O'Hara v Bartholemew
[1998] QDC 275
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- O'Hara v Bartholemew[1998] QDC 275
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O'Hara v Bartholemew[1998] QDC 275
O'Hara v Bartholemew[1998] QDC 275
DISTRICT COURT | No 1791 of 1997 |
CIVIL JURISDICTION
JUDGE ROBERTSON
MICHAEL DAVID JAMES O'HARA | Plaintiff |
and
BOYD BARTHOLEMEW | First Defendant |
and
CHRISTOPHER DAVID HENKEL | Second Defendant |
BRISBANE
DATE 04/09/98
JUDGMENT
HIS HONOUR: The plaintiff seeks an enlargement of time pursuant to Rule 375 of the District Court Rules to renew the plaint issued on 2 May 1997 for a further 12 months from 2 May 1998.
The plaintiff was born on 12 October 1976. On 18 September 1992, he was involved as a passenger in a motor vehicle accident in which he suffered personal injuries. The plaint was issued on 2 May 1997 and the period of limitation expired on 12 October 1997.
On 6 May 1997 the plaintiff's solicitor forwarded copies of the plaint to each insurer. The letters were in similar terms and stated inter alia:
“We anticipate that it will be necessary for our client to undergo a further examination by an orthopaedic surgeon prior to being able to forward an offer of settlement and finalise our client's statement of loss and damage. Accordingly we do not intend to serve proceedings at this stage. You are however free to file an entry of appearance and defence without service.”
On 14 May 1997 FAI replied in these terms:
“We write to confirm our telephone conversation on the above date concerning the District Court proceedings that have been served. As agreed we will continue to negotiate with you direct in this matter. We will not be appointing solicitors to file a defence....”
Certainly at that point FAI appeared to take the view that the proceedings had been served whereas the plaintiff's solicitor took the contrary view. In fact neither of the defendants have been personally served, nor has there been any attempt to do so and the plaintiff, it is said, at no stage complied with Regulation 10 of the Motor Vehicle Insurance Act 1968 in that no affidavit of service on the licensed insurer was ever filed.
Mr Copley describes the failure as a mere technicality. It may not even be that because in fact no further step has been taken in the action.
The plaint became stale for service purposes on 2 May 1998 and the plaintiff's solicitor became aware of the problem in August 1998 and this application was promptly brought. The relevant principles to be applied are well settled. In Van Leer Australia Pty Ltd v. Palace Shipping KK and another (1981) 180 CLR 337 at 334, Stephen J quoted with approval the following passage from Victa Ltd v. Johnson (1975) 19 S.A.S.R. 496 at 504, in which Bray CJ said concerning a rule of Court not (so far as is relevant to the issues on this application) materially different from Rule 53:
“The rule first directs the Court to inquire whether reasonable efforts have been made to serve the defendant. If they have it seems to me that the Court should renew the writ. If not the Court has to consider whether other good reasons exist for the renewal. I will not attempt an exhaustive category of such reasons. That would probably be impossible and would certainly be undesirable. Prominent however amongst the matters for the consideration of the Court, apart from whatever attempts have been made at service, will be the length of the delay, the reasons for the delay, the conduct of the parties and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it.”
Those words conveniently summarise the approach that has been adopted in Queensland to applications of this sort: Dempsey v. Dorber [1990] 1 QdR 418 and Traj v. The Cannery Board [1991] QdR 494 (which case directly concerns Rules 52 and 53 of the District Court Rules) per Connolly J at page 496 (with whom Carter and Moynihan JJ agreed).
The jurisdiction under Rule 53 and by analogy Rule 375 is not exercised to punish or caution. The essential question is whether there is good reason for making an order: Dempsey v. Dorber at page 422 per Connolly J.
The fact that the period of limitation has expired while relevant is not in itself ground for refusing to renew the plaint: Traj (supra) at 496 referring to the decision of Gibbs J in Jones v. Jebras and Hill [1968] QdR 13.
The plaintiff relies on an affidavit from his solicitor Mr Lillicrap. He discloses that apart from sending a copy of the plaint to the licensed insurers, nothing has been done to effect service on the defendants. The plaintiff as applicant bears the onus of establishing at least one of the bases for renewal. It could not be said that reasonable efforts have been made to serve the defendants as Mr Lillicrap's affidavit frankly discloses that no efforts were made at all.
There remains open the question whether there is “other good reason” for now renewing the plaint. The affidavit discloses that the delay has come about because of some difficulty in obtaining evidence which will be necessary for the plaintiff's statement of loss and damage relating apparently to some information from a previous employer.
There is no reference in Mr Lillicrap's affidavit to any delay in obtaining medical reports such as the orthopaedic report referred to in his letter on 6 May 1997. It is therefore hard to avoid drawing the conclusion that the delay has been occasioned by inaction on the part of the solicitor.
The plaintiff is in no way responsible for the delay and the plaintiff cannot be penalised for delay up to the period of limitation. See Traj (Supra) at 496. Against that the solicitor did forward a copy of the plaint to the licensed insurer, although the insurer was quite entitled to believe that the solicitor would take the next step, which he did not.
The delay is therefore somewhere in the range as existed in Traj v. Jones and a lot less than the delay considered in Dempsey and could not in all the circumstances be said to be inordinate.
Prejudice to the parties is a relevant factor. The plaintiff asserts that there is no prejudice to the defendants as the licensed insurer has been given notice of the plaint and a copy of it. Mr Lillicrap says in his affidavit that if the application is refused the plaintiff will be deprived of a substantial cause of action. That is a relevant consideration.
However the plaintiff may have rights against the solicitor, although this is not a factor which I intend to take into account in the exercise of my discretion on this occasion, as it is not clear to me at all that it is a relevant factor for the purposes of such an application: see the remarks of Connolly J in Dempsey v. Dauber (Supra) at 422 relating to the principles associated with applications to strike out for want of prosecution.
Ms Treston for the defendants submits that the defendants would be prejudiced by renewing the plaint now, because they will be exposed to an order for damages in circumstances in which otherwise the plaintiff's claim against them would be statute barred.
Against this, as I have noted, it is relevant that the licensed insurer was given a copy of the plaint soon after the action was commenced.
The matter is finely balanced. In reaching the conclusion which follows I have considered the single Judge decision of the South Australian Supreme Court to which Ms Treston referred, Middleton and Geary (1979) 24 S.A.R. 239. However, although the various Queensland authorities to which I have referred can be distinguished on the facts, the principles stated therein are clear. Adopting the approach of Connolly J (with whom Carter and Moynihan JJ agreed) in Dempsey and Dauber (supra) at 420, line 25, I have concluded, on balance, that the plaintiff should succeed in its applications.
The parties made anticipatory submissions as to costs and on the basis of those submissions I have concluded that in the circumstances here it was perfectly reasonable for the defendants to resist the application as there was a substantial issue to be determined. It was not a case in which the defendants might reasonably have adopted a neutral role to the plaintiff's application as has occurred on other occasions.
In those circumstances I have reluctantly concluded in the exercise of my discretion that the plaintiff should pay the defendant's costs of the application.
In light of the observations I have made it would be most unfortunate if the plaintiff, although liable under the order I have just made, was to be compelled to pay the costs either immediately or upon conclusion of the proceedings personally. Those remarks do not, of course, affect the defendant's rights to enforce the costs order against the plaintiff personally.
As I understand the position I have no power to order the solicitor to pay the costs personally.
The orders will be as follows:
- (1)That the time for application for renewal of the plaint herein be enlarged to permit the application to renew;
- (2)That the plaint be renewed for a further period of 12 months from 2 May 1998 and that the plaintiff pay the defendant's costs of and incidental to this application to be taxed or as agreed.
MR COPLEY: Thank you, Your Honour.
HIS HONOUR: Mr Copley, thank you?
MR COPLEY: Your Honour, could I just place on the record that I'm instructed that the plaintiff won't be personally paying these costs-----
HIS HONOUR: Yes, I suppose. Yes, thank you, for that.
MR COPLEY: -----and that my instructing solicitor will be indemnified. Thank you, Your Honour.
HIS HONOUR: Thank you.