Gibson v The Nominal Defendant (Queensland)
[1996] QDC 39
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- Gibson v The Nominal Defendant (Queensland)[1996] QDC 39
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Gibson v The Nominal Defendant (Queensland)[1996] QDC 39
Gibson v The Nominal Defendant (Queensland)[1996] QDC 39
DISTRICT COURT | Plaint No 738 of 1990 |
CIVIL JURISDICTION
JUDGE BOULTON
PAUL JOSEPH GIBSON | Plaintiff |
and
THE NOMINAL DEFENDANT (QUEENSLAND) | Defendant |
BRISBANE
DATE 22/03/96
JUDGMENT
HIS HONOUR: This is a matter of Paul Joseph Gibson and the Nominal Defendant. This matter came before me in Chambers earlier in the week. I was not able to give the matter appropriate consideration on the day and I promised to give judgment and give some brief oral reasons within a short space of time.
There are two applications before me, one filed by the defendant on 23 February 1996 seeking to have the action dismissed for want of prosecution, and another filed by the plaintiff of 20 March 1996 seeking leave to proceed. There is a chronology, which is Exhibit 1, which sets out the steps taken in the action from its inception on 15 August 1986, just within the limitation period, the accident having occurred on 26 August 1983. The last step taken in the action was the serving of the plaintiff's further supplementary affidavit of documents on 12 October 1990. There had been a certificate of readiness executed by both parties on 29 September 1987 and the action was entered for trial in the Supreme Court on 2 November 1987. On 5 December 1989 the matter was remitted to the District Court.
The correspondence reveals that for a long period of time the plaintiff was out of contact with his solicitors. It is only recently that an application was made under the Freedom of Information Act to obtain copies of certain taxation returns. Some of these were ordered to be produced by Master Horton on 30 October 1989. The only affidavit filed on behalf of the plaintiff in these proceedings is an affidavit of a solicitor who is a member of the firm which acts for the plaintiff.
Mr Bax took over the plaintiff's file in July 1994. He made efforts to contact the plaintiff, which were initially unsuccessful, but following a letter of 4 September 1995 warning of a striking-out application, the plaintiff contacted him. The plaintiff made some complaints of ill-health which are quite vague and which are deposed to by Mr Bax on the basis of information and belief only.
Taxation returns for the years between 30 June 1988 and 30 June 1990 would seem to have been destroyed by the Taxation Office but returns for the years from 30 June 1991 to 30 June 1993 are said to be available. Some prejudice to the defendant is likely to result from the taxation returns that have been destroyed.
Although the explanation for delay is not a condition precedent for leave to proceed to be granted, it is a relevant circumstance. The failure of the plaintiff to condescend to depose to such matters is quite unsatisfactory, in my view. There is no medical evidence to support his allegations of ill-health or to indicate the duration of such. No other explanation is given for his failure to keep contact with his solicitors or to respond to their correspondence.
The relevant principles on an application to strike out for want of prosecution are set out in Dempsey and Dorber (1990) 1 Queensland Reports 418 at page 422. There is some relevance in the fact that the action was certified ready for trial back in 1987. This is indicative of the fact that at that time the parties considered that all relevant steps had been taken. Of course, following that time, the matter of the plaintiff's discovery was put in issue and has still not been fully resolved.
It should also be pointed out that this is a Nominal Defendant case where no witnesses to the accident exist. Consequently the long delay is not such as to affect the memories of defence witnesses but presumably, though, the memory of the plaintiff would in the normal course of events suffer but it can be suggested that that would only affect the discharge of his onus of proof in the proceedings.
I take the view, however, that the plaintiff's application for leave to proceed should be dismissed. On that application the plaintiff carries the onus of proof. On the defendant's application I find that the plaintiff's conduct in not pursuing the action over a long period of time has been intentional and contumelious, coming as it did on the heels of a striking-out application in August 1990 and the failure even then to take steps to obey the order of Master Horton. I have already pointed out that part of the order of Master Horton has still not been complied with.
On the second ground referred to by Mr Justice Connolly in a striking-out application at page 422 of Dempsey and Dorber I accept that there has been inordinate and inexcusable delay on the part of the plaintiff. I have wavered somewhat on the issue as to whether the risk of a fair trial is “substantial” in these circumstances or whether the prejudice to the defendant can be described as “serious”. The defendant bears the onus on these issues.
The conduct of a fair trial of issues concerning both liability and quantum after a lapse of nearly 13 years might be thought to present substantial problems merely from that fact alone. The loss of three years financial records as a result of the plaintiff's delay might also on its face seem to amount to serious prejudice. Depending on the particular circumstances, however, neither of these might be true. I am not prepared to find on this ground alone, in the absence of more detailed evidence, that the defendant has discharged its onus on the striking-out application. However, I have already found out that it has done so on the first of the two grounds mentioned by Mr Justice Connolly and the striking-out application should, in my view, then succeed.
I order that the application of the plaintiff for leave to proceed be dismissed. I order that the action be struck out. On both applications I order that the plaintiff pay the defendant's costs of and incidental to the applications to be taxed.
...
HIS HONOUR: I order that the plaintiff pay the defendant's costs of and incidental to the action to be taxed. I order that the moneys paid into Court with accretions thereto, if any, be paid out to the solicitors for the defendant.