- Those reports are consistent with the applicant having sustained an injury in the trolley collision. Dr Ratnam’s opinion appears to raise the possibility of damage to the applicant’s spine, but the CT scan report does not convey that the applicant sustained the pleaded injury or any permanent injury capable of producing the consequences of which the applicant complains in his statement of claim.
- Other evidence adduced by the respondents creates serious doubt about the applicant’s claim that he was disabled by an injury to his spine caused by the alleged incident at Jupiters Casino:
- (a)The applicant’s statement of loss and damage refers to “February 2016 Presented to Gold Coast University Hospital dehydration (illness)” and “Gold Coast University Hospital medical record and hospital discharge letter”. The relevant part of the discharge letter refers to the applicant presenting with a headache and other symptoms, to minimal fluid and food intake that day, and that at approximately 5.00 pm that day the applicant “had been outside had all day working in garden…nil other pain”. The applicant was treated for dehydration, monitored, and discharged when he improved.
- (b)The applicant’s amended statement of loss and damage refers to “June 2016 presented to Lismore Base Hospital for gash to left leg (accident)” and (under a heading identifying doctors who had examined the applicant since injury) it refers to Dr Adams at that hospital. Clinical notes by a nurse practitioner at the hospital, dated 2 July 2016, include reference to a history “fell 1.5 metres two days ago…missed step while walking up stairs…tried to brace against wall…when asked where pain was – pointed to left buttock and loin region…very concerned and requesting imaging as patient normally fit strong and a worker”. The words “nil significant” appear under a heading referring to the patient’s medical history. The nurse practitioner requested imaging.
- (c)Notes by Dr Adams dated 4 July 2016 include “fell off stairs about four days ago…initially had only minor pain…since pain neck L spine inner L thigh and L shin around abrasion” and, upon examination, “widespread mid-line spine tenderness to quite light touch including c spine and most tender L spine”. A report of an x-ray by Dr Hooper, dated 4 July 2018, refers to mild degenerative changes in the cervical spine, with a disc narrowing and no fracture seen and, relevantly in relation to the lumbar spine, “degenerative changes…Disc narrowing seen, L5, S1” and “5mm anterior displacement of L5 and S1. No fracture seen.”
- The evidence referred to in the preceding paragraph demonstrates that the respondents’ objection to the applicant relying upon medical reports without calling witnesses to give the necessary expert evidence about them is not merely a technical point. The applicant could not have succeeded in obtaining judgment at the trial without calling expert evidence about his pleaded injury. Neither in the Trial Division nor in this application did the applicant explain why he did not propose to call any expert evidence to support his claims that he suffered the pleaded injury, the collision with the trolley was a cause of that pleaded injury, and his claimed inability to work was a consequence of the injury he may have sustained in the trolley collision. Nor did the applicant submit that he wishes to resile from the stance he had adopted in the Trial Division and call an expert witness.
- Furthermore, the pleaded claims about the consequences of the trolley collision are directly inconsistent with evidence given by the applicant on oath in a different case. The respondents’ pleading described in  of these reasons denying the claimed impact of the incident upon the applicant accords with a transcript of evidence which the applicant gave at the trial in the Supreme Court of New South Wales. Prior to trial the applicant had failed to respond in time to a notice to admit facts relating to that transcript of evidence. He subsequently objected to the admission of the transcript. On the first day of the trial, however, the applicant admitted he was the witness who gave the transcribed evidence and said he had no objection to the transcript being adduced in evidence. The transcript records that the applicant gave the following evidence of particular relevance to this topic:
- (a)The applicant stopped work when he moved in with Miss Jackson in early 2015. Because he was the fulltime carer of Miss Jackson he had not looked for work. If he was not Miss Jackson's carer he would be looking for work.
- (b)The applicant was required to do all the cleaning of the house and most of the cooking, the clothes washing and the shopping. He also had a vegetable garden at the Mt Burrell property when they lived there.
- In response to the respondents’ submissions that this transcript was inconsistent with the applicant’s claim that the impact of the trolley resulted in him suffering economic loss because that accident rendered him unable to work, the respondent argued:
“[The transcript] just says 2015. There was no actual date or month. Actually, it happened after that time that I’d been in a de-facto relationship, and her lawyer said that “Because do you x amount, like, cooking and cleaning and things like that, that she may be entitled to commercial care,” which the judge said “No the hours don’t substantiate that.” I wasn’t asked to say that I’d been injured and hence why I stopped work at the trial of Miss Jackson.”
- That submission cannot be accepted. Miss Jackson’s claim in the New South Wales proceedings was that, as a result of falls in 2011 and 2013, she required a great deal of assistance for everyday tasks. The applicant gave evidence in March 2017 that he had been with or seeing Miss Jackson for three years, he had been living with her for about the preceding two years, he would date the commencement of their cohabitation in early 2015, his most recent employment was as chairman of a charity organisation for 12 months, that work concluded in 2015, and he had commenced to cohabit with Miss Jackson in January 2015.
- After the applicant had given evidence that he had not looked for work since 2015, this exchange occurred:
“Q… you said you’ve not looked for work since 2015. Why not?
A. Because I full time care after Liana [Miss Jackson].
Q. If you weren’t doing that, would you be looking for work?
- The circumstance that, according to the applicant, the trial judge in the New South Wales case found that the hours for which the applicant had worked did not substantiate Miss Jackson’s claim relating to his care of her has no bearing upon the fundamental inconsistency between the evidence the applicant gave in support of her claim and his pleaded case that the collision with the trolley rendered him unable to work.
- For these reasons, I would not exercise the discretion under UCPR r 667(2)(a) or the inherent power to set aside the order dismissing the applicant’s claim.
Other new evidence
- Most of the other evidence upon which the applicant seeks to rely in support of his application in this court comprises inconsequential medical reports or certificates about his fitness for work. That evidence has no significance for the issues I have discussed. It is therefore not necessary to consider the respondents’ objection that it is all inadmissible.
- Other affidavit evidence the applicant seeks to rely upon is said by the applicant to reveal the strength of his claim. Rather, this evidence tends to show that the applicant is either unable or unwilling to comply with pleading rules in the UCPR designed to ensure that a defendant has sufficient notice of facts to be alleged in support of a claim so as to be in a position to defend the claim. In particular, one affidavit, which was sworn on 18 February 2021, includes evidence to the effect that a few years after the incident the respondents installed driveway entry bollard poles. The applicant deposes that those bollards would have prevented the “runaway concierge luggage trolley from impacting my body”. A claim based upon this proposition would require a substantial amendment to the applicant’s statement of claim, which contains no reference to a breach of a duty of care consisting of the failure to install some such barrier. The applicant did not seek to make any such amendment at the trial. He did not formulate any such amendment in this court.
- I would dismiss the applicant’s application, with costs.
- MULLINS JA: I agree with Fraser JA.
 See, for example, the cases cited by Muir JA in Mango Boulevard Pty Ltd v Spencer  QCA 207 at . See also Narayan v Swaleh & Ors  NSWSC 1248 at  (Brereton J), Butler & Ors v JSL Racing Pty Ltd & Ors  VSC 22 at  (John Dixon J), and Erceg v Erceg  WASC 267 at  (Allanson J).
 Whether it was an error for the trial judge not to adjourn the trial is a different question.
 Rule 476 does not include a similar provision in relation to an order dismissing a claim under r 476(2).
  2 QB 233 at 234 (Lord Esher MR, Lopes and Kay LJJ concurring).
 Allesch v Maunz (2000) 203 CLR 172 at 182 – 183  (Gaudron, McHugh, Gummow and Hayne JJ), referring to Taylor v Taylor (1979) 143 CLR 1 at 4, 15 – 16, and 21.
 See, for example, McLaren v Public Curator of Queensland  QWN 18, Morrison v Hudson  2 Qd R 465 at  (Keane JA, Williams JA and White J agreeing).
 Affidavit of applicant sworn 25 February 2021.
 CCTV footage taken from a different angle on another camera does not show anything different.
 In affidavits upon which the respondents relied when applying for judgment, Jeffrey Markovitch and Brian Lowe identified themselves as the first and second of the staff members shown on the CCTV footage. It is convenient to identify them by name, but their identities are not significant for present purposes.
 Liana Renae Jackson v KAH Australia Pty Ltd.
 Transcript 20 July 2021 at 1 – 68.
 Transcript 7 March 2017 at 169.
 Transcript 7 March 2017 at 170.
 Transcript 7 March 2017 at 169.
 Transcript 183.
- Published Case Name:
Kleeman v The Star Entertainment Group Limited & Anor
- Shortened Case Name:
Kleeman v The Star Entertainment Group Limited
 QCA 119
Sofronoff P, Fraser JA, Mullins JA
05 Jul 2022
- White Star Case: